liability company, association or other
business entity if such Person or Persons are allocated fifty percent (50%) or
more of partnership, limited liability company, association or other business
entity gains or losses or control the managing director or member or general
partner of such partnership, limited liability company, association or other
business entity.
"Voting Securities or Security" means any securities of the Company which carry
the right to vote generally in the election of directors.
4
ARTICLE 2
EMPLOYMENT
SECTION 2.01.
EMPLOYMENT.
THE COMPANY SHALL EMPLOY THE EXECUTIVE, AND THE
EXECUTIVE SHALL ACCEPT EMPLOYMENT WITH THE COMPANY, UPON THE TERMS AND
CONDITIONS SET FORTH IN THIS AGREEMENT FOR THE PERIOD BEGINNING ON OCTOBER 4,
2006 (THE "START DATE") AND ENDING AS PROVIDED IN SECTION 5.01 (THE "EMPLOYMENT
PERIOD"); PROVIDED THAT THE EMPLOYMENT PERIOD SHALL AUTOMATICALLY BE EXTENDED
FOR PERIODS OF ONE-YEAR UNLESS EITHER PARTY GIVES WRITTEN NOTICE TO THE OTHER
PARTY AT LEAST 90 DAYS PRIOR TO THE END OF THE EMPLOYMENT PERIOD OR AT LEAST 90
DAYS PRIOR TO THE END OF ANY ONE-YEAR RENEWAL PERIOD THAT THE EMPLOYMENT PERIOD
SHALL NOT BE FURTHER EXTENDED.
ARTICLE 3
POSITION AND DUTIES
SECTION 3.01.
POSITION AND DUTIES.
DURING THE EMPLOYMENT PERIOD, THE EXECUTIVE
SHALL SERVE AS CHIEF EXECUTIVE OFFICER AND PRESIDENT OF THE COMPANY AND SHALL
HAVE ALL DUTIES, AUTHORITY AND RESPONSIBILITIES NORMALLY INCIDENT TO SUCH
POSITION.
IN SUCH CAPACITY, THE EXECUTIVE SHALL REPORT TO THE BOARD AND SHALL
HAVE SUCH RESPONSIBILITIES, POWERS AND DUTIES AS MAY FROM TIME TO TIME BE
PRESCRIBED BY THE BOARD; PROVIDED THAT SUCH RESPONSIBILITIES, POWERS AND DUTIES
ARE SUBSTANTIALLY CONSISTENT WITH THOSE CUSTOMARILY ASSIGNED TO INDIVIDUALS
SERVING IN SUCH POSITION AT COMPARABLE COMPANIES.
DURING THE EMPLOYMENT PERIOD
THE EXECUTIVE SHALL DEVOTE SUBSTANTIALLY ALL OF HIS WORKING TIME AND EFFORTS TO
THE BUSINESS AND AFFAIRS OF THE COMPANY AND ITS SUBSIDIARIES.
THE EXECUTIVE
SHALL NOT DIRECTLY OR INDIRECTLY RENDER ANY SERVICES OF A BUSINESS, COMMERCIAL
OR PROFESSIONAL NATURE TO ANY OTHER PERSON OR FOR-PROFIT ORGANIZATION NOT
RELATED TO THE BUSINESS OF THE COMPANY OR ITS SUBSIDIARIES, WHETHER FOR
COMPENSATION OR OTHERWISE, WITHOUT PRIOR WRITTEN CONSENT OF THE BOARD, SUCH
CONSENT NOT TO BE UNREASONABLY WITHHELD; PROVIDED THAT THE FOREGOING SHALL NOT
BE CONSTRUED AS PREVENTING THE EXECUTIVE FROM SERVING ON CIVIC, EDUCATIONAL,
PHILANTHROPIC OR CHARITABLE BOARDS OR COMMITTEES, MAINTAINING HIS PERSONAL
INVESTMENTS, OR, SERVING WITH THE PRIOR WRITTEN CONSENT OF THE BOARD, IN ITS
SOLE DISCRETION, ON CORPORATE BOARDS.
SECTION 3.02.
BOARD SEAT.
ON THE START DATE, THE COMPANY SHALL CAUSE THE
EXECUTIVE TO BE ELECTED TO THE BOARD, AND THE EXECUTIVE WILL SERVE AS A MEMBER
OF THE BOARD.
THEREAFTER, THE COMPANY SHALL USE ITS BEST EFFORTS TO CAUSE THE
EXECUTIVE TO BE NOMINATED AND REELECTED TO THE BOARD.
SECTION 3.03.
EXECUTIVE REPRESENTATIONS. THE EXECUTIVE HEREBY REPRESENTS AND
WARRANTS TO THE COMPANY THAT HE IS NOT SUBJECT OR A PARTY TO ANY EMPLOYMENT
AGREEMENT, NON-COMPETITION COVENANT, NON-DISCLOSURE AGREEMENT OR OTHER
AGREEMENT, COVENANT, UNDERSTANDING OR RESTRICTION OF ANY NATURE WHATSOEVER WHICH
WOULD PROHIBIT THE EXECUTIVE