EMPLOYMENT AGREEMENT
Exhibit
10.2
AGREEMENT
entered into this 1st day of
February, 2010 (the “Effective Date”, by
and between JUMA TECHNOLOGY,
CORP., a New York Corporation with offices located at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxx Xxxx 00000 (hereinafter, the “Company”) and XXXXXXX XXXXXXXXX, c/o Juma
Technology, Corp., 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 (the “Executive”).
WITNESSETH:
WHEREAS,
the Company is engaged in a business that includes the installation and wiring
of Converged Systems, Network Data Security, Phone Systems, Information
Technology (IT) Services and Related Equipment, that is provided to
its corporate, commercial, retail, business and educational customers;
and
WHEREAS,
the Company currently employs Executive pursuant to an Employment Agreement
dated November 14, 2006, which was subsequently amended in November 2007 (the
“Original Employment
Agreement”)
WHEREAS,
each of the Company and the Executive desires to enter into a new Employment
Agreement with the Executive (this “Agreement”) pursuant
to which the Company will continue to employ the Executive as Chief Financial
Officer, and desires to provide him with compensation and other benefits on the
terms and conditions set forth in this Agreement; and
WHEREAS,
the Executive wishes to accept such employment and perform services for the
Company on the terms and conditions hereinafter set forth;
NOW
THEREFORE, it is hereby agreed by and between the parties as
follows:
1. Employment.
1.1 Subject
to the terms and conditions of this Agreement, the Company agrees to employ
Executive during the term hereof as its Chief Financial Officer.
1.2 Subject
to the terms and conditions of this Agreement, Executive hereby accepts
employment as Chief Financial Officer of the Company and agrees to devote his
full working time and efforts, to the best of his ability, experience and
talent, to the performance of services, duties and responsibilities in
connection therewith.
2. Term of
Employment.
Executive’s
term of employment under this Agreement (the “Term”) shall commence
the Effective Date and, subject to the terms hereof, shall continue until
February 28, 2013. Thereafter, this Agreement shall automatically
renew, annually, upon the terms and conditions set forth herein; however, the
parties have the right, at the election of the Company, to change the terms of
this Agreement by the execution of an Addendum Agreement by each
party.
3. Compensation.
3.1 Salary. During
the Term, the Company shall pay Executive a Base Salary at the rate of One
Hundred Sixty Five Thousand ($165, 000.00) Dollars per
annum. Base Salary shall be payable in accordance with the
ordinary payroll practices of the Company, but no less frequently than
semi-monthly. Unless this Agreement is terminated,
extended or a new Agreement is negotiated, at the end of the initial Term
hereof, the Executive’s Base Salary may, at the sole discretion of the Company’s
Board of Directors or Compensation Committee, as the case may be increase at the
rate of five percent (5%), per annum, thereafter, and, as so
increased, shall constitute “Base Salary”
hereunder.
3.2 Bonuses.
As an inducement to the
Executive, during the Term of this Agreement and any renewal or extension period
thereafter, the Executive shall be entitled to:
(a) be
considered for an annual Bonus of up to an aggregate of fifty percent (50%) of
his then Base Salary payable in (i) cash and/or (ii) Company Common Stock, which
may include Stock Options, Restricted Stock and/or Deferred Compensation,
pursuant to the terms of the Executive Bonus Plan. The award of and the make-up
of the Bonus, shall be at the sole discretion of the Company’s Board of
Directors or the Company’s Compensation Committee, as the case may be. The
payment of any such Bonus shall be subject to, among other conditions, the
Executive being employed under this Agreement at the time the Bonus is awarded
and at the time the Bonus is paid and the availability of sufficient cash to
meet the Company’s working capital needs.
(b) receive
a transaction bonus (the “Transaction Bonus”) to be awarded in accordance with
the terms set forth on Schedule A attached hereto. Anything herein to the
contrary notwithstanding, in no event shall Executive be entitled to receive
both payment in connection with a Change of Control (herein defined) and a
Transaction Bonus.
3.3 Compensation Plans and
Programs. Executive shall be eligible to
participate in any Compensation Plan or Program 401(k) Stock Option Plan
maintained by the Company in which other Executives or employees of the Company
participate, on similar terms.
3.4 Loans. Under
no circumstances may the Executive receive a Loan from the Company, of any kind
or fashion, or of any duration, whatsoever.
4. Employee
Benefits.
4.1 Medical, Dental and Vision Benefit
Plans. The Company shall provide to the
Executive and his Family, during the Term of his employment, or any renewal or
extension thereafter, with coverage under all Employee medical, dental and
vision benefit programs, plans or practices adopted by the Company and made
available to all employees of the Company.
4.2 Life and Disability Insurance Benefit
Plans. The Company shall provide Executive
during the Term of his employment, or any renewal or extension thereafter, with
coverage under all Employee life insurance and disability insurance plans as may
be adopted and in effect by the Company and made available to all employees of
the Company.
4.3 Vacation
Benefit. The Executive shall be entitled to
four (4) weeks paid vacation in each calendar year (but no more than ten 10
consecutive business days at any given time), which shall be taken at such times
as are consistent with Executive’s responsibilities
hereunder. The Executive’s vacation schedule shall be submitted
and approved by the Company. The Executive agrees and understands
that vacation days shall not be taken during any period upon which the Company
is undergoing a financial audit by its approved Financial
Auditors. Unless otherwise approved by the Company, any
vacation days not taken in any calendar year shall be forfeited without payment
therefore.
4.4 Expenses. The
Executive is authorized to incur reasonable expenses in carrying out his duties
and responsibilities under this Agreement, including expenses for travel,
automobile (mileage reimbursement calculated at IRS prevailing rates) and
similar items related to such duties and responsibilities. The
Company will reimburse Executive for all such expenses upon presentation by
Executive on a monthly basis of appropriately itemized and approved (consistent
with the Company’s policy) accounts of such expenditures. In
addition, the Executive shall be entitled to an annual Ten Thousand ($10,000.00)
Dollar automobile allowance. Any increase in the automobile
allowance, at the end of the initial Term hereof, shall be in the sole and
reasonable discretion of the Company and its Board of Directors.
5. Termination
of Employment.
The
Company may terminate Executive’s employment at any time for any
reason.
5.1 Termination Not for
Cause. If Executive’s employment is
terminated by the Company other than for Cause (as defined in Section 5.2,
below) or due to a Change in Control, Executive shall receive a severance
payment equal to eighteen (18) month’s Base Salary and benefits, including four
(4) weeks’ vacation and any earned and/or accrued Bonus, as in effect
immediately prior to such termination, payable in accordance with the ordinary
payroll practices of the Company, but not less frequently than semi-monthly
following such termination of employment. For purposes of this
Agreement, “Change in
Control” shall mean greater than 50% of the Company’s presently existing
Management team has been replaced.
5.2 Termination for Cause; Voluntary
Termination by Executive; Death or Disability.
(a) For
purposes of this Agreement, “Cause” shall mean any
of the following:
(i) Willful
malfeasance or willful misconduct by Executive in connection with his
employment;
(ii) Continual
refusal by Executive to perform his duties hereunder or any lawful direction of
the Board of Directors of the Company within ten (10) days after notice of such
refusal to perform such duties or direction was given to the
Executive;
(iii) Any
breach of the provisions of Section 7 of this Agreement by Executive or any
other material breach of this Agreement by Executive; or
(iv) The
commission and conviction by Executive of (a) any felony, or (b) a misdemeanor
involving moral turpitude, including but not limited to the Executive’s abuse of
drugs and alcohol.
(b) For
purposes of this Agreement, “Permanent Disability”
shall mean a disability that would entitle Executive to receive benefits under
the Company’s long-term disability plan as in effect from time to time or which
prevents the Executive from performing his duties hereunder for one hundred
eighty (180) consecutive days or more.
(c) In
the event that Executive’s employment is terminated (i) by the Company for
Cause; (ii) by the Executive on a voluntary basis; (iii) as a result of the
Executive’s permanent disability; or (iv) by the Executive’s death, then
Executive or his Estate shall only be entitled to receive Base Salary and
Bonuses already earned and accrued through the date of termination.
In the
event of termination by the Executive’s death or permanent disability, all such
benefits identified herein shall be maintained and in effect for six (6)
additional months by the Company. Any and all such unvested benefits (i.e. 401K,
restricted stock or stock options) shall immediately
vest. After the termination of Executive’s employment under
this Section 5.2 and payment of all amounts due to Executive under the terms of
this Agreement, the obligations of the Company under this Agreement to make any
further payments, or provide any benefits specified herein (other than benefits
required to be provided by applicable law or under the terms of any employee
benefit of the Company in which the Executive was a participant) to Executive
shall thereupon cease and terminate. Termination of the Executive
pursuant to this Section 5.2 shall be made by delivery to Executive of a Notice
from the Board of Directors of the Company.
The
Executive may only terminate this Agreement on a voluntary basis on ninety (90)
days’ prior written notice to the Company.
6. No
Conflicts of Interest.
The
Executive shall not, directly or indirectly, engage or become interested in any
other business, whether or not such business is competitive with the business of
the Company, during the period of the Executive’s employment hereunder, or any
renewals or extensions thereof.
7. Nondisclosure
of Confidential Information.
The
Executive shall not, without the prior written consent of the Company, use,
divulge, disclose or make accessible to any other person,
firm, partnership, corporation, competitor or other entity, any
Confidential Information pertaining to the business or affairs of the Company,
except (i) while employed by the Company, in the business of and for
the benefit of the Company, or (ii) when required to do so by a Court of
Competent Jurisdiction, by any Governmental Agency having supervisory authority
over the business of the Company, or by any Administrative body or Legislative
body (including a Committee thereof) with Jurisdiction to order the Executive to
divulge, disclose or make accessible such information.
For
purposes of this Section 7, “Confidential
Information” shall mean non-public information concerning financial data,
strategic business plans, sales or marketing plans, or other proprietary
marketing data, proprietary information, contracts or agreements with customers,
vendors or consultants, and other non-public, proprietary and confidential
information of the Company that is not otherwise available to the public (other
than by the Executive’s breach of the terms hereof).
8. Specific
Performance.
Since
the Company will be irreparably damaged if the provisions of Sections 6 and 7
hereof are not specifically enforced, the Company shall be entitled to an
injunction restraining any violation of this Agreement by the Executive (without
any bond or other security being required), or any other appropriate decree of
specific performance. Such remedies shall not be exclusive and
shall be in addition to any other remedy which the Company may
have.
9. Notices.
All
notices or communications hereunder shall be in writing, addressed as
follows:
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To
the Company:
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Juma
Technology, Corp.
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Attn: Chief
Executive Officer
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000
Xxxxxx Xxxxxx
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Xxxxxxxxxxx,
XX 00000
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To
the Executive:
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Xxxxxxx
Xxxxxxxxx
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c/o
Juma Technology, Corp.
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000
Xxxxxx Xxxxxx
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Xxxxxxxxxxx,
XX 00000
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Any such
notice or communication shall be delivered by hand or by courier or sent
certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in a
notice duly delivered as described above), and the third business day after the
actual date of mailing shall constitute the time at which notice was
given.
10. Waiver.
The
failure of a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not operate or be construed as a Waiver of the right to
insist upon strict adherence to that term or any other term of this Agreement or
any other occasion. Any Waiver must be in writing with proper notice
given as per Section 9, above.
11. Separability.
If any
provision of this Agreement shall be declared to be invalid or unenforceable, in
whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof, which shall remain in full force and
effect.
12. Assignment.
This
Agreement shall be binding upon and inure to the benefit of the heirs and
representatives of Executive and the assigns and successors of the Company, but
neither this Agreement nor any rights or obligations hereunder shall be
assignable or otherwise subject to hypothecation by Executive (except by will or
by operation of the laws of intestate succession) or by the Company, except that
the Company may assign this Agreement to any successor (whether by merger,
purchase or otherwise) of all or substantially all of the stock, assets or
businesses of the Company, if such successor expressly agrees to assume the
obligations of the Company hereunder.
13. Amendment.
This
Agreement may only be changed, modified or amended by written agreement of the
parties hereto. Any alleged oral modifications or amendments shall be
deemed null and void.
14. Beneficiaries;
References.
The
Executive shall be entitled to select (and change to the extent permitted under
applicable law) a beneficiary or beneficiaries to receive any compensation or
benefit payable hereunder following the Executive’s death, and may change such
election, in either case by giving the Company written notice
thereof. In the event of the Executive’s death or a judicial
determination of his incompetence, reference in this Agreement to the Executive
shall be deemed, where appropriate, to refer to his beneficiary, estate or other
legal representative. Any reference to the masculine gender in this
Agreement shall include, where appropriate, the feminine.
15. Survival.
Notwithstanding
the termination of the Executive’s employment hereunder, the provisions hereof
shall, unless the context otherwise requires, survive such
termination.
16. Complete
Agreement.
This
Agreement contains the entire understanding between the parties and is intended
to be the complete and exclusive statement of the terms and conditions of the
agreement between the parties and supersedes in all respects any prior agreement
or understanding between the Company and the Executive as to employment
matters.
17. Withholding.
The
Company shall be entitled to withhold from payment to the Executive, any amount
of withholding required by law.
18. Governing
Law.
This
Agreement shall be construed, interpreted and governed in accordance with the
laws of the State of New York, without reference to rules relating to conflicts
of law.
19. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as
of the date first above written.
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JUMA
TECHNOLOGY, CORP.
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EXECUTIVE
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By:
Xxxxxxx X. Xxxxxxxx
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By: Xxxxxxx
Xxxxxxxxx
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Title:
Chief Executive Officer and Chairman
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Title:
Chief Financial
Officer
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Schedule
A
Transaction
Bonus
In
the event the Executive is employed under the terms of this Agreement at the
time of the consummation of a Transaction (herein defined) then the Executive
shall be entitled to receive the following bonus award (the “Transaction
Bonus”), which award shall be paid in the same form and at the same time as the
consideration received by the Company.
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Gross Sale
Consideration ($)
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Bonus ($)
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75
million
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1,820,000 | |||
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100
million
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2,575,000 | |||
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125
million
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4,290,000 | |||
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150
million
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6,250,000 | |||
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175
million
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7,740,000 | |||
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200
million
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9,729,000 | |||
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300
million
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12,567,000 | |||
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400
million
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17,239,000 | |||
If the
Gross Sales Consideration falls within two thresholds, then the amount of the
Transaction Bonus shall be prorated. By way of illustration-
Assume
that the Gross Sales Consideration is $165 million, then the Executive would be
entitled to the following Transaction Bonus:
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a.
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$6,250,000
for meeting the $150 million threshold and an
additional
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b.
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$894,000
($7,740,000-$6,250,000=$1,490,000)x(15÷25)=$894,000) for Gross Sales
Consideration in excess of the $150 million
threshold.
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c.
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Total
Transaction Bonus: $7,144,000.
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For the
purpose of this Agreement, the term “Transaction” shall mean any one or series
of significant transactions that culminate in a change of control or sale of all
or substantially all the Company’s assets, as a result of an acquisition,
divestiture, merger, consolidation, reorganization, or recapitalization of the
Company. For the purposes of this Agreement, a spin-off of a division or other
transaction whereby less than all or substantially all the Company’s assets have
been disposed of shall not be deemed a Transaction hereunder.
