ACTIVE LINK COMMUNICATIONS, INC.
FORM 10-KSB
EXHIBIT 10 (i)
EXECUTIVE EMPLOYMENT AND CONSULTING AGREEMENT
This Agreement, made effective as of October __, 2001, by and between
Active Link Communications, Inc., a Colorado corporation, having a principal
office located at Suite 1000, 7388 South Revere Parkway, Englewood, Colorado
(the "Company"),
- AND -
Xxxxx X. Xxxxx of 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (the
"Employee").
RECITAL
The Company desires to employ Employee and Employee desires to be
employed by the Company pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and intending to be legally bound thereby, the parties hereto agree as
follows:
1. Purpose of Agreement. The purpose of this Agreement is to define the
relationship between the Company as an employer and Employee as an
executive employee of the Company. The Company hereby employs Employee,
and Employee hereby accepts employment, upon the terms and conditions
hereinafter set forth.
2. Duties. Employee shall be employed by the Company as an Executive Vice
President and the Chief Financial Officer of the Company. In connection
therewith, Employee's primary responsibilities shall have overall
responsibility and supervision of the Company's financial operation,
shall report to Senior Management concerning financial matters, shall
develop prudent financial and fiscal policies for the Company and shall
assist in the orderly transition of the Company's financial operation
to Naperville, IL and to a successor Chief Financial Officer
(transition term). In connection with the performance of these duties,
Employee shall report to the Company's Board of Directors.
Additionally, Employee shall perform such duties incident thereto and
as may be designated from time to time by the Directors of the Company.
3. Performance. Employee agrees to devote substantially all of his
business time, skill, attention, energies and his best efforts in the
performance of his duties for the Company.
4. Term. The term of this Agreement shall be effective as of the date on
which the closure of the merger between Mobility Concepts, Inc. and a
wholly-owned subsidiary of the Company shall occur and shall continue
through the completion of the transition of the financial operations of
the Company or until the date which shall be twelve months after
the closure of such merger, whichever is earlier at which time Employee
shall continue as a consultant of the Company for a period of twelve
months.
5. Location of Employment. Employment shall be at the Company's office
located in the Denver, Colorado metropolitan area.
6. Salary. Employee agrees to perform services under this Agreement in
consideration of the following compensation:
a. during the transition term, Employee shall receive an annual
cash salary of $125,000 from the Company, payable in the same
manner (but not less often than monthly) as other salaried
employees of the Company are paid, and subject to all
withholding taxes and other standard types of deductions.
Employee shall be entitled to participate in bonus and stock
option plans as may be provided by the Company from time to
time to its key employees.
b. during the consulting term, Employee shall receive an annual
cash salary of $125,000 from the Company, payable in the same
manner (but not less often than monthly) as other salaried
employees of the Company are paid, and subject to all
withholding taxes and other standard types of deductions.
c. during the transition term, Employee shall receive a car
allowance equal to $400 per month.
x. xxxx all stock options issued to the Employee pursuant to the
Company's stock option plan at the signing of this agreement.
e. during the transition term Employee shall be entitled to have
the Company pay for medical insurance for Employee and his
immediate family in amounts and on terms and conditions as may
be determined by the Company from time to time. Additionally,
Employee shall be entitled to receive such further benefits as
may be provided by the Company from time to time to its key
employees.
f. Employee shall be reimbursed for all reasonable expenses
incurred in performing services under this Agreement,
including, but not limited to, business travel, lodging,
meals, entertainment and taxi fares. Employee agrees to comply
with the Company's policy applicable to its officers for
submitting invoices, receipts, vouchers and the like for
expense reimbursement.
g. during the transition term Employee shall be entitled to four
(4) weeks vacation. Such vacation shall be taken at such time
or times reasonable acceptable to the Company.
7. Disability. If in the reasonable and prudent determination of the
Company, during the term of this Agreement, Employee becomes totally
disabled (mentally or physically) for a
continuous period of 30 days or such disability has an adverse impact
on Employee's ability to perform under this Agreement, the Company, at
its option, may thereafter, upon written notice to Employee or his
personal representative, terminate his employment without any liability
except to comply with the obligations, if any, contained in the Stock
Incentive Plan.
8. Death during Employment. If the Employee dies during the term of this
Agreement, the Company shall have no liability to the Employee's estate
except to comply with the obligations, if any, imposed by the Stock
Incentive Plan in effect immediately prior to the death of the
Employee.
9. Termination with Cause. The Company may terminate this Agreement with
Cause (as defined below) upon written notice to Employee. For purposes
of this Agreement, the term Cause shall be defined as (i) any violation
of law by the Employee or by the Company (for which violation of law
Employee can reasonably be held responsible) which, in the judgment of
the Board of Directors, injures, or is likely to injure, the Company or
its reputation, such as theft, defamation of the Company or its
products, or which would otherwise be deemed to constitute legal cause,
or (ii) gross dereliction by the Employee of his duties.
10. Termination without Cause.
a. Termination by Company. The Company may terminate this
Agreement at any time, without Cause, by giving 30 days
written notice to the Employee. In the event the Company
terminates the Employee pursuant to this Section 12a, the
Company shall be obligated (i) to pay Employee as liquidated
damages the Salary of Employee and all bonuses and benefits
provided by the Company to Employee pursuant to Section 6a
above for a period equal to twelve (12) months after such
termination. The Salary portion of any severance required to
be paid pursuant to this Section 10a shall be payable in full
upon the effective date of such termination. Additionally, the
Company agrees to reimburse Employee for all proper expenses
owed him through such date of termination.
b. Termination by Employee. Employee may terminate this Agreement
at any time, without Cause, by giving 30 days written notice
to the Company. In that event, Employee shall continue to
render his services and shall be reimbursed for all proper
expenses owed him through such date of termination. The
Company shall have no liability to the Employee except to
comply with the obligations, if any, contained in the Stock
Incentive Plan. If Employee fails to provide notice as
required by this Section 11(b), such termination shall be
deemed for Cause.
11. Indemnification/Insurance.
a. Indemnification. If Employee is made a party, or threatened to
be made a party, to any lawsuit or proceeding, solely as a
result or on account of his services under
this Agreement, the Company shall indemnify and defend
Employee and hold him harmless against all expenses
(including, without limitation, reasonable legal fees and
costs), liabilities and losses incurred or suffered by him in
connection with or on account of such lawsuit, (i) to the
fullest extent permitted under Colorado law as the same now
exists or may hereafter be amended (but, in the case of any
such amendment, if permissible, only to the extent that such
amendment permits the Company to provide broader
indemnification rights than permitted the Company to provide
prior to such amendment). Employee agrees that he will not
settle any pending or threatened lawsuit or proceeding without
the prior written consent of the Company. In addition,
Employee agrees that the Company shall have the right, but not
the obligation, to assume and direct Employee's defense in any
such lawsuit with counsel selected by the Company.
b. Insurance. In connection with the Company's indemnification
obligations, the Company, shall obtain and maintain Director's
and Officer's Insurance coverage covering Employee in amounts
and on terms customary for companies which are similarly
situated.
12. Proprietary Information. Employee agrees that all Proprietary
Information (as defined below) shall be the sole property of the
Company. At all times, both during Employee's employment with the
Company and after termination of Employee's employment, Employee will
keep in confidence and trust, for the benefit of the Company, all
Proprietary Information and Employee will not use or disclose any
Proprietary Information or anything relating to such information
without the prior written consent of the Company, except in performing
the Employee's duties as an employee of the Company. "Proprietary
Information" shall mean specifications, instructions, methods, code
(source and object), data (including without limitation research,
financial, personnel or test), designs, processes (computer or
otherwise), techniques, formulae, compositions, marketing and sales
information, customer lists, plans and all other know-how and trade
secrets or any copies, elaborations, modifications, adaptations and
derivatives thereof which are in the possession of the Company at the
time of termination of Employee's employment and which have not been
published or disclosed to, and are not otherwise known to, the public.
13. Return of Documents. In the event of the termination of Employee's
employment for any reason, Employee will promptly deliver to the
Company all documents and data of any nature, regardless of format,
pertaining to the Employee's work with the Company involving
Proprietary Information, and Employee will not, without the prior
written consent of the Company, retain in Employee's possession or
control or provide to others any documents or data or any description
or any reproduction of any description containing or pertaining to any
Proprietary Information.
14. Noncompetition.
a. While Employee is employed by the Company and for a period of
one year after the termination of such employment for any
reason, Employee will not directly or indirectly:
b. recruit, solicit or induce, or attempt to induce, any employee
or employees of the Company to terminate their employment
with, or otherwise cease any relationship with, the Company;
or
c. solicit, divert, take away, or attempt to divert or to take
away, any business of any of the clients, customers or
accounts, or prospective clients, customer or accounts, of the
Company which were contacted, solicited or served by Employee,
or were directly or indirectly under Employee's
responsibility, while Employee was employed by the Company.
d. If any restriction set forth in Section 16(a) above is found
by any court to be unenforceable because it extends for too
long a period of time, or over too great a range of
activities, or over too broad a geographic area, the
restriction shall be interpreted to extend only over the
maximum period of time, range of activities, or geographic
area which the court finds to be enforceable. The parties
recognize and agree that the nature of the Company's business
extends beyond a regional area and that, therefore, a covenant
encompassing the entire country is reasonable under all facts
and circumstances.
e. The restrictions contained in this Section 16 are necessary
for the protection of the business and goodwill of the Company
and are considered by Employee to be reasonable for such
purpose.
15. Remedies.
a. If Employee breaches any of the provisions of Sections 14
through 16 above, the Company shall have the nonexclusive
right and remedy to have the provisions of such section
specifically enforced by any court have equity jurisdiction,
it being acknowledged and agreed that any such breach or
threatened breach will cause substantial and irreparable
injury to the Company and that money damages will not provide
an adequate remedy to the Company.
b. If any covenant contained in Sections 14 through 16, or any
part thereof, is hereafter construed to be invalid or
unenforceable, the same shall not affect the remainder of such
covenant or covenants, which shall be given full effect,
without regard to the invalid portions.
c. The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 14 through 16
hereof upon the courts of any jurisdiction within the
geographical scope of such covenants, in which jurisdiction
any alleged breach or such covenant occurs. If the courts of
any one or more of such jurisdictions shall hold such
covenants unenforceable by reason of the breadth of such scope
or otherwise, it is the intention of the parties hereto that
such determination not bar or in any way affect the Company's
right to the relief provided above in the courts of any other
jurisdiction within the geographical scope of such covenants,
as to breaches of such covenants in such other respective
jurisdictions, the above covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse
and independent covenants.
d. In any action brought to enforce or defend rights hereunder,
the party who substantially prevails in his or its material
claims shall be entitled to recover (in addition to all other
damages and expenses) his or its reasonable attorneys' fees.
16. Notices and Addresses. All notices required to be given under this
Agreement shall be given by personal delivery or by certified mail or
registered mail, sent to the proper party at the addresses hereinabove
set forth. Either party may change the address for notices by providing
the other party written notice of the same.
17. Parties Bound. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns;
provided, however, Employee may not assign this Agreement.
18. Colorado Law to Apply. This Agreement shall be construed under and in
accordance with the laws of Colorado.
19. Legal Construction. In the event of any one or more of the provisions
contained in this Agreement shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision thereof and this
Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
20. Sole Agreement of the Parties. This Agreement constitutes the only
agreement of the parties hereto respecting the within subject matter
and supersedes any prior understanding or written or oral agreements
between the parties.
21. Amendment. No amendment, modification or alteration of the terms hereof
shall be binding unless the same be in writing, dated subsequent to the
date hereof and duly executed by the parties hereto.
22. Waiver of Default. No waiver by the parties hereto of any default or
breach of any term, condition or covenant of this Agreement shall be
deemed to be a waiver of any other breach of the same or any other
term, condition or covenant contained herein.
23. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
24. Captions. The captions in this Agreement are for convenience only and
shall not limit or otherwise affect any of the terms or provisions
hereof.
ACTIVE LINK COMMUNICATIONS, INC., a
Colorado corporation
By:
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Title:
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EMPLOYEE:
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Xxxxx X. Xxxxx
