EXHIBIT 10.04
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BETWEEN THE XXXXXXXX AND XXXXXXXX COMPANY ("COMPANY")
AND XXXXXXX X. X'XXXXX ("EXECUTIVE")
MATERIAL TERMS
I. POSITION - Chief Executive Officer and President
("Executive")
II. START DATE/TERM - August 7, 2006 - January 31, 2008, with
automatic one-year extensions commencing at
expiration of original term unless notice is
given by either party 180 days prior to
termination of the current term
III. BASE SALARY - $750,000 (pro rated for partial years)
IV. ANNUAL BONUS - Target annual bonus of 70% of base salary
with a maximum bonus of 140% of base salary
V. ADDITIONAL MATTERS - A. Participation in Company benefit plans
and programs
B. $14,000/year car allowance
C. $1,500/year reimbursement for medical
exams
D. $6,000/year for estate/tax planning
E. $1,500/year for health club fees
F. Participation in all qualified and
nonqualified retirement plans which are
available to senior officers
G. Supplemental executive retirement plan to
provide additional benefits upon
retirement of 4% of average annual
compensation multiplied by Executive's
years of service
VI. SEVERANCE BENEFITS PRIOR - A. TERMINATION FOR GOOD REASON/WITHOUT CAUSE
TO A CHANGE IN CONTROl
If Executive terminates employment for
good reason or the Company terminates
Executive's employment without cause,
Executive will be entitled to receive:
1) pro-rata target bonus for the
year in which termination occurs
2) 2x annual salary
3) 2x higher of target bonus or
three-year average annual bonus
4) 2 years medical benefits
5) 2 additional years of deemed
service for supplemental
retirement plan
6) full vesting of stock options or
time-based restricted stock awards
and determination of vesting under
any performance-based restricted
stock awards pursuant to the
provisions of applicable plans (in
the case of good reason
termination only)
B. TERMINATION FOR CAUSE
If the Company terminates Executive's
employment for cause, Executive will be
entitled to receive:
1) Accrued obligations and any
benefits under the pension plan
and supplemental pension plan
C. DISABILITY
If Executive's employment is terminated
due to disability, Executive will be
entitled to receive:
1) pro-rata target bonus for the year
in which termination occurs
2) annual disability benefit equal to
90% of base salary
3) 2 additional years of deemed
service for supplemental
retirement plan
4) full vesting of stock options or
time-based restricted stock awards
and determination of vesting under
any performance-based restricted
stock awards pursuant to the
provisions of applicable plans
VII. CHANGE IN CONTROL
SEVERANCE BENEFITS - If Executive terminates employment for good
reason or executive's employment is
terminated by the Company (other than for
disability or cause) during the two-year
period following (or prior to and in
connection with) a change in control of the
Company:
A. Executive will be entitled to receive:
1) pro-rata target bonus for the
year in which termination occurs
2) 2.99x annual salary (at higher
of level upon termination event
or immediately prior to change in
control)
3) 2.99x higher of target bonus or
three-year average annual bonus
4) 3 years medical benefits
5) 3 additional years of service for
supplemental retirement plan
6) outplacement services (up to
$20,000)
B. Any applicable performance-based vesting
goals with respect to stock-based awards
granted to Executive will be deemed
100% met and all stock-based awards will
vest in full, in each case immediately
prior to the occurrence of the change in
control.
C. Executive will not be subject to any
non-compete.
D. Executive will be entitled to a gross-up
for excise tax on excess parachute
payments, subject to a 10% "cut-back"
(i.e., change in control payments will be
reduced below the 280G safe harbor if the
total parachute value of CIC payments are
less than 10% in excess of the 280G safe
harbor).
E. Executive will have no duty to seek or
gain new employment after termination,
and no mitigation (other than for health
and welfare benefits from new employer)
will apply.
F. Company will be obligated to reimburse
Executive for any legal fees incurred in
connection with contesting Executive's
rights under the agreement, subject to
reimbursement in the case of a bad faith
claim.
G. Rights under the Company's relocation
policy will become irrevocable.
H. The Company and Universal Computer
System Holding, Inc. ("UCS") have
acknowledged in writing that the
completion of the proposed merger between
the Company and UCS will constitute good
reason under Executive's amended and
restated employment agreement.
