Exhibit 10.1
EMPLOYMENT CONTRACT
AGREEMENT made this __ day of October, 1999, between
XxxXxxxxxx.xxx Corporation (a Colorado Corporation) and it's parent, Banyan
Corporation and it's subsidiary, DoubleCase Corporation, located in Colorado
Springs, Colorado, (hereinafter referred to as "EMPLOYER"), and Xxxx Xxxxxxxxx
(hereinafter referred to as "EMPLOYEE").
WHEREAS, Employer is a corporation developing products and
services for manufacture, sale and e-commerce, and; WHEREAS,
Employee and Employer desire an Employment Contract between
Employee and Employer.
IT IS MUTUALLY covenanted and agreed as follows:
1. EMPLOYMENT: The Employer employees the Employee and the Employee accepts
employment upon the terms and conditions of this Agreement.
2. TERM: The Term shall begin November 1, 1999, and continue for two years or
terminate as provided for below.
3. DUTIES: The Employee shall:
A. Perform to the best of his ability all duties reasonably assigned to
him by the Employer, and carry out all Employer's policies and
directives;
B. Devote his full time and attention to the performance of such duties,
to the exclusion of any other activities;
C. Not become involved in any personal investment or business matters
which adversely affect the Employer.
4. EXTENT OF SERVICES: The Employee shall devote his entire time and attention
to the Employer's business as the Employer may define. During the term of
this Agreement, the Employee shall not engage in any other business
activity, unless approved by Employer, regardless of whether it is pursued
for gain or profit. The Employee, however, may invest his assets in other
companies so long as they do not require the Employee's services in the
operation of their affairs.
5. DISCLOSURE OF INFORMATION; The employee acknowledges that as a result of
the employment, he will have access to certain information of the Employer
and of DoubleCase Corporation (hereafter "DC") that is confidential and
constitutes valuable, special, and unique property of the Employer and DC.
That property includes, but is not limited to confidential business plans,
pricing policies, marketing strategies, records, technology, propriety
information, customer lists, product design, the use of or disclose all of
which matter or thing might reasonably be construed to be contrary to the
best interest of Employer and DC. The Employee shall not, during and after
the term of his employment, for a period of three years, disclose all or
any part of the above information to any person, firm, corporation,
association, or other entity for any reason or purpose. In the event of the
Employee's breach or threatened breach of this paragraph, the Employer
shall be entitled to a preliminary restraining order and an injunction
restraining and enjoining the Employee from disclosing all or any part of
the Employer's customer list and from rendering any services to any person,
firm, corporation, association, or other entity to whom all or any part of
such list has been, or is threatened to be, disclosed. In addition to or in
lieu of the above, the Employer may pursue all other remedies available to
the Employer for such breach of threatened breach, including the recover of
damages from the employee.
6. COMPENSATION AND BENEFITS: Employee shall receive compensation from the
Employer for his services as follows:
A. Employee shall be paid an annual salary of $116,000.00 which shall be
paid in twenty-four (24) equal installments of $4,833.33 each, with
Employer to withhold the appropriate state, federal and local taxes.
B. a) Employee shall be paid 10% of the Company's net pre-tax profit as
computed under GAAP. Such payment shall be made 45 days after the
close of each calendar quarter for the term of this Agreement.
b) Employee shall be paid 20% of DC's net pre-tax profit as computed
under GAAP. Such payment shall be made 45 days after the close of
each calendar quarter for the term of this Agreement.
Employee's annual salary shall be proportionately distributed
between Employer and DC based upon the time spent with each
company. Such distribution is to fairly impact the true net
pre-tax profit of the Company and DC.
C. Employee shall be granted Options to purchase 235,000 shares of common
stock of Banyan Corporation (Employer parent corporation) at $0.1187
per share (95% of market value October 26, 1999). Said Options shall
vest as follows:
a) 135,000 share Options vest November 1, 2000 - expires three years
after vesting.
b) 100,000 share Options vest November 1, 2001 - expires three years
after vesting.
In the event this Agreement is terminated anytime prior to
November 1, 2000, the Employee shall be entitled to the 135,000
Options vested November 1, 2000, and 50% of the Options vested of
November 1, 2001. Additionally, in the event this Agreement is
terminated anytime after to November 1, 2000, the Employee shall
be entitled to the 100,000 Options vested November 1, 2001.
Vested share Options must bed exercised within one year of
termination or expire. Said Options and underlying shares will
not be registered and will be issued under Rule 144. Banyan will
agree to including said shares in the event Banyan files a
registration statement.
D) Employer shall provide medical insurance for Employee and his family.
E) At such time Employer creates a pension plan, Employee's years of
service prior to the creation of the pension plan shall be credited to
Employee for vesting purposes.
7. FUTURE SALARY INCREASES:
A. A salary increase may be determined by the Board of Directors based on
performance of the company at any time.
B. An annual bonus may be determined by the Board of Directors.
C. In lieu of, or in addition to, a salary increase and bonus as set
forth in subparagraphs A and B above, the Employer and Employee may
substitute, or add, a stock option plan or such other benefit as may
be mutually agreeable.
8. VACATIONS: The Employee shall be entitled to a vacation; Year 1, of two (2)
weeks; Year 2, of three (3) weeks, during which time the compensation shall
be paid in full. The date for the vacation shall be set with approval of
the Employer.
9. DISABILITY: If the Employee is unable to perform his services by reason of
illness or injury for a period of more than 90 days, the compensation
thereafter payable to him during the continued period of such illness or
incapacity shall be reduced by 50%. The Employee's full compensation shall
be reinstated upon his return to full employment and discharge of his full
duties. Notwithstanding anything to the contrary, the Employer may
terminate this Agreement at any time after the Employee is absent from his
employment, for what ever cause, for a continuous period of more than 16
weeks, and all obligations of the Employer shall thereupon terminate.
10. TERMINATION: If the Employee's employment hereunder is terminated without
good cause the Employer shall be immediately required to buy out the
Employee's rights hereunder for an amount equal to the amount of base
salary that the Employee would have earned from the time of termination to
the expiration of the term of this Agreement. Good cause shall exist if the
Employee is engaged in fraud, misappropriation, embezzlement, repeated
substance abuse, or other material criminal conduct involving the Company.
In the event of termination for good cause, no further consideration, buy
out or severance shall be paid.
11. NON-COMPETE: In the event this Agreement is terminated prior to its term
for any reason, Employee will not participate in any manner with the
production, marketing, design or consulting in the business of carrying
cases and other computer accessories for a period of three years from the
date of termination. Additionally, in the event this Agreement is
terminated prior to its term for any reason, Employee will not participate
in any manner with the optimization or design of internet web pages/site
for a period of three years from the date of termination
12. CONSTRUCTION: Nothing contained herein shall obligate the Employer to make
any payment for any period after the death of the Employee or after the
termination of his employment except as set out herein.
13. MODIFICATION: This Agreement may be modified by the parties only by written
supplemental agreement.
14. BINDING EFFECT: This Agreement shall be binding upon the parties, their
heirs, assigns, receivers, trustees in bankruptcy, or any other
representative authorized by this Contract to be a party to this Agreement.
15. APPLICABLE LAW: This Employment Agreement shall be construed under the laws
of the State of Colorado.
16. ENTIRE AGREEMENT: This Agreement supersedes all agreements previously made
between the parties relating to the subject matter of this Agreement. There
are no other understandings or agreements, either oral or written.
17. NON WAIVER: Not delay or failure by any party in exercising any right under
this Agreement, no partial or simple exercise of such right shall
constitute a waiver of any other right.
18. HEADINGS: Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
18. ASSIGNMENT: This Agreement may not be assigned by either party, except that
should Employer merge or be purchased, the Employment Agreement is
assignable to the newly created company.
19. TIME: Time is of the essence in the performance of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
the day and year first above written.
"EMPLOYER" "EMPLOYEE"
XxxXxxxxxx.xxx Corporation XXXX XXXXXXXXX
By: /s/ Xxxxxxx X. Xxxx By: /s/Xxxx Xxxxxxxxx
Xxxxxxx X. Xxxx Xxxx Xxxxxxxxx
Director & Secretary
