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EXHIBIT 10.25
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into effective
as of December 10, 1999 (the "EFFECTIVE DATE") by and between First Financial
Resources Holding Co., Inc., a Delaware corporation (the "COMPANY") and wholly
owned subsidiary of EPS Solutions Corporation, a Delaware corporation ("EPS"),
and Xxxxxxx X. Xxxxxxxxx ("EMPLOYEE").
Employee is employed by the Company pursuant to an employment agreement
dated March 18, 1999 (the "ORIGINAL EMPLOYMENT AGREEMENT"), and the Company and
Employee desire to continue Employee's employment, but on the terms set forth
herein rather than pursuant to the Original Employment Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereto agree as follows:
1. EMPLOYMENT. Employee's employment with the Company will be at-will,
which means that either Employee or the Company may terminate Employee's
employment at any time for any reason or no reason without payment, penalty or
further obligation except as set forth in Section 8 or in the Restricted Stock
Purchase Agreement described below or another written agreement between Employee
and the Company or EPS, provided, however, that Employee's employment with the
Company shall not be terminated without Cause (as defined in Schedule 1) without
majority approval of an executive management committee of EPS, which committee
shall consist of four (4) members of the senior management of EPS and one (1)
representative of the President's Council of EPS.
2. DUTIES. Employee shall serve as President of the Company, Senior Vice
President - Financial Solutions of EPS, and President - Financial Solutions of
Enterprise Profit Solutions Corporation, the wholly owned operating subsidiary
of EPS ("ENTERPRISE"). In those capacities, Employee shall report directly to
the Chief Executive Officer of EPS and be responsible for the duties and
functions listed on Schedule 2 and shall perform such related duties and
services as the board of directors and/or Chief Executive Officer of EPS may
from time to time assign, either directly or by delegated authority, provided
however, that Employee's responsibility and authority within the Company will
not be materially diminished without Employee's consent as long as shares of
restricted stock purchased by Employee pursuant to that certain Restricted Stock
Purchase Agreement of even date herewith between Employee and EPS the form of
which is attached hereto as Exhibit A (the "RESTRICTED STOCK PURCHASE
AGREEMENT") are subject to Restrictions (as defined in the Restricted Stock
Purchase Agreement) based upon the performance of the Company and its
subsidiaries (the "RESTRICTED PERIOD"). Except as set forth herein, Employee's
position and duties may be changed at any time and from time to time by the
board of directors or Chief Executive Officer of EPS. Such duties shall be
rendered at such place or places as the Company shall require based upon the
interest, need, business and/or opportunities of the Company, Enterprise, and
EPS, provided however, that the place at which Employee renders such duties
shall not be relocated more than twenty-five (25) miles from the location of
such place on the date hereof without Employee's consent.
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3. TIME AND EFFORTS. While employed by the Company (the "EMPLOYMENT
PERIOD"), Employee shall use his best efforts and devote his or her time and
attention to the business of the Company, Enterprise and EPS on a full-time
basis and shall at all times faithfully and industriously and to the best of his
ability, experience and talent, perform all of the duties that may be required
of him pursuant to the terms hereof. During the Employment Period, Employee
shall not engage in any other paid employment or consulting activities without
the express written consent of EPS, but the foregoing shall not preclude
Employee from engaging in civic, charitable and/or religious activities,
personal legal related speaking engagements, receiving honorariums, publishing
legal related personal manuscripts, directing his own passive investments,
setting up, owning interests in and/or managing investment entities with assets
of Employee or third-parties, providing legal advice to personal friends and
family, and/or serving on boards of directors of other entities so long as such
activities do not interfere or conflict with Employee's duties hereunder as
reasonably determined by the Chief Executive Officer of EPS.
4. COMPENSATION.
(a) Salary, Bonus. During the Employment Period, the Company shall pay
Employee at the annual rate of Two Hundred Fifty Thousand Dollars ($250,000) (as
such pay may be increased by the Company from time to time in its discretion,
the "ANNUAL SALARY") for all services rendered to the Company, Enterprise and
EPS by Employee, payable in accordance with the Company's regular payroll
policies, subject, however, to withholding deductions, including without
limitation social security taxes and applicable federal, state and local income
and other employment taxes. Upon the consummation of an initial underwritten
public offering of the equity securities of EPS, Employee will receive an
increase in Employee's Annual Salary to a rate of Three Hundred Thousand Dollars
($300,000), provided that Employee is still employed with the Company at such
time. Bonuses will be payable in the Company's discretion, but (i) Employee will
be entitled to participate in any bonus program on terms at least as favorable
as those made available to other executive employees of the Company, Enterprise
or EPS, and (ii) Employee's bonus (after tax) for any year shall be not less
than the annual interest that Employee is required to pay in cash to EPS in that
year on any notes issued by Employee to EPS for the purchase by Employee of
stock of EPS.
(b) Equity. In connection with employment by the Company and services
performed by Employee under this Agreement, Employee is acquiring concurrently
herewith 180,000 shares of restricted stock of EPS pursuant to the Restricted
Stock Purchase Agreement and 20,000 shares of vested common stock of EPS
pursuant to a subscription agreement of even date herewith. These shares are in
addition to 100,000 shares of stock of EPS previously acquired by Employee
pursuant to a Restricted Stock Purchase Agreement dated March 18, 1999 (the
"FIRST RSPA"), which will remain outstanding according to the terms of the First
RSPA, as amended by the Amendment Agreement entered into by Employee and EPS
concurrently with this Agreement.
(c) Notes and Liquidity. During and after the Employment Period, and
regardless of the reason for or circumstances of any termination of Employee's
employment, Employee will be entitled to receive (i) the most favorable
treatment of interest on promissory notes incurred to purchase stock of EPS that
is received at any time by any other officer of former officer of the
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Company or EPS as a purchaser of EPS Stock, and (ii) the most favorable
registration rights or other access to liquidity, on a ratable basis based upon
relative holdings, that is received at any time by any other officer or former
office of the Company or EPS.
5. PERSONAL TIME OFF POLICY. Employee shall be entitled to such number
of days of paid personal time off ("PTO") each year as is consistent with the
number of days set forth on Exhibit B and the Company's Personal Time Off
Policy, as such policy may be amended from time to time at the discretion of the
Company. Employee may not accrue more PTO days than the number of days set forth
on Exhibit B under the item "Maximum Accrued PTO." If Employee at any time has
more than such number of days, no further PTO days shall accrue until Employee
again has fewer than such number of days of unused PTO. PTO days may be used,
subject to approval by EPS consistent with business needs, as they are earned.
The Company shall pay Employee for accrued unused PTO days only in connection
with termination of employment. Such payment shall be made on the basis of
Employee's Annual Salary at the time of payment, pro-rated for the number of
accrued unused PTO days at the time of termination.
6. BENEFITS. In addition to the compensation described in Section 4, the
Company shall provide Employee with benefits consistent with the Company's
employment policies as in effect from time to time, but in any case Employee's
benefits will be not less favorable than benefits provided to other executive
officers of EPS.
7. CERTAIN DEFINITIONS.
(a) Cause. For purposes hereof, the term "CAUSE" has the meaning
set forth in Schedule 1 hereto. Any termination by the EPS, Enterprise or the
Company of Employee's employment in compliance with Section 1 and within 90 days
after EPS becoming aware of the occurrence of an event or circumstance
constituting "Cause" will constitute termination for Cause.
(b) Good Reason. If the Company breaches this Agreement or any
other agreement with Employee in any material respect and does not cure such
breach within 15 days of receipt from Employee of notice of such breach and
demand for cure, or a Change in Control (as defined in Schedule 1) occurs, and
Employee terminates Employee's employment with the Company (or its successor)
for any reason within 90 days of such breach or Change in Control, such
termination by Employee will be termination with "GOOD REASON."
8. CERTAIN PAYMENTS.
(a) Notice of Termination. Any termination of Employee's
employment shall be communicated by a Notice of Termination. For purposes of
this Agreement, a "NOTICE OF TERMINATION" shall mean a written notice of
termination of Employee's employment setting forth the effective date of such
termination and, if the termination is for cause, the specific termination
provisions in this Agreement relied upon and, in reasonable detail, the facts
and circumstances claimed to provide a basis for termination of Employee's
employment under the provision so indicated.
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(b) Termination by Employee with Good Reason or the Company,
Enterprise or EPS Without Cause. If Employee's employment under this Agreement
is terminated by Employee with Good Reason or by the Company, Enterprise or EPS
without Cause, then contingent upon execution and delivery by Employee of an
unconditional release, in form consistent with the form of release attached as
an exhibit to the Restricted Stock Purchase Agreement, of all claims against the
Company, Enterprise, EPS or any of their officers, directors or affiliates
arising from or in connection with this Agreement or Employee's employment with
the Company or the termination of that employment, Employee shall be entitled to
receive within five days of termination of employment a lump sum payment equal
to his Annual Salary and his share, if any, of the Company bonus calculated to
the date of termination (the "SEVERANCE PAYMENT"). However, if the Company bonus
for the year in which termination of employment occurs has not been determined
at the time of termination, payment of the Company bonus portion of the
Severance Payment will be delayed until the Company bonus, if any, for that year
is determined.
(c) No Other Benefits. Except as set forth in Sections 5 or 8(b),
or as may be required by applicable law or separate written agreement between
the Company, Enterprise or EPS and Employee, the Company, Enterprise and EPS
shall have no obligations to pay any salary, bonus, accrued vacation or other
amounts in connection with any termination of Employee's employment or
attributable to the period after termination of Employee's employment. Without
limiting the foregoing, and subject to any separate written agreement to the
contrary, Employee will not be entitled to any severance payment or benefit if
Employee's employment under this Agreement is terminated as a result of death or
Disability, or by Employee without Good Reason, or by the Company, Enterprise or
EPS for Cause.
9. CONFIDENTIALITY. The Confidential Information and Employee Invention
Agreement (the "CONFIDENTIALITY AGREEMENT") executed and delivered by Employee
in connection with the Original Employment Agreement will remain in full force
and effect and will survive termination or expiration of this Agreement.
10. REPRESENTATIONS AND WARRANTIES. Employee represents and warrants
that (a) he is under no contractual restriction or other restrictions or
obligations that are inconsistent with the execution of this Agreement, the
performance of his duties and the covenants hereunder, and (b) he is under no
physical or mental disability that would interfere with his keeping and
performing all of the agreements, covenants and conditions to be kept or
performed hereunder.
11. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be interpreted under and
governed by the laws of the State of California, excluding its rules on
conflicts of law.
(b) Arbitration. Any dispute regarding the application,
interpretation or breach of this Agreement shall be resolved by final and
binding arbitration before the American Arbitration Association ("AAA") in
accordance with AAA's National Rules for the Resolution of Employment Disputes.
Attorney's fees, costs and damages (where appropriate) shall be awarded to the
prevailing party in any dispute, and any resolution, opinion or order of AAA may
be entered as a judgment in a court of competent jurisdiction.
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(c) Modification and Waiver. No waiver or modification of this
Agreement or any term hereof shall be binding unless it is in writing signed by
the parties hereto. No failure to insist upon compliance with any term,
provision or condition to this Agreement, whether by conduct or otherwise, in
any one or more instances, shall be deemed to be or construed as a waiver of any
such term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
(d) Entire Agreement. This Agreement and the Confidentiality
Agreement constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede and replace all prior employment
agreements, including without limitation Employee's Employment Agreement dated
March 18, 1999, each of which agreements is hereby terminated. No oral
statements or prior written agreements with respect to the subject matter hereof
which are not specifically incorporated herein or in the Confidentiality
Agreement shall be of any force or effect.
(e) Severability. If any provisions hereof shall be held or
construed to be illegal or invalid for any reason, such illegality or invalidity
shall not affect the remaining provisions of this Agreement, but the same shall
be construed and enforced just as though the illegal or invalid provisions had
not been included herein.
(f) Notices. Any notice, demand or other communication required,
permitted or desired to be given hereunder shall be in writing and shall be
deemed effectively given upon personal delivery, facsimile transmission (with
confirmation of receipt), delivery by reputable overnight delivery service or
five (5) days following deposit in the United States mail (if sent by certified
or registered mail, postage prepaid, return receipt requested), in each case
duly addressed to the Company, Enterprise or EPS at the headquarters of EPS or
to Employee at his or her address of record listed with EPS.
(g) Assignment. Employee's rights, duties and obligations under
this Agreement may not be assigned by Employee. The Company, Enterprise and EPS
may assign rights, duties and obligations under this Agreement to any affiliate
of EPS. This Agreement shall be binding upon the successors and assignees of the
Company, Enterprise and EPS.
(h) Headings. The section headings herein are intended for
reference and shall not affect in any way the construction or interpretation of
this Agreement.
(i) Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original but all of which shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date set forth above.
/s/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
Enterprise Profit Solutions Corporation
EPS Solutions Corporation
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
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Title: CEO
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SCHEDULE 1 TO
EMPLOYMENT AGREEMENT
"CAUSE" means the occurrence at any time of any one or more of the
following events or circumstances, provided however, that if any such event or
circumstance is susceptible to cure by Employee without damage to the Company,
Enterprise or EPS, such event or circumstance will not constitute Cause unless
Employee has failed to cure such event or circumstance within 15 days after
receipt by Employee of written notice thereof: (i) Employee engages in any
wrongful conduct or knowingly violates any reasonable rule or regulation of the
Board, or the Chief Executive Officer of EPS that results in material damage or
risk of legal liability to the Company, Enterprise or EPS, any subsidiary
corporation of the Company, Enterprise or EPS or any entity controlling,
controlled by, or under common control with the Company, Enterprise or EPS (each
an "AFFILIATE"); (ii) any willful misconduct or gross negligence by Employee in
the responsibilities assigned to Employee; (iii) any willful and material
failure to perform Employee's job as required to meet the lawful objectives of
the Company or any Affiliate or any repeated failure to achieve reasonable
performance standards that have been described by the Company, Enterprise or EPS
in writing and communicated to Employee in reasonable detail; (iv) Employee
fails to comply with all material applicable laws and regulations in performing
Employee's duties and responsibilities to the Company or any Affiliate; (v) any
criminal conduct (other than misdemeanors that do not meet the criteria set
forth in subsection (vi)); (vi) any actions involving moral turpitude or
injurious to the business or reputation of the Company or any Affiliate; (vii)
any legal action against Employee or the Company or any Affiliate occurs as a
result of Employee's service to the Company or any Affiliate and results in a
judgment or arbitral award that is based upon gross negligence or intentional
misconduct by Employee and that requires the Company or any Affiliate to pay
substantial damages; (viii) any legal action by Employee or Employee's
representatives or successors against the Company or any Affiliate or any person
or entity that the Company or any Affiliate would be obligated to indemnify or
defend in connection with such action; or (ix) Employee does any of the things
described in (A)-(C) below.
(A) Employee renders services for any organization or engages directly
or indirectly in any business that, in the reasonable judgment of the Chief
Executive Officer of EPS or other senior officer designated by the Chief
Executive Officer, is or becomes competitive with the Company or any Affiliate,
or which organization or business, or the rendering of services to such
organization or business, is or becomes otherwise prejudicial to or in conflict
with the business or interests of the Company or any Affiliate.
(B) Employee fails to comply with the Confidentiality Agreement or with
the lawful policies of the Company or any Affiliate regarding nondisclosure of
confidential information, or without prior written authorization from the
Company or any Affiliate discloses to anyone outside the Company or any
Affiliate or uses for any purpose or in any context other than in performance of
Employee's duties to the Company or any Affiliate any confidential or trade
secret information of the Company or any Affiliate. (C)Employee breaches in any
material respect any agreement with or legal duty to the Company or any
Affiliate.
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"CHANGE IN CONTROL" means the completion of:
(i) any acquisition or series of related acquisitions resulting in any
person, entity or "group," within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")
beneficially owning (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) more than thirty percent (30%) of either the then outstanding
shares of Common Stock or the combined voting power of then outstanding voting
securities entitled to vote generally in the election of directors of EPS or
Enterprise, provided that a Change in Control shall not be deemed to have
occurred if the "person" described in the preceding provisions is an underwriter
or underwriting syndicate that has acquired the ownership voting securities of
EPS or Enterprise solely in connection with a public offering of those
securities; or
(ii) any reorganization, merger or consolidation of EPS or Enterprise
with any other person, entity or corporation, other than a transaction which
would result in the owners of voting securities of EPS outstanding immediately
prior thereto continuing to own directly or indirectly more than fifty percent
(50%) of the combined voting power of the voting securities of the entity or
entities surviving such reorganization, merger or consolidation that own and
conduct the business owned and conducted by EPS and Enterprise prior thereto; or
(iii) the sale or other disposition by EPS or Enterprise, in one
transaction or a series of related transactions, of all or substantially all of
the assets of EPS or Enterprise; or
(iv) Individuals who, as of the Effective Date, constitute the board of
directors of EPS or Enterprise (in each case, the "INCUMBENT BOARD OF
DIRECTORS") cease for any reason to constitute at least a majority of the board
of directors of EPS or Enterprise, respectively, provided that any individual
who becomes a director after the Effective Date whose election, or nomination
for election by stockholders, is approved by a vote of at least a majority of
the directors then comprising the relevant Incumbent Board of Directors shall be
considered to be a member of the relevant Incumbent Board of Directors unless
that individual was nominated or elected by any person, entity or group (as
defined above) having the power to exercise, through beneficial ownership,
voting agreement and/or proxy, thirty percent (30%) or more of either the
outstanding shares of common stock of EPS or Enterprise or the combined voting
power of the outstanding securities of EPS or Enterprise entitled to vote
generally in the election of directors, in which case that individual shall not
be considered to be a member of the Incumbent Board of Directors unless such
individual's election or nomination for election by EPS' shareholders is
approved by a vote of at least two-thirds of the directors then comprising the
Incumbent Board of Directors; or
For purposes of this definition, references to EPS and Enterprise shall
also refer to their successors and assigns such that reorganizations or other
corporate transactions do not impair the substantive intent of these provisions.
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"DISABILITY" means Employee suffers an ongoing physical or psychological
impairment that has rendered Employee unable, as determined in good faith by the
Chief Executive Officer of EPS, to perform Employee's duties to the Company,
Enterprise and EPS, notwithstanding reasonable accommodation by the Company,
Enterprise and EPS (the Company, Enterprise and EPS, at their option and
expense, being entitled to retain a physician to confirm the existence of such
disability), for a period of three (3) consecutive months or six (6) months in
any 12-month period.
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SCHEDULE 2
Employee shall (i) manage the operations of the Company consistent with the
Company's business plan, (ii) manage the other financial services companies of
EPS consistent with their business plans, and (iii) shall perform such related
duties and services as the EPS board of directors and/or its Chief Executive
Officer may from time to time assign.
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EXHIBIT B
PERSONAL TIME OFF
Aggregate Amount of time off: 28 days (in addition to holidays
observed by the Company)
Maximum Accrued PTO: 28 days
