EMPLOYMENT AGREEMENT
AGREEMENT made as of the 13th day of October 2000 between Beryllium
International Corporation. ("Company"), a Utah corporation having an
office located at 0000 Xxxx Xxx Xxxx, Xxxx Xxxx Xxxx, Xxxx, 00000, and
Xxxxxxx X. Xxxxxxxx ("Employee:), residing 0000 XX 0xx Xxx. Xxxx Xxxxx,
XX. 00000
WHEREAS, Employee will be employed as Secretary, and Office Manager
of Company.
WHEREAS, Company and Employee, wish to enter into an Employment
Agreement pursuant to which Employee will become Secretary, and Office
Manager of Company.
NOW, THEREFORE, in consideration of the respective agreements
hereinafter set forth, the parties agree as follows:
1. Employment
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1.01 Term. Company hereby employees Employee, and Employee hereby
accepts employment with Company in the position and with the duties
set forth, for a period commencing on October 10, 2000 and ending
Dec. 31, 2005 subject, however, to earlier termination in
accordance with the provisions of this Agreement and subject to the
Company successfully acquiring the assets of XXXXXXXXXX-XXXXXX.XXX,
INC. and closing the Transaction so as to have the financial means
to perform the terms of this agreement
2. Duties
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2.01 General. Employee shall act as Secretary, and Office Manager
of Company and shall perform such executive duties as may from time
to time be assigned to him by Companies President; consistent with
the duties associated with those positions, including the authority
to direct and manage the day-to-day operations and internal affairs
of the office. Employee shall, be subject to the supervision and
direction of the President.
2.02 Performance. During the term of his employment, Employee shall
devote at least 100% of his business time, best efforts and
attention to the business, operations and affairs of Company and
the performance of his duties hereunder.
2.03 Employee's Representations. Employee represents and warrants to and
agrees with Company that:
(a) Neither the execution nor performance by Employee of this
Agreement is prohibited by or constitutes or will constitute,
directly or indirectly, a breach or violation of, or will be
adversely affected by, any written or other agreement to which
Employee is or has been a party or by which he is bound.
(b) Neither Employee nor any business or entity in which he has
any interest or from which he receives any payments has, directly
or indirectly, any interest of any kind in or is entitled to
receive, and neither Employee nor any such business or entity shall
accept, from any person, firm, corporation or other entity which
competes with Company, any payments of any kind on account of any
services performed by Employee during the term of his employment.
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3. Compensation and Related Matters.
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3.01 Fixed Salary. As compensation for Employee's services, the
Company shall pay Employee a salary (the "Fixed Salary") at the
following rates in equal monthly (or more frequent) installments
less appropriate payroll deductions as required by law:
For the period of January 1, 2001 to December 31, 2001 - $5,000 per month
For the period of January 1, 2002 to December 31, 2002 - $5,500 per month
For the period of January 1, 2003 to December 31, 2003 - $6,050 per month
For the period of January 1, 2004 to December 31, 2004 - $6,650 per month
For the period of January 1, 2005 to December 31, 2005 - $7,315 per month
The Employee agrees to accept shares of Company's common stock
equal to the number of dollars owed Employee pursuant to this
Agreement. The Employee agrees to accept shares for dollars until
the Company maintains an average cash balance of $500,000 or
greater.
3.02 Additional Compensation
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As compensation for Employee's services, the Company shall pay
Employee a salary (the "Fixed Salary") at the following rates in
equal monthly (or more frequent) installments less appropriate
payroll deductions as are required by law plus stock options as
listed:
1. 150,000 options @$.01 upon signing of contract.
a) Cash Bonuses The Company shall pay Employee such other cash
and stock bonuses as are determined by the Board of Directors.
3.03 Expenses. Company shall pay or reimburse Employee for all
reasonable travel hotel, entertainment and other business expenses
incurred in the performance of Employee's duties upon submission of
appropriate vouchers and other supporting data including a vehicle
allowance not to exceed $500 per month beginning January 1, 2001
for the life of this Agreement.
3.04 Benefits. Employee shall be entitled to (i) receive such benefits
as are typically provided to executives holding his position in
public corporations of similar size; (ii) participate in all
general pension, profit-sharing, life, medical, disability and
other insurance and employee benefit plans and programs at any time
in effect for executive employees of company, provided, however,
that nothing herein shall obligate Company to establish or maintain
any employee benefit plan or program, whether of the type referred
to in this clause (ii) or otherwise.
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4. Termination for cause: Disability, Death
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4.01 For Cause. Company shall have the right to terminate the employment
of Employee hereunder at any time for Cause (as hereinafter
defined). For purposes of this Agreement "Cause" shall mean and
include the occurrence of any of the following acts or events by or
relating to Employee: (1) any material misrepresentation by
Employee in this agreement; (2) any material breach of any
obligations of Employee under this Agreement which remains uncured
for more than thirty (30) days after written notice thereof by the
Board of Directors to Employee: (3) habitual insobriety or illegal
use of drugs by Employee while performing his duties hereunder, or
(4) any gross negligence of intentional misconduct with respect to
the performance of the Agreement, or (5) theft or embezzlement,
from the Company, willful dishonesty towards, fraud upon, or
deliberate injury or attempted injury to, the Company; provided,
however, if during the term of this Agreement, there shall occur a
Change of Control (as hereinafter defined). The Company may not
terminate the employment of employee for Cause if Employee's
conduct subsequent to such Change of Control is consistent with his
conduct prior to such Change of Control or for any act or omission
which was known to Company and which occurred prior to such Change
of Control, and the term "cause" shall be deemed amended so as to
delete therefrom the occurrence of the acts or events by or
relation to Employee set forth above. In the event of termination
for cause, Employee's fixed salary shall terminate as of the
effective date of termination of employment.
4.02 Voluntary Termination by Employee may occur when the Employee ends
his employment with the Company by reason of his death or
disability as otherwise described in this Agreement.
4.03 Without Cause. Company may not terminate the employment of
Employee except for Cause.
4.04 Disability. If Employee, by reason of illness mental or physical
incapacity or other disability, is unable to perform his regular
duties hereunder (as may be determined by the Board of Directors),
Company shall continue to pay employee's salary at fifty percent of
the balance of the term of this Agreement, provided, however, in
the event Employee recovers from any such illness, mental or
physical incapacity or other disability (as may be determined an
independent physician to which Employee shall make himself
available for examination at the reasonable request of the Board of
Directors), Employee shall immediately resume his regular duties
hereunder at full pay. Any payments to Employee under any
disability insurance or plan maintained by Company shall be applied
against and shall reduce the amount of the salary payable by
Company under this agreement. Any determination by the Board with
respect to Employee's disability must be based on a determination
of competent medical authority or authorities, a copy of which
determination must be delivered to the Employee at the time it is
delivered to the Board. In the event the Employee disagrees with
the determination described in the previous sentence, Employee will
have the right to submit to the Board a determination by a
competent medical authority or authorities of Employee's own
choosing to the effect that the aforesaid determination is
incorrect and that Employee is capable of performing Employee's
duties under this Agreement. If upon receipt of such
determination, the Board wishes to continue to seek arbitration of
this issue, it may do so in accordance with the provisions of the
American Arbitration Association.
4.05 Death. In the event of Employee's death, Company shall continue to
pay Employee's Fixed Salary for the balance of the term of this
Agreement, provided, however, that, if Company is the beneficiary
of life insurance on Employee's life, it shall use the proceeds of
such insurance promptly upon receipt thereof to prepay (in inverse
order of maturity), the Fixed Salary remaining it be paid
discounted to present value using an assumed interest rate of 8%
per annum. Company shall have the right (but not the obligation) to
obtain a life insurance policy on Employee's life. The proceeds of
any such life insurance policy shall be payable to Company.
Employee shall cooperate with Company and use his best efforts in
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all respects in regard to obtaining a life insurance policy,
including, without limitation, undergoing a physical examination
upon reasonable request.
4.05 Change of Control. If during the term of this Agreement, there
shall occur a Change of Control, Employee may terminate his
employment hereunder for Good Reason (as hereinafter defined) at
any time during the term of this Agreement in which case he shall
be entitled to receive a payment equal to 1.5 times Employee's
average annual compensation paid by Company (including bonuses, if
any) during the three years preceding the date of termination (the
Service Payment), provided, however, that such Severance Payment
shall be reduced if and only to the extent necessary to avoid the
imposition of an exercise tax on such Severance Payment under
Section 4999 of the Internal Revenue Code of 1986, as amended. The
Severance Payment shall be payable to Employee on the date of
termination as follows:
For purposes of this Agreement, a ("Change of Control") shall be
deemed to have occurred on the first day on which a Change of
Control, as defined in the Securities Exchange Act of 1934 shall
have occurred. For the purposes of this Agreement, ("Good Reason")
shall mean any of the following (without Employee's express prior
written consent):
(a) The assignment to Employee by Company of duties inconsistent
with Employee's then positions, duties, responsibilities, titles,
or offices of any reduction in his duties or responsibilities or
any removal of Employee from or any failure to re-elect Employee to
any such positions, except in connection with the termination of
Employee's employment for Cause, or disability (as described in
Section 4.03 herein) or as a result of Employee's death or by
termination of employment by Employee other than for Good Reason;
(b) A relocation of company's principal executive offices to a
location outside of the South Florida or Broward County or
Company's requiring Employee to be based anywhere other than the
location at which Employee on the date hereof performs Employee's
duties, except for required travel on Company's business to an
extent substantially consistent with Employee's business travel
obligations on the date hereof or any adverse change in the office
assignment or secretarial and other support accorded to Employee on
the date hereof;
(c) A failure by company to continue in effect any benefit or
compensation plan (including any pension, profit-sharing, bonus,
life, medical, disability and other insurance and employee benefit
plans and programs) in which Employee with substantially similar
benefits or the taking of any actions by Company which would
adversely affect Employee's participation in or reduce Employee's
benefits under any such plans;
(d) The taking of any action by Company, which would deprive
Employee of any material fringe benefit, enjoyed by Employee on the
date hereof;
(e) The failure by Company to obtain the specific assumption of
this Agreement by any successor or assignee of Company or any
person acquiring substantially all of Company's assets.
5. Confidential Information: Non-Competition
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5.01 Confidential Information. Employee shall not, at any time
during or following termination or expiration of the term of this
Agreement, directly or indirectly, disclose, publish or
appropriate, use or cause permit or induce any person to
appropriate or use, any proprietary secret or confidential
information of Company not in the public domain including, without
limitation, knowledge or information relating to its trade secrets,
business methods, the names or requirements of its customers all of
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which Employee agrees are and will be of great value to Company and
shall at all times be kept confidential. Upon termination or
expiration of this Agreement, Employee shall promptly deliver or
return to Company all materials of a proprietary, secret or
confidential nature relating to Company together with any other
property of Company which may have theretofore been delivered to or
may then be in possession of Employee.
5.02 Non-Competition During the term of this Agreement, Employee shall
not, within North America without the prior written consent of
Company in each instance, directly or indirectly, in any manner or
capacity, whether for himself or any other person and whether as
proprietor, principal owner shareholder, partner, investor,
director, officer, employee representative, distributor,
consultant, independent contractor or otherwise engage or have any
interest in any entity which competes in any business or activity
then conducted or engaged in by Company, provided, however, that
the foregoing shall not be deemed to prohibit Employee from
engaging in the practice of financial consulting, or on any other
business permitted under this Agreement. Notwithstanding the
foregoing, however Employee may at any time own in the aggregate as
a passive but not active investment for more than 20% of the stock
or other equity interest of any publicly traded entity which
engages in a business in direct competition with the Company.
After the termination of the Employee's employment, Employee will
not, directly or indirectly, use such Confidential Information to
compete with the business of the Company, as the business of the
Company may then be constituted, within any state or province.
Such non-competition shall continue for no less than two year from
the date of termination. Further, Employee shall not induce or
attempt to induce any employee of the Company to discontinue his or
her employment with the Company for the purpose of becoming
employed by any competitor of the Company, nor will Employee
initiate discussions, negotiations or contacts with persons known
to be clients or prospective clients of the Company at the time of
the termination.
5.03 Assignment of Intellectual Property. All processes, concepts, data
bases, software developments, hardware developments, clients lists,
brokers' list, trade secrets, inventions, patents, copyrights,
trademarks, service marks, and other intangible rights
(collectively "Intellectual Property") that may be conceived or
developed by Employee, either alone or with others, during the term
of this Agreement, shall be the property of the Company.
5.04 Reasonableness. Employee agrees that each of the provisions of this
section 5 is reasonable and necessary for the protection of
Company; that each such provision is and is intended to be
divisible; that if any such provision (including any sentence,
clause or part) shall be contrary to law or invalid or
unenforceable in any respect in any jurisdiction, or as to any one
or more period of time, areas of business activities, or any part
thereof, the remaining provisions shall not be affected but shall
remain in full force and effect as to the other remaining parts;
and that any invalid or unenforceable provision shall be deemed
without further action on the part of the parties hereto, modified,
amended and limited to the extent necessary to render the same
valid and enforceable in such jurisdiction. Employee further
recognizes and agrees that any violation of any of his agreements
in this Section 5 would cause such damage or injury to company as
would be irreparable and the exact amount of which would be
impossible to ascertain and that, for such reason, among others,
Company shall be entitled, as a matter of course, to injunctive
relief from any court of competent jurisdiction restraining any
further violation. Such right to injunctive relief shall be
cumulative and in addition to, and not in limitation of, all other
rights and remedies which Company may possess.
5.05 Vacation. Employee will be entitled to two weeks paid vacation
during the first twelve months of this Agreement and one additional
week per year for the next two years for a maximum of 4 weeks for
the term of this Agreement.
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5.06 Expenses. The Company will reimburse Employee for Employee's
reasonable out-of-pocket expenses incurred in connection with the
Company's business, including travel expense, food, and lodging
while away from home, subject to such policies as the Company may
from time-to-time reasonably establish for its employees.
5.07 Survival. The provisions if this section 5 shall survive the
expiration or termination of this Agreement for any reason.
5.08 Wavier. The waiver of any breach of any provisions of this
Agreement will not operate or be construed as a waiver of any
subsequent breach of the same or other provision of this Agreement.
6. Miscellaneous.
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6.01 Notices All notices under this Agreement shall be in writing
and shall be deemed to have been dully given if personally
delivered against receipt or if mailed by first class registered or
certified mail; return receipt requested, addressed to Company and
to Employee at their respective addresses set forth in the first
page of this Agreement, or to such other person or address as may
be designated by like notice hereunder. Any such notice shall be
deemed to have been given on the day delivered, if personally
delivered, or on the third day after the date or mailing if mailed.
6.02 Parties in Interest This Agreement shall be binding upon and
insure to the benefit of and be enforceable by the parties hereto
and their respective heirs, legal representatives, successors and,
in the case of Company, assigns, but no other person shall acquire
or have any rights under or by virtue of this Agreement, and the
obligations of Employee under this Agreement may not be assigned or
delegated.
6.03 Governing Law Severabilitv. This Agreement shall be governed
by and construed and enforced in accordance with the laws and
decisions of the State of Florida applicable to contracts made and
to be performed therein without giving effect to the principals of
conflict of laws. In addition to the provisions of 5.03 above, the
invalidity or unenforceability of any other provision of this
Agreement, or the application thereof to any balance of this
Agreement, which shall remain in full force and effect, or the
application thereof to other persons and circumstances.
6.04 Entire Agreements: Modification; Interpretation. This
Agreement contains the entire agreement and understanding between
the parties with respect to the subject matter hereof and
supersedes all prior negotiations and oral understandings, if any.
Neither this Agreement nor any of its provisions may be modified,
amended waived, discharged or terminated, in whole or in part,
except in writing signed by the party to be charged. No waiver of
any such provisions, or any breach of or default under this
Agreement shall be deemed or shall constitute a waiver of any other
provision breach or default. All pronouns and words used in this
Agreement shall be read in the appropriate number and gender, the
masculine, feminine and neuter shall be interchangeably and the
singular shall include the plural and vice versa, as the
circumstances may require.
6.05 Indemnification. Employee shall indemnify and hold Company free and
harmless from and against and shall reimburse it for any and all
claims, liabilities, damages, losses, judgments, costs and expenses
(including reasonable counsel fees and other reasonable
out-of-pocket expenses) arising out of or resulting from any breach
or default of any of his representations, warranties and agreements
in this Agreement. Company shall indemnify and hold Employee free
and harmless from and against and shall reimburse him for any and
all claims, liabilities, damages, losses, judgments, costs and
expenses (including reasonable counsel fees and other reasonable
out-of-pocket expenses) arising out of or resulting from any breach
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or default of any of its representations, warranties and agreements
in this Agreement.
6.06 Survival of Obligations. The parties shall be obligated to perform
the terms of this Agreement after the Employee has terminated with
the Company
6.07 Enforcement. If any portion of this Agreement is determined to be
invalid or unenforceable, that portion of this Agreement will be
adjusted, rather than voided, to achieve the intent of the parties.
In the event that either party requires the use of an attorney to
enforce the terms of this Agreement then the prevailing party shall
be entitled to recover a reasonable attorney's fee and costs.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first above written.
_____/s/Xxxxxxx X. Houraney_____
By: Xxxxxxx X. Xxxxxxxx
____/s/Xxxxxxx X. Dwyer_______
Wallstreet-Review, Inc.
By: Xxxxxxx X. Xxxxx, President
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