Home Savers Holding Corp. Employment Agreement
Exhibit
10.5
Home
Savers Holding Corp.
THIS
EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into effective as of
March 22"d, 2009
(the "Effective Date"), by and between Xxxxxxxx X. Xxxxxxx ("Employee") and Home
savers Holding Corp., a Nevada corporation (hereafter collectively referred to
as the "Company").
WHEREAS,
the Company desires to employ Employee as Vice President of the
Company to oversee the day to day business operations of the Company, and
Employee desires to work for the Company, on the terms and conditions set forth
in this Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
Section
I.Position and
Duties.
1.1
During the Employment Term (as defined below), Employee shall serve as
Vice President of the Company, reporting directly to the Board of Directors of
company. Employee shall have responsibility for the overall day-to-day oversight
and management of the Company, subject to the supervision of the Board of
Directors through the Chairman of the Board and shall have the duties,
responsibilities and authority customarily associated with such position,
including, but not limited to, assisting the Board of the company ("Board") in
developing long term strategies for developing the company's subsidiaries,
supervising all management and employees of the Company, helping in setting
employee compensation, adopting budgets and such other duties for or on behalf
of the Company, as are customarily assigned to the Vice President of companies
comparable to Home Savers Holding Corporation, provided that such duties are
reasonably consistent with Employee's experience and background. Employee shall
also have such other responsibilities and duties consistent therewith as shall
be determined from time-to-time by the Board. In that Employee is currently
serving as "at will" in the capacity of Vice President, and employee agrees to
maintain additional duties until such time as new officers and employees are
appointed.
1.2
During the Employment Term, Employee shall serve the Company faithfully and to
the best of his ability and shall devote substantially all of his business time,
attention and efforts to the performance of such duties as may be assigned to
him from time to time by the Chairman of the Board. of such services either
directly or indirectly, without the prior written consent of the Board. Employee
shall confer with the Chairman of the Board and must have the written approval
of the board prior to any mergers, acquisitions or significant contracts by the
company or prior to entering into any new financial agreements in behalf of the
company outside of the normal day to day responsibilities of the Vice
President.
1.3
Employee expressly represents and warrants to the Company that Employee is not a
party to any contract or agreement and is not otherwise obligated in any way,
and is not subject to any rules or regulations, whether governmentally imposed
or otherwise, which will or may restrict in any way the Employee's ability to
fully perform his duties and responsibilities under this Agreement. Employee
further expressly represents and warrants that he is eligible to work in the
United States and shall take all necessary action to comply with requests for
verification of employment eligibility.
1.4Employee
will perform his duties and responsibilities located at the
corporate
headquarters
or elsewhere within reason to perform the position's
responsibilities.
Section 2. Term.
Employee shall be employed by the Company (the "Employment Term")
commencing as of the Effective Date and, subject to earlier termination or
extension as provided herein, ending on December 31", 2013. The Employment Term
shall be automatically extended
for successive one-year periods unless either party delivers written notice of
termination to the other party, at least 60 days prior to the expiration of the
initial term or any extension term. The giving of such notice terminates this
Agreement and Employee's employment by the Company at the expiration of the
initial or extension term in which the notice is given.
Section
3.Compensation and
Benefits.
3.1 Base Salary. During
the Employment Term Employee shall be paid a base salary ("Base Salary") in the
gross amount of $10,000.00 per month, payable in equal installments and in
accordance with the normal payroll cycle as presently exists or may hereafter be
adopted by the Company. Employee will receive an annual Coast of Living
Adjustment increase in Base Salary
upon each anniversary date of employment in the amount of 10%. Employee
acknowledges that, from time to time, the Company may require said Base Salary
to accrue, and is accrued, partially paid or paid as resources are available
upon the directive of the Chairman of the Board.
3.2 Bonuses. Employee
will receive 2,500,000 (two million five hundred thousand) shares of Home Savers
Holding Corp. common stock, to be transferred to employee upon the acceptance of
this position. Employee shall be granted a one-time bonus equal to that amount
earned during one pay period upon his acceptance of this position. Other bonuses
may be determined by the Board of Directors based on employee's effective
management.
3.3 Stock Options.
Employee shall be eligible to participate in the Company Stock Option
Plan when and if approved by the shareholders of the Company. Employee will be
eligible for 401 K programs when and if approved by the Board of Directors of
the Company.
3.4 Employee Benefits.
Effective as of the Effective Date and during the Employment Term,
Employee shall be eligible for employee benefits available to regular full-time
executive management employees of the Company provided that Employee meets the
eligibility requirements for such benefits. In addition, Employee shall be
entitled to fifteen (15) days of paid time off per calendar year (exclusive of
Company holidays) which cannot be carried over from calendar year to calendar
year without the prior written approval of the board. The Company provides no
assurance as to the adoption or continuance of any particular employee benefit
plan or program; and Employee's participation in any such plan or program shall
be subject to the provisions, rules, conditions, exclusions, regulations and
plan documents or policies applicable thereto. The Company remains free to
change the terms of any benefit plan in its sole discretion with or without
notice
3.5 Reimbursement of Expenses.
Employee shall be entitled to reimbursement of reasonable expenses
incurred by Employee in the course of Employee's duties, in accordance with
applicable policies and documentation requirements of the Company.
3.6 Tax Withholding. Notwithstanding
anything in this Agreement to the contrary, the Company may withhold from any
amounts payable or benefits provided under this Agreement all federal, state,
city, or other taxes as are legally required to be withheld.
2
Section
4.Termination.
4.1 Termination by Company for
Cause. The Company may terminate Employee's employment for Cause
immediately upon written notice stating the basis for such termination. If
Employee is terminated for Cause, he shall be entitled to his base salary
through the date of termination and awarded bonus(es), with said bonus(es) not
subject to a pro-rate adjustment. A termination of Employee by the Company for
"Cause" occurs if Employee is terminated for any of the following
reasons:
(i) Employee's
refusal to comply with a lawful instruction of the Company's Board of
Directors
(ii) Any act
or omission knowingly undertaken or omitted by Employee without a reasonable
belief that such action was in the best interests of the Company, its
properties, assets or business or its officers, directors or employees, as
determined by the Board in its commercially reasonable discretion;
(iii) Theft,
dishonesty or intentional falsification of any employment or Company
records.
(iv) Any fraud
or embezzlement involving properties, assets or funds of the
Company;
(v) A
material breach of this Agreement if Employee fails to cure such breach within
thirty (30) days after written notice from the Company specifying the action
which constitutes the breach and demanding its discontinuance;
(vi) Negligence
in performing his duties, which has been brought to Employee's attention in
writing, and which (if curable) has not been cured within thirty (30) days of
the notice thereof
(vii) Intentional
and improper disclosure of the Company's confidential or proprietary
information;
(viii) Employee's
conviction (including any plea of guilty or nolo contendere) to any
criminal offense which constitutes a felony, or is punishable by more than one
year in jail, in the jurisdiction where the conviction or plea
occurred.
(ix)
Employee's commission of an act of discrimination or harassment based on race,
sex, national origin, religious, disability, age or other protected
classification in the state where the act occurs.
4.2 Termination upon Death or
Disability. This Agreement shall automatically terminate upon the death
or disability of Employee unless employees' death occurs while on Company
business in which event the employees' estate will receive all compensation and
benefits through the term of this agreement. For purposes of this Agreement, the
term "disability" shall mean the inability of Employee to perform with or
without reasonable accommodation, the essential functions of his job duties due
to physical or mental disablement which continues for a period of ninety (90)
consecutive days during any six (6) month period, as determined by an
independent qualified physician mutually acceptable to Employee and the Company.
Notwithstanding the foregoing, nothing in this Agreement shall alleviate any
legal responsibility of the Company to provide
reasonable accommodations to Employee as may be required by applicable
law.
3
4.3 Termination by Employee with
Good Reason. Employee may terminate this Employment Agreement and his
employment with the Company immediately for good reason ("Good Reason") upon
providing sixty (60) days written notice to the Company, which notice describes
such good reason with reasonable detail. Employee shall receive Base Salary
earned, any bonus awarded and pro-rated bonus and incentive compensation through
the end of this term, i.e., 60 days. Good Reason shall mean the occurrence of
any one or more of the following events provided Employee has notified the
Company in writing of the occurrence of such event and the event has continued
uncured for thirty (30) days after the Company's receipt of such notice, unless
Employee specifically agrees in writing that such event shall not be Good
Reason:
|
(i)
|
Any
material breach of this Employment Agreement by the
Company;
|
|
(ii)
|
the
failure of the Company to assign this Employment Agreement to a successor
to the Company or the failure of a successor to explicitly assume and
agree to be bound by this Employment Agreement or a similar Employment
Agreement.
|
4.4 Benefits upon Termination.
Upon termination of this Agreement, Employee shall have the right to
receive the benefits due to Employee through the date of termination provided he
continues to meet the eligibility and other terms and conditions of such benefit
plans.
4.5 Return of Property.
Employee agrees, upon the termination of his employment with the Company,
to return all physical, computerized, electronic or other types of records,
documents, proposals, notes, lists, files and any and all other materials
including, without limitation, computerized and/or electronic information that
refers, relates or otherwise pertains to the Company and/or its affiliates, and
any and all business dealings of said persons and entities. In addition,
Employee shall return to the Company all property or equipment that Employee has
been issued during the course of his employment or which he otherwise currently
possesses, including, but not limited to, any computers, cellular phones, Palm
Pilots, pagers, Blackberrys
and/or
similar items. Employee shall immediately deliver to the Company any such
physical, computerized, electronic or other types of records, documents,
proposals, notes, lists, files, materials, property and equipment that are in
Employee's possession. Employee acknowledges that Employee is not authorized to
retain any physical, computerized, electronic or other types of copies of any
such physical, computerized, electronic or other types of records, documents,
proposals, notes, lists, files or materials, and is not authorized to retain any
other property or equipment of the Company and/or its affiliates. Employee
further agrees that he will immediately forward to the Company any business
information regarding the Company and/or any of its affiliates that has been or
is inadvertently directed to Employee following Employee's last day of
employment with the Company. The provisions of this Section are in addition to
any other written agreements on this subject that Employee may have with the
Company and/or any of its affiliates, and are not meant to and do not excuse any
additional obligations that Employee may have under such
agreements.
Section
5.Nonsolicitation and
Confidential Information.
5.1 Nonsolicitation.
Employee agrees that for a period of one (1) year from termination of his
employment he will not, except on behalf of Company or except with the prior
written approval of the Board, directly or indirectly:
4
|
(i)
|
Soliciting
(or assisting in the solicitation of) any person or business who was a
Paid Subscriber of the Company at any time during Employee's employment
with Company
|
|
(ii)
|
hire
any employee, consultant, agent, or contractor of Company who was employed
by Company at any time during Employee's employment, or any former
employee, consultant, agent, or contractor of Company who has accepted an
offer of employment with Company (collectively referred to as "Restricted
Employee"); assist or facilitate any person or business other than the
Company in the hiring or recruitment (including assessment) of any
Restricted Employee; or encourage, solicit, or invite any Restricted
Employee to enter into employment or a service arrangement of any kind
with any person or entity other than the
Company.
|
5.2Confidential Information.
Employee acknowledges that (i) due to the nature of his
association with Company, Employee has Confidential Information (as defined
below); (ii) such
Confidential Information is of importance to the business of Company, affects
the value of Company, and will continue to be confidential subsequent to the
Effective Date; and (iii) disclosure
of such Confidential Information to others or the unauthorized use of such
Confidential Information by others would cause substantial loss and harm to the
Company as acquirer of Company and as discloser of Confidential Information to
Employee in connection with negotiations leading up to the Acquisition.
Accordingly, Employee agrees:
|
(i)
|
agrees
not to reveal, disclose, communicate, or divulge to any person or entity
in any manner whatsoever any Confidential Information that has come to
Employee's knowledge or has been designed, developed, or in any other way
been gathered or received by
Employee;
|
|
(ii)
|
Will
prevent the publication, communication, or disclosure of any Confidential
Information;
|
|
|
(iii)
|
Agrees
to return any Confidential Information upon termination of this Employment
Agreement; and
|
|
(iii)
|
Agrees
not to, directly or indirectly, either on Employee's own behalf or on
behalf of any legal person, utilize any Confidential Information for any
business purposes or other
purposes.
|
For
purposes of the foregoing, "Confidential Information" means any and all
information in whatever form, tangible or intangible, that is not generally
known to the public that relates in any way to Company, including concepts,
techniques, processes, methods, systems, designs, programs, code, formulas,
research, technologies, processes, methods, systems, designs, programs, code,
and formulas. "Confidential Information" does not include any information that
the receiving party can prove becomes publicly known through no wrongful act of
the receiving party.
5.3.
Remedy for Breach and
Right to Injunction. Notwithstanding other provisions of this Agreement,
Employee agrees that damages in the event of a breach by Employee of Sections 5
of this Agreement would be difficult if not impossible to ascertain and an
inadequate remedy, and it is therefore agreed that Company, in addition to and
without limiting any other remedy or right it may have, shall have the right to
an immediate injunction
or other equitable relief enjoining any such threatened or actual breach,
without any requirement to post bond or provide similar security. The existence
of this right shall not preclude the Company from pursuing any other rights and
remedies at law or in equity that the Company may have, including recovery of
damages for any breach of such sections.
5
Section
6.Inventions
6.1.
Assignment of
Inventions to the Company. Employee shall promptly disclose to the
Company all improvements, inventions, formulas, ideas, works of authorship,
processes, computer programs, know-how and trade secrets developed, whether or
not patentable, made or conceived or reduced to practice or developed by
Employee, either alone or jointly with others, during and related to Employee's
employment or while using the Company's equipment, supplies, facilities or trade
secret information (collectively, "Inventions"). All Inventions and other
intellectual property rights shall be the sole property of the Company and shall
be "works made for hire.- Employee hereby assigns to the Company any rights
Employee may have or acquire in all Inventions and agrees to perform, during and
after employment with the Company, at the Company's expense including reasonable
compensation to Employee, all acts reasonably necessary by the Company in
obtaining and enforcing intellectual property rights with respect to such
Inventions. Employee hereby irrevocably appoints the Company and its officers
and agents as Employee's attorney-in-fact to act for and in Employee's name and
stead with respect to such Inventions.
6.2. Remedies. Employee
recognizes that irreparable harm would result from any breach by
Employee of the covenants in this Section 6 and that monetary damages alone
would not provide adequate relief, and therefore, Employee acknowledges that in
such case injunctive relief is proper, in addition to any other relief the
Company may reasonably seek.
Section 7.Miscellaneous
Provisions.
7.1 Assignment by Employee.
This Agreement may not be assigned by Employee in whole or in part;
provided, however, if Employee should die or become disabled while any amount is
owed but unpaid to him hereunder, all such amounts, unless otherwise provided
herein, shall be paid to his devisees, legatees, legal guardian or other
designees, or if there is no such designees, to his estate.
7.2 Assignment by Employer.
Employee hereby acknowledges and agrees that the Company may, in its sole
discretion assign this Agreement to a comparable affiliate, successor, assign
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the assets or business of the
Company). This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective spouses, heirs and personal and legal
representatives. Any such successor or assign of the Company shall be included
in the term "Company" as used in this Agreement
7.3 Notices. Any notice
required to be delivered hereunder shall be in writing and shall be
addressed as follows:
6
If to the Company,
to:
000 XX
Xxxx Xxx., Xxx. 000 Xxxxxxxx, XX 00000
If to Employee:
00000 XX
Xxxxxxxxxx Xx., Xxx. 000 Xxxxxxxxx, XX 00000
or, in
each case, to such other address as such party may hereafter specify for the
purpose by written notice to the other party hereto. Any such notice shall be
deemed received on the date of receipt by the recipient thereof if received
prior to 5:00 p.m. in the place of receipt and such day is a business day in the
place of receipt. Otherwise, any such notice shall be deemed not to have been
received until the next succeeding business day in the place of
receipt.
7.4
Entire Agreement.
This Agreement represents the entire agreement between Employee and the
Company and its affiliates with respect to Employee's employment, and supersedes
all prior discussions, negotiations, and agreements, written or
oral.
7.5
Waiver of Rights.
The waiver by either party of a breach of any provision of this Agreement
shall not operate or be construed as a continuing waiver or as a consent to or
waiver of any subsequent breach hereof.
7.6
Severability.
In the event any provision of the Agreement shall be held illegal or
invalid for any reason, the illegality or invalidity shall not affect the
remaining parts of the Agreement, and the Agreement shall be construed and
enforced as if the illegal or invalid provision had not been
included.
7.7
Governing Law; Venue.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada without reference to principles of conflict of laws.
Any action at law, suit in equity or judicial proceeding arising directly,
indirectly, or otherwise in connection with, out of, related to or from this
Agreement, or any provision hereof, shall be litigated only in the courts of the
State of Nevada.
7.8
Countemarts.
This Agreement may be signed in several counterparts. each of which shall
be an original, with the same effect as if the signatures thereto and hereto
were on the same instrument.
7.9 Employee Counsel.
Employee acknowledges that he has had the opportunity to review
this Agreement and the transactions contemplated hereby with his own legal
counsel.
IN
WITNESS WHEREOF, the Company and Employee have executed this Employment
Agreement effective as of the date first set forth above.
| COMPANY: | Home Savers Holding Corporation | ||
|
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
| Xxxx X. Xxxxxxxx, Chairman of the Board | |||
| EMPLOYEE: | |||
|
|
By:
|
/s/ Xxxxxxxx X. Xxxxxxx | |
| Xxxxxxxx X. Xxxxxxx | |||
7
