EXHIBIT 10.1
CREATIVE HOLDINGS & MARKETING CORPORATION
EMPLOYMENT AND NONCOMPETITION AGREEMENT
This employment and noncompetition ("Agreement") is entered into this 22nd
day of October, 2002, by and between CREATIVE HOLDINGS & MARKETING CORPORATION,
a Nevada corporation (the "Company") and XXXX XXXXX ( "Employee").
WHERAS, Employee has expertise in management and executive operations of
public companies and in the financial and operational affairs of such
businesses; and
WHERAS, the Company desires the exclusive right to Employee's employment
for the term of this Agreement as identified below; and
WHERAS, Employee desires to engage in such employment all on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. Employment. The Company hereby employs Employee and Employee hereby accepts
employment with the Company as the Company's CHIEF EXECUTIVE OFFICER in
accordance with the terms and conditions set forth herein. Employee agrees to
devote his time as necessary, skill, knowledge and attention to the business of
the Company and to the performance of his duties under this Agreement. Employee
shall also serve as the Company's Chairman of the Board of Directors, however
all compensation and duties for that position will be addressed in a separate
agreement.
2. Term. This Agreement shall be effective November 1, 2002, upon signature of
the parties hereto, and shall continue for a term of five years or until
terminated pursuant to paragraph 6 below.
3. Duties. Employee shall be responsible for the following duties during the
term of this Agreement:
A. Developing and implementation of all corporate strategies;
B. Reviewing all corporate contracts;
C. Overseeing all departments and operations;
D. Performing such other duties as may be necessary.
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4. Compensation. Employee shall receive compensation from the Company for his
employment hereunder as follows:
A. Base Salary. Employee's base annual gross salary shall be
$100,000.00, payable monthly or quarterly. Base Salary will increase
by 5% every year of this Agreement up to a maximum of $125,000,
provided the Company posted a net profit in the year previous to the
year in which the raise is payable.
B. Compensation for services rendered prior to this Agreement.
Employee's firm Xxxxxxx and Xxxxx shall receive a $75,000 cash
payment for services rendered to date for the Company payable prior
to December 31, 2002.
C. Vacation/Holidays. Employee shall be entitled to paid vacations and
holidays up to four weeks each year.
D. Expense Reimbursement. The Company shall pay, upon submission of
appropriate vouchers and supporting documentation, all expenses of
Employee incurred in connection with the rendering of services to
the Company as an employee pursuant to this Agreement in accordance
with the Company's usual and ordinary practices, provided that such
expenses are reasonable and necessary business expenses of the
Company. Expense reports are subject to approval.
5. Additional Benefits.
A. The Company will establish an incentive based stock option plan for
Employee to earn shares in the Company. This plan will be initiated
following one year of net profit by the Company or upon
implementation by the board of directors.
6. Termination.
Except as set forth herein, and nonwithstanding the terms set forth
in paragraph 2 hereof, this Agreement may be terminated by the
Company prior to the expiration of such term as follows:
A. In the event of Employee's death.
B. In the event of Employee's disability, and after expiration of the
90 day period described below;
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(i) Employee shall be considered disabled if he is unable to
perform his normal duties under this Agreement for a
continuous period of ninety (90) days by reason of physical or
mental incapacity and is therefore entitled to receive
disability benefits under Employee's disability policy with
the Company. The Company shall provide Employee with written
notice of commencement of the disability period. Termination
in accordance with this provision shall not affect Employee's
right, if any, to receive benefits otherwise available to him
pursuant to any disability insurance plan under which Employee
is covered. Should Employee not receive disability benefits
under the disability plan during this ninety day period, he
shall receive his full salary even though disabled.
(D) At the option of the Company, with written notice, for cause, in the
event that Employee shall commit any of the following acts:
(i) Incompetence, breach of fiduciary duty involving personal
profit, commission of a criminal act against the Company,
failure to perform duties as required for reasons other than
physical or mental disability, or habitual use of alcohol or
drugs which materially impairs Employee's ability to carry out
his duties;
(ii) Rendering any material assistance, directly or indirectly, to
any person or entity in that person's or entity's competitive
efforts with the Company;
(iii) Use of the Company's proprietary information or customer lists
for his own benefit or in a way adverse to the Company's
interest;
B. Payment Upon Termination. Upon termination for cause of Employee's
employment under this paragraph 6, the salary payable to Employee
pursuant to (4) (a) shall be paid one year's severance pay from the
date of the termination notice.
C. Actions by the Company. For purposes of this paragraph 6, any action
on the part of the Company must be authorized by a majority of the
Company's Board of Directors.
D. Return of the Company's Materials. Upon termination, employee shall
immediately return to the Company all files, credit cards, keys,
instruments, equipment, documents and any other materials owned or
provided by the Company.
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7. Confidential Information. Employee acknowledges that through the services to
be performed for the Company, he will obtain confidential information regarding
the Company's business affairs, including such matters as computer programs,
research, customer lists, customer development, planning, purchasing, finance,
marketing, customer relations, and other information of a similar nature not
available to the public. This information may be oral or written and may be that
which Employee originates as well as that which otherwise comes into his
possession or knowledge. Employee agrees that he will treat all matters relating
to the business activities of the Company as confidential and will not divulge
or disclose any information gained in connection with his employment by the
Company to any other person, firm, or corporation except upon the written
request or instruction of the Company or in the normal course of his duties as
an employee of the Company. Employee agrees not to use or disclose, for purpose
of marketing or otherwise, any of the customer information he receives while
working at the Company (including, but not limited to, customers' identity and
financial status and holdings) in competition with the Company either on his own
behalf, or as a representative, agent, employee, officer, director, trustee,
stockholder, or creditor of, or partner, joint venturer, or investor with or in,
any other person or entity in competition with the Company, and Employee further
agrees not to inform any such customer with whom he comes into contact after
termination of Employee's employment with the Company that he is aware of the
person's status as a Company customer. This paragraph 7 is intended to protect
confidential information and customer relationships, both during and after the
period of Employee's employment with the Company, not limit Employee's right to
seek and obtain employment in competition with the Company after termination of
Employee's employment with the Company.
8. Inventions and Creations.
A. Employee agrees that all inventions, discoveries, developments,
improvements, ideas, and other contributions (herein called
collectively "Inventions") whether or not patented or patentable, or
otherwise protectable in law, which are conceived, made, developed
or acquired by Employee, either individually or jointly, during his
employment with the Company and which relate in any manner to
Employee's work, the research or business of the Company, or fields
to which the business of the Company may reasonably extend, shall
belong to the Company. Employee further agrees to assign and
transfer to the Company his entire right, title, and interest in and
to the Inventions. Employee further agrees to promptly and fully
disclose the Inventions to the Company, in writing if requested by
the Company, and to execute and deliver any and all lawful
applications, assignments, and other documents which the Company
requests for protecting the Inventions in the United States or any
other country. The Company shall have the full and sole power to
prosecute such applications and to take all other action concerning
the Inventions, and Employee agrees to cooperate fully, at the
expense of the Company, in the preparation and prosecution of all
such applications and in any legal actions and proceedings
concerning the Inventions.
B. Employee agrees to and does hereby assign, convey, and transfer to
the Company any and all records, writings, and other creations
(herein called collectively "Creations"), created by Employee,
either individually or jointly, during his employment by the Company
and which relate to the business of the Company. The Company shall
have the full right to seek and procure copyright on the Creations,
and Employee shall cooperate fully, at the expense of the Company,
in securing copyrights and in any legal actions and proceedings
concerning the Creations.
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C. Without diminishing any rights granted to the Company in
subparagraphs 8.A and .B, if an Invention is described in a patent
application or is disclosed to third parties by Employee within two
(2) years after leaving the employ of the Company, or if a Creation
is published or is disclosed to third parties by Employee within two
(2) years after leaving the employ of the Company, Employee agrees
that it is to be presumed that the Invention or the Creation was
conceived, made, developed, acquired, or created by Employee during
the period of his employment by the Company, and the Invention or
Creation will belong to the Company.
9. Noncompetition. In consideration of Employee's employment, Employee agrees
not to compete with the Company in any territory in which, during the three (3)
year period prior to the termination of his employment, the Company has
performed its service or sold its products, or solicit any of the Company's
customers, directly or indirectly either on his own behalf, or as a
representative, agent, employee, officer, director, trustee, stockholder, or
creditor of, or partner, joint venturer, or investor with or in, any other
person or entity in competition with the Company, during his employment with the
Company and for a period of three (3) years after termination of his employment
with the Company, regardless of the reasons for, circumstances of, or date of
such termination.
10. Relocation. Employee must approve any plans or decision to relocate his
employment to another geographical area.
11. Remedies. In addition to other remedies provided by law or equity, upon a
breach of any of the covenants contained herein, either party shall be entitled
to have a court of competent jurisdiction enter an injunction against either
party prohibiting any further breach of the covenants contained herein. The
parties further agree that the services to be performed hereunder are of a
unique, special, and extraordinary character. Therefore, in the event of any
controversy concerning the rights or obligations under this Agreement, such
rights or obligations shall be enforceable in a court of competent jurisdiction
at law, to be located in the county jurisdiction in which the Employee resides
at the time, or equity by a decree of specific performance or by obtaining
damages or such other relief. Such remedies, however, shall be cumulative and
nonexclusive and shall be in addition to any other remedies.
12. Assignment. This Agreement and the respective rights, duties, and
obligations of Employee hereunder may not be assigned or delegated by Employee.
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13. Notice. Any notice (including notice of change of address) permitted or
required to be given pursuant to the provisions of this Agreement shall be
in writing and sent by registered or certified mail, return receipt
requested, or by hand delivery to the parties at the following addresses:
If to the Company: 0000 Xxxxxxxx Xxxxx #000
Xxxxxx Xxxxx, X.X. 00000
and
If to Employee: 0000 Xxxxxxxx Xxxxx #000
Xxxxxx Xxxxx, X.X. 00000
Notice properly given by mail shall be deemed effective one (1) business day
after mailing. The foregoing addresses may be changed by either party so long as
the other party is advised in writing in advance of the change. Any such notice
of change of address shall be appended to this Agreement.
14. Entire Agreement. This Agreement constitutes the entire Agreement and
understanding between the Company and Employee concerning Employee's employment
by the Company, and supersedes any and all previous Agreements or
understandings, whether written or oral, between Employee and the Company
concerning such employment. This Agreement may not be modified orally, but only
by an Agreement in writing signed by the parties hereto.
15. Waiver. The waiver by either party of the breach of any covenant or
provision in this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
16. Invalidity of any Provision. The provisions of this Agreement are severable,
it being the intention of the parties hereto that should any provisions hereof
be invalid or unenforceable, such invalidity or unenforceability of any
provision shall not affect the remaining provisions hereof.
17. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida.
18. Headings. Headings in this Agreement are for informational purposes only and
shall not be used to construe the intent of this Agreement.
19. Counterparts. This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same Agreement.
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20. Reasonableness of Restrictions. EMPLOYEE HAS READ THIS AGREEMENT AND AGREES
THAT THE CONSIDERATION PROVIDED BY THE COMPANY IS FAIR AND REASONABLE AND
FURTHER AGREES THAT GIVEN THE IMPORTANCE TO THE COMPANY OF THE CUSTOMER LIST AND
THE COMPANY'S PARTICULAR METHODS OF DOING BUSINESS, THE POSTEMPLOYMENT
RESTRICTIONS ON EMPLOYEE'S ACTIVITIES ARE LIKEWISE FAIR AND REASONABLE.
COMPANY:
CREATIVE HOLDINGS & MARKETING CORP
------------------------------------------------
XXXX XXXXX, as Director
EMPLOYEE:
------------------------------------------------
XXXX XXXXX
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