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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
AGREEMENT made as of the ___ day of ______________, 2000, between
Dynacs, Inc., a Delaware corporation (the "Company") and Xxxxxx Xxxxxxxxx (the
"Employee").
WHEREAS, the Employee is desirous of committing himself to serve the
Company on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Employment. The Company hereby agrees to continue to employ the
Employee and the Employee hereby agrees to continue to serve the Company, on the
terms and conditions set forth herein for the period commencing on the date
hereof and expiring on 3 years after the commencement date (the "Term").
2. Position and Duties. Employee shall serve as the Chief Financial
Officer of the Company(subject to change), reporting only to the President and
Chief Executive Officer, and shall have the powers and duties set forth in Annex
A, as may be amended from time to time by the Company, provided that such duties
are consistent with his present duties. The Employee shall devote his full
business time and efforts as shall be necessary to the proper discharge of his
duties and responsibilities under this Agreement. The Employee shall perform his
duties hereunder with due care and with professionalism commensurate with his
duties in the manner he has heretofore performed such duties and will comply
with all policies which from time to time may be in effect or adopted by the
Company. In connection with his employment by the Company, the Employee shall be
based at the Company's principal executive offices.
3. Compensation and Related Matters.
(a) Base Salary. The Employee shall receive a minimum base
salary ("Base Salary") at the annual rate of $100,000 during each year of the
Term hereof payable in equal bi-weekly installments. Any increase in Base Salary
or other compensation granted by the Compensation Committee of the Board ("the
Compensation Committee") shall in no way limit or reduce any other obligation of
the Company hereunder and, once established at an increased specified rate, the
Employee's Base Salary hereunder shall not thereafter be reduced.
(b) Bonus Payments. In addition to Base Salary, the Employee
shall be entitled to receive such bonus payments as the Compensation Committee
may determine from time to time.
(c) Expenses. During the term of his employment hereunder, the
Employee shall be entitled to receive prompt reimbursement for all properly
substantiated reasonable expenses incurred by him in performing services
hereunder in accordance with the policies and procedures presently established
by the Company.
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(d) Other Benefits. The Company shall not make any changes in
any employee benefit plans or arrangements in effect on the date hereof in which
the Employee participates which would adversely affect the Employee's rights or
benefits thereunder, unless such change occurs pursuant to a program applicable
to all Employees of the Company and does not result in a proportionately greater
reduction in the rights of or benefits to the Employee as compared with any
other Employee of the Company. The Employee shall be entitled to participate in
or receive benefits under any employee benefit plan or arrangement made
available by the Company in the future to its Employees and key management
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plan or arrangement. Nothing paid to the Employee
under any plan or arrangement presently in effect or made available in the
future shall be deemed to be in lieu of the salary payable to the Employee
pursuant to paragraph (a) of this Section 3.
(e) Vacations. The Employee shall be entitled to the number of
paid vacation days in each calendar year determined by the Company from time to
time for its senior Employee officers, but not less than four weeks in any
calendar year (prorated in any calendar year during which the Employee is
employed hereunder for less than the entire such year in accordance with the
number of days in such calendar year during which he is so employed). The
Employee shall also be entitled to all paid holidays given by the Company to its
senior Employee officers.
4. Non-Competition
(a) For the applicable period set forth below (the "Restricted
Period"), the Employee shall not, directly or indirectly, own an interest in,
manage, operate, join, control, consult, advise, or render other assistance to
or participate in or be connected with, as an officer, employee, partner,
stockholder, consultant or otherwise, any individual, partnership, firm,
corporation or other business organization or entity ("Person") that, at such
time, is engaged in any business which may be deemed competitive with the
Company's business of developing technologies in the areas of information
systems development and management and satellite and aerospace systems and
operations for U.S. Government agencies or digital color remastering and
animation (the "Restricted Business"). If the Employee is terminated by the
Company for cause pursuant to Section 8(c) or the Employee terminates his
employment other than pursuant to Section 8(d), the Restricted Period shall be
two (2) years from the termination date of the Employee's employment by the
Company. If the Employee is terminated without cause, the Restricted Period
shall be six (6) months from the termination date of the Employee's employment
by the Company, if the Employee is paid six (6) months salary as a severance
payment (payable monthly) at his highest salary rate in effect during the twelve
months prior to termination.
(b) During the Restricted Period, the Employee shall not
directly or indirectly (i) hire or employ on any basis, (ii) solicit or endeavor
to entice away from the Company or its and each of its subsidiaries, affiliates,
licensors, licensees, successors or assigns (collectively, the "Affiliates"), or
(iii) otherwise interfere with the relationship of the Company or its Affiliates
with, any person who is employed by the Company or any of its Affiliates or any
person who was employed by the Company or its Affiliates within the then most
recent six-month period. Further, the Employee shall not interfere in any manner
with any customer, consultant, supplier
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or client of the Company or its Affiliates, or any Person who was a customer,
consultant, supplier or client of the Company or its Affiliates within the then
most recent six-month period.
(c) Nothing in this Agreement shall prohibit the Employee from
acquiring or holding up to an aggregate of one per cent (1%) of any issue of
stock or securities of any company listed on a national securities exchange or
quoted on the automated quotation system of the National Association of
Securities Dealers, Inc., which company engages in Restricted Business;
provided, however, the Employee and the members of his immediate families shall
not own any voting securities or any other interest in, or lend or contribute
monies, properties or services to, any other company engaging in a Restricted
Business.
(d) The Employee acknowledges that a material breach of any of
the covenants contained in this Section 4 would result in material irreparable
injury to the Company for which there is no adequate remedy at law, that it will
not be possible to measure damages for such injuries precisely and that the
Company shall be entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction restraining the Employee from engaging in
activities prohibited by this Section 4, and such other relief as may be
required to specifically enforce any of the covenants in this Section 4.
5. Confidential Information.
(a) During the period of his employment hereunder, and at any
time after his termination of employment by the Company or the Employee, the
Employee shall not, without the written consent of the Company or a person
authorized thereby, disclose to any person, other than an employee of the
Company or a person to whom disclosure is reasonably necessary or appropriate in
connection with the performance by the Employee of his duties as an Employee of
the Company, any material confidential information obtained by him while in the
employ of the Company; provided, however, that confidential information shall
not include any information known generally to the public (other than as a
result of unauthorized disclosure by the Employee) or any information of a type
not otherwise considered confidential by persons engaged in the same business or
a business similar to that conducted by the Company.
(b) The Employee agrees: (i) not to use any such information
for himself or others; and (ii) not to take any such material or reproductions
thereof from the Company's facilities at any time or after during his employment
by the Company, except as required in the Employee's duties to the Company. The
Employee agrees immediately to return all such material and reproductions
thereof in his possession to the Company upon request and in any event upon
termination of employment.
6. Ownership of Proprietary Information.
(a) The Employee agrees that all information that has been
created, discovered or developed by the Company or its Affiliates (including,
without limitation, information relating to the development of the Company's
business created, discovered, developed or made known to the Company or the
Affiliates by Employee during the period of
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employment with the Company and information relating to Company's customers,
suppliers, consultants, and licensees) and/or in which property rights have been
assigned or otherwise conveyed to the Company or the Affiliates, shall be the
sole property of the Company or the Affiliates, as applicable, and the Company
or the Affiliates, as the case may be, shall be the sole owner of all patents,
copyrights and other rights in connection therewith. All of the aforementioned
information is hereinafter called "Proprietary Information." By way of
illustration, but not limitation, Proprietary Information includes trade
secrets, processes, discoveries, structures, inventions, designs, ideas, works
of authorship, copyrightable works, trademarks, copyrights, formulas, data,
know-how, show-how, improvements, inventions, product concepts, techniques,
information or statistics contained in, or relating to, marketing plans,
strategies, forecasts, blueprints, sketches, records, notes, devices, drawings,
customer lists, patent applications, continuation applications,
continuation-in-part applications, file wrapper continuation applications, and
divisional applications and information about the Company's or the Affiliates'
employees and/or consultants (including, without limitation, the compensation,
job responsibility and job performance of such employees and/or consultants).
(b) The Employee further agrees that at all times, both during
the period of employment with the Company and any time after his termination of
this Agreement, he will keep in confidence and trust all Proprietary
Information, and he will not use or disclose any Proprietary Information or
anything directly relating to it without the written consent of the Company or
the Affiliates, as appropriate, except as may be necessary in the ordinary
course of performing his duties hereunder. The Employee acknowledges that the
Proprietary Information constitutes a unique and valuable asset of the Company
and each Affiliate acquired at great time and expense, which is secret and
confidential and which will be communicated to the Employee, if at all, in
confidence in the course of his performance of his duties hereunder, and that
any disclosure or other use of the Proprietary Information other than for the
sole benefit of the Company or the Affiliates would be wrongful and could cause
irreparable harm to the Company or its Affiliates, as the case may be.
Notwithstanding the foregoing, the parties agree that, at all
such times, the Employee is free to use (i) information in the public domain not
as a result of a breach of this Agreement, and (ii) information lawfully
received from a third party who had the right to disclose such information.
7. Disclosure and Ownership of Inventions.
(a) During the term of employment until the Termination Date,
the Employee agrees that he will promptly disclose to the Company, or any
persons designated by the Company, all intellectual property rights, including
but not limited to, improvements, inventions, designs, ideas, works of
authorship, copyrightable works, discoveries, patents, trademarks, copyrights,
trade secrets, formulas, processes, structures, product concepts, marketing
plans, strategies, customer lists, information about the Company's or the
Affiliates' employees and/or consultants (including, without limitation, job
performance of such employees and/or consultants), techniques, blueprints,
sketches, records, notes, devices, drawings, know-how, data, whether or not
patentable, patent applications, continuation applications, continuation-in-part
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applications, file wrapper continuation applications and divisional applications
(collectively hereinafter referred to as the "Inventions"), made or conceived or
reduced to practice or learned by him, either alone or jointly with others,
during the Term.
(b) The Employee agrees that all Inventions shall be the sole
property of the Company to the maximum extent permitted by applicable law and to
the extent permitted by law shall be "works made for hire" as that term is
defined in the United States Copyright Act (17 USCA, Section 101). The Company
shall be the sole owner of all intellectual property rights, including but not
limited to, patents, copyrights, trade secret rights, and other rights in
connection therewith. The Employee hereby assigns to the Company all right,
title and interest he may have or acquire in all Inventions. The Employee
further agrees to assist the Company in every proper way (but at the Company's
expense) to obtain and from time to time enforce patents, copyrights or other
rights on said Inventions in any and all countries.
8. Termination. The Employee's employment hereunder may be terminated
without any breach of this Agreement only under the following circumstances:
(a) Death. The Employee's employment hereunder shall terminate
upon his death.
(b) Disability. If, as a result of the Employee's incapacity
due to physical or mental illness, the Employee shall have been absent from his
duties hereunder on a full time basis for 180 consecutive calendar days, and
within thirty (30) days after written notice of termination is given (which may
occur before or after the end of such 180 day period) shall not have returned to
the performance of his duties hereunder on a full time basis, the Company may
terminate the Employee's employment hereunder.
(c) Cause. The Company may terminate the Employee's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate the Employee's employment hereunder upon (A) the willful
and continued failure by the Employee to substantially perform his duties
hereunder (other than any such failure resulting from the Employee's incapacity
due to physical or mental illness) after demand for substantial performance is
delivered by the Company specifically identifying the manner in which the
Company believes the Employee has not substantially performed his duties, or (B)
the willful engaging by the Employee in misconduct which is materially injurious
to the business or financial condition of the Company, monetarily or otherwise,
or (C) the willful violation by the Employee of the provisions of Sections 5, 6
and 7 hereof provided that such violation results in material injury to the
Company. For purposes of this paragraph, no act, or failure to act, on the
Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company. Notwithstanding the foregoing,
the Employee shall not be deemed to have been terminated for "Cause" unless and
until there shall have been delivered to the Employee a copy of a resolution,
duly adopted by the affirmative vote of not less than a majority of the Members
of the Board, excluding the Employee, finding that in the good faith opinion of
the Board, the Employee was guilty of conduct set forth above in clause (A),
(B), or (C) of the preceding sentence, and specifying the particulars thereof in
detail.
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(d) Termination by the Employee. The Employee may terminate
his employment hereunder for Good Reason. For purposes of this Agreement "Good
Reason" shall mean (A) a change in control of the Company (as defined below),
(B) a reduction in the Employee's base salary as it may have been increased from
time to time, or any other failure by the Company to comply with Section 3
hereof, or (C) failure of the Company to obtain the assumption of the agreement
to perform this Agreement by any successor as contemplated in Section 10 hereof.
For purposes of this Agreement, a "change in control of the
Company" shall mean a change in control of a nature that would be required to be
reported in response to Item 5(f) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act");
provided that, without limitation, such a change in control shall be deemed to
have occurred if (Y) any "person" (as such term is used in Section 13(d) and
14(d) of the Exchange Act), other than the Company or any "person" who on the
date hereof is a director or officer of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding securities, or (Z)
during any period of two consecutive years during the term of this Agreement,
individuals who at the beginning of such period constitute the Board cease for
any reason to constitute at least a majority thereof, unless the election of
each director who was not a director at the beginning of such period has been
approved in advance by directors representing at least two-thirds of the
directors then in office who were directors at the beginning of the period.
(e) Notice of Termination. Any termination of the Employee's
employment by the Company or by the Employee (other than termination pursuant to
subsection (a) above) shall be communicated by written Notice of Termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated.
(f) Date of Termination. "Date of Termination" shall mean (i)
if the Employee's employment is terminated by his death, the date of his death,
(ii) if the Employee's employment is terminated pursuant to subsection (b)
above, thirty (30) days after Notice of Termination is given (provided that the
Employee shall not have returned to the performance of his duties on a full-time
basis daring such thirty (30) day period), (iii) if the Employee's employment is
terminated pursuant to subsection (c) above, the date specified in the Notice of
Termination, and (iv) if the Employee's employment is terminated for any other
reason, the date an which a Notice of Termination is given; provided that if
within thirty (30) after any Notice of Termination is given the party receiving
such Notice of Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be the date on which
the dispute is finally determined, either by mutual written agreement of the
parties, by a binding and final arbitration award or by a final judgment order
or decree of a court of competent jurisdiction (the time for appeal therefrom
having expired and no appeal having been perfected).
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9. Compensation Upon Termination or During Disability.
(a) If the Employee's employment shall be terminated by reason
of his death, the Company shall pay to such Person as he shall designate in a
notice filed with the Company, or, if no such person shall be designated, to his
estate as a lump sum death benefit, his full Base Salary to the date of his
death in addition to any payments the Employee's spouse, beneficiaries or estate
may be entitled to receive pursuant to any pension or employee benefit plan or
life insurance policy presently maintained by the Company, and such payments
shall fully discharge the Company's obligations hereunder.
(b) During any period that the Employee fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness
(provided that the Employee shall have furnished the Company with a written
statement from a qualified doctor to such effect and provided, further, that at
the Company's request and expense the Employee shall submit to an examination by
a doctor selected by the Company and such doctor shall have concurred in the
conclusion of the Employee's doctor), the Employee shall continue to receive his
full Base Salary and bonus payments until the Employee's employment is
terminated pursuant to Section 8(b) hereof, or until the Employee terminates his
employment pursuant to Section 8(d) hereof, whichever first occurs. After
termination, the Employee shall be paid 100% of his Base Salary at the rate in
effect at the time Notice of Termination is given for one year and thereafter an
annual amount equal to 75% of such Base Salary for the remainder of the Term
hereunder less, in each case, any disability payments otherwise payable by or
pursuant to plans provided by the Company and actually paid to the Employee in
substantially equal monthly installments.
(c) If the Employee's employment shall be terminated for
Cause, the Company shall pay the Employee his full Base Salary through the Date
of Termination at the rate in effect at the time Notice of Termination is given
and the Company shall have no further obligations to the Employee under this
Agreement.
(d) If (A) in breach of this Agreement, the Company shall
terminate the Employee's employment other than pursuant to Sections 8(b) or 8(c)
hereof (it being understood that a purported termination pursuant to Section
8(b) or 8(c) hereof which is disputed and finally determined not to have been
proper shall be a termination by the Company in breach of this Agreement) or (B)
the Employee shall terminate his employment for Good Reason, then
the Company shall pay as severance pay to the Employee on the fifth day
following the Date of Termination, a lump sum amount equal to six months salary
at the highest rate in effect during the twelve (12) months immediately
preceding the Date of Termination.
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(e) Unless the Employee is terminated for Cause, the Company
shall maintain in full force and effect, for the continued benefit of the
Employee to the last day of the Term all employee benefit plans and programs in
which the Employee was entitled to participate immediately prior to the Date of
Termination provided that the Employee's continued participation is possible
under the general terms and provisions of such plans and programs. In the event
that the Employee's participation in any such plan or program is barred, the
Company shall arrange to provide the Employee with benefits substantially
similar to those which the Employee would otherwise have been entitled to
receive under such plans and programs from which his continued participation is
barred.
(f) The Employee shall not be required to mitigate the amount
of any payment provided for in this Section 9 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Section 9 be
reduced by any compensation earned by the Employee as the result of employment
by another Company after the Date of Termination, or otherwise.
10. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Employee, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Company in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment for
Good Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this Section
10 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Employee should die
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while any amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Employee's devisee, legatee,
or other designee or, if there be no such designee, to the Employee's estate.
11. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows: If to the Employee:
Xxxxxx Xxxxxxxxx
_____________________
_____________________
If to the Company:
Dynacs Inc.
00000 X.X. Xxxxxxx 00 Xxxxx
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Corporate Secretary
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
12. Severability of Provisions. If any provision of this Agreement
shall be declared by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced in whole or in part, the remaining conditions and
provisions or portions thereof shall nevertheless remain in full force and
effect and enforceable to the extent they are valid, legal and enforceable, and
no provision shall be deemed dependent upon any other covenant or provision
unless so expressed herein.
13. Entire Agreement; Modification. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof, and the parties
hereto have made no agreements, representations or warranties relating to the
subject matter of this Agreement which are not set forth herein. No modification
of this Agreement shall be valid unless made in writing and signed by the
parties hereto.
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14. Non-Waiver. The failure of any party to insist upon the strict
performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
therewith, and said terms, conditions and provisions shall remain in full force
and effect. No waiver of any term or condition of this Agreement on the part of
either party shall be effective for any purpose whatsoever unless such waiver is
in writing and signed by such party.
15. Remedies for Breach. The Employee understands and agrees that any
breach of Sections 4,5, 6 or 7 of this Agreement by the Employee would result in
irreparable damage to the Company and to the Affiliates, and that monetary
damages alone would not be adequate and, in the event of such breach, the
Company shall have, in addition to any and all remedies at law, the right to an
injunction, specific performance or other equitable relief necessary to prevent
or redress the violation of the Company's obligations under such Sections.
16. Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of Florida without
regard to such State's principles of conflict of laws. The parties irrevocably
and unconditionally agree that the exclusive place of jurisdiction for any
action, suit or proceeding ("Actions") relating to this Agreement shall be in
the courts of the United States of America sitting in the State of Florida or,
if such courts shall not have jurisdiction over the subject matter thereof, in
the courts of the State of Florida sitting therein, and each such party hereby
irrevocably and unconditionally agrees to submit to the jurisdiction of such
courts for purposes of any such Actions. Each party irrevocably and
unconditionally waives any objection it may have to the venue of any Action
brought in such courts or to the convenience of the forum. Final judgment in any
such Action shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment, a certified or true copy of which shall be conclusive
evidence of the fact and the amount of any indebtedness or liability of any
party therein described.
17. Headings; Construction. The headings of paragraphs are inserted for
convenience and shall not affect any interpretation of this Agreement. The
parties hereto agree that should an occasion arise in which interpretation of
this Agreement becomes necessary, such construction or interpretation shall not
presume that the terms hereof be more strictly construed against one party by
reason of any rule of construction or authorship.
18. Counterparts. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
19. Relationship of the Parties. Except as otherwise provided herein,
no party shall have any right, power or authority to create any obligation,
express or implied, on behalf of any other party. Nothing in this Agreement is
intended to create or constitute a joint venture, partnership or revenue sharing
arrangement between the parties hereto or persons referred to herein.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
By:___________________________
Name:
Title:
______________________________
Xxxxxxxx X. Xxxxx
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ANNEX "A"
EMPLOYEES DUTIES
Xxxxxx Xxxxxxxxx
Chief Financial Officer
- Responsible for the design, installation and management of the
Company's accounting and management information systems and such other
duties consistent with the Employee's overall duties as may be
presented by the President and Treasurer from time to time.
- Responsible for preparation of financial statements for internal and
external uses, including public company filings.
- Responsible for investor relations.
- Coordinates the development of corporate and operating budgets.
- Accumulates and analyzes cost data, providing management with timely
financial reporting.
- Provides management with information for specific issue resolution and
special decisions.
- Consults with management concerning the meaning of accounting
information.
- Responsible for the planning/administering, preparation and filing of
corporate taxes and returns.
- Coordinates both Internal and Outside Audits.
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