EXHIBIT 10.0
EMPLOYMENT AGREEMENT
SEGMENTZ, INC.
AND
XXXXX XXXXXXXX
THIS EMPLOYMENT AND CONFIDENTIALITY AGREEMENT is made as of
the 1st day of November, 2001, by and among TRANS-LOGISTICS, INC., a Florida
corporation, which has an address at 00000 Xxxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx 00000 ("Company"), and XXXXX XXXXXXXX ("Employee"), an individual with
an address c/o the Company.
W I T N E S S E T H :
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WHEREAS, the Company desires to employ Employee in the
position of Chief Executive Officer of the Company, and Employee desires to
perform the duties as required by such position.
NOW, THEREFORE, the Company and Employee, intending to be
legally bound, agree as follows:
1. SCOPE OF EMPLOYMENT. The Company hereby employs Employee as
Chief Executive Officer of the Company. Employee will be responsible for such
duties as are commensurate with and required by such position or office, as may
be assigned to Employee by the Board of Directors of the Company from time to
time, but the Board of Directors will not assign Employee any duties
inconsistent with Employee's status or alter the nature or status of Employee's
responsibility. In addition, the Employee will execute (upon the written request
of the Company) and comply in all respects with his obligations, duties and
restrictions to be set forth in an Option Agreement of even date herewith by and
between Employee and the Company (the "Option Agreement").
During the term of this Agreement, Employee may engage in any other
business for Employee's own account or accept any employment from any other
business entity, or render any services, give any advice or serve in an advisory
or consulting capacity, whether gratuitously or otherwise, to or for any other
person, firm, or corporation.
2. TERM. The term of this Agreement will be for five (5) years
(the "Term"), commencing on the date hereof, unless sooner terminated pursuant
to Section 7 of this Agreement. This Agreement shall continue for additional one
(1) year periods unless terminated by either party on ninety (90) days prior
written notice to the other.
3. COMPENSATION.
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A). The Company will pay Employee on behalf of the Company compensation
calculated at the base rate of One Hundred Fifty Thousand Dollars ($150,000) per
annum through December 31, 2001, and thereafter with annual increases of ten
percent (10%) per annum or such higher amount as the Board of Directors shall
determine, payable in equal installments in accordance with the normal payroll
policies of the Company in effect from time to time. The Company's Board of
Directors will review and determine Employee's base salary and other
compensation on an annual basis, provided, however, that the Company's Board of
Directors may not set Employee's base salary less than as set forth above during
the respective period.
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B). The Company hereby grants employee a stock option to purchase fifteen
percent (15%) of the Company's currently outstanding stock at a price per share
of $.025, for a period of five (5) years form the date hereof.
4. BENEFITS. The Company will provide Employee with such
benefits (the "Benefits") as are provided by the Company to its senior
executives or similar companies publicly traded in your industry (namely life
insurance coverage of $1,000,000, medical and dental insurance, travel and
accident insurance, participation in 401(K) plans and bonus plans, and stock
option plans, incentive compensation plans and other benefits). In addition, the
Company will provide you with an automobile allowance of $600 per month and
shall pay your gasoline, insurance, maintenance repair and parking expenses
relating to said automobile.
5. BUSINESS EXPENSES. The Company will reimburse Employee for
all ordinary and necessary business expenses incurred and paid by Employee in
the course of and within the scope of the performance of Employee's duties in
accordance with this Agreement, provided such expenses are approved by the
President of the Company and adequate documentation of such expenses are
provided upon presentation for any reimbursement.
6. VACATION AND SICK DAYS. Employee will be entitled to a
vacation of four (4) weeks per year without loss of salary. Such vacation will
be cumulative. Employee will be entitled to receive as many paid sick days as he
requires, subject to Paragraph 7 (b) hereof.
7. TERMINATION. This Agreement may be terminated prior to the
expiration of the term set forth in Section 2 or upon the occurrence of any of
the events set forth in, and subject to the terms of, this Section 7.
(a) DEATH. This Agreement will terminate immediately and
automatically upon the death of the Employee.
(b) DISABILITY. This Agreement may be terminated at the Company's
option, immediately upon notice to the Employee, if the
Employee shall suffer a permanent disability. For the purposes
of this Agreement, the term "permanent disability" shall mean
the Employee's inability to perform his duties under this
Agreement for a period of one hundred and eighty (180) days
whether or not consecutive, in any twelve (12) month period,
due to illness, accident or any other physical or mental
incapacity, as determined by a qualified physician.
(c) CAUSE. This Agreement may be terminated at the Company's
option, immediately upon the following events: fraud, criminal
conduct, or dishonesty or embezzlement by the Employee
involving the Company (as evidenced by the conviction of a
felony).
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8. NON-DISCLOSURE OF INFORMATION. Employee acknowledges that
the Company has invested and will continue to invest considerable resources in
the research, development and advancement of its business, which investment has
or will result in the generation of proprietary, confidential and/or trade
secret data, information, techniques and materials, tangible and intangible,
which properly belong to the Company. Employee acknowledges and agrees that it
would be unlawful for Employee to appropriate, to attempt to appropriate, or to
disclose to anyone such data, information, techniques or materials, subject to
the following:
(a) Employee acknowledges that the following constitute
protectable proprietary, confidential or trade secret
information of each Company: all developments, inventions,
discoveries, enhancements, modifications, processes, formulae,
plans, devices, concepts, project outlines, schedules,
treatments, flowcharts, scripts, graphics, edit plans,
computer hardware, source codes, access codes, computer
programs, video tapes, film, records, tapes, research,
software programs (in any medium or form whatsoever and
whether programmable or read only memory), CD-ROM's, know how,
ideas, systems, operating methods, laboratory practices,
equipment, files, any proposals for development, any reports
on findings of tests, investigative studies, consultations or
the like pricing policies, budgets, strategic plans (whether
or not communicated in writing), information concerning the
sales, sales volume, sales methods, sales proposals, customers
and prospective customers, suppliers and prospective
suppliers, all written documents not in the public domain, and
any copies or imitations of the foregoing and all other
proprietary, confidential, or trade secret information,
whether or not copyrighted or patented and whether in
possession of the Company and whether created solely by
Employee, jointly with others, or solely by others.
(b) For purposes of this Agreement, all confidential, proprietary,
or trade secret information enumerated or mentioned in Section
8(a) is hereinafter referred to as "Information" and will
constitute Information whether fully developed or in the
process of development by the Company. Any restrictions on
disclosure and use of the Information will apply to all copies
of the Information, whether in whole or in part.
(c) During the term of this Agreement and at all times after
termination of this Agreement, unless authorized in writing by
the Company or during the Term of this Agreement and as part
of the Employees duties, Employee will not:
(i) use for Employee's benefit or advantage the
Information, or
(ii) use the Information for the benefit of any third
party, or
(iii) disclose or cause to be disclosed the Information or
authorize or permit such disclosure of the
Information to any third party, or
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(iv) use the Information in any way which would be
detrimental to the Company.
(d) In any judicial proceeding, it will be presumed that the
Information constitutes protectable trade secrets, and
Employee will bear the burden of proving that any Information
is publicly or rightfully known by Employee.
(e) Employee will surrender to the Company at any time upon
request, and upon termination of Employee's employment for any
reason, all written or otherwise tangible documentation
representing or embodying the Information, in whatever form,
whether or not copyrighted, patented, or otherwise, and any
copies or imitations of the Information, whether or not made
by Employee. Employee agrees to be available upon request for
consultation after termination of employment to provide
information and details with respect to any work or activity
performed or materials created by Employee alone or with
others during Employee's employment by the Company. In
addition, upon termination of employment, Employee shall
resign as an officer and director of the Company at the
written request of the Company.
10. TERMINATION BY EMPLOYEE. Employee may terminate his
employment with the Company (a) in the event that the Company breaches any of
its obligations hereunder or if Employee is not re-elected Chief Executive
Officer and President, or (b) if there is a "change in control" of the Company
or (c) upon 60 days notice in writing to the Company. A "change of control" of
the Company shall occur when Employee no longer owns more than 50% of the voting
stock of Saliva Diagnostic Systems, Inc., the parent company of the Company or
any other successor parent company of the Company or as such term is defined
under the Securities and Exchange Act of 1934, as amended.
11. COMPENSATION UPON TERMINATION, DURING DISABILITY, OR IN
THE EVENT OF A CHANGE IN CONTROL. In addition to any benefits to which you are
entitled under any insurance program or pension plan or benefit plan then in
effect, you shall be entitled to the following:
(a) In the event you are not terminated for "Cause" or you elect
to terminate your employment under Paragraph 10 hereunder, you
shall be entitled to receive:
(i) the balance of your salary in a lump sum through the
Term of this Agreement;
(ii) you shall be entitled to receive your base salary at
the time of termination for a period of five (5)
years from the end of the Term of this Agreement;
(iii) you shall continue to receive, from the date of
Termination through the Term of this Agreement and
thereafter for a period of five (5) years from the
end of the Term of this Agreement, all Benefits
referred to in Paragraph 4 which you were receiving
immediately prior to Termination, at no cost to
Employee.
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(iv) In lieu of shares of common Stock or other equity or
option plans issuable upon exercise of options
(Options), you shall receive, at your election, the
Option shares or an amount in cash equal to the
product of (A) the difference (to the extent that
such difference is a positive number) obtained by
subtracting the per share exercise price of each
Option held by Employee whether or not fully
exercisable from the higher of (i) the closing price
of the Shares as reported on any securities exchange)
on the Date of Termination, or (ii) the highest price
per Share actually paid in connection with any
"change in control" (as hereinafter defined) of the
Company, or (iii) the number of Shares covered by
each such Option (such amount being herein referred
to as the "Option Share Amount"). The Option share
Amount shall be paid to the Employee within sixty
(60) days of the Termination Date.
(b) In the event any payments hereunder shall be subject to the
excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code") or any interest or
penalties are incurred by Employee with respect to such excise
tax, then Employee shall be entitled to an additional payment
(a "Gross-Up Payment") in an amount calculated as follows:
(i) The Excise Tax shall be computed pursuant to Section
4999 of the Code on the Payments which shall include
the Option share Amount to the extent that such
Amounts shall be deemed to be "parachute payments" as
defined in Section 280G (b) (2) of the Code.
(ii) The Excise Tax shall be computed pursuant to Section
4999 of the Code on the amount of the Payments, which
for purposes of this clause shall not include the
Option Share Amount to the extent that such amounts
shall otherwise be "parachute payments" as defined in
Section 280G (b)(2) of the Code.
(iii) The Excise Tax calculated at clause (ii) shall be
subtracted from the Excise Tax calculated at clause
(i) with the result of such subtraction to be
referred as the "Difference".
(iv) The Difference shall be divided by the following
factor: One (1) minus the sum of (I) the rate of tax
imposed by Section 4999 and (II) Employees marginal
combined Federal, state, city and local income tax
rate in the year in which the payment shall be made.
The resulting amount shall be the amount of the
Gross-Up Payment. The Gross-Up Payment shall be paid
to you promptly after it has been calculated by
Employee's accountants who shall be compensated for
their services by the Company.
(c) In the event of Termination of the Employee for "Cause",
Employee will receive the payments or compensation set forth
in Paragraphs 11 (a) (i), (iii), (iv) and (b).
12. OWNERSHIP OF CREATIONS. Any and all computer programs,
processes, creations, developments, discoveries, inventions, enhancements,
modifications and improvements (hereinafter collectively referred to as
"Creation" or "Creations"), whether or not the Creations are copyrightable,
patentable, or otherwise protectable (such as by contract or implied duty),
conceived, invented, developed, created or produced by Employee alone or with
others during the term of his employment, whether or not during working hours
and whether or not on the premises of the Company, will be the sole and
exclusive property of the Company if the Creation is:
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(a) within the scope of Employee's duties assigned or implied in
accordance with his position with the Company, or
(b) a product, products, or other item which would be in
competition with the products or services offered by the
Company or which is related to the Company's products or
services, whether presently existing, under development, or
under active consideration.
13. ABSENCE OF CONFLICT OF REPRESENTATIONS. Employee warrants
and represents that Employee's performance under this Agreement will not violate
any other agreement to which Employee is a party and that Employee will not
bring any materials which are proprietary to a third party to the Company
without the prior written consent of such third party.
14. UNIQUE NATURE OF AGREEMENT. The Company and Employee agree
that the rights conveyed by this Agreement are of a unique and special nature.
Employee and the Company agree that any violation of this Agreement will result
in immediate and irreparable harm to the Company and that in the event of any
actual or threatened breach or violation of any of the provisions of this
Agreement, the Company will be entitled as a matter of right to an injunction or
a decree of specific performance from any equity court of competent
jurisdiction. Employee waives the right to assert the defense that such breach
or violation can be compensated adequately in damages in an action at law.
Nothing in this Agreement will be construed as prohibiting the Company from
pursuing any other remedies at law or in equity available to the Company for
such breach or violation or threatened violation.
15. SEVERABILITY AND REFORMATION. The covenants, provisions,
and Sections of this Agreement shall be severable, and in the event that any
portion of this Agreement is held to be unlawful or unenforceable, the same will
not affect any other portion of this Agreement, and the remaining terms and
conditions or portions thereof will remain in full force and effect. This
Agreement will be construed in such case as if such unlawful or unenforceable
portion had never been contained in this Agreement, in order to effectuate the
intentions of the Company and Employee in executing this Agreement.
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In furtherance and not in limitation of the foregoing, should
any durational or geographical restriction or restriction on business activities
covered under this Agreement be found by any court of competent jurisdiction to
be overly broad, Employee and the Company intend that such court will enforce
this Agreement in any less broad manner the court may find appropriate by
construing such overly broad provisions to cover only that duration, extent or
activity which may be enforceable. The parties acknowledge the uncertainty of
the law in this respect and expressly agree that this Agreement be given the
construction that renders its provisions valid and enforceable to the maximum
extent permitted by law.
16. ARBITRATION. All disputes between the parties concerning
the interpretation or enforcement of any rights or obligations under this
Agreement, except as otherwise provided herein, will be resolved by final and
binding arbitration pursuant to the Voluntary Arbitration Rules of the AMERICAN
ARBITRATION ASSOCIATION in Tampa, Florida.
17. MISCELLANEOUS. The failure of the Company to object to any
conduct or violation of any of the covenants made by Employee under this
Agreement will not be deemed a waiver by the Company of any rights or remedies
the Company may have under this Agreement.
This Agreement is binding upon the parties hereto and their
respective heirs, personal representatives, successors and assigns. Employee
agrees that his obligations set forth in Section 8, and 10 through 11 of this
Agreement will survive the termination of this Agreement.
The services to be rendered by Employee to the Company under
this Agreement are personal in nature and, therefore, Employee may not assign
Employee's rights under this Agreement without the prior written consent of the
Company's Board. Any attempted assignment by Employee will be void and of no
force or effect.
This Agreement will be governed and construed in accordance
with the laws of Delaware. No alterations, amendments, changes or additions to
this Agreement will be binding upon either the Company or Employee unless
reduced to writing and signed by both parties. No waiver of any right arising
under this Agreement made by either party will be valid unless given in an
appropriate writing signed by that party.
Employee has been represented by counsel in connection with
this Agreement. Employee has carefully read and fully understands all of the
provisions of this Agreement.
This Agreement constitutes the entire understanding between
Employee and the Company and supersede all prior oral or written communications,
proposals, representations, warranties, covenants, understandings or agreements
between Employee and the Company relating to the subject matter of this
Agreement.
IN WITNESS WHEREOF, the parties' duly authorized
representatives have duly executed this Agreement as of the day and year first
above written.
SEGMENTZ, INC.:
BY: S/XXXXX XXXXXXXX TITLE: CHIEF EXECUTIVE OFFICER
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THE EMPLOYEE:
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/S/XXXXX XXXXXXXX
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XXXXX XXXXXXXX
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