EXHIBIT 10.1
EMPLOYMENT AGREEMENT
OF
MSTG SOLUTIONS, INC. AND XXX XXX
DATED DECEMBER 1, 2001
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made, entered into, and
effective as of December 1, 2001 (the "Effective Date"), by and between MSTG
Solutions, Inc., a Nevada corporation ("Company"), and Xxx Xxx, an individual
("Employee") (collectively, the "Parties").
RECITALS
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A. Company is engaged in the business of providing services and products
for small businesses and maintains an office in the State of California.
B. Company desires to have an employment agreement with Employee as its
President and Director subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the Parties hereto hereby agree as follows:
AGREEMENT
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1. Term of Employment.
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a. SPECIFIED PERIOD. Company hereby employs Employee and Employee accepts
employment with Company for a period of five years beginning on December 1,
2001.
b. RENEWAL. This Agreement may be renewed for a succeeding term of five
years at the option of both Employee and Company.
c. EMPLOYMENT TERM DEFINED. "Employment term" refers to the entire period
of employment of Employee by Company, whether for the period provided above, or
whether terminated earlier as hereinafter provided or extended by mutual
agreement between Company and Employee.
2. DUTIES AND OBLIGATIONS OF EMPLOYEE. Employee shall serve as the President
of the Company. Employee shall report to the Board of Directors of the Company.
Employee shall faithfully and diligently perform all professional duties and
acts as may be requested and required of Employee by Company or its Directors.
Employee shall devote such time and attention to the business of Company as
shall be required to perform the required services and duties. Employee at all
times during the employment term shall strictly adhere to and obey all policies,
rules and regulations established from time to time governing the conduct of
employees of Company
3. Exclusivity, Non-Disclosure.
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a. DEVOTION TO COMPANY BUSINESS. Employee agrees to perform Employee's
services efficiently and to the best of Employee's ability. Employee agrees
throughout the term of this Agreement to devote his time, energy and skill to
the business of the Company and to the promotion of the best interests of the
Company.
b. TRADE SECRETS. Employee agrees that he shall not at any time, either
during or subsequent to his employment term, unless expressly consented to in
writing by Company, either directly or indirectly use or disclose to any person
or entity any confidential information of any kind, nature or description
concerning any matters affecting or relating to the business of Company,
including, but not limited to, information concerning the customers of Company,
Company's marketing methods, compensation paid to employees, independent
contractors or suppliers and other terms of their employment or contractual
relationships, financial and business records, know-how, or any other
information concerning the business of Company, its manner of operations, or
other data of any kind, nature or description. Employee agrees that the above
information and items are important, material and confidential trade secrets and
these affect the successful conduct of Company's business and its goodwill.
4. Compensation.
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a. SALARY. Subject to the termination of this Agreement as provided
herein, Company shall compensate Employee for her services hereunder at a weekly
salary of Five Thousand Dollars ($5,000) payable in
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accordance with the Company's practices, less normal payroll deductions, and
prorated for the actual employment term.
b. SALARY INCREASES; ADDITIONAL COMPENSATION. Employee shall receive such
annual increases in salary and such additional compensation (including bonuses
and stock options) as may be determined by the Board of Directors of the Company
in its sole discretion. Such salary increases and/or additional compensation
shall be paid to Employee on the anniversary date of this Agreement during the
Employment Term, and at such other times as may be determined by the Board of
Directors.
6. Employee Benefits.
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a. PERSONAL TIME OFF ("PTO"). Employee shall be entitled to PTO in
accordance with Company's Personnel Manual in effect at the time of the PTO
request. Employee may be absent from his employment for PTO only at such times
as may be convenient to Company and Employee.
b. MEDICAL COVERAGE. Company agrees to include Employee in the coverage
of its medical and dental insurance.
c. PLAN PARTICIPATION. Employee shall be entitled to participate in or to
receive benefits under all of Company's employee benefit plans made available by
Company or in the future to similarly situated employees, subject to the terms,
conditions and overall administration of such plans, including but not limited
to 401(k) plans, XXX plans, E.R.I.S.A Plans, any other retirement or benefit
plans that the Company has made available to similarly situated employees.
7. BUSINESS EXPENSES. Employee will be required to incur travel, meals,
entertainment and other business expenses on behalf of the Company in the
performance of Employee's duties hereunder. Company will reimburse Employee for
all such reasonable business expenses incurred by Employee in connection with
Company's business upon presentation of receipts or other acceptable
documentation of the expenditures. In compensating Employee for expenses, the
ordinary and usual business guidelines and documentation requirements shall be
adhered to by Company and Employee.
8. Termination of Employment.
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a. TERMINATION FOR CAUSE. Company may terminate this Agreement for cause
at any time. For purposes of this Agreement, the term "cause" shall be defined
as an intentional act of criminal conduct which causes damage to the Company.
Company may terminate this Agreement for cause by giving written notice of
termination to Employee without prejudice to any other remedy to which Company
may be entitled either at law, in equity, or under this Agreement. The notice of
termination required by this section shall specify the ground for the
termination and shall be supported by a statement of all relevant facts.
b. Termination Upon Death or Disability.
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i. DEATH. This Agreement shall be terminated immediately upon the
death of Employee
ii. DISABILITY. Company reserves the right to terminate this
Agreement if, due to illness or injury, either physical or mental, Employee is
unable to perform Employee's customary duties as an employee of Company, unless
reasonable accommodation can be made to allow Employee to continue working, for
more than 30 days in the aggregate out of a period of twelve consecutive months.
The disability shall be determined by a certification from a physician. Such a
termination shall be effected by giving ten days' written notice of termination
to Employee.
iii. WITHOUT CAUSE. Termination under this section for either death or
disability shall not be considered "for cause" for the purposes of this
Agreement.
c. PAYMENT ON TERMINATION. Notwithstanding any provision of this
Agreement, if Company terminates this Agreement without cause, other than upon
death or disability as set forth above, it shall pay Employee the remaining
salary amount for the remaining outstanding term of this Agreement or any
renewal thereof at the then current rate of compensation.
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9. General Provisions.
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a. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto their respective devisees, legatees, heirs, legal
representatives, successors, and permitted assigns. The preceding sentence shall
not affect any restriction on assignment set forth elsewhere in this Agreement.
b. NOTICES. Any notice, request, instruction, or other document required
by the terms of this Agreement, or deemed by any of the Parties hereto to be
desirable, to be given to any other Party hereto shall be in writing and shall
be given by facsimile, personal delivery, overnight delivery, or mailed by
registered or certified mail, postage prepaid, with return receipt requested, to
the Company at the address of its corporate office and to the Employee at the
Employee's home address as it appears in the Employee's personnel records.
Addresses may be changed from time to time by a notice sent as aforesaid. If
notice is given by facsimile, personal delivery, or overnight delivery in
accordance with the provisions of this Section, said notice shall be
conclusively deemed given at the time of such delivery. If notice is given by
mail in accordance with the provisions of this Section, such notice shall be
conclusively deemed given seven business days after deposit thereof in the
United States mail.
c. SUMS DUE DECEASED EMPLOYEE. If Employee dies prior to the expiration
of the employment term, any sums that may be due him from Company under this
Agreement as of the date of death shall be paid to Employee's executors,
administrators, heirs, personal representatives, successors, and assigns.
d. ARBITRATION. If a dispute or claim shall arise with respect to any of
the terms or provisions of this Agreement, or with respect to the performance by
either of the Parties under this Agreement, other than a dispute with respect to
Section 3 of this Agreement, then either party may, with notice as herein
provided, require that the dispute be submitted under the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). Each party shall bear
one-half (1/2) of the cost of appointing the arbitrator and of paying such
arbitrator's fees. The written decision of the arbitrator(s) ultimately
appointed by or for both Parties shall be binding and conclusive on the Parties.
Judgment may be entered on such written decision of the single arbitrator in any
court having jurisdiction and the Parties consent to the jurisdiction of the
Municipal and Superior Court of Orange County, California for this purpose. Any
arbitration undertaken pursuant to the terms of this section shall occur in
Orange County, California.
e. ASSIGNMENT. Subject to all other provisions of this Agreement, any
attempt to assign or transfer this Agreement or any of the rights conferred
hereby, by judicial process or otherwise, to any person, firm, Company, or
corporation without the prior written consent of the other party, shall be
invalid, and may, at the option of such other party, result in an incurable
event of default resulting in termination of this Agreement and all rights
hereby conferred.
f. CHOICE OF LAW. This Agreement and the rights of the Parties hereunder
shall be governed by and construed in accordance with the laws of the State of
California including all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of conflict of laws.
g. INDEMNIFICATION. Company shall indemnify, defend and hold Employee
harmless, to the fullest extent permitted by law, for all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney's fees that
Employee shall incur or suffer that arise from, result from or relate to the
discharge of Employee's duties under this Agreement. Company shall maintain
adequate insurance for this purpose or shall advance Employee any expenses
incurred in defending any such proceeding or claim to the maximum extent
permitted by law.
h. JURISDICTION. The Parties submit to the jurisdiction of the Courts of
the State of California or a Federal Court empanelled in the State of California
for the resolution of all legal disputes arising under the terms of this
Agreement, including, but not limited to, enforcement of any arbitration award.
i. ENTIRE AGREEMENT. Except as provided herein, this Agreement, including
exhibits, contains the entire agreement of the Parties, and supersedes all
existing negotiations, representations, or agreements and all other oral,
written, or other communications between them concerning the subject matter of
this Agreement. There are no representations, agreements, arrangements, or
understandings, oral or written, between and among the Parties hereto relating
to the subject matter of this Agreement that are not fully expressed herein.
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j. SEVERABILITY. If any provision of this Agreement is unenforceable,
invalid, or violates applicable law, such provision, or unenforceable portion of
such provision, shall be deemed stricken and shall not affect the enforceability
of any other provisions of this Agreement.
k. CAPTIONS. The captions in this Agreement are inserted only as a matter
of convenience and for reference and shall not be deemed to define, limit,
enlarge, or describe the scope of this Agreement or the relationship of the
Parties, and shall not affect this Agreement or the construction of any
provisions herein.
l. MODIFICATION. No change, modification, addition, or amendment to this
Agreement shall be valid unless in writing and signed by all Parties hereto.
m. ATTORNEYS' FEES. Except as otherwise provided herein, if a dispute
should arise between the Parties including, but not limited to arbitration, the
prevailing party shall be reimbursed by the non-prevailing party for all
reasonable expenses incurred in resolving such dispute, including reasonable
attorneys' fees exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
n. TAXES. Any income taxes required to be paid in connection with the
payments due hereunder, shall be borne by the party required to make such
payment. Any withholding taxes in the nature of a tax on income shall be
deducted from payments due, and the party required to withhold such tax shall
furnish to the party receiving such payment all documentation necessary to prove
the proper amount to withhold of such taxes and to prove payment to the tax
authority of such required withholding.
o. NOT FOR THE BENEFIT OF CREDITORS OR THIRD PARTIES. The provisions of
this Agreement are intended only for the regulation of relations among the
Parties. This Agreement is not intended for the benefit of creditors of the
Parties or other third Parties and no rights are granted to creditors of the
Parties or other third Parties under this Agreement. Under no circumstances
shall any third party, who is a minor, be deemed to have accepted, adopted, or
acted in reliance upon this Agreement.
g. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The Parties agree that facsimile signatures of this Agreement shall
be deemed a valid and binding execution of this Agreement.
h. CONFLICT WAIVER. Both Employee and the Company (the "Parties") hereby
agree and acknowledge that the law firm of Xxxx Xxxxxxx Xxxxxxxxx, LLP ("SPM"),
which represents the Company, has drafted this Agreement. The Parties hereto
further acknowledge that they have been informed of the inherent conflict of
interest associated with the drafting of this Agreement by SPM and waive any
action they may have against SPM regarding such conflict. The Parties have been
given the opportunity to consult with counsel of their choice regarding their
rights under this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
"Company" "Employee"
MSTG SOLUTIONS, INC.. XXX XXX
A NEVADA CORPORATION
By: /s/ Xxxx Xxx By: /s/ Xxx Xxx
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Xxxx Xxx Xxx Xxx
Its: Secretary
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