VISUAL MANAGEMENT SYSTEMS EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.19
VISUAL
MANAGEMENT SYSTEMS
This
Employment Agreement (the “Agreement”) is entered into as of this ___ day of
May, 2008, by and between VISUAL
MANAGEMENT SYSTEMS, INC.,
a
Nevada corporation which maintains its principal executive offices at 0000
Xxxxxxxxxx Xxx Xxxxx, Xxxxx X, Xxxx Xxxxx, Xxx Xxxxxx 00000 (the “Company”), and
X.X.
Xxxxxxx
(the
“Executive”), an individual residing at 000
Xxxxxx Xx. Xxxxxxxxx, XX 00000.
Company
and Executive are collectively referred to herein as the “Parties” and
individually as a “Party”.
W
I T N E S S E T H:
WHEREAS,
the
Company is engaged in providing a mix of products and services consisting
primarily of, but not limited to, the sales, installation, manufacturing,
assembly, and design consultation of Closed Circuit Television (“CCTV”) systems
with Digital Video Recorders (“DVRs”) and Charged Couple Device Surveillance
Cameras (“CCD Cameras” or “cameras”) to Small-Medium Business Enterprises
(“SMEs”), Government, Municipal, not-for-profit organizations, and other
commercial enterprises, organizations, associations or businesses (collectively
“the customers”) primarily located in, but not limited to the continental United
States Markets and environments; and
WHEREAS,
the
Executive has current experience in accounting, finance, and compliance with
Securities and Exchange Commission (“SEC”) regulation pertaining to the
reporting of publicly held companies. Executive is capable of having
responsibility for all financial and fiscal management aspects of company
operations and is prepared to provide leadership and coordination in the
administrative, business planning, accounting and budgeting efforts of the
company.
WHEREAS,
the
Company desires to provide for the employment of the Executive as Chief
Financial Officer pursuant
to the terms and conditions of this Agreement since the Company believes that
the Executive’s business experience, skill, and expertise will enhance the
business and improve the profitability of the Company; and
WHEREAS,
the
Company’s Board of Directors (“Board”) has determined that it is in the best
interest of the Company to provide for the employment of the Executive as
Chief
Financial Officer and
believes that this Agreement will reinforce and encourage the attention and
dedication of the Executive to the Company as a key member of the Company’s
management team; and
WHEREAS,
the
Executive is willing to commit himself to faithfully and exclusively serve
the
Company on the terms and conditions provided herein;
NOW,
THEREFORE,
in
consideration of the representations, covenants, and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the Parties hereto agree as follows:
Exhibit
10.19
ARTICLE
I
DEFINITIONS
As
used
in this Agreement, the following terms shall have the following meanings unless
the context specifically requires otherwise:
1.01 “Cause”
shall
mean any of the following:
(a) With
respect to the Company’s termination of the Executive:
(1) the
final
unappealable conviction of the Executive of a felony under any state or federal
law, or the entry of a plea of guilty or no contest by the Executive with
respect thereto;
(2) any
failure or refusal by the Executive to fulfill, in any material respect, his
duties and responsibilities (other than by reason of death or Disability, as
defined below) as set forth in Section 2.02 of this Agreement for a period
of
sixty (60) days after receipt of written notice of such failure or refusal
from
the Company to the Executive; provided, however, that such notice shall contain
a detailed description of the particular conduct or omission of the Executive
that the Company alleges constitutes such failure or refusal, together with
a
detailed description of the particular conduct or omission which the Company
directs the Executive to undertake in order to cure such failure or refusal;
however, failure to achieve performance goals or earnings targets or any act
or
failure or refusal to act on the Executive’s part shall not be a reason for
termination for Cause if the act done or omitted to be done was pursuant to
any
express policy of the Company, or pursuant to the express direction of the
Board, or pursuant to a good faith and reasonable business decision by the
Executive in the performance of his duties under this Agreement.
(3) any
failure or refusal of the Executive to adhere to any established lawful policy
of the Company for a period of thirty (30) days after receipt of written notice
of such failure or refusal from the Company to the Executive; provided, however,
that such notice shall contain a detailed description of the particular conduct
or omission of the Executive that the Company alleges constitutes such failure
or refusal, together with a detailed description of the particular conduct
or
omission which the Company directs the Executive to undertake in order to cure
such failure or refusal; however, no act or failure or refusal to act on the
Executive’s part shall be a reason for termination for Cause under if the act
done or omitted to be done was pursuant to any express policy of the Company,
or
pursuant to the express direction of the Board, or pursuant to a good faith
and
reasonable business decision by the Executive in the performance of his duties
under this Agreement.
(4) the
final
unappealable conviction or civil judgment against the Executive for any fraud,
embezzlement, misappropriation of funds, breach of fiduciary duty or other
act
of dishonesty against the Company; or
(5) any
final
unappealable determination by a court of competent jurisdiction of material
breach by the Executive of his obligations under Article IV of this
Agreement.
(b) With
respect to the Executive’s right to terminate this Agreement:
(1) the
Company or the Board fails to re-elect the Executive, without Executive’s prior
consent in any or each instance, as Chief Financial Officer during the term
of
this Agreement;
(2) the
Company or its Board of Directors, without Executive’s prior consent, Demotes
the Executive in any or each instance as Chief Financial Officer;
2
Exhibit
10.19
(3) the
Company breaches any material covenant under this Agreement and such breach
is
not cured within sixty (60) days of receipt of Executive’s written notice of
such breach;
(4) this
Agreement is assigned or delegated by the Company to any other person or entity
without Executive’s prior consent or the Company is acquired or merged with any
other entity; or
(5) a
change
of the principal place of performance (as set forth in Section 2.02(c) below)
of
more than 30 miles without Executive’s consent.
1.02 “Business”
shall
mean (a) the Company’s present business which consists of providing a mix of
products and services consisting primarily of, but not limited to, the sales,
installation, manufacturing, assembly, and design consultation of Closed Circuit
Television (“CCTV”) systems with Digital Video Recorders (“DVRs”) and Charged
Couple Device Surveillance Cameras (“CCD Cameras” or “cameras”) its
customers.
1.03 “Competing
Business”
shall
mean any business providing the same or similar mix of products, processes
or
services within the Territory.
1.04 “Confidential
Information”
shall
have a meaning as set forth in Section 4.02 of this Agreement.
1.05 “Demote/Demotion”
shall
mean a material change in the nature or scope of the authorities, powers,
functions or duties of the Executive, whether associated with the title of
Chief
Financial Officer or another title.
1.06 “Disability”
shall
mean the Executive’s inability to perform his duties, obligations and
responsibilities under this Agreement by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than
twelve (12) months.
1.07 “Intellectual
Property”
shall
have a meaning as set forth in Section 4.03 of this Agreement.
1.08 “Severance
Benefits”
shall
have a meaning as set forth in Section 5.02(b) of this Agreement.
1.09 “Severance
Compensation”
shall
have a meaning as set forth in Section 5.02(a) of this Agreement.
1.10 “Territory”
shall
mean Tier I/Tier II United States Markets and environments in which the Company
conducts business, or actively prepares to conduct business at any time during
the covenant period provided in Article IV of this Agreement.
1.11 “Tier
I United States Markets”
shall
mean the top twenty (20) Metropolitan Statistical Areas by business population
density and growth.
1.12 “Tier
II United States Markets”
shall
mean the second twenty (20) Metropolitan Statistical Areas by business
population density and growth.
1.13 “The
Customers”
shall
mean Small-Medium Business Enterprises (“SMEs”), Government, Municipal,
not-for-profit organizations, and other commercial enterprises, organizations,
associations or businesses that the Company provides business or business
services to.
3
Exhibit
10.19
ARTICLE
II
EMPLOYMENT
Section
2.01 Term. The
term
of the Executive’s employment shall be for a period of two (2) years commencing
on the date of this Agreement, unless earlier terminated pursuant to Section
5.01 hereof. This Agreement shall automatically renew for successive periods
of
one (1) year thereafter unless either Party gives written notice of its intent
not to renew at least sixty (60) days prior to the expiration of any
term.
Section
2.02 Powers,
Duties and Responsibilities.
(a) For
the
term of this Agreement, the Company hereby employs the Executive, and the
Executive hereby accepts employment with the Company, to render exclusive
service as Chief
Financial Officer,
with
such powers, duties, and responsibilities consistent with the position of
Chief
Financial Officer as
provided for in the Company’s By-laws and as otherwise the Board may determine
from time to time. The Executive agrees to devote his full working time to
the
Company and to diligently perform all duties to the best of his ability,
pursuant to the policies and regulations of the Company, and shall use his
best
efforts to promote the success of the present and future businesses of the
Company. The Executive shall report directly to the Company’s Chief Executive
Officer.
(b) During
the term of this Agreement, except for his participation and interest in the
entities listed on Schedule “A” attached hereto, the Executive shall not,
directly or indirectly, alone or as a member of any partnership or joint
venture, or as an Executive, officer or director of, or a consultant to, any
other corporation or business organization, be engaged in any other business
activity or occupation, whether or not such other business activity is pursued
for gain, profit or pecuniary advantage, unless approved by the Board. The
Executive agrees that he will not be involved in any activity outside of the
business of the Company that would interfere with the performance of his duties
hereunder or any activity that would be inimical to or contrary to the best
interests of the Company. Further, the Executive shall, as an investor, have
the
right to acquire, sell or hold the stock or other investment securities of
(a)
any business entity, other than the Company, that is registered on a national
securities exchange or regularly traded on a generally recognized
over-the-counter market, so long as the Executive’s beneficial interest in any
such business entity does not exceed five percent (5%) of the ownership of
that
business entity, and (b) the entities listed on the attached Schedule “A.”
(c) Executive’s
principal place of performance shall be in Toms River, New Jersey. Executive
shall be required at times to reasonably travel as part of his duties
hereunder.
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Exhibit
10.19
ARTICLE
III
COMPENSATION
AND BENEFITS
Section
3.01 Base
Salary. The
Executive will receive a base salary from the Company as set forth in Schedule
“B” attached to this Agreement, for his services under this Agreement, payable
in accordance with the Company’s payroll activities.
Section
3.02 Bonus
Compensation. The
Executive shall be eligible to receive an annual incentive bonus comprised
of
cash, stock and/or stock options in an amount as determined by the Board in
its
sole and absolute discretion.
Section
3.03 Public
Reporting Compliances Bonuses.
The
Executive shall receive bonuses from the Company as set forth in Schedule “B”
attached to this Agreement. The Executive’s salary may be increased otherwise
during the term of this Agreement by the Board or the Compensation Committee
of
the Board, if any, in its sole and absolute discretion.
Section
3.04 Benefits.
The
Executive will, at all times during his employment with the Company, be entitled
to participate in all benefits maintained by the Company for senior level
executives of the Company, including, but not limited to, participation in
the
Company’s Equity Incentive Plan (a copy of which has been furnished to the
Executive), as determined by the Company’s Board. Except as provided herein or
required by the terms of a Company sponsored benefit plan, nothing paid to
the
Executive under any such plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the Executive’s salary
and any bonus received pursuant to Sections 3.01, 3.02, 3.03 and 3.04 of this
Agreement.
Section
3.05 Additional
Insurance.
The
Executive will, be provided with additional insurance policies as set forth
in
Schedule “B” attached to this Agreement. Any costs incurred by the company to
obtain such coverage on behalf of the Executive shall not be deemed to be in
lieu of the Executive’s salary and any bonus received pursuant to Sections 3.01,
3.02, 3.03 and 3.04 of this Agreement
Section
3.06 Vacation.
The
Executive shall be entitled to twenty (20) workdays of vacation with pay during
each twelve-month period of employment under this Agreement. The Executive
shall
be entitled to carry forward up to twenty (20) unused vacation days from one
twelve-month period for use during the immediately succeeding twelve-month
period in addition to the twenty (20) vacation days provided for such period
pursuant to the preceding sentence. The Executive shall not be entitled to
receive any compensation in lieu of such vacation days, whether or not used
during the applicable periods.
Section
3.07 Holidays. The
Executive shall be entitled to all paid holidays given by the Company to its
Executives.
Section
3.08 Professional
Enrichment.
The
Executive shall be granted up to fifteen (15) days during each twelve-month
period of employment under this Agreement for the purpose of professional
enrichment. Such shall include attendance as a guest and speaker at seminars
and
symposiums, and providing consulting and advice to private entities not in
competition with the Company. The Executive shall provide the Company reasonable
notice prior to the Executive’s utilization of a professional enrichment day.
Executive shall be responsible for any expenses related to his professional
enrichment activities, excluding professional enrichment activities with respect
to Company related training or education. The Executive shall not be entitled
to
receive any compensation in lieu of such days, whether or not used during the
applicable period. The Executive shall not be entitled to carryover any
professional enrichment days from year to year. Upon the Board’s reasonable
request, Executive shall provide the Board proof of any attendance at
professional enrichment activities or functions.
5
Exhibit
10.19
Section
3.09 Perquisites.
(a) Automobile
Expenses.
During
the term of this Agreement, the Executive will be entitled to and the Company
shall provide a monthly automobile allowance of Six Hundred Dollars
($600.00) to be applied towards the purchase or lease of an automobile suitable
to the Executive’s position with the Company. The Executive shall be responsible
for all expenses related to fuel, oil, tolls, maintenance and repairs for any
such automobile.
(b) Computer
Allowance.
During
the term of this Agreement, the Executive will be entitled to be provided,
at
the Company’s expense, a laptop computer of his choice which is suitable to the
Executive’s position and consistent with the forward thinking attitude of the
company. Upon any upgrade or replacement of any computer, Executive shall return
to the Company the computer previously purchased with the allowance. Upon
termination of the Executive, all computers purchased with the allowance shall
be returned to the Company.
(c) Other.
The
Executive shall be entitled to receive any perquisites available, or hereafter
made available, to senior level executives of the Company.
ARTICLE
IV
NON-COMPETITION,
NON-DISCLOSURE AND NON-SOLICITATION
Section
4.01 Scope
and Reasonableness.
The
Executive acknowledges that the Company has a present and future expectation
of
conducting operations and generating revenues and that, in his capacity with
the
Company, the Executive will have important duties and responsibilities with
respect to the Business. The Executive is being employed hereunder in a key
capacity with the Company, that the Company is engaged in a highly competitive
business, and that the success of the Company’s business in the marketplace
depends upon its goodwill and reputation for quality and dependability. The
Executive further agrees that reasonable limits may be placed on his ability
to
compete against the Company as provided herein so as to protect and preserve
the
legitimate business interests and goodwill of the Company.
6
Exhibit
10.19
Section
4.02 Confidentiality
and Trade Secrets.
(a) The
Executive acknowledges and agrees that his position as an employee of the
Company will afford him a unique opportunity to acquire confidential information
concerning the Company and that the misappropriation or disclosure of such
confidential information would cause irreparable harm to the Company. The
Executive recognizes and agrees that he will have access to certain confidential
information of the Company that is not generally available to the public and
that such information constitutes valuable, special and unique property of
the
Company. The Executive acknowledges that such confidential information includes
information concerning the Business and the Company including, without
limitation, financial information concerning the Business or the Company, the
names and addresses of actual and potential customers or acquisition or
investment targets of the Business or the Company, studies of prospective market
areas for the Business, supply sources, products, technical data, notes,
diagrams, drawings, flow charts, ideas, techniques, specifications, procedures,
processes, research, development, and trade secrets of the Business and the
Company (such information whether related to the Business or the Company being
referred to collectively as the “Confidential Information”). Confidential
Information shall not include any information or documents (i) that are or
become publicly available or otherwise known in the industry without breach
of
this Section 4.02; or (ii) that the Executive rightfully receives from any
third
party which is not breaching an obligation of confidence with the Company or
without an accompanying obligation of confidence; or (iii) that were known
to or
by the Executive prior to his appointment with the Company without breach of
this Section 4.02. In the event that the Executive is requested in any court
or
governmental proceeding to disclose any Confidential Information, the Executive
shall give the Company prompt notice of such request such that the Company
may
seek a protective order or other appropriate relief and shall cooperate in
all
respects with the Company in its efforts in connection therewith.
(b) The
Executive will keep confidential and will not, during his employment and for
a
period of five (5) years after any termination under this Agreement (whether
by
expiration or pursuant to Section 5.01 or otherwise), directly or indirectly,
divulge to anyone, use or otherwise appropriate any of the Confidential
Information for any reason or purpose whatsoever except to authorize
representatives of the Company or when, in the good faith belief of the
Executive, such disclosure is necessary or desirable in the normal course of
the
Business in order for the Executive to fulfill his duties and responsibilities
to the Company as set out in Section 2.02.
(c) The
Executive acknowledges and agrees that these prohibitions against disclosure
of
Confidential Information are in addition to, and not in lieu of, any rights
or
remedies which the Company may have available pursuant to the laws of any
jurisdiction or at common law to prevent the disclosure of trade secrets or
proprietary information, and the enforcement by the Company of any of their
rights and remedies pursuant to this Agreement shall not be construed as a
waiver of any other rights or available remedies which they may possess in
law
or equity absent this Agreement.
(d) Upon
any
termination of his employment under this Agreement, the Executive shall
surrender to the Company all documents and materials in his possession, custody
or control embodying the Confidential Information or any part
thereof.
Section
4.03 Proprietary
Material.
(a) The
Executive hereby assigns and agrees to assign to the Company all of the
Executive’s right, title and interest in and to all information, inventions,
discoveries, products, systems, computer or other apparatus programs and related
documentation, including improvements or modifications thereto which are
directly used or could be used in the Business of the Company, (hereinafter
each
designated as “Intellectual Property”), whether or not patentable, copyrightable
or subject to other forms of protection, made, created, developed, written
or
conceived by the Executive during the term of Executive’s employment with the
Company, whether during or outside regular working hours, either solely or
jointly with another person or entity, in whole or in part. Excepted is any
material developed in the course of the Executive’s work with the entities
listed at Schedule A.
7
Exhibit
10.19
(b) The
Executive acknowledges that the Intellectual Property constitutes the exclusive
property of the Company and that any copyrights, patents, trademarks or trade
secret rights in the Intellectual Property belong to the Company by operation
of
law. Such Intellectual Property shall constitute work for hire.
(c) The
Executive shall, without charge to the Company, but at the Company’s expense,
execute a specific assignment of title to the Company and do anything else
reasonably necessary or desirable to enable the Company to secure a patent,
copyright, trademark, or other form of protection for or otherwise exploit
any
Intellectual Property anywhere in the world.
Section
4.04 Covenant
Not to Compete.
(a) During
the period ending on the twelve (12) month anniversary of the Company’s
termination of the Executive’s employment for Cause or the Executive’s
termination of the Company without Cause, the Executive will not directly or
indirectly:
(i) Excepting
those entities listed at Schedule “A,” engage in, become affiliated with, or
become interested in any business that is engaged in a Competing Business,
either alone or with any individual, partnership, corporation, or association
in
any capacity. For these purposes, “to engage,” “become affiliated with” or
“become interested in” shall mean either (1) acting in a management or oversight
capacity as an officer, director, agent, representative, consultant, independent
contractor or employee of any entity or enterprise which is engaged in a
Competing Business; (2) participating in any material management or oversight
role in any such business which is engaged in a Competing Business as an owner,
partner, limited partner, joint venturer, creditor, or stockholder (except
as a
stockholder owning not greater than a five percent (5%) interest in a
corporation whose shares are actively traded on a national securities exchange
or in the over-the-counter market); or (3) communicating to any such business,
which is engaged in a Competing Business, the names or addresses or any other
information concerning any past, present, or identified prospective client,
customer, joint venture partner, supplier or acquisition or investment targets
of the Company, provided that this provision shall not apply to any information
that is not “Confidential Information,” as such term is defined in Section
4.02(a) of this Agreement;
(ii) cause,
induce, or encourage any employee of the Company to leave the employ of the
Company, or any independent contractor to terminate any independent contractor
relationship with the Company;
(iii) cause,
induce, or encourage any former employee of the Company to become employed
by a
business which is engaged in a Competing Business; or
(iv) employ
or
seek to employ any person who is at that time employed with the
Company.
(b) If
the
covenant not to compete provided for herein is found by any court having
jurisdiction to be too broad or too restrictive, then the covenant not to
compete shall nevertheless remain effective, but shall be considered amended
to
a point considered by said court as reasonable and, as so amended, shall be
fully enforceable.
8
Exhibit
10.19
Section
4.05 Non-Solicitation
and Non-Interference.
During
the period ending on the twelve (12) month anniversary of the termination of
the
Executive’s employment with the Company (whether such termination is by the
Company or by the Executive), the Executive will not in any way, directly or
indirectly, for himself or on behalf of or in conjunction with any other person,
partnership, firm, association, or corporation:
(i) Solicit
or divert away or attempt to solicit or divert any client or customer served
or
solicited by the Company within the six (6) month period prior to the
Executive’s termination or any potential customer of the Company if such
potential customer’s business had been actively solicited by the Company within
the six (6) month period prior to the Executive’s termination;
(ii) Interfere
with or attempt to interfere with negotiations between the Company and any
acquisition or investment target of the Company; or
(iii) Solicit
or attempt to solicit any acquisition or investment target which the Company
have been in negotiations with during the six (6) month period prior to the
Executive’s termination with the Company.
Section
4.06 Remedies.
The
Executive acknowledges that any violation of this Article IV will cause
irreparable harm to the Company and that damages are not an adequate remedy.
The
Executive therefore agrees that the Company shall be entitled to seek an
injunction enjoining, prohibiting and restraining the Executive from the
continuance of any such violation, in addition to any monetary damages which
might occur by reason of a violation of this Agreement or any other remedies
at
law or in equity, including without limitation specific performance, and that
in
any such action the Executive will not raise as a defense the argument that
an
adequate remedy for such breach exists at law.
Section
4.07 Independent.
The
covenants set forth in the foregoing Sections of this Article IV are and shall
be deemed and construed as separate and independent covenants. Should any part
or provision of such covenants be held invalid, void or unenforceable in any
court of competent jurisdiction, such invalidity, voidness or unenforceability
shall not render invalid, void or unenforceable any other part or provision
thereof. Specifically, and without limiting the generality of the foregoing,
if
any portion of Sections 4.01, 4.02, 4.03, 4.04 or 4.05 is found to be invalid
by
a court of competent jurisdiction because its duration, the Territory and/or
the
Business are invalid or unreasonable in scope, such duration, Territory and/or
Business, as the case may be, shall be redefined by consideration of the
reasonable concerns and needs of the Company such that the intent of the Company
and the Executive, in agreeing to Sections 4.01, 4.02, 4.03, 4.04, 4.05 and
4.06, will not be impaired and shall be enforceable to the fullest extent of
the
applicable laws.
ARTICLE
V
TERMINATION
5.01 Termination.
The
Executive’s employment by the Company hereunder may be terminated under the
following conditions:
(a) Death.
The
Executive’s employment hereunder shall terminate immediately upon his death,
without notice. The effective date of any such termination shall be the date
of
the Executive’s death. The Company shall pay to the Executive’s designated
beneficiary, or if he leaves no designated beneficiary to his estate, any salary
which has been earned but is unpaid and any unreimbursed expenses or other
unpaid benefits due the Executive hereunder at the time of his death. The
Company shall also pay Severance Compensation and provide Severance Benefits
as
defined in Section 5.02 hereunder for the Executive’s family or designated
beneficiary.
9
Exhibit
10.19
(b) Disability.
In the
case of Disability of the Executive, the Company may terminate the Executive’s
employment pursuant to this Agreement by giving written notice to the Executive
(or his personal or legal representative, as the case may be) specifying such
Disability. The effective date of any such termination shall be that specified
in such notice. Upon termination of the Executive for Disability, the Executive
shall receive the Severance Compensation and shall be entitled to the Severance
Benefits as defined in Section 5.02 hereunder.
(c) Termination
for Cause by Company.
In the
event the Executive is terminated for Cause as defined in Section 1.01(a)
herein, the Company may at any time without notice terminate the Executive’s
employment hereunder, and the Executive shall have no right to receive any
salary, or benefits of any kind whatsoever, except those benefits which are
vested or otherwise owned by the Executive, on and after such date of
termination. The Executive shall not receive any bonus compensation, pursuant
to
Section 3.02 of this Agreement, for the year of termination if such termination
is by the Company for Cause.
(d) Termination
Without Cause by Company.
The
Company may at any time, upon thirty (30) days written notice issued in
accordance with Section 6.07 hereunder which establishes the date of termination
of this Agreement, terminate the Executive’s employment under this Agreement
without Cause. The issuance of a notice of termination is a condition precedent
to the termination of the employment relationship without Cause by the Company,
and the Company shall not issue such a notice of termination unless the issuance
of such notice and the contents of such notice are approved by the affirmative
vote of a majority of the Company’s Board. Upon termination without cause by the
Company, the Executive is entitled to receive from the Company any earned but
unpaid salary as well as receive from the Company any unreimbursed expenses
or
other unpaid benefits owed as of the date of termination. Further, in the event
of a termination without cause by the Company, the Executive is entitled to
the
Severance Compensation and Severance Benefits as defined in Section 5.02
hereunder. During the thirty (30) day notice period, or any such abbreviated
period, the Executive shall continue to faithfully and diligently perform all
duties assigned to him by the Board.
(e) Termination
Without Cause by the Executive.
The
Executive may terminate this Agreement without specific Cause or reason upon
ninety (90) days written notice to the Company. The Company may at any time,
in
its sole discretion, shorten or eliminate the ninety (90) day notice period
by
written notice to the Executive. The Executive shall receive no further salary,
other than amounts earned but unpaid, nor benefits of any kind, other than
amounts to which the Executive is entitled to reimbursement and those benefits
which are vested or otherwise owned by the Executive, following the ninety
(90)
day notice period, or such abbreviated period to the extent it is shortened
or
eliminated by the Company as provided above. The Executive shall not be entitled
to bonus compensation, pursuant to Section 3.02 of this Agreement, for the
year
of termination if such termination is by the Executive without Cause. During
the
ninety (90) day notice period, or any such abbreviated period, the Executive
shall continue to faithfully and diligently perform all duties assigned to
him
by the Board.
(f) Termination
for Cause by the Executive.
The
Executive may terminate this Agreement upon ninety (90) days written notice
to
the Company for Cause. Upon termination at the conclusion of the ninety (90)
day
period, the Executive is entitled to receive from the Company any earned but
unpaid salary and any unreimbursed expenses or other unpaid benefits owed as
of
the date of termination. The Company may shorten or eliminate the ninety (90)
day notice period by providing written notice to the Executive. Further, the
Executive shall be entitled to the Severance Compensation and Severance Benefits
as defined in Section 5.02 hereunder. An election by the Executive to terminate
this Agreement for Cause shall not be deemed a voluntary termination of
employment by the Executive for the purpose of this Agreement or any plan or
practice of the Company.
10
Exhibit
10.19
Section
5.02 Severance
Compensation and Severance Benefits.
(a) Pursuant
to this Agreement, “Severance Compensation” shall mean, within ten (10) calendar
days of the date of termination (the Executive’s last day of employment with the
Company):
|
(i)
|
in
the first year this Agreement is in
effect:
|
|
a.
|
a
single cash payment in an amount equal to $25,000;
and
|
|
b.
|
payment
for accrued and unused vacation for the year of termination;
and
|
|
c.
|
payment
of the Executive’s prorated bonus compensation, if any, pursuant to
Section 3.02 of this Agreement, for the year of termination in accordance
with the ordinary payment
procedures.
|
|
(ii)
|
In
the second year this Agreement is in
effect:
|
|
a.
|
a
single cash payment in an amount equal to $50,000;
and
|
|
b.
|
payment
for accrued and unused vacation for the year of termination;
and
|
|
c.
|
payment
of the Executive’s prorated bonus compensation, if any, pursuant to
Section 3.02 of this Agreement, for the year of termination in accordance
with the ordinary payment
procedures.
|
|
(iii)
|
In
any subsequent year beyond the second in which this Agreement is
in
effect
|
|
a.
|
a
single cash payment in an amount equal to 50% of the Executive’s
annualized base compensation for the year;
and
|
|
b.
|
payment
for accrued and unused vacation for the year of termination;
and
|
|
c.
|
payment
of the Executive’s prorated bonus compensation, if any, pursuant to
Section 3.02 of this Agreement, for the year of termination in accordance
with the ordinary payment
procedures.
|
(b) Pursuant
to this Agreement, “Severance Benefits” shall mean:
(i) to
the
extent that the Executive is insurable, the Company shall reimburse the
Executive the cost of COBRA benefits, including dental but, other than long
term
disability coverage, for the Executive and his family for a period of eighteen
(18) months following the date of termination, subject to any limitation on
the
provision of such benefits established by then existing law; provided, however,
that if the Company is not able to provide coverage under COBRA for any reason,
including, without limitation, that the Executive is deemed uninsurable, the
Company shall make a lump sum cash payment to the Executive in an amount equal
to the Company’s cost for such COBRA benefits over such eighteen (18) month
period if such benefits had been available for the Executive and his
family.
(ii)
The
Company shall pay the premiums for Executive’s group life insurance policy for a
period of eighteen (18) months following the date of termination to the extent
and as permitted under the terms of such policies; provided, however, that
if
Company is not able to offer such coverage for any reason, including, without
limitation, that the Executive is deemed uninsurable, the Company shall make
a
lump sum cash payment to the Executive in an amount equal to the premium
payments that would have otherwise been payable under such policies for
Executive for such eighteen (18) month period;
(iii)
Executive shall have the right to convert any other Company sponsored benefit
plan to the extent provided for by the terms of such plan, but the Company
shall
have no obligation to make payments in connection with any such conversion.
11
Exhibit
10.19
ARTICLE
VI
MISCELLANEOUS
6.01 Governing
Law.
This
Agreement shall be construed and enforced in accordance with the laws of the
State of New Jersey.
6.02 Entire
Agreement. This
Agreement contains the entire agreement between the Parties with respect to
the
Executive’s employment with the Company and supercedes all prior and
contemporaneous, written, oral, express and implied communications, agreements,
and understandings between the Parties relating to the same subject matter,
including any prior employment agreement between the Executive and Company
or
any of its affiliates or subsidiaries. In the event that any term, or condition
or provision of this Agreement varies from, or is in any way dissimilar to
or a
conflict with, any term, condition or provision of any of the Company’s benefit
plans or any other agreement between the Parties, the terms, conditions and
provisions of this Agreement will control.
6.03 Amendments.
This
Agreement cannot be amended, changed, or supplemented except in writing signed
by the parties or their duly authorized agents or attorneys in
fact.
6.04 Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective heirs, executors, administrators, successors, and permitted
assigns.
6.05 Assignment.
This
Agreement is nonassignable except that the Company’s rights, duties, and
obligations under this Agreement may be assigned and delegated to any subsidiary
or affiliate of the Company or to the acquiror of the Company in the event
the
Company is merged, acquired, sells substantially all of its interest in its
assets or the Business or transfers its interest in the Business to any other
entity.
6.06 Severability. If
any
one or more of the provisions of this Agreement shall be determined to be
invalid, illegal, or unenforceable in any respect for any reason, the validity,
legality, and enforceability of any such provision in every other respect and
the remaining provisions of this Agreement shall not in any way be
impaired.
6.07 Notices.
All
notices, requests, demands, and other communications under or in connection
with
this Agreement shall be in writing, shall be sent by registered or certified
mail return receipt requested, and shall be deemed to have been given or made
when received at the following offices:
|
If
to the Company:
|
VISUAL
MANAGEMENT SYSTEMS HOLDING, Inc.
|
|
0000
Xxxxxxxxxx Xxx Xxxxx, Xxxx X
|
|
|
Xxxx
Xxxxx, XX 00000; and
|
|
|
Xxxxxx
X. Xxxxxxxx, Esq.
|
|
|
Xxxxxxxx,
Xxxxxxxx & Xxxxxx, P.C.
|
|
|
000
Xxxx Xxxx Xxxx, X.X. Xxx 000
|
|
|
Xxxxxxxxxx,
Xxx Xxxxxx 00000
|
|
|
If
to the Executive:
|
X.X.
Xxxxxxx
|
|
000
Xxxxxx Xx.
|
|
|
Xxxxxxxxx,
XX 00000
|
The
above
addresses may be changed by written notice given as above provided.
12
Exhibit
10.19
6.08 Consent
to Jurisdiction.
The
Company and the Executive, by its or his execution hereof, (i) hereby
irrevocably submits to the exclusive jurisdiction of the state and Federal
courts located within the State of New Jersey for the purpose of any claim
or
action arising out of or based upon this Agreement or relating to the subject
matter hereof, (ii) hereby waives, to the extent not prohibited by applicable
law, and agrees not to assert by way of motion, as a defense or otherwise,
in
any such claim or action, any claim that is not subject personally to the
jurisdiction of the above-named courts, that its or his property is exempt
or
immune from attachment or execution, that any such proceeding brought in the
above-named court is improper, or that this Agreement or the subject matter
hereof may not be enforced in or by such court, and (iii) hereby agrees not
to
commence any claim or action arising out of or based upon this Agreement or
relating to the subject matter hereof other than before the above-named courts
nor to make any motion or take any other action seeking or intending to cause
the transfer or removal of any such claim or action to any court other than
the
above-named courts whether on the grounds of inconvenient forum or otherwise.
Each of the Company and the Executive hereby consents to service of process
in
any such proceeding in any manner permitted by New Jersey law, and agrees that
service of process by registered or certified mail, return receipt requested,
at
its address specified pursuant to Section 6.07 hereof is reasonably calculated
to give actual notice.
6.09 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which will take
effect as an original and all of which will evidence one and the same
agreement.
6.10 Pronouns. All
pronouns used herein shall be deemed to refer to the masculine, feminine, or
neuter gender as the context requires.
{signature
page follows}
13
Exhibit
10.19
IN
WITNESS WHEREOF the parties have executed this Agreement as an instrument under
SEAL as of the date first appearing above.
|
ATTEST:
|
VISUAL
MANAGEMENT SYSTEMS, INC.
|
||
|
|
By:
|
||
|
Name:
|
|||
|
Title:
|
|||
|
WITNESS:
|
|||
|
|
|
||
|
X.X.
XXXXXXX
|
|||
{Signature
Page for Executive Employment Agreement}
14
Exhibit
10.19
SCHEDULE
A: LIST OF ENTITIES IN WHICH EXECUTIVE PARTICIPATES
|
Entity
|
Executive’s Capacity with Entity
|
Description of Services
|
||
15
Exhibit
10.19
SCHEDULE
B: BASE SALARY AND SALARY INCREASES
1. X.X.
Xxxxxxx (“Executive”) shall receive a base annual salary of One Hundred
Fifty-Six Thousand Dollars ($156,000), payable in equal bi-weekly
installments.
2. During
the period of his employment as Chief Financial Officer, Executive shall receive
timeliness bonuses for each of the three quarterly reports on Form 10-Q or
its
equivalent filed by the Company with the SEC. In the case of reports on Form
10-Q filed on time without extension the Executive shall receive $5,000.00.
The
Executive shall also receive timeliness bonuses for each Annual Report on Form
10-K or its equivalent filed by the Company with the SEC. In the case of reports
on Form 10-K filed on time without extension, the executive shall receive
$5,000.00. In the case of reports filed on time within any extension period
granted to the Company via filing of Form 12B-25 or its equivalent with the
SEC,
the executive shall receive $3,000.00. The executive may only receive one bonus
per SEC filing. All bonuses for timely SEC filing will be paid to the Executive
in full as part of the Executive’s next regular salary payment.
3. The
Executive shall be named in the Company’s Directors and Officers Insurance
Policy at no cost to the Executive for an amount of coverage deemed appropriate
by the Board and any relevant regulatory agencies, authorities, or generally
accepted policies for such coverage.
4. The
Executive’s salary may be increased otherwise during the term of this Agreement
by the Board or the Compensation Committee of the Board, if any, in its sole
and
absolute discretion pursuant to Section 3.02 of this Agreement. Executive’s
salary shall be reviewed by the Company’s Chief Executive Officer and the
Compensation Committee of the Board during January 2009.
5. The
Executive may be granted bonuses of cash or equity instrument at any time during
the term of this Agreement by the Board or the Compensation Committee of the
Board, at their sole and absolute discretion pursuant to Section 3.02 of this
Agreement
16
