EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement dated as of February , 2008 (this "Agreement") is entered
into by and between Xxxxxxxxx'x Heating & Air Conditioning, Inc., a
California corporation (the "Employer"), and Xxxxxxx X. Xxxxxxxxx (the
"Employee").
Without
limiting the foregoing, as part of his duties and responsibilities and without
any additional compensation, if requested by the Employer, the Employee shall
act as the qualifier for the Employer's licenses, maintain in good standing all
of his individual licenses that may be used to qualify the Employer's licenses
and take all such other actions as may be required, desired or requested by the
Employer to act as the qualifier for the Employer or otherwise qualify the
Employer licenses or enable the Employer to obtain all such licenses.
Notwithstanding the other provisions of this Agreement, at the option of the
Employer, unless the Company elects to select an earlier date, the Employee's
obligations under this paragraph shall continue notwithstanding any expiration
or termination of this Agreement or the Employee's employment until the later of
the date that is one hundred and eighty (180) days after the date the Employee's
employment terminates or the date on which this Agreement is then scheduled to
expire (currently December 31, 2009 and as such date may be extended); provided,
however, that during any such period that the Employee is required by the
Employer to perform such services but is not being paid as an employee (e.g, the
Employee is providing such services after he has voluntarily terminated his
employment under Section 6(d) or after the period for which the Employer is
required to pay the Employee his base compensation pursuant to Section 6.3(a) or
6.3(e)) the Employer shall compensate the Employee for acting as the qualifier
for the Employer and providing such qualification services at a reasonable
market rate for providing such services (which reasonable market rate shall be
based upon the fees being paid to other individuals providing similar services
to similar companies in the same general markets in which the Employer
operates), as determined in good faith by the Employer; and provided further
that the Employee shall assist the Employer as and whenever requested to assist
the Employer to transition to another qualifier. If and to the extent that the
Employee acts as the qualifier for the Employer pursuant to this Agreement, the
Employer shall indemnify, defend and hold harmless the Employee from and against
any and all claims, actions, demands, losses, damages, costs and expenses
arising from claims asserted or brought against the Employee by any third party
to the extent arising out of the Employee's provision of qualifying services for
the Employer under this Agreement, except in each case for any that arise due to
the Employee's bad faith, willful misconduct or gross negligence, any breach of
his obligations under this Agreement or, unless the Employee reasonably believed
that his conduct was lawful (or not unlawful), any violation of law by the
Employee.
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(a) The
Employee shall be paid an annual salary of $150,000, payable in accordance with
the then-current payroll policies of the Employer (such annual salary is herein
referred to as the "Base Salary").
(b) The
Employee may also be selected to participate in certain additional incentive
programs pursuant to which the Employee may receive additional compensation (the
"Additional Compensation"), payable in accordance with the then-current payroll
policies of the Employer with respect to the types of such
compensation.
The
Employee also shall be entitled to vacation or paid time off and holiday pay in
accordance with the policies applicable to the Employer's exempt salaried
employees generally.
5.
Non-Competition, Non-Solicitation and Confidentiality.
(a)
During the period the Employee is employed by the Employer or any other Buckeye
Company (as defined below) and, in the case of a termination of employment
pursuant to Section 6(e) of this Agreement prior to the date on which the Term
is then scheduled to expire (as the Employer is required to continue to pay the
Employee his base salary as provided in Section 6(e) through such date as if he
continued to be employed during such period), thereafter until the date on which
the Term is scheduled to expire, the Employee shall not:
(i)
Directly or indirectly accept employment with, or render any service to or on
behalf of, any person, firm or corporation that engages in the Territory (as
defined below) in the heating, air conditioning, cooling, ventilation or indoor
air quality business or any other business that may be conducted in by the
Employer or any Buckeye Company or any similar business (each of the foregoing
businesses, a "Competitive Business"); or
(ii)
Directly or indirectly own, manage, operate, finance or control or participate
in the ownership, management, operation, financing or control of, or be
connected as a principal, agent, representative, consultant, advisor, investor,
owner, partner, financier, manager or joint venturer with, or permit his name to
be used by or in connection with, any Competitive Business anywhere in the
Territory; provided, however, that the Employee may (A) invest as an investor in
the voting securities of any person that is a reporting company under the
Securities Exchange Act of 1934, as amended, so long as (1) the aggregate amount
of such securities that the Employee owns directly or indirectly is less than
two percent (2%) of the total outstanding voting securities of such person, and
(2) the Employee has no other affiliation with such person, and (B) own shares
of stock of Buckeye Ventures, Inc., a Nevada corporation
("Buckeye");
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The term
"Competitive Business" shall be deemed to include any business that the Employee
knows is conducted in any material respect by the Employer or any other Buckeye
Company within the Territory. The Employee acknowledges that upon the
effectiveness of this Agreement the Employer will have business locations in Los
Molinos, California and Yuba City, California and will provide and/or will have
the ability to provide goods and services to customers anywhere within the
Territory. The term "Buckeye Company" shall mean the Employer and its direct and
indirect affiliates, including without limitation Buckeye and each parent,
subsidiary, partnership, limited liability company, joint venturer or other
related entity or any other entity directly or indirectly controlled by Buckeye.
The term "Territory" shall mean the area that consists of each business location
of the Employer and a fifty (50) mile radius from each such business location
(which if no additional locations are opened by the Employer after the date
hereof shall mean only anywhere within either (i) Los Molinos, California or a
fifty (50) mile radius of Los Molinos, California or (ii) Yuba City, California
or a fifty (50) mile radius of Yuba City, California).
(b)
During the period the Employee is employed by the Employer or any other Buckeye
Company and for a period of two (2) years after
the Employee ceases to be employed by the Employer or any other Buckeye Company
for any reason, whether before or after the expiration of the Term,
except that in the case of a termination of employment pursuant to Section 6(e)
of this Agreement prior to the date on which the Term is then scheduled to
expire (as the Employer is required to continue to pay the Employee his base
salary as provided in Section 6(e) through such date as if he continued to be
employed during such period), such period shall extend to the date that is two
(2) years following the date the Term is scheduled to expire, the Employee shall
not:
(i)
Contact, deal with or in any way solicit any person or entity that is then or at
any time during the prior three (3) years before such date was a customer of the
Employer or a customer of any other Buckeye Company with which the Employee had
actual contact or actual knowledge in an effort to (A) cause or induce, or act
in a manner that has the effect of causing or inducing, such person or entity to
purchase or otherwise obtain the benefit or use of any products or services that
are provided by any Buckeye Company or the Employer from another person or
entity, or (B) disrupt, damage, impair or interfere with, or act in any manner
that has the effect of disrupting, damaging, impairing or interfering with, any
existing or potential (1) agreement, (2) arrangement, (3) course of dealing, or
(4) negotiations between any Buckeye Company and any such person or entity;
or
(ii)
Solicit the employment of any person who is or was employed by the Employer or
any Buckeye Company, or contact any such person in an effort to or in any manner
that suggests that such person should terminate or consider terminating such
person's employment or other relationship with the Employer or with any Buckeye
Company (other than any person who has ceased to be so employed for a period of
at least one year).
(c) It is
the desire and intent of each of the parties that the provisions of Section 5(a)
and Section 5(b) of this Agreement shall be enforced to the fullest extent
permissible under applicable law. Accordingly, if any particular portion of
Section 5(a) and Section 5(b) shall be adjudicated to be invalid or
unenforceable, such Section shall be deemed amended to (i) reform the particular
portion to provide for such maximum restrictions as will be valid and
enforceable, or if that is not possible, then (ii) delete therefrom the portion
thus adjudicated to be invalid or unenforceable.
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(d)
During the period during which the Employee is employed by the Employer or by
any other Buckeye Company and at all times thereafter (regardless of the reason
for termination of the Employee's employment), the Employee will not divulge or
appropriate to his own use or to the use of others any secret, confidential or
proprietary information (the "Confidential Information") pertaining to the
business of, or acquired from other persons or entities by, the Employer,
Buckeye or any other Buckeye Company. Such Confidential Information includes,
without limitation, trade secrets; customer lists; customer prospect lists;
acquisition target lists; names, addresses, contact persons and other
identifying information of customers, prospective customers and acquisition
targets; the needs and preferences of customers and prospective customers;
knowledge that customers or prospective customers possess or may possess a
willingness to use the types of products or services offered by Employer,
Buckeye or any other Buckeye Company; business methods, plans and strategies;
marketing methods, plans and strategies; financial data; pricing information;
other terms (including expiration dates) of customer contracts; and cost
information, obtained by the Employee as a consequence of his employment,
affiliation, agreements or position with the Employer, Buckeye or any other
Buckeye Company. For purposes of this Agreement, Confidential Information does
not include any information that is or becomes generally available to and known
by the public (other than as a result of an unpermitted disclosure directly or
indirectly by the Employee). The Employee will not remove any item of
Confidential Information from the premises of any Buckeye Company except as the
Employee's duties as an employee shall require or as otherwise authorized by ,
the Employer, and upon any termination of the Employee's employment, the
Employee shall immediately return all items (including without limitation all
copies thereof) of Confidential Information, whether in printed, computer or
other form, as well as all analyses, compilations, studies, reports, manuals,
memoranda, notes, correspondence, charts, diagrams, designs, computer programs,
sales formats, supplier lists and other documents (including without limitation
all copies thereof), whether in printed, computer or other form, prepared by or
for the Employee or in the Employee's possession or control that contain or are
based in whole or in part upon such information, to the Employer or as otherwise
directed by the Employer.
(e) The
Employee acknowledges that Section 5(a), Section 5(b) and Section 5(d) of this
Agreement are expressly for the benefit of the Employer, that the Employer would
be irreparably injured by a violation of Section 5(a), Section 5(b) or Section
5(d), and that the Employer would have no adequate remedy at law in the event of
such violation. Therefore, the Employee acknowledges and agrees that, in
addition to any other remedies available, injunctive relief, specific
performance or any other appropriate equitable remedy (without any bond or other
security being required) are appropriate remedies to enforce compliance with
Section 5(a), Section 5(b) and Section 5(d).
(f) The
Employee further acknowledges that the covenants contained in Section 5(a),
Section 5(b) and Section 5(d) of this Agreement are of the essence of this
Agreement, and agrees that the existence of any breach by the Employer of any
provision of this Agreement, or the existence of any claim or cause of action of
the Employee against the Employer, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Employer of
the provisions of Section 5(a), Section 5(b) or Section 5(d). Instead, in the
event of any breach by Employer of any provision of this Agreement, the
Employee's remedy shall be to bring an independent action for breach of contract
against the Employer (except in the case of a dispute that is the subject of
Section 7, in which case the Employee's remedy is to invoke the dispute
resolution mechanism set forth therein).
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(g) THE PROVISIONS OF THIS SECTION 5 SHALL CONTINUE IN
EFFECT PURSUANT TO THEIR TERMS, NOTWITHSTANDING THE EXPIRATION OF THE TERM OR
ANY OTHER TERMINATION OF THIS AGREEMENT. No restriction contained in any
part of this Section 5 is intended or shall be deemed to limit any other
provision contained in this Section 5 or any other rights or remedies of the
Employer or any other Buckeye Company, whether under this Agreement, any other
agreement, or by law or otherwise.
(h) In
the case of a termination of the Employee's employment pursuant to Section 6(e)
where the Employer wrongfully ceases to pay the salary payments required to be
paid pursuant to Section 6(e), the Employee may elect, by written notice to the
Employer, to waive his rights to such payments and in such event the time
periods in this Section 5 which were to extend to or from the date the Term was
then scheduled to expire shall instead be determined as if the Employee
voluntarily resigned on (and, as the case may be, extend only to or from) the
date the Employee ceased to be employed (or, if later, the date the Employer
wrongfully ceased to make such salary payments to the Employee pursuant to
Section 6(e)).
The term
"Due Cause" shall mean (i) the Employee has (A) committed a willful serious act,
such as fraud, embezzlement or theft, (B) committed any act against the Employer
or any other Buckeye Company intending to enrich himself at the expense of the
Employer or any Buckeye Company, or (C) made any unauthorized use or disclosure
of any trade secret or other confidential information (including any
Confidential Information), whether pertaining to the business of the Employer or
any Buckeye Company or otherwise, (ii) the Employee has been convicted of a
felony or commits an act constituting a felony, (iii) the Employee has engaged
in conduct which has caused or could cause material, significant or serious
injury, whether monetary or otherwise, to the Employer or any other Buckeye
Company, (iv) the Employee, in carrying out his duties hereunder, has been
guilty of negligence or willful misconduct, (v) in the good faith determination
of the Employer, the Employee's performance, or the performance of the business
operations for which the Employee is responsible, has failed to meet the goals
and expectations established by the Employer, (vi) in the good faith
determination of the Employer, the Employee has violated in any material way any
of the Employer's rules, policies or procedures (including without limitation
those set forth in any employee handbook, or (vii) in the good faith
determination of the Employer, the Employee has otherwise materially breached
this Agreement (including, without limitation, any failure to perform the duties
assigned to him in accordance with this Agreement) and has not remedied such
breach within five business days (or such longer period of time not to exceed
thirty (30) days if the cure is commenced within five (5) business days, is
diligently pursued in good faith and reasonably requires more than five (5)
business days to remedy) after receipt of written notice from the Employer
specifying in reasonable detail the nature of the breach.
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(i) If,
prior to the expiration of the Term, the Employer:
(A)
terminates the employment of the Employee for any reason other than (1) for Due
Cause, (2) as a result of the death of the Employee or (3) because of a
Disability;
(B)
decreases the Employee's Base Salary below the level provided for by the terms
of Section 3(a) of this Agreement; or
(C)
materially breaches any provision of this Agreement and such breach is not cured
by the Employer within fifteen (15) days (or such longer period not to exceed
thirty (30) days if the cure is being diligently pursued in good faith and
reasonably requires longer than fifteen (15) days to cure) after receipt of
written notice from the Employee specifying in reasonable detail the nature of
such breach, then such action by the Employer, unless consented to in writing by
the Employee, shall be deemed to be a constructive termination by the Employer
of the Employee's employment ("Constructive Termination"); provided, however,
that except in the case of a termination by the Employer pursuant to clause (A)
above, no Constructive Termination shall be deemed to have occurred unless the
Employee notifies the Employer of the Employee's election to treat such event as
a Constructive Termination within thirty (30) days of the occurrence of such
event.
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(ii) In
the event of a Constructive Termination the Employee may terminate his
employment without being in breach hereof, and the Employee shall be entitled to
receive (X) his Base Salary through the balance of the Term either, at the
option of the Employer, payable in a lump sum (but discounted by a reasonable
factor as mutually determined by the Employer and the Employee) or in accordance
with the then-current payroll policies of the Employer, and (Y) any Additional
Compensation that has been awarded to or earned by the Employee but not yet
paid.
(iii) In
the event of the death or Disability of the Employee following a Constructive
Termination, the amounts set forth in Section 6(e)(ii) of this Agreement shall
continue to be owing and shall be paid to the estate of the Employee or to the
Employee, as applicable. ).
(a) The
Employee shall, within ten (10) days of notifying the Employer of his
disagreement, file a demand for arbitration with the American Arbitration
Association.
(b) The
dispute shall be resolved by a confidential, binding arbitration pursuant to the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association, as modified by the agreement of the parties as set
forth below.
(c) The
dispute shall be resolved by a single neutral arbitrator, who shall be selected
by agreement of the parties, or selected in accordance with American Arbitration
Association procedures if the parties cannot agree.
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(d) The
Employer and the Employee agree to engage in expedited discovery (including both
document production and depositions) so that each party can obtain disclosure of
relevant, non-privileged materials in a manner that will permit the close of
discovery, and then the hearing on the merits, to occur within sixty (60) days
after the filing of the arbitration demand, unless the parties mutually agree to
extend such period.
(e) The
sole issue to be resolved by the arbitrator shall be whether the termination was
for Due Cause. If the arbitrator rules that the termination was not for Due
Cause, the relief to be ordered by the arbitrator shall be limited to ordering
the Employer to comply with the provisions of Section 6(e)(ii).
(f) Each
party shall bear its own expenses (including without limitation the fees and
expenses of legal counsel and accountants) in connection with such arbitration
and the Employer and the Employee shall each bear one-half of the arbitrator's
fees and expenses.
The
Employee agrees that, pending the resolution of any dispute described in this
Section 7, he shall continue to be bound by the provisions of Section 5
(including Section 5(a) and Section 5(b)). The Employee further agrees that,
following the resolution of any dispute described in this Section 7, he shall
continue to be bound by the provisions of Section 5, with the duration of the
period provided for in Section 5(a) and Section 5(b) determined by the outcome
of the arbitration.
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(a) If to
the Employer, addressed to it at:
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c/o
Buckeye Ventures, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx
0
Xxx
Xxxxx, Xxxxxxxxxx 00000
Attn:
Board of Directors
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with a
copy to Buckeye, addressed to it at:
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Buckeye Ventures,
Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 0
Xxx Xxxxx,
Xxxxxxxxxx 00000
Attn:
President
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(b) If to
the Employee, addressed to him at:
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25259
Lincoln
Xxx Xxxxxxx,
Xxxxxxxxxx 00000
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10.
Controllinq Law. The execution, validity, interpretation and performance of this
Agreement shall be governed by and construed in accordance with the internal
laws (and not the conflicts of law provisions) of the State of
California.
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IN WITNESS WHEREOF, the Employee and the
Employer have executed this Agreement effective as of the date first above
written.
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Employer:
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Employee:
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XXXXXXXXX'X
HEATING
&
AIR CONDITIONING, INC.
By:
/s/ Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx – CFO
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/s/
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
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