EMPLOYMENT AGREEMENT
EXHIBIT
10.5
THIS
EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the _1st_ day of
December, 2008, by and between Helix Wind, Inc., a Nevada corporation
("Employer" or “Company”), and Xxxxx X. Xxxxxxx, CPA ("Employee"), who agree as
follows:
1. Employment. Employer
hereby agrees to employ Employee as a regular employee commencing
on December 1, 2008, and Employee hereby accepts and agrees to said
employment on the terms and conditions set forth herein.
2. Position and
Duties. Employee's position shall be Chief Financial
Officer. Employee is responsible for the following
duties:
A. Financial
and Administrative Stewardship:
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Lead
Financial and Audit process in support of reverse merger, shell, and
P.I.P.E. transactions resulting in all associated SEC filings to take the
Company public to be listed and traded on the Small Cap Bulletin
Board.
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Provide
financial advice and support to senior management and the Board of
Directors – interact regularly with the CEO and President, the senior
management and Board of Directors.
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Develop
and maintain external financial relationships including bankers, auditors,
credit rating agencies, investment houses and other financial
advisors.
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Lead
the development of and ensure SOX and all SEC required compliance with
appropriate controls, policies, procedures, and governance principles and
practices for financial management and administration functions of the
Company.
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Oversee,
supervise and mentor administrative and office management personnel;
establish high quality administrative infrastructure for
Helix.
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Keep
abreast of the business and economic climate in which Helix operates;
prepare the Company to meet the challenges of a
changing business environment as it relates to its financial
obligations.
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B. Financial
Reporting & Taxation:
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Oversee
the preparing, producing and then reviewing of financial information for
the Company’s reports to senior management and Board of Directors,
shareholders and other outside stakeholders; ensuring the accuracy,
interpretation and presentation of all financial reports and statements of
the Company.
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Financial
interpretation and analysis of financial reports. Track actual
income & expenses against budget and provide regular reports to senior
management and the Board detailing the causes for the
variance.
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Ensure
that all financial reports comply with GAAP and any other applicable
requirements.
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Continue
process with Board to engage external
auditors.
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Liaise
with the Company’s external auditors for annual auditing requirements,
negotiating the annual audit fee.
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Address
all management issues raised by the external auditors, and report and
advise thereon to management and the Board of
Directors.
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Work
closely with external advisors/auditors in the development of tax
strategies and minimization of tax.
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Preparation
and submission of annual tax and other applicable tax
returns.
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Additional duties to be performed by
Employee and Employee’s authority shall be as determined from time to time by
Employer. Employee shall devote such time and services to Employer as
are reasonably necessary to perform the duties of the position pursuant to this
Agreement, with fidelity, to the best of Employee’s ability, and in the best
interests of Employer. Employee agrees to conform to all Employer
policies and regulations.
3. At-Will
Employment. Employee's employment is for an unspecified term
and is at the mutual consent of Employee and Employer. Either
Employer or Employee may end their employment relationship at any time, with or
without cause, and with or without advance notice. No employee or
representative of Employer, other than its President, has any authority to enter
into any agreement for employment for any specified period of time or make any
agreement contrary to the at-will employment relationship. To be
effective, any such agreement must be in writing, signed by the President of
Employer.
4. Compensation.
a. Employer
shall pay to Employee the sum of $14,583.33 per month. There shall be
deducted from the compensation due to Employee hereunder any and all sums
required for social security and withholding for income taxes and for any other
federal, state or local tax or charge which may be currently in effect or
hereinafter enacted as a charge on the compensation of Employee.
b. Equity
Participation: Effective only upon the condition that the Company is
successful in obtaining funding of an IPO being pursued by the Company and when
and if the Company adopts an Omnibus Stock Option Plan (“Stock Plan”), Employee
shall be entitled to participate in the Stock Plan and shall be granted an
Incentive Stock Option to purchase the equivalent of 0.50% of the outstanding
shares of common stock at an exercise price of $0.50 per share, in accordance
with a Notice of Grant and Stock Option Agreement to be executed by Employee and
the Company, according to the terms and conditions of the Stock Plan. The Option
Shares will vest in the following manner:
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i.. Forty percent (40%) upon
the first anniversary date of the date of theOption Agreement;
ii. Twenty percent (20%)
upon the second anniversary date of the date of the Option
Agreement;
iii. Twenty percent (20%) upon the
third anniversary date of the date ofthe Option Agreement;; and
iv. Twenty percent (20%) upon the
fourth anniversary date of the date ofthe Option Agreement;
5. Fringe
Benefits. In addition to those benefits that may be required
by law, such as state disability, social security and workers' compensation
benefits, Employer benefits to be provided to Employee include the
following:
a. Vacation: Employee
will be entitled to 3 weeks (15 days/120 hours) of paid vacation per
year. Such paid vacation days will accrue at the rate of 1.25 days
(10 hours) per month. The maximum accrued vacation balance is 20
days. Once Employee has accrued 20 days (160 hours) of paid vacation, all
further accruals of vacation days will cease until Employee's accrued vacation
balance drops below the maximum balance. Vacation accrual will
recommence after Employee has used his paid vacation and the accrued vacation
days have dropped below the maximum balance.
b. Paid
Holidays: Employee will be entitled to the following paid
holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day.
c. Insurance
Benefits: Employee shall also be entitled to participate in
Employer's health and medical, dental, and optical/vision insurance plans
consistent with the coverage offered by Employer to its similarly situated
employees in accordance with any policies, procedures, or benefit plan
requirements adopted by Employer from time to time. Employer reserves
to itself, or its designated administrators, exclusive authority and discretion
to determine all issues of eligibility, interpretation and administration of
each such benefit plan or policy. Employer's insurance plans and
policies related thereto, are subject to termination, modification or limitation
at Employer’s sole discretion.
6. Protection of Employer
Property.
a. Restriction on
Use: Employee recognizes and acknowledges that Employee will have
access to Confidential Information (as defined below) relating to the business
or interest of Employer or of persons with whom Employer may have business
relationships. Except as permitted herein or as may be approved by
Employer from time to time, the Employee will not during Employee’s employment
or at any time thereafter, use, disclose or permit to be known by any other
person or entity, any Confidential Information of Employer (except as required
by applicable law or in connection with the performance of the Employee’s duties
and responsibilities hereunder). If Employee is requested or becomes
legally compelled to disclose any of the Confidential Information, Employee will
give prompt notice of such request or legal compulsion to
Employer. Employer may waive compliance with this Section 6 or will
provide Employee with legal counsel at no cost to Employee to seek an
appropriate remedy.
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1) Confidential Information
Defined. The term “Confidential Information” means information
relating to Employer’s business affairs, proprietary technology, trade secrets,
patented processes, research and development data, know-how, market studies and
forecasts, competitive analyses, pricing policies, vendor and supplier lists,
employee lists, employment agreements (other than this Agreement), personnel
policies, the substance of agreements with customers, suppliers and others,
marketing arrangements, customer lists, not generally known to the public or to
actual or potential competitors of Employer (other than through a breach of this
Agreement). This obligation shall continue until such Confidential
Information becomes publicly available, other than pursuant to a breach of this
Section 6 by the Employee, regardless of whether the Employee continues to be
employed by Employer. At no time shall Employee place, save or store
any Confidential Information in any manner, in any form or format, or at any
location on any non-Employer-owned computer which is not expressly approved and
designated in writing by Employer.
b. Employer
Materials: It is further agreed and understood by and between the
parties to this Agreement that all “Employer Materials,” which include, but are
not limited to, computers, computer software, computer disks, tapes, printouts,
source, HTML and other code, flowcharts, schematics, designs, graphics,
drawings, photographs, charts, graphs, notebooks, customer lists, sound
recordings, other tangible or intangible manifestation of content, and all other
documents whether printed, typewritten, handwritten, electronic, or stored on
computer disks, tapes, hard drives, or any other tangible medium, as well as
samples, prototypes, models, products and the like, shall be the exclusive
property of the Employer and, upon termination of Employee’s employment with
Employer, and/or upon the request of Employer, all Employer Materials, including
copies thereof, as well as all other Employer property then in the Employee’s
possession or control, shall be returned to and left with
Employer. Anything in this Section 6 to the contrary notwithstanding,
Employee shall not place any Employer Materials on any computer not owned by
Employer.
7. Non-Competition During
Employment. During Employee's employment with the Employer,
Employee shall not, directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, officer, director, or in any
other individual or representative capacity, engage or participate in any
business that is in competition in any manner whatsoever with the business of
Employer.
8. Severability. If
any term or provision of this Agreement is determined to be illegal,
unenforceable or invalid, in whole or in part, for any reason, such illegal,
unenforceable or invalid provision, or part thereof, shall be stricken from this
Agreement and such provision shall not affect the legality, enforceability or
validity of the remainder of this Agreement. If any provision, or
part thereof, of this Agreement is stricken in accordance with this paragraph,
then the stricken provision shall be replaced, to the extent possible, with a
legal, enforceable and valid provision that is as similar in tenor to the
stricken provision as is legally possible.
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9. Employee's Duties on
Termination. In the event of the voluntary or involuntary
termination of Employee's employment, in addition to the requirements set forth
in Paragraph 6. b. above, Employee agrees to
deliver promptly to Employer all documents, memoranda, reports, files,
correspondence and other property belonging to Employer relating to the business
of Employer and Employer's customers which are in Employee's possession or under
Employee's control, including but not limited to, all Confidential Information
and Employer Materials. Employee agrees not to
make or retain copies, reproductions or summaries of any such property without
the express written consent of Employer.
10. Entire Agreement of the
Parties. This Agreement supersedes any and all agreements,
either oral or written, between the parties hereto with respect to the rendering
of services by Employee for Employer and contains all of the covenants and
agreements between the parties with respect to the rendering of such services in
any manner whatsoever. Each party to this Agreement acknowledges that
no representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which are
not embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement will be effective unless it is in writing signed by
the party to be charged. There shall be no implied-in-fact contract
modifying the terms of this Agreement.
11. Waiver. Either
party's failure to enforce any provision or provisions of this Agreement shall
not in any way be construed as a waiver of any such provisions or prevent that
party thereafter from enforcing such provision or any other provision of this
Agreement.
12. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
13. Employee's
Representations. Employee represents and warrants that
Employee is free to enter into this Agreement and to perform each of its terms,
covenants and agreements. Employee further represents and warrants
that Employee is not restricted or prohibited, contractually or otherwise, from
entering into and performing this Agreement, and that Employee's execution and
performance of this Agreement is not a violation or breach of any other
agreement between Employee and any other person or entity.
14. Interpretation/Captions. This
Agreement is to be interpreted without regard to the draftsman. The
terms and intent of this Agreement, with respect to the rights and obligations
of the parties, shall be interpreted and construed on the express assumption
that the parties participated equally in its drafting. The section
captions or headings in this Agreement are for reference purposes only and shall
not in any way affect the meaning or interpretation of this
Agreement.
15. Voluntary
Agreement. Employee and Employer represent and agree
that each has reviewed all aspects of this Agreement, has carefully read and
fully understands all provisions of this Agreement, and is voluntarily entering
into this Agreement. Each party represents and agrees that such party
has had the opportunity to review any and all aspects of this Agreement with
legal, tax or other advisor or advisors of such party’s choice before executing
this Agreement.
16. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of and shall be enforceable by and against the Employee’s heirs,
beneficiaries and legal representatives. It is agreed that the rights
and obligations of Employee may not be delegated or assigned except as
specifically set forth in this Agreement. In the event of a sale of
all or substantially all of Employer’s stock, sale of all or substantially all
of Employer’s assets, or consolidation or merger of Employer with or into
another corporation or entity or individual, Employer may assign its rights and
obligations under this Agreement to its successor-in-interest, and such
successor-in-interest shall be deemed to have acquired all rights and assumed
all obligations of Employer under this Agreement.
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17. Notices. Any
notices to be given hereunder by either party to the other shall be in writing
and shall be deemed to have been duly given when (a) delivered by hand, or (b)
three (3) days after delivery to the U.S. Postal Service, first-class postage
and fees for certified mail prepaid, with return receipt
requested. All notices to be given shall be addressed to the parties
set forth below, or to such other addresses as a party may designate as to
itself by giving notice to such change of address in accordance with the
provisions of this paragraph:
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If
to the Employer:
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Xxxxx
Xxxxxxxxxx, President
Xxx
Xxxxxxx, CEO
Helix
Wind, Inc.
0000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX. 00000
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If
to Employee:
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Xxxxx
X. Xxxxxxx, CPA
00000
Xxxxxx Xxxx
Xxxxx,
XX 00000
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the date set forth
above.
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EMPLOYER:
HELIX
WIND, INC.
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EMPLOYEE: | ||
| By: | /s/ Xxxxx Xxxxxxxxxx | /s/ Xxxxx X. Xxxxxxx | |
| Xxxxx Xxxxxxxxxx, President | Xxxxx X. Xxxxxxx, CPA | ||
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Amendment
No. 1 to
This
Amendment to Employment Agreement (“Amendment”) is made and entered into as of
the 26th day of January 2009 by and between Helix Wind, Inc., a Nevada
corporation (the “Company”) and Xxxxx Xxxxxxx, an individual (“Employee”) in
connection with the Employment Agreement executed on December 1, 2008 (the
“Employment Agreement”). In consideration of the mutual agreements
and promises contained herein, and for other good and valuable consideration
(including the agreement of Employee to continue his employment with the
Company), the receipt and sufficiency of which are hereby acknowledged, the
Company and Employee agree as follows.
The
parties wish to amend Section 4 of the Agreement to read in full as
follows:
“Compensation.
a.
Salary. Employer shall
pay to Employee the sum of $14,583.33 per month payable in accordance with
Employer’s standard procedures. There shall be deducted from the compensation
due to Employee hereunder any and all sums required for social security and
withholding for income taxes and for any other federal, state or local tax or
charge which may currently be in effect or hereafter enacted as a charge on the
compensation of Employee. Employee’s base compensation will be
evaluated on an annual basis by the board of directors of the Company (or its
Compensation Committee, if any), including the satisfactory performance of
Employee’s responsibilities outlined in Sections 2.A and 2.B of the
Agreement.
b.
Equity
Participation. Effective only upon the condition that the
Company is successful in obtaining $2 Million or more in financing, in whatever
form, and when and if the Company (or any successor to the Company) adopts a
stock option plan, Employee shall be entitled to participate in a stock option
plan, when created, and shall then be granted a stock option (the “Option”) to
purchase 610,000 shares of common stock (the “Option Shares”), at an exercise
price equal to the fair market value of the Option Shares or at such exercise
price required by applicable law at the date of grant. The Option will be
exercisable for a period of ten (10 ) years but will be exercisable for a period
of five (5) years if the Executive, on the date of grant, owns more than ten
(10%) percent of the total combined voting power of all classes of stock of the
Company within the meaning of Section 422(b)(6) of the Internal Revenue Code of
1986, as amended and any applicable regulations promulgated thereunder. The
option will vest in the following manner:
i. Forty percent (40%) upon
the first anniversary of Employee’s date of hire;
ii. Twenty percent (20%) upon the
second anniversary of Employee’s date of hire;
iii.
Twenty percent (20%) upon the third anniversary of Employee’s date of hire;
and
iv.
Twenty percent (20%) upon the fourth anniversary of Employee’s date of
hire.
It is
contemplated that the options to be granted pursuant to this Employment
Agreement will be issued as incentive stock options under a stock option plan to
be created by Clearview Acquisitions, Inc. (“Clearview”) in connection with the
proposed merger of a subsidiary of Clearview into the Company, but in the event
such a plan is not created by February ______, 2009, the Company shall then
grant non-qualified stock options on the same terms, exercisable at fair market
value of the Option Shares or such other exercise price as required by
applicable law.
c. Bonus. Conditioned upon the
consummation of the Company’s proposed merger transaction with Clearview, in
which the Company expects to raise approximately Three Million Dollars
($3,000,000), Employee shall be eligible for bonus compensation (the “Bonus”) in
an amount to be determined by the Board of Directors, but in no event shall the
Bonus be more than Fifty Thousand Dollars ($50,000). The Executive shall be
eligible for the Bonus upon the closing of any subsequent capital financing or
financings, consummated in one or more rounds, in which the aggregate amount
received in such offerings is equal to or greater than Three Million Dollars
($3,000,000). The Bonus is further conditioned upon Employee taking a
leading role in promoting the Company to prospective investors and coordinating
all aspects of the financing or financings, as determined in the sole discretion
of the Board of Directors.”
Except as specifically stated in the
terms of this Amendment, the Employment Agreement remains in full force and
effect, according to its terms, as amended herein and nothing contained herein
shall operate as a waiver of any obligation, condition, right, remedy or
provision contained in or arising out of the Employment Agreement.
This Amendment may be signed in
counterparts with the same force and effect as if all original signatures
appeared on one copy; and in the event signed in counterparts, each counterpart
is the equivalent of an original and all of the counterparts are the equivalent
of one agreement.
Facsimile signatures on notices and
amendments are the equivalent of original signatures.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.]
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Helix
Wind, Inc.,
a
Nevada corporation
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Employee: | ||
| By: | /s/ Xxx Xxxxxxx | /s/ Xxxxx Xxxxxxx | |
| Xxx Xxxxxxx, Chief Executive Officer | Xxxxx Xxxxxxx | ||
