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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of
this 30th day of March 2001, by and between XXXXXX X. XXXXXXXX, an individual
resident of the State of Georgia ("Employee") and AHL SERVICES, INC., a Georgia
corporation (the "Employer").
WITNESSETH:
WHEREAS, Employer desires to employ Employee, and Employee
desires to be employed by Employer, on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
SECTION 1 EMPLOYMENT.
Subject to the terms hereof, the Employer hereby employs Employee, and
Employee hereby accepts such employment. Employee will serve as Executive Vice
President and Chief Financial Officer or in such other executive capacity as the
Chief Executive Officer ("the CEO") may hereafter from time to time determine.
Employee agrees to devote his full business time and best efforts to the
performance of the duties that Employer may assign Employee from time to time.
SECTION 2 TERM OF EMPLOYMENT.
The term of Employee's employment hereunder (the "Term") shall be from
May 30, 2000 until the earlier of (a) June 1, 2003 or (b) the occurrence of any
of the following events:
(i) The death or total disability of Employee (total disability
meaning the failure to fully perform his normal required
services hereunder for a period of three (3) months during any
consecutive twelve (12) month period during the term hereof,
as determined by the CEO, by reason of mental or physical
disability);
(ii) The termination by Employer of Employee's employment
hereunder, upon prior written notice to Employee, for "good
cause", as determined by the CEO. For purposes of this
Agreement, "good cause" for termination of Employee's
employment shall exist (A) if Employee is convicted of, pleads
guilty to, or confesses to any felony or any act of fraud,
misappropriation or embezzlement, (B) if Employee has engaged
in a dishonest act to the damage or prejudice of Employer or
an affiliate of Employer, or in conduct or activities
materially damaging to the property, business, or reputation
of Employer or an affiliate of Employer, (C) if Employee fails
to comply with the terms of this Agreement, and, within thirty
(30) days after written notice from Employer of such failure,
Employee has not corrected such failure or, having once
received such notice of failure and having so
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corrected such failure, Employee at any time thereafter again
so fails, or (D) if Employee violates any of the provisions
contained in Sections 5 of this Agreement; or
(iii) The termination of this Agreement by either party upon at
least ninety (90) days prior written notice.
SECTION 3 COMPENSATION.
3.1 Term of Employment. Employer will provide Employee with the
following salary, expense reimbursement and additional employee benefits during
the term of employment hereunder:
(a) Salary. Employee will be paid a salary (the "Salary") of no
less than Three Hundred Fifty Thousand Dollars ($350,000) per
annum, less deductions and withholdings required by applicable
law. The Salary shall be paid to Employee in equal monthly
installments (or on such more frequent basis as other
executives of Employer are compensated). The Salary shall be
reviewed by the CEO of Employer on at least an annual basis.
(b) Bonus. Employee will be entitled to an annual bonus (the
"Bonus") with a target of 50% of Salary, which Bonus shall be
dependent upon Employer's financial performance versus budget
and achievement of personal objectives established for
Employee by Employer. The Bonus shall be paid promptly upon
the availability of annual financial results (which is
expected to occur in the first quarter of each year).
(c) Car Allowance. Employee shall receive a car allowance of Six
Hundred Dollars ($600.00) per month.
(d) Vacation. Employee shall receive four (4) weeks vacation time
per calendar year during the term of this Agreement. No more
than five (5) unused vacation days in any calendar year may be
carried over to subsequent years.
(e) Expenses. Employer shall reimburse Employee for all reasonable
and necessary expenses incurred by Employee at the request of
and on behalf of Employer.
(f) Benefit Plans. Employee may participate in such medical,
dental, disability, hospitalization, life insurance and other
benefit plans (such as pension and profit sharing plans) as
Employer maintains from time to time for the benefit of other
executives of Employer, on the terms and subject to the
conditions set forth in such plans.
3.2 Effect of Termination. Except as hereinafter provided, upon
the termination of the employment of Employee hereunder for any reason, Employee
shall be entitled to all compensation and benefits earned or accrued under
Section 3.1 as of the effective date of
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termination (the "Termination Date"), but from and after the Termination Date no
additional compensation or benefits shall be earned by Employee hereunder.
Employee shall be deemed to have earned any Bonus payable with respect to the
calendar year in which the Termination Date occurs on a prorated basis (based on
the number of days in such calendar year through and including the Termination
Date divided by 365). Any such Bonus shall be payable on the date on which the
Bonus would have been paid had Employee continued his employment hereunder. If
Employee's employment hereunder is terminated by Employer pursuant to Section
2(b)(iii) hereof, then, in addition to any other amount payable hereunder,
Employer shall continue to pay Employee his normal Salary pursuant to Section
3.1 (a) for the one year period immediately following the Termination Date (on
the same basis as if Employee continued to serve as an employee hereunder for
such one year period). All stock options granted to Employee pursuant to Section
4 hereof shall be governed in accordance with Section 4.2 hereof upon
termination of Employee's employment.
SECTION 4 STOCK OPTIONS.
4.1 Term of Employment. So that Employee can share in the increase
in value of the business of Employer over time, Employee will be granted stock
options as follows:
(a) Option Grant. Effective on a date to be determined by the
Board of Directors, Employee shall be granted stock options to
purchase 250,000 shares of common stock priced at the closing
level of the grant date. These options shall vest as set forth
in the Stock Option Certificate that will be provided
separately. Employee may also receive additional grants of
options to purchase stock of Employer at the sole discretion
of the Compensation Committee of the Board of Directors of
Employer. The options granted under this Section 4.1(a) will
expire ten years from the date of grant, except as otherwise
provided in Section 4.2.
(b) Sale or Merger. All options granted to Employee pursuant to
this Agreement will become exercisable in accordance with the
terms provided in the Option Certificate.
(c) Stock Splits and Recapitalization. The number of shares of
common stock issuable upon exercise of options granted hereby
and the exercise price of such options shall be automatically
adjusted to reflect any change in the capitalization of
Employer, including, but not limited to, such changes as stock
dividends, stock splits or recapitalizations. If any
adjustment under this Section would create the right of
Employee to acquire a fractional share of stock, such
fractional share shall be disregarded and the number of shares
of common stock subject to the options shall be the next lower
number of whole shares of common stock, rounding all fractions
downward.
4.2 Termination of Employment. The grant of stock options to
Employee under this Agreement shall not restrict or in any manner affect
Employer's right to terminate the employment of Employee at any time, with or
without cause, as herein provided. If Employee's
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employment is terminated pursuant to Section 2(b)(i) hereof or if Employee's
employment is terminated by Employer pursuant to Section 2(b)(iii), all options
granted to Employee pursuant to Section 4.1 (a) hereof shall immediately become
exercisable upon such termination. In the case of a termination pursuant to
Section 2(b)(i) hereof, the options will expire in accordance with their
respective scheduled expiration dates. In the case of a termination by Employer
pursuant to Section 2(b)(iii) hereof, the options will expire on the first
anniversary of the effective date of the termination of Employee's employment
hereunder. Upon the death of Employee, any options which Employee would
otherwise be entitled to exercise hereunder may be exercised by his personal
representatives or heirs, as applicable. If Employee's employment is terminated
by Employer pursuant to Section 2(b)(ii) or by Employee pursuant to Section
2(b)(iii), those options which are exercisable as of the date of such
termination shall be exercisable for a period of one year after such termination
(and all other options not then exercisable shall be forfeited as of such date),
and after such one year period, all unexercised options will expire.
4.3 Exercise. The options granted under Section 4.1 may be
exercised by Employee upon five business days' written notice of exercise to
Employer, specifying the number of shares to be purchased and the total purchase
price, accompanied by a check to the order of Employer, in the payment of such
price. The exercise price of the options granted under Section 4.1 shall be
payable in cash only. If Employer is required to withhold on account of any
present or future tax imposed as result of any option exercise, the notice of
exercise shall be accompanied by a check to the order of Employer for payment of
the amount of such withholding.
4.4 Nontransferable. No option granted under Section 4.1 shall be
transferable by Employee other than by will or by the laws of descent and
distribution, and the options granted under Section 4.1 shall be exercisable
during Employee's lifetime only by Employee. The options shall not be otherwise
transferred, assigned, pledged, hypothecated or disposed of in any way, whether
by operation of law or otherwise.
4.5 Securities Act. THE OPTIONS AND THE SHARES OF COMMON STOCK
(THE "SHARES") ISSUABLE UPON EXERCISE OF THE OPTIONS HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY APPLICABLE
STATE SECURITIES LAWS. THE OPTIONS AND SHARES ARE OFFERED PURSUANT TO EXEMPTIONS
PROVIDED BY SECTION 4(2) OF THE ACT AND CERTAIN RULES AND REGULATIONS
PROMULGATED PURSUANT THERETO. THE SHARES MAY NOT BE TRANSFERRED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO EMPLOYER AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
4.6 Non-Incentive Options. The options granted under Section 4.1
are not intended to be, and shall not be treated as, incentive stock options
under Section 422 of the Internal Revenue Code of 1986, as amended.
SECTION 5 PARTIAL RESTRAINT ON POST-TERMINATION COMPETITION
SHALL APPLY:
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5.1 Definitions. For the purposes of this Section 5, the following
definitions shall apply:
(a) "Company Activities" means any business or service
routinely engaged in by Employer.
(b) "Competitor" means any business, individual,
partnership, joint venture, association, firm,
corporation or other entity, other than the Employer
or its affiliates or subsidiaries, engaged, wholly or
partly, in Company Activities.
(c) "Competitive Position" means (i) the direct or
indirect ownership or control of all or any portion
of a Competitor; or (ii) any employment or
independent contractor arrangement with any
Competitor whereby Employee will serve such
Competitor in any managerial capacity.
(d) "Confidential Information" means any confidential,
proprietary business information or data belonging to
or pertaining to Employer that does not constitute a
"Trade Secret" (as hereinafter defined) and that is
not generally known by or available through legal
means to the public, including, but not limited to,
information regarding Employer's customers or
actively sought prospective customers, suppliers,
manufacturers and distributors gained by Employee as
a result of his employment with Employer.
(e) "Customer" means actual customers or actively sought
prospective customers of Employer during the Term.
(f) "Noncompete Period" or "Nonsolicitation Period" means
the period beginning the date hereof and ending on
the second anniversary of the termination of
Employee's employment with Employer.
(g) "Territory" means the area within a thirty-five (35)
mile radius of any corporate office of Employer or
any of its subsidiaries, affiliates or divisions.
(h) "Trade Secrets" means information or data of or about
Employer, including but not limited to technical or
non-technical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings,
processes, financial data, financial plans, products
plans, or lists of actual or potential customers,
clients, distributees or licensees, information
concerning Employer's finances, services, staff,
contemplated acquisitions marketing investigations
and surveys, that (i) derive economic value, actual
or potential, from not being generally known to, and
not being
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readily ascertainable by proper means by, other
persons who can obtain economic value from their
disclosure or use; and (ii) are the subject of
efforts that are reasonable under the circumstances
to maintain their secrecy.
(i) "Work Product" means any and all work product,
property, data documentation or information of any
kind, prepared, conceived, discovered, developed or
created by Employee for Employer or its affiliates,
or any of Employer's or its affiliates' clients or
customers.
5.2 Trade Name and Confidential Information.
(a) Employee hereby agrees that (i) with regard to each
item constituting all or any portion of the Trade
Secrets, at all times during the Term and all times
during which such item continues to constitute a
Trade Secret under applicable law; and (ii) with
regard to any Confidential Information, during the
Term and the Noncompete Period:
(i) Employee shall not, directly or by assisting
others, own, manage, operate, join, control
or participate in the ownership, management,
operation or control of, or be connected in
any manner with, any business conducted
under any corporate or trade name of
Employer or name similar thereto, without
the prior written consent of Employer;
(ii) Employee shall hold in confidence all Trade
Secrets and all Confidential Information and
will not, either directly or indirectly,
use, sell, lend, lease, distribute, license,
give, transfer, assign, show, disclose,
disseminate, reproduce, copy, appropriate or
otherwise communicate any Trade Secrets or
Confidential Information, without the prior
written consent of Employer; and
(iii) Employee shall immediately notify Employer
of any unauthorized disclosure or use of any
Trade Secrets or Confidential Information of
which Employee becomes aware, Employee shall
assist Employer, to the extent necessary, in
the procurement or any protection of
Employer's rights to or in any of the Trade
Secrets or Confidential Information.
(b) Upon the request of Employer and, in any event, upon
the termination of Employee's employment with
Employer, Employee shall deliver to Employer all
memoranda, notes, records, manuals and other
documents, including all copies of such materials and
all documentation prepared or produced in connection
therewith, pertaining to the performance of
Employee's services hereunder or Employer's business
or containing Trade
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Secrets or Confidential Information, whether made or
compiled by Employee or furnished to Employee from
another source by virtue of Employee's employment
with Employer.
(c) To the greatest extent possible, all Work Product
shall be deemed to be "work made for hire" (as
defined in the Copyright Act, 17 U. S. C. X.xx.xx.
101 et seq., as amended) and owned exclusively by
Employer. Employee hereby unconditionally and
irrevocably transfers and assigns to Employer all
rights, title and interest Employee may have in or to
any and all Work Product, including, without
limitation, all patents, copyrights, trademarks,
service marks and other intellectual property rights.
Employee agrees to execute and deliver to Employer
any transfers, assignments, documents or other
instruments which Employer may deem necessary or
appropriate to vest complete title and ownership of
any and all Work Product, and all rights therein,
exclusively in Employer.
5.3 Noncompetition.
(a) The parties hereto acknowledge that Employee is
conducting Company Activities throughout the
Territory. Employee acknowledges that to protect
adequately the interest of Employer in the business
of Employer it is essential that any noncompete
covenant with respect thereto cover all Company
Activities and the entire Territory.
(b) Employee hereby agrees that, during the Term and the
Noncompete Period, Employee will not, in the
Territory, either directly or indirectly, alone or in
conjunction with any other party, accept, enter into
or take any action in conjunction with or in
furtherance of a Competitive Position. Employee shall
notify Employer promptly in writing if Employee
receives an offer of a Competitive Position during
the Noncompete Term, and such notice shall describe
all material terms of such offer. Nothing contained
in this Section 5 shall prohibit Employee from
acquiring not more than five percent (5%) of any
company whose common stock is publicly traded on a
national securities exchange or in the
over-the-counter market.
5.4 Nonsolicitation During Employment Term. Employee hereby agrees
that Employee will not, during the Term, either directly or indirectly, alone or
in conjunction with any other party:
(a) solicit, divert or appropriate or attempt to solicit,
divert or appropriate, any Customer for the purpose
of providing the Customer with services or products
competitive with those offered by Employer during the
Term; or
(b) solicit or attempt to solicit any employee,
consultant, contractor or other personnel of Employer
or any of its affiliates or subsidiaries to
terminate,
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alter or lessen that party's affiliation with
Employer or such affiliate or subsidiary or to
violate the terms of any agreement or understanding
between such employee, consultant, contractor or
other person and Employer.
5.5 Nonsolicitation During Nonsolicitation Period. Employee hereby
agrees that Employee will not, during the Nonsolicitation Period, either
directly or indirectly, alone or in conjunction with any other party:
(a) solicit, divert or appropriate or attempt to solicit,
divert or appropriate, any Customer for the purpose
of providing the Customer with services or products
competitive with those offered by Employer during the
Term; provided, however, that the covenant in this
clause shall limit Employee's conduct only with
respect to those Customers with whom Employee had
substantial contact (through direct or supervisory
interaction with the Customer or the Customer's
account) during a period of time up to but no greater
than two (2) years prior to the last day of the Term;
or
(b) solicit or attempt to solicit any "key" employee,
consultant, contractor or other personnel of Employer
or any of its affiliates or subsidiaries residing at
the time of the solicitation in the Territory to
terminate, alter or lessen that party's affiliation
with Employer or such affiliate or subsidiary or to
violate the terms of any agreement or understanding
between such employee, consultant, contractor or
other person and Employer. For purposes of this
clause (b), "key" employees, consultants,
contractors, or other personnel are those with
knowledge of or access to Trade Secrets and
Confidential Information.
SECTION 6 MISCELLANEOUS.
6.1 Severability. The covenants in this Agreement shall be
construed as covenants independent of one another and as obligations distinct
from any other contract between Employee and Employer. Any claim that Employee
may have against Employer shall not constitute a defense to enforcement by
Employer of this Agreement.
6.2 Survival of Obligations. The covenants in Section 5 of this
Agreement shall survive termination of Employee's employment, regardless of who
causes the termination and under what circumstances.
6.3 Notices. Any notice or other document to be given hereunder by
any party hereto to any other party hereto shall be in writing and delivered in
person or by courier, by telecopy transmission or sent by any express mail
service, postage or fees prepaid at the following addresses:
EMPLOYER
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AHL Services, Inc.
Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, XX
Xxxxx 0000, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Chief Executive Officer
EMPLOYEE
Xxxxxx X. Xxxxxxxx
AHL Services, Inc.
Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, XX
Xxxxx 0000, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
or at such other address or number for a party as shall be specified by like
notice. Any notice which is delivered in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or its agent.
6.4 Binding Effect. This Agreement inures to the benefit of, and
is binding upon, Employer and their respective successors and assigns, and
Employee, together with Employee's executor, administrator, personal
representative, heirs, and legatees.
6.5 Entire Agreement. This Agreement is intended by the parties
hereto to be the final expression of their agreement with respect to the subject
matter hereof and is the complete and exclusive statement of the terms thereof,
notwithstanding any representations, statements or agreements to the contrary
heretofore made. This Agreement supersedes and terminates all prior employment
and compensation agreements, arrangements and understandings between or among
Employer and Employee. This Agreement may be modified only by a written
instrument signed by all of the parties hereto.
6.6 Governing Law. This Agreement shall be deemed to be made in,
and in all respects shall be interpreted, construed, and governed by and in
accordance with, the laws of the State of Georgia. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority or by any
board of arbitrators by reason of such party or its counsel having or being
deemed to have structured or drafted such provision.
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6.7 Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
6.8 Specific Performance. Each party hereto hereby agrees that any
remedy at law for any breach of the provisions contained in this Agreement shall
be inadequate and that the other parties hereto shall be entitled to specific
performance and any other appropriate injunctive relief in addition to any other
remedy such party might have under this Agreement or at law or in equity.
6.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
WITNESS WHEREOF, the parties hereto have executed this Agreement the date first
above written.
AHL SERVICES, INC.
By:
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XXXXX X. XXXXXXX
CHIEF EXECUTIVE OFFICER
EMPLOYEE
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XXXXXX X. XXXXXXXX
