EXHIBIT 4.10
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, made and entered into as of the 2lst day of
November 2002, by and between Dtomi, Inc., a Nevada, corporation (the
"Corporation")" and Xx. Xxxx Xxxxxx, an individual residing in Clearwater
Florida (the "Executive").
WITNESSETH THAT:
WHEREAS, the Corporation desires to employ the Executive in the capacity
hereinafter -stated, and the Executive desires to enter into the employ of the
Corporation in such capacity for the period and on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, it is hereby covenanted and agreed by the Corporation and the
Executive as follows:
1. Employment Period. The Corporation hereby agrees to employ the Executive as
its President and Chief Executive Officer and the Executive, in such capacities,
agrees to provide services to the Corporation for the period beginning on the
date first above written November 21, 2002 (the "Commencement Date") and ending
on the third anniversary of the Commencement Date, November- 20, 2005 (the
"Employment Period").
2. Performance of Duties. The Executive agrees that during the employment
Period, while he is employed by the Corporation, he shall devote his best
efforts, energies and talents to serving in the capacities of President and-
Chief Executive Officer of the Corporation in the best interests of the
Corporation, and to the duties assigned to him by the Board of Directors
faithfully, efficiently and in a professional manner; provided that the
Executive shall not, without his consent be assigned duties that would be
inconsistent with those of the President and Chief Executive Officer of the
Corporation. It is understood and hereby acknowledged that Executive is holds
other executive positions in both public and private companies.
3. Compensation. Subject to the terms and conditions of this Agreement, during
the Employment Period, the Corporation shall compensate the Executive for his
services as follows:
(a) Executive shall receive, for each twelve (12) month period beginning on
the Commencement Date and each anniversary thereof, a rate of salary that is not
less than One Hundred and Twenty Thousand Dollars ($120,000) per year, payable
in substantially equal or monthly or more frequent installments. The Corporation
shall also provide an additional Ten Thousand Dollars ($10,000) yearly for
executive accountable expenses, payable at least monthly to Executive. During
the Employment Period the Executive's salary rate shall be reviewed by the Board
of Directors on or before each anniversary of the Commencement Date to determine
whether an increase in his rate of compensation is appropriate. Executive agrees
however for the first twelve (12) months of employment to accept the rate of
sa1ary of Seventy-Five Thousand Dollars ($75,000) that will be reviewed
quarterly for an increase by the Board of Directors.
(b) Executive shall receive an option to acquire, as of the Commencement
Date, One Million, Eight Hundred Thirty-One Thousand Seven Hundred Ninety-Eight
(1,831,798) shares of the Corporation's stock at an exercise price of one half
of one cent ($0.005) options which shall be determined by the Board of
Directors. The one half of one cent ($0.005) options shall be effective
immediately and shall be registered immediately. The options must be exercised
within five (5) years of the date this Agreement was made and entered into, or
the duration to exercise said options way be extended beyond five (5) years if-
both Corporation and Executive agree pursuant Section 11 of this Agreement.
(c) Executive shall be eligible to receive incentive compensation payments,
which, in the aggregate, are not loss than the highest salaried payments
provided to any other senior executives of the Corporation. The Corporation
intends to establish an incentive compensation program is established, payments
there under shall be made to the Executive as if such program was in effect as
of the Commencement Date based on the Executive's Performance or other relevant
factors from the Commencement Date.
(d) Executive shall be a participant in the following executive benefit
plans maintained by the Corporation on substantially the same terms and
conditions as other senior executives of the Corporation: group life medica1,
long-term disability, thrift, pension, vacation, sick days educational
assistance vehicle allowance attendance awards and annual medical physical.
(e) Executive shall entitled to receive the following perquisites which
shall not be less favorable to the Executive than the perquisites provided by
the Corporation immediately prior to the Employment Period: reimbursement of
family medical insurance of Six Hundred Dollars ($600.00) per month,
reimbursement of vehicle allowance of Five Hundred Dollars ($500.00) per month
and reimbursement of One Hundred Dollars {$100.00) a month for cellular phone
expenses, Executive acknowledges that company does not have health benefit plan
at the current time, and will only be entitled to the Six Hundred Dollars
{$600.00) per month reimbursement if he is left without health benefits
elsewhere.
(f) Executive shall be reimbursed by the Company for all reasonable
business, promotional, travel and entertainment expenses incurred or paid by him
during the employment period in the performance of his services under this
Agreement provided that the Executive furnishes to the Company appropriate
documentation in a timely fashion required by the Internal Revenue Code in
connection with such expenses and shall furnish such other documentation and
accounting as the Company may from time to time reasonable request.
(g) It is acknowledged that the Corporation intends to utilize an
employee leasing or payroll company. This employment agreement shall survive
any and all termination of any employee leasing and/or payroll company that
Corporation engages now or in the future. The Executive shall not give up any
rights or entitlements under any such employee leasing and/or payroll
agreements.
4. Compensation Due Upon Termination. Except as otherwise provided under the
executive benefit plans maintained by the Corporation in which the Executive
participates in accordance with subparagraph 3(d), the Executive's right to
compensation for periods after the date his employment with the Corporation
terminates shall be determined in accordance with the following:
(a) Discharge Without Cause. In the event the Corporation terminates the
Executive's employment under this Agreement without cause, the Executive shall
be entitled to receive:
(i) all payment of his salary (as of the date of termination) in
accordance with the provisions of subparagraph 3(a) for the remainder of the
Employment Period; and
(ii) payment of any incentive compensation payments that otherwise would
have been payable to the Executive under subparagraph 3(c) through the date his
employment with the Corporation terminates.
(b) Voluntary Resignation. The Corporation shall have no obligation to make
payment to the Executive in accordance with the provision of paragraph 3 for
periods after the date on which the Executive's employment with the Corporation
terminates due to the Executive's voluntary resignation.
(c) Discharge for Cause. The Corporation shall have no obligation to make
payments to the Executive in accordance with the provisions of paragraph 3 for
periods after the Executive's employment with the Corporation terminated on
account of the Executive's discharge or cause. For purpose of this Section 4,
the Executive shall be considered discharged for "cause" if he is discharged by
the Corporation on account of the occurrence of one or more of the following
events:
- the Executive becomes habitually addicted to drugs or alcohol;
- the Executive disclosed confidential information n violation of paragraph
5;
- the Corporation is directed by regulatory or governmental authorities to
terminate the employment of the Executive.
- the Executive flagrantly disregards his duties under this Agreement after
(A) notice has been given to the Executive by the Board of Directors of the
Corporation that it views the Executive to be flagrantly disregarding his duties
under this Agreement and (B) the Executive has been given a period of ten (10)
days after such notice to cure such misconduct (provided that no such notice or
cure period shall be required if Executive's disregard of his duties has
materially and adversely affect the Corporation);
- the Executive commits an act of fraud against the Corporation or violates
a duty of loyalty to the Corporation or violates paragraph 2.
(d) Disability. The Corporation shall have no obligation to make payments
to the Executive in accordance with the provisions of paragraph 3 for periods
after the date the Executive's employment with the Corporation terminations on
account of disability. For purposes of this subparagraph 4(d), determination of
whether the Executive is disabled shall be determined in accordance with the
Corporation's long term disability plan and applicable law, except payments due
and owing as of such date.
5. Confidential information. Except as may be required by the lawful order
of a court or agency of competent jurisdiction, the Executive agrees to keep
secret and confidential indefinitely all non-public information concerning the
Corporation and its affiliates that was acquired by or disclosed to the
Executive during the course of his employment by the Corporation or any of its
affiliates, including information relating to customers (including, without
limitation, credit history, repayment history, financial information and
financial statements), cost, and operations, financial data and plans, whether
past, current or planned and not to disclose the same, either directly or
indirectly, to any other person, firm or business entity or to use it in any
way; provided, however, that the provisions of this paragraph 5 shall not apply
to information that is in the public domain or that was disclosed to the
Executive by independent third parties who were not bound by an obligation of
confidentiality. The Executive further agrees that he shall not make any
statement or disclosure that (a) would be prohibited by applicable federal or
state laws or (b) is intended to reasonably likely to be detrimental to the
Corporation or any of its subsidiaries or affiliates.
6. Successors. This Agreement shall be binding on, and inure to the benefit
of the Corporation and its successors and assigns and any person acquiring,
whether by merger, consolidation ,purchase of assets or otherwise, all or
substantially all of the Corporation's assets and business.
7. Nonalienation. The interest of the Executive under this Agreement are
not subject to the claims of his creditors, other than the Corporation, and may
not otherwise be voluntarily or involuntarily assigned, alienated or encumbered
except to the Executive's estate upon his death.
8. Remedies. The Executive acknowledges that the Corporation would be
irreparably injured by a violation of paragraphs 5, and agrees that the
Corporation shall be entitled to an injunction restraining the Executive from
any actual or threatened breach of paragraph 5, or to any other appropriate
equitable remedy without bond or other security being required.
9. Waiver of Breach. The waiver by either the Corporation or the Executive
of a breach of any provision of the Agreement shall not operate as or be deemed
a waiver of any subsequent breach by either the Corporation or the Executive.
10. Notice. Any notice to be given hereunder by a party hereto shall be in
writing and shall be deemed to been given when received or, when deposited in
the U. S. mail, certified or registered mail, postage prepaid:
(a) to the Executive addressed as follows:
Xx. Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
(f) to the Corporation addressed as follows:
Dtomi, Inc.
000 0xx Xxxxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx 00000
11. Amendment. This Agreement may be amended or cancelled by mutual agreement of
the parties in writing without the consent of any other person, other than the
parties thereto (and the Executive's estate upon his death), shall have any
rights under or interest in this Agreement or the subject matter hereof.
12. Applicable Law. The provisions of this Agreement shall be construed in
accordance with the internal laws of the State of Florida.
13. Termination. All the provisions of this Agreement shall terminate after the
expiration of the Employment Period.
IN WITNESS WHEREOF, the Executive and the Corporation have executed this
employment agreement as of the day and year first above written.
Corporation:
DTOMI, INC.,
BY: _________________________________
Name:
Title: Director
Executive:
/s/ JohnThatch
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Xxxx Xxxxxx
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