ACTIVE LINK COMMUNICATIONS, INC.
FORM 10-KSB
EXHIBIT 10 (m)
EMPLOYMENT AGREEMENT
This Agreement effective this 15th day of May, 2001 between Mobility Concepts,
Inc. ("Company") and Xxxxxxx X. Xxxxx ("Employee").
WITNESSETH
Whereas, the Company desires to employ Employee as an executive officer of the
Company and he is willing to accept such employment and thereafter to perform
the services hereafter described, upon the terms and conditions hereinafter set
forth.
Now, therefore, it is agreed between the Company and Employee that:
1. Employment. The Company hereby employs Employee as Chief
Financial Officer for the period beginning on the date that he
reports to work at the Company's office in Naperville and
ending on December 31, 2002. This agreement shall be extended
for an additional year from that date each year unless either
party gives the other at least 30 days written notice of
termination.
2. Duties. During the period that Employee shall be an employee
of the Company as Chief Financial Officer, he shall have and
exercise such duties, powers, and authority as may be assigned
to him by the Chief Executive Officer. He shall report and be
responsible to the Board of Directors, the Chairman of the
Board, and the Chief Executive Officer. Employee agrees to
perform the duties enumerated in this paragraph and to serve
as an employee from the date of the commencement of his
employment.
3. Compensation.
(a) Base Salary. Employee's base salary shall initially
be $110,000.00 annually and shall be reviewed and
adjusted (upward only) from time to time by Company
in accordance with its salary and wage policies (the
"Base Salary"). In no event shall the Base Salary be
adjusted upward in an amount less than the current
year's CPI, multiplied by the Base Salary for the
immediately preceding year. Company shall pay
Employee his Base Salary in accordance with Company's
regular payroll practices, but not less frequently
than monthly.
(b) Bonus. During the first year (12 months) of
employment, Employee shall receive a bonus of
$40,000.00, to be paid in four equal quarterly
increments. In subsequent years Employee shall
receive a discretionary annual bonus based upon the
performance of Company, to be awarded at the sole
discretion of the Board of Directors of the Company.
Employee shall also participate in any incentive or
bonus plans established by the Company for the
officers and employees thereof in accordance with the
terms of those plans.
(c) Employee Benefits. During the Term, Employee and
Employee's family and dependents shall be entitled to
all such employment benefits as may, from time to
time, be made generally available to Company's senior
managers and their families and dependents, including
without limitation, retirement plans, medical health,
dental and other similar insurance, and vacation;
provided, however, that such benefits and
arrangements are made available to such senior
managers in the Company's sole discretion and are
subject to Employee's and Employee's family's
qualification for
benefits under each such plan. Nothing in this
Agreement establishes any right of Employee or
Employee's family to the availability or continuance
of any such plan or arrangement, each of which may be
terminated, altered, amended or modified at any time
on a non-discriminatory basis, in Company's sole
discretion. In addition to those employment benefits
generally available to Company's executives, Company
shall provide, or reimburse Employee for (i)
long-term disability insurance equivalent to 70% of
Employee's annual compensation, and (ii) a car
allowance equal to $600 per month.
(d) Waiver of Waiting Periods. The Company will waive any
waiting period for participation in the 401(k)
Savings and Retirement Plan and the health insurance
plan.
(e) Business Related Expenses. Upon presentation of
vouchers and similar receipts, Employee shall be
entitled to receive prompt reimbursement in
accordance with the policies and procedures of
Company maintained from time to time for all
reasonable business expenses actually incurred in the
performance of his duties hereunder.
(f) Vacation. Employee shall be entitled to three (3)
weeks paid vacation for each fiscal year (prorated
for any partial year) during the duration of the
Agreement at times selected by Employee. Earned
vacation will increase at a rate of one day per year
of service, with a maximum annual vacation allotment
of four (4) weeks paid vacation.
(g) Additional Term Life Insurance. The Company will,
during the term of this Agreement, maintain at its
expense, term insurance upon the life of Employee in
the face amount of $500,000, payable to such
beneficiary as Employee shall designate from time to
time in writing to the Company and, in the absence of
such designation, to his estate. Such insurance shall
be in addition to such group term insurance as the
Company maintains for the benefit of salaried
employees generally of the rank and status of
Employee.
4. Termination. Employee's employment with Company may be terminated only
under the circumstances described in Sections 4(a) through 4(g):
(a) Death. Employee's employment hereunder will automatically
terminate upon his death.
(b) Disability. If Employee is Disabled for any continuous one
hundred eighty (180) days during any twelve (12) continuous
month period, Company may terminate Employee's employment with
Company. For purposes of the Agreement, Employee shall be
deemed to be "Disabled" if he has a physical or mental
disability that renders him incapable, after reasonable
accommodation, of performing his duties under this Agreement.
In the event of a dispute as to whether Employee is Disabled,
Company may refer the same to a licensed practicing physician
mutually agreed to by Employee and Company, and Employee
agrees to submit to such reasonable tests and examination as
such physician shall deem appropriate. The determination of
said licensed practicing physician shall be determinative.
(c) Cause. Company may terminate Employee's employment
hereunder at any time for Cause. For purposes of this
Agreement, the term "Cause" shall mean: (i) the perpetration
by Employee of a fraud or crime against Company, or any
affiliate thereof including any entity controlled by or under
common control with Company (collectively, the "Company"), or
(ii) Employee's conviction of a crime involving moral
turpitude.
(d) Termination by Company for Good Reason. Company may
terminate Employee's employment hereunder at any time after
the expiration of the first Term of the Agreement for Good
Reason. For purposes hereof, "Good Reason" means:
(i) the material failure by Employee to perform his
duties hereunder (other than any such failure
resulting from Employee's illness or incapacity) that
is not cured within thirty (30) days after Employee's
receipt of a Notice of Termination relating to such
failure; or
(ii) insubordination, disloyalty to the Company or
disparagement of the Company by Employee which, in
any such case(s), individually or collectively,
materially and adversely affects the business or
reputation of the Company, and that is not cured
within thirty (30) day after Employee's receipt of a
Notice of Termination relating to such failure
(e) Termination by Employee Not for Good Reason. Employee may
terminate his employment hereunder at any time for any reason
by giving Company prior written Notice of Termination, which
Notice of Termination shall be effective not less than thirty
(30) days after it is given to Company, provided that nothing
in this Agreement shall require Employee to specify a reason
for any such termination.
(f) Mutual Agreement. This Agreement may be terminated at any time
by the mutual agreement of the parties. Any termination of
Employee's employment by mutual agreement of the parties must
be set forth in a written agreement signed by Employee and a
member of the Board of Directors of Company.
(g) Notice of Termination. Any termination of Employee's
employment by Company or Employee (other than a termination
pursuant to mutual agreement or death) must be communicated by
a written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" means a
dated notice which indicates the specific termination
provision in this Agreement relied on and which sets forth in
reasonable detail the facts and circumstances, if any, claimed
to provide a basis for termination of Employee's employment
under the provision so indicated.
(h) Date of Termination. "Date of Termination" means the last day
Employee is employed by Company, provided that Employee's
employment is terminated in accordance with the foregoing
provisions of this Section 4.
5. Rights Upon Termination.
(a) In the event of Employee's termination pursuant to Section
4(b), 4(c), 4(d), 4(f) or 4(g), Employee shall be entitled to
a lump sum payment (payable no later than fourteen (14) days
after the Date of Termination) for any unused vacation days
and any other accrued benefits to which Employee is entitled,
as determined in accordance with Company policy as in effect
from time to time. In addition, with the exception of
termination pursuant to Section 4(e), Employee shall be
entitled to continued participation and coverage in the
Company's benefit programs as defined in Sections 3(c) and
(g), including medical health, dental, short-term and
long-term disability and other similar insurance, for a period
of one (1) year.
(b) In the event of Employee's termination pursuant Section 4(b),
4(d), 4(f) or 4(g) of this Agreement, Employee shall also be
entitled to the following severance benefits for the period of
one (1) year (the "Severance Period"): (i) to receive salary
continuation, paid in accordance with Company's regular
payroll practices, but not less frequently than monthly, (ii)
to receive payment of a pro-rated bonus through the term of
the Severance Period, (iii) outplacement services equivalent
to one month's salary, (iv) continuation of the automobile
allowance then in effect, (v) continued participation in the
Company's 401(k) Savings and Retirement Plan, including
company matching, to be considered fully vested at the
expiration of the Severance Period.
6. Restrictive Covenant. During the term of this agreement, Employee shall
devote his best efforts and full time to advance the interests of the
Company and to perform his duties hereunder, and during such time
Employee shall not directly or indirectly, alone or as a member of a
partnership, or as an officer, director, or shareholder of a
corporation, be engaged in or concerned with any other commercial
duties or pursuits which are in any manner competitive with the
Company.
7. Confidentiality. At all times, both before and after termination of his
employment, Employee shall keep and retain in confidence and shall not
disclose to any persons, firm, or corporation (except with the written
consent of the Company first obtained) any of the proprietary,
confidential, or secret information or trade secrets of the Company.
8. Reorganization. If the Company shall at any time be merged or
consolidated into or with any other corporation or entity, the
provisions of this agreement shall survive any such transaction and
shall be binding on and inure to the benefit of the corporation
resulting from such merger or consolidation or the corporation to which
such assets will be transferred (and this provision shall apply in the
event of any subsequent merger, consolidation, or transfer), and the
Company, upon the occasion of any of the above-described transactions,
shall include in the appropriate agreements the obligation that the
payments herein agreed to be paid to or for the benefit of Employee,
his beneficiaries or estate, shall be paid, and that the provisions of
this paragraph be performed. In the event that Employee terminates this
Agreement pursuant to Section 4(e) within two (2) years of a 40% or
more change in control of the Company, Employee shall be entitled to
receive severance benefits as set forth in Section 5(a) and (b). For
purposes of this Agreement, a "Change in Control" shall not include any
acquisition of any part of the Company by Active Link.
9. Indemnification. The Company shall indemnify Employee if Employee was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (including an action by
the Company), whether civil, criminal, administrative, or
investigative, and whether formal or informal, by reason of (or, in the
case of an action by the Company, to procure a judgment in the
Company's favor by reason of) the fact that Employee is or was a
director, officer, employee, executive or agent of the Company, or, is
or was serving at the request of the Company as a director, officer,
partner, trustee, executive, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other
enterprise, whether for profit or not-for-profit, against expenses,
including attorneys' fees, judgments, penalties, fines (criminal or
civil) and amounts paid in settlement actually and reasonably incurred
by Employee in connection with such action, suit or proceeding, to the
fullest extent and in the manner permitted by Illinois law, regardless
of any indemnification or similar provision in the By-laws or Articles
of Incorporation of the Company. Expenses incurred by Employee in
defending any threatened or pending action, suit or proceeding shall be
paid by the Company in advance of the final disposition of any such
action, suit or proceeding, upon receipt of an undertaking by or on
behalf of Employee to repay such amount, in the event it is ultimately
determined that Employee is not entitled to be indemnified by the
Company in accordance with this Agreement.
10. Arbitration. In the event of any difference of opinion or dispute
between Employee and the Company with respect to the construction or
interpretation of this agreement or the alleged breach thereof which
cannot be settled amicably by agreement of the parties, then such
dispute shall be submitted to and determined by arbitration by a single
arbitrator in Naperville, Illinois, in accordance with the rules, then
obtaining, of the AMERICAN ARBITRATION ASSOCIATION, and judgment upon
the award rendered shall be final, binding, and conclusive upon the
parties and may be entered in the highest court, state or federal,
having jurisdiction.
11. Severability. In the event that any provisions of this Agreement are
found or held to be invalid or unenforceable, the remaining provisions
of the Agreement shall nevertheless continue to be valid and
enforceable as though the invalid and unenforceable parts had not been
included herein and such determination shall not bar or affect the
Company's or Employee's right to obtain relief based on the remaining
provisions of this Agreement. Each provision of this Agreement, for
this purpose, is severable and independent of every other provision.
12. Applicable Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Illinois.
13. Integration. This Agreement constitutes the complete agreement between
the parties concerning the matters referred to herein. The parties
acknowledge that no statement, promise or representation has induced
them to sign this Agreement other than those contained herein. No
amendment or modification of this Agreement shall be effective unless
it is in writing and signed by Employee and a member of the Board of
Directors of Company.
14. Headings and Capitalized Terms. The headings contained in this
Agreement are inserted for convenience only and are not to be
considered in construction of the provisions herein. Any and all
capitalized terms used herein and not otherwise defined herein, shall
have the meaning set forth in the Merger Agreement, as it may be
amended from time to time.
15. Binding Effect. This Agreement shall survive a change of control or
sale of Company and shall be binding upon and inure to the benefit of,
and shall be enforceable by and against, Company and its successors and
assigns, and Employee and his heirs, beneficiaries and legal
representatives. It is agreed that Employee may not delegate or assign
his rights and obligations under this Agreement.
IN WITNESS WHEREOF, the Company and Employee have signed this agreement as of
the date and year first set forth above.
Mobility Concepts, Inc.
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By Xxxxxxx X. Xxxx
ATTEST:
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Company Secretary
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By Xxxxxxx X. Xxxxx
