EMPLOYMENT AGREEMENT
THIS AGREEMENT, signed on December 28, 1994, but made effective as of the 21st
day of September, 1994, is by and between SCRIPTEL CORPORATION
("Corporation"), an Ohio corporation and SCRIPTEL HOLDING, INC., ("Holding"),
a Delaware corporation with their principal offices located in Columbus, Ohio,
hereinafter sometimes collectively referred to as "Scriptel"; and Xxxxxxxxx X.
Xxxxxxxx, (Xxxxxxxx) an individual, residing in Dublin, Ohio.
BACKGROUND INFORMATION
WHEREAS, Scriptel recognizes Xxxxxxxx'x background in finance, accounting, and
financial reporting and
WHEREAS, Scriptel desires to employ the continuing services of Xxxxxxxx, and
WHEREAS, Xxxxxxxx desires to be in the employ of Scriptel upon the terms and
conditions hereinafter set forth,
IT IS THEREFORE agreed:
1. Terms and Duties: Scriptel hereby employs Xxxxxxxx for a period of three
(3) years, from September 21, 1994 to September 22, 1997. Xxxxxxxx shall
devote his best efforts and work full time toward directing the treasury,
accounting, and financial reporting activities of Scriptel, subject to
reasonable vacations compatible with his position. Scriptel will generally
require Xxxxxxxx to work a forty (40) hour week, except that holidays normally
celebrated by Scriptel will reduce the normal work week. Xxxxxxxx will
perform such duties as are normal and customary for an executive officer, and
as from time to time prescribed by the President of Scriptel. Xxxxxxxx will
be required to perform his duties in the general area of Columbus, Ohio,
although some travel to customers, suppliers, subsidiaries or others may be
expected from time to time (any such travel to be subject to Xxxxxxxx'x
approval). Scriptel and/or Xxxxxxxx shall each have the option to renew this
Agreement for an additional period of three (3) years under the same terms and
conditions as are contained herein by advising the other in writing ninety
(90) days prior to the expiration date of this agreement.
2. Compensation: Scriptel shall pay Xxxxxxxx the following compensation:
a. A base salary of $75,000 (Seventy Five Thousand Dollars) payable in equal
semimonthly installments of the 15th and last day of the month, provided that
if the period of employment hereunder shall terminate on any date other than
the 15th or last day of a calendar month, then in that event, said installment
shall be prorated. In addition to the base salary, Xxxxxxxx is to receive at
the date of signing this agreement options to purchase 100,000 shares of
Common stock of Holding, at a price of $3.00 per share, from the Scriptel
Employee Stock Option Plan. Such options will be immediately vested and
immediately exercisable and will be restricted at first, but will be included
in the first registration statement relating to employee stock options filed
after September 21, 1994. In the event Xxxxxxxx'x employment is terminated
while this Agreement is in force other than for proper cause pursuant to
paragraph 5b hereof, Xxxxxxxx shall be paid all salary (prorated to the date
of termination of employment for the year in which termination occurs) to
which he is entitled under this Employment Agreement through the date of
termination, and shall be paid, in cash within thirty (30) days of such date
of termination, the amount of his annual base salary hereunder calculated for
the then remaining term of this Agreement; or 12 months, whichever is longer.
b. Said annual base salary shall be increased each year thereafter, beginning
with an increase on January 1, 1995. The amount of such increase is to be
negotiated annually at least thirty (30) days prior to calendar year end. In
no event shall the annual increase be less than a five percent (5%) increase
over the annual base salary for the preceding year. Xxxxxxxx is eligible to
receive bonuses from time to time as authorized by the President and will
receive such bonuses when, as, and if any such bonuses are given to other
executive officers of Scriptel.
c. Scriptel shall reimburse Xxxxxxxx for approved business and travel
expenses upon the presentation by Xxxxxxxx, from time to time, of an itemized
account of such expenditures.
x. Xxxxxxxx shall be entitled to 4 (four) weeks of paid vacation per year.
3. Fringe Benefits: Xxxxxxxx shall be entitled to participate immediately in
all management fringe benefit programs including, but not limited to, grants
of options to purchase shares of common stock of Holding, life and health
insurance, or any other benefits, in the same manner as such programs are
provided or offered to other officers or employees of Scriptel. After the 1st
anniversary year of this Agreement, in the event of termination of Xxxxxxxx'x
employment for any cause, the options and bonuses earned for the year in which
such termination occurs shall be prorated to the number of full calendar
months which transpired prior to such termination.
4. Illness or Incapacity: If during the term of this Agreement, Xxxxxxxx
should be prevented from performing his duties by reason of illness or
incapacity for an aggregate of three (3) continuous months in any twelve (12)
month period, then Scriptel shall not be obligated to pay Xxxxxxxx any annual
base salary for any period of absence thereafter, other than as may be covered
by group insurance, until Xxxxxxxx shall have returned to active employment
status.
5. Termination:
a. Subject to the payment provisions of paragraph 2a, above, Scriptel may
terminate the employment of Xxxxxxxx at any time, without cause. Xxxxxxxx may
terminate his employment with Scriptel at any time, without notice.
b. Scriptel may terminate the employment of Xxxxxxxx at any time for Proper
Cause. Proper Cause shall mean (1) the conviction of Xxxxxxxx of a felony,
(2) willful failure by Xxxxxxxx to perform the material duties of his
employment under this Agreement, or (3) any intentional act of dishonesty or
intentional breach of trust or good faith affecting Corporation or Holding.
No event which is asserted to constitute Proper Cause under 5b(2) or 5b(3)
above shall constitute Proper Cause unless (a) Xxxxxxxx is provided with
written notice of the events or actions believed to constitute Proper Cause,
(b) Xxxxxxxx fails to substantially cure the events or actions within 30 days
of the date he actually receives such notice, and (c) a two-thirds majority of
the Board of Directors concludes, after providing Xxxxxxxx with an opportunity
to present facts and arguments and a hearing on the issues, that an event or
action described in 5b(2) or 5b(3) has occurred, that Xxxxxxxx has failed to
make his best efforts to cure the event or action or its effects, that
Xxxxxxxx did not believe in good faith or have reason to believe in causing
the event or action to occur that he was acting in the best interests of
Corporation and Holding, and that it is in the best interests of Corporation
and Holding to treat the event or action as constituting Proper Cause.
c. If Xxxxxxxx dies during the term of this Agreement, Scriptel shall pay to
his spouse, if living, or to his estate all base salary and bonuses earned to
the date of his death. All rights to purchase stock under this Agreement or
any options held by Xxxxxxxx shall be exercisable by his spouse, if living, or
by his estate for six months following the date of his death.
d. If Scriptel terminates Xxxxxxxx'x employment for any reason, without
proper cause, Scriptel will immediately pay for the services of an
outplacement firm, suitable to Xxxxxxxx (e.g., Right Associates), to help him
in landing another position. Such outplacement firm will provide Xxxxxxxx, at
a minimum, re-employment consulting services, office and clerical support
services, availability of an office and telephone, and such other services as
normally provided to executives, for as long as necessary until Xxxxxxxx lands
another suitable position. Scriptel's costs to purchase such services from
the outplacement firm on Xxxxxxxx'x behalf will be limited to fifty percent
(50%) of Xxxxxxxx'x then-current annual salary.
6. General Indemnification: Corporation and Holding shall indemnify Xxxxxxxx
if he was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation to, an act by
or in the right of Scriptel) by reason of the fact that he is or was a
director, officer, employee, or agent of corporation or Holding or is or was
serving at the request of Corporation or Holding as a director, trustee,
officer, employee, partner, joint venturer, or agent of another Corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorney's fees), judgements, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of Corporation or Holding, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. No indemnification shall be made in respect
to any derivative claim, issue or matter as to which Xxxxxxxx shall have been
adjudged to be liable to the Corporation or Holding unless, and only to the
extent that, the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability, but in
view of all the circumstances of the case, Xxxxxxxx fairly and reasonably is
entitled to be indemnified for such expenses. Expenses (including attorney's
fees) incurred in defending any civil or criminal action, suit or proceeding
referred to in this Section shall be paid by Corporation and Holding in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of Xxxxxxxx to repay such amount,
unless it shall ultimately be determined that he is entitled to be indemnified
by Holding or Corporation as authorized in the preceding sentences. The
indemnification provided by this Section shall not be deemed exclusive of any
other rights to which Xxxxxxxx shall be entitled under the common law or the
General Corporation Law of the State of Delaware or the Certificate of
Incorporation or Bylaws of Corporation or Holding or any agreement, vote of
their respective shareholders or directors, or otherwise, both or as to action
in his official capacity or as to action in another capacity while holding
such office, and shall continue after the termination of this Agreement and
shall inure to the benefits of their heirs, executors and administrators of
Xxxxxxxx.
7. Restrictive Covenant: Xxxxxxxx shall devote his best efforts and work
full time to effect the advancement of Scriptel and Scriptel's product; he
shall not, without the consent of the President of Scriptel, directly or
indirectly, alone or as member of a partnership, or as an officer, director,
shareholder, or employee, be engaged in or concerned with any business that
may be similar to Scriptel while employed by Scriptel or for a period of six
(6) months after employment with Scriptel.
8. Assignment: This Agreement shall inure to the benefit of Xxxxxxxx and
shall be binding upon Scriptel, its successors or assigns.
9. Arbitration: In the event of any dispute under this Agreement, such
dispute shall be settled by arbitration in Columbus, Ohio, in accordance with
the then prevailing rules of the American Arbitration Association, and
judgement upon the award may be entered in any court having jurisdiction
thereof.
10. Entire Agreement: This Agreement constitutes all of the Agreement which
has been made between the parties and no attempt shall be made between the
parties and no attempt shall be made by either party to assert other than on,
before or simultaneously with the execution of this Agreement, that there were
any other agreements, promises, representations or understanding made by any
of them with respect to the matters contained herein or the relationship
between the parties. This Agreement is not subject to reinterpretation or
change except by written agreement of the parties hereto.
11. Governing Law: This Agreement has been drafted and executed in the State
of Ohio. All questions concerning this Agreement and performance hereunder
shall be judged and resolved in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties have hereunder set their hands as of the date
first herein before written.
SCRIPTEL HOLDING, INC.
By /s/ Xxxxx X. France, Jr.
Xxxxx X. France, Jr.
Chairman/CEO
By /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Secretary
SCRIPTEL CORPORATION
By /s/ Xxxxx X. France, Jr.
Xxxxx X. France, Jr.
Chairman/CEO
By /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Secretary
INDIVIDUAL
By /s/ Xxxxxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxxxx
