EXHIBIT 10.31
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made this first day of January, 2005 by and between
ULTRASTRIP SYSTEMS, INC., a Florida corporation (the "Company"), and XXXX X.
XXXXXXX ("Executive").
In consideration of the mutual covenants and agreements herein contained, the
compensation to be paid hereunder and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. TERM OF EMPLOYMENT. The Company hereby employs Executive and Executive hereby
accepts employment with the Company for a period commencing as of January 1,
2005 and terminating, unless sooner terminated as provided herein, on January 1,
2008. If both parties hereto are pleased with the state of the relationship,
they shall commence discussions no later than June 1, 2007 concerning renewal of
the employment period. This Agreement shall automatically renew for a twelve
(12) month period on the terms herein set forth unless the Company shall have
notified Executive prior to January 1, 2008 that the Agreement shall not be
renewed.
2. DUTIES OF EXECUTIVE. Executive is hereby hired and employed by the Company as
its Chief Operating Officer to perform the duties and accept the
responsibilities typical for such position and shall devote his efforts to
rendering services to the Company in such capacity. Executive shall not be
required without his consent to undertake responsibilities not commensurate with
his position.
3. COMMITMENT. During the term hereof, Executive shall devote substantially all
of his productive time, ability and attention to the business of the Company.
4. COMPENSATION OF EXECUTIVE.
(a) BASE SALARY. Executive shall be entitled to receive from the
Company a base salary ("Base Salary") of: (A) one hundred fifty thousand dollars
($150,000) in Year 1; (B) one hundred sixty five thousand dollars ($165,000) in
Year 2; (C) one hundred eighty thousand dollars ($180,000) in year 3. Base
Salary shall be payable in accordance with the normal payroll scheduling
practices of the Company.
(b) INCENTIVE BONUS. In addition to his Base Salary, the Company
shall pay Executive an annual incentive cash and incentive stock option bonus
("Incentive Bonus") based upon the Company's and the Executive's performance, in
such amount as may be determined by the President of the Company. The incentive
cash bonus may not be more than 40% of Base Salary. Each incentive cash Bonus
shall be payable to Executive during the second week of December of each year of
the term
hereof. In addition, Executive may be granted an incentive stock option to
acquire not more than sixty thousand (60,000) shares of the Company's common
stock at an exercise price per share that is equal to 110% of the fair market
value per share of the Company's common stock on and after the last day of
December of each of 2005, 2006, and 2007. Options are exercisable at any time
through December 31, 2014.
(c) STOCK OPTION. As additional compensation, as proposed in the
"global solution," Executive shall be granted upon execution of this Agreement
an incentive stock option to acquire three hundred thousand (300,000) shares of
the Company's common stock at an exercise price per share that is equal to 110%
of the fair market value per share of the Company's common stock. Options are
exercisable at any time through December 31, 2014.
5. EXECUTIVE BENEFITS. Executive and Executive's immediate family shall be
included as a beneficiary at the Company's expense under the Company's group
health insurance policy. Executive shall be entitled to receive all benefits
generally made available to executives of the Company.
6. PERSONAL TIME OFF (PTO) including SICK LEAVE and PERSONAL DAYS
Executive shall be entitled to a minimum of four (4) weeks, twenty (20) workdays
of personal time off (PTO) including vacation, personal days and sick leave at
full pay during each twelve (12) month period of employment.
o Personal time off (PTO) may be exercised in half-day
increments.
o To limit company liability, no more than one (1) week, five
(5) work days, may be carried forward to a new year without
the CEO's approval.
7. REIMBURSEMENT OF EXECUTIVE EXPENSES. Executive shall be expected to incur
various business expenses customarily incurred by persons holding like
positions, including, but not limited to, traveling, entertainment and similar
expenses, for the benefit of the Company. Subject to the Company's policy
regarding the reimbursement of such expenses, the Company shall reimburse
executive for such expenses from time to time, at executive's request, and
executive shall account to the Company for such expenses.
o Automobile usage for company business will be reimbursed at
the annual rate established by the Internal Revenue Service.
This does not include mileage associated with the executive's
travel to and from work.
8. TERMINATION BY THE COMPANY.
(a) The Company shall have the right to terminate this Agreement under
the following circumstances:
(i) Upon the death of Executive;
(ii) Upon notice from the Company to Executive in the event of
an illness or other disability, which has incapacitated him from performing his
duties for twelve (12) consecutive weeks as determined in good faith by the
Board; or
(iii) For "good cause" upon notice from the Company.
Termination by the Company of Executive's employment for "good cause" shall be
limited to the following circumstances:
(A) Executive is convicted of, pleads guilty to or
pleads NOLO CONTENDERE to a felony crime involving moral turpitude;
(B) Executive is found guilty of or pleads no contest
to fraud, conversion, embezzlement, falsifying records or reports or a similar
crime involving the Company's property;
(C) Executive willfully breaches this Agreement,
which breach remains uncured thirty (30) days after written notice thereof shall
have been sent to Executive;
(D) The voluntary resignation by Executive as an
employee of the Company; or
(E) Insubordination or incompetence, as reasonably
determined by the Board after Executive has had the opportunity to address the
Board with respect to the matter.
(b) If this Agreement is terminated pursuant to Section 8(a) above,
Executive's rights and the Company's obligations hereunder shall forthwith
Terminate.
9. SEVERANCE
If an executive is terminated for the convenience of the Company
without cause, the following shall apply:
(a) Executive shall receive a cash payment equal to two months of the
executive's base salary for every year of employment or fraction
thereof, payable within thirty (30) days of the date of such
termination; and
(b) Executive shall be entitled to all performance bonuses earned by
executive prior to termination.
(c) If any benefit under the preceding subsection is finally determined
by the Internal Revenue Service to be an "Excess Parachute Payment"
under Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), the Company shall pay Executive an additional amount such
that (x) the excess of all Excess Parachute Payments (including
payments under this sentence) over the sum of excise tax thereon under
Section 4999 of the Code and income tax thereon under Subtitle A of the
Code and under applicable state law is equal to (y) the excess of all
Excess Parachute Payments (excluding payments under this sentence) over
income tax thereon under Subtitle A of the Code and under applicable
state law.
10. REMEDIES. The Company recognizes that because of Executive's special talents
and stature, in the event of termination by the Company hereunder (except under
Section 8(a)), before the end of the agreed term, the Company acknowledges and
agrees that the provisions of this Agreement regarding further payments of Base
Salary and Incentive Bonuses constitute fair and reasonable provisions for the
consequences of such termination, do not constitute a penalty, and such payments
and benefits shall not be limited to or reduced by amounts Executive might earn
or be able to earn from any other employment or ventures during the remainder of
the agreed term of this Agreement.
11. COVENANT NOT TO COMPETE; DISCLOSURE OF INFORMATION. Executive agrees to
receive confidential and proprietary information of the Company in strict
confidence, and not to disclose such information to others except as authorized
in writing by the President of the Company or as required by law. Confidential
and proprietary information shall mean information not generally known to the
public that is created by or disclosed to Executive arising from his employment
by the Company. Additionally, for a two (2) year period following the
termination pursuant to Section 8(a) or expiration hereof, Executive shall not
engage in any activities substantially similar to or in competition with the
business of the Company.
12. NOTICES AND DEMANDS. Any notice or demand which, by any provision of this
Agreement or any agreement, document or instrument executed pursuant hereto,
except as otherwise provided therein, is required or provided to be given shall
be deemed to have been sufficiently given or served for all purposes if sent by
certified or registered mail, postage and charges prepaid, to the following
addresses: if to the Company, Attention: Xxxxxxx X. Xxxxxxx, President, 0000
X.X. Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000, or at any other address designated
by the Company to Executive in writing, and if to Executive, 000 Xxxxx Xx.,
Xxxxxx, Xxxxxxx 00000 or at any other address designated by Executive to the
Company in writing.
13. SEVERABILITY. In case any covenant, condition, term or provision contained
in this Agreement shall be held to be invalid, illegal or unenforceable in any
respect, in whole or in part, by judgment, order or decree of any court or other
judicial tribunal of competent jurisdiction, from which judgment, order or
decree no further appeal or petition for review is available, the validity of
the remaining covenants, conditions, terms and provisions contained in this
Agreement, and the validity of the remaining part of any term or provision held
to be partially invalid, illegal or unenforceable, shall in no way be affected,
prejudiced or disturbed thereby.
14. WAIVER OR MODIFICATION. No waiver or modification of this Agreement or of
any covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith. Furthermore, no
evidence of any waiver or modification shall be offered or received in evidence
in any proceeding, arbitration or litigation between the parties arising out of
or affecting this Agreement, or the rights or obligations of any party
hereunder, unless such waiver or modification is in writing and duly executed as
aforesaid. The provisions of this Section may not be waived except as herein set
forth.
15. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter of this Agreement and
supersedes any and all previous agreements between the parties, whether written
or oral, with respect to such subject matter.
16. APPLICABLE LAW, BINDING EFFECT AND VENUE. This Agreement shall be construed
and regulated under and by the laws of the State of Florida, and shall inure to
the benefit of and be binding upon the parties hereto and their heirs, personal
representatives, successors and assigns. Venue for any action related to or
arising out of this Agreement shall lie in Xxxxxx County, Florida.
IN WITNESS WHEREOF, the undersigned have executed this Employment Agreement as
of the date first written above with the intent to be legally bound.
ULTRASTRIP SYSTEMS, INC.
By:
________________________
Xxxxxxx X. Xxxxxxx, President
________________________
XXXX X. XXXXXXX
Executive
