AMENDEDAND RESTATED EMPLOYMENTAGREEMENT RogerSnow

a.  

From the Commencement Date through October 31, 2008, Employee shall be paid an annual base salary of two hundred forty thousand dollars ($240,000), paid in the same intervals as other employees of the Company; and, for fiscal year 2007, Employee has received all bonus amounts to which he is entitled.  Further, if employed full-time through October 31, 2008, then Employee will be eligible to receive an executive bonus in accordance with the terms and conditions of the executive bonus program authorized by the Board of Directors of the Company (the “Board”) for other senior management executives of the Company for fiscal year 2008, in a range of percentages, but with a target bonus of 50% of Employee’s base salary, but, for fiscal year 2008, Employee is guaranteed to receive a bonus of no less than Sixty Thousand Dollars ($60,000).

b.  

For any subsequent year after fiscal year 2008, Employee will receive an annual base salary of no less than his annual base salary for the immediately prior fiscal year of this Agreement, and will also be eligible to participate in an executive bonus program and/or in an individual performance bonus program as authorized by the Board for said period.

c.  

Other than the executive bonus program set forth herein, there are no other bonus programs or amounts, including Employee’s fiscal 2007 bonus program, applicable to Employee.

d.  

At the next regular-scheduled Board meeting after the execution hereof, Company shall recommend to the Board that the Employee be issued 30,000 restricted stock units of the Company (the “RSUs”).  Notwithstanding any other provision contained herein, or in the Plan, the RSUs shall vest one-half on the second (2nd) anniversary of the initial grant date by the Board of Directors (the “Grant Date”) and one-half on the fourth (4th) anniversary of the Grant Date, provided the Employee is still employed, on a full-time basis, with the Company on each of said anniversary dates, but same may accelerate vest under certain conditions, as set by the Board.  Future equity grants, if any, will be at the discretion of the Board of Directors, provided, however, that such RSUs will be treated in such a manner as to comply with Section 409A of the Code.

e.  

Any stock options, the RSUs, and any other equity grants (“Equity”) issued at any time to Employee shall vest in accordance with the terms and conditions set forth in the applicable grant by the Board, and, as may be otherwise applicable, with any relevant terms and conditions of the Company’s 2004 Equity Incentive Plan (the “Plan”), as amended, or any subsequent plan, provided, however, that such RSUs will be treated in such a manner as to comply with Section 409A of the Code.

f.  

During the Term and provided the Employee is employed with the Company on a full-time basis, Employee shall receive an annual golf membership allowance in an amount not to exceed Six Thousand One Hundred Dollars ($6,100) per year.  The golf membership allowance shall include the golf membership fee and any golf course playing fees and cart fees.  In the event of a termination of Employee’s full-time employment by Company for just cause or a voluntary termination by Employee, Employee shall reimburse the Company for the prorated portion of the golf membership allowance remaining in the Company’s fiscal year.

g.  

Employee’s salary is set in the expectation that Employee’s full professional time will be devoted to Employee’s duties hereunder.

h.  

During Employee’s employment with the Company, the Company will promptly pay or reimburse Employee for reasonable travel and other expenses incurred by Employee in the furtherance of or in connection with the performance of Employee’s duties.  Such reimbursement will be in accordance with Company policies in existence from time to time.

i.  

Notwithstanding any other provision contained herein, Employee shall be and is an employee “at will,” terminable at any time, with or without just cause or notice.

a.  

The services do not interfere in any manner with the Employee’s ability to fulfill all of his duties and obligations to the Company.

b.  

The services are not rendered to any business that may compete with the Company in any area of the Business or do not otherwise violate paragraph 4 hereof.

c.  

The services do not relate to any products or services, which form part of the Business.

d.  

Employee informs and obtains the prior written consent of the Chief Executive Officer of the Company.

a.  

Directly or indirectly own, manage, operate, participate in, consult with or work for any business that is engaged in the Business anywhere in the United States or Canada.  Notwithstanding the foregoing, it is understood and agreed that Employee may hold up to one percent (1%) of the shares of any publicly traded company.

b.  

Either alone or in conjunction with any other person, partnership or business, directly or indirectly, solicit, hire, or divert or attempt to solicit, hire or divert any of the Employees, independent contractors, or agents of the Company (or its affiliates or successors) to work for or represent any competitor of the Company (or its affiliates or successors), or to call upon, on behalf of a competitor of or to the Business, any of the customers of the Company (or its affiliates or successors).

c.  

Directly or indirectly provide any services to any person, company or entity, which is engaged in the Business anywhere in the United States or Canada.

a.  

Employee shall fully and promptly disclose to the Company all inventions, discoveries, software and writings that Employee may make, conceive, discover, develop or reduce to practice either solely or jointly with others during Employee’s employment with the Company, whether or not during usual work hours.  Employee agrees that all such inventions, discoveries, software and writing shall be and remain the sole and exclusive property of the Company, and Employee hereby agrees to assign, and hereby assigns all of Employee’s right, title and interest in and to any such inventions, discoveries, software and writings to the Company.  Employee agrees to keep complete records of such inventions, discoveries, software and writings, which records shall be and remain the sole property of the Company, and to execute and deliver, either during or after Employee’s employment with the Company, such documents or assignments as the Company shall deem necessary or desirable to obtain such letters patent, utility models, inventor’s certificates, copyrights, trademarks or other appropriate legal rights of the United States and foreign countries as the Company may, in its sole discretion, elect, and to vest title thereto in the Company, its successors, assigns, or nominees.  If, after request, Employee fails to promptly execute any such documents or assignments, Employee hereby appoints the Company as its attorney-in-fact to execute, on Employee’s behalf and in Employee’s name, any such documents or assignments.

b.  

“Inventions,” as used herein, shall include inventions, discoveries, improvements, ideas and conceptions, developments and designs, whether or not patentable, tested, reduced to practice, subject to copyright or other rights or forms of protection, or relating to data processing, communications, computer software systems, programs and procedures.

c.  

Employee understands that all copyrightable work that Employee may create while employed by the Company is a “work made for hire,” and that the Company is the owner of the copyright therein.  Employee hereby assigns all right, title and interest to the copyright therein to the Company.

d.  

Employee has no inventions, improvements, discoveries, software or writings useful to the Company or its subsidiaries or affiliates in the normal course of business, which were conceived, made or written prior to the date of this Agreement.

e.  

Employee will not publish or otherwise disclose, either during or after Employee’s employment with the Company, any published or proprietary or confidential information or secret relating to the Company, the Business, the Company’s operations or the Company’s products or services.  Employee will not publish or otherwise disclose proprietary or confidential information of others to which Employee has had access or obtained knowledge in the course of Employee’s employment with the Company.  Upon termination of Employee’s employment with the Company, Employee will not, without the prior written consent of the Company, retain or take with Employee any drawing, writing or other record in any form or nature which relates to any of the foregoing.  Notwithstanding the foregoing, Employee shall have the right, as reasonably necessary, to retain copies of this Agreement, any employee stock option and restricted stock agreements, and any other documents, information or materials related to Employee’s compensation or benefits from the Company, in order to confidentially review such items with Employee’s professional advisors or immediate family members.  In addition, and subject to the provisions of paragraph 22 hereof, nothing in this paragraph 5(e) or in paragraph 5(f) below shall be construed to prevent or preclude Employee from responding to legal process or testifying truthfully.

f.  

Employee understands that Employee’s employment with the Company creates a relationship of trust and confidence between Employee and the Company.  Employee understands that Employee may encounter information in the performance of Employee’s duties that is confidential to the Company or its customers.  For the Term hereof, and until the information falls into the public domain, Employee agrees to maintain in confidence all information pertaining to the Business or the Company to which Employee has access including, but not limited to, information relating to the Company’s products, inventions, trade secrets, know how, systems, formulas, processes, compositions, customer information and lists, research projects, data processing and computer software techniques, programs and systems, costs, sales volume or strategy, pricing, profitability, plans, marketing strategy, expansion or acquisition or divestiture plans or strategy and information of similar nature received from others with whom the Company does business.  Employee agrees not to use, communicate or disclose or authorize any other person to use, communicate or disclose such information orally, in writing, or by publication, either during Employee’s employment with the Company or thereafter except as expressly authorized in writing by the Company unless and until such information becomes generally known in the relevant trade to which it relates without fault on Employee’s part, or as required by law.  Subject to the foregoing, Employee shall have the rights set forth in the final two grammatical sentences of paragraph 5(e) above.

a.  

Employee’s employment by the Company is “at will;” therefore, subject to the terms and conditions hereof, the Company may terminate Employee’s full-time employment at any time either with or without just cause.  In the event of any termination of Employee’s full-time employment with the Company without just cause, then Employee will remain bound to the covenants not to compete and confidentiality obligations of paragraphs 4 and 5 of this Agreement, according to their terms, and, provided Employee executes the Release (as defined in paragraph 6(a)(v), each one of the following shall apply, subject to Section 23 hereof:

b.  

For purposes hereof, any of the following acts or events shall, at Employee’s option, constitute a termination without just cause under this paragraph 6 (provided, however, that such termination occurs on or within two years of such acts or events):

a.  

dishonesty as to a matter which is materially injurious to the Company;

b.  

the commission of a willful act or omission intended or likely to materially injure the business of the Company;

c.  

a violation of any of the material provisions of Sections 4 and/or 5 hereof;

d.  

a determination in good faith by the CEO or the President that the Employee has failed to make a good faith effort to fully perform his duties as assigned to the Employee, which failure is not remedied by the Employee within fifteen (15) days following written notice stating such alleged failure;

e.  

the Employee is repeatedly inattentive to his duties pursuant to this Agreement and has received written notice of same and, if curable, has failed to so cure within 15 days of such written notice; or

f.  

the Employee fails or is unable to become licensed in any jurisdiction where licensing is required, or once licensed, any loss or suspension thereof.

a.  

In the event Employee voluntarily terminates his employment with the Company, Employee will remain bound under the provisions of paragraphs 4 and 5 hereof, but will not be entitled to receive any compensation and benefits following his termination of employment except for any accrued but unpaid salary or other benefits required by law.

b.  

Voluntary termination means an intentional termination by the Employee without good reason and without pressure by the Company; and further, provided that there was not a material breach of this Agreement by the Company, prior to any such termination that remains uncured.

a.  

During any period of time wherein the Company is paying any base salary to Employee, whether during the Term hereof or during any time after the termination or expiration of this Agreement, and for a period of three (3) years thereafter, Employee shall not disparage or otherwise make any negative comments about the Company, its policies, products, Employees or management.  The Company may enforce these non-disparagement provisions by resort to injunctive relief as set forth in paragraph 13, in addition to any other damages that it may be entitled to under this Agreement or otherwise at law.  Notwithstanding the foregoing, nothing in this paragraph 22(a) shall preclude Employee from fully pursuing any legitimate claims he may have or from testifying truthfully in an arbitration or other legal proceeding.

b.  

Employee agrees to fully cooperate with the Company and its affiliates during the entire scope and duration of any litigation or administrative proceedings involving any matters with which Employee was involved during Employee's employment with the Company.  Such cooperation shall be subject to the reasonable demands of any subsequent employment undertaken by Employee, and Company shall cover any reasonable out-of-pocket expenses of Employee in so cooperating, excluding, any attorney’s fees incurred by Employee, unless said attorney’s fees are expressly authorized, permitted, or required under this paragraph 22.

a.  

This Agreement is intended to comply with Section 409A of the Code (to the extent applicable) and, to the extent it would not adversely impact the Company, the Company agrees to interpret, apply and administer this Agreement in a manner necessary to comply with such requirements and without resulting in any diminution in the value of payments or benefits to the Employee. Notwithstanding any other provisions of this Agreement, the Company does not guarantee that payments will be exempt or comply with Section 409A of the Code, nor will the Company indemnify, defend or hold harmless Employee with respect to the tax consequences of any such failure.

b.  

It is intended that (i) each installment of the payments provided under this Agreement is a separate “payment” for purposes of Section 409A of the Code, (ii) that the payments satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v) and (iii) all amounts set forth in Section 6 shall be payable only upon a termination of the Employee’s employment that constitutes a “separation from service” within the meaning of Treasury Regulation 1.409A-1(h).

c.  

Notwithstanding anything to the contrary in this Agreement, if the Company determines (i) that on the date the Employee’s employment with the Company terminates, the Employee is a “specified employee” (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of the Company and (ii) that any payments to be provided to the Employee pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code if provided at the time otherwise required under this Agreement then such payments shall be delayed until the date that is six months after the date of the Employee’s “separation from service” with the Company, or, if earlier, the date of the Employee’s death.  Any payments delayed pursuant to this Section 23 shall be made in a lump sum on the first day of the seventh month following the Employee’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)), or, if earlier, the date of the Employee’s death.

d.  

To the extent that any reimbursement, fringe benefit or other, similar plan or arrangement in which the Employee participates during the term of Employee’s employment under this Agreement or thereafter provides for a "deferral of compensation" within the meaning of Section 409A of the Code, (i) the amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), and (ii) subject to any shorter time periods provided herein or the applicable plans or arrangements, any reimbursement or payment of an expense under such plan or arrangement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred.

 

 

 

 

BY:   /s/ Mark L. Yoseloff

 

 

BY:   /s/ Roger Snow

 

ITS:  Chief Executive Officer

 

 

 

BY:   /s/ Lou Castle

 

ITS:  Chairman