EMPLOYMENT AGREEMENT
AGREEMENT made as of the 10th 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.
Xxxxx ("Employee:), residing at 0000 XX 00xx Xxx, Xxx # 000, Xxxxx Xxxxxxx, XX
00000.
WHEREAS, Employee will be employed as CEO, President, and Director of Company.
WHEREAS, Company and Employee, wish to enter into an Employment
Agreement pursuant to which Employee will become CEO, President, and Director
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]
/s/ RDM
2. Duties
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2.01 General. Employee shall act as CEO, President and Director of Company
and shall perform such executive duties as may from time to time be
assigned to him by Companies Board of Directors; consistent with the
duties associated with those positions, including the authority to
direct and manage the day-to-day operations and affairs of the Company,
the authority to hire and discharge employees of the Company, to
contact with third parties to the extent that such is consistent with
the mission of the Company, raise and expend such funds as are
consistent with the budget established by the board. Employee shall
be subject to the supervision and direction of the board of directors.
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.
1 /s/ RDM
Exhibit 99.2
3. Compensation and Related Matters.
---------------------------------
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 October 10, 2000 to December 31, 2000 -$10,000
per month
For the period of January 1, 2001 to December 31, 2001 - $20,000
per month
For the period of January 1, 2002 to December 31, 2002 - $25,000
per month
For the period of January 1, 2003 to December 31, 2003 - $30,000
per month
For the period of January 1, 2004 to December 31, 2004 - $35,000
per month
For the period of January 1, 2005 to December 31, 2005 - $40,000
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 $500,000 or greater.
3.02 Additional Compensation
-----------------------
As compensation for Employee's services, the Company shall pay Employee
a salary (the "Fixed Salary") at the following rates in equal monthly
(or more frequent) installments less appropriate payroll deductions as
are required by law plus stock options as listed:
1. 200,000 options @$.01 upon signing of contract.
2. 250,000 options @$1.00 once company reaches and
maintains a closing price of $1.00 or higher for 10
consecutive trading days.
3. 250,000 options @$3.00 once company has successfully
obtained listing on the American Stock Exchange.
(a) Cash Bonuses. Company shall pay employee a cash bonus (the Cash
bonus) equal to 1.5% of the amount, if any, by which Company's Post-Tax
Profits exceed $1 million dollars (as hereinafter defined) for each fiscal
year, commencing with the fiscal year ending with December 31, 2000 through
and including the fiscal year ending December 31, 2005. For purposes of
this Agreement, the term "Post-Tax Profits" shall mean Company's Income
after Income Taxes and Extraordinary Item(s) set forth in Company's
Consolidated Statement of Operations included in Company's Annual Report on
Form 1O-K. In the event of termination of employment, Employee's right to
receive Cash Bonuses shall terminate as of the effective date of such
termination, provided, however, Employee shall receive a Cash Bonus, if
earned but unpaid, for the last fiscal year ending prior to the effective
date of such termination.
(b) 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
2 /s/ RDM
Exhibit 99.2
vouchers and other supporting data including a vehicle allowance
not to exceed $1000 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.
4. Termination for cause: Disability, Death
----------------------
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
3 /s/ RDM
Exhibit 99.2
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 all respects in regard to obtaining
a life insurance policy, including, without limitation, undergoing a
physical examination upon reasonable request.
4.06 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 2.99 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;
4 /s/ RDM
Exhibit 99.2
(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
-----------------------------------------
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 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
5 /s/ RDM
Exhibit 99.2
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.
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
6 /s/ RDM
Exhibit 99.2
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 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. Xxxxx
________________________________
By: Xxxxxxx X. Xxxxx
/s/Xxxxxxx X. Xxxxx
________________________________
Beryllium International, Inc.
By: Xxxxxxx Xxxxx, President
7 /s/ RDM
Exhibit 99.2
