Exhibit 10.1
EMPLOYMENT AGREEMENT
by and between
Infinity Capital Group, Inc.,
and
Xxxxxxx X. Xxxxxxx
As of
April 20, 2006
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
the 20th day of April, 2006, by and between Xxxxxxx X. Xxxxxxx ("Employee") and
Infinity Capital Group, Inc. a Maryland corporation with offices at 00 Xxxxx
Xxxxxx, 0xx, Xxx Xxxx, XX 00000 ("ICG" or "Employer"),
Background
WHEREAS, Employer employs, and desires to continue to employ, Employee as
the President and Chief Executive Officer (CEO) of Employer, and
WHEREAS, Employee is willing to continue to be employed as the Employee as
the President and Chief Executive Officer (CEO) in the manner provided for
herein, and to perform the duties of the Employer upon the terms and conditions
herein set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth it is agreed as follows;
Agreements
In consideration of the foregoing and of the mutual promises and other
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. SCOPE OF EMPLOYMENT.
(a) Employer agrees that during the term of this Agreement, Employer shall
employ Employee to perform such duties and exercise such authority as assigned
or delegated to Employer by Employer's Board of Directors, and shall serve as
President and Chief Executive Officer (CEO) of Employee.
(b) Employee hereby accepts such employment and agrees that during the term
of this Agreement that:
(i) Employee shall perform such duties in the foregoing capacity;
(ii) Employee shall devote time and attention, as well as necessary,
to the performance of his duties hereunder and to the affairs of Employer;
(iii) Employee shall comply with all lawful policies which from time
to time may be in effect at Employer or adopted by Employer and conveyed to
Employee; and
(iv) Employee continue in his capacity as a member of the Board of
Directors of Employer.
2. COMPENSATION. As compensation for the services to be performed by Employee
hereunder, Employer agrees to pay to Employee, and Employee agrees to accept,
the following:
(a) Salary. Employee or his assigns shall receive an initial Salary at the
rate of $90,000 per year, less applicable payroll deductions required by law.
Such Salary shall be paid in substantially equal periodic installments according
to Employer's customary payroll practices, but no less frequently than monthly.
The basic compensation provided in this Agreement shall be automatically
adjusted on an annual basis to reflect the increase, if any, in the cost of
living by adding to such basic salary an amount obtained by multiplying the
basic salary by the percentage by which the level of the Consumer Price Index
for all urban consumers for the United States, as reported by the Bureau of
Labor Statistics of the United States Department of Labor has increased over its
level as of the date of the commencement of this Agreement. The adjustment shall
take place on April 1, of each year and the Employer shall begin paying the
adjusted salary on April 20, of each year. The Employee shall be paid additional
compensation from the Employer for the services rendered under this Agreement as
may be determined, from time to time, in the sole discretion of the Board of
Directors. Employer agrees that if additional capital is raised and/ or
Employee's scope of responsibilities and/or time required from Employee are
increased that Salary will be revised upward as agreed by the parties at that
time.
(b) Stock Bonus. None
(c) Incentive Compensation. In addition to Employee's Salary, Employee
shall receive future incentive compensation to be defined later by the Employers
Board of Directors:
(d) Employee Benefits. In addition to Employee's Salary and Incentive
Compensation, Employer shall make available to Employee, during the term hereof:
(i) Participation in any plans from time to time generally offered to
Employer's employees with respect to group health, life, accident and
disability insurance or payment plans or similar employee benefits, if any.
(ii) Three (3) weeks paid annual vacation, as well as paid holidays
and other fringe benefits regularly provided to Employees of Employer; and
(iii) Reimbursement for reasonable and necessary business expenses in
accordance with Employer's policies.
3. TERM AND NATURE OF RELATIONSHIP.
(a) Employment. Employee's employment hereunder shall commence on the
Closing Date and continue for five years through April 20, 2011, subject to
earlier termination as hereinafter provided. Each 12 month period from the
commencement date forward during the term hereof shall be referred to as an
"Annual Period."
(b) Subject to Section 4 below, unless the Board of Directors of Employer
(the "Board") shall determine to the contrary and shall so notify Employee in
writing on or before the end of any Annual Period or unless the Employee
notifies Employer in writing on or before the end of the final Annual Period of
his desire not to renew this Agreement, then at the end of each Annual Period,
the term of this Agreement shall be automatically extended for one (1)
additional Annual Period to be added at the end of the then current term of this
Agreement.
4. TERMINATION.
(a) Termination by Employer with Cause. Employer may terminate Employee's
employment with "cause" as hereafter defined in this Section 4(a) upon 5 days'
written notice. "Cause" for purposes of Sections 4(a) and 4(b) means Employee's:
(i) conviction of, or indictment for, criminal negligence or criminal acts in
the work place, (ii) violation of Employer policies or procedures that have been
made known to Employee provided Employee has not cured such violation within 10
business days after receiving written notice of violation from Employer, (iii)
material breach of the covenants of this Agreement, provided that Employee has
not cured such breach within 10 days after receiving written notice from
Employer, (iv) the appropriation (or attempted appropriation) of a material
business opportunity of Employer, including attempting to secure or securing any
profit in connection with any transaction entered into on behalf of the
Employer, and (v) the misappropriation (or attempted misappropriation) of any of
Employer's funds or property. In the event that Employee is terminated with
"cause," Employee shall be entitled to (a) the payment of Employee's
then-current accrued, unpaid Salary and accrued, unused vacation which have
accrued, each prorated through the date of termination.
(b) Termination by Employer Without Cause. Employer may terminate
Employee's employment without "cause" as defined in Section 5(a) upon 30 days'
written notice. In the event that Employee is terminated without "cause,"
Employee shall be provided with (i) payment of Employee's then-current accrued,
unpaid Salary and accrued, unused vacation, each prorated through the date of
termination, and (ii) providing that Employee complies with his obligations
under Sections 6 and 7 herein, payment of severance compensation of a lump-sum
payment equal to 6 months' Salary.
(c) Termination by Employee Without Cause. Employee may terminate
Employee's employment upon 30 days' written notice. In the event that Employee
terminates his employment without "cause" as defined in Section 4(d), Employee
shall be paid his then-current accrued, unpaid Salary and accrued, unused
vacation, prorated through the date of termination.
(d) Termination by Employee With Cause. Employee may terminate his
employment upon 30 days' written notice with "cause" as hereafter defined in
this Section 4(d). "Cause" for purposes of Section 4(c) and (d) means Employer's
material breach of the covenants of this Agreement or the Stock Purchase
Agreement, provided that Employee does not cure any such breach upon 10 days'
written notice from Employee. In the event that Employee terminates his
employment with "cause," Employee shall be provided with payment of Employee's
then-current accrued, unpaid Salary and accrued, unused vacation, each prorated
through the date of termination and providing that Employee complies with his
obligations under Sections 6 and 7 herein, payment of severance compensation of
a lump-sum payment equal to 6 months' Salary.
(e) Termination Due to Employee's Death or Disability. In the event that
this Agreement and Employee's employment is terminated due to Employee's death
or disability, Employee (or Employee's legal representatives) shall be paid (i)
Employee's then-current unpaid Salary and accrued, unused vacation, each
prorated through the date of termination, (ii) an additional 2 months' Salary.
For purposes of this Agreement, the term "disability" shall mean the mental or
physical inability to perform satisfactorily Employee's regular full-time
duties, with or without a reasonable accommodation, as determined by Employee's
physician, for 120 days, whether or not consecutive, in any 24-month period.
5. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE. Employee hereby represents and
warrants to Employer that Employee is not now under any obligation to any
person, firm or corporation, and has no other interest, which is inconsistent or
in conflict with this Agreement, or which would prevent, limit or impair, in any
way, Employee's performance of any of the obligations set forth in this
Agreement.
6. EMPLOYER COVENANTS
(a) Directors & Officers Insurance. Employer shall maintain directors and
officers insurance in an amount typical for companies of its size and nature of
its business.
(b) Director & Officer Indemnification. Employer shall indemnify Employee
for actions as a director and an employee except for any action of willful fraud
by Employee.
7. NON-DISCLOSURE COVENANT.
(a) Confidential Information Defined. "Confidential Information," as used
in this Agreement, shall mean any and all:
(i) trade secrets concerning the business and affairs of Employer,
product specifications, data, know-how, formulae, compositions, processes,
designs, sketches, photographs, graphs, drawings, samples, inventions and
ideas, past, current and planned research and development, current and
planned manufacturing or distribution methods and processes, customer
lists, current and anticipated customer requirements, price lists, market
studies, business plans, computer software and programs (including object
code and source code), computer software and database technologies,
systems, structures and architectures (and related formulae, compositions,
processes, improvements, devices, know-how, inventions, discoveries,
concepts, ideas, designs, methods and information), and any other
information, however documented, that is a trade secret under applicable
state law;
(ii) information concerning the business and affairs of Employer
(which includes historical financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets and
plans, the names and backgrounds of key personnel, personnel training and
techniques and materials), however documented; and
(iii) notes, analysis, compilations, studies, summaries and other
material prepared by or for Employer containing or based, in whole or in
part, on any information included in the foregoing.
(b) Acknowledgments by Employee. Employee acknowledges that (i) as part of
Employee's employment with Employer, both prior to entering into this Agreement
and during the term of this Agreement, Employee has been and will be afforded
access to Confidential Information; (ii) public disclosure of such Confidential
Information could have an adverse effect on Employer and its business; and (iii)
the provisions of this Section 7 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information and to provide Employer
with exclusive ownership of all Employee Inventions.
(c) Agreements of Employee. In consideration of the compensation and
benefits to be paid or provided to Employee by Employer under this Agreement,
Employee covenants as follows:
(i) During and following the Employment Period, Employee will hold in
confidence the Confidential Information and will not disclose it to any
person except with the specific prior written consent of Employer or except
as otherwise expressly permitted by the terms of this Agreement.
(ii) Any trade secrets of Employer shall be accorded all protections
and benefits available under applicable state trade-secret law and any
other applicable law.
(iii) None of the foregoing obligations and restrictions applies to
any part of the Confidential Information that Employee demonstrates was or
became generally available to the public other than as a result of a
disclosure by Employee.
(iv) Employee will not remove from Employer's premises (except to the
extent such removal is for purposes of the performance of Employee's duties
at home or while traveling, or except as otherwise specifically authorized
by Employer) any document, record, notebook, plan, model, component,
device, or computer software or code, whether embodied in a disk or in any
other form (collectively, the "Proprietary Items"). Employee recognizes
that, as between Employer and Employee, all of the Proprietary Items,
whether or not developed by Employee, are the exclusive property of
Employer. Upon termination of this Agreement by either party, or upon the
request of Employer during the Employment Period, Employee will return to
Employer all of the Proprietary Items in Employee's possession or subject
to Employee's control, and Employee shall not retain any copies, abstracts,
sketches, or other physical embodiment of any of the Proprietary Items.
(d) Disputes or Controversies. Employee recognizes that should a dispute or
controversy arising from or relating to this Agreement be submitted for
adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by Employer,
Employee, and their respective attorneys and experts, who will agree, in advance
and in writing, to receive and maintain all such information in secrecy, except
as may be limited by them in writing.
8. NON-INTERFERENCE.
(a) Acknowledgments by Employee. Employee acknowledges that: the provisions
of this Section 8 are reasonable and necessary to protect Employer's business.
(b) Covenants of Employee. In consideration of the acknowledgments by
Employee, and in consideration of the compensation and benefits to be paid or
provided to Employee by Employer, Employee covenants that he will not, directly
or indirectly:
(i) during the period of employment under this Agreement (the
"Employment Period"), except in the course of his employment hereunder, and
during the 2-year period following termination of Employee's employment
under this Agreement (the "Post-Employment Period"), interfere with
existing investment activities of Employer;
(ii)whether for Employee's own account or the account of any other
person (A) at any time during the Employment Period or Post-Employment
Period, without consent of Employer, solicit, employ, or otherwise engage
as an employee, independent contractor, or otherwise, any person who is or
was an employee of Employer at any time during the Employment Period or in
any manner induce or attempt to induce any employee of Employer to
terminate his employment with Employer; or (B) at any time during the
Employment Period or Post-Employment Period, interfere with Employer's
relationship with any person, including any person who at any time during
the Employment Period was an employee, contractor, supplier, or customer of
Employer; or
(iii) at any time during or after the Employment Period, disparage
Employer or any of its shareholders, directors, officers, employees or
agents.
(c) Blue-Penciling. If any covenant in Section 7(b) is held to be
unreasonable, arbitrary, or against public policy, such covenant will be
considered to be divisible with respect to scope, time, and geographic area, and
such lesser scope, time, or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding, and enforceable against
Employee.
(d) Extension of Covenants. The period of time applicable to any covenant
in Section 7(b) will be extended by the duration of any violation by Employee of
such covenant.
9. REMEDIES. Employee acknowledges and agrees that the business of Employer is
highly competitive, and that violation of any of the covenants provided for in
Sections 7 and 8 of this Agreement would cause immediate, harm, loss and damage
to Employer. Accordingly, Employee agrees, without limiting any of the other
remedies available to Employer, that any violation of said covenants, or any of
them, may be enjoined or restrained by any court of competent jurisdiction, and
that any temporary restraining order or emergency, preliminary or final
injunctions may be issued by any court of competent jurisdiction. In the event
any proceedings are commenced by Employer against Employee for any actual or
threatened violation of any of said covenants, the losing party in such
proceedings shall be liable to the prevailing party for all reasonable costs and
expenses of any kind, including reasonable attorneys' fees, which the prevailing
party has incurred in connection with such proceedings.
10. NOTICES. Any notices or communications hereunder will be deemed sufficient
if made in writing and hand-delivered or sent by facsimile or by registered or
certified mail, postage prepaid, return receipt requested, to the following
addresses:
If to Employer: Infinity Capital Group, Inc.
00 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxxx
Fax: 000-000-0000
If to Employee: Xxxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
or to such other address as either party may designate for such party by written
notice to the other given from time to time in the manner herein provided.
11. BINDING EFFECT AND BENEFIT. The provisions hereof shall be binding upon, and
shall inure to the benefit of, Employee, his heirs, executors, and
administrators as well as to Employer, its successors, and assigns; however,
Employee's services under this personal services contract are not assignable.
12. WAIVERS. No delay on the part of any party in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise or
waiver thereof by any party of any right or remedy shall preclude the exercise
or further exercise thereof or the exercise of any other right or remedy.
13. SEVERABILITY AND BLUE-PENCILING. The illegality or invalidity of any
provision or provisions in this Agreement shall not impair, affect or invalidate
any other provisions contained in this Agreement. If any provision or part of
this Agreement is held by a court of competent jurisdiction to be unenforceable
because of the duration of such provision or the geographic area or other scope
covered thereby, the court making such determination shall have the power to
modify such provision, to reduce the duration, area or scope of such provision,
or to delete specific words or phrases therefrom ("blue-penciling") and, in its
reduced or blue-penciled form, such provision shall then be enforceable and
shall be enforced to the fullest extent permitted by law.
14. ENTIRE AGREEMENT. Any and all prior discussions, understandings, and
agreements, whether written or oral, express or implied, held or made between
Employee and Employer are superseded by and merged into this Agreement, which
alone fully and completely expresses the agreement of the parties with regard to
the matters addressed herein, and this Agreement is entered into with no party
relying on any statement or representation made by any other party which is not
contained in this Agreement.
15. AMENDMENTS. This Agreement may be modified, amended or supplemented only by
execution of a written instrument signed by both Employee and Employer.
16. TERMINATION AND SURVIVAL OF PROVISIONS. Termination of employment under this
Agreement shall not be interpreted to terminate other provisions of the
Agreement, including but not limited to the rights and obligations contained in
Sections 6-16.
(signature page follows)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
XXXXXXX X. XXXXXXX INFINITY CAPITAL GROUP, INC.
_______________________ By: _________________________
Name:__________________ Its: ________________________
EMPLOYEE EMPLOYER
