EXHIBIT 10.1 - Employment Agreement for Xxxxxxx X. Xxxxxxxx
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT is entered into by and between Pipeline Technologies,
Inc., a Florida corporation (the "Company"), and Xxxxxxx Xxxxxxxx, the
undersigned individual ("Executive").
RECITAL
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The Company and Executive desire to enter into an Employment Agreement setting
forth the terms and conditions of Executive's employment with the Company.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Company and Executive agree as follows:
1. Employment
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(a) Term. The Company hereby employs Executive to serve as Chief
Executive Officer and to serve in such additional or
different position or positions as the Company may determine
in its sole discretion. The term of employment shall be for
a period of four (_4_) years ("Employment Period") to
commence on the date hereof, unless earlier terminated as
set forth herein.
(b) Duties and Responsibilities.
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Executive will be reporting to the Company's Board of
Directors of Pipeline Technologies, Inc.. Within the
limitations established by the Bylaws of the Company, the
Executive shall have each and all of the duties and
responsibilities of that position and such other or
different duties on behalf of the Company, as may be
assigned from time to time by the Board of Directors of the
Company.
(c) Location.
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The initial principal location at which Executive shall
perform services for the Company shall be Jacksonville, FL.
2. Compensation.
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(a) Base Salary.
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Executive shall be paid a base salary ("Base Salary") at the
annual rate of $200,000, payable in bi-weekly installments
consistent with Company's payroll practices commencing on
May 1, 2000. The annual Base Salary shall be reviewed on or
before [January 1] of each year, unless Executive's
employment hereunder shall have been terminated earlier
pursuant to this Agreement, starting on January 1, 2001 by
the Board of Directors of the Company to determine if such
Base Salary should be increased for the following year in
recognition of services to the Company.
Form 7-8 1
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(b) Payment.
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Payment of all compensation to Executive hereunder shall be
made in accordance with the relevant Company policies in
effect from time to time, including normal payroll
practices, and shall be subject to all applicable employment
and withholding taxes.
(c) Bonus.
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Executive shall also be entitled to a bonus determined as
follows: 5% (five percent) of the Company's net, pretax
income as an annual performance bonus.
3. Other Employment Benefits.
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(a) Benefit Plans.
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Executive shall be entitled to participate in the Company's
medical and dental plans, life and disability insurance
plans and retirement plans pursuant to their terms and
conditions as made available by the Company. Executive shall
be entitled to participate in any other benefit plan offered
by the Company to its employees during the term of this
Agreement (other than stock option or stock incentive plans,
which are governed by Section 3(d) below). Nothing in this
Agreement shall preclude the Company or any affiliate of the
Company from terminating or amending any employee benefit
plan or program from time to time.
(b) Vacation.
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Executive shall be entitled to four (_4_) weeks of paid
vacation each year of full employment, exclusive of legal
holidays, as long as the scheduling of Executive's vacation
does not interfere with the Company's normal business
operations. All vacation should be used in any calendar year
however, any unused vacation in a given year may be carried
over from year to year.
(c) Stock Options.
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Executive shall be entitled to options to acquire shares of
the Common Stock of the Company pursuant to a stock option
plan approved by the Board of Directors.
(d) Auto Allowance.
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Executive shall be paid an auto allowance in the amount of
six hundred dollars ($600) per month to be paid bi-weekly in
lieu of reimbursement of travel expenses calculated on a per
mile basis.
(d) Wireless Phone Charges.
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Executive shall be reimbursed wireless communication charges
related to company business on a monthly basis.
(e) Health Benefits.
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Executive shall receive health benefits consistent with the
corporate health plan as it may be changed from time to
time. Spouse health insurance coverage shall be provided by
the Company.
Form 7-8 2
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(f) Travel and Entertainment.
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Upon submission of itemized expense statements in the manner
specified by the Company, Executive shall be entitled to
reimbursement for reasonable travel and other reasonable
business expenses duly incurred by Executive in the
performance of his duties under this Agreement. All company
related travel and entertainment expenses shall be fully
reimbursable subject to review by the Chief Financial
Officer.
(h) No Other Benefits.
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Executive understands and acknowledges that the compensation
specified in Sections 2 and 3 of this Agreement shall be in
lieu of any and all other compensation, benefits and plans.
4. Executive's Business Activities.
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Executive shall devote the substantial portion of his entire
business time, attention and energy exclusively to the business
and affairs of the Company and its affiliates, as its business
and affairs now exist and as they hereafter may be changed.
Executive may serve as a member of the Board of Directors of
other organizations that do not compete with the Company, and may
participate in other professional, civic, governmental
organizations and activities that do not materially affect his
ability to carry out his duties hereunder.
5. Termination of Employment.
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(a) For Cause.
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Notwithstanding anything herein to the contrary, the Company
may terminate Executive's employment hereunder for cause for
any one of the following reasons: (1) conviction of a
felony, any act involving moral turpitude, or a misdemeanor
where imprisonment is imposed, (2) commission of any act of
theft, fraud, dishonesty, or falsification of any employment
or Company records, (3) improper disclosure of the Company's
confidential or proprietary information, (4) any action by
the Executive which has a detrimental effect on the
Company's reputation or business, (5) Executive's failure or
inability to perform any reasonable assigned duties after
written notice from the Company of, and a reasonable
opportunity to cure, such failure or inability, (6) any
breach of this Agreement, which breach is not cured within
ten (10) days following written notice of such breach, (7) a
course of conduct amounting to gross incompetence, (8)
chronic and unexcused absenteeism, (9) unlawful
appropriation of a corporate opportunity, or (10) misconduct
in connection with the performance of any of Executive's
duties, including, without limitation, misappropriation of
funds or property of the Company, securing or attempting to
secure personally any profit in connection with any
transaction entered into on behalf of the Company,
misrepresentation to the Company, or any violation of law or
regulations on Company premises or to which the Company is
subject. Upon termination of Executive's employment with the
Company for cause, the Company shall be under no further
obligation to Executive, except to pay all accrued but
unpaid base salary and accrued vacation to the date of
termination thereof.
Form 7-8 3
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(b) Without Cause.
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The Company may terminate Executive's employment hereunder
at any time without cause, provided, however, that Executive
shall be entitled to severance pay in the amount of
twenty-six (_26_) weeks of Base Salary in addition to
accrued but unpaid Base Salary and accrued vacation, less
deductions required by law, but if, and only if, Executive
executes a valid and comprehensive release of any and all
claims that the Executive may have against the Company in a
form provided by the Company and Executive executes such
form within seven (7) days of tender.
(c) Resignation.
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Upon termination of employment, Executive shall be deemed to
have resigned from the Board of Directors of the Company if
he is a Director.
(d) Cooperation.
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After notice of termination, Executive shall cooperate with
the Company, as reasonably requested by the Company, to
effect a transition of Executive's responsibilities and to
ensure that the Company is aware of all matters being
handled by Executive.
6. Disability of Executive.
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The Company may terminate this Agreement without liability if
Executive shall be permanently prevented from properly performing
his essential duties hereunder with reasonable accommodation by
reason of illness or other physical or mental incapacity for a
period of more than 60 (sixty) consecutive days or 90 (ninety)
cumulative days within one calendar year. Upon such termination,
Executive shall be entitled to all accrued but unpaid Base Salary
and vacation.
7. Death of Executive.
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In the event of the death of Executive during the Employment
Period, the Company's obligations hereunder shall automatically
cease and terminate; provided, however, that within 15 days the
Company shall pay to Executive's heirs or personal
representatives Executive's Base Salary and accrued vacation
accrued to the date of death.
8. Confidential Information and Invention Assignments.
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Executive has executed a Confidential Information and Invention
Assignment Agreement (the "Confidential Information and Invention
Assignment Agreement"). The obligations under the Confidential
Information and Invention Assignment Agreement shall survive
termination of this Agreement for any reason.
9. Exclusive Employment.
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During employment with the Company, Executive will not do
anything to compete with the Company's present or contemplated
business, nor will he or she plan or organize any competitive
business activity. Executive will not enter into any agreement
which conflicts with his duties or obligations to the Company.
Executive will not during his employment or within one (1) year
after it ends, without the Company's express written consent,
directly or indirectly, solicit or encourage any employee, agent,
independent contractor, supplier, customer, consultant or any
other person or company to terminate or alter a relationship with
the Company.
Form 7-8 4
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10. Assignment and Transfer.
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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. This
Agreement shall inure to the benefit of, and be binding upon and
enforceable by, any purchaser of substantially all of Company's
assets, any corporate successor to Company or any assignee
thereof.
11. No Inconsistent Obligations.
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Executive is aware of no obligations, legal or otherwise,
inconsistent with the terms of this Agreement or with his
undertaking employment with the Company. Executive will not
disclose to the Company, or use, or induce the Company to use,
any proprietary information or trade secrets of others. Executive
represents and warrants that he or she has returned all property
and confidential information belonging to all prior employers.
12. Miscellaneous.
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(a) Attorneys' Fees.
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Should either party hereto, or any heir, personal
representative, successor or assign of either party hereto,
resort to legal proceedings in connection with this
Agreement or Executive's employment with the Company, the
party or parties prevailing in such legal proceedings shall
be entitled, in addition to such other relief as may be
granted, to recover its or their reasonable attorneys' fees
and costs in such legal proceedings from the non-prevailing
party or parties; provided, however, that nothing herein is
intended to affect the provisions of Section 12(l).
(b) Governing Law.
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This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without
regard to conflict of law principles.
(c) Entire Agreement.
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[Except with respect to the Stock Option Plan and Stock
Option Agreement referenced in Section 3(d),] this
Agreement, [together with the attached exhibits and the
Confidential Information and Invention Assignment
Agreement,] contains the entire agreement and understanding
between the parties hereto and supersedes any prior or
contemporaneous written or oral agreements, representations
and warranties between them respecting the subject matter
hereof.
(d) Amendment.
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This Agreement may be amended only by a writing signed by
Executive and by a duly authorized representative of the
Company.
(e) Severability.
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If any term, provision, covenant 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.
Form 7-8 5
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(f) Construction.
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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 the Company or Executive.
(g) Rights Cumulative.
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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) Non-waiver.
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No failure or neglect of either party hereto in 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 the Company, by an officer of
the Company (other than Executive) or other person duly
authorized by the Company.
(i) Remedy for Breach; Attorneys' Fees.
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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 the
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 the Company shall
be entitled to injunctive relief against Executive in the
event of any breach or threatened breach of any of such
provisions by Executive, in addition to any other relief
(including damages) available to the Company under this
Agreement or under law. The prevailing party in any action
instituted pursuant to this Agreement shall be entitled to
recover from the other party its reasonable attorneys' fees
and other expenses incurred in such action.
(j) Notices.
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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 certified or registered mail, with postage prepaid, to
Executive's residence (as noted in the Company's records),
or to the Company's principal office, as the case may be.
(k) Assistance in Litigation.
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Executive shall, during and after termination of employment,
upon reasonable notice, furnish such information and proper
assistance to the Company as may reasonably be required by
the Company in connection with any litigation in which it or
any of its subsidiaries or affiliates is, or may become a
party; provided, however, that such assistance following
termination shall be furnished at mutually agreeable times
and for mutually agreeable compensation.
Form 7-8 6
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(l) Arbitration.
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Any controversy, claim or dispute arising out of or relating
to this Agreement or the employment relationship, either
during the existence of the employment relationship or
afterwards, between the parties hereto, their assignees,
their affiliates, their attorneys, or agents, shall be
settled by arbitration in Jacksonville, Florida. Such
arbitration shall be conducted in accordance with the then
prevailing commercial arbitration rules of the American
Arbitration Association, with the following exceptions if in
conflict: (a) each party to the arbitration will pay its pro
rata share of the expenses and fees of the arbitrator(s),
together with other expenses of the arbitration incurred or
approved by the arbitrator(s); and (b) arbitration may
proceed in the absence of any party if written notice
(pursuant to rules and regulations) of the proceedings has
been given to such party. The parties agree to abide by all
decisions and awards rendered in such proceedings. Such
decisions and awards rendered by the arbitrator shall be
final and conclusive and may be entered in any court having
jurisdiction thereof as a basis of judgment and of the
issuance of execution for its collection. All such
controversies, claims or disputes shall be settled in this
manner in lieu of any action at law or equity; provided
however, that nothing in this subsection shall be construed
as precluding the Company from bringing an action for
injunctive relief or other equitable relief or relief under
the Confidential Information and Invention Assignment
Agreement. The arbitrator shall not have the right to award
punitive damages, consequential damages, lost profits or
speculative damages to either party. The parties shall keep
confidential the existence of the claim, controversy or
disputes from third parties (other than the arbitrator), and
the determination thereof, unless otherwise required by law
or necessary for the business of the Company. The
arbitrator(s) shall be required to follow applicable law. IF
FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT
APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES
HERETO.
Form 7-8 7
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Alternate (l):
(l) Disputes.
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Any controversy, claim or dispute arising out of or relating
to this Agreement or the employment relationship, either
during the existence of the employment relationship or
afterwards, between the parties hereto, their assignees,
their affiliates, their attorneys, or agents, shall be
litigated solely in state or federal court in Jacksonville,
Florida. Each party (1) submits to the jurisdiction of such
court, (2) waives the defense of an inconvenient forum, (3)
agrees that valid consent to service may be made by mailing
or delivery of such service to the Florida Secretary of
State (the "Agent") or to the party at the party's last
known address, if personal service delivery can not be
easily effected, and (4) authorizes and directs the Agent to
accept such service in the event that personal service
delivery can not easily be effected. EACH PARTY, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY
ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date set forth below.
Pipeline Technologies, Inc. EXECUTIVE:
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxx X. Xxxxx Name: Xxxxxxx Xxxxxxxx
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Title: CFO Title: President
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Date: 5/01/00 Date: 5/01/00
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Form 7-8 8
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