EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
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This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is entered into as of
this 1st day of January, 2002, by and between Integrated Spatial Information
Solutions, Inc. ("Employer" or "ISIS") and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Executive").
WHEREAS, Employer is a corporation organized under the laws of the State of
Colorado and with its principal place of business in Frankfort, Kentucky;
WHEREAS, Executive is an individual with knowledge and experience that are
valuable to Employer; and
WHEREAS, Employer desires to employ Executive and Executive desires to
accept such employment subject to the terms and conditions hereinafter set
forth.
NOW THEREFORE, and in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereby agree as follows:
1. EMPLOYMENT
Employer hereby employs Executive and Executive hereby accepts employment
by Employer, upon all of the terms and conditions as hereinafter set forth.
2. TERM
The term of this Agreement shall be for one (1) year commencing on January
1, 2002, and ending on December 31, 2002 ("the Expiration Date"), unless renewed
or extended by written agreement executed on or before the Expiration Date by
Executive and by Employer with the approval of Management. As a courtesy to
Executive, Employer shall indicate in writing its intent to renew or extend this
Agreement at least thirty (30) days prior to the Expiration Date.
3. TERMINATION OF AGREEMENT
This Agreement shall terminate upon the occurrence of any of the following
events:
(a) Upon written notice of termination from either party to the other
party, which notice maybe given at any time, with or without cause,
and shall be effective thirty (30) days thereafter unless a different
effective date is agreed in writing by the parties;
(b) Upon the expiration of this Agreement without renewal or extension as
provided in paragraph 2 of this Agreement; or
(c) Upon Executive's death.
Upon the termination of this Agreement, Executive shall be entitled to
payment of compensation that is earned but unpaid for services rendered by
Executive as of the date of termination of this Agreement. In addition,
Executive shall be entitled to Separation Pay to the extent expressly set forth
in Exhibit A to this Agreement, which pay shall become due and owing according
to the schedule set forth in Exhibit A. However, Executive shall not be entitled
to any compensation for services not yet performed, including services which
could have been performed but for the termination of this Agreement.
At the discretion of Employer, Employer may (a) require that Executive
continue to perform his duties during the period between notice pursuant to
Section 3(a) of this Agreement and the resulting termination of this Agreement,
or (b) relieve Executive of his duties during such period (while continuing to
provide compensation and benefits in accordance with this Agreement).
4. DUTIES
Executive is employed by Employer as its Senior Vice President of Finance.
The precise nature of Executive's duties and responsibilities shall be as
defined by Management and may be broadened, curtailed or otherwise modified by
Management from time to time in its sole discretion.
Executive shall be expected to work a normal workweek of a minimum of forty
(40) hours on average through the course of each quarterunless otherwise agreed
in writing by the parties, and Executive agrees to devote his time, energy and
professional talent to the performance of the duties of his position with
Employer during those hours. Notwithstanding the foregoing, Executive may serve
as a director or trustee of another organization upon the prior written consent
of Management or as was already disclosed to Employer in public filings prior to
the date of this Agreement.
Executive's primary place of employment shall be Parker, Colorado, or such
other location within thirty (30) air miles of the Colorado State Capitol
Building as may be selected by the Board of Directors of Employer in its sole
discretion. Except where travel is required by Employer or otherwise necessary
to the performance of the duties, Executive shall have the right to perform his
duties out of any personal residence he may have, provided that the exercise of
such right does not interfere with Executive's ability to perform his duties
effectively or otherwise result in behavior or actions injurious to Employer.
5. COMPENSATION
Executive's compensation under this Agreement shall be as set forth in
Exhibit A, which is attached hereto and incorporated herein. Such compensation
shall be paid in accordance with the payroll policies and procedures of
Employer, as they may be modified from time to time at Employer's sole
discretion.
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Upon the termination of this Agreement, Executive shall have no further
rights to compensation under this Agreement except for Separation Pay as
provided in Exhibit A.
6. TRADE SECRETS, INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
a. Definitions.
For purposes of this Agreement, the following terms shall have the
following definitions:
(i) "The ISIS Companies" shall mean ISIS and all subsidiaries of
ISIS, both individually and collectively, throughout their
histories. (For example, "employment with the ISIS Companies"
shall include all employment with any of the ISIS Companies, both
before and after they became ISIS Companies, and "property of the
ISIS Companies" shall include all property of any of the ISIS
Companies, both before and after they became ISIS Companies,
etc.)
(ii) "Trade Secrets" shall have the meaning ascribed to it in the
Kentucky Uniform Trade Secrets Act, KRS ss.365.880, as such
provision may be amended from time to time. The term "Trade
Secrets" shall include all documents containing Trade Secrets.
(iii) "Intellectual Property" shall mean all products of human
intelligence which have been protected or could be protected from
appropriation or use by others through application of laws
governing patent, trademark, copyright, or other similar
protections, including but not limited to ideas, processes,
trademarks, service marks, inventions, discoveries, and
improvements to any of the foregoing, provided that such material
relates to the services, methodologies or technologies used by or
developed for the ISIS Companies during the course of Executive's
employment with the ISIS Companies or any predecessor of ISIS.
The term "Intellectual Property" shall include all documents
containing Intellectual Property.
(iv) "Confidential Information" shall mean all non-public information
concerning the business or the operation of the business of the
ISIS Companies, including but not limited to information
concerning: operations, organization or management; finances;
business plans and strategies; clients; relationships with
contractors and vendors; proprietary or specialized computer
software; employees; products and services; equipment and
systems; and prospective and executed contracts and other
business arrangements. Confidential Information does not include
information in the public domain or information that is properly
known to Executive through sources other than the ISIS Companies.
The term "Confidential Information" shall include all documents
containing Confidential Information.
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(v) "Protected Information" shall mean all Trade Secrets of the ISIS
Companies, all Intellectual Property of the ISIS Companies, and
all Confidential Information of the ISIS Companies.
(vi) The term "documents" shall mean all recordations of information,
in any form, whether printed or written, produced by hand or
otherwise, and whether stored electronically, magnetically, or in
tangible form, and shall include but not be limited to:
agreements; audio tapes; brochures; charts; circulars;
communications; compact disks; computer printouts;
correspondence; diaries, digital recordings; drafts; drawings;
electronic mail or other electronic communications; graphs;
journals; ledgers; letters; maps; memoranda; motion pictures,
notes, notebooks; opinion statements; pamphlets; photographs;
press releases; reports; sketches; telegrams; transcripts;
videotapes; written statements; summaries of records of
conferences, interviews, investigations meetings, negotiations,
and personal or telephonic conversations; any marginal comments
appearing on any documents; and all other writings.
b. Non-Disclosure of Protected Information.
During the term of this Agreement, and for a period of two (2) years following
termination of this Agreement, Executive shall not, without the prior written
consent of Management, directly or indirectly, use, disclose, transfer or
otherwise communicate any Protected Information to any person or entity except
where such use, disclosure, transfer or communication is (a) in connection with
and in furtherance of Executive's work on behalf of the ISIS Companies, and (b)
not otherwise contrary to applicable law regarding Trade Secrets, Confidential
Information or Intellectual Property.
c. Documents and Other Property of the ISIS Companies.
All documents containing Protected Information which are prepared by
Executive or otherwise come into Executive's possession are and shall remain the
property of the ISIS Companies. Upon the termination of this Agreement, or upon
the request of Employer, Executive shall promptly deliver to Employer all
documents containing Protected Information and all other property belonging to
the ISIS Companies.
d. Response to Subpoena or Court Order.
In response to any subpoena, court order or other legal process purporting
to require disclosure of Protected Information, Executive shall: (a) immediately
notify Management, and (b) take all lawful steps to resist the subpoena, court
order or other process unless instructed to the contrary by Management.
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e. Confidential Information from Third Parties.
Executive acknowledges that the ISIS Companies have received and will
continue to receive confidential or proprietary information from third parties
and that the ISIS Companies must maintain the confidentiality of such
information and use such information only for proper purposes. Executive shall
not without the prior written consent of Management, directly or indirectly use,
disclose, transfer or otherwise communicate any such information to any person
or entity except where such use, disclosure, transfer or communication is: (a)
in connection with and in furtherance of Executive's work on behalf of the ISIS
Companies, (b) not otherwise contrary to applicable laws regarding Trade
Secrets, Confidential Information or Intellectual Property; and (c) not contrary
to any agreement between the ISIS Companies and the third party of which
Executive has knowledge.
f. Disclosure and Assignment of Intellectual Property.
Upon the request of Employer, Executive shall promptly disclose to
Employer, in a manner specified by Management, all Intellectual Property that
Executive learns of, conceives, develops or creates along or with others during
the term of this Agreement (whether or not learned of, conceived, developed or
created during regular working hours).
In consideration of the mutual covenants of this Agreements, Executive
shall assign to Employer, without further consideration, Executive's entire
right to all Intellectual Property, which shall be the sole and exclusive
property of Employer whether or not subject to patent, copyright, trademark or
trade secret protection under applicable law. Executive also acknowledges that
all original works of authorship which are made by Executive (solely or jointly
with others), within the scope of Executive's employment pursuant to this
Agreement, and which are protected by copyright, are "works made for hire," as
that term is defined in the Untied States Copyright Act (17 U.S.C. ss. 101). To
the extent that any such works, by operation of law, cannot be "works made for
hire," Executive hereby assigns to Employer all right, title, and interest in
and to such works and to any related copyrights.
Executive shall promptly execute, acknowledge and deliver to Employer all
additional instruments or documents deemed at any time by Employer in its sole
discretion to be necessary to carry out the intentions of this Section 6.
7. DUTY OF LOYALTY, NO SOLICITATION, NO COMPETITION
a. Duty of Loyalty.
During the term of this Agreement, Executive shall owe a duty of loyalty to
Employer. As part of this duty, Executive shall not knowingly, without the prior
written consent of Management, directly or indirectly:
(i) pursue or accept any employment or business opportunity with any
Client or Competitor;
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(ii) provide any aid or assistance to any Competitor;
(iii) engage in any act or omission which is contrary to the interests
of the ISIS Companies.
b. No Solicitation.
During the term of this Agreement, and for a period of one (1) year
following the termination of this Agreement, Executive shall not, without the
prior written consent of Management, directly or indirectly:
(i) cause or attempt to cause any employee, agent or contractor of
the ISIS Companies to terminate his or her employment, agency or
contractor relationship with the ISIS Companies; or
(ii) interfere or attempt to interfere with the relationship between
the ISIS Companies and any employee, contractor or agent of the
ISIS Companies.
For a period of one (1) year following the termination of this Agreement,
Executive shall not, without the prior written consent of Management, directly
or indirectly hire or attempt to hire any director, officer or employee of the
ISIS Companies.
c. No Competition
For a period of one (1) year following the termination of this Agreement,
Executive shall not, without the prior written consent of Management, perform
any services for any Client or any Competitor.
For purposes of this Section 7, "Client" shall mean any person or entity
who is then a client of the ISIS Companies or who was a client of the ISIS
Companies at any time during the last one (1) year of Executive's employment
pursuant to this Agreement, unless during the last one (1) year of Executive's
employment pursuant to this Agreement:
(i) Executive had no contact, directly or indirectly, with that
person or entity in Executive's capacity as an employee pursuant
to this Agreement; and
(ii) Executive had no role, directly or indirectly, in the provision
of services by the ISIS Companies to that person or entity,
including but not limited to any role in providing the services,
supervising or managing those who provided the services, or
determining pricing or staffing for the services provided.
For purposes of this Section 7, "Competitor" shall mean any person or
entity who provides services of the same or substantially similar kind as the
services provided by the ISIS Companies with respect to which the Executive
possessed or had knowledge of Confidential Information at or prior to date of
Termination.
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For purposes of this Section 7, the phrase "perform any services" includes
all services of any kind, whether provided as an owner, director, officer,
employee, agent, contractor, consultant, joint venturer, partner, member or
otherwise.
d. Approved Outside Activities
The parties agree that Executive's investment in the capital stock or other
securities of a business dissimilar from that of the ISIS Companies, his
investment solely as a passive or minority investor in any business, or his
oversight of his own investment portfolio of securities, real estate and other
assets, shall not constitute a violation of this Agreement provided that such
activity does not violate Subsection 7(c) of this Agreement.
8. INJUNCTIVE RELIEF
In the event of any violation of the provisions of Section 6 or Section 7
of this Agreement ("the Covenants"), Executive acknowledges and agrees and
hereby stipulates:
(i) that the Covenants are fully enforceable;
(ii) that any breach of any of the Covenants will result in real, Immediate
and irreparable harm to Employer which cannot be adequately remedied
by monetary damages;
(iii) that Employer will be entitled to an injunction restraining Executive
from violating the Covenants pending arbitration of the merits of the
dispute between the parties;
(iv) that Executive waives any right that he or she might have to challenge
challenge the enforceability of the Covenants, to contend that
monetary damages provide an adequate remedy for violation of the
Covenants, or that injunctive relief is not proper to restrain
violations of the Covenants pending arbitration.
9. DEFINITION OF MANAGEMENT ; CONSENT IS DISCRETIONARY
For purposes of this Agreement, the phrase "Management" shall mean: (a) the
President of Employer if Executive is employed in a position below that of
President, (b) the Chairman of the Board of Directors of Employer if Executive
is employed as President, and (c) a majority of the Board of Directors of
Employer if Executive is employed in a position above that of President.
In all cases in which Executive must obtain the consent of Employer or
Management, such consent may be granted or withheld at the sole discretion of
Employer or Management as the case may be.
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10. INDEMNIFICATION
To the extent permitted by law and by the Articles of Incorporation and the
Bylaws of Employer, Employer agrees to indemnify and hold harmless Executive
from and against any and all personal liability which Executive may incur as a
result of his actions or inactions within the course and scope of his employment
pursuant to this Agreement; provided, however, that this Section 10 shall not
apply to liability arising out of Executive's intentional misconduct or gross
misconduct.
During the term of this Agreement and for a period of three (3) years
thereafter, Employer shall maintain Directors & Officers insurance coverage for
Executive, with respect to his service pursuant to this Agreement, in an amount
to be determined by Management.
11. SEVERABILITY
In the event that any provision of this Agreement is held to be invalid,
void or unenforceable, the remainder of this Agreement shall not be affected
thereby and all other provisions of this Agreement shall be valid and
enforceable to the fullest extent permitted by the law.
12. AGREEMENT NOT ASSIGNABLE
This Agreement shall be binding upon Employer and its successors and upon
the heirs, representatives, executors, and administrators of Executive. This
Agreement is not assignable by either party, except that the rights and
obligations of this Agreement shall be assumed by any successor of Employer. For
purposes of this Section 12, the term "Successor" shall include any individual
or entity which acquires all or substantially all of the assets of Employer by
merger, purchase or otherwise.
13. WAIVER OF BREACH
The waiver by either party of a breach or violation of any provision of
this Agreement shall not operate as or be construed to be a waiver of any
subsequent breach hereof.
14. NOTICES
Any written notice to be given to Employer under the terms of this
Agreement shall be addressed to Employer as follows, unless the Executive is
notified in writing of a change of address:
Integrated Spatial Information Solutions, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Any written notice to be given to Executive under the terms of this Agreement
shall be addressed to Executive as follows, unless Management is notified in
writing of a change of address:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Such notice shall be deemed to have been duly given:
(a) upon receipt, if sent by regular mail or by commercial delivery
service such as Airborne Express, FedEx or UPS; or
(b) upon the third calendar day following mailing, if sent by registered
or certified mail with the United States Postal Service, return
receipt requested, with postage and registration or certification fee
prepaid.
15. TITLE AND HEADINGS
Titles and headings to paragraphs in this Agreement are for the purpose of
reference only and in no way shall limit, define or otherwise affect the
provisions of this Agreement.
16. GOVERNING LAW
This Agreement, all interpretations and enforcement of this Agreement, and
all disputes arising out of this Agreement shall be governed solely and
exclusively by the laws of the State of Colorado; regardless of the forum in
which such interpretation or enforcement of this Agreement occurs or such
disputes are resolved, and without regard to any principles of conflicts of
laws.
17. ARBITRATION; VENUE; COSTS AND FEES
a. Binding Arbitration of All Disputes.
Except as set forth in subsection (b) below, all disputes relating to this
Agreement, the interpretation or application of this Agreement, or Executive's
employment pursuant to this Agreement (hereinafter "Covered Disputes"), shall be
resolved solely and exclusively by binding arbitration, applying the law of
Colorado.
Unless otherwise agreed in writing by the parties:
(i) the arbitration will be conducted before a single arbitrator of
the American Arbitration Association ("AAA"), in accordance with
the rules of the AAA then in effect regarding arbitration of
employment disputes; and
(ii) the arbitration will be conducted in Denver, Colorado.
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The award rendered by the arbitrator shall be binding on the parties, and
judgment on such award may be entered by any court of competent jurisdiction.
b. Injunctions to Enforce Arbitration and to Restrain Violations Pending
Arbitration.
Notwithstanding the foregoing, either party may file a lawsuit to compel
arbitration of disputes between the parties and to enjoin violations of this
Agreement pending arbitration. Such lawsuit may be brought only in the District
Court for ▇▇▇▇▇▇▇ County, Colorado, or the United States District Court for the
District of Colorado, and Executive and Employer hereby waive any right that
they might have to challenge the selection of those forums, including but not
limited to challenges to personal jurisdiction, venue, or the convenience of the
forum. Specifically, by executing this Agreement, Executive and Employer agree,
consent, and stipulate that, in any action to compel arbitration of a Covered
Dispute or to enjoin violations of this Agreement pending arbitration: (i) the
aforesaid courts have personal jurisdiction over Executive and Employer, (ii)
venue is proper in those courts, and (iii) those courts provide a convenient
forum for that action.
To the maximum extent permitted by the law, the parties stipulate and agree
that this provision supercedes any analysis of choice of laws. To the extent
that a choice-of-laws analysis is required, the parties stipulate and agree that
Colorado law shall govern such analysis.
c. Award of Cost and Fees.
In any arbitration between the parties, the losing party shall pay for the
arbitration, including all reasonable costs and attorney's fees incurred by the
prevailing party in connection with such arbitration; provided, however, that no
award of costs and fees to one party may exceed the cost and fees incurred by
the other party. In the event that both parties prevail in part and lose in
part, the arbitrator shall apportion the award of costs and attorney's fees
based upon each party's degree of success; provided, however, that no award of
costs and fees to one party may exceed the costs and fees incurred by the other
party.
18. NO RULE OF CONSTRUCTION
The parties acknowledge that each of them has had ample opportunity for
their own counsel to participate in negotiating and drafting this Agreement.
Therefore, no rule of construction shall apply to this Agreement which construes
ambiguous or unclear language in favor of or against any party.
19. ENTIRE AGREEMENT
(a) This Agreement, including Exhibit A, represents the entire employment
agreement between Employer and Executive pertaining to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written. No supplement, modification or waiver of
this Agreement shall be binding unless executed in writing by Executive and by
Employer with the approval of Management.
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(b) This Agreement may be executed in one or more copies, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
EXECUTED at Frankfort, Kentucky, and Parker, Colorado, on the dates set
forth below.
EXECUTIVE: INTEGRATED SPATIAL INFORMATION
SOLUTIONS, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Parker, Colorado President
Frankfort, Kentucky
DATE: May 2, 2002 DATE: May 2, 2002
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EXHIBIT A
to
EXECUTIVE EMPLOYMENT AGREEMENT
between
INTEGRATED SPATIAL INFORMATION SOLUTIONS, INC. ("Employer")
and
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Executive")
dated
January 1, 2002
During the term of this Agreement, Executive's compensation shall be as follows:
A-1 SALARY
Employer shall pay to Executive an annual salary of Sixty-Six Thousand Dollars
($66,000.00) per year, subject to applicable withholdings for taxes, to be paid
in the manner specified in paragraph 5 of the Agreement. However, Executive's
salary may be increased or reduced from time to time at the sole discretion of
the Board of Directors of Employer, provided that Executive's salary may not be
reduced by more than ten percent (10%) below the figure stated above.
A-2 INCENTIVE BONUS
At the conclusion of each calendar year of Employer (or such other twelve-month
period as may be agreed in writing by the parties) during the term of this
Agreement (hereinafter "Year"), Executive shall be eligible for an incentive
bonus which shall be described herein.
The termination of Executive's employment after the conclusion of a Year shall
not deprive Executive of any incentive bonus earned during that Year, even if
the bonus has not yet been calculated or paid at the time of termination. Any
incentive bonus earned by Executive prior to the termination of his employment
shall be calculated and paid as though Executive were still employed.
Executive's incentive bonus shall be comprised of two elements, as follows:
(a) Stock Premium Incentive
If the average bid and asking price of the common stock of ISIS for
the last twenty (20) days of the Year ("ACSP") exceeds the Valuation
Ratio by at least twenty percent (20%), then Executive shall receive a
Stock Premium Incentive Bonus as follows:
(i) If the ACSP is greater than or equal to one hundred twenty
percent (120%) of the Valuation Ratio but less than one hundred
thirty-five percent (135%) of the Valuation Ratio, then Executive
shall be paid an amount equal to five percent (5%) of the Salary
paid to Executive during that Year ("Yearly Salary") and shall
receive a grant of stock options for shares of the common stock
of ISIS equal to point one five percent (0.15%) of the
outstanding shares of such stock as of the last day of the Year,
fully vested and priced at the ASCP;
(ii) If the ACSP is greater than or equal to one hundred thirty-five
percent (135%) of the Valuation Ratio but less than one hundred
fifty percent (150%) of the Valuation Ratio, then Executive shall
be paid an amount equal to ten percent (10%) of his Yearly Salary
and shall receive a grant of stock options for shares of the
common stock of ISIS equal to point two five percent (0.25%) of
the outstanding shares of such stock as of the last day of the
Year, fully vested and priced at the ASCP; and
(iii) If the ACSP is greater than or equal to one hundred fifty
percent (150%) of the Valuation Ratio, then Executive shall be
paid an amount equal to twenty percent (20%) of his Yearly Salary
and shall receive a grant of stock options for shares of the
common stock of ISIS equal to point five percent (0.50%) of the
outstanding shares of such stock as of the last day of the Year,
fully vested and priced at the ASCP.
The "Valuation Ratio" shall be the gross revenue of ISIS for the Year
divided by the number of shares of the common stock of ISIS
outstanding during the Year. If the number of outstanding shares has
varied during the Year, the Valuation Ratio shall be calculated using
the weighted average of the number shares outstanding during the Year.
Stated as a formula, Executive's Stock Premium Incentive Bonus shall
be as follows:
IF (ACSP >= 1.20 x Valuation Ratio) AND (ACSP < 1.35 x Valuation
Ratio), THEN Bonus = ($ = 5% x Salary) + (options = 0.15% x
Outstanding Shares)
IF (ACSP >= 1.35 x Valuation Ratio) AND (ACSP < 1.50 x Valuation
Ratio), THEN Bonus = ($ = 10% x Salary) + (options = 0.25% x
Outstanding Shares)
IF (ACSP >= 1.50 x Valuation Ratio), THEN Bonus = ($ = 20% x Salary) +
(options = 0.50% x Outstanding Shares)
(b) Stock Activity Incentive
Executive shall receive a Stock Activity Incentive Bonus as set forth
below if each of the following conditions is met:
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(ii) The number of shares of the common stock of ISIS traded by the
ISIS Traders during the last ninety (90) days of the Year
("Shares Traded") exceeds the Shares Target;
(ii) The closing price of the common stock of ISIS on the last day of
the Year is greater than the closing price of such stock on the
last day of the preceding Year; and
(iii) The net income of ISIS for the Year is greater than zero.
If each of the conditions set forth above has been met, then Executive
shall be paid an amount equal to one percent (1%) of his Yearly Salary
for each increment of ten percent (10%) or fraction thereof by which
the Shares Traded exceeds the Shares Target, provided that the total
Stock Activity Incentive Bonus shall not exceed five percent (5%) of
Executive's Yearly Salary.
In the first Year during the term of this Agreement, the Shares Target
shall be five percent (5%) of the number of shares of the common stock
of ISIS outstanding during the last ninety (90) days of the Year. In
any subsequent Year during the term of this Agreement, the Shares
Target shall be seven point five percent (7.5%) of the number of
shares of the common stock of ISIS outstanding during the last ninety
(90) days of such Year. If the number of outstanding shares has varied
during any such 90-day period, the Shares Target shall be calculated
using the weighted average of the number of shares outstanding during
that period.
Stated as a formula, Executive's Stock Activity Incentive Bonus shall
be as follows:
IF (Shares Traded >= Shares Target) AND (Shares Traded < 1.1 x Shares
Target), THEN Bonus = .01 x Salary
IF (Shares Traded >= 1.1 x Shares Target) AND (Shares Traded < 1.2 x
Shares Target), THEN Bonus = .02 x Salary
IF (Shares Traded >= 1.2 x Shares Target) AND (Shares Traded < 1.3 x
Shares Target), THEN Bonus = .03 x Salary
IF (Shares Traded >= 1.3 x Shares Target) AND (Shares Traded < 1.4 x
Shares Target), THEN Bonus = .04 x Salary
IF (Shares Traded >= 1.4 x Shares Target), THEN Bonus = .05 x Salary
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A-3 COMMITMENT COMPENSATION
As compensation for Executive's surrender of all anti-dilution rights, Executive
shall receive a stock option grant of 880,000 shares of the common stock of ISIS
fully vested and priced at the market price as of January 1, 2002. The options
will be convertible for a period of five (5) years from issuance.
Under no circumstances shall Executive be granted any anti-dilution rights with
respect to the stock of the ISIS Companies.
All grants of stock options provided by this Agreement shall be made pursuant to
Employer's Equity Compensation Plan (also sometimes referred to as the "Stock
Option Incentive Plan"), as that plan may be amended from time to time in the
discretion of Employer.
A-4 VACATION
Executive shall be eligible for Thirty-Six (36) days of personal time off per
year, as provided by and governed by the Personal Time Off Plan ("PTOP"). Upon
termination of this Agreement, Executive shall be paid for earned but unused
PTOP days as provided in the PTOP plan, based upon the Salary in effect at the
time of termination.
A-5 GROUP HEALTH COVERAGE
Executive shall be permitted to participate in such group health insurance plan
as Employer may elect to provide for its other employees, subject to the
eligibility and participation requirements of such plan, which plan may be
altered or abolished from time to time at the sole discretion of Employer.
A-6 PENSION/PROFIT-SHARING PARTICIPATION
Executive shall be permitted to participate in such pension or profit sharing
plan as Employer may elect to provide for its other employees, subject to the
eligibility and participation requirements of such plan, which plan may be
altered for abolished from time to time at the sole discretion of Employer.
A-7 LIFE INSURANCE
Executive shall be provided with a life insurance policy in the amount of One
Hundred Fifty Thousand Dollars ($150,000.00) payable to such beneficiary as
Executive may designate, with an additional One Hundred Thousand Dollars
($100,000.00) of coverage for accidental death, provided that Executive
satisfies the medical requirements for these and keyman coverages.
A-8 AUTOMOBILE ALLOWANCE
Executive shall receive an automobile allowance of Two Hundred Twenty-Five
Dollars ($225.00) per month. However, Executive's automobile allowance may be
increased or reduced from time to time at the sole discretion of the Board of
Directors of Employer, provided that Executive's automobile allowance may not be
reduced by more than ten percent (10%) below the figure stated above.
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A-9 OTHER EMPLOYMENT BENEFITS
Executive shall be entitled to participate in such other benefits of employment
as Employer may elect to provide for its other employees, subject to the terms
and conditions established by Employer for those benefits, which benefits may be
altered or abolished from time to time at the sole discretion of Employer.
A-10 EXPENSE REIMBURSEMENT
Executive shall receive reimbursement from Employer for all reasonable expenses
incurred for the benefit of Employer by Executive in the performance of his
duties under the Agreement. Such expenses may include but are not limited to
reasonable out-of-pocket expenses for travel, lodging, meals, entertainment,
office supplies and professional dues. Employer shall have the right to
establish guidelines for reimbursement of expenses, including but not limited to
guidelines regarding when prior approval is required and what documentation must
be provided in order to obtain reimbursement.
A-11 SEPARATION PAY
Upon termination of this Agreement, Executive shall be entitled to Separation
Pay in accordance with the following provisions:
(a) Termination by Employer for Convenience: Executive shall receive one
month of Base Compensation for each year of service as an employee or
officer of Employer or the predecessor of Employer known as DCX, Inc
("DCX")
(b) Termination by Employer for Cause: Executive shall receive three (3)
months of Base Compensation.
(c) Resignation Within Thirty (30) Days Following Change of Control:
Executive shall receive one month of Base Compensation for each year
of service as an employee or officer of Employer or the predecessor of
Employer known as DCX, Inc. ("DCX").
(d) Other Resignation by Executive: Executive shall receive three (3)
months of Base Compensation.
(e) Termination upon Expiration of Agreement Without Renewal or Extension:
Executive shall receive one month of Base Compensation for each year
of service as an employee or officer of Employer or DCX.
(f) Death of Executive: Executive's estate shall receive three (3) months
of Salary, and Executive's dependents who are covered by Group Health
Coverage at the time of Executive's death shall receive continued
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Group Health Coverage for three (3) months following Executive's
death. Should Executive satisfy the requirements for keyman insurance,
Executive's estate shall receive an additional three (3) months of
Salary, and Executive's dependents who are covered by Group Health
Coverage at the time of Executive's death shall receive an additional
three (3) months of continued Group Health Coverage.
Except in the event of death of Executive, Separation Pay shall not be
considered earned at the time of the termination, shall not be paid in a lump
sum, and shall not be paid at the time of termination. Instead, Separation Pay
shall be paid after termination, at Employer's regular pay intervals, as though
Executive were still employed by Employer. For example, three (3) months of Base
Compensation would be paid over a period of three (3) months following
termination. If the Agreement is terminated by the death of Executive, the
Separation Pay specified in subsection (f) above shall be paid in a lump sum to
Executive's designated beneficiaries within 120 days after Executive's death. In
the event of Executive's death during one of the periods of Separation Pay
specified in subsections (a) through (e) above, any owed but unpaid balance of
such Separation Pay shall be accelerated and shall be paid in a lump sum to
Executive's designated beneficiaries within 120 days after Executive's death.
"Base Compensation" shall consist of: (1) salary at the rate in effect at the
time of termination; and (2) continued participation in Employer's group health
insurance plan.
"Change of Control" shall mean:
(a) any change in the ownership or control of common stock of Employer
which results in more than 50% of the issued and outstanding common
stock of Employer being owned or controlled by a person or entity, or
a group of persons or entities, who did not own or control more than
50% of the issued and outstanding common stock of Employer as of the
date of this Agreement; or
(b) the merger or consolidation of Employer with another entity such that
more than 50% of the issued and outstanding voting stock of the
surviving entity is owned or controlled by a person or entity, or a
group of persons or entities, who did not own or control more than 50%
of the issued and outstanding common stock of Employer as of the date
of this Agreement.
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