Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is effective the 1st day of
January, 2004 by and between, between Maximum Awards, Inc., a corporation form
under the laws of the State of Nevada, United States of America (the "Company"),
and Xxxxxxx Xxxxxx, an individual who resides in Brisbane, Australia
("Executive").
WHEREAS, Executive possesses an intimate knowledge of the business
and affairs of the Company, its policies, methods, personnel, and plans for the
future;
AND WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that Executive's contribution to the growth and success of the
Company has been substantial and desires to assure the Company of Executive's
continued employment in an executive capacity and to compensate him therefore;
AND WHEREAS, Executive is desirous of committing himself to serve
the Company on the terms herein provided.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the adequacy of which is specifically acknowledge by
the parties, and of the them, the parties agree as follows:
1. [Employment] The Company hereby agrees to continue to employ
Executive and Executive hereby agrees to continue to serve the Company, on the
terms and conditions set forth herein, for the period commencing on the date
hereof and expiring 15 days after written notice of one party of its intention
to terminate this Agreement delivered to the other party (unless sooner
terminated as hereinafter set forth). The term of this Agreement may be referred
to herein as the "Period of Employment."
2. [Position and Duties] Executive shall serve as the President of
the Company performing the functions and duties as shall be reasonably
prescribed from time to time by the Board, provided that such functions and
duties are consistent with and attendant to Executive's position or other
positions that he may hold from time to time. Executive shall devote his full
working time and efforts to the business and affairs of the Company and the
promotion of its interests and shall perform all duties and services on behalf
of the Company necessary to carry out such functions.
3. [Compensation and Related Matters]
(a) Base Salary. Initially, Executive shall receive an annual base
salary ("Base Salary") at the rate of Two Hundred Thousand Dollars ($200,000)
for the year 2004. Thereafter, Executive's Base Salary shall be redetermined at
least 30 days before each year end in an amount to be fixed by the Board or by
the Compensation Committee of the Company designated by the Board. The term
"Base Salary" as used in this Agreement shall mean, at any point in time,
Executive's annual base salary at such time. The Base Salary shall be payable in
substantially equal semi-monthly installments and shall in no way limit or
reduce the obligations of the Company hereunder.
(b) Incentive Compensation. In addition to Base Salary, Executive is
eligible to receive incentive compensation in accordance with any duly approved
resolution of the Board regarding any incentive compensation which the Board
deems appropriate.
(c) Expenses. Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by him during any Period of
Employment (in accordance with the policies and procedures then in effect and
established by the Company for its senior executive officers) in performing
services hereunder, provided that Executive properly accounts for such expenses.
(d) Other Benefits. Executive shall be entitled to participate in or
receive benefits under all other Employee Benefit Plans of the Company available
to any employee of the Company. As used herein, "Employee Benefit Plans"
include, without limitation, each pension, and retirement plan; supplemental
pension, retirement, and deferred compensation plan; savings and profit-sharing
plan; stock ownership plan; stock purchase plan; stock option plan; life
insurance plan; medical insurance plan; disability plan; and health and accident
plan or arrangement established and maintained by the Company. Executive shall
be entitled to participate in or receive benefits under any Employee Benefit
Plan or arrangement which may, in the future, be made available to the Company's
executives and key management employees, subject to and on a basis consistent
with the terms, conditions, and overall administration of such plan or
arrangement. Nothing paid to Executive under the Employee Benefit Plans
presently in effect or any employee benefit plan or arrangement which may be
made available in the future shall be deemed to be in lieu of compensation
payable to Executive under Subparagraphs 3(a), 3(b), and 3(c). Any payments or
benefits payable to Executive under a plan or arrangement referred to in this
Subparagraph 3(d) in respect of any calendar year during which Executive is
employed by the Company for less than the whole of such year shall, unless
otherwise provided in the applicable plan or arrangement, be prorated in
accordance with the number of days in such calendar year during which he is so
employed. Should any such payments or benefits accrue on a fiscal (rather than
calendar) year, then the proration in the preceding sentence shall be on the
basis of a fiscal year rather than calendar year.
(e) Vacations. Executive shall be entitled to the number of paid
vacation days in each calendar year determined by the Board from time to time
for its senior executive officers. Executive shall also be entitled to all paid
holidays given by the Company to its senior executive officers.
4. [Offices]. Executive agrees to serve as a director of the
Company, if elected or appointed thereto, provided he is indemnified for serving
in such capacity on a basis no less favorable than is provided by applicable
Nevada state law.
5. [Confidential Information] Executive acknowledges that in the
course of his employment with the Company, he will gain a close, personal and
special influence with the customers of the Company and will be acquainted with
the Company's business affairs, information, trade secrets, and other matters
which are of a proprietary or confidential nature, including but not limited to
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the Company's operations, business opportunities, price and cost information,
finances, customer names, prospects and customer lists, business plans, various
sales techniques, manuals, letters, notebooks, procedures, reports, products,
processes, services, inventions, research and development, and other
confidential information and knowledge (collectively, "Confidential
Information") concerning the Company's business. The term "Confidential
Information" shall not include information which (a) is or becomes generally
available to the public through no violation of this Agreement, (b) was
available to Executive on a non-confidential basis prior to disclosure to
Executive by the Company, or (c) becomes available to Executive on a
non-confidential basis from a source other than the Company, provided that such
source is not bound by a confidentiality agreement with the Company. The Company
agrees to provide such Confidential Information and/or training which the
Company deems necessary or desirable to aid Executive in the performance of his
duties. Executive understands and acknowledges that such Confidential
Information is confidential, and he agrees not to disclose such Confidential
Information to anyone outside the Company. Executive further agrees that he will
not during employment and/or at any time thereafter use such Confidential
Information in competing, directly or indirectly, with the Company. At such time
as Executive shall cease to be employed by the Company, he immediately will turn
over to the Company all such Confidential information including papers,
documents, writings, electronically stored information, other property, and all
copies of them provided to him during the course of his employment with the
Company. During or upon termination, for any reason, of Executive's employment
with the Company, Executive shall sign a list acknowledging the Confidential
Information of which he has gained knowledge or information during the course of
his employment with the Company. The obligations of this Paragraph 5 shall
continue beyond the termination of Executive's employment, regardless of the
reason for such termination, and shall be binding upon Executive's assigns,
executors, administrators, and other legal representatives.
6. [Conflict of Interest] The parties understand that Executive
owns, controls or is employed by entities which may be related to the Company
and that such ownership, control or employment may create conflicts of interest
between Executive's duties to the Company and his duties to such other entities.
The parties agree that so long as such relationships are disclosed to the
Company by Executive as such relationships develop that the existence of such
relationships shall not constitute a true conflict of interest or breach of any
duty to the Company on the part of Executive.
7. [Proprietary Information]. Executive agrees to promptly and
freely disclose to the Company in writing any and all ideas, conceptions,
inventions, improvements, suggestions for improvements, discoveries, formulae,
processes, designs, software, firmware, hardware, circuitry, diagrams,
copyrights, trade secrets, and any other proprietary information (collectively,
the "Proprietary Information"), whether patentable or not, which are conceived,
and made or acquired by Executive solely or jointly with others during the
Period of Employment by the Company or using the Company's time, data,
facilities, and/or materials, and which are related to the products, business,
or activities of the Company which Executive conceives as a result of his
employment by the Company, and Executive agrees to assign and hereby does assign
all of his interest therein to the Company, or its nominee. Whenever requested
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to do so by the Company, Executive shall execute any and all applications,
assignments, or other instruments, which the Company shall deem necessary to
apply for and obtain Letters Patent or Copyrights of the United States, or any
foreign country, to otherwise protect the Company's interest in the Proprietary
Information or to vest title to the Proprietary Information in the Company.
These obligations shall continue beyond the termination of Executive's
employment, regardless of the reason for such termination, with respect to the
Proprietary Information, conceived, and made or acquired by Executive during the
period of his employment and shall be binding upon Executive's assigns,
executors, administrators, and other legal representatives.
8. [Termination] Executive's employment hereunder may be terminated
without any breach of this Agreement under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If, as a result of Executive's incapacity due to
illness, accident, or other physical or mental incapacity, Executive shall have
been absent from his duties hereunder on a full-time basis for 180 calendar days
in the aggregate in any 12-month period, the Company may terminate Executive's
employment hereunder.
(c) By Notice. Either party may terminate this Agreement during the
Period of Employment upon delivery to the other of a Notice of Termination at
least 15 days prior to the effective date of the Notice of Termination.
(d) Retirement. Notwithstanding any other provision hereof to the
contrary, Executive may, at any time during the Period of Employment, upon the
giving of 90 days Notice of Termination, terminate his employment hereunder, if
Executive is then permitted to retire under the provisions of the Company's
pension plan then in effect. The Date of Termination in event of such Retirement
shall be 90 days after such Notice of Termination but in no case shall it exceed
the Period of Employment.
9. [Compensation Upon Termination or During Disability]
(a) If Executive's employment terminates by reason of his death, the
Company shall, within 90 days of death, pay in a lump sum amount to such person
as Executive shall designate in a notice filed with the Company or, if no such
person is designated, to Executive's estate or court appointed representative of
his estate, Executive's accrued and unpaid amounts due Executive pursuant to the
terms of this Agreement. In addition to the foregoing, any payments to which
Executive's spouse, beneficiaries, or estate may be entitled to receive under
any employee benefit plan shall also be paid in accordance with the terms of
such plan or arrangement. Such payments, in the aggregate, shall fully discharge
the Company's obligations hereunder.
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(b) During any period that Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, Executive
shall continue to receive his accrued and unpaid amounts due him pursuant to the
terms of this Agreement until Executive's employment is terminated in accordance
with Paragraph 8. Upon termination due to death prior to the termination first
to occur as specified in the preceding sentence, Subparagraph 9(a) shall apply.
10. [Notice] For purposes of this Agreement, notices 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 mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
if to the Executive:
At his home address as shown
in the Company's personnel records;
if to the Company:
Maximum Awards, Inc.
Xxxxx 0, 000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 0000, Xxxxxxxxx
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
11. [Miscellaneous] No provisions of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in writing and signed by the Executive and such officer of the Company as may
be specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Nevada.
12. [Validity] The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in full force and
effect. The invalid portion of this Agreement, if any, shall be modified by any
court having jurisdiction to the extent necessary to render such portion
enforceable.
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13. [Counterparts] This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective on the date and year written above.
EXECUTIVE MAXIMUM AWARDS, INC.
______________________ _________________________
Xxxxxxx Xxxxxx By:______________________
Its:_____________________
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