Exhibit 10.2
EMPLOYMENT AGREEMENT - EXECUTIVE VICE PRESIDENT
OF SALES AND MARKETING
This Employment Agreement for an Executive Vice President of Sales and
Marketing ("Agreement") is made and entered into in duplicate and shall be
effective on April 1, 2004 ("Effective Date"), by and between Aegis Assessments,
Inc., a Delaware corporation (sometimes referred to herein as the "Corporation"
or "Aegis"), and Xxxxx Xxxxxxxxx ("Executive Vice President").
RECITALS
A. It is the desire of the Corporation to employ an Executive Vice
President of Sales and Marketing who will assist the President of the
Corporation to commercially exploit the Corporation's products and
technologies for public safety, commercial facility security and life
safety applications. It is further the desire of the Corporation that
the Executive Vice President prepare and effectuate a comprehensive
sales and marketing plan to extend sales opportunities for the
Products (as that term is defined in Recital B below) into those
markets.
B. It is further the desire of the Corporation to employ the Executive
Vice President to promote, sell, market and commercially exploit the
Corporation's products and technologies, including but not limited to
(i) the Aegis SafetyNet(TM) Wireless Life Safety System ("WLSS"), (ii)
the SafetyNet(TM) Radio Bridge(TM), which creates a "bridge" between
radios operating on different frequencies, and (iii) new wireless life
safety and commercial security products (for purposes of this
Agreement, the WLSS, the SafetyNet(TM) Radio Bridge(TM), and new
products developed from the Corporation's wireless technology and
software, may be collectively referred to herein as the "Products" or
the "SafetyNet(TM)").
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND
UNDERTAKINGS HEREIN SPECIFIED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE
OBLIGATED LEGALLY AND EQUITABLY, THE PARTIES AGREE AS FOLLOWS:
1. Term of Agreement. The respective duties and obligations of the parties
shall commence on the Effective Date and shall continue until and terminate on
December 31, 2006.
2. Duties. The Executive Vice President shall be an employee of the
Corporation and it is contemplated by the parties that the services to be
performed hereunder shall require substantially all of the Executive Vice
President's time during a 40-hour business week. The Executive Vice President
shall, among other things:
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|X| Consult with the President to devise a short-term (first 3 to 6 months)
sales and business development strategy for SafetyNet(TM) products and
technologies. During the first 3 to 6 months, he shall work closely with
the President to identify and close initial sales in order to keep overhead
low.
|X| Consult with the President to devise an overall long term (3 to 5 year)
sales and business development strategy for SafetyNet(TM) products and
technologies
|X| Solicit orders for the Products and services relating to the Products
|X| Forward such orders to the Corporation
|X| Co-ordinate delivery of the Products to fill such orders with Aegis and the
end-users
|X| Assist in collecting past due accounts
|X| Assist the President in budgeting and operational matters, as directed by
the President; provided, however, that the Executive Vice President is not
authorized to disburse funds so budgeted, and shall not obligate the
Corporation in any manner whatsoever to the payment of any monies
whatsoever, whether by contract, agreement, undertaking, commitment,
purchase order, lease, or other obligation
|X| Assist the Corporation in recruiting, when and as directed, independent
sales representatives to effect a national, commission-based sales force
for the Products
|X| Work with facilities management organizations such as National Association
of College and University Business Officers (NACUBO) and Associated
Builders and Owners of Greater New York, Inc. (ABO) to promote Aegis
Products
|X| Develop commercial high-rise retrofitting markets for Aegis Products
|X| Identify regional contractors qualified to install and maintain the
products in commercial facilities
|X| Co-ordinate security association marketing efforts, promotion and trade
publication coverage of the SafetyNet(TM) products with the Security
Industry Association (SIA) when so directed by Aegis management
|X| Advise the President on competing or complementary technologies and/or
businesses
|X| Work with existing points of contact ("POCs") for public safety agencies,
including but not limited to state and federal government agencies, which
have a need for Aegis technologies in homeland defense, environmental
protection, and other applications, and co-ordinate joint public/private
purchases
|X| Maintain a database of customers and develop a marketing plan and contact
schedule to educate customers on the SafetyNet(TM)products
|X| Manage sales relationships with existing customers and develop
relationships with new customers
|X| Assist the Corporation in preparing sales literature and sales aids;
provided, however, that all prices and terms of sale shall be established
exclusively by the Corporation
|X| Identify potential product distributors in geographic areas specified by
Aegis management
|X| Assist the company to develop and maintain distribution, reseller, joint
venture, or similar agreements for the products
|X| Assist the company to modify existing Aegis technology to develop new
products
|X| After approval from Aegis management, increase the company's profile and
name recognition in various geographic areas by sponsoring, hosting or
participating in the corporate sponsorship of various promotional and civic
events designed to market and promote the company and its products
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|X| Consult with the President (or an officer or employee of Aegis designated
by the President) regarding initiatives with the Department of Homeland
Security (DHS) and any agencies consolidated with the DHS
|X| Consult with the President regarding new products and technologies
|X| Assist in special projects, as directed by Aegis management
|X| Perform such other duties as are customarily performed by a Executive Vice
President and such other duties as reasonably arise from the obligations of
the Executive Vice President position specified in this Agreement.
3. Authority to Contract; Warranties and Representations. The Executive
Vice President shall have no power to, and the Executive Vice President shall
not, obligate the Corporation in any manner whatsoever to any contract,
agreement, undertaking, commitment or other obligation, unless specifically
authorized and directed to do so, in advance, by the Corporation's Board of
Directors. The Executive Vice President shall not, without specific approval of
and direction by the Corporation's Board of Directors, borrow on behalf of the
Corporation, purchase capital equipment, or sell any capital assets of the
Corporation.
4. Compensation.
4.01 Percentage of Gross Sales. The Corporation shall allocate a commission
of up to twenty percent (20%) of the gross margin on all sales of its products
(with the gross margin defined as the revenues derived from the sale of products
minus all expenses associated with the cost of goods sold). As compensation for
the services to be performed hereunder, the Executive Vice President shall be
entitled to an allocation of all or part of the total commission specified in
the paragraph above, as allocated by the President of the Corporation, at the
President's sole discretion; provided, however, that such allocation must be
commercially reasonable and consistent with industry practices. Payment of any
commission hereunder is due when the Corporation realizes revenue from the sale
of the products and remains subject to any terms of sale, including
charge-backs, returns, and credits. Moreover, such commission shall not be due
and payable until the Corporation has received payment for all such sales in
full.
4.02. Stock Options. As additional compensation hereunder, the Corporation
shall grant the Executive Vice President options to purchase up to 1,250,000
shares of the Corporation's common stock, at an exercise price of $3.05 per
share, pursuant to the Aegis Assessments, Inc. 2002 Stock Option Plan
("Options"), which Options shall vest on the Effective Date hereof.
4.03 Reimbursement of expenses. The Corporation shall reimburse the
Executive Vice President all reasonable expenses incurred in travel for the
Corporation, including attending client meetings, board meetings and educational
courses; provided, however, that such travel expenses have been authorized by
the Corporation in advance.
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5. Promotional Material. The Corporation shall furnish the Executive Vice
President with sales, promotional, instructional and related material (including
but not limited to electronic literature) necessary for the promotion and sale
of the Corporation's products, technology and services, which material shall be
exclusively created, authored, approved and provided by the Corporation. Any
such materials or sales aids shall be returned to the Corporation at its
request.
6. Ability to Enter into Agreement. The Executive Vice President represents
that he is free to enter into this Agreement, and that this engagement does not
violate the terms of any agreement between him and any third party.
7. New Developments. The Executive Vice President agrees that all designs,
plans, reports, specifications, drawings, inventions, processes, and other
information or items produced by the Executive Vice President concerning the
development and implementation of the Products or any new or successor products
or technologies (whether relating to the WLSS, the SafetyNet(TM) Radio
Bridge(TM), the SafetyNet(TM) software, new products relating to life safety
systems, building facility security, or otherwise) will be assigned to the
Corporation as the sole and exclusive property of the Corporation and the
Corporation's assigns, nominees and successors, as will any copyrights, patents
or trademarks obtained by the Executive Vice President while performing services
under this Agreement. On request and at the Corporation's expense, the Executive
Vice President agrees to help the Corporation obtain patents and copyrights for
any new developments. This includes providing data, plans, specifications,
descriptions, documentation, and other information, as well as assisting the
Corporation in completing any required application or registration.
8. Non-Disclosure of Proprietary and Confidential Information. During the
term of this Agreement, the Executive Vice President may have access to
Corporation Proprietary Information (as used in this Agreement, the term
"Corporation Proprietary Information" shall mean and include, without
limitation, any and all marketing and sales data, plans and strategies,
financial projections, client lists, prospective client lists, promotional
ideas, data concerning the Corporation's services, designs, methods, inventions,
improvements, discoveries, designs whether or not patentable, "know-how",
training and sales techniques, and any other information of a similar nature
disclosed to the Executive Vice President or otherwise made known to the
Executive Vice President as a consequence of or through this Agreement during
the term hereof. The term Corporation Proprietary Information shall not include
any information that (i) at the time of the disclosure or thereafter is or
becomes generally available to and known by the public, other than as a result
of a disclosure by the Executive Vice President or any agent or representative
of the Executive Vice President in violation of this Agreement, or (ii) was
available to the Executive Vice President on a non-confidential basis from a
source other than the Corporation, or any of the Corporation's officers,
directors, employees, agents or other representatives) or other information and
data of a secret and proprietary nature which the Corporation desires to keep
confidential. The Executive Vice President (and any of his affiliates, related
entities, partners, agents and/or employees) agrees and acknowledges that the
Corporation has exclusive proprietary rights to all Corporation Proprietary
Information, and the Executive Vice President hereby assigns to the Corporation
all rights that he might otherwise possess in any Corporation Proprietary
Information. Except as required in the performance of the Executive Vice
President's duties to the Corporation, the Executive Vice President will not at
any time during or after the term hereof, directly or indirectly use,
communicate, disclose, disseminate, lecture upon, publish articles or otherwise
put in the public domain, any Corporation Proprietary Information. The Executive
Vice President agrees to deliver to the Corporation any and all copies of
Corporation Proprietary Information in the possession or control of the
Executive Vice President upon the expiration or termination of this Agreement,
or at any other time upon request by the Corporation. The provisions of this
section shall survive the termination of this Agreement.
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9. Non-Competition and Non-Circumvention by Executive Vice President. In
consideration and recognition of the fact that the Executive Vice President has
access to Corporation Proprietary Information under the terms and provisions of
this Agreement and that the Corporation will be introducing the Executive Vice
President to various customers and potential customers, product manufacturers,
retailers and distributors, the Executive Vice President represents, warrants
and covenants to the Corporation as follows:
(a) Neither party shall disclose to any person, without the other party's
prior written consent, any of the terms, conditions or provisions
specified in this Agreement unless such disclosure is lawfully
required by any federal governmental agency or is otherwise required
to be disclosed by law or is necessary in any legal proceeding
regarding the subject matter of this Agreement.
(b) During the term of this Agreement, the Executive Vice President shall
not circumvent the Corporation for the purpose of transacting any
business with any person or entity which business shall interfere with
any relationship whatsoever between such person or entity and the
Corporation, or use any Corporation Proprietary Information to compete
with the business of the Corporation. The Executive Vice President
shall not, directly or indirectly hire, solicit, or encourage to leave
the Corporation's employment, any employee, executive or contractor of
the Corporation or hire any such employee, executive or contractor who
has left the Corporation's employment or contractual engagement within
one year of such employment or engagement. The Executive Vice
President shall not hire or engage in any way, any enterprise or
person that competes with, or is engaged in a business substantially
similar to, the business of the Corporation.
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(c) The Executive Vice President shall not for a period of two (2) years
immediately following the termination of this Agreement with the
Corporation, either directly or indirectly (i) make known to any
person, firm or corporation the names or addresses of any of the
Corporation's clients or any other information pertaining to them or
the Corporation's products or services; (ii) call on, solicit, or take
away, or attempt to call on, solicit or take away any of the
Corporation's clients either on Executive Vice President's behalf or
that of another person, firm or corporation.
(d) The Executive Vice President shall not, during the term hereof or for
a period of two (2) years following such term, enter into an agreement
or contract directly with any manufacturer, retailer or distributor
introduced to Executive Vice President by the Corporation for any
services provided by the Corporation herein or for any similar
services.
(e) The Executive Vice President acknowledges and agrees that the
representations, warranties and covenants made by the Executive Vice
President and set forth in this section are material and that the
Corporation would not enter into this Agreement without the Executive
Vice President's making such representations, warranties and covenants
to the Corporation.
(f) The Executive Vice President acknowledges and agrees that any breach
by the Executive Vice President of the representations, warranties and
covenants contained herein will cause irreparable harm and loss to the
Corporation, which harm and loss cannot be reasonably or adequately
compensated in damages in an action at law. Therefore, the Executive
Vice President expressly agrees that, in addition to any other rights
or remedies which the Corporation may possess, the Corporation shall
be entitled to injunctive and other equitable relief to prevent or
remedy a breach of the representations, warranties and covenants made
by the Executive Vice President herein.
(g) The terms and provisions of this section shall survive the termination
of this Agreement for a period of two (2) years.
10. Termination. This employment contract may be terminated by:
(a) Mutual agreement of both parties.
(b) Material breach. Either party may terminate this Agreement by
transmitting written notice of termination to the other party
following a material breach of this Agreement. Such termination shall
occur if defaulting party fails to cure such breach within thirty (30)
days of such written notice.
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(c) Disability of the Executive Vice President. If the Executive Vice
President is permanently disabled or is otherwise unable to perform
his duties because of sickness, injury, or mental incapacity for a
period of ninety (90) working days, the Corporation shall have the
option to terminate this Agreement.
(d) Discharge for cause. In the event the Executive Vice President commits
(i) gross misconduct, (ii) fraud, or (iii) other acts of criminal
conduct, Aegis may terminate this Agreement immediately upon written
notice.
(e) Death of the Executive Vice President.
11. Sums Due Upon Death of Executive Vice President. If the Executive Vice
President dies prior to the expiration of the term of this Agreement, any sums
that may be due him under this Agreement as of the date of his death shall be
paid to his executors, administrators, heirs, personal representatives,
successors, and assigns as soon as reasonably practicable.
12. Indemnification. Each party shall defend and hold the other party
harmless from and against, and shall indemnify the other party for, any loss,
liability, damage, judgment, penalty or expense (including administrative costs
and expenses, attorney's fees and costs of defense) suffered or incurred by any
person, or to any property, in relation to any action or inaction taken by such
party, whether intentional, negligent or otherwise, or by any of such party's
affiliates, directors, officers, employees, representatives or agents (including
attorneys, accountants and financial advisors).
13. Governmental Rules and Regulations. The provisions of this Agreement
are subject to any and all present and future statutes, orders, rules and
regulations of any duly constituted authority having jurisdiction of the
relationship and transactions defined by this Agreement.
14. Notices. All notices, requests, demands or other communications
pursuant to this Agreement shall be in writing or by facsimile transmission and
shall be deemed to have been duly given (i) on the date of service, if delivered
in person, by a nationally recognized courier service, or by facsimile
transmission (with the facsimile confirmation of transmission receipt serving as
confirmation of service); or (ii) 48 hours after mailing by first class,
registered or certified mail, postage prepaid, and properly addressed as
follows:
If to the Corporation: Aegis Assessments, Inc.
0000 X. Xxxxxx Xxxx, Xxxxx X000
Xxxxxxxxxx, XX 00000
If to the Executive Vice President: Xxxxx Xxxxxxxxx
0000 Xxxxx Xxx Xxxxx
Xxxxxxxxxx, XX 00000
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or at such other address as the party affected may designate in a written notice
to such other party in compliance with this paragraph.
15. Right to Injunction. The parties hereto acknowledge that the services
to be rendered by the Executive Vice President under this Agreement and the
rights and privileges granted to the Corporation under the Agreement are of a
special, unique, unusual, and extraordinary character which gives them a
peculiar value, the loss of which cannot be reasonably or adequately compensated
by damages in any action at law, and the breach by the Executive Vice President
of any of the provisions of this Agreement will cause the Corporation
irreparable injury and damage. The Executive Vice President expressly agrees
that the Corporation shall be entitled to injunctive and other equitable relief
in the event of, or to prevent, a breach of any provision of this Agreement by
him. Resort to such equitable relief, however, shall not be construed to be a
waiver of any other rights or remedies that the Corporation may have for damages
or otherwise. The various rights and remedies of the Corporation under this
Agreement or otherwise shall be construed to be cumulative, and no one of the
them shall be exclusive of any other or of any right or remedy allowed by law.
16. Entire Agreement. This Agreement constitutes the final, complete, and
exclusive agreement between the parties with respect to the subject matter
hereof and supersedes all prior oral and written, and all contemporaneous oral
negotiations, agreements, and understandings. This Agreement may be amended only
by an instrument in writing that expressly refers to this Agreement and
specifically states that such instrument is intended to amend this Agreement and
is signed on behalf of both parties.
17. Execution in Counterparts. This Agreement many be executed in several
counterparts and by facsimile, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
18. Choice of Law and Consent to Jurisdiction. All questions concerning the
validity, interpretation or performance of any of the terms, conditions and
provisions of this Agreement or of any of the rights or obligations of the
parties, shall be governed by, and resolved in accordance with, the laws of the
State of Arizona. Any and all actions or proceedings, at law or in equity, to
enforce or interpret the provisions of this Agreement shall be litigated in
courts having situs within the State of Arizona.
19. Assignability. Except for those portions of this Agreement which are
specifically non-assignable and non-transferable, the attempted assignment or
transfer of which shall constitute a material breach of this Agreement, the
Executive Vice President shall not assign any of his rights under this
Agreement, or delegate the performance of any of his duties hereunder, without
the prior written consent of the Corporation.
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20. Consent to Agreement. By executing this Agreement, each party, for
himself, represents such party has read or caused to be read this Agreement in
all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this Agreement.
21. Attorney's Fees. In the event of a legal proceeding between the parties
to enforce a provision under this Agreement, the prevailing party to such action
shall be entitled to recover from the other party its reasonable attorney's fees
and costs for participating in the legal action.
22. Severability. To the extent any provision of this Agreement shall be
determined to be unlawful or otherwise unenforceable, in whole or in part, such
determination shall not affect the validity of the remainder of this Agreement,
and this Agreement shall be reformed to the extent necessary to carry out its
provisions to the greatest extent possible. In the absence of such reformation,
such part of such provision shall be considered deleted from this Agreement and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect. In furtherance and not in limitation of
the foregoing, should the duration or geographical extent of, or business
activities covered by any provision of this Agreement be in excess of that which
is valid and enforceable under applicable law, then such provision shall be
construed to cover only that duration, extent or activities which may validly
and enforceably be covered. To the extent any provision of this Agreement shall
be declared invalid or unenforceable for any reason by any Governmental or
Regulatory Authority in any jurisdiction, this Agreement (or provision thereof)
shall remain valid and enforceable in each other jurisdiction where it applies.
Both parties acknowledges the uncertainty of the law in this respect and
expressly stipulate that this Agreement shall be given the construction that
renders its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law.
IN WITNESS WHEREOF the parties have executed this Agreement in duplicate
and in multiple counterparts, each of which shall have the force and effect of
an original, on the date specified in the preamble of this Agreement.
CORPORATION: EXECUTIVE VICE PRESIDENT:
Aegis Assessments, Inc.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxx /s/ Xxxxx Xxxxxxxxx
---------------- -------------------
Xxxx Xxxxxxx Xxxxx Xxxxxxxxx
Its: Chief Executive Officer
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