Blueprint
Exhibit
10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This
Executive Employment Agreement (“Agreement”) is made
and effective May 29, 2019 (“Effective Date”) by and
between PARK CITY GROUP, INC., a Nevada Corporation and ReposiTrak,
a Utah corporation (“collectively Company”) and JOHN R.
MERRILL (“Executive”).
NOW,
THEREFORE, the parties hereto agree as follows:
1. Employment.
Company hereby agrees to employ Executive as its Chief Financial
Officer, Principal Accounting Officer and Executive hereby accepts
such employment in accordance with the terms of this Agreement.
Executive’s duties shall be performed at the Company’s
principal executive offices in Salt Lake City, Utah.
2. Duties
of Executive. During the Employment Term of this Agreement
as defined in Paragraph 5 (“Employment Term”),
Executive will perform his duties faithfully and to the best of his
ability and will devote his full business efforts and time to the
Company. Executive shall be responsible for duties typical of the
office held by the Executive.
3. Compensation.
Executive shall be paid compensation during the Employment Term as
follows:
A.
A Base Salary of
$18,750 per month ($225,000 annualized), payable in installments
according to the Company’s regular payroll
schedule.
B.
A bonus of up to
50% of Base Salary, payable quarterly, based on the following
milestones: Personal (50%) Company (50%) both of which to be
determined. Bonus is payable in either cash or stock at the
election of Executive.
C.
19,800 restricted
common shares granted on the Effective Date ($5.01 per share),
which shall vest 6,600 shares per year of the Employment Term on
the anniversary of the Effective Date.
4. Benefits.
A. Holidays and
Personal Time. Executive shall be entitled to paid holidays and
personal time off in accordance with the Company’s holiday
and personal time off policies but not less than twenty (20) days
of each calendar year during the Employment Term, (as prorated for
partial years) with the time and duration of any specific personal
time off mutually and reasonably agreed to by the parties
hereto.
B. Medical, Dental and
Group Life Insurance. Company agrees to include Executive in group
medical, dental, vision, ESPP, HSA, 401(k), and any other benefit
plans of the Company. The group benefit plans are subject to
change.
C. Expense
Reimbursement. Executive shall be entitled to reimbursement for all
reasonable expenses, including, but not limited to, business class
air travel, hotels, meals and entertainment, etc. incurred by
Executive in the performance of Executive’s duties. Company,
at its expense, will also provide Executive a $300 per month
stipend to Executive for cellular and other out of pocket
costs.
5. Term,
Termination and Severance.
A. Employment
Term of Agreement. The Employment Term of this Agreement shall
commence on May 16, 2019 and shall terminate on May 15, 2022.
Thereafter, the Agreement shall be reviewed and renewed upon the
mutual agreement of Executive and Company. The Company and
Executive agree to revisit this Agreement and Executive’s
employment not later than 60 days prior to the termination date and
Executive’s employment may be renewed or extended upon the
mutual agreement of the Executive and the Company. If the Company
and Executive take no action the terms of the Agreement shall
remain in full force and effect.
B. Termination and
Severance:
(i) “Cause”
shall mean (a) Executive’s continued willful or deliberate
violations of Executive’s obligations for thirty (30) days
after Company has delivered to Executive a written demand for
performance from the Company which describes the basis for the
Company’s belief that Executive has not substantially
performed his duties, (b) Executive’s commission of a felony,
an act of fraud against the Company or the misappropriation of
property belonging to the Company, or (c) Executive’s
breaching in any material respect, the terms of the Proprietary
Information clause of this Agreement between Executive and the
Company, section 9, below.
(ii) “Involuntary
Termination Other than for Cause” shall mean without the
Executive’s express written consent (a) a reduction in
Executive’s job title, (b) a substantial reduction in
Executive’s duties, authority and responsibilities;(c) a
substantial reduction in the Executive’s Base Salary of
greater than 3% compared to Executive’s Base Salary in effect
immediately prior to such reduction; (d) the relocation of the
Executive to a facility or location more than thirty-five (35)
miles from Executive’s present location; (e) any purported
termination of the Executive by the Company that is not effected
for Disability or Cause; or (f) the assumption or non-assumption of
this Agreement by any successors of the Company.
(II) Benefits
Upon Involuntary Termination Other than for Cause. If
Executive’s employment with the Company terminates as a
result of an Involuntary Termination other than for Cause or at the
end of the term of this Agreement, the Executive shall be entitled
to receive the following:
(i) All restricted
shares and other equity shall become one hundred percent (100%)
vested.
(ii) Executive
shall receive a cash payment equal to six (6) months of
Executive’s Base Annual Salary at the time of the
Executive’s highest compensation level.
(iii) Executive
shall receive health benefits at least equal to his cost of COBRA
for the six (6) months of the severance period.
6. Voluntary
Termination; Termination for Cause. If Executive’s
employment with the Company terminates voluntarily by Executive or
for Cause by the Company, then Executive is not eligible for
additional payments beyond amounts already earned and/or restricted
shares, or PTO already vested at that time (except if the Company
elects to enforce Executive’s noncompetition agreement in
section 10(A), below ). If Executive voluntarily terminates his
employment with the Company, he shall provide written notice to the
Company Chief Executive Officer at least fourteen (14) days prior
to terminating such employment.
7. Death
or Disability. If Executive’s employment terminates by
reason of Death or “Disability,” defined as
Executive’s failure to perform his material duties due to a
physical or mental injury, infirmity or incapacity for 90
consecutive days (including weekends and holidays) in any 365-day
period Company shall pay or provide the Executive (i) any unpaid
Base Salary through the date of termination; (ii) any unpaid bonus
earned prior to the date of termination; (iii) reimbursement for
any unreimbursed expenses incurred through the date of termination;
and (iv) all other payments or benefits to which the Executive may
be entitled under the terms of any applicable compensation
arrangement or benefit, equity or benefit plan or program or grant
of this Agreement (collectively, "Accrued Amounts").
8. Proprietary
Information. During the term of this Agreement and
thereafter, Executive shall not, without the prior written consent
of the Company’s Board of Directors, disclose or use for any
purpose (except in the course of his employment under this
Agreement and in furtherance of the business of the Company or its
subsidiaries) any confidential information or proprietary data of
the Company.
9. Non-Competition/Non-Solicitation/Non-Disparagement.
A. Executive
acknowledges that the nature of the Company’s business is
such that if Executive were to become employed by, or substantially
involved in, the business of a competitor the Company during the
six (6) six months following the termination of Executive’s
employment, would cause substantial and irreparable harm to the
Company. Thus, to protect the Company’s goodwill, trade
secrets and confidential information, Executive agrees and
acknowledges that Executive will not directly or indirectly engage
in (whether as an employee, consultant, agent, proprietor,
principal, partner, stockholder, corporate officer, director or
otherwise), nor have any ownership interest in or participation in
the financing, operation, management or control of, any person,
firm corporation or business that competes with Company in the Salt
Lake City Area Metro at the Company’s election. If the
Company elects to enforce this non-competition provision, it shall
notify Executive in writing and provide Executive a cash payment
equal to six (6) months of Executive’s Base Annual Salary at
the time of the Executive’s highest compensation
level.
B. For a period of six
(6) months following Executive’s separation from the Company,
Executive shall not solicit any employee, customer, supplier or
consultant of the Company to engage in any business activity with
or at the behest of Executive.
C. The Company and
Executive agree not to make any statements, written or verbal, or
cause or encourage others to make any statements, written or
verbal, that defame, disparage or in any way criticize the personal
or business reputation, practices, or conduct of the other party
(including, its employees, directors and officers).
10. Assignment.
This Agreement and all rights under this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the parties
hereto and their respective personal or legal representative,
executors, administrators, heirs, distributes, devisees, legatees,
successors and assigns. This Agreement is personal in nature, and
neither of the parties to this Agreement shall, without consent of
the other (which consent will not be unreasonably withheld), assign
or transfer this Agreement or any right or obligation under this
Agreement to any other person or entity.
13. Notices. All notices, requests, demands
and other communications called for hereunder shall be in writing
and shall be deemed given (i) on the date of delivery, or if
earlier (ii) one (1) day after being sent by a well-established
commercial overnight service, or (iii) three (3) days after being
mailed by registered or certified mail, return receipt requested,
prepaid and addressed to the parties or their successors at the
following addresses, or at such other addresses as the parties may
later designate in writing:
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If to the
Executive:
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John R.
Merrill
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P.O. Box
982852
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Park City, Utah
84098
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If to the
Company:
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Attn: Chairman or
General Counsel
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Park City Group,
Inc.
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5282 South Commerce
Dr., Suite D292,
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Murray, UT
84107
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Or such
other addresses or to the attention of such other person as the
recipient party has previously furnished to the other party in
writing in accordance with this paragraph.
14.
Notice of Termination by the
Company. Any termination by the Company of Executive’s
employment with the Company shall be communicated by a written
notice of termination to Executive at least fourteen (14) days
prior to the date of such termination (or at least 90 days prior to
the date of termination by reason of Executive’s Disability).
Such notice shall indicate the specific termination provision or
provision in this Agreement relied upon (if any), shall set forth
in reasonable detail the facts and circumstances claimed to provide
a basis for termination under the indicated provisions, and shall
specify the termination date.
15.
Waiver. Failure or delay on
the part of either party hereto to enforce any right, power, or
privilege hereunder shall not be deemed to constitute a waiver
thereof. Additionally, a waiver by either party or a breach of any
promise hereof by the other party shall not operate as or be
construed to constitute a waiver of any subsequent waiver by such
other party.
16.
Severability. Whenever
possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but
if any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability
will not affect any other provision or any other jurisdiction, but
this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
17.
Applicable Law. This
Agreement shall be governed by and construed in accordance with the
laws, of the State of Utah.
18.
Attorneys’ Fees. The
prevailing party shall be entitled to reasonable attorneys’
fees and costs incurred in any action related to enforcement of
this Agreement.
19.
Counterparts. This Agreement
may be executed in one or more counterparts, none of which need
contain the signature of more than one party hereto, and each of
which shall be deemed to be an original, and all of which together
shall constitute a single agreement.
IN WITNESS WHEREOF, each of the parties
has executed this Agreement, in the case of the Company by their
duly authorized officers, as of the day and year first above
written.
Park City Group, Inc.
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By: /s/ Randall K.
Fields
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/s/ John R.
Merrill
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Randall K.
Fields
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John R.
Merrill
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Chairman of the
Board
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Date May 29,
2019
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