EXECUTIVE EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT
(this
“Agreement”), dated as of April
1, 2007,
is
entered into by and between XxxxxxxxxXxx.xxx
(the
“Company”), with offices at; 0
Xxxxxxx Xxx., Xxxxxxxxx, XX 00000,
and;
Xxx Xxxxxx (“Executive”). Therefore, this agreement shall be between the Company
and Mr.
Guy Pipillo
(“Chief
Operating Officer”).
WHEREAS,
the Company
wants to employ the Executive and the Executive wants to be employed by the
Company.
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the Company and Executive
hereby agree as follows:
1. Employment. The
Company agrees to employ Executive, and Executive agrees to be employed by
the
Company, upon the terms and subject to the conditions herein
provided.
2. Term.
The
employment of Executive shall initially be on a month-to-month contract basis
(referred to herein as the “Contract Employment Term”) between Company and
Executive, terminable by either party upon ten (10) days written notice. After
the Funding, the employment of the Executive shall be for a period (referred
to
herein as the “Employment Term”) commencing on the day after the Funding is
consummated (the “Effective Date”) and ending on the earliest of (i) the third
(3rd)
anniversary of the Effective Date, or the ending date of any extension of this
Agreement that is in effect thereafter, or (ii) the date of termination of
Executive’s employment pursuant to Section
5
hereof
(“Termination Date”).
3. Position
and Duties.
(a) Position.
During
the Contract Employment Term, and the Employment Term, Executive shall serve
as
the Chief Executive Officer of the Company, and shall be responsible for the
operations of the company. In such capacity, Executive shall have the duties,
functions, responsibilities and authority customarily associated with the
position Executive holds, subject to any applicable restrictions imposed by
the
Bylaws of the Company and to the further directives of the Board of Management
and the President of the Company.
(b) Duties.
During
the Employment Term, Executive shall be required to devote substantially all,
at
least (80%) percent of his time, skill and attention to the business and affairs
of the Company, and in furtherance of the business and affairs of the Company,
except for usual, ordinary and customary periods of vacation and absence due
to
illness or other temporary disability, as set forth in the Company’s standard
employee policies. Executive, however, may devote reasonable periods of time
in
connection with speaking engagements, charitable and community activities and
serving as the director, officer or committee member of any organization, if
such activities enhance the business of the Company, do not substantially
interfere with the performance of the Executive duties and services hereunder,
and do not violate any other provisions of this Agreement.
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4.
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Compensation
and Related Matters.
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(a) After
the
Funding, Executive shall be paid at the rate of $125,000 per annum, payable
in
accordance with the payroll practices adopted by the Company. After the first
anniversary of the Effective Date, the base rate may be reviewed periodically
and increases in such base rate granted in accordance with the policies of
the
Company or by the resolution of the Board of Management.
(b) Benefits.
Executive shall, during the Employment Term, be entitled to
receive
all incidental benefits of employment of an executive of the Company, including
medical insurance, life insurance, pension plans, bonuses, profit-sharing and
incentive plans and any other similar benefit in effect from time to time,
and
shall be subject to all of the regularly established employee policies for
Executives of the Company.
(c)
Vacation
and Sick Leave.
During
each twelve-month period of the Employment Term, Executive shall be entitled
to
at least four (4) weeks of vacation; holidays and other paid or unpaid leaves
of
absence for illness or otherwise, with (2) weeks incremental increase per
additional year of service (with a maximum of 8 weeks) consistent with the
Company’s normal policies. Vacation or leave time should be used each year or at
the employees option (and with companies approval) reimbursed at two times
normal pay, except that Executive may carry over two (2) weeks of vacation
time
in any year (which may not accumulate).
(d)
Expenses.
(i) General.
Except
as provided in subsections (ii) and (iii) below, Executive shall be reimbursed
for reasonable expenses incurred in the performance of his/her duties and
services hereunder and in furtherance of the business of the Company to meet
Internal Revenue Service documentation standards for deductibility of such
expense.
(ii) Travel.
Executive may from time to time be required to travel to
meet
with
the Company’s client or conduct other business on behalf of the Company, and
that travel may on occasion require the Executive to stay overnight near the
business location. Reasonable costs of accommodations and travel to and from
that location, including, but not limited to, hotel charges, airfare and car
rental fees and taxes, shall be borne by the Company. Other work-related
expenses incurred as needed during travel will be reimbursed at the discretion
of the Company and only if they are submitted in accordance with subsection
(i)
above.
(iii) Entertainment
Expenses. The
Company shall reimburse Executive for reasonable expenditures relating to client
entertainment that are deemed reasonable and necessary to support a quality
relationship with the Company’s clients. All unbudgeted events require prior
approval by the Company’s president.
(f) Education,
Licenses and Training.
Subject
to Subsection (e) above:
(i) the
Company shall reimburse in full all reasonable costs associated with any
job-related education or any continuing professional education (“CPE”) required
for Executive to maintain any licenses or certifications; and
(ii)
the
Company shall pay all reasonable fees for licenses, certifications
or memberships in professional organizations.
(g) Regulations.
Executive shall execute and become a party to the Regulations of the Company
dated April
1, 2007
(the
“Regulations”), and all interests (as defined herein) owned by Executive shall
be subject to the Regulations’ terms and conditions.
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5.
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Termination
of Employment.
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(a) Executive’s
employment hereunder:
(i)
shall automatically terminate upon Executive’s death, resignation
or retirement, or because he has become disabled, which for purposes
of
this Section shall mean a physical or mental disability or other incapacity
which renders the Executive unable to perform his/her duties for 270 consecutive
days or for an aggregate of more than nine (9) months in any twelve (12) month
period; and
(ii) may
be
terminated by the Company at any for “cause”, which shall mean by reason of any
of the following:
(A)
Executive’s conviction of, plea of nolo contender to any felony or
to any crime or offense causing substantial harm to the business or reputation
of the Company (whether or not the crime or offense was for Executive’s personal
gain) or involving acts of theft, dishonesty, fraud or
embezzlement.
(B)
willful
and intentional misuse or diversion of any of the Company’s funds or
assets;
(C) fraudulent
or willful and material misrepresentations
or concealments on any written reports submitted to the
Company.
(D) Executive’s
material failure to perform the duties of his position in a satisfactory manner
or material failure to follow or comply with the reasonable and lawful
directives of the Board of Management or President of the Company; provided,
however,
that
Executive shall have been informed, in writing, of such material failure and
given a period of not more than thirty (30) days to remedy the failure if the
failure is capable of being remedied without penalty or damage to the
Company.
(iii) may
be
terminated by the Executive at any time
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(A)
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after
a material breach by the Company of any material provision of this
Agreement which, if correctable by the Company, remains uncorrected
for
thirty (30) days following the written notice of such breach to the
Company from the Executive, or
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(B)
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for
any other reason in the sole discretion of
Executive.
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(b) Upon
termination of Executive’s employment pursuant to this Section, Executive shall
be entitled to receive, and Company shall pay (i) the Base Salary and any bonus
which may be due him through the Termination Date (ii) the payment required
and
articulated herein of this agreement if Employee’s employment hereunder is
terminated (I) by Employee for just cause, or (iii) by Employer for any reason
other than just cause (as defined), Employer shall pay to Employee, as severance
(in lieu of any other of severance policy employee of Employer and/or the
Affiliates (five times (5x) the annual base salary payable to Employee at the
time of his termination of employment. Such payment must be made by Employer
in
a lump sum within fifteen (15) days after the date of termination.
(c) Severance: If
termination occurs prior to the end of the second year (without cause) vesting
will be automatic and (12) months at full pay will become due. The company
whether in a lump sum or spread across 12 months will determine the payment
of
severance monies at the time of termination. Termination after (2) years of
full
time employment will result in a severance package consisting of a minimum
of 13
weeks paid salary or (2) weeks for every year of full time employment plus
one
week for every $10,000 of base salary, not to exceed 39 weeks plus accrued
vacation.
6.
Business Opportunities and Intellectual Property: Covenant
not
to Compete: Non-Solicitation Obligations; Non-Disparagement Obligations; and
Confidentiality Obligations. Executives acknowledges that in
the course of his employment hereunder and performance of services on behalf
of
the Company he will become privy to various business opportunities, economic
and
trade secrets and relationships of the Company. Therefore, in consideration
of
this Agreement, Executive hereby agrees as provided below in this
Section.
(a) Business
Opportunities and Intellectual Property Executive
hereby assigns and agrees to assign to the Company and its successors, assigns
or designees all of Executive’s right, title and interest in and to all Business
Opportunities and Intellectual Property (as defined below), and further
acknowledges and agrees that all Business Opportunities and Intellectual
Property constitute the exclusive property of the Company.
For
purposes hereof “Business
Opportunities”
shall
mean all business ideas, prospects, proposals or other opportunities pertaining
to the business of the Company or created for the business of the Company,
which
are developed by Executive during the Employment Term, or originated by any
third party and brought to the attention of Executive during the Employment
Term, together with information relating thereto.
For
purposes hereof “Intellectual
Property” shall
mean all ideas, inventions, discoveries, processes, designs, methods,
substances, articles, computer programs and improvements, whether or not
patentable or copyrightable, which do not fall within the definition of Business
Opportunities, which the Executive discovers, conceives, invents, creates or
develops, alone or with others, during the Employment Term, if such discovery,
conception, invention, creation or development (i) occurs in the course of
the
Executive’s employment of the Company, or (ii) occurs with the use of the
Company time, materials or facilities, or (iii) in the opinion of the officers
of the Company, relates or pertains in any material way to the Company’s
purposes, activities or affairs and was created for the business interests
of
the Company.
(b)
Non-Complete Obligations During Employment Term
Executive Agrees that during the Employment Term. Executive will not,
other than through the Company, engage or participate in any manner, whether
directly or indirectly through any family member or as an Executive, employer,
consultant, agent, principal, partner, greater-than 50% shareholder, officer,
director, licensor, lender, lessor or in any other individual or representative
capacity, in any business or activity which is engaged in the business
of the
Company or any business similar.
(c) Post-Employment
Non-Compete Covenant. In
consideration for the Executive’s employment hereunder, for six (6) months after
the Termination Date Executive’s covenants and agrees that he shall not, in the
continental United States, directly or indirectly, own, manage, operate,
control, be employed by, participate in, permit his/her name to be used by
or be
connected in any other manner with the ownership, management, operation or
control of any business engaged in the business of the Company.
The
parties hereto hereby acknowledge and agree that the time period and the
geographic area included in the covenant in this subsection
(c)
are
reasonable and necessary for the protection of the Company’s operation of its
business. In the event this subsection is held by a court of competent
jurisdiction to be unenforceable as to any particular geographic area or as
to
any specific period of time, this Section shall nevertheless be enforceable
as
to all other geographic areas and periods of time to the greatest extent
consistent with the court’s holding.
(d)
Solicitation
Obligations (Regarding Clients).
The
Executive will not
during
the period commencing on the date hereof and for six (6) months from the
Termination Date (the “Non-Solicitation Period”) for any reason solicit, entice,
persuade or induce, directly or indirectly, on Executive’s own account or as an
agent, stockholder, owner, employee, employer or otherwise, any business from
(A) any current clients or customers of Company that Executive may have
contacted or been assigned to during the Term hereto. Notwithstanding the above,
Executive may, after the Employment Term, solicit any clients of the Company
for
so long as Executive is not engaged in any business directly or indirectly
competitive with the Company.
(e)
Solicitation Obligations (Other). The
Executive will not during the period commencing on the date hereof and
for six (6) months from the Termination Date (the “Non-Solicitation Period”) for
any reason solicit, entice, persuade or induce directly, or indirectly,
on
Executive’s own account or as an agent, stockholder, owner, employee, employer
or otherwise any employees, consultants, agents, representatives or any
other
person who is employed by under contract with or rendering services to
the
Company to (A) terminate his or her employment by, or contractual relationship
with the Company, (B) refrain from extending or renewing the same (upon
the same
or new terms), (C) refrain from rendering services to or for the Company,
(D)
become employed by or enter into contractual relations with any persons
other
than the Company, or (E) enter into a relationship with a competitor of
the
Company.
(f)
Non-disparaging Obligations.
Executive agrees not to engage in any conduct or make any statements,
which are critical of the Company, or any of the employees, officers, directors
or other persons regarding, relating to or in connection with Executive’s
employment or Executive’s separation from the
Company.
(g)
Confidentiality Obligations.
In
connection with Executive’s employment with the Company, Company is
furnishing certain information and trade secrets to Executive that are
non=public, confidential or proprietary in nature (the “Information”).
The Term
information means information or data in any form or medium, tangible or
intangible, relating to the business of the Company that is actually disclosed
by the Company to the Executive, whether before or after the date of this
Agreement, including, without limitation, information concerning (i) names,
addresses, electronic mail addresses and telephone telex facsimile numbers
of
employees, consultants, clients, customers and any other person or entity
related to the business of the customers and any other person or entity
related
to the business of the Company, (ii) information of a technical nature
such as
trade secrets, patents, product specifications, data, know-how, formulas,
compositions, processes, designs, sketches, photographs, graphs, drawings,
samples, inventions, and ideas, innovations, improvements, past, current
and
planned research and development , computer software and programs (including
object code and source code), and database technologies, systems, structures
and
architectures: (iii) information of a business nature , such as marketing
plans,
business plans, strategies, forecasts, unpublished financial information,
budgets, projections, information and data concerning costs, profits, market
share, sales, current or planned service methods and processes, customer
lists,
market studies, business plans, or information regarding suppliers or lenders;
(iv) notes, photographs or memoranda related to the preceding subparts
(i), (ii)
and (iii); (v) information generated or derived by the Executive that contains
,
reflects or is derived from any of the information described above; and
(vi) any
other information obtained from the Company that is not known to the
public.
The
term
“Information” does not include information which (1) has been or may in the
future be publicly available through no fault of the Executive and not in
violation of the rights of the Company; (2) prior to disclosure by the Company
is known to or is within the legitimate possession of the Executive; (3) is
received in good faith by the Executive from any third party without notice
of
any restriction against its further disclosure; (4) is independently developed
by persons who have not had access to or knowledge of the information; (5)
is
not considered confidential by the Company; or (6) must be produced under
applicable law or an order of court of competent jurisdiction.
(i)
Written
Information considered by the company as confidential or proprietary and
provided to him need not be clearly marked in a conspicuous place to be
considered as confidential or proprietary. Company will use its best efforts
to
xxxx Written Information as confidential or proprietary. Oral information
delivered by the company shall also be confidential or proprietary pursuant
to
the terms of this Agreement.
(ii)
In
consideration of Company disclosing the Information to him. Executive agrees
to
keep the Information strictly confidential and shall not disclose the
information without the prior written consent of Company to any person,
including any corporations, divisions, subsidiaries, associates, employees,
directors, officers, guarantors, counsel, agents, and consultants (collectively,
“Representatives”) of
the
Executive who are not directly involved in the business of the Company and
shall
not be used by him or his Representatives other than in connection with business
of the Company. The Information shall remain at all times the property of
Company, and no license is granted hereby.
(iii) Executive
agrees that within three (3) business days of Company’s request, all copies of
the Information in any form whatsoever, including any electronic formats,
(including, but not limited to any reports, memoranda or other materials
prepared by Executive or at his direction) will be returned by him to Company,
and he shall provide a certificate to Company that all Information has been
returned.
(iv) In
the event that Executive or anyone to whom he supplies the Information receives
a request to disclose all or any part of the Information, including any request
under the terms of a subpoena or governmental body. Executive agrees to (A)
immediately notify Company of the existence, terms and circumstances surrounding
such a request; (B) consult with Company on the advisability of taking legally
available steps to resist or narrow such request; and (C) if disclosure of
such
Information is required, furnish only that portion of the Information which
in
the written opinion of counsel of Company. Executive is legally compelled to
disclose and to exercise commercially reasonable efforts to obtain an order
or
other reliable assurance that confidential treatment will be accorded to such
portion of the disclosed Information that Company so designates.
(v)
Neither the Company nor any of its Representatives has made or makes
any
representation or warranty as to the Information’s accuracy or completeness.
Executive agrees that neither Company nor its Representatives shall have
any
liability to him or any of his Representatives resulting from the provision
or
use of the Information.
7.
Prior
Agreements. Executive
represents to Company: (i) that there are no restrictions, agreements or
understandings whatsoever to which he is a party which would prevent or make
unlawful his execution of this Agreement or his employment hereunder, (ii)
that
his execution of this Agreement and his employment hereunder shall not
constitute a breach of any contract, agreement or understanding, oral or
written, to which he is a party or by which he is bound, and (iii) that he
is
free and able to execute this Agreement and to enter into employment by the
Company.
8.
Indemnification. Subject
to the express terms and conditions of the Regulations, the company shall defend
and indemnify Executive from and against any and all claims that may be asserted
against him by third parties (including derivative claims asserted by third
parties on behalf of the Company) that are connected with his employment by
the
company, to the extent permitted y applicable law. The foregoing
notwithstanding, Company shall not be required to defend or indemnify Executive
(i) in criminal proceedings, (ii) in civil proceedings where he is the
plaintiff, or (iii) to the extent it is finally adjudicated that he did not
act
in good faith and in reasonable belief that his actions were appropriate in
the
discharge of his duties for the Company. Company may fulfill its duty of defense
by providing competent legal counsel of Company’s choosing. The foregoing rights
are in addition to any other rights to which Executive may be entitled under
any
other agreement, policy, bylaw, insurance policy, ordinance, statute or other
provision.
9.
Indulgences, Etc.
Neither
the failure nor any delay on the part of either party to exercise any
right, remedy, power or privilege under this Agreement shall operate as
a waiver
thereof, nor shall any single or partial exercise of the same or of any
other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver
of
such right remedy, power or privilege with respect to any other
occurrence.
10.
Equitable
Relief; Attorneys’ Fees. Executive
acknowledges and agrees that any breach of this Agreement would cause the
Company irreparable and immediate harm and the Company could not be made whole
by monetary damages. Accordingly, Executive agrees that, in the event of a
breach or threatened breach by him of any of the provisions of the Agreement,
the Company shall be entitled to an injunction or other equitable relief, in
addition to any other rights, remedies or damages to which the Company may
be
entitled in; law or equity, to prevent breaches of this Agreement and to compel
specific performance of this Agreement, and Executive further agrees that he
will not oppose the granting of such relief. Executive also agrees to reimburse
the Company for all costs and expenses, including attorneys’ fees, incurred by
the Company in connection with any court or administrative preceding the Company
initiates to enforce the obligations of Executive hereunder and is successful
in
obtaining monetary or injunctive relief.
11.
Divisibility
of Agreement. I
In the
event that any term, condition or provision
of this Agreement is for any reason rendered void or unenforceable, all
remaining terms, conditions and provisions shall remain and continue as valid
and enforceable obligations of the parties.
12.
Notices.Any
notices or other communications required or permitted to be sent
hereunder shall be in writing and shall be duly given if personally delivered
or
sent postage pre-paid to the address below:
| If to The Company | If to Executive |
| XxxxxxxxxXxx.xxx | Guy Pipillo |
| 0 Xxxxxxx Xxx. | Xx-Xxxxxxx/X.X.X. |
| Xxxxxxxxx, XX 00000 |
Either
party may change his or its address for the sending of notice to such party
by
written notice to the other party sent in accordance with the provisions
hereof.
13.
Complete
Agreement.This
Agreement contains the entire understanding of the parties with respect to
the
employment of Executive and supersedes all prior arrangements or understandings
with respect thereto and all oral or written employment agreements or
arrangements between the Company and Executive. This Agreement may not be
altered or amended except in a writing duly executed by both
parties.
14. Assignment. This
Agreement is personal and non-assignable by Executive. It shall inure to the
benefit of any corporation or any other entity with all or substantially all
of
its assets, and may be assigned by the Company to any Affiliate of the Company
or to any corporation or entity with which such Affiliate shall merge or
consolidate or which shall acquire all or substantially all of the assets of
such Affiliates.
15. Governing
Law. This
Agreement will be governed by and construed and interpreted in accordance with
the laws of the State of New York, without regard to any principles of conflicts
of law that would result in the application of the laws of any other
jurisdiction.
16. Counterparts.
This
Agreement may be executed in counterparts each of which shall be an original
and
all of which together shall constitute one and the same Agreement.
IN
WITNESS WHEREOF, each
of
the parties hereto has executed this Agreement as of the date first above
written.
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COMPANY:
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EXECUTIVE:
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By:
___________________________
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By:
__________________________
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