EXHIBIT 10.5 EMPLOYMENT AGREEMENT BETWEEN Xxxxxxxx Digicom AND Xxxxxxxx Xxxxxxxx
THIS AGREEMENT, dated as of February 6, 1999, is entered into between Xxxxxxxx
Digicom, Inc. whose address is 305 Cadillac Xxxxx 0-000X, Xxxxx Xxxx, XX 00000,
hereinafter ("Company"), and Xx. Xxxxxxxx Xxxxxxxx , whose address is
000-00 00xx Xxxxxx, Xxxxxxxx, XX 00000 hereinafter ("Executive").
1.Employment
(a) Company hereby employs Executive to serve as Senior Vice President of
International Affairs grade level E13 of the Company reporting to the
President/CEO. To perform, subject to the overriding directions and authority
of the board of director(s) of the Company, the duties and responsibilities
commensurate with such position and employment shall be for the period
commencing on February 15, 1999, (the "Commencement Date"), and ending five
years from the Commencement Date (the "Term") (each year of which Term shall be
referred to hereinafter as a "Term Year"), unless such employment is sooner
terminated as provided in this Agreement.
(b) Executive hereby accepts employment under this Agreement and agrees to
devote Executive's best efforts and his full time and attention to the business
and affairs of Company, as such business and affairs now exist and as they may
be hereafter changed or augmented, under and pursuant to the general direction
of the Board of directors of the Company (the "Board"). Company shall retain
full direction and control of the manner, means and methods by which Executive
performs the services for which Executive is employed thereunder and of the
place or places at which such services shall be tendered.
2. Compensation
Executive shall be paid at the yearly rate of $120,000 (US Dollars), payable
at semimonthly intervals during the term of employment and shall be reviewed
annually. Executive shall, in addition to his annual salary, be entitled to an
annual bonus as awarded by the Board of Directors. Bonus shall be based on the
net profits of company before taxes and extraordinary items. Executive shall
be awarded 70 % of base salary as a annual bonus, based on performance of
company as directed by the Board of Directors. Such bonus shall be paid within
90 days after the expiration of each Term Year or paid quarterly as directed by
management team. Bonus may be award as cash payment or stock or any
combination thereof. Executive shall further be entitled to stock options of
150,000 shares at a purchase price of $1.00 as awarded by the Board of
Directors. One fifth (1/5) of such awards shall be awarded on the Commencement
Date of each anniversary for this contract duration and all shall be
exercisable for a period of five years thereafter.
(a) Reimbursements.
Executive, shall be entitled to reimbursement for reasonable travel and other
business expenses incurred by Executive in the performance of his duties under
this Agreement in accordance with the general policy of Company, as it may
change from time to time. Executive acknowledges that if issued company credit
cards Executive shall use only as per company guidelines and for company use
only. Executive gives company right without any further action to hold
compensation in such amount as required to pay credit card if they are not used
as per company policy.
(b)Withholding.
Company shall be entitled to withhold from any compensation thereunder such
amounts on account of payroll taxes, income taxes and other similar matters as
are require to be withheld by applicable law.
(c) Insurance.
Company may, at its discretion, secure at its own expense a "key-man"
insurance policy upon the life of Executive, payable to Company in he event of
Executive's death. Executive agrees that any such insurance policy shall be
for Company's benefit only, and acknowledges that no person claiming by or
through Executive shall have any right to the proceeds of such insurance
policy. Executive agrees to execute all documents and take all acts reasonably
requested by Company to secure and enjoy the benefits of such insurance policy.
(d) Vacation.
Executive shall be entitled to four (4) weeks vacation per calendar year.
(e) Benefit Plans.
Executive and designated dependents shall be entitled to participate in the
Company's health insurance, and life insurance plans and other benefit plans as
may from time to time be adopted for similarly situated employees of company
during the course of his employment. The amount and extent of benefits to
which executive is entitled shall be governed by the company's specific benefit
plan and any amendments thereto. Nothing in this Agreement shall preclude
Company or any affiliate of Company from terminating or amending any employee
benefit plan or program at any time or from time to time.
3. Confidentiality
(a) The Executive acknowledges that in the course of his employment he will
acquire information about certain matters and things which are confidential to
the Company and which information is the exclusive property of the Company.
Further, the Executive acknowledges that the Company's business depends
significantly upon the maintenance of trade secrets, technical innovations and
other confidential proprietary information that the Company has developed at
great expense. The Executive further acknowledges that the Company has
developed a close and valuable relationship with many of its customers and
suppliers.
(b) The Company acknowledges that in the course of Executives employment they
will acquire information about certain matters and things which are
confidential to the Executive and which information is the exclusive property
of the Executive. Further, the Company acknowledges that the Executive's
relationships are confidential proprietary information that the Executive has
developed at great expense. The Company further acknowledges that the
Executive has developed a close and valuable relationship with many other key
executives and they shall remain the confidential property of the Executive.
(c) In partial consideration for the Executive's employment hereunder, the
Executive and Company in considering those matters set out in subparagraph (a)
hereof, covenants and agrees that he will not, at any time during the term of
his employment by the Company and for a period of one (1) year thereafter,
reveal, divulge or make known to any person or entity other than the Company
and its duly authorized employees) or make use of for his own or any other's
benefit, the Company's list of customers and suppliers or its trade secrets,
production processes and materials, formulae, research techniques or
accomplishments, markets or marketing plans, present and future, technical and
business information relating to the Company's services or products, research
and development, potential business ventures, or his knowledge of any of the
other business or financial affairs of the Company, or any other information
regarded by the Company as confidential, which during this employment pursuant
hereto is made known to the Executive (the "Confidential Information"). For
greater certainty, Executive and Company shall maintain in confidence and will
not disclose or use, without the prior express written consent of Executive or
Company, any Confidential Information whether or not it is in written or
permanent form, except to the extent required to perform duties on behalf of
Company in Executive's capacity as an employee. Confidential Information
includes, without limitation, any information, not generally known in the
relevant trade or industry, which was obtained from Company, or any of its
affiliates, or which was, discovered, developed, conceived, originated or
prepared by Executive in the scope of his employment. Upon termination of
Executive's employment or at the request of Company before termination,
Executive will deliver to Company all written and tangible material in his
possession incorporating Confidential Information or otherwise relating to
Company's business. These obligations with respect to Confidential Information
extend to information belonging to customers and suppliers of Company who may
have disclosed such information to Executive as the result of his status as an
employee of the Company.
4. Executive's Business Activities.
(a) Executive shall devote such professional time, attention and energy as
required by the business and affairs of Company, as its business and affairs
now exist and as they hereafter may be changed. Executive shall not, during
the term of this agreement, engage in any other business activity in the
related industry without disclosure.
(b) Executive agrees that, at no time during the term of his employment with
the Company he will not (without the prior written consent of the Company)
directly or indirectly, in any manner whatsoever, including, without
limitation, enter into the employment of or render services to or either
individually or in partnership or jointly or in conjunction with any other
Person, as principal, agent, shareholder, employee or in any other manner
whatsoever, carry on or be engaged in the same or substantially similar
business which may be carried on by the Company or any business competitive
with the business now carried on by the Company (a "Competitive Business,"), or
be concerned with or interested in or lend money to, guarantee the debt or
obligations of or permit his name or any part thereof to be used by any person,
persons, firm, association, syndicates company Or corporation engaged or
concerned with or interest in a Competitive Business. The Company does
acknowledge that his relationships that are disclosed in the agreement are
exempt for this article.
5. Interference with Company's Business
(a) During the term hereof, or at any time thereafter, Executive shall riot,
directly or indirectly, employ, solicit for employment, or advise or recommend
to any other person that such other person employ or solicit for employment,
any person employed (whether as a consultant, employee, agent or otherwise) by
Company in a Competitive Business of the Company.
(b) Executive will not at any time during the term of his employment with the
Company or at any time thereafter for himself, or on behalf of any other
Person, divulge any name or names of any or all of the customers of the Company
or knowing solicit, interfere with or attempt to entice away from the Company
in any manner whatsoever, any customer or supplier or any Person in the habit
of dealing with the Company or known by him to be about to deal with the
Company.
6. Termination of Employment by Company.
(a) Notwithstanding anything here into the contrary, Company may terminate
Executive's employment hereunder for cause at any time. Sufficient "cause" for
termination of Executive's employment hereunder shall include, but is not
limited to Executive's violation of any provision of this Agreement,
Executive's conviction for any criminal violation other than minor traffic
violations, or in the event Executive is guilty of misconduct or neglect or
dereliction of his duties hereunder, or for any course which would entitle
Company at law to terminate the employment of Executive. Upon said
termination, Company shall be under no obligation to Executive, except to pay
Executive's accrued salary and stock to the date of termination, plus one year
of salary. Upon said termination, Company shall be under no further obligation
to the Executive, except for the obligations set forth in Xxxxxxxxxx 0, 0 xxx 0
xxxxxx.
(x) Notwithstanding anything herein to the contrary, Executive may terminate
his employment hereunder at any time in the event that the Company violates any
provision of this Agreement, Upon said termination, Executive shall be under no
further obligation to the Company, except for the obligations set forth in
Paragraphs 3, 4 and 5 hereof.
7. Disability
If Executive shall be prevented during the period of employment hereunder from
properly performing services hereunder by reason of illness or other physical
or mental incapacity for a period of more than 30 consecutive days in any 60
day period, then Executive's salary shall be paid up through the last day of
the year in which the thirtieth (30th) consecutive day of incapacity occurs,
and thereafter Company's obligations hereunder shall cease and terminate. If
Executive becomes disabled and unable to perform the Executive's duties during
the term of this Agreement, Executive will be eligible to participate in the
disability plans or programs applicable to employees of Company, if any.
8. Death of Executive
(a) In the event of the death of Executive during the period of his employment
hereunder, Executive's shall be paid up through the end of this contact in the
30 days in which the date of death occurs, and thereafter Company's
obligations hereunder shall cease and terminate. Executive's heirs or personal
representatives shall perform Executive's obligations under Section 3 of this
Agreement to return the materials therein described by Company upon Company's
request.
(b) Notwithstanding Subparagraph (a), in the event of the accidental death of
the Executive while traveling on behalf of the Company and while in the
performance of his duties on behalf of the Company, the heirs or personal
representatives of the Executive shall be entitled to receive, as a lump sum
payment of, the balance of the salary and stock then owing to the Executive
for the balance of the Term.
9. Assignment and Transfer
(a) Executive's rights and obligations under this Agreement shall not be
transferable by assignment or otherwise, and any purported assignment,
transfer, or delegation thereof shall be void.
(b) This Agreement shall inure to the benefit of, and be enforceable by, any
purchaser of substantially all of Company's assets, any corporate successor to
Company or any assignee thereof.
10. Obligations Surviving Expiration or Termination
Executive's and Company's obligations under Section 3, relating to proprietary
information, and Sections 4 and 5 shall survive expiration or termination of
this Agreement and termination of employment hereunder for any reason. All such
obligations shall be binding upon Executive's heirs and personal
representatives and shall inure to the benefit of Company's successors and
assigns.
11. No Inconsistent Obligations
Executive represents and warrants that there exist no obligations, legal of
otherwise, inconsistent with the terms of this Agreement or with Executive
undertaking employment with Company. Executive will not disclose to Company,
or use, or induce Company to use, any proprietary information or trade secrets
of others.
12. Obligations of or to Other Entities: Indemnification.
Executive represents and warrants that there exist no obligations or
liabilities of or claims against, and that Executive has no obligations of any
kind to, any corporation, partnership or other business entity, of which
Executive is or was a principal shareholder, partner or principal owner, other
than those which have been disclosed in writing to Company.
13. Notwithstanding anything to the contrary herein, in the event there is a
change of control of the Company prior to the expiration of the Term, the
Executive shall be entitled, by ninety (90) days' notice in writing given to
the Company within thirty (30) days following the aforementioned change of
control, to terminate his employment with the Company. In the event of such
termination, the Executive shall be entitled to receive, as at the date of such
termination, a lump sum payment equal to the balance of the salary then owing
to the Executive for the remainder of the Term. In addition, at the date of
such termination, all options granted to the Executive pursuant to Paragraph 2
that have not then vested in the Executive shall be deemed to have been vested
and to be immediately exercisable by the Executive. If Executive has any stock
of any class, restricted and non restricted it shall be deemed to have been
vested and to be immediately exercisable by the Executive. As used herein,
"change of control" means any change of responsibility or position that is not
preapproved by the Executive in writing.
14. Miscellaneous
(a) Legal Fees. Should either party hereto, or any heir, personal
representative, successor or assign of either party hereto, resort to
litigation or arbitration to enforce this Agreement, the party or parties
prevailing In such litigation or arbitration shall be entitled, in addition to
such other relief as may be granted, to recover its or their reasonable legal
fees and costs in such litigation or arbitration from the party or parties
against whom enforcement was sought.
(b) Governing Law. This Agreement shall be governed by and construed
according to the laws of the United States and shall be treated as an
California contract.
(c) Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto and supersedes any prior or
contemporaneous written or oral agreements between them respecting the subject
matter hereof.
(d) Amendments. This Agreement may be amended only by a writing signed by
Executive and by a representative of Company duly authorized.
(e) Severability. If any term, provision, or condition of this Agreement, or
the application thereof to any person, place or circumstance, shall be held to
be invalid, unenforceable, or void, the remainder of this Agreement and such
term, provision, covenant, or condition as applied to other persons, places and
circumstances shall remain in full force and effect.
(f) Construction. The headings and captions of this Agreement are provided
for convenience only and are intended to have no effect in construing or
interpreting this Agreement. The language in all parts of this Agreement shall
be in all cases construed according to its fair meaning and not strictly for or
against Company or Executive. "Person" or "persons" shall mean any person,
firm, partnership, trust, government, corporation or other legal entity,
including any combination of them.
(g) Rights Cumulative. The rights and remedies provided by this Agreement are
cumulative, and the exercise of any right or remedy by either party hereto (or
by its successor), whether pursuant to this Agreement, to any other agreement,
or to law, shall not preclude or waive its right to exercise any or all other
rights and remedies.
(h) No waiver. No failure or neglect or either party hereto to any instance
to exercise any right, power, or privilege hereunder or under law shall
constitute a waiver of any other right, power, or privilege or of the same
right, power or privilege in any other instance. All waivers by either party
hereto must be contained in a written instrument signed by the party to be
charged and, in the case of Company, by an officer of Company (other than
executive ) or other person duly authorized by Company.
(i) Remedy for Breach. The parties hereto agree that, in the event of breach
or threatened breach of any covenants of Executive, the damage or imminent
damage to the value and the goodwill of Company's business shall be
inestimable, and that therefore any remedy at law or in damages shall be
inadequate. Accordingly, the parties hereto agree that Company shall be
entitled to injunctive relief against Executive in the event of any breach or
threatened breach of any such provisions by Executive, in addition to any other
relief (including damages) available to Company under this Agreement or under
law.
(j)Notices. Any notice, request, consent, or approval required or permitted to
be given under this Agreement or pursuant to law shall be sufficient if in
writing, and if and when sent by carried or registered mail, with postage
prepaid, to Executive's residence (as noted in Company's records), or to
Company's principal office, as the case may be.
(k)Assistance in Litigation. Executive shall, during and after termination of
employment, upon reasonable notice, furnish such information and proper
assistance to the Company as any reasonably be required by the Company in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or any become, a party.
(l)Advice of Counsel. Executive acknowledges that he has had the opportunity
to consult legal counsel of his choice with regard to this agreement, that he
has read any understood his agreement, and that he is fully aware of its legal
effect and that he has entered into it freely and voluntarily and based on his
own judgment, with advice of counsel, and not based on any representations or
promises by Company, or third parties, other than those contained in this
agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date
first written above.
EXECUTIVE
/s/XXXXXXXX XXXXXXXX
XXXXXXXX XXXXXXXX
February 6, 1999
Company ( Xxxxxxxx Digicom, Inc.)
/s/XXXX X. XXXX
XXXX X. XXXX
Director
February 6, 1999
