EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 1st
day of October, 2005 by and between SIONIX CORPORATION, a Nevada corporation
("Employer"), and Xxxxxx X. XxXxxx ("Employee"). Employer desires to be assured
of the continued association and services of Employee in order to take advantage
of his experience, knowledge and abilities in Employer's business and is willing
to employ Employee, and Employee desires to be so employed, on the terms and
conditions set forth in this Agreement.
ACCORDINGLY, in consideration of the foregoing and the mutual covenants
set forth below, the parties agree as follows:
ARTICLE I
TERM OF CONTRACT
1.1 The term of this Agreement is effective October 1, 2005, and shall
continue until September 30, 2007, and monthly thereafter, unless sooner
terminated as hereinafter provided.
1.2 This employment may be terminated immediately, without advance
notice, upon the occurrence of any of the following:
(i) Employee's conviction of a felony, any act involving moral
turpitude, or a misdemeanor where imprisonment is imposed, or
Employee's commission of any act of theft, fraud, dishonesty, or
falsification of any employment or Employer records;
(ii) Employee's improper disclosure of the Employer's confidential or
proprietary information, or any action by Employee that has a
materially detrimental effect on the Employer's reputation or business;
(iii) Employee's failure or inability to perform any reasonable
assigned duties, following notice from the President or Board of
Directors of the Employer, and a reasonable opportunity to cure such
failure or inability, or any other breach of this Agreement by Employee
that Employee fails to cure within ten days following notice of such
breach;
(iv) Employee's chronic and unexcused absenteeism; or
(v) Employee's unlawful appropriation of a corporate opportunity,
misappropriation of funds or property of the Employer, securing or
attempting to secure personally any profit in connection with any
transaction entered into on behalf of the Employer, or any violation of
law or regulations on the Employer's premises.
ARTICLE II
SERVICES TO BE PERFORMED BY EMPLOYEE
2.1 Employee shall serve as Chief Financial Officer (CFO) of Employer
and shall perform the duties and responsibilities specified for said position in
the By-Laws of the Employer, and such other duties and responsibilities as are
usually and customarily performed by the Chief Financial Officer (CFO) of a
corporation. Employee shall work at the direction of and under the supervision
of the President, Chief Operating Officer, and Employer's Board of Directors in
connection with any aspect of Employer's business. Employee shall perform such
duties and acts commensurate with his position, skills and experience as may be
reasonably required by Employer.
ARTICLE III
COMPENSATION
3.1 Employee, during the term of employment pursuant to this Agreement,
shall be compensated pursuant to the Schedule attached hereto as Exhibit "A" and
by reference made a part hereof.
3.2 Employee shall receive automobile allowance pursuant to the Schedule
attached hereto as Exhibit "A" and by reference made a part hereof.
3.3 Employee shall be entitled to all fringe benefits offered generally
to employees of Employer, including without limitation, participation in any
qualified pension, profit-sharing, salary continuation, disability insurance,
hospitalization insurance, major medical insurance, medical reimbursement plan
or any other benefit plan established by Employer subject to the rules and
regulations in effect regarding participation in such benefit plans.
3.4 Employee shall be entitled to such business days of vacation and
such business days of sick leave each year without, reduction in compensation,
as shall be reasonably determined from time to time by the Employer's Board of
Directors; provided, however, that Employee shall be entitled to at least ten
(10) business days of vacation after one year of service. Vacation shall
increase to fifteen (15) business days after two (2) years of service and
vacation shall increase to twenty (20) days after five (5) years of service.
Employee is entitled to ten (10) days of sick leave each year.
3.5 Employee shall be entitled to the following Holidays (10) and any
additional days as determined by the Board of Directors.
i. New Years Eve and New Years Day.
ii. Memorial Day.
iii. Fourth of July.
iv. Labor Day.
v. Thanksgiving Day and Friday after.
vi. Christmas Eve and Christmas Day.
vii. One Floating Holiday.
Note: If New Years Eve and Christmas Eve fall on Saturday or Sunday this does
not warrant additional days off.
ARTICLE IV
OBLIGATIONS OF EMPLOYEE
4.1 Employee agrees to devote his full business time, attention,
knowledge and skill to the business of Employer. Notwithstanding the foregoing,
Employee shall not be deemed to be in violation of this Section 4.1, if he
engages in passive investment in any corporation, sole proprietorship,
partnership or other entity not involved in a competing business with Employer.
4.2 Employee agrees to perform the above described services at
Employer's place of business and at such other job locations as may be necessary
to satisfactorily perform Employee's duties and obligations hereunder.
4.3 Employee shall not assign this Agreement nor any duties or
obligations under this Agreement to any other person or entity.
4.4 Employee shall maintain, in good and legible condition, all
materials, supplies and other property provided to Employee by Employer. These
materials shall, however, remain the property of Employer.
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ARTICLE V
OBLIGATIONS OF EMPLOYER
5.1 Employer agrees to make the payments due Employee as hereinabove
specified, in a timely fashion, and without offset or deduction (or other than
employee withholding).
5.2 Employer agrees to provide Employee with adequate space,
administrative support, personnel, and equipment to perform Employee's duties.
5.3 With the exception of injuries, losses, and damages attributed
solely to the negligence or willful misconduct of Employee, Employer shall fully
indemnify, defend (with counsel reasonably acceptable to Employee) and hold
harmless Employee, his heirs, successors and assigns from and against all
claims, loss, liability, damage or expense (including, without limitation,
attorneys fees, court costs, investigative fees and expert witness fees) arising
from or relating, either directly or indirectly, to the Employer and/or its
business.
ARTICLE VI
TERMINATION OF AGREEMENT
6.1 After September 30, 2007, the employment provided in this Agreement
shall terminate at the will of Employer or Employee, without cause, upon thirty
(30) days written notice by the terminating party to the other party. This
Agreement may be terminated immediately, upon written or oral notice by the
terminating party, for cause, as provided in this Agreement.
6.2 This Agreement shall terminate automatically on the occurrence of
any of the following events:
A. Mutual agreement of both parties.
B. At the election of either party, upon the bankruptcy or
insolvency of the other party.
C. Death of Employee.
D. At the election of either party, upon the disability of
Employee, which renders Employee, in the opinion of Employee's treating medical
practitioner, unable to substantially perform Employee's duties under this
Agreement, for a period of six consecutive months. The right to terminate the
employment pursuant to this Paragraph 6.2 (D) shall accrue only after Employee
has been disabled for such six consecutive months.
6.3 Employer may terminate this Agreement without cause upon payment
of three (3) months' severance pay.
ARTICLE VII
TRADE SECRETS, PROPRIETARY AND CONFIDENTIAL INFORMATION.
During the term of his employment, Employee will have access to, and
become familiar with, various trade secrets and proprietary and confidential
information of the Employer ("Confidential Information"), including, but not
limited to, customer names or lists, pricing structures, customer order or
preference information, marketing and strategic plans, financial information,
training manuals, operating manuals and sales techniques. Employee acknowledges
that the Employer's business requires strict confidentiality and secrecy in
connection with its practices, procedures, and methods of operation. Employee
further acknowledges that information of this nature is confidential and is
owned, and shall continue to be owned, exclusively by the Employer. During the
Employment Period and for three (3) years after employment terminates, except as
reasonably necessary to perform his duties and responsibilities as an employee
of the Employer, Employee shall not use the Confidential Information for any
purpose or divulge the Confidential Information to any person or entity other
than the Employer, unless the Confidential Information already has become
generally known to the public (except to the extent that such information has
become generally known to the public by means of Employee's breach of this
Agreement) or unless Employee is compelled to disclose the Confidential
Information by governmental process.
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ARTICLE VIII
DOCUMENTS
Except as reasonably necessary to perform his duties and
responsibilities as an employee of the Employer, Employee shall not remove from
the Employer's office any of the Employer's books, records, documents, customer
lists, or any copies (whether in tangible or computer-readable form) of
documents without the Employer's written permission. Furthermore, Employee shall
not make any copies (whether in tangible or computer-readable form) of these
books, records, documents, or customer lists for use outside of the Employer's
office, except as specifically authorized in writing by the Employer. All such
documents and copies in the possession or control of Employee must be returned
to the Employer by Employee immediately upon the termination of his employment.
ARTICLE IX.
NON-SOLICITATION OF CUSTOMERS.
Employee agrees that, during his employment and for a period of one
year immediately following the termination of said employment for any reason,
with or without cause, except to the extent necessary to carry out his duties
and responsibilities as an employee of the Employer, he will not, directly or
indirectly, for himself or on behalf of any other person or entity, solicit,
divert away, take away or attempt to solicit, divert or take away, any Customer
of the Employer for the purpose of selling or providing to such Customer,
provided the Employer is then still engaged in the sale or provision of that
type of good or service. For purposes of this Agreement, the term "Customer"
means any individual or entity to whom the Employer provided goods or services
and with whom Employee had, alone or in conjunction with others, material
contact during the twelve months prior to the termination of his employment.
ARTICLE X
NON-RECRUITMENT OF EMPLOYEES AND CONTRACTORS.
Employee agrees that he will not, during his employment and for a
period of one year immediately thereafter, solicit or induce, or attempt to
solicit or induce, any employee or contractor of the Employer to terminate his
relationship with the Employer and/or to enter into an employment or agency
relationship with Employee or with any other person or entity with whom Employee
is affiliated in any way.
ARTICLE XI
REMEDIES
Employee acknowledges and agrees that the covenants and promises
contained in Articles VII through X of this Agreement are a reasonable and
necessary means of protecting and preserving the Employer's goodwill and its
interest in the confidentiality and/or proprietary value of its trade secrets
and confidential information. Employee further acknowledges that said covenants
and promises are a reasonable and necessary means of protecting the Employer
from unfair competition by Employee.
Employee agrees that any breach of these covenants or promises will
leave the Employer with no adequate remedy at law and will cause the Employer to
suffer irreparable damage and injury. Employee further agrees that any breach of
these covenants and promises will entitle the Employer to injunctive relief in
any court of competent jurisdiction without the necessity of posting any bond.
Employee also agrees that any such injunctive relief shall be in addition to any
damages that may be recoverable by the Employer as a result of such breach.
ARTICLE XII
GENERAL CONDITIONS
12.1 Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart shall be deemed an original instrument.
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12.2 Cooperation. Each of the parties hereto agree to execute any and
all additional documents, and take all additional actions, deemed reasonably
necessary to give full force and effect to the intent of this Agreement.
12.3 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors,
assigns, heirs, executors and administrators.
12.4 Interpretation. This Agreement shall be interpreted under and
pursuant to the Laws of the State of California.
12.5 Entire Agreement. This Agreement and any other documents executed
pursuant hereto, contain the entire agreement of the parties hereto, and
supersede all prior agreements, whether written or oral, with respect to the
subject matters covered hereby, including the Employment Agreement. No oral
representation, agreement, statement or promise made by any party hereto or by
any employee or agent of any party hereto, which is not contained herein, shall
be binding or valid.
12.6 No Continuing Waiver. No waiver of any breach of any of the terms,
conditions and covenants of this Agreement shall be construed as a waiver of any
succeeding breach of the same or other terms, covenants and conditions hereof.
12.7 Notices. Any notices required or permitted to be given hereunder
shall be in writing and may be given by personal delivery or by certified mail,
return receipt requested, addressed to each party at the address appearing with
that party's signature at the end of this Agreement. If any such notice is given
by personal delivery, said notice shall be deemed given upon receipt. If any
such notice is given by certified mail, return receipt requested, said notice
shall be deemed given on the third day following the date of mailing, as
indicated on the return receipt, regardless of whether the return receipt shows
actual delivery, provided, however, that if the return receipt of any mailed
notice indicates non-delivery, the party serving said notice shall forthwith
mail another, exact duplicate copy of said notice, to the recipient by regular
first class mail, postage prepaid. Any party may, by written notice to another
party, specify a different address for notice purposes.
12.8 Remedies Cumulative. No remedy or election hereunder shall be
deemed exclusive but shall, whenever possible, be cumulative with all other
remedies provided by agreement, at law, or in equity.
12.9 Invalidity in Part. In the event any provision of this Agreement
shall be held to be illegal, unenforceable or inoperative as a matter of law,
the remaining provisions shall remain in full force and effect unless such
construction shall substantially frustrate the purpose and intent of this
Agreement.
12.10 Covenants and Conditions. Each provision of this Agreement
performable by a party shall be deemed both a covenant and a condition.
12.11 Time of the Essence. Time is of the essence as to each and every
term, covenant and condition of this Agreement in which time is a factor.
12.12 Survival. All covenants, conditions, warranties and
representations made by any party in this Agreement shall survive the execution
and delivery of this Agreement.
12.13 Gender. The use herein of the neuter gender includes the masculine
and the feminine and the singular number includes the plural, whenever the
context so requires.
12.14 Captions. Captions in this Agreement are inserted for convenience
or reference only and do not define, describe or limit the scope or the intent
of this Agreement or any of the terms hereof.
12.15 Exhibits. All exhibits referred to herein and attached hereto are
incorporated as a part hereof.
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12.16 Assignment. This Agreement shall not be assigned, either directly
or indirectly, by any of the parties without the prior written consent of the
other party. Each party agrees to reasonably consent to any request for transfer
or assignment by another party to a revocable "estate planning" type trust in
which the transferring party is a trustor and a principal beneficiary.
12.17 Attorneys Fees. In the event of litigation concerning this
Agreement, the prevailing party shall be entitled to recover reasonable
attorney's fees from the losing party.
SIGNATURE PAGE FOLLOWS THIS PAGE.
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Executed at Orange County, California, effective on the date and year
first above written.
EMPLOYER:
SIONIX CORPORATION, A NEVADA CORPORATION
XXXXXX, XXXXXXXXXX 00000
BY: /s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX, President/Chief Executive Officer
BY: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Secretary
EMPLOYEE:
Xxxxxx X. XxXxxx
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Xxxxxx X. XxXxxx
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EXHIBIT "A"
SCHEDULE OF COMPENSATION
Employee shall receive compensation, during the term of this Agreement,
and during any extensions or renewals of this Agreement, as follows, or as
hereafter mutually agreed between the parties, in writing:
1. BASE COMPENSATION. $12,000 per month ($144,000 annual), payable
one-half on the 15th and one-half on the last day of each month during
the term of employment, to be increased by 5% on October 1, 200X, and
annually thereafter or as directed by the Board of Directors.
2. CAR ALLOWANCE. $600 per month car allowance payable on the last day
of each month during the term of employment.
3. STOCK OPTIONS (ESOP). Concurrent with the execution of this Agreement,
Employee has been granted options to purchase shares of Employer's
Common Stock from the "Sionix 200X Employee Stock Option Plan" attached
hereto.
EMPLOYER: /s/ Xxxxx X. Xxxxx EMPLOYEE: /s/ Xxxxxx X. XxXxxx
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