EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement") is made as of the 15th day of
August, 2006 (the "Commencement Date") by and among Xxxxxxxx Site Acq., Inc., a
Louisiana corporation ("Company") and Xxxxxxx X. Xxxxxxxx (hereinafter, the
"Executive"). All capitalized terms not otherwise defined herein shall have the
meaning given to them in that certain Stock Purchase Agreement, dated as of June
20, 2006, by and among Company, Ayin Holding Company Inc., and Sellers (the
"Stock Purchase Agreement").
RECITALS
A. Ayin Holding Company Inc. acquired all of the issued and outstanding
stock of the Company on August 15, 2006.
B. The Board of Directors of the Company (the "Board") recognizes the
Executive's potential contribution to the growth and success of the Company, and
desires to assure the Company of the Executive's employment in an executive
capacity and to compensate him therefore, has approved the provisions of this
Agreement and has authorized the officers of the Company to execute the
Agreement on behalf of the Company.
C. The Executive is willing to make his services available to the
Company on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties agree as follows:
1. Employment.
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1.1 Employment and Terms. The Company hereby agrees to employ the
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Executive and the Executive hereby agrees to serve the Company on the terms and
conditions set forth herein.
1.2 Duties of Executive. During the Term of Employment under this
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Agreement (as hereinafter defined), the Executive shall serve as the Company's
President. The Executive shall be accountable to the Board, and, subject to the
authority of the Board, shall have supervision and control over, and
responsibility for the overall operations of the Company. He also shall have
such other powers and duties as may from time to time be prescribed by the
Board, provided that such duties are consistent with the Executive's position as
President of a company the size and type of the Company. The Executive shall
devote the necessary time and attention to the business and affairs of the
Company, render such services to the best of his ability, and use his reasonable
best efforts to promote the interests of the Company, Notwithstanding the
foregoing or any other provision in this Agreement, it shall not be a breach or
violation of this Agreement for the Executive to (i) serve on corporate (subject
to approval of the Board), civic or charitable boards or committees; or (ii)
manage personal investments, so long as such
activities do not significantly interfere with or significantly detract from the
performance of the Executive's responsibilities to the Company in accordance
with this agreement.
2. Term. The term of employment under this Agreement (the "Term of
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Employment") shall commence as of Commencement Date and end on April 30, 2009
("Initial Term"), or such earlier date on which the Executive's employment is
terminated pursuant to Section 5 of this Agreement, Upon the expiration of the
Initial Term, if all parties hereto consent, the Executive's employment under
this Agreement may be renewed for a successive three (3) year period ("Renewal
Term", and together with the Initial Term, the "Term"). The date upon which the
Term expires shall be referred to as the "Expiration Date." If the Company
continues to employ the Executive beyond the Expiration Date without entering
into a written employment agreement between the Company and the Executive, all
obligations and rights under this Agreement shall prospectively lapse as of the
Expiration Date, except the Company's ongoing indemnification obligation under
Section 4 and the Executive's obligations under Sections 6 and 7.
3. Place of Performance. The Executive shall be based in Lafayette,
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Louisiana, except for required travel on the Company's business.
4. Compensation and Related Matters.
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4.1 Base Salary. The Executive shall not be entitled to any base
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salary or base compensation.
4.2 Bonuses. During the Term of Employment, the Executive shall be
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entitled to participate in the bonus program described on EXHIBIT A, in
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accordance with the terms and conditions set forth on EXHIBIT A.
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4.3 Automobile Allowance. During the Term of Employment, the
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Executive shall be entitled to a monthly automobile allowance of $750.00.
4.4 Reimbursement of Expenses. Upon the submission of proper
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substantiation by the Executive, and subject to such rules and guidelines as the
Company may from time to time adopt with respect to the reimbursement of
expenses of executive personnel, the Company shall reimburse the Executive for
all reasonable and customary expenses actually paid or incurred by the Executive
during the Term of Employment in the course of and pursuant to the business of
the Company. The Executive shall account to the Company in writing for all
expenses for which reimbursement is sought and shall supply to the Company
copies of all relevant invoices, receipts or other evidence reasonably requested
by the Company.
4.5 Standard Benefits. During the Term of Employment, the
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Executive shall be entitled to participate in the Ayin Holding Company Inc.
BlueCross BlueShield Health Care Plan (the "Ayin Health Plan"), in accordance
with the terms of that plan and applicable law,
4.6 Stock Options. During the Term of Employment, the Executive
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shall be entitled to receive certain stock options, in accordance with the terms
and conditions set forth on EXHIBIT B.
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4.7 Indemnification. The Company shall extend to the Executive the
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same indemnification arrangements as are generally provided to other similarly
situated Company executives, including after the termination of the Executive's
employment hereunder.
4.8 Other Benefits. The Executive shall be entitled to four (4)
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weeks of paid vacation each calendar year during the Term of Employment, to be
taken at such times as the Executive and the Company shall mutually determine
and provided that no vacation time shall significantly interfere with the duties
required to be rendered by the Executive hereunder, and further provided that in
no event shall Executive take more than two (2) successive weeks of vacation at
any time.
5. Termination.
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5.1 Termination for Cause. The Company shall at all times have the
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right, immediately upon written notice to the Executive, to terminate the Term
of Employment, for Cause as defined below. For purposes of this Agreement, the
term "Cause" shall mean (i) an action or omission of the Executive which
constitutes a willful and material breach of, or a willful and material failure
or refusal (other than by reason of his disability or incapacity) to perform his
duties under, this Agreement and other than a breach of Section 7 hereof, which
is not cured within fifteen (15) days after receipt by the Executive of written
notice of same, (ii) engaging in any action on behalf of an enterprise which
competes or plans to compete with the Company or any of its subsidiaries or
affiliates, (iii) fraud, embezzlement, misappropriation of funds or material
breach of trust in connection with his services hereunder, (iv) an indictment or
conviction of any crime which involves dishonesty or a breach of trust, or (v)
any breach of Section 7 hereof. Any termination for Cause shall be made in
writing by notice to the Executive, which notice shall set forth in reasonable
detail all acts or omissions upon which the Company is relying for such
termination. The Executive (and his legal representative) shall have the right
to address the Board regarding the acts set forth in the notice of termination.
Upon any termination pursuant to this Section 5.1, the Company shall (i) pay to
the Executive any accrued but unpaid consideration due under the bonus program
for the preceding year described on EXHIBIT A, if any, in accordance with the
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terms and condition set forth on EXHIBIT A, and (ii) pay to the Executive
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accrued but unpaid expense reimbursements and benefits, if any. Upon any
termination effected and compensated pursuant to this Section 5.1, the Executive
shall forfeit, for each complete month of the Initial Term remaining,
Executive's right to receive 1/36th of the aggregate unpaid amounts (including
principal and interest) under the Notes delivered pursuant to Section 2.07 of
the Stock Purchase Agreement and the Goodwill Agreement (the "Notes"), and the
Company shall have no further liability hereunder and thereunder.
5.2 Disability. The Company shall at all times have the right,
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upon written notice to the Executive, to terminate the Term of Employment, if
the Executive shall as the result of mental or physical incapacity, illness or
disability, become unable to perform his obligations hereunder for a period of
90 days in any 12-month period. The determination of whether the Executive is or
continues to be disabled shall be made in writing by a physician selected by the
Board and reasonably acceptable to the Executive. Upon any termination pursuant
to this Section 5.2, the Company shall (i) pay to the Executive any accrued but
unpaid consideration due under the bonus program on a pro rata basis measured
until the date of termination, in accordance with the terms and conditions set
forth on EXHIBIT A and due only after the completion of the then current
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Performance Year as provided in EXHIBIT A. and (ii) pay any premiums for a
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period of 18 months in connection with the temporary continuation of the
disability benefits under the Ayin Health Plan in accordance with the terms and
conditions of the Consolidated Omnibus Budget Reconciliation Act of 1986
("COBRA"), Upon any termination effected and compensated pursuant to this
Section 5.2, the Company shall have no further liability hereunder.
5.3 Death. Upon the death of the Executive during the Term of
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Employment, the Company shall (i) pay to the estate of the deceased Executive
any accrued but unpaid consideration due under the bonus program on a pro rata
basis measured until the date of termination, in accordance with the terms and
conditions set forth on EXHIBIT A and due only after the completion of the then
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current Performance Year as provided in EXHIBIT A, and (ii) pay any premiums for
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a period of 18 months in connection with the temporary continuation of the
benefits accruing to the deceased Executive's spouse and dependent children
under the Ayin Health Plan in accordance with the terms and conditions of COBRA,
if such persons had been qualified beneficiaries under the Ayin Health Plan
prior to the Executive's death. Upon any termination effected and compensated
pursuant to this Section 5.3, the Company shall have no further liability
hereunder.
5.4 Termination Without Cause. The Company shall have the right to
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terminate the Term of Employment at any time by written notice to the Executive
not less than thirty (30) days prior to the intended termination date. Upon any
termination pursuant to this Section 5.4 (that is not a termination under any of
Sections 5.1, 5.2, 5.3 or 5,5), the Company shall (i) pay to the Executive an
amount equal to $375,000, payable in twelve (12) equal consecutive monthly
installments of $31,250, commencing on the date of termination of Executive's
employment (the "Severance Payment"). The Severance Payment shall be paid in
cash; and (ii) continue to provide the Executive with the benefits under
Sections 4.3 and 4.5 (the "Benefits") for a period of three (3) months
immediately following the date of his termination in the manner and at such
times as the Benefits otherwise would have been provided to the Executive. Upon
any termination effected and compensated pursuant to this Section 5.4, the
Company shall have no further liability hereunder.
5.5 Termination by Executive.
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a. Upon termination of the Term of Employment pursuant to
this Section 5.5 by the Executive without Good Reason (as defined below), the
Company shall (i) pay to the Executive any accrued but unpaid consideration due
under the bonus program for the preceding year described on EXHIBIT A, if any,
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in accordance with the terms and condition set forth on EXHIBIT A, and (ii) pay
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to the Executive accrued but unpaid expense reimbursements and benefits, if any.
Upon any termination effected and compensated pursuant to this Section 5.1, the
Executive shall forfeit, for each complete month of the Initial Term remaining,
Executive's right to receive 1/36th of the aggregate unpaid amounts (including
principal and interest) under the Notes, and the Company shall have no further
liability hereunder and thereunder.
b. Upon termination of the Term of Employment pursuant to
this Section 5.5 by the Executive for Good Reason, the Company shall pay to the
Executive the same amounts, and shall continue to provide Benefits in the same
amounts, that would have been payable or provided by the Company to the
Executive under Section 5.4 of this Agreement if the Term of Employment had been
terminated by the Company without Cause.
c. For purposes of this Agreement, "Good Reason" shall mean
the termination of this Agreement by Executive not less than 60 days notice
following: (i) the assignment to the Executive of any duties inconsistent in any
respect with the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Section 1.2 of this Agreement, or any other action by the Company which
results in a diminution in such position, authority, duties or responsibilities;
(ii) any failure by the Company to comply with any of the provisions of Article
4 of this Agreement, other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Executive; (iii) the Company's
requiring the Executive to be based at any office or location, that is not
within 50 miles of the place of performance denoted under Article 3 of this
Agreement, excluding required travel on the Company's business; (iv) failure to
make payment under the Notes where such payment is not prohibited by applicable
loan agreements to which either Ayin Holding Company Inc. or Charys Holding
Company, Inc. ("Charys") is a party; or (v) the occurrence of a Change in
Control. The Company shall have the right to cure the problem(s) noted by the
Executive, before the Executive may terminate his employment for Good Reason.
5.6 Termination upon Change in Control.
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a. Either the Company or the Executive may terminate this
Agreement at any time upon not less than thirty (30) days prior written notice
to the other party given within six (6) months after a Change in Control (as
hereinafter defined). In such event, the Company shall pay to the Executive the
same amounts, and shall continue to provide Benefits in the same amounts, that
would have been payable or provided by the Company to the Executive under
Section 5.4 of this Agreement if the Term of Employment had been terminated by
the Company without Cause. In addition, if as a
result of the Change in Control, the Executive would be entitled to any cash
payments from the Company, (other than those provided under this Agreement)
under any plan or program maintained by the Company ("Additional Benefits"),
then the Company shall provide the Executive with those Additional Benefits, if
and only to the extent that such Additional Benefits, when added to the amounts
payable and the Benefits provided by the Company to the Executive hereunder,
will not constitute excess parachute payments with the meaning of Section 280G
of Internal Revenue Code of 1986, as amended, and the regulations thereunder
(the "Code"). Upon any termination effected and compensated pursuant to this
Section 5.6, the Company shall have no further liability hereunder to Executive.
b. For purposes of this Agreement, the term "Change in
Control" shall mean:
(i) Consummation by Charys of (x) a reorganization,
merger, consolidation or other form of corporate transaction or series of
transactions, in each case, with respect to which persons who were the
shareholders of Charys immediately prior to such reorganization, merger or
consolidation or other transaction do not, immediately thereafter, own more than
Fifty Percent (50%) of the combined voting power entitled to vote generally in
the election of directors of the reorganized, merged or consolidated company's
then outstanding voting securities, in substantially the same proportions as
their ownership immediately prior to such reorganization, merger, consolidation
or other transaction, or (y) a liquidation or dissolution of Charys or (z) the
sale of all or substantially all of the assets of Charys (unless such
reorganization, merger, consolidation or other corporate transaction,
liquidation, dissolution or sale is subsequently abandoned);
(ii) the acquisition (other than from Charys) by any
person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act, of beneficial ownership within the meaning of Rule
13-d promulgated under the Securities Exchange Act of more than Fifty Percent
(50%) of either the then outstanding shares of Charys's Common Stock or the
combined voting power of Charys's then outstanding voting securities entitled to
vote generally in the election of directors (hereinafter referred to as the
ownership of a "Controlling Interest") excluding, for this purpose, any
acquisitions by (1) Charys or its Subsidiaries, (2) any person, entity or
"group" that as of the Commencement Date of this Agreement owns beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Securities
Exchange Act) of a Controlling Interest or (3) any employee benefit plan of
Charys or its Subsidiaries;
(iii) provided that, with respect to this Section
5.6(b), a Change in Control shall not be deemed to have occurred should any of
the contingencies referred to in this Section involve (i) any of those
companies, persons or other legal entities with whom Charys is negotiating on or
before the Commencement Date and which are communicated, in writing, by Charys
to the Executive upon or prior to execution of this Agreement; or (ii) as a
result of any internal corporate reorganization or
reclassification of voting securities among Charys' existing shareholders
resulting in reallocation of voting interests among such persons.
5.7 Resignation. Upon any termination of employment pursuant to
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this Article 5, the Executive shall be deemed to have resigned as an officer,
and if he or she was then serving as a director of the Company, as a director,
and if required by the Board, the Executive hereby agrees to immediately execute
a resignation letter to the Board.
5.8 Survival. The provisions of this Article 5 shall survive the
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termination of this Agreement, as applicable.
6. Non-Competition. In order to fully protect the Company's proprietary
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information, and in connection with the valuable consideration and benefits the
Executive is receiving from both (a) the transactions contemplated by the
execution of the Stock Purchase Agreement, and (b) the terms of this Agreement
going forward, the Executive expressly agrees to the terms of the Company's
Non-Competition Agreement (the "Non- Competition Agreement"), which Executive
shall execute contemporaneously with this Agreement.
7. Confidentiality. The Executive recognizes and acknowledges that as
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an integral part of the Company's business, the Company has developed, and will
develop, at a considerable investment of time and expense, marketing and
business plans and strategies, procedures, methods of operation and marketing,
financial data, lists of actual and potential customers and suppliers, and
independent sales representatives and related data, technical procedures,
engineering and product specifications, plans for development and expansion, and
other confidential and sensitive information, and the Executive acknowledges
that the Company has a legitimate business interest in protecting the
confidentiality of such information. The Executive further acknowledges that he
will be entrusted with such information as well as confidential information
belonging to customers, suppliers, and other third parties. For purposes of this
Section 7, "Trade Secrets" are defined as information, regardless of form,
belonging to the Company, licensed by it, or disclosed to it on a confidential
basis by its customers, suppliers, or other third parties, including, but not
limited to, technical or nontechnical data, formulae, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data,
product plans, or lists of actual or potential customers or suppliers which are
not commonly known by or available to the public and which information: (i)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy. For
purposes of this Section 7, "Confidential Information" is defined as
information, regardless of form, belonging to the Company, licensed by it, or
disclosed to it on a confidential basis by its customers, suppliers, or other
third parties, other than Trade Secrets, which is material and valuable to the
Company and not generally known by the public.
7.1 Promise Not to Disclose. The Executive promises never to use
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or disclose any Trade Secret before it has become generally known within the
relevant industry through no fault of the Executive. The Executive agrees that
this promise shall never expire, and further promises and acknowledges that,
while this Agreement is in effect and for two (2) years after its termination,
the Executive will not, without the prior written approval of the Company,
disclose any Confidential Information before it has become generally known
within the relevant industry through no fault of the Executive.
7.2 Promise Not to Solicit. At all times during the Term of
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Employment, and for 24 months after its termination, the Executive shall not,
directly or indirectly, for himself or for any other person, firm, corporation,
partnership, association or other entity (a) solicit, recruit or attempt to
solicit or recruit (or assist others to recruit) any officer, manager, employee,
or consultant of the Company and its subsidiaries and affiliates, and their
predecessors and successors (collectively, the "Group") to leave the Group, or
(b) solicit or attempt to solicit any of the actual or targeted prospective
customers or clients of the Group with whom the Executive had contact or about
whom the Executive learned Confidential Information or other proprietary
information on behalf of any person or entity in connection with any business
unit that competes with the Company's Business.
7.3 Promise Not to Engage in Certain Employment. The Executive
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agrees that, while this Agreement is in effect and for 24 months after its
termination, the Executive shall not accept any employment or engage in any
activity, without the prior written consent of the Board if the loyal and
complete fulfillment of the Executive's duties would inevitably require the
Executive to reveal or utilize Trade Secrets or Confidential Information.
Notwithstanding the foregoing, the restrictions set forth in this Section 7.3
shall terminate and be of no further force and effect upon the occurrence of
Ayin Holding Company Inc.'s failure to make payment under the Notes where such
payment is not prohibited by applicable loan agreements to which Ayin Holding
Company Inc. or Charys is a party.
7.4 Return of Information. Upon the expiration of the Executive's
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employment with the Company, the Executive will promptly deliver to the Company,
or, at its written instruction, destroy, all documents, data, drawings, manuals,
letters, notes, reports, electronic mail, recordings, and copies thereof, of or
pertaining to the Company or any other Group member in the Executive's
possession or control. The Executive further agrees that, during the term of
Executive's employment with the Company or the Group and thereafter, the
Executive shall meet with Company personnel, and, based on knowledge or insights
the Executive gained during the Executive's employment with the Company and the
Group, answer any question such personnel may have related to the Company or the
Group.
7.5 Intellectual Property. Intellectual property (including such
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things as all ideas, concepts, inventions, plans, developments, software, data,
configurations, materials (whether written or machine-readable), designs,
drawings, illustrations, and photographs, that may be protectable, in whole or
in part, under any patent, copyright,
trademark, trade secret, or other intellectual property law), developed,
created, conceived, made, or reduced to practice during the Executive's
employment (except intellectual property that has no relation to the Group or
any Group customer that the Executive developed, purely on the Executive's own
time and at the Executive's own expense), shall be the sole and exclusive
property of the Company, and the Executive hereby assigns all of Executive's
rights, title, and interest in any such intellectual property to the Company.
7.6 Execution of Innovation Agreement. The Executive agrees to the
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terms of the Company's Assignment of Inventions agreement, which is attached
hereto as SCHEDULE 1, and shall execute it contemporaneously with this
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Agreement.
7.7 Enforcement of This Article. Article 7 of this Agreement shall
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survive the termination of this Agreement for any reason. The Executive
acknowledges that (a) the Executive's services are of a special, unique, and
extraordinary character and it would be very difficult or impossible to replace
them, (b) this Article's terms are reasonable and necessary to protect the
Company's legitimate interests, (c) this Article's restrictions will not prevent
the Executive from earning or seeking a livelihood, (d) this Article's
restrictions shall apply wherever permitted by law, and (e) the Executive's
violation of any of this Article's terms would irreparably harm the Company.
Accordingly, the Executive acknowledges and agrees that, if the Executive
violates any of the provisions of this Article VII, the Company or any Group
member shall be entitled to, in addition to other remedies available to it, an
injunction to be issued by any court of competent jurisdiction restraining the
Executive from committing or continuing any such violation, without the need to
prove the inadequacy of money damages or post any bond or for any other
undertaking.
8. Notice. Any notice, request, instruction or other document to be
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given hereunder by any party hereto to any other party hereto shall be in
writing and delivered personally or sent by registered or certified mail
(including by overnight courier such as FedEx or express mail service), postage
or fees prepaid:
if to the Executive: Xxxxxxx X. Xxxxxxxx
Xxxxxxxx Site Acq., Inc.
000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
With a copy to: G. Xxxxxxxxx Xxxxxxx
Attorney at Law
000 Xxxxxxx Xxxx., Xxxxx 000 X
Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: G. Xxxxxxxxx Xxxxxxx
if to the Company: Xxxxxxxx Site ACQ, Inc.
000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chairman of the Board
with a copy to: Ayin Holding Company Inc.
00000 XX 000
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx,
President
And additional copies to: Charys Holding Company, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx
X000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxx, Xx., Chief
Executive Officer
Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP 000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
or at such other address for a party as shall be specified by like notice Any
notice which is delivered personally in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or the office of such party. Any notice which is addressed
and mailed in the manner herein provided shall be conclusively presumed to have
been duly given to the party to which it is addressed at the close of business,
local time of the recipient, on the fourth business day after the day it is so
placed in the mail or, if earlier, the time of actual receipt.
9. Golden Parachute Limitation. The Company and the Executive agree to
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cooperate with each other in connection with any administrative or judicial
proceedings concerning the existence or amount of golden parachute penalties
with respect to payments or benefits the Executive receives. Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment, distribution or other action by the Company to or for the
benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, including
any additional payments required under this Section 9) (a "Payment") would be
subject to an excise tax imposed by Section 4999 of the Code, or any interest or
penalties are incurred by the Executive with respect to any such excise tax
(such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), the Company shall make a payment
to the Executive (a "Gross-Up Payment") in an amount such that after payment by
the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up
Payment, the Executive retains (or has had paid to the Internal Revenue Service
on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the
Excise Tax imposed upon the Payments and (y) the product of any deductions
disallowed because of the inclusion of the Gross-Up Payment in the Executive's
adjusted gross income and the highest applicable marginal rate of federal income
taxation for the calendar year in which the Gross-Up Payment is to be made. For
purposes of determining the amount of the Gross-Up Payment, the Executive shall
be deemed to (i) pay federal income taxes at the highest marginal rates of
federal income taxation for the calendar year in which the Gross-Up Payment is
to be made, and (ii) pay applicable state and local income taxes at the highest
marginal rate of taxation for the calendar year in which the Gross-Up Payment is
to be made, net of the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes.
10. Amendment. No provisions of this Agreement may be modified, waived,
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or discharged except by a written document signed by a duly authorized Company
officer and the Executive, Thus, for example, promotions, commendations, and/or
bonuses shall not, by themselves, modify, amend, or extend this Agreement, A
waiver of any conditions or provisions of this Agreement in a given instance
shall not be deemed a waiver of such conditions or provisions at any other time,
11. Interpretation; Exclusive Forum. The validity, interpretation,
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construction, and performance of this Agreement shall be governed by and
construed in accordance with the internal laws of the state of Delaware
(excluding any that mandate the use of another jurisdiction's laws), Each of the
parties hereto irrevocably agrees that any legal action or proceeding with
respect to this Agreement, or for recognition and enforcement of any judgment in
respect hereof, brought by the other party hereto or its successors or assigns
shall be brought and determined in federal court sitting in Bexar County, San
Antonio, State of Texas, and each party hereby irrevocably submits with regard
to any such action or proceeding for itself and in respect of its property,
generally and unconditionally, to the exclusive jurisdiction of the aforesaid
court; provided, however, in the event jurisdiction of the aforesaid court is
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unavailable, the parties agree that any legal action or proceeding arising out
of or related to this Agreement shall be settled and determined by private
binding arbitration in San Antonio, Texas before a single arbitrator in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association in effect on the date that the demand for arbitration is given.
12. Successors. This Agreement shall be binding upon, and shall inure
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to the benefit of, the Executive and his estate, but the Executive may not
assign or pledge this Agreement or any rights arising under it, except to the
extent permitted under the terms of the benefit plans in which the Executive
participates. The Company may freely assign this Agreement to any affiliate or
successor that agrees in writing to be bound by this Agreement without the
Executive's prior consent, after which any reference to the "Company" in this
Agreement shall be deemed to be a reference to the affiliate or
successor, and the Company thereafter shall have no further primary, secondary
or other responsibilities or liabilities under this Agreement of any kind.
13. Taxes. The Company shall withhold taxes from payments or awards it
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makes pursuant to this Agreement required by applicable law.
14. Validity. The invalidity or unenforceability of any provision of
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this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect. In the
event that a court of competent jurisdiction determines that any provision of
this Agreement is invalid or more restrictive than permitted under the governing
law of such jurisdiction, then only as to enforcement of this Agreement within
the jurisdiction of such court, such provision shall be interpreted and enforced
as if it provided for the maximum restriction permitted under such governing
law,
15. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall for all purposes be deemed to be an original
and all of which, when taken together, shall constitute one and the same
instrument.
16. Entire Agreement. All oral or written agreements or
------------------
representations, express or implied, with respect to the subject matter of this
Agreement are set forth in this Agreement and the Exhibits and Schedules hereto.
Notwithstanding the foregoing, the parties agree that this Agreement does not
override other written agreements the Executive has executed relating to
specific aspects of the Executive's employment, such as conflicts of interest.
17. Former Employers. The Executive is not subject to any employment,
------------------
confidentiality, or other agreement or restriction that would prevent the
Executive from fully satisfying the Executive's duties under this Agreement or
that would be violated if the Executive did so. Without the Company's prior
written approval, the Executive promises that Executive will not: (a) disclose
proprietary information belonging to a former employer or other entity without
its written permission; (b) contact any former employer's customers or employees
to solicit their business or employment on behalf of the Group; or (c)
distribute announcements about or otherwise publicize Executive's employment
with the Group. The Executive acknowledges and agrees to indemnify and hold the
Company harmless from any liabilities, including defense costs, it may incur
because the Executive is alleged to have broken any of these promises or
improperly revealed or used such proprietary information or to have threatened
to do so, or if a former employer challenges the Executive entering into this
Agreement or rendering services pursuant to it.
18. Third Party Beneficiary. The parties agree and acknowledge that
--------------------------
Ayin Holding Company Inc. is a third-party beneficiary of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
--------------------------------------------------------------------------------
THE EXECUTIVE ACKNOWLEDGES THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE
COMPANY AND THE EXECUTIVE RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE
CONTAINED IN IT AND THAT THE EXECUTIVE HAS ENTERED INTO THIS AGREEMENT
VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE
COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT ITSELF,
THE EXECUTIVE UNDERSTANDS THAT PAUL, HASTINGS, XXXXXXXX & XXXXXX LLP (PHJ&W)
REPRESENTED THE COMPANY, NOT THE EXECUTIVE, IN NEGOTIATING THIS CONTRACT; THE
EXECUTIVE WAS REPRESENTED BY SEPARATE COUNSEL. TO THE EXTENT PHJ&W HAS
REPRESENTED THE EXECUTIVE, IS REPRESENTING THE EXECUTIVE, OR REPRESENTS THE
EXECUTIVE IN THE FUTURE, THE EXECUTIVE IRREVOCABLY WAIVES ANY CONFLICT OF
INTEREST OBJECTIONS THE EXECUTIVE MAY HAVE TO ITS REPRESENTATION OF THE COMPANY
AS TO ANY MATTERS RELATING TO THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY,
INCLUDING THE NEGOTIATION OF THIS CONTRACT.
THE EXECUTIVE FURTHER ACKNOWLEDGES THAT THE EXECUTIVE HAS CAREFULLY READ THIS
AGREEMENT, THAT THE EXECUTIVE UNDERSTANDS ALL OF IT, AND THAT THE EXECUTIVE HAS
BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT, TOGETHER WITH ALL ATTACHED
SCHEDULES AND EXHIBITS, WITH THE EXECUTIVE'S PRIVATE LEGAL COUNSEL AND HAVE
AVAILED HIMSELF OF THAT OPPORTUNITY TO THE EXTENT THE EXECUTIVE WISHED TO DO SO.
--------------------------------------------------------------------------------
Date: ________, 2006 XXXXXXXX SITE ACQ., INC.:
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
AYIN HOLDING COMPANY INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
EXHIBIT A
---------
BONUS PROGRAM
Within 120 days after the end of each of the twelve-month periods following
the Effective Date (each, a "Performance Year"), the Board shall compare the
year-end audited financials of Company to the projected financials of Company,
and Xxxxxxx X. Xxxxxxxx shall be entitled to a bonus calculated as follows:
a) For each Performance Year, the total amount of the bonus pool
available shall be $1,000,000 (the "Bonus Pool Amount"). Any portion of the
Bonus Pool Amount payable as provided herein shall be divided equally between
Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx.
b) The bonus payable for each such Performance Year shall be a portion
of the Bonus Pool Amount equal to the amount set forth in the table below
opposite the applicable Calculation Value calculated as set forth herein.
-----------------------------------------------
Calculation Value < 85% $ 250,000
----------------------------------- ----------
Calculation Value > 85% but < 90% $ 375,000
-
----------------------------------- ----------
Calculation Value > 90% but < 95% $ 500,000
-
----------------------------------- ----------
Calculation Value > 90% but < 100% $ 625,000
-
----------------------------------- ----------
Calculation Value > 100% but < 110% $ 750,000
-
----------------------------------- ----------
Calculation Value > 110% but < 120% $ 875,000
-
----------------------------------- ----------
Calculation Value > 120% $1,000,000
-
-----------------------------------------------
c) The "Calculation Value" shall be an amount equal to (i) the sum of
the (x) Revenue Factor, (y) EBITDA Factor, and (z) Net Income Factor,
d) The Revenue Factor, the EBITDA Factor and the Net Income Factor
shall be calculated in accordance with GAAP.
Any bonus due shall be payable in cash, to the extent such cash payment is
permitted under the loan agreements to which Company and Charys are a party to.
If such agreements do not permit payment of such bonus in cash, then the bonus
shall be paid in Charys common stock, at the price per share as of the last
trading day of the applicable Performance Year.
For purposes of this Exhibit A, the terms set forth above shall have the
----------
following meaning:
(i) Revenue Factor shall be a percentage equal to the product of (x)
---------------
forty percent (40%) (the "Revenue Weighted Average") multiplied
by (y) a fraction the numerator of which is the Company's actual
revenues for a Performance Year and the denominator of which is
the Company's projected revenues for such corresponding
Performance Year.
(ii) EBITDA Factor shall be a percentage equal to, the product of (x)
--------------
fifty percent (50%) (the "EBITDA Weighted Average") multiplied by
(y) a fraction the numerator of which is the Company's actual
EBITDA for a Performance Year and the denominator of which is the
Company's projected EBITDA for such corresponding Performance
Year.
(iii) Net Income Factor shall be a percentage equal to, the product
-------------------
of (x) ten percent (10%) (the "Net Income Weighted Average")
multiplied by (y) a fraction the numerator of which is the
Company's actual net income for a Performance Year and the
denominator of which is the Company's projected net income for
such corresponding Performance Year.
MSAI
--------------------------------------------------------------------------
PERFORMANCE YEAR PROJECTED REVENUE PROJECTED EBITDA PROJECTED NET
INCOME (1)
------------------- ------------------ ----------------- --------------
January 1, 2006- $10,035,000 $7,559,000 [______]*
December 31, 2006
------------------- ------------------ ----------------- --------------
May 1, 2007 - April $11,540,000 $8,940,000 [______]*
30, 2008
------------------- ------------------ ----------------- --------------
May 1, 2008 - April $13,190,000 $10,460,000 [______]*
30, 2009
--------------------------------------------------------------------------
* At or shortly after Closing we can update this number once we know exactly
what the interest expenses will be.
By way of example, and for illustrative purposes only, the following model
depicts the manner in which the bonus shall be calculated for a single
Performance Year. The numbers and assumptions used herein are not intended to be
the final projections or Bonus Pool Amount for purposes of this Exhibit A.
----------
--------------------------------------------------------------------------
PERFORMANCE YEAR PROJECTED REVENUE PROJECTED EBITDA PROJECTED NET
INCOME
------------------- ------------------ ----------------- --------------
May 1, 2008 - April $5,000,000 $1,000,000 $500,000
30, 2009
--------------------------------------------------------------------------
------------------------------------------------------------------------
PERFORMANCE YEAR ACTUAL REVENUE ACTUAL EBITDA ACTUAL NET INCOME
------------------- --------------- -------------- ------------------
May 1, 2008 - April $6,000,000 $800,000 $250,000
30, 2009
------------------------------------------------------------------------
____________________
(1) The Projected Net Income figures will be updated as we receive more
information about the Company,
Whereby:
1) Revenue Factor = 48%; EBITDA Factor = 40%; Net Income Factor = 5%
2) Calculation Value = 48% + 40% + 5% = 93%
3) Bonus Payable based on a calculation value of 93% = $500,000
EXHIBIT B
---------
STOCK OPTIONS
During the Executive's employment, the Executive shall be entitled to receive
options to purchase Charys stock as follows:
a) A pool of Charys options shall be made available at 85% of market
price at the time of issuance.
b) The issuance of these options shall be based upon;
(i) Acquisition of similar type companies under Charys' general
acquisition schedule of 50% cash and 50% Charys stock. The gross
revenue of any acquisition will be added to the factors for the
calculation of the "option pool"; and
(ii) The addition of profitable new revenue through new accounts or
new customers. The total annual value of this new profitable
revenue will become another factor for the calculation; and
(iii) Any new business that can be distributed to any of the other
division of Charys. The gross annual revenue in this category
will become a factor.
Once the three factors are determined and added together then the option pool
value will be determined by multiplying 5% times the first $25,000,000 of the
combined three factors, then 3% times the next $25,000,000 and 2% times any
value over $50,000,000.
Example:
Item 1 $ 4,000,000
Item 2 $ 8,000,000 25,000,000 x .05 = $1,250,000
Item 3 $26,000,000 13,000,000 x .03 = $ 390,000
----------- ----------
$38,000,000 Total value of option pool $1,640,000
Share price at issue time $2.50 = 656,000 options available at 85% of market or
$2.12 exercise price. Exercise option period is 5 years.
Schedule 1
----------
ASSIGNMENT OF INVENTIONS
------------------------
1. I will promptly disclose in writing to the Company all Inventions, For
purposes of this Agreement, "Invention" shall mean any discovery, whether or not
patentable, as well as improvements thereto, which is conceived or first
practiced by me, alone or in a joint effort with others, whether prior to or
following execution of this Agreement, which; (i) may be reasonably expected to
be used in a product of the Company; (ii) results from work that I have been
assigned as part of my duties as an employee of the Company; (iii) is in an area
of technology which is the same as or substantially related to the areas of
technology with which I am involved; (iv) is useful, or which the Company
reasonably expects may be useful, in any manufacturing or product design process
of the Company; or (v) utilizes any Confidential Information.
2. All Inventions developed while employed by the Company in the scope of
such my employment and duties belong to and are the sole property of the Company
and will be subject to this Agreement. I shall sign and deliver to the Company
(during and after employment) any other documents that the Company considers
reasonably necessary to provide evidence of (i) the assignment of all of my
rights, if any, in any Inventions and (ii) the Company's ownership of such
Inventions,
3. I will assist the Company in applying for, prosecuting, obtaining, or
enforcing any patent, copyright, or other right or protection relating to any
Invention, all at the Company's expense but without consideration to me in
excess of my salary or wages,
4. If the Company is unable to secure my signature on any document necessary
to apply for, prosecute, obtain, or enforce any patent, copyright, or other
right or protection relating to any Invention, whether due to my mental or
physical incapacity or any other cause, I hereby irrevocably designate and
appoint the Company and each of its duly authorized officers and agents as my
agent and attorney-in-fact, to act for and in my behalf to execute and file any
such document and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of patents, copyrights, or other rights
or protections, with the same force and effect as if executed and delivered by
me.
Employee Xxxxxxxx Site Acq., Inc.
/s/ Xxxxxxx X. Xxxxxxxx /s/ illegible
------------------------------------ ----------------------------------------
Signature of Employee Signature of Authorized Company
Representative
Xxxxxxx X. Xxxxxxxx President
------------------------------------ ----------------------------------------
Print Name of Employee Title of Representative
------------------------------------ ----------------------------------------
Date Date
SIGNATURE PAGE TO ASSIGNMENT OF INVENTIONS AGREEMENT
