SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (Mark Mroczkowski)
Exhibit
10.2
SECOND
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(Xxxx
Xxxxxxxxxxx)
This
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this “Agreement”) is made effective as of the 1st day of February,
2008 (the “Effective Date”) by and between XXXX X. XXXXXXXXXXX, an
individual (“Employee”) and SEQUIAM CORPORATION AND SUBSIDIARIES a California
corporation (“Sequiam”); with reference to the following recitals:
A.
Employee is employed by Sequiam, pursuant to an amended and restated employment
agreement dated October 1, 2002 (the “Sequiam Agreement”).
B.
Employee and Sequiam agree that is in the best interest of the parties to amend
and restate the employment agreement with Sequiam.
NOW,
THEREFORE, in consideration of the
foregoing, the mutual covenants and agreements set forth herein, and other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each of Employee and Sequiam hereby agree as follows:
1.
Employment. Sequiam
hereby employs Employee and hereby affirms, renews and extends the employment
of
Employee as the Executive Vice President and Chief Financial Officer of Sequiam
and Employee hereby affirms, renews and accepts such employment, for the “Term”
(as defined in Section 3 below), upon the terms and conditions set forth herein.
This Agreement constitutes an amendment and restatement of Sequiam Agreement
in
its entirety, and as of the Effective Date hereof, the terms, conditions and
other provisions of this Agreement shall supersede all terms, conditions and
other provisions of the Sequiam Agreement.
2.
Duties. During
the Term, Employee shall serve Sequiam faithfully, diligently and to the best
of
his ability, under the direction of the Board of Directors of
Sequiam. Employee shall render such services during the Term at the
Corporation’s principal place of business, as Sequiam may from time to time
reasonably require of him, and shall devote that portion of his business time
as
defined in Section 5 below to the performance thereof. Employee shall
have those duties and powers as generally pertain to the respective office,
subject to the control of the Board of Directors of Sequiam. The
precise services and duties that Employee is obligated to perform hereunder
may
from time to time be changed, amended, extended or curtailed by the Board of
Directors of Sequiam.
3.
Term. The
“Term” of this Agreement
shall commence on the Effective Date and continue
thereafter for a term of two (2) years, as may be extended or earlier terminated
pursuant to the terms and conditions of this Agreement. The Term of
this Agreement shall automatically renew for successive one (1) year periods
unless, within sixty (60) days of the expiration of the then existing Term,
Sequiam or Employee provides written notice to the other party that it elects
not to renew the Term. Upon delivery of such notice, this Agreement
shall continue until expiration of the Term, whereupon this Agreement shall
terminate.
4.
Compensation.
4.1
Salary. Sequiam
shall pay to Employee a total minimum annual salary of One Hundred and Ninety
Thousand Dollars ($190,000) (the “Minimum Salary”), payable in equal
installments at the end of such regular payroll accounting periods as are
established by the Corporation, or in such other installments upon which the
parties hereto shall mutually agree. The Minimum Salary shall be paid
to Employee by the Corporation, subject to the terms set out
below. In addition, Sequiam may pay additional salary from time to
time, and award bonuses in cash, stock or stock options or other property and
services, as Sequiam may determine in its sole discretion or pursuant to
separate agreements with Employee.
4.2
Benefits. During
the Term, Employee shall be entitled to participate in all medical and other
employee benefit plans, including vacation, sick leave, retirement accounts,
profit sharing, stock option plans, stock appreciation rights, and other
employee benefits, provided by Sequiam to employees similarly
situated.
4.3
Expense
Reimbursement. Sequiam shall reimburse Employee for reasonable
and necessary expenses incurred by him on behalf of Sequiam in the performance
of his duties hereunder during the Term, provided that such expenses are
adequately documented in accordance with Sequiam’s then customary
policies. Additionally, Sequiam shall collectively pay Employee a
total of One Thousand Dollars ($1,000) per month as an automobile
allowance.
5.
Other
Employment. Employee shall devote as much of his business and
professional time and effort, attention, knowledge, and skill to the management,
supervision and direction of Sequiam’s business and affairs as is necessary to
ensure the success of Sequiam as determined solely by
Employee. Employee may, during the term hereof, be interested
directly or indirectly, in any manner, as partner, officer, director,
stockholder, advisor, employee or in any other capacity in any other business;
and nothing herein contained shall prevent or limit the right of Employee to
invest any of his surplus funds in the capital stock or other securities of
any
corporation, company or limited partnership, or whose stock or securities are
publicly owned or are regularly traded on any public exchange; nor shall
anything herein contained prevent Employee from investing or limit Employee’s
right to invest his surplus funds in real estate; nor shall anything herein
contained prevent Employee from serving in a volunteer capacity as officer,
director, or advisor for professional organizations with which he is
affiliated. Sequiam hereby acknowledges and agrees that
Employee may, in good faith, use his discretion in resolving any conflicts
between the Related Companies, and Employee shall be entitled to rely upon
the
direction of the Corporation and the Corporation's Board of Directors to resolve
any such conflicts of interest. Sequiam hereby waives any claim
against Employee that may arise as the result of such Employee's service to
any
other Sequiam, including, without limitation, any breach of fiduciary duty
to
Sequiam as a result of any conflict of interest, lost business opportunity
or
unfair business practices.
6.
Indemnification.
6.1
Third Party
Actions. Sequiam hereby indemnifies Employee in the event that
Employee is a party, or is threatened to be made a party, to any proceeding
(other than an proceeding by or in the right of any Sequiam to procure a
judgment in Sequiam’s favor) by reason of Employee’s status as an
officer, director, agent or employee of Sequiam, against expenses,
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with such proceeding if Employee acted in good faith
and
in a manner that Employee reasonably believed to be in Sequiam’s best
interests and, in the case of a criminal proceeding, Employee had no reasonable
cause to believe Employee’s conduct was unlawful. The termination of
any proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent shall not, of itself, create any presumption
that (a) Employee did not act in good faith or in a manner which Employee
reasonably believed to be in Sequiam’s best interests or (b) Employee had no
reasonable cause to believe that Employee’s conduct was
unlawful.
6.2
Successful Defense
By
Employee. To the extent that Employee has been successful on
the merits in defense of any proceeding referred to in Sections 6.1, or in
defense of any claim, issue, or matter therein, Sequiam shall indemnify Employee
against expenses actually and reasonably incurred by Employee in connection
therewith.
6.3
Advances. Expenses
incurred in defending any proceeding shall be advanced by the Related Companies
before the final disposition of such proceeding upon receipt of an undertaking
by or on behalf of Employee to repay such amounts if it shall be determined
ultimately that Employee is not entitled to be indemnified as authorized in
this
Section 7.
6.4
Other Contractual
Rights. The indemnification provided by this Section 6 shall
be deemed cumulative, and not exclusive, of any other rights to which Employee
may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such
office. Nothing in this section shall affect any right to
indemnification to which Employee may be entitled by contract or
otherwise.
6.5
Insurance. To
the extent available at commercially reasonable rates and limits, Sequiam shall
collectively purchase and maintain insurance on behalf of Employee insuring
against any liability asserted against or incurred by Employee in any capacity
or arising out of Employee’s status as such, whether or not Sequiam has the
power to indemnify Employee against that liability under the provisions of
this
Section 6.
6.6
Survival. The
rights provided by this Section 6 shall survive the expiration or earlier
termination of this Agreement pursuant hereto and shall inure to the benefit
of
Employee’ heirs, executors, and administrators.
6.7
Amendment. Any
amendment, repeal, or modification of Sequiam's articles or bylaws shall not
adversely affect Employee’s right or protection existing at the time of such
amendment, repeal, or modification.
6.8
Settlements. Sequiam
shall not be liable to indemnify Employee under this Section 6 for (i) any
amounts paid in settlement of any action or claim effected without Sequiam’s
written consent, which consent shall not be unreasonably withheld, or (ii)
any
judicial award, if Sequiam was not given a reasonable and timely opportunity
to
participate, at Sequiam’s expense, in the defense of such action.
6.9
Subrogation. In
the event of payment under this Section 6, Sequiam shall be subrogated to the
extent of such payment to all Employee’s rights of recovery; and Employee shall
execute all papers required and shall do everything necessary or appropriate
to
secure such rights, including the execution of any documents necessary or
appropriate to Sequiam effectively bringing suit to enforce such
rights.
6.10 No
Duplication Of
Payments. Sequiam shall not be liable under this Section 6 to
make any payment in connection with any claim made against Employee to the
extent Employee has otherwise actually received payment, whether under a policy
of insurance, agreement, vote, or otherwise, of any amount which is otherwise
subject to indemnification under this Section 6.
6.11 Proceedings
And
Expenses. For the purposes of this Section 6, “proceeding” means any
threatened, pending, or completed action or proceeding, whether civil, criminal,
administrative, or investigative; and “expenses” includes, without limitation,
attorney fees and any expenses of establishing a right to indemnification under
this Section 6.
7.
Confidential
Information/ Inventions.
7.1
Employee shall not, in any manner, for any reasons, either directly or
indirectly, divulge or communicate to any person, firm or corporation, any
confidential information concerning any matters not generally known in Sequiam's
industry or otherwise made public by Sequiam which affects or relates to
Sequiam's business, finances, marketing and/ or operations, research,
development, inventions, products, designs, plans, procedures, or other data
(collectively, “Confidential Information”) except in the ordinary course of
business or as required by applicable law. Without regard to whether
any item of Confidential Information is deemed or considered confidential,
material, or important, the parties hereto stipulate that as between them,
to
the extent such item is not generally known in the Sequiam's industry, such
item
is important, material, and confidential and affects the successful conduct
of
Sequiam’s business and good will, and that any breach of the terms of this
Section 7.1 shall be a material and incurable breach of this
Agreement.
7.2
Employee further agrees that all documents and materials furnished to Employee
by Sequiam and relating to Sequiam’s business or prospective business are and
shall remain the exclusive property of Sequiam as the case may
be. Employee shall deliver all such documents and materials to
Sequiam upon demand therefore and in any event upon expiration or earlier
termination of this Agreement. Any payment of sums due and owing to
Employee by Sequiam upon such expiration or earlier termination shall be
conditioned upon returning all such documents and materials, and Employee
expressly authorizes Sequiam to withhold any payments due and owing pending
return of such documents and materials.
7.3
All ideas, inventions, and other developments or improvements conceived or
reduced to practice by Employee, alone or with others, during the term of this
Agreement, whether or not during working hours, that are within the scope of
the
business of Sequiam or that relate to or result from any of Sequiam's work
or
projects or the services provided by Employee to Sequiam pursuant to this
Agreement, shall be the exclusive property of Sequiam. Employee agrees to assist
Sequiam during the term, at Sequiam’s expense, to obtain patents and copyrights
on any such ideas, inventions, writings, and other developments, and agrees
to
execute all documents necessary to obtain such patents and copyrights in the
name of Sequiam.
8.
Covenant Not to
Compete. Except as expressly permitted in Section 5 above,
during the term of this Agreement, Employee shall not engage in any of the
following competitive activities: (a) engaging directly or indirectly in
any business or activity substantially similar to any business or activity
engaged in by Sequiam as of the date of this Agreement;
(b) soliciting or taking away any employee, agent, representative,
contractor, supplier, vendor, customer, franchisee, lender or investor
of Sequiam, or attempting to so solicit or take away; (c)
interfering with any contractual or other relationship
between Sequiam and any employee, agent, representative,
contractor, supplier, vendor, customer, franchisee, lender or investor; or
(d)
using, for the benefit of any person or entity other
than Sequiam, any Confidential Information of
Sequiam. The foregoing covenant prohibiting competitive activities
shall survive the termination of this Agreement and shall extend, and shall
remain enforceable against Employee, for the period of one (1) year following
the date this Agreement is terminated. In addition, during the
two-year period following such expiration or earlier termination, Employee
shall
not make or permit the making of any negative statement of any kind concerning
Sequiam.
9.
Survival. Employee
agrees that the provisions of Sections 7 and 8 shall survive expiration or
earlier termination of this Agreement for any reasons, whether voluntary or
involuntary, with or without cause, and shall remain in full force and effect
thereafter.
10.
Injunctive
Relief. Employee acknowledges and agrees that the covenants
and obligations of Employee set forth in Sections 7 and 8 with respect to
non-competition, non-solicitation, confidentiality and the Sequiam's property
relate to special, unique and extraordinary matters and that a violation of
any
of the terms of such covenants and obligations will cause Sequiam irreparable
injury for which adequate remedies are not available at
law. Therefore, Employee agrees that the Related Companies shall be
entitled to an injunction, restraining order or such other equitable relief
(without the requirement to post bond) as a court of competent jurisdiction
may
deem necessary or appropriate to restrain Employee from committing any violation
of the covenants and obligations referred to in this Section
10. These injunctive remedies are cumulative and in addition to any
other rights and remedies the Related Companies may have at law or in
equity.
11.
Termination
11.1 Termination
by
Employee. Employee may terminate this Agreement without cause
at any time and for any reason upon thirty (30) days notice to
Sequiam. For purposes of this Agreement, the term “cause” for
termination by Employee shall be (a) a material breach by Sequiam of
any material covenant or obligation hereunder; or (b) the voluntary or
involuntary dissolution of Sequiam. The written notice
given hereunder by Employee to Sequiam shall specify in reasonable detail the
cause for termination, and, in the case of the cause described in (a) above,
such termination notice shall not be effective until thirty (30) days after
Sequiam’s receipt of such notice, during which time Sequiam shall have the right
to respond to Employee’s notice and cure the breach or other event giving rise
to the termination.
11.2 Termination
by
Sequiam. Sequiam may terminate its employment of Employee
under this Agreement without cause at any time and for any reason upon thirty
(30) days notice to Employee. Sequiam may terminate its employment of
Employee under this Agreement for cause at any time by written notice to
Employee. For purposes of this Agreement, the term “cause” for
termination by Sequiam shall be (a) a conviction of or plea of guilty or nolo contendere by Employee
to a felony; (b) the consistent refusal by Employee to perform his material
duties and obligations hereunder; or (c) Employee’s willful and intentional
misconduct in the performance of his material duties and obligations as set
forth from time to time in the employee manual. The written notice
given hereunder by Sequiam to Employee shall specify in reasonable detail the
cause for termination. In the case of a termination for the cause
described in (a) above, such termination shall be effective upon receipt of
the
written notice. In the case of the causes described in (b) and (c)
above, such termination notice shall not be effective until thirty (30) days
after Employee’s receipt of such notice, during which time Employee shall have
the right to respond to Sequiam's notice and cure the breach or other
event giving rise to the termination.
11.3 Severance. Upon
a termination of this Agreement without cause by Employee or with cause by
Sequiam, Sequiam shall immediately pay to Employee all accrued and unpaid
compensation as of the date of such termination. Upon a termination
of this Agreement with cause by Employee or without cause by Sequiam, Sequiam
shall immediately pay to Employee all accrued and unpaid compensation as of
the
date of such termination. The accrued compensation due and payable at
termination shall bear interest at the lesser of eight percent (8%) per annum
or
the maximum rate permitted by law until such amounts are paid in full. The
“Severance Payment” shall equal the total amount of salary payable to Employee
under Section 4.1 of this Agreement from the date of such termination until
six
months after termination payable in equal installments at the end of such
regular payroll accounting periods as are established by the Corporation, or
in
such other installments upon which the parties hereto shall mutually
agree. Any unvested stock options then held by the Executive will
vest immediately and options held by the Executive, or his estate, will remain
exercisable for three (3) years from the date of the Executive’s death or
termination due to Disability, but in no event later than the expiration date
of
the option.
12. Termination
Upon
Death. If Employee dies during the term of this Agreement,
this Agreement shall terminate, except that Employee’s legal representatives
shall be entitled to receive any earned but unpaid compensation due hereunder.
Any unvested stock options then held by the Executive will vest immediately
and
options held by the Executive, or his estate, will remain exercisable for three
(3) years from the date of the Executive’s death or termination due to
Disability, but in no event later than the expiration date of the
option.
14. Termination
Upon
Disability. If, during the term of this Agreement, Employee
suffers and continues to suffer from a “Disability” (as defined below),
then Sequiam may terminate this Agreement by delivering to Employee
sixty (60) calendar days prior written notice of termination based on such
Disability, setting forth with specificity the nature of such Disability and
the
determination of Disability by Sequiam. For the purposes of this
Agreement, “Disability” means Employee’s inability, with reasonable
accommodation, to substantially perform Employee’s duties, services and
obligations under this Agreement due to physical or mental illness or other
disability for a continuous, uninterrupted period of ninety (90) calendar days.
Any unvested stock options then held by the Executive will vest immediately
and
options held by the Executive, or his estate, will remain exercisable for three
(3) years from the date of the Executive’s death or termination due to
Disability, but in no event later than the expiration date of the
option.
14. Personnel
Policies,
Conditions, And Benefits. Except as otherwise provided herein,
Employee’s employment shall be subject to the personnel policies and benefit
plans which apply generally to Sequiam's employees as the same may be
interpreted, adopted, revised or deleted from time to time, during the term
of
this Agreement, by Sequiam in its sole discretion. During
the term hereof, Employee shall receive the following:
14.1 Vacation. Employee
shall be entitled to vacation during each year of the term at the rate of five
(5) weeks per year; provided that no vacation shall accrue from year to year
during the term.
15.
Beneficiaries of
Agreement. This Agreement shall inure to the benefit of
Sequiam and any affiliates, successors, assigns, parent corporations,
subsidiaries, and/or purchasers of Sequiam as they now or shall exist while
this
Agreement is in effect.
16.
No
Waiver. No failure by either party to declare a default based
on any breach by the other party of any obligation under this Agreement, or
failure of such party to act quickly with regard thereto, shall be considered
to
be a waiver of any such obligation, or of any future breach.
17.
Modification. No
waiver or modification of this Agreement or of any covenant, condition, or
limitation herein contained shall be valid unless in writing and duly executed
by the parties to be charged therewith.
18.
Choice Of
Law/Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without regard
to
any conflict-of-laws principles. Sequiam and Employee hereby
consent to personal jurisdiction before all courts in the County of Orange,
State of Florida, and hereby acknowledge and agree that Orange County, Florida
is and shall be the most proper forum to bring a complaint before a court of
law.
19.
Entire
Agreement. This Agreement embodies the whole agreement between
the parties hereto and there are no inducements, promises, terms, conditions,
or
obligations made or entered into by Sequiam or Employee other than contained
herein.
20.
Severability. All
agreements and covenants contained herein are severable, and in the event any
of
them, with the exception of those contained in Sections 1 and 4 hereof, shall
be
held to be invalid by any competent court, this Agreement shall be interpreted
as if such invalid agreements or covenants were not contained
herein.
21.
Headings. The
headings contained herein are for the convenience of reference and are not
to be
used in interpreting this Agreement.
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first above written.
SEQUIAM
CORPORATION AND SUBSIDIARIES, a California corporation
|
By:
|
|||
|
Xxx
Xxxx, Chairman of the Compensation Committee of the Board of
Directors
|
|||
|
By:
|
|||
|
Xxxx
Xxxxx, Member of the Compensation Committee of the Board of
Directors
|
|||
“Employee”
|
XXXX
X. XXXXXXXXXXX, an
individual
|
