Exhibit 10.2
EMPLOYMENT
AGREEMENT
This Employment Agreement (this
“ Agreement ”) is made and entered into
as of September 14, 2009, by and between MDI, Inc., a
Delaware corporation (the “ Company ”),
and Lori Jones, an individual (the “ Executive
”).
RECITALS
WHEREAS, the Company desires to hire Executive and
Executive desires to become employed by the Company; and
WHEREAS, the Company and Executive have determined that
it is in their respective best interests to enter into this
Agreement on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE,
in consideration of the premises and
the mutual covenants and promises contained herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1.
EMPLOYMENT TERMS AND
DUTIES
1.1
Employment
. The Company, subject
to Board ratification, hereby employs Executive, and Executive
hereby accepts employment by the Company, upon the terms and
conditions set forth in this Agreement.
1.2
Duties . Executive shall serve
as Chief Financial Officer and shall report directly to the Chief
Executive officer (the “ CEO ”) or President as
directed by the Board of Directors. Executive shall have the
authority, and perform the duties customarily associated with her
title and office together with such additional duties of a senior
executive nature and commensurate with her title as may from time
to time be assigned by the Chief Executive Officer. Executive
shall devote her full working time and efforts to the performance
of her duties and the furtherance of the interests of the Company
and shall not be otherwise employed; however, for a period of
ninety days from the effective date of this Agreement, Executive
may deliver consulting services to certain entities in order to
ensure a smooth transition pursuant to existing client
relationships between Executive and those certain entities,
provided delivery of such services shall not interfere with the
performance of her duties pursuant to this Agreement.
Notwithstanding the above, Executive may serve as a director or
trustee of other organizations, or engage in charitable, civic,
and/or governmental activities provided that such service and
activities do not prevent Executive from performing the duties
required of Executive under this Agreement and further provided
that Executive obtains written consent for all such activities from
the Company, which consent will not be unreasonably withheld.
Executive may engage in personal activities, including, without
limitation, personal investments, provided that such activities do
not interfere with Executive’s performance of duties
hereunder and/or the provisions of Executive’s written
agreements with the Company.
1.3
Term . The Term shall
commence on September 14, 2009 (the “
Start Date
”) and,
unless earlier terminated pursuant to the Agreement, shall continue
until the date that is one (1) year following the Start Date
(the “ Initial
Term ”).
The Term shall be
automatically extended at the end of the Initial Term or any
Renewal Term (as defined below) for an additional term of one
(1) year (a “ Renewal Term ”), unless either the
Company or Executive provides notice to the other party at least
thirty (30) days prior to the termination date of the Initial Term
or the applicable Renewal Term of such party’s desire not to
extend the Term. In such event of non renewal by the Company
(“ Termination for
Non-Renewal ”),
1
the termination payment
provisions under section 1.4.6 hereof shall apply in the same
manner as a termination without Cause or for Good
Reason.
1.4
Termination
1.4.1
Termination Due to
Death . Executive’s
employment hereunder shall terminate immediately upon the death of
Executive.
1.4.2
Termination Due to
Disability . Executive’s
employment shall be terminable by the Company or Executive by not
less than thirty (30) days’ written notice in the event of
Executive’s Disability. The term “
Disability
” shall
mean any illness, disability or incapacity of Executive that
prevents him from substantially performing her regular duties for
the Company for a period of three (3) consecutive months or
four (4) months, even though not consecutive, in any twelve
(12) month period. The determination of the existence of a
Disability shall be made by a physician selected by the Company and
Executive; provided that if Executive disagrees with the
determination made by such physician she may, within 15 days after
such determination, appoint a physician for such purpose, and such
physician and a physician appointed by the Company shall jointly
select a third physician (who has no prior knowledge of Executive)
to make such determination. Executive hereby agrees to
cooperate with any physical examinations reasonably required by
such physician(s) for the purpose of such
determination.
1.4.3
Termination by the
Company . The Company may
terminate the employment of Executive without Cause in accordance
with Section 1.3. The Company may terminate the
employment of the Executive for Cause, provided that the Company,
as applicable, shall notify Executive in writing setting forth in
reasonable detail the basis for the proposed termination and
Executive shall have the opportunity to be heard by the Board of
Directors (represented by counsel at Executive’s own expense)
prior to her employment termination date as set forth in the Notice
of Termination. The term “ Cause ” shall mean
(i) a breach by Executive of any of the material terms of this
Agreement in each case which breach, if subject to cure, is not
cured within 15 days following notice from the Company thereof,
(ii) the commission of any act of fraud, embezzlement or
dishonesty by the Executive which was intended to result in
substantial gain or personal enrichment of the Executive at the
expense of the Company, (iii) any unauthorized use or
disclosure by the Executive of confidential information or trade
secrets of the Company (or any parent or subsidiary) or any breach
of the Executive’s proprietary information agreement with the
Company (or any parent or subsidiary), (iv) the
Executive’s violation of a federal or state law or regulation
applicable to the Company’s business which violation was or
is reasonably likely to be injurious to the Company, (v) any
material dereliction of the Executive’s duties continuing for
15 days after notice thereof from the Company, or (vi) any
other intentional misconduct by such person adversely affecting the
business or affairs of the Company (or any parent or subsidiary) in
a material manner. The foregoing definition shall not in any
way preclude or restrict the right of the Company (or any parent or
subsidiary) to discharge or dismiss the Executive in the service of
the Company (or any parent or subsidiary) for any other acts or
omissions in accordance with the terms hereof, but such other acts
or omissions shall not be deemed, for purposes of this Agreement,
to constitute grounds for termination for Cause.
1.4.4
Termination by the
Executive . Executive may
terminate her employment at any time, for Good Reason or without
Good Reason, upon a Notice of Termination. Executive may
terminate Executive’s employment for Good Reason; provided,
however, that such a termination will not constitute a termination
for Good Reason if the Company remedies the circumstances
underlying the Good Reason determination within fifteen (15)
business days following receipt of notice from Executive. A
termination for “ Good
Reason ” shall mean
(i) Executive’s voluntary resignation following
(A) a change in her position with the Company which materially
reduces her duties and responsibilities or the level of management
to which she reports, other than changes in responsibilities
resulting from the Executive’s misconduct which shall not
constitute Good Reason, (B) a reduction in her level of
compensation (including
2
Base Salary, fringe benefits
and Yearly Bonus under any corporate-performance based bonus or
incentive programs) by more than ten percent (10%), other than a
reduction which, by resolution of the Board of Directors of the
Company, is applicable to all executive officers of the Company
generally for a period of no more than three (3) months,
(C) a relocation of such individual’s place of
employment from the San Antonio corporate office. provided and only
if such change, reduction or relocation is effected by the Company
without the Executive’s written consent, , or (D) a
breach by the Company of any of the material terms of this
Agreement including non-renewal hereof, in each case which breach
is subject to cure, is not cured within fifteen (15) days following
notification from the Executive.
1.4.5
Notice . The term
“ Notice of
Termination ” shall mean at least
30 days’ written notice of termination of Executive’s
employment hereunder, during which period Executive’s
employment and performance of services will continue; provided,
however, that the Company may, upon notice to Executive and without
reducing Executive’s compensation during such period
(including the vesting of any equity), excuse Executive from any or
all of her duties during such period. The effective date of
the termination of Executive’s employment hereunder shall be
the date on which such 30-day period expires.
1.4.6
Termination Payments
. In the
event of termination of the employment of Executive, all
compensation and benefits set forth in Section 1.5 of this
Agreement shall terminate except as specifically provided in this
Section 1.4.
(i)
Termination
for Cause . If the Board
terminates Executive’s employment for Cause, the Company
shall pay or provide to Executive all accrued but unpaid Base
Salary or Prior Bonus earned or accrued through the date of
termination and any benefits referred to in Section 1.5 below,
including accrued but unused vacation (collectively, the
“ Accrued
Obligations ”).
(ii)
Effect of
Termination Without Cause or for Good Reason
. In the
event that Executive’s employment is terminated by the
Company without Cause, or Executive resigns her employment for Good
Reason, then, subject to Executive’s execution and
non-revocation of a release of all claims mutually acceptable to
Executive and Company in a form prepared by the Company and
reasonably acceptable to Executive within ten (10) days of the
termination of her employment (the “ Release ”), Executive shall be
entitled to the following lump sum payments and employee benefits
(but no others) within ten (10) days of termination:
(A) Executive’s Base Salary for six (6) months
following the date of termination (or, if applicable, the date the
Agreement expires without renewal for a Renewal Term); (B) a
Yearly Bonus, prorated based on the number of days of
Executive’s service during such fiscal yea
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