EXHIBIT 10.16
CHIEF EXECUTIVE EMPLOYMENT AGREEMENT
THIS CHIEF EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is entered into
effective as of December 21, 2004 by and between CTI GROUP (HOLDINGS), INC., a
Delaware corporation (the "Corporation"), having its principal place of business
at 000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 and XXXXXXX X.
XXXXXXXX ("Employee"), whose address is 11093 Yosemite, Xxxxxxx, Xxxxxxx 00000.
Background
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The Corporation desires to employ the Employee and Employee desires to be
employed by the Corporation on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending to
be legally bound hereby, agree as follows:
Section 1. Employment and Duties.
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(a) Upon the terms and conditions set forth herein, the Corporation hereby
agrees to employ the Employee, and the Employee agrees to accept such employment
and to perform his duties and responsibilities hereunder. Employee shall serve
as the President and Chief Executive Officer of the Corporation and in such
positions as reasonably may be assigned by the Board of Directors of the
Corporation (the "Board") or the Executive Committee of the Board (the
"Executive Committee"). In the performance of services hereunder, Employee shall
devote his best efforts and essentially all of his time during normal business
hours to the business of the Corporation, subject to vacations and sick leave.
Employee shall, subject to the direction of the Board or the Executive
Committee, have, such authority and perform such duties and functions incidental
to the position that he holds with the Corporation or such other duties and
functions as may from time to time be assigned to him by the Board. Employee's
responsibilities will include, without limitation, the duties and
responsibilities customarily associated with a Chief Executive Officer and
Executive Committee. Employee acknowledges that he has reviewed the actions and
measures recommended by the Board set forth in a letter and attachment sent to
him on December 1, 2004 by Xxxxxxx X. Xxxxx, and he understands that it is the
Board's expectation that he will utilize the Board's recommendations as
guidelines in carrying out his duties and responsibilities as President and
Chief Executive Officer. Employee shall cooperate fully with the Board, the
Executive Committee and the other executive officers of the Corporation.
Employee shall also be available to assist subsidiaries and affiliates of the
Corporation. Employee shall not engage in any other business activity during the
term of this Agreement which may interfere with his ability to discharge his
duties and responsibilities to the Corporation.
(b) Employee represents to the Corporation that he is not subject or a
party to any employment agreement, non-competition covenant, non-disclosure
agreement or other
agreement, covenant, understanding or restriction which would prohibit Employee
from executing this Agreement and performing fully his duties and
responsibilities hereunder, or which would in any manner, directly or
indirectly, limit or affect the duties and responsibilities which may now or in
the future be assigned to Employee by the Corporation.
Section 2. Employment Term. Unless sooner terminated in accordance with the
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provisions of this Agreement, the term of this Agreement shall commence on
December 21, 2004 and shall continue for one year and thereafter shall continue
for additional one year periods unless either party gives the other party
written notice of non-renewal at least one month prior to any anniversary date
of this Agreement. As used herein, the term "Employment Term" shall refer to the
foregoing period.
Section 3. Compensation. For all services rendered by the Employee under
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this Agreement, the Corporation shall pay Employee an annual salary (the
"Salary") at the rate of $275,000 for the Employment Term, less withholding
required by law or agreed to by Employee, payable in accordance with the
Corporation's customary and usual payroll practice for its employees. The
Corporation agrees that the Salary will be reviewed at least annually by the
Board to determine if an increase is appropriate, which increase shall be in the
sole discretion of the Board. The Salary shall not be decreased during the
Employment Term.
Section 4. Bonus and Additional Benefits.
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(a) Incentive Program. During the Employment Term, Employee shall be paid
any bonus (the "Bonus") as determined by the Corporation's Board of Directors in
its sole discretion. Any such Bonus shall be in lieu of any cash bonuses
provided by the Corporation to its employees or senior executives generally, and
Employee shall not be entitled to any such cash bonuses.
(b) Additional Benefits. Employee shall be entitled to four (4) weeks of
paid vacation per year, with no right to carry over vacation to the next year,
but unused vacation may be sold back to the Corporation.
Employee shall be paid a non-accountable automobile allowance of $500 per
month for each full month during the Employment Term, payable in accordance with
the Corporation's customary and usual payroll practices for its employees.
Section 5. Fringe Benefits. Except as set forth in Section 4, Employee
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shall be entitled to all normal and usual benefits provided by the Corporation
to its senior executives generally, including, but not limited to reimbursement
for reasonable expenses incurred in connection with performing services for the
Corporation upon presentation of an itemized account and written proof of such
expenses in accordance with policies established by the Corporation and
participation in any health or hospitalization plans. This provision shall not
obligate the corporation to provide any specific benefits and shall not prohibit
the Corporation from changing such benefits. Except as set forth in Section
4(b), Employee alone shall be responsible for the payment of all federal, state
and local taxes in respect of payments to be made and benefits to be provided
under this Agreement.
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Section 6. Long-Term Incentive Compensation. The Corporation is considering
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the creation of an appropriate incentive plan to replace the current incentive
plan, and Employee will be entitled to participate in any such new incentive
plan that may be created and established in accordance with all of the terms and
conditions set forth therein.
Section 7. Confidential Information. For purposes of this Section 7,
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Confidential Information shall mean all confidential and proprietary technical,
business and financial information of the Corporation and its affiliates,
including, but not limited to, marketing and financial information, personnel,
sales and statistical data, plans for future development, computer programs,
information and knowledge pertaining to products and services offered,
inventions, innovations, designs, ideas, plans, trade secrets, proprietary
information, construction, advertising, sales methods and systems, sales and
profit figures, customer and client lists, and relationships between the
Corporation and its affiliates, customers, clients, suppliers and others who
have business dealings with the Corporation and its affiliates, information with
respect to various techniques, procedures, processes and methods and any other
information acquired, learned, used or developed by Employee or others during
his employment by the Corporation. Employee recognizes and acknowledges that by
reason of his employment by and service to the Corporation (both during the
Employment Term and before or after it), he has had and will continue to have
access to Confidential Information. Employee acknowledges that such Confidential
Information is a valuable and unique asset and Employee agrees that he will not,
either during or after his employment by the corporation, use any Confidential
Information for his own commercial benefit or the benefit of others nor disclose
any Confidential Information to any person, firm or corporation not connected
with the corporation for any reason whatsoever except as his duties hereunder
may require or as authorized in writing by the Board or the Executive Committee.
However, Employee shall be relieved of his responsibilities under this Section 7
with respect to any Confidential Information which is in the public domain
through no fault of Employee. All documents, magnetic media and other materials
containing Confidential Information made or compiled by or made available to
Employee during the course of his employment, and all copies thereof, are and
shall be the property of the Corporation and shall be delivered to the
Corporation by Employee immediately upon the conclusion of his employment.
Section 8. Inventions and Ideas; Ownership of Work Product.
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(a) All work produced by Employee in the course of his employment under
this Agreement including, without limitation, all inventions, creations,
expressions, improvements, computer programs, specifications, operating
instructions and all other documentation, whether copyrightable or
uncopyrightable, or patentable or unpatentable, which are first conceived, made
or otherwise originated or acquired, or first actually or constructively reduced
to practice during his employment by the Corporation or within six (6) months
following expiration or termination hereof, whether preliminary or final, and on
whatever media rendered (collectively, the "Work Product"), shall be deemed work
made for hire and made in the course of services rendered for the Corporation
and shall be the sole and exclusive property of the Corporation. The Corporation
shall have the sole, absolute and unlimited right throughout the world to
protect by patent or copyright, and to make, have made, use, reconstruct,
repair, modify, reproduce, publish, distribute and sell the Work Product, in
whole or in part, or combine the Work Product with other matter, or not use the
Work Product at all, as it sees fit.
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(b) To the extent that title to the Work Product may not, by operation of
law, vest in the Corporation, or such Work Product may not be considered to be
work made for hire, the Employee hereby irrevocably agrees to transfer and
assign to the Corporation in perpetuity all worldwide right, title and interest
in and to the patent rights, copyrights, trade secrets and other proprietary
rights (including, without limitation, applications for registration thereof,
and all priority rights therein under applicable international conventions for
the protection of such rights) in, and ownership of, the Work Product that the
Employee may have, as and when such rights arise.
(c) Employee hereby agrees, without cost to the Corporation other than
reimbursement of reasonable expenses, to cooperate fully with the Corporation in
executing all applications for patents, copyrights, assignments and other
documents, papers and writing and to perform all acts and do all things
necessary to protect or vest the Corporation's rights in or to the Work Product,
whether during the term of his employment or at anytime thereafter. If the
Corporation is unable, after reasonable effort, to secure Employee's signature
on any documents or documents needed to apply for or prosecute any patent,
copyright, or right or protection relating to any Work Product, whether because
of Employee's physical or mental incapacity or for, any other reason whatsoever,
Employee hereby irrevocably designates and appoints the Corporation and its duly
authorized officers and agents as Employee's agent and attorney-in-fact, to act
for and in his behalf and stead to execute and file any such application or
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights, or similar protections thereon
with the same legal force and effect as if executed by Employee.
Section 9. Non-Competition.
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(a) During his employment by the Corporation and for a period of one (1)
year after the employment of Employee by the Corporation or any of its
affiliates has ended (whether or not such employment is pursuant to this
Agreement), Employee will not, directly or indirectly: (i) anywhere in the world
own, manage, operate, join, control, finance or participate in the ownership,
management, operation, control or financing of, render financial assistance to,
or be connected as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with or use or permit his name to be
used in connection with, any competing business; (ii) contact or attempt to
persuade any agents or employees of the Corporation or any of its affiliates to
terminate their relationship with the Corporation or any of its affiliates, nor
do any act which may result in the impairment of the relationship between the
Corporation or any of its affiliates and its agents or employees; or (iii) in
anyway, for his own account, or for the account of any person, firm, corporation
or enterprise engaged in a competing business, directly or indirectly through
others, sell to, solicit, contact, serve, or cater to any person, firm,
corporation or other enterprise which is or was a customer of the Corporation
during his employment by the Corporation, regardless of the time when, or the
person by or through whom, said customer became a customer of the Corporation;
provided, however, that nothing in this Section 9 shall prohibit Employee from
owning interests of less than one percent (1%) in companies with securities
traded on a national securities exchange or quoted on the National Association
of Securities Dealers, Inc. Automated Quotation System.
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(b) The parties acknowledge and agree that, for purposes of this Section 9,
a "competing business", on the date hereof is the development, marketing,
support and sale of data processing software (which data processing software
directly competes with Corporation's data processing software) and
telecommunication systems management, traditional paper billing, electronic
billing, rating, printing and mailing services.
(c) Employee acknowledges and agrees that the geographical area in which
the Corporation conducts its business is worldwide.
Section 10. Equitable Relief.
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(a) Employee acknowledges that the restrictions contained in Sections 7, 8
and 9 hereof are reasonable and necessary to protect the legitimate interests of
the Corporation and its affiliates, that the Corporation would not have entered
into this Agreement in the absence of such restrictions, and that any violation
of any provision of those Sections will result in irreparable injury to the
Corporation. Employee represents that his experience and capabilities are such
that the restrictions contained in Section 9 hereof will not prevent Employee
from obtaining employment or otherwise earning a living at the same general
level of economic benefit as anticipated by this Agreement. Employee further
represents and acknowledges that (i) he has been advised by his own independent
legal counsel in respect of this Agreement, and (ii) that he has had full
opportunity, prior to execution of this Agreement, to review thoroughly this
Agreement with his counsel.
(b) Employee agrees that the Corporation shall be entitled to preliminary
and permanent injunctive relief, without the necessity of proving actual
damages, as well as an equitable accounting of all earnings, profits and other
benefits arising from any violation of Sections 7, 8 and 9 hereof, which rights
shall be cumulative and in addition to any other rights or remedies to which the
Corporation may be entitled. In the event that any of the provisions of Sections
7, 8 and 9 hereof should ever be adjudicated to exceed the time, geographic,
product or service, or other limitations permitted by applicable law in any
jurisdiction; then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, product or service, or other limitations
permitted by applicable law.
Section 11. Termination.
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(a) The Employee's employment pursuant to this Agreement shall be
terminated during the Employment Term only as follows:
(i) at anytime by Employee, by Employee giving written notice of his
voluntary resignation to the Board at least 30 days before the resignation
is to be effective;
(ii) at Will (as defined below) by the Corporation, by Corporation
giving written notice to the Employee at least 30 days before the
termination is to be effective; or
(iii) immediately upon the Employee's death or Disability (as defined
below) or upon mutual agreement of Employee and Corporation.
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(b) "at Will" shall mean for any reason upon the majority vote of the Board
or Executive Committee at a duly constituted meeting of the Board or Executive
Committee.
(c) "Disability" shall mean either the total and permanent disability or
partial and permanent disability of Employee due to illness or incapacity which
prevents him from performing all or substantially all of his duties and
responsibilities hereunder for six months in any twelve month period as
determined by the Board of Directors or Executive Committee of the Corporation.
(d) In the event of the termination of this Agreement for any reason,
Sections 7, 8 and 9 shall survive.
Section 12. Rights After Termination; Severance.
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(a) If Employee's employment terminates pursuant to Section 11(a) or
pursuant to notice by either party pursuant to Section 2, the Corporation shall
pay Employee as severance pay all accrued and unpaid Salary and benefits through
the date of termination of employment ("Termination Date") and unpaid business
expenses previously paid and reimbursable pursuant to Section 5 through the
Termination Date. Unless set forth in the remainder of this Section 12, Employee
shall not be entitled to any additional severance pay.
(b) If Employee's employment terminates as a result of his death pursuant
to Section 11(a)(iii) during the Employment Term, Corporation shall pay Employee
as additional severance pay an amount equal to his annual Salary which shall be
payable in accordance with Corporation's customary and usual payroll practices
over twelve months plus a portion of any Bonus payable pursuant to any incentive
plan for such year, which Bonus shall be payable on February 15 of the calendar
year following the Termination Date, and Corporation shall pay for the cost to
continue Employee's participation in the Corporation's health and
hospitalization plans, or its equivalent, for twelve months after the
Termination Date. If Employee's employment terminates as a result of his
Disability pursuant to Section 11(a)(iii) during the Employment Term,
Corporation may, at its sole discretion, pay Employee as additional severance
pay, all or a portion of the amounts described in the first sentence of this
subparagraph (b) at the times set forth therein.
(c) If Employee's employment terminates pursuant to Section 11(a)(ii) or
(iii) or pursuant to notice by either party pursuant to Section 2 and as long as
Employee is in compliance with the terms of this Agreement, Employee shall have
90 days following the Termination Date to exercise all vested Options. If
Employee's employment terminates pursuant to Section 11(a)(i), all vested
Options shall terminate on the Termination Date. If Employee's employment
terminates for any reason, all unvested Options shall terminate on the
Termination Date.
(d) As a condition to receiving any severance pay under this Agreement,
Employee shall execute a release in a form satisfactory to the Corporation. Upon
any termination of employment, Corporation's obligations to grant any Options
not granted prior to termination shall cease on the Termination Date.
Section 13. Notices. All notices or other communications which may be or
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are required to be given pursuant to this Agreement shall be in writing and
shall be deemed to have
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been given, if delivered personally, upon delivery, if sent by registered or
certified mail postage prepaid, two business days after mailing, or if sent by
overnight mail, one business day after mailing, to the other party at the
address stated above, or such other address as either party may supply in the
future.
Section 14. Survival. Notwithstanding the expiration or termination of this
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Agreement or his employment by the Corporation, the obligations of the Employee
under Sections 7, 8 and 9 hereof shall survive and remain in full force and
effect for the periods therein provided, and the obligations of the Corporation
to make all required payments hereunder shall survive and remain in full force
and effect.
Section 15. Governing Law. This Agreement shall be governed by and
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interpreted under the laws of the State of Indiana without giving effect to any
conflict of laws provisions.
Section 16. Contents of Agreement; Amendment and Assignment.
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(a) This Agreement supersedes all prior agreements, letters or term sheets
(including, but not limited to, Employee's Chief Executive Employment Agreement
that became effective on January 28, 2002) and sets forth the entire
understanding among the parties hereto with respect to the subject matter hereof
and cannot be changed, modified, extended or terminated except upon written
amendment approved by the Board and executed on its behalf by a duly authorized
officer(s). Without limitation, nothing in this Agreement shall be construed as
giving Employee any right to be retained in the employ of the Corporation beyond
the expiration of the Employment Term, and Employee specifically acknowledges
that he shall be subject to discharge by the Corporation pursuant to the terms
and conditions of this Agreement.
(b) Employee acknowledges that from time to time, the Corporation may
establish, maintain and distribute employee manuals or handbooks or personnel
policy manuals, and officers or other representatives of the Corporation may
make written or oral statements relating to personnel policies and procedures.
Such manuals, handbooks and statements are intended only for general guidance.
No policies, procedures or statements of any nature by or on behalf of the
Corporation (whether written or oral, and whether or not contained in any
employee manual or handbook or personnel policy manual), and no acts or
practices of any nature, shall be construed to modify this Agreement or to
create express or implied obligations of any nature to Employee.
(c) All of the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective heirs,
executors, administrators, legal representatives, successors and assigns of the
parties hereto, except that the duties and responsibilities of Employee
hereunder are of a personal nature and shall not be assignable or delegatable in
whole or in part by Employee.
Section 17. Severability. If any provision of this Agreement or application
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thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or
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application and shall not invalidate or render unenforceable such provision or
application in any other jurisdiction.
Section 18. Remedies, Cumulative; No Waiver. No remedy conferred upon
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either party hereto by this Agreement is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to any other remedy given hereunder or now or hereafter existing at law
or in equity. No delay or omission by the Corporation in exercising any right,
remedy or power hereunder or existing at law or in equity shall be construed as
a waiver thereof, and any such right, remedy or power may be exercised by the
Corporation from time to time and as often as maybe deemed expedient or
necessary by the Corporation in its sole discretion.
Section 19. Miscellaneous. All section headings are for convenience only.
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This Agreement may be executed in several counterparts, each of which is an
original. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
Section 20. Dispute Resolution; Arbitration. In the event a dispute between
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the parties arises under this Agreement, the parties shall submit to binding
arbitration before a single arbitrator knowledgeable of the software industry in
Indianapolis, Indiana, under the Commercial Arbitration Rules of the American
Arbitration Association, except that temporary restraining orders or preliminary
injunctions, or their equivalent, may be obtained from any court of competent
jurisdiction. The hearing proceedings in the arbitration shall be generally
governed by the Federal Rules of Civil Procedure, the Federal Rules of Evidence
and the judicial precedent interpreting those rules as the same may or may not
be determined to be applicable and appropriate by the arbitrator. The decision
of the arbitrator shall be final and binding with respect to the dispute subject
to the arbitration and shall be enforceable in any court of competent
jurisdiction. Each party shall bear its own expenses, attorneys' fees and costs
incurred in such arbitration. The arbitrator shall be required to provide
written reasons for the arbitrator's decision.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
have duly executed this Agreement.
CIT GROUP (HOLDINGS), INC.
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Chairman of the Board of Directors
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Employee
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