EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
February 1, 2004 by and between WPCS INTERNATIONAL INCORPORATED, a Delaware
corporation, with an office located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 00,
Xxxxx, XX 00000 (the " Company") an Xxxxxx X. Heater, an individual and resident
of 000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 ("Heater").
WHEREAS, the Company is in the business of providing wireless and landline
products and services; and
WHEREAS, Heater has had experience in the financial operations of public
companies and larger corporations; and
WHEREAS, the Company desires to retain the services of Heater; and
WHEREAS, Heater is willing to be employed by the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree as follows:
1. Employment. Heater is hereby employed and engaged to serve the Company as its
Chief Financial Officer, or such additional titles as the Company shall specify
from time to time, and Heater does hereby accept, and Heater hereby agrees to
such engagement and employment. At all times during the term of Heater's
employment, he shall report to the President and Chief Executive Officer of the
Company or whom the Board of Director's should designate.
2. Duties. Heater shall be responsible for the overall financial operations,
financial controls and financial reporting for the Company. In addition,
Heater's duties shall be such duties and responsibilities as the Company shall
specify from time to time, and shall entail those duties customarily performed
by the Chief Financial Officer with a sales volume and number of employees
commensurate with those of the Company. Heater shall have such authority,
discretion, power and responsibility, and shall be entitled to office, support
and other facilities and conditions of employment, as are customary or
appropriate to his position. Heater shall diligently and faithfully execute and
perform such duties and responsibilities, subject to the general supervision and
control of the Company's President and Chief Executive Officer and Board of
Directors. The Company's President and Chief Executive Officer or the Board of
Directors, in its sole and absolute discretion, shall determine Heater's duties
and responsibilities and may assign or reassign Heater to such duties and
responsibilities as it deems in the Company's best interest. Heater shall devote
his full-time attention, energy, and skill during normal business hours to the
business and affairs of the Company and shall not, during the Employment Term,
as that term is defined below, be actively engaged in any other business
activity, except with the prior written consent of the Company's President and
Chief Executive Officer or Board of Directors.
Nothing in this Agreement shall preclude Heater from devoting reasonable periods
required for:
(a) serving as a director or member of a committee of any organization or
corporation involving no conflict of interest with the interests of
the Company;
(b) serving as a consultant in his area of expertise (in areas other than
in connection with the business of the Company), to government and
academic panels where it does not conflict with the interests of the
Company; and
(c) managing his personal investments or engaging in any other
non-competing business; provided that such activities do not
materially interfere with the regular performance of his duties and
responsibilities under this Agreement as determined by the Company.
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3. Best Efforts of Heater. During his employment hereunder, Heater shall devote
his full business time, best efforts, business judgment, skill, and knowledge to
the advancement of the Company's interests and to the discharge of his duties
and responsibilities hereunder. Notwithstanding the foregoing, nothing herein
shall be construed as preventing Heater from investing his assets in any
business.
4. Employment Term. This Agreement shall have a term of three (3) years
beginning February 1, 2004 (the "Employment Term").
5. Compensation of Heater. As compensation for the services provided by Heater
under this Paragraph, the Company shall pay Heater an annual salary of One
Hundred, Thirty-Two Thousand Dollars ($132,000), to be paid in accordance with
the Company's usual payroll procedures. In addition to the above base
compensation, Heater shall be eligible to receive bonuses based on the
performance of the Company.
6. Benefits. Heater shall also be entitled to participate in any and all Company
benefit plans, such as health and dental insurance, in effect for employees of
the Company. Such participation shall be subject to the terms of the applicable
plan documents and generally applicable Company policies.
7. Vacation, Sick Leave and Holidays. Heater shall be entitled to two (2) weeks
of paid vacation, with such vacation to be scheduled and taken in accordance
with the Company's standard vacation policies. In addition, Heater shall be
entitled to such sick leave and holidays at full pay in accordance with the
Company's policies established and in effect from time to time.
8. Business Expenses. The Company shall promptly reimburse Heater for all
reasonable out-of-pocket business expenses incurred in performing Heater's
duties and responsibilities hereunder in accordance with the Company's policies,
provided Heater promptly furnishes to the Company adequate records of each such
business expense.
9. Location of Heater's Activities. Heater's principal place of business in the
performance of his duties and obligations under this Agreement shall be in the
Exton, Pennsylvania area. Notwithstanding the preceding sentence, Heater will
engage in such travel and spend such time in other places as may be necessary or
appropriate in furtherance of his duties hereunder.
10. Confidentiality. Heater recognizes that the Company has and will have
business affairs, products, future plans, trade secrets, customer lists, and
other vital information (collectively "Confidential Information") that are
valuable assets of the Company. Heater agrees that he shall not at any time or
in any manner, either directly or indirectly, divulge, disclose, or communicate
in any manner any Confidential Information to any third party without the prior
written consent of the Company's President and Chief Executive Officer or Board
of Directors. Heater will protect the Confidential Information and treat it as
strictly confidential.
11. Non-Competition. Heater acknowledges that he has gained, and will gain
extensive knowledge in the business conducted by the Company and has had, and
will have, extensive contacts with customers of the Company. Accordingly, Heater
agrees that he shall not compete directly or indirectly with the Company, either
during the Employment Term or during the one (1) year period immediately after
the termination of Heater's employment under Section 12 and shall not, during
such period, make public statements in derogation of the Company. For the
purposes of this Section 11, competing directly or indirectly with the Company
shall mean engaging, directly or indirectly, as principal owner, officer,
partner, consultant, advisor, or otherwise, either alone or in association with
others, in the operation of any entity engaged in a business similar to that of
the Company's.
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12. Termination. Notwithstanding any other provisions hereof to the contrary,
Heater's employment hereunder shall terminate under the following circumstances:
(a) Voluntary Termination by Heater. Heater shall have the right to
voluntarily terminate this Agreement and his employment hereunder at
any time during the Employment Term.
(b) Voluntary Termination by Company. The Company shall have the right to
voluntarily terminate this Agreement and Heater's employment hereunder
at any time during the Employment Term.
(c) Termination for Cause. The Company shall have the right to terminate
this Agreement and Heater's employment hereunder at any time for
cause. As used in this Agreement, "cause" shall mean refusal by Heater
to implement or adhere to lawful policies or directives of the
Company's President and Chief Executive Officer or Board of Directors,
breach of this Agreement, Heater's conviction of a felony, other
conduct of a criminal nature that may have a material adverse impact
on the Company's reputation, breach of fiduciary duty or the criminal
misappropriation by Heater of funds from or resources of the Company.
Cause shall not be deemed to exist unless the Company shall have first
given Heater a written notice thereof specifying in reasonable detail
the facts and circumstances alleged to constitute "cause" and thirty
(30) days after such notice such conduct has, or such circumstances
have, as the case may be, not entirely ceased and not been entirely
remedied.
(d) Termination Upon Death or for Disability. This Agreement and Heater's
employment hereunder, shall automatically terminate upon Heater's
death or upon written notice to Heater and certification of Heater's
disability by a qualified physician or a panel of qualified physicians
if Heater becomes disabled beyond a period of three (3) months and is
unable to substantially perform the duties contained in this
Agreement.
(e) Effect of Termination In the event that this Agreement and Heater's
employment is voluntarily terminated by Heater pursuant to Section
12(a) or for cause pursuant to Section 12(c) or upon death or
disability of Heater pursuant to Section 12(d), all obligations of the
Company and all duties, responsibilities and obligations of Heater
under this Agreement shall cease. Upon such termination, Heater shall
be entitled to receive only the compensation, benefits, and
reimbursement earned by or accrued to Heater under the terms of this
Agreement prior to the date of termination, but shall not be entitled
to any further compensation, benefits, or reimbursement after such
date. In the event the Company voluntarily terminates this Agreement
pursuant to Section 12(b), Heater shall be entitled to all
compensation pursuant to Section 5 and benefits pursuant to Section 6
for the period between the effective termination date to the end of
the Employment Term pursuant to Section 4. Other than as set forth
above, Heater shall not be entitled to any further compensation,
benefits, or reimbursement after the date of his termination. In the
event of a merger, consolidation, sale, or change of control, the
Company's rights hereunder shall be assigned to the surviving or
resulting company, which company shall then honor this Agreement with
Heater.
13. Resignation as Officer. In the event that Heater's employment with the
Company is terminated for any reason whatsoever, Heater agrees to immediately
resign as an Officer and/or Director of the Company and any related entities.
For the purposes of this Section 13, the term the "Company" shall be deemed to
include subsidiaries, parents, and affiliates of the Company.
14. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania
without giving effect to any applicable conflicts of law provisions.
15. Business Opportunities. During the Employment Term, Heater agrees to bring
to the attention of the Company's President and Chief Executive Officer and
Board of Directors, all written business proposals that come to Heater's
attention and all business or investment opportunities of whatever nature that
are created or devised by Heater and that relate to areas in which the Company
conducts business and might reasonably be expected to be of interest to the
Company or any of its subsidiaries.
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16. Employee's Representations and Warranties. Heater hereby represents and
warrants that he is not under any contractual obligation to any other company,
entity or individual that would prohibit or impede Heater from performing his
duties and responsibilities under this Agreement and that he is free to enter
into and perform the duties and responsibilities required by this Agreement.
Heater hereby agrees to indemnify and hold the Company and its officers,
directors, employees, shareholders and agents harmless in connection with the
representations and warranties made by Heater in this Section 16.
17. Indemnification.
17.1
The Company agrees that if Heater is made a party, or is threatened to be made a
party, to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact that he
is or was a director, officer or employee of the Company or is or was serving at
the request of the Company as a director, officer, member, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether or not the
basis of such Proceeding is Heater's alleged action in an official capacity
while serving as a director, officer, member, employee or agent, Heater shall be
indemnified and held harmless by the Company to the fullest extent permitted or
authorized by the Company's certificate of incorporation or bylaws or, if
greater, by the laws of the Commonwealth of Pennsylvania, against all cost,
expense, liability and loss (including, without limitation, attorney's fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by Heater in connection
therewith, and such indemnification shall continue as to Heater even if he has
ceased to be a director, member, employee or agent of the Company or other
entity and shall inure to the benefit of Heater's heirs, executors and
administrators. The Company shall advance to Heater to the extent permitted by
law all reasonable costs and expenses incurred by him in connection with a
Proceeding within 20 days after receipt by the Company of a written request,
with appropriate documentation, for such advance. Such request shall include an
undertaking by Heater to repay the amount of such advance if it shall ultimately
be determined that he is not entitled to be indemnified against such costs and
expenses.
17.2
Neither the failure of the Company (including its board of directors,
independent legal counsel or stockholders) to have made a determination prior to
the commencement of any proceeding concerning payment of amounts claimed by
Heater that indemnification of Heater is proper because he has met the
applicable standard of conduct, nor a determination by the Company (including
its board of directors, independent legal counsel or stockholders) that Heater
has not met such applicable standard of conduct, shall create a presumption that
Heater has not met the applicable standard of conduct.
17.3
The Company agrees to use its best efforts to maintain a directors' and
officers' liability insurance policy.
17.4
Promptly after receipt by Heater of notice of any claim or the commencement of
any action or proceeding with respect to which Heater is entitled to indemnity
hereunder, Heater shall notify the Company in writing of such claim or the
commencement of such action or proceeding, and the Company shall (i) assume the
defense of such action or proceeding, (ii) employ counsel reasonably
satisfactory to Heater, and (iii) pay the reasonable fees and expenses of such
counsel. Notwithstanding the preceding sentence, Heater shall be entitled to
employ counsel separate from counsel for the Company and from any other party in
such action if Heater reasonably determines that a conflict of interest exists
which makes representation by counsel chosen by the Company not advisable. In
such event, the reasonable fees and disbursements of such separate counsel for
Heater shall be paid by the Company to the extent permitted by law.
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17.5
After the termination of this Agreement and upon the request of Heater, the
Company agrees to reimburse Heater for all reasonable travel, legal and other
out-of-pocket expenses related to assisting the Company to prepare for or defend
against any action, suit, proceeding or claim brought or threatened to be
brought against the Company or to prepare for or institute any action, suit,
proceeding or claim to be brought or threatened to be brought against a third
party arising out of or based upon the transactions contemplated herein and in
providing evidence, producing documents or otherwise participating in any such
action, suit, proceeding or claim. In the event Heater is required to appear
after termination of this Agreement at a judicial or regulatory hearing in
connection with Heater's employment hereunder, or Heater's role in connection
therewith, the Company agrees to pay Heater a sum, to be mutually agreed upon by
Heater and the Company, per diem for each day of his appearance and each day of
preparation thereof.
18. Notices. All demands, notices, and other communications to be given
hereunder, if any, shall be in writing and shall be sufficient for all purposes
if personally delivered, sent by facsimile or sent by United States mail to the
address below or such other address or addresses as such party may hereafter
designate in writing to the other party as herein provided.
Company: Heater:
WPCS International Incorporated 000 Xxxxxxxxx Xxxxx
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 00 Xxxxxxxxxxx, XX 00000
Xxxxx, XX 00000
19. Entire Agreement. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other agreement,
whether oral or written. This Agreement supersedes any prior written or oral
agreements between the parties. This Agreement may be modified or amended, if
the amendment is made in writing and is signed by both parties. This Agreement
is for the unique personal services of Heater and is not assignable or
delegable, in whole or in part, by Heater. This Agreement may be assigned or
delegated, in whole or in part, by the Company and, in such case, shall be
assumed by and become binding upon the person, firm, company, corporation or
business organization or entity to which this Agreement is assigned. The
headings contained in this Agreement are for reference only and shall not in any
way affect the meaning or interpretation of this Agreement. If any provision of
this Agreement shall be held to be invalid or unenforceable for any reason, the
remaining provisions shall continue to be valid and enforceable. The failure of
either party to enforce any provision of this Agreement shall not be construed
as a waiver or limitation of that party's right to subsequently enforce and
compel strict compliance with every provision of this Agreement. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument
and, in pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one of such counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
WPCS INTERNATIONAL INCORPORATED: HEATER:
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxxxx X. Heater
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Name: Xxxxxx Xxxxxxx Xxxxxx X. Heater
Title: Chairman, President & CEO
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