EXECUTIVE EMPLOYMENT AGREEMENT
OF
XXXXXXX X. XXXXXX
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made this July 31, 2000 by
and between CRM, currently a Delaware corporation and effective August 1, 2000,
a Nevada corporation (the "Company"), with Xxxxxxx X. Xxxxxx (the "Employee").
In consideration of the promises and mutual covenants contained herein, the
parties agree as follows:
1. EMPLOYMENT. For an initial term of four (4) years after the commencement
date set forth on Schedule 1, (also, the "Effective Date"), with automatic
annual one (1) year extensions of this agreement unless either party gives
notice to the other no less than sixty (60) days before the end of any term that
it will not be renewing this agreement, Employee shall be employed as the
Controller, Dallas Division ("__________") of Company, and shall have the duties
and responsibilities customary to someone in that position, including the duties
and responsibilities set forth on SCHEDULE 1, subject to the Company's right to
expand, limit or change such duties. Company and Employee understand and agree
that Employee is considered to be part of executive and management personnel of
Company and/or professional staff to executive and management personnel of
Company, as contemplated by C.R.S. Section 8-2-113(2)(d), a copy of which is
attached hereto as EXHIBIT 2. During the term of employment hereunder, Employee
shall report to the Chief Executive Officer of the Company, and shall devote
his/her best efforts and full business time and attention to the business and
affairs of the Company, excluding time off for vacation and reasonable time off
for illness and sick days in accordance with the Company's policies in effect
from time to time. Employee shall perform his/her duties and responsibilities to
the Company hereunder to the best of his/her abilities in a diligent,
trustworthy, businesslike, and efficient manner.
2. COMPENSATION AND BENEFITS.
(a) EMPLOYEE'S BASE SALARY. In consideration for rendering the services as
set forth herein, Employee shall receive an annual base salary in the amount of
Fifty Thousand Six Hundred Twenty two Dollars ($50,622), beginning on the
Effective Date payable semi-monthly, in arrears. All amounts payable to Employee
as salary and other compensation hereunder shall be subject to taxes and
customary withholding by the Company. Employee's salary will be reviewed by CBSA
and Employee annually on or each anniversary of the effective date of the
Agreement and shall be adjusted by mutual agreement of the parties.
(b) STOCK OPTIONS. Employee shall receive options to purchase shares of
stock in the Company's parent, College Bound Student Alliance, Inc., (a Nevada
corporation effective August 1, 2000) ("CBSA"), pursuant to the Stock Option
Terms set forth on Schedule 1 annexed hereto. Employee is hereby granted the
option to purchase a total of 200,000 shares of common stock of CBSA at a strike
price of $1.00 per share which options will be issued and shall vest as
described in the attached Stock Option Terms. Stock options will remain open for
exercise for five (5) years after issuance.
In the event of a Change in Control in CBSA as defined below, Employee
shall be vested for all granted stock options. For purposes of this Agreement,
Change in Control shall mean: (aa) sale of substantially all of the assets of
CBSA, or (bb) the acquisition by any corporation or group of associated persons
acting in concert, of an aggregate of one hundred percent (100%) of the
outstanding shares of voting stock coupled with or followed by the election as
directors of CBSA of persons who were not directors at the time of such
acquisition if such persons shall become a majority of the Board of Directors of
CBSA.
(c) BENEFITS. The Employee shall be eligible to be a participant in any
medical, dental, disability or health benefit plans which the Company may
provide to similarly situated employees from time to time, as well as be
included in any pension plan or profit sharing that the Company may implement
from time to time, provided that Employee shall be entitled to substantially the
same benefits package currently enjoyed.
(d) EXPENSES. The Company agrees that Employee shall be entitled to
reimbursement for traveling, entertainment, and other expenses reasonably
incurred by Employee in the performance of his/ her employment obligations and
responsibilities and reasonably related automobile expenses as are available to
similarly situated executive employees; provided that such expenses be
pre-approved by the Company and that the 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.
(a) FOR CAUSE BY COMPANY. This Agreement may be terminated by Company for
cause, at any time, effective upon written notice to Employee. The term "cause"
shall mean any 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 any
affiliates, 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.
(b) WITHOUT CAUSE BY COMPANY. This Agreement may be terminated without
cause by the Company at anytime effective upon written notice to Employee,
provided that, if Employee is terminated "without cause," severance will be paid
to the Employee as follows: (i) if the Employee is terminated without cause
within one year of the date of execution of this Agreement, the Employee shall
continue to be paid his base salary for six (6) months, and (ii) if the Employee
is terminated without cause later than one year after execution of this
Agreement, the Employee shall continue to be paid his base salary for twelve
(12) months.
(c) VOLUNTARILY BY EMPLOYEE. In the event Employee elects to voluntarily
terminate his/her employment pursuant to notice as provided herein, Company
shall pay Employee the prorated
compensation through the date of termination and any unexercised stock options
(whether vested or not) held by Employee shall automatically expire and
automatically be deemed terminated and of no further force and effect upon such
notice of voluntary 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
Sections 5 and 6 hereof.
(d) EFFECT OF TERMINATION ON STOCK OPTIONS AS TO SECTIONS 3(a) AND 3(b).
If Employee is terminated by Company pursuant to subparagraphs 3(a) or 3(b),
he/she must exercise all vested stock options within ninety (90) days of
termination, and any unexercised stock options (whether vested or not) held by
Employee in the shares of Company or in the shares of any affiliate of Company
shall automatically expire upon such termination and automatically be deemed
terminated and of no further force and effect. This provision shall control any
inconsistent or conflicting provision in this Agreement and in any other
agreement between Company, or any affiliate of Company, and Employee.
(e) DEATH OR DISABILITY. The term of employment hereunder shall also
terminate immediately upon the death or "permanent disability" of the Employee
("permanent disability" being defined as the inability of the Employee to
adequately perform his/her work in accordance with the provisions of this
Agreement for a period of 90 days), and thereupon the Employee shall not be
entitled to receive any further salary or other compensation; provided however,
that the Employee, or the Employee's estate or guardian, as the case may be,
shall be entitled to exercise any vested unexercised stock options pursuant to
their terms, and all non-vested stock options shall be automatically terminated.
4. NOTICE PERIOD. Employee and Company understand and agree that should
Employee terminate employment he/she will give Company thirty (30) days' advance
written notice (the "Notice Period"). Company may, at its option, pay Employee
for the Notice Period in lieu of active employment during the Notice Period. It
is understood that a party's exercise of its rights under this Paragraph shall
be without prejudice to any other right or remedy which it may have at law, in
equity, or under this Agreement, including, without limitation, Company's right
to terminate such employment without notice for Cause.
4.1 Company agrees to continue in effect during the Notice Period payment of
the salary only without bonus or any other compensation to which Employee may be
entitled under this Agreement, which payments shall be made if and only if the
Employee has executed and delivered to the Company a general release of all
claims against the Company and its stockholders, directors and employees in form
and substance satisfactory to the Company and only so long as Employee has not
breached and during the Notice Period does not breach the provisions of Sections
5 and 6 hereof, which provisions shall extend beyond the term of employment and
shall survive termination or expiration of this Agreement.
4.2 Employee agrees that during the Notice Period, he/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 Employee has been responsible.
4.3 Employee agrees that, prior to the expiration of the Notice Period, he/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 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.
4.4 Employee 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 to ensure that
Employee has fully obtained any entitlements which may be available under this
Agreement and/or to confirm that Employee clearly understands the nature and
scope of all of his/her post-employment obligations.
5. CONFIDENTIALITY.
(a) Employee recognizes that by virtue of Employee's employment by Company
Employee will be afforded numerous and extensive resources to assist Employee in
the solicitation, development, production, and servicing of business clients.
Employee understands and agrees that all efforts that Employee expends and
programs and strategies Employee 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 his/her employment
relationship to Company, Employee 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 (hereinafter referred to as
"Confidential Information") includes trade secrets, as contemplated by C.R.S.
Sections 7-74-102(4) and 8-2-113(2)(b) (a copy of which is attached hereto as
SCHEDULE 2) 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 Employee will not, at any time during
the employment relationship with the Company or for a period of THREE (3) YEARS
after the termination of the Employment relationship with Company, divulge such
Confidential Information or make use of such Confidential Information for
Employee's own purposes or the purposes of another.
6. 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 his/her employment. Accordingly,
Employee understands and agrees that while employed by Company and for a period
of THREE (3) YEARS following termination of employment with Company (unless, the
Employee has been terminated without cause by Company, in which case for a
period of one (1) one year following termination), Employee 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 performed. If the time or geographic limitation set forth herein is
deemed to be unreasonable, Employee agrees to abide by the maximum time or
geographic limitation decided by a court or other tribunal of competent
jurisdiction.
7. 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 Employee by this Agreement and Employee's services and Employee's
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 Employee 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. SUCCESSORS OR ASSIGNS. This Agreement will be binding upon and benefit the
parties hereto and their assigns, executors, heirs or successors, provided that
Employee will not assign any obligation hereunder without the Company's prior
written consent, which consent may be withheld by Company for any reason, and
any such attempted assignment shall be void.
9. AMENDMENT, MODIFICATION, OR WAIVER. No amendment, modification or waiver of
any condition, provision, or terms of this Agreement will be valid or of any
effect unless made in writing and signed by the party or parties to be charged.
Any waiver by any party of any defaults of the other party will not affect or
impair any rights arising from any subsequent default by such party.
10. 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 shall not affect the remainder of this Agreement.
11. 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.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado with exclusive venue for the
enforcement hereof to be in Arapahoe County, Colorado. Both parties consent to
personal jurisdiction in the Courts of Colorado, located in Arapahoe County.
13. ATTORNEYS' FEES. The substantially prevailing party in any litigation or
other proceeding enforcing this Agreement shall be entitled to reimbursement of
all costs and expenses including reasonable attorneys' fees at each trial and
appellate levels.
14. CAPTIONS. The captions in this Agreement are included for purposes of
reference only and are not part of the text of this Agreement.
15. 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.
EMPLOYEE: COLLEGE BOUND STUDENT ALLIANCE, INC.,
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------- --------------------------
Name: Xxxxxxx X. Xxxxxx Title: Chief Executive Officer
------------------------ ------------------------
CORPORATE GUARANTEE
For good and valuable consideration and as an inducement fore employee to
enter into this Employment Agreement, the undersigned guarantor (`Guarantor")
hereby guarantees prompt performance of payment to Employee of all payment
obligations of the company hereunder.
Upon notice of default by the Company, to guarantor, guarantor agrees to
pay such amounts on demand. This guarantee is an absolute, unconditional,
present and continuing guarantee of payment and collectability of payments due
hereunder.
COLLEGE BOUND STUDENT ALLIANCE, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: Chief Executive Officer
------------------------------
(Corporate Seal)
SCHEDULE 1
TERMS OF EMPLOYMENT
OF
XXXXXXX X. XXXXXX
(Name of Employee)
Name: Xxxxxxx X. Xxxxxx Soc Sec. No. ###-##-####
Address: 000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
TITLE (POSITION): Controller, Dallas Division
RESPONSIBILITIES: Control Financial Operations of the Dallas Division in
accordance with management directives.
TERM OF EMPLOYMENT: Four years
COMMENCEMENT DATE: July 31, 2000
COMPENSATION:
ANNUAL BASE SALARY: $50,622
ADDITIONAL BENEFITS: See Executive Employment Agreement
INCENTIVE COMPENSATION: See Executive Employment Agreement
ADDITIONAL TERMS:
STOCK OPTION PLAN.
The Employee is hereby granted stock options to purchase up to a total
of 200,000 shares of stock in the Company's parent College Bound
Student Alliance Inc., which will be issued and vest, as follows:
At the end of each annual anniversary of the Effective Date hereof
during the initial term of employment hereunder, Employee shall be
granted an option to purchase up to 50,000 shares of stock of College
Bound Student Alliance Inc., ("CBSA") at a strike price of $1.00 per
share. The options will vest annually on each twelve (12) month
anniversary of this Agreement and may be exercised at any time before
five (5) years after the date of issuance, at which time the options
will expire.
SCHEDULE 2
Copy of C.R.S. Sections 7-74-102(4) and 8-2-113(2)(d)
