ACTIVE LINK COMMUNICATIONS, INC.
FORM 8K
EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Agreement is entered into October 18, 2001, between Tamara Ells
("Ells"), Active Link Communications, Inc., a Colorado corporation ("Active
Link") and Mobility Concepts, Inc., a Wisconsin corporation, including any
successor corporation thereto (collectively, "Mobility Concepts").
WHEREAS, upon the consummation of the transactions set forth in the
Amended and Restated Agreement, dated October 18, 2001, by and among Active
Link, ALCI Acquisition Corp., a Colorado corporation ("ALCI"), Mobility
Concepts, Timothy Ells and James Ciccarelli, (collectively, the "Merger
Agreement"), Mobility Concepts, as the surviving corporation under the terms of
the Merger Agreement, desires to employ Ells, and Ells agrees to be employed by
Mobility Concepts, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE in consideration of the obligations and promises
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree to the following terms and conditions:
1. Employment. Mobility Concepts hereby employs Ells as President and
Chief Executive Officer of Mobility Concepts, and Ells agrees to accept
employment as President and Chief Executive Officer of Mobility Concepts, on the
terms set forth in this Agreement.
2. Duties and Responsibilities. The duties and responsibilities of the
President and Chief Executive Officer of Mobility Concepts shall include, but
not be limited to, the day to day operation of Mobility Concepts, coordination
of the sales activities of Mobility Concepts, the development and implementation
of the strategic sales plan of Mobility Concepts, and the hiring, promotion and
termination of all employees involved in the sales function of Mobility
Concepts. Ells acknowledges and agrees that additional duties may be assigned
from time to time in order to accommodate changing circumstances and needs of
Mobility Concepts. During the Term of this Agreement, Ells agrees that she will
devote her full time and attention to the business affairs of Mobility Concepts
and shall perform assigned duties diligently, in good faith, and to the best of
her ability.
3. Employment Term and Termination. The term of employment hereunder
shall commence as of the Closing Date set forth in the Merger Agreement, and
shall continue for a period of one (1) year, subject to earlier termination as
provided herein (the "Term"). THE TERM WILL BE AUTOMATICALLY EXTENDED FOR
ADDITIONAL SUCCESSIVE ONE (1) YEAR PERIODS BEGINNING ON EACH ANNIVERSARY OF THE
CLOSING DATE, UNLESS ELLS OR MOBILITY CONCEPTS PROVIDES THE NON-TERMINATING
PARTY WITH NOT LESS THAN THIRTY (30) DAYS PRIOR WRITTEN NOTICE THAT SUCH PARTY
DOES NOT WISH TO EXTEND THE TERM, IN WHICH CASE ELLS' TERM OF EMPLOYMENT
HEREUNDER WILL TERMINATE AT THE END OF THE TERM THEN IN EFFECT.
4. Termination. Ells' employment with Mobility Concepts may be
terminated only under the circumstances described in Sections 4(a) through 4(g)
hereof:
(a) Death. Ells' employment hereunder will automatically
terminate upon her death.
(b) Disability. If Ells is Disabled for any continuous one
hundred eighty (180) days during any twelve (12) continuous month period,
Mobility Concepts may terminate Ells' employment with Mobility Concepts. For
purposes of the Agreement, Ells shall be deemed to be "Disabled" if she has a
physical or mental disability that renders her incapable, after reasonable
accommodation, of performing her duties under this Agreement. In the event of a
dispute as to whether Ells is Disabled, Mobility Concepts may refer the same to
a licensed practicing physician mutually agreed to by Ells and Mobility
Concepts, and Ells agrees to submit to such reasonable tests and examination as
such physician shall deem appropriate. The determination of said licensed
practicing physician shall be determinative.
(c) Cause. Mobility Concepts may terminate Ells' employment
hereunder at any time for Cause. For purposes of this Agreement, the term
"Cause" shall mean: (i) the perpetration by Ells of a fraud or crime against
Mobility Concepts, or any affiliate thereof including any entity controlled by
or under common control with Mobility Concepts (collectively, the "Company"),
(ii) Ells' conviction of a crime involving moral turpitude, or (iii) Ells'
continual gross dereliction and willful abandonment of her duties and
responsibilities owed to the Company, which gross dereliction and willful
abandonment materially and adversely affect the financial condition or business
operations of the Company.
(d) Termination by Company for Good Reason. Mobility Concepts
may terminate Ells' employment hereunder at any time after the expiration of the
first (one-year) Term of the Agreement for Good Reason. For purposes hereof,
"Good Reason" means:
(i) the material failure by Ells to perform her duties
hereunder (other than any such failure resulting from
Ells' illness or incapacity) that is not cured within
thirty (30) days after Ells' receipt of a Notice of
Termination relating to such failure; or
(ii) insubordination, disloyalty to the Company or
disparagement of the Company by Ells which, in any
such case(s), individually or collectively,
materially and adversely affects the financial
condition, business operations or reputation of the
Company, and that such is not cured within thirty
(30) day after Ells' receipt of a Notice of
Termination relating to such failure.
(e) Termination by Ells Not for Good Reason. Ells may
terminate her employment hereunder at any time for any reason by giving Mobility
Concepts prior written Notice of Termination, which Notice of Termination shall
be effective not less than thirty (30) days after it is given to Mobility
Concepts, provided that nothing in this Agreement shall require Ells to specify
a reason for any such termination.
(f) Termination by Ells for Good Reason. Ells may terminate
her employment hereunder at any time for Good Reason by giving Mobility Concepts
prior written
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Notice of Termination, which Notice of Termination shall be effective not less
than thirty (30) days after it is given to Mobility Concepts, provided that such
Notice of Termination specifies in reasonable detail the Good Reason giving rise
to such termination. For purposes hereof, "Good Reason" means:
(i) a material diminution of the aggregate duties and
responsibilities of President and Chief Executive
Officer for Mobility Concepts;
(ii) any removal of Ells from, or any failure to designate
Ells to, the position of President and Chief
Executive Officer of Mobility Concepts; or
(iii) request by the Company that in connection with her
employment by Mobility Concepts, Ells relocate
outside of the Chicago area.
(g) Mutual Agreement. This Agreement may be terminated at any
time by the mutual agreement of the parties. Any termination of Ells' employment
by mutual agreement of the parties must be set forth in a written agreement
signed by Ells and a member of the Board of Directors of Mobility Concepts.
(h) Notice of Termination. Any termination of Ells' employment
by Mobility Concepts or Ells (other than a termination pursuant to mutual
agreement or death) must be communicated by a written Notice of Termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" means a dated notice which indicates the specific termination
provision in this Agreement relied on and which sets forth in reasonable detail
the facts and circumstances, if any, claimed to provide a basis for termination
of Ells' employment under the provision so indicated.
(i) Date of Termination. "Date of Termination" means the last
day Ells is employed by Mobility Concepts, provided that Ells' employment is
terminated in accordance with the foregoing provisions of this Section 4.
5. Rights Upon Termination.
(a) In the event of Ells' termination pursuant to Section
4(b), 4(c), 4(d), 4(f) or 4(g), Ells shall be entitled to a lump sum payment
(payable no later than fourteen (14) days after the Date of Termination) for:
(i) any unused vacation days and any other accrued benefits to which Ells is
entitled, as determined in accordance with Mobility Concepts policy as in effect
from time to time, and (ii) an amount sufficient to pay her COBRA payments for a
period of eighteen (18) months.
(b) In the event of Ells' termination pursuant Section 4(b),
4(d), 4(f) or 4(g) of this Agreement, Ells shall also be entitled to receive a
lump sum payment in the amount of one (1) year's base salary as severance
benefits, in exchange for her execution of an agreement not to compete with
Mobility Concepts for a period of one (1) year following the Date of
Termination. Ells' lump sum payment shall be paid as soon as practicable (and in
no event later than fourteen (14) days) after Ells' signing of such a
non-compete agreement.
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6. Compensation.
(a) Base Salary. Ells' base salary shall initially be
$150,000.00 annually and shall be reviewed and adjusted (upward only) from time
to time by Mobility Concepts in accordance with its salary and wage policies
(the "Base Salary"). In no event shall the Base Salary be adjusted upward in an
amount less than the current year's CPI, multiplied by the Base Salary for the
immediately preceding year. Mobility Concepts shall pay Ells her Base Salary in
accordance with Mobility Concepts' regular payroll practices, but not less
frequently than monthly.
(b) Bonus. Ells shall receive a discretionary annual bonus
based upon the performance of Mobility Concepts, to be awarded at the sole
discretion of the Board of Directors of the Company. Ells shall also participate
in any incentive or bonus plans established by the Company for the officers and
employees thereof in accordance with the terms of those plans.
(c) Employee Benefits. During the Term, Ells and Ells' family
and dependents shall be entitled to all such employment benefits as may, from
time to time, be made generally available to Mobility Concepts' senior managers
and their families and dependents, including without limitation, retirement
plans, medical health, dental and other similar insurance, and vacation;
provided, however, that such benefits and arrangements are made available to
such senior managers in the Mobility Concepts' sole discretion and are subject
to Ells' and Ells' family's qualification for benefits under each such plan.
Nothing in this Agreement establishes any right of Ells or Ells' family to the
availability or continuance of any such plan or arrangement, each of which may
be terminated, altered, amended or modified at any time on a non-discriminatory
basis, in Mobility Concepts' sole discretion. In addition to those employment
benefits generally available to Mobility Concepts' executives, Mobility Concepts
shall provide Ells with (i) reimbursement of up to $7,500 per year of any
amounts paid by Ells as premiums for life and disability insurance, and (ii) a
car allowance equal to $500 per month. Amounts not expended in any one category
may be applied to expenses in the other category at Ells' election.
(d) Business Related Expenses. Upon presentation of vouchers
and similar receipts, Ells shall be entitled to receive prompt reimbursement in
accordance with the policies and procedures of Mobility Concepts maintained from
time to time for all reasonable business expenses actually incurred in the
performance of her duties hereunder.
(e) Vacation. Ells shall be entitled to four (4) weeks paid
vacation for each fiscal year (prorated for any partial year) during the
duration of the Agreement at times selected by Ells.
(f) Office Facilities. Ells shall be furnished with offices in
Naperville, Illinois, and with such support and other facilities as Ells and
Mobility Concepts agree are necessary for Ells to perform her duties under the
Agreement.
7. Indemnification. The Company shall indemnify Ells if Ells was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (including an action by the Company),
whether civil, criminal, administrative, or investigative, and whether formal or
informal, by reason of (or, in the case of an action by the Company, to procure
a judgment in the Company's favor by reason of) the fact that Ells is or was a
director, officer, employee, executive or agent of the Company, or, is or was
serving at the request of the Company as a director, officer, partner, trustee,
executive, employee or agent of another foreign
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or domestic corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not-for-profit, against expenses, including attorneys'
fees, judgments, penalties, fines (criminal or civil) and amounts paid in
settlement actually and reasonably incurred by Ells in connection with such
action, suit or proceeding, to the fullest extent and in the manner permitted by
Illinois law, regardless of any indemnification or similar provision in the
By-laws or Articles of Incorporation of the Company. Expenses incurred by Ells
in defending any threatened or pending action, suit or proceeding shall be paid
by the Company in advance of the final disposition of any such action, suit or
proceeding, upon receipt of an undertaking by or on behalf of Ells to repay such
amount, in the event it is ultimately determined that Ells is not entitled to be
indemnified by the Company in accordance with this Agreement.
8. Severability. In the event that any provisions of this Agreement are
found or held to be invalid or unenforceable, the remaining provisions of the
Agreement shall nevertheless continue to be valid and enforceable as though the
invalid and unenforceable parts had not been included herein and such
determination shall not bar or affect the Company's right to obtain relief based
on the remaining provisions of this Agreement. Each provision of this Agreement,
for this purpose, is severable and independent of every other provision.
9. Applicable Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Illinois.
10. Integration. This Agreement constitutes the complete agreement
between the parties concerning the matters referred to herein. The parties
acknowledge that no statement, promise or representation has induced them to
sign this Agreement other than those contained herein. No amendment or
modification of this Agreement shall be effective unless it is in writing and
signed by Ells and a member of the Board of Directors of Mobility Concepts.
11. Headings and Capitalized Terms. The headings contained in this
Agreement are inserted for convenience only and are not to be considered in
construction of the provisions herein. Any and all capitalized terms used herein
and not otherwise defined herein, shall have the meaning set forth in the Merger
Agreement, as it may be amended from time to time.
12. Binding Effect. This Agreement shall survive a change of control or
sale of Mobility Concepts and shall be binding upon and inure to the benefit of,
and shall be enforceable by and against, Mobility Concepts and its successors
and assigns, and Ells and her heirs, beneficiaries and legal representatives. It
is agreed that Ells may not delegate or assign her rights and obligations under
this Agreement.
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WHEREFORE, the parties have executed this Agreement as of the date
first stated above.
TAMARA ELLS, an individual ACTIVE LINK COMMUNICATIONS, INC.,
a Colorado corporation
/s/ Tamara A. Ells BY: /s/ James Ciccarelli
- -------------------------------------- --------------------------------
Its: Chairman
Date: 10/18/01 -------------------------------
---------------------------------
Date: 10/18/01
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MOBILITY CONCEPTS, INC., a Wisconsin
corporation
BY: /s/ Timothy A. Ells
--------------------------------
Its: President
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Date: 10/18/01
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