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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is by and between E-Z
Serve Corporation, a Delaware corporation (the "Company"), and Kathleen
Callahan-Guion, an individual residing in Alexandria, Virginia (the
"Employee"). The parties hereto, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, hereby agree as follows:
1. Employment. The Company hereby employs Employee and Employee hereby
accepts employment with the Company subject to the terms and conditions set
forth in this Agreement. Employee will use her reasonable best efforts to
begin working at the Company by March 17, 1997, but no later than March 24,
1997 (the "Start Date").
2. Term. This Agreement shall be effective immediately upon full
execution hereof, but the term of Employee's employment ("Employment Term")
shall commence as of the Start Date and continue through the date two (2) years
thereafter, unless terminated earlier as provided in this Agreement.
3. Compensation.
a. Salary. As compensation for all services of whatever type
rendered by Employee in the performance of her duties or obligations under this
Agreement, the Company shall in the aggregate pay Employee a base salary of
$225,000 per year during the Employment Term.
b. Bonus. Based on the actual performance of the Company as
compared to its budgeted performance, and any other criteria that the Board may
determine, during each year of the Employment Term, as determined by the Board
of Directors of the Company, Employee's target bonus per year shall be $175,000
("Bonus").
c. Additional Compensation. Employee shall receive $5,100 per
year for a car allowance and the Company shall pay monthly dues plus a
reasonable initiation fee at a club of Employee's choice
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d. Relocation Expenses. Company shall pay or reimburse to
Employee her expenses to relocate to the greater Houston, Texas metropolitan
area as follows:
1. Travel costs for a reasonable number of trips for Employee and
her spouse for purposes of locating a residence in the
Houston, Texas, area;
2. Employee's temporary living expenses in the Houston, Texas,
area while locating and accomplishing the move to a permanent
residence;
3. Movement of household goods by a commercial carrier to include
the following: packing materials, packing labor, loading
labor, transportation, unloading labor, unpacking labor,
debris pickup and insurance/replacement coverage.
4. Reasonable closing costs on sale of current residence to
include real estate commission paid at settlement (up to 7%),
document preparation, notary public, reasonable attorney fees
and title insurance.
5. Reasonable closing costs on the purchase of new residence in
Houston to include appraisal fees, credit report, lender's
inspection fee, mortgage insurance application fee, settlement
or closing fee, title search, title examination fee,
attorney's fee, title insurance, recording fees, city/county
tax stamps, deed and mortgage, and state tax stamps, deed and
mortgage, and loan origination fee (up to 1% of first mortgage
principal).
6. Loan discount points (up to 2%).
7. Relocation of two personal vehicles to include the relocation
of one vehicle to Houston shortly after the Start Date and the
second vehicle at the time of the final move.
8. An incidental relocation payment equal to two months salary
less normal payroll and withholding deductions, payable within
30 days of the Start Date.
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9. Such other reasonable and necessary expenses of relocation as
may be incurred by Employee and approved by Company.
Except for those items set forth in subparagraph 8 hereof, all
payments made to or on behalf of Employee pursuant to this
paragraph shall be subject to a "tax adder" with respect to
federal income taxes only which shall be paid by Company to
Employee to offset additional tax liability created by such
payments.
e. Stock Options. When sufficient shares are authorized under
the Company's 1991 Stock Option Plan ("1991 Plan"), Employee shall be issued
options to purchase 500,000 shares of the Company's common stock under the 1991
Plan at an exercise price of the market price of the shares of common stock as
of the effective date hereof. When sufficient shares are authorized under the
Company's 1994 Stock Option Plan ("1994 Plan"), Employee shall be issued
options to purchase 1,500,000 shares of the Company's common stock under the
1994 Plan at an exercise price of $0.70 per share. Following the first
anniversary of the Start Date, Employee's performance shall be evaluated and
the Board of Directors may designate Employee as a "Senior Executive" under the
1991 Plan and the 1994 Plan. Further, in the event there should occur prior to
the issuance of such options to Employee an event that accelerates the vesting
of the options under the 1991 Plan or that permits a participant of the 1994
Plan to sell his or her stock, the Employee shall receive the same economic
benefits she would have been entitled to had she been issued the options under
the 1991 Plan and the 1994 Plan on the date hereof.
f. Withholding. All salary, bonus, commissions and any
termination payments made pursuant to this Agreement shall be subject to any
and all payroll and withholding deductions required by the law of any
jurisdiction, state or federal, having taxing authority with respect to such
salary, bonus and/or commissions.
4. Other Benefits. In addition to the compensation specified in Section
3 above, Employee also shall be entitled to receive the following benefits as
made available on the same terms and conditions to other employees of the
Company, all in accordance with such policies as may be established by the
Company:
a. Annual vacation of four weeks and specified holidays, both
with full pay; and
b. Group hospitalization, major medical, and any long-term
disability and life insurance coverages.
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In addition, the Company will reimburse Employee for her medical and dental
COBRA payments during the period, not to exceed 60 days from the Start Date
that Employee is not eligible to participate in the Company's benefit plans.
5. Duties. Employee shall be employed as the President and Chief
Operating Officer of the Company and shall perform such services and functions
for the Company and its subsidiaries as may from time to time be specified by
the Chief Executive Officer of the Company or such subsidiaries' respective
Boards of Directors.
6. Trade Secrets and Confidential Information. The Company and Employee
acknowledge and agree that during the term of her employment with the Company,
Employee will have access to certain confidential information relating to the
business of the Company, including, but not limited to, corporate books and
records, trade secrets, know-how, computer programs, marketing plans, financial
information, personnel information, lists of vendors, consultants, customers
and suppliers with which the Company does business or has engaged in
negotiations, as well as to certain information pertaining to confidential or
secret designs, processes, formulae, plans, processes, techniques, procedures,
methods, trademarks, patents, copyrights, devices or materials, if any, of the
Company (or an affiliate thereof) (collectively, the "Confidential
Information"), all of which are of extreme importance to the future financial
success of the Company because of the highly specialized nature of the Company'
business. To ensure the continued secrecy of the Confidential Information,
Employee agrees that she will not, during the term of her employment under this
Agreement, or at any time thereafter, divulge, furnish or make accessible to
anyone (other than in the ordinary course of business of the Company or any
affiliate thereof), any knowledge or information with respect to any of the
Confidential Information relating to the business of the Company. Upon the
termination of Employee's employment with the Company, Employee shall not take
from the premises of the Company and shall return to the premises, if
previously taken, any such Confidential Information and any records, files or
other documents, or copies thereof, relating to the business or affairs of the
Company. The obligations of this paragraph shall not apply to any (i) use or
disclosure of any information in the enforcement of Employee's rights
hereunder; (ii) information that is now or later becomes publicly available
through no fault of Employee; (iii) information obtained by Employee from a
third party, other than in connection with Employee's employment by the
Company, without any obligation of secrecy or confidentiality; (iv) information
independently developed by Employee without reference to any Confidential
Information; (v) any disclosure required by applicable law, provided that
Employee shall use reasonable efforts to give advance notice to and cooperate
with Company in connection with any such disclosure; and (vi) any disclosure
with the consent of Company.
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7. Termination.
a. Employee's employment by the Company shall terminate
immediately upon the death or permanent disability of Employee. Employee shall
be deemed permanently disabled if deemed so in accordance with the terms of the
1994 Plan.
b. Employee may voluntarily terminate her employment with the
Company by giving 60 days written notice to the Company prior to Employee's
desired termination date.
c. The Company may terminate Employee's employment with the
Company by giving 60 days written notice to the Employee prior to the proposed
termination date.
d. The Company may also terminate Employee's employment for Cause
(as defined in the 1994 Plan) by giving 24 hour written notice to the Employee
prior to the proposed effectiveness of the termination ("Cause Termination").
e. Any termination caused other than by Employee's death shall
not, however, relieve Employee of her obligations pursuant to Section 6 hereof.
8. Continuing Rights Upon Termination of Employment. Immediately upon
the effectiveness of the termination of Employee's employment with the Company,
all rights of the Employee to receive any payment hereunder shall immediately
cease, except as follows:
a. In the event Employee voluntarily terminates her employment
with the Company for any reason, Employee shall receive any payments due and
payable or which have accrued under this Agreement at the time of termination;
provided, however, that no Bonus payment under paragraph 3.b above shall accrue
or be payable for the year of termination or any subsequent year thereafter.
b. In the event of Employee's termination of employment by the
Company for any reason other than a Cause Termination, Employee shall be
entitled to a lump sum severance payment on the date of termination in the
amount of $225,000.
c. In the event of a Cause Termination, Employee shall not
receive any payments under this Agreement other than pursuant to clause (a) of
this Section 8.
9. Acknowledgments of Employee. Employee hereby acknowledges that her
execution of this Agreement is given in consideration of the Company's
employment of Employee
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under the terms and conditions contained in this Agreement and Employee
acknowledges that this is adequate consideration.
10. Miscellaneous.
a. Notice. Any notice, request, reply, instruction, or other
communication provided or permitted in this Agreement must be given in writing
and may be served (i) by depositing same in the United States mail in certified
or registered form, postage prepaid, addressed to the party or parties to be
notified with return receipt requested, (ii) by telecopy with a confirming copy
forwarded as in clause (i) or (iii) by delivering the notice in person to such
party or parties. Notice deposited in the United States mail in the manner
herein prescribed shall be effective on dispatch. Notice by telecopy shall be
effective upon confirmation of a completed transmittal. Written notice given by
delivery or by certified or registered mail shall be effective upon actual
receipt by the party to be notified. For purposes of notice, the address of
Employee, her spouse, any purported donee or transferee or any administrator,
executor or legal representative of Employee or her estate, as the case may be,
shall be as follows:
Kathleen Callahan-Guion
419 North Fairfax Street
Alexandria, Virginia 22314
The address of the Company for purposes of notice hereunder shall be:
E-Z Serve Corporation
2550 North Loop West, Suite 600
Houston, Texas 77092
Telecopy: (713) 684-4367
Employee and the Company shall have the right to change their respective
addresses by giving notice as provided herein.
b. CONTROLLING LAW. THE EXECUTION, VALIDITY, INTERPRETATION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS.
c. Entire Agreement/Amendment. This Agreement contains the
entire agreement of the parties hereto and supersedes any prior written or oral
agreements among
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the parties with respect to the subject matter hereof. The Agreement may be
amended only by an agreement in writing signed by the parties hereto.
d. Separability. If any provision of the Agreement is rendered
or declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by decree of a court of last resort, the Company and
Employee shall promptly meet and negotiate substitute provisions for those
rendered or declared illegal or unenforceable, but all of the remaining
provisions of this Agreement shall remain in full force and effect.
e. Effect of Agreement; Assignment. This Agreement shall be
binding on Employee and her heirs, executors, administrators, legal
representatives and successors and the Company and its successors and assigns.
This Agreement may not be assigned by Employee. This Agreement may be assigned
by the Company to any entity acquiring its business or substantially all of its
assets (whether through an acquisition or by the dissolution of the Company or
by the transfer of the business of the Company to an affiliate of the Company),
and Employee specifically consents to such future assignment.
f. Execution. This Agreement may be executed in multiple
counterparts each of which shall be deemed an original and all of which shall
constitute one instrument.
g. Waiver of Breach. The waiver by the Company or Employee of a
breach of any provision of the Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach.
EXECUTED AND EFFECTIVE this 4th day of March,1997.
E-Z SERVE CORPORATION
By: /s/ Neil H. McLaurin
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Neil H. McLaurin
Chairman and Chief Executive
Officer
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EMPLOYEE:
/s/ Kathleen Callahan-Guion
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Kathleen Callahan-Guion
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