EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.49
EXECUTIVE EMPLOYMENT AGREEMENT effective the 16th day of September, 2010 (the
“Agreement”) by and between DRI CORPORATION, a North Carolina corporation (the “Company”) with
principal offices at Durham, North Carolina and Xxxxxx X Xxxx (the “Executive”).
NOW THEREFORE, in consideration of the foregoing premises and mutual covenants herein
contained, and the granting of value of this Executive Employment Agreement as replacement for a
similar document which was terminated by way of action of prior voluntary resignation by Executive
from the Company in his then current position of Chief Financial Officer, the parties hereto agree
as follows:
1. Employment. The Company agrees to employ the Executive and the Executive agrees to serve
the Company as its Chief Accounting Officer.
2. Position and Responsibilities. The Executive shall exert his best efforts and devote full
time and attention to the affairs of the Company. The Executive shall have the authority and
responsibility given by the general direction, approval and control of the Chief Financial Officer,
and subject to the restrictions, limitations and guidelines set forth by the Company CEO and Board
of Directors.
3. Term of Employment. The term of the Executive’s employment under this Agreement shall be
deemed to have commenced on 16 SEPTEMBER 2010 and shall continue until 16 SEPTEMBER 2011 — (the
“Initial Term”), subject to extension as hereinafter provided or termination pursuant to the
provisions set forth hereafter. The term of Executive’s employment shall be automatically
sequentially extended for additional one-year terms upon expiration of the Initial Term, or
additional terms, unless either party hereto receives 120 days’ prior written notice from the other
electing not to extend the Executive’s employment. Compensation during the term shall be that set
forth in Section 5 hereof, unless one of the termination provisions overrides.
4. Duties. During the period of his employment hereunder and except for illness, specified
vacation periods and reasonable leaves of absence, the Executive shall devote his best efforts and
full attention and skill to the business and affairs of the Company and its affiliated companies as
such business and affairs now exist and as they may be hereinafter defined.
5. Compensation. Commencing on 16 SEPTEMBER 2010, the Company shall pay to the Executive as
compensation for his services the sum of $175,000 per year, payable pursuant to established Company
pay policy. In
addition, the Executive shall receive such additional compensation and/or bonuses as may be
voted to him in the discretion of the Chief Financial Officer, subject to approval of the Company
CEO and further subject to policy guidelines of the Human Resources
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and Compensation Committee of the Company Board of Directors on the basis of the value of such
Executive’s services to the Company.
6. Expense Reimbursement. The Company will reimburse the Executive, at least monthly, for all
reasonable and necessary expenses, including without limitation, travel expenses, and reasonable
entertainment expenses, incurred by his in carrying out his duties under this Agreement. The
Executive shall present to the Company each month an account of such expenses in such form as is
reasonably required by the Company CFO.
7. Medical and Dental Coverage. The Executive will be entitled to participate in the Company’s
employee group medical and other group insurance programs on the same basis as other similarly
situated executives of the Company. Any other benefits offered to personnel in the Company similar
to Executive shall also be offered to Executive upon the same terms.
8. Medical Examination. The Executive agrees to submit himself for physical examination on one
occasion per year as and if requested by the Company; provided, however, that the Company shall
bear the entire cost of such examinations.
9. Vacation Time. The Executive shall be entitled each year to a reasonable vacation in
accordance with the established practices of the Company, now or hereafter in effect for the
executive personnel similarly situated, during which time the Executive’s compensation shall be
paid in full.
10. Benefits Payable on Disability. If the Executive becomes disabled from properly performing
services hereunder by reason of illness or other physical or mental incapacity, the Company shall
continue to pay the Executive his then current salary hereunder for the first four(4) months of
such continuous disability commencing with the first date of such disability.
11. Obligations of Executive During and After Employment.
(a) The Executive agrees that during the terms of his employment under this Agreement,
he will engage in no other business activities directly or indirectly, which are
competitive with or which might place his in a competing position to that of the Company,
or any affiliated company.
(b) The Executive realizes that during the course of his employment, Executive will
have produced and/or have access to confidential business plans, information, business
opportunity records, notebooks, data, formula, specifications, trade secrets, customer
lists, account lists and secret inventions and processes of the Company and its affiliated
companies (hereinafter sometimes referred to as “Confidential Information”).
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Therefore, during or subsequent to his employment by the Company, or by an affiliated
company, the Executive agrees to hold in confidence and not to directly or indirectly disclose or
use or copy or make lists of any such information, except to the extent authorized by the Company
in writing. All records, files, business plans, documents, equipment and the like, or copies
thereof, relating to Company’s business, or the business of an affiliated company, which Executive
shall prepare, or use, or come into contact with, shall remain the sole property of the Company,
or of an affiliated company, and shall not be removed from the Company’s or the affiliated
company’s premises without its written consent, and shall be promptly returned to the Company upon
termination of employment with the Company and its affiliated companies. During Executive’s
employment, Company maintains a right at all times, which is acknowledged by Executive, to examine
all of Executive’s computer files, e-mail messages and business-related documentation on
Executive’s computer or laptop provided by the Company. The restrictions and obligations of
Executive set forth in this Section 11(b) shall not apply to (i) information that is or becomes
generally available and known to the industry (other than as a result of a disclosure directly or
indirectly by Executive); or (ii) information that was known to Executive prior to Executive’s
employment by the Company or its predecessor.
(c) Because of employment by Company, Executive shall have access to trade secrets and
confidential information about Company, its business plans, its business accounts, its business
opportunities, its expansion plans and its methods of doing business. Executive agrees that for a
period of six (6) months after termination or expiration of employment, Executive will not,
directly or indirectly, in a same or similar employment compete with Company in its then present
business or anticipated lines of business in any geographic area in which Company competes or has
planned to do business on the effective date of termination as set forth in its most recent
Strategic Business Plan. Executive further agrees that he shall not have any direct or indirect
contact with any customers of the Company for the purpose of soliciting any competing business; and
Executive shall not solicit any employees of the Company to terminate their employment for any
reason, whether competitive or not.
(d) With respect to Inventions made or conceived by the Executive since the time he began
work with the Company, whether or not during the hours of his employment or with the use of the
Company facilities, materials, or personnel, either solely or jointly with others during his
employment by the Company or within one year after termination of such employment if based on or
related to Confidential Information, and without royalty or any other consideration, the following
shall apply:
(i) Inventions. “Inventions” shall mean discoveries, concepts, and ideas, whether patentable
or not, including, but not limited to, processes, methods, formulas, programs, and techniques, as
well as
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improvements or know-how, concerning any present or prospective activities of the Company with
which the Executive becomes acquainted as a result of his employment by the Company.
(ii) Reports. The Executive shall inform the Company promptly and fully of such Inventions by
a written report, setting forth in detail the procedures employed and the results achieved. A
report will be submitted by the Executive upon completion of any studies or research projects
undertaken on the Company’s behalf, whether or not in the Executive’s opinion a given project has
resulted in an Invention.
(iii) Patents. The Executive shall apply, at the Company’s request and expense, for United
States and foreign letter patent either in the Executive’s name or otherwise as the Company shall
desire.
(iv) Assignment. The Executive hereby assigns and agrees to assign to the Company all rights
to such Inventions, and to applications for United States and/or foreign letters patent and to
United States and/or foreign letters patent granted upon such Inventions.
(v) Cooperation. The Executive shall acknowledge and deliver promptly to the Company, without
charge to the Company but at its expense, such written instruments and do such other acts, such as
giving testimony in support of the Executive’s inventorship, as may be necessary in the opinion of
the Company to obtain and maintain United States and/or foreign letters patent and to vest the
entire right and title thereto in the Company.
(vi) Use. The Company shall also have the royalty-free right to do business, and to make,
use, and sell products, processes, and/or services derived from any inventions, discoveries,
concepts, and ideas, whether or not patentable, including, but not limited to, processes, methods,
formulas, and techniques, as well as improvements or know-how, whether or not within the scope of
inventions, but which are conceived or made by the Executive during the hours which he is employed
by the Company or with the use or assistance of the Company’s facilities, materials, or personnel,
or within the period set forth in this Section 11.
(e) In the event a court of competent jurisdiction finds any provision of this Section 11 to
be so overbroad as to be unenforceable, then such provision shall be reduced in scope by the
court, but only to the extent deemed necessary by the court to render the provision reasonable and
enforceable, it being the Executive’s intention to provide the Company with the broadest
protection possible against harmful competition.
12. No solicitation of Employees. Executive undertakes and agrees that
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during the term of this Agreement and for a period of twelve (12) months after this Agreement shall
be terminated, whether voluntarily or involuntarily, he will not, without the prior written
approval of the Company solicit any other employees with regard to working for a competitor.
In the event the Company shall establish to the satisfaction of a court of competent
jurisdiction the existence of a breach or threatened breach by Executive of Sections 11 or 12, the
Company, in addition to any other rights and remedies it may have, shall be entitled to an
injunction restraining the Executive from doing or continuing to do any such act in violation of
this section, as well as attorney’s fees and costs of prosecution to enforce this Agreement, if the
Company ultimately prevails on the merits.
13. Termination for Cause by the Company. The Company may, without liability, terminate the
Executive’s employment hereunder for cause at any time upon written notice from the Chief Financial
Officer and/or CEO specifying such cause, and thereafter the Company’s obligations hereunder shall
cease and terminate; provided, however, that such written notice shall not be delivered until after
the Chief Financial Officer and/or CEO shall have given the Executive written notice specifying the
conduct alleged to have constituted such cause and the Executive has failed to cure such conduct,
if curable, within fifteen (15) days following receipt of such notice.
Grounds for termination “for cause” are one or more of the following:
(a) A willful breach of a material duty by the Executive during the course of his
employment;
(b) Habitual neglect of a material duty by the Executive;
(c) Fraud on the Company, conviction of a felony involving or against the Company, or
conviction of a crime of moral turpitude that affects the integrity and name of the
Company.
If applicable, Executive shall resign as a director and an officer of the Company if
terminated for cause.
14. Termination by the Executive or the Company Without Cause.
(a) The Executive, without cause, may terminate this Agreement upon 90 days prior
written notice to the Company. In such event, the Executive shall be required to render the
services required under this Agreement during such 90-day period unless otherwise directed
by the Chief Financial Officer and/or CEO. Compensation for vacation time not taken by
Executive shall be paid to the Executive at the date of
termination. Executive shall be paid for only the ninety (90) day period, if actually
required to work, pursuant
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to normal pay practices and then all obligations regarding pay shall cease.
(b) The Company, without cause, may terminate this Agreement. In such event, the
Company shall pay a severance allowance equal to six (6) months of the base salary payable
at regular scheduled pay periods over the period. Said severance shall be subject to
mitigation should Employee obtain other employment during the severance period by the
amount earned by the Employee during the severance period regardless of when paid or to be
paid.
If applicable, Executive shall resign as a director and an officer of the Company and
all of its subsidiaries and/or ventures if terminated by the Executive or the Company
without Cause.
15. Termination upon Death of Executive. In addition to any other provision relating to the
termination, this Agreement shall terminate upon the Executive’s death. In such event, the Company
shall pay a severance allowance equal to six (6) months of the base salary without bonuses to the
Executive’s estate.
16. Arbitration. Any controversy, dispute or claim arising out of, or relating to, this
Agreement and/or its interpretation, except any controversy, dispute or interpretation arising out
of §§11 and 12, shall, unless resolved by agreement of the parties, be settled by binding
arbitration in Charlotte, North Carolina in accordance with the Rules of the American Arbitration
Association then existing. This Agreement to arbitrate shall be specifically enforceable under the
prevailing arbitration law of the State of North Carolina. The award rendered by the arbitrator(s)
shall be final and judgment may be entered upon the award in any court of the State of North
Carolina having jurisdiction of the matter. Any controversy or dispute involving §§11 and 12 of
this Agreement shall be submitted to litigation in the Superior Court of Xxxxxx County, North
Carolina, or to the Federal Court for the Western District of North Carolina, at the discretion of
the Plaintiff, and the employee and Company agree that venue and jurisdiction shall so lie and that
North Carolina law shall control such proceeding.
17. General Provisions. The Executive’s rights and obligations under this Agreement shall not
be transferable by assignment or otherwise, nor shall Executive’s rights be subject to encumbrance
or to the claims of the Company’s creditors. Nothing in this Agreement shall prevent the
consolidation of the Company with, or its merger into, any other corporation, or the sale by the
Company of all or substantially all of its property or assets or assignment via reincorporation.
(a) This Agreement and the rights of Executive with respect to the benefits of
employment referred to herein constitute the entire Agreement between the parties hereto in
respect of the employment of the
Executive by the Company and supersede any and all other agreements either oral or in
writing between the parties hereto with respect to the employment of the Executive.
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(b) The provisions of this Agreement shall be regarded as divisible, and if any of said
provisions or any part thereof are declared invalid or unenforceable by a court of competent
jurisdiction or in an arbitration proceeding, the validity and enforceability of the
remainder of such provisions or parts thereof and the applicability thereof shall not be
affected thereby.
(c) This Agreement may not be amended or modified except by a written instrument
executed by Company and Executive.
(d) This Agreement and the rights and obligations hereunder shall be governed by and
construed in accordance with the laws of North Carolina.
18. Construction. Throughout this Agreement the singular shall include the plural, and the
plural shall include the singular, and the masculine and neuter shall include the feminine,
wherever the context so requires.
19. Text to Control. The headings of paragraphs and sections are included solely for
convenience of reference. If any conflict between any heading and the text of this Agreement
exists, the text shall control.
20. Authority. The officer executing this agreement on behalf of the Company has been
empowered and directed to do so by the CEO and Board of Directors of the Company.
21. Gender. In construing this Agreement, it is the parties’ intention that definitions shall
be equally applicable to both the singular and plural forms of the terms defined, and references to
the masculine, feminine or neuter gender shall include each other gender.
| COMPANY: | DRI CORPORATION | |||||
| By | /s/ XXXXXXXX X. XXXX | |||||
| Title | Chief Financial Officer |
|||||
EXECUTIVE: |
/s/ XXXXXXX X. XXXX | |||||
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