EXHIBIT 10.3
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), entered into as of January 1,
2003, between EVCI Career Colleges Incorporated ("EVCI"), and Xx. Xxxx X.
XxXxxxx ("Executive").
In consideration of the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT; DUTIES.
1.1 EVCI hereby employs Executive as its Chief Executive Officer and
President. In such capacity, Executive shall report directly and solely to
EVCI's Board of Directors ("Board"). EVCI agrees to nominate Executive for
election to the Board as a member of the management slate at each annual meeting
of stockholders during Executive's employment hereunder at which Executive's
director class comes up for election. Executive agrees to serve on the Board, if
elected, and also to serve on the Board of Directors ("Interboro's Board") and
as Chief Executive Officer of Interboro Institute, Inc. ("Interboro"), if
elected by Interboro's Board.
1.2 Executive agrees to perform and discharge such reasonable duties and
responsibilities as are prescribed from time-to-time by the Board (and by
Interboro's Board, if elected Chief Executive Officer of Interboro) and as are
appropriate for chief executive officers of corporations with the financial,
personnel and other resources that are similar to that of EVCI and Interboro.
Executive shall devote his full business time to, and shall use his best efforts
in, the performance of such duties and responsibilities.
2. COMPENSATION.
2.1 For his services pursuant to this Agreement, EVCI will pay Executive a
salary at the annual rate of $240,000 ("Salary"). The Salary may be increased
from time-to-time as the Board determines.
2.2 EVCI will pay Executive each bonus, if any, that may be awarded to
Executive by the Board, or a committee of the Board, in its sole discretion.
3. EMPLOYMENT TERM. The term of Executive's employment (the "Employment Term")
will commence as of the date first written above and, unless sooner terminated
as provided in Section 5, will end on December 31, 2005.
4. BENEFITS, PAYMENTS AND WITHHOLDING.
4.1 Executive will be entitled to vacation of four weeks per year, and
holidays and sick days in accordance with EVCI's policy, during which Executive
will be entitled to the full compensation and Benefits (as defined in Section
4.2) otherwise payable hereunder.
4.2 Executive may participate, on the same basis and subject to the same
qualifications as executive full time personnel of EVCI, in any pension, profit
sharing, life insurance, health insurance, hospitalization, dental, drug
prescription, disability, accidental death or dismemberment and other benefit
plans and policies EVCI provides with respect to its Executive personnel.
4.3 EVCI will pay or promptly reimburse Executive, in accordance with
EVCI's normal policies and procedures for its executive personnel, for all
allowances and expenses provided for hereunder and for all reasonable
out-of-pocket business, entertainment and travel expenses (including cellular
telephone and an automobile) incurred by Executive in the performance of his
duties hereunder.
4.4 EVCI will pay the Salary at the semimonthly rate of $10,000 and shall
withhold from the Salary, the Benefits and any other compensation provided to
Executive hereunder, all Federal, state and local income, employment and other
taxes, as and in such amounts as may be required to be withheld under applicable
law.
5. TERMINATION AND SEVERANCE BENEFITS.
5.1 TERMINATION BY EVCI AND RESIGNATION BY EXECUTIVE. The Board may
terminate Executive's employment with EVCI, with or without Cause (as defined in
Section 5.5). Termination with Cause shall be effective immediately and
termination without cause shall be effective upon 30 days prior written notice
to Executive. Executive may voluntarily resign his employment with EVCI, with
Good Reason (as defined in Section 5.5), upon 30 days prior written notice to
EVCI.
5.2 COMPENSATION UPON TERMINATION WITHOUT CAUSE OR UPON RESIGNATION WITH
GOOD REASON. If the Board terminates Executive's employment hereunder for any
reason other than Cause or Executive's death or Permanent Disability (as defined
in Section 5.5), or if Executive voluntarily resigns his employment with EVCI
with Good Reason (the effective date of the first to occur of such termination
or his resignation being the "Termination Date"), then (a) Executive shall be
entitled to receive (i) the Salary and Benefits accrued prior to the Termination
Date, (ii) payment or reimbursement of any expenses, provided for under Section
4.3, that were incurred by Executive prior to the Termination Date, and (iii)
any bonus to which Executive would be entitled under Section 2.2 as if the
Employment Term ended on December 31 of the fiscal year in which his resignation
or such termination occurred and (b) after the Termination Date, EVCI will also
continue (i) to pay the Salary, in equal semimonthly payments, to Executive
through the third anniversary of the Termination Date and (ii) continue for
Executive and his spouse and dependent children the health insurance coverage
and medical and dental reimbursement referred to in Section 4.2 through the
third anniversary of the Termination Date. Executive shall be under no duty to
seek other employment following such Termination Date and any amounts earned by
him in connection with such other employment shall not reduce or offset the
amounts otherwise owing hereunder.
2
5.3 COMPENSATION UPON RESIGNATION WITHOUT GOOD REASON OR UPON TERMINATION
FOR CAUSE. If Executive breaches this Agreement by voluntarily resigning his
employment with EVCI without Good Reason or Executive's employment is terminated
by the Board for Cause, then Executive shall only be entitled to receive, except
as otherwise required by law, the Salary and Benefits accrued prior to the
effective date of the first to occur of his resignation or such termination and
reimbursement of any expenses, provided for under Section 4.3, that were
incurred by Executive prior to the effective date of his resignation or such
termination of his employment. Nothing in this Section 5.3 shall create any
implication that EVCI is waiving any remedy EVCI may have for breach by
Executive of this Agreement.
5.4 COMPENSATION UPON DEATH OR PERMANENT DISABILITY. If Executive dies or
suffers a Permanent Disability, then EVCI will (i) promptly pay Executive or his
estate, in one lump sum, six months' Salary and (ii) continue for Executive's
spouse and dependent children (if Executive has died) and for Executive and his
spouse and dependent children (if Executive suffers a Permanent Disability), all
of the Benefits that they were receiving at the time of his death or Permanent
Disability, for 12 months after Executive's death or Permanent Disability. In
addition, EVCI will pay Executive or his estate any bonus to which he would be
entitled under Section 2.2, prorated according to the portion of the completed
fiscal year prior to his death or Permanent Disability.
5.5 DEFINITIONS.
"Cause." For purposes of this Agreement, EVCI shall have "Cause" to
terminate the Employment Term upon (i) the determination by the Board that
Executive has ceased to perform his duties hereunder (other than as a result of
his incapacity due to physical or mental incapacity), which cessation amounts to
an intentional and extended breach or neglect of his duties or obligations
hereunder, has had a material adverse effect on EVCI, and continues for five
business days after written notice thereof is given to Executive, or (ii)
Executive's conviction of a felony.
"Good Reason" means (i) a breach by EVCI of any of its material agreements
contained herein and the continuation of such breach for five business days
after notice thereof is given to EVCI or (ii) as a result of action taken by the
Board, the assignment to Executive of any duties inconsistent with the
Executive's status as the President and Chief Executive Officer of EVCI or a
substantial adverse alteration in the nature or status of Executive's
responsibilities. Good Reason does not include the death or Permanent Disability
of Executive.
"Permanent Disability" means the inability of Executive to perform his
duties hereunder, as a result of any physical or mental incapacity, for 45
consecutive days or 90 days during any twelve month period, as reasonably
determined by the Board.
3
6. COVENANTS NOT TO COMPETE.
6.1 Executive agrees that for 18 months following termination of his
employment with EVCI he will not, without EVCI's prior written approval, engage
in any business activities, within 75 miles of any college, school or office
operated by EVCI, that are competitive with any of the business activities then
being conducted by EVCI.
6.2 During the 18 months following termination of his employment with EVCI,
Executive shall not without the permission of EVCI, directly or indirectly, hire
any employee of EVCI, or solicit or induce, or authorize any other person to
solicit or induce, any employee of EVCI to leave such employ during the period
of such employee's employment with EVCI or within six-months following such
employee's termination of employment with EVCI.
6.3 Sections 6.1 and 6.2 shall not apply to a termination of Executive's
employment pursuant to Section 5.2.
7. COVENANT REGARDING CONFIDENTIALITY. All confidential information about the
business and affairs of EVCI (including, without limitation, its secrets and
information about its services, methods, business plans, technology and
advertising programs and plans) constitutes "EVCI Confidential Information."
Executive acknowledges that he will have access to, and knowledge of, EVCI
Confidential Information, and that improper use or disclosure of EVCI
Confidential Information by Executive, whether during or after the termination
of his employment by EVCI, could cause serious injury to the business of EVCI.
Accordingly, Executive agrees that he will forever keep secret and inviolate all
EVCI Confidential Information which has or shall come into his possession and
that he will not use the same for his own private benefit or directly or
indirectly for the benefit of others, and that he will not discuss EVCI
Confidential Information with any other person or organization, all for so long
as EVCI Confidential Information is not generally known by, or accessible to,
the public.
8. GENERAL.
8.1 This Agreement will be construed, interpreted and governed by the laws
of the State of New York, without regard to the conflicts of law rules thereof.
8.2 The provisions set forth in Sections 6 and 7 shall survive termination
of this Agreement. All reference to EVCI in Sections 6 and 7 include EVCI's
subsidiaries and other affiliates, if any.
8.3 This Agreement will extend to and be binding upon Executive, his legal
representatives, heirs and distributees, and upon EVCI, its successors and
assigns regardless of any change in the business structure of EVCI, be it
through spin-offs merger, sale of stock, sale of assets or any other
transaction. However, this Agreement is a personal services contract and, as
such, Executive may not assign any of his duties or obligations hereunder.
8.4 This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof. No waiver, modification or change of any
of the provisions of this Agreement will be valid unless in writing and signed
by both parties. Except for any agreements pursuant to EVCI's 1998 Incentive
Stock Option Plan, any and all prior agreements between the parties, written or
oral, relating to Executive's employment by EVCI are of no further force or
effect.
4
8.5 The waiver of any breach of any duty, term or condition of this
Agreement shall not be deemed to constitute a waiver of any preceding or
succeeding breach of the same or any other duty, term or condition of this
Agreement. If any provision of this Agreement is unenforceable in any
jurisdiction in accordance with its terms, the provision shall be enforceable to
the fullest extent permitted in that jurisdiction and shall continue to be
enforceable in accordance with its terms in any other jurisdiction.
8.6 All notices pursuant to this Agreement shall be in writing and
delivered personally receipt acknowledged (which shall include Federal Express,
Express Mail or similar service) or sent by certified mail, return receipt
requested, addressed to the parties hereto and shall be deemed given upon
receipt, if delivered personally, and three days after mailing, if mailed,
unless received earlier. Notices shall be addressed and sent to EVCI at its
principal Executive office and to Executive at his home address as it appears in
EVCI's personnel records.
8.7 The parties agree that, in the event of any breach or violation of this
Agreement, such breach of violation will result in immediate and irreparable
injury and harm to the innocent party, who shall be entitled to the remedies of
injunction and specific performance or either of such remedies, if available, as
well as all other legal or equitable remedies, if available, plus reasonable
attorneys fees and costs incurred in obtaining any such relief.
8.8 The Section headings contained in this Agreement are for convenience of
reference only and shall not be used in construing this Agreement.
8.9 This Agreement may be executed in counterparts, each of which will be
deemed an original but all of which will together constitute one and the same
agreement.
IN WITNESS HEREOF, the parties have executed this Agreement as of the date
first above written.
EVCI Career Colleges INCORPORATED
By: /S/ XXXX X. BUNTZMAN, ED.D.
---------------------------------------
Xxxx X. Buntzman, Ed.D
Chairman of the Board
/S/ XXXX X. XXXXXXX, PH.D.
---------------------------------------
Xxxx X. XxXxxxx, Ph.D.
5
