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EXHIBIT 10(bb)
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into as of March 23, 2000, between CEREUS TECHNOLOGY PARTNERS, INC., a
Delaware corporation (the "Company"), and XXXXXX X. XXXXXXX (the "Employee"), an
individual resident of the State of Georgia.
1. TERM. The term (the "Term") of this Agreement shall begin on the
date hereof (the "Effective Date") and shall continue in effect for a period of
three (3) years from the Effective Date; provided, however, the Term shall be
extended automatically for an additional year on each anniversary of the
Effective Date unless either party hereto gives written notice to the other
party not to so extend at least ninety (90) days prior thereto, in which case no
further extension shall occur; provided further, however, that notwithstanding
any such notice by the Company not to extend, the Term shall not expire prior to
the expiration of twenty-four (24) months after the occurrence of a Change in
Control (as hereinafter defined).
2. EMPLOYMENT AND DUTIES. The Employee shall serve as the Company's
Chief Financial Officer, reporting to the Company's Chief Executive Officer, and
shall have such powers and duties as may from time to time be prescribed by the
Company's Board of Directors (the "Board"), provided that such duties are
consistent with the Employee's position as the senior financial officer of the
Company. The Company shall provide the Employee with a private office,
secretarial and administrative assistance, office equipment, supplies and other
facilities and services suitable to the Employee's position.
3. COMPENSATION.
3.1. SALARY. For all services to be rendered by the Employee
pursuant to this Agreement, the Company hereby agrees to pay the Employee a base
salary at an annual rate per year of $175,000 through and including March 23,
2001 and at an annual rate per year of $200,000 thereafter (the "Base Salary"),
payable in accordance with the Company's payroll practices in effect from time
to time; provided, however, that in the event of an occurrence of a Change in
Control (as hereinafter defined) prior to March 23, 2001, the Base Salary
hereunder shall be immediately increased to $200,000. The Base Salary shall be
reviewed at least annually and shall be increased pursuant to such review by a
percentage no less than the percentage increase in the consumer price index, as
published by the Bureau of Labor Statistics of the U.S. Department of Labor, for
the calendar year immediately preceding such review. Any increase in Base Salary
or other compensation granted by the compensation committee of the Board shall
in no way limit or reduce any other obligation of the Company hereunder. Once
established at an increased specified rate, the Base Salary hereunder shall not
thereafter be reduced, and the term Base Salary used in this Agreement shall
refer to the Base Salary as so increased.
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3.2. BONUS. In addition to her Base Salary, in the discretion of the
Board, the Employee may be awarded for each calendar year during the Term an
annual bonus (an "Annual Bonus") either pursuant to a bonus or incentive plan of
the Company or otherwise on terms no less favorable than those awarded to other
executive officers of the Company.
4. WARRANTS. Upon the execution hereof, the Company shall grant to the
Employee a warrant pursuant to a warrant certificate containing customary terms
and conditions (the "Warrant") to purchase 380,000 shares of the Company's
common stock, $.01 par value per share (the "Common Stock"), exercisable for
cash or on a cashless basis as follows:
(i) The Warrant may be exercised for 126,666 shares of
Common Stock at an exercise price of $17.75 per share from time to time
commencing on the first anniversary of the date hereof and ending on the tenth
anniversary of the date hereof.
(ii) The Warrant may be exercised for an additional 126,667
shares of Common Stock at an exercise price of $17.75 per share from time to
time commencing on the second anniversary of the date hereof and ending on the
tenth anniversary of the date hereof.
(iii) The Warrant may be exercised for an additional 126,667
shares of Common Stock at an exercise price of $17.75 per share from time to
time commencing on the third anniversary of the date hereof and ending on the
tenth anniversary of the date hereof.
5. BENEFITS. The Employee shall be entitled to all benefits and
conditions of employment provided by the Company to its executive officers,
including, without limitation, insurance, participation in the Company's
vacation policy, and participation in any stock option or incentive compensation
plans, pension, profit sharing or other retirement plans, subject (in each case)
to the terms of such plans and any provisions, rules, regulations and laws
applicable to such plans.
6. REIMBURSEMENT FOR BUSINESS EXPENSES. The Employee shall be
reimbursed for all reasonable out-of-pocket business expenses incurred by her in
the direct performance of her duties during her employment with the Company
pursuant to the terms of this Agreement and in accordance with the Company's
policies in effect from time to time. All requests for reimbursement shall be
substantiated by invoices and other pertinent data reasonably satisfactory to
the Company.
7. PERFORMANCE. The Employee shall devote all of her working time and
efforts to the business and affairs of the Company and to the diligent
performance of the duties and responsibilities assigned to her pursuant to this
Agreement, except for vacations, weekends and holidays. Notwithstanding the
foregoing, the Employee may render charitable, civic and outside board services
so long as such services do not materially interfere with the
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Employee's ability to discharge her duties, including, without limitation, such
outside services as the Employee is currently performing.
8. NON-DISCLOSURE OF PROPRIETARY INFORMATION; NON-COMPETITION;
NON-SOLICITATION.
8.1. CONFIDENTIAL INFORMATION; TRADE SECRETS. As used in this
Agreement, the term "Confidential Information" shall mean valuable, non-public,
competitively sensitive data and information relating to the Company's business
or the business of any entity affiliated with the Company, other than (i) Trade
Secrets (as defined below); (ii) information contained in any publicly available
press release, a regulatory filing or other public communication which is
otherwise in the public domain on the date of this Agreement; (iii) information
that hereafter enters the public domain through no action on the part of the
Employee; (iv) information that is known by the Employee or becomes available to
her from a source other than the Company or any of its affiliates, provided that
such information was not obtained as a result of a breach of any confidentiality
obligation by the source of such information; (v) information that was already
in the possession of the Employee prior to the date hereof and which was not
acquired from the Company or any of its affiliates; or (vi) information obtained
from discovery in a legal proceeding, but only to the extent such information is
used in such a proceeding. "Confidential Information" shall include, among other
things, information specifically designated as a Trade Secret that is,
notwithstanding the designation, determined by a court of competent jurisdiction
not to be a "trade secret" under applicable law. As used in this Agreement, the
term "Trade Secrets" shall mean information or data of or about the Company or
any entity affiliated with the Company, including, without limitation, technical
or non-technical data, formulas, patterns, compilations, programs, devices,
methods, techniques, drawings, processes, financial data, financial plans,
product plans, or lists of actual or potential customers or suppliers, that (i)
derive 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 their disclosure or use; and (ii) are subject of
efforts that are reasonable under the circumstances to maintain their secrecy.
To the extent that the foregoing definition is inconsistent with a definition of
"trade secret" under applicable law, the foregoing definition shall be deemed
amended to the extent necessary to render it consistent with applicable law.
8.2. NON-DISCLOSURE. The Employee will be exposed to Trade Secrets
and Confidential Information as a result of her employment by the Company as
provided in this Agreement. The Employee acknowledges and agrees that any
unauthorized disclosure or use of any of the Trade Secrets or Confidential
Information of the Company would be wrongful and would likely result in
immediate and irreparable injury to the Company. In consideration of the
Employee's right to employment (or continued employment) under the terms of this
Agreement, except as appropriate in connection with the performance of her
obligations under this Agreement, the Employee shall not, without the express
prior written consent of an executive officer of the Company other than the
Employee, redistribute, market, publish, disclose or divulge to any other person
or entity, or use or modify for use, directly or indirectly, in any way for any
person or entity (i) any Confidential Information
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during the Term of this Agreement and for a period of two (2) years after the
final date of the Term of this Agreement; and (ii) any Trade Secrets at any time
(during or after the Term of this Agreement) during which such information or
data shall continue to constitute a "trade secret" under applicable law. The
Employee agrees to cooperate with any reasonable confidentiality requirements of
the Company. The Employee shall immediately notify the Company of any
unauthorized disclosure or use of any Trade Secrets or Confidential Information
of which the Employee becomes aware.
8.3. NON-COMPETITION. The Employee shall not, either directly or
indirectly, alone or in partnership, manage, control, operate or own any
business that is substantially similar to the business of the Company during the
term hereof in any geographic area of the United States of America (a "Competing
Business") during the term hereof and, if the Employee's employment with the
Company shall be terminated pursuant to Section 13.1 or Section 13.3 hereof,
during the one (1) year period following the term hereof, except that the
Employee may own up to three percent (3%) of the outstanding securities of a
Competing Business the securities of which are registered with the Securities
and Exchange Commission if such Competing Business is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934, as amended (the
"1934 Act").
8.4. NON-SOLICITATION. For a period of one (1) year immediately
following any termination of the Employee's employment (other than a termination
pursuant to Section 12.2. or Section 12.4 hereof), the Employee will not
solicit, or participate in any solicitation of, the customers, suppliers,
employees or representatives of the Company (or any of its subsidiaries or
affiliated companies) to breach any contract with the Company, terminate any
relationship with the Company or leave the Company. For purposes of this
Agreement, customers shall be limited to actual customers or actively-sought
prospective customers of the Company or any subsidiary or affiliate of the
Company with whom the Employee has had substantial contact during the Term of
this Agreement.
9. CERTAIN DEFINITIONS.
9.1. ACCRUED COMPENSATION. For purposes of this Agreement, "Accrued
Compensation" shall mean an amount which shall include all amounts earned or
accrued through the "Termination Date" (as hereinafter defined) but not paid as
of the Termination Date, including, without limitation, (i) Base Salary, (ii)
reimbursement for reasonable and necessary expenses incurred by the Employee on
behalf of the Company during the period ending on the Termination Date, (iii)
vacation pay, (iv) bonuses, including, without limitation, any Annual Bonus, and
incentive compensation, and (v) all other amounts to which the Employee is
entitled under any compensation plan of the Company at the times such payments
are due.
9.2. BASE AMOUNT. For purposes of this Agreement, "Base Amount"
shall mean the Employee's annual Base Salary at the highest rate in effect on,
or at any time during the ninety (90) day period prior to, the Termination Date
and shall include all amounts
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of the Employee's Base Salary that are deferred under any qualified and
non-qualified employee benefit plans of the Company or any other agreement or
arrangement.
9.3. CAUSE. For purposes of this Agreement, a termination of
employment is for "Cause" if the Employee has been convicted of a felony or if
the termination is evidenced by a resolution adopted in good faith by two-thirds
(2/3) of the Board that the Employee (i) intentionally and continually failed
substantially to perform her reasonably assigned duties with the Company (other
than a failure resulting from the Employee's incapacity due to physical or
mental illness or from the Employee's assignment of duties that would constitute
"Good Reason" (as hereinafter defined)) which failure continued for a period of
at least thirty (30) days after a written notice of demand for substantial
performance has been delivered to the Employee specifying the manner in which
the Employee has failed substantially to perform, or (ii) intentionally engaged
in illegal conduct or gross misconduct which results in material economic harm
to the Company; provided, however, that (A) where the Employee has been
terminated for Cause because a felony prosecution has been brought against her
and no conviction or plea of guilty or plea of nolo contendere or its equivalent
results therefrom, then said termination shall no longer be deemed to have been
for Cause and the Employee shall be entitled to all the benefits provided by
Section 11.1(i) hereof from and after the date on which the prosecution of the
Employee has been dismissed or a judgement of acquittal has been entered,
whichever shall first occur; and (B) no termination of the Employee's employment
shall be for Cause as set forth in clause (ii) above until (x) there shall have
been delivered to the Employee a copy of a written notice setting forth that the
Employee was guilty of the conduct set forth in clause (ii) and specifying the
particulars thereof in detail, and (y) the Employee shall have been provided an
opportunity to be heard in person by the Board (with the assistance of the
Employee's counsel if the Employee so desires). No act, or failure to act, on
the Employee's part shall be considered "intentional" unless the Employee has
acted or failed to act with a lack of good faith and with a lack of reasonable
belief that the Employee's action or failure to act was in the best interests of
the Company. Any act, or failure to act, based upon authority given pursuant to
a resolution duly adopted by the Board or upon the instructions of any senior
officer of the Company or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the Employee in
good faith and in the best interests of the Company. Any termination of the
Employee's employment by the Company hereunder shall be deemed to be a
termination other than for Cause unless it meets all requirements of this
Section 9.3.
9.4. CHANGE IN CONTROL. For purposes of this Agreement, a "Change in
Control" shall have occurred if:
(i) a majority of the directors of the Company shall be
persons other than persons: (A) for whose election proxies shall have been
solicited by the Board, or (B) who are then serving as directors appointed by
the Board to fill vacancies on the Board caused by death or resignation (but not
by removal) or to fill newly-created directorships;
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(ii) a majority of the outstanding voting power of the
Company shall have been acquired or beneficially owned (as defined in Rule 13d-3
under the 1934 Act or any successor rule thereto) by any person (other than the
Company, a subsidiary of the Company or the Employee) or Group (as defined
below), which Group does not include the Employee; or
(iii) there shall have occurred:
(A) a merger or consolidation of the Company with or
into another corporation (other than (1) a merger or consolidation with a
subsidiary of the Company, (2) a merger or consolidation in which (a) the
holders of voting stock of the Company immediately prior to the merger as a
class continue to hold immediately after the merger at least a majority of all
outstanding voting power of the surviving or resulting corporation or its parent
and (b) all holders of each outstanding class or series of voting stock of the
Company immediately prior to the merger or consolidation have the right to
receive substantially the same cash, securities or other property in exchange
for their voting stock of the Company as all other holders of such class or
series, or (3) a merger or consolidation in which a majority of the directors of
the surviving corporation after the consummation of such merger or consolidation
are persons (a) who were serving as directors of the Company immediately prior
to such consummation or (b) who are appointed to serve as directors of the
surviving corporation by a majority of the directors of the Company immediately
prior to such consummation or whose appointment has been agreed to by such
majority);
(B) a statutory exchange of shares of one or more
classes or series of outstanding voting stock of the Company for cash,
securities or other property;
(C) the sale or other disposition of all or
substantially all of the assets of the Company (in one transaction or a series
of transactions); or
(D) the liquidation or dissolution of the Company;
unless more than twenty-five percent (25%) of the voting stock (or the voting
equity interest) of the surviving corporation or the corporation or other entity
acquiring all or substantially all of the assets of the Company (in the case of
a merger, consolidation or disposition of assets) or of the Company or its
resulting parent corporation (in the case of a statutory share exchange) is
beneficially owned by the Employee or a Group that includes the Employee.
9.5. GROUP. For purposes of this Agreement, "Group" shall mean any
two or more persons acting as a partnership, limited partnership, syndicate, or
other group acting in concert for the purpose of acquiring, holding or disposing
of voting stock of the Company.
9.6. DISABILITY. For purposes of this Agreement, "Disability" shall
mean a physical or mental infirmity which impairs the Employee's ability to
substantially perform her duties with the Company for a period of one hundred
eighty (180) consecutive days and
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the Employee has not returned to her full time employment prior to the
Termination Date as stated in the "Notice of Termination" (as hereinafter
defined).
9.7. GOOD REASON.
9.7.1. For purposes of this Agreement, "Good Reason" shall mean
a good faith determination by the Employee, in the Employee's sole and absolute
judgment, that any one or more of the following events has occurred, without the
Employee's express written consent:
(i) the assignment to the Employee of any duties
inconsistent with the Employee's position (including, without limitation,
status, titles and reporting requirements), authority, duties or
responsibilities as in effect immediately prior to the date of such assignment,
or any other action by the Company that results in a material diminution in such
position, authority, duties or responsibilities, excluding for this purpose
isolated and inadvertent action not taken in bad faith and remedied by the
Company promptly after receipt of notice thereof given by the Employee;
(ii) a reduction by the Company in the Employee's Base
Salary, as the same may be increased from time to time, or a change in the
eligibility requirements or performance criteria under any bonus, incentive or
compensation plan, program or arrangement under which the Employee is covered
immediately prior to the Termination Date which adversely affects the Employee;
(iii) any failure to pay the Employee any compensation
or benefits to which she is entitled within five (5) days of the date due after
notice of the failure to so pay is given by the Employee;
(iv) the Company's requiring the Employee to be based
anywhere other than within fifty (50) miles of the Employee's job location as of
the date hereof, except for reasonably required travel on the Company's business
which is not greater than such travel requirements prior to the date hereof;
(v) the taking of any action by the Company that would
materially adversely affect the physical conditions existing in or under which
the Employee performs her employment duties;
(vi) the insolvency or the filing (by any party,
including the Company) of a petition for bankruptcy by the Company;
(vii) any purported termination of the Employee's
employment for Cause by the Company which does not comply with the terms of
Section 9.3 hereof; or
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(viii) any breach by the Company of any provision of
this Agreement.
9.7.2. The Employee's right to terminate her employment
pursuant to this Section 9 shall not be affected by her incapacity due to
physical or mental illness.
9.8. NOTICE OF TERMINATION. For purposes of this Agreement, "Notice
of Termination" shall mean a written notice of termination from the Company of
the Employee's employment which indicates the specific termination provision in
this Agreement relied upon and which sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
9.9. TERMINATION DATE. For purposes of this Agreement, "Termination
Date" shall mean, in the case of the Employee's death, her date of death, in the
case of the Employee's voluntary termination, the last day of employment, and in
all other cases (other than in the case of a successor or an assignee, which is
provided for in Section 13.1 hereof), the date specified in the Notice of
Termination; provided, however, that if the Employee's employment is terminated
by the Company for Cause or due to Disability, the date specified in the Notice
of Termination shall be at least thirty (30) days from the date the Notice of
Termination is given to the Employee; and provided further that in the case of
Disability the Employee shall not have returned to the full-time performance of
her duties during such period of at least thirty (30) days.
10. CERTAIN BENEFITS AND PAYMENTS.
10.1. COMPENSATION AND BENEFITS UPON TERMINATION OF EMPLOYMENT.
10.1.1. If, during the term of this Agreement, the Employee's
employment with the Company shall be terminated, the Employee shall be entitled
to the following compensation and benefits in the following circumstances:
(i) If the Employee's employment with the Company
shall be terminated (A) by the Company for Cause or Disability or (B) by reason
of the Employee's death, then the Company shall pay to the Employee all Accrued
Compensation.
(ii) If the Employee's employment with the Company
shall be terminated (A) by the Company pursuant to Section 12.2 hereof or (B) by
the Employee pursuant to Section 12.4 hereof, then the Employee shall be
entitled to the following:
(1) the Company shall pay the Employee all
Accrued Compensation;
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(2) the Company shall pay the Employee as
severance pay and in lieu of any further compensation for periods subsequent to
the Termination Date an amount in cash equal to two (2) times the Base Amount;
and
(3) for twenty-four (24) months or such longer
period as may be provided by the terms of the appropriate program, practice or
policy, the Company shall, at its expense, continue on behalf of the Employee
and her dependents and beneficiaries the life insurance, disability, medical,
dental and hospitalization benefits generally made available to the Company's
executive officers at any time during the 90-day period prior to the Termination
Date or at any time thereafter, provided that (i) the Company's obligation
hereunder with respect to the foregoing benefits shall be limited to the extent
that the Employee obtains any such benefits pursuant to a subsequent employer's
benefit plans, in which case the Company may reduce the coverage of any benefits
it is required to provide the Employee hereunder as long as the aggregate
coverages and benefits of the combined benefit plans are no less favorable to
the Employee than the coverages and benefits required to be provided hereunder,
and (ii) this clause (3) shall not be interpreted so as to limit any benefits to
which the Employee or her dependents or beneficiaries may be entitled under any
of the Company's employee benefit plans, programs or practices following the
Employee's termination of employment, including, without limitation, retiree
medical and life insurance benefits.
10.1.2. The amounts provided for in subsection 10.1.1(i) shall
be payable to Employee in a lump-sum on the Termination Date, and the amounts
provided for in subsection 10.1.1(ii) shall be payable to the Employee in
substantially equal bi-weekly installments for a twenty-four (24) month period
commending on the Termination Date and otherwise in accordance with the
Company's payroll practices in effect from time to time.
10.1.3. The Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise, and no such payment shall be offset or reduced by the amount of
any compensation or benefits provided to the Employee in any subsequent
employment, except as provided in subsection 10.1.1(ii)(3).
10.1.4. The severance pay and benefits provided for in this
Section 10.1 shall be in lieu of any other severance or termination pay to which
the Employee may be entitled under any Company severance or termination plan,
program, practice or arrangement.
10.1.5. The Employee's entitlement to any other compensation or
benefits upon her termination of employment with the Company shall be determined
in accordance with the Company's employee benefit plans and other applicable
programs, policies and practices then in effect.
10.2. ACCELERATION UPON CHANGE IN CONTROL. Immediately upon the
occurrence of a Change in Control, (i) the restrictions on any outstanding
incentive awards
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(including, without limitation, restricted stock and granted performance shares
or units) under any incentive plan or arrangement shall lapse and such incentive
awards shall become 100% vested, and (ii) all stock options, warrants and stock
appreciation rights granted to the Employee on or prior to the date of this
Agreement shall become immediately exercisable and 100% vested (all incentive
awards, stock options, warrants and stock appreciation rights whose vesting has
been accelerated hereunder are hereinafter referred to as the "Accelerated
Awards"). Notwithstanding anything to the contrary contained in the plan,
agreement or other instrument relating to any Accelerated Award with regard to
the period of time within which such Accelerated Award must be exercised (the
"Normal Exercise Period"), in the event that Employee's employment with the
Company terminates for any reason whatsoever (whether such termination is
voluntary or involuntary) following a Change in Control, all such Accelerated
Awards may be exercised at any time and from time to time (i) until the one (1)
year anniversary of the date of such termination or (ii) the end of the Normal
Exercise Period, whichever is last to occur.
11. GROSS-UP PAYMENTS.
11.1. ADDITIONAL PAYMENTS. Anything in this Agreement to the
contrary notwithstanding and except as set forth below, in the event it shall be
determined that any payment or distribution by the Company to or for the benefit
of the Employee (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 11) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Employee with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Employee
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Employee of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Employee
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments. Notwithstanding the foregoing provisions of this Section 11.1, if
it shall be determined that the Employee is entitled to a Gross-Up Payment, but
that the Payments do not exceed 110% of the greatest amount (the "Reduced
Amount") that could be paid to the Employee such that the receipt of Payments
would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to
the Employee and the Payments, in the aggregate, shall be reduced to the Reduced
Amount.
11.2. DETERMINATION. Subject to the provisions of Section 11.3, all
determinations required to be made under this Section 11, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by a nationally-recognized accounting firm selected by the Company and
reasonably acceptable to the Employee (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Company and the Employee
within fifteen (15) business days of the receipt of notice
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from the Employee that there has been a Payment, or such earlier times as is
requested by the Company. All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 11, shall be paid by the Company to the Employee within five (5)
days of the receipt of the Accounting Firm's determination. Any determination by
the accounting Firm shall be binding upon the Company and the Employee. As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 11.3 and the Employee thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Employee.
11.3. INTERNAL REVENUE SERVICE CLAIM. The Employee shall notify the
Company in writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no later than ten
(10) business days after the Employee is informed in writing of such claim and
shall apprise the Company of the nature of such claim and the date on which such
claim is requested to be paid. The Employee shall not pay such claim prior to
the expiration of the 30-day period following the date on which the Employee
gives such notice to the Company (or such shorter period ending on the date that
any payment of taxes with respect to such claim is due). If the Company notifies
the Employee in writing prior to the expiration of such period that it desires
to contest such claim, the Employee shall:
(i) give the Company any information reasonably requested
by the Company relating to such claim;
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order
effectively to contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including, without limitation, additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold the
Employee harmless, on an after-tax basis, for any Excise Tax or income tax
(including, without limitation, interest and penalties with
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respect thereto) imposed as a result of such representation and payment of costs
and expenses. Without limitation on the foregoing provisions of this Section
11.3, the Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct the Employee to
pay the tax claimed and xxx for a refund or contest the claim in any permissible
manner, and the Employee agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Company shall determine; provided, however,
that if the Company directs the Employee to pay such claim and xxx for a refund,
the Company shall advance the amount of such payment to the Employee on an
interest-free basis and shall indemnify and hold the Employee harmless, on an
after-tax basis, from any Excise Tax or income tax (including, without
limitation, interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Employee with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Employee shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
11.4. REFUNDS. If, after the receipt by the Employee of an amount
advanced by the Company pursuant to Section 11.3, the Employee becomes entitled
to receive any refund with respect to such claim, then the Employee shall
(subject to the Company's complying with the requirements of Section 11.3)
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Employee of an amount advanced by the Company pursuant to Section
11.3, a determination is made that the Employee shall not be entitled to any
refund with respect to such claim and the Company does not notify the Employee
in writing of its intent to contest such determination, then such advance shall
be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
12. TERMINATION. The Employee's employment hereunder may be terminated
without any breach of this Agreement only in accordance with this Section 12.
12.1. TERMINATION BY THE COMPANY FOR CAUSE. The Company may
terminate the Employee's employment at any time for Cause by providing to the
Employee a Notice of Termination, whereupon the Employee shall be entitled to
all of the benefits and payments provided for under Section 10.1 hereof.
12.2. TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may
terminate the Employee's employment at any time without Cause by providing to
the
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Employee a Notice of Termination, whereupon the Employee shall be entitled
to all of the benefits and payments provided for under Section 10.1 hereof.
12.3. TERMINATION BY THE EMPLOYEE. The Employee's employment may be
terminated by the Employee at any time by providing the Company with notice of
such termination and specifying in the notice the effective date of such
termination, which shall not be less than one hundred twenty (120) days after
giving such notice, whereupon the Employee's employment shall terminate on the
date specified in such notice and the Employee shall be entitled to all of the
benefits and payments provided for under Section 10.1 hereof; provided, however,
that following receipt of such notice, the Company may specify, in its
discretion, the date on which the Employee's employment shall terminate so long
as the date so specified is not more than one hundred twenty (120) days after
the date on which the Employee shall have given notice, in which case the
Employee's employment shall terminate on the date so specified by the Company.
12.4. TERMINATION BY THE EMPLOYEE FOR GOOD REASON FOLLOWING A
CHANGE OF CONTROL. For a (1) year period following a Change of Control, the
Employee's employment may be terminated by the Employee for Good Reason at any
such time during such one (1) year period by providing the Company with a notice
of such termination and specifying in the notice the effective date of such
termination, whereupon the Employee's employment shall terminate on the date
specified in such notice and the Employee shall be entitled to all of the
benefits and payments provided for under Section 10.1 hereof.
12.5. TERMINATION UPON DISABILITY. The Company may terminate the
Employee's employment upon the Disability of the Employee by providing to the
Employee a Notice of Termination, whereupon the Employee shall be entitled to
all of the benefits and payments provided for under Section 10.1 hereof.
12.6. DEATH. In the event of the Employee's death during her
employment hereunder, the Employee's employment shall be automatically
terminated, whereupon the Employee shall be entitled to all of the benefits and
payments provided for under Section 10.1 hereof.
13. SUCCESSORS AND ASSIGNS.
13.1. ASSUMPTION AND AGREEMENT. This Agreement shall be binding
upon and shall inure to the benefit of the Company, its successors and assigns,
and the Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) or assign, by agreement in form
and substance satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession or assignment had
taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession or assignment shall be a
breach of this Agreement and shall entitle the Employee to compensation from the
Company in the same amount and on the same terms as she would be entitled to
hereunder if her employment had been
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terminated pursuant to Section 12.2 hereof, except that for purposes of
implementing the foregoing, the date on which any such succession or assignment
becomes effective shall be deemed the Termination Date hereunder. As used in the
Agreement, Company shall mean the Company as hereinbefore defined and any
successor or assign that executes and delivers the agreement provided for in
this Section 13.1 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
13.2. RIGHTS OF EMPLOYEE. This Agreement and all rights of the
Employee hereunder shall inure to the benefit of and be enforceable by the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devises and legatees. If the Employee should
die while any amounts would still be payable to her hereunder if she had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Employee's devise,
legatee or other designee or, if there be no such designee, to the Employee's
estate.
14. INJUNCTIVE RELIEF. The Company and the Employee agree that damages
are an inadequate remedy for, and that the Company or any successor to the
business of the Company would be irreparably harmed by, any breach of Section 8
of this Agreement, and that the Company, any successor to the business of the
Company or any permitted assignee of the Company shall be entitled to equitable
relief in the form of a preliminary or permanent injunction upon any breach of
Section 8 hereof.
15. NOTICES. For the purpose of this Agreement, notices and all other
communications to either party hereunder provided for in the Agreement shall be
in writing and shall be deemed to have been duly given when delivered in person
or mailed by first-class mail or airmail, postage prepaid, addressed:
If to the Employee:
Xx. Xxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxx Xx.
Xxxxxxxx, Xxxxxxx 00000
If to the Company:
Cereus Technology Partners, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: President
or to such other address(es) as either party may have furnished to the other
party in writing in accordance with this Section.
16. MISCELLANEOUS. No provision of this Agreement may be amended,
modified or waived unless such amendment, modification or waiver (i) is agreed
to in writing and is
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signed by the Employee and a representative of the Company, its successor or
permitted assignee and (ii) has been approved by the Board, its successor or any
permitted assignee of the Company. No waiver by either party to this Agreement
at any time of breach by the other party of, or compliance by the other party
with, any condition or provision of this Agreement to be performed by the other
party shall be deemed to be a waiver of similar or dissimilar provisions or
conditions at the same or any prior or subsequent time. No agreements or
representations, oral or otherwise, expressed or implied, with respect to the
subject matter of this Agreement have been made by either party that are not
expressly set forth in this Agreement.
17. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
the other provisions of this Agreement, which other provisions shall remain in
full force and effect, nor shall the invalidity or unenforceability of a portion
of any provision of this Agreement affect the validity or enforceability of the
balance of such provision.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute a single agreement.
19. HEADINGS. The headings of the paragraphs contained in this
Agreement are for reference purposes only and shall not, in any way, affect the
meaning or interpretation of any provision of this Agreement.
20. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal substantive laws, and not the choice of law
rules, of the State of Georgia.
21. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof, other than the provisions of Section 8
hereof, shall, on the written request of one party served upon the other, be
settled by binding arbitration in Xxxxxx County, Georgia in accordance with the
commercial arbitration rules then recognized by the American Arbitration
Association, and judgment upon the award rendered may be entered and enforced in
any court having jurisdiction thereof.
22. FEES AND EXPENSES. The Company shall pay all legal fees and related
expenses incurred by the Employee as they become due as a result of or in
connection with (i) the Employee's termination of employment (including, without
limitation, all such fees and expenses, if any, incurred in contesting or
disputing any such termination of employment), (ii) the Employee seeking to
obtain or enforce any right or benefit provided by this Agreement (including,
without limitation, any such fees and expenses incurred in connection therewith)
or by any other plan or arrangement maintained by the Company under which the
Employee is or may be entitled to receive benefits, (iii) the Employee's hearing
before the Board as contemplated in Section 9.3 of this Agreement, (iv) any tax
audit or proceeding to the extent attributable to the application of any Excise
Tax with respect to
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any Payment or Payments hereunder, plus in each case interest on any delayed
payment at the "Applicable Federal Rate," as defined in Section 1274(d) of the
Code, as then in effect, and (v) the preparation and execution of this
Agreement.
23. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements (if any),
understandings and arrangements (oral or written) between the parties hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and delivered by its duly authorized officer, and the Employee has
executed and delivered this Agreement, all as of the date first written above.
CEREUS TECHNOLOGY PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Its: Chief Executive Officer
---------------------------------
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------
XXXXXX X. XXXXXXX
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