EMPLOYMENT AGREEMENT
AGREEMENT effective this 1st day of September, 1997, by and between TSR,
Inc., a Delaware Corporation, with offices at 400 Oser Avenue, Hauppauge, New
York 11788 (hereinafter called the "Corporation") and William Connor, residing
at 7 Blueberry Lane, Stony Brook, NY 11790 (hereinafter called "Executive").
W I T N E S S E T H
WHEREAS, the Corporation desires to employ Executive and Executive is
willing to undertake such employment on the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. The corporation hereby employs Executive as an executive of the
Corporation and as Executive Vice President of Catch/21 Enterprises,
Incorporated ("Catch/21"), as long as the Company's Year 2000 business is
operated through Catch/21, or in such other position as he may be elected
or appointed to by the Corporation's Board of Directors, to perform such
supervisory or executive duties on behalf of the Corporation and Catch/21
as the Board of Directors of the Corporation may from time to time
determine.
2. Executive hereby accepts such employment and agrees that throughout
the period of his employment hereunder, he will devote his full time,
attention, knowledge and skills, faithfully, diligently and to the best of
his ability, in furtherance of the business of the Corporation and to
promote the interest of the corporation, will perform the duties assigned
to him pursuant to paragraph 1 hereof, subject, at all times, to the
direction and control of the Board of Directors of
1
the Corporation. Executive shall at all times be subject to, observe and
carry out such rules, regulations, policies, directions and restrictions as
the Corporation shall from time to time establish. During the period of
Executive's employment hereunder, Executive shall not be entitled to
additional compensation for serving in any office of the corporation or any
of is subsidiaries to which he is elected, including without limitation as
a Director of the Corporation.
3. Executive shall be employed for a term commencing as of the 1st day
of September, 1997, and ending on the 30th day of September, 2000, subject
to earlier termination pursuant to the provisions hereof (the "Term").
4. a) As full compensation for his services hereunder the Corporation
will pay to Executive i) a salary at the rate of One Hundred Thousand
($100,000) dollars through August 31, 1998 and Two Hundred Thousand
($200,000) dollars per annum thereafter, payable in equal installments no
less frequently than semi-monthly, and ii) the bonus payable pursuant to
Section 4b). In addition to such salary and bonus, Executive shall be
entitled to participate, to the extent he is eligible under the terms and
conditions thereof, in any pension, profit-sharing, retirement,
hospitalization, insurance for medical services, or other employee benefit
plan generally available to executives of the Corporation, which may be in
effect from time to time during the period of his employment hereunder. The
Corporation shall be under no obligation to institute or continue the
existence of any such employee benefit plan.
b) The Corporation shall pay to Executive a bonus for each year ended
August 31 during the Term equal to 2 1/2% of the "Revenues" (as defined
below) in excess of $5,000,000 of the Corporation and its subsidiaries, on
a consolidated basis, from the "Catch/21 Business" (as defined below).
"Revenues" shall equal the revenues of the Corporation and its subsidiaries
on a consolidated basis from the Catch/21 Business included in the
Corporation's regularly prepared consolidated
2
financial statements for each year ended August 31, less any commissions or
other payments to third parties in connection with the Catch/21 business,
determined in accordance with Generally Accepted Accounting Principles,
provided, however, that there shall be excluded from Revenues any
consulting fees paid to the Corporation or its Subsidiaries in connection
with any conversion of software applications, including any amounts paid to
the Corporation or its Subsidiaries based on the time of quality assurance
managers or others rendering services in connection with the conversion of
software applications and any amounts paid to the Corporation or its
Subsidiaries for reimbursement of expenses. The "Catch/21 Business" shall
mean the business conducted by the Corporation and its subsidiaries of
providing services to convert software applications to make them Year 2000
compliant utilizing, in part, Catch/21's software and any software
subsequently developed by Executive. The bonus shall be payable within 60
days after the end of each year ending August 31 and shall be accompanied
by a statement setting forth in reasonable detail the calculation of
Revenues for the period.
5. The Corporation shall reimburse Executive for all expenses
reasonably incurred by him in connection with the performance of his duties
hereunder and the business of the Corporation, upon the submission to the
Corporation of appropriate vouchers therefor and approval thereof by the
Treasurer of the Corporation; provided, however, that if reimbursement has
been made by the Corporation for expenses substantially disallowed,
Executive shall reimburse the Corporation for any such amounts. Such
reimbursements shall be subject to the expense reimbursement policies of
the Corporation which are in effect from time to time.
6. Notwithstanding any provision contained herein to the contrary, the
Corporation may terminate Employee's employment hereunder at any time for
"Cause" as such term has been interpreted pursuant to the decisions of the
courts of the State of New York which have interpreted the meaning of
"Cause" as
3
justifiable termination pursuant to employment arrangements generally.
7. Catch/21 and Executive have entered into a Maintenance of
Confidence and Non-Compete Agreement dated as of September 30, 1996, the
terms of which are hereby expressly incorporated into this Agreement,
provided, however, that the Maintenance of Confidence and Non-Compete
Agreement may be assigned by Catch/21 to the Corporation and shall continue
to be effective notwithstanding any termination of Executive's employment
hereunder and shall continue in effect upon expiration of this Employment
Agreement pursuant to the terms of the Maintenance of Confidence and
Non-Compete Agreement.
8. In the event of Executive's death during the Term, this Agreement
shall terminate immediately, and Executive's legal representatives shall be
entitled to receive the salary due Executive through the last day of the
calendar month during which his death shall have occurred and the bonus
determined pursuant to Section 4b) based on Revenues from the Catch/21
Business through the end of such calendar month.
9. If, during the Term, Executive is unable to perform his duties
hereunder on account of illness, accident or other physical or mental
incapacity and such illness or other incapacity shall continue for a period
of three (3) consecutive months or an aggregate of ninety (90) days in any
consecutive twelve (12) month period, the Corporation shall have the right,
on thirty (30) days written notice (given after such period) to Executive,
to terminate this Agreement. In such event, the Corporation shall be
obligated to pay to Executive his salary only to the end of the calendar
month in which such termination occurs and Executive shall be entitled to
receive the bonus determined pursuant to Section 4b) based on Revenues from
the Catch/21 Business through the end of such calendar month. However, if
prior to the date specified in such notice, Executive's illness or
incapacity shall have
4
terminated and he shall have taken up the performance of his duties
hereunder, Executive shall be entitled to resume his employment hereunder,
as though such notice had not been given.
10. a) The Corporation shall have the right from time to time to
purchase, increase, modify or terminate insurance policies on the life of
Executive for the benefit of the Corporation, in such amounts as the
corporation shall determine in its sole discretion.
b) In connection with paragraph 10a) above, Executive shall, at such
time or times and at such place or places as the Corporation may reasonably
direct, submit himself to such physical examinations and Executive shall
deliver such documents as the Corporation may deem necessary or desirable.
11. The parties hereto acknowledge that Executive's services are
unique and that, in the event of a breach of Executive of any of his
obligations under this Agreement, the Corporation will not have an adequate
remedy at law. Accordingly, in the event of any such breach or threatened
breach by Executive, the Corporation shall be entitled to such equitable
and injunctive relief as may be available to restrain the Executive
participating in such breach or threatened breach from the violation of the
provisions thereof. Nothing herein shall be construed as prohibiting the
corporation from pursuing any other remedies at law or in equity for such
breach or threatened breach, including the recovery of damages and the
immediate termination of the employment of Executive hereunder.
12. This Agreement together with the Maintenance of Confidence and
NonCompete Agreement, constitute the entire agreement of the parties hereto and
no amendment or modification hereof shall be valid or binding unless made in
writing and signed by the party against whom enforcement thereof is sought. This
Agreement supersedes the Employment Agreement dated as of September 30, 1996
5
between Catch/21 and Executive.
13. Any notice required, permitted or desired to be given pursuant to
any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if a) delivered in person; b)
sent by telecopier (with receipt confirmed), provided that a copy is mailed
by registered mail return receipt requested; c) when received by the
addressee, if sent by Express Mail, Federal Express or other express
delivery service (receipt requested) or d) sent by certified mail, return
receipt requested, postage and fees prepaid as follows:
If to the Corporation at:
Chairman of the Board
TSR, Inc.
400 Oser Avenue
Hauppauge, NY 11788
with a copy to:
Steven A. Fishman, Esq.
Battle Fowler LLP
75 East 55 Street
New York, NY 10022
If to the Executive at:
Mr. William Connor
7 Blueberry Lane
Stony Brook, NY 11790
Either of the parties hereto may at any time and from time to
time change the address to which notice shall be sent hereunder by
notice to the other party given under this paragraph 13. The date of
the giving of any notice sent by mail shall be the date of the posting
of the mail.
6
14. Neither this Agreement nor the right to receive any payments
hereunder may be assigned by Executive. This Agreement shall be
binding upon Executive, his heirs, executors and administrators and
upon the corporation, its successors and assigns.
15. No course of dealing nor any delay on the part of the
Corporation in exercising any rights hereunder shall operate as a
waiver of any such rights. No waiver of any default or breach of this
Agreement shall be deemed a continuing waiver or a waiver of any other
breach or default.
16. This Agreement shall be governed, interpreted and construed
in accordance with the laws of the State of New York applicable to
agreements entered into and to be performed entirely therein.
17. If any clause, paragraph, section or part of this Agreement
shall be held or declared to be void, invalid or illegal, for any
reason, by any court of competent jurisdiction, such provision shall
be ineffective but shall not in any way invalidate or affect any other
clause, paragraph, section or part of this Agreement.
18. Employee acknowledges that he is not subject to any agreement
which would in any way restrict him from carrying out his employment
as contemplated hereunder.
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
/s/ WILLIAM CONNOR
------------------------------
William Connor
Executive
TSR, Inc.
By: /s/ JOSEPH F. HUGHES
---------------------------
Name: Joseph F. Hughes
Title: Chairman of the Board,
President and Chief
Executive Officer
8