College Bound Student Alliance, Inc
Form 10-KSB for Fiscal Year Ended July 31, 2002
Exhibit 10.13
COLLEGE BOUND STUDENT ALLIANCE, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
of
XXXX X. XXXXXXX
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of February
19, 2001, by and between College Bound Student Alliance, Inc., a Nevada
corporation (the "Company"), with an address at 000 Xxxxx Xxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000, and Xxxx X. Xxxxxxx with an address at 00 Xxxx Xxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the "Employee").
In consideration of the premises and mutual covenants contained herein, the
parties agree as follows:
1. Employment. For an initial term of twelve (12) months after October 11, 2001
(the "Effective Date"), with automatic annual extensions thereafter, unless
either party gives notice to the other no less than thirty (30) days before the
end of any term that this agreement will not be renewed, Employee shall be
employed as the Vice-President of Finance and Administration for the Company,
and shall have the duties and responsibilities customary to someone in that
position, including the duties and responsibilities set forth on Schedule 1,
subject to the Company's right to expand, limit or change such duties; provided
that it is envisioned by Employee and Company shall become the Chief Financial
Officer of Company within a three-to-six month period, premised upon acceptable
performance by Employee under this Agreement and otherwise as determined by
Company's Chief Executive Officer and Company's Board of Directors in their
respective sole and absolute discretion. Company and Employee understand and
agree that Employee is considered to be part of executive and management
personnel of Company and/or professional staff to executive and management
personnel of Company. During the term of employment hereunder, Employee shall
report to the Chief Executive Officer of the Company, and shall devote his best
efforts and full business time and attention to the business and affairs of the
Company, excluding time off for vacation and reasonable time off for illness and
sick days in accordance with the Company's policies in effect from time to time.
Employee shall perform his duties and responsibilities to the Company hereunder
to the best of his abilities in a diligent, trustworthy, businesslike and
efficient manner.
Employee understands that the employment hereunder and all terms of this
Employment Agreement shall be subject to a ninety (90) day trial period during
which time this agreement and the employment hereunder may be terminated
immediately by either the Employee or the Company for any reason or no reason at
all, without prior notice and without any further liability. Should this
agreement and the employment hereunder be terminated by the Company during the
ninety (90) day trial period, Employee shall receive only the base salary
compensation for the period of time during which he was employed by the Company
and shall not receive any deferred compensation, stock options, bonuses or any
other incentives.
2. Compensation and Benefits.
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(a) Employee's Base Salary. In consideration for rendering the services as set
forth herein, Employee shall receive an annual base salary in the amount of
Ninety Thousand Dollars ($90,000), beginning on the Effective Date initially
payable semi-monthly, in arrears. The Base Salary shall be increased pursuant to
the formula set forth on Exhibit 3, Incentive Increases. All amounts payable to
Employee as salary and other compensation hereunder shall be subject to taxes
and customary withholding by the Company. Employee's salary will be reviewed by
the Company and Employee annually on or each anniversary of the effective date
of the Agreement and shall be adjusted by mutual agreement of the parties.
(b) Stock Options. (i) Employee shall receive options to purchase shares of
common stock of the Company pursuant to the Stock Option Agreement, which is
part of Schedule 1 annexed hereto. Employee is hereby granted the option to
purchase a total of 250,000 shares of common stock of the Company at a price of
$.05 per share as determined by Employer as of October 11, 2001, which options
will be issued and shall vest upon execution of this Agreement as further
described in the attached Stock Option Agreement. Stock options will remain open
for exercise for five (5) years after issuance.
(c) CFO Compensation. Should Employee become Company CFO, as contemplated by
this Agreement to occur three-to-six months from start date, Employee's
compensation shall be adjusted to One Hundred Ten Thousand Dollars, ($110,000).
In the event of a Change in Control in the Company as defined below,
Employee shall be vested for all granted stock options. For purposes of this
Agreement, Change in Control shall mean: (i) sale of substantially all of the
assets of the Company, or (ii) the acquisition by any corporation or group of
associated persons acting in concert, of an aggregate of one hundred percent
(100%) of the outstanding shares of voting stock coupled with or followed by the
election as directors of the Company of persons who were not directors at the
time of such acquisition if such persons shall become a majority of the Board of
Directors of the Company.
(e) Benefits. The Employee and his family shall be eligible to be a participant
in any medical, dental, disability or health benefit plans which the Company may
provide to similarly situated employees from time to time, as well as be
included in any pension plan or profit sharing that the Company may implement
from time to time, provided that Employee shall be entitled to substantially the
same benefits package currently enjoyed.
(f) Expenses. The Company agrees that Employee shall be entitled to
reimbursement for traveling, entertainment and other expenses reasonably
incurred by Employee in the performance of his employment obligations and
responsibilities and reasonably related automobile expenses as are available to
similarly situated executive employees; provided that such expenses be
pre-approved by the Company and that the Company's liability in this regard
shall otherwise be limited by the terms and conditions of Company policy in
effect on the date that the expense is incurred.
3. Termination.
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(a) For Cause by Company. This Agreement may be terminated by Company for cause,
at any time, effective upon written notice to Employee. The term "cause" shall
mean any one of the following: (a) Employee has breached this Agreement, which
breach remains uncured to the reasonable satisfaction of the Board of Directors
of Company for thirty (30) days after Employee receives written notice thereof
from the Board of Directors; (b) Employee has committed willful misconduct or
any willful violation of law in the performance of Employee's duties to Company;
(c) Employee has willfully failed to follow reasonable, lawful and explicit
instructions of the Board of Directors of Company concerning the operations or
business of Company; (d) Employee has been convicted of a felony deemed by
Company to be adverse to its business or reputation; (e) Employee has willfully
misappropriated funds or property of Company; (f) Employee has willfully
obtained a personal profit from any transaction which constitutes a corporate
opportunity of Company or any affiliates, unless the transaction was approved in
writing by Company's Board of Directors after full disclosure of all details
relating to such transaction, or (g) Employee has directly or indirectly caused
a breach of the confidentiality or non-compete provisions.
(b) Without Cause by Company. This Agreement may be terminated without cause by
the Company at anytime effective upon written notice to Employee, provided that,
if Employee is terminated "without cause," severance will be paid to the
Employee as follows: (i) if the Employee is terminated without cause within one
year of the date of execution of this Agreement, the Employee shall continue to
be paid his base salary for three (3) months, and (ii) if the Employee is
terminated without cause later than one year after execution of this Agreement,
the Employee shall continue to be paid his base salary for six (6) months.
(c) Voluntarily by Employee. In the event Employee elects to voluntarily
terminate his employment pursuant to notice as provided herein, Company shall
pay Employee the prorated compensation through the date of termination and any
unexercised stock options (whether vested or not) held by Employee shall
automatically expire and automatically be deemed terminated and of no further
force and effect upon such notice of voluntary termination. Upon payment by
Company of such prorated compensation, Company shall be relieved of all further
obligations to Employee under this Agreement. In such event, Employee will be
bound by the provisions of Sections 5 and 6 hereof.
(d) Effect of Termination on Stock Options as to Sections 3(a) and 3(b). If
Employee is terminated by Company pursuant to subparagraphs 3(a) or 3(b), he
must exercise all vested stock options within ninety (90) days of termination,
and any unexercised stock options (whether vested or not) held by Employee in
the shares of Company or in the shares of any affiliate of Company shall
automatically expire upon such termination and automatically be deemed
terminated and of no further force and effect. This provision shall control any
inconsistent or conflicting provision in this Agreement and in any other
agreement between Company, or any affiliate of Company and Employee.
(e) Death or Disability. The term of employment hereunder shall also terminate
immediately upon the death or "permanent disability" of the Employee ("permanent
disability" being defined as the inability of the Employee to adequately perform
his work in accordance with the provisions of this Agreement) for a period of
ninety (90) days, and thereupon the Employee shall not be entitled to receive
any further salary or other compensation; provided however, that the Employee,
or the Employee's estate or guardian, as the case may be, shall be entitled to
exercise any vested unexercised stock options pursuant to their terms, and all
non-vested stock options shall be automatically terminated.
4. Notice Period. Employee and Company understand and agree that should Employee
terminate employment he will give Company thirty (30) days advance written
notice (the "Notice Period"). Company may, at its option, pay Employee for the
Notice Period in lieu of active employment during the Notice Period. It is
understood that a party's exercise of its rights under this Paragraph shall be
without prejudice to any other right or remedy which it may have at law, in
equity, or under this Agreement, including, without limitation, Company's right
to terminate such employment without notice for Cause.
(a) Company agrees to continue in effect during the Notice Period payment of the
salary only without bonus or any other compensation to which Employee may be
entitled under this Agreement, which payments shall be made if and only if the
Employee has executed and delivered to the Company a general release of all
claims against the Company and its stockholders, directors, and employees in
form and substance satisfactory to the Company and only so long as Employee has
not breached and during the Notice Period does not breach the provisions of
Sections 5 and 6 hereof, which provisions shall extend beyond the term of
employment and shall survive termination or expiration of this Agreement.
(b) Employee agrees that during the Notice Period, he will cooperate fully with
Company in all matters relating to the winding up of any pending work and the
orderly transfer to other Company employees of accounts and matters for which
Employee has been responsible.
(c) Employee agrees that, prior to the expiration of the Notice Period, he will
return to Company all lists of prospects, candidates and other matters compiled
by Company's management and research staff, or by Employee while employed by
Company, and all business records and materials related thereto, whether in
tangible form, or on computer hard disks, diskettes, on tape drives or any
electronic media, computer literature, correspondence, notes, memoranda,
reports, summaries, manuals, proposals, contracts and other documents of any
kind which relate in any way to the business of Company, including specifically
all materials which comprise or refer to Company's Confidential Information.
Employee will not retain any copy, facsimile or note intended to memorialize any
such data. Employee further agrees that Company's Confidential Information and
trade secrets, remains the sole and exclusive property of Company and subject to
the terms of this Agreement.
(d) Employee agrees that, at or about the expiration of the Notice Period,
Company may convene an exit interview to review the status of accounts and
matters for which Employee has most recently been responsible to ensure that
Employee has fully obtained any entitlements which may be available under this
Agreement and/or to confirm that Employee clearly understands the nature and
scope of all of his post-employment obligations.
5. Confidentiality.
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(a) Employee recognizes that by virtue of Employee's employment by Company
Employee will be afforded numerous and extensive resources to assist Employee in
the solicitation, development, production and servicing of business clients.
Employee understands and agrees that all efforts that Employee expends and
programs and strategies Employee develops in this regard shall be for the
permanent and exclusive benefit of Company, that Company shall secure and retain
indefinitely the proprietary interest in all such business clients, and that
Employee will not undertake any action which could in any way disturb Company's
relationship with said business clients or Company accounts.
(b) Employee further recognizes that by virtue of his employment relationship to
Company, Employee will be granted otherwise prohibited access to confidential,
proprietary information and data of Company which is not known either to its
competitors or within the collegiate student business and related financial
planning business generally and which has independent economic value to Company
and to its subsidiaries and affiliates. This information (hereinafter referred
to as "Confidential Information") includes trade secrets, as contemplated by
C.R.S. ss.ss.7-74-102(4), (a copy of which is attached hereto as Schedule 2 and
the terms of which are incorporated herein by this reference) and also includes,
but is not limited to: the whole or any portion or phase of any technical
information, process, procedure, formula, improvement, confidential business or
financial information, business plan, listing of names, addresses, or telephone
numbers, or other information relating to Company, its subsidiaries and
affiliates' business which is secret and of value, including, but not limited
to, data relating to Company, its subsidiaries and affiliates' unique marketing
and servicing programs, procedures and techniques; business, management and
personnel strategies; the criteria and formulae used by Company, its
subsidiaries and affiliates in pricing their products; lists of prospects,
candidates, and other matters compiled by Company, its subsidiaries and
affiliates' management and research staff; the identity, addresses, telephone
numbers, authority and responsibilities of key contacts at Company accounts or
its subsidiaries' or affiliates' accounts, including, but not limited to, high
schools and colleges; details concerning the academic, athletic and personal
backgrounds of student-athlete collegiate scholarship candidates, including
attributes of the scholarship candidates; commission rates of Company, its
subsidiaries and affiliates' personnel; and other data showing the
particularized requirements and preferences of clients and Company, its
subsidiaries and affiliates' accounts, including, but not limited to, high
schools and colleges. Employee recognizes that this Confidential Information
constitutes a valuable property of Company and of its subsidiaries and
affiliates developed over a long period of time and at substantial expense.
Accordingly, Employee agrees that Employee will not, at any time during the
employment relationship with the Company or for a period of three (3) years
after the termination of the Employment relationship with Company, divulge such
Confidential Information or make use of such Confidential Information for
Employee's own purposes or the purposes of another.
6. Non-Compete. Employee recognizes Company's legitimate interest in protecting,
during and for a reasonable period of time following the termination of
Employee's employment, those Company accounts and business contacts with which
Employee will be associated during his employment. Accordingly, Employee
understands and agrees that while employed by Company and for a period of three
(3) years following termination of employment with Company (unless, the Employee
has been terminated without cause by Company, in which case for a period of one
(1) one year following termination), Employee will not compete with the business
of the Company or of any subsidiary or affiliate of Company or solicit the
customers of the Company or of any subsidiary or affiliate of Company. The
geographic limitation within which the Employee shall not compete includes any
states in which Company conducts its business as of the date of the termination
of Employee's employment with the Company. Notwithstanding this location
limitation, Employee will not, during the non-competition period, solicit or
perform work for any of Company's existing customers or clients as of the date
of termination of Employee's employment, regardless of the location from which
such work is performed. If the time or geographic limitation set forth herein is
deemed to be unreasonable, Employee agrees to abide by the maximum time or
geographic limitation decided by a court or other tribunal of competent
jurisdiction.
7. Breach of Agreement. Employee and Company understand and agree that any
breach or evasion of any term of this Agreement will potentially give rise to
actions for breach of contract or tort, which may be brought in any court of
competent jurisdiction. Employee recognizes that the rights and privileges
granted to Employee by this Agreement and Employee's services and Employee's
corresponding covenants to Company are of a special, unique and extraordinary
character, the loss of which cannot reasonably or adequately be solely
compensated for in damages in any action at law or through the offset or
withholding of any monies to which Employee otherwise might be entitled from
Company. Accordingly, Employee understands and agrees that Company shall also be
entitled to equitable relief, including a temporary restraining order and
preliminary and permanent injunctive relief, to prevent a breach of this
Agreement. The remedies available to Company under this Agreement are
cumulative. Company may, in its sole discretion, elect to pursue all or any of
such remedies. Such remedies are in addition to any given by law or equity and
may be enforced successively or concurrently.
8. Successors or Assigns. This Agreement will be binding upon and benefit the
parties hereto and their assigns, executors, heirs or successors, provided that
Employee will not assign any obligation hereunder without the Company's prior
written consent, which consent may be withheld by Company for any reason, and
any such attempted assignment shall be void.
9. Amendment, Modification, or Waiver. No amendment, modification or waiver of
any condition, provision, or terms of this Agreement will be valid or of any
effect unless made in writing and signed by the party or parties to be charged.
Any waiver by any party of any default of the other party will not affect or
impair any rights arising from any subsequent default by such party.
10. Severable Conditions. Each provision of this Agreement is intended to be
severable. If any provision hereof is illegal or invalid for any reason, such
illegality or invalidity shall not affect the remainder of this Agreement.
11. Entire Agreement. This Agreement contains the entire agreement and
understanding of the parties respecting the transaction contemplated hereby and
supersedes all prior agreements and understandings between the parties
respecting the subject matter of this Agreement.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado with exclusive venue for the
enforcement hereof to be in Jefferson County, Colorado. Both parties consent to
personal jurisdiction in the courts of Colorado located in Jefferson County,
Colorado.
13. Attorneys' Fees. The substantially prevailing party in any litigation or
other proceeding enforcing this Agreement shall be entitled to reimbursement of
all costs and expenses including, without limitation, reasonable attorneys' fees
at each trial and appellate levels.
14. Captions. The captions in this Agreement are included for purposes of
reference only and are not part of the text of this Agreement.
15. Counterparts. This agreement may be executed in several counterparts all of
which shall constitute one and the same Agreement.
EXECUTED as of the date first above written.
Employee: COLLEGE BOUND STUDENT ALLIANCE, INC.,
a Nevada corporation
Xxxx X. Xxxxxxx By:
NAME NAME
TITLE
(Corporate Seal)
SCHEDULE 1
TERMS OF EMPLOYMENT
OF
XXXX X. XXXXXXX
(Name of Employee)
Name: Xxxx X. Xxxxxxx
Soc Sec. No.
Address: 80 Rose Hip Lane ------------------
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Evergreen, Colorado 80439
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Telephone:
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Facsimile:
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Title (Position): Vice-President of Finances
Administration
Responsibilities: See Exhibit A Attached
Term of Employment: One year with consecutive annual
renewals thereafter.
Commencement Date: October 11, 2001
Compensation:
Initial Annual Base Salary: $90,000.00
Incentive Compensation: Stock option plan detailed
below
Additional Terms: Annual compensation is
subject to increase to
$110,000 pursuant to
Paragraph 2(d) of the
Agreement to which this
Schedule 1 is attached.
Stock Option Plan.
The Employee is hereby granted stock options to
purchase up to a total of 250,000 shares of common
stock of the Company at a price of $.50 per share,
which options shall be issued and vest in increments
of 50,000 shares per year exercisable for three (3)
years from date of vesting, as described in Paragraph
2 of the Agreement to which this Schedule 1 is
attached and as further defined in and limited by the
terms and conditions of the Stock Option Agreement
annexed hereto.
SCHEDULE 2
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Copy of C.R.S. ss.ss.7-74-102(4)
EXHIBIT A
Will be responsible for all financial aspects and capital requirements of public
company including the following:
o Will be familiar with and responsible for the preparation and timely
filing of all SEC required reports including: Forms 10 QSB, 10 KSB,
SB2, 8K, Proxy Statements and Annual Reports to Shareholders.
o Preparation of the Company business plan.
o Responsible for the Company's financial strategies. Upon assuming role
of CFO, will become a key member of management team in charge of
directing business strategy and policy and determining financial and
profitability goals.
o Will have direct involvement recommending and implementing changes in
the operating policies and procedures.
o Evaluate and modify existing accounting policies; improve productivity
and provide more accurate and timely financial information.
o Responsible for coordinating corporate finance processes, including
due diligence process and evaluation/negotiation of financing
alternatives. Prepare and deliver presentations to investment bankers
and potential investors.
o Manage Collections.
o Will work closely and manage relationships with independent auditor on
all audit requirements.
o Responsible for the annual budget process and the development of
monthly, quarterly and five-year financial forecast. Design and
develop reports.
o Responsible for cash management.
o Analyze and interpret actual operating results against the budget.
o Responsible for management of human resources.
o Responsible for treasury functions involving the development and
maintenance of commercial-banking and investment-banking
relationships, including review and establishment of vendor-based
financing for capital expenditure.
o Will perform investor-relations duties, including presentations and
discussions of operating results, forecasts, and general issues with
stock analysts and shareholders.
o Will report to Chief Financial Officer, President and Chief Executive
Officer.
