Exhibit 10.9
EMPLOYMENT AGREEMENT
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This Employment Agreement (hereinafter "AGREEMENT") is made by and between
W. Xxxxx Xxxxx, Xx. c/x Xxxxx & Xxxxx, P.C., 0000 Xxxxx 000 Xxxx, Xxxx, XX 00000
(hereinafter "EMPLOYEE"), and Velocity Investments, L.L.C.. on behalf of itself,
its subsidiaries, affiliates, predecessors, successors, assigns; and their
directors, officers, employees and agents (hereinafter collectively referred to
as "VELOCITY"), with its principal place of business c/o Ragan & Xxxxx, P.C.,
0000 Xxxxx 000 Xxxx, Xxxx, XX 00000.
This AGREEMENT replaces any and all prior employment agreements or oral
understandings between VELOCITY and EMPLOYEE and any prior employment agreements
are void.
WHEREAS, VELOCITY wishes to employ EMPLOYEE in its business and EMPLOYEE
wishes to work for VELOCITY; and
WHEREAS, EMPLOYEE possesses the requisite skills to assume the position of
President and in consideration of the rights and benefits described herein
wishes to assume the position of President.
NOW THEREFORE, for and in consideration of the mutual and respective
covenants and agreements contained herein, VELOCITY and EMPLOYEE agree as
follows:
ARTICLE 1
EMPLOYMENT
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1.1 VELOCITY shall employ EMPLOYEE in the position of President for a
period of two (2) years commencing on January 1, 2004 and continuing until
terminated as provided in Article 4 of this AGREEMENT.
ARTICLE 2
DUTIES
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2.1 During the terms of this AGREEMENT, EMPLOYEE shall competently,
diligently, and loyally devote EMPLOYEE'S requisite time, attention, and energy
to the business affairs of VELOCITY and to the proper performance of EMPLOYEE'S
duties as President, EMPLOYEE shall exercise EMPLOYEE'S responsibilities from
VELOCITY'S place of business in Wall, New Jersey or such other location as is
mutually agreed upon.
2.2 Pursuant to the procedures and directives established from time to
time by VELOCITY, EMPLOYEE agrees to keep VELOCITY informed as to any and all
matters which concern the business of VELOCITY and as to EMPLOYEE'S activities
as President. Further, EMPLOYEE agrees and understands that at all times
EMPLOYEE is subject to the supervision and control of VELOCITY'S Board of
Directors.
2.3 During the term of employment, EMPLOYEE may hold an interest,
directly or indirectly, as partner, officer, director, stockholder, consultant,
employee, or in any other capacity, in any business which is not directly and/or
indirectly competitive with the business of VELOCITY and its affiliated
companies. In recognition of such other interests, it is agreed that EMPLOYEE
shall not be required to devote more than 50% of his business time to the
affairs of VELOCITY in the performance of his duties hereunder.
2.4 If EMPLOYEE has a question at any time as to whether any activity in
which EMPLOYEE is involved or about to be involved is directly or indirectly
competitive with the business of VELOCITY and its affiliated companies, EMPLOYEE
shall immediately raise the issue with the Board of VELOCITY and shall be
conclusively bound by its determination as to whether the activity is directly
or indirectly competitive with the business of VELOCITY and its affiliated
companies, provided that such determination shall not be arbitrary or
unreasonable.
ARTICLE 3
COMPENSATION
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3.1 Salary. During the term of EMPLOYEE'S employment, VELOCITY shall
pay, and EMPLOYEE shall accept, a gross annual salary of $50,000.00, payable
weekly at $961.54 per week, less mandatory and authorized deductions. The Board
shall review EMPLOYEE'S performance annually to determine in its sole discretion
whether it should be increased.
3.2 Bonus. EMPLOYEE shall be reimbursed by VELOCITY for business related
expenses reasonably incurred in connection with the execution of EMPLOYEE'S
duties. Itemized expenses shall be submitted in accordance with the VELOCITY'S
procedures.
3.3 Employee Benefits. EMPLOYEE shall be entitled to participate in and
shall receive benefits under VELOCITY'S employee benefit plans under the terms
and conditions applicable to employees of EMPLOYEE'S level within VELOCITY.
These benefits presently do not yet exist. VELOCITY reserves the right to change
any and all benefit plans from time to time in its sole discretion.
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3.4 Pension Benefits. EMPLOYEE shall be included in such employee
pension programs as VELOCITY maintains for other employees of a comparable level
in accordance with the terms and conditions of such pension programs applicable
to participating employees. VELOCITY reserves the right to modify, change or
eliminate such pension plans at any time in its sole discretion. No pension plan
exists at this time.
ARTICLE 4
TERMINATION
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VELOCITY shall have the right to terminate this AGREEMENT under any of the
circumstances set forth below. If this AGREEMENT is terminated for any of the
reasons in paragraphs 4.1, 4.2 or 4.3, then EMPLOYEE will not be entitled to any
further compensation, except unpaid salary and/or unpaid business expenses. If,
however, this AGREEMENT is terminated for the reason set forth in paragraph 4.4,
then EMPLOYEE shall be paid as provided in paragraph 4.4.
4.1 For Cause. VELOCITY may terminate EMPLOYEE'S employment for such
cause immediately and without advance notice or financial responsibility, i.e.
entitlement to severance payments. By way of illustration only, a termination
for such cause includes, but is not limited to the following: any act of
dishonesty, insubordination (direct and willful refusal to perform job related
duties or direct challenges to the authority of a superior), alcoholism or drug
addiction which prevents EMPLOYEE from successfully performing the job related
functions of EMPLOYEE'S position, breach of any terms of this AGREEMENT, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, or the willful or reckless violation of any
law, rule or regulation other than traffic violation or similar offenses.
4.2 Death. EMPLOYEE'S employment shall terminate immediately in the
event of the death of EMPLOYEE.
4.3 Inability to Perform. VELOCITY may terminate EMPLOYEE'S employment
if EMPLOYEE has been unable to perform EMPLOYEE'S duties pursuant to this
AGREEMENT, for whatever reason, for a continuous period of six (6) months or any
six (6) month period within a continuous twelve (12) month period, and has not
returned to work full time within ten (10) days of notice thereafter by VELOCITY
requesting such return.
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4.4 Without Cause
a. Either VELOCITY or EMPLOYEE may terminate this AGREEMENT at
any time without cause.
b. If VELOCITY decides to terminate this AGREEMENT without cause,
then it shall pay to EMPLOYEE severance in the amount of two (2) years of
salary. The severance shall be paid as a lump sum.
c. If VELOCITY alters the duties of the EMPLOYEE in such a way
that his responsibilities or authorities are reduced; if EMPLOYEE is required to
suffer a substantial change in his physical surroundings or reporting
relationships; or if VELOCITY decides to relocate, then the EMPLOYEE shall have
the right to consider such action to be a constructive termination, then the
EMPLOYEE shall have the right to consider such action a constructive termination
without cause under Section 4.4. If EMPLOYEE declares such action to be a
constructive termination, then the EMPLOYEE will receive the severance set forth
in 4.4(b). If the EMPLOYEE accepts the relocation, then VELOCITY will pay
EMPLOYEE'S relocation expenses in accordance with VELOCITY policies.
d. Change of Control. In the event that there is a change in
ownership of more than 25% of the shares of stock outstanding of VELOCITY, then
EMPLOYEE, at his option, within 180 days of such change of control, may choose
to terminate his employment pursuant to this paragraph and receive the two years
of severance pay provided for in Section 4.4(b) above.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE EMPLOYEE
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EMPLOYEE represents and warrants to VELOCITY as follows:
5.1 Service by EMPLOYEE as an employee of VELOCITY as contemplated by
this AGREEMENT will not result in the breach by EMPLOYEE or constitute a default
by EMPLOYEE under any written or oral agreement (including agreements with
former employers), instrument, decree, judgment or order to which EMPLOYEE is
bound. EMPLOYEE is not bound by any secrecy, non-disclosure or non-competition
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agreement that would in any manner interfere with EMPLOYEE'S carrying out this
AGREEMENT.
5.2 To the best knowledge of EMPLOYEE, there are no actions, suits or
proceedings pending or threatened against EMPLOYEE that will adversely affect
the transactions contemplated by this AGREEMENT.
5.3 To the best knowledge of EMPLOYEE, there are no restrictions or
facts, which prevent EMPLOYEE from accepting and fulfilling EMPLOYEE'S duties as
contemplated by this AGREEMENT.
ARTICLE 6
ENTIRE AGREEMENT AND MODIFICATION
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This AGREEMENT supersedes and cancels any previous employment agreements
or oral understandings relating to EMPLOYEE, represents the entire understanding
between the parties with reference to the subject matter hereof, may not be
modified or terminated, and no requirement or breach of this AGREEMENT may be
waived other than by a document in writing signed by EMPLOYEE and an authorized
representative of VELOCITY.
ARTICLE 7
CONTROLLING LAW AND JURISDICTION
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VELOCITY is located in New Jersey and EMPLOYEE'S relation with VELOCITY is
based in New Jersey. This AGREEMENT was made in New Jersey. For purposes of
analysis and interpretation of this Agreement, New Jersey law shall apply and
control. EMPLOYEE and VELOCITY consent to the jurisdiction of the Superior Court
of New Jersey for purposes of litigating any disputes under this AGREEMENT.
ARTICLE 8
SEVERABILITY
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If any provision of this AGREEMENT shall be found to be contrary to law or
otherwise unenforceable by any court, only that provision shall be invalid, and
all other provisions of this AGREEMENT shall remain valid and enforceable. If
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any court finds a provision of this Agreement to be overly broad, that court may
modify that provision to the extent necessary to make it valid and enforceable.
ARTICLE 9
BINDING EFFECT
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This AGREEMENT is binding on and inures to the benefit of VELOCITY and
EMPLOYEE and their respective successors, assigns, heirs, legal representatives,
executives and administrators.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the
date first above written.
VELOCITY, INC. EMPLOYEE;
/s/ XXXX X. XXXXXXXX /s/ W. XXXXX XXXXX, XX.
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XXXX X. K LEINERT W. XXXXX XXXXX, XX.
Dated: January 1, 2004 Dated: January 1, 2004
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