Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT, dated February 20, 2003 and effective as of January
13, 2003, between LOMBARDIA ACQUISITION CORP., a Delaware corporation which will
be renamed Debt Resolve Inc. (the "Company"), and the Executive identified on
EXHIBIT A attached hereto (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Company desires to retain the services of the
Executive and to that end desires to enter into a contract of employment with
him, upon the terms and conditions herein set forth; and
WHEREAS, the Executive desires to be employed by the Company
upon such terms and conditions;
NOW, THEREFORE, in consideration of the premises and of the
mutual benefits and covenants contained herein, the parties hereto, intending to
be bound, hereby agree as follows:
1. APPOINTMENT AND TERM
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Subject to the terms hereof, the Company hereby employs the
Executive, and the Executive hereby accepts employment with the Company, all in
accordance with the terms and conditions set forth herein, for a period
commencing on the effective date hereof (the "Commencement Date") and ending on
the date (the "Initial Expiration Date") set forth in EXHIBIT A, unless the
parties mutually agree in writing upon a later date or the Executive's
employment hereunder is automatically renewed as otherwise provided in Section
7(d) hereof.
2. DUTIES
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(a) During the term of this Agreement, the Executive shall be
employed in the position(s) set forth in EXHIBIT A and shall, unless prevented
by incapacity, devote as much of his business time, attention and ability during
normal corporate office business hours as may be reasonably required to the
discharge of his duties hereunder and to the faithful and diligent performance
of such duties and the exercise of such powers as may be assigned to or vested
in him by the Board of Directors of the Company (the "Board"), the President and
Chief Executive Officer of the Company and any other senior executive officer of
the Company, such duties to be consistent with his position. The Company
acknowledges that the Executive has other interests and other business
commitments which may require his attention and that fulfilling those
commitments shall not be inconsistent with the requirements of his commitments
under this Agreement. The Executive shall obey the lawful and reasonable
directions of the Board, the Company's President and Chief Executive Officer and
any other senior executive officer of the Company and shall use his diligent
efforts to promote the interests of the Company and to maintain and promote the
reputation thereof.
(b) The Executive shall not during his term of employment
(except as a representative of the Company or with the consent in writing of the
Board) be directly or indirectly engaged or concerned or interested in any other
business activity, except (i) through ownership of an interest of not more than
five percent (5%) in any entity that does not directly compete with the Company,
provided it does not impair the ability of the Executive to discharge fully and
faithfully his duties hereunder, (ii) for activities, if any, set forth in
EXHIBIT A, or (iii) as stated above.
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(c) Notwithstanding the foregoing provisions, the Executive
shall be entitled to serve in various leadership capacities in civic, charitable
and professional organizations. The Executive recognizes that his primary and
paramount responsibility is to the Company.
(d) The Executive shall be based in the geographic area set
forth on EXHIBIT A, except for required travel on the Company's business.
3. REMUNERATION
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(a) As compensation for his services pursuant hereto, the
Executive shall be paid a base salary during his employment hereunder at the
annual rate set forth in EXHIBIT A; provided, that such base salary shall be
adjusted on each January 1 during the term of this Agreement, in an amount equal
to the percentage increase in the Consumer Price Index for the New York
metropolitan area (as calculated and released by the United States Bureau of
Labor Statistics) for the immediately preceding 12-month period. This amount
shall be payable in equal periodic installments in accordance with the usual
payroll practices of the Company.
(b) Except as provided above, in EXHIBIT A and in Sections 4,
6, 7 and 15(c) hereof, the Executive shall not be entitled to receive any
additional compensation, remuneration or other payments from the Company.
4. HEALTH INSURANCE AND OTHER FRINGE BENEFITS
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(a) The Executive understands that the Company does not
currently intend to provide any regular employee fringe benefit programs,
including, but not limited to, medical, hospitalization and disability insurance
and life insurance, but to the extent that the Company shall make available any
such program in the future, participation in any such program shall be made
available to the Executive on terms substantially consistent with those made
available to other executives of the Company.
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(b) The Executive understands that the Company does not
presently have, but currently intends to implement in the future, a stock option
plan. The Executive shall participate in any such stock option plan as and to
the extent authorized from time to time by the board of directors of the
Company.
5. VACATION
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The Executive shall be entitled to the number of weeks of
vacation set forth in EXHIBIT A (in addition to the usual national holidays)
during each contract year during which he serves hereunder. Such vacation shall
be taken at such time or times as reasonably requested by the Executive.
6. REIMBURSEMENT FOR EXPENSES
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The Executive shall be reimbursed for reasonable documented
business expenses incurred in connection with the business of the Company in
accordance with practices and policies established by the Company; provided,
that the parties hereto hereby agree that for purposes of this Agreement
first-class airline travel by the Executive incurred in connection with the
business of the Company and for all flights over three (3) hours in scheduled
duration is in accordance with practices and policies established by the Company
and shall be deemed a "reasonable" business expense.
7. TERMINATION
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(a) This Agreement shall terminate in accordance with the
terms of Section 7(b) hereof; PROVIDED, HOWEVER, that such termination shall not
affect the obligations of the Executive pursuant to the terms of Sections 8 and
9.
(b) This Agreement shall terminate on the Initial Expiration
Date; or as follows:
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(i) Upon the written notice to the Executive by the
Company at any time, because of (w) the willful and material malfeasance,
dishonesty or habitual drug or alcohol abuse by the Executive demonstrably
related to or demonstrably affecting the performance of his duties, (x) the
Executive's continuing and intentional breach, non-performance or non-observance
of any of the terms or provisions of this Agreement, but only after notice by
the Company of such breach, nonperformance or nonobservance and the failure of
the Executive to cure such default as soon as practicable, (y) the conduct by
the Executive which the Board in good faith determines could reasonably be
expected to have a material adverse effect on the business, assets, properties,
results of operations, financial condition, personnel or prospects of the
Company (within each category, taken as a whole), but only after notice by the
Company of such conduct and the failure of the Executive to cure same as soon as
practicable, or (z) upon the Executive's conviction of a felony, any crime
involving moral turpitude (including, without limitation, sexual harassment)
related to or affecting the performance of his duties or any act of fraud,
embezzlement, theft or willful breach of fiduciary duty against the Company
((w)-(z), collectively, "Cause") .
(ii) In the event the Executive, by reason of
physical or mental disability, shall be unable to perform the services required
of him hereunder for a period of more than 120 consecutive days, or for more
than a total of 180 non-consecutive days in the aggregate during any period of
twelve (12) consecutive calendar months, on the 121st consecutive day, or the
181st day, as the case may be. The Executive agrees, in the event of any dispute
under this Section 7(b)(ii), and after written notice by the Board, to submit to
a physical examination by a licensed physician practicing in the metropolitan
New York and/or Westchester County, New York area selected by the Board, and
reasonably acceptable to the Executive.
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(iii) In the event the Executive dies while employed
pursuant hereto, then such termination shall occur on the day on which his
death occurs; provided, that if there is not in effect, at the time of the
Executive's death, a life insurance policy with all current premiums paid for by
the Company, and with a death benefit, payable to a beneficiary designated by
the Executive, in an amount no less than the Executive's then current annual
salary, then such termination shall occur on the one-year anniversary of the
Executive's death.
(iv) Upon sixty (60) days' written notice by the
Executive to the Company, in the event that the Company (A) shall not comply
with any material provision of this Agreement and shall not have cured any such
failure within thirty (30) days after written notice of such noncompliance has
been given by the Executive to the Company, or (B) shall assign to the Executive
any duties that are materially inconsistent with his status or that materially
diminish his duties hereunder.
(v) As set forth on EXHIBIT A attached hereto.
(c) If this Agreement is terminated pursuant to Section 7(b),
then, other than as set forth in this Agreement, the Company will have no
further liability to the Executive after the date of termination including,
without limitation, the compensation and benefits described herein; PROVIDED
that, in the case of termination pursuant to Section 7(b)(ii), the Executive
will receive his then current salary until such time (but not more than 180 days
after such disability) as payments begin under any disability insurance plan of
the Executive; and PROVIDED, FURTHER, that in the case of termination pursuant
to Section 7(b)(iv), the Executive will continue to receive from the Company his
salary pursuant to Section 3(a) hereto, and all other compensation,
remuneration, benefits or other payments to which the Executive may be entitled
hereunder to receive from the Company, from the date of termination until the
earlier to occur of the Initial Expiration Date or the Final Expiration Date.
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(d) In the event the Company chooses not to enter into any
agreement or amendment extending the Executive's employment beyond the Initial
Expiration Date, the Company agrees to provide Executive at least six months'
prior written notice of such determination, during which time the Executive may
seek alternative employment while still being employed by the Company. If the
Company does not provide the Executive with at least six months' prior written
notice of such determination, then the Executive's employment hereunder shall be
automatically renewed for a period commencing on the day following the Initial
Expiration Date and ending on the date (the "Final Expiration Date") set forth
on EXHIBIT A.
(e) Upon the occurrence of a Change of Control (as defined
below) during the term of this Agreement, then, in addition to all other
compensation, remuneration or other payments to which the Executive shall be
entitled hereunder to receive from the Company, the Executive shall also be paid
pursuant to this Agreement an amount equal to twenty-five percent (25%) of (A)
five percent (5%) of the first Five Million Dollars ($5,000,000) of the
Transaction Value (as defined below), but in any event in an amount not less
than Two Hundred Fifty Thousand Dollars ($250,000), (B) two and one half percent
(2.5%) of the next Ten Million Dollars ($10,000,000) of the Transaction Value,
and (C) one percent (1%) of the remaining Transaction Value. A Change of Control
shall be deemed to have occurred at such time as any person, other than the
Company, its existing shareholders or any of its or their affiliates on the date
hereof, purchases the "beneficial ownership" (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934), directly or indirectly, of 50% or more of the
combined voting power of voting securities then ordinarily having the right to
vote for directors of the Company; provided, that a Change of Control shall not
be deemed to have occurred with respect to (x) the Company's sale of up to Three
Million Dollars ($3,000,000) of shares of common stock of the Company pursuant
to a private placement of securities, or (y) the underwritten initial public
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offering of securities of the Company pursuant to a registration statement filed
in accordance with the requirements of the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder. "Transaction Value" means
the aggregate amount of Consideration (as defined below) paid by the person
effectuating a Change of Control, its affiliates, and/or its owners
(collectively, the "Control Party"). "Consideration" means cash, securities, and
any other form of payment made by the Control Party, plus all non-trade
liabilities assumed by the Control Party, pursuant to the transaction
effectuating such Change of Control.
8. CONFIDENTIAL INFORMATION
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(a) The Executive covenants and agrees that he will not at any
time during the continuance of this Agreement or at any time thereafter (i)
print, publish, divulge or communicate to any person, firm, corporation or other
business organization (except in connection with the Executive's employment
hereunder) or use for his own account any secret or confidential information
relating to the business of the Company (including, without limitation,
information relating to any customers, suppliers, employees, products, services,
formulae, technology, know-how, trade secrets or the like, financial information
or plans) or any secret or confidential information relating to the affairs,
dealings, projects and concerns of the Company, both past and planned (the
"Confidential Information"), which the Executive has received or obtained or may
receive or obtain during the course of his employment with the Company (whether
or not developed, devised or otherwise created in whole or in part by the
efforts of the Executive), or (ii) take with him, upon termination of his
employment hereunder, any information in paper or document form or on any
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computer-readable media relating to the foregoing. The term "Confidential
Information" does not include information which is or becomes generally
available to the public other than as a result of disclosure by the Executive or
which is generally known in the consumer debt collection business. The Executive
further covenants and agrees that he shall retain the Confidential Information
received or obtained during such service in trust for the sole benefit of the
Company or its successors and assigns.
(b) The term Confidential Information as defined in Section
8(a) hereof shall include information obtained by the Company from any third
party under an agreement including restrictions on disclosure known to the
Executive.
(c) In the event that the Executive is requested pursuant to
subpoena or other legal process to disclose any of the Confidential Information,
the Executive will provide the Company with prompt written notice so that the
Company may seek a protective order or other appropriate remedy and/or waive
compliance with Section 8 of this Agreement. In the event that such protective
order or other remedy is not obtained or that the Company waives compliance with
the provisions of Section 8 of this Agreement, the Executive will furnish only
that portion of the Confidential Information which is legally required.
9. RESTRICTIONS DURING EMPLOYMENT AND FOLLOWING TERMINATION
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(a) The Executive shall not, anywhere within the United States
or in any other country or jurisdiction in which the Company may operate, or may
contemplate operating in, during his full term of employment under Sections 1
and 7(d) hereof and for a period of six months thereafter, notwithstanding any
earlier termination pursuant to Section 7(b) hereof, without the prior written
consent of the Company, directly or indirectly, and whether as principal, agent,
officer, director, partner, employee, consultant, broker, dealer or otherwise,
alone or in association with any other person, firm, corporation or other
business organization, carry on, or be engaged, have an interest in or take part
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in, or render services to any person, firm, corporation or other business
organization (other than the Company) engaged in a business which is directly
competitive with all or part of the Business of the Company. The term "Business
of the Company" shall mean the collection of consumer debt or any other business
in which the Company may be engaged, or may contemplate engaging in, during the
term of this Agreement.
(b) The Executive shall not, for a period of six months after
termination of his employment hereunder, either on his own behalf or on behalf
of any other person, firm, corporation or other business organization, endeavor
to entice away from the Company any person who, at any time during the
continuance of this Agreement, was an employee of the Company.
(c) The Executive shall not, for a period of six months after
termination of his employment hereunder, either on his own behalf or on behalf
of any other person, firm, corporation or other business organization, solicit
or direct others to solicit, any of the Company's customers or prospective
customers (including, but not limited to, those customers or prospective
customers with whom the Executive had a business relationship during his term of
employment) for any purpose or for any activity which is competitive with all or
part of the Business of the Company.
(d) It is understood by and between the parties hereto that
the foregoing covenants by the Executive set forth in this Section 9 are
essential elements of this Agreement and that, but for the agreement of the
Executive to comply with such covenants, the Company would not have entered into
this Agreement. It is recognized by the Executive that the Company currently
operates in, and may continue to expand its operations throughout, the
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geographical territories referred to in Section 9(a) above. The Company and the
Executive have independently consulted with their respective counsel and have
been advised in all respects concerning the reasonableness and propriety of such
covenants.
10. REMEDIES
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(a) Without intending to limit the remedies available to the
Company, it is mutually understood and agreed that the Executive's services are
of a special, unique, unusual, extraordinary and intellectual character giving
them a peculiar value, the loss of which may not be reasonably or adequately
compensated in damages in an action at law, and, therefore, in the event of any
material breach by the Executive that continues after any applicable cure
period, the Company shall be entitled to equitable relief by way of injunction
or otherwise.
(b) The covenants of each of Sections 8 and 9 hereof shall be
construed as independent of any other provisions contained in this Agreement and
shall be enforceable as aforesaid notwithstanding the existence of any claim or
cause of action of the Executive against the Company, whether based on this
Agreement or otherwise. In the event that any of the provisions of Sections 8 or
9 hereof should ever be adjudicated to exceed the time, geographic,
product/service or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in any such
jurisdiction to the maximum time, geographic, product/service or other
limitations permitted by applicable law.
11. COMPLIANCE WITH OTHER AGREEMENTS
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The Executive represents and warrants to the Company that the
execution of this Agreement by him and his performance of his obligations
hereunder will not, with or without the giving of notice or the passage of time
or both, conflict with, result in the breach of any provision of or the
termination of, or constitute a default under, any agreement to which the
Executive is a party or by which the Executive is or may be bound.
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12. WAIVERS
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The waiver by the Company or the Executive of a breach of any
of the provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach.
13. BINDING EFFECT; BENEFITS
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This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors, assigns, heirs
and legal representatives, including any corporation or other business
organization with which the Company may merge or consolidate or sell all or
substantially all of its assets. Insofar as the Executive is concerned, this
contract, being personal, cannot be assigned.
14. NOTICES
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All notices and other communications which are required or may
be given under this Agreement shall be in writing and shall be deemed to have
been duly given when delivered to the person to whom such notice is to be given
at his or its address set forth below, or such other address for the party as
shall be specified by notice given pursuant hereto:
(a) If to the Executive, to him at the address set forth in
EXHIBIT A.
and
(b) If to the Company, to it at:
Lombardia Acquisition Corp.
(to be renamed Debt Resolve Inc.)
c/o Ambassadors LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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15. MISCELLANEOUS
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(a) This Agreement contains the entire agreement between the
parties hereto and supersedes all prior agreements and understandings, oral or
written, between the parties hereto with respect to the subject matter hereof.
This Agreement may not be changed, modified, extended or terminated except upon
written amendment approved by the Board and executed by a duly authorized
officer of the Company and the Executive.
(b) The Executive acknowledges that from time to time, the
Company may establish, maintain and distribute employee manuals of handbooks or
personnel policy manuals, and officers or other representatives of the Company
may make written or oral statements relating to personnel policies and
procedures. Such manuals, handbooks and statements are intended only for general
guidance. No policies, procedures or statements of any nature by or on behalf of
the Company (whether written or oral, and whether or not contained in any
employee manual or handbook or personnel policy manual), and no acts or
practices of any nature, shall be construed to modify this Agreement or to
create express or implied obligations of any nature to the Executive.
(c) The Company shall have no obligation actually to utilize
the Executive's services; if the Company elects not to use the Executive's
services at any time, the Company's obligations to the Executive shall be
satisfied, in all respects, by the payment to the Executive for the balance of
the term of the Executive's employment under this Agreement, the compensation
provided in Section 3, plus any other amounts payable to the Executive and the
continuation of benefits under Section 4, as described below. During such
remaining term of employment, the Executive shall be entitled to seek other
employment provided that such employment would not violate the terms of this
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Agreement, including Sections 8 and 9 hereof; and the seeking of such employment
shall not be deemed a violation of this Agreement. At any time at which the
Company elects not to use the Executive's services, the Executive shall have the
right to terminate his employment hereunder, whereupon (i) the Company shall pay
to the Executive a lump sum amount equal to 80% of the balance of the payments
due to the Executive (at the Executive's then current compensation pursuant to
Section 3(a)), plus any other amounts payable to the Executive and (ii) except
as set forth in Sections 8 and 9 hereof (but including only the first 80% of the
period remaining in the Executive's full term of employment for purposes of
Section 9(a) hereof), the Executive and the Company shall thereupon each be
released from all further obligations to each other.
(d) This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
(e) All questions pertaining to the validity, construction,
execution and performance of this Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to its
conflict of law principles.
(f) Any controversy or claim arising from, out of or relating
to this Agreement, or the breach hereof (other than controversies or claims
arising from, out of or relating to the provisions in ▇▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇ ▇▇),
▇▇▇▇▇ ▇▇ determined by final and binding arbitration in New York, New York, in
accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association, by a panel of not less than three (3) arbitrators
appointed by the American Arbitration Association. The decision of the
arbitrators may be entered and enforced in any court of competent jurisdiction
by either the Company or the Executive.
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The parties indicate their acceptance of the foregoing
arbitration requirement by initialing below:
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For the Company Executive
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
LOMBARDIA ACQUISITION CORP.
(To be renamed Debt Resolve Inc.)
By:
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Name:
Title:
EXECUTIVE
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Name:
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