Exhibit 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement',) is made and entered into as of the 16
day of September, 1999 by and between XxxxxXxxxx.xxx Inc. ("Company") and Xxxxx
X. Xxxxxxx Xx..
WHEREAS, the Company desires to employ Xxxxx X. Xxxxxxx Xx. as the "Vice
President" of the Company;
WHEREAS, Xxxxx X. Xxxxxxx Xx. has agreed to provide such services in accordance
with the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual promises herein made and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Employment. Company shall employ Xxxxx X. Xxxxxxx Xx. as Vice President
during the term of this Agreement and Carrier hereby accepts such employment.
Xxxxx X. Xxxxxxx Xx. shall be responsible for US operations on a daily basis,
and shall have such other duties regarding the Company as shall be determined
from time to time by the Board of Directors of the Company ("Board")..
Term of Employment. The term of employment of Xxxxx X. Xxxxxxx Xx. shall
be for a term of 2 years from the date of this Agreement ("Initial Term") and
shall automatically extend for additional terms of 2 year(s) ("Renewal Term")
unless this Agreement is terminated as of the last day of the Initial Term or as
of the last day of any Renewal Term upon not less than ninety (90) days prior
written notice by either party to the other, subject to earlier termination as
provided in paragraphs 4, 5, and 6 hereof.
Compensation. Base Salary. $78,000.00 shall be paid a base salary at the annual
rate of 10% in the 1st year of this Agreement; increases for the second and
third year are contingent upon review by the compensation committee, which will
be established by the Board of Directors, commencing on the date that the
Company completes full funding of the 23-27 million dollar offering of its
common stock, which offering is being made pursuant to the Company's
Registration Statement on Form SB-2 to be filed under the Securities Act of
1933, as amended, with the Securities and Exchange Commission on or about
November 1999 (the "Offering").
Cash Bonus. Xxxxx X. Xxxxxxx Xx. shall be paid a cash bonus, if any,
within the sole discretion of the Board of Directors of the Company. Such bonus
shall be paid within a reasonable period of time after the Board of Directors in
its discretion awards such cash bonus.
(c) Stock Bonus. Xxxxx X. Xxxxxxx Xx. shall receive a stock bonus, if any,
within the sole discretion of the Board of Directors of the Company. Such stock
bonus shall be implemented within a reasonable period of time after the Board of
Directors in its discretion awards such stock bonus.
(d) Vacation. Xxxxx X. Xxxxxxx Xx. shall be entitled to paid vacation and paid
Federal and state holidays in accordance with the vacation policy of the Company
then in effect, but no less than one (1) weeks of vacation the first
year. Every year thereafter the employee will receive two (2) weeks of vacation
every year up to five years.
(e) Other Benefits. Xxxxx X. Xxxxxxx Xx. shall be entitled to participate in all
benefit programs made generally available to other management employees of the
Company, on the same terms and conditions as they are offered to others,
including but not limited to medical, dental, and term life insurance benefits.
Xxxxx X. Xxxxxxx Xx. shall also be provided, at Company expense, with a vehicle
for business use, including all transportation and insurance costs associated
therewith.
(f) Severance Payment. In the event of the termination of Xxxxx X. Xxxxxxx Xx.
employment hereunder prior to the end of the Initial Term, or any Renewal Term,
by the Company without cause (except termination upon death or total and
permanent disability) including any deemed termination by the Company as set
forth in paragraph 4(b) hereof, the Company shall pay one (1) lump-sum severance
benefits equal to ninety (90) days of base compensation ("Severance Payment"),
which Severance Payment shall be made to Xxxxx X. Xxxxxxx Xx. within fifteen(15)
days of the notice of termination of employment.
(g) Stock Option Grants/Employee Stock Ownership Plan. Xxxxx X. Xxxxxxx Xx.
shall be entitled to participate and receive stock option grants from the
Company's Employee Stock Option Plan ("ESOP") during his employment with the
Company, at the discretion of the Board of Directors or committee of the Board
responsible to administer the ESOP, in amounts which are proportional to and at
the same time as option grants are made to other members of the Company's senior
management and according to terms and conditions which are comparable to such
ESOP option grants received by other members of the Company's senior management.
Termination of Employment.
Termination For Cause. The Company may terminate the employment of Xxxxx X.
Xxxxxxx Xx. at any time for cause (as hereinafter defined) upon written notice.
The term "for cause" shall mean: the continued failure by Xxxxx X. Xxxxxxx Xx.
to substantially perform his primary duties as Xxxxx X. Xxxxxxx Xx. of the
Company in a reasonable professional manner other than due to temporary or total
disability or death, after a written demand for such substantial performance is
delivered to Xxxxx X. Xxxxxxx Xx. by the Board of Directors of the Company; the
unauthorized dissemination of significant trade secrets or other proprietary
property of the Company; the commission of a felony or commission of a crime
involving dishonesty or moral turpitude; the commission of any act or acts of
dishonesty which acts are intended to result or do result directly or indirectly
in gain or personal enrichment of Xxxxx X. Xxxxxxx Xx. or a related person or
affiliated company or when such acts are intended to cause harm or damages to
the Company;
the continued use of alcohol so as to have an adverse effect on the
performance of his duties;
the misappropriation or embezzlement of Company assets;
the knowingly furnishing of material false reports or information to the
directors or officers of the Company; or the making of serious disparaging
remarks regarding the Company publicly or to suppliers and/or customers or
potential customers of the Company.
Default. Either party may terminate this Agreement upon the breach of any
material provision of this Agreement by the other party upon thirty (30) days
prior written notice; provided, however, that such termination notice shall not
be effective if the defaulting party corrects such default prior to the date of
termination. Termination by Xxxxx X. Xxxxxxx Xx. of his employment hereunder by
reason of the default of the Company shall be deemed for all purposes of this
Agreement a termination by the Company without cause.
Disability. The Company may terminate the employment of Xxxxx X. Xxxxxxx
Xx. under this Agreement by written notice upon the total and permanent
disability of Xxxxx X. Xxxxxxx Xx.. Total and permanent disability shall mean
the inability of Xxxxx X. Xxxxxxx Xx. to substantially perform the essential
functions of his position, with or without reasonable accommodations, due to
sickness or other physical or mental disability, for thirty (30) days in any
thirty (30) day period or a period of time which exceeds the time for medical
leave provided by law, whichever period is longer. The Company shall give Xxxxx
X. Xxxxxxx Xx. written notice of any termination hereunder.
Death. The employment of Xxxxx X. Xxxxxxx Xx. under this Agreement
automatically terminates upon the death of Xxxxx X. Xxxxxxx Xx..
Expense Reimbursement. Xxxxx X. Xxxxxxx Xx. shall be reimbursed, upon a
proper accounting, for all expenses reasonably incurred in connection with this
employment hereunder, including all reasonable travel and entertainment expenses
pursuant to Company policy.
Confidential Information. During the Initial Term or any Renewal Term of
this Agreement, Xxxxx X. Xxxxxxx Xx. shall not use or disclose to others,
without the prior written consent of the Company, any customer lists, trade
secrets, secret know-how, or other confidential information relative to the
business of the Company obtained by Xxxxx X. Xxxxxxx Xx. in the course of
rendering services pursuant to this Agreement. The obligation of Xxxxx X.
Xxxxxxx Xx. with respect to any item of such information shall terminate if that
item of information becomes disclosed in published literature or otherwise
becomes publicly available, provided that such public disclosure did not result,
directly or indirectly, from any act or omission of Xxxxx X. Xxxxxxx Xx.. Upon
the leaving the employ of the Company for any reason, Xxxxx X. Xxxxxxx Xx. shall
continue to be bound by this Paragraph 8 for a period of one (1) years, and
shall not take with him any customer lists, confidential data, or other
documents and instruments which are the property of the Company. All such data,
documents and instruments and all copies thereof shall be surrendered by Xxxxx
X. Xxxxxxx Xx. to the Company on or prior to the termination of his employment.
Notices. All notices, requests, demands and other communications required
or permitted hereunder shall be in writing and shall be deemed to have been
given when delivered by hand or upon delivery to the address set forth below, if
delivered by any other means, addressed to the party and delivered to the
address set forth below or to such other address as such party gives written
notice in substitution therefor:
Limitations.
Non-Compete. Xxxxx X. Xxxxxxx Xx. agrees that during the term of his
employment with the Company hereunder and for a period of one (1) years
thereafter he shall refrain, directly and indirectly, jointly and severally,
from managing, operating, financing, participating in the ownership, management
or operation of or be employed by, consult with, advise or be otherwise engaged
in any manner with, any business engaged in the providing of services or
products competitive to those provided by the Company in any geographic area in
which the Company operates as of the date that Xxxxx X. Xxxxxxx Xx. leaves the
Company's employment. Ownership of less than 5% of companies whose securities
are publicly traded is not prohibited by this Agreement.
Non-solicitation of Customers. Xxxxx X. Xxxxxxx Xx. agrees that during the
term of his employment with the Company hereunder and for a period of one (1)
years thereafter he shall not, on his own behalf, or on behalf of another,
directly or indirectly, solicit, contact, call upon, communicate with or attempt
to communicate with any customer or prospective customer of the Company with a
view to the providing of services or products which are competitive with those
that are marketed or provided by the Company as of the date that Xxxxx X.
Xxxxxxx Xx. leaves the Company's employment, provided that these restrictions
shall apply only to customers or prospects of the Company which have been
customers or prospects with whom Xxxxx X. Xxxxxxx Xx. has had contacts on behalf
of the Company.
Non-solicitation of Employees. Xxxxx X. Xxxxxxx Xx. agrees that during the
term of his employment hereunder and for a period of one (1) years thereafter,
Xxxxx X. Xxxxxxx Xx. will not directly or indirectly solicit or in any other
manner encourage employees of the Company to leave its employ for an engagement
in any capacity with any other company or entity.
Limitations. Notwithstanding the foregoing, the covenants of
XxxxxXxxxx.xxx Inc. pursuant to this paragraph 10 shall terminate upon the
termination of Xxxxx X. Xxxxxxx Xx. employment by the Company without cause or
by reason of the Company's breach of its obligations hereunder.
Dispute Resolution. Any dispute regarding the interpretation, breach,
damages or otherwise related to the interpretation or construction of this
Agreement shall be resolved by binding arbitration before one or more
arbitrators appointed by the American Arbitration Association ("AAA") in the
city of Nashville, Tennessee, pursuant to the AAA's Commercial Arbitration
Rules. Either party may institute the action by notice to the AAA and to the
other party. Prior to the filing of any complaint with the AAA, the parties
shall meet and attempt to resolve the dispute. The cost of such arbitration
shall be borne equally by the parties. Any decision or award by said
arbitrator(s) shall be binding on the parties. Notwithstanding the foregoing,
any party hereto may apply to any court for a temporary or permanent injunction
or restraining order to specifically enforce any provision hereof.
Binding Effect. This Agreement shall inure to the benefit of and be
binding upon Xxxxx X. Xxxxxxx Xx. and his estate and personal representatives
and upon the Company and its successors and assigns. This Agreement may not be
assigned, pledged or otherwise hypothecated by Xxxxx X. Xxxxxxx Xx..
Successors and Assigns. The Company shall cause any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the assets or outstanding securities of the Company, by
written agreement in form and substance reasonably satisfactory to counsel to
Xxxxx X. Xxxxxxx Xx. to perform the obligations of the Company pursuant to this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place. In the event the
Company has a parent, the parent shall guaranty the obligations of the Company
hereunder. The rights and obligations of the Company under this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of the
Company regardless of whether such successor or assign consents in writing
thereto. The rights of Xxxxx X. Xxxxxxx Xx. hereunder shall inure to the benefit
of and be enforceable by Xxxxx X. Xxxxxxx Xx. and his estate and legal
representative.
Severability. In the event of the invalidity, in whole or in part, of any
term or provision of this Agreement, the parties agree that such invalidity
shall not affect the validity of any other term or provision of this Agreement
and that such provision shall be subject to partial enforcement to the extent
permitted under applicable law.
Entire Agreement. This Agreement constitutes the entire understandings of
the parties with respect to the employment of Xxxxx X. Xxxxxxx Xx. by the
Company and supersedes all prior agreements and understandings, oral or written.
Amendments. This Agreement may not be amended or modified except in a
writing signed by both parties.
Waiver. The failure by a party to insist upon strict performance of any
provision hereof shall not constitute a waiver of such provision. All waivers
must be in writing to be enforceable hereunder.
Governing Law. This Agreement shall be made and in all respects shall be
interpreted, construed and governed by and in accordance with the laws of the
State of Nevada, without giving effect to the rules governing conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
COLORSMART INC.
BY: /s/ Xxxxx Xxxxxxx Xx. /s/ Xxxxx Xxxxxxx Xx.
Chief Executive Officer ---------------------
Sept 20, 1999
/s/ Xxxxx Xxxxxxx Xx.
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20 Sept 99
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