The Blackhawk Group, Inc. PO Box 377, Canal Street Station New York, NY 10013 T +1 917 338 7710 F +1 917 546 9048
The
Blackhawk Group, Inc.
XX Xxx
000, Xxxxx Xxxxxx Xxxxxxx
Xxx Xxxx,
XX 00000
T x0 000
000 0000 F x0 000 000 0000
December
9, 2010
Xx.
Xxxxxx V. E. Xxxxxx
0 Xxx
Xxxx Xxxx
Xxx Xxx,
XX 00000
Dear Xx.
Xxxxxx:
This
letter (this “Agreement”) confirms our mutual understanding that you, Xxxxxx V.
E. Xxxxxx (hereinafter, the “Executive”), have personally agreed with Blackhawk
Capital Group BDC, Inc. ("Blackhawk” or the “Company”) to accept an
offer of employment as defined below and, in connection with the Company’s
Regulation E offering, as described in Blackhawk’s Offering Circular dated
November 16, 2010 as amended (the “Offering”), to assist in securing equity
funding (the “Funding”) in an amount up to a maximum of $5,000,000,
or such lesser or greater amount as determined in the sole discretion of the
Company’s Board of Directors.
Interim employment terms and
compensation shall include the following:
Corporate
domicile: Greenwich, CT, or such nearby location as shall be
agreed to.
Interim Job Title of
Executive: President. The Executive shall with the Chief
Executive Officer be a senior operating executive of the Company.
Reporting Relationship;
Access: The Executive shall report directly to the Company’s Chairman of
the Board of Directors. The Executive shall have full access to the Company’s
books and records in the routine performance of the Executive’s
responsibilities.
Term of this
Agreement: the first to occur of one calendar year from the
date of execution of this Agreement or the date 90 days after the final closing
of the Offering, by which date the Company will enter into a formal employment
agreement with the Executive.
Base Salary: For the
first six months of the term of this Agreement, the Base Salary shall be $10,000
per month and for the remaining term of this Agreement, the Base Salary shall be
$15,000 per month, subject to customary withholding taxes and similar
deductions, which will be payable on the 15th day of
each month unless such day is not a Business Day (as identified under
Connecticut law) in which case payment shall be made on the immediate next
Business Day. At the election of the Executive, payment by the
Company shall be made either by check or by electronic payroll
deposit. The Base Salary obligation of the Company to the Executive
shall accrue until the Company closes the first $1,000,000 of Funding pursuant
to the Offering, at which time the accrued Base Salary shall be paid forthwith
and all subsequent monthly Base Salary obligations shall be paid on a current
basis as reflected above.
Compensation in Company
Stock: Upon the completion of the first $1,000,000 of Funding
under the Offering, the Executive shall receive forthwith 250,000 options on the
Company’s Common Stock, exercisable at $0.40 per share, and upon the completion
of the next subsequent $1,000,000 of Funding under the Offering, the Executive
shall receive forthwith an additional 250,000 Options on the Company’s Common
Stock, exercisable at $0.40 per share. Upon the completion of the
next subsequent $1,000,000 of Funding under the Offering, the Executive shall
receive an additional 200,000 Options forthwith on the Company’s Common Stock,
exercisable at $0.40 per share, and upon the completion of the next subsequent
$1,000,000 of Funding under the Offering, the Executive shall receive forthwith
an additional 200,000 Options on the Company’s Common Stock, exercisable at
$0.40 per share, all under the Company’s Stock Option and Grant
Plan.
Expenses: The Company
shall provide the Executive with a funded expense account for payment of third
party expenses incurred by the Executive in the routine and normal execution of
his responsibilities relating to the business and the Offering. The
account shall be funded at a monthly rate of $500.00. The Executive
shall submit receipts to the Company relating to the use of funds from the
expense account. Should the Executive need to incur an expense for
lodging, meals, travel or communication which in any single instance is in
excess of $250.00, the Executive shall inform the Company and ask the Company to
either directly pay the expense in advance or to fund the expense account with
an amount estimated to be sufficient to allow the expense to be paid in
advance. If such individual expense request is not approved by the
Company, the expense shall not be incurred.
Hold Harmless: During
the term of this Agreement, the Company shall indemnify and hold harmless the
Executive for any and all actions undertaken at the direction of or on behalf of
the Company with respect to the Offering and or the execution of his duties or
management of his responsibilities. Should the Executive require the
assistance of legal counsel in connection with matters arising under or from
this Hold Harmless provision, the Company shall be fully responsible for the
cost of legal counsel and related legal expenses.
Formal Employment Agreement
between the Company and the Executive:
The
Company and the Executive will enter into a formal employment agreement upon the
completion of the Offering. The terms of such employment agreement
shall include:
Title: President. The
Executive shall assume the additional title of Chief Executive Officer of the
Company at a time deemed appropriate by the Company and the Executive; it is the
intention of the parties to this Agreement that the Executive shall assume the
position of Chief Executive Officer of the Company within two years of the
signing of the formal employment agreement. The Executive shall also serve as
Chairman of the Company’s Investment Committee when the Company elects to either
acquire assets or fund investments to expand the Company’s investment portfolio.
Members of the Investment Committee shall be designated on a regular calendar
quarterly basis and shall include officers of the Company responsible for the
sourcing of potential investments. The Investment Committee shall recommend
investments and funding conditions to the Company’s senior executives for
approval. The Investment Committee shall meet as needed, but at least weekly.
The rules of operation of the Investment Committee shall be established in
writing and approved by the Company’s senior management prior to the Company’s
election to acquire assets or commence funding of investments.
Annual Salary: To be
determined by the Company and the Executive, but until such time as determined
and agreed in writing, the Executive shall continue to be compensated within the
provisions identified in the “Base Salary” section of this Agreement, except
that the monthly Base Salary shall be $25,000.
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Annual Bonus: Until
more specifically determined by the Company and the Executive, the Annual Bonus
shall be structured and paid in accordance with the scope, amount, standards and
practices of US publicly-traded Business Development Corporations for a
President or President and Chief Executive Officer, as
appropriate.
Participation in Blackhawk’s
Stock Option and Grant Plan: Until more specifically determined by the
Company and the Executive, participation in Blackhawk’s Stock Option and Grant
Plan shall be structured and paid in accordance with the scope, amount,
standards and practices of US publicly-traded Business Development Corporations
for a President or President and Chief Executive Officer, as
appropriate.
Other benefits: The
Executive may participate in the Company’s health insurance plan and other
benefit programs for senior Company management in accordance with the standards
and practices of US publicly-traded Business Development Corporations for a
President or President and Chief Executive Officer, as appropriate.
Responsibilities: The
Executive’s duties and responsibilities shall be commensurate with the standards
and practices of US publicly-traded Business Development Corporations for a
President or President and Chief Executive Officer, as appropriate. Such duties
and responsibilities shall be identified and agreed to by the Company and the
Executive in writing on or prior to the completion of the Offering.
Severance: Until an
Employment Agreement has been executed by the Executive and the Company, if the
Executive is terminated by the Company from employment with the Company for any
reason other than Cause (as defined according to the standards and practices of
US publicly-traded Business Development Corporations for a President or
President and Chief Executive Officer, as appropriate), the Executive shall be
paid immediately upon termination an amount equal to six months of either the
then-effective Base Salary or Annual Salary, whichever is in effect. At
termination, the Executive shall also receive all Stock Options that have been
granted to such time and a pro-rata amount, based on the number of months
completed within the current year as a percentage of twelve months, of the
higher of the prior year’s Annual Bonus payment to the Executive or the accrued
but unpaid current year’s Annual Bonus for the Executive. Under no circumstances
shall the Annual Bonus severance payment to the Executive be less than $100,000
if the Company at such time of termination shall have raised at least $1,500,000
pursuant to the Offering.
Directors and Officers
Insurance (D&O): At the earliest opportunity, the Company shall
obtain D&O coverage for the Directors and Officers of the Company, including
the Executive. The D&O coverage must be reasonably satisfactory to the
Executive, and the Executive shall be reasonable in evaluating the source of the
coverage and the terms of the policy(s).
Notices. All
notices, requests, approvals, demands and other communications required or
permitted to be given in connection with this Agreement shall be in writing and
shall be deemed to have been duly given: upon receipt, if personally delivered
or sent by facsimile transmission; one (1) business day after sending, if sent
by overnight delivery service; or two (2) business days after mailing, if mailed
by certified mail with return receipt requested, postage prepaid; and in each
case to such party at the following address:
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(a)
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If
to the Company:
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Xx. Xxxxx
X. Xxxxxx
President
and Chief Executive Officer
The
Blackhawk Group, Inc.
X.X. Xxx
000
Xxxxx
Xxxxxx Xxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
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(b)
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If
to the Executive:
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Xxxxxx V.
E. Xxxxxx
0 Xxx
Xxxx Xxxx
Xxx Xxx,
XX 00000
Amendments. This
Agreement may not be amended except by a written agreement signed by both
parties hereto.
Assignment; Binding
Effect. This Agreement may not be assigned by either party
without the prior written consent of the other party. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of the remaining provisions of this
Agreement.
Entire
Agreement. This Agreement and the documents incorporated by
reference herein constitute the entire agreement among the parties with respect
to the subject matter hereof and supersede all prior and contemporaneous
agreements, discussions or negotiations, whether written or oral.
Governing
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware without regard to principles of
conflicts of laws.
No Third Party
Rights. This Agreement is not intended and shall not be
construed to create any rights in any persons or entities other than the Company
and the Executive and no person or entity shall assert or be entitled to assert
any rights as third party beneficiary hereunder.
Counterparts. This
Agreement may be signed in any number of counterparts, each of which shall be an
original but all of which together shall constitute but one
agreement.
Waiver. The
failure or delay on the part of either party to exercise any right, power, or
privilege herein, shall not constitute a waiver thereof. No waiver shall be
effective unless in writing.
Headings. The
headings and captions in this Agreement are for convenience only and are not a
part of this Agreement.
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Interpretation. Neither
this Agreement nor any provision contained herein shall be interpreted for or
against either party solely because that party or that party's legal
representative drafted the provision.
Enforcement; Venue; Service
of Process. In the event either party shall seek enforcement
of any covenant, warranty or other term or provision of this Agreement or seek
to recover damages for the breach thereof, the party which prevails in such
proceedings shall be entitled to recover reasonable attorneys' fees and expenses
actually incurred by it in connection therewith. The parties hereto
agree that this Agreement is performable in New York County, New York and that
the sole and exclusive venue for any proceeding involving any claim arising
under or relating to this Agreement shall be the federal court (Southern
District of New York) located in New York County, New York. The
parties hereto agree that the service of process or any other papers upon them
or any of them by any of the methods specified and in accordance with the
Notices section herein (other than by telecopy) shall be deemed good, proper,
and effective service upon them.
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Very
truly yours,
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BLACKHAWK
CAPITAL GROUP BDC, INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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| Name: |
Xxxxx
X. Xxxxxx
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| Title: |
Chairman,
President and Chief Executive Officer
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Accepted
and Agreed to:
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By:
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/s/
Xxxxxx V.E. Xxxxxx
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| Name: |
Xxxxxx
V. E. Xxxxxx,
individually
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