EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated October 1, 1996, is by and between
Mystique Developments, Inc. (the "Company") and Xxx Xxxxxx ("Employee").
The Company desires to employ the Employee on a full time basis and the
Employee desires to be so employed by the Company.
Therefore, in consideration of the mutual covenants contained herein, the
parties agree as follows:
ARTICLE I
EMPLOYMENT DUTIES AND BENEFITS
SECTION 1.1 EMPLOYMENT. The Company hereby agrees to employ the Employee in
an executive capacity, which initially shall be as President, and the Employee
agrees to be so employed, all subject to the terms and provisions of this
Agreement. Employee shall report for work on October 1, 1996, and salary shall
begin on that date.
SECTION 1.2 DUTIES AND RESPONSIBILITIES. The Employee is employed pursuant
to the terms of this Agreement. Employee shall devote his entire working time,
attention, and energies to the business of the Company. The Employee agrees to
serve in such office as he is appointed to by the Company's Board of Directors
and agrees to perform such responsibilities and duties as may be determined and
assigned to him by the Board of Directors of the Company.
SECTION 1.3 VACATIONS. The Employee shall be entitled each year to three
weeks vacation in accordance with the established practices of the Company now
or hereafter in effect for personnel in executive capacities during which time
the Employee's compensation shall be paid in full.
SECTION 1.4 COMPANY EXPENSES. The Employee is authorized to incur
reasonable expenses relating to his employment and which are for the benefit of
the Company. The Company will reimburse the Employee for all such expenses upon
the presentation by the Employee, from time to time, of an itemized account of
such expenditures. Any material expenditures, however, shall be subject at all
times to the prior approval of the Board of Directors.
SECTION 1.5 HEALTH INSURANCE. Premiums will be paid 100% by the Company, or
Employee may, at his expense, use COBRA.
ARTICLE II
COMPENSATION
SECTION 2.1 BASIC SALARY. Except as otherwise provided herein, the Company
shall pay to the Employee an annual base salary during the term of this
Agreement equal to One Hundred Twenty Thousand Dollars ($120,000 ), payable in
the amount of Ten Thousand Dollars ($10,000) per month.
SECTION 2.2 OPTIONS. Employee shall be granted incentive stock options to
purchase up to 500,000 shares of Mystique Developments, Inc.'s common stock, at
an exercise price of $1.00 per share.
ARTICLE III
TERM OF EMPLOYMENT AND TERMINATION
SECTION 3.1 TERM. This Agreement shall be for a period of three (3) years
commencing the date hereof, subject, however, to termination at any time as
provided in this Article. This Agreement shall be renewed automatically for
succeeding periods of one year on the same terms and conditions as contained in
this Agreement unless Employee shall, at least thirty days prior to the
expiration of any employment period, give written notice of the intention to
terminate this Agreement. This Agreement shall continue to govern the rights and
duties of the parties during any extension period.
SECTION 3.2 TERMINATION. The Employee's employment hereunder may be
terminated without any breach of this Agreement under the following
circumstances:
(a) DEATH. The Employee's employment hereunder shall terminate upon
his death.
(b) DISABILITY. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his
duties hereunder on a full-time basis of the entire period of three
consecutive months, the Company may terminate the Employee's employment
hereunder.
(c) CAUSE. The Company may terminate the Employee's employment
hereunder, without prior notice, for Cause. For purposes of this Agreement,
the Company shall have "Cause" to terminate the Employee's employment
hereunder upon (i) the failure by the Employee to perform the duties
assigned to him by the Company's Board of Directors, or (ii) the engaging
by the
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Employee in misconduct which is materially injurious to the Company,
monetarily, or otherwise or (iii) the violation by the Employee of the
provisions of Article IV.
(d) TERMINATION BY THE EMPLOYEE. The Employee may terminate his
employment hereunder only upon ninety (90) days prior written notice.
SECTION 3.3 COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) During the first thirty (30) day period that the Employee fails to
perform his duties hereunder as a result of incapacity due to physical or
mental illness ("disability period"), the Employee shall continue to
receive his full salary at the rate then in effect for such period,
provided that payments so made to the Employee during the disability period
shall be reduced by the sum of the amounts, if any, payable to the Employee
at or prior to the time of any such payment under disability benefit plans
of the Company and which were not previously applied to reduce any such
payment.
(b) If the Employee's employment is terminated by his death, the
Company shall pay to the Employee's spouse, or if he leaves no spouse, to
his estate, Employee's full salary and accrued bonuses through the date of
death.
(c) If the Employee's employment shall be terminated with or without
cause, the Company shall be obligated to pay the Employee his full salary
through the date of termination at the rate in effect at the time of
termination.
ARTICLE IV
CONFIDENTIALITY AND NON-COMPETE
SECTION 4.1 It is understood that Employee will acquire and be
informed of special and confidential business methods and processes used by
and belonging to the Company, including, methods, procedures, and software
and other computer related materials developed or used by the Company in
connection with its activities, as well as information relating to the
business of the Company, including information regarding acquisition
candidates, potential customers, customer lists, price lists and other
confidential information. Employee agrees that all such information
constitutes a valuable and unique asset of the Company and is in the nature
of trade secrets and is the sole property of the Company. Employee will
keep confidential, and will not use, reproduce, copy or disclose to any
other person or firm, any information relating to such methods and
processes, or the names and business of customers, or accounts, analyses,
systems, flow charts, programs, edit procedures, or any other matters
concerning any work done by the Company for its customers or done in an
effort to solicit or obtain customers; nor will Employee furnish to any
other person or firm any information, correspondence, records, programs,
systems, or other documents
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or processes used by the Company; nor will Employee advise, discuss or in
any way assist any other person or firm (including customers or former
customers of the Company) in obtaining or learning about any of the
foregoing in this Section. Employee agrees that upon termination of
employment under this Agreement, he shall surrender promptly to the Company
any and all trade secrets, business related telephone, address and business
card lists or data base, customer lists and any confidential information
which he may possess and that such trade secrets, lists and information
shall be and remain the sole property of the Company. All of the terms of
this Section shall remain in full force and effect both during the
continuation of employment of Employee by the Company and after the
termination of employment for any reason.
SECTION 4.2 Employee will devote substantially all his business time and
effort to and give undivided loyalty to the Company. Commencing on the date of
this Agreement, he will not engage in any way whatsoever, directly or
indirectly, in any business that is competitive with the Company, nor solicit or
in any other manner work for or assist any business which is competitive to the
Company.
SECTION 4.3 During the term of this Agreement, Employee will undertake no
planning for or organization of any business activity competitive with the work
he performs as an employee of the Company, and Employee will not combine or
discuss with other employees of the Company for the purposes of organization of
any such competitive business activity.
SECTION 4.4 Employee agrees to execute any and all documents and take any
and all other actions necessary or desirable for the assignment to the Company
of all of his interests in any patents or patentable ideas developed by him,
alone or in conjunction with others, in the course of his employment by the
Company. Employee agrees with the Company that any and all investments,
discoveries, improvements, designs, methods, systems, developments, "know-how,"
ideas, suggestions, devices, trade secrets, and processes (hereinafter
collectively referred to as "Discoveries"), whether patentable or not, which are
discovered, disclosed to or otherwise obtained by the Employee during his or her
term of employment is confidential, proprietary information and is the sole and
absolute property of the Company. Employee agrees to disclose promptly and
voluntarily to the Company all such discoveries. Any discoveries which Employee
discloses or offers to third parties, publishes or are implemented by Employee
or disclosed in a patent application filed by the Employee within one month
following termination of employment will be presumed, unless proven otherwise by
Employee, to have been originated or made during the period of Employee's
employment and thereby, are subject to the provisions of this Agreement.
SECTION 4.5 The parties hereto agree and acknowledge that many of the
rights conveyed by this Agreement are of a unique and special nature and that
the Company will not have an adequate remedy at law in the event of failure of
Employee to abide by its terms and conditions, nor will money damages adequately
compensate for such injury. It, therefore, is agreed between the parties that in
the event of breach by Employee of Employee's agreements contained in this
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Article IV, the Company shall have the right to arbitration. Employee agrees
that the terms of this Article shall be construed as independent of any other
agreements between the parties and shall survive the termination of his
employment for one month and Employee shall be bound by its terms at all items
subsequent to the termination of his employment for so long a period as the
Company continues to conduct the same business or businesses as it was
conducting during the period of this Agreement. The existence of any claim or
cause of action of Employee against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of Employee's covenants in this Article. Nothing herein contained shall
in any way limit or exclude any and all other rights granted by law or equity to
the Company.
ARTICLE V
GENERAL MATTERS
SECTION 5.1 COLORADO LAW. This Agreement shall be governed by the laws of
the State of Colorado.
SECTION 5.2 NO WAIVER AND NOTIFICATION. No provision of this Agreement may
be waived except by an agreement in writing signed by the waiving party. A
waiver of any term or provision shall not be construed as a waiver of any other
term or provision.
SECTION 5.3 AMENDMENT. This Agreement may be amended, altered or revoked at
any time, in whole or in part, by filing with this Agreement a written
instrument setting forth such changes, signed by all of the parties.
SECTION 5.4 TEXT TO CONTROL. The headings of articles and sections are
included solely for convenience of reference. If any conflict between any
heading and the text of this Agreement exists, the text shall control.
SECTION 5.5 SEVERABILITY. If any provision of this Agreement is declared by
any court of competent jurisdiction to be invalid for any reason, such
invalidity shall not affect the remaining provisions. On the contrary, such
remaining provisions shall be fully severable, and this Agreement shall be
construed and enforced as if such invalid provisions never had been inserted in
the Agreement.
SECTION 5.6 ENTIRE AGREEMENT. This Agreement contains, and its terms
constitute, the entire agreement of the parties, and it may be amended only by a
written document signed by both parties to this Agreement.
SECTION 5.7 ATTORNEYS FEES. In the event either party hereto finds it
necessary to employ legal counsel or to bring an action at law or other
proceedings against the other party to enforce any
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of the terms, covenants, or conditions hereof, the party prevailing in any such
action or other proceedings shall be paid all reasonable attorneys' fees by the
other party as well as court costs.
SECTION 5.8 NOTICE. For the purposes of this Agreement, notices, demands
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States registered mail, return receipt requested,
postage prepaid, address as follows:
If to the Employee: Xxx Xxxxxx
000 Xxxxx xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
If to the Company: Mystique Developments, Inc.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx X
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except the notices of change of address shall be
effective only upon receipt.
SECTION 5.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together with constitute one and the same instrument.
The parties have executed this Agreement on the date first written above.
MYSTIQUE DEVELOPMENTS, INC.
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx, President
EMPLOYEE:
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
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