EXHIBIT 10.3
YGCD ASSETS, INC.
EMPLOYMENT AGREEMENT
This Agreement entered into this 6th day of March, 2000, by and between
YGCD Assets, Inc. ("Company") and Xxxxx Xxxxx ("Executive"), effective on the
Effective Date.
WHEREAS, the parties desire by this writing to set forth the employment
relationship of the Company and the Executive.
NOW, THEREFORE, it is AGREED as follows:
1. Defined Terms
When used anywhere in the Agreement, the following terms shall have
the meaning set forth herein.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Change in Control" shall mean the transfer of ownership,
holding or power to vote more than 40% of the Company's voting stock by any
person or persons acting as a "group" (within the meaning of Section 13(d) of
the Securities Exchange Act of 1934). For purposes of this paragraph only,
the term "person" refers to an individual or a corporation, partnership,
trust, association, joint venture, pool, syndicate, sole proprietorship,
unincorporated organization or any other form of entity not specifically
listed herein; provided, however, that a "Change in Control" shall not be
deemed to have occurred if arising from (i) acquisitions by employee benefit
plans sponsored by the Company or its affiliates, or, (ii) acquisitions of
stock directly from the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and as interpreted through applicable rulings and
regulations in effect from time to time.
(d) "Code Section 280G Benefit" shall mean the product of 2.00 and
the Executive's "base compensation" as defined in paragraph 3 below.
(e) "Company" shall mean YGCD Assets, Inc., and any successor to
its interest.
(f) "Common Stock" shall mean common stock of the Company.
(g) "Confidential Information" shall mean any information that is
confidential, proprietary or trade secret information of Company or any of its
customers or clients or any other information the use or disclosure of which
by Company is prohibited or restricted (e.g., by reason of any contract, court
order, law or other obligation by which Company is bound). "Confidential
Information" may include, but is not necessarily limited to, technology,
computer programs, business plans, marketing plans, information as to existing
or future products or services of Company, financial projections, unpublished
works of original authorship, customer lists, financial information, and trade
secrets. "Confidential Information" shall not include any information in the
public domain if readily accessible to the public at large.
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(h) "Disability" shall mean the practical inability of the
Executive to perform his obligations under this Agreement, whether from
physical, mental or other causes, for a period of ninety (90) days, determined
in good faith by the Board of Directors of the Company.
(i) "Effective Date" shall mean March 6, 2000.
(j) "Executive" shall mean Xxxxx Xxxxx.
(k) "Good Reason" shall mean any of the following events, which has
not been consented to in advance by the Executive (i) a material reduction in
the Executive's base compensation as the same may be increased from time to
time (material shall mean greater than 15%); (ii) the failure by the Company
to continue to provide the Executive with benefits provided for on the
Effective Date, as the same may be increased from time to time, or with
benefits substantially similar to those provided to him under any of the
Executive benefit plans in which the Executive now or hereafter becomes a
participant, or the taking of any action by the Company which would directly
or indirectly reduce any of such benefits or deprive the Executive of any
material fringe benefit enjoyed by him; (iii) a failure to elect or reelect
the Executive to the Board of Directors of the Company; (iv) a material
diminution or reduction in the Executive's responsibilities or authority
(including reporting responsibilities) in connection with his employment with
the Company; (v) a Change in Control.
(l) "Intellectual Property Right" shall mean any patent, copyright,
trade secret, trade name, trademark or other intellectual property right which
is owned by the Company.
(m) "Just Cause" shall mean, in the good faith determination of the
Company's Board of Directors (i) the Executive's willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform
stated duties, or conviction for a felony, or (ii) material breach of any
provision of this Agreement, provided that the Executive has been provided
written notice of specific deficiencies in his performance and at least thirty
days to cure those deficiencies. No act, or failure to act, on the
Executive's part shall be considered "willful" unless he has acted, or failed
to act, with an absence of good faith and without a reasonable belief that his
action or failure to act was in the best interests of the Company.
(n) "Materials" shall mean tangible manifestations of any
Confidential Information, Work Product, or Intellectual Property Rights
including, without limitation, hardware, software, programs, manuals,
drawings, designs, articles, writings, data, notes, memorandum, manuscripts,
notebooks, proposals, work plans, interim and final reports, project files and
client contract records.
(o) "Protected Period" shall mean the period that begins on the
date six months before a Change in Control and ends on the later of the first
annual anniversary of the Change in Control or the expiration date of this
Agreement.
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(p) "Trigger Event" shall mean either of the following events that
occurs during the Protected Period: (i) the Executive's resignation of
employment for Good Reason; (ii) the Company's termination of the Executive's
employment for reasons other than Just Cause and without his prior written
consent (iii) the requirement that the Executive perform his principal
executive functions outside of the Denver Metro area, (to include Boulder
County) without his prior written consent.
(q) "Work Product" shall mean any invention, discovery, concept or
idea including, but not necessarily limited to, hardware, software programs,
or processes, techniques, know-how, methods, systems, improvements, analytical
reports, and other developments.
2. Employment.
The Executive is employed as the President and Chief Executive
Officer of the Company. The Executive shall render such administrative and
management services for the Company as are consistent with the duties of the
Chief Executive Officer as set forth in the by-laws of the Company. The
Executive shall also promote, by entertainment or otherwise, as and to the
extent permitted by law, the business of the Company. The Executive's other
duties shall be such as the Board may from time to time reasonably direct,
including normal duties as an officer of the Company.
3. Base Compensation.
Commencing on the Effective Date of this Agreement, the Company
shall pay the Executive during the term of this Agreement a salary at the rate
of $143,000 per annum, payable in cash not less frequently than monthly. The
Board shall review, not less often than annually, the rate of the Executive's
salary, and in its sole discretion may decide to amend his salary.
4. Annual Cash Bonuses.
The Company may establish a formula that is based on corporate
performance, and targets calendar year-end cash bonuses that are comparable on
a percentage basis to the bonuses given to similarly situated executives at
companies of a similar size and classification.
5. Other Benefits.
(a) Participation in Retirement, Medical and Other Plans. The
Executive shall be eligible to participate in any plan, subject to plan
requirements, that the Company may maintain for the benefit of its employees
if the plan relates to (i) pension, profit-sharing, or other retirement
benefits, (ii) medical insurance or the reimbursement of medical or dependent
care expenses, or (iii) other group benefits, including disability and life
insurance plans.
(b) Executive Benefits; Expenses. The Executive shall participate
in any fringe benefits which are or may become available to the Company's
senior management executives. The Executive shall be reimbursed for all
reasonable out-of-pocket business expenses which he shall incur in connection
with his services under this Agreement upon substantiation of such expenses in
accordance with the policies of the Company. The Company shall also pay for
all dues and subscriptions for trade memberships including the Executive's
membership in TEC, an international organization of CEOs.
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6. Term.
The Company hereby employs the Executive, and the Executive hereby
accepts such employment under this Agreement, for the period of one year
beginning March 6, 2000 and ending on March 5, 2001, hereinafter "Initial
Term." Executive shall give written notice to the Company through its Board
of Directors that this Agreement is scheduled to expire 120 days prior to the
end of the Initial Term or any Renewed Term. Unless the Company notifies the
Executive in writing 90 days prior to the expiration of the Initial Term or
any Renewed Term of its desire not to renew this Agreement, this Agreement
shall automatically continue for an additional 12-month period, herein
"Renewal Term" or, "Renewed Term."
7. Loyalty; Noncompetition; Work Product & Confidential Information.
(a) During the period of his employment hereunder and except for
illnesses, reasonable vacation periods, and reasonable leaves of absence, the
Executive shall devote all his full business time, attention, skill, and
efforts to the faithful performance of his duties hereunder; provided,
however, from time to time, Executive may serve on the boards of directors of,
companies or organization, which will not present any conflict of interest
with the Company or any of its subsidiaries or affiliates, or unfavorably
affect the performance of Executive's duties pursuant to this Agreement, or
will not violate any applicable statute or regulation. From the date of this
Agreement until the scheduled expiration date, including any renewal period,
as set forth in paragraph 6 of this Agreement, the Executive shall not engage
in any business or activity contrary to the business affairs or interests of
the Company.
(b) Nothing contained in this Paragraph 7 shall be deemed to
prevent or limit the Executive's right to invest in the capital stock or other
securities of any business dissimilar from that of the Company, or, solely as
a passive or minority investor, in any business.
(c) In the course of the Executive's employment with Company, the
Executive will have access to certain Confidential Information. The Executive
will use and disclose Confidential Information solely for the purposes for
which it is provided and will take reasonable precautions to prevent any
unauthorized use or disclosure of the same. The Executive will not use or
disclose any Confidential Information (a) other than as required in the course
of the Executive's employment with the Company, (b) for the Executive's own
personal gain, or (c) in any manner contrary to the best interests of Company.
(d) The Executive will not use in the course of the Executive's
employment with Company, or disclose or otherwise make available to Company
any information, documents or other items which the Executive may have
received from any other person (e.g., a prior employer) and which the
Executive is prohibited from using, disclosing or making available (e.g., by
reason of any contract, court order, law or obligation by which the Executive
is bound).
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(e) All Materials and related Intellectual Property Rights will be
the sole and exclusive property of Company, whether or not such Materials are
marked with any Intellectual Property Right notice of Company or Executive.
All such Materials authored, made, conceived or developed by the Executive or
made available to the Executive (or any copies or extracts thereof) will be
held by the Executive in trust solely for the benefit of the Company. The
Executive will use such Materials only as required in the course of the
Executive's employment with Company or as otherwise authorized in writing by
Company.
(f) This Agreement does not apply to any invention for which no
equipment, supplies, facility or trade secret information of Company was used,
and which was developed entirely on Employee's own time, unless: (a) the
invention relates (i) directly to the Company or (ii) to Company's actual or
demonstrable anticipated research or development; or (b) the invention results
from any work performed by the Executive for the Company.
(g) All trade secrets, know-how, confidential information,
copyrightable material, inventions, discoveries, and improvements, including
computer programs (their structure, sequence, organization, coherence, look
and feel), whether patentable or unpatentable, copyrightable or
uncopyrightable, made, devised, discovered or reduced to practice by the
Executive during normal business hours utilizing the resources and materials
of the Company, whether by himself or jointly with others, from the time of
becoming an employee of the Company until the termination of that status
("Work Product"), shall be deemed work for hire and shall be promptly
disclosed in writing to the Company and are to redound to the benefit of the
Company and become and remain its sole and exclusive property.
(h) By executing this Agreement, Executive hereby transfers and
assigns to the Company, or persons, firms or corporations designated by the
Company, any or all of the Executive's rights, title and interest in and to
any and all developments, inventions, computer programs, discoveries,
improvements, processes, devices, copyrights, patents and patent applications
therefore, and to execute at any and all times any and all instruments and do
any and all acts necessary or which the Company may deem desirable in
connection with conveying, transferring and assigning the Executive's entire
right, title and interest in and to any inventions, discoveries, improvements,
computer programs, processes, devices, copyrights, patent applications
therefore or patents thereon in any way related to the Work Product developed,
discovered or reduced to practice by the Executive during the term of this
Agreement, it being the express understanding and agreement of the parties
that any and all future developments, inventions and discoveries of the
Executive during the term hereof shall be the property of the Company, or its
assigns.
(i) Company may cause to be filed United States and foreign patent
and/or copyrights applications on each invention deemed to be patentable or
copyrightable and embodied in any technology developed and reduced to practice
during the term hereof which inure to the Company by virtue of the provisions
of this Agreement. Patent or copyright prosecution and maintenance shall be
done by an attorney to be selected by the Company and approved by the
Executive, which approval shall not be unreasonably withheld. All reasonable
expense of filing, prosecution and maintenance of domestic and foreign patents
or copyrights and patent or copyright applications shall be borne by Company.
All patents shall be applied for in the name of the Executive, as inventor,
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and shall be assigned to the Company or its assigns. All copyrights shall be
registered in the name of the Company. The Executive shall, upon demand,
execute and deliver to the Company or its assigns such documents or
assignments as may be deemed necessary or advisable by counsel for the Company
or its assigns for filing in the appropriate patent offices to evidence the
assignment of the patent rights hereby granted.
(j) The Executive covenants to and with the Company, its successors
and assigns, that during the term of this Agreement he will not directly or
indirectly, either as principal, agent, manager, employee, owner, partner
(dominant or otherwise), stockholder, director or other officer of a
corporation, creditor, consultant or otherwise, engage or become interested
financially or otherwise, in any business, agency, trade or occupation similar
to or in competition with the Company or its affiliates; nor shall the
Executive, during the term of this Agreement consult or enter into any
agreement or arrangement with any other person, firm, corporation or entity to
conduct any research or development, nor shall the Executive directly or
indirectly conduct such research or development on his own behalf, related to
the discovery of processes, improvements, developments or commercialization of
any service or product developed or reduced to practice during the period of
employment with the Company, unless the Executive shall have first obtained
the Company's expressed written consent thereto issued by the Board of
Directors. Because of the nature of the business, the parties agree that it
is reasonable for this covenant to apply to the entire geographic area of the
United States. If the geographic area is determined by a court to be overly
broad in scope, it shall be modified only to the extent necessary to bring it
within the requirements of the law and interpreted to give the Company the
broadest protection allowed by law.
(k) The Executive covenants with the Company that employees of or
consultants to the Company and employees of and consultants to firms,
corporations or entities affiliated with the Company have, of necessity, been
exposed to and have acquired certain knowledge, understandings, and know-how
concerning the Company's business operations which is confidential information
and proprietary to the Company.
(l) In order to protect the Company's confidential information and
to promote and insure the continuity of the Company's contractual relations
with its employees and consultants, the Executive covenants and agrees that
for so long as the Executive is affiliated with the Company as an officer,
director, employee, consultant, agent or contractor, he will not directly or
indirectly, or permit or encourage others to directly or indirectly (i)
interfere in any manner whatsoever with the Company's contractual or other
relations with any or all of its employees or consultants, or (ii) induce or
attempt to induce any employee or consultant to the Company to cease
performing services for or on behalf of the Company, or (iii) solicit, offer
to retain, or retain, or in any other manner engage or employ the services of,
or conduct any business activity in cooperation or association with, any
person or entity who at any time was employed by the Company, or any firm,
corporation or entity affiliated with the Company, except with the consent of
the Company issued by the Board of Directors.
(m) In order to protect the Company's proprietary rights and to
promote and ensure the continuity of the Company's contractual relations with
its customers and clients, the Executive covenants and agrees that, for so
long as the Employee is affiliated with the Company as an officer, director,
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employee, consultant, agent or contractor, he will not directly or indirectly,
or permit or encourage others to directly or indirectly (i) interfere in any
manner whatsoever with the Company's contractual or prospective relations with
any clients or customers, or (ii) induce or attempt to induce any client or
customer of the Company to cease doing business with the Company, or (iii)
solicit, offer to retain, or retain, or in any other manner engage or enter
into any business or other arrangement with any of the Company's customers or
clients to provide any services or products to any of such customers or
clients as they may from time to time exist or be constituted, except and
unless such arrangement for the provision of products or services is not in
any way competitive with the products or services actually provided by the
Company to its clients or customers or circumstances to which the Company,
through its Board of Directors, has consented in writing, which consent shall
not be unreasonably withheld.
(n) In the event any court of competent jurisdiction determines or
holds that all or any portions of the covenants contained in this Section 7
are unlawful, invalid or unenforceable for any reason, then the parties hereto
agree to modify the provisions of this Section 7 if and only to the extent
necessary to render the covenants herein contained enforceable and otherwise
in conformance with all legal requirements.
8. Standards.
The Executive shall perform his duties under this Agreement in
accordance with such reasonable standards as the Board may establish from time
to time. The Company will provide Executive with the working facilities and
staff necessary for him to perform his duties.
9. Vacation and Sick Leave.
At such reasonable times as the Board shall in its discretion
permit, the Executive shall be entitled, without loss of pay, to absent
himself voluntarily from the performance of his employment under this
Agreement, all such voluntary absences to count as vacation time; provided
that:
(a) The Executive shall be entitled to an annual vacation in
accordance with the policies that the Board periodically establishes for
senior management executives of the Company.
(b) The Executive shall not receive any additional compensation
from the Company on account of his failure to take a vacation, and the
Executive shall not accumulate unused vacation from one fiscal year to the
next, except in either case to the extent authorized by the Board of
Directors.
(c) In addition to the aforesaid paid vacations, the Executive
shall be entitled without loss of pay, to absent himself voluntarily from the
performance of his employment with the Company for such additional periods of
time and for such valid and legitimate reasons as the Board may in its
discretion determine. Further, the Board may grant to the Executive a leave
or leaves of absence, with or without pay, at such time or times and upon such
terms and conditions as such Board in its discretion may determine.
(d) In addition, the Executive shall be entitled to an annual sick
leave benefit as established by the Board.
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10. Indemnification.
The Company and the Executive shall execute a separate Indemnity
Agreement, a copy of which is attached hereto as Exhibit A.
11. Termination and Termination Pay.
Subject to Section 11 hereof, the Executive's employment hereunder
may be terminated under the following circumstances:
(a) Just Cause. The Board may, by written notice to the
Executive, immediately terminate his employment at any time, for Just Cause.
The Executive shall have no right to receive compensation or other benefits
for any period after termination for Just Cause.
(b) Resignation by Executive without Good Reason. The Executive
may voluntarily terminate employment with the Company during the term of this
Agreement, upon at least 60 days' prior written notice to the Board of
Directors, in which case the Executive shall receive only his compensation,
vested rights and Executive benefits up to the date of his termination of
employment.
(c) Without Just Cause/Resignation for Good Reason. Subject to
Sections 11(a), 11(b) and 13 hereof, the Board may, by written notice to the
Executive, immediately terminate his employment at any time for a reason other
than Just Cause; in addition, the Executive may immediately terminate
employment with the Company during the term of this Agreement for Good Reason,
and in both events, from the time of termination the Executive shall be
entitled to receive the following compensation and benefits; (i) the salary
provided pursuant to Section 3 hereof, up to the expiration date (the
"Expiration Date") of the term, including any Renewal Term, if the term is
extended, of this Agreement, (ii) the cost to the Executive of obtaining all
health, life, disability and other benefits which the Executive would have
been eligible to participate in through the Expiration Date based upon the
benefit levels substantially equal to those that the Company provided for the
Executive, either in periodic payments over the remaining terms of this
Agreement, as if the Executive's employment had not been terminated, or in one
lump sum within 10 days of such termination (subject to a present value
adjustment pursuant to Section 280G of the Code); and (iii) the monthly
salary, determined from Section 3, for the following number of months, as
severance pay, dependent upon the number of years of service:
1 year 3 months
2 years 5 months
3 years 7 months
4 years or more 9 months
(d) Death or Disability. The Executive's employment under this
Agreement shall terminate upon his death or Disability during the term of this
Agreement.
12. No Mitigation. The Executive 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 Executive in any
subsequent employment.
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13. Change in Control.
(a) If a Trigger Event occurs during the Protected Period, the
Executive shall be paid an amount equal to the Code Section 280G Benefit.
Said sum shall be paid in one lump sum within ten (10) days of such
termination, unless more than 90 days before the Change in Control the
Executive files an election to collect benefits over a period of up to five
years, in which event interest shall accrue on unpaid amounts at a rate
determined pursuant to Section 280G of the Code. Any payment under this
paragraph 13(a) shall be in lieu of any payment to which the Executive might
otherwise be entitled under Paragraph 11(c) above.
(b) Not later than three business days after a Change in Control,
the Company shall (a) deposit in a grantor trust (the "Trust"), having terms
consistent with Revenue Procedure 92-64, an amount that the Company reasonably
projects to be sufficient to fund the payment of all benefits that are or may
become payable, pursuant to this Agreement, and (b) provide the trustee of the
Trust with a written direction both to hold said amount and any investment
return thereon in a segregated account for the benefit of Executive, and to
follow the procedures set forth in the next paragraph as to the payment of
such amounts from the Trust. The provisions of this Section shall be null and
void only if the Executive provides a written release of all claims under this
Agreement.
During the 12-consecutive month period after a Change in
Control, upon the occurrence of a Trigger Event, the Executive may provide the
trustee of the Trust with a written notice direction the trustee to pay to
Executive an amount designated in the notice as being payable pursuant to this
Agreement. A copy of the trustee's notice shall also be delivered to the
Company on the same date. Within ten business days after receiving said
notice, the trustee of the Trust shall pay such amount to the Executive, and
coincidentally shall provide the Company or its successor with notice of such
payment. Upon the earlier of the Trust's final payment of all amounts due
under the preceding paragraph or the date 12 months after the Change in
Control, the trustee of the Trust shall pay to the Company the entire balance
remaining in the segregated account maintained for the benefit of the
Executive. The Executive shall thereafter have no further interest in the
Trust.
14. Disputes/Arbitration
(a) Any dispute, claim or controversy arising out of this Agreement
or its breach shall be settled by arbitration in Denver, Colorado by a single
arbitrator licensed to practice law, who shall be chosen by mutual agreement
of the parties. The arbitration is not required to be filed with the American
Arbitration Association ("AAA"), but the arbitrator may follow the rules and
procedures of the AAA, as agreed by the parties. The arbitration hearing
shall be held no later than 60 days after the arbitration is initiated. The
arbitrator's decision and award shall be final and binding, and judgement upon
the award may be entered in any court of appropriate jurisdiction.
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(b) The prevailing party in any arbitration shall be reimbursed for
all costs and expenses, including reasonable attorneys' fees, arising from the
dispute, claim or controversy that is arbitrated, provided that the prevailing
party shall obtain a final arbitration award in its favor. Such reimbursement
shall be paid within ten (10) days of the prevailing party's furnishing to the
other party written evidence, which may be in the form, among other things, of
a canceled check or receipt, of any costs or expenses incurred by the
prevailing party. The costs and expenses may be part of the arbitration
award.
15. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding
upon any corporate or other successor of the Company which shall acquire,
directly or indirectly, by merger, consolidation, purchase or otherwise, all
or substantially all of the assets or stock of the Company.
(b) Since the Company is contracting for the unique and personal
skills of the Executive, the Executive shall be precluded from assigning or
delegating his rights or duties hereunder without first obtaining the written
consent of the Company, through its Board of Directors.
16. Corporate Authority.
Company represents and warrants that the execution and delivery of
this Agreement by it has been duly and properly authorized by the Company's
Board of Directors and that when so executed and delivered this Agreement
shall constitute the lawful and binding obligation of the Company.
17. Amendments.
No amendments or additions to this Agreement shall be binding unless
made in writing and signed by all of the parties, except as herein otherwise
specifically provided.
18. Applicable Law.
Except to the extent preempted by Federal law, the laws of the State
of Colorado shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
19. Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity
or enforceability of the other provisions hereof.
20. Entire Agreement.
This Agreement, together with any understanding or modifications
thereof as agreed to in writing by the parties, shall constitute the entire
Agreement between the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
ATTEST: YGCD ASSETS, INC.
/s/ Xxxx X. Copppage By:/s/ Xxxx Xxxxxxxxx
Secretary Title: Director
WITNESS:
____________________________ /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
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