EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as the "Employment
Agreement") is made and entered into as of the 18th day of January, 2002, by and
between RETURN ON INVESTMENT CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (hereinafter referred to as the
"Employer"), and XXXXXXX XXXXXXX, XX., a resident of Bartow County, State of
Georgia (hereinafter referred to as the "Employee").
W I T N E S E T H:
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WHEREAS, the Employer desires to employ the Employee to perform the
Duties (as defined herein) and the Employee desires to accept employment on the
terms and conditions hereinafter stated; and
WHEREAS, the Employer and the Employee are parties to that certain
Employment Agreement dated August 10, 2000 (the "2000 Agreement") and they
desire to terminate the 2000 Agreement and to replace the 2000 Agreement with
this Employment Agreement as of the Effective Date (as defined herein) and to;
and
WHEREAS, in the course of his employment, the Employee will (i) gain
knowledge of the business, affairs, customers and methods of the Employer and
also techniques in the sale of the Employer's services through the use of
techniques, systems, forms and methods used and devised by the Employer or at
the Employer's expense, (ii) have access to lists of the Employer's customers
and their needs, and (iii) become personally known to and acquainted with the
Employer's customers; and
WHEREAS, the Employer would suffer irreparable harm if the Employee
were to use such knowledge, information and personal relationships in
competition with the Employer;
NOW, THEREFORE, for and in consideration of the employment of Employee
by the Employer, and for and in consideration of the premises, the mutual
covenants and agreements hereinbelow set forth, and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged and accepted by all parties hereto and will not hereafter be
questioned or challenged, the Employer and the Employee covenant and agree as
follows:
1. DEFINITIONS.
(a) "Area" as used herein means the current geographic area
consisting of the states of Florida, Georgia, Illinois, and New York and any
other county or city where the Employer either engages in the Business of the
Employer or has registered with the appropriate governmental authorities to
engage in the Business of the Employer.
(b) "Business of the Employer" as used herein means the
business of (i) selling payment processing software and providing related
services, and (ii) selling software for IBM iSeries 400 and AS/400 computer
systems related to e-mail, data communications, connectivity, and web
enablement.
(c) "Cause" as used herein means the following: (i) willful
dishonesty by Employee towards or deliberate injury or deliberate attempted
injury by Employee to the Employer, (ii) commission of a felony or other act
involving moral turpitude which adversely and materially affects the Employer,
(iii) willful failure or refusal to perform the Duties as shown on Schedule A or
implement a directive from the Board of Directors remaining uncured for a period
of fourteen (14) days after receipt of written notice specifying such failure,
(iv) disclosure of Confidential Information or Trade Secrets in violation of the
terms of this Agreement (v) a disability of Employee, including, but not limited
to, drug or alcohol abuse, which prevents Employee from performing the Duties
for an uninterrupted period of three (3) consecutive months, or (iv) death of
Employee. The Cause shall be stated specifically in any notice of termination
given pursuant to Paragraph 6 (b) hereof.
(d) "Competing Business" as used herein means any person,
concern or entity which is engaged in or conducts a business selling products or
performing services substantially the same as the products sold or services
performed in the Business of the Employer.
(e) "Change of Control" as used herein means, following the
date hereof, a change in ownership or managerial control of the stock, assets or
business of the Employer resulting from one or more of the following
circumstances, which shall deemed to occur on the actual date on which any of
the foregoing circumstances shall occur (provided, however, that in connection
with a Change of Control specified in Section 1(E)(vii) below, a Change of
Control shall be deemed to occur on the date of the filing of the relevant
proceeding under Chapter 11 of the Federal Bankruptcy Code (or any successor or
other statute of similar import)):
(i) A change in ownership of the Employer through a
transaction or series of transactions, such that any
individual, partnership, joint venture, association, trust,
corporation or other entity or group (a "Person" or "Persons")
(other than any current officer of the Employer or member of
the Board) is (are) or become(s), in the aggregate, the
Beneficial Owner(s) (as defined by Rule 13d-3 of the General
Rules and Regulations of the Act), directly or indirectly, of
securities representing fifty percent (50%) or more of the
Employer's then outstanding securities;
(ii) Any consolidation or merger of the Employer in
which the Employer is not the continuing or surviving
corporation or pursuant to which shares of the common stock of
the Employer would be converted into cash (other than cash
attributable to dissenters' rights), securities or other
property provided by a Person or Persons other than the
Employer, other than a consolidation or merger of the Employer
in which the holders of the common stock of the Employer
immediately prior to the consolidation or merger have
approximately
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the same proportionate ownership of common stock of the
surviving corporation immediately after the consolidation or
merger;
(iii) The closing of a sale, transfer, liquidation or
other disposition of all or substantially all of the assets of
the Employer to a Person or Persons.
(f) "Confidential Information" as used herein means
information disclosed to, acquired or learned by Employee as a consequence of
his employment by the Employer and not generally known to or by Competing
Businesses about the Business of the Employer or the Employer's financial
affairs, including, without limitation, information relating to research,
development, inventions, formulations, processes, accounting, marketing,
distribution, all information of the foregoing type relating to any customer of
the Employer, customer lists, customer account records, training and operations
material and memoranda, personnel records, code books, pricing information and
any other information treated by the Employer as being confidential or labeled
"Confidential," as well as all physical embodiments of any of the foregoing, all
of which are hereby agreed to be the property of and confidential to the
Employer.
(g) "Disability" as used herein means that the Employee is
incapable of performing the normal duties required by his employment and
performed by him before such incapacity. Disability shall be deemed to have
occurred on the first day following a period of ninety (90) consecutive days of
such incapacity and shall be deemed to continue from and after such date until
the Employee is capable of performing the normal duties required by his
employment and performed by him before such incapacity.
(h) "Duties" as used herein means the Duties shown on Schedule
A, which is attached to this Agreement and thereby made an integral part hereof.
(i) "Effective Date" as used herein means the Effective Date
shown on Schedule A.
(j) "Good Reason" as used herein means: (i) the required
relocation of Employee, without Employee's consent, to an employment location
which is more than forty (40) miles from the Employee's employment location on
the date of this Agreement; (ii) the removal of Employee from, or any failure to
reelect Employee to, any of the positions held by Employee as of the date of
this Agreement or any other positions to which Employee shall thereafter be
elected or assigned except in the event that such removal or failure to reelect
relates to Termination with Cause of Employee's employment or by reason of
death, Disability or Voluntary Termination; (iii) a significant adverse change,
without Employee's written consent, in the nature or scope of Employee's
authority, powers, functions, Duties or responsibilities to a level below that
which was provided to Employee on the date of this Agreement; or (iv) breach or
violation of any material provision of this Agreement by the Employer.
(k) "Proprietary Information" as used herein means
Confidential Information and Trade Secrets but shall not include any data or
information received by the Employee from the Employer which is already known to
the Employee at the time it is disclosed to the
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Employee, or which before being divulged by the Employee (i) has become
generally known to the public through no wrongful act of the Employee; (ii) has
been rightfully received by the Employee from a third party without restriction
on disclosure and without, to the knowledge of the Employee, a breach of an
obligation of confidentiality running directly or indirectly to the Employer;
(iii) has been approved for release by written authorization of the Employer;
(iv) has been disclosed pursuant to a requirement of a governmental agency or of
law without similar restrictions or other protections against public disclosure;
provided, however, that the Employee shall first have given written notice of
such required disclosure to the Employer, made a reasonable effort to obtain a
protected order requiring that the Proprietary Information so disclosed be used
only for the purposes for which disclosure is required and taken reasonable
steps to allow the Employer to seek to protect the confidentiality of the
Proprietary Information required to be disclosed; (v) is independently developed
by the Employee unrelated to the Employee's performance of the Employee's duties
and responsibilities of the Employee's employment by the Employer without use,
directly or indirectly, of any of the Proprietary Information received from the
Employer; or (vi) is furnished to a third party by the Employer without any
restriction on the third party's right to disclose the Proprietary Information.
(l) "Termination Payment" as used herein shall mean the
payment described in Paragraph 6 (a) of this Employment Agreement.
(m) "Trade Secrets" as used herein means the whole or any
portion of any scientific, technical or non-technical data, compilation,
program, information, design, drawing, device, process, procedure, manufacturing
process, fabrication process, formula, improvement, method, techniques,
financial data, financial plans, sales plans, business plans, product plans or
list of actual or potential customers, which is secret and proprietary and of
value to the Employer.
2. EMPLOYMENT.
(a) The Employer hereby employs the Employee to perform the
Duties for the term hereof, and the Employee hereby accepts and agrees to such
employment, subject to the provisions of this Employment Agreement.
(b) The Employee agrees to devote an average of twenty (20)
hours per week of his time, energy and skill to the performance of the Duties
(vacation time as shown on Schedule A, Employer holidays, and reasonable
absences due to illness excepted).
(c) The Employee agrees that he shall faithfully and
industriously perform the Duties to the best of his ability and in accordance
with the Employer's direction and control pursuant to the terms of this
Employment Agreement.
(d) The term of Employee's employment under this Employment
Agreement shall commence on the Effective Date and continue through August 31,
2005, subject, however, to prior termination as provided in this Employment
Agreement.
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(e) The Employee shall receive compensation from the Employer
as shown on Schedule A in full payment for all of his services hereunder and all
rights granted herein.
3. OTHER EMPLOYMENT. The Employer acknowledges and agrees that the
Employee may perform services as an employee, director, officer, or independent
contractor or consultant for any individual or entity other than the Employer
without the prior written consent of the Employer, provided that no such
activity shall in any way violate the terms of this Employment Agreement.
4. REPORTS. The Employee agrees to submit to the Employer, in writing,
such reports related to his services hereunder as the Employer may request from
time to time or as may be required by the Employer's company policies.
5. REPRESENTATIONS. The Employee hereby represents and warrants that he
has the right to enter into this Employment Agreement with the Employer and to
grant the rights contained herein, and that the provisions of this Employment
Agreement do not violate any other contracts or agreements that he has entered
into with any other individual or entity.
6. TERMINATION OTHER THAN FOR CAUSE AND FOR CAUSE.
(a) The Employer may terminate the Employee's employment under
this Employment Agreement at any time other than for Cause upon giving the
Employee a notice of termination, provided, however, upon terminating the
Employee other than for Cause the Employer shall pay the Employee the sum of
Three Hundred Sixty Thousand Dollars ($360,000.00) (the "Termination Payment")
on the terms set forth below and the Employee's benefits as shown on Schedule A
will continue to be provided to the Employee and paid for by the Employer for a
period of two (2) years after the termination date (the "Continuing Benefits").
The Termination Payment shall be due and payable in twenty four (24)
semi-monthly payments of Seven Thousand Five Hundred Dollars ($7,500.00)
commencing with the next semi-monthly period after termination or shall be
payable in such other equal, or as nearly equal as practicable, installments on
such other schedule as the Employer may implement from time to time for general
payroll purposes. The Employer may deduct from each payment to the Employee any
and all amounts required to be deducted or withheld for general payroll purposes
in accordance with the provisions of federal law and any applicable state law
now in effect or hereafter in effect including without limitation, state and
federal income withholding, FICA and other withholding tax requirements, and
such other deductions permitted by the Employer which Employee may authorize
from time to time. If a Change of Control occurs or if the Employee terminates
his employment for Good Reason, the Employee shall receive the Termination
Payment and the Continuing Benefits. Notwithstanding anything to the contrary
contained herein, the Employer and the Employee specifically acknowledge and
agree that Paragraphs 7, 8, 9, 10, and 11 hereof shall survive termination of
the Employee's employment under this Employment Agreement and that Paragraphs 7,
8, 9, 10, and 11 shall continue to be in full force and effect after termination
the Employee's employment under this Employment Agreement.
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(b) The Employer may terminate the Employee's employment under
this Employment Agreement at any time for Cause upon giving the Employee a
notice of termination stating specifically the reason for such for termination
for Cause. Provided, however, in the event the Employer terminates this
Employment Agreement for Cause and such Cause is curable by the Employee, the
Employee shall have a period of fourteen (14) days from and after his receipt of
the notice of termination given pursuant to this Paragraph 6 (b) to cure such
conduct to the satisfaction of the Employer and if the Employee does not cure
such conduct to the satisfaction of the Employer within such fourteen (14) day
period this Employment Agreement shall be deemed terminated as of the original
date of the Employee's receipt of the notice of termination. Notwithstanding
anything to the contrary contained herein, the Employer and the Employee
specifically acknowledge and agree that Paragraphs 7, 8, 9, 10, and 11 hereof
shall survive termination of the Employee's employment under this Employment
Agreement and that Paragraphs 7, 8, 9, 10, and 11 shall continue to be in full
force and effect after termination the Employee's employment under this
Employment Agreement.
7. CONFIDENTIAL INFORMATION; TRADE SECRETS.
(a) The Employee will receive the Proprietary Information and
(i) will hold the Proprietary Information in trust and in strictest confidence;
(ii) will protect the Propriety Information from disclosure and in no event take
any action causing, or fail to take any action necessary in order to prevent,
any Proprietary Information disclosed to or developed by the Employee during the
Employee's employment by the Employer to lose its character as Proprietary
Information; and (iii) will not use, duplicate, reproduce, distribute, disclose
or otherwise disseminate the Proprietary Information except to perform the
duties and responsibilities of the Employee's employment by the Employer.
(b) Disclosures of the Proprietary Information shall be made
only to employees, agents or independent contractors of the Employer who are
directly involved in performing services on behalf of the Employer for which the
knowledge of the Proprietary Information is necessary, have a specific need to
know the Proprietary Information, and have obligated themselves under an
applicable confidentiality agreement of the Employer to hold the Proprietary
Information in trust and confidence subject to the restrictions of this
Employment Agreement.
(c) Immediately following the receipt of a written request
from the Employer, the Employee will deliver to the Employer all tangible
materials containing or embodying the Proprietary Information, together with a
certificate executed by the Employee certifying that all materials in the
Employee's possession have been delivered to the Employer.
(d) The covenants of confidentiality set forth herein (i)
shall apply after the Effective Date and during the Employee's employment by the
Employer to any Proprietary Information disclosed prior to or after the
Effective Date by the Employer to the Employee in connection with the Employee's
employment by the Employer; and (ii) shall continue and be maintained by the
Employee (a) with respect to the Confidential Information, for a period of four
(4) years from and after the termination of the Employee's employment by the
Employer; and (b)
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with respect to the Trade Secrets, at any and all times following the
termination of the Employee's employment by the Employer.
8. AGREEMENT NOT TO SOLICIT EMPLOYEES OR CUSTOMERS.
(a) The Employee covenants and agrees that he will not during
the term of his employment under this Employment Agreement or for a period of
one (1) year from the date of termination of his employment under this
Employment Agreement for any reason whatsoever, directly or indirectly, either
individually, in partnership, jointly or in conjunction with any person, firm
partnership, corporation, or unincorporated association of any kind, whether as
principal, agent, employee, shareholder or in any other capacity whatsoever
solicit or divert or appropriate or attempt to solicit or divert or appropriate
(hereinafter collectively referred to as "Solicit") to any person, concern, or
entity selling products or performing services substantially similar to the
products sold or services performed in the Business of the Employer during the
term of the Employee's employment under this Employment Agreement, any person
employed by the Employer during the term of the Employee's employment under this
Employment Agreement, whether or not such employment is pursuant to a written
agreement and whether or not such employment is for a determined period or is at
will (hereinafter referred to as the "Employed Person of the Employer").
(b) The Employee covenants and agrees that he will not during
the term of his employment under this Employment Agreement or for a period of
one (1) year from the date of termination of his employment under this
Employment Agreement for any reason whatsoever, directly or indirectly, either
individually, in partnership, jointly or in conjunction with any person, firm
partnership, corporation, or unincorporated association of any kind, whether as
principal, agent, employee, shareholder or in any other capacity whatsoever
solicit or divert or appropriate or attempt to solicit or divert or appropriate
(hereinafter collectively referred to as "Solicit") for the purpose of selling
products or performing services substantially similar to the products sold or
services performed in the Business of the Employer during the term of the
Employee's employment with the Employer, any individual, partnership, business,
firm, corporation or unincorporated association, which was during the term of
the Employee's employment with the Employer a customer of the Employer for whom
the Employee sold any products or performed any services and with whom the
Employee had contact during the term of the Employee's employment with the
Employer (hereinafter referred to as the "Customers of the Employer").
(c) The parties hereto acknowledge and agree that the period
of time for non-solicitation of an Employed Person of the Employer and the
period of time for the non-solicitation of the Customers of the Employer set
forth in this Paragraph 8 is reasonable and necessary for the protection of the
Employer in the operation of its business.
9. EMPLOYEE AGREEMENT NOT TO COMPETE. The Employee covenants and agrees
that he will not, either during the term of his employment under this Employment
Agreement or for a period of one (1) year from the date of termination of his
employment under this Employment Agreement for any reason whatsoever, directly
or indirectly, either individually, in
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partnership, jointly or in conjunction with any person, firm, partnership,
corporation, or unincorporated association of any kind, whether as principal,
agent, employee, shareholder or in any other capacity whatsoever:
(i) provide or accept an offer to provide services to any
Competing Business located within the Area which services are the same or
essentially the same as the services being rendered by the Employee to the
Employer under this Employment Agreement in connection with the Business of the
Employer.
(ii) associate with, invest in, obtain any interest in,
advise, lend money to, or guarantee the debts or obligations of any Competing
Business within the Area.
The parties hereto acknowledge and agree that the period of
time for non-competition as set forth in this Employment Agreement and the
geographic territory defined as the Area as set forth in this Paragraph 9 are
reasonable and necessary for the protection of the Employer in the operation of
its business.
10. ASSIGNMENT OF INVENTIONS AND INNOVATIONS.
(a) The Employee shall and hereby covenants and agrees to and
does hereby, without charge to the Employer but at the Employer's expense,
transfer and assign to the Employer all right, title, interest, claim and demand
of the Employee in to and under and by virtue of any and all inventions,
creations, discoveries, improvements, ideas, algorithms, computer software
programs or other technology or other works of authorship, and all related
documentation, relating to the Business of the Employer, whether or not
patentable, copyrightable or susceptible to other forms of protection, which,
during the term of the Employee's employment with the Employer, the Employee
makes, creates, develops, writes or conceives whether during or outside of the
Employee's regular working hours, either solely or jointly with another
(hereinafter collectively referred to as the "Innovations"). The Employee hereby
covenants and agrees that all such Innovations shall be deemed to be works
made-for-hire for the Employer.
(b) The Employee hereby covenants and agrees without charge to
the Employer but at the Employer's expense: (i) to disclose promptly to the
Employer all Innovations; (ii) upon the Employer's request, to execute promptly
a specific assignment to the Employer of all rights, title, interest, claim and
demand of the Employee in to and under and by virtue of the Innovations; and
(iii) to do anything else and to execute any all documents reasonably necessary
to enable the Employer to secure patents, copyrights or other forms of
intellectual property protection for the Innovations in the United States of
America and in other countries and territories of the world.
11. UNIQUE NATURE OF SERVICES AND COVENANTS AND EMPLOYMENT AGREEMENTS.
(a) It is agreed that the services to be rendered by the
Employee under the terms of this Employment Agreement are of a unique, unusual,
special and extraordinary nature,
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and of a peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages in any action at law, and that a breach by the Employee
will cause the Employer great and irreparable injury and damage. It is agreed
that the Employer, in addition to any other remedies, shall be entitled to
injunctive and other equitable relief to prevent a breach of this Employment
Agreement by the Employee.
(b) The parties hereto agree that by virtue of the special
knowledge that the Employee will gain about the affairs, business, operations,
customers, and other employees of the Employer as a consequence of the Employee
rendering services to the Employer under this Employment Agreement, irreparable
loss and damage would be suffered and incurred by the Employer if the Employee
should breach or violate any of the covenants or agreements contained in
Paragraphs 7, 8, 9, or 10 hereof and that money damage alone would be an
inadequate remedy for the loss and damage which would be suffered and incurred
by the Employer in the event of such breach or violation; and the parties hereto
further acknowledge and agree that each of such covenants and agreements are
reasonably necessary to protect and preserve the Business of the Employer. The
Employee therefore agrees and consents that, in addition to any other remedies
available to the Employer, at law or in equity, the Employer shall be entitled
to a restraining order, injunction, or other similar remedy to prevent a breach
or violation or contemplated breach or violation by the Employee of any of the
covenants or agreements contained in Paragraphs 7, 8, 9, or 10 hereof. In the
event the Employer seeks an injunction hereunder, the Employee hereby waives any
requirement for the posting of a bond or other security.
12. EMPLOYER'S OBLIGATIONS; ASSIGNMENT. The Employer's obligation to
pay the Employee compensation and other amounts due hereunder and to make the
arrangements provided herein shall be unconditional, and the Employee shall have
no obligation whatsoever to mitigate damages hereunder. If litigation after a
Change of Control shall be brought to enforce or interpret any provision
contained herein, the Employer, to the extent permitted by applicable law and
the Employer's Articles of Incorporation and Bylaws, hereby indemnifies the
Employee for the Employee's reasonable attorneys' fees and disbursements
incurred in such litigation. Except as provided herein, this Agreement shall not
be terminated by any merger or consolidation or other reorganization of the
Employer. In the event any such merger, consolidation or reorganization shall be
accomplished by transfer of stock or by transfer of assets or otherwise, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the surviving or resulting corporation or person. This Agreement shall be
binding upon and inure to the benefit of the executors, administrators, heirs,
successors and assigns of the parties; provided, however, that except as herein
expressly provided, this Agreement shall not be assignable either by the
Employer (except to an Affiliate of the Employer in which event the Employer
shall remain liable if the Affiliate fails to meet any obligations to make
payments or provide benefits or otherwise) or by the Employee. This provision
does not prohibit the transfer, encumbrance or other alienation of the corporate
securities of the Employer.
13. WAIVER; CUMULATIVE REMEDIES. A waiver by either party of any
paragraph, term or condition of this Employment Agreement in any instance shall
not be deemed or construed to be a waiver of such paragraph, term or condition
for the future or of any subsequent breach thereof, and any such waiver must be
in writing. All rights and remedies contained in this
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Employment Agreement are cumulative and none of them shall be construed so as to
limit any other right or remedy of either party.
14. NOTICES. All notices and other communications permitted or required
by the provisions of this Employment Agreement shall be in writing and shall be
personally delivered or sent through the United States Postal Service, or any
official successor thereto, designated as registered or certified mail, return
receipt requested, bearing adequate first class postage and addressed as
hereinafter provided. Notices delivered in person shall be effective upon the
date of delivery. Notices by mail shall be effective upon the receipt thereof by
the addressee or upon the fourth (4th) calendar day subsequent to the postmark
date, whichever is earlier. Rejection or the refusal to accept or the inability
to deliver because of a change in address of which no notice was given as
provided herein shall be deemed to be receipt of the notice sent as of the
fourth (4th) calendar day subsequent to the postmark date. By giving to the
other party hereto at least thirty (30) days' notice thereof, any party hereto
shall have the right from time to time and at any time while this Employment
Agreement is in effect to change the respective addresses thereof and each shall
have the right to specify as the address thereof any other address within the
continental United States of America. Each notice to the Employee or the
Employer shall be addressed, until notice of change as aforesaid, as follows:
(a) If intended for Employee, to:
Xxxxxxx Xxxxxxx, Xx.
00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
(b) If intended for Employer, to:
Return On Investment Corporation
0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Chairman of the Board
15. TIME OF ESSENCE. Time is of the essence of this agreement and all
matters set forth herein.
16. GENERAL.
(a) This Employment Agreement shall be governed by and
construed under the laws of the State of Georgia.
(b) This Employment Agreement contains the entire
understanding of the parties hereto with respect to the subject matter hereof
and, except as provided herein, supersedes all previous written and oral
agreements between the parties with respect to the subject matter set forth
herein.
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(c) This Employment Agreement may not be modified or amended
except by a writing signed by both of the parties hereto.
(d) The invalidity or unenforceability of any particular term
or provision of this Employment Agreement shall not affect the validity or
enforceability of any other term or provision hereof, and this Employment
Agreement shall be construed in all respects as if such invalid or unenforceable
term or provision were omitted.
(e) This Employment Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed by its duly authorized representative and the Employee has executed
this Agreement as set forth below.
EMPLOYER:
RETURN ON INVESTMENT CORPORATION
By:____________________________________
Xxxxxxx X. XxXxxxxxx, Chairman
[CORPORATE SEAL]
EMPLOYEE:
__________________________________[SEAL]
Xxxxxxx Xxxxxxx, Xx.
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SCHEDULE A
1. DUTIES include serving as the Chief Executive Officer of the
Employer and the performance of such duties and responsibilities as may be
designated by the Board of Directors of the Employer in conjunction with the
performance of services by the Employee as Chief Executive Officer of the
Employer, and such other capacities with the Employer as may be designated by
the Board of Directors. The Employee shall also serve as a member of the Board
of Directors of the Employer.
2. EFFECTIVE DATE is February 1, 2002.
3. COMPENSATION. The Employer shall pay the Employee compensation as
follows:
A. 2000 AGREEMENT. Through January 31, 2002, the 2000
Agreement shall remain in full force and effect and the Employee shall receive
all benefits, expense reimbursement, and compensation accrued through such date
in accordance with the terms of the 2000 Agreement, including, without
limitation, the monthly incentive compensation based on invoiced sales for the
month of January 2002, and the quarterly and annual incentive compensation
accrued since July 1, 2001; provided, however, that the payment of the annual
and quarterly incentive compensation may be deferred by the Employer until June
30, 2002. After January 31, 2002, the 2000 Agreement shall be terminated and of
no further force and effect.
B. BASE SALARY. From February 1, 2002, through the end of the
term of this Employment Agreement, the Employee shall be paid an annual base
salary at the rate of not less than Ninety Thousand Dollars ($90,000.00) per
annum (hereinafter referred to as the "Base Salary"). Any increases in the Base
Salary shall be determined in the sole discretion of the Board of Directors
(except that in any such vote, the Employee may not vote as a member of the
Board of Directors).
C. PERFORMANCE BONUSES. The Employee shall be paid quarterly
and annual performance bonuses (hereinafter referred to as the "Performance
Bonuses") for each fiscal quarter and for each fiscal year (or portion thereof)
during the term of this Employment Agreement and any extensions thereof, with
the actual amount of any such Performance Bonus payment to be determined by the
Employer's Compensation Committee and ratified by the Board of Directors (except
that in any such vote, Employee may not vote as a member of the Board of
Directors or the Compensation Committee), based upon their evaluation of the
Employee's performance during such quarter or year as compared to the goals
determined at the beginning of such quarter or year.
D. BONUS DRAW. Employee shall be paid a draw against the
Performance Bonuses at the annual rate of Ninety Thousand Dollars ($90,000.00)
per annum (hereinafter referred to as the "Bonus Draw"). Any Bonus Draw in
excess of the total amount of the actual Performance Bonuses earned for each
fiscal period shall not be recoverable by the Employer from Employee.
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E. OTHER BONUSES. Other bonuses, if any, as may be established
from time to time by the Board of Directors for directors, officers, or
employees of the Employer.
F. SCHEDULE OF PAYMENT OF BASE SALARY AND BONUS DRAW. The Base
Salary and the Bonus Draw shall accrue and be due and payable in equal, or as
nearly equal as practicable, semi-monthly installments or on such other schedule
as the Employer may implement from time to time for general payroll purposes.
Any bonus amounts earned for any fiscal period in excess of the Bonus Draw shall
be payable within ninety (90) days after the end of the fiscal period to which
such bonus relates. The Employer may deduct from each payment to Employee any
and all amounts required to be deducted or withheld for general payroll purposes
in accordance with the provisions of federal law and any applicable state law
now in effect or hereafter in effect including without limitation, state and
federal income withholding, FICA and other withholding tax requirements, and
such other deductions permitted by the Employer which Employee may authorize
from time to time.
4. PAID TIME OFF. The balance of vacation time accrued by the Employee
under the 2000 Agreement shall be carried forward as of the Effective Date.
Commencing with the Effective Date, the Employee shall accrue paid vacation
during each payroll period at the rate of eighty (80) hours multiplied by a
fraction, the numerator of which is one (1) and the denominator of which is the
number of payroll periods in a year. Employee shall be entitled to all paid
holidays and other paid time off provided by the Employer to its employees.
5. BENEFITS. In addition to the compensation received by Employee as
specified above, Employee shall receive Employer paid health, dental, life, and
short term and long term disability insurance and all benefits generally
available to officers, directors, and full-time employees of the Employer.
6. EXPENSE REIMBURSEMENT. Employee shall be reimbursed in accordance
with the Employer's Policies and Procedures for all reasonable and necessary
expenses incurred by him in connection with the performance of his duties of
employment hereunder; provided Employee shall, as a condition of reimbursement,
submit verification of the nature and amount of such expenses in accordance with
said reimbursement policies. Employee's air travel shall be coach or economy
class for all flights with a scheduled duration of less than four (4) hours in
the airline's published flight schedule and business class for longer flights
and international travel. Rail travel shall be first class.
7. ASSIGNMENT OF LIFE INSURANCE. Upon execution of this Employment
Agreement, the Employer shall assign and transfer to the Employee ownership of
that certain USAA Life Insurance term policy in the amount of $1 million and the
Employee shall be responsible for paying all future premiums that are due
thereunder.
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