EXHIBIT 10.4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), entered into as of January 1,
2003, between EVCI Career Colleges Incorporated a Delaware corporation ("EVCI"),
and Xxxxxxx Xxxxxxxxxx ("Executive").
In consideration of the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT; DUTIES.
1.1 EVCI hereby employs Executive as its Chief Financial Officer. In
such capacity, Executive shall report directly to EVCI's Chief Executive Officer
and Board of Directors ("Board"). Executive agrees to serve on EVCI's Board if
elected and also to serve on the Board of Directors ("Interboro's Board") and as
Chief Financial Officer of Interboro Institute, Inc. ("Interboro"), if elected
by Interboro's Board.
1.2 Executive agrees to perform and discharge such duties and
responsibilities as are prescribed from time-to-time by the Board (and by
Interboro's Board if elected Chief Financial Officer of Interboro) and as are
appropriate for chief financial officers of corporations with the financial,
personnel and other resources that are similar to that of EVCI and Interboro.
Executive shall devote his full business time to, and shall use his best efforts
in, the performance of such duties and responsibilities.
2. COMPENSATION.
For his services pursuant to this Agreement, EVCI will pay Executive a
salary at the annual rate of $175,000 ("Salary").
3. EMPLOYMENT TERM. The term of Executive's employment (the "Employment
Term") will commence as of the date first written above and, unless sooner
terminated as provided in Section 5, will end on December 31, 2005.
4. BENEFITS, PAYMENTS AND WITHHOLDING.
4.1 Executive will be entitled to vacation, holidays and sick days in
accordance with EVCI's policy, during which Executive will be entitled to the
full compensation and Benefits (as defined in Section 4.2) otherwise payable
hereunder.
4.2 Executive may participate, on the same basis and subject to the
same qualifications as other executive personnel of EVCI, in any pension, profit
sharing, life insurance, health insurance, hospitalization, dental, drug
prescription, disability, accidental death or dismemberment and other benefit
plans and policies EVCI provides with respect to its executive personnel
(collectively, the "Benefits").
4.3 EVCI will pay or promptly reimburse Executive, in accordance with
EVCI's normal policies and procedures for its executive personnel, for all
allowances and expenses provided for hereunder and for all reasonable
out-of-pocket business, entertainment and travel expenses incurred by Executive
in the performance of his duties hereunder.
4.4 EVCI will pay the Salary at the semimonthly rate of $7,291.66 and
may withhold from the Salary, the Benefits and any other compensation provided
to Executive hereunder, all Federal, state and local income, employment and
other taxes, as and in such amounts as may be required to be withheld under
applicable law.
5. TERMINATION AND SEVERANCE BENEFITS.
5.1 TERMINATION BY EVCI AND RESIGNATION BY EXECUTIVE. EVCI's Chief
Executive Officer or the Board may terminate Executive's employment with EVCI,
with or without Cause (as defined in Section 5.5). Termination with Cause shall
be effective immediately and termination without Cause shall be effective upon
30 days prior written notice to Executive. Executive may voluntarily resign his
employment with EVCI, with Good Reason (as defined in Section 5.5), upon 30 days
prior written notice to EVCI.
5.2 COMPENSATION UPON TERMINATION WITHOUT CAUSE OR UPON RESIGNATION
WITH GOOD REASON. If EVCI's Chief Executive Officer or the Board terminates
Executive's employment hereunder for any reason other than Cause or Executive's
death or Permanent Disability (as defined in Section 5.5), or if Executive
voluntarily resigns his employment with EVCI with Good Reason (the effective
date of the first to occur of such termination or his resignation being the
"Termination Date"), then (a) Executive shall be entitled to receive (i) the
Salary and Benefits accrued prior to the Termination Date and (ii) payment or
reimbursement of any expenses, provided for under Section 4.3, that were
incurred by Executive prior to the Termination Date and (b) after the
Termination Date, EVCI will also continue (i) to pay the Salary, in equal
semimonthly payments, to Executive for the unexpired portion of the Employment
Term and (ii) continue for Executive and his spouse and dependent children the
health insurance coverage and medical and dental reimbursement referred to in
Section 4.2 for six months after the Termination Date. Executive shall be under
no duty to seek other employment following termination but any amounts earned by
him in connection with such other employment shall reduce and offset the amounts
otherwise owing hereunder.
5.3 COMPENSATION UPON RESIGNATION WITHOUT GOOD REASON OR UPON
TERMINATION FOR CAUSE. If Executive breaches this Agreement by voluntarily
resigning his employment with EVCI without Good Reason or Executive's employment
is terminated by EVCI's Chief Executive Officer or the Board for Cause, then
Executive shall only be entitled to receive, except as otherwise required by
law, the Salary and Benefits accrued prior to the effective date of the first to
occur of his resignation or such termination, and reimbursement of any expenses,
provided for under Section 4.3, that were incurred by Executive prior to the
effective date of his resignation or such termination of his employment. Nothing
in this Section 5.3 shall create any implication that EVCI is waiving any remedy
EVCI may have for breach by Executive of this Agreement.
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5.4 COMPENSATION UPON DEATH OR PERMANENT DISABILITY. If Executive dies
or suffers a Permanent Disability, then EVCI will (i) promptly pay Executive or
his estate, in one lump sum, three months' Salary and (ii) continue for
Executive's spouse and dependent children (if Executive has died) and for
Executive and his spouse and dependent children (if Executive suffers a
Permanent Disability), all of the Benefits that they were receiving at the time
of his death or Permanent Disability, for six months after Executive's death or
Permanent Disability.
5.5 DEFINITIONS.
"Cause." For purposes of this Agreement, EVCI shall have "Cause" to
terminate the Employment Term upon (i) the determination by EVCI's Chief
Executive Officer or the Board, in either of their sole discretions, that
Executive has not been performing his duties hereunder in an appropriate or
sufficiently competent manner (other than as a result of his incapacity due to
physical or mental incapacity) or (ii) Executive's conviction of a felony.
"Good Reason" means (i) a breach by EVCI of any of its material
agreements contained herein and the continuation of such breach for ten business
days after notice thereof is given to EVCI or (ii) as a result of action taken
by the Chief Executive Officer or the Board, the assignment to Executive of any
duties inconsistent with the Executive's status as the Chief Financial Officer
of EVCI or a substantial adverse alteration in the nature or status of
Executive's responsibilities. Good Reason does not include the death or
Permanent Disability of Executive.
"Permanent Disability" means the inability of Executive to perform his
duties hereunder, as a result of any physical or mental incapacity, for 30
consecutive days or 60 days during any twelve month period, as determined by the
Board.
6. COVENANTS NOT TO COMPETE.
6.1 Executive agrees that for 18 months following termination of his
employment with EVCI he will not, without EVCI's prior written approval, engage
in any business activities that are competitive with any of the business
activities then being conducted by EVCI within 75 miles of any college, school
or office operated by EVCI.
6.2 During the 18 months following termination of his employment with
EVCI, Executive shall not without the permission of EVCI, directly or
indirectly, hire any employee of EVCI, or solicit or induce, or authorize any
other person to solicit or induce, any employee of EVCI to leave such employ
during the period of such employee's employment with EVCI or within six-months
following such employee's termination of employment with EVCI.
6.3 Sections 6.1 and 6.2 shall not apply to a termination of
Executive's employment pursuant to Section 5.2.
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7. COVENANT REGARDING CONFIDENTIALITY. All confidential information about
the business and affairs of EVCI (including, without limitation, its secrets and
information about its services, methods, business plans, technology and
advertising programs and plans) constitutes "EVCI Confidential Information."
Executive acknowledges that he will have access to, and knowledge of, EVCI
Confidential Information, and that improper use or disclosure of EVCI
Confidential Information by Executive, whether during or after the termination
of his employment by EVCI, could cause serious injury to the business of EVCI.
Accordingly, Executive agrees that he will forever keep secret and inviolate all
EVCI Confidential Information which has or shall come into his possession and
that he will not use the same for his own private benefit or directly or
indirectly for the benefit of others, and that he will not discuss EVCI
Confidential Information with any other person or organization, all for so long
as EVCI Confidential Information is not generally known by, or accessible to,
the public.
8. GENERAL.
8.1 This Agreement will be construed, interpreted and governed by the
laws of the State of New York, without regard to the conflicts of law rules
thereof.
8.2 The provisions set forth in Sections 6 and 7 shall survive
termination of this Agreement. All reference to EVCI in Sections 6 and 7 include
EVCI's subsidiaries and other affiliates, if any.
8.3 This Agreement will extend to and be binding upon Executive, his
legal representatives, heirs and distributees, and upon EVCI, its successors and
assigns regardless of any change in the business structure of EVCI, be it
through spinoffs merger, sale of stock, sale of assets or any other transaction.
However, this Agreement is a personal services contract and, as such, Executive
may not assign any of his duties or obligations hereunder.
8.4 This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof. No waiver, modification or change of
any of the provisions of this Agreement will be valid unless in writing and
signed by both parties. Any and all prior agreements between the parties written
or oral relating to Executive's employment by EVCI are of no further force or
effect.
8.5 The waiver of any breach of any duty, term or condition of this
Agreement shall not be deemed to constitute a waiver of any preceding or
succeeding breach of the same or any other duty, term or condition of this
Agreement. If any provision of this Agreement is unenforceable in any
jurisdiction in accordance with its terms, the provision shall be enforceable to
the fullest extent permitted in that jurisdiction and shall continue to be
enforceable in accordance with its terms in any other jurisdiction.
8.6 All notices pursuant to this Agreement shall be in writing and
delivered personally receipt acknowledged (which shall include Federal Express,
Express Mail or similar service) or sent by certified mail, return receipt
requested, addressed to the parties hereto and shall be deemed given upon
receipt, if delivered personally, and three days after mailing, if mailed,
unless received earlier. Notices shall be addressed and sent to EVCI at its
principal executive office and to Executive at his home address as it appears in
EVCI's personnel records.
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8.7 The parties agree that, in the event of any breach or violation of
this Agreement, such breach of violation will result in immediate and
irreparable injury and harm to the innocent party, who shall be entitled to the
remedies of injunction and specific performance or either of such remedies, if
available, as well as all other legal or equitable remedies, if available, plus
reasonable attorneys fees and costs incurred in obtaining any such relief.
8.8 The Section headings contained in this Agreement are for
convenience of reference only and shall not be used in construing this
Agreement.
8.9 This Agreement may be executed in counterparts, each of which will
be deemed an original but all of which will together constitute one and the same
agreement.
IN WITNESS HEREOF, the parties have executed this Agreement as of the
date first above written.
EVCI CAREER COLLEGES INCORPORATED
By: /S/ XXXX X. XXXXXXX, PH.D.
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Name: Xxxx X. XxXxxxx, Ph.D.
Title: Chief Executive Officer and President
/S/ XXXXXXX XXXXXXXXXX
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Xxxxxxx Xxxxxxxxxx
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