EXHIBIT 10.5
[GRAPHIC OMITTED][GRAPHIC OMITTED]
EMPLOYMENT AGREEMENT
This Agreement, dated as of October 19, 2004 is by and between RG America,
Inc., a Nevada corporation ("Employer"), and Xxxxx Xxxxxx Xxx ("Employee").
WHEREAS, Employee desires to enter into the employment of Employer, and
Employer desires to employ Employee provided that, in so doing, it can protect
its confidential information, business, accounts, patronage and good will;
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual covenants set forth below, the parties hereto agree as follows:
1. Compensation and Employment. Employee agrees to enter into the
employment of Employer, and Employer agrees to employ Employee, on the terms and
conditions set forth below. Employer shall pay to Employee, and Employee agrees
to accept as full consideration for his employment:
(a) $10,000.00 per month during the initial term of this Agreement,
which shall increase to;
(b) $12,500.00 per month upon Employer raising a total of $4 million
in new equity;
(c) $15,000.00 per month upon Employer obtaining either of 50,000 or
more apartment units placed into the PropertySMARTSM program or $8 million in
annual PropertySMARTSM gross revenues;
(d) $20,000.00 per month upon Employer becoming cash flow positive
with a Net Operating Income equal to five (5) percent of sales;
payable by-weekly and in accordance with Employer's standard payroll practices,
subject to all appropriate withholdings
(e) Further, Employee, if a licensed agent, is eligible for
commissions on sales of Employer's insurance products at a rate equal to 35% of
the total gross commissions; and further shall earn 3% commissions on gross
sales of Employer's adjusting and construction business earned by Employer on
sales directed by Employee and paid all such commissions the total of which
shall be in addition to the annualized scheduled base salaries above, effective
September 1, 2004.
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Employee shall be entitled to four (4) weeks paid vacation per year and
such other fringe benefits as the Board of Directors of Employer may, in its
sole discretion, determine. Employee may at his or her sole option carry 50% of
all unused vacation into the next year or chose to be paid for the time at his
or her normal rate of pay. If payment is chosen, it will occur within January of
the year following the year in which it was earned. Employee agrees during the
term of his employment to devote such of his business time as may reasonably be
required and his reasonable best efforts, skills and abilities to the
performance of his duties as stated in this Agreement and to the furtherance of
the business of Employer and its affiliates.
Employee shall be entitled to additional compensation of $1000.00 per
month as car and local travel expenses re-imbursement. This shall be payable
by-weekly and in accordance with Employer's standard payroll practices, subject
to all appropriate withholdings.
Employee shall be entitled to re-imbursement of up to $750.00 per month
for health insurance expenses until such time as Employer makes a company
sponsored health insurance plan available to Employee.
Employee's job title initially shall be Chief Operating Officer (COO).
Employee agrees that this position is at all times subject to oversight by the
positions immediate manager as well as the Board of Directors and Chairman of
the Board of Employer. Employment includes all tasks and assignments reasonable
to such position and performing such other services for Employer and its
affiliates as may be reasonably directed from time to time by senior management
including the Board of Directors or Chairman of the Board of Employer.
Employee's job title may be changed to such other title as may be determined
from time to time by the Board of Directors of Employer. Employee has been
granted five million (5,000,000) incentive stock options as provided for in the
Employers Omnibus Stock Plan. The vesting of, price of and other details
pertaining to these options is described in the separate document(s) titled
Notice of Award of Incentive Stock Options. Employee shall also use his
reasonable best efforts to preserve the business of Employer and its affiliates.
Employee acknowledges receipt of Employer's Employment handbook as of the date
of this Agreement and agrees to act in conformity with the lawful terms and
provisions set forth therein at all times during the term of his employment by
Employer provided that all amendments or supplements thereto are delivered to
Employee in writing and that he shall only be subject to any such amendment or
supplement after his receipt thereof.
2. Term. The employment of Employee shall begin on the date of this
Agreement and shall continue for five (5) years or until the earliest of (a) the
date Employer terminates it for just cause, (b) the death of Employee, or (c)
upon termination by the Employee through written notice given at least 14 days'
prior written notice. For purposes of this Section 2, "just cause" for
termination shall be: (a) the failure or inability for any reason of Employee to
devote such time as agreed to by the Employee and the Employer pursuant hereto
to Employer's and its affiliates' business, (b) the failure of Employee to
perform his duties under this Agreement, (c) the commission by Employee of any
act involving moral turpitude or the commission by Employee of any act or the
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suffering by Employee of any occurrence or state of facts, which renders
Employee incapable of performing his duties under this Agreement, or adversely
affects Employer's business reputation, (d) any breach by Employee of any of the
material terms of, or the failure to perform any material covenant contained in,
this Agreement, (e) the violation by Employee of instructions or policies
established by Employer communicated to Employee with respect to the operation
of its business and affairs or Employee's failure to carry out the reasonable
instructions of the Board of Directors and Chairman of the Board of Employer,
(f) the commission by Employee of any action or the existence of any state of
facts which would legally justify an employer in terminating a contract of
employment or (g) provision of 14 days' prior written notice to Employee.
Notwithstanding anything to the contrary in this Agreement, the provisions
of Sections 3, 4 and 5 shall survive any termination of Employee's employment
under this Agreement. In the event of the termination of Employee's employment
prior to the completion of the term of employment specified above, Employee
shall be entitled only to the compensation earned and benefits accrued by him as
of the date of termination.
3. Nondisclosure Agreement. Employee, during the term of employment
under this Agreement, shall have access to and become familiar with various
trade secrets and proprietary and confidential information consisting of, but
not limited to, processes, computer programs, compilations of information,
records, sales procedures, customer requirements, pricing techniques, customer
lists, methods of doing business and other confidential information
(collectively referred to as the "Trade Secrets"), which are owned by Employer
and its affiliates and regularly used in the operation of its business, but in
connection with which Employer takes precautions to prevent dissemination to
persons other than certain directors, officers and employees. Employee
acknowledges and agrees that the Trade Secrets (a) are secret and not known in
the industry; (b) are entrusted to Employee after being informed of their
confidential and secret status by Employer and because of the fiduciary position
occupied by Employee with Employer; (c) have been developed by Employer for and
on behalf of Employer through substantial expenditures of time, effort and money
and are used in its business; (d) give Employer an advantage over competitors
who do not know or use the Trade Secrets; (e) are of such value and nature as to
make it reasonable and necessary to protect and preserve the confidentiality and
secrecy of the Trade Secrets; and (f) the Trade Secrets are valuable, special
and unique assets of Employer, the disclosure of which could cause substantial
injury and loss of profits and goodwill to Employer. Employee shall not use in
any way or disclose any of the Trade Secrets, directly or indirectly, either
during the term of this Agreement or at any time thereafter, except as required
in the course of his employment under this Agreement. All files, records,
documents, information, data and similar items relating to the business of
Employer, whether prepared by Employee or otherwise coming into his possession,
shall remain the exclusive property of Employer and shall not be removed from
the premises of Employer under any circumstances without the prior written
consent of the Board of Directors of Employer (except in the ordinary course of
business during Employee's period of active employment under this Agreement),
and in any event shall be promptly delivered to Employer upon termination of
this Agreement. Employee agrees that upon his receipt of any subpoena, process
or other request to produce or divulge, directly or indirectly, any Trade
Secrets to any entity, agency, tribunal or person, Employee shall timely notify
and promptly hand deliver or deliver through a reputable overnight delivery
service a copy of the subpoena, process or other request to the President of
Employer.
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4. Non-competition Agreement. Employee acknowledges and agrees that as
a result of the information he has acquired regarding the Employer prior to the
date hereof, as well as the further training he will receive, the experience he
will gain while employed and the information he will acquire regarding the Trade
Secrets will enable him to injure Employer if he should compete with Employer or
its affiliates in a business that is competitive with the business conducted or
to be conducted by Employer or its affiliates. For these reasons, Employee
hereby agrees as follows:
(a) Without the prior written consent of Employer, Employee shall
not, during the period of employment with Employer, directly or indirectly,
either as an individual, a partner or a joint venturer, or in any other
capacity, (i) invest (other than investments in publicly-owned companies which
constitute not more than 1% of the voting securities of any such company) or
engage in any business that is competitive with that of Employer or its
affiliates, (ii) accept employment with or render services to a competitor of
Employer or any of its affiliates as a director, officer, agent, employee or
consultant, (iii) contact (other than for social purposes), solicit or attempt
to solicit or accept business from any (A) customers of Employer or its
affiliates or (B) person or entity whose business Employer or its affiliates is
soliciting, (iv) contact (other than for social purposes), solicit or attempt to
solicit or accept or direct business that is competitive with such business
being conducted by Employer or any of its affiliates during Employee's
employment under this Agreement from any of the customers of Employer or any of
its affiliates, or (v) take any action inconsistent with the fiduciary
relationship of an employee to his employer. As used herein, "affiliates" shall
mean persons or entities that directly or indirectly, through one or more
intermediaries, control or are controlled by, or are under common control with,
Employer.
(b) Upon any termination or cessation of his employment with
Employer for any reason whatsoever, and for a period of two years thereafter,
Employee shall not, without the prior written consent of Employer, directly or
indirectly, either as an individual, a partner or a joint venturer, or in any
other capacity, within 100 miles of any location of Employer or its affiliates,
engage in any (i) accept employment with or render services consisting to a
competitor of Employer or its affiliates as a director, officer, agent, employee
or consultant, or (ii) contact (other than for social purposes), solicit or
attempt to solicit or accept business (A) from any of the customers of Employer
or its affiliates as of the date of this Agreement or at the time of Employee's
termination or cessation of employment, or (B) from any person or entity whose
business Employer or its affiliates were soliciting as of such time.
5. Non-employment Agreement. For a period of two years after the
termination or cessation of his employment with Employer for any reason
whatsoever, Employee shall not, on his own behalf or on behalf of any other
person, partnership, association, corporation or other entity, hire or solicit
or in any manner attempt to influence or induce any employee of Employer or its
affiliates to leave the employment of Employer or its affiliates, nor shall he
use or disclose to any person, partnership, association, corporation or other
entity any information obtained while an employee of Employer concerning the
names and addresses of such employees.
6. Severability. The parties hereto intend all provisions of Sections 4
and 5 hereof to be enforced to the fullest extent permitted by law. Accordingly,
should a court of competent jurisdiction determine that the scope of any
provision of Sections 4 and 5 hereof is too broad to be enforced as written, the
parties intend that the court reform the provision to such narrower scope as it
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determines to be reasonable and enforceable. In addition, however, Employee
agrees that the non-competition agreements, nondisclosure agreements and
non-employment agreements set forth above each constitute separate agreements
independently supported by good and adequate consideration and shall be
severable from the other provisions of, and shall survive, this Agreement. If
any provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term hereof, such provision
shall be fully severable and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision never comprised a part of
this Agreement; and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance here from. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
7. Inventions. Employee shall promptly disclose, grant and assign to
Employer for its sole use and benefit any and all inventions, improvements,
technical information and suggestions relating in any way to the products of
Employer or any of its affiliates or capable of beneficial use by Employer or
any of its affiliates, which Employee has while providing services to Employer
conceived, developed or acquired, or may conceive, develop or acquire during the
term hereof (whether or not during usual working hours), together with all
patent applications, letters patent, copyrights and reissues thereof that may at
any time be granted for or upon any such invention, improvement or technical
information. In connection therewith, Employee shall promptly at all times
during and after the term hereof:
(a) Execute and deliver such applications, assignments,
descriptions and other instruments as may be reasonably necessary or proper in
the opinion of Employer to vest title to such inventions, improvements,
technical information, patent applications and patents or reissues thereof in
Employer and to enable it to obtain and maintain the entire right and title
thereto throughout the world at Employer's cost and expense.
(b) Render to Employer, at its expense at Employee's reasonable
rate, all such assistance as it may require in the prosecution of applications
for said patents or reissues thereof, in the prosecution or defense of
interferences which may be declared involving any said application or patents,
and in any litigation in which Employer may be involved relating to any such
patents, inventions, improvements or technical information.
8. Remedies. Employee recognizes and acknowledges that the
ascertainment of damages in the event of his breach of any provision of this
Agreement would be difficult, and Employee agrees that Employer, in addition to
all other remedies it may have, shall have the right to injunctive relief if
there is such a breach.
9. Acknowledgements. Employee acknowledges and recognizes that the
enforcement of any of the non-competition provisions in this Agreement by
Employer will not interfere with Employee's ability to pursue a proper
livelihood. Employee further represents that he is capable of pursuing a career
in other industries to earn a proper livelihood. Employee recognizes and agrees
that the enforcement of this Agreement is necessary to ensure the preservation
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and continuity of the business and good will of Employer. Employee agrees that
due to the nature of Employer's business, the non-competition restrictions set
forth in this Agreement are reasonable as to time and geographic area. At any
time during Employee's employment with Employer and for a period of two years
thereafter, Employer may request Employee to supply such information as is
reasonably necessary to ascertain whether or not Employee has complied with, or
has violated, the restrictive covenants of Sections 3, 4, and 5 hereof. Any such
request for information will be sent to Employee by certified mail, return
receipt requested, addressed to Employee's last known address. Employee shall
furnish the requested information to Employer within 10 days following the
receipt of such request unless the disclosure of such information causes
Employee to breach a binding nondisclosure agreement.
10. Notices. Any notices, consents, demands, requests, approvals and
other communications to be given under this Agreement by either party to the
other shall be deemed to have been duly given if given in writing and personally
delivered or sent by mail, registered or certified, postage prepaid with return
receipt requested, as follows:
If to Employee: _______________________
(name)
_______________________
(address)
_______________________
(city, state, zip code)
__________________(FAX, if applicable)
If to Employer: RG America, Inc
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Any party may change its address for notice by written notice given to the other
parties. Notices delivered personally shall be deemed communicated as of actual
receipt; mailed notices shall be deemed communicated as of three days after
mailing.
11. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or written, between the parties hereto with respect to
the subject matter hereof and contains all of the covenants and agreements
between the parties with respect thereto.
12. Modification. No change or modification of this Agreement shall be
valid or binding upon the parties hereto, nor shall any waiver of any term or
condition in the future be so binding, unless such change or modification or
waiver shall be in writing and signed by the parties hereto.
13. Governing Law and Venue. The parties acknowledge and agree that this
Agreement and the obligations and undertakings of the parties hereunder will be
performable in Dallas, Dallas County, Texas. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Texas. If any
action is brought to enforce or interpret this Agreement, venue for such action
shall be in Dallas County, Texas.
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14. Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original, but all of which shall constitute one
document.
15. Costs. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
16. Estate. If Employee dies prior to the expiration of the term of
employment, any monies that may be due him from Employer under this Agreement as
of the date of his death shall be paid to his estate or such other beneficiaries
as are designated by Employee in writing.
17. Assignment. Employer shall have the right to assign this Agreement
to its successors or assigns. The terms "successors" and "assigns" shall include
any person, corporation, partnership or other entity that buys all or
substantially all of Employer's assets or all of its stock, or with which
Employer merges or consolidates. The rights, duties and benefits to Employee
hereunder are personal to him, and no such right or benefit may be assigned by
him.
18. Binding Effect. This Agreement shall be binding upon the parties
hereto, together with their respective executors, administrators, successors,
personal representatives, heirs and assigns.
19. Waiver of Breach. The waiver by Employer of a breach of any
provision of this Agreement by Employee shall not operate or be construed as a
waiver of any subsequent breach by Employee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
RG AMERICA, INC.
By:___________________________________,
Its________________________________
AND
______________________________________
(PRINT NAME)
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