Executive Employment
Agreement
1.
Employment . Employer agrees to employ Executive and
Executive accepts such employment for the period effective as of
August 1, 2005 and ending upon his separation pursuant to
Section 1(c) hereof (the “ Employment Period
”).
(a) Position and Duties
.
(i) During the Employment Period,
Executive shall serve as the Secretary & General Counsel of
Employer and shall have the normal duties, responsibilities and
authority implied by such position, subject to the power of the
Chief Executive Officer of Employer and the Board to expand or
limit such duties, responsibilities and authority and to override
such actions.
(ii) Executive shall report to the
Chief Executive Officer of Employer, and Executive shall devote his
best efforts and his full business time and attention to the
business and affairs of the Company, Employer and their
Subsidiaries.
(b) Salary, Bonus and
Benefits . During the Employment Period, Employer will
pay Executive a base salary of $300,000 per annum (the “
Annual Base Salary ”). In addition, the
Executive shall be eligible for and participate in the Annual
Incentive Compensation Plan (the “Annual Bonus”) under
which the Executive shall be eligible for an annual Target Bonus
payment of 45% of annual base salary with a maximum of 90% of
annual salary. All provisions of the Annual Bonus as approved by
the Board of Directors will apply. During fiscal year beginning
April 1, 2005, the Board shall develop a new Long Term Incentive
Compensation program which may incorporate subjective and/or
objective criteria for bonus achievement, which program will be
proportionately applicable to Executive as determined by the Board.
In addition, during the Employment Period, Executive will be
entitled to such other benefits approved by the Board and made
available to the senior management of the Company, Employer and
their Subsidiaries, which shall include vacation time (in an amount
consistent with past practice) and medical, dental, life and
disability insurance. The Board, on a basis consistent with past
practice, shall review the Annual Base Salary of Executive and may
increase the Annual Base Salary by such amount as the Board, in its
sole discretion, shall deem appropriate. The term “Annual
Base Salary” as used in this Agreement shall refer to the
Annual Base Salary as it may be so increased.
(c) Separation . The
Employment Period will continue until (i) Executive’s death,
disability or resignation from employment with the Company,
Employer and their respective Subsidiaries or (ii) the Company,
Employer and their respective Subsidiaries decide to terminate
Executive’s employment with or without Cause. If (A)
Executive’s employment is terminated without Cause pursuant
to clause (ii) above or (B) Executive resigns from employment with
the Company, Employer or any of their respective Subsidiaries for
Good Reason, then during the period commencing on the date of
termination of the Employment Period and ending on the first
anniversary of the date of termination (the “ Severance
Period ”), Employer shall pay to Executive, in equal
installments on the Employer’s regular salary payment dates,
an aggregate amount equal to (I) his Annual Base Salary, plus (II)
an amount equal to the annual bonus, if any, paid or payable to
Executive by Employer for the last fiscal year ended prior to the
date of termination. In addition, if Executive is entitled on the
date of termination to coverage under the medical and prescription
portions of the Welfare Plans, such coverage
shall
continue for Executive and Executive’s
covered dependents for a period ending on the first anniversary of
the date of termination at the
active employee cost payable by Executive
with respect to those costs paid by Executive prior to the date of
termination; provided , that this coverage will count
towards the depletion of any continued health care coverage rights
that Executive and Executive’s dependents may have pursuant
to the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended (“ COBRA ”); provided further,
that Executive’s or Executive’s covered
dependents’ rights to continued health care coverage pursuant
to this Section 1(c) shall terminate at the time Executive
or Executive’s covered dependents become covered, as
described in COBRA, under another group health plan, and shall also
terminate as of the date Employer ceases to provide coverage to its
senior executives generally under any such Welfare Plan.
Notwithstanding the foregoing, (I) Executive shall not be entitled
to receive any payments or benefits pursuant to this Section
11(c) unless Executive has executed and delivered to Employer a
general release in form and substance satisfactory to Employer and
(II) Executive shall be entitled to receive such payments and
benefits only so long as Executive has not breached the provisions
of Section 2 or Section 3 hereof. The release
described in the foregoing sentence shall not require Executive to
release any claims for any vested employee benefits, workers
compensation benefits covered by insurance or self-insurance,
claims to indemnification to which Executive may be entitled under
the Company’s or its Subsidiaries’ certificate(s) of
incorporation, by-laws or under any of the Company’s or its
Subsidiaries’ directors or officers insurance policy(ies) or
applicable law, or equity claims to contribution from the Company
or its Subsidiaries or any other Person to which Executive is
entitled as a matter of law in respect of any claim made against
Executive for an alleged act or omission in Executive’s
official capacity and within the scope of Executive’s duties
as an officer, director or employee of the Company or its
Subsidiaries. Not later than eighteen (18) months following the
termination of Executive’s employment, the Company and its
Subsidiaries for which the Executive has acted in the capacity of a
senior manager, shall sign and deliver to Executive a release of
claims that the Company or its Subsidiaries has against Executive;
providedthat , such release shall not release any claims
that the Company or its Subsidiaries commenced prior to the date of
the release(s), any claims relating to matters actively concealed
by Executive, any claims to contribution from Executive to which
the Company or its Subsidiaries are entitled as a matter of law or
any claims arising out of mistaken indemnification by the Company
or any of its Subsidiaries. Except as otherwise provided in this
Section 1(c) or in the Employer’s employee benefit
plans or as otherwise required by applicable law, Executive shall
not be entitled to any other salary, compensation or benefits after
termination of Executive’s employment with Employer.
2.
Confidential Information .
(a) Obligation to Maintain
Confidentiality . Executive acknowledges that the
information, observations and data (including trade secrets)
obtained by him during the course of his performance under this
Agreement concerning the business or affairs of the Company,
Employer and their respective Subsidiaries and Affiliates (“
Confidential Information ”) are the property of the
Company, Employer, or such Subsidiaries and Affiliates, including
information concerning acquisition opportunities in or reasonably
related to the Company’s and Employer’s business or
industry of which Executive becomes aware during the Employment
Period. Therefore, Executive agrees that he will not disclose to
any unauthorized Person or use for his own account (for his
commercial advantage or otherwise) any Confidential Information
without the Board’s written consent, unless and to the extent
that the Confidential Information, (i) becomes generally
known to and
available for use by the public other than as a result of
Executive’s acts or omissions to act, (ii) was known to
Executive prior to Executive’s employment with Employer, the
Company or any of their Subsidiaries and Affiliates or (iii) is
required to be disclosed pursuant to any applicable law, court
order or other governmental decree. Executive shall deliver to the
Company at a Separation, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer
tapes, printouts and software and other documents and data (and
copies thereof) relating to the Confidential Information, Work
Product (as defined below) or the business of the Company, Employer
and their respective Subsidiaries and Affiliates (including,
without limitation, all acquisition prospects, lists and contact
information) which he may then possess or have under his
control.
(b) Ownership of Property
. Executive acknowledges that all discoveries, concepts,
ideas, inventions, innovations, improvements, developments,
methods, processes, programs, designs, analyses, drawings, reports,
patent applications, copyrightable work and mask work (whether or
not
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