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EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement") is entered into
effective January 11, 2000 by and between Envision Development Corporation,
("Company"), and Xxxxxxx X. Patch ("Executive").
FACTUAL BACKGROUND
The Company wishes to employ Executive as its President / Chief
Operating Officer and Executive wishes to be employed by Company in such
capacity upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the receipt and sufficiency of which is hereby acknowledged
and accepted, the Company and the Executive hereby agree as follows:
AGREEMENT
1. EMPLOYMENT AND DUTIES. The Company employs Executive as its
President / Chief Operating Officer. In that capacity, Executive shall discharge
such responsibilities as are commensurate with such office and position
including without limitation by directing all technology, sales, service,
financial and human resources operations and administration of the Company. The
Company's CFO, CTO, Group Presidents of its business units, and vice presidents
of Human Resources, Sales, Marketing and Operations shall report to Executive,
and Executive shall in turn report to the Board of Directors. Executive shall
manage customers and employees, and develop and implement business strategies
and programs. Executive shall be responsible for achieving its Company's annual
revenues and EBITDA goals, as may be set from time to time by the Board of
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Directors. The Company's anticipates acquiring other operating business and
references in this paragraph to "the Company" include such future acquisitions.
The Executive's principal place of employment will be in the Boston area, unless
the Executive approves an alternate location.
2. EXCLUSIVE SERVICES. For so long as the Company employs Executive, he
shall, except as the Board may otherwise agree from time to time in writing,
devote substantially all of Executive's business time and attention to the
performance of Executive's duties hereunder, faithfully serve the Company,
conform to and comply with the lawful and good faith directions and instructions
given to Executive by the Company, and use Executive's best efforts to promote,
serve and further the interests of the Company.
3. NO OTHER EMPLOYMENT AND NO CONFLICTS OF INTEREST. For so long as the
Company employs Executive he shall not, directly or indirectly, render services
to any other person or organization for which he receives compensation (except,
at the direction of the Board) or otherwise engage in activities that would
interfere significantly with Executive's faithful performance of Executive's
duties hereunder. Executive may perform inconsequential services with nominal
compensation therefore in connection with the management of Executive's and
Executive's family's personal investments, provided that such activity does not
contravene the provisions of Sections 1 and 2.
4. TRAVEL AND OTHER BUSINESS RELATED EXPENSES REIMBURSEMENTS. The
Company shall reimburse Executive for all reasonable travel and other
business-related expenses Executive incurs fulfilling Executive's duties
hereunder.
5. TERM. Executive's employment hereunder commenced on January 11, 2000
(the "Commencement Date") and will continue for a term of four (4) years
("Initial Term") or until such earlier date as Executive's employment shall be
terminated pursuant to Section 7 (the "Termination Date"). This Agreement may be
extended by mutual consent at any time.
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6. COMPENSATION. For the services to be rendered hereunder, the Company
shall provide the following compensation to Executive:
(a) BASE SALARY. The Company shall pay Executive an initial
base salary of Two Hundred Thousand Dollars ($200,000) per annum in accordance
with its customary payroll practices. Such base salary shall be subject to
annual review and increase by the Board of Directors or a compensation committee
thereof.
(b) BONUS. Executive shall have the right to earn up to 100%
of Executive's Base Salary as an annual performance bonus, based on such
criteria as may be established in advance by the Board of Directors. At the
discretion of the Board of Directors, the form of payment for the annual
performance bonus may be EDV stock or option, cash, or a combination of the two.
(c) CAR ALLOWANCE. Executive shall receive a monthly car
allowance in an amount mutually agreeable.
(d) STOCK OPTIONS. Effective on the Commencement Date, the
Company hereby grants Executive Stock Options to purchase 400,000 shares of the
Company's common stock at a price of $22.00/share which is the fair market value
of such shares as of the Effective Date. The first 100,000 of such options shall
vest on January 11, 2001, and the remaining 300,000 shall vest at the rate of
25,000 per calendar quarter beginning with the quarter that ends on March 31,
2001, until the options are fully vested on December 31, 2003. The Option
Agreement shall contain such other provisions as are Customary for such
agreements. Notwithstanding the foregoing, all of Executive's options shall also
vest upon the occurrence of any of the following:
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(i) Termination of Executive's employment with the
Company as a result of death or disability as defined in Section 7(a), 7(b) or
termination without cause as defined in Section 7(d) below; or
(ii) The Company is acquired and within one year
following the closing of the acquisition, Executive terminates Executive's
employment with the Company. For purposes of this subparagraph (ii), the Board
of Directors shall determine in its discretion whether an event triggering such
acceleration and vesting of Executive's options has occurred.
(iii) In the event Executive is terminated
without cause the provisions of 7(d) shall apply.
In the event Executive is terminated for cause as set forth in
Section 7(c), or in the event Executive voluntarily terminates Executive's
employment for any reason other than an acquisition as set forth in Section
6(c)(ii), the Executive's right to vest in the stock options shall terminate at
the end of the vesting quarter in which the Executive was terminated, and no
further vesting shall occur.
(e) SIGNING BONUS. As further consideration for Executive's
accepting this appointment, the Company agrees to pay Executive promptly
following the commencement of Executive's employment $100,000 net of all Federal
and State withholding taxes and other employment taxes which shall be paid for
by the Company (i.e. grossed-up for taxes).
(f) VACATION. Executive shall be entitled to four (4) weeks
vacation per year.
(g) EMPLOYEE BENEFITS. The Company shall provide at no cost to
the Executive such insurance, pension and other benefits as it provides to its
other Executive employees which shall include, but not be limited to health,
long-term disability, short-term disability, dental, and life insurance and
employee savings or 401(k) plans.
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(h) REGISTRATION RIGHTS. Executive shall have reasonable and
customary piggy back registration rights with respect to any shares granted to
Executive (including shares received upon exercise of stock options) if such
shares cannot otherwise be sold without registration.
7. TERMINATION. Executive's employment may be terminated in any one of
the following ways, prior to the expiration of the Initial Term:
(a) DEATH. The death of Executive shall immediately terminate
this Agreement. Any rights or entitlements pursuant to this Agreement earned
prior to the death of Executive will inure to the benefit of Executive's estate.
All unvested options shall vest upon death and inure to the benefit of the
Executive's estate as defined in 6(c)(i.) above.
(b) DISABILITY. If, as a result of incapacity due to physical
or mental illness or injury, Executive shall have been unable to perform the
essential functions of Executive's position on a full-time basis for a period at
least six (6) months with a reasonable accommodation, then thirty (30) days
after written notice to the Executive (which notice may be given before or after
the end of the aforementioned period, but which shall not be effective earlier
than the last day of the applicable period), the Company may terminate
Executive's employment hereunder if Executive is unable to resume Executive's
full-time duties at the conclusion of such notice period. In the event of a
termination pursuant to this Section 7(b), all payments to Executive due
pursuant to this Agreement shall cease effective the last day of Executive's
employment, but all benefits (as defined in 6(f) shall continue for the greater
of one year following termination for disability and/or the terms of this
agreement. The appointment by the Company of an interim executive to assume the
responsibilities of the Executive while the Executive is incapacitated shall not
constitute a breach of Section 1 of this Agreement.
(c) TERMINATION BY THE EMPLOYER FOR CAUSE. The Company may
terminate Executive's employment for Cause immediately upon written notice.
Termination for cause is defined as: (i) Executive's material breach of this
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Agreement or of any Proprietary Information Agreement (however denominated)
between the Company and the Executive; (ii) Executive's gross negligence in the
performance of Executive's duties hereunder, intentional failure to perform such
duties, or refusal to abide by or comply with the reasonable directives of the
Chairman, the Board, or the Company's policies and procedures; (iii) Executive's
dishonesty, fraud or misconduct with respect to the business or affairs of
Company or which in the reasonable judgment of the Company materially and
adversely affects the operation or reputation of Company; (iv) Executive's
conviction of a felony or a crime involving moral turpitude; or (v) Executive's
abuse of alcohol or drugs (legal or illegal) that in the Company's reasonable
judgment materially impairs Executive's ability to perform Executive's duties
hereunder.
In the event Executive is terminated for cause pursuant to this Section
7(c), all payments and benefits, including the future vesting of stock options,
to Executive due pursuant to this Agreement, shall cease in accordance with
paragraph 6(c)(ii).
(d) TERMINATION BY COMPANY WITHOUT CAUSE. The Company may
terminate Executive's employment without Cause immediately upon written notice
to Executive. If terminated within the first year of employment, the Company
shall pay Executive severance in a lump sum amount equal to Executive's then
base annual salary plus full annual bonus as specified in 6(b) above, and all
remaining unvested stock options shall vest immediately. Otherwise if Executive
is terminated without cause anytime after one (1) year, Executive is entitled to
one month severance of Executive's then annual salary and all remaining unvested
stock options shall vest immediately, provided Executive executes a full release
of all claims against the Company. Such severance pay shall not be subject to
reduction for any reason. The employee by accepting severance pay agrees to a
strict non-solicitation of EDV employees and/or customers.
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(e) EXECUTIVE'S RESIGNATION. Executive may voluntarily
terminate Executive's employment upon not less than thirty (30) days' prior
written notice. Upon any such resignation, except to the extent such resignation
occurs in the context of an acquisition as defined by Section 6(c)(ii), all
payments and benefits due pursuant to this Agreement for future services shall
cease effective the last day of Executive's employment and all earned amounts
shall be paid in full. In the event Executive voluntarily terminates within one
year from the date of an acquisition as defined in 6(c)(ii) above, Executive
shall still be entitled to the same benefits as those defined in paragraph 7(d)
(Termination Without Cause).
8. CONFIDENTIALITY.
(a) Executive understands that during the course of
Executive's employment with the Company he will receive and have access to
materials and information in which the Company and its affiliated entities have,
or may in the future acquire, exclusive and proprietary rights (the
"Confidential Information"). Such Confidential Information may include, but is
not limited to, the Company's and its affiliated entities' trade secrets,
research, marketing data, know-how, technical data, business strategies,
computer software, financial information, client lists, client information, this
Agreement and other personnel information. Executive hereby expressly and
unconditionally agrees that he will keep all Confidential Information strictly
confidential and will not disclose, use, or allow anyone else to use, directly
or indirectly, any Confidential Information in any form except for the express
purpose of performing the tasks for which Executive is engaged pursuant to this
Agreement. The foregoing applies to all Confidential Information unless such
information has become publicly known or made generally available through no
wrongful act of Executive.
(b) FORMER EMPLOYER INFORMATION. Executive agrees that he will
not, during Executive's employment with the Company, improperly use or disclose
any proprietary information or trade secrets of any former employer or any other
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person or entity and that he will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) THIRD PARTY INFORMATION. Executive recognizes that the
Company has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Company's part
to maintain the confidentiality of such information and to use it only for
certain limited purposes. The Executive agrees to hold all such confidential and
proprietary information in the strictest confidence and not to disclose it to
any person, or entity or to use it except as necessary in carrying out
Executive's work for the Company consistent with the Company's agreement with
such third party.
(d) SURVIVAL. The provisions of this Section 8 shall survive
the termination of the remainder of this Agreement.
9. EFFECT OF TERMINATION. Executive agrees that upon termination of
Executive's employment, he will deliver to the Company (and will not keep in
Executive's possession, recreate or deliver to anyone else) any and all devices,
records, data, notes, reports, proposals, lists, correspondence, specifications,
materials, equipment and other documents or property or reproductions of any of
the aforementioned items developed or received by Executive pursuant to
Executive's employment with the Company or otherwise belonging to the Company,
its successors, assigns, or affiliates, except that Executive may retain
Executive personal files relating to Executive's service as a director of the
Company.
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10. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, as applicable
to contracts executed and performed entirely within and by residents of such
state.
(b) NO OTHER AGREEMENTS. This Agreement constitutes the entire
agreement between the parties relating to its subject matter, and supercedes all
prior agreements, proposals, representations and commitments, oral and
otherwise. This Agreement may only be amended by an instrument signed by an
authorized representative of the Company, and Executive. Any breach by a party
of the terms of any other agreement between them also constitutes a breach of
this Agreement.
(c) DISPUTES AND ATTORNEYS FEES. In the event any action or
proceeding, at law or in equity, is filed to enforce or interpret this
Agreement, the prevailing party in such action or proceeding will be entitled to
recover reasonable attorneys' fees and costs in addition to any other award of
the court or tribunal, as the case may be.
(d) NOTICE. Any communication among the parties hereto, and
any notices or communications herein provided to be made, shall be given or made
by personal delivery, telecopy, facsimile or overnight courier, or by mailing
the same by first class mail, postage prepaid, to the parties at the address
indicated below, or to such other address(es) as either party may in writing
hereafter provide in accordance with this Section 10(d). Notices will be deemed
to be received when personally delivered or transmitted by telecopy or
facsimile, one (1) day after the date of forwarding by overnight courier, or two
(2) business days after posting in the U.S. Mails, as the case may be.
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(e) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which, taken together, shall constitute one and the same
instrument. Signatures obtained via facsimile shall be acceptable as original
signatures.
(f) SAVINGS CLAUSE. In the event that any provision, or
provisions, of this Agreement should be declared invalid or unenforceable by any
court of law, the remaining terms and conditions set forth herein shall remain
in full force and effect.
(g) HEADINGS. The headings to paragraphs or sections of this
Agreement have been inserted for identification and ease of reference purposes
only and shall have no bearing whatsoever concerning the construction or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
below as of the date first written above.
EXECUTIVE: EMPLOYER:
ENVISION DEVELOPMENT CORP.
By
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Its:
/s/ XXXXXXX X. PATCH -----------------------------
-------------------------------- Address:
Xxxxxxx X. Patch
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Address:
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