EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the 1st
day of February 2002 by and between Snapshot, Inc., (the company) and Xxxxx X.
Xxxxxxx, Xx.
WHEREAS, the Company desires to employ Xxxxx X. Xxxxxxx Xx. as the Chief
Executive Officer" of the Company;
WHEREAS, Xxxxxxx has agreed to provide such services in accordance with the
terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual promises herein made and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Employment. Company shall employ Xxxxxxx as Executive Vice President during
the term of this Agreement and Xxxxxxx hereby accepts such employment. Xxxxxxx
shall be responsible for all field technicians and production co-ordination and
be responsible for all employees in that department, and shall have such other
duties regarding the Company as shall be determined from time to time by the
Board of Directors of the Company ("Board").
Term of Employment. The term of employment of Xxxxxxx shall be for a term
of two(2)years from the date of this Agreement ("Initial Term") and shall
automatically extend for additional terms of one (1) year(s) ("Renewal Term")
unless this Agreement is terminated as of the last day of the Initial Term or as
of the last day of any Renewal Term upon not less than ninety (90) days prior
written notice by either party to the other, subject to earlier termination as
provided in paragraphs 4, 5, and 6 hereof.
Compensation. Base Salary. Xxxxxxx shall be paid a base salary at the annual
rate of $150,000.00 in the first year of this Agreement; $175,000.00 in the 2nd
year of this Agreement; payable in equal installments semi-monthly ("Initial
Salary"), commencing on the date that the Company completes full funding of the
1,000,000 million share offering of its common stock, which offering is being
made pursuant to the Company's Registration Statement on Form SB-2 to be filed
under the Securities Act of 1933, as amended, with the Securities and Exchange
Commission on or about February 15th 2002 (the "Offering"), or the Company
otherwise increases its paid in capital to such a level during the term of this
Agreement, whichever event occurs first ("Minimum Capitalization"). In the event
that the Company receives less than anticipated from the Offering, Xxxxxxx'x
initial Salary shall be established in an amount which is proportional to the
initial base compensation received by other members of the Company's senior
management.
Cash Bonus. Xxxxxxx shall be paid a cash bonus, if any, within the sole
discretion of the Board of Directors of the Company. Such bonus shall be paid
within a reasonable period of time after the Board of Directors in its
discretion awards such cash bonus, but not to exceed a period of sixty(60) days
from the Company's accounting period during which the cash bonus was declared.
(c) Stock Bonus. Xxxxxxx shall receive a stock bonus, if any, within the sole
discretion of the Board of Directors of the Company. Such stock bonus shall be
implemented within a reasonable period of time after the Board of Directors in
its discretion awards such stock bonus, but not to exceed a period of sixty (60)
days of the end of the Company's accounting period during which the stock bonus
was declared.
(d) Vacation. Xxxxxxx shall be entitled to paid vacation and paid
Federal and state holidays in accordance with the vacation policy of the
Company then in effect, but no less than three (3) weeks of vacation each year.
(e) Other Benefits. Xxxxxxx shall be entitled to participate in all benefit
programs made generally available to other management employees of the Company,
on the same terms and conditions as they are offered to others, including but
not limited to medical, dental, and term life insurance benefits. Xxxxxxx shall
also be provided, at Company expense, with a vehicle for business use, including
all transportation and insurance costs associated therewith.
(f) Severance Payment. In the event of the termination of Xxxxxxx'x employment
hereunder prior to the end of the Initial Term, or any Renewal Term, by the
Company without cause (except termination upon death or total and permanent
disability) including any deemed termination by the Company as set forth in
paragraph 4(b) hereof, the Company shall pay Xxxxxxx a lump-sum severance
benefits equal to six (6) months of base compensation ("Severance Payment"),
which Severance Payment shall be made to Xxxxxxx within forty five (45) days of
the notice of termination of employment.
(g) Stock Option Grants/Employee Stock Ownership Plan. Xxxxxxx shall be entitled
to participate and receive stock option grants from the Company's Employee Stock
Option Plan ("ESOP") during his employment with the Company, at the discretion
of the Board of Directors or committee of the Board responsible to administer
the ESOP, in amounts which are proportional to and at the same time as option
grants are made to other members of the Company's senior management and
according to terms and conditions which are comparable to such ESOP option
grants received by other members of the Company's senior management.
Termination of Employment.
Termination For Cause. The Company may terminate the employment of Xxxxxxx at
any time for cause (as hereinafter defined) upon written notice. The term "for
cause" shall mean the continued failure by Xxxxxxx to substantially perform his
primary duties as Executive Vice President of the Company in a reasonable
professional manner other than due to temporary or total disability or death,
after a written demand for such substantial performance is delivered to Xxxxxxx
by the CEO and/or Board of Directors of the Company; the unauthorized
dissemination of significant trade secrets or other proprietary property of the
Company; the commission of a felony or commission of a crime involving
dishonesty or moral turpitude; the commission of any act or acts of dishonesty
which acts are intended to result or do result directly or indirectly in gain or
personal enrichment of Xxxxxxx or a related person or affiliated company or when
such acts are intended to cause harm or damages to the Company;
the continued use of alcohol so as to have an adverse effect on the
performance of his duties;
the misappropriation or embezzlement of Company assets;
the knowingly furnishing of material false reports or information to the
directors or officers of the Company; or the making of serious disparaging
remarks regarding the Company publicly or to suppliers and/or customers or
potential customers of the Company.
Default. Either party may terminate this Agreement upon the breach of any
material provision of this Agreement by the other party upon thirty (30) days
prior written notice; provided, however, that such termination notice shall not
be effective if the defaulting party corrects such default prior to the date of
termination. Termination by Xxxxxxx of his employment hereunder by reason of the
default of the Company shall be deemed for all purposes of this Agreement a
termination by the Company without cause.
Disability. The Company may terminate the employment of Xxxxxxx under this
Agreement by written notice upon the total and permanent disability of Xxxxxxx.
Total and permanent disability shall mean the inability of Xxxxxxx to
substantially perform the essential functions of his position, with or without
reasonable accommodations, due to sickness or other physical or mental
disability, for sixty days (60) days in any ninety (90) day period or a period
of time which exceeds the time for medical leave provided by law, whichever
period is longer. The Company shall give Xxxxxxx written notice of any
termination hereunder.
Death. The employment of Xxxxx X. Xxxxxxx, Xx. under this Agreement
automatically terminates upon the death of Xxxxx X. Xxxxxxx, Xx.
Expense Reimbursement. Xxxxxxx shall be reimbursed, upon a proper
accounting, for all expenses reasonably incurred in connection with this
employment hereunder, including all reasonable travel and entertainment expenses
pursuant to Company policy.
Confidential Information. During the Initial Term or any Renewal Term of
this Agreement, Xxxxxxx shall not use or disclose to others, without the prior
written consent of the Company, any customer lists, trade secrets, secret
know-how, or other confidential information relative to the business of the
Company obtained by Xxxxxxx in the course of rendering services pursuant to this
Agreement. The obligation of Xxxxxxx with respect to any item of such
information shall terminate if that item of information becomes disclosed in
published literature or otherwise becomes publicly available, provided that such
public disclosure did not result, directly or indirectly, from any act or
omission of Xxxxxxx. Upon the leaving the employ of the Company for any reason,
Xxxxxxx shall continue to be bound by this Paragraph 8 for a period of one (1)
year, and shall not take with him any customer lists, confidential data, or
other documents and instruments which are the property of the Company. All such
data, documents and instruments and all copies thereof shall be surrendered by
Xxxxxxx to the Company on or prior to the termination of his employment.
Notices. All notices, requests, demands and other communications required
or permitted hereunder shall be in writing and shall be deemed to have been
given when delivered by hand or upon delivery to the address set forth below, if
delivered by any other means, addressed to the party and delivered to the
address set forth below or to such other address as such party gives written
notice in substitution therefore:
If for the company:
Snapshot, Inc.
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxx 00000
If for Xxxxxxx
Xxxxx X. Xxxxxxx, Xx.
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxxxxxx, Xxxxxxxxx 00000
Limitations.
Non-Compete. Xxxxxxx agrees that during the term of his employment
with the Company hereunder and for a period of one (1} year thereafter he shall
refrain, directly and indirectly, jointly and severally, from managing,
operating, financing, participating in the ownership, management or operation of
or be employed by, consult with, advise or be otherwise engaged in any manner
with, any business engaged in the providing of services or products competitive
to those provided by the Company in any geographic area in which the Company
operates as of the date that Xxxxxxx leaves the Company's employment. Ownership
of less than 5% Companies whose securities are publicly traded are not
prohibited by this agreement.
Non-solicitation of Customers. Xxxxxxx agrees that during the term of his
employment with the Company hereunder and for a period of one ( 1) year
thereafter he shall not, on his own behalf, or on behalf of another, directly or
indirectly, solicit, contact, call upon, communicate with or attempt to -
communicate with any customer or prospective customer of the Company with a view
to the providing of services or products which are competitive with those that
are marketed or provided by the Company as of the date that Xxxxxxx leaves the
Company's employment, provided that these restrictions shall apply only to
customers or prospects of the Company which have been customers or prospects
with whom Xxxxxxx has had contacts on behalf of the Company.
Non-solicitation of Employees. Xxxxxxx agrees during the term of his
employment hereunder and for a period of one(l) year thereafter, Xxxxxxx will
not directly or indirectly solicit or in any other manner encourage employees of
the Company to leave its employ for an engagement in any capacity with any other
company or entity.
Limitations. Notwithstanding the foregoing, the covenants of Xxxxxxx
pursuant to this paragraph 10 shall terminate upon the termination of Xxxxxxx'x
employment by the Company without cause or by Xxxxxxx by reason of the Company's
breach of its obligations hereunder.
Dispute Resolution. Any dispute regarding the interpretation, breach,
damages or otherwise related to the interpretation or construction of this
Agreement shall be resolved by binding arbitration before one or more
arbitrators appointed by the American Arbitration Association ("AAA") in the
city of Nashville, Tennessee, pursuant to the AAA's Commercial Arbitration
Rules. Either party may institute the action by notice to the AAA and to the
other party. Prior to the filing of any complaint with the AAA, the parties
shall meet and attempt to resolve the dispute. The cost of such arbitration
shall be borne equally by the parties. Any decision or award by said
arbitrator(s) shall be binding on the parties. Notwithstanding the foregoing,
any party hereto may apply to any court for a temporary or permanent injunction
or restraining order to specifically enforce any provision hereof.
Binding Effect. This Agreement shall inure to the benefit of and be binding
upon Xxxxxxx and his estate and personal representatives and upon the Company
and its successors and assigns. This Agreement may not be assigned, pledged or
otherwise hypothecated by Xxxxxxx.
Successors and Assigns. The Company shall cause any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the assets or outstanding securities of the Company, by
written agreement in form and substance reasonably satisfactory to counsel to
Xxxxxxx to perform the obligations of the Company pursuant to this Agreement in
the same manner and to the same extent that the Company would be required to
perform if no such succession had taken place. In the event the Company has a
parent, the parent shall guaranty the obligations of the Company hereunder. The
rights and obligations of the Company under this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company
regardless of whether such successor or assign consents in writing thereto. The
rights of Xxxxxxx hereunder shall inure to the benefit of and be enforceable by
Xxxxxxx and his estate and legal representative.
Severability. In the event of the invalidity, in whole or in part, of any
term or provision of this Agreement, the parties agree that such invalidity
shall not affect the validity of any other term or provision of this Agreement
and that such provision shall be subject to partial enforcement to the extent
permitted under applicable law.
Entire Agreement. This Agreement constitutes the entire understandings of
the parties with respect to the employment of Xxxxxxx by the Company and
supersedes all prior agreements and understandings, oral or written.
Amendments. This Agreement may not be amended or modified except in a
writing signed by both parties.
Waiver. The failure by a party to insist upon strict performance of any
provision hereof shall not constitute a waiver of such provision. All waivers
must be in writing to be enforceable hereunder.
Governing Law. This Agreement shall be made and in all respects shall be
interpreted, construed and governed by and in accordance with the laws of the
State of Nevada, without giving effect to the rules governing conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
SNAPSHOT INC.
Xxxxx X. Xxxxxxx Xx.
By: /s/ Xxxxx Xxxxxxx Xx.
By: Chairman of the Board of Directors of Snapshot, Inc.
Chief Executive Officer
Xxxxx X. Xxxxxxx Xx.
Date: February 1, 2002
Date
