Exhibit 10.95
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of January 1, 2004 (the "Effective Date") by and between Crown NorthCorp,
Inc., a Delaware corporation ("Crown") and Xxxxxx X. Xxxxx ("Xxxxx").
BACKGROUND INFORMATION
A. Crown and Xxxxx want for Crown to retain the services of Xxxxx on
the terms and conditions set forth in this Agreement.
NOW THEREFORE, Crown and Xxxxx hereby agree as follows:
STATEMENT OF AGREEMENT
1. Employment; Positions; Duties; Meetings of Board of Directors.
During the Term (as defined in Section 2), Crown shall employ Xxxxx as Chairman
and Chief Executive Officer of Crown. In such capacity, Xxxxx shall perform
those duties and responsibilities set forth on Schedule 1, those assigned to him
from time to time by Crown's Board of Directors (the "Board") and those duties
and responsibilities usually and customarily performed by a person holding such
offices (collectively, the "Duties and Responsibilities"). Xxxxx agrees to
devote all of his working time, attention and energy and to use his best efforts
to perform the Duties and Responsibilities.
2. Term. Unless sooner terminated as set forth herein, this Agreement
shall be for a term of one year commencing January 1, 2004 and ending December
31, 2004. (the "Term").
3. Compensation and Benefits.
(a) Base Compensation. Throughout the Term, Xxxxx shall receive a base
salary of One Hundred Thousand Dollars ($100,000), payable in accordance with
Crown's standard payroll schedule.
(b) Bonus Compensation. Xxxxx shall receive bonus compensation based on
Crown's earnings before interest, taxes, depreciation and amortization
("EBITDA"), provided however that total base and bonus compensation throughout
the Term shall not exceed $1,000,000. Bonus compensation shall be payable
according to the following schedule:
PERCENTAGE OF RANGE PAYABLE TO MR.
CROWN'S EBITDA XXXXX
----------------------------------------------------------------------
$ 0-$ 600,000 0
$ 600,001-$1,200,000 15
$1,200,001-$1,800,000 20
$1,800,001-$2,400,000 25
$2,400,001 and above 30
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(c) Withholding and Deductions. Any compensation payable to Xxxxx
pursuant to this Agreement shall be subject to such withholdings and deductions
as are required by law or legally elected by Xxxxx.
(d) Benefits. Throughout the Term, Xxxxx shall be entitled to
participate in and receive benefits under any program, plan, policy or
arrangement made available by Crown presently or in the future to senior
management personnel at the same level and to the same degree as such benefits
are made available to them and as such benefits may be modified from time to
time by Crown. For the purpose of this Section 3(d), the term "benefits" shall
mean all benefits provided now or in the future by Crown, including but not
limited to medical and hospitalization insurance, life insurance, disability
insurance, deferred compensation plans, 401(k) plans, retirement plans,
profit-sharing plans, any stock-based compensation plan and vacation and sick
leave. Notwithstanding any other provision of this Section 3(d), throughout the
Term: Xxxxx shall be entitled to four weeks' vacation per year; Crown shall pay
for all health and dental insurance premiums for Xxxxx, without any contribution
from Xxxxx; and Crown shall provide Xxxxx at Crown's expense group short- and
long-term disability policies designed to replace at least sixty percent (60%)
of Xxxxx'x base salary during the course of any "disability," as that term is
defined in the group policies.
(e) Expenses. The Compensation Committee of Crown's Board of Directors
(the "Compensation Committee") shall review and approve requests by Xxxxx for
reimbursement of expenses he incurs in the conduct of Crown's business. In this
regard, Xxxxx will submit such reports or documentation as the Compensation
Committee may specify in support of a reimbursement request.
4. Certain Definitions. For the purposes of this Agreement:
(a) Affiliate. The term "Affiliate" shall mean any person or legal
entity controlling, controlled by or under common control with that person or
legal entity. References to "control" in the preceding sentence shall have the
meaning set forth in Rule 405 under the Securities Act of 1933 and court
decisions and Securities and Exchange Commission thereunder.
(b) Confidential Information. The term "Confidential Information" shall
mean, to the extent that such information is not publicly known or available,
any and all of the
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following as they exist or come to exist in any form, format or media: (a) trade
secrets or other intellectual property related to Crown's business and affairs;
(b) any information on Crown's business processes, plans, budgets, capital
spending plans, projections, designs, strategies; (c) Crown's current and
planned advertising, marketing, solicitation or distribution methods and
processes; (d) Crown's research and development efforts; (e) Crown's customer
lists, current and anticipated customer requirements, price lists and market
studies; (f) Crown's computer software and programs (including object code and
source code), database technologies, systems structures and architectures; (g)
the names and backgrounds of key Crown personnel as well as Crown's personnel
training techniques and materials; and (h) all notes, analyses, compilations,
studies, summaries or other materials prepared by or for Crown containing or
based, in whole or in part, on any of the foregoing items.
(c) Change of Control. For purposes of this Agreement, there shall be a
"Change of Control" when the following occur: (a) there is a merger,
consolidation, acquisition, tender, exchange or similar transaction in which the
stockholders of Crown prior to such transaction do not own at least a majority
of the voting capital stock of the surviving entity after the transaction or
Crown sells or transfers all or substantially all of its assets to an entity
which is not an Affiliate (any of the foregoing, a "Transaction") and (b) the
Transaction results in Xxxxx no longer serving as either Chairman or Chief
Executive Officer or in a position of equal or greater title, authority,
responsibility, compensation and benefits.
(d) Legal Disability. The term "Legal Disability" shall mean: (a) the
inability of Xxxxx, due to illness, accident or other physical or mental
incapacity, to perform substantially all of his duties under this Agreement for
a period of six (6) months in the aggregate; or (b) a physical or mental
incapacity in which there is no hope of recovery within six (6) months, provided
however, that a Legal Disability shall not be deemed to occur until six (6)
months after such incapacity commences. In the event there is any dispute as to
Xxxxx'x Legal Disability, a determination shall be made upon the written request
of either Crown or Xxxxx (within 30 days of such request) by a majority of three
physicians, one selected by Crown, one selected by Xxxxx and a third selected by
the two physicians so selected.
5. Covenants of Xxxxx. The following are covenants of Xxxxx in addition
to those set forth in Section 1 above.
(a) Confidential Information. Xxxxx understands and agrees that, in
connection with his employment by Crown, Xxxxx shall be entrusted with or have
access to Confidential Information which is the property of Crown. Xxxxx agrees
that, during the Term and at all times thereafter, Xxxxx (i) without Crown's
prior written consent, will not directly or indirectly use, copy of duplicate,
or disclose or otherwise make available to any third party, any Confidential
Information except in the discharge of his duties under this Agreement; (ii)
will not assert prior knowledge of any item of Confidential Information if Xxxxx
cannot demonstrate such knowledge by clear and
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convincing documentary evidence; and (iii) will take such protective measures as
may be reasonably necessary to preserve the secrecy of and Crown's interests in
the Confidential Information. Xxxxx shall promptly advise Crown of any
unauthorized use of Confidential Information that comes to his attention and use
his best efforts to assist Crown in remedying such unauthorized use. Upon
termination of this Agreement for any reason whatsoever, or at any time Crown
requests, Xxxxx shall promptly deliver or cause to be delivered to Crown any
Confidential Information in Xxxxx'x custody or control.
(b) Non-competition; Non-solicitation. During the Term, and for a
period of one (1) year thereafter, Xxxxx shall not, directly or indirectly,
contact, solicit or interfere with, or endeavor to entice away from Crown, any
person, firm, corporation or other entity that (i) was a customer, client or
employee of Crown at any time two (2) years prior to the Effective Date, (ii)
becomes a customer, client or employee of Crown at any time during the Term or
(iii) Crown (or any of its employees or agents, including Xxxxx) has solicited
for business in two (2) years prior to the Effective Date or is so solicited at
any time during the Term.
(c) Remedies. Xxxxx and Crown understand and agree that it is
impossible to measure solely in money the damages that will accrue to Crown by
reason of Xxxxx'x failure to perform any of his covenants or obligations under
this Agreement. Therefore, if Crown institutes any action or proceeding to
enforce such provisions, Xxxxx hereby waives the claim or defense that there is
an adequate remedy at law and agrees in any such action or proceeding not to
interpose the claim or defense that an adequate remedy exists at law. Without
limiting any other remedies that may be available to Crown, Xxxxx hereby
specifically affirms the appropriateness of injunctive or other equitable relief
in any such action and further affirms that injunctive or equitable relief may
proceed without bond.
5. Termination. Prior to the expiration of the Term, this Agreement may
be terminated as follows:
(a) For Cause. Crown may terminate Xxxxx for cause at any time during
the Term. "For cause," for the purposes of this Agreement, shall mean: (i)
Xxxxx'x continued failure to perform the Duties and Responsibilities after
reasonable notice and opportunity to remedy such failure; (ii) Xxxxx committing
an act or acts constituting, in Crown's reasonable judgment, gross negligence,
gross incompetence, fraud, breach of fiduciary duty or willful or wanton
misconduct, including but not limited to Xxxxx taking an action that, in Crown's
reasonable judgment, materially impairs the ability of Crown to conduct its
business; (iii) Xxxxx committing theft, embezzlement or other act of dishonesty;
(iv) Xxxxx'x materially breaching any of his obligations or covenants under this
Agreement; (v) Xxxxx'x conviction or plea of guilty or nolo contendre to the
commission of a felony or a crime of moral turpitude or (vi) Xxxxx'x Legal
Disability. In the event of termination for cause, no advance notice to Xxxxx is
required and,
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following the date of termination, Xxxxx shall have no right to any further
compensation under Section 3 of this Agreement.
(b) Other Than for Cause. Crown may terminate this Agreement other than
for cause at any time and for any reason or no reason by giving ninety (90)
days' written notice to Xxxxx. In the event that this Agreement is terminated
other than for cause (including but not limited to a termination by either Crown
or Xxxxx within 180 days following a Change of Control), Xxxxx shall continue to
receive his base salary in effect on the date of termination for the remainder
of the term of this Agreement.
(c) Resignation. If Xxxxx resigns his employment during the Term, he
shall receive his base salary due as of the date of resignation.
(d) Death. If Xxxxx dies during the Term, his estate shall receive his
base salary and accrued vacation due as of the date of death.
7. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without giving effect to conflicts of law principles.
(b) Entire Agreement; Amendment. This Agreement constitutes the entire
understanding between Crown and Xxxxx with respect to Crown's employment of
Xxxxx. Other communications, whether written or oral, not incorporated into this
Agreement, are of no force or effect. This Agreement shall not be amended,
modified or supplemented except by a written instrument signed by Crown and
Xxxxx.
(c) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their permitted successors and
assigns. In the case of Crown, permitted successors and assigns shall include
any Affiliate of Crown or any successor in interest to an Affiliate of Crown. As
to Xxxxx, this Agreement is one for personal services and, as such, may not be
assigned by Xxxxx.
(d) Severability. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provision of this Agreement shall not in any way be affected or
impaired.
(e) Headings. The headings appearing in this Agreement are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any article or section of this Agreement.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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(g) Further Actions. Subject to the terms and conditions of this
Agreement, Crown and Xxxxx agree to execute such other instruments and take such
other actions as may be necessary or appropriate to effect the purposes and
intents of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
CROWN NORTHCORP, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
/s/ Xxxxxx X. Xxxxx
-----------------------------------
XXXXXX X. XXXXX
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SCHEDULE 1
DUTIES AND RESPONSIBILITIES
1. DIRECT AND OVERSEE THE OVERALL OPERATIONS OF THE COMPANY
a. Stay abreast of and identify important industry and economic
trends
b. Develop strategic alternatives necessary to update the
company's business plan to meet industry trends and
contingencies and report to the board for approval
c. Develop and maintain a cohesive management team
d. Allocate resources across business units to best meet business
plan objectives
e. Safeguard resources to provide the resources necessary to
support the business units in implementing strategic
objectives
f. Supervise the Senior Managers in charge of United States and
European business units
(1) Servicing
(2) Asset Management
g. Supervise the Senior Manager in charge of internal corporate
functions
(1) Marketing
(2) Legal
(3) Finance and Accounting
h. Lead Senior Management Committee
(1) Ensure inclusion of all critical issues in agenda
(2) Develop consensus toward final decisions
(3) Ensure appropriate and timely ongoing
communication of the results of committee
discussions to the following parties
(i) Board of Directors Members
(ii) Employees
i. Develop and implement communications strategies and reporting
within the company regarding corporate
(1) Financial status
(2) Policies
(3) Initiatives
(4) Business plan objectives and progress
j. Manage corporate communications to outside parties including
(1) Prospective Clients
(2) Shareholders
(3) News services, publications, and conferences
(4) For communications to shareholders and news
services, ensure that the appropriate approval is
received from board of directors.
k. Oversee succession planning
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l. Manage overall company strategy for compensation to attract
and retain quality personnel including
(1) Salary administration
(2) Incentive plans
(3) Employee stock and option plans
(4) Benefits
m. Maintain licenses and ratings as are required by the business
plan
n. Oversee corporate litigation
o. Enforce procedures to maintain corporate ethics in all
corporate dealings, including client relationships, personnel,
and subcontracting
2. DEVELOP AND OVERSEE THE EXECUTION OF THE BUSINESS PLAN
a. Oversee the development of the business plan
b. Coordinate input from all department heads, employees, and
directors
c. Recommend strategic alternatives and for the business plan and
identify risks
d. Author the business plan
e. Present the business plan and budget to the Board of Directors
no later than December 15 of the year prior to the effective
date
f. Gain approval of the business plan from the board of directors
no later than January 31 of the effective year
g. Ensure appropriate communication of the business plan to
internal personnel, shareholders, clients, and prospective
clients
h. Develop corporate strategies for achieving corporate goals
outlined in the business plan
i. Approve and oversee development of the corporate budget
supporting the business plan
j. Review and approve departmental strategies and staffing plans
submitted by senior managers for achieving corporate goals
outlined in the business plan and ensure that each
department's business plan objectives support other business
units
k. Ensure updating of the business plan to meet industry trends
and business contingencies and gain board approval for
modifications
l. Measure progress against the business plan
m. Report progress against the business plan to personnel and the
board of directors not less than quarterly
3. INCREASE BUSINESS DEVELOPMENT
a. Identify strategic opportunities and alliances to increase new
business that meet business plan objectives
b. Develop the corporate message and image to be conveyed in
relations with clients, prospective clients, and the public
c. Communicate to senior managers and enforce the corporate
message
d. Promote the company in all outside business relations
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e. Analyze major business opportunities and assign priority
according to company-wide initiatives
f. Oversee negotiations in major acquisitions, mergers, joint
ventures and capital transactions
g. Develop and implement incentive programs for new business
development
h. Oversee management of the marketing contacts made by the
company as a company resource to institutionalize as best as
possible client relationships and business opportunities
i. Ensure appropriate representation at industry conferences
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