Contract
EXHIBIT 10.1 THIS EMPLOYMENT AGREEMENT is made as of August 1, 2000 (the “Effective Date”), by and between Xxxxxx Industries, Inc., a Nevada corporation (the “Company”) and Xx Xxxxx Park (“Employee”) with reference to the following facts. A. The Company desires to retain Employee as its President and Chief Executive Officer, and Employee desires to serve the Company in such capacity. B. The Company and Employee desire to set forth their agreement relating to the terms and conditions of such employment. |
4.1.1 the supervision of the Company’s day-to-day business operations; |
4.1.2 the development and implementation of the Company’s business plan; |
4.1.3 the negotiation of contractual relationships with the Company’s strategic partners and customers; |
4.1.4 the hiring of such personnel as may be necessary to implement the Company’s business plan; |
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4.1.5 the preparation and implementation of the Company’s capital and operating budgets; and |
4.1.6 such other duties as the Reporting Person or the Board of Directors of the Company (the “Board of Directors”) may specify from time to time. |
Employee shall perform his services under this Agreement within the framework of the Company’s then current business plan and budget, as approved by the Board of Directors, and shall advise and consult with the Board of Directors and the Reporting Person with respect to all significant personnel matters, including hirings and terminations, and capital expenditures. 5.1 Salary. In full consideration for his performance of services under this Agreement and in complete discharge of the Company’s salary obligations hereunder, the Company shall pay to Employee and Employee shall accept from the Company the following (subject to all withholding requirements which may be imposed by applicable federal, state or local authorities): |
5.1.1 for the period from the Effective Date through June 30, 2001, the Company shall have no obligations to pay Employee any salary; |
5.1.2 for the periods on and after June 30, 2001, the Company shall pay Employee a reasonable salary based on the Company’s revenues and cash requirements, which salary shall be mutually acceptable to the Company and employee; |
5.1.3 reimbursement for all reasonable expenses incurred by Employee in connection with the performance of his duties under this Agreement, provided that such expenses are documented in accordance with the Company’s normal policies as in effect from time to time; |
5.1.4 such fringe benefits (such as paid vacations and participation in medical insurance plans and Employee benefit plans) as may be authorized from time to time by the Board of Directors for payment or provision to Employee; provided that in any event Employee shall be entitled to all fringe benefits as are generally available to all executive officers of the Company; and |
5.1.5 such other benefits (if any) as may be authorized from time to time by the Board of Directors for payment or provision to Employee; provided that in any event Employee shall be entitled to all fringe benefits as are generally available to all executive officers of the Company. |
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A. conviction of or confession by Employee to theft, fraud, or embezzlement against the Company; |
B. the incapacity or disability of Employee, as a result of which Employee is prevented from fully performing Employee’s services under this Agreement for a consecutive period of sixty (60) days or longer or an aggregate of ninety (90) days or more during any twelve-month period; |
C. Employee’s refusal or failure, after specific notice and demand by the Company, to diligently perform services for the Company as required by Section 4.1 hereof; |
D. Employee’s breach or violation of any material policy or regulation of the Company, including, but not limited to, any policy or regulation dealing with sexual harassment, discrimination based on age, sex, race, religion or other protected category, illicit drugs, and environmental protection matters; |
E. Employee’s taking of any action which requires the prior approval of the Reporting Person without such approval; and |
F. Employee breach of or failure to perform any of his obligations under the Invention Agreement, as that term is defined in Section 10.2, below. |
If the Company proposes to terminate this Agreement under clause A. or clause B. above, this Agreement shall terminate automatically at the end of such 30-day period and the Company shall have no further obligation to give Employee any further notice of termination. If the Company proposes to terminate this Agreement under any of clause C., D., E., or F., above, this Agreement shall terminate automatically at the end of such 30-day period and the Company shall have no further obligation to give Employee any further notice of termination unless Employee has cured, to the reasonable satisfaction of the Company, during such 30-day period the alleged cause of termination and the Company provides Employee written notice of its acceptance of such cure. Notwithstanding anything in this Agreement to the contrary, if the Company proposes to terminate this Agreement for cause under this Section 7.1.2, so long as the Company provides Employee a reasonable opportunity to cure any alleged cause, if the Company is required to do so, the Company may terminate this Agreement as of the date of the initial notice of termination and pay Employee an additional thirty (30) day’s of severance compensation. 3 |
7.2.1 For Cause. Employee may terminate this Agreement for “cause” by giving the Company thirty (30) days prior written notice of termination. For purposes of this Section 7.2.1, the term “cause” shall mean and include the Company’s breach or failure to perform any of its material obligations under this Agreement. If Employee proposes to terminate this Agreement under this Section 7.2.1, this Agreement shall terminate automatically at the end of such 30-day period unless the Company has cured, to the reasonable satisfaction of Employee, its alleged breach or failure to perform during such 30-day period and Employee provides the Company written notice of its acceptance of such cure. |
7.2.2 Salary Determination. If, on or before August 1, 2001, the Company and Employee do not agree on the salary to be paid to Employee for the period on and after July 1, 2001, Employee may terminate this Agreement by giving the Company thirty (30) days prior written notice of termination. If Employee proposes to terminate this Agreement under this Section 7.2.2, this Agreement shall terminate automatically at the end of such 30-day period unless the Company and Employee have agreed on the applicable salary during such 30-day period. |
A. the Company reduces Employee’s salary payable under Section 5.1.1 above from that in effect on the Effective Date (or from any higher salary that was put in effect as of any subsequent date); |
B. the Company discontinues providing to Employee any material fringe benefit or other benefit described in either of Sections 5.1.4 and 5.1.5 above, and fails to provide Employee with substantially equivalent alternative benefits; provided that Employee shall not have “Good Reason“on the occurrence of any event described in this clause B if the discontinuation of the fringe or other benefit is as a result of the discontinuation of such benefit for all Employee officers of the Company; |
C. a material change occurs in the functions, duties, responsibilities, reporting relationship, location of work, and/or title of Employee which is not agreed to by Employee; provided that none of (i) a change in the identity or title of the Reporting Person, or (ii) a change in Employee’s title following the merger or consolidation of the Company with or into any other corporation or entity or (iii) a temporary changing any of the matters described in this clause C for a period of no more than sixty (60) consecutive days as a result of Employee’s incapacity or disability shall by itself constitute an event described in this clause C; or |
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D. the Company requires Employee to perform any function or duty, the performance of which would violate any material statute or public policy the violation of which could expose Employee to personal liability or which would have a material adverse effect on Employee’s business reputation. |
7.2.4 Change of Control. For purposes of Section 7.2.3 above, the term “Change of Control” means the occurrence of any of the following events: |
A. an acquisition (other than directly from the Company) of any voting securities of the Company by any person or group of affiliated or related person, immediately after which such person or group of persons has beneficial ownership (within the meaning of the Securities Exchange Act of 1934) of fifty percent (50%) or more of the combined voting power of the Company’s then outstanding voting securities; provided that this Section shall not apply to an acquisition of voting securities by ET or any employee benefit plan or trust maintained by or for the benefit of the Company or its employees; |
B. a merger, consolidation or reorganization involving the Company, unless all of the following conditions are satisfied: |
C. the shareholders of the Company, immediately before such transaction, own, directly or indirectly, immediately after such transaction, in substantially the same proportion as their ownership of the voting securities of the Company immediately before such transaction, at least fifty-one percent (51%) of the outstanding voting securities of (a) the corporation resulting from such transaction (the “Surviving Corporation”) or (b) the immediate parent corporation of the Surviving Corporation; and |
D. the individuals who were Directors of the Company at the time of the execution of the agreement providing for such transaction constitute, immediately after the transaction, at least a majority of the members of the board of directors of (a) the Surviving Corporation or (b) a corporation beneficially owning, directly or indirectly, a majority of the voting securities of the Surviving Corporation; or |
E. a complete liquidation or dissolution of the Company; or |
F. the sale or other disposition of all or substantially all of the Company’s assets to any person other than a sale or transfer of all or any portion of the Company’s assets to another corporation in which the Company owns, immediately after such sale or transfer, eighty percent (80%) or more of the outstanding voting securities of such corporation. |
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8.1.1 severance compensation in an amount equal to six (6) months’ salary payable at the rate then applicable under Section 5.1.1 above; |
8.1.2 all premiums payable with respect to the continuation of the participation by Employee and his dependents in the Company’s medical insurance plan for the period equal to the greater of (i) twelve (12) months after the date of termination and (ii) the period through the date on which Employee and his dependents become eligible to participate in the medical insurance plan of any employer other than the Company; |
The Company shall pay the severance compensation payable to Employee under clause A. above in the same monthly or other periodic installments in which the Company paid Employee his salary under this Agreement. |
8.2.1 severance compensation in an amount equal to twelve (12) months’ salary payable at the rate then applicable under Section 5.1.1 above; and |
8.2.2 all premiums payable with respect to the continuation of the participation by Employee and his dependents in the Company’s medical insurance plan for the period equal to the greater of (i) twelve (12) months after the date of termination and (ii) the period through the date on which Employee and his dependents become eligible to participate in the medical insurance plan of any employer other than the Company. |
The Company shall pay the severance compensation payable to Employee under clause A. above in the same monthly or other periodic installments in which the Company paid Employee his salary under this Agreement. 6 |
10.2 Ownership of Confidential Information. Employee hereby acknowledges that all Confidential Information is the property of the Company. 7 |
12.12 Attorney’s Fees. In any arbitration, suit or other action between the parties seeking enforcement of any of the terms and provisions of this Agreement, the prevailing party in such arbitration, suit or other action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, not limited to taxable costs, and a reasonable attorney’s fees. (Signatures appear on the following page.) IN WITNESS WHEREOF, the parties have entered into this Employment Agreement as of the day and year first above written. |
“Company” XXXXXX INDUSTRIES, INC. By: /s/ Min-Xxxxx Xxxx ———————————— Min-Xxxxx Xxxx, Secretary |
“Employee” /s/ Xx Xxxxx Park ———————————— Xx Xxxxx Park |
Address for Notice: _______________________________________ |