EXHIBIT 10.16 Employment Agreement of Xxxxx X. Xxxx
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 1st day of July 2002, (the
"agreement"), by and between Prologic Management Systems, Inc., an Arizona
corporation (the "Company"), and Xxxxx X. Xxxx, an individual (the "Executive").
R E C I T A L S:
WHEREAS, the Company desires that the Executive be employed by the
Company in order to ensure that the services of Executive shall be available to
the Company on a long term basis; and
WHEREAS, Executive desires to be employed by the Company on the
following terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree as follows:
A G R E E M E N T:
1. The Employment Period.
Initial Period. The "Employment Period," shall be July 1, 2002 to June 30,
2005 ("Original Employment Period"), unless terminated or renewed pursuant to
the terms of this Agreement.
2. Employment and Duties.
(a) Employment. The Company hereby employs Executive and Executive hereby
accepts employment with the Company for the Employment Period as Chief Executive
Officer and as Chief Executive Officer of Basis, Inc., a wholly owned subsidiary
of the Company (or such other executive management positions as the Board of
Directors may elect from time to time) , reporting directly to the Board of
Directors of the Company. Executive shall perform such duties in said position
as may be reasonably specified from time to time by the Company's Board of
Directors (the "Board") or their designated representatives` for the Company,
its subsidiaries and affiliates. It is understood that Executive will use his
best efforts to perform his duties in the manner directed by the Board and in
compliance with all federal, state and local laws, ordinances and regulations.
(b) Time Devoted to Duties. Executive shall devote substantially all of his
non-personal time and efforts to the business of the Company, its subsidiaries
and affiliates, the amount of such time to be sufficient to permit him to
diligently and faithfully to serve and endeavor to further the Company's
interests to the best of his ability. Executive shall not, during the Employment
Period, (i) accept any other employment, or (ii) engage, directly or indirectly,
in any other business activity (whether or not pursued for pecuniary gain) that
is or may be competitive with, or that might place him in a competing position
to that of the Company or its subsidiaries or affiliates, provided, however,
that an investment of less than one percent (1%) in a public company which
competes with the Company but with which Executive has no other involvement will
not violate the terms hereof. The Executive hereby represents that his
employment hereunder and compliance by him of the terms and conditions of this
Agreement will not conflict with or result in the breach of any agreement by
which he may be bound.
(c) Relocation. The parties acknowledge that Executive resides in Tucson,
Arizona and will be initially based in Tucson, Arizona working from the
Company's corporate office. However, if the Company desires to relocate
Executive to an alternate site, then such relocation will be determined by
mutual agreement of Executive and the Company. In the event that the parties
cannot reach mutual agreement as to the permanent location/residence, the
Executive and, or the Company may terminate this agreement pursuant to section 4
(h).
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3. Compensation.
(a) Monetary Remuneration and Benefits. During the Employment Period, the
Company shall pay to Executive for all services rendered by him in any capacity:
(i) Salary. An annual salary of One Hundred Fifty
Thousand Dollars ($150,000), payable pursuant to the procedures
regularly established, and as they may be amended, by the Company
during the course of this Agreement. This rate may be subject to
increases from time to time in the sole and exclusive discretion of the
Board.
(ii) First Year Bonus Upon the signing of this
Agreement the Company shall pay to Executive a payment of Thirty-nine
Thousand Dollars ($39,000.00) less that certain loan to the Executive
in the amount of Thirteen Thousand Nine Hundred Dollars ($13,900.00).
The full amount ($39,000.00) shall be treated on the books of the
Company as reimbursement to Executive for business expenses incurred by
Executive in the performance of his duties. Executive agrees to waive
and/or abandon any and all claims against Company for any expense
reimbursements or other claims arising prior to July 1, 2002.
(iii) Acquisition Gross Profit Growth Bonus.
Executive shall be paid a quarterly incentive bonus calculated as one
percent (1.00%) of the quarterly reported gross profit resulting from
the acquisitions of companies and/or business units acquired by the
Company on or after May 15, 2002. Each quarterly incentive bonus
payment shall be paid to Executive within 75 days after the end of each
calendar quarter. "Reported", for the purpose of this bonus shall mean
the gross profit from the acquired companies as it became a part of the
total gross profit reported by the Company on its quarterly and annual
SEC filings. This bonus shall be paid on the first six reporting
quarters from the date of each acquisition.
(iv) Annual Consolidated Earnings Bonus. A bonus
based on the improvement of "Consolidated Earnings before Taxes,
Depreciation and Amortization," (EBTDA) which shall be an amount equal
to two percent (2%) of the annual increase in the Consolidated EBTDA
earnings of the Company for each of the fiscal years ending March 31,
2003, March 31, 2004 and March 31, 2005 ("Consolidated Earnings
Bonus"). The calculation shall be based on subtracting the previous
year EBITDA from the current year EBITDA, and if this amount is
positive, a bonus under this section shall be due. The calculations
regarding EBTDA shall be in conformance with general accepted
accounting standards as specified by the AICPA. Payment of the bonus
shall be made within ninety (90) days after the fiscal year end.
(b) Upon execution of this Agreement, Executive shall be granted an option
to purchase, for a period of five years from the date of grant, an aggregate
total of two hundred and fifty thousand (250,000) shares of Prologic Common
Stock (the "Options") at fifty cents ($0.50) per share, in the form of a
standard Option Agreement made in accordance with, and subject to, the Prologic
1994 Stock Option Plan or its successor plan (the "Plan"). The Options shall
become exercisable upon the date of the signing of this Agreement.
(c) Vacation. During the Employment Period, Executive will be given four
(4) weeks vacation with full pay and benefits, exclusive of the Company
holidays. This is subject to the policies regularly established and as they may
be amended by the Company.
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(d) Expenses. During the Employment Period, the Company agrees to reimburse
Executive for reasonable travel and other business expenses incurred by
Executive in the performance of his duties hereunder, in accordance with the
Company's reimbursement policies as they may be amended from time to time during
the Employment Period.
(e) Participation in Plans. As he becomes eligible and continues to be
eligible therefore, the Company shall provide the Executive with the right to
participate in such plans or programs generally made available by the Company to
or for the benefit of, its executives.
(f) Other Executive Benefits. As he becomes eligible and continues to be
eligible therefore, the Company will provide such employee benefits as are
provided by the Company to its other principal executives hereunder, including
medical, dental and/or disability insurance coverage, if any, on any policy for
the Company's principal executive officers and directors, and when applicable,
coverage as reasonably available to Executive as an Executive Officer of the
Company.
4. Termination of Employment.
(a) By Death. The Company shall pay to Executive's beneficiaries or estate,
as appropriate, the compensation to which he is entitled pursuant to Section 3
through the end of the month in which death of the Executive occurs. Thereafter,
the Company's obligations hereunder shall terminate.
(b) By Disability. If, in the sole opinion of the Board, Executive shall be
prevented from properly performing his duties hereunder by reason of any
physical or mental incapacity for a period of more than ninety (90) days in the
aggregate or sixty (60) consecutive days in any twelve-month period (the
"Disability Period"), then, to the extent permitted by law, the Employment
Period shall terminate on, and the compensation to which Executive is entitled
pursuant to Section 3 shall be paid up through, the last day of the month of the
Disability Period (of ninety (90) days or sixty (60) days, as applicable) and
thereafter the Executive's obligations, except those set forth in Section 6
hereunder, and the Company's obligations hereunder shall terminate. Nothing in
this Section shall affect Executive's rights under any disability insurance plan
in which he is a participant.
(c) By the Company for Cause. The Company may terminate, without liability
and without prejudice to any other remedy to which Employer may be entitled
either at law, in equity or under this Agreement, the Employment Period for
Cause (as defined below) at any time and without advance notice. The Company
shall pay Executive the compensation to which he is entitled pursuant to Section
5 (b) through the end of the day upon which notice is received and thereafter
the Executive's obligations, except those set forth in Section 6 hereunder, and
the Company's obligations hereunder shall terminate. Termination shall be for
"Cause" if:
(i) Executive acts or fails to act and such act or
failure to act is, in the reasonable opinion of the Board, in bad
faith, ,in conflict with any direction or order of the Board or is to
the material detriment of the Company or its subsidiaries or
affiliates;
(ii) Executive commits any act of dishonesty or a
felony affecting the Company, its subsidiaries or affiliates and such
act of dishonesty or felony adversely affects the Company, its
subsidiaries or affiliates or their or its reputation, business or
business relationships in a material manner;
(iiiii) Executive has a chemical or alcohol
dependency, which interferes with the performance of the Executive's
duties and responsibilities under this Agreement;
(iiv) Executive commits gross misconduct or neglect,
or, in the reasonable opinion of the Board, demonstrates incompetence
in the management of the tasks and objectives assigned to him;
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(v) Executive is convicted of a felony or any crime
involving moral turpitude, fraud or misrepresentation; or
(vi) Executive materially breaches any term of this
Agreement, if such breach is not cured within ten (10) days after
written notice thereof is provided by the Company to the Executive.
(d) By the Company without Cause. In the event the Company terminates the
Employment Period without Cause and without the written consent of the
Executive, the Company shall pay to Executive the severance payment to which he
is entitled to pursuant to Section 5(a), and thereafter the Executive's
obligations, except those set forth in Section 6 hereunder, and the Company's
obligations hereunder shall terminate.
(e) By Executive for Good Reason. The Executive may terminate his
employment hereunder for "Good Reason" (as described below) upon thirty (30)
days written notice. The Company shall pay to Executive the severance payment to
which he is entitled to pursuant to Section 5(a), and thereafter the Executive's
obligations, except those set forth in Section 6 hereunder, and the Company's
obligations hereunder shall terminate. Termination by Executive shall be for
"Good Reason" if:
(i) The duties and responsibilities assigned to
Executive are not reasonably consistent with the position and
responsibilities assumed by Executive under this Agreement, except
those set forth in Section 5 (c) under which this provision shall not
be applicable; and
(ii) The Company fails to cure within thirty (30)
days of the Company's receipt of notice from Executive of Company's
failure to perform its material obligations to Executive under this
Agreement.
(f) By Executive for Other Than Good Reason. The Employment Period may be
terminated for Other Than Good Reason by the Executive only upon the written
consent of the Company. In the event the Executive terminates the Employment
Period without Good Reason and without the written consent of the Company, the
Executive shall provide thirty (30) days advance written notice to the Company
and the Company shall have the rights set forth in Section 5 (b). Thereafter the
Executive's obligations, except those set forth in Section 6 hereunder, and the
Company's obligations hereunder shall terminate.
(g) By Company and Executive upon Mutual Agreement. The Employment Period
may be terminated upon the written consent of both the Company and the Executive
on terms to be mutually agreed upon. Thereafter the Executive's obligations,
except those set forth in Section 6 hereunder, and the Company's obligations
hereunder shall terminate.
(h) By Company or Executive upon Lack of Agreement on Relocation. The
Employment Period may be terminated upon the written notice ("Notice of
Termination") of either party that, after reasonable efforts by both parties to
determine an agreeable relocation site as set forth in Section 2 (c), agreement
cannot be achieved and therefore the party desires to terminate the agreement.
However, notice of termination under this provision shall not be permitted on or
before June 30, 2003. The Company shall pay to Executive the compensation
payments to which he is entitled to pursuant to Section 5(c), and thereafter the
Executive's obligations, except those set forth in Section 6 hereunder, and the
Company's obligations hereunder shall terminate.
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5. Benefits Upon Termination of Employment Period.
(a) Termination of Employment by the Company without Cause or by Executive
for Good Reason. In the event of termination prior to the completion of the
Original Employment Period by the Company without Cause (as defined in Section 4
(d)), or by the Executive for Good Reason (as defined in Section 4 (e)),
Executive shall be entitled to all compensation and accrued benefits earned by
him, including bonuses, prior to the date of termination as provided for in this
Agreement, pro rata up to and including that date. In addition, if termination
under this section occurs on or before June 30, 2003, then Executive shall be
entitled to twenty-four (24) months ("Severance Period") compensation, or if
termination under this section occurs after June 30, 2003, then Executive shall
be entitled to eighteen (18) months ("Severance Period") compensation as full
and complete severance ("Severance Compensation"). Severance Compensation as
used in this section is the monthly salary, which would be earned, and due under
Section 3 (a)(i). The Severance Compensation shall be paid monthly over the term
of the Severance Period. Upon such payment, the Company's obligations to the
Executive shall terminate. In addition, the Company will provide insurance
benefits as specified under Section 3 (e) for a period of ninety days after
termination
(b) Termination of Employment by Company for Cause or by Executive for
Other Than Good Reason. In the event of termination prior to the completion of
the Original Employment Period by the Company for Cause (as defined in Section 4
(c)) or by Executive other than for Good Reason (as defined in Section 4 (f)),
the Company shall pay to the Executive the compensation set forth in Section 3
(a) (i), (ii) and (iii) earned and accrued by him prior to the date of
termination. Upon such payment, the Company's obligations to the Executive shall
terminate. The Executive shall not be entitled to any other compensation or
other severance payment.
(c) Termination of Employment by the Company or by Executive upon Lack of
Agreement on Relocation. In the event of termination prior to the completion of
the Original Employment Period by the Company or by Executive upon Lack of
Agreement on Relocation (as defined in Section 4 (h)), Executive shall be
entitled to all compensation and accrued benefits earned by him, including
bonuses, prior to the date of termination as provided for in this Agreement, pro
rata up to and including that date. In addition, if termination under this
section occurs on or before June 30, 2003, then Executive shall be entitled to
twenty-four (24) months ("Severance Period") compensation, or if termination
under this section occurs after June 30, 2003, then Executive shall be entitled
to eighteen (18) months ("Severance Period") compensation as full and complete
severance ("Severance Compensation"). Severance Compensation as used in this
section is the monthly salary, which would be earned, and due under Section 3
(a)(i). The Severance Compensation shall be paid monthly over the term of the
Severance Period. Upon such payment, the Company's obligations to the Executive
shall terminate. In addition, the Company will provide insurance benefits as
specified under Section 3 (e) for a period of twelve months after termination.
6. Preservation of Business.
(a) General. During the Employment Period and subject to the provisions of
Section 2(b), Executive will use his best efforts to advance the business and
organization of the Company, its subsidiaries and affiliates, the services of
present and future employees and to advance its business relations with its
joint venture partners, suppliers, distributors, customers and others.
(b) Uniqueness of Services; Interference with Business; Competitive
Activities. The parties agree that the services that Executive will perform
hereunder are special, unique and extraordinary in nature and that, if the
Executive breaches the terms of this Agreement, it may reduce the value of the
Company and the Company may be entitled in appropriate instances (and in
addition to any remedy that it may have at law) to any equitable relief,
including injunctive relief, that may rightfully be awarded under applicable
law. Executive agrees that during the Employment Period and for one year after
termination thereof (the "Restricted Period"), he shall not, for himself or any
third party, directly or indirectly (i) divert or attempt to divert from the
Company or its subsidiaries or affiliates any existing business with clients,
vendors, business partners and/or strategic business opportunities in terms of
acquisitions and, or mergers in which it, the Company, its subsidiaries or
affiliates are engaged, or have the reasonable expectation of engaging in,
including, without limitation, the solicitation of or interference with any of
its potential customers, acquisitions, business partners, or prospective merger
candidates within the states in which the Company has offices or would have
offices pursuant to a pending acquisition or merger (the "Restricted Area"), or
(ii) employ, solicit for employment, or recommend for employment during the
Restricted Period any person employed by the Company, or by any of its
subsidiaries or affiliates, during the period of such person's employment and
for a period of six (6) months after such employee's termination. Executive
expressly acknowledges that the subject matter, territorial and time
restrictions contained in this paragraph are reasonable and are properly
required for the adequate protection of the Company's property interests.
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(c) Confidentiality and Non-Disclosure. During the course of employment,
Executive may become aware of certain methods, practices, procedures and other
proprietary information and inventions with which the Company conduct their
business, including but not limited to, trade secrets, confidential information,
knowledge, inventions, data or other information related to the Company relating
to products, processes, know-how, designs, customer lists, business plan,
marketing plans and strategies, and pricing strategies or any subject matter
pertaining to any business of the Company, or any of their clients, licensees or
affiliates, all of which the Company, and Executive agree are proprietary
information and as such are trade secrets and the property of the Company,
including any Confidential Property created by Executive during the term of his
employment and other proprietary information and inventions (herein
"Confidential Property"). Executive agrees to keep confidential, except as the
Company may otherwise consent in writing in advance, and not to disclose, or
make any use of except for the benefit of the Company, at any time either during
or subsequent to his employment, any Confidential Property which Executive may
produce, obtain, learn or otherwise acquire. Executive further agrees not to use
or encourage the use by others, including other employees of the Company, of any
Confidential Property. In the event of Executive's termination of employment
with the Company for any reason whatsoever, Executive will promptly surrender
and deliver to the Company all property of the Company including any
Confidential Property and records, materials, equipment, drawings and data of
any nature pertaining to any Confidential Property of the Company. Executive
will not take any written description containing or pertaining to any
Confidential Property of the Company.
7. Dispute Resolution; Remedies.
(a) Arbitration. In the event of any controversy or claim arising out of or
related to this Agreement, or the breach thereof, which has not been settled
through negotiation, such controversy or claim shall be settled by binding
arbitration administered by the American Arbitration Association (AAA) under its
National Rules for the Resolution of Employment Disputes and held in the Phoenix
Regional Offices of the AAA, subject to the laws of the state of Arizona, and
judgment on the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof, provided, however, that any controversy or claims
arising out of or related to Section 6 shall not be governed by this Section.
8. Miscellaneous.
(a) Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties with respect to the matters covered herein, and
may not be modified, amended or terminated except by a written instrument
executed by the parties hereto. All other agreements between the parties
pertaining to the employment or remuneration of Executive not specifically
contemplated hereby or incorporated herein are terminated and shall be of no
further force or effect.
(b) Assignment. Executive agrees that he will not assign, sell, transfer,
delegate or otherwise dispose of, whether voluntarily or involuntarily, or by
operation of law, any rights or obligations under this Agreement, nor shall
Executive's rights be subject to encumbrance or the claims of creditors. Any
purported assignment, transfer, or delegation by the Executive shall be null and
void. Executive hereby consents to the assignment of this Agreement to any of
the Company's direct or indirect subsidiaries or any of their affiliates or any
of their successors in interest, provided that such assignment shall not
materially and adversely effect the employment and duties of Executive
hereunder. Nothing in this Agreement shall prevent the consolidation of the
Company with, or its merger into, any other corporation, or the sale by the
Company of all or substantially all of its properties or assets, or the
assignment by the Company of this Agreement and the performance of its
obligations hereunder to any of their direct or indirect subsidiaries or any of
their affiliates or any of their successors in interest. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective heirs, legal representatives, successors,
and permitted assigns, and shall not benefit any person or entity other than
those enumerated above.
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(c) No Waiver. No waiver of any breach or default hereunder shall be
considered valid unless in writing and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature. The failure
of any party to insist upon strict adherence to any term of this Agreement on
any occasion shall not operate or be construed as a waiver of the right to
insist upon strict adherence to that term or any other term of this Agreement on
that or any other occasion.
(d) Enforcement; Severability. In the event that any term or provision of
this Agreement shall be deemed by a court of competent jurisdiction to be overly
broad in scope, duration or area of applicability, the court considering the
same shall have the power and is hereby authorized and directed to modify such
term or provision to limit such scope, duration or area, or all of them, so that
such term or provision is no longer overly broad and to enforce the same as so
limited. Subject to the foregoing sentence, in the event that any provision of
this Agreement shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall attach only to such provision and shall not
affect or render invalid or unenforceable any other provision of this Agreement.
The Executive agrees that the provisions of Section 6 hereof constitute
independent and separable covenants which shall survive the termination of the
Employment Period.
(e) Notices. Any notice permitted or required hereunder shall be in writing
and shall be deemed to have been given on the date of delivery or, if mailed by
registered or certified mail, postage prepaid, on the date of mailing:
If to Executive to: If to the Company to:
Xxxxx X. Xxxx Prologic Management Systems, Inc
XXXXXXXXXXX 0000 X. Xxxxxxxx Xx. #000
XXXXXXXXXXX Xxxxxx, XX 00000
Either party may, by notice to the other, change his or its address for notice
hereunder.
(f) Executive Acknowledgment. Executive acknowledges that (i) he has
consulted with or has had the opportunity to consult with independent counsel of
his own choice concerning this Agreement and has been advised to do so by the
Company, and (ii) he has read and understands the Agreement, is fully aware of
its legal effect, and has entered into it freely based on his own judgment.
(g) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which shall constitute one and the
same instrument.
(h) Headings. All headings appear in this Agreement for convenience only
and shall not be used in construing the terms hereof.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
PROLOGIC MANAGEMENT SYSTEMS, INC. EXECUTIVE
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxx
-------------------------- ----------------------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxx
Its: Chief Operating Officer
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