EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as the "Employment
Agreement") is made and entered into as of the 18th day of January, 2002, by and
between RETURN ON INVESTMENT CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (hereinafter referred to as the
"Employer"), and XXXX XXXXXXX, a resident of Xxxxxx County, State of Georgia
(hereinafter referred to as the "Employee").
W I T N E S E T H:
------------------
WHEREAS, the Employer desires to employ the Employee to perform the Duties
(as defined herein) and the Employee desires to accept employment on the terms
and conditions hereinafter stated; and
WHEREAS, in the course of his employment, the Employee will (i) gain
knowledge of the business, affairs, customers and methods of the Employer and
also techniques in the sale of the Employer's services through the use of
techniques, systems, forms and methods used and devised by the Employer or at
the Employer's expense, (ii) have access to lists of the Employer's customers
and their needs, and (iii) become personally known to and acquainted with the
Employer's customers; and
WHEREAS, the Employer would suffer irreparable harm if the Employee were to
use such knowledge, information and personal relationships in competition with
the Employer;
NOW, THEREFORE, for and in consideration of the employment of Employee by
the Employer, and for and in consideration of the premises, the mutual covenants
and agreements hereinbelow set forth, and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged and accepted by all parties hereto and will not hereafter be
questioned or challenged, the Employer and the Employee covenant and agree as
follows:
1. DEFINITIONS.
(a) "Area" as used herein means the current geographic area consisting of
the states of Florida, Georgia, Illinois, and New York and any other county or
city where the Employer either engages in the Business of the Employer or has
registered with the appropriate governmental authorities to engage in the
Business of the Employer.
(b) "Business of the Employer" as used herein means the business of (i)
selling payment processing software and providing related services, and (ii)
selling software for IBM iSeries 400 and AS/400 computer systems related to
e-mail, data communications, connectivity, and web enablement.
1
(c) "Cause" as used herein means the following: (i) willful dishonesty by
Employee towards or deliberate injury or deliberate attempted injury by Employee
to the Employer, (ii) commission of a felony or other act involving moral
turpitude which adversely and materially affects the Employer, (iii) willful
failure or refusal to perform the Duties as shown on Schedule A or implement a
directive from the Board of Directors remaining uncured for a period of fourteen
(14) days after receipt of written notice specifying such failure, (iv)
disclosure of Confidential Information or Trade Secrets in violation of the
terms of this Agreement (v) a disability of Employee, including, but not limited
to, drug or alcohol abuse, which prevents Employee from performing the Duties
for an uninterrupted period of three (3) consecutive months, or (iv) death of
Employee. The Cause shall be stated specifically in any notice of termination
given pursuant to Paragraph 6 (b) hereof.
(d) "Competing Business" as used herein means any person, concern or
entity which is engaged in or conducts a business selling products or performing
services substantially the same as the products sold or services performed in
the Business of the Employer.
(e) "Change of Control" as used herein means, following the date hereof, a
change in ownership or managerial control of the stock, assets or business of
the Employer resulting from one or more of the following circumstances, which
shall deemed to occur on the actual date on which any of the foregoing
circumstances shall occur (provided, however, that in connection with a Change
of Control specified in Section 1(E)(vii) below, a Change of Control shall be
deemed to occur on the date of the filing of the relevant proceeding under
Chapter 11 of the Federal Bankruptcy Code (or any successor or other statute of
similar import)):
(i) A change in ownership of the Employer through a transaction or
series of transactions, such that any individual, partnership, joint
venture, association, trust, corporation or other entity or group (a
"Person" or "Persons") (other than any current officer of the Employer or
member of the Board) is (are) or become(s), in the aggregate, the
Beneficial Owner(s) (as defined by Rule 13d-3 of the General Rules and
Regulations of the Act), directly or indirectly, of securities representing
fifty percent (50%) or more of the Employer's then outstanding securities;
(ii) Any consolidation or merger of the Employer in which the Employer
is not the continuing or surviving corporation or pursuant to which shares
of the common stock of the Employer would be converted into cash (other
than cash attributable to dissenters' rights), securities or other property
provided by a Person or Persons other than the Employer, other than a
consolidation or merger of the Employer in which the holders of the common
stock of the Employer immediately prior to the consolidation or merger have
approximately the same proportionate ownership of common stock of the
surviving corporation immediately after the consolidation or merger;
2
(iii) The closing of a sale, transfer, liquidation or other
disposition of all or substantially all of the assets of the Employer to a
Person or Persons.
(f) "Confidential Information" as used herein means information disclosed
to, acquired or learned by Employee as a consequence of his employment by the
Employer and not generally known to or by Competing Businesses about the
Business of the Employer or the Employer's financial affairs, including, without
limitation, information relating to research, development, inventions,
formulations, processes, accounting, marketing, distribution, all information of
the foregoing type relating to any customer of the Employer, customer lists,
customer account records, training and operations material and memoranda,
personnel records, code books, pricing information and any other information
treated by the Employer as being confidential or labeled "Confidential," as well
as all physical embodiments of any of the foregoing, all of which are hereby
agreed to be the property of and confidential to the Employer.
(g) "Disability" as used herein means that the Employee is incapable of
performing the normal duties required by his employment and performed by him
before such incapacity. Disability shall be deemed to have occurred on the first
day following a period of ninety (90) consecutive days of such incapacity and
shall be deemed to continue from and after such date until the Employee is
capable of performing the normal duties required by his employment and performed
by him before such incapacity.
(h) "Duties" as used herein means the Duties shown on Schedule A, which is
attached to this Agreement and thereby made an integral part hereof.
(i) "Effective Date" as used herein means the Effective Date shown on
Schedule A.
(j) "Good Reason" as used herein means: (i) the required relocation of
Employee, without Employee's consent, to an employment location which is more
than forty (40) miles from the Employee's employment location on the date of
this Agreement; (ii) the removal of Employee from, or any failure to reelect
Employee to, any of the positions held by Employee as of the date of this
Agreement or any other positions to which Employee shall thereafter be elected
or assigned except in the event that such removal or failure to reelect relates
to Termination with Cause of Employee's employment or by reason of death,
Disability or Voluntary Termination; (iii) a significant adverse change, without
Employee's written consent, in the nature or scope of Employee's authority,
powers, functions, Duties or responsibilities to a level below that which was
provided to Employee on the date of this Agreement; or (iv) breach or violation
of any material provision of this Agreement by the Employer.
(k) "Proprietary Information" as used herein means Confidential
Information and Trade Secrets but shall not include any data or information
received by the Employee from the Employer which is already known to the
Employee at the time it is disclosed to the Employee, or which before being
divulged by the Employee (i) has become generally known to the public through no
wrongful act of the Employee; (ii) has been rightfully received by the Employee
from a third party without restriction on disclosure and without, to the
knowledge of
3
the Employee, a breach of an obligation of confidentiality running directly or
indirectly to the Employer; (iii) has been approved for release by written
authorization of the Employer; (iv) has been disclosed pursuant to a requirement
of a governmental agency or of law without similar restrictions or other
protections against public disclosure; provided, however, that the Employee
shall first have given written notice of such required disclosure to the
Employer, made a reasonable effort to obtain a protected order requiring that
the Proprietary Information so disclosed be used only for the purposes for which
disclosure is required and taken reasonable steps to allow the Employer to seek
to protect the confidentiality of the Proprietary Information required to be
disclosed; (v) is independently developed by the Employee unrelated to the
Employee's performance of the Employee's duties and responsibilities of the
Employee's employment by the Employer without use, directly or indirectly, of
any of the Proprietary Information received from the Employer; or (vi) is
furnished to a third party by the Employer without any restriction on the third
party's right to disclose the Proprietary Information.
(l) "Termination Payment" as used herein shall mean the payment described
in Paragraph 6 (a) of this Employment Agreement.
(m) "Trade Secrets" as used herein means the whole or any portion of any
scientific, technical or non-technical data, compilation, program, information,
design, drawing, device, process, procedure, manufacturing process, fabrication
process, formula, improvement, method, techniques, financial data, financial
plans, sales plans, business plans, product plans or list of actual or potential
customers, which is secret and proprietary and of value to the Employer.
2. EMPLOYMENT.
(a) The Employer hereby employs the Employee to perform the Duties for the
term hereof, and the Employee hereby accepts and agrees to such employment,
subject to the provisions of this Employment Agreement.
(b) The Employee agrees to devote an average of twenty (20) hours per week
of his time, energy and skill to the performance of the Duties (vacation time as
shown on Schedule A, Employer holidays, and reasonable absences due to illness
excepted).
(c) The Employee agrees that he shall faithfully and industriously perform
the Duties to the best of his ability and in accordance with the Employer's
direction and control pursuant to the terms of this Employment Agreement.
(d) The term of Employee's employment under this Employment Agreement
shall commence on the Effective Date and continue through August 31, 2005,
subject, however, to prior termination as provided in this Employment Agreement.
(e) The Employee shall receive compensation from the Employer as shown on
Schedule A in full payment for all of his services hereunder and all rights
granted herein.
4
3. OTHER EMPLOYMENT. The Employer acknowledges and agrees that the
Employee may perform services as an employee, director, officer, or
independent contractor or consultant for any individual or entity
other than the Employer without the prior written consent of the
Employer, provided that no such activity shall in any way violate the
terms of this Employment Agreement.
4. REPORTS. The Employee agrees to submit to the Employer, in writing,
such reports related to his services hereunder as the Employer may
request from time to time or as may be required by the Employer's
company policies.
5. REPRESENTATIONS. The Employee hereby represents and warrants that he
has the right to enter into this Employment Agreement with the
Employer and to grant the rights contained herein, and that the
provisions of this Employment Agreement do not violate any other
contracts or agreements that he has entered into with any other
individual or entity.
6. TERMINATION OTHER THAN FOR CAUSE AND FOR CAUSE.
(a) The Employer may terminate the Employee's employment under this
Employment Agreement at any time other than for Cause upon giving the Employee a
notice of termination, provided, however, upon terminating the Employee other
than for Cause the Employer shall pay the Employee the sum of Three Hundred
Sixty Thousand Dollars ($360,000.00) (the "Termination Payment") on the terms
set forth below and the Employee's benefits as shown on Schedule A will continue
to be provided to the Employee and paid for by the Employer for a period of two
(2) years after the termination date (the "Continuing Benefits"). The
Termination Payment shall be due and payable in twenty four (24) semi-monthly
payments of Seven Thousand Five Hundred Dollars ($7,500.00) commencing with the
next semi-monthly period after termination or shall be payable in such other
equal, or as nearly equal as practicable, installments on such other schedule as
the Employer may implement from time to time for general payroll purposes. The
Employer may deduct from each payment to the Employee any and all amounts
required to be deducted or withheld for general payroll purposes in accordance
with the provisions of federal law and any applicable state law now in effect or
hereafter in effect including without limitation, state and federal income
withholding, FICA and other withholding tax requirements, and such other
deductions permitted by the Employer which Employee may authorize from time to
time. If a Change of Control occurs or if the Employee terminates his employment
for Good Reason, the Employee shall receive the Termination Payment and the
Continuing Benefits. Notwithstanding anything to the contrary contained herein,
the Employer and the Employee specifically acknowledge and agree that Paragraphs
7, 8, 9, 10, and 11 hereof shall survive termination of the Employee's
employment under this Employment Agreement and that Paragraphs 7, 8, 9, 10, and
11 shall continue to be in full force and effect after termination the
Employee's employment under this Employment Agreement.
(b) The Employer may terminate the Employee's employment under this
Employment Agreement at any time for Cause upon giving the Employee a notice of
termination stating specifically the reason for such for termination for Cause.
Provided, however, in the event the Employer terminates this Employment
Agreement for Cause and such Cause is curable
5
by the Employee, the Employee shall have a period of fourteen (14) days from and
after his receipt of the notice of termination given pursuant to this Paragraph
6 (b) to cure such conduct to the satisfaction of the Employer and if the
Employee does not cure such conduct to the satisfaction of the Employer within
such fourteen (14) day period this Employment Agreement shall be deemed
terminated as of the original date of the Employee's receipt of the notice of
termination. Notwithstanding anything to the contrary contained herein, the
Employer and the Employee specifically acknowledge and agree that Paragraphs 7,
8, 9, 10, and 11 hereof shall survive termination of the Employee's employment
under this Employment Agreement and that Paragraphs 7, 8, 9, 10, and 11 shall
continue to be in full force and effect after termination the Employee's
employment under this Employment Agreement.
7. CONFIDENTIAL INFORMATION; TRADE SECRETS.
(a) The Employee will receive the Proprietary Information and (i) will
hold the Proprietary Information in trust and in strictest confidence; (ii) will
protect the Propriety Information from disclosure and in no event take any
action causing, or fail to take any action necessary in order to prevent, any
Proprietary Information disclosed to or developed by the Employee during the
Employee's employment by the Employer to lose its character as Proprietary
Information; and (iii) will not use, duplicate, reproduce, distribute, disclose
or otherwise disseminate the Proprietary Information except to perform the
duties and responsibilities of the Employee's employment by the Employer.
(b) Disclosures of the Proprietary Information shall be made only to
employees, agents or independent contractors of the Employer who are directly
involved in performing services on behalf of the Employer for which the
knowledge of the Proprietary Information is necessary, have a specific need to
know the Proprietary Information, and have obligated themselves under an
applicable confidentiality agreement of the Employer to hold the Proprietary
Information in trust and confidence subject to the restrictions of this
Employment Agreement.
(c) Immediately following the receipt of a written request from the
Employer, the Employee will deliver to the Employer all tangible materials
containing or embodying the Proprietary Information, together with a certificate
executed by the Employee certifying that all materials in the Employee's
possession have been delivered to the Employer.
(d) The covenants of confidentiality set forth herein (i) shall apply
after the Effective Date and during the Employee's employment by the Employer to
any Proprietary Information disclosed prior to or after the Effective Date by
the Employer to the Employee in connection with the Employee's employment by the
Employer; and (ii) shall continue and be maintained by the Employee (a) with
respect to the Confidential Information, for a period of four (4) years from and
after the termination of the Employee's employment by the Employer; and (b) with
respect to the Trade Secrets, at any and all times following the termination of
the Employee's employment by the Employer.
6
8. AGREEMENT NOT TO SOLICIT EMPLOYEES OR CUSTOMERS.
(a) The Employee covenants and agrees that he will not during the term of
his employment under this Employment Agreement or for a period of one (1) year
from the date of termination of his employment under this Employment Agreement
for any reason whatsoever, directly or indirectly, either individually, in
partnership, jointly or in conjunction with any person, firm partnership,
corporation, or unincorporated association of any kind, whether as principal,
agent, employee, shareholder or in any other capacity whatsoever solicit or
divert or appropriate or attempt to solicit or divert or appropriate
(hereinafter collectively referred to as "Solicit") to any person, concern, or
entity selling products or performing services substantially similar to the
products sold or services performed in the Business of the Employer during the
term of the Employee's employment under this Employment Agreement, any person
employed by the Employer during the term of the Employee's employment under this
Employment Agreement, whether or not such employment is pursuant to a written
agreement and whether or not such employment is for a determined period or is at
will (hereinafter referred to as the "Employed Person of the Employer").
(b) The Employee covenants and agrees that he will not during the term of
his employment under this Employment Agreement or for a period of one (1) year
from the date of termination of his employment under this Employment Agreement
for any reason whatsoever, directly or indirectly, either individually, in
partnership, jointly or in conjunction with any person, firm partnership,
corporation, or unincorporated association of any kind, whether as principal,
agent, employee, shareholder or in any other capacity whatsoever solicit or
divert or appropriate or attempt to solicit or divert or appropriate
(hereinafter collectively referred to as "Solicit") for the purpose of selling
products or performing services substantially similar to the products sold or
services performed in the Business of the Employer during the term of the
Employee's employment with the Employer, any individual, partnership, business,
firm, corporation or unincorporated association, which was during the term of
the Employee's employment with the Employer a customer of the Employer for whom
the Employee sold any products or performed any services and with whom the
Employee had contact during the term of the Employee's employment with the
Employer (hereinafter referred to as the "Customers of the Employer").
(c) The parties hereto acknowledge and agree that the period of time for
non-solicitation of an Employed Person of the Employer and the period of time
for the non-solicitation of the Customers of the Employer set forth in this
Paragraph 8 is reasonable and necessary for the protection of the Employer in
the operation of its business.
9. EMPLOYEE AGREEMENT NOT TO COMPETE. The Employee covenants and agrees
that he will not, either during the term of his employment under this
Employment Agreement or for a period of one (1) year from the date of
termination of his employment under this Employment Agreement for any
reason whatsoever, directly or indirectly, either individually, in
partnership, jointly or in conjunction with any person, firm,
partnership, corporation, or unincorporated association of any kind,
whether as principal, agent, employee, shareholder or in any other
capacity whatsoever:
7
(i) provide or accept an offer to provide services to any Competing
Business located within the Area which services are the same or essentially
the same as the services being rendered by the Employee to the Employer
under this Employment Agreement in connection with the Business of the
Employer.
(ii) associate with, invest in, obtain any interest in, advise, lend
money to, or guarantee the debts or obligations of any Competing Business
within the Area.
The parties hereto acknowledge and agree that the period of time for
non-competition as set forth in this Employment Agreement and the geographic
territory defined as the Area as set forth in this Paragraph 9 are reasonable
and necessary for the protection of the Employer in the operation of its
business.
10. ASSIGNMENT OF INVENTIONS AND INNOVATIONS.
(a) The Employee shall and hereby covenants and agrees to and does hereby,
without charge to the Employer but at the Employer's expense, transfer and
assign to the Employer all right, title, interest, claim and demand of the
Employee in to and under and by virtue of any and all inventions, creations,
discoveries, improvements, ideas, algorithms, computer software programs or
other technology or other works of authorship, and all related documentation,
relating to the Business of the Employer, whether or not patentable,
copyrightable or susceptible to other forms of protection, which, during the
term of the Employee's employment with the Employer, the Employee makes,
creates, develops, writes or conceives whether during or outside of the
Employee's regular working hours, either solely or jointly with another
(hereinafter collectively referred to as the "Innovations"). The Employee hereby
covenants and agrees that all such Innovations shall be deemed to be works
made-for-hire for the Employer.
(b) The Employee hereby covenants and agrees without charge to the
Employer but at the Employer's expense: (i) to disclose promptly to the Employer
all Innovations; (ii) upon the Employer's request, to execute promptly a
specific assignment to the Employer of all rights, title, interest, claim and
demand of the Employee in to and under and by virtue of the Innovations; and
(iii) to do anything else and to execute any all documents reasonably necessary
to enable the Employer to secure patents, copyrights or other forms of
intellectual property protection for the Innovations in the United States of
America and in other countries and territories of the world.
11. UNIQUE NATURE OF SERVICES AND COVENANTS AND EMPLOYMENT AGREEMENTS.
(a) It is agreed that the services to be rendered by the Employee under
the terms of this Employment Agreement are of a unique, unusual, special and
extraordinary nature, and of a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages in any action at law, and that a
breach by the Employee will cause the Employer great and irreparable injury and
damage. It is agreed that the Employer, in addition to any other remedies, shall
be entitled to injunctive and other equitable relief to prevent a breach of this
Employment Agreement by the Employee.
8
(b) The parties hereto agree that by virtue of the special knowledge that
the Employee will gain about the affairs, business, operations, customers, and
other employees of the Employer as a consequence of the Employee rendering
services to the Employer under this Employment Agreement, irreparable loss and
damage would be suffered and incurred by the Employer if the Employee should
breach or violate any of the covenants or agreements contained in Paragraphs 7,
8, 9, or 10 hereof and that money damage alone would be an inadequate remedy for
the loss and damage which would be suffered and incurred by the Employer in the
event of such breach or violation; and the parties hereto further acknowledge
and agree that each of such covenants and agreements are reasonably necessary to
protect and preserve the Business of the Employer. The Employee therefore agrees
and consents that, in addition to any other remedies available to the Employer,
at law or in equity, the Employer shall be entitled to a restraining order,
injunction, or other similar remedy to prevent a breach or violation or
contemplated breach or violation by the Employee of any of the covenants or
agreements contained in Paragraphs 7, 8, 9, or 10 hereof. In the event the
Employer seeks an injunction hereunder, the Employee hereby waives any
requirement for the posting of a bond or other security.
12. EMPLOYER'S OBLIGATIONS; ASSIGNMENT. The Employer's obligation to pay
the Employee compensation and other amounts due hereunder and to make
the arrangements provided herein shall be unconditional, and the
Employee shall have no obligation whatsoever to mitigate damages
hereunder. If litigation after a Change of Control shall be brought to
enforce or interpret any provision contained herein, the Employer, to
the extent permitted by applicable law and the Employer's Articles of
Incorporation and Bylaws, hereby indemnifies the Employee for the
Employee's reasonable attorneys' fees and disbursements incurred in
such litigation. Except as provided herein, this Agreement shall not
be terminated by any merger or consolidation or other reorganization
of the Employer. In the event any such merger, consolidation or
reorganization shall be accomplished by transfer of stock or by
transfer of assets or otherwise, the provisions of this Agreement
shall be binding upon and inure to the benefit of the surviving or
resulting corporation or person. This Agreement shall be binding upon
and inure to the benefit of the executors, administrators, heirs,
successors and assigns of the parties; provided, however, that except
as herein expressly provided, this Agreement shall not be assignable
either by the Employer (except to an Affiliate of the Employer in
which event the Employer shall remain liable if the Affiliate fails to
meet any obligations to make payments or provide benefits or
otherwise) or by the Employee. This provision does not prohibit the
transfer, encumbrance or other alienation of the corporate securities
of the Employer.
13. WAIVER; CUMULATIVE REMEDIES. A waiver by either party of any
paragraph, term or condition of this Employment Agreement in any
instance shall not be deemed or construed to be a waiver of such
paragraph, term or condition for the future or of any subsequent
breach thereof, and any such waiver must be in writing. All rights and
remedies contained in this Employment Agreement are cumulative and
none of them shall be construed so as to limit any other right or
remedy of either party.
9
14. NOTICES. All notices and other communications permitted or required by
the provisions of this Employment Agreement shall be in writing and
shall be personally delivered or sent through the United States Postal
Service, or any official successor thereto, designated as registered
or certified mail, return receipt requested, bearing adequate first
class postage and addressed as hereinafter provided. Notices delivered
in person shall be effective upon the date of delivery. Notices by
mail shall be effective upon the receipt thereof by the addressee or
upon the fourth (4th) calendar day subsequent to the postmark date,
whichever is earlier. Rejection or the refusal to accept or the
inability to deliver because of a change in address of which no notice
was given as provided herein shall be deemed to be receipt of the
notice sent as of the fourth (4th) calendar day subsequent to the
postmark date. By giving to the other party hereto at least thirty
(30) days' notice thereof, any party hereto shall have the right from
time to time and at any time while this Employment Agreement is in
effect to change the respective addresses thereof and each shall have
the right to specify as the address thereof any other address within
the continental United States of America. Each notice to the Employee
or the Employer shall be addressed, until notice of change as
aforesaid, as follows:
(a) If intended for Employee, to:
Xxxx Xxxxxxx
0000 Xxxxxxxx Xxxxxx Xxxx 0
Xxxxxxx, XX 00000
(b) If intended for Employer, to:
Return On Investment Corporation
0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Chairman of the Board
15. TIME OF ESSENCE. Time is of the essence of this agreement and all
matters set forth herein.
16. GENERAL.
(a) This Employment Agreement shall be governed by and construed under the
laws of the State of Georgia.
(b) This Employment Agreement contains the entire understanding of the
parties hereto with respect to the subject matter hereof and, except as provided
herein, supersedes all previous written and oral agreements between the parties
with respect to the subject matter set forth herein.
(c) This Employment Agreement may not be modified or amended except by a
writing signed by both of the parties hereto.
10
(d) The invalidity or unenforceability of any particular term or provision
of this Employment Agreement shall not affect the validity or enforceability of
any other term or provision hereof, and this Employment Agreement shall be
construed in all respects as if such invalid or unenforceable term or provision
were omitted.
(e) This Employment Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same agreement.
IN WITNESS WHEREOF, the Employer has caused this Agreement to be executed
by its duly authorized representative and the Employee has executed this
Agreement as set forth below.
EMPLOYER:
RETURN ON INVESTMENT CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxxx
------------------------------
Xxxxxxx X. XxXxxxxxx, Chairman
[CORPORATE SEAL]
EMPLOYEE:
/s/ Xxxx Xxxxxxx [SEAL]
------------------------------
Xxxx Xxxxxxx
11
SCHEDULE A
1. DUTIES include serving as the President of the Employer and the
performance of such duties and responsibilities as may be designated by the
Board of Directors of the Employer in conjunction with the performance of
services by the Employee as President of the Employer, and such other capacities
with the Employer as may be designated by the Board of Directors. The Employee
shall also serve as a member of the Board of Directors of the Employer.
2. EFFECTIVE DATE is February 1, 2002.
3. COMPENSATION. The Employer shall pay the Employee compensation as
follows:
A. BASE SALARY. From February 1, 2002, through the end of the term
of this Employment Agreement, the Employee shall be paid an annual base salary
at the rate of not less than Ninety Thousand Dollars ($90,000.00) per annum
(hereinafter referred to as the "Base Salary"). Any increases in the Base Salary
shall be determined in the sole discretion of the Board of Directors (except
that in any such vote, the Employee may not vote as a member of the Board of
Directors).
B. PERFORMANCE BONUSES. The Employee shall be paid quarterly and
annual performance bonuses (hereinafter referred to as the "Performance
Bonuses") for each fiscal quarter and for each fiscal year (or portion thereof)
during the term of this Employment Agreement and any extensions thereof, with
the actual amount of any such Performance Bonus payment to be determined by the
Employer's Compensation Committee and ratified by the Board of Directors (except
that in any such vote, Employee may not vote as a member of the Board of
Directors or the Compensation Committee), based upon their evaluation of the
Employee's performance during such quarter or year as compared to the goals
determined at the beginning of such quarter or year.
C. BONUS DRAW. Employee shall be paid a draw against the Performance
Bonuses at the annual rate of Ninety Thousand Dollars ($90,000.00) per annum
(hereinafter referred to as the "Bonus Draw"). Any Bonus Draw in excess of the
total amount of the actual Performance Bonuses earned for each fiscal period
shall not be recoverable by the Employer from Employee.
D. OTHER BONUSES. Other bonuses, if any, as may be established from
time to time by the Board of Directors for directors, officers, or employees of
the Employer.
F. SCHEDULE OF PAYMENT OF BASE SALARY AND BONUS DRAW. The Base
Salary and the Bonus Draw shall accrue and be due and payable in equal, or as
nearly equal as practicable, semi-monthly installments or on such other schedule
as the Employer may implement from time to time for general payroll purposes.
Any bonus amounts earned for any fiscal period in excess of the Bonus Draw shall
be payable within ninety (90) days after the end of the fiscal period to which
such bonus relates. The Employer may deduct from each payment
12
to Employee any and all amounts required to be deducted or withheld for general
payroll purposes in accordance with the provisions of federal law and any
applicable state law now in effect or hereafter in effect including without
limitation, state and federal income withholding, FICA and other withholding tax
requirements, and such other deductions permitted by the Employer which Employee
may authorize from time to time.
4. PAID TIME OFF. Commencing with the Effective Date, the Employee shall
accrue paid vacation during each payroll period at the rate of forty (40) hours
multiplied by a fraction, the numerator of which is one (1) and the denominator
of which is the number of payroll periods in a year. Employee shall be entitled
to all paid holidays and other paid time off provided by the Employer to its
employees.
5. BENEFITS. In addition to the compensation received by Employee as
specified above, Employee shall receive Employer paid health, dental, life, and
short term and long term disability insurance and all benefits generally
available to officers, directors, and full-time employees of the Employer.
6. EXPENSE REIMBURSEMENT. Employee shall be reimbursed in accordance with
the Employer's Policies and Procedures for all reasonable and necessary expenses
incurred by him in connection with the performance of his duties of employment
hereunder; provided Employee shall, as a condition of reimbursement, submit
verification of the nature and amount of such expenses in accordance with said
reimbursement policies. Employee's air travel shall be coach or economy class
for all flights with a scheduled duration of less than four (4) hours in the
airline's published flight schedule and business class for longer flights and
international travel. Rail travel shall be first class.
13
