EMPLOYMENT AGREEMENT
Exhibit
10.6
This
Employment Agreement (this "Agreement"), entered into as of October 1, 2004,
between VEMICS, Inc. ("VEMICS") and Xxxxx Xxxxxx ("Employee").
In
consideration of the mutual covenants contained herein, and for other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment;
Duties.
VEMICS
hereby employs Employee as the Chief Technical Officer of VEMICS. The employee
shall function with full authority to establish policy, set corporate direction
and manage VEMICS technical direction, vendor relations, strategic technical
alliances, operations and strategic technical planning. Employee agrees to
perform and discharge such duties and responsibilities as are prescribed
from
time-to-time by the VEMICS CEO and/or Board of Directors and as are appropriate
for video conference/distance learning executives of corporations with the
financial, personnel and other resources that are similar to that of VEMICS_
Employee shall devote his full business time to, and shall use his best efforts
in, the performance of such duties and responsibilities.
2. Compensation
and Withholding.
For
his
services pursuant to this Agreement, VEMICS will pay Employee an interim
salary
at the annual rate of $86,400. VEMICS will pay the Salary semimonthly (as
calculated by dividing the gross salary by 26 equal payments) and may withhold
from the Salary, the Benefits and any other compensation provided to Employee
hereunder, all Federal, state and local income, employment and other taxes,
as
and in such amounts as may be required to be withheld under applicable
law.
Employee's
salary will immediately be increased to $120,000 ("Salary") for the first
year
either upon improved financial condition or full funding or of the VEMICS
business plan (minimum of $3,000,000 in equity or debt financing or sales).
Partial funding will result in proportionate salary increases to be determined
by the compensation committee or through approval of the "Use of Proceeds"
report submitted to investors.
In
the
second year of this contract following either improved financial condition
or
full funding of the business plan Employee's salary shall be increased to
$140,000 annually. The Salary may be increased and cash or stock bonuses
may be
awarded from time-to-time to Employee as the Board determines at its sole
discretion.
3.
Employment
Term.
The
term
of this Agreement will commence on the date of this agreement or Employee's
first date of employment, whichever is later, and, unless sooner terminated
as
provided in Section 5, will end on December 31, 2007.
4.
Benefits
and Incentive Payments.
| 4.1 |
VEMICS
will approve the grant to Employee of an option to
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purchase
shares of the Company's common stock, in accordance with the terms of the
Company's stock option plan, as the same may be amended from time to time,
and a
nonqualified stock option agreement to be entered into by the Employee and
the
Company. This option expires when Employee's employment terminates for cause
or
without cause or when Employee resigns, or upon Employee's death.
4.2
Employee
will be entitled to a noncumulative paid vacation of three
(3)
weeks, plus the week between Christmas and New Year's Day for each full year
of
the term hereof, each of which weeks may be taken separately or together,
and
sick days in accordance with VEMICS's policy, during which Employee will
be
entitled to the full compensation and Benefits (as defined in Section 4.3)
otherwise payable hereunder; provided, however, any allotted vacation time
which
has not been used in any particular year of the term hereof shall not be
carried
over to the next ensuing year without the express written consent of the
Employer.
4.3
Employee
may participate, on the same basis and subject to the same
qualifications
as other personnel of VEMICS, or as offered to key executives of the company,
in
any pension, profit sharing, life insurance, health insurance, hospitalization,
dental, drug prescription, short and long term disability, accidental death
or
dismemberment and other benefit plans and policies VEMICS provides with respect
to its personnel generally (collectively, the °Benefits'). In addition, VEMICS
shall provide a xxxxxxx'x compensation and disability coverage equal to full
salary in the event that the employee becomes permanently disabled while
employed at VEMICS while engaged in performing his duties, or not, during
work
time or on personal time. In the event that the company shall fail to provide
this coverage and employee becomes disabled VEMICS shall fulfill its obligation
from corporate funds for the rest of employees life or for an equal duration
that would be covered by an executive level similar insurance policy intended
to
provide an income for the employee and/or his family if employee becomes
disabled and can not perform his regular duties.
4.4
VEMICS
will pay or promptly reimburse Employee, in accordance
with
VEMICS's normal policies and procedures for its personnel, for all allowances
and expenses provided for hereunder and for all reasonable out-of-pocket
business, entertainment and travel expenses incurred by Employee in the
performance of his duties hereunder. Upon full funding or sufficiently improved
financial condition, VEMICS will provide employee with a monthly auto allowance
of $800 which will cover all direct auto expense of auto payments (if any)
gas,
oil, and insurance.
4.5
A
guaranteed minimum year end bonus of $25,000 will also be paid
to
employee on or before December 15th of each year following the first full
year
of funding, providing the cash flow of the company warrants such payments.
In
the event that a cash payment can not be executed due to the cash flow situation
at the time, as determined by the compensation committee, bonus money can
accrue
or be taken in stock options at the current best rate available.
5.
Termination
and Severance Benefits.
5.1 Death.
The
Employee's employment shall terminate upon his death.
| 5.2 |
Termination
by VEMICS and Resignation by Employee.
VEMICS's
|
Board
may
terminate Employee's employment with VEMICS, with or without Cause (as defined
in Section 5.6). Termination with Cause shall be effective immediately and
termination without Cause shall be effective upon 90 days prior written notice
to Employee. Employee may voluntarily resign his employment with VEMICS,
with
Good Reason (as defined in Section 5.6), upon 60 days prior written notice
to
VEMICS.
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5.3
|
Compensation
Upon Termination Without Cause or Upon Resignation with Good
Reason.
|
If
VEMICS's Board or its designee terminates Employee's employment
hereunder
for any reason other than Cause or Employee's death or Permanent Disability
(as
defined in Section 5.6), or Employee voluntarily resigns his employment with
Good Reasons, then (a) Employee shall be entitled to receive (i) the Salary
and
Benefits accrued prior to the Termination Date and (ii) payment or reimbursement
of any expenses, provided for under Section 4.3, that were incurred by Employee
prior to the Termination Date and (b) after the Termination Date, VEMICS
will
also continue to pay the full Salary, in equal semimonthly payments, to Employee
for one year from the date employment is terminated by the Board of Directors
without cause.
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5.4
|
Compensation
Upon Resignation Without Good Reason or Upon Termination for
Cause.
|
If
Employee breaches this Agreement by voluntarily resigning his
employment
with VEMICS without Good Reason, then Employee shall only be entitled to
receive, except as otherwise required by law, the Salary and Benefits accrued
prior to the effective date of the first to occur of his resignation plus
30
days and reimbursement of any expenses, provided for under Section 4.3, that
were incurred by Employee prior to the effective date of his resignation
or such
termination of his employment. Nothing in this Section 5.4 shall create any
implication that VEMICS is waiving any remedy VEMICS may have for breach
by
Employee of this Agreement. If Employee's employment is terminated by VEMICS's
Board of Directors for Cause the Employee shall be entitled to six months
termination pay including all benefits.
5.5
Compensation
Upon Death or Permanent Disability.
If
Employee dies or suffers a Permanent Disability, then VEMICS will (i)
pay
Employee or his estate, six months Salary and bonus' as described in sections
2
and 4, according to the regular payroll and (ii) continue for Employee's
spouse
and dependent children (if Employee has died) and for Employee and his spouse
and dependent children (if Employee suffers a Permanent Disability), all
of the
Benefits that Employee was receiving at the time of his death or Permanent
Disability, for 12 months after Employee's death or permanent disability.
This
clause is in addition to the disability key man insurance policy clause in
section 4.2.
5.6 Definitions.
(a)
"Cause." For purposes of this Agreement, VEMICS may
terminate
the Employee's employment for "cause", and the power to terminate the Employee
shall be in the Company's sole discretion. For purposes of this Agreement,
"cause" shall consist of the following, to be determined by the Company in
its
discretion:
| (i) |
Employee's
fraud, misappropriation, embezzlement,
|
or
willful misconduct;
| (ii) |
Employee's
material violation of any provision of this
|
Agreement;
| (iii) |
Employee's
conviction of a felony involving moral
|
turpitude
or any crime or activity that would impair employee's ability to perform
his
duties or impair the business reputation of the Company;
| (iv) |
Employee's
gross negligence, the determination by
|
VEMICS's
Board of Directors, in its sole discretion, that Employee has not been
performing his duties hereunder in an appropriate or sufficiently competent
manner (other than as a result of his incapacity due to physical or mental
incapacity), employee's willful and continued failure to substantially perform
assigned duties; or willful engaging in conduct materially injurious to the
Company, monetarily or otherwise; or;
| (v) |
Other
like acts or omissions, including
|
non-compliance
with all Company policies, as they currently exist or may be amended, with
the
proviso that the Employee shall have 30 days in which to attempt to Correct
such
acts or omissions.
For
purposes of this Paragraph, no act, or failure to act, on the Employee's
part
shall be considered "willful" unless done, or omitted to be done, by him
not in
good faith and without reasonable belief that his action or omission was
in the
best interest of the Company. A termination for cause pursuant to this Paragraph
is subject to the arbitration provision (see Section 7) of this
Agreement.
(b)
"Good
Reason" means (i) a breach by VEMICS of any of its material
agreements
contained herein and the continuation of such breach for ten business days
after
notice thereof is given to VEMICS.
(c)
"Permanent
Disability" means the inability of Employee to perform
his
duties hereunder as a result of any physical or mental incapacity for 60
consecutive days or 90 days during any twelve month period, as determined
by the
Board.
6.
Covenant
Regarding Confidentiality.
6.1.
Employee
acknowledges that he will have access to, and knowledge
of,
VEMICS Confidential Information, and that improper use or disclosure of VEMICS
Confidential Information by Employee, whether during or after the termination
of
his employment by VEMICS, could cause serious injury to the business of VEMICS.
Accordingly, Employee agrees that he will forever keep secret and inviolate
all
VEMICS Confidential Information which has or shall come into his possession,
and
that he will not use the same for his own private benefit or directly or
indirectly for the benefit of others, and that he will not discuss VEMICS
Confidential Information with any other person or organization, all for so
long
as VEMICS Confidential Information is not generally known by, or accessible
to,
the public.
| 6.2. |
Definition
of Confidential Information:
"VEMICS Confidential
|
Information"
as used in this Agreement shall mean any and all technical and non-technical
information including patent, copyright, trade secret, and proprietary
information, techniques, sketches, drawings, models, inventions, know-how,
processes, apparatus, equipment, algorithms, software programs, software
source
documents, and formulae related to the current, future, and proposed products
and services of VEMICS, and includes, without limitation, VEMICS information
concerning research, experimental work, development, design details and
specifications, engineering, financial information, procurement requirements,
purchasing, manufacturing, customer lists, business forecasts, sales and
merchandising, and marketing plans and information. "Confidential Information"
shall also include proprietary or confidential information of any third party
that may disclose such information to employee in the course of their employment
to VEMICS.
6.3
The
Employee further agrees that he will, immediately after
termination
of his employment with the Company, and in no event later than 24 hours after
termination, return to the Company all books, records, customer and pricing
lists, correspondences, contracts or orders, advertising or promotion material,
and other written, typed or printed materials, whether furnished by the Company
or prepared by the Employee, which contain any information relating to the
Company's business, and the Employee agrees that he will neither make nor
retain
any copies of such materials.
| 6.4 |
Nondisclosure
and Nonuse obligation:
Employee hereby agrees that
|
he
will
not make use of, disseminate, or in any way disclose any Confidential
Information of the VEMICS to any other party to any person, firm, or business,
except to the extent necessary for the performance of his duties as an employee
of VEMICS and any other purpose that VEMICS may hereafter authorize in writing.
Employee hereby agrees that it shall treat all Confidential Information of
the
VEMICS with due care to protect its Confidentiality.
| 6.5 |
Exclusions
from Nondisclosure and Nonuse obligations: VEMICS
|
and
Employee's obligations under this section with respect to any portion of
the
VEMICS Confidential Information shall terminate under this section when Employee
can document that:
| i. |
It
was in the public domain at or subsequent to the time it was
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communicated
to Employee by VEMICS through no fault of Employee;
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ii.
|
It
was rightfully in Employee's possession free of any obligation
of
confidence at or subsequent to the time it was communicated to
Employee by
VEMICS; or
|
A
disclosure of Confidential Information:
a)
in
response to a valid order by a court or other governmental body;
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b)
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otherwise
required by law, or necessary to establish the rights of either
party
under this Agreement, shall not be considered to be a breach of
this
Agreement or a waiver of confidentiality for other purposes; provided,
however, that Recipient shall provide prompt written notice thereof
to
enable Discloser to seek a protective order or otherwise prevent
such
disclosure.
|
(b)
(c)
6.6
Enforceability
of this Confidentiality Provision: A breach of any of
the
promises contained in this section will result in irreparable and continuing
damage to VEMICS for which there will be no adequate remedy at law, Employee
agrees that VEMICS shall be entitled to injunctive relief and/or a decree
for
specific performance, and such other relief as may Court may deem proper
and
just. (including monetary damages if appropriate).
7.
Arbitration.
Any
dispute or controversy arising under or in connection with this Agreement
or in
any manner associated with Any dispute or Employee's employment shall be
settled
exclusively by arbitration in New York, in accordance with the Rules of the
American Arbitration Association then in effect, except for the terms under
Section 6.6. The parties agree to execute and be bound by the mutual agreement
to arbitrate claims relating to Employee's employment, attached hereto as
Attachment A.
8.
General.
8.1
This
Agreement will be construed, interpreted and governed by the
laws
of
the State of New York, without regard to the conflicts of law rules
thereof.
(d)
8.2
The provisions set forth in Sections 6 ,7 and 8 of this employment
agreement
shall remain in full force and effect even in the event this agreement is
terminated, for whatever reason, by Employee or VEMICS. All reference to
VEMICS
in Sections 6 ,7 and 8 include VEMICS's subsidiaries and other affiliates,
if
any.
(e)
8.3
This
Agreement will extend to and be binding upon Employee, his
legal
representatives, heirs and distributees, and upon VEMICS, its successors
and
assigns regardless of any change in the business structure of VEMICS, be
it
through spin-offs merger, sale of stock, sale of assets or any other
transaction. However, this Agreement is a personal services contract and,
as
such, Employee may not assign any of his duties or obligations
hereunder.
8.4
In
the
event that VEMICS shall be sold or the current organizational
structure
is altered or changed by a change in ownership then the stock vesting shall
be
accelerated to the end of the current employment year plus twelve months
and be
transferred to the employee's estate.
8.5
In
the
event of a future disposition of the properties and businesses of
the
Company by merger, acquisition, consolidation, sale of assets or otherwise,
then
the Company may elect to assign this Agreement and all of its rights and
obligations hereunder to the acquiring or surviving person or entity; provided
that such corporation, person or entity shall assume in-writing all of the
obligations of the Company hereunder; or in addition to the Company's other
rights of termination, to terminate this Agreement upon at least five days'
written notice by paying Employee the compensation owed him in accordance
with
Section 5.3 (Termination Without Cause) of this Agreement.
8.6
This
Agreement constitutes the entire agreement of the parties with
respect
to the subject matter hereof. No waiver, modification or change of any of
the
provisions of this Agreement will be valid unless in writing and signed by
both
parties. Any and all prior agreements between the parties written or oral
relating to Employee's employment by VEMICS are of no further force or
effect.
8.7
The
waiver of any breach of any duty, term or condition of this
Agreement
shall not be deemed to constitute a waiver of any preceding or succeeding
breach
of the same or any other duty, term or condition of this Agreement. No waiver
of
any provision of this Agreement shall be valid unless in writing and signed
by
both the Employee and an authorized officer of the Company. If any provision
of
this Agreement is unenforceable in any jurisdiction in accordance with its
terms, the provision shall be enforceable to the fullest extent permitted
in
that jurisdiction and shall continue to be enforceable in accordance with
its
terms in any other jurisdiction.
8.8
All
notices pursuant to this Agreement shall be in writing and
delivered
personally receipt acknowledged (which shall include Federal Express, Express
Mail or similar service) or sent by certified mail, return receipt requested,
addressed to the parties hereto and shall be deemed given upon receipt, if
delivered personally, and three days after mailing, if mailed, executive
office
and to executive at this home address as it appears In VEMICS's personnel
records.
8.9
The
parties agree that, in the event of any breach or violation of this
Agreement,
such breach of violation will result in immediate and irreparable injury
and
harm to the Innocent party, who shaft be entitled to the remedies of injunction
and specific performance or either of such remedies, if available, as well
as
all other legal or equitable remedies, if available, plus reasonable attorneys
fees and costs incurred in obtaining any such relief.
8.9A
The
Section headings contained in this Agreement are for
convenience
of reference only and shall not be used in construing this
Agreement.
8.9B
This
Agreement may be executed in counterparts, each of which will
be
deemed
an original but all of which will together constitute one and the same
agreement.
IN
WITNESS HEREOF, the parties have executed this Agreement as of the date first
above written.
By:
_________________________
Xxxx
Xxxxx
Title: Chairman/CEO
By:
_________________________
Xxxxx
Xxxxxx
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