POMEROY IT SOLUTIONS, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 13 day of February, 2006, by
and between XXXXXXX IT SOLUTIONS, INC. ("Company"), a Delaware corporation, and
XXXXX XXXXXXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee and Employee desires to be
employed by the Company;
WHEREAS, the parties desire to enter into an Employment Agreement to
provide responsibilities, duties, benefits, and compensation for Employee;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein set forth, the parties hereby covenant and agree as follows:
1. Employment. The Company agrees to employ the Employee, and the
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Employee agrees to be employed by the Company, upon the following terms and
conditions.
2. Term. The initial term of Employee's employment pursuant to this
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Agreement shall begin on the 1st day of March, 2006 ("effective date"), and
shall continue for a period of three (3) years thereafter, unless terminated
earlier pursuant to the provisions of Section 10, provided that Sections 8, 9,
10(b), 11, if applicable, and 12, if applicable, shall survive the termination
of such employment and shall expire in accordance with the terms set forth
therein.
3. Renewal Term. The term of Employee's employment shall automatically
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renew for additional consecutive renewal terms of one (1) year unless either
party gives written notice of his/its intent not to renew the terms of the
Agreement ninety (90) days prior to the expiration of the then expiring term.
Employee's base salary for each renewal term shall be negotiated and mutually
agreed upon by and between the Company and Employee. However, in no event shall
Employee's annual base salary for any renewal term be less than the base salary
in effect for the prior year.
4. Duties. Employee shall serve as Chief Information Officer and
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Senior Vice President of Information Technology. Employee shall be responsible
to and report directly to Xxxxx Xxxxxxx, the President and Chief Executive
Officer of the Company. Employee shall devote his best efforts and substantially
all his time during normal business hours to the diligent, faithful and loyal
discharge of the duties of his employment and towards the proper, efficient and
successful conduct of the Company's affairs. Employee further agrees to refrain
during the term of this Agreement from making any sales of competing services or
products or from profiting from any transaction involving computer services or
products for his account without the express written consent of Company.
5. Compensation. For all services rendered by the Employee under this
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Agreement, Employee shall receive compensation based on the compensation plan
attached hereto and incorporated herein by reference as Exhibit "A".
(a) Signing Bonus - The Company hereby agrees to provide Employee
with a signing bonus, in the form of 50,000 fully vested stock options, as
additional consideration for his execution of and agreement to the terms of this
Agreement. Employee understands that the Company's award of such stock options
is contingent upon his execution of this Agreement with the Company and that the
award shall be made on the effective date hereof as follows: Employee shall be
awarded the right to acquire 50,000 shares of common stock, .01 par value, of
Xxxxxxx IT Solutions, Inc., which shall be fully vested and subject to the
conditions contained in the Xxxxxxx IT Solutions, Inc., Non-Qualified and
Incentive Stock Option Plan and the Award Agreement. The term of the Award
Agreement shall be five (5) years. Such award of the stock options to acquire
the common stock of Xxxxxxx IT Solutions, Inc., shall be at the fair market
value of such common stock as of the applicable date. For purposes of this
Agreement, the fair market value as of the applicable date shall mean with
respect to the common shares, the average between the high and low bid and ask
prices for such shares on the over-the-counter market on the last business day
prior to the date on which the value is to be determined (or the next preceding
date on which sales occurred if there were no sales on such date).
Furthermore, so long as Employee remains employed by the Company
during the term of this Agreement, he shall be awarded (a) the right to acquire
25,000 shares of common stock, $.01 par value, of Xxxxxxx IT
Solutions, Inc., at the end of the first year of the initial term of this
Agreement; and (b) the right to acquire 25,000 shares of common stock, $.01 par
value, of Xxxxxxx IT Solutions, Inc., at the end of the second year of the
initial term of this Agreement. Employee acknowledges and understands that any
such stock options awarded to him hereunder at the end of the first and second
year of the initial term of this Agreement shall be subject to a three (3) year
vesting schedule and any other conditions contained in the Xxxxxxx IT Solutions,
Inc., Non-Qualified and Incentive Stock Option Plan and the Award Agreement.
Such award of the stock options to acquire the common stock of Xxxxxxx IT
Solutions, Inc., shall be at the fair market value of such common stock as of
the applicable date. For purposes of this Agreement, the fair market value as
of the applicable date shall mean with respect to the common shares, the average
between the high and low bid and ask prices for such shares on the
over-the-counter market on the last business day prior to the date on which the
value is to be determined (or the next preceding date on which sales occurred if
there were no sales on such date).
(b) Employee hereby acknowledges that Company reserves the right
to modify, alter, or amend such pay plan, at any time, in the event there are
changes in the Company's business model due to events which include, but are not
necessarily limited to mergers, acquisitions, corporate
re-organization/re-structure, material changes to industry standards or
practices which affect the Company. Any and all such modifications shall be made
by mutual agreement of the parties, reduced to writing as an amendment to this
Agreement and signed by both parties. So long as any such modifications,
alterations or amendments to the compensation plan provided in this Section 5
and Exhibit A hereto are agreed to in writing by the parties same shall not
constitute a breach of this Agreement or otherwise qualify as a default event
hereunder.
6. Fringe Benefits. During the term of this Agreement, Employee shall
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be entitled to the following benefits:
(a) Health Insurance - During the term of this Agreement, Employee
shall be provided with the standard medical health and insurance coverage
maintained by Company on its employees.
(b) Vacation - Employee shall be entitled each year to three (3)
weeks vacation, during which time his compensation will be paid in full, in
accordance with the Company's standard written policy for same.
(c) Retirement Plan - Employee shall participate, after meeting
eligibility requirements, in any qualified retirement plans and/or welfare plans
maintained by the Company during the term of this Agreement.
(d) Communications Allowance - Company shall provide Employee with
a communication allowance as provided for on Exhibit A hereto in the sum of
$250.00 per month during the term of this Agreement. Said communication
allowance is intended to defray or offset expenses incurred by Employee for use
of any and all remote communication devices in the course and scope of
Employee's employment hereunder, including, but not limited to, mobile
telephones, hand-held wireless devices and/or Internet access.
(e) Life Insurance - If applicable, Company shall maintain on the
life of Employee, provided he is insurable at standard rates a term life
insurance policy in the amount of $500,000.00 as provided for on Exhibit A
hereto. Employee shall have the right to designate the beneficiary of such
policy. Employee agrees to take any and all physicals that are necessary
incident to the issuance and/or renewal of said policy. In addition, Employee
agrees to take any and all physicals that are necessary incident to the
procurement of key person insurance upon his life by Company. In the even that
Employee is not insurable at standard rates during the term of this Agreement,
but Employee is able to procure rated coverage, Employee shall have the right to
procure coverage for a lower amount of insurance, the cost of which is
equivalent to the standard term rate cost of the amount of $500,000.00 coverage
as stated on Exhibit A. In the event Employee is not insurable, then Company
shall pay Employee an amount equal to the projected cost of the contemplated
term insurance in the amount of $500,000.00 as stated on Exhibit A at standard
rates.
(f) Apartment Rental Allowance - Company shall provide Employee
with a monthly allowance in the amount of $________ for the rental of an
apartment in the Northern Kentucky/Greater Cincinnati area. Employee
understands, acknowledges and agrees that such allowance shall be provided to
Employee until the earlier of (i) the date upon which he relocates his personal
residence to the Northern Kentucky/Greater Cincinnati area. Company and employee
will meet annually to review this section and determine the relocation decision.
Inasmuch as Company is providing Employee with this monthly apartment rental
allowance, Employee shall not be entitled to reimbursement from the Company for
any other expenses directly or indirectly related to his living accommodations,
including, but not limited to
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meals, lodging, rents and/or utilities of any nature or kind. Until the employee
has secured an apartment, which is expected not to exceed April 3rd, 2006,
hereof or until such earlier date upon which Employee has identified and made
provisions to occupy the temporary housing contemplated under this section, the
Company shall reimburse Employee for expenses that he incurs incident to his
living accommodations in Hebron Kentucky including hotel accommodations, car
rental and the Company's standard per diem allowance for meals. Until such time
as a relocation decision has been jointly agreed to by the Company and Employee,
the Company shall also reimburse Employee for expenses that he incurs incident
to his travel to and from Buffalo, NY to Hebron, Kentucky, including airfare and
parking. Employee understands, acknowledges and agrees any and all airline
reservations, hotel accommodations and car rentals shall be made through
Xxxxxxx'x internal Travel Department and that Employee shall be responsible for
seeking reimbursement for any of the aforementioned expenses by submitting
expense reports to the Company in accordance with its standard customary
practices and polices.
(g) Health Club Membership - Subject to the CEO's final approval,
Employee shall be entitled to select and join a health club of Employee's choice
in the Greater Cincinnati/Northern Kentucky area. The Company shall be
responsible for the payment of the initiation fee charged by such club incident
to Employee becoming a member so long as such membership has been approved by
the CEO. In addition, the Company shall be responsible for the recurring
membership dues charged for Employee to be a member of the club. Employee
understands and acknowledges that the membership shall be established in the
name of the Company, but shall be designated as a membership established for the
benefit of and use by Employee. Any and all rights and interest in the
membership shall be vested in the Company. Employee shall be responsible for any
and all other expenses or costs associated with the club membership, including,
but not limited to charges for food, beverages, greens fees, cart fees, and
court time, unless such expenses are incurred for business purposes and are
otherwise reimbursable by the Company under the Company's standard expense
reimbursement policy.
(h) Moving Allowance - In the event Company and Employee mutually
agree that it is in both parties best interest for Employee to relocate to the
Greater Cincinnati/Northern Kentucky area in order to perform his job functions
for the Company, the Company shall provide Employee with a moving allowance of
up to a maximum of $50,000.00. The allowance shall be provided to Employee as
follows:
(i) The allowance may be utilized to reimburse Employee for
expenses directly related to and incurred incident to Employee's travel, lodging
and meal expenses for house hunting related activities in the Greater Cincinnati
area and for a professional moving company to transport Employee's personal
property from his current Buffalo, NY residence to his new residence in the
Greater Cincinnati area. All such expenses shall be documented, substantiated,
and directly billed to the Company by a third party in order for such expenses
to be paid for under this Section 6(h)(i). Employee understands, agrees and
acknowledges that he shall be responsible for obtaining three (3) competitive
bids for the professional moving services contemplated hereunder , that Employee
shall provide copies of such bids to Company and that Employee shall contract
the services of the best and lowest professional bidder.
(ii) The allowance may be utilized to reimburse to Employee for
real estate agent/broker commissions related to or arising out of the sale of
Employee's current Buffalo, NY residence and closing costs incurred by Employee
incident to the closing on the sale of his current (city/state) residence and/or
closing and financing costs incurred by Employee incident to the closing on the
purchase of his new residence in the Greater Cincinnati area. All such
commissions and/or closing costs must be submitted to Company by Employee for
reimbursement, along with copies of Settlement Statements or other closing
documents that substantiate Employee's claim for reimbursement under this
Section 6(h)(ii).
(iii) In no event shall the reimbursement that Employee is
eligible for under this Section 6(h)(i) And 6(h)(ii) exceed $50,000.00.
(4) In the event Employee voluntarily terminates his employment
with Xxxxxxx within one (1) year from the date of this Agreement, Employee
understands, acknowledges and agrees that he must reimburse Xxxxxxx, in full,
for all payments made to or on behalf of Employee by the Company under this
Section 6(h).
(i) Employee shall be responsible for any and all taxes, owed, if
any, on the fringe benefits provided
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to him pursuant to this Section 6.
7. Expenses. During the term of Employee's employment hereunder,
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Employee shall be entitled to receive prompt reimbursement for all other
reasonable and customary expenses incurred by Employee in fulfilling Employee's
duties and responsibilities hereunder, provided that such expenses are incurred
and accounted for in accordance with the policies and procedures established by
Company and such expenses should not otherwise be paid for directly by Employee
incident to the home office/communication allowance, automobile allowance and/or
entertainment allowance referred to herein above in Section 6.
8. Non-Competition & Non-Solicitation. In connection with the
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diligent, faithful and loyal discharge of the duties of Employee's employment
under this Agreement, Employee agrees that so long as he is employed by the
Company (whether or not pursuant to the provisions of this Agreement) he will
not, directly or indirectly, be employed by, or otherwise give assistance to or
be affiliated with (as an employee, consultant, independent contractor of any
type, director or otherwise) any person, firm, corporation or entity which is
directly or indirectly engaged in a competitive business with that carried on by
the Company or any of its subsidiaries. Employee agrees that so long as he is
employed by the Company, he will not own, engage in, conduct, manage, operate,
participate in, be employed by or be connected in any manner whatsoever with any
competitive business with that carried on by Company or any of its subsidiaries
or become associated with, in any capacity, or solicit or sell to, customers of
the Company or any its subsidiaries or employ or attempt to employ any current
or future employee of the Company or any of its subsidiaries or induce any
employee of the Company or of any of its subsidiaries to leave its employ.
In addition, as an inducement for and as additional consideration for the
Company entering into this Agreement, Employee agrees that for a period of one
(1) year commencing on the termination of employment, he will not with any other
person, corporation or entity, directly or indirectly, by stock or other
ownership, investment, employment, or otherwise, or in any relation whatsoever:
(1) solicit, divert or take away or attempt to solicit, divert or
take away any of the business, customers or patronage of the Company, its
parent, its subsidiaries or of any of its subsidiaries;
(2) attempt to seek or cause any customers of the Company, its
parent, its subsidiaries or affiliates thereof, to refrain from continuing their
patronage;
(3) engage in any business that is competitive with that carried
on by the Company, its parent company, any of the parent company's subsidiaries
or Company's affiliates, including, but not limited to the business of providing
lifecycle services, infrastructure solutions, enterprise consulting, staffing
and recruiting services, performing outsourcing or co-sourcing services, being a
value added reseller or integrator, after the date of this Agreement, within a
100 mile radius of any city within any Region in which the Company, its parent,
its subsidiaries or Company affiliates have a physical office location or
otherwise actively conducts business during the term of this Agreement and,
without regard to any geographical limitation, any Customer account that
Employee, either directly or indirectly, managed, serviced, called on, solicited
or interfaced with incident to Employee's employment with Company during the one
(1) year prior to Employee's termination.
(4) knowingly employ or attempt to employ in any capacity any
employee or agent of Company, or any of its subsidiaries.
(5) perform services, either as an employee or as a consultant,
for any competitive business.
For purposes of this Section 8, a competitive business shall mean any
person, corporation, partnership or other legal entity engaged, directly or
indirectly, through subsidiaries or affiliates, in any of the following business
activities:
(i) distributing of computer hardware, software, peripheral
devices, and related products and services;
(ii) sale or servicing, whether at the wholesale or retail level,
or leasing or renting, of computer hardware, software, peripheral devices or
related products;
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(iii) any other business activity which can reasonably be
determined to be competitive with the principal business activity being engaged
in by the Company, its parent, or any of its subsidiaries or affiliates,
including, but not limited to lifecycle services, enterprise consulting,
infrastructure solutions, staffing and recruiting, outsourcing and co-sourcing
services; and
(iv) any other business activity which Company, its parent, or any
of its subsidiaries or affiliates subsequently become involved in after the date
of this Agreement.
This one (1) year non-competition provision commencing on the date of
Employee's termination of employment shall not be applicable if the Employee is
terminated by the Company without cause pursuant to Section 10(a)(v) or if
Company does not renew this Agreement after the expiration of the initial term
of this Agreement or any renewal term. Provided, however, such one (1) year
non-competition provision shall be applicable in any of such instances in the
event Company elects in writing to compensate Employee pursuant to Section 11 of
this Agreement.
Employee has carefully read and has given careful consideration to all the
terms and conditions of this Agreement and agrees that they are necessary for
the reasonable and proper protection of the Company's business. The Employee
acknowledges that the Company has entered into this Agreement because of
Employee's promise that he will abide by and be bound by each of the terms
contained in this Section 8. The Employee agrees that Company shall be entitled
to injunctive relief to enforce these terms in addition to all other legal
remedies. Employee acknowledges that each and every one of the terms of this
provision is reasonable in all respects including their subject matter,
duration, scope and the geographical area embraced herein and waives any and all
right to compensation and/or benefits herein mentioned or referred to if
Employee violates the provisions of this Section 8.
Notwithstanding the foregoing, Company acknowledges that Employee has
agreed to be available by telephone to his current employer, Affiliated Computer
Services ("ACS"), for up to a maximum of thirty (30) days from his separation
from ACS in order to assist with matters that he was involved in prior to such
separation and such transition related activities shall not be construed or
deemed to be a violation or breach of the restrictive covenant set forth
hereinabove during such thirty (30) day period. Employee represents to Company
that he shall not be compensated by ACS for any of the transition related
services described in this section.
9. Non-Disclosure and Assignment of Confidential Information. The
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Employee acknowledges that the Company's trade secrets and confidential and
proprietary information, including without limitation:
(a) unpublished information concerning the Company's:
(i) research activities and plans,
(ii) marketing or sales plans,
(iii) pricing or pricing strategies,
(iv) operational techniques,
(v) customer and supplier lists, and
(vi) strategic plans;
(b) unpublished financial information, including unpublished
information concerning revenues, profits and profit margins;
(c) internal confidential manuals; and
(d) any "material inside information" as such phrase is used for
purposes of the Securities Exchange Act of 1934, as amended;
all constitute valuable, special and unique proprietary and trade secret
information of the Company. In recognition of this fact, the Employee agrees
that the Employee will not disclose any such trade secrets or confidential or
proprietary information (except (i) information which becomes publicly available
without violation of this Employment Agreement, (ii) information of which the
Employee did not know and should not have known was disclosed to the Employee in
violation of
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any other person's confidentiality obligation, and (iii) disclosure required in
connection with any legal process), nor shall the Employee make use of any such
information for the benefit of any person, firm, operation or other entity
except the Company and its subsidiaries or affiliates. The Employee's
obligation to keep all of such information confidential shall be in effect
during and for a period of five (5) years after the termination of his
employment; provided, however, that the Employee will keep confidential and will
not disclose any trade secret or similar information protected under law as
intangible property (subject to the same exceptions set forth in the
parenthetical clause above) for so long as such protection under law is
extended.
10. Termination.
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(a) The Employee's employment with the Company may be terminated at any
time as follows:
(i) By the Employee at his discretion, upon ninety (90) days
written notice to Company;
(ii) By Employee's death;
(iii) By Employee's physical or mental disability which renders
Employee unable to perform his duties hereunder.
(iv) By the Company, for cause upon three (3) days written notice
to Employee. For purposes of this Agreement, the term "cause" shall mean
termination upon: (i) the failure by Employee to substantially perform his
duties with the Company; (ii) the engaging by Employee in conduct which is
materially injurious to the Company, monetarily or otherwise, including but not
limited to any material misrepresentation related to the performance of his
duties; (iii) the conviction of Employee of a felony or other crime involving
theft or fraud, (iv) Employee's neglect or misconduct in carrying out his duties
hereunder resulting, in either case, in material harm to the Company;(v)
insubordination;(vi) dereliction of duties or (vii) any material breach by
Employee of this Agreement.
(v) By the Company at its discretion, without cause, upon ninety
(90) days written notice to Employee.
(b) Compensation upon Termination
(i) In the event Employee's employment hereunder is terminated for
cause, Employee shall receive his base compensation through the date of such
termination and Employee shall be entitled to his accrued benefits under the
terms of the plans, policies and procedures of the Company.
(ii) In the event of termination of employment, the Employee or
his estate, in the event of death, shall be entitled to his annual base salary
and other benefits provided hereunder to the date of his termination. If
applicable, Employee or his estate shall be entitled to receive any bonuses
accrued to the date of such termination of employment and any vested incentive
compensation that may be deemed due and undisputed by Company.
(iii) In the event Employee terminates this Agreement prior to the
end of the initial term or during any renewal term hereof, Employee shall
forfeit and waive his right to any compensation provided to him hereunder which
is not deemed due and undisputed, earned and/or vested as of the date of such
termination. So long as Employee has not otherwise breached this Agreement or
is not otherwise in default under the terms hereof, Employee shall be entitled
to receive his base salary through his termination date, along with any bonuses
accrued as of date of such termination of employment and any vested incentive
compensation that may be deemed due and undisputed as of such termination date.
(iv) In the event the Company terminates Employee's employment
hereunder without cause pursuant to paragraph 10(a)(v), Employee shall continue
to receive his base annual salary compensation, then in effect, for a period of
six (6) months commencing on the date that Company gives written notice to
Employee of its intent to terminate his employment without cause, pursuant to
Section 10(a)(v) above, provided he is not, during such time, employed by a
competitor or otherwise in breach of this Agreement. Payment of any such base
compensation shall be made in the ordinary course of the Company's business in
accordance with its usual and customary payroll practices.
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11. Payments to Extend Covenant Not to Compete of Employee. In the
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event Company does not renew this Agreement upon the expiration of the initial
term of this Agreement or any renewal term, Company shall have the option to pay
Employee an amount equal to his base annual salary that was in effect prior to
such non-renewal of his Employment Agreement in twelve (12) consecutive equal
monthly installments commencing thirty (30) days after the date of termination
of employment in consideration for Employee not competing with Company for a
period of twelve (12) months from the date of the termination of his employment
for any of the reasons set forth above, as applicable.
12. Disability. In the event that Employee becomes temporarily
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disabled and/or totally and permanently disabled, physically or mentally, which
renders him unable to perform his duties hereunder, Employee shall receive one
hundred percent (100%) of his base annual salary (in effect at the time of such
disability) for a period of one (1) year following the initial date of such
disability (offset by any payments to the Employee received pursuant to
disability benefit plans, if any, maintained by the Company.) Such payments
shall be payable in twelve consecutive equal monthly installments and shall
commence thirty (30) days after the determination by the physicians of such
disability as set forth below.
For purposes of this Agreement, Employee shall be deemed to be temporarily
disabled and/or totally and permanently disabled if attested to by two qualified
physicians, (one to be selected by Company and the other by Employee) competent
to give opinions in the area of the disabled Employee's physical and/or mental
condition. If the two physicians disagree, they shall select a third physician,
whose opinion shall control. Employee shall be deemed to be temporarily
disabled and/or totally and permanently disabled if he shall become disabled as
a result of any medically determinable impairment of mind or body which renders
it impossible for such Employee to perform satisfactorily his duties hereunder,
and the qualified physician(s) referred to above certify that such disability
does, in fact, exist. The opinion of the qualified physician(s) shall be given
by such physician(s), in writing directed to the Company and to Employee. The
physician(s) decision shall include the date that disability began, if possible,
and the 12th month of such disability, if possible. The decision of such
physician(s) shall be final and conclusive and the cost of such examination
shall be paid by Company.
13. Severability. In case any one (1) or more of the provisions or
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part of a provision contained in this Agreement shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement. In such a situation, this Agreement shall be reformed and
construed as if such invalid, illegal or unenforceable provision, or part of a
provision, had never been contained herein, and such provision or part shall be
reformed so that it will be valid, legal and enforceable to the maximum extent
possible.
14. Governing Law, Jurisdiction and Venue. This Agreement shall be
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governed and construed under the laws of the Commonwealth of Kentucky. The
parties consent to exclusive jurisdiction and venue in the state courts of Xxxxx
County, Kentucky, or if there is federal jurisdiction, the U.S. District Court
for the Eastern District of Kentucky, shall have exclusive jurisdiction and
venue over any dispute arising out of this Agreement.
15. Notices. All notices, requests, demands and other communications
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relating to this Agreement shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed by certified or registered mail,
return receipt requested, postage prepaid:
If to Company, to: Xxxxxxx IT Solutions, Inc.
Attention: Legal Counsel
0000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
If to Employee, to the Employee's residential address, as set forth in the
Company's records.
16. Entire Agreement. This Agreement contains the entire understanding
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of the parties with respect to the subject matter contained herein and may be
altered, amended or superseded only by an agreement in writing, signed by the
party against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
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17. Parties in Interest. This Agreement shall inure to the benefit and
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shall be binding upon the Company, the Employee, and their respective
successors, assigns and heirs. The rights of any party under this Agreement
shall not be assignable, except that Company reserves the right to assign this
Agreement to any of its affiliates or subsidiaries, without Employee's consent.
Any assignee of Company shall be entitled to all rights and benefits of Company
contained in this Agreement.
The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
assets of the Company or the business with respect to which the duties and
responsibilities of Employee are principally related, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
Company would have been required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the assumption agreement provided for in
this Section or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
18. Representation of Employee. Employee represents and warrants that
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he is not party to or bound by any agreement or contract or subject to any
restrictions including without limitation any restriction imposed in connection
with previous employment which prevents Employee from entering into and
performing his obligations under this Agreement.
19. Prior Agreement. This Agreement shall supersede and cancel any
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previous agreement entered into by and between the Employee and Company
regarding the subject matter.
IN WITNESS WHEREOF, this Agreement has been executed effective as of the
day and year first above written.
WITNESSES: XXXXXXX IT SOLUTIONS, INC.
By: Xxxxx X. Xxxxxxxxxx
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Title:
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/s/ Xxxxx X. Xxxxxxxxxx
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EXHIBIT A TO EMPLOYMENT AGREEMENT
---------------------------------
XXXXX XXXXXXXXXX
CIO & SVP OF INFORMATION TECHNOLOGY
2006 PAY PLAN
Salary $225,000
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Signing Bonus 50,000 options upon signing stock options fully vested with five (5) year term
------------- 25,000 options granted upon 1st anniversary (subject to three year vesting)
25,000 options granted upon 2nd anniversary (subject to three year vesting)
T&E Reimbursement Discuss apartment rental & reimbursement of reasonable and customary expenses
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Communications Allowance $250 per month
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Restricted Stock Program Employee to be eligible after one (1) year of employment.
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Disability one year's base salary
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Life Insurance $500,000
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QUARTERLY BONUS TBD (IT RELATED, E.G. SOX 404 COMPLIANCE/REMEDIATION
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X = $15,000
Y = $20,000
Z = $25,000
QUARTERLY BONUS TBD (COMPANY RELATED)
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X = $15,000
Y = $20,000
Z = $25,000
YEAR END TOTAL COMPANY BONUS
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Minimum of X% NPBT required
> X million in sales = 25,000 + 20,000 options (2)
> Y million in sales = 50,000 + 30,000 options (2)
> Z million in sales = 75,000 + 40,000 options (2)
(1) If terminated without cause then employee is entitled to 6 months
severance.
(2) Options are subject to a three year vesting schedule. 50% of cash
consideration will vest over a three year period.
To the extent certain of the criteria for the bonus schedules above have not
been finalized, the parties agree that once the applicable business plans have
been finalized for the applicable fiscal periods, such criteria shall be reduced
to writing, signed by both parties and made a part of this Agreement.
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