Exhibit 10.06
AT-WILL EMPLOYMENT AGREEMENT
THIS AT-WILL EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into effective January 28, 2002 (the "Effective Date"), by and between
DIRECTPLACEMENT, INC., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxxx ("Employee") with reference to the following.
WITNESSETH:
WHEREAS, the Company wishes to retain the services of Employee on an
at-will basis in the capacity of Chief Financial Officer, and Employee desires
to so be employed by the Company for the term of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the Company and Employee, intending to be legally bound,
hereby agree as follows:
AGREEMENT
1. Employment. The Company hereby employs Employee as Chief
Financial Officer. Employee accepts such employment and agrees to perform
services for the Company, for the term and upon the other terms and conditions
set forth in this Agreement.
2. Term.
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2.1 Commencement. The term of Employee's employment
hereunder shall commence on the Effective Date of this Agreement and shall be
subject to termination as hereafter specified.
2.2 At-Will Status. Either the Company or Employee can
terminate the employment relationship at-will, at any time with or without
cause, reason or advance notice. The Company specifically offers no guarantee of
employment for any specific period of time or any specific type of work.
3. Position and Duties.
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3.1 Service with the Company. During the term of this
Agreement, Employee agrees to perform such employment duties as the Company
shall assign to him/her from time to time. A complete list of Employee's duties
as Chief Financial Officer is fully set forth as Exhibit "A" attached hereto,
and is incorporated herein by reference. Employee will report to Xxxxx X.
Xxxxxxxxxx on a weekly basis as to the status of all work in progress.
3.2 No Conflicting Duties. During the term hereof,
Employee shall not serve as an officer, director, employee, consultant or
advisor to any other business without the prior written consent of the Company.
Employee hereby confirms that he/she is under no contractual commitments
inconsistent with his/her obligations set forth in this Agreement, and that
during the term of this Agreement, he/she will not render or perform services,
or enter into any contract to do so, for any other corporation, firm, entity or
person which are inconsistent with the provisions of this Agreement.
4. Compensation.
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4.1 Base Salary. As compensation for all services to be
rendered in accordance herewith, the Company shall pay to Employee an annual
base salary of One Hundred Twenty Thousand Dollars ($120,000.00) (the "Base
Salary"). The Base Salary shall be paid on a regular basis in accordance with
the Company's normal payroll procedures and policies.
4.2 Bonuses. In addition to the Base Salary, Employee
will be entitled to the following performance bonuses:
a. $10,000.00 bonus for the timely and accurate completion of the
Company's 10-K filing due on or before 3/31/02 and the timely
and accurate completion of the NASD/SEC audit filings due for
the PCS Securities, Inc. and DP Securities, Inc. subsidiaries
on or before 3/1/02.
b. $5,000.00 bonus upon the successful listing of the Company's
common stock on the American Stock Exchange.
c. $5,000.00 bonus upon the effectiveness of the Company's first
registration statement for non-employee shareholders.
d. $2,000.00 bonus for the timely and accurate completion of each
of the Company's three 10-Q filings in 2002.
e. $5,000.00 bonus upon the securing of a new credit line
facility to replace the current Bear Xxxxxxx credit line
facility.
f. $2,500.00 bonus upon the closing and effectiveness of each
acquisition made by the Company in 2002.
g. A year end bonus of up to $20,000.00 based on the overall
performance and profitability of the Company in 2002. Specific
terms and bonus range to be mutually agreed upon by Employee
and the Company within 90-days of this Agreement.
The Bonus amounts shall be paid on a regular basis in accordance with the
Company's normal payroll procedures and policies in the payroll period
immediately following the successful completion of the specific bonus events.
4.3 Expenses. In accordance with the Company's policies
as established from time to time, the Company will pay or reimburse Employee for
all reasonable and necessary out-of-pocket expenses incurred by him/her in the
performance of his/her duties under this Agreement, subject to the presentment
of appropriate documentation.
4.3 Benefits. Upon acceptance by the benefit providers,
the Company shall provide Employee with such regular benefits as are generally
provided by the Company, including but not limited to health insurance, 401(k)
participation, and payment of corporate membership to an athletic club. Until
acceptance by the health care benefit provider is secured, the Company will
reimburse the Employee up to $250.00 per month for his private health insurance
coverage.
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4.4 Vacation / Sick. Employee shall be entitled to ten
days paid vacation and six days paid sick leave per calendar year, with such
days accruing at the rate of 3.57 vacation hours per pay period and 2.00 sick
hours per pay period. Upon termination of employment in accordance with Section
7 below, Employee shall be paid all accrued but unused vacation time accrued as
of the date of termination. Notwithstanding the foregoing, any vacation or sick
time used in excess of the amount allowed under this paragraph shall be paid to
Company by deduction from Employee's final payroll check. Vacation and sick time
will be voided in accordance with the Company's policies as set forth in the
Company's employee manual then in effect and agreed to in writing by the
Employee.
5. Compensation Upon the Termination of Employee's Employment by
the Company. In the event that Employee is terminated pursuant to Sections 7.1,
7.3 and 7.4 of this Agreement, then the Company shall pay to Employee his/her
Base Salary through the date he/she is terminated, plus any bonus compensation
then earned and owing by the Company. In addition, in the event that Employee is
terminated pursuant to Section 7.4 of this Agreement, then the Company will
continue to compensate the Employee at the then effective Base Salary amount for
a period of 90 calendar days from the time of such termination. Such
compensation shall be paid on a regular basis in accordance with the Company's
normal payroll procedures and policies then in effect.
6. Confidential Information/Solicitation of Customers and
Solicitation of Employees. Employee agrees, as a separate condition of his/her
employment, to sign and be bound by a separate Employee Confidentiality
Agreement, Employee Proprietary Information and Inventions Agreement, or both.
Such Agreements include, without limitation, an agreement not to solicit
customers or employees of the Company to protect the Company's proprietary
information.
7. Termination Prior to Expiration of the Term.
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7.1 Disability. Employee's employment shall terminate
upon Employee becoming totally or permanently disabled for a period of three (3)
months or more. For purposes of this Agreement, the term "totally or permanently
disabled" or "total or permanent disability" means Employee's inability on
account of sickness or accident, whether or not job-related, to engage in
regularly or to perform adequately his/her assigned duties under this Agreement.
A reasonable determination by the Company of the existence of a disability shall
be conclusive for all purposes hereunder.
7.2 Termination for Cause. The Company may terminate
Employee's employment at any time for "Cause" (as hereinafter defined)
immediately upon written notice to Employee. As used herein, the term "Cause"
shall mean that Employee shall have (i) in the reasonable judgment of the
Company committed a criminal act or an act of fraud, embezzlement, breach of
trust or other act of gross misconduct; (ii) willfully violated policy or rules
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of the Company; (iii) in the judgment of the Company, willfully refused to
follow the directions given by the Company from time to time or breached any
covenant or obligation under this Agreement or other agreement with the Company;
or (iv) failed to perform the duties required of his/her position as fully set
forth in Exhibit "A" hereto.
7.3 Resignation by Employee. Employee's employment shall
be terminated upon tender of his/her written resignation.
7.4 Termination Without Cause. The Company may terminate
Employee's employment at any time without cause upon written notice to Employee.
Termination "without cause" shall mean termination of employment on any basis
other than termination of Employee's employment hereunder pursuant to Sections
7.1, 7.2, or 7.3.
7.5 Surrender of Records and Property. Upon termination
of his/her employment with the Company, Employee shall deliver promptly to the
Company all records, manuals, books, documents, letters, memoranda, notes,
reports, data, financial information, pro formas, budget calculations or copies
thereof, which are the property of the Company and which relate in any way to
the business of the Company or its affiliates, and all other property, trade
secrets, confidential or proprietary information of the Company or its
affiliates, including, but not limited to, all documents which in whole or in
part contain any trade secrets or confidential information of the Company, which
in any of these cases are in his/her possession or under his/her control.
8. Assignment. This Agreement shall not be assignable, in whole
or in part, by either party without the written consent of the other party.
9. Injunctive Relief. Employee agrees that it would be difficult
to compensate the Company fully for damages for any violation of the provisions
of this Agreement. Accordingly, Employee specifically agrees that the Company
shall be entitled to temporary and permanent injunctive relief to enforce the
provisions of this Agreement. This provision with respect to injunctive relief
shall not, however, diminish the right of the Company to claim and recover
damages in addition to injunctive relief.
10. Miscellaneous.
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10.1 Arbitration.
10.1.1 Any controversy, claim or dispute between
the parties hereto arising out of or related to this Agreement which cannot be
settled amicably by the parties, shall be submitted for binding arbitration in
accordance with the provisions contained herein and in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("Rules").
The arbitrators shall by majority vote determine all questions of fact and law
relating to any controversy, claim or dispute hereunder, including but not
limited to whether or not any such controversy, claim or dispute is subject to
the arbitration provisions contained herein. The parties however shall have the
right to reasonable discovery, including the taking of depositions of parties
and witnesses, the production of documents and the propounding of
interrogatories. The arbitrators shall be required to provide a written
statement of decision setting forth their findings of fact and conclusions of
law. The arbitrators shall have no authority to award punitive damages.
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10.1.2 Any party desiring arbitration shall serve
on the other party or parties and the San Diego, California, Office of the
American Arbitration Association, in accordance with the Rules, its Notice of
Intent to Arbitrate ("Notice"), accompanied by the name of the arbitrator
selected by the party serving the Notice. The San Diego office of the American
Arbitration Association shall administer such arbitration and the arbitration
proceedings shall be conducted in San Diego, California. The arbitration
proceeding provided hereunder are hereby declared to be self- executing, and it
shall not be necessary to petition a court to compel arbitration.
10.1.3 If a controversy, claim or dispute arises
among the parties hereto which is subject to the arbitration provisions
hereunder, and there exists or later arises a controversy, claim or dispute
between the parties hereto and any third party, which controversy, claim or
dispute arises out of or relates to the same transaction or series of
transactions, said third party controversy, claim or dispute shall be
consolidated with the arbitration proceedings hereunder; provided, however, that
any such third party must be a party to an agreement with a party hereto which
provides for arbitration of disputes thereunder in accordance with rules and
procedures substantially the same in all material respects as provided for
herein or, if not, must consent to arbitration as provided for hereunder.
10.1.4 The demand for arbitration shall be made
within a reasonable time after the claim, dispute or other matter in question
has arisen, and in no event shall it be made after the date when institution of
legal or equitable proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statutes of limitations.
10.1.5 Judgment on the award may be entered in any
court having jurisdiction.
10.2 Governing Law. This Agreement is made under and shall
be governed by and construed in accordance with the laws of the State of
California.
10.3 Prior Agreements. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understandings with respect to such subject matter,
whether written or oral, express or implied, and the parties hereto have made no
agreements, representations or warranties relating to the subject matter of this
Agreement which are not set forth herein.
10.4 Withholding Taxes. The Company may withhold from any
benefits payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
10.5 Partial Invalidity. The provisions of this Agreement
shall be valid and enforceable to the fullest extent permitted by law. If any
provision of this Agreement or the application of such provision to any person
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or circumstance shall, to any extent, be invalid or unenforceable, the remainder
of this Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected by such invalidity or unenforceability, unless such
provision or the application of such provision is essential to the Agreement.
10.6 Waiver. Any waiver of a default under this Agreement
must be in writing and shall not be a waiver of any other default concerning the
same or any other provision of this Agreement. No delay or omission in the
exercise of any rights or remedies shall impair its right or remedy or be
construed as a waiver. A consent to or approval of any act shall not be deemed
to waive or render unnecessary consent to or approval of any other or subsequent
act.
10.7 Amendments. No amendment or modification of this
Agreement shall be deemed effective unless made in writing signed by the parties
hereto.
10.8 Notices. All notices, requests, demands, and other
communications under this Agreement shall be deemed to have been duly given if
delivered, telecopied, or mailed by certified or registered mail:
TO THE COMPANY: DIRECTPLACEMENT, INC.
0000 Xxxxx Xxxxx Xxxxx 000
Xxx Xxxxx, XX 00000
Telecopier: (000) 000-0000
With a copy to: XXXXXXXX, XXXX, XXXXXXXXXX & XXXXXXX, LLP
000 "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier No. (000) 000-0000
TO EMPLOYEE:
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Telecopier No.
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or to such other address or telecopier number which either party may notify the
other party as provided above.
10.10 Survival. Sections 6 and 9 shall survive termination
of this Agreement.
10.11 Counterparts. This Agreement may be executed by the
parties in one or more counterparts, all of which taken together shall
constitute one and the same instrument. The facsimile signatures of the parties
shall be deemed to constitute original signatures, and facsimile copies hereof
shall be deemed to constitute duplicate original counterparts.
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10.12 Modification in Writing. This Agreement may be
modified only by an agreement in writing executed by the parties to this
Agreement against whom enforcement of such modification is sought.
10.13 Waiver. Any waiver of a default under this Agreement
must be in writing and shall not be a waiver of any other default concerning the
same or any other provision of this Agreement. No delay or omission in the
exercise of any rights or remedies shall impair its right or remedy or be
construed as a waiver. A consent to or approval of any act shall not be deemed
to waive or render unnecessary consent to or approval of any other or subsequent
act.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this At-Will Employment
Agreement as of the day and year set forth above.
THE COMPANY
DIRECTPLACEMENT, INC.,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXXXXX
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Name: Xxxxx X Xxxxxxxxxx
Title: President
EMPLOYEE
XXXXXXX X. XXXXXX
By: /s/ XXXXXXX XXXXXX
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EXHIBIT "A"
DESCRIPTION OF DUTIES
Responsibilities include (but are not limited to) the following:
Chief Financial Officer
1. Successful achievement of timely, accurate, and complete public company
filing requirements, including 10-K, 10-Q, and 8-K requirements.
2. Successful achievement of timely, accurate, and complete NASD
broker/dealer annual audit filing requirements for the Company's PCS
Securities, Inc. and DP Securities, Inc. subsidiaries.
3. Assisting the CEO and Director of Mergers & Acquisitions as needed to
successfully effect acquisitions.
4. Successful achievement of timely, accurate, and complete valuation and
proforma modeling for 8-K requirements following acquisitions.
5. Assisting the CEO with successfully securing a new line of credit by
6/30/02.
6. Identifying and successfully implementing a new accounting system and
proper procedures for the Company and its subsidiaries on or before
6/30/02.
7. Corresponding with Company shareholders and potential shareholders on
an as-needed basis regarding the Company's financial condition and
general business outlook.
8. Assisting the CEO with investor presentations as needed.
9. Organizing and preparing the Company's quarterly earnings announcements
and conference calls.
10. Such other duties and responsibilities that would normally be required
of a Chief Financial Officer and any additional duties and
responsibilities that shall be identified and mutually agreed upon by
Employee and the Company during the term of this Agreement.
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