EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.5
This
Executive Employment Agreement (this “Agreement”) is made as of this 5th day of
March, 2007, between ACCOUNTABILITIES, INC., a Delaware
Corporation (the “Company”), and XXXXXXX XXXXXXXXXX (the
“Executive”).
RECITALS
It
is the
desire of the Company to retain the services of the Executive and to recognize
the Executive’s contribution to the Company.
The
Company and the Executive wish to set forth certain terms and conditions of
the
Executive’s employment.
NOW,
THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as
follows:
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1.
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Positions
and Duties.
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The
Executive shall serve as Chief Financial
Officer. The Executive agrees to devote substantially
all of his working time and efforts to the business and affairs of the
Company. The Executive further agrees that he shall not undertake any
outside activities which create a conflict of interest with his duties to the
Company, or which, in the judgment of the Board of Directors of the Company,
interfere with the performance of the Executive’s duties to the
Company.
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2.
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Term.
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This
agreement shall commence as of the date stated above and shall continue until
terminated according to the provisions of this agreement.
3. Compensation
and Benefits.
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(a)
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Salary
and Bonuses. The Executive’s base salary shall be $150,000
per annum for the first 90 days, then increasing to $165,000 per
annum
after the 91st
day.
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(b)
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Stock
Compensation. The Executive shall be granted 60,000 shares
of common stock of the Company. Said stock shall vest over a
three year period at the rate of 20,000 per year for three
years. The Executive must be employed by the Company to receive
the stock.
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(c)
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Profit
Sharing. The Executive shall be entitled to 1.5% of the
fiscal year Net Profit, limited to 100% of base
salary.
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(d)
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Expenses. During
the term of the Executive’s employment, the Executive shall be entitled to
receive reimbursement for all reasonable and customary expenses incurred
by the Executive in performing services for the Company in accordance
with
the Company’s reimbursement policies as they may be in effect from time to
time. The parties to this Agreement recognize that such
policies may be amended and/or terminated by the Company at any
time. The Executive will also receive a $500.00 per month car
allowance, and reimbursement for cell phone
expenses.
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(e)
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Health
Benefits. The Company shall pay the full premium amount for
the Executive and his family for medical and dental
coverage.
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(f)
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401K. The
Executive shall be entitled to the same 401K program, if available,
as may
be in effect from time to time for the other
executives.
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(g)
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Life
Insurance. The Executive shall be entitled, if available,
to the same Life Insurance program as may be in effect from time
to time
for the other executives.
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(h)
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Vacation. The
Executive shall be entitled to three (3) weeks of paid vacation
annually. However, all vacation must be used in the present
year and cannot be carried over into the following
year.
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(i)
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Other
Benefits. The Executive shall be entitled to participate in
all employee benefit plans, programs and arrangements of the Company
(including, without limitation, stock option plans or agreements
and
insurance, retirement and vacation plans, programs and arrangements),
in
accordance with the terms of such plans, programs or arrangements
in
effect during the period of the Executive’s employment. The
parties to this Agreement recognize that the Company may terminate
or
modify such plans, programs or arrangements at any time. In addition,
the
Executive shall abide by and be entitled to the same holiday and
sick pay
policy as is in effect for the general staff of the
Company.
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4. Grounds
for Termination.
The
Executive’s employment may be terminated on any of the following
grounds:
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(a)
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Without
Cause. The Executive or the Company may terminate the
Executive’s employment at any time, without cause, by giving the other
party to this Agreement at least 30 days advance written notice of
such
termination.
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(b)
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Death. The
Executive’s employment hereunder shall terminate upon his
death.
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(c)
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Disability. If,
as a result of the Executive’s incapacity due to physical or mental
illness, the Executive shall have been unable to perform the essential
functions of his position, even with reasonable accommodation that
does
not impose an undue hardship on the Company, on a full-time basis
for the
entire period of six (6) consecutive months, and within thirty (30)
days
after written notice of
termination
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is
given
(which may occur before or after the end of such six month period), shall not
have returned to the performance of his duties hereunder on a full-time basis
(a
“disability”), the Company may terminate the Executive’s employment
hereunder.
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(d)
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Cause. The
Company or the Executive may terminate the Executive’s employment
hereunder for cause. For purposes of this Agreement, “cause”
shall mean that the Company, acting in good faith based upon the
information then known to the Company, determines that the Executive
has
engaged in or committed: willful misconduct; theft, fraud or other
illegal
conduct; refusal or unwillingness to substantially perform his duties
(other than such failure resulting from the Executive’s disability) after
written demand for substantial performance is delivered by the Company
that specifically identifies that manner in which the Company believes
the
Executive has not substantially performed his duties; insubordination;
any
willful act that is likely to have the effect of injuring the reputation
or business of the Company; violation of any fiduciary duty; violation
of
the Executive’s duty of loyalty to the Company; or a breach of any term of
this Agreement. For purposes of this Section 4(d), no act, or
failure to act, on the Executive’s part shall be considered willful unless
done or omitted to be done, by his not in good faith and without
reasonable belief that his action or omission was in the best interest
of
the Company.
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5. Payments
upon Termination.
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(a)
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Without
Cause or With Good Reason. In the event that the
Executive’s employment is terminated by the Company for any reason other
than death, disability or cause as defined in Section 3(b), (c) and
(d) of
this Agreement, or in the event that the Executive terminates his
employment hereunder with Good Reason, the Executive shall be entitled
to
receive severance pay. Such severance shall be one month’s
salary. The Company will also pay to the Executive any earned but
unused
vacation time on the date of the notice of termination. In
addition, the Company will maintain insurance and benefits for the
Executive during the Severance
Period
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(b)
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Release
of all Claims. The Executive understands and agrees that
the Company’s obligation to pay the Executive severance pay under this
Agreement is subject to the Executive’s execution of a valid written
waiver and release of all claims which the Executive may have against
the
Company and/or its successors in a form acceptable to the Company
in its
sole and absolute discretion.
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(c)
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Death,
Disability or Cause. In the event that the Executive’s
employment is terminated due to death, disability or cause, the Company
shall not be obligated to pay the Executive any amount other than
earned
unused vacation, reimbursement for business expenses incurred prior
to his
termination in compliance with the Company’s reimbursement policies, and
any unpaid salary for days worked prior to the termination and accrued
but
unpaid profit sharing amounts.
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6.
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Successors/Material
Change in Ownership; Binding
Agreement.
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(a)
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In
the event that there is a material change in ownership of the Company,
whether direct or indirect, by purchase, merger, consolidation or
otherwise, the Company will use it’s best efforts to secure the assumption
of this Agreement by the successor ownership in the same manner and
to the
same extent that the Company would be required to perform it if no
such
succession had taken place. Failure of the Company to obtain
such assumption and agreement prior to the effectiveness of any such
succession shall entitle the Executive to compensation from the Company
in
the same amount and on the same terms as he would be entitled to
hereunder
if he terminated his employment for Good Reason, except that for
purposes
of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the date of termination. As
used in this Agreement, “Company” shall mean the Company as herein before
defined and any successor to its business and/or assets as aforesaid
which
executes and delivers the agreement provided for in this Section
6 or
which otherwise becomes bound by all the terms and provisions of
this
Agreement by operation of law.
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(b)
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This
Agreement and all rights of the Executive hereunder shall inure to
the
benefit of and be enforceable by the Executive’s personal or legal
representatives, executors, administrator, successors, heirs,
distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to him hereunder if
he had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
Executive’s devisee, legatee, or other designee or, if there be no such
designee, to the Executive’s
estate.
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7. Notices.
For
the
purposes of this Agreement, notices, demands and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or (unless otherwise specified) mailed by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed as follows:
If
to the Executive:
Xx.
Xxxxxxx XxxXxxxxxx
0
Xxxxxx Xxxx
Xxxxxxxxxx,
Xxx Xxxxxx
00000
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If
to the
Company:
Accountabilities,
Inc.
000
Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx
00000
Attn: Xxxxx
Xxxxxxx,
President
or
to
such other address as either party may have furnished to the other in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
8. Anti-Solicitation.
The
Executive promises and agrees that, during the period of his employment by
the
Company and for a period of two (2) years thereafter, regardless of reason
for
termination, he will not influence or attempt to influence customers of the
Company or any of its present or future subsidiaries or affiliates, either
directly or indirectly, to divert their business to any individual, partnership,
firm, corporation or other entity then in competition with the business of
the
Company, or any subsidiary or affiliate of the Company within a 75 mile radius
of any existing Accountabilities office or those of it’s subsidiaries or
affiliates.
9. Soliciting
Employees.
The
Executive promises and agrees that during the term of his employment and for
a
period of two (2) years thereafter, regardless of reason for termination, he
will not, directly or indirectly solicit any Company employees to work for
any
other business, individual, partnership, firm, corporation, or
entity.
10. Confidential
Information.
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(a)
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The
Executive, in the performance of his duties on behalf of the Company,
shall have access to, receive and be entrusted with confidential
information, including but not limited to systems technology, field
operations, reimbursement, development, marketing, organizational,
financial, management, administrative, clinical, customer, distribution
and sales information, data, specifications and processes presently
owned
or at any time in the future developed, by the Company or its agents
or
consultants, or used presently or at any time in the future in the
course
of its business that is not otherwise part of the public domain
(collectively, the “Confidential Material”). All such
Confidential Material is considered secret and will be available
to the
Executive in confidence. Except in the performance of duties on
behalf of the Company, the Executive shall not, directly or indirectly
for
any reason whatsoever, disclose or use any such Confidential Material,
unless such Confidential Material ceases (through no fault of the
Executive’s) to be confidential because it has become part of the public
domain. All records (including customer, client and employee
records and lists),
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files,
drawings, documents, notes, disks, diskettes, tapes, magnetic media,
photographs, equipment and other tangible items, wherever located, relating
in
any way to the Confidential Material or otherwise to the Company’s business,
which the Executive prepares, uses or encounters during the course of his
employment, shall be and remain the Company’s sole and exclusive property and
shall be included in the Confidential Material. Upon termination of
this Agreement by any means, or whenever requested by the Company, the Executive
shall promptly deliver to the Company any and all of the Confidential Material,
not previously delivered to the Company, that may be or at any previous time
has
been in the Executive’s possession or under the Executive’s
Control.
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(b)
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The
Executive hereby acknowledges that the sale or unauthorized use or
disclosure of any of the Company’s Confidential Material by any means
whatsoever and at any time before, during or after the Executive’s
employment with the Company shall constitute unfair
competition. The Executive agrees he shall not engage in unfair
competition either during the time employed by the Company or any
time
thereafter.
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11. Modification
and Waiver.
No
provisions of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing, signed by the
Executive and the President of the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect not the
subject matter hereof have been made by ether party, which are not set forth
expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws
of
the State of New Jersey, without regard to its conflicts of law
principles.
12. Validity.
The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
13. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together will constitute one and
the
same instrument.
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14.
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Indemnification.
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The
Company hereby agrees to indemnify and hold harmless the Executive for any
and
all disputes that may arise as a result of the lawful exercise of the
Executive’s duties. This clause shall not apply to disputes between
the Company and the Executive.
15. Entire
Agreement.
This
Agreement sets forth the entire agreement of the parties hereto in respect
of
the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto; and any prior agreement of the parties hereto in respect
of
the subject matter contained herein is hereby terminated and
canceled.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
| EXECUTIVE | ACCOUNTABILITIES, INC. | |||
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/s/
Xxxxxxx XxxXxxxxxx
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/s/
Xxxxx Xxxxxxx
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Name:
Xxxxxxx XxxXxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title:
President
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