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EXHIBIT 10.2
ITC LEARNING CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
effective as of the 7th day of January, 1998 (the "Effective Date") by and
between ITC Learning Corporation (the "Company") and Xxxx X. Xxxxxxx (the
"Executive").
RECITALS
A. The Company is duly organized and validly existing as a corporation in
good standing under the laws of the State of Maryland. The Company is engaged in
the business of developing, marketing, and selling training materials, primarily
in multimedia platforms.
B. The Executive is presently in the employ of the Company and the
Company has offered to continue to employ the Executive as an Executive Officer
of the Company.
C. The parties hereto believe that it is in their best interests to
provide for the specific terms and conditions of employment and to impose
restrictions upon the parties in the event of the termination of the employment
relationship.
NOW, THEREFORE, in consideration of the mutual promises and covenants as
hereinafter set forth, and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Employment. The Company agrees to employ the Executive as an Executive
Officer of the Company in accordance with the terms and conditions set forth in
this Agreement. The Executive shall have such specific duties as may be
reasonably assigned to him from time to time by the Board of Directors of the
Company or its designee.
2. Acceptance and Standards. The Executive hereby accepts employment with
the Company in accordance with the terms and conditions set forth in this
Agreement. During the term of this Agreement, and subject to the provisions of
Sections 5 and 6 of this Agreement, the Executive agrees to devote his full
business time and services and his best efforts to the faithful performance of
the duties which may be reasonably assigned to him and which are consistent with
his position under Section 1 of this Agreement. The parties hereto agree and
acknowledge that this Agreement shall replace and supercede that certain
employment agreement dated March 1, 1997 by and between the Executive and the
Company and that the earlier employment agreement shall be of no further force
or effect.
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3. Compensation.
a. In General. For all services rendered by the Executive under this
Agreement, the Company shall provide the Executive with the various forms of
compensation and benefits set forth in this Section 3.
b. Basic Compensation. The Company shall, subject to the approval of
the Board of Directors of the Company, pay the Executive a basic salary of
$180,000 per year, payable in periodic installments in accordance with the
Company's normal payroll practices for salaried employees.
c. Vehicle. The Executive shall receive the use of a Company vehicle
selected by the Company, in its reasonable discretion.
d. Reimbursements of Expenses. The Company agrees to reimburse the
Executive for all reasonable expenses (determined in the sole discretion of the
Company and in accordance with corporate policies which may be promulgated in
the Company's Employee Handbook or other published corporate policies) incurred
by the Executive in the course of the pursuance of his duties hereunder in
accordance with the Company's then current reimbursement policy.
e. Working Facilities. The Company, at its own cost, shall furnish
the Executive with an office together with supplies, equipment, and such other
facilities and services suitable to his position and adequate for the
performance of his duties.
f. Fringe Benefits. Nothing herein shall affect the eligibility of
the Executive to receive salary increases, bonus awards, stock option grants,
pension or profit-sharing agreements, employee benefits and the like which the
Company may, in its sole discretion, from time to time grant or make available
to the Executive. The Executive may participate in the Company's health and
medical plan, dental plan, 401(k) plan and Employee Stock Ownership Plan
("ESOP") if the Executive complies with the eligibility requirements thereunder
and otherwise in a manner consistent with the Company's then current normal
policies and procedures. The parties agree that in lieu of the Executive's
participation in the Company's medical and dental plan(s), the Executive shall
participate in an IBM benefits program ("IBM Benefits Program"). The Company
agrees that it shall reimburse Executive in an amount not to exceed $600.00 per
month for Executive's participation in the IBM Benefits Program. Such
reimbursement shall be made during the initial term and renewal term, if any, of
this Agreement, unless earlier terminated. The parties agree that in the event
the IBM Benefits Program is discontinued for any reason during the initial term,
or any renewal term, of this Agreement, Executive may participate in the
Company's medical and dental plan(s).
g. Discretionary Salary Increase and/or Bonus. Once each year,
consideration shall be given by the Board of Directors of the Company, within
its sole discretion, to a salary adjustment for the Executive, and if so, in
what amount; provided, however, that the Executive's salary shall not be
decreased below the amount set forth in
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paragraph 3.b. above if the Executive remains as Chief Executive Officer of the
Company and is satisfactorily performing his duties in that capacity. The
Executive shall, to the extent permitted by the Board of Directors of the
Company, also participate in the Company's Incentive Compensation Plan, if any,
commencing with the Company's fiscal year to end December 31, 1998 if the
Executive complies with the eligibility requirements thereunder and otherwise in
a manner consistent with the Company's then current normal policies and
procedures.
4. Term. The initial term of this Agreement shall begin on the Effective
Date and shall continue thereafter for a period of one (1) year, and thereafter
shall, without further action on the part of Executive or the Company, be
extended for additional one (1) year terms, provided that neither Executive or
the Company have given notice of termination, or otherwise terminated this
Agreement in accordance with the provisions of Section 5 of this Agreement.
5. Termination. Unless the parties otherwise agree in writing,
termination of this Agreement in accordance with the provisions of this Section
shall also constitute termination of the Executive's employment with the Company
without the need for further notice or action by either party.
a. Incapacity. In the event the Executive shall be unable to perform
his duties owing to illness or other incapacity for a period of more than 90
consecutive days or an aggregate of 120 days in any 12-month period, the Company
may, at its option, by written notice addressed to the Executive, and sent
subsequent to such 90 days or 120 days, terminate this Agreement as of a date to
be specified in such notice, but not less than 30 days after the date of the
sending of such notice; provided, however, that if prior to the date specified
in such notice the Executive's illness or other incapacity shall have terminated
and he shall have satisfactorily taken up and performed his duties under this
Agreement, the notice of termination shall be disregarded, and this Agreement
shall continue in full force and effect. (See Sections 10 and 11 of this
Agreement for medical, sick leave, and disability benefits.)
b. Death. In the event of the Executive's death during the term of
his employment hereunder, this Agreement shall terminate as of the date of
death, and the Executive's spouse, or other such person whom the Executive shall
have designated in writing to the Company, shall be paid the unpaid portion, if
any, of the Executive's then prevailing salary prorated to the date of the
Executive's death. The Company shall also pay to such spouse, or such other
designated person, a death benefit consistent with the Company's then current
normal policies, if any.
c. Withdrawal from Business. The Company shall terminate this
Agreement upon 60 days written notice to the Executive of a bona fide decision
by the Company to wind up its business and liquidate its assets (other than in
connection with a merger, consolidation, or other event specified in Section 7),
and all rights and obligations of both parties are hereto (except those under
Section 6.d. hereof) shall cease upon such termination. In this event, the
Executive shall be paid the unpaid portion, if any, of his then prevailing
salary prorated to the date of termination.
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d. Termination by the Company for Cause. The Company may immediately
terminate the Executive's employment for Cause (as hereinafter defined) by
giving the Executive notice in writing of such termination. The term "Cause"
shall mean: (i) a breach by the Executive of any of his material obligations
under this Agreement; (ii) any act by the Executive which constitutes gross
misconduct; (iii) a violation of a federal or state law, rule or regulation
applicable to the business of the Company; or (iv) the conviction of the
Executive of, or entry by the Executive of a guilty or no contest plea to, a
felony. No compensation or benefits shall be paid or provided to the Executive
under this Agreement on account of a termination for Cause, or for periods
following the date when such a termination of employment is effective.
e. Termination by the Company with Notice. The Company may terminate
this Agreement for a reason not set forth in Section 5.a., 5.c., or 5.d. at any
time upon 60 days written notice to the Executive and, in addition, the Company
shall pay to the Executive a termination allowance (the "Termination Allowance")
equal to ten (10) months' salary, based upon his then-prevailing annual salary
rate. The Termination Allowance may, at the option of the Company, be paid in
periodic installments over the first 10 months following termination in
accordance with the Company's regular payroll periods or over such lesser period
as the Company may determine.
f. Termination by the Executive with Notice. The Executive may
terminate this Agreement at any time upon 120 days written notice to the
Company, in which event the Executive shall be paid through the date of
termination. During a period of 180 days following any such termination by the
Executive, the Executive agrees to provide such consulting services to the
Company as it may reasonably request, at such time or times within such period
as may be mutually agreed upon between the Company and the Executive. The
Executive shall be compensated for any such consulting services at 120% of the
daily rate when last employed by the Company plus reimbursement for any
reasonable out-of-pocket expenses incurred by the Executive in rendering such
consulting services.
6. Outside Business Interests, Employee Solicitation, and Company
Property.
a. Without the written consent of the Board of Directors of the
Company, which consent shall not be unreasonably withheld, the Executive agrees
that during the term of this Agreement he will not be affiliated with any
competitor, supplier, or customer of the Company, as an officer, director,
partner, employee, agent, consultant (or similar capacity) or more than 1%
stockholder.
b. The Executive further agrees that during the term of this
Agreement he will not, directly or indirectly, encourage employees of ITC
(hereinafter meaning the Company and/or any of its subsidiary companies or
divisions now existing or hereafter formed) to leave the employ of ITC for the
purpose of seeking or obtaining employment in any other activity with which the
Executive intends to become affiliated.
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c. The Executive further agrees that during a period of two (2)
years following the termination of employment, regardless of the reasons for
such termination, he will not, directly or indirectly, solicit, attempt to hire,
or encourage employees of ITC to leave the employ of ITC.
d. The Executive further agrees that during the term of this
Agreement and following the termination of his employment he will not, other
than in the normal and valid course of his employment with the Company, directly
or indirectly, take with him or use any ITC property, such as drawings, reports,
data or proposals, design or manufacturing information, wage and salary
information, records or the like relating or peculiar to ITC's products,
research or development or other activities, nor disclose to any others
information of a privileged nature.
e. The Executive further agrees that during the term of this
Agreement and during a period of two (2) years following the termination of his
employment, he will not, directly or indirectly, participate (on his own behalf
or on behalf of any other corporation, venture, or enterprise engaged in
commercial activities) in any proposals which were the subject of outstanding
bids or solicitations of ITC or of bids or solicitations in preparation by ITC
during his employment by the Company.
f. The Executive further agrees that in the event his employment is
terminated, and without regard for the reason for said termination, for a period
of one (1) year following such termination of employment, he will not engage,
directly or indirectly, as proprietor, partner, shareholder, director, officer,
employee, agent, consultant, or in any other capacity or manner whatsoever, in
any business activity competitive with the business of ITC, as constituted
during his employment and on the date of termination of his employment. If any
court of competent jurisdiction shall determine this covenant to be
unenforceable as to either the term or scope imposed above, then this covenant
nevertheless shall be enforceable by such court as to such shorter term or
lesser scope as may be determined by the court to be reasonable and enforceable.
g. The Executive further agrees that the provisions of this Section
6 are of vital importance to the Company and incorporate crucial Company
policies and a means of safeguarding valuable proprietary rights and interests
of ITC. Accordingly, the Executive agrees that the Company shall be entitled to
injunctive relief, in addition to all other remedies permitted by the law, to
enforce the provisions of this Section 6.
7. Merger or Acquisition. In the event the Company should consolidate
with, or merge into another corporation, or transfer all or substantially all of
its assets to another entity, this Agreement shall continue in full force and
effect and be binding upon the Company's successor or transferee.
8. Personnel Policies. To the extent not otherwise set forth herein, the
terms and conditions of the Executive's employment and benefits shall be
governed by the then prevailing operating and personnel policies of the Company.
Executive hereby waives any past, present
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or future entitlement, if any, to termination pay offered by the Company to its
non-contract employees.
9. Vacations. The Executive shall be entitled to a reasonable vacation of
not less than three (3) weeks per year during each year of his term of
employment.
10. Medical Expenses. Recognizing that the continued good health of the
Executive and his family is of vital concern to the Company, since such good
health is directly related to the services which the Executive will be expected
to render to the affairs of the Company, the Executive agrees to undergo a
thorough and complete medical examination at least once during each year of his
term of employment. The executive further agrees to have the examining physician
report the findings of each examination to the Company, if so requested.
Moreover, in keeping with the Company's objectives in this regard, the Company
agrees to reimburse the Executive up to $1,000 during each calendar year of this
Agreement for those reasonable medical (including the aforementioned annual
medical examination), dental, and optical expenses incurred by the Executive
during each such year on behalf of himself and his immediate family if such
expenses are not otherwise reimbursed to the Executive through insurance. The
unused reimbursement in one calendar year will be carried forward up to a
maximum of $3,000; expenses not reimbursed in one calendar year can be submitted
for reimbursement in subsequent years. The Company, at its own expense, shall
also provide the Executive with medical insurance coverage under its group
medical insurance plan, unless otherwise provided by benefits provided to
Executive by IBM.
11. Sick Leave Benefits and Disability Insurance. During his absence owing
to illness or other incapacity, the Executive shall be paid sick leave benefits
at his then prevailing salary rate, reduced by the amount, if any, of worker's
compensation or disability benefits under the Company's group disability
insurance plan. The Company, at its own expense, shall provide the Executive
with disability benefits under its group disability insurance plan.
12. Life Insurance. The Company, at its own expense, shall provide the
Executive with life insurance benefits under its group life insurance plan.
13. Breach of Agreement. In addition to any other remedy available to the
Company in the event of a material breach by the Executive of any of the
covenants set forth in this Agreement, the Company's obligation to pay the
Executive any incentive payouts, deferred compensation, termination allowance,
or other benefits accrued but unpaid as of the date of such breach (except any
vested rights the Executive may have under a Company Profit Sharing Retirement
Plan), if any, shall terminate, as will the Executive's right to exercise any
unexercised stock options.
14. Change of Control.
a. In General. For purposes of this Agreement, a "Change of Control"
shall be the occurrence of any one or more of the following events, and the
effective date of a Change of Control shall be the effective date on which such
event occurs:
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(i) A merger or consolidation of the Company with another
corporation, and as a result of such merger or consolidation, less than 65% of
the outstanding voting securities of the surviving or resulting corporation
shall be owned in the aggregate by the former shareholders of the Company, as
the same shall have existed immediately prior to such merger or consolidation,
(ii) A sale of substantially all of the assets of the Company to
another corporation which is not a wholly-owned subsidiary of the Company; or
(iii) Any arrangement that gives to an entity or person (or group
of entities or persons acting in concert) the power to name a majority of the
Board of Directors of the Company.
b. Consequences of a Change of Control.
(i) In the event of a Change of Control that has been approved
and recommended by the Company's Board of Directors, the Executive shall be
entitled to remain in the employ of the Company, in a manner consistent with the
terms of this Agreement. If within one (1) year of the effective date of a
Change of Control the Executive's employment with the Company is terminated by
the Company for any reason other than that set forth in Section 5.d. above, the
Company shall pay the Executive the unpaid portion, if any, of his then
prevailing salary prorated to the date of termination and, in addition, the
Company shall pay to the Executive a Termination Allowance equal to 12 months'
salary, based upon his then prevailing annual salary rate, less such number of
months salary that the Executive actually received from the effective date of
the Change of Control through the date of termination. The Termination Allowance
may, at the option of the Company, be paid in periodic installments over the
number of months' salary, to be paid in accordance with the Company's regular
payroll periods or over such lesser period as the Company may determine with the
concurrence of the Executive. The Termination Allowance referred to in this
Section 14.b. shall be in addition to, and not in lieu of, any Termination
Allowance payable under Section 5.e.
(ii) In the event that a Change of Control occurs as a result of
a transaction which has not been approved or recommended by the Company's Board
of Directors, then, in such event, at the time such transaction or tender offer
is completed, the Company shall pay to the Executive an amount equal to 24
months' salary based upon his then prevailing annual salary rate.
15. Disputes and Arbitration. Any dispute arising out of or concerning
this Agreement, which is not disposed of by agreement between the two parties,
shall be decided by an Arbitrator, located in the metropolitan Washington, D.C.
area, chosen by the parties. Either party may initiate an arbitration action by
a written notification to the other. The parties agree to choose the Arbitrator
within 15 days thereafter. The Arbitrator will follow the rules for arbitration
of the American Arbitration Association to the extent that said rules are not
inconsistent with the terms and conditions of this Section. The decision of the
Arbitrator shall
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be final and conclusive in the absence of statutory grounds for setting it
aside. Neither party shall be reimbursed for the costs that he or it may sustain
in connection with an arbitration under this Agreement.
16. Alteration, Amendment, or Termination. No change or modification of
this Agreement shall be valid unless the same is in writing and signed by the
parties hereto. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person against whom it is sought to be
enforced. The failure of any party at any time to insist upon strict performance
of any condition, promise, agreement, or understanding set forth herein shall
not be construed as a waiver or relinquishment of the right to insist upon
strict performance of the same condition, promise, agreement, or understanding
at a future time. The invalidity or unenforceability of any particular provision
of this Agreement shall not affect the other provisions hereof, and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
17. Integration. This Agreement sets forth (and is intended to be an
integration of) all of the promises, agreements, conditions, understandings,
warranties, and representations, oral or written, express or implied, among them
with respect to the terms of the employment relationship and there are no
promises, agreements, conditions, understandings, warranties, or
representations, oral or written, express or implied, among them with respect to
the terms of the employment relationship other than as set forth herein.
18. Conflicts of Law. This Agreement shall be subject to and governed by
the laws of the Commonwealth of Virginia irrespective of the fact that one or
more of the parties is now or may become resident of a different state.
19. Benefits and Burden. This Agreement shall inure to the benefit of, and
shall be binding upon, the parties hereto and their respective successors,
heirs, and personal representatives. This Agreement shall not be assignable.
* * * * * * * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date and year first above written.
WITNESS/ATTEST: COMPANY:
ITC LEARNING CORPORATION
By:
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Name:
Title:
WITNESS: EXECUTIVE:
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XXXX X. XXXXXXX
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