EXHIBIT 10.2
PRIMUS MARKETING ASSOCIATES, INC..
EMPLOYMENT AGREEMENT
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BY THIS AGREEMENT, made this 1st day of June, 1998, Primus
Marketing Associates, Inc., a Minnesota corporation ("Company")
and John E. Primus ("Employee"), in consideration of mutual
benefits set forth herein, hereby agree as follows:
1. Employment. The Company hereby employs the Employee
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and the Employee hereby accepts employment upon the terms and
conditions hereinafter set forth.
2. Term. Subject to the provisions for the termination as
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hereafter provided, the term of this Agreement shall begin on the
date hereof and shall terminate on May 1, 2001. Thereafter, this
Agreement shall be automatically renewed for two (2) successive
one-year terms unless either party notifies the other of
non-renewal at least 30 days prior to the expiration of the then
current term. The compensation and other benefits provided for
herein shall be subject to annual review by the Company's Board
of Directors.
3. Compensation. For all services rendered by the
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Employee under this Agreement, the Company shall compensate the
Employee by paying the Employee the sum of the following (subject
to any applicable withholding):
(i) $120,000 per year payable in equal installments in
accordance with the Company's normal payroll policies (called
"Regular Compensation");
(ii) A bonus (the "Override Bonus") in each calendar month
during which Employee's employment continues. The amount of the
Override Bonus payable each month shall be the total amount of
the Company's Commission Receipts (as defined below) multiplied
by 5%, but only to the extent of fifty (50) percent of the GAAP
defined net profit earned by Company for such month.
"Commission Receipts" shall be (i) the total revenue (net of any
adjustments by customers) received by the Company in such month
(whether received with respect to such month, a previous month or
as a prepayment for a future month) from the Company's customers
located in Iowa, Minnesota, Montana, Nebraska, North Dakota,
South Dakota, Wyoming, Upper Michigan and North Western
Wisconsin (Southern Wisconsin for Electrical Utility only) and
(ii) the total revenue received by the Company (net of any
adjustments by customers) from power utility only in Oregon,
Idaho, Washington and Wyoming and South Eastern Wisconsin. The
Override Bonus shall be paid to Employee by the subsequent
month's end.
In the event of certain early terminations of this Agreement
as provided, compensation payable to the Employee shall (unless
otherwise stated in Section 9) be limited to amounts Fully
Accrued. The term "Fully Accrued" means (a) as to Regular
Compensation, the percentage of a year's Regular Compensation as
shall equal the percentage of the year which has expired on the
termination date, and (b) as to Override Bonus, only that
Override Bonus which has been earned as of the month end previous
to the termination date.
4. Duties. The Employee is engaged as President. As such
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officer, Employee shall have the function of the chief executive
officer of the Company and shall have the general active
management of the business of the Company, subject to the
direction of the Board of Directors. The Employee also shall
perform such corporate development services for the Company's
parent corporation and affiliates as the Company's Board of
Directors may specify from time to time, without additional
compensation.
5. Extent of Services. The Employee shall devote the
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Employee's entire time, attention and energy to the business of
the Company, and shall not, during the term of this Agreement,
engage in any other business activity whether or not such
business activity is pursued for gain, profit or other pecuniary
advantage; but this shall not be construed as preventing the
Employee from investing Employee's assets in such form or manner
as will not require services on the part of Employee in the
operation or the affairs of, or control of the entity in which
investments are made. The Company acknowledges that Employee has
entered into a Consulting Agreement with Primus Datacom, Inc.
under which Employee provides consulting services to Primus
Datacom, Inc.
6. Expenses. The Employee is authorized to incur
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reasonable expenses for promoting the business of the Company,
including expenses for travel and similar items. The Company
will reimburse the Employee for all such expenses upon
presentation by the Employee, from time to time, of an itemized
account of such expenditures in accordance with the Company's
expense reimbursement policies.
7. Fringe Benefits. The Employee shall enjoy to the
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extent eligible the same fringe benefits as provided generally to
other senior executives of the Company and which shall not be
more than the fringe benefits offered by Synaptx Access to its
senior executives, including health and life insurance. The
Company will maintain such health and life insurance with
benefits at a minimum consistent with the existing Company health
and life insurance. Furthermore, the Company will develop a plan
offering the benefit of a deferred compensation arrangement,
commonly referred to as a "401(K) Plan" whose contributions and
benefits structure will at a minimum be consistent with the
existing Synaptx Impulse, Inc. (F/K/A Maxwell Partners, Inc.)
Retirement Savings Plan by June 15, 1998.
8. Vacation. The Employee shall be entitled, in
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accordance with policy, each year to 10 holidays, 10 vacation
days and 10 personal days, during which time the Employee's
compensation shall be paid in full. There are no carry-over
vacation or personal days from prior calendar years.
9. Termination.
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(i) Without Cause. Without cause, the Company may
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terminate this Agreement at any time upon 30 days' written notice
to the Employee. In such event, the Employee shall receive
six(6) months of Regular Compensation unless such termination
occurs during the original term of this Agreement (i.e. occurs
prior to March 1, 2001), in which case Employee shall receive one
(1) year of such Regular Compensation, but the Employee shall be
entitled to Override Bonus only to the extent Fully Accrued as of
the prior month's end on the date of termination.
(ii) With Cause. The Company may terminate the
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employment of the Employee hereunder immediately upon written
notice thereof in the event of (a) material fraud or material
dishonesty or (b) willful neglect of duties (unless cured within
30 days of notice by the Company), or (c) committing acts
detrimental to the Company or (d) breach of his obligations under
this Agreement by the Employee in connection with his employment,
or if the Employee is convicted of a felony. In such event, the
Company shall pay the Employee only such compensation as shall
have Fully Accrued on the date of termination, less reserves for
damages by reason of Employee's actions.
(iii) Termination by Employee. The Employee may
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terminate this Agreement at any time upon 30 days' prior written
notice to the Company. In such event, the Employee shall be
entitled to receive his or her compensation only to the extent
Fully Accrued on the date of termination.
10. Death or Disability During Employment.
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(i) Death. If the Employee dies during the term of
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this Employment Agreement, the Company shall pay to the estate of
the Employee the compensation which would be Fully Accrued as of
the end of the calendar month in which his death occurs.
(ii) Disability. If the Employee becomes disabled
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during the term of this Employment Agreement, the Company shall
continue to pay to the Employee regular compensation for three
(3) months, at which point the Company may terminate the
employment of the Employee.
11. Non-Disclosure. Employee hereby agrees with Company
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that Employee will keep confidential any and all confidential
information of the Company, any future parent and such parent's
related subsidiaries ("Company and Affiliates"), including
Company and Affiliates know-how, trade secrets, customer lists,
and other information, data and proprietary information relating
to Company and Affiliates business (herein called "Proprietary
Information") and will not at any time, without prior written
consent of Company, disclose or make known or allow to be
disclosed or made known such Proprietary Information to any
person, firm, corporation, or other business entity other than
Company and Affiliates and persons or entities designed by
Company and Affiliates provided, however, that this Section 11
shall be inoperative as to information which (i) is or becomes
generally available to the public other than as a result of a
disclosure by Employee; (ii) becomes available to Employee on a
non-confidential basis from another source that has represented
that it is entitled to disclose it; (iii) was known to Employee
on a non-confidential basis prior to its disclosure; or (iv)
which Employee is required to disclose by law or regulatory or
judicial order. This provision shall survive the termination of
this Agreement.
12. Notices. Any notice required or permitted to be given
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under this Agreement shall be sufficient if in writing, and sent
by certified mail or hand delivery to the Employee's residence in
the case of the Employee, or to the principal office in case of
the Company.
13. Waiver of Breach. The waiving by the Company of a
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breach of any provision in this Agreement by the Employee shall
not operate or be construed as a waiver of any subsequent breach
by the Employee.
14. Assignment. The rights and obligations of the Company
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under this Agreement shall inure to and be binding upon the
successors, assigns and corporate owners of the Company.
15. Entire Agreement. This instrument contains the entire
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agreement of the parties. It may not be changed or altered
except by an Agreement in writing signed by the party against
whom enforcement of any waiver, change, modification, extension
or discharge is sought.
16. Attorney's Fees. In the event of any litigation or
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arbitration proceeding arising out of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees
and expenses from the losing party, whether incurred before suit
is brought, before or at trial or the arbitration proceeding, on
appeal or in insolvency proceedings.
17. Governing Law. This Agreement shall be governed by and
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construed and enforced in accordance with the laws of the State
of Minnesota, exclusive of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
Primus Marketing Associates, Inc. Employee
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("Company")
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, Director John Primus
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