EXHIBIT 10.1
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EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is dated as of October 1, 2000
between RF Technologies, Inc., also to be known as QuadraComm, Inc. (RFTI), a
public Colorado corporation with its headquarters in Tampa, Florida, both
hereinafter referred to as the "Company", and Xxxxxx X. Xxxxx ("Employee").
WHEREAS, the Company is presently in the business of developing,
marketing, and/or distributing a variety of RF application products and services
for domestic and international telecommunications ; and
WHEREAS, Employee desires to become employed by the Company as
President and a Director for the Company and the Company desire to employ
Employee in such capacities pursuant to the terms hereof; and
WHEREAS, in such capacity, Employee has agreed to be responsible for
all executive operations of the Company as more fully provided herein, all
subject to the direction of the Board of Directors of the Company;
NOW, THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable consideration, the adequacy of
which the parties hereby acknowledge, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Employment of Employee. The Company hereby employs Employee,
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and Employee hereby accepts employment, as President of the Company upon the
terms and conditions of this Agreement.
2. Term of Agreement. This Agreement shall remain in force and
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effect for a four- year (4) period commencing on October 1, 2000 (the
"Employment Date") and ending at the close of business on September 30, 2004
unless sooner terminated pursuant to paragraph 9 below (the "Initial Term"). At
the end of the Initial Term, the Company may, in its sole discretion, extend the
term of this Agreement for up to three additional successive one-year periods
(each such one-year period referred to herein as a "Renewal Term") by providing
written notice to the Employee at least ninety (90) days prior to the expiration
of the Initial Term or of any Renewal Term, as applicable. (The Initial Term
together with any Renewal Term(s) granted by the Company is sometimes
collectively referred to herein as the "Term").
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Employee Company
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3. Employee's Duties. During the Term of this Agreement, Employee
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shall serve as President for the Company, and be responsible for the executive
and general management of all of the activities of the Company. All activities,
including, but not limited to the foregoing activities, shall be conducted by
Employee under the direction of and subject to the control of the Company Board
of Directors.
4. Loyalty to the Company. Employee shall devote his full time,
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attention and efforts to the business and affairs of the Company and to the
performance of his duties and responsibilities during the Term hereof. Employee
shall owe his full loyalty to the Company and shall not engage in any activity
or enter into any transaction that would or might constitute a conflict of
interest, or the appearance thereof, with the duties and loyalties owed by him
to the Company. Without limiting the foregoing, Employee agrees that during the
Term of this Agreement, Employee will not engage in any business activity other
than those duties described in this Agreement, whether or not such business is
pursued for gain or profit, or other pecuniary advantage. However, it is
understood by the Parties that Employee is currently assisting existing prepaid
cellular participants in creating technology and business solutions which
benefit those clients and will likely benefit the Company in some measurable
manner in the near future. Such assistance is acceptable within the terms of
this Agreement as long as it is performed on a non-interference basis with
Company business and does not negatively impact the Company's position, and
ability to compete, in the prepaid cellular marketplace. In addition, Employee
may invest his assets in such form or manner as will not require his services in
the operation of the affairs of the companies in which such investments are
made, provided that such investments are not wholly or in part based upon
confidential information obtained in his employment with the Company. If any
such investment is contemplated to be made with a competitor of the Company, the
specific nature and amount of the investment shall be disclosed to the Company
in writing prior to such investment and such investment may not be made without
the prior approval in writing of the Board of Directors of the Company. It is
also acceptable for Employee to serve on the Board of Directors or as Trustee to
outside companies as long as there is no competitive conflict of interest in the
association.
5. Salary.
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(a) Base Salary. In consideration of the performance by the
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Employee of the duties and obligations contained in this Agreement, the Company
shall pay Employee an initial gross salary of $12,000 per month, payable in
accordance with the normal payroll practices of the Company. Any amounts shall
be prorated for periods less than a month. Salary payments shall be subject to
withholding and other applicable taxes and deductions. The aforementioned
initial salary will be subject to review by the Company, which may decide, in
their sole discretion, to raise such salary. Such review shall occur at least
annually, on or about each Employment Date anniversary.
6. Bonus Eligibility
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(a) Signing Bonus. Employee shall receive 275,000 shares of
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Rule 144 restricted Common Stock of Company upon the signing of this employment
contract.
(b) Stock Options. In addition to the base salary described
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in paragraph 5 above, Employee shall be eligible to receive options to purchase
common stock of the Company at least annually based upon an Executive Management
Stock Option Program to be developed and approved by
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Employee Company
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Company Management and the Board of Directors at their earliest convenience. It
is anticipated that such Program will remain in force during the period of
employment of Employee, and shall be based upon the individual job performance
of Employee and upon the financial performance of the consolidated Company.
Earned options shall fully vest upon the date of each individual grant and shall
expire, if not exercised, with five (5) years of the date of the grant.
(c) Additional Bonus. The Employee may be eligible for an
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additional Performance bonus under an Executive Compensation Program to be
developed and approved by Management and the Board of Directors at their
earliest convenience. The calculation of earned bonus will likely be based upon
the Company's financial performance against certain performance criteria to be
determined during the structuring of the Program. The threshold for enacting the
bonus pool for a specific period shall be Company attainment of eighty percent
(80%) or more performance against the applicable goals generated and approved.
Said goals and objectives will be officially revised for bonus calculation
purposes, as required by changes in business events and forecasts, only as
approved by the Board of Directors of the Company.
Each earned bonus will be calculated from the following sliding scale:
Level of Company goal performance 80% 100% 120%
Payout % of Employee's annual salary 20% 30% 40%
If goals are achieved, and a bonus is earned for a period, Employee shall have
the option of receiving the bonus in cash or in Common Stock in the Company.
If stock is chosen, the number of shares to be issued will be calculated using a
formula to be developed during the program creation.
7. Benefits. Employee shall be entitled to receive benefits
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made available to other Executive Officers within the Company consistent with
the policies and practices of the Company effected from time to time. These
benefits are anticipated to include health, dental, and vision insurance
benefits, term life insurance at annual salary multiples to be determined, short
and long-term disability, one month annual vacation, holiday pay consistent with
Company standard practices, and an Executive Deferred Compensation Program to be
developed. The Company will fund and maintain a Directors and Officers Liability
Indemnity Insurance policy to adequately protect Employee from inappropriate
liability and expense incurred through legal actions precipitated during normal
course of conducting Company business. The Company will provide Employee with a
leased vehicle of Employee's choice, or a vehicle allowance if preferred by
Employee, but said vehicle must be appropriate for executive business use, and
must carry a monthly lease rate/allowance rate not to exceed $600.00 per month.
If Employee chooses the lease option, the Company will maintain insurance
coverage at standard Company values, and will provide coverage for normal
maintenance and operating expenses.
8. Business Expenses. Employee may incur expenses in connection
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with the performance of his duties as President or Director for the Company,
including expenses for business travel, meals, lodging, customer entertainment
and similar items. The Company will reimburse Employee for all such customary,
reasonable and necessary expenses upon Employee's periodic presentation of an
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Employee Company
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itemized and documented account of such expenditures and in accordance with the
Company's expense reimbursement policies for Travel and Entertainment, which are
in effect al the time the expense is incurred.
9. Termination.
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(a) Termination by the Company.
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i. For Cause. The Company may terminate the Employee's
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employment with the Company at any time for "cause," which termination shall be
effective immediately upon written notice to Employee. The Company shall pay
base salary through the date of termination and have no further obligations to
Employee as of the date of termination. For purposes of this Agreement, "cause"
is defined to mean such act, omission or course of conduct which the Companies
determine is (1) a willful violation of any of the provisions of this Agreement;
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(2) willful misconduct which is demonstrably injurious to the Company,
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monetarily or otherwise; (3) the commission of a felony involving the Company
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and/or its business and suggesting moral turpitude on the part of the Employee,
whether or not the Employee ultimately is indicted, arraigned or convicted; (4)
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improper or unethical business activity, including, but not limited to, the
Employee's fraud, misappropriation, embezzlement, dishonesty, unlawful
harassment, or gross negligence, (5) lack of sufficient effort or willful
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neglect in the performance of his duties; or (6) inability to perform the
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essential functions of the job, even with reasonable accommodation by the
Company, due to disability of thirty days or more.
ii. Without Cause. The Company may terminate the
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Employee's employment with the Company without cause, effective upon thirty(30)
days written notice to Employee. Employee shall be entitled to (a) continuation
of compensation as provided in Paragraph 5,6 & 7 through the original term of
Employment Agreement. In such event, Employee, if requested by the Company,
shall continue to render his services and shall be paid his regular salary and
receive his normal benefits up to the effective date of termination. All stock
options in Employment Agreement shall be considered vested at the time of actual
termination.
(b) Termination by Employee. Employee may terminate his
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employment under this Agreement at any time upon thirty(30) days notice to the
Company. In such event, Employee, if requested by the Company, shall continue
to render his services and shall be paid his regular salary and receive his
normal benefits only up to the effective date of termination. The Company's
personnel obligations to the Employee shall cease as of the effective date of
termination.
(c) Termination Upon Death. This Agreement shall terminate
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automatically upon the death of Employee during the Term hereof, and all salary
payments shall immediately cease upon death.
10. Restrictive Covenants.
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(a) Covenant Not To Compete. Employee acknowledges that as
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President, Employee shall be engaged, without limitation, in performing the
other duties set forth in Paragraph 3 herein. Employee also acknowledges that
the Company and its affiliates are currently engaged in domestic and
international telecommunication products and services. Employee agrees that,
during the term of his employment and for a period of one year after the
expiration or termination of his employment with the Company, whether such
termination is voluntary or involuntary, with or without cause, he shall not,
either directly or indirectly, for himself or through, on behalf of, or in
conjunction with any other
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Employee Company
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person or legal entity, perform the same services for any other business engaged
in providing directly competitive services.
(b) Non-Interference with Employees. During the term of
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Employee's employment and for a period of one year after the expiration or
termination of his employment with the Company, whether such termination is
voluntary or involuntary, with or without cause, Employee will not, directly or
indirectly, on his own behalf or on behalf of or in conjunction with any person
or legal entity other than the Company, recruit, solicit, or induce or attempt
to recruit, solicit or induce any employee of the Company to become employed by
or to be engaged in a business engaged in providing the Services.
(c) Non-Solicitation Covenant. Employee agrees that during
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the term of his employment and for a period of one year after the expiration or
termination of his employment by the Company, whether such termination is
voluntary or involuntary, with or without cause, Employee will not, directly or
indirectly, on his own behalf or on behalf of or in conjunction with any person
or entity other than the Company, actively solicit the business or patronage of
any of the clients, customers or accounts of the Company served by Employee
during the term of this Agreement.
(d) Non-Disclosure Covenants. Employee acknowledges that as
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an integral part of the Company's business, the Company has developed, and will
develop, at a considerable investment of time and expense, plans, procedures,
methods of operation, methods of production, financial data, lists of actual and
potential customers, suppliers, marketing strategies, plans for development and
expansion, customer and supplier data, and other confidential and sensitive
information, and Employee acknowledges that the Company has legitimate business
interest in protecting the confidentiality of such information. Employee
acknowledges that as President for the Company, he will be entrusted with such
information. Employee, therefore, acknowledges a continuing responsibility with
respect to the protection of the information and agrees:
i. "Trade Secrets" shall be defined as information,
without regard to form, belonging to the Company or licensed by it including,
but not limited to, technical or nontechnical data, formulae, patterns,
compilations, programs, devices, methods, techniques, drawings, processes,
financial data, financial plans, product plans, or lists of actual or potential
customers of suppliers which is not commonly known by or available to the public
and which information: (a) derive economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper means
by, other persons or entities who can obtain economic value from their
disclosure or use; and (b) are the subject of efforts that are reasonable under
the circumstances to maintain their secrecy.
ii. "Confidential Information" shall be defined, as any
information belonging to the Company or licensed by it other than Trade Secrets
with is material to the Company and not generally known by the public.
iii. Employee will treat as confidential and will not,
without the prior written approval of the Company, use (other than in the
performance of his duties of employment with the Company), publish, disclose,
copyright or authorize anyone else to use, publish, disclose or copyright,
either during the term of Employee's employment or at any time subsequent
thereto, any
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Employee Company
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information which constitutes Trade Secrets of the Company whether or not the
Trade Secrets are in written or tangible form.
iv. Employee will treat as confidential and will not,
without the prior written approval of the Company, use (other than in the
performance of his duties of employment with the Company), publish disclose,
copyright or authorize anyone else to use, publish, disclose or copyright, any
Confidential Information either during the term of his employment or for one
year after termination of employment, whether voluntary or involuntary, with or
without cause, and whether or not the Confidential Information is in written or
other tangible form.
v. All records, notes, files, drawings, documents, plans
and like items, and all copies thereof, relating to or containing or disclosing
Confidential Information or Trade Secrets of the Companies which be made or kept
by Employee or which are disclosed to or come into the possession of Employee,
shall be and remain the sole and exclusive property of the Company. Upon
termination of employment, Employee agrees to deliver to the Company or its
designee, the originals and all copies of any of the foregoing.
11. Proprietary Rights In Developments. In the course of
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rendering his services to the Company, Employee may conceive, create or develop
or invent ideas, concepts, methods of operation, processes, programs or other
matter or material, whether or not constituting an advance to, or an improvement
of, or pertaining to existing Company proprietary matter (all of which are
hereinafter referred to as "Developments"). All Developments shall constitute
Confidential Information (and may constitute Trade Secrets) and shall be subject
to all of the restrictions imposed on Employee pursuant to this Agreement. In
addition, all Developments and all rights therein throughout the world
constitute works made for hire and in all circumstances shall be and remain the
sole and exclusive property of the Company whether or not protectible under any
laws now known or hereafter applicable, including but not limited to patent,
copyright, trademark or trade secret laws.
(a) Assignment by Employee of All Rights in Developments.
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Employee hereby assigns to the Company all rights throughout the world, however,
denominated (whether under patent, copyright, trademark, trade secret or like or
different laws), in all media now known or hereafter recognized, in and to each
such Development. This assignment is not intended to derogate any rights the
Company has as an author of a work made for hire. In order to fully effectuate
these provisions, Employee hereby represents and warrants, that, with respect to
each such Development: (i) to the extent of Employee's contribution, all such
matter is original and does not and will not infringe or violate the rights of
any other person or entity; and (ii) that neither Employee nor anyone on his
behalf have granted or will grant or purport to grant to any other person or
entity any rights, in whole or in part, in and to such Developments.
(b) Cooperation. Employee shall, during and after
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termination of Employee's employment, cooperate with the Company in the
prosecution or defense of any claims, litigation, or other proceedings involving
the Developments and provide such information and execute such documents as the
Company may reasonably request to confirm, implement or enforce its rights in
such Developments. The Company shall be responsible for the expenses associated
with the filing of any patent, copyright, trademark or like applications.
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Employee Company
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12. Remedies for Breach. In the event of Employee's actual or
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threatened breach of the provisions of Paragraphs 10 or 11, the Company, in
addition to all other rights, shall be entitled to an injunction-restraining
Employee therefrom. Nothing herein shall e construed as prohibiting the Company
form pursuing any other available remedy for such breach or threatened breach,
including the recovery of damages from Employee. This provision shall remain in
full force and effect in the event Employee should claim that the Company
violated any of the terms of this Agreement. In such event, Employee agrees to
pursue such claim against the Company independently of his covenants set forth
in such Paragraphs.
13. Governing Law. This Agreement shall be construed under,
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governed by, and enforced in accordance with, the laws of the State of Florida,
not including its conflicts of law principles.
14. Right of Offset. In the event Employee violates any of the
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terms or conditions of this Agreement, the Company shall have the right, in
addition to, and not in lieu of all other rights at law or in equity, to offset
the amount of any damages caused by such breach or violation against any sums
due or to become due to Employee under the terms of this Agreement.
15. Notice. Any notice required or desired to be given under this
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Agreement shall be deemed given in writing and hand-delivered or sent by
Certified mail to his address shown herein below in the case of Employee, or to
its principal office in the case of the Company.
16. No Waiver by Company. The waiver by the Company of a breach
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of any provision of this Agreement by Employee shall not operate or be construed
as a waiver of any subsequent breach by Employee. No waiver shall be valid
unless in writing and signed by an authorized Officer of the Company.
17. Assignment. Employee acknowledges that the services to be
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rendered by him are unique and personal. Accordingly, Employee may not assign
any of his rights or delegate any of his duties or obligations under this
Agreement. The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
the Company.
18. Severability. Should any part of this Agreement, for any
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reason, be declared invalid by an arbitrator or a court of competent
jurisdiction, such decision or determination shall not affect the validity of
any remaining portion, and such remaining portion shall remain in force and
effect as if this Agreement had been executed with the invalid portion
eliminated; provided, that in the event of declaration of invalidity , the
provision declared invalid shall not be invalidated in its entirety, but shall
be observed and performed by the parties to the extent such provision is valid
and enforceable.
19. Complete Agreement. This Agreement shall constitute the
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entire agreement between the parties hereto and shall supersede all previous
negotiations, commitments and writings with respect to Employee's employment.
Any subsequent alteration or modification to this Agreement must be made in
writing and signed by both parties.
EMPLOYEE ACKNOWLEDGES THAT HE HAS HAD THE OPPORTUNITY TO CONSULT WITH AN
ATTORNEY OR ANY OTHER INDIVIDUAL FROM WHOM HE
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WISHED TO OBTAIN ADVICE CONCERNING THIS AGREEMENT. EMPLOYEE STATES THAT HE HAS
CAREFULLY READ THE WITHIN AND FOREGOING "EMPLOYMENT AGREEMENT" AND KNOWS AND
UNDERSTANDS THE CONTENTS THEREOF AND THAT HE IS EXECUTING THE SAME AS HIS OWN
FREE ACT AND DEED.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
COMPANY: EMPLOYEE:
By: /s/ Xxx Xxxxxxxxx XXXXXX X. XXXXX
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Name: Xxx Xxxxxxxxx
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Its: Tres. /s/ Xxxxxx X. Xxxxx
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QuadraComm.
Date: 10-6-00 Date: 10-1-00
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Employee Company
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