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EXHIBIT 10.2
FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into as of
the 1st day of October, 2000 by and between SIONIX CORPORATION, a Utah
corporation ("Employer"), and XXXXXX X. XXXXXX ("Employee").
A. Employer and Employee are the parties to an Employment Agreement
dated July 1, 1998, under which Employee serves as Chief Financial Officer of
Employer (the "Employment Agreement");
B. Employer desires to be assured of the continued association and
services of Employee in order to take advantage of his experience, knowledge and
abilities in Employer's business and is willing to continue to employ Employee,
and Employee desires to continue to be so employed, on the terms and conditions
set forth in this Agreement; and
C. Employer and Employee desire to amend and restate the Employment
Agreement in its entirety.
ACCORDINGLY, in consideration of the foregoing and the mutual covenants set
forth below, the parties agree as follows:
ARTICLE I
TERM OF CONTRACT
1.1 The term of this Agreement commenced effective July 1, 1998, and shall
continue until September 30, 2001, and monthly thereafter, unless sooner
terminated as hereinafter provided.
1.2 This employment may be terminated immediately, without advance notice,
if, during the term of employment (a) Employee shall be convicted of a crime
involving dishonesty in connection with Employer's business; (b) an uncured
material breach of any term of this Agreement, provided that any breach which
can be cured is not promptly corrected after reasonable notice thereof; or (c)
Employee is convicted of any felony involving moral turpitude.
ARTICLE II
SERVICES TO BE PERFORMED BY EMPLOYEE
2.1 Employee shall serve as Chief Financial Officer of Employer and shall
perform the duties and responsibilities specified for said position in the
By-Laws of the Employer, and such other duties and responsibilities as are
usually and customarily performed by the Chief Financial Officer of a
corporation. Employee shall work at the direction of and under the supervision
of Employer's President and Chief Executive Officer. Employee shall perform such
duties and acts commensurate with his position, skills and experience as may be
reasonably required by Employer's Board of Directors in connection with any
aspect of Employer's business.
ARTICLE III
COMPENSATION
3.1 Employee, during the term of employment pursuant to this Agreement,
shall be compensated pursuant to the Schedule attached hereto as Exhibit "A" and
by reference made a part hereof.
3.2 Employee shall be entitled to all fringe benefits offered generally to
employees of Employer, including without limitation, participation in any
qualified pension, profit-sharing, salary continuation, disability insurance,
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hospitalization insurance, major medical insurance, medical reimbursement or
life insurance plan or any other benefit plan established by Employee subject to
the rules and regulations in effect regarding participation in such benefit
plans.
3.3 Employee shall be entitled to such business days of vacation and such
business days of sick leave each year without, reduction in compensation, as
shall be reasonably determined from time to time by the Employer's Board of
Directors; provided, however, that Employee shall be entitled to at least ten
(10) business days of vacation and up to ten (10) business days of sick leave
each year.
3.4 Employee shall be entitled to the following holidays and any
addit5ional days as determined by the Board of Directors:
i. New Years Eve and New Years Day.
ii. Memorial Day.
iii. Fourth of July.
iv. Labor Day.
v. Thanksgiving Day and Friday after.
vi. Christmas Eve and Christmas Day.
vii. One Floating Holiday
ARTICLE IV
OBLIGATIONS OF EMPLOYEE
4.1 Employee agrees to devote so much of his business time, attention,
knowledge and skill as necessary to carry out the purposes and intent of this
Employment Agreement. Notwithstanding the foregoing, Employee shall not be
deemed to be in violation of this Section 4.1, if he engages in passive
investment in any corporation, sole proprietorship, partnership or other entity
not involved in a competing business with Employer.
4.2 Employee agrees to perform the above described services at Employer's
place of business and at such other job locations as may be necessary to
satisfactorily perform Employee's duties and obligations hereunder.
4.3 Employee shall not assign this Agreement nor any duties or obligations
under this Agreement to any other person or entity.
4.4 Employee shall maintain, in good and legible condition, all materials,
supplies and other property provided to Employee by Employer. These materials
shall, however, remain the property of Employer.
ARTICLE V
OBLIGATIONS OF EMPLOYER
5.1 Employer agrees to make the payments due Employee as hereinabove
specified, in a timely fashion, and without offset or deduction (or other than
employee withholding).
5.2 Employer agrees to provide Employee with adequate space, administrative
support, personnel, and equipment to perform Employee's duties.
5.3 With the exception of injuries, losses, and damages attributed solely
to the gross negligence or willful misconduct of Employee, Employer shall fully
indemnify, defend (with counsel reasonably acceptable to
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Employee) and hold harmless Employee, his heirs, successors and assigns from and
against all claims, loss, liability, damage or expense (including, without
limitation, attorneys fees, court costs, investigative fees and expert witness
fees) arising from or relating, either directly or indirectly, to the Employer
and/or its business, whether occurring or accruing prior to or after the
effective date hereof. Employer's obligation to indemnify, defend and hold
Employee harmless shall survive the termination of this Agreement. Employer's
obligation to indemnify, defend and hold harmless Employee, includes, without
limitation, the indemnification, defense and hold harmless of Employee on all
debts and obligations of Employer which may be due, either directly, or
indirectly, to the negligent, gross negligent, wrongful act or omission, or
willful misconduct of the current and past officers, directors and shareholders
of the Employer.
ARTICLE VI
TERMINATION OF AGREEMENT
6.1 After September 30, 2001, the employment provided in this Agreement
shall terminate at the will of Employer or Employee, without cause, upon thirty
(30) days written notice by the terminating party to the other party. This
Agreement may be terminated immediately, upon written or oral notice by the
terminating party, for cause, as provided in this Agreement.
6.2 This Agreement shall terminate automatically on the occurrence of any
of the following events:
A. Mutual agreement of both parties.
B. At the election of either party, upon the bankruptcy or insolvency
of either party.
C. Death of Employee.
D. At the election of either party, upon the disability of Employee,
which renders Employee, in the opinion of Employee's treating medical
practitioner, unable to substantially perform Employee's duties under this
Agreement, for a period of six consecutive months. The right to terminate the
employment pursuant to this Paragraph 6.2, shall accrue only after Employee has
been disabled for such six consecutive months.
ARTICLE VII
GENERAL CONDITIONS
7.1 Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart shall be deemed an original instrument.
7.2 Cooperation. Each of the parties hereto agree to execute any and all
additional documents, and take all additional actions, deemed reasonably
necessary to give full force and effect to the intent of this Agreement.
7.3 Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors, assigns,
heirs, executors and administrators.
7.4 Interpretation. This Agreement shall be interpreted under and pursuant
to the Laws of the State of California.
7.5 Entire Agreement. This Agreement, and any other documents executed
pursuant hereto, contains the entire agreement of the parties hereto, and
supersedes all prior agreements, whether written or oral, with respect to the
subject matters covered hereby, including the Employment Agreement. No oral
representation, agreement, statement or promise made by any party hereto or by
any employee or agent of any party hereto, which is not contained herein, shall
be binding or valid.
7.6 No Continuing Waiver. No waiver of any breach of any of the terms,
conditions and covenants of this Agreement shall be construed as a waiver of any
succeeding breach of the same or other terms, covenants and conditions hereof.
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7.7 Notices. Any notices required or permitted to be given hereunder shall
be in writing and may be given by personal delivery or by certified mail, return
receipt requested, addressed to each party at the address appearing with that
party's signature at the end of this Agreement. If any such notice is given by
personal delivery, said notice shall be deemed given upon receipt. If any such
notice is given by certified mail, return receipt requested, said notice shall
be deemed given on the third day following the date of mailing, as indicated on
the return receipt, regardless of whether the return receipt shows actual
delivery, provided, however, that if the return receipt of any mailed notice
indicates non-delivery, the party serving said notice shall forthwith mail
another, exact duplicate copy of said notice, to the recipient by regular first
class mail, postage prepaid. Any party may, by written notice to another party,
specify a different address for notice purposes.
7.8 Remedies Cumulative. No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other remedies
provided by agreement, at law, or in equity.
7.9 Invalidity in Part. In the event any provision of this Agreement shall
be held to be illegal, unenforceable or inoperative as a matter of law, the
remaining provisions shall remain in full force and effect unless such
construction shall substantially frustrate the purpose and intent of this
Agreement.
7.10 Covenants and Conditions. Each provision of this Agreement performable
by a party shall be deemed both a covenant and a condition.
7.11 Time of the Essence. Time is of the essence as to each and every term,
covenant and condition of this Agreement in which time is a factor.
7.12 Survival. All covenants, conditions, warranties and representations
made by any party in this Agreement shall survive the execution and delivery of
this Agreement.
7.13 Gender. The use herein of the neuter gender includes the masculine and
the feminine and the singular number includes the plural, whenever the context
so requires.
7.14 Captions. Captions in this Agreement are inserted for convenience or
reference only and do not define, describe or limit the scope or the intent of
this Agreement or any of the terms hereof.
7.15 Exhibits. All exhibits referred to herein and attached hereto are
incorporated as a part hereof.
7.16 Assignment. This Agreement shall not be assigned, either directly or
indirectly, by any of the parties without the prior written consent of the other
party. Each party agrees to reasonably consent to any request for transfer or
assignment by another party to a revocable "estate planning" type trust in which
the transferring party is a trustor and a principal beneficiary.
7.17 Attorneys Fees. In the event of litigation concerning this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys fees from
the losing party.
Executed at Orange County, California, effective on the date and year first
above written.
EMPLOYER:
SIONIX CORPORATION, A UTAH CORPORATION
0000 XXXXXXXX XXXX XXXXX 000, XXXXXX, XXXXXXXXXX 00000
BY: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx, President
BY: /s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, Secretary
EMPLOYEE:
/s/ XXXXXX X. XxXXXX
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XXXXXX X. XxXXXX
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EXHIBIT "A"
SCHEDULE OF COMPENSATION
Employee shall receive compensation, during the term of this Agreement, and
during any extensions or renewals of this Agreement, as follows, or as hereafter
mutually agreed between the parties, in writing:
1. BASE COMPENSATION. $4,860 per month, payable one-half on the 15th and
one-half on the last day of each month during the term of employment, to
be increased by 8% on July 1, 2001, and annually thereafter.
EMPLOYER:__________________________ EMPLOYEE:__________________________
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