EMPLOYMENT AGREEMENT
--------------------
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of September
01, 2003, by and between TouchVision, Inc., a California corporation (the
"Company"), and Xxxxx Xxxxx, an individual (the "Executive"). Certain
definitions are set forth in Section 5 of this Agreement.
In consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as follows:
1. Employment.
(a) Position and Duties. The Company agrees to employ Executive
and Executive accepts such employment for the period beginning as of the
date hereof and ending upon termination pursuant to Section 1(c) hereof
(the "Employment Period"). Executive shall serve as Chief Technology
Officer of the Company and shall have all of the duties, powers and
responsibilities customarily delegated and assigned therewith, subject to
the management and control of the Company's Board of Directors (the
"Board"). Executive shall not be required to relocate without Executive's
consent.
(b) Compensation.
(i) Salary. During the Employment Period, the Company will
pay Executive a base salary (the "Annual Base Salary") of USD $97,500 per
annum through October 3, 2003 and $120,000 per annum beginning October 4,
2003 (payable per Company's payroll policy) or such other higher rate as
the Board may designate from time to time. The Board will review
Executive's Annual Base Salary at least once during each Fiscal Year,
beginning with Fiscal Year 2004. Executive's Annual Base Salary for any
partial Fiscal Year will be prorated based upon the number of days elapsed
in such Fiscal Year.
(ii) Bonus. Within the first 90 days of the date hereof,
the Board will determine a bonus plan for Executive, which shall be
effective for Fiscal Year 2004 and all subsequent Fiscal Years of the
Company (and portions thereof) during the Employment Period. The bonus
plan shall take into account the proposed budget for the applicable Fiscal
Year and other reasonable objectives determined by the Board. Upon
completion of Fiscal Year 2004 and each subsequent fiscal year of the
Company, the Board will award a bonus to Executive an amount to be
determined in accordance with the bonus plan criteria, as set forth on
Exhibit A which shall give effect to the Company's achievement of the
budgetary and other reasonable objectives identified in the bonus plan for
the applicable Fiscal Year (the "Annual Bonus").
(iii) Benefits. During the Employment Period, Executive
will be entitled to such automobile advances commensurate with advances
received by Executive in his prior employment with the Company. During the
Employment Period, Executive shall also be allowed to participate, on the
same basis and subject to the same conditions generally as other Executives
of Trinity Companies, Inc. ("Parent"), in all general employee benefit
plans and programs, including improvements or modifications of the same,
which are made available by Parent to all or substantially all of Parent's
employees. Such benefits, plans, and programs may include, without
1
limitation, sick leave, medical, health, and dental care, life insurance,
disability protection, and Section 401(k) plans. Except as expressly set
forth herein, nothing in this Agreement is to be construed or interpreted
to provide greater rights, participation, coverage, or benefits under such
benefit plans or programs than provided to similarly-situated employees
pursuant to the terms and conditions of such benefit plans and programs.
Executive shall be entitled to four weeks of compensated vacation time
during each year of employment, which shall accrue on a pro rata basis from
the date employment commences under this Agreement. The carryover of
unused vacation time from year to year shall be in accordance with Company
policy. In addition, during the 2003 calendar year, Executive shall
receive options to purchase 250,000 shares of Parent's common stock
pursuant to Parent's stock option plan to be approved by Parent's board of
directors. Executive shall receive additional options to acquire a similar
number of shares of Parent common stock during each subsequent calendar
year of employment. Such options shall vest over a period of one year.
(c) Term and Termination. The Employment Period will commence
on the execution date hereof and continue thereafter for two (2) years (the
"Term") unless earlier terminated pursuant to the first to occur of (i)
Executive's resignation, death or Disability, or (ii) termination by the
Company with or without Cause.
(d) Severance.
(i) Termination Without Cause. If Executive's employment
is terminated by the Company without Cause or if Executive resigns for Good
Reason, then during the remainder of the Term commencing on the date of
termination, the Company shall pay Executive severance payments, at a rate
equal to Executive's Annual Base Salary, payable in equal installments on
the Company's regular salary payment dates (the "Severance Payments") and
allow Executive and Executive's qualified dependents to continue
participating in all of the Company's medical, disability and life
insurance plans on the same basis as Executive was participating prior to
termination (e.g., if Executive's participation was at the Company's sole
expense prior to termination, it will be at the Company's sole expense
during the severance period). In addition, at such time as the Annual
Bonus which would otherwise have been payable following the 12 month period
during which Executive was terminated, the Company shall pay Executive a
pro rata portion of the Annual Bonus based upon (i) the number of days of
Executive's employment during the period in which the Annual Bonus is
determined divided by (ii) 365 days.
(ii) Death or Disability. If Executive's employment is
terminated due to Executive's death or Disability, then during the sixth
month period commencing on the date of termination, the Company shall pay
Executive (or to Executive's spouse if so directed in writing by Executive
and in the absence of such direction to Executive's estate) at a rate equal
to Executive's Annual Base Salary, payable in equal installments on the
Company's regular salary payment dates (the "Severance Payments") and,
during the six month period commencing on the date of termination, allow
Executive and Executive's qualified dependents to continue participating in
all of the Company's medical, disability and life insurance plans on the
same basis as Executive was participating prior to termination. In
addition, at such time as the Annual Bonus which would otherwise have been
payable to Executive during the 12 month period immediately following the
date of termination would have been paid, the Company shall pay Executive a
pro rata portion of the Annual Bonus based upon the number of days of such
12 month period prior to the termination divided by 365 days.
2
(iii) Resignation. If Executive's employment is terminated
due to Executive's resignation without Good Reason, then Executive shall be
entitled to receive Executive's Annual Base Salary through the date of
termination. All of Executive's rights to Annual Base Salary and benefits
hereunder which accrue or become payable after the date of such termination
of the Employment Period shall cease upon such termination. All of
Executive's rights to the Annual Bonus which accrue or become payable
before or after the date of such resignation shall terminate and cease upon
such resignation.
(iv) Termination With Cause. If Executive's employment is
terminated by the Company with Cause, then Executive shall be entitled to
receive Executive's Annual Base Salary through the date of termination.
All of Executive's rights to Annual Base Salary and benefits hereunder
which accrue or become payable after the date of such termination of the
Employment Period shall cease upon such termination. All of Executive's
rights to the Annual Bonus which accrue or become payable before or after
the date of such termination with Cause shall terminate and cease upon such
termination.
2. Confidential Information. Executive acknowledges that the
confidential and proprietary information, observations and data of the
Company obtained by Executive during the course of Executive's performance
under this Agreement concerning the business and affairs of the Company and
its Affiliates are the property of the Company, including information
concerning acquisition opportunities in or reasonably related to the
Company's business or industry of which Executive becomes aware during the
Employment Period. Therefore, Executive agrees that Executive will not
disclose to any unauthorized person outside the ordinary course of business
or use for Executive's own account any of such information, observations or
data without the Board's written consent, unless and to the extent that the
aforementioned matters become generally known to and available for use by
the public other than as a result of Executive's acts or omissions to act.
Executive agrees to deliver to the Company at the termination of the
Employment Period, or at any other time the Company may reasonably request
in writing, all memoranda, notes, plans, records, reports and other
documents (and copies thereof) relating to the business of the Company and
its Affiliates (including, without limitation, all acquisition prospects,
lists and contact information) which Executive may then possess or have
under Executive's control.
3. Noncompetition and Nonsolicitation.
(a) Noncompetition. Executive acknowledges that in the
course of Executive's employment with the Company Executive will become
familiar with the Company's trade secrets and with other confidential
information concerning the Company and that Executive's will be of special
and unique value to the Company. Therefore, Executive agrees that, during
the Employment Period and for one year thereafter (the "Noncompete
Period"), Executive shall not directly or indirectly own, manage, control,
participate in, consult with, render services for, or in any manner engage
in any business that provides services similar or identical to the services
provided by the Company or any of its Affiliates at the time of such
termination; provided, however, if the Company terminates Executive's
employment without Cause, or if Executive resigns for good reason, then the
provisions of this Section 3(a) shall terminate one month after the final
payment of the Severance Payments provided in Section 1(d)(i) hereof,
unless the Company and Executive mutually extend the Noncompete Period in
which case the Company shall continue to pay monthly Severance Payments and
the Noncompete Period shall be extended to include each month during which
Severance Payments are made.
3
(b) Nonsolicitation. During the term of the Employment
Period and the Noncompete Period, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any
employee of the Company or any of its Affiliates to leave the employ of the
Company or any of its Affiliates, or in any way interfere with the
relationship between the Company or any of its Affiliates and any such
employee thereof, (ii) hire or engage, or offer to hire or engage, any
employee of the Company or any of its or Affiliates, or (iii) induce or
attempt to induce any customer, supplier, licensee or other business
relation of the Company or any of its Affiliates to cease doing business
with the Company or such Affiliate, or in any way interfere with the
relationship between any such customer, supplier, licensee or business
relation and the Company or any of its Affiliates.
(c) Enforcement. If, at the time of enforcement of Section
2 or 3 of this Agreement, a court holds that the restrictions stated herein
are unreasonable under circumstances then existing, the parties hereto
agree that the maximum duration, scope or geographical area reasonable
under such circumstances shall be substituted for the stated period, scope
or area and that the court shall be allowed to revise the restrictions
contained herein to cover the maximum duration, scope and area permitted by
law. Because Executive's services are unique and because Executive has
access to confidential information, the parties hereto agree that money
damages would be an inadequate remedy for any breach of this Agreement.
Therefore, in the event a breach or threatened breach of this Agreement,
the Company or its successors or assigns may, in addition to other rights
and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in
order to enforce, or prevent any violations of, the provisions hereof
(without posting a bond or other security).
4. Board of Directors. The Company shall cause the number of seats
on its board of directors to remain at five (5) for the duration of the
Term. Employee during the first two years of the Term shall have one (1)
seat as a regular member of the Company's Board of Directors, unless
Employee is terminated for cause or Employee resigns without Good Reason.
5. Definitions.
"Affiliate" of any particular person or entity means any other
person or entity controlling, controlled by or under common control with
such particular person or entity.
"Cause" means (i) the conviction of a felony or a crime involving
moral turpitude or the commission of any act constituting intentional
dishonesty or fraud with respect to the Company or any of its Affiliates or
any of their customers or suppliers, (ii) failure to repeatedly perform
duties of the office held by Executive as reasonably directed by the Board,
(iii) recklessness or willful misconduct with respect to the Company or any
of its Affiliates, or (iv) any material breach of Section 2 or 3 of this
Agreement; provided, however, that in the case of (ii) through (iv), such
failure or breach is not cured (or such recklessness or willful misconduct
does not cease) within 30 days after Executive receives written notice
thereof from the Board.
4
"Disability" means the inability, due to illness, accident,
injury, physical or mental incapacity or other disability, of Executive to
carry out effectively his or her duties and obligations to the Company or
to participate effectively and actively in the management of the Company
for a period of at least 180 days (whether or not consecutive) during any
365-day period, as determined in the reasonable judgment of the Board after
receipt of competent medical advice.
"Fiscal Year" means the year that ends on June 30.
"Good Reason" means any of the following: (i) a reduction by the
Company in Executive's then Annual Base Salary, (ii) the relocation of
Executive to a location outside the Long Beach-North Orange County area
(excluding travel on Company business to an extent substantially consistent
with Executive's past business travel obligations), unless Executive has
consented in writing to such relocation; (iii) the removal of Executive
from, or failure to reelect Executive to, his executive position and/or as
a director of the Company, other than a removal for Cause, without his
consent; or (iv) any material breach by the Company of any material
provision of this Agreement. With respect to (iv) above, the event
prompting Executive's termination hereunder must continue for more than
thirty (30) days after notice given to the Company, such notice to set
forth in reasonable detail the nature of such event.
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or
any department, agency or political subdivision thereof.
6. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered if delivered personally or by
telecopy or seven (7) days after being mailed by registered or certified
mail (postage prepaid, return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice, except that notices of changes of address shall
be effective upon receipt):
If to the Company:
------------------
Trinity Learning Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5
with a copy to:
---------------
Xxxxxxx Xxxxx & Xxxxxxx
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Executive:
----------------
Xxxxx Xxxxx
TouchVision, Inc.
00000 Xxxxx Xxx., Xxxxx X, Xxxxxxx XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
7. General Provisions.
(a) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
(b) Complete Agreement. This Agreement, the exhibits attached
hereto, those documents expressly referred to herein and other documents
executed by the Company and Executive of even date herewith embody the
complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
(c) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which
taken together constitute one and the same agreement.
(d) Successors and Assigns. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be
enforceable by Executive, the Company, and their respective successors and
assigns; provided that the rights and obligations of Executive under this
Agreement shall not be assignable.
(e) Choice of Law. All questions concerning the construction,
validity and interpretation of this Agreement and any exhibits hereto will
be governed by and construed in accordance with the internal laws of the
State of California, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of California or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California.
6
(f) Remedies. Each of the parties to this Agreement will be
entitled to enforce its rights under this Agreement specifically, to
recover damages and costs (including attorney's fees) caused by any breach
of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that any party may in its sole discretion apply to any
court of law or equity of competent jurisdiction (without posting any bond
or deposit) for specific performance and/or other injunctive relief in
order to enforce or prevent any violations of the provisions of this
Agreement.
(g) Amendment and Waiver. The provisions of this Agreement may
be amended and waived only with the prior written consent of the Company
and Executive.
[Signature Page Follows]
7
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the date first written above.
COMPANY: EXECXUTIVE:
TouchVision, Inc.
_________________________________ __________________________________
By: _____________________________
Its: ____________________________
8
EXHIBIT A
Bonus Plan Criteria
- Revenue and profitability based on TouchVision fiscal year basis
- 250,000 incentive shares available during Year 1 and 125,000 incentive
shares during Year 2
- Incentive shares earned based on achieving revenue levels.
- Cash bonus earned based on achieving revenue levels subject to
revenues being profitable including the cash bonus. Cash bonus will be
reduced if necessary to the level needed to achieve profitability.
Year 1 Revenue
$M Shares Cash Bonus
--------------------------------------------------------------------------
2.0 90,000 $0
--------------------------------------------------------------------------
2.2 80,000 $8,300
--------------------------------------------------------------------------
2.4 80,000 $8,300
--------------------------------------------------------------------------
2.6 $8,400
--------------------------------------------------------------------------
>2.6 $10,000 for each $200K increment of revenue
--------------------------------------------------------------------------
Year 2 Revenue
$M Shares Cash Bonus
--------------------------------------------------------------------------
2.6 45,000 $0
--------------------------------------------------------------------------
2.8 40,000 $8,300
--------------------------------------------------------------------------
3.0 40,000 $8,300
--------------------------------------------------------------------------
3.2 $8,400
--------------------------------------------------------------------------
>3.2 $10,000 for each $200K increment of revenue
--------------------------------------------------------------------------
