Exhibit 10.2 Execution Copy
--------------
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement",) is made and entered into as of August 1,
2002 between Rainmaker Software, Inc., a corporation organized under the laws of
the State of Delaware ("Rainmaker"), ASA International Ltd., a corporation
organized under the laws of the State of Delaware and the parent of Rainmaker
(the "Parent"), and Xxxxx X. Xxxxxxxx, an individual residing at 00 Xxxxxxxxxx
Xxx, Xxxxxx, Xxxxx 00000 ("HWM").
The parties hereby agree as follows:
1. Employment:
Rainmaker hereby employs HWM, with such duties, authority and powers as are
determined from time-to-time by Rainmaker. During the Term (as defined below) of
this Agreement, HWM shall not undertake any business activities which are (a)
competitive with those of Rainmaker or (b) which would materially interfere with
HWM's obligation to devote substantially all of his time and efforts to the
business of Rainmaker.
2. Term of Agreement:
This agreement commences on the date hereof and terminates on December 31,
2002 (the "Term"). Rainmaker shall have the right, on written notice to HWM, to
terminate HWM's employment prior to the end of the Term (a) immediately at any
time for Cause; or (b) at any time without Cause, provided Rainmaker shall be
obligated to continue to pay to HWM his Salary (as defined below) and benefits
for the remainder of the Term. For purposes of this Agreement, "Cause" shall
mean (i) the falseness of any warranty or representation by HWM herein; (ii)
fraud or embezzlement involving assets of Rainmaker, its customers, suppliers,
or affiliates, or other misappropriation of the Rainmaker's assets or funds;
(iii) HWM's conviction of a criminal felony offense; (iv) the willful breach or
habitual neglect of HWM's obligations under this Agreement or his duties as an
employee of Rainmaker, which breach or neglect is not cured within fifteen (15)
days of notice of the breach or neglect; or (v) habitual use of drugs.
3. Compensation:
HWM's compensation shall be the sum of $10,000 per month ("Salary"),
payable in accordance with Rainmaker's normal payroll practices. No severance
pay or similar payments shall be due to HWM upon the termination of this
Agreement.
4. Miscellaneous
i. During the Term of this Agreement Rainmaker shall: (a) reimburse HWM
for the lease charges, gasoline and insurance costs associated with operating
HWM's currently leased automobile; (b) pay all health insurance premiums for HWM
and his spouse for coverage under Rainmaker's group health insurance policy and
reimburse HWM for all medical expenses incurred during the Term of this
E-15
Agreement which are not covered by such health insurance policy and which are
documented in writing to the reasonable satisfaction of Rainmaker; and (c)
reimburse HWM for the expenses for telephone, internet access and similar
expenses reasonably necessary to permit HWM to work out of his home. During the
Term of this Agreement, HWM shall be eligible to participate in all other
benefit programs that are offered to employees of Rainmaker generally.
ii. Upon the execution of this Agreement, Rainmaker shall deposit the sum
of $74,000 into a separate interest-bearing bank account (the "Insurance Fund",
which shall include any interest earned on the funds held therein). Beginning on
January 1, 2003, Rainmaker shall, at the election of HWM, either (a) reimburse
HWM or (b) pay to health insurance companies or medical providers as directed by
HWM, solely from the Insurance Fund, any amounts paid or payable by or on behalf
of HWM for health insurance and/or medical costs that are not covered by health
insurance. Rainmaker shall provide such reimbursement or direct payment to third
parties upon receipt from HWM of documentation showing the amount and nature of
such costs, but Rainmaker shall have no obligation or responsibility to
determine the accuracy of such documentation. Rainmaker's obligations hereunder
shall be limited solely to reimbursing HWM or paying to third parties on behalf
of HWM as he directs, documented costs from the Insurance Fund, and upon the
distribution to HWM or payment to third parties of all funds in the Insurance
Fund, Rainmaker shall have no further obligations or responsibility to HWM
hereunder. HWM shall have the sole right and obligation to obtain health
insurance for himself and his family beginning January 1, 2003, subject to any
rights HWM may have under COBRA to continue to participate in Rainmaker's group
health insurance program. Notwithstanding anything to the contrary in this
Section 4(ii), HWM may at any time notify Rainmaker to deliver to HWM all funds
then remaining in the Insurance Fund, and upon such delivery Rainmaker shall
have no further obligations hereunder.
iii. HWM has and will acquire confidential information by virtue of his
employment with Rainmaker. HWM agrees to keep such information confidential. In
the event of any breach, threatened or actual, by HWM, it is expressly agreed
that, as the only remedy available to Rainmaker, Rainmaker shall be entitled as
a matter of right to an injunction to prevent such breach without the necessity
of posting a bond. If HWM challenges the right of Rainmaker to obtain an
injunction and a Court of competent jurisdiction determines that as a matter of
law the remedy of injunction is not available, or if HWM violates the terms of
any such injunction, then Rainmaker may then seek damages.
iv. All inventions, tradenames, trademarks, copyrights, improvements,
processes, devices and computer software made, discovered or developed by HWM
during the term of his employment with Rainmaker which may be directly or
indirectly useful in or which relate to any phase of the business in which
Rainmaker is engaged, is actively planning to be engaged or in which Rainmaker
or its predecessors have been engaged, shall be the sole and exclusive property
of Rainmaker. Upon the request and at the expense of Rainmaker, HWM shall make
application in due form to any domestic or foreign registry requested by
Rainmaker for patents, trademarks, copyrights or similar protection and will
assign to Rainmaker all his rights, title and interest to said inventions,
improvements, processes, devices, computer software, patents, trademarks,
tradenames and copyrights, and shall execute any instruments necessary or which
E-16
Rainmaker may deem desirable and will cooperate with Rainmaker in all respects
in connection with any continuations, renewals or reissues of patents,
trademarks, tradenames, copyrights or similar protection or in the conduct of
any proceedings or litigation in regard thereto. Upon termination of employment
with Rainmaker, HWM agrees to deliver to Rainmaker all records, documents, data
and computer media records of Rainmaker in his possession or custody.
Notwithstanding the foregoing, upon termination of employment, HWM shall have a
perpetual non-exclusive free license to use, improve, sell or license any of
computer software, invention, process, device or improvement developed by or
under the direction of HWM during his employment with Rainmaker, so long as
HWM's activities in this area are not competitive with the activities or planned
activities of Rainmaker at the time of the termination of this employment.
5. Split Dollar Agreement. Rainmaker acknowledges and agrees that
Rainmaker has, by operation of law as a result of the merger of CompuTrac, Inc.
with and into Rainmaker, succeeded to the interests of CompuTrac, Inc. under (i)
that certain Agreement and Conditional Collateral Assignment by and between HWM
and CompuTrac, Inc. dated as of February 1, 2001, a copy of which is attached
hereto as Exhibit A (the "Split Dollar Agreement") and (ii) that certain Split
Dollar Default Cure Agreement between HWM and CompuTrac, Inc. dated as of
December 31, 2001, a copy of which is attached hereto as Exhibit B (the "Cure
Agreement" and with the Split Dollar Agreement, the "Life Insurance
Agreements"). Rainmaker does hereby accept the terms, conditions, benefits and
obligations of the Life Insurance Agreements. Each reference in the Life
Insurance Agreements to CompuTrac, Inc. shall be deemed to be a reference to
Rainmaker from and after the date hereof.
6. Assignment. This Agreement and the rights and obligations of the p
arties hereto shall bind and inure to the benefit of any successor or successors
of Rainmaker by reorganization, merger, or consolidation and any assignee of all
or substantially all of its business and properties, but, except as to any such
successor or assignee of Rainmaker, neither this Agreement nor any rights or
benefits hereunder may be assigned by Rainmaker or by HWM, except by operation
of law.
7. Notices. Any notice which Rainmaker is required to or may desire to
give HWM shall be given by personal delivery or registered or certified mail,
return receipt requested, addressed to HWM at HWM's address of record with
Rainmaker, or at such other place as HWM may from time to time designate in
writing. Any notice which HWM are required or may desire to give to Rainmaker
hereunder shall be given by personal delivery or by registered or certified
mail, return receipt requested, addressed to Rainmaker at its principal office,
or at such other office as Rainmaker may from time to time designate in writing.
The date of personal delivery or the date of mailing any notice under this
Section 7 shall be deemed to be the date of delivery thereof.
8. Waivers. If either party should waive any breach of any provision of
this Agreement, such party shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
9. Complete Agreement; Amendments. The is the entire agreement of the
parties with respect to the subject matter hereof, superseding any previous oral
E-17
or written communications, representations, understandings, or agreements
between HWM and either Rainmaker or CompuTrac, Inc. or any officer or
representative thereof. Any amendment to this Agreement or waiver by Rainmaker
of any right hereunder shall be effective only if evidenced by a written
instrument executed by the parties hereto, upon authorization of Rainmaker's
Board of Directors.
10. Headings. The headings of the Sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning of this Agreement.
11. Counterparts. This Agreement may be signed in two counterparts, each
of which shall be deemed an original and both of which shall together constitute
one agreement.
12. Governing Law. This Agreement shall be governed by and construed
under Massachusetts law.
13. Guarantee. The Parent hereby guarantees the obligations of Rainmaker
hereunder.
[Next Page is Signature Page]
E-18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Rainmaker Software, Inc.
By: /s/Xxxxxxxx X. XxXxxxxx
----------------------------
Name: Xxxxxxxx X. XxXxxxxx
----------------------------
Title: Vice President
----------------------------
ASA International Ltd.
By: /s/Xxxxxxxx X. XxXxxxxx
----------------------------
Name: Xxxxxxxx X. XxXxxxxx
----------------------------
Title: VP & Treasurer
----------------------------
/s/Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx
E-19
