BUCKEYE VENTURES, INC. EMPLOYMENT AGREEMENT
Exhibit
10.18
This
Employment Agreement ("Agreement") is made as of February 10, 2006 by and
between Buckeye Ventures, Inc. (the "Company"), a Nevada corporation, and Xxxxx
Xxxxxxxxx ("Employee"). Upon the closing of the Share Exchange Agreement between
the Company and World Wide Motion Pictures Corporation (“World Wide“) this
agreement will continue in force between Employee and World Wide.
1. Employment. The Company
hereby agrees to employ the Employee and the Employee hereby agrees to work for
the Company upon the terms and conditions set forth herein.
2. Term of Agreement. This Agreement
shall continue in effect for an initial term of two years (2) from the date of
this Agreement and shall be automatically renewed for successive one year
periods unless either party notifies the other that this Agreement shall expire
at the end of the then current term or unless terminated in accordance with
Section 6.
3. Scope of Duties; Representations and
Warranties.
(a) The
Employee shall have such duties as are assigned or delegated to the Employee by
the Board of Directors of the Company and will initially serve as the Senior
Vice President for Investor Relations and IT of the Company. Unless mutually
agreed, the Employee shall have only such duties as are customary and usual for
the position in which the Employee is serving. The Employee will devote his
entire business time, attention, skills, and energy exclusively to the business
of the Company, and will use his best efforts to promote the success of the
Company's business, and will cooperate fully with the Board of Directors in the
advancement of the best interests of the Company. The Employee shall also serve
as a director of the Company and the Employee shall fulfill his duties as such
director. Employee shall be compensated for such director duties on the same
basis as other directors, if any.
(b) The
Employee represents and warrants that the execution and delivery by the Employee
of this Agreement do not, and the performance by the Employee of the Employee's
obligations hereunder will not, with or without the giving of notice or the
passage of time, or both: (i) violate any judgment, writ, injunction, or order
of any court, arbitrator, or governmental agency applicable to the Employee,
(ii) conflict with, result in the breach of any provisions of or the termination
of, or constitute a default under, any agreement to which the Employee is a
party or by which the Employee is or may be bound.
4. Compensation.
(a) The
Company shall initially pay the Employee an annual base salary to be determined,
but not greater than that of the other senior managers of the Company (the
"Initial Base Salary"), subject to adjustment as provided below, which will be
payable in equal periodic installments according to the Company's customary
payroll practices, but no less frequently than monthly. Employee's base salary
will be reviewed by the Board of Directors of the Company not less frequently
than annually, and may be adjusted upward or downward in the sole discretion of
the Board of Directors of the Company, but in no event will Employee's base
salary be less than the Initial Base Salary.
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(b) All
payments of salary and other compensation to the Employee shall be made after
deduction of any taxes and other amounts which are required to be withheld with
respect thereto under applicable federal and state laws.
5. Fringe Benefits; Expenses.
(a) So long
as the Employee is employed by the Company, the Employee shall participate in
all employee benefit plans sponsored by the Company, or to which the Company
contributes, for its executive employees, including but not limited to vacation
policy, sick leave and disability leave, life insurance, health insurance,
dental insurance, and bonus, stock option, stock ownership and/or profit sharing
plans; provided, however, that the
nature, amount and limitations of such plans shall be determined from time to
time by the Board of Directors of the Company.
(b) The
Company shall reimburse the Employee for all reasonable business expenses
incurred by the Employee in the scope of his employment; provided, however, that the
Employee must file expense reports with respect to such expenses in accordance
with the Company's policies as are in effect from time to time.
(c) The
Employee shall be entitled to vacation in accordance with the vacation policies
of the Company in effect from time to time. The Employee will also be entitled
to the paid holidays and other paid leave set forth in the Company's policies.
Vacation days earned during any calendar year that are not used by the Employee
by the end of the following calendar year will be forfeited.
6. Termination. The Company may
terminate this Agreement with or without "Cause" at any time, subject to the
terms of this Section 6. Such termination shall be effective upon delivery of
written notice to the Employee of the Company's election to terminate this
Agreement under this Section 6.
(a) Definition of
"Cause". When used in connection with the termination of employment with
the Company, "Cause" means: (i)
Employee's breach of his obligations under this Agreement after the Employee has
been given notice specifying such breach and a reasonable opportunity to cure
such breach; (ii) Employee's failure to adhere to any written Company policy
after the Employee has been given notice specifying the failure and a reasonable
opportunity to comply with such policy or cure his failure to comply; (iii) the
conviction of, indictment for or the entering of a guilty plea or plea of no
contest with respect to, a felony, the equivalent thereof, or any other crime
with respect to which imprisonment is a possible punishment; (iv) the commission
by the Employee of an act of fraud upon the Company or any of its affiliates;
(v) the misappropriation (or attempted misappropriation) of any funds or
property of the Company or any of its affiliates by the Employee; (vi) the
failure by the Employee to perform the duties assigned to him under this
Agreement after reasonable notice and opportunity to cure such performance;
(vii) the engagement by the Employee in any direct, material conflict of
interest with the Company without compliance with the Company's conflict of
interest policy, if any, then in effect; (viii) the engagement by the Employee,
without the written approval of the Board of Directors of the Company, in any
activity which competes with the business of the Company or any of its
affiliates or which would result in a material injury to the Company or any of
its affiliates; (ix) the engagement by the Employee in any activity which would
constitute a material violation of the provisions of the Company's Xxxxxxx
Xxxxxxx Policy or Business Ethics Policy, if any, then in effect, (x) the
failure by the Employee to sign any lock-up letters, standstill agreements, or
other similar documentation required by an underwriter in connection with a
public offering of securities by the Company or to take other actions reasonably
related thereto as requested by the Board of Directors of the Company, or (xi)
any act or omission by the Employee that, in the judgment of the Board of
Directors of the Company, has or could have a material adverse effect on (a) the
Company's properties, operations or public image, or (b) the health, safety or
morale of any of the Company's suppliers, employees or customers.
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(b) Termination for Cause or
Resignation. If the Company terminates the Employee's employment for
Cause or the Employee voluntarily resigns, the Company shall pay the Employee's
base salary earned through the date of termination but all rights to any other
compensation or benefits arising hereunder shall be canceled and terminated in
all respects concurrently with such termination of employment; provided that
Employee may elect to continue to participate, at Employee's own expense, in
such health insurance and other benefits as to which the opportunity for
continuing participation is mandated by applicable laws.
(c) Termination Without
Cause. In the event that the Employee's employment is terminated by the
Company without Cause, or the Employee terminates this Agreement due to a
material breach by the Company, the Company shall, subject to the terms of subsections (d) and
(e) of this Section 6 below, and only if and as long as Employee is not
in breach of his obligations under this Agreement, pay to the Employee an amount
equal to six months salary at his then current base salary payable in a lump
sum.
(d) Disability; Death. If
at any time during the term of this Agreement, the Employee is unable due to
physical or mental disability to perform effectively his duties hereunder, the
Company shall continue payment of compensation as provided in Section 4 during the
first six months of such disability to the extent not covered by the Company's
disability insurance policies. Upon the expiration of such six-month period, the
Company, at its sole option, may continue payment of the Employee's salary for
such additional periods as the Company elects, or may terminate this Agreement
without further obligations hereunder. If the Employee should die during the
term of this Agreement, the Employee's employment and the Company's obligations
hereunder shall terminate as of the end of the month in which the Employee's
death occurs and there will be no salary and benefit continuation
period.
(e) Waiver and Release.
In the event that employment is terminated by the Company Without Cause, the
Employee shall accept, in full settlement of any and all claims, losses, damages
and other demands which the Employee may have arising out of such termination,
as liquidated damages and not as a penalty, the applicable amounts payable to
Employee as set forth in this Section 6. The Employee hereby waives any and all
rights he may have to bring any cause of action or proceeding contesting any
termination without Cause. Under no circumstances shall the Employee be entitled
to any compensation or confirmation of any benefits under this Agreement for any
period of time following his date of termination if his termination is for
Cause.
7. Covenant Not to
Compete.
(a) During
the Employee’s employment with the Company and its affiliates, the Employee will
not compete with the Company or its affiliates, directly or indirectly, either
for himself or as a member of a partnership or as a stockholder (except as a
stockholder of less than one percent of the issued and outstanding stock of a
publicly-held company whose gross assets exceed $100 million), investor, owner,
officer or director of a company or other entity, or as an employee, agent,
associate or consultant of any person, partnership, corporation or other entity,
in any business in competition with that carried on by the Company or its
affiliates.
(b) For a
period two years from and after the date of termination of Employee's employment
with the Company or any of its Affiliates, regardless of the reason for such
termination, the Employee will not (1) represent, engage in, carry on, or have a
financial interest in, directly or indirectly, individually, as a member of a
partnership or limited liability company, equity owner, stockholder (other than
as a stockholder of Parent or as a stockholder of less than one percent (1%) of
the issued and outstanding stock of a publicly-held company whose gross assets
exceed $100 million), investor, owner, officer, director, trustee, manager,
employee, agent, associate or consultant, in any business which directly
competes with any of the services or products produced, sold, conducted,
developed, or in the process of
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development
by the Company on the date of termination of Employee's employment, including
any indoor air quality, heating, ventilation, air conditioning, plumbing
products or services (2) directly or indirectly, whether as a principal, agent,
officer, director, employee, consultant, independent contractor or otherwise,
alone, in association with or on behalf of any other person, firm, corporation
or other business organization, (A) solicit, sell, call upon, advise, do or
attempt to do business with or otherwise contact any customer of Company, its
parent, subsidiaries or other affiliate companies as of the date of such
termination, or (B) (i) hire or attempt to hire any employee of Company, its
parent, subsidiaries or other affiliate companies, (ii) assist in such hiring by
any other person, (iii) encourage any such employee to terminate his/her
employment with Company, its parent, subsidiaries or other affiliate companies
and/or (iv) solicit, encourage or induce any customer to terminate its
relationship with the Company, its parent, subsidiaries or other affiliate
companies.
(c) The
Employee acknowledges that the limitations set forth herein on his rights to
compete with the Company and its affiliates are reasonable and necessary for the
protection of the Company and its affiliates. In this regard, Employee
specifically agrees that the limitations as to period of time and geographic
area, as well as all other restrictions on his activities specified herein, are
reasonable and necessary for the protection of the Company and its affiliates.
Employee agrees that, in the event that the provisions of this Agreement should
ever be deemed to exceed the scope of business, time or geographic limitations
permitted by applicable law, such provisions shall be and are hereby reformed to
the maximum scope of business, time or geographic limitations permitted by
applicable law.
(d) Employee
agrees that the remedy at law for any breach by him of this Section 7 will be
inadequate and that the Company shall also be entitled to injunctive
relief.
(e) Any
violation of the covenant not to compete described in this Section 7 shall
extend the time period thereof for a period of time equal to the period of time
during which such violation continues. In the event the Company or any of its
affiliates is required to seek relief from such violation in any court, board of
arbitration or other tribunal, then the covenant shall be extended for a period
of time equal to the pendency of such proceedings and any appeals
thereof.
8. Confidential Information. During the
Employee’s employment with the Company and its affiliates, and for five years
after his termination of employment, the Employee will not make use of or
disclose, without the prior consent of the Company, Confidential Information (as
hereinafter defined) relating to the Company, or any of its affiliates, and will
return to the Company at the termination of the Employee's employment or at any
other time at the Company's request all written materials in his possession
embodying such Confidential Information. For purposes of this Agreement, "Confidential
Information" includes information conveyed or assigned to the Company by
Employee or conceived, compiled, created, developed, discovered or obtained by
Employee from and during his employment relationship with the Company, whether
solely by the Employee or jointly with others, which concerns the affairs of the
Company or its affiliates and which the Company could reasonably be expected to
desire be held in confidence, or the disclosure of which would likely be
embarrassing, detrimental or disadvantageous to the Company or its affiliates
and without limiting the generality of the foregoing, such information includes
information relating to inventions, and the trade secrets, technologies,
algorithms, products, services, finances, business plans, marketing plans, legal
affairs, supplier lists, client lists, potential clients, business prospects,
business opportunities, personnel assignments, contracts and assets of the
Company and information made available to the Company by other parties under a
confidential relationship. Confidential Information, however, shall not include
information (i) which is, at the time in question, in the public domain through
no wrongful act of Employee, (ii) which is later disclosed to Employee by one
not under obligations of confidentiality to the Company or Employee, (iii) which
is required by court or governmental order, law or regulation to be disclosed,
or (iv) which the Company has expressly given Employee the right to
disclose pursuant to written agreement. Employee acknowledges that the remedy at
law for any breach by him of this Section 8 will be inadequate and that the
Company shall also be entitled to injunctive relief.
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9. Notice. All notices,
requests, demands and other communications required by or permitted under this
Agreement shall be in writing and shall be sufficiently given if delivered by
hand, by courier service, sent by registered mail, postage prepaid, or sent by
facsimile (with written confirmation of receipt) to the parties at their
respective addresses listed below:
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(a)
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If
to the Employee:
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0000
Xxxx Xxxx Xxx
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Xxxxxxx
Xxxxx, XX 00000
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(b) If
to the Company:
0000 Xxxx
Xxxx Xxx
Xxxxxxx
Xxxxx, XX 00000 Attn: CEO/President
Either
party may change such party's address by such notice to the other
party.
10. Assignment. This Agreement is
personal to the Employee, and he shall not assign any of his rights or delegate
any of his duties hereunder without the prior written consent of the Company.
Neither the Employee nor his spouse will have the right to pledge, encumber, or
otherwise dispose of any payments under this Agreement. The Company shall have
the right to assign this Agreement to a successor in interest in connection with
a merger, sale of substantially all assets, or the like; provided however,
that an assignment of this Agreement to an entity with operations, products or
services outside of the industries in which the Company or its affiliates is
then active shall not be deemed to expand the scope of Employee's covenant not
to compete with such operations, products or services without Employee's written
consent.
11. Survival. The provisions of
this Agreement shall survive the termination of the Employee's employment
hereunder in accordance with their terms.
12. Governing Law. This Agreement
shall be governed by, and construed and enforced in accordance with, the laws of
the State of California.
13. Binding Upon Successors. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective heirs, legal representatives, successors and
permitted assigns.
14. Entire Agreement. This
Agreement constitutes the entire agreement between the Company and the Employee
with respect to the terms of employment of the Employee by the Company and
supersedes all prior agreements and understandings, whether written or oral,
between them concerning such terms of employment.
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15. Waiver and Amendments; Cumulative Rights and Remedies.
(a) This
Agreement may
be amended, modified or supplemented, and any obligation hereunder may be waived, only by a
written instrument executed by the prunes hereto. The waiver by either party of
a breach of any provision of this Agreement shell not operate as a waiver of any
subsequent breach.
(b) Ne
failure on the part of any party to exorcise,
and no delay it exercising, any night or remedy hereunder shall operate as a
waiver hereof, nor
shall any single or partial exercise of any such right or remedy by such
party preclude any other or further exercise thereof or the exercise of any
other right or remedy, All rights and remedies hereunder are cumulative and are
in addition to ail other rights and remedies provided by law, agreement or
otherwise.
(c) The
Employee's obligations to the Company and the Company's rights and remedies
hereunder are in
addition to all other obligations of the Employee and rights and remedies
of the Company created pursuant to any other agreement.
16. Construction. Each
party to this Agreement has had the opportunity to review this Agreement with
legal counsel. This Agreement shall not
be construed or interpreted against any party on the basis that such
party drafted or authored a particular provision, parts of or the entirety of
this Agreement.
17. Severability. In
the event that any provision or provisions of this Agreement is held to be
invalid i1leg,al or unenforceable by any court of law or otherwise, the
remaining provisions of this Agreement shall nevertheless continue to be valid,
legal and enforceable as though the invalid or unenforceable parts had not been
included therein. In addition, in such event the parties hereto shall negotiate
in good faith to modify this Agreement no as to effect the original intent of
the parties as closely as possible with respect to those provisions which were
held to be invalid, illegal or unenforceable.
IN
WITNESS WHEREOF, the Company and the Employee have executed this Agreement
effective as of the date first above written.
COMPANY:
By: /s/ Xxxx X.
Xxxxx
Name: Xxxx
X. Xxxxx
Title: President
EMPLOYEE:
By: /s/ Xxxxx
Xxxxxxxxx
Name:
Xxxxx
Xxxxxxxxx |
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