EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, (the "Agreement"), entered into on the 12th
day of July 2005 and effective as of the 1st day July 2005 (the "Effective
Date"), by and between Xxxxxxx Xxxxx (the "Executive"), and Azur International
Inc., a Nevada corporation (collectively the "Corporation").
RECITALS
WHEREAS, the Corporation hereby agrees to employ the Executive, and the
Executive hereby accepts such employment, pursuant to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereby agree as follows:
1. EXECUTIVE'S DUTIES. The Corporation hereby agrees to employ
Executive to render his services during the term hereof, in an executive
capacity as Chief Operating Officer (the "Position") and Executive hereby
accepts such employment by the Corporation, on and subject to the terms and
conditions of this Agreement. Executive acknowledges that due to the nature of
the Corporation's business he may have to travel abroad.
The Executive shall use the Executive's professional efforts, skills
and abilities to promote the interests of the Corporation and to diligently and
competently perform faithfully and efficiently the duties of the Position.
The Executive shall, during the term of this Agreement, devote his full
time attention and energies to the performance of his duties hereunder.
The Executive shall give the Corporation the first right of refusal on
any and all projects that are brought to or are discovered by the Executive, has
been originated by Executive, or which the Executive has requested that the
Corporation undertake. Executive agrees not to offer any development or similar
project to a third party without giving the Corporation the first right to
undertake the project.
2. COMPENSATION.
2.1. Salary The Executive's salary shall be Sixty Thousand and
00/100 Dollars ($60,000.00) per annum ("Salary") payable on the 1st and
the 15th day of each month in arrears, in accordance with Corporation's
standard payroll practices.
2.2. Bonus. The Executive shall receive a signing bonus as
consideration for signing this Agreement in the form of Fifty Thousand
Restricted Shares of the Corporation (the "Signing Bonus"). The Signing
Bonus shall be paid within Sixty Days after the Effective Date. The
Executive shall be eligible to receive a bonus (the "Bonus") at the
discretion of the Board of Directors of the Corporation.
In addition, Executive shall receive on the first day of each month for
the term of the Agreement Five Thousand Dollars a month in restricted
shares of the Corporation. The value of the shares shall be determined
by averaging the closing price of the shares of the Corporation for the
trailing Twenty One Days prior to the first of each month.
2.3 Guarantee. Executive is currently receiving compensation
either directly or through an entity controlled by him in the amount of
$20,000 monthly (the "Meritage Developer Fees") for his services as
developer of 48 Xxxxxxxxx LLC, a Florida limited liability company,
known as the "Meritage" of which Corporation has a controlling
interest. If the Executive no longer receives the Meritage Developer
Fees not due to his actions but due to the finality of the Meritage
Developer Fees in the normal course of business or Mertiage is out of
funds to pay Executive, the Corporation agrees to either increase the
salary of the Executive by the amount of the Meritage Developer Fees or
place the Executive, as Developer, in a project that will guarantee
that the Executive shall continue receiving the $20,000 monthly
compensation.
2.4 Performance Bonus.
a. Executive shall receive 5% of the net profits
derived by Azur from any project, which has been directly originated
by Executive (the "Consideration"). The Consideration shall be payable
1% in cash payments ("Cash Consideration") and 4% shall be paid in
restricted shares of the Corporation (the "Share Consideration"). The
name of each project which has been originated by the Executive shall
be on a schedule attached as Exhibit "A". The Cash Consideration and
the Share Consideration shall be paid within fifteen days after the
Corporation actually receives and recognizes the actual net profit of
the certain project.
b. Executive shall receive 5% of the net profits
derived by Azur from the leasing of cranes to contractors, which has
been directly referred by Executive (the "Consideration"). The
Consideration shall be payable 1% in cash payments ("Cash
Consideration") and 4% shall be paid in restricted shares of the
Corporation (the "Share Consideration"). The Cash Consideration and
the Share Consideration shall be paid within fifteen days after the
Corporation actually receives and recognizes the actual net profit
from the leasing of the cranes to the contractors referred by
Executive.
3. TERM. The term of Executive's employment hereunder will commence as
of the Effective Date and will continue without interruption for a period of One
(1) year (the "Initial Term"). After the Initial Term, the Agreement shall renew
automatically for additional one (1) year periods (the "Additional Term") on the
terms set forth herein unless the Agreement is terminated by either party in
writing within thirty days prior to the expiration of the Initial Term or the
applicable Additional Term as the case may be.
4. TERMINATION.
4.1 Termination By Corporation For Cause. The Agreement may be
terminated by the Corporation for cause. For the purposes of this
Agreement the term "Cause" means the Executive's: (a) willful
appropriation or conversion for his own use of property or money
belonging to the Corporation; (b) violation of this Agreement; (c)
excessive absences not authorized by this Agreement or by the
Corporation; (d) substance abuse and/or refusal to submit to periodic
substance screening tests as determined by the Corporation from time to
time; (e) in the occurrence a case is brought forth against the
Executive for violation of any securities or corporate laws; (f) breach
of Section 8(c) of this Agreement concerning confidentiality.
In the event the Executive is terminated for Cause, the Corporation
shall pay the Executive his Salary through the date of termination and,
no other benefits hereunder shall be paid to Executive.
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4.2. Termination By Corporation Without Cause. The Corporation
may terminate the Agreement without Cause. In the event the Executive
is terminated for any reason other than Cause as defined in Section
4.2, the Executive shall be entitled to continue receiving his Salary,
as a severance payment, for the period consisting of the shorter of:
(i) six (6) months after date of termination; or, (ii) the remaining
balance of the Initial Term or Additional Term, as the case may be, of
this Agreement then in effect.
Prior to delivery to Executive of the first installment of
severance benefits payable this Section 4.2 of this Agreement,
Executive must deliver to the Corporation a general release against any
other liability of the Corporation to Executive.
4.3. Termination By Executive For Good Reason. The Agreement
may be terminated by the Executive for Good Reason. For the purpose of
this Agreement, the term "Good Reason" means the Corporation's material
violation of this Agreement, which is not cured within ten (10) days
after written notice of the violation by the Executive to the
Corporation.
In the event the Executive terminates this Agreement for Good Reason,
the Executive shall be entitled to continue receiving his Salary for
the period consisting of the shorter of: i) the balance of the term of
this Agreement, as if this Agreement had not been terminated; or, ii)
two (2) months after date of termination.
4.4. Termination By Executive Without Good Reason. The
Executive may terminate the Agreement at any time without Good Reason
by giving the Corporation thirty days notice. However, if the Executive
terminates this Agreement without good reason, the Executive shall
return all the Corporation shares earned pursuant to this Agreement
during the term in which the Executive terminates the Agreement whether
it's the Initial Term or any subsequent Additional Term.
4.5 Death. In the event of Executive's death during the term
of this Agreement, the Corporation shall have no further obligations to
make payments or otherwise under this Agreement, except that the
Corporation shall pay to Executive's estate within ten (10) days after
the date of Executive's death any accrued unpaid Salary, bonuses and
shares of the Corporation to which Executive was entitled as of the
date of death.
4.6 Disability. If Executive becomes unable due to a mental or
physical disability to perform the services required of Executive
pursuant to this Agreement, as determined in good faith by the Board of
Directors of the Corporation, for an aggregate of thirty (30) days in
any twelve (12) month period (a "Disability"), the Corporation, at its
option, may terminate Executive's employment hereunder with cause (the
date of such termination, the "Disability Date"), and, thereafter,
Executive shall not be deemed to be employed under this Agreement and
the Corporation shall have no further obligations to make payments or
otherwise under this Agreement. In the event of a Disability, the
Corporation shall pay to Executive within ten (10) days after the
Disability Date any unpaid accrued Salary, bonuses and shares of the
Corporation as of the Disability Date. Nothing in this Agreement is
intended to cause the Corporation to be in violation of the Americans
with Disabilities Act.
5. BENEFITS. The Executive shall be entitled to the following benefits
in addition to those provided to all other employees of the Corporation:
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5.1. Vacation. Executive shall be entitled to reasonable paid
vacation periods, not exceeding fifteen (15) working days per annum
during the term hereof, in addition to any legal holidays recognized by
the Corporation. Vacation days must be taken during the corresponding
calendar year and may not be accumulated from year to year. Vacation
schedules must be agreed upon with the President of the Corporation
(the "President") to ensure competent management of the Corporation in
the Executive's absence.
5.2. Pension Plan. The Executive will participate in any
pension plan provided by the Corporation to its other executives.
5.3. Health Insurance. Executive has the option of taking part
in the health insurance program as provided by the Corporation .
5.4. Miscellaneous Expenses. The Corporation shall reimburse
the Executive for any expenses incurred in connection with such his
employment including business travel, cellular phone, continued
education courses and other expenses (collectively "the Expenses") as
the Executive and the Corporation agree from time to time.
5.5 Other Benefits. During the term of the Agreement,
Executive shall be entitled to participate in any insurance programs,
stock option plans, bonus plans, pension plans and other fringe benefit
plans and programs as are from time to time established and maintained
for the benefit of the Corporation's employees of comparable rank and
status as Executive, subject to the provisions of such plans and
programs.
6. OWNERSHIP OF INFORMATION AND DOCUMENTS. Executive shall promptly
communicate and disclose to the Corporation on request all information obtained
by his in the course of his employment relating to the business of the
Corporation. All written reports, recommendations, advice, records, documents
and other materials prepared or obtained by Executive or coming into his
possession during his employment hereunder which relate to the performance by
the Corporation or its business shall be the sole and exclusive property of the
Corporation and, at the end of Executive's employment hereunder, or at the
request of the President during the period of Executive's employment hereunder,
Executive shall promptly deliver all such written materials to the Corporation.
Executive shall prepare and submit to the Corporation such regular periodic
reports as the President may request with respect to the activities undertaken
by his or conducted under his direction in connection with the business of the
Corporation during his employment hereunder. Such reports and the information
contained therein shall be and remain the sole property of the Corporation.
7. INTANGIBLE PROPERTY. Executive shall assign to the Corporation,
immediately upon the execution of this Agreement, or thereafter, immediately
upon making or acquiring them, as the case may be, any and all inventions,
processes, discoveries, "know-how", improvements, patent rights, letters,
patents, copyrights, trademarks, service marks, trade names and applications
therefore and all rights and interest in, to and under the same which he may
legally transfer, now possessed by his or hereafter made, acquired, or possessed
by his during the term of this Agreement, relating in any way to the business
and activities of, or the equipment, devices, processes, and formulae connected
with the Corporation's business or any other business conducted by the
Corporation and agrees that, upon request, he will promptly make all
disclosures, execute all instruments and papers, and perform all acts whatsoever
necessary or desired by the Corporation to vest and confirm in it, its
successors, assigns and nominees, fully and completely, all rights created or
contemplated by this Section and which may be necessary or desirable to enable
the Corporation and its successors, assigns and nominees to secure and enjoy the
full benefits and advantages thereof.
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8. NON-SOLICITATION AND CONTINUED ASSISTANCE. During the term of this
Agreement, as extended from time to time, and for a period of 2 years, with
respect to subparagraphs (a)-(d), below, after the termination or expiration of
this Agreement, whether by the Executive or the Corporation, for any reason
whatsoever, the Executive warrants and agrees that:
(a) Non-Solicitation.With respect to any business or activity
similar to or competitive with that of the Corporation, the Executive
will not contact or interfere in any way with any individuals or
companies engaged in any projects in which the Corporation is then
currently involved with.
(b) Continued Assistance. The Executive must assist the
Corporation at such reasonable times as the Corporation may request,
subject to reasonable availability, with respect to any continuing
matters respecting the business of the Corporation, and he must assist
the Corporation in maintaining relationships with those persons and
firms with whom the Corporation has been doing business, including
clients, vendors and others useful to the Corporation. If the
Executive's employment with the Corporation has been terminated, the
Executive will be reimbursed for all expenses incurred on behalf of the
Corporation and will receive compensation on an hourly basis at a rate
no less than $75.00 per hour.
(c) Confidentiality. Due to the nature of the Corporation's
business, except for information in the public domain and information
authorized by the Corporation to be disclosed, the Executive must not,
for any reason or in any manner whatsoever use, communicate, divulge or
otherwise exploit for his own benefit or for the benefit of any other
person or entity any name, address or other sensitive business
information concerning any employee, agent, client or any other
confidential information of the Corporation or concerning any trade
secret or information of a confidential nature relating but not limited
to the ownership, operation or management of the business of the
Corporation (including, without limitation, financial affairs,
services, employees, employees' compensation, business strategies and
contractual relationships). Information described in the preceding
sentence is referred to collectively herein as "Restricted
Information."
(d) Non-Interference. The Executive must not, for any reason
or in any manner whatsoever interfere with the Corporation's
relationship with their Clients, employees, agents or referral sources.
Without limiting the definition of "interference" and by way of example
only, the following are agreed to constitute interference within the
meaning of this Agreement if done without the express written consent
of the Corporation, unless conducted within the normal scope of the
Executive's managerial duties for the benefit of the Corporation; (i)
using or disclosing Restricted Information in any discussion or
contacts with employees, agents or referral sources; (ii) commenting on
the business practices, procedures or policies of the Corporation to
any employee, agent or referral source of the Corporation; or, (iii)
seeking to employ or engage or assisting any other person seeking to
employ or engage any employee of the Corporation.
(e) Exceptions. Executive has disclosed and the Corporation is
aware of Executive's interest in a project Executive is undertaking
with Xxxx Xxxxxx.
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9. NOTICES. All notices hereunder shall be given in writing by
registered or certified mail, postage prepaid, addressed to the parties at the
following respective addresses, or at such other address as may from time to
time be designated by either party to the other hereunder or by hand delivery or
telecopy indicating receipt as follows:
To the Executive:
Xxxxxxx Xxxxx
--------------------------------
To the Corporation:
Azur International Inc
000 XX 0xx Xxxxxx, Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
10. SPECIFIC PERFORMANCE. The parties hereto acknowledge and agree that
the executive and managerial services to be rendered by Executive hereunder are
of such a special, unique and extraordinary character that it gives them a
peculiar value impossible to replace and for the loss of which the Corporation
cannot be reasonably or adequately compensated in damages, and Executive
acknowledges and agrees that a breach by his of the provisions of Sections 6, 7
or 8 of this Agreement hereof will cause the Corporation irreparable injury and
damage. Executive, therefore, expressly agrees that the Corporation shall be
entitled to injunctive and/or other equitable relief to prevent a breach of
Sections 6, 7 or 8 of this Agreement and to secure their enforcement. Nothing
herein shall be construed as a waiver by the Corporation of any right it may now
have or hereafter acquire to monetary damages by reason of any injury to its
property, business or reputation arising out of any wrongful act or omission of
Executive.
11. ENTIRE AGREEMENT. All prior negotiations of the parties or any
party relating to the subject matter hereof, have been merged in and are
superseded by this Agreement. This Agreement contains the entire agreement of
the parties, and there are no promises, agreements, understandings,
representations, warranties or conditions of any nature not set forth in this
Agreement, made as an inducement to the execution hereof or otherwise.
12. NO WAIVERS. No failure by either party hereto to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right hereunder by either party
preclude any other or future exercise of that right or any other right hereunder
by that party.
13. SEVERABILITY. If any provision of this Agreement shall be held to
be invalid, unenforceable or illegal, in whole or in part, in any jurisdiction
under any circumstances for any reason, (a) such provision shall be reformed to
the minimum extent necessary to cause such provision to be valid, enforceable
and legal while preserving the intent of the parties as expressed in, and the
benefits to the parties provided by, this Agreement, or (b) if such provision
cannot be so reformed, such provision shall be severed from this Agreement and
an adjustment shall be made to this Agreement (including, without limitation,
addition of necessary further provisions to this Agreement) so as to give effect
to the intent as so expressed and the benefits so provided. Such holding shall
not affect or impair the validity, enforceability or legality of such provision
in any other jurisdiction or under any other circumstances. Neither such holding
nor such reformation or severance shall affect or impair the legality, validity
or enforceability of any other provision of this Agreement.
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14. APPLICABLE LAW. This Agreement shall be construed under and
governed by the law of Florida.
15. ASSIGNMENT. This Agreement, and the rights conferred hereby, shall
not be assignable, in whole or in part, by either party, except that the
Corporation may assign this Agreement to, and it shall be binding upon, any
person, firm or company with which the Corporation may be merged or consolidated
or which may acquire all or substantially all of the assets of the Corporation.
16. AMENDMENT. This Agreement may not be amended, terminated or
superseded except by an agreement in writing between the Corporation and
Executive.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original hereof but all of which
together shall constitute one and the same document.
18. NO VERBAL AGREEMENTS. There are and there will be no verbal
agreements in any way modifying the terms of this Agreement.
19. INDEPENDENT LEGAL COUNSEL. The Executive and Corporation hereby
represents that they have employed their own independent legal counsel and tax
advisors to review and advise their respective positions with respect to legal
and tax consequences of this Agreement. Neither party has solicited or relied on
the other's legal or tax advisors for any advice with respect to this Agreement.
20. ARBITRATION. Except any dispute under which the remedy of specific
performance is sought under Section 10, hereof, all disputes arising in
connection with this Agreement will be finally settled under the rules of the
American Arbitration Association (the "Rules"), by three arbitrators, one to be
selected by the Corporation, one to be selected by the Executive, and one
selected by the arbitrators selected by the Executive and Corporation. The
selection of the arbitrators will be in accordance with the Rules. The place of
arbitration will be in Miami, Florida. The procedural law applicable to the
dispute will be the Florida Rules of Civil Procedure. The substantive law
applicable to the merits of the case will be the Florida law as in effect at the
date of this Agreement. The parties agree that the award of the arbitrators:
will be the sole and exclusive remedy between them regarding any claims,
counterclaims, issues or accountings presented or pled to the arbitrators; that
it will be made and will promptly be payable in U.S. dollars free of any tax,
deduction or offset; and that any costs, fees or taxes, including attorneys'
fees, paralegal and law clerk fees, incident to enforcing the award will, to the
maximum extent permitted by law, be charged against the party resisting such
enforcement. The award will include interest from the date of any damages
incurred for the breach or other violation of the Agreement, and from the date
of the award until paid in full, at a rate to be fixed by the arbitrators, but
in no event less than the London Interbank Offering Rate ("LIBOR") per annum
quoted for the corresponding period by Chase Manhattan Bank in the London
Interbank Market of the United States Dollars for immediately available funds;
provided, however, that in no event will the rate of interest chargeable or
collectible on any such award exceed the highest lawful rate permitted from time
to time under Florida law. For purposes of determining the highest lawful rate,
under Florida law, the parties hereby select the "indicated rate ceiling" as in
effect from time to time during the periods in which such award remains unpaid.
All notices by one party to the other, in connection with the arbitration, must
be in writing and must be deemed to have been duly given or made if delivered,
mailed by registered air mail, return receipt requested, or telecopied to their
addresses shown in the Corporation's books and records.
21. RECITALS. The recitals set forth on the first page of this
Agreement are true and correct and are incorporated herein by reference.
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22. ATTORNEYS' FEES. In the event judicial or administrative
proceedings or action is brought by one party against another party with respect
to the interpretation or enforcement of this Agreement, the prevailing party
shall be entitled to recover reasonable costs and attorneys' fees, paralegal and
law clerk fees, at the investigative, pretrial, trial administrative, bankruptcy
and appellate levels.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
COMPANY:
AZUR INTERNATIONAL INC. EXECUTIVE:
BY: /s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxx
-------------------------------- ----------------------------
Xxxxxx Xxxxxxx, President Xxxxxxx Xxxxx
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