Exhibit 10.1
CHARTWELL INTERNATIONAL, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
of
XXXXXX X. XXXXX
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of February 1,
2001 by and between Chartwell International, Inc.., a Nevada corporation (the
"Company"), with an address at 000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx
00000, and Xxxxxx X. Xxxxx, with an address at 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000 (the "Employee").
In consideration of the premises and mutual covenants contained herein, the
parties agree as follows:
1. Employment. For a term of five (5) years from the date above, (the "Effective
Date"), with automatic annual extensions thereafter, unless either party gives
notice to the other no less than thirty (30) days before the end of any term
that this agreement will not be renewed, Employee shall be employed as the Chair
of Board and President of the Company, and shall have the duties and
responsibilities customary to someone in that position, including the duties and
responsibilities set forth on Schedule 1, subject to the Company's right to
expand, limit or change such duties and provided that it is envisioned by
Employee and Company and shall become the Executive Vice President Corporate
Development of Company within the first year of the term of this Agreement,
premised upon acceptable performance by Employee under this Agreement and
otherwise as determined by Company's Board of Directors in its sole and absolute
discretion. Company and Employee understand and agree that Employee is
considered to be part of executive and management personnel of Company and/or
professional staff as contemplated by C.R.S. ss. 8-2-113(2)(d), a copy of which
is attached hereto as Exhibit 2 and incorporated into the terms hereof by this
reference. During the term of employment hereunder, Employee shall report to the
current President and CEO of the Company and/or the Board of Directors, and
shall devote her best efforts and business time and attention to the business
and affairs of the Company, excluding time off for vacation and reasonable time
off for illness and sick days in accordance with the Company's policies in
effect from time to time. Employee shall perform her duties and responsibilities
to the Company hereunder to the best of her abilities in a diligent,
trustworthy, businesslike and efficient manner.
2. Compensation and Benefits.
(a) (1) Employee's Base Salary. In consideration for rendering the services as
set forth herein, Employee shall receive an initial annual base salary of SIXTY
THOUSAND DOLLARS ($60,000), for which the employee will commit at least 40% of
her time to company matters, of which TWO THOUSAND FIVE HUNDRED ($2,500.00)
shall be paid semi-monthly in arrears, and deferred and payable in accordance
with paragraph 2 (b) below. Employee's salary will be reviewed by the Company
and Employee annually on or each anniversary of the effective date of the
Agreement and shall be adjusted by mutual agreement of the parties.
(b) Deferred Compensation. The deferred compensation referenced in subparagraph
(a) above shall be payable to Employee upon the earlier to occur of (i) November
1, 2002 (provided Employee is employed by Company on such date pursuant to this
Agreement); or (ii) upon Company obtaining sufficient financing. In addition,
the full applicable periodic compensation shall be paid and there shall be no
deferral in each month where the Company is realizing over One Hundred Thousand
($100,000) positive cash flow per month, after payment of all expenses and costs
of whatever kind or nature, including, without limitation, loan repayments,
principal and interest.
(b) Barter Credits. Employee will receive up to $20,000 in barter credits for
each year of this contract.
(c) Bonus. In addition to all other compensation, the Employee shall participate
in a bonus program for executives as approved by the Board of Directors.
(d) Benefits. The Employee shall be eligible to be a participant in any medical,
dental, disability or health benefit plans which the Company may provide to
similarly situated employees from time to time, as well as be included in any
pension plan or profit sharing that the Company may implement from time to time,
provided that Employee shall be entitled to substantially the same benefits
package as currently enjoyed by similarly situated employees.
(e) Expenses. The Company agrees that Employee shall be entitled to
reimbursement for traveling, entertainment and other expenses reasonably
incurred by Employee in the performance of her employment obligations and
responsibilities and reasonably related automobile expenses as are available to
similarly situated executive employees; provided that such expenses be
pre-approved by the Company and that the Company's liability in this regard
shall otherwise be limited by the terms and conditions of Company policy in
effect on the date that the expense is incurred.
Termination.
For Cause by Company. This Agreement may be terminated by Company for
cause, at any time, effective upon written notice to Employee. The term "cause"
shall mean any one of the following: (a) Employee has breached this Agreement,
which breach remains uncured to the reasonable satisfaction of the Board of
Directors of Company for thirty (30) days after Employee receives written notice
thereof from the Board of Directors; (b) Employee has committed willful
misconduct or any willful violation of law in the performance of Employee's
duties to Company; (c) Employee has willfully failed to follow reasonable,
lawful and explicit instructions of the Board of Directors of Company concerning
the operations or business of Company; (d) Employee has been convicted of a
felony deemed by Company to be adverse to its business or reputation; (e)
Employee has willfully misappropriated funds or property of Company; (f)
Employee has willfully obtained a personal profit from any transaction which
constitutes a corporate opportunity of Company or any affiliates, unless the
transaction was approved in writing by Company's Board of Directors after full
disclosure of all details relating to such transaction, or (g) Employee has
directly or indirectly caused a breach of the confidentiality or non-compete
provisions, (h) Employee works part time or full time for any other entity.
(f) Without Cause by Company. This Agreement may be terminated without cause by
the Company at anytime effective upon written notice to Employee, provided that,
if Employee is terminated "without cause," severance will be paid to the
Employee as follows: (I) if the Employee is terminated without cause within one
year of the date of execution of this Agreement, the Employee shall continue to
be paid her base salary for three (3) months, and (ii) if the Employee is
terminated without cause later than one year after execution of this Agreement,
the Employee shall continue to be paid her base salary for six (6) months.
(g) Voluntarily by Employee. In the event Employee elects to voluntarily
terminate her employment pursuant to notice as provided herein, Company shall
pay Employee the prorated compensation through the date of termination and any
unexercised stock options (whether vested or not) held by Employee shall
automatically expire and automatically be deemed terminated and of no further
force and effect upon such notice of voluntary termination. Upon payment by
Company of such prorated compensation, Company shall be relieved of all further
obligations to Employee under this Agreement. In such event, Employee will be
bound by the provisions of Sections 5 and 6 hereof.
(h) Effect of Termination on Stock Options as to Sections 3(a) and 3(b). If
Employee is terminated by Company pursuant to subparagraphs 3(a) or 3(b), he
must exercise all vested stock options within ninety (90) days of termination,
and any unexercised stock options (whether vested or not) held by Employee in
the shares of Company or in the shares of any affiliate of Company shall
automatically expire upon such termination and automatically be deemed
terminated and of no further force and effect. This provision shall control any
inconsistent or conflicting provision in this Agreement and in any other
agreement between Company, or any affiliate of Company and Employee.
(i) Death or Disability. The term of employment hereunder shall also terminate
immediately upon the death or "permanent disability" of the Employee ("permanent
disability" being defined as the inability of the Employee to adequately perform
her work in accordance with the provisions of this Agreement for a period of
ninety (90) days, and thereupon the Employee shall not be entitled to receive
any further salary or other compensation; provided however, that the Employee,
or the Employee's estate or guardian, as the case may be, shall be entitled to
exercise any vested unexercised stock options pursuant to their terms, and all
non-vested stock options shall be automatically terminated.
2. Notice Period. Employee and Company understand and agree that should Employee
terminate employment he will give Company thirty (30) days' advance written
notice (the "Notice Period"). Company may, at its option, pay Employee for the
Notice Period in lieu of active employment during the Notice Period. It is
understood that a party's exercise of its rights under this Paragraph shall be
without prejudice to any other right or remedy which it may have at law, in
equity, or under this Agreement, including, without limitation, Company's right
to terminate such employment without notice for Cause.
2.1 Company agrees to continue in effect during the Notice Period payment of the
salary only without bonus or any other compensation to which Employee may be
entitled under this Agreement, which payments shall be made if and only if the
Employee has executed and delivered to the Company a general release of all
claims against the Company and its stockholders, directors, and employees in
form and substance satisfactory to the Company and only so long as Employee has
not breached and during the Notice Period does not breach the provisions of
Sections 5 and 6 hereof, which provisions shall extend beyond the term of
employment and shall survive termination or expiration of this Agreement.
2.2 Employee agrees that during the Notice Period, he will cooperate fully with
Company in all matters relating to the winding up of any pending work and the
orderly transfer to other Company employees of accounts and matters for which
Employee has been responsible.
2.3 Employee agrees that, prior to the expiration of the Notice Period, he will
return to Company all lists of prospects, candidates and other matters compiled
by Company's management and research staff, or by Employee while employed by
Company, and all business records and materials related thereto, whether in
tangible form, or on computer hard disks, diskettes, on tape drives or any
electronic media, computer literature, correspondence, notes, memoranda,
reports, summaries, manuals, proposals, contracts and other documents of any
kind which relate in any way to the business of Company, including specifically
all materials which comprise or refer to Company's Confidential Information.
Employee will not retain any copy, facsimile or note intended to memorialize any
such data. Employee further agrees that Company's Confidential Information and
trade secrets, remains the sole and exclusive property of Company and subject to
the terms of this Agreement.
2.4 Employee agrees that, at or about the expiration of the Notice Period,
Company may convene an exit interview to review the status of accounts and
matters for which Employee has most recently been responsible to ensure that
Employee has fully obtained any entitlements which may be available under this
Agreement and/or to confirm that Employee clearly understands the nature and
scope of all of her post-employment obligations.
3. Confidentiality.
(a) Employee recognizes that by virtue of Employee's employment by Company
Employee will be afforded numerous and extensive resources to assist Employee in
the solicitation, development, production and servicing of business clients.
Employee understands and agrees that all efforts that Employee expends and
programs and strategies Employee develops in this regard shall be for the
permanent and exclusive benefit of Company, that Company shall secure and retain
indefinitely the proprietary interest in all such business clients, and that
Employee will not undertake any action which could in any way disturb Company's
relationship with said business clients or Company accounts.
(b) Employee further recognizes that by virtue of her employment relationship to
Company, Employee will be granted otherwise prohibited access to confidential,
proprietary information and data of Company which is not known either to its
competitors or within the collegiate student business and related financial
planning business generally and which has independent economic value to Company
and to its subsidiaries and affiliates. This information (hereinafter referred
to as "Confidential Information") includes trade secrets, as contemplated by
C.R.S. ss.ss.7-74-102(4) and 8-2-113(2)(b) (a copy of which is attached hereto
as Schedule 2 and the terms of which are incorporated herein by this reference)
and also includes, but is not limited to: the whole or any portion or phase of
any technical information, process, procedure, formula, improvement,
confidential business or financial information, business plan, listing of names,
addresses, or telephone numbers, or other information relating to Company, its
subsidiaries and affiliates' business which is secret and of value, including,
but not limited to, data relating to Company, its subsidiaries and affiliates'
unique marketing and servicing programs, procedures and techniques; business,
management and personnel strategies; the criteria and formulae used by Company,
its subsidiaries and affiliates in pricing their products; lists of prospects,
candidates, and other matters compiled by Company, its subsidiaries and
affiliates' management and research staff; the identity, addresses, telephone
numbers, authority and responsibilities of key contacts at Company accounts or
its subsidiaries' or affiliates' accounts, including, but not limited to, high
schools and colleges; details concerning the academic, athletic and personal
backgrounds of student-athlete collegiate scholarship candidates, including
attributes of the scholarship candidates; commission rates of Company, its
subsidiaries and affiliates' personnel; and other data showing the
particularized requirements and preferences of clients and Company, its
subsidiaries and affiliates' accounts, including, but not limited to, high
schools and colleges. Employee recognizes that this Confidential Information
constitutes a valuable property of Company and of its subsidiaries and
affiliates developed over a long period of time and at substantial expense.
Accordingly, Employee agrees that Employee will not, at any time during the
employment relationship with the Company or for a period of three (3) years
after the termination of the Employment relationship with Company, divulge such
Confidential Information or make use of such Confidential Information for
Employee's own purposes or the purposes of another.
4. Non-Compete. Employee recognizes Company's legitimate interest in protecting,
during and for a reasonable period of time following the termination of
Employee's employment, those Company accounts and business contacts with which
Employee will be associated during her employment. Accordingly, Employee
understands and agrees that while employed by Company and for a period of three
(3) years following termination of employment with Company (unless, the Employee
has been terminated without cause by Company, in which case for a period of one
(1) one year following termination), Employee will not compete with the business
of the Company or of any subsidiary or affiliate of Company or solicit the
customers of the Company or of any subsidiary or affiliate of Company. The
geographic limitation within which the Employee shall not compete includes any
states in which Company conducts its business as of the date of the termination
of Employee's employment with the Company. Notwithstanding this location
limitation, Employee will not, during the non-competition period, solicit or
perform work for any of Company's existing customers or clients as of the date
of termination of Employee's employment, regardless of the location from which
such work is performed. If the time or geographic limitation set forth herein is
deemed to be unreasonable, Employee agrees to abide by the maximum time or
geographic limitation decided by a court or other tribunal of competent
jurisdiction.
5. Breach of Agreement. Employee and Company understand and agree that any
breach or evasion of any term of this Agreement will potentially give rise to
actions for breach of contract or tort, which may be brought in any court of
competent jurisdiction. Employee recognizes that the rights and privileges
granted to Employee by this Agreement and Employee's services and Employee's
corresponding covenants to Company are of a special, unique and extraordinary
character, the loss of which cannot reasonably or adequately be solely
compensated for in damages in any action at law or through the offset or
withholding of any monies to which Employee otherwise might be entitled from
Company. Accordingly, Employee understands and agrees that Company shall also be
entitled to equitable relief, including a temporary restraining order and
preliminary and permanent injunctive relief, to prevent a breach of this
Agreement. The remedies available to Company under this Agreement are
cumulative. Company may, in its sole discretion, elect to pursue all or any of
such remedies. Such remedies are in addition to any given by law or equity and
may be enforced successively or concurrently.
6. Successors or Assigns. This Agreement will be binding upon and benefit the
parties hereto and their assigns, executors, heirs or successors, provided that
Employee will not assign any obligation hereunder without the Company's prior
written consent, which consent may be withheld by Company for any reason, and
any such attempted assignment shall be void.
7. Amendment, Modification, or Waiver. No amendment, modification or waiver of
any condition, provision, or terms of this Agreement will be valid or of any
effect unless made in writing and signed by the party or parties to be charged.
Any waiver by any party of any default of the other party will not affect or
impair any rights arising from any subsequent default by such party.
8. Severable Conditions. Each provision of this Agreement is intended to be
severable. If any provision hereof is illegal or invalid for any reason, such
illegality or invalidity shall not affect the remainder of this Agreement.
9. Entire Agreement. This Agreement contains the entire agreement and
understanding of the parties respecting the transaction contemplated hereby and
supersedes all prior agreements and understandings between the parties
respecting the subject matter of this Agreement.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado with exclusive venue for the
enforcement hereof to be in Jefferson County, Colorado. Both parties consent to
personal jurisdiction in the courts of Colorado located in Jefferson County,
Colorado.
11. Attorneys' Fees. The substantially prevailing party in any litigation or
other proceeding enforcing this Agreement shall be entitled to reimbursement of
all costs and expenses including, without limitation, reasonable attorneys' fees
at each trial and appellate levels.
12. Captions. The captions in this Agreement are included for purposes of
reference only and are not part of the text of this Agreement.
13. Counterparts. This agreement may be executed in several counterparts all of
which shall constitute one and the same Agreement.
EXECUTED as of the date first above written.
Employee:
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Xxxxxx X. Xxxxx Date
CHARTWELL INTERNATIONAL, INC., a Nevada corporation
By:
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Xxxxx Xxxxxxxx
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Corporate Secretary
(Corporate Seal)
