EXHIBIT 10.17
MODIFICATION OF EMPLOYMENT AGREEMENT
Xxxx X. Xxxxxxxx ("Xxxxxxxx"), Galaxy Registration, Inc. ("Galaxy"), and
T/SF Communications Corporation ("T/SF") have agreed to modify Xxxxxxxx'x
Employment Agreement, dated March 17, 1994, with Galaxy, as of August 1, 1995,
in order to enable Xxxxxxxx to work under T/SF's direction at other T/SF-
controlled ventures and to withdraw from his operational duties at Galaxy. This
Agreement sets forth the terms of this new relationship.
1. XXXXXXXX'X CONTINUED EMPLOYMENT BY GALAXY
Xxxxxxxx will spend approximately 8-10 hours per week on Galaxy business
and will report to a Galaxy facility as needed. While Xxxxxxxx is to serve in
an advisory (and not operational) capacity at Galaxy, he will also be available
for specific tasks assigned to him by Xxxxxx X. Xxxxxx, Xx. ("Xxxxxx"),
Executive Vice President of T/SF, and, with Xxxxxx'x concurrence, other Galaxy
division level managers. His specific assignments will vary from month to
month, but they might, for example, include:
* Sales and marketing (presentations, visits and writing contracts and
articles)
* Gospel-spreader of the value of Expocard (at, for example, AWMA and Store
Fixtures)
* Training and orientation of Galaxy's new CFO and COO
* IAEM involvement (from Board and Committees to staffing our booth at Expo)
* Visible exhibition industry technology guru (replacing Xxxx at RCS and
others)
* Corporate high level liaison for major, multiple show accounts (Epic,
Xxxxxx Xxxxxxx, ITS)
* Helping grow Galaxy Europe and related overseas development work
* New venture and new product exploration and analysis
* Participating in the housing/registration integration project (Anasazi-ITS-
CVBs-Epic)
Xxxxxxxx will consult with Xxxxxx at the end of each month (beginning on or
about August 2, 1995) regarding the Galaxy activities in the upcoming month that
Xxxxxx wants Xxxxxxxx to pursue. Xxxxxxxx will provide monthly reports to
Xxxxxx on the status of these projects, including recommendations about how his
time might best be used.
The terms of Xxxxxxxx'x employment by Galaxy (and his herein agreed-to
activities for National Employment Screening Services, Inc. ("NESS"), a
subsidiary of T/SF) will remain the same as those in his current Employment
Agreement with Galaxy, other than as herein provided (including a shift in his
working hours, a pay reduction (as provided below), and his pulling away
completely from Galaxy operational matters), and the provisions hereof shall be
deemed to amend and supersede any conflicting provisions in Xxxxxxxx'x
Employment Agreement and any other
agreements among the parties. The following are some of the key non-financial
issues among Galaxy, Laughlin, NESS, and T/SF and how they will be treated:
* Xxxxxxxx will have voice mail and e-mail access to Galaxy's networks
* Xxxxxxxx will retain his Galaxy fringe benefits at the level of other
employees of Galaxy (insurance, vacation, sick leave, 401(k), etc.)
* Galaxy or T/SF will pay for expenses associated with Xxxxxxxx'x business
activities on behalf of Galaxy, NESS or other T/SF related projects
* Xxxxxxxx will continue to have exclusive use of his laptop computer and
docking station
* Xxxxxxxx will have an office at a Galaxy location (though not necessarily
his current office)
* Xxxxxxxx will have reasonable access to Galaxy supplies and equipment
To the extent that, pursuant to the above, Galaxy incurs any material expenses
which are properly attributable to T/SF or NESS, Xxxxxxxx will keep a reasonable
accounting thereof.
2. ANCILLARY AGREEMENTS AND GALAXY INCENTIVE PROGRAMS RELATED TO XXXXXXXX'X
EMPLOYMENT
The following items (executed in connection with the original sale of
Galaxy to T/SF pursuant to that certain Agreement for Purchase and Sale of
Stock, dated March 17, 1994 (the "Purchase Agreement")) will, except as herein
specifically provided, be unchanged as the result of the restructuring of
Xxxxxxxx'x relationship with Galaxy and T/SF:
* Xxxxxxxx'x Noncompetition Agreement, dated March 17, 1994; provided, that
the activities conducted by T/SF through its NESS subsidiary are
specifically included as activities of T/SF with which Xxxxxxxx may not
compete per the terms of the Noncompetition Agreement.
* Terms of T/SF restricted stock and stock options held by Xxxxxxxx
* T/SF's Promissory Note, dated March 17, 1994, to Xxxxxxxx in the original
principal amount of $900,000
* Lease Agreement between Galaxy, as lessee, and Xxxxxxxx, as lessor
* Guaranty and Indemnification Agreement, dated March 17, 1994, by T/SF in
favor of Xxxxxxxx
Upon this Agreement becoming effective, T/SF has agreed that the "Primary
Amount" (as defined in the Purchase Agreement) portion of the "Contingent
Consideration" (as defined in the Purchase Agreement) payable to Xxxxxxxx (being
$2,300,000) is, unless T/SF makes the election provided in the next succeeding
paragraph, deemed fully earned upon this Agreement becoming effective. Thus,
the $2,100,000 balance of this amount due Xxxxxxxx (after applying the $200,000
prepayment described below) will be paid in accord with the schedule in
Subsection 2.02(b)(ii)(A) of the Purchase Agreement; provided, that the
prepayment which could have been due April 1, 1996, in the amount of $400,000,
shall be reduced to $200,000. In addition, the $200,000
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advance paid by T/SF on or about April 1, 1995, against the total $2,300,000
Primary Amount is henceforth not recoverable by T/SF and is deemed a prepayment.
Despite the preceding paragraph, should Galaxy's performance deteriorate
over the next several months, T/SF, in its sole discretion, may cancel this
Agreement in its entirety and return full operating authority at Galaxy (subject
to the terms of the Purchase Agreement and Xxxxxxxx'x Employment Agreement) to
Xxxxxxxx so that he can attempt to restore profits at Galaxy and thereby reach
his full incentive payout potential. Were such an election to occur, Xxxxxxxx'x
original Employment Agreement at Galaxy would be reinstated in lieu of any
conflicting terms in this Agreement. T/SF must elect to cancel this Agreement
in accord with this paragraph no later than December 31,1995, or its option to
do so is void.
3. EMPLOYMENT OF XXXXXXXX BY T/SF AND NESS
Xxxxxxxx will become an active participant in T/SF's NESS project, and,
other than time which he is requested by Xxxxxx to spend on Galaxy, will devote
all of his working time to helping turn this venture around by substantially
increasing its sales. His general duties will include:
* Generating revenues to achieve agreed-to targets through the sale of NESS
products and services
* Creating and implementing new sales and marketing initiatives
* Making high level sales calls at major accounts and sales prospects
* Helping to refine the NESS product line to respond to the marketplace
* Participating as an active Advisory Board member
In his activities for NESS, Xxxxxxxx will be subject to the direction of
Xxxxxx X. Xxxxxxx, Xx. ("Xxxxxxx"), Chairman and CEO of T/SF, and will work side
by side with Xxxxx Xxxxxxx ("Corbier"), General Manager of NESS. It is the
intention of the parties that Xxxxxxxx work under the direction of Xxxxxxx
pursuant to plans proposed by Xxxxxxxx and agreed to by Xxxxxxx from time to
time. In that regard, Xxxxxxxx and Xxxxxxx shall discuss, from time to time,
appropriate spending authority for Xxxxxxxx and any expenditures either within
such agreed-to limitations or otherwise approved by Xxxxxxx shall be reimbursed
to Xxxxxxxx by T/SF or Galaxy, as appropriate. For preliminary purposes, it is
understood that Xxxxxxxx shall have the authority to make individual or related
groups of expenditures of up to $750, including travel, marketing, etc. type
expenditures. In addition, it is intended that Xxxxxxxx'x initial sales thrust
will be primarily related to acquiring the endorsement of trade associations for
the offering of the NESS products and services (hereafter referred to together
as "NESS products") to their members (with the specific terms of any
arrangements with the associations to be subject to Xxxxxxx'x approval). In
connection with Xxxxxxxx'x marketing to trade associations, he is authorized to
offer to the association and/or "test" members, up to $1,000 (in costs to NESS)
of NESS products for purposes of introducing the NESS products and proving their
efficacy to the association and its members. Subject to the preceding sentence,
Xxxxxxxx shall be authorized to offer NESS products for sale only at prices
which are approved, from time to time, by either Xxxxxxx or
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Corbier. Xxxxxxxx understands that the intent of T/SF and NESS is to set prices
at a level and NESS product offerings of a mix which are intended to maximize
long-term profitability rather than simply short-term sales. However, T/SF and
NESS will act reasonably with Xxxxxxxx in providing him with appropriate tools,
in the reasonable judgment of Xxxxxxx, to make such sales, including sales
materials, product packages, and, in special circumstances, additional price
relief or other incentives. The point of this provision regarding price and
products offered is to recognize that the purpose of T/SF and NESS is to
maximize long-term profitability and not, necessarily, to ensure that Xxxxxxxx
meets his "milestones" under paragraph 4 below. Xxxxxxxx understands and accepts
that pricing and product issues could be perceived as preventing his maximizing
revenues for sales initiated by him in the 17 months of this Agreement, but
accepts the unequivocable right of T/SF and NESS to set prices and product mix
and to require him to abide by such prices in making sales.
4. XXXXXXXX'X COMPENSATION AND PERFORMANCE INCENTIVES
Xxxxxxxx hereby accepts a 25% salary cut (to $75,000 per annum) as the
result of agreeing to this relationship. However, the parties hope that this
lost income will be more than made up by the incentives listed below. Xxxxxxxx
will be paid all of his $75,000 salary by Galaxy, which will then be
appropriately reimbursed by T/SF or NESS. Thus, Xxxxxxxx will be able to
continue to participate in Galaxy's 401(k) and other plan.
T/SF will no longer be responsible to Xxxxxxxx for the "Annual Amount" or
the "Xxxxxx-Galaxy Joint Amount" (as each is defined in the Purchase Agreement)
triggered by Galaxy's and Xxxxxx'x earnings in 1995 and 1996, pursuant to
Subsection (B) and (C), respectively, of Subsection 2.02 (b)(ii) of the Purchase
Agreement and Xxxxxxxx hereby waives any right to the same (which total
$400,000), except if his original Employment Agreement is reactivated as
provided in paragraph 2 above. In lieu of these payments, Xxxxxxxx can earn one
or more bonuses totalling $400,000 based on Xxxxxxxx'x achieving specific
objectives ("milestones") for NESS.
Xxxxxxxx will begin immediately immersing himself in the marketing issues
associated with NESS and its products with the intent that he will be
sufficiently knowledgeable in the next 30 days to begin negotiations on
appropriate milestones for such bonus(es) to be achieved. It is the intent of
the parties that the bonus(es) will be paid based on revenues achieved by
Xxxxxxxx'x sales efforts through 12/31/96, with the agreed milestones being
achieved by Xxxxxxxx'x activities through specific date or dates triggering (or
not triggering, if not met) the payment of the applicable bonus on such date.
In establishing the milestones, it is intended that each succeeding bonus
require an ever-increasing result from Xxxxxxxx'x activities. It would be
intended that the final milestone for the payment of at least a portion of the
total bonus be set at a level where all parties would agree that Xxxxxxxx'x
activities "hit a home run" for NESS. In developing these milestones, it is
intended that the parties act in good faith in setting milestones such that
Xxxxxxxx'x achievement of the agreed-to bonus amounts is based on perceived
risks comparable to that existing today with Xxxxxxxx'x herein waived
possibility of earning equivalent bonuses if
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the provisions under the Purchase Agreement for the Annual Amount and the
Galaxy-Xxxxxx Joint Amount for 1995 and 1996 had remained in effect.
In addition to this bonus program, T/SF hereby agrees to provide Xxxxxxxx
with an equity incentive for outstanding performance. This incentive will be in
the form of "non-qualified" options to purchase up to 20,000 shares of T/SF
common stock. The options will vest as provided below and will remain
convertible after vesting for five years. The option exercise price will be the
closing price of the Stock on the American Stock Exchange on August 1, 1995. It
is the intent of the parties to reach agreement to allow 10,000 of such options
to become vested in Xxxxxxxx if certain milestones to be agreed upon are
achieved by April 30, 1996, and for the remaining 10,000 in options to vest if
certain other milestones are achieved by December 31, 1996. If the agreed-to
milestones are not reached as of the dates provided in the preceding sentence,
the applicable options shall lapse. It is the intent of the parties to agree on
milestones which, comparing to the milestones to be agreed upon for the $400,000
bonus program above, would provide that, for the first 10,000 options to be
earned, the milestone would be of a degree of difficulty of achievement of
between 50% and 75% of the final milestone described above and that the
milestone for the remaining 10,000 share option be set at a level of degree of
difficulty somewhat in excess of that for the final milestone described above.
5. GENERAL TERMINATION AND MODIFICATION PROVISIONS
If T/SF and Xxxxxxxx have not reached agreement on the milestones for
purposes of paragraph 4 above by September 1, 1995, either party may terminate
this Agreement, in which case it shall be null and void ab initio and shall be
deemed to have never become effective.
T/SF reserves the right to radically alter or close NESS if the business
continues to fall well sort of T/SF's expectations. If T/SF either (i) closes
NESS or (ii) determines in good faith that Xxxxxxxx'x activities on behalf of
NESS have not been conducted in a manner satisfactory to T/SF, then T/SF will so
notify Xxxxxxxx and, as a result, Xxxxxxxx will forfeit any remaining
incentives, including the balance of the $400,000 cash incentives and the
unearned portion of 20,000 option shares.
If the NESS project is closed by T/SF or Xxxxxxxx'x activities for NESS are
terminated as provided in the preceding paragraph, Xxxxxxxx will continue to be
available for 8-10 hours per week at Galaxy until 12/31/96 unless both parties
agree to a modification of this provision, which could include Xxxxxxxx working
in another T/SF venture. His Galaxy pay for this work will be $25,000 per
annum.
Xxxxxxxx'x employment agreement with T/SF, Galaxy and NESS automatically
terminates on 12/31/96. All parties will attempt to agree, on or before
November 1, 1996, upon the terms of any extension of Xxxxxxxx'x employment,
whether with Galaxy, NESS, or some other T/SF company.
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6. DIRECTOR APPROVAL
This Agreement shall be null and void and shall not become effective if not
approved by the Board of Directors of T/SF at its Annual Meeting on August 1,
1995.
Executed on this 24th day of July, 1995, in Frederick, Maryland, and Tulsa,
Oklahoma.
For: T/SF COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
For: GALAXY REGISTRATION, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxx X. Xxxxxxxx
------------------------------------
XXXX X. XXXXXXXX
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[T/SF COMMUNICATIONS LOGO APPEARS HERE]
Exhibit 10.17 con't
December 20, 1995
Xx. Xxxx Xxxxxxxx
Galaxy Registration, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Re: Determination of "milestones" for Employment Agreement
Dear Xxxx:
This letter will set forth our understanding regarding the setting of
so-called "milestones" pursuant to that certain Modification of Employment
Agreement, dated July 24, 1995, effective as of August 1, 1995, which amended
and superseded that certain Employment Agreement, dated March 17, 1994 (the
"Modified Employment Agreement").
By execution of this letter agreement, you, Galaxy Registration, Inc.
("Galaxy"), and T/SF Communications Corporation ("T/SF"), agree to amend the
Modified Employment Agreement as follows, effective August 1, 1995:
1. Superseding of Prior Agreement. The third and fourth paragraphs of
------------------------------
section 4 of the Modified Employment Agreement are hereby eliminated and
the provisions of paragraphs 2 and 3 below are substituted therefor.
2. Cash Bonuses. Xxxxxxxx shall earn cash bonuses as of the times and
-------------
subject to the conditions set forth in the following table:
Date for
determining Maximum Date for
payment due payment due Milestones for partial payments payment
----------- ----------- ------------------------------- --------
December 31, 1995 $100,000 . 5 association endorsements /1/ earns February 15,
$55,000 1996
. 7 association endorsements /1/ earns
$75,000
Xx. Xxxx Xxxxxxxx
December 20, 1995
Page 2
June 30, 1996 $100,000 . 5 participating industries /2/ earns July 31, 1996
$55,000
. 7 participating industries /2/ earns
$75,000
. 9 participating industries /2/ earns
$100,000
December 31, 1996 $200,000 . $500,000 in revenue /3/ in 1996 earns March 31,
$120,000 1997
. $600,000 in revenues /3/ in 1996 earns
$150,000
. $700,000 in revenues /3/ in 1996 earns
$200,000
/1/ As association endorsement shall mean a recognized significant trade
association which has given its permission to utilize its name in surveying
its members on behalf of NESS by December 31, 1995, and for which initial
surveys have actually been transmitted to members by January 31, 1996.
/2/ A "participating industry" shall mean an industry served by an endorsing
association in which at least 25 association members have (i) executed
agreements with NESS to participate with and utilize NESS services in the
hiring, and (ii) utilized NESS services beyond any start-up or discounted
initiation programs which are provided as beginning inducements, i.e., each
such member has ordered at least one review of an employee application at
normal NESS prices applicable to that industry.
/3/ Revenues shall be based on customers of NESS who (i) begin utilizing the
NESS services in 1996 and (ii) are members of associations which have
endorsed the NESS product as herein contemplated.
3. Options. Xxxxxxxx shall be awarded options, which, when awarded, shall
--------
be immediately vested and exercisable for a period of five years after
vesting, at $10.50 per share (the closing price of the stock on the
American Stock Exchange on August 1, 1995), with such options to be
"non-qualified," in the following amounts and at the following times,
subject to reaching the milestones described below:
Xx. Xxxx Xxxxxxxx
December 20, 1995
Page 3
Maximum
Date which milestone is number
to have been achieved of option
to receive options shares Milestones for earning partial grants
----------------------- --------- -------------------------------------
June 30, 1996 10,000 . 200 new member - clients /1/ earns 3,000 shares
. 400 new member - clients earns 6,000 shares
. 600 new member - clients earns 10,000 shares
December 31, 1996 10,000 . $300,000 in pre-tax income /2/ earns 3,000 shares
. $400,000 in pre-tax income earns 6,000 shares
. $500,000 in pre-tax income earns 10,000 shares
/1/ A "new member-client" is a customer which qualifies under the definitions
set forth in paragraph 2 above in footnote 3 to count toward the number of
members signed up in an industry.
/2/ Pre-tax income shall be determined in accordance with general accepted
accounting principles applied on a basis which counts as revenues all
revenues described in footnote 4 of paragraph 2 above and as expenses the
salary of Xxxxxxxx, salary of any employees dedicated to Xxxxxxxx, all
related fringe benefits of such employees and Xxxxxxxx, out-of-pocket costs
incurred by Xxxxxxxx on behalf of NESS, and the cost to NESS of providing
the products sold by Xxxxxxxx. In determining the cost of products sold by
NESS, NESS and Xxxxxxxx shall agree, from time to time, as to the
appropriate allocation of general overhead and other costs of NESS to
particular products which are sold through Xxxxxxxx'x association
activities. It is the intent of the parties that the general accounting
shall be conducted in a manner consistent with 1996 Plan for "Association
Activities" approved by the Board of Directors of NESS at its meeting on
December 12, 1995.
4. Other changes. Except as specifically provided herein, the Modified
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Employment Agreement shall remain in full force and effect and shall be
applicable to the activities of the parties described therein.
Xx. Xxxx Xxxxxxxx
December 20, 1995
Page 4
If the above correctly sets forth your understanding of our agreement,
please execute in the space provided below.
T/SF COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------------------
Xxxxxx X. Xxxxxxx, Xx., Chairman,
President and Chief Executive Officer
The above is agreed to and accepted this 22nd day of December, 1995, effective
August 1, 1995.
/s/ Xxxx X. Xxxxxxxx
------------------------------------------
Xxxx X. Xxxxxxxx
The above is agreed to and accepted this 20th day of December, 1995, effective
August 1, 1995.
GALAXY REGISTRATION, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------------
Xxxxxx X. Xxxxxx, Xx., President
The undersigned acknowledges and agrees to the obligations imposed on it by the
foregoing.
NATIONAL EMPLOYMENT SCREENING
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------------
Xxxxxx X. Xxxxxxx, Xx., Chairman,
and Chief Executive Officer
