EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective as of the date
of the execution of the Purchase Agreement, as defined below, (such date, the
"Effective Date"), between DEBT RESOLVE, INC., a Delaware corporation (the
"Company"), and XXXXX XXXX (the "Executive").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company desires to retain the services of the Executive
and to that end desires to enter into a contract of employment with him, upon
the terms and conditions herein set forth; and
WHEREAS, the Executive desires to be employed by the Company upon such
terms and conditions;
NOW, THEREFORE, in consideration of the premises and of the mutual
benefits and covenants contained herein, the parties hereto, intending to be
bound, hereby agree as follows:
1. APPOINTMENT AND TERM
Subject to the terms hereof, the Company hereby employs the Executive,
and the Executive hereby accepts employment with the Company, all in accordance
with the terms and conditions set forth herein, for a period of three (3) years
commencing on the first business day following the closing date (the
"Commencement Date") of the acquisition by the Company of all of the outstanding
limited liability membership interests of Creditors Interchange Receivable
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Management, LLC ("CIRM") contemplated by the Securities Purchase Agreement,
dated as of April 30, 2007 (the "Purchase Agreement"), and ending on the third
anniversary of such date (the "Expiration Date"), unless the parties mutually
agree in writing upon a later date or the Executive's employment hereunder is
automatically extended as provided in Section 7(g) hereof. The Executive shall
(i) serve as a Executive Vice President of the Company, (ii) be appointed to the
Board of Directors of the Company (the "Board") effective upon the Commencement
Date and (iii) serve as CEO and President of CIRM, as a wholly-owned subsidiary
of the Company, and shall report directly to the Company's CEO, Xxxxx Xxxxxxxxx,
and, in addition, report directly to the Board to the extent requested by the
Board. If the Securities Purchase Agreement is terminated without the occurrence
of the contemplated acquisition, then the Agreement becomes null and void.
2. DUTIES
(a) Executive will be responsible for the operations of CIRM, as a
wholly-owned subsidiary of the Company, and shall have such operational duties,
authority and responsibilities commensurate with running a wholly-owned
subsidiary of the Company, including, but not limited to management of the
operations, personnel, profit and loss and budget of CIRM as well as manage
future acquisitions of ARM platforms.
(b) The Company agrees that all department and management level
employees of CIRM (e.g., Human Resources, Systems, Compliance, Client Relations)
shall continue to report directly to Executive. CIRM and CIRM's employees shall
work directly with the Company's corporate personnel staff on issues pertaining
to public company-wide compliance, as well as on mutually agreed-upon goals.
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(c) During the term of this Agreement, the Executive shall, unless
prevented by incapacity, devote substantially all of his time, attention and
ability to the discharge of his duties hereunder and to the faithful and
diligent performance of such duties and the exercise of such powers as may be
assigned to or vested in him by the Board and/or the Chief Executive Officer of
the Company, such duties to be consistent with his position. The Executive shall
obey the lawful and reasonable directions of the Board and Chief Executive
Officer and shall use his diligent efforts to promote the interests of the
Company and to maintain and promote the reputation thereof.
(d) The Executive shall not, during his term of employment (except as a
representative of the Company or with the prior written consent of the Chief
Executive Officer), be directly or indirectly engaged or concerned or interested
in any other business or commercial activity, except through ownership of an
interest of not more than five percent (5%) in any entity that does not compete
with the Company.
(e) Notwithstanding the foregoing provisions, the Executive shall be
entitled to serve in various leadership capacities in civic, charitable and
professional organizations or managing the Executive's personal and family
passive investments; provided in each case, and in the aggregate, that such
activities do not materially conflict or interfere with the performance of the
Executive's duties hereunder. The Executive recognizes that his primary and
paramount responsibility is to the Company.
(f) The Executive shall be based in the Buffalo, New York area, except
for required travel on the Company's business.
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3. REMUNERATION
(a) Base Salary. As compensation for his services pursuant hereto, the
Executive shall be paid a base salary during his employment hereunder at the
salary of $400,000 per year. This amount shall be subject to all applicable
withholding and other taxes and shall be payable in equal periodic installments
in accordance with the usual payroll practices of the Company. The Chief
Executive Officer and the Compensation Committee of the Board of the Company,
shall review the compensation of the Executive annually, and in their sole
discretion, may from time to time authorize increases in the base salary of the
Executive. The Executive's base salary may only be reduced at the direction of
the Compensation Committee of the Board of the Company.
(b) Annual Bonus. The Executive shall be eligible to receive a bonus
(the "Annual Bonus"), which shall be determined in accordance with Exhibit A
attached hereto. No modifications to Exhibit A hereof shall be made without the
prior written approval of each of (i) the Executive, (ii) the CEO, and (iii) the
Compensation Committee of the Board.
(c) Stock Options. The Executive shall be granted stock options (the
"Stock Options"), which entitle him to purchase 400,000 shares of common stock,
par value $.001 per share, of the Company at an exercise price equal to the
price at of the Company's common stock on the close of trading on the day upon
which the Purchase Agreement is executed, which options shall vest, (1) as to
33% of such shares, on the first anniversary of the Effective Date, (2) as to
33% of such shares, on the second anniversary of the Effective Date, and (3) as
to 34% of such shares, on the third anniversary of the Effective Date, and in
each case pursuant to a customary stock option agreement which will contain the
terms pertaining to the Stock Options
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contained in this Section 3(c), which the Executive and the Company shall enter
into within five (5) days after the execution of this Agreement. Except as
otherwise expressly provided in this Agreement, the Stock Options will expire
ten years after they are granted. Further, the Executive shall be entitled to
participate in the Company's stock option grant program for the grant of stock
options, on the same basis as other executives of the Company, which plan the
Company shall use best efforts to have in place by December of 2007.
(d) The Company shall cause CIRM to adhere to its current policy of
providing to Executive a car allowance, use of a cell phone, laptop computer,
Blackberry Wireless Handheld Device, and reimbursement for gas expenses and
mileage during business trips.
(e) Except as provided above, and in Sections 4, 6, and 7 hereof, the
Executive shall not be entitled to receive any additional compensation,
remuneration or other payments from the Company.
4. HEALTH INSURANCE AND OTHER FRINGE BENEFITS.
The Company agrees that the current level of health, dental, medical
and other plans or benefits currently provided to the Executive by CIRM shall be
maintained by the Company for at least the term of this Agreement. The Company
further agrees that the costs associated with Executive's (i) health insurance
with prescription drug coverage, (ii) dental insurance, (iii) long-term
disability insurance, (iv) short-term disability insurance and (v) life
insurance shall continue to be paid for him by CIRM. Notwithstanding the
immediately preceding sentence, if during the term of this Agreement the Company
procures insurance coverage for the Company's employees that provide more
favorable terms than those provided to
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the Executive, then the Executive shall be entitled to participate in the more
favorable insurance coverage. Further, if and to the extent that the Company
wishes to find a lower cost provider with respect to plans or benefits provided
to the Executive (even if such lower cost provider shall provide the same level
of benefits), the Company agrees to obtain the prior written consent of the
Executive prior to changing providers of plans or benefits provided to the
Executive. In addition to the foregoing, the Executive shall participate on an
equitable basis in any other plans, programs and benefits of the Company, if
any, to the extent his position, tenure, salary, age, health or other
qualifications make him eligible to participate. Furthermore, to the extent
permitted by applicable law, in the event that the Company changes the health
care provider at CIRM, then the Company will provide CIRM with sufficient funds
to permit CIRM employees to obtain health care coverage through the prior health
care provider, provided that this provision will not bestow any rights upon any
third-party beneficiaries.
5. VACATION
The Executive shall be entitled to four (4) weeks vacation (in addition
to the usual national holidays) during each contract year during which he serves
hereunder. Such vacation shall be taken at such time or times as reasonably
requested by the Executive. Vacation not taken during a calendar year may not be
carried forward.
6. REIMBURSEMENT FOR EXPENSES
The Executive shall be reimbursed for reasonable and necessary
documented business expenses incurred in connection with the business of the
Company in accordance with practices and policies established by the Company.
With respect to credit cards used for business, travel (including mileage and
gas reimbursement) and other business use in connection
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with discharging duties and obligations for CIRM, Executive agrees to adhere to
the Company's internal policies to assure that there is compliance with all
applicable rules and regulations (including without limitation, regulations
promulgated pursuant to the Xxxxxxxx-Xxxxx Act of 2002) and the use of business
credit cards only for business purposes.
7. TERMINATION
(a) This Agreement shall terminate in accordance with the terms of
Section 7(b) hereof; provided, however, that such termination shall not affect
the obligations of the Executive pursuant to the terms of Sections 8 and 9
hereof.
(b) This Agreement shall terminate on the Expiration Date; or as
follows:
(i) Upon the written notice to the Executive by the Company at any
time, because of (v) the willful and material malfeasance, dishonesty or
habitual drug or alcohol abuse by the Executive demonstrably related to or
demonstrably affecting the performance of his duties; (w) the Executive's
continuing and intentional breach, non-performance or non-observance of any of
the terms or provisions of this Agreement, but only after notice by the Company
of such breach, nonperformance or nonobservance and the failure of the Executive
to cure such default within thirty (30) days after the Company's delivery of
such notice; (x) the conduct by the Executive which the Board in good faith
determines could reasonably be expected to have a material adverse effect on the
business, assets, properties, results of operations, financial condition,
personnel or prospects of the Company (within each category, taken as a whole),
but only after notice by the Company of such conduct and the failure of the
Executive to cure same within thirty (30) days after the Company's delivery of
such notice; (y) upon the Executive's conviction of a felony, any crime
involving moral turpitude (including,
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without limitation, sexual harassment) related to or affecting the performance
of his duties or any act of fraud, embezzlement, theft or willful breach of
fiduciary duty against the Company; or (z) the determination, during the
one-year period following the Closing under, and as defined in, the Purchase
Agreement, that the representations made by the Executive in Section 4 of the
Purchase Agreement contained any material misrepresentations (clauses (v)-(z),
collectively referred to as "Cause") .
(ii) In the event the Executive, by reason of physical or mental
disability, shall be unable to perform the services required of him hereunder
with or without reasonable accommodation for a period of more than 90
consecutive days, or for more than a total of 120 non-consecutive days in the
aggregate during any period of twelve (12) consecutive calendar months, on the
91st consecutive day, or the 121st day, as the case may be. The Executive
agrees, in the event of any dispute under this Section 7(b)(ii), and after
written notice by the Board, to submit to a physical examination by a licensed
physician practicing in Western New York selected by the Board, and reasonably
acceptable to the Executive.
(iii) In the event the Executive dies while employed pursuant
hereto, on the last day of the month in which his death occurs.
(iv) Upon sixty (60) days' written notice by the Executive to the
Company, in the event that the Company (A) shall not comply with any material
provision of this Agreement and shall not have cured any such failure within
thirty (30) days after written notice of such noncompliance has been given by
the Executive to the Company, (B) shall assign to the Executive any duties that
are materially inconsistent with his status or that materially diminish his
duties, responsibilities, or authority hereunder, (C) reduces the Executive's
Base
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Salary, (D) diminishes the Executive's then title, or (E) or causes the
Executive to relocate outside of Buffalo, New York.
(v) Upon sixty (60) days' prior written notice by the Company to
the Executive, without Cause.
(c) Termination for Cause. If this Agreement is terminated pursuant to
Section 7(b)(i), then, other than as set forth in this Agreement, the Company
will have no further liability to the Executive after the date of termination
including, without limitation, the compensation and benefits described herein.
In the case of termination pursuant to Section 7(b)(i)(z), the Company's right
to terminate this Agreement shall be the Company's sole and exclusive remedy
under this Agreement with respect to material misrepresentations contained in
Section 4 of the Purchase Agreement, provided that the foregoing shall not
relieve the Executive of any liability he may have specifically as a "Seller"
for any misrepresentation or breach of warranty made by the Executive in the
Purchase Agreement. In the case of termination pursuant to Section 7(b)(i)
hereof, all Stock Options shall be immediately forfeited. From and after the
date of such termination, Executive shall continue to be subject to the terms of
Section 8 and Section 9 hereof.
(d) Termination due to Disability. In the case of termination pursuant
to Section 7(b)(ii), the Executive will receive his then current salary until
such time (but not more than 180 days after such termination for disability) as
payments begin under any long term disability insurance plan of the Executive,
if any.
(e) Termination due to Death of Executive. In the case of termination
pursuant to Section 7(b)(iii), the Executive will receive his salary to the date
of termination.
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(f) Constructive Termination or Termination without Cause. In the case
of termination pursuant to Section 7(b)(iv) or Section 7(b)(v), the Executive
will receive from the Company (i) the greater of one year's Base Salary plus the
projected Tier 1 bonus for the year for the Executive, as set forth on Exhibit A
attached hereto or the Base Salary plus the projected Tier 1 bonus due for the
remainder of the Agreement, (ii) full vesting on all outstanding Stock Options
and the right to exercise all Stock Options that have been granted, effective as
of the date of the termination for a period of 90 days following the date of
such termination (one year in the event of death or disability of the Executive)
and (iii) the right to receive medical benefits directly or as COBRA payments
(in either instance, at the Company's discretion and its cost) for a period of
one year, with the understanding that the Company shall continue to pay premiums
for disability benefits during the one year period. The cash severance shall be
paid out in equal installments over a one year period, subject to any required
delay in the start of the severance payments required to avoid taxation under
Section 409A of the Internal Revenue Code. The payments pursuant to this
paragraph are contingent on Executive complying with the provisions of Section 8
and Section 9 of this Agreement.
(g) In the event the Company chooses not to enter into any agreement or
amendment extending the Executive's employment beyond the Expiration Date, the
Company agrees to provide Executive at least three (3) months' prior written
notice of such determination, during which time the Executive may seek
alternative employment while still being employed by the Company, and in this
event, the Executive will receive as severance (i) one year's Base Salary plus
the projected Tier 1 bonus for the year for the Executive, as set forth on
Exhibit A attached hereto; (ii) full vesting on all outstanding Stock Options
and the right to exercise all Stock Options that have been granted, effective as
of the date of the termination for a period of
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90 days following the date of such termination (one year in the event of death
or disability of the Executive) and (iii) the right to receive medical benefits
directly or as COBRA payments (in either instance, at the Company's discretion
and its cost) for a period of one year, with the understanding that the Company
shall continue to pay premiums for disability benefits during the one year
period. The cash severance shall be paid out in equal installments over a one
year period, subject to any required delay in the start of the severance
payments required to avoid taxation under Section 409A of the Internal Revenue
Code. The payments pursuant to this paragraph are contingent on Executive
complying with the provisions of Section 8 and Section 9 of this Agreement. If
the Company does not provide the Executive with at least three (3) months' prior
written notice of such determination, then the Executive's employment hereunder
shall be automatically renewed for a period of one year commencing on the day
following the Expiration Date.
(h) Change of Control. If there is a Change of Control (as defined
below), and subsequent thereto the Executive's employment with the Company
terminates at any time after such Change of Control for reasons other than as
provided in Section 7(b)(i), then the Executive shall receive (i) the greater of
one year's Base Salary plus the projected Tier 1 bonus for the year for the
Executive, as set forth on Exhibit A attached hereto or the Base Salary plus the
projected Tier 1 bonus due for the remainder of the Agreement, (ii) full vesting
on all outstanding Stock Options and the right to exercise all Stock Options
that have been granted, effective as of the date of the termination for a period
of 90 days following the date of such termination (one year in the event of
death or disability of the Executive) and (iii) the right to receive medical
benefits directly or as COBRA payments (in either instance, at the Company's
discretion and its cost) for a period of one year, with the understanding that
the Company shall
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continue to pay premiums for disability benefits during the one year period. The
payments provided for in this paragraph are subject to Executive's compliance
with the terms of Section 8 and Section 9 of this Agreement. A Change of Control
shall be deemed to have occurred at such time as any person, other than the
Company, its existing shareholders or any of its or their affiliates on the date
hereof, purchases the "beneficial ownership" (as defined in Rule 13d 3 under the
Securities Exchange Act of 1934), directly or indirectly, of 50% or more of the
combined voting power of voting securities then ordinarily having the right to
vote for directors of the Company; provided, that a Change of Control shall not
be deemed to have occurred with respect to the transactions contemplated by the
Purchase Agreement or the acquisition financing in connection therewith.
8. CONFIDENTIAL INFORMATION
(a) The Executive covenants and agrees that he will not at any time
during the continuance of this Agreement or at any time thereafter (i) print,
publish, divulge or communicate to any person, firm, corporation or other
business organization (except in connection with the Executive's employment
hereunder) or use for his own account any proprietary secret or confidential
information relating to the business of the Company (including, without
limitation, information relating to any customers, suppliers, employees,
products, services, formulae, technology, know-how, trade secrets or the like,
financial information or plans) or any proprietary secret or confidential
information relating to the affairs, dealings, projects and concerns of the
Company, both past and planned (the "Confidential Information"), which the
Executive has received or obtained or may receive or obtain during the course of
his employment with the Company (whether or not developed, devised or otherwise
created in whole or in part by the efforts of the Executive), or (ii) take with
him, upon termination of his
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employment hereunder, any information in paper or document form or on any
computer-readable media relating to the foregoing. The term "Confidential
Information" does not include information which is or becomes generally
available to the public other than as a result of disclosure by the Executive or
which is generally known in the consumer debt collection business. The Executive
further covenants and agrees that he shall retain the Confidential Information
received or obtained during such service in trust for the sole benefit of the
Company or its successors and assigns.
(b) The term Confidential Information as defined in Section 8(a) hereof
shall include information obtained by the Company from any third party under an
agreement including restrictions on disclosure known to the Executive.
(c) In the event that the Executive is requested pursuant to subpoena
or other legal process to disclose any of the Confidential Information, the
Executive will provide the Company with prompt written notice so that the
Company may seek a protective order or other appropriate remedy and/or waive
compliance with Section 8 of this Agreement. In the event that such protective
order or other remedy is not obtained or that the Company waives compliance with
the provisions of Section 8 of this Agreement, the Executive will furnish only
that portion of the Confidential Information which is legally required.
9. RESTRICTIONS DURING EMPLOYMENT AND FOLLOWING TERMINATION
(a) The Executive shall not, anywhere within the United States or in
any other country or jurisdiction in which the Company may operate, or may
contemplate operating in, during his employment and for a period of one (1) year
thereafter, without the prior written consent of the Company, directly or
indirectly, and whether as principal, agent, officer, director,
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partner, employee, consultant, broker, dealer or otherwise, alone or in
association with any other person, firm, corporation or other business
organization, carry on, or be engaged, have an interest in or take part in, or
render services to any person, firm, corporation or other business organization
(other than the Company) engaged in a business which is competitive with all or
part of the Business of the Company. The term "Business of the Company" shall
mean the collection of consumer debt or any other business in which the Company
may be engaged, or may contemplate engaging in, during the term of this
Agreement.
(b) During the Executive's employment and for a period of one (1) year
thereafter, either on his own behalf or on behalf of any other person, firm,
corporation or other business organization, endeavor to entice away from the
Company any person who, at any time during the continuance of this Agreement,
was an employee of the Company.
(c) During the Executive's employment and for a period of one (1) year
thereafter, either on his own behalf or on behalf of any other person, firm,
corporation or other business organization, solicit or direct others to solicit,
any of the Company's customers or prospective customers (including, but not
limited to, those customers or prospective customers with whom the Executive had
a business relationship during his term of employment) for any purpose or for
any activity which is competitive with all or part of the Business of the
Company.
(d) It is understood by and between the parties hereto that the
foregoing covenants by the Executive set forth in this Section 9 are essential
elements of this Agreement and that, but for the agreement of the Executive to
comply with such covenants, the Company would not have entered into this
Agreement. It is recognized by the Executive that the Company currently operates
in, and may continue to expand its operations throughout, the geographical
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territories referred to in Section 9(a) above. The Company and the Executive
have independently consulted with their respective counsel and have been advised
in all respects concerning the reasonableness and propriety of such covenants.
10. REMEDIES
(a) Without intending to limit the remedies available to the Company,
it is mutually understood and agreed that the Executive's services are of a
special, unique, unusual, extraordinary and intellectual character giving them a
peculiar value, the loss of which may not be reasonably or adequately
compensated in damages in an action at law, and, therefore, in the event of any
material breach by the Executive that continues after any applicable cure
period, the Company shall be entitled to equitable relief by way of injunction
or otherwise.
(b) The covenants of each of Sections 8 and 9 hereof shall be construed
as independent of any other provisions contained in this Agreement and shall be
enforceable as aforesaid notwithstanding the existence of any claim or cause of
action of the Executive against the Company, whether based on this Agreement or
otherwise. In the event that any of the provisions of Sections 8 or 9 hereof
should ever be adjudicated to exceed the time, geographic, product/service or
other limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in any such jurisdiction to the maximum
time, geographic, product/service or other limitations permitted by applicable
law.
11. COMPLIANCE WITH OTHER AGREEMENTS
The Executive represents and warrants to the Company that the execution
of this Agreement by him and his performance of his obligations hereunder will
not, with or without the
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giving of notice or the passage of time or both, conflict with, result in the
breach of any provision of or the termination of, or constitute a default under,
any agreement to which the Executive is a party or by which the Executive is or
may be bound.
12. WAIVERS
The waiver by the Company or the Executive of a breach of any of the
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
13. BINDING EFFECT; BENEFITS
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs and
legal representatives, including any corporation or other business organization
with which the Company may merge or consolidate or sell all or substantially all
of its assets. Insofar as the Executive is concerned, this contract, being
personal, cannot be assigned.
14. NOTICES
All notices and other communications which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered to the person to whom such notice is to be given at his or
its address set forth below, or such other address for the party as shall be
specified by notice given pursuant hereto:
(a) If to the Executive, to him at:
Xxxxx X. Xxxx
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
and
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(b) If to the Company, to it at:
Debt Resolve, Inc.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx X0
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxxxxx Xxxxxxx, LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
15. MISCELLANEOUS
(a) This Agreement contains the entire agreement between the parties
hereto and supersedes all prior agreements and understandings, oral or written,
between the parties, their subsidiaries, parents, and affiliates, including but
not limited to any agreements between the Executive and Creditors Interchange
Receivable Management, LLC, hereto with respect to the subject matter hereof.
This Agreement may not be changed, modified, extended or terminated except upon
written amendment approved by the Board and executed by a duly authorized
officer of the Company and the Executive.
(b) The Executive acknowledges that from time to time, the Company may
establish, maintain and distribute employee manuals of handbooks or personnel
policy manuals, and officers or other representatives of the Company may make
written or oral statements relating to personnel policies and procedures. Such
manuals, handbooks and statements are intended only for general guidance. No
policies, procedures or statements of any nature by or on behalf of the Company
(whether written or oral, and whether or not contained in any employee
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manual or handbook or personnel policy manual), and no acts or practices of any
nature, shall be construed to modify this Agreement or to create express or
implied obligations of any nature to the Executive.
(c) This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute one and
the same instrument.
(d) All questions pertaining to the validity, construction, execution
and performance of this Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflict of law principles.
(e) Any controversy or claim arising from, out of or relating to this
Agreement, or the breach hereof (other than controversies or claims arising
from, out of or relating to the provisions in Xxxxxxxx 0, 0 xxx 00), xxxxx xx
determined by final and binding arbitration in Westchester County, New York, in
accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association, by a panel of not less than three (3) arbitrators
appointed by the American Arbitration Association. The decision of the
arbitrators may be entered and enforced in any court of competent jurisdiction
by either the Company or the Executive.
The parties indicate their acceptance of the foregoing arbitration
requirement by initialing below:
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxx Xxxx
---------------------------------- ------------------------------
For the Company Executive
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(f) If any provision of this Agreement is held to be illegal, invalid,
or unenforceable under present or future laws, such provision shall be
severable, and this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by such illegal, invalid, or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of such illegal, invalid, or unenforceable provision, there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid, or unenforceable provision as may be possible and be
legal, valid, and enforceable.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
DEBT RESOLVE, INC.
By: /s/Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx
Chief Executive Officer
EXECUTIVE
/s/Xxxxx Xxxx
----------------------------------
Xxxxx Xxxx
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EXHIBIT A TO THE EMPLOYMENT AGREEMENT,
DATED APRIL 30, 2007, BETWEEN
DEBT RESOLVE, INC. AND XXXXX XXXX
Tier 1 Bonus- Based on meeting EBIDTA goals (comprises 85% of bonus) and
"integration of DR technology & products to CIRM customer accounts" goal
(comprises 15% of bonus)
Percentage
breakdown
-------------------------
60% CIRM goals
25% FPC goals
15% DR goals
Note as to schedule of bonus achieved:
* If Executive reaches 100% of CIRM goals, he is entitled to receive
bonus of 25% of base salary
* If Executive reaches between 85% and under 100% of CIRM goals,
executive is entitled to receive 15% of base salary
* If Executive achieves under 85% of CIRM goals, bonus is at the
discretion of the Board
--------------------------------------------------------------------------------
CIRM 2007 2008 2009
--------------------------------------------------------------------------------
Revenue $59.8M $66.6M $80.8M
Ebitda % 15% 16% 17%
Ebitda Goals 8.1M* 10.6M 13.7M
--------------------------------------------------------------------------------
*Agreed that 9.0 % would be changed to 8.1%
--------------------------------------------------------------------------------
FPC 2007* 2008 2009
--------------------------------------------------------------------------------
Revenue $7.0M $10.6M $13.7M
Ebitda % 12% 14% 16%
Ebitda Goals break even and provide list of what will $1.3M $2.2M
be instituted by end of year to achieve
future objectives
--------------------------------------------------------------------------------
* Measured for second half (6 months) of 2007
--------------------------------------------------------------------------------
DR 2007 2008 2009
--------------------------------------------------------------------------------
% of customer 15% 30% 55%
accounts
--------------------------------------------------------------------------------
"EBITDA" shall mean the sum of the following amounts A) Net income, plus B)
charges against income for foreign, federal, state and local income taxes, plus
C) interest expense, plus D) amortization and depreciation expense, including
amortization of goodwill and other intangible assets, minus E) interest income,
minus F) non-recurring gains which have been included in the determination of
net income, plus any of the transaction costs and expenses incurred (and which
have been included in the determination of net income) in connection with the
acquisition of Creditor's Interchange Inc. To the extent extraordinary losses or
extraordinary gains have been considered in the determination of EBITDA, the
Board will reasonably consider subtracting such loss or adding back such gain to
the computation of actual EBITDA depending on the circumstances giving rise to
such loss or gain and the cash position of the Company.
