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Exhibit
10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this
“Agreement”) is made and entered September 1, 2007 (the
“Effective Date”), between
HEALTH SYSTEMS SOLUTIONS, INC. ,
a Nevada corporation (the “Company”), with a principal
place of business at 450 North Reo Street, Suite 300, Tampa,
Florida 33609 and Michael
Levine (the
“Executive”), an individual residing in
Warren,
NJ.
RECITALS:
The
Executive possesses knowledge and skills which the Company
believes will be of substantial benefit to its operations and
success, and the Company desires to employ the Executive on
the terms and conditions set forth below.
The
Executive is willing to make his services available to the
Company on the terms and conditions set forth
below.
NOW, THEREFORE, in
consideration of the mutual agreements herein made, the Company and
the Executive hereby agree as follows:
AGREEMENT
1.
EMPLOYMENT The
Company hereby agrees to employ Executive and Executive hereby
accepts such employment in his capacity of Chief
Financial O fficer
and Executive
Vice President ,
upon the terms and conditions hereinafter set forth.
The
Executive shall diligently perform all services as may be assigned
to him by the Board of Directors of the Company (the
“Board”), and shall exercise such power and authority
as may from time to time be delegated to him by the Board. As the
Chief Financial Officer of the Company, the Executive shall have
all of the powers, authority, duties and responsibilities usually
incident to the position and role of Chief Financial Officer in
public companies that are comparable in size, character and
performance to the Company. The Company may also direct Executive
to perform such duties for other entities which are now or may in
the future be direct or indirect subsidiaries of the Company (the
“Affiliates”
) ,
subject to the limitation that Executive’s overall time
commitment is comparable to similarly situated executives.
Executive shall serve the Company and the Affiliates faithfully,
diligently and to the best of his ability. Executive agrees during
the Term (as hereinafter defined) of this Agreement to devote all
of his full-time business efforts, attention, energy and skill to
the performance of his employment to furthering the interest of the
Company and the Affiliates. In connection with his employment by
the Company, the Executive shall be based in New York City, or at
any other Company location, as he may determine to be appropriate
for the performance of his duties, and he agrees to travel, subject
to the reimbursement of expenses set forth in Section 2(f) below
and to the extent reasonably necessary, to perform his duties and
obligations under this Agreement, to Company facilities and other
destinations elsewhere. During the Term, Executive shall not engage
in any other employment, occupation or consulting activity for any
direct or indirect remuneration without the prior written consent
of the Board; provided that the Executive may engage in community
service and other charitable activities without prior written
consent of the Board.
2.
COMPENSATION/BENEFITS .
(a)
Salary .
Company shall pay Executive a base salary (the “Base
Salary”), of $ 285
,000.
Said Base Salary shall be paid consistent with the Company’s
payroll policies and procedures for all employees. The Base Salary
shall be increased, at least annually, in accordance with increases
in the Consumer Price Index (using the 1982-84 average as equal to
100), All Urban Consumers All Cities Average, issued by the Bureau
of Labor Statistics of the United States; provided, however, that
the Base Salary shall not be increased during any calendar year
during the Term in excess of 5%.
(b)
Performance Bonus .
For the period commencing in calendar year 2007 and for each
calendar year thereafter during the Term, Executive shall be
eligible to receive an annual bonus (“Bonus”) in an
amount up to 40
%
of the Base Salary (the “Maximum Bonus”) to be
determined as follows: (i) if 80% to 100% of budgeted revenue and
EBITDA are achieved by the Company for any calendar year during the
Term, the Executive shall be entitled to receive 50% of the Maximum
Bonus; and (ii) if 100% to 110% of budgeted revenue and EBITDA are
achieved by the Company for any calendar year during the Term, the
Executive shall be entitled to receive 100% of the Maximum Bonus.
For purposes of the Bonus calculations, Company revenue and EBITDA
shall be weighted equally; accordingly, and for illustration
purposes only, if 80% of budgeted revenue is achieved, but only 50%
of budgeted EBITDA is achieved, the Executive would be entitled to
receive a Bonus of 25% of the Maximum Bonus. At the discretion of
the Board, the Executive may receive an amount in addition to the
Maximum Bonus if Company revenue and EBITDA both exceed the
budgeted amount by 110% or more. As used herein, the initial
budgeted revenue and EBITDA shall be derived from a budget which
shall be submitted to the Board no later than 60 days from the
Effective Date hereof. As used herein, “EBITDA” means
the Company’s earnings before interest, taxes, depreciation
and amortization as determined by the Company’s independent
certified public accountants from time to time. The Bonus, if any,
shall be payable on an annual basis at such time as the Board shall
determine. For any partial year, the Bonus shall be
pro-rated.
(c)
Employee Benefits Executive
shall be entitled to participate in such employee benefit plans and
insurance offered by the Company to similarly situated employees of
the Company subject to the eligibility requirements, restrictions
and limitations of any such plans or programs.
(d)
Vacation .
Executive shall be entitled to three (3)
weeks
of vacation each calendar year during the Term, to be taken at such
times as the Executive and the Company shall mutually determine and
provided that no vacation time shall interfere with the duties
required to be rendered by the Executive hereunder. Any vacation
time not taken by Executive during any calendar year may not be
carried forward into any succeeding calendar year and is not
cumulative.
(e)
Automobile Allowance .
During the Term, the Company shall pay the Executive an automobile
allowance of $600 per month (subject to any applicable withholding
or other taxes).
(f)
Business Expense Reimbursement; Telephone Expenses.
Upon the submission of proper substantiation by Executive, and
subject to such rules and guidelines as the Company may from time
to time adopt, the Company shall reimburse Executive for all
reasonable expenses actually paid or incurred by the Executive
during the Term in the course of and pursuant to the business of
the Company including, without limitation, travel and telephone
expenses incurred by the Executive while traveling to and from the
Company’s facilities as may be required pursuant to Section 1
hereof. The Executive shall account to the Company in writing for
all expenses for which reimbursement is sought and shall supply to
the Company copies of all relevant invoices, receipts or other
evidence reasonably requested by the Company.
3.
STOCK OPTIONS .
Subject to an increase in the amount of shares of common stock of
the Company (the “Common Stock”) available for issuance
under the Company’s stock option plan, and stockholder
approval of such increase, the Company shall grant to the Executive
options (the “Stock Option”) to purchase up to
642,500
shares
of Common Stock under (and therefore subject to all terms and
conditions of) the Company’s stock option plan, as may be
amended from time-to-time, and any successor plan thereto (the
“Stock Option Plan”) and all rules of regulation of the
Securities and Exchange Commission applicable to stock option plans
then in effect. The Stock Option shall have an exercise price per
share equal to the fair market value of the Common Stock on the
date of the grant ,
which the parties acknowledge is one dollar ($1.00) per share of
Common Stock. The
Stock Option will vest equally over the four-year Term of this
Agreement as follows: (i) ¼ will vest and become exercisable
on each anniversary of the Effective Date; and (ii) subject to
continued employment as of the vesting date and in accordance with
the terms of the Stock Option Plan. No right to any Common Stock is
earned or accrued until such time that vesting occurs (subject to
Executive being employed and in good standing hereunder on each
vesting date), nor does the grant confer any right to continued
vesting or employment. The Stock Option shall lapse as provided in
the Stock Option Plan. Notwithstanding the foregoing, all unvested
Stock Options shall vest immediately upon a Change of Control of
the Company. For purposes of this Agreement, the term “Change
in Control” shall mean (a) a reorganization, merger,
consolidation or other transaction, in each case, with respect to
which persons who were the shareholders of the Company immediately
prior to such transaction do not, immediately thereafter, own more
than 50% of the combined voting power of the company’s then
outstanding voting securities, in substantially the same
proportions as their ownership immediately prior to such
transaction, (b) a liquidation or dissolution of the Company or (c)
the sale of all or substantially all of the assets of the
Company.
4.
TERM
.
The
Term of employment hereunder will commence on the Effective Date,
and end four (4) years thereafter (the “Term”), unless
terminated earlier pursuant to Section 6 of this Agreement, in
which event the shorter period shall be deemed to be the Term for
all purposes hereunder. The Term shall automatically renew
(“Renewal Term”) for successive one year terms, unless
written notification of non-renewal is provided by either party no
less than 30 days prior to the expiration of the Term or the then
current Renewal Term.
5.
REPRESENTATIONS AND WARRANTIES OF EXECUTIVE .
The Executive represents and warrants to the Company as
follows:
(a)
Executive
has the full right to enter into this Agreement and perform
all duties hereunder, and has made no contract or other
commitment in contravention of the terms hereof (including,
without limitation, contracts or obligations respecting trade
secrets or proprietary information or otherwise restricting
competition), or which would prevent Executive from using his
best efforts in the performance of his duties hereunder.
Executive has fulfilled all of his obligations under all prior
employment or consulting agreements (or similar arrangements),
and there is not, under any of the foregoing, any existing
default or breach by Executive with respect
thereto.
(b)
Executive’s
performance hereunder shall not constitute a default under any
contract or other commitment to which the Executive is
bound.
(c)
All
information furnished by Executive to the Company is to the
best of Executive’s knowledge, true and complete
(including, without limitation, documentary evidence of
Executive’s identity and eligibility for employment in
the United States), and Executive will promptly advise the
Company with respect to any change in the information of
record.
(d)
Executive
is not subject to any order, decree or decision precluding him
from performing his duties as described herein.
(e)
Executive
declares that he has read and understands all the terms of
this Agreement; that he has had ample opportunity to review it
with his attorney before signing it; that no promise,
inducement, or agreement has been made except as expressly
provided in this Agreement; that it contains the entire
Agreement between the parties; and that he enters into this
Agreement fully, voluntarily, knowingly and without
coercion.
6.
TERMINATION .
(a)
Termination .
This Agreement shall be terminated (i) upon the expiration of the
Term, (ii) upon the death of the Executive, (iii) if the Executive
shall have been substantially unable to perform Executive’s
duties hereunder for a period of three consecutive months, (iv) by
the Company for “Cause” (as defined below) and upon
written notice or (v) for Good Reason or voluntarily by the
Executive.
(b)
Cause .
As used in this Agreement, “Cause” shall mean any of
the following: (i) Executive’s willful failure or refusal,
after notice thereof, to perform specific directives of the Board
when such directives are lawful and consistent with the Executives
duties and responsibilities described in this Agreement, (ii)
dishonesty of the Executive affecting the Company, (iii) habitual
abuse of drugs or alcohol, (iv) conviction of Executive of, or a
plea by Executive of guilty or no contest to, any felony or any
crime involving moral turpitude, fraud, gross neglect, embezzlement
or misrepresentation, (v) any gross or willful conduct of the
Executive resulting in loss to the Company or damage to the
reputation of the Company, (vi) theft from the Company, (vii)
commission or participation by Executive in any other injurious act
or omission wantonly, willfully, recklessly or in a manner which
was grossly negligent against the Company; or (viii) violation by
the Executive, after notice thereof, of the material business
policies and guidelines of the Company as may be in effect from
time to time. Notwithstanding anything herein to the contrary, the
Company shall notify the Executive of any purported grounds
constituting Cause, and the Executive shall have no less than
twenty (20) business days within which to cure such purported
grounds. In the event that such grounds cannot be cured within said
period of time, and provided that it is possible for such grounds
to be cured, the Executive shall have a reasonable period of time
(not to exceed sixty (60) days) to cure such grounds, provided that
he is proceeding in good faith to cure same. The notice shall state
with particularity the conduct of the Executive constituting Cause.
The Executive shall have a reasonable opportunity to present his
position to the Board during the notice period and prior to any
termination
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