EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made this 20th day of April,
2000, by and between COLLEGE FOUNDATION PLANNERS, INC (CFPI)., a California
corporation ("Company"), and XXXXXX XXXXXX ("Employee").
INTRODUCTION
Pursuant to an Agreement to Acquire CFPI by College Bound Student
Alliance, Inc., (the "Stock Purchase Agreement"), dated April 20, 2000 and
effective as of April 20, 2000, by and between College Bound Student Alliance,
Inc., a Colorado corporation and its designees ("CBSA"), and Employee, CBSA is
acquiring the shares of Employee in the Company. Employee has been a key
employee of the Company. In connection with the closing of the Stock Purchase
Agreement, the Company desires that Employee enter into this Agreement to
provide assistance to the Company following the closing of the Stock Purchase
Agreement. To satisfy such condition of the Stock Purchase Agreement, and in
return for the consideration stated herein, Employee is willing to enter into
this Agreement.
AGREEMENT
In consideration of the promises and mutual covenants contained herein
the parties agree as follows:
1. EMPLOYMENT. For a three (3) year period as of the complete execution
of this Agreement (the "Effective Date"), and subject to annual renewal
thereafter by mutual agreement of the parties, Employee shall be employed as the
Chief Operating Officer ("COO") of Company. Employee will make herself available
to provide such services to the Company for at least five days each week, said
activities primarily to be allocated between CBSA's national and CFPI's COO
activities during the first (1st) year of the term of this Agreement in
accordance with paragraph 6(e) of the Stock Purchase Agreement. Employee will
also be Executive Vice President of CBSA and a member of the Management
Committee of CBSA. Company agrees to search for an executive to replace
Employee's COO responsibilities within one (1) year of the Effective Date, and
during such period Employee shall gradually reduce such COO responsibilities
while simultaneously increasing responsibilities for CBSA product development,
marketing strategies, and speaking engagements. Employee will devote her
reasonable best efforts to the provision of services hereunder to the Company.
The services which Employee will perform may be scheduled by the parties on a
mutually convenient basis, with each party to make reasonable efforts to
accommodate the other's reasonable requests.
2. FEE AND BENEFITS.
(a) EMPLOYEE'S SALARY. Payment for the above services shall
begin to accrue on March 1, 2001 and shall be Four Thousand Five Hundred Dollars
($4,500.00) salary per month, payable semi-monthly in arrears.
(b) BONUS. Employee shall also be entitled to a bonus equal to
fifty percent (50%) of Company's annual pre-tax cash flow ("Cash Flow") as
determined in accordance with Exhibit I as to Cash Flow from Fifty Thousand
Dollars ($50,000.00) to One Hundred Fifty Thousand Dollars ($150,000.00) and a
bonus equal to twenty-five percent (25%) of Cash Flow over One Hundred Fifty
Thousand Dollars ($150,000.00) up to Three Hundred Thousand Dollars
($300,000.00), payable to Employee within ninety (90) days of the end of each
fiscal year of Company during the term of this Agreement; provided, that said
Bonus shall only be payable to Employee if Cash Flow exceeds Fifty Thousand
Dollars ($50,000.00) for the prior fiscal year, and provided further that
Employee shall not be entitled to any such bonus based on any Cash Flow in
excess of Three Hundred Thousand Dollars ($300,000) for the said prior fiscal
year.
(c) EXPENSES. Company agrees that Employee shall be entitled
to reimbursement for traveling, entertainment, and other expenses reasonably
incurred by Employee in the performance of her employment obligations and
responsibilities, inclusive of payments by Company of Employee's automobile
lease at $380.00 per month, plus reasonably related automobile expenses.
Company's liability in this regard shall otherwise be limited by the terms and
conditions of Company policy in effect on the date that the expense is incurred.
3. TERMINATION. This Agreement may be terminated by Company for cause,
at any time, effective upon written notice to Employee. The term "cause" shall
mean only one of the following: (a) Employee has materially breached this
Agreement, which breach remains uncured to the reasonable satisfaction of the
Board of Directors of Company for thirty (30) days after Employee receives
written notice thereof from the Board of Directors; (b) Employee has committed
willful misconduct or any willful violation of law in the performance of
Employee's duties to Company; (c) Employee has willfully failed to follow
reasonable, lawful, and explicit instructions of the Board of Directors of
Company concerning the operations or business of Company; (d) Employee has been
convicted of a felony deemed by Company to be adverse to its business or
reputation; (e) Employee has willfully misappropriated funds or property of
Company; (f) Employee has willfully obtained a personal profit from any
transaction which constitutes a corporate opportunity of Company or of CBSA,
unless the transaction was approved in writing by Company's Board of Directors
after full disclosure of all details relating to such transaction, or (g)
Employee has directly or indirectly caused a breach of the confidentiality or
non-compete provisions.
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4. VOLUNTARY TERMINATION. In the event Employee elects to voluntarily
terminate her employment pursuant to notice as provided in Paragraph 5 hereof,
Company shall pay Employee her prorated compensation to the date of termination.
Upon payment by Company of such prorated compensation, Company shall be relieved
of all further obligations to Employee under this Agreement. In such event,
Employee will be bound by the provisions of Paragraphs 6 and 7 hereof.
5. NOTICE PERIOD. Employee and Company understand and agree that should
Employee terminate employment she will give Company thirty (30) days' advance
written notice (the "Notice Period"). Company may pay Employee for the Notice
Period in lieu of active employment during the Notice Period.
5.1 Company agrees to continue in effect during the Notice Period
the compensation and benefits to which Employee may be entitled under
Paragraph 2 of this Agreement.
5.2 Employee agrees that during the Notice Period, she will cooperate
fully with Company in all matters relating to the winding up of any pending work
and the orderly transfer to other Company employees of accounts and matters for
which she has most recently been responsible.
5.3 Employee agrees that, prior to the expiration of the Notice Period,
she will return to Company all lists of prospects, candidates and other matters
compiled by Company's management and research staff, or by Employee while
employed by Company, and all business records and materials related thereto,
whether in tangible form, or on computer hard disks, diskettes, on tape drives
or any electronic media, computer literature, correspondence, notes, memoranda,
reports, summaries, manuals, proposals, contracts and other documents of any
kind which relate in any way to the business of Company, including specifically
all materials which comprise or refer to Company's Confidential Information.
Employee will not retain any copy, facsimile or note intended to memorialize any
such data. Employee further understands and agrees that Company's Confidential
Information and trade secrets, remains the sole and exclusive property of
Company and subject to the terms of this Agreement.
5.4 Employee understands and agrees that, at or about the expiration of
the Notice Period, Company may convene an exit interview to review the status of
accounts and matters for which Employee has most recently been responsible;
ensure that Employee has fully obtained her entitlements under this Agreement;
and/or confirm that Employee clearly understands the nature and scope of her
post-employment obligations.
6. CONFIDENTIALITY.
(a) Employee recognizes that by virtue of her employment by
Company she will be afforded numerous and extensive resources to assist her in
the solicitation, development, production, and servicing of business clients.
Employee understands and agrees that all efforts
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that she expends and programs and strategies she develops in this regard
shall be for the permanent and exclusive benefit of Company, that Company
shall secure and retain indefinitely the proprietary interest in all such
business clients, and that Employee will not undertake any action which could
in any way disturb Company's relationship with said business clients or
Company accounts.
(b) Employee further recognizes that by virtue of her
relationship to Company she will be granted otherwise prohibited access to
confidential, proprietary information, and data of Company which is not known
either to its competitors or within the collegiate student business and related
financial planning business generally and which has independent economic value
to Company and to CBSA. This information includes trade secrets, and also
includes, but is not limited to: the whole or any portion or phase of any
technical information, process, procedure, formula, improvement, confidential
business or financial information, business plan, listing of names, addresses,
or telephone numbers, or other information relating to Company's business which
is secret and of value, including, but not limited to, data relating to
Company's unique marketing and servicing programs, procedures and techniques;
business, management and personnel strategies; the criteria and formulae used by
Company in pricing its product; lists of prospects, candidates, and other
matters compiled by Company's management and research staff; the identity,
addresses, telephone numbers, authority and responsibilities of key contacts at
Company accounts, including, but not limited to, high schools and colleges;
details concerning the academic, athletic and personal backgrounds of
student-athlete collegiate scholarship candidates, including attributes of the
scholarship candidates; commission rates of Company personnel; and other data
showing the particularized requirements and preferences of clients and Company
accounts, including, but not limited to, high schools and colleges. Employee
recognizes that this Confidential Information constitutes a valuable property of
Company and of CBSA, developed over a long period of time and at substantial
expense. Accordingly, Employee agrees that she will not, at any time during her
Employment relationship with the Company or for a period of five (5) years after
the termination of her Employment relationship, divulge such Confidential
Information or make use of such Confidential Information for her own purposes or
the purposes of another.
7. NON-COMPETE. Employee recognizes Company's legitimate interest in
protecting, during and for a reasonable period of time following the termination
of Employee's employment, those Company accounts and business contacts with
which Employee will be associated during her employment and acquired by Company
pursuant to the Stock Purchase Agreement. Accordingly, Employee understands and
agrees that while employed by Company and for a period of five (5) years
following termination of her employment she will not compete with the business
of the Company or solicit the customers of the Company. The geographic
limitation within which the Employee shall not compete includes any states in
which Company conducts its business as of the date of the termination of
Employee's employment with the Company. Notwithstanding this location
limitation, Employee will not, during the non-competition period, solicit or
perform work for any of Company's existing customers or clients as of the date
of termination of Employee's employment, regardless of the location from which
such work is
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performed. If the geographic limitation set forth herein is deemed to be
unreasonable, Employee agrees to abide by the maximum geographic limitation
decided by a court of competent jurisdiction.
8. BREACH OF AGREEMENT. Employee and Company understand and agree that
any breach or evasion of any term of this Agreement will potentially give rise
to actions for breach of contract or tort, which may be brought in any court of
competent jurisdiction. Employee recognizes that the rights and privileges
granted to her by this Agreement, her services and her corresponding covenants
to Company, are of a special, unique and extraordinary character, the loss of
which cannot reasonably or adequately be solely compensated for in damages in
any action at law or through the offset or withholding of any monies to which
she otherwise might be entitled from Company. Accordingly, Employee understands
and agrees that Company shall also be entitled to equitable relief, including a
temporary restraining order and preliminary and permanent injunctive relief, to
prevent a breach of this Agreement. The remedies available to Company under this
Agreement are cumulative. Company may, in its sole discretion, elect to pursue
all or any of such remedies. Such remedies are in addition to any given by law
or equity and may be enforced successively or concurrently.
8.1 The parties mutually acknowledge and agree that in the event
that CBSA fails to perform the terms and conditions of the Stock Purchase
Agreement and/or payment on the related purchase consideration Promissory
Notes attached to the Stock Purchase Agreement for the current combined
principal sum of $241,540.63, that then Paragraphs 5, 6, and 7 of this
Agreement shall be deemed null and void and, Employee shall be free to pursue
competitive business activities.
9. SUCCESSORS OR ASSIGNS. This Agreement will be binding upon and
benefit the parties hereto and their assigns, executors, heirs or successors,
provided, that, the Employee will not assign any obligation hereunder without
the Company's prior written consent which consent may be withheld for any
reason.
10. AMENDMENT, MODIFICATION OR WAIVER. No amendment, modification or
waiver of any condition, provisions, or terms of this Agreement will be valid or
of any effect unless made in writing and signed by the party or parties to this
Agreement. Any waiver by any party of any defaults of the other party will not
affect or impair any rights arising from any subsequent default.
11. SEVERABLE CONDITIONS. Each provision of this Agreement is intended
to be severable. If any provision hereof is illegal or invalid for any reason,
such illegality or invalidity will not affect the remainder of this Agreement.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties respecting the transaction contemplated hereby and
supersedes all prior agreements and understandings between the parties
respecting the subject matter of this Agreement.
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13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
14. ATTORNEYS' FEES. The substantially prevailing party in any
litigation or arbitration action enforcing this Agreement shall be entitled to
reimbursement of all attorneys' fees and court costs and at trial and appellate
levels.
15. CAPTIONS. The captions in this Agreement are included for purposes
of reference only and are not part of the text of this Agreement.
16. COUNTERPARTS. This agreement may be executed in several
counterparts all of which shall constitute one and the same Agreement.
EXECUTED as of the date first above written.
WITNESSES: COLLEGE FINANCIAL PLANNERS, INC.,
a California corporation
/s/ Xxxx X. Xxxx By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------ ------------------------------
Xxxxxxxxx X. Xxxxxx
[ILLEGIBLE] Title: President
------------------------------
(CORPORATE SEAL)
EMPLOYEE:
/s/ Xxxx X. Xxxx
------------------------------ By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Xxxxxxxxx X. Xxxxxx
[ILLEGIBLE]
------------------------------
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ACQUISITION OF CFPI BY CBSA, INC.
April 20, 2000
Exhibit 1 - Definition of Pre-Tax Cash Flow
----------------------
Pre-tax cash flow pursuant to paragraph 2(b) of Employment Agreement is defined
as follows:
Revenues received in cash from sales of CFPI products, less:
1. Expenses paid or payable relating to above revenues
2. Monthly payments on $60,000 loan by Officer, Employee
3. Monthly payments for three outstanding notes and bank credit
line
4. Lease payments on equipment and auto financings
5. Depreciation on depreciable assets currently in place, if any
6. Depreciation on new depreciable assets put in place
Expenditures excluded from pre-tax cash flow:
1. Remaining principal note balances on three outstanding notes
paid pursuant to section 2(b) of the Agreement to Acquire
2. Capital expenditures
Notes:
If during the bonus period described in paragraph 2(b) of the Employment
Agreement CBSA wishes to make unusual, non-recurring expenditures of over
$5,000, such expenditures require the approval of X. Xxxxxx in order to be
included in the determination of cash flow.
