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EXHIBIT 3.3
SHORT TERM EMPLOYMENT AGREEMENT
THIS SHORT TERM EMPLOYMENT ("Agreement"), made and entered into as of
the _____ day of January, 1997, by and between SHAWN W. POOLE, an individual
resident of Lincolnton, North Carolina ("Employee") , and PCA INTERNATIONAL,
INC., a North Carolina corporation with its principal executive offices located
in Matthews, North Carolina (the "Company").
IN CONSIDERATION of the promises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. Employment. Subject to the terms and conditions stated
herein, and in consideration of Employee's obligations and covenants, the
Company agrees to employ Employee on an active and full-time basis, and Employee
accepts such employment, subject to the order, supervision and direction of the
Chief Financial Officer of the Company (the "CFO"), or another officer of the
Company as determined by the Chief Executive Officer (the "CEO").
2. Duties. Employee shall serve the Company and shall devote his
full business time, skill and best efforts to the business of the Company and
faithfully perform such executive, administrative and supervisory duties as may
be prescribed by the CFO. Employee shall act at all times in compliance, in
all material respects, with all policies, rules and decisions adopted from time
to time by the Board of Directors of which Employee shall have received written
notice. The CFO shall deal with the Employee in good faith and shall not
require that Employee be required to relocate his residence, travel to the
extent that he must spend more nights away from home than are reasonably
required to further the Company's business, or perform tasks which would be
demeaning or degrading to, one in his position.
3. Term of Employment. The term of Employee's employment by the
Company hereunder shall commence as of the date hereof and shall continue for a
period of four (4) months after such commencement date, as such period may be
extended from time to time by the Company (the "Term of Employment").
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4. Compensation. The monthly compensation rate to be paid to
Employee for the services to be rendered hereunder (the "Monthly Base Rate")
throughout the Term of Employment shall be Fifteen Thousand Six Hundred
Twenty-Four Dollars ($15,624.00), payable in accordance with the Company's
normal payroll practices, subject to applicable federal and state income and
social security tax withholding requirements.
5. Termination Without Cause.
(a) The Board of Directors or the CEO may terminate
Employee's employment at any time, without cause. In the event of a
termination during, at the end of or after the Term of Employment other than a
Termination for Cause, as hereinafter defined, the Company will pay to Employee
in a lump sum within ten (10) days after termination $31,248.00 as severance.
(b) In the event Employee decides to terminate his
employment with the Company at the end of or at any time after the first four
(4) months hereof, the Company will pay Employee the severance set forth in
subparagraph (a) above. The provisions of this subparagraph (b) shall survive
the end of the Term of Employment.
6. Termination for Cause.
(a) The Board of Directors or the CEO shall have the
right at any time, without advance notice, to terminate Employee's employment
for cause, as hereinafter defined ("Termination for Cause").
(b) Termination for Cause shall mean termination because
of Employee's death, inability to perform his duties hereunder, theft from the
Company, embezzlement of the Company's funds, falsification of the Company's
records, fraud committed against the Company, commission of a felonious
criminal act involving the Company or while engaged in conduct of the Company's
business, incompetence due to the use of or reporting to work under the
influence of alcohol, narcotics, other unlawful drugs or controlled substances,
legal incapacity, insanity, act or acts involving dishonesty or misconduct
which have or may reasonably be expected to have a material adverse effect on
the business or reputation of the Company, breach of fiduciary duty to the
Company, willful and
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substantial failure to perform stated duties or lawful directives of the Board
of Directors subject to the provisions of Section 2 hereof, the CEO or other
officer of the Company designated by the CEO, or material breach of any
provision of this Agreement, including without limitation voluntary termination
of this Agreement during the first 4 months hereof.
(c) In the event of a Termination for Cause, Employee
shall have no right thereafter to receive any compensation or other benefits
from the Company, except for COBRA.
7. Expenses. The Company shall reimburse Employee for those
expenses that are incurred by him in connection with the performance of his
duties under this Agreement that are consistent with Company policies and
practices, are reasonably related to the business of the Company and have been
approved, generally or specifically, verbally or in writing, by the CFO or the
CEO.
8. Governing Law. This Agreement shall be construed and
governed under the laws of the State of North Carolina.
9. Binding Nature. Except as expressly provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and assigns. The obligations and
covenants of Employee are personal in nature and, as such, are not assignable
by him.
10. Entire Agreement; Prior Oral Agreement; Amendment. This
Agreement contains the entire agreement of the parties with respect to the
matters set forth herein and supersedes all prior written and prior or
contemporaneous oral agreements or understandings of the parties hereto. This
Agreement confirms and sets forth the prior oral agreement of the parties as to
the terms and conditions of Employee's employment by the Company stated herein
and Employee's agreement to enter into a written employment agreement with the
Company, as of the date his employment by the Company commenced, stating such
terms and conditions. This Agreement may be changed or amended only by an
agreement in writing signed by both parties hereto.
11. Severability, Invalidity or Unenforceability. The
severability, invalidity or unenforceability of any paragraph or part of any
paragraph herein shall not in any way affect the validity or
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enforceability of any other paragraph or any part of any other paragraph.
12. Prior Agreements and Covenants of Employee. Employee hereby
warrants and represents that he is not a party to any agreement or binding
obligation, oral or written, that would prevent his employment by the Company,
and Employee's execution of this Agreement and his fulfillment of his duties
and obligations hereunder do not and will not violate the provisions of any
agreement, contract, loan document or other binding written or oral obligation.
13. Notices. Any notice, offer, acceptance or other document
required or permitted to be given pursuant to any provisions of this Agreement
shall be in writing, signed by or on behalf of the person giving the same, and
(as elected by the person giving such notice) delivered by hand or mailed to
the parties at the following addresses by registered or certified mail, postage
prepaid, return receipt requested, or by a third party company or governmental
entity providing delivery services in the ordinary course of business, which
guarantees delivery on a specified date:
If to Employee: Shawn W. Poole
811 N. Oak Street
Lincolnton, NC 28092
If to the Company: PCA International, Inc.
815 Matthews-Mint Hill Road
Matthews, North Carolina 28105
Attention: John Grosso
With copies to: Thomas B. Henson
ROBINSON, BRADSHAW & HINSON, P.A.
One Independence Center
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246-1900
(704) 377-2536
or to such other address as any party hereto may designate by complying with
the provisions of this Section 15.
Such notice shall be deemed given (i) as of the date of written
acknowledgment by Employee or an officer of the Company if
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delivered by hand, (ii) seventy-two (72) hours after deposit in United States
mail if sent by registered or certified mail or (iii) on the delivery date
guaranteed by the third party delivery service if sent by such service.
Rejection or other refusal to accept or inability to deliver because
of changed address of which no notice has been received shall not affect the
date upon which the notice is deemed to have been given pursuant hereto.
Notwithstanding the foregoing, no notice of change of address shall be
effective until the date of receipt hereof.
IN WITNESS WHEREOF, Shawn W. Poole has set his hand and seal hereto
and PCA International, Inc. has caused this Agreement to be executed and sealed
in its name by its duly authorized officials as of the day and year first above
written.
EMPLOYEE:
______________________________(SEAL)
SHAWN W. POOLE
COMPANY:
PCA INTERNATIONAL, INC.
By:
______________________________
John Grosso
President and CEO
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