Exhibit 10.2
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement"), dated as of March 15, 2002, is made by
and between ROY ISRAEL (the "Executive") and XXXXXXXXXXXX.XXX, INC., a Delaware
corporation (the "Company").
WHEREAS, the Executive is currently the Chief Executive Officer and
President and Chairman of the Board of Directors of the Company;
WHEREAS, it is important to the Company that it secure the benefit of the
Executive's services, experience and loyalty beyond the termination of the
current employment agreement; and
WHEREAS, Executive is willing to continue to provide his services on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto, subject to the terms and conditions set
forth below and intending to be legally bound, agree as follows:
1. Employment.
(a) General. The Company hereby agrees to continue to employ the
Executive and the Executive agrees to continue to be employed, upon the terms
and conditions herein set forth, as Chief Executive Officer and President of the
Company. At all times during the Employment Term, as defined below, the
Executive shall be the most senior executive officer of the Company. The
Executive shall devote substantially all of his efforts to the Company, but
during the term of this Agreement he is allowed to engage in other businesses
that do not compete with the Company.
(b) Duties. The duties of the Executive shall include primary
responsibility for the administration, organizational structure, strategic
direction and overall management of the Company and such other responsibilities
as the Board of Directors of the Company may reasonably delegate to the
Executive. All employees of the Company shall report to the Executive.
(c) Board Membership. At all times during the Employment Term, the
Company shall nominate the Executive to be elected as a member of the Board of
Directors of the Company at each time there is an election for Board members. In
addition, the Executive, if elected to the Board, shall be appointed as the
Chairman of the Board of Directors unless a majority of the Board believes it
would not be in the best interests of the shareholders to appoint the Executive
to such position.
2. Term of Employment. The Company hereby employs the Executive and the
Executive shall serve in the employ of the Company under this Agreement for a
period effective July 1, 2002 (the "Commencement Date") and extending through
and including June 30, 2007 (such date and the last day of any extended term of
employment pursuant to this Section 2 being
referred to as the "Termination Date"), unless sooner terminated hereunder (the
"Initial Term"). The term of this Agreement shall be automatically renewed for
successive one (1) year periods (the "Renewal Term") unless either the Executive
or the Company gives written notice of non-renewal at least ninety (90) days in
advance of the then current Termination Date. (The Initial Term and the Renewal
Term shall be collectively referred to herein as the "Employment Term"). At the
end of the Initial Term, the Base Salary, as defined below, for the Renewal
Term, and each Renewal Term thereafter, may be renegotiated by the Company and
the Executive, but in no event shall the Base Salary for the Renewal Term be
less than the increased amount after applying Section 3(a).
3. Compensation and Other Benefits. The Company shall pay and provide the
following compensation and other benefits to the Executive during the Employment
Term:
(a) Base Salary. If the Company has not been approved to be a
service provider ("NF Provider") for the Motor Vehicle Insurance Arbitration
Program with the New York State Department of Insurance or any similar state
program prior to the Commencement Date, then the Company shall pay to the
Executive a minimum annual base salary of $301,101 (the "Base Salary") for the
first year of the Employment Term. If at any time during the Employment Term or
prior thereto, the Company is approved to be an NF Provider, then the Base
Salary in effect at such time shall be immediately increased by $100,000 from
that day forward. In the event the Company ceases to be an NF Provider then the
Company and Executive may negotiate an appropriate decrease in the Base Salary,
assuming that the revenues or profit from being an NF Provider are not replaced
from other sources, however, the decrease, if any, shall not be more than
$100,000. Effective on each anniversary of the Commencement Date during the
Employment Term, the Base Salary shall be increased in an amount which is the
greater of (i) six percent (6%) per annum and (ii) such amount which reflects
increases in the Urban Consumer Price Index for all Urban Consumers for the New
York metropolitan area (or any successor Consumer Price Index), based on data
published by the Bureau of Labor Statistics of the United States Department of
Labor for the period that corresponds with the preceding twelve month period.
Such Base Salary shall be paid in accordance with Company policy.
(b) Fringe Benefits.
(i) The Executive shall be entitled to receive twenty (20)
days paid vacation for each twelve (12) month period (the "Vacation Time")
during the Employment Term.
(ii) The Executive shall receive full health and dental
insurance coverage for the Executive and his family for which the Company shall
pay the premium. The Company shall pay Executive a gross-up payment necessary to
cover any tax liability he incurs in connection with the payment of such health
and dental insurance premiums by the Company.
(iii) The Company shall lease an automobile, to be chosen by
the Executive, for his use or the Company may reimburse the Executive for the
lease of an automobile, at the Executive's option. The monthly lease payment by
the Company for such automobile shall not exceed one thousand dollars ($1,000),
provided, however, that if the monthly lease payment is greater than one
thousand dollars ($1,000), the Executive acknowledges that the Company shall
only pay one thousand dollars ($1,000) towards the
2
monthly lease payment. In addition, the Company shall pay, or reimburse
Executive promptly after receiving supporting documentation relating thereto,
all taxes and all expenses associated with the lease and use of such automobile.
(iv) The Executive shall be entitled to participate in all
employee benefit plans, programs and arrangements of the Company now or
hereafter made available to senior executives of the Company on a basis which is
no less favorable than is made available to any other senior executive of the
Company.
(v) During the Employment Term, the Company shall maintain key
man life insurance on the life of the Executive for the benefit of the Company
of at least one million dollars ($1,000,000). In addition, during the Employment
Term, the Company shall provide life insurance to the Executive for the benefit
of the Executive's estate in an amount to be determined solely by Executive. The
premiums on all such policies shall not aggregate more than $15,000 for each
year of this Agreement. The Company shall pay a tax gross-up payment to the
Executive for taxes, if any, on such premiums. All rights of Executive with
respect to any prior life insurance policies shall be governed by the prior
employment agreement.
(vi) During the Employment Term, the Company shall maintain a
long-term disability policy for the Executive which shall provide for disability
coverage of 60% of Base Salary. The Company will structure its payments for such
policy so that the receipt of the benefit by the Executive shall not be taxable.
In addition, if the Executive is taxed upon the reimbursement or payment by the
Company of such premiums, then the Company shall pay a tax gross-up payment to
compensate the Executive for such taxes, if any.
(c) Business Expenses. During the Employment Term, the Company shall
promptly reimburse the Executive for all ordinary and necessary travel expenses,
business expenses, and other disbursements incurred by him for or on behalf of
the Company, in the performance of his duties hereunder. The Executive shall
provide the Company with an accounting of his expenses, including written
documentation when available, which accounting shall clearly reflect which
expenses are reimbursable by the Company.
(d) Bonus.
(i) If the Company is not approved to be an NF Provider, then
Executive shall be entitled to receive an annual bonus (the "Bonus") in
accordance with the criteria set forth in Schedule A hereto, which shall be paid
within 30 days after the completion of the annual audit. In addition, if all
three maximum criteria (as described in Schedule A) are met or exceeded in a
fiscal year, then the Company shall pay Executive an additional $100,000 bonus
as long as the Company has a positive pre-tax income ("PTI") or is breakeven
after paying the additional bonus. To the extent a portion of the additional
bonus can be paid without reducing the Company's PTI to a loss then such amount
shall be paid to the Executive. All additional bonuses shall be paid at the same
time as the Bonus.
(ii) If the Company is approved to be an NF Provider, then the
Bonus criteria set forth in Schedule B hereto shall apply once the Company has
been an NF Provider for a full fiscal year. In addition, Mr. Israel shall
receive a one-time bonus payment of $100,000
3
payable after the Company has been approved to be an NF Provider for a
consecutive twelve month period. Further, if all three maximum criteria (as
described in Schedule B) are met in a fiscal year then the Company shall pay the
Executive an additional $100,000 bonus as long as the Company has a positive PTI
or is breakeven after paying the additional bonus. To the extent a portion of
the additional bonus can be paid without reducing the Company's PTI to a loss
then such amount shall be paid to the Executive. All additional bonuses shall be
paid at the same time as the Bonus. In the event the Company is no longer an NF
Provider then the Company and Executive shall negotiate appropriate changes to
the Bonus criteria set forth in Schedule B hereto.
(iii) The Executive may also receive an annual bonus which may
consist of stock options, cash or any combination thereof at the sole discretion
of the Board of Directors or any Committee of the Board of Directors vested with
the power to determine such grants.
(e) Options. The Company hereby grants to Executive options (the
"Bonus Options") to purchase an aggregate of 150,000 shares of common stock of
the Company as of March 15, 2002. The Bonus Options shall have the following
terms: (i) 20,000 options with an exercise price equal to the closing bid price
on March 15, 2002 as reported by the Nasdaq Small Cap Market, with 10,000
options thereof vesting on March 15, 2003 and the remaining 10,000 options
vesting on March 15, 2004 as long as the Executive is employed by the Company on
such dates, and all 20,000 options shall expire on March 15, 2012; and (ii)
130,000 options with an exercise price equal to 110% of the closing bid price on
March 15, 2002 as reported by the Nasdaq Small Cap Market, with 65,000 options
vesting on March 15, 2003 and the remaining 65,000 options vesting on March 15,
2004 as long as the Executive is employed by the Company on such dates, and all
130,000 options will expire on March 15, 2007.
4. Location. Except when travelling, the Executive shall work in the
Company's New York offices or in any other location selected by the Company with
the Executive's prior written approval.
5. Termination of Employment.
(a) Termination For Cause. During the Employment Term, the Executive
may be terminated "For Cause" as that term is defined herein. "For Cause" shall
mean (i) willful misconduct by the Executive in the performance of his duties
hereunder; or (ii) the Executive is convicted of a felony. In no event shall the
results of the Company's operations or business decisions made by the Executive
constitute For Cause. The Company shall immediately notify the Executive of its
intention to terminate this Agreement For Cause (the "Cause Notice"). Any
determination that For Cause exists shall only be made after the Executive shall
have been given a reasonable opportunity to present his view of relevant facts
and circumstances to the Board of Directors of the Company and the Company shall
have made a reasonable independent and impartial investigation thereof. The
Executive shall be given twenty (20) days from receipt of the Cause Notice in
which to present to the Board of Directors his view of the relevant facts. If
this Agreement is terminated pursuant to Section 5(a) hereof, then this
Agreement shall terminate on the date set by the Board of Directors.
4
(b) Termination Other Than For Cause. If at anytime during the
Employment Term, the Company desires to terminate the Agreement other than For
Cause ("Termination Other Than For Cause") then the Executive shall be entitled
to receive the greater of (i) his Base Salary plus the Severance Bonus Amount,
as defined herein, for the remainder of the Employment Term and (ii) three times
the sum of the Base Salary and the Severance Bonus Amount. The Severance Bonus
Amount shall mean one hundred and fifteen percent (115%) of the Bonus paid to
the Executive for the full fiscal year immediately prior to termination. The
entire severance amount owed to the Executive shall be paid during the one-year
period following the termination of the Agreement at the same intervals as the
Base Salary had been paid prior to such date. In addition, all unvested options
shall immediately vest and, at the Executive's option, the Company shall pay to
the Executive the difference between the exercise price of all of his options
tendered to the Company in accordance with this section and the closing price as
reported by the Nasdaq Small Cap Market, or whatever exchange or national market
the Company's common stock is traded on at such time, on the greater of (x) the
date of termination of the Executive's employment, and (y) the Tender Date, as
defined herein. Such payment shall be made only to the extent such closing price
is greater than the exercise price of the options so tendered. The Executive
shall have ninety (90) days from the date of termination of employment to make
an election by giving notice of tender of the options to the Company (the
"Tender Notice"). The Tender Notice shall state (A) the number of options being
tendered, and (B) the price to be used for calculating the payment, which shall
either be the closing price on the termination of employment date or the date of
the Tender Notice (the "Tender Date"). The Company shall make the necessary
payment within five (5) business days of the Tender Date. The options with which
the Executive has tendered shall thereafter be cancelled. The Company is
obligated to maintain all other benefits under the Employment Term for any
period remaining under the Employment Term or for a period of one (1) year from
the date of termination, whichever is longer. The Executive shall not be
required to mitigate.
(c) Change-in-Duties. If at any time during the Employment Term, the
Executive's duties are changed ("Change-in-Duties") so that he is no longer the
most senior executive officer of the Company, then such change may be deemed by
the Executive as a material breach of the Agreement by the Company. In such
event, the Executive may terminate this Agreement immediately by giving written
notice to the Company and Executive shall receive as severance compensation the
same severance package as set forth in Section 5(b) hereof.
(d) Permanent Disability. If during the Employment Term, the
Executive shall become Permanently Disabled (as defined below), the Company
shall give thirty (30) day written notice of termination and this Agreement
shall terminate on the last day of such period. "Permanently Disabled" shall
mean that the Executive is eligible to receive all permanent disability benefits
under the permanent disability policies maintained by the Company for the
Executive. Evidence of such disability shall be certified by a physician
reasonably acceptable to both the Executive and the Company. The Executive shall
be entitled to receive (i) any Base Salary owed through the date of termination,
(ii) the Base Salary and Severance Bonus Amount for a period of one (1) year
following the date of termination, which shall be paid in accordance with the
Company's regular payroll policy, (iii) reimbursement for any business expenses
incurred and unpaid prior to termination, (iv) all options granted to Executive
shall immediately vest, (v) all health, dental and life insurance benefits
provided for under this Agreement shall be
5
maintained for the greater of a period of one (1) year from the date of
termination and the remainder of the Employment Term, (vi) all accrued but
unpaid Bonus amounts shall be paid within five (5) days of the date of
termination or within thirty (30) days of the completion of the annual audit,
whichever is later, and (vii) all disability benefits payable under the relevant
policies.
(e) Death of the Executive. If the Executive dies prior to the
expiration of the Employment Term this Agreement shall terminate on the date of
death and Executive's beneficiary, designee, or estate ("Beneficiary") shall be
entitled to receive (i) any Base Salary owed though the date of death, (ii) all
accrued but unpaid Bonus amounts shall be paid within five (5) days of the date
of death or within thirty (30) days of the completion of the annual audit,
whichever is later, (iii) reimbursement for any business expenses incurred and
unpaid prior to the Executive's death, (iv) all options granted to Executive
shall immediately vest, and (v) all health and dental benefits provided for
under this Agreement shall be maintained for Executive's family for the greater
of a period of one (1) year following the date of death and the remainder of the
Employment Term.
(f) Failure to Renew. If the Company gives notice of non-renewal of
this Agreement or does not enter into a new employment agreement with the
Executive at the end of the Employment Term then the Executive shall be entitled
to receive one year of his Base Salary plus the Severance Bonus Amount which
shall be paid to Executive during the one-year period following the end of the
Employment Term in accordance with regular Company payroll policy and his
health, dental and life insurance benefits for him and his family shall be
continued for one year from the end of his employment.
6. Trade Secrets and Proprietary Information of the Company.
(a) By virtue of his employment, Executive will have access to, will
acquire and will become acquainted with various trade secrets and confidential
and proprietary information relating to the businesses of the Company, including
but not limited to: identity of clients, employees, supplies, hearing officers
and distribution lists, contracts, addresses, and information about such
employees, employee relations, hearing officers, clients and suppliers, employee
handbooks, clients, price lists, costs and expenses, documents, budgets,
proposals, financial information, inventions, patterns, processes, computer
programs, specification, all records of the accounts of clients, hearing
officers, prices, schedules, and other documentations, computer hardware and
software, and any other records and books relating in any manner whatsoever to
the clients and hearing officers of the Company, whether prepared by the
Executive or otherwise, and whether situated inside or outside the offices of
the Company which are used in the operation of the businesses of the Company.
(b) The Executive shall hold in strictest confidence and shall not
disclose or use any trade secret or confidential information of the Company,
directly and indirectly, or use them in any way, either during the term of the
Executive's employment hereunder or for one (1) year thereafter, except as
required in the course of Executive's employment with the Company. Executive
understands that the term "trade secret" or "confidential information" means all
information concerning the Company that is not in the public domain.
6
7. Non-Compete. In consideration of the compensation to be received by
Executive from the Company, Executive shall not: (a) during the period Executive
is employed with the Company, engage in, or otherwise directly or indirectly be
employed by, or act as a consultant or lender to, or be a director, officer,
employee, owner, member or partner of, any business or organization that is or
shall then be competing with the Company; and (b) for a period of one (1) year
after the termination of this Agreement, directly or indirectly, (i) market or
provide any competitive services to any clients of the Company or (ii) solicit
or contact any person who is employed or act as hearing officer for the Company
at the time that Executive ceases being employed by the Company for the purpose
of employing or retaining such person as an employee, consultant or hearing
officer; provided, however, that nothing in this section shall prohibit the
Executive from employing or retaining such person where the Executive did not
initiate the contact with such person. If any restriction contained in this
section shall be deemed invalid, illegal, or unenforceable by reason of the
extent, duration, or geographical scope thereof, or otherwise, then the court
making such determination shall have the right to reduce such extent, duration,
geographical scope or other provision hereof to the fullest extent allowed by
law, and in its reduced form such restriction shall then be enforceable in the
manner contemplated hereby. In the event of a breach of the Agreement by the
Company, this paragraph shall be deemed immediately null and void.
8. Change-in-Control.
Within ninety (90) days after a Change-in-Control of the Company, as
defined below, this Agreement may be terminated by the Executive by the giving
of written notice to the Company that the Executive elects to terminate this
Agreement effective immediately. This provision shall not be affected by the
Executive entering into any other employment, consulting or other arrangement
with the Company, or any successor thereto, prior to, following or
contemporaneously with a Change-in-Control. In such event, the Executive shall
receive as severance compensation the same severance package as set forth in
Section 5(b) hereof, except that such compensation shall be paid in a lump sum
within five (5) days after the termination date, however, any amounts (and only
such amounts) payable by the Company solely as a result of the Executive sending
a Tender Notice shall be made in accordance with Section 5(b).
"Change-in-Control" shall mean:
(a) any "person" as such term is used in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") and other than the
Company or fiduciary holding securities under any employee benefit plan of the
Company 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;
(b) during any 24-consecutive-month period, individuals who at the
beginning of such period constitute the Board of Directors of the Company and
any new director whose election by the Board of Directors or nomination for
election by the Company's shareholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority of the
Board of Directors
7
unless the Executive has approved such change in his individual capacity as an
employee under this Agreement and not only as a Director;
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 70% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or any agreement for the sale or disposition by the
Company of, or the Company sells or disposes of, all or substantially all of the
Company's assets.
To the extent any payment or distribution of any type to or for the benefit of
the Executive is or will be subject to the excise tax imposed under Section 4999
of the Internal Revenue Code relating to "golden parachute payments," or any
successor thereto, then the Company shall pay the Executive a gross-up amount to
cover such excise tax.
9. Miscellaneous.
(a) Amendment; Waiver. This Agreement may not be modified, amended
or waived in manner except by an instrument in writing signed by all the parties
hereto. Failure to exercise any rights hereunder shall not constitute a waiver
of such rights.
(b) Governing Law. All matters affecting or in connection with this
Agreement, the employment of the Executive or the termination or resignation of
the Executive, are to be governed by, interpreted and construed in accordance
with the laws of the State of New York without giving effect to the state's
conflict of law principles.
(c) Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be deemed to be delivered
the same day if delivered by personal delivery, five (5) days from the date if
mailed by certified mail, return receipt requested, or on the day delivered to
the other party if sent by a nationally-recognized overnight carrier to
addresses as follows:
If to the Executive: Roy Israel
00 Xxxxxxx Xxxx
Xxxxxx Xxxxxxx, Xxx Xxxx 00000
If to the Company: xxxxxXxxxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxx, Xxx Xxxx 00000
Attn: Board of Directors
8
With a copy to (which shall Xxxxxx X. Xxxxxx, Esq.
not constitute notice) Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
d) Severability. Each provision hereof is intended to be severable,
and the invalidity of any portion of this Agreement shall not affect the
validity or legality of the remainder hereof.
(e) Counterparts. This Agreement may be executed by the parties
hereto in counterpart, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
(f) Headings. The headings of paragraphs herein are included solely
for convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
(g) Successors and Assigns. This Agreement shall be binding upon any
successor or assign of the Company.
(h) Arbitration. The parties agree that in the event of any dispute
or controversy arising out of or in connection with this Agreement or any
alleged breach thereof (a "Dispute"), the parties shall submit the Dispute for
arbitration in New York City before three (3) arbitrators; one arbitrator shall
be chosen by the Executive, one arbitrator by the Company and the third by the
two chosen arbitrators. If any party fails to choose its arbitrator within
thirty (30) days after a request is made to designate an arbitrator, then that
party waives its right to choose an arbitrator and the arbitrator shall
immediately go forward before the one arbitrator chosen by the non-breaching
party. The decision of the arbitrators will be final and binding upon the
parties, and the judgment of a court of competent jurisdiction may be entered
thereon. Fees of the arbitrators and the cost of arbitration shall be borne as
determined by the arbitrators.
(i) Conflicts. The Company acknowledges that the Executive may have
conflicting duties and interests based on his positions as an employee, director
and significant shareholder of the Company. In each instance, the Company
further acknowledges that the Executive is entitled to act in his self-interest
in each such role. For example, Executive may vote as a director in favor of a
Change-in-Control, but may still as an employee elect to terminate this
Agreement as a result of the Change-in-Control. A vote by the Executive in his
role as a director or shareholder would never waive or limit his rights as an
employee under this Agreement.
9
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first written above.
XXXXXXXXXXXX.XXX, INC.
By: /s/Xxxxxxxx Xxxxxxxx-Xxxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxxxx-Xxxxxxx
Title: Vice President and Chief
Financial Officer
/s/ Roy Israel
---------------------------------
ROY ISRAEL
10
SCHEDULE A
Criteria Performance Weight Bonus
-------- ----------- ------ -----
Threshold
Annual increase in revenues 10% over prior year 40%
Improvement in cash flow Increase of $250,000 per year 30%
Pre-tax income (loss) Improvement of $250,000 over prior year 30% 30% of
100% Base Salary
---- -----------
Target
Annual increase in revenues 15% over prior year 40%
Improvement in cash flow Increase of $375,000 per year 30%
Pre-tax income (loss) Improvement of $375,000 over prior year 30% 40% of
100% Base Salary
---- -----------
Maximum
Annual increase in revenues 20% over prior year 40%
Improvement in cash flow Increase of $500,000 per year 30%
Pre-tax income (loss) Improvement of $500,000 over prior year 30% 50% of
100% Base Salary
---- -----------
11
SCHEDULE B
Criteria Performance Weight Bonus
-------- ----------- ------ -----
Threshold
Improvement in cash flow Increase of $400,000 per year 50%
Pre-tax income (loss) Improvement of $400,000 over prior year 50% 30% of
100% Base Salary
---- -----------
Target
Improvement in cash flow Increase of $525,000 per year 50%
Pre-tax income (loss) Improvement of $525,000 over prior year 50% 40% of
100% Base Salary
---- -----------
Maximum
Improvement in cash flow Increase of $750,000 per year 50%
Pre-tax income (loss) Improvement of $750,000 over prior year 50% 50% of
100% Base Salary
---- -----------
12
