EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement, (the "Agreement") by and between Presidion
Corporation, a Florida corporation, (the "Company"), and Xxxxx Xxxxxxxxx
("Employee") is entered into and effective December 15, 2003 and supersedes any
other agreements or understandings, written or oral, between the Company and
Employee.
1. Employment and Duties.
(a) Employee shall be employed as the Company's Chief Financial
Officer. Employee's duties may be changed and modified by the
Company's Board of Directors, and Employee shall report to the
Company's Chief Executive Officer. Employee hereby accepts this
employment upon the terms and conditions herein contained and,
subject to paragraph 1 (c), agrees to devote his full-time,
attention and efforts to promote and further the business of the
Company.
(b) Employee shall faithfully adhere to, execute and fulfill all
policies established by the Company.
(c) Unless agreed to in writing, Employee shall not, during the term
of his employment, be engaged in any other business activity
pursued for gain, profit or pecuniary advantage without the
express consent of the Company's Chief Executive Officer. The
foregoing limitations shall not be construed as prohibiting
Employee from making personal investments in such form or manner
as will neither require Employee's services in the operations or
affairs of the enterprises in which such investments are made,
nor violate the terms of paragraph 5.
2. Compensation and Benefits. For all services rendered by Employee, the
Company shall compensate Employee as follows:
(a) Base Salary. A base salary of $165,000 per year, payable in
accordance with the Company's normal pay practices.
(b) Benefits. Employee shall be entitled to receive benefits from the
Company in such form and to such extent as specified below:
(i) The Company shall pay for Employee and Employee's
dependent family members participation under health,
hospitalization, disability, dental, life, retirement
and other insurance plans that the Company may have
in effect from time to time, with benefits provided
to Employee to be at least equal to such benefits
provided to similarly situated Company executives.
(ii) Reimbursement for all business travel and other
out-of-pocket expenses reasonably incurred by
Employee in the performance of Employee's services
pursuant to this Agreement. All reimbursable expenses
shall be
appropriately documented in a manner consistent with
the Company's expense reporting policy.
(iii) Vacation time consistent with that provided for
similarly situated Company executives.
(iv) Bonuses are to be paid in accordance with those
established by the Board of Directors.
(v) Employee shall be included in any Stock Option Plan
adopted for similarly situated Company executives.
(vi) $900 per month for the use of an automobile of
Employee's choice. This reimbursement shall include
Employee's expense to lease or purchase the vehicle,
obtain insurance, and maintain and operate the
vehicle (i.e. gasoline, oil, maintenance and
repairs).
3. Term and Termination. The term of this Agreement shall begin on the
date hereof and continue for two (2) years, (the "Term"). This Agreement and
Employee's employment may be terminated in any one of the following ways:
(a) Death. The death of Employee shall immediately terminate this
Agreement, and the Company will continue to provide the
Employee's Base Salary and benefits to the Employee's
designated beneficiaries for a period of sixty (60) days in
accordance with the Company's normal pay schedule.
(b) Disability. If Employee is unable to perform the duties
required by his position for six (6) consecutive weeks as a
result of a disability ("Disability Period") the Company may
terminate this employment at the end of said Disability
Period. Upon such termination at the end of the Disability
Period, the Company will continue to provide the Employee's
Base Salary and benefits to the Employee's designated
beneficiaries for a period of sixty (60) days in accordance
with the Company's normal pay schedule. For purposes of this
Agreement only, "Disability" shall mean that the Employee, as
a result of a physical or mental illness or injury, cannot
perform in the usual manner enough of the substantial and
material duties to be able to successfully continue in such
capacity. Employee shall submit to all reasonable requests for
physical and mental examinations by physicians of Company's
choosing. The Company shall have the sole discretion of
determining whether Employee is disabled for purposes of this
Agreement.
(c) Resignation. If Employee resigns or otherwise terminates his
employment, Employee shall receive no further compensation and
the Company will have no further obligation to make payments
or provide benefits unless otherwise required by law.
(d) Good Cause. The Company may terminate this Agreement at any
time for "Good Cause", which shall include: (i) Employee
committing a material breach of this Agreement, (ii) fraud,
negligence or misconduct in the performance of his duties,
(iii) failure to adhere to any material written policy of the
Company, (iv) the misappropriation of Company funds or
property, or (v) the conviction, guilty plea, or plea of no
contest to any felony. In the event this Agreement is
terminated for Good Cause, Company shall continue to pay
Employee's Base Salary and benefits for sixty (60) days in
accordance with the Company's normal pay schedule.
(e) Change of Control. In the event of a "Change of Control" (as
defined below), the Employee may, at his option, terminate
this Agreement prior to the end of the term. The Employee must
exercise this option within one hundred eighty (180) days of
the Change of Control. If the Employee exercises this option,
he shall be paid a lump sum equal to twelve (12) months Base
Salary. If the Employee does not exercise such option, this
agreement shall remain in full force and subject to the same
conditions for the balance of its term. For purposes of this
Agreement a "Change of Control Event" means (1) Fifty-One
Percent (51%) or more of the voting stock is transferred to
any other party or parties other than the shareholders of
record at the time of this Agreement; (2) the Company
consolidates with, or merges with or into, another party (or
Parties), or sells, assigns, conveys, transfer, leases or
otherwise disposes of all or substantially all of its assets
to any party (or parties); (3) individuals who at the
beginning of this agreement constituted the ownership of the
Company and/or the Board of the Company cease for any reason
to constitute a majority ownership and/or a majority of the
Board of the Company then in office; (4) any liquidation or
dissolution of the Company; or (5) change in Employee's
position or the position to which Employee directly reports
for any reason other than promotion.
4. Non Competition and Proprietary Information.
(a) Non-Competition. Employee will not, during the period of
Employee's employment with the Company, and for a period of one
(1) year immediately following the termination of Employee's
employment under this Agreement, for any reason whatsoever,
directly or indirectly, for Employee or on behalf of or in
conjunction with any other person, persons, company, partnership,
corporation or business of whatever nature:
(i) engage as an officer, director, shareholder, owner,
partner, joint venturer, or in any other capacity,
whether as an employee, independent contractor,
consultant, advisor, or as a sales representative, in
any business offering any services or products in
competition with Company within the State of Michigan
and Florida (the "Territory");
(ii) call upon any person within the Territory who is an
employee of the Company in a managerial capacity for
the purpose or with the intent of enticing such
employee away from employment with the Company;
(iii) call upon any person or entity which is, or which has
been, within one (1) year prior to that time, a
customer of the Company within the Territory for the
purpose of soliciting or selling products or services
in competition with Company; or
(iv) call upon any prospective acquisition candidate, on
Employee's own behalf or on behalf of a competitor,
which candidate was, to Employee's knowledge, either
called upon by the Company or for which the Company
made an acquisition analysis, for the purpose of
acquiring such entity.
(b) Proprietary Information. Company is engaged in a highly
competitive profession and substantially relies upon maintaining
the confidentiality of its Proprietary information for the
purpose of establishing and maintaining certain competitive
advantages. This Proprietary Information includes, but is not
limited to: names, addresses and contacts of clients and
prospective clients, all information concerning Company's
computer programs, software, processes, manuals, instructions,
methods, management, financial affairs, purchasing, sales,
marketing and business plans. As a condition of employment,
Employee is obligated not to disclose or to use, except in his
work for Company, any Proprietary Information. This obligation
exists both during and after your employment and for so long as
the information remains confidential.
5. Return of Company Property. All records, business plans, financial
statements, manuals, memoranda, lists and other property delivered to or
complied by Employee by or on behalf of the Company or its representatives,
vendors or customers which pertain to the business of the Company shall be and
remain the property of the Company, and be subject at all times to its direction
and control. Likewise, all correspondence, reports, records, charts, advertising
materials and other similar data pertaining to the business, activities or
future plans of the Company held by Employee shall be delivered promptly to the
Company without request upon termination of Employee's employment.
6. Complete Agreement. Employee has no oral representations,
understandings or agreements with the Company or any of its officers, directors
or representatives covering the subject matter of this Agreement. This written
Agreement is the final, complete and exclusive statement and expression of the
agreement between the parties and of all the terms of this Agreement, and it
cannot be varied, contradicted or supplemented by evidence of any prior or
contemporaneous oral or written agreements. This Agreement may not be later
modified except by a further writing signed by a duly authorized officer of the
Company and Employee, and no term of this Agreement may be waived except by a
writing signed by the party waving the benefit of such term.
7. Severability, Headings. If any portion of this Agreement is held
invalid or in operative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is possible, effect shall be given to the
intent manifested by the portion held invalid or inoperative. The paragraph
headings are for reference purposes only and are not intended in any way to
describe, interpret, define or limit the extent or intent of the Agreement or
nay part hereof.
9. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Michigan.
Presidion Corporation Employee
/s/ Xxxxx Xxxxxxxxx
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Xxxxx X. Xxxxxxxxxx Xxxxx Xxxxxxxxx
President/CEO
