PHOENIX INTERNATIONAL VENTURES, INC. EMPLOYMENT AGREEMENT
Exhibit
10.6
EMPLOYMENT
AGREEMENT
(this
“Agreement”)
made
as of this 14th day of December, 2006 by and between
PHOENIX INTERNATIONAL VENTURES, INC.,
a
Nevada corporation, having an office at 0000 Xxxxxxxx Xxx, Xxxxxx Xxxx, Xxxxxx
00000 ("Employer")
and
Xxxxx
Xxxx,
an
individual residing at 0000 X. Xxxxxx Xx., Xxxxxx, XX 00000 ("Executive");
W
I T N E S S E T H:
WHEREAS,
Employer desires to employ Executive as the Chief Executive Officer and
President of Employer; and
WHEREAS,
Executive is willing to be employed as the Chief Executive Officer and President
of Employer in the manner provided for herein, and to perform the duties of
the
Chief Executive Officer and President of Employer upon the terms and conditions
herein set forth;
NOW,
THEREFORE,
in
consideration of the promises and mutual covenants herein set forth it is agreed
as follows:
1. Employment.
Effective the Effective Date (herein defined), Employer hereby employs Executive
as Chief Executive Officer and President.
2. Term.
Subject
to Section 9 and Section 10 below, the term of this Agreement shall be for
a
period of thirty six (36) months commencing on the Effective Date (the
“Term”).
The
Term of this Agreement shall be automatically extended for additional one (1)
year periods, unless either party notifies the other in writing at least ninety
(90) days prior to the expiration of the then existing Term of its intention
not
to extend the Term.
The
Effective Date shall mean the earlier of (i) ninety (90) days after filing
of a
registration statement concerning Employer’s common stock with the Securities
and Exchange Commission (“SEC”)
and
(ii) the SEC’s declaration of the effectiveness of such registration
statement.
3. Duties.
(a) The
Executive shall perform those functions generally performed by persons of such
title and position, including, without limitation, responsibilities concerning
financial management, plant management, sales management, public company
management, human resource management, communication with government, customers
and other business relationships, strategic planning, and contract negotiations,
shall attend all meetings of the stockholders and the Board, shall perform
any
and all related duties and shall have any and all powers as may be prescribed
by
resolution of the Board, and shall be available to confer and consult with
and
advise the officers and directors of Employer at such times that may be required
by Employer. Executive shall report directly and solely to the
Board.
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(b) Executive’s
employment by Employer shall be full-time, and during the Term, Executive agrees
that he will (i) devote all of his business time and attention, his best
efforts, and all his skill and ability to promote the interests of Employer,
and
if, as, and when requested, the interests of Employer’s affiliates, and (ii)
carry out his duties and work with other employees of Employer in a competent
and professional manner. Notwithstanding the foregoing, Executive, with the
consent of Employer, which consent shall not be unreasonably withheld, may
engage other business activities.
(c) Executive
agrees that, for no additional compensation, he will serve as a member of
Employer’s Board.
4. Compensation/Stock
Options.
(a) (i)
Executive shall be paid a minimum of (A) $120,000 per year during the first
twelve (12) months of the Term; (B) $180,000 per year during the second twelve
(12) months of the Term; and (C) not less than $180,000 per year during the
third twelve (12) months of the Term. Executive shall be paid periodically
in
accordance with the policies and procedures of the Employer during the Term,
but
not less than monthly. In this regard, if Employer does not have sufficient
cash
flow to pay Executive his compensation that is due and payable hereunder in
accordance with this Agreement’s terms, Employer shall so notify Executive of
this circumstance and shall be entitled to suspend periodic payments of
Executive’s compensation. Executive’s compensation will nevertheless continue to
accrue and will be shown on Employer’s books and financial statements as a debt
of Employer. When Employer has sufficient cash flow, it shall promptly pay
Executive his accrued but unpaid compensation and recommence periodic payments
of compensation under this Agreement.
(ii) Executive
is eligible for an annual increase (but not decrease) in his base compensation,
which will be determined by the Board and paid in accordance with policies
and
procedures set from time-to-time by the Board.
(iii) Executive
shall be entitled to receive annually a bonus and success fee calculated as
follows: the product of (A) one percent (1%) and (B) all revenues from
Employer’s operations in excess of $4,000,000. The bonus and success fee shall
not exceed $130,000 during any twelve month period and shall be based on the
calculations contained in the Employer’s audited financial statements prepared
by the Employer’s then engaged independent accountants. Executive shall be paid
the bonus and success fee within thirty (30) days of the issuance of Employer’s
audited financial statements.
(iv) The
Board
shall from time-to-time consider other incentive programs, without duplication,
for Executive, which are customary for executive officers similarly situated
in
Employer’s industry.
(b) Employer
shall include Executive in its health insurance program available to Employer's
executive officers and shall pay 100% of the premiums for such
program.
(c) Executive
shall have the right to participate in any other employee benefit plans
established by Employer.
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(d) Executive
shall receive such other benefits such as life insurance and disability
insurance, which are customary for executive officers similarly situated in
Employer’s industry, as deemed appropriate by the Board.
(e) Executive
shall be issued an option to purchase up to 660,000 shares of Employer’s common
stock. The aggregate purchase price for the common stock is $330,000. The
exercise price shall be $.50 per share, which the parties agree is the fair
market value of the common stock on the Effective Date hereof. This option
shall
expire December 31, 2010 and shall vest immediately upon issuance. The option
and the underlying shares of common stock issuable upon exercise of the option
(the “Option
Shares”)
shall
be subject to the customary restrictions on transfer. Provided Executive
provides Employer with the customary ‘investor rep’ letter and the transfer
otherwise complies with federal and state securities law, he may transfer the
all or a portion of the Option Shares to an entity with respect to which
Executive and his affiliates control.
5. Expenses.
Executive shall be reimbursed for all of his actual, out-of-pocket, ordinary
and
necessary expenses incurred in the performance of his duties hereunder. Such
expenses must be previously approved by Employer and must be otherwise
acceptable to Employer, which approval shall not be unreasonably withheld.
Executive shall submit to Employer reasonably detailed receipts with respect
thereto.
6. Vacation. Executive
shall be entitled to receive four (4) weeks paid vacation time after each year
of employment upon dates agreed upon by Employer. Upon separation of employment,
for any reason, vacation time accrued and not used shall be paid at the salary
rate of Executive in effect at the time of employment separation.
7. Secrecy.
At no
time shall Executive disclose to anyone any confidential or secret information
(not already constituting information available to the public) concerning the
internal affairs, business operations, and trade secrets of Employer. To this
end, Executive shall execute and deliver Employer’s Agreement Relating to
Inventions, Patents, Copyrights, and Confidential Information (Including
Covenant against Competing Employment).
8. Covenant
Not to Compete.
(a) Subject
to, and limited by, Section 10(b), Executive will not, at any time, during
the
Term, and for one (1) year thereafter, either directly or indirectly, engage
in,
with or for any enterprise, institution, whether or not for profit, business,
or
company, competitive with the business (as identified herein) of Employer as
such business may be conducted on the date thereof or on the date of the
termination of this Agreement for any reason, as a creditor, guarantor, or
financial backer, stockholder, director, officer, consultant, advisor, employee,
member, or otherwise of or through any corporation, partnership, association,
sole proprietorship or other entity; provided, that an investment by Executive,
his spouse or his children is permitted if such investment is not more than
two
percent (2%) of the total debt or equity capital of any such competitive
enterprise or business and further provided that said competitive enterprise
or
business is a publicly held entity whose stock is listed and traded on a
national stock exchange, the NASDAQ Stock Market, or the over-the-counter
bulletin board or any successor thereto. As used in this Agreement, the business
of Employer shall be the business of manufacturing, upgrading and
remanufacturing of ground support equipment for the defense-aerospace
industry.
(b) For
a
period one (1) year from the date of termination of this agreement Executive
shall not contact or solicit any of the Employer’s dealers, customers, employees
or suppliers.
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9. Termination.
(a) Termination
by Employer
(i) Employer
may terminate this Agreement upon written notice for Cause. For purposes hereof,
"Cause" shall mean (A) Executive's misconduct as could reasonably be expected
to
have a material adverse effect on the business and affairs of Employer, (B)
the
Executive's disregard of lawful instructions of Employer’s Board of Directors
consistent with Executive's position relating to the business of Employer or
neglect of duties or failure to act, which, in each case, could reasonably
be
expected to have a material adverse effect on the business and affairs of
Employer, (C) engaging by the Executive in conduct that constitutes activity
in
competition with Employer, (D) the conviction of Executive for the commission
of
a felony, and/or (E) the habitual abuse of alcohol or controlled substances.
Notwithstanding anything to the contrary in this Section 9(a)(i), Employer
may
not terminate Executive's employment under this Agreement for Cause unless
Executive shall have first received notice from the Board advising Executive
of
the specific acts or omissions alleged to constitute Cause, and such acts or
omissions continue after Executive shall have had a reasonable opportunity
(at
least 10 days from the date Executive receives the notice from the Board) to
correct the acts or omissions so complained of. If this Agreement is terminated
for Cause, Employer shall have no further obligation to compensate Executive
pursuant to Section 4 above as of the date of termination, except for salary
and
bonus accrued by the Executive as of the date of termination.
(ii) This
Agreement automatically shall terminate upon the death of Executive, except
that
Executive's estate shall be entitled to receive any amount accrued under Section
4.
(b) Termination
by Executive
(i) Executive
shall have the right to terminate his employment for “Good Reason” under this
Agreement upon 30 days' notice to Employer given within 90 days following the
occurrence of any of the following events (A) through (F):
(A) Executive
is not elected or retained as Chief Executive Officer and
President.
(B) Employer
acts to materially reduce Executive's duties and responsibilities hereunder.
Executive's duties and responsibilities shall not be deemed materially reduced
for purposes hereof solely by virtue of the fact that Employer is (or
substantially all of its assets are) sold to, or is combined with, another
entity, provided that Executive shall continue to have the same duties and
responsibilities with respect to Employer's business, and Executive shall report
directly to the chief executive officer and/or board of directors of the entity
(or individual) that acquires Employer or its assets.
(C) Employer
acts to change the geographic location of the performance of Executive's duties
from the Carson City, Nevada area. For purposes of this Agreement, the Carson
City, Nevada area shall be deemed to be the area within 100 miles of the current
address of the Employer as set forth above.
(D) A
Material Reduction (as hereinafter defined) in Executive's rate of base
compensation, or Executive's other benefits. "Material
Reduction"
shall
mean a ten percent (10%) differential;
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(E) A
failure
by Employer to obtain the assumption of this Agreement by any successor;
or
(F) A
material breach of this Agreement by Employer, which is not cured within thirty
(30) days of written notice of such breach by Employer.
(ii) Anything
herein to the contrary notwithstanding, Executive may terminate this Agreement
upon ninety (90) days written notice.
(iii) If
Executive shall terminate this Agreement under Section 9(b)(i)(A)-(F), Executive
shall be entitled to receive six (6) months salary. Other than the foregoing
payment, Employer shall have no further obligation to compensate Executive
pursuant to Section 4 above. If
Executive shall terminate this Agreement pursuant to Section 9(b)(ii), Executive
shall only be entitled to any accrued and unpaid base compensation as of the
date of termination as provided in Section 4(a).
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10.
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Consequences
of Breach by Employer; Employment
Termination
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(a) If
Employer shall terminate Executive's employment under this Agreement, without
Cause, or in any way that is a breach of this Agreement by Employer, the
following shall apply:
(i) Executive
shall be entitled to payment of six (6) months salary; and
(ii) Executive
shall be entitled to payment of any previously declared bonus as provided in
Section 4 above.
(b) In
the
event of termination of Executive's employment pursuant to Section 9(b)(i)
of
this Agreement, the provisions of Section 8 shall not apply to
Executive.
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11. Enforceability.
Executive
acknowledges that certain of the provisions contained in this Agreement,
including but not limited to those contained in Section 7 and Section 8 hereof,
are intended to protect Employer, and accordingly each employee of Employer
shall be deemed a third party beneficiary with respect to such provisions and
shall have the right to enforce such provisions as appropriate. The failure
of
any party at any time to require performance by another party of any provision
hereunder shall in no way affect the right of that party thereafter to enforce
the same, nor shall it affect any other party’s right to enforce the same, or to
enforce any of the other provisions in this Agreement; nor shall the waiver
by
any party of the breach of any provision hereof be taken or held to be a waiver
of any subsequent breach of such provision or as a waiver of the provision
itself.
12. No
Conflict.
Executive
represents and warrants that Executive is not subject to any agreement,
instrument, order, judgment or decree of any kind, or any other restrictive
agreement of any character, which would prevent him from entering into this
Agreement or which would be breached by Executive upon his/her performance
of
his/her duties pursuant to this Agreement.
13. Attorneys'
Fees and 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 attorney's
fees, costs and necessary disbursements in addition to any other relief to
which
he may be entitled.
14. Entire
Agreement; Survival.
This
Agreement contains the entire agreement between the parties with respect to
the
transactions contemplated herein and supersedes, effective as of the date hereof
any prior agreement or understanding between Employer and Executive with respect
to Executive's employment by Employer. The unenforceability of any provision
of
this Agreement shall not effect the enforceability of any other provision.
This
Agreement may not be amended except by an agreement in writing signed by the
Executive and the Employer, or any waiver, change, discharge or modification
as
sought. Waiver of or failure to exercise any rights provided by this Agreement
and in any respect shall not be deemed a waiver of any further or future
rights.
15. Assignment.
This
Agreement shall not be assigned to other parties, except in the event of the
sale of all of Employer’s business and the assumption in writing of Employer’s
obligations hereunder by the purchaser of Employer’s business. Notwithstanding
the foregoing, Executive may assign his right to receive compensation hereunder
to one of his affiliates.
16. Governing
Law.
This
Agreement and all the amendments hereof, and waivers and consents with respect
thereto shall be governed by the internal laws of the State of Nevada, without
regard to the conflicts of laws principles thereof.
17. Notices.
All
notices, responses, demands or other communications under this Agreement shall
be in writing and shall be deemed to have been given when
(a) delivered
by hand;
(b) three
business days after being sent by registered or certified mail, return receipt
requested; or
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(c) received
by the addressee as sent be express delivery service (receipt requested) in
each
case to the appropriate addresses as the party may designate to itself by notice
to the other parties:
(i)
if to
the Employer:
0000
Xxxxxxxx Xxx
Xxxxxx
Xxxx, Xxxxxx 00000
Attention:
Xxxx Xxxxxxxxx
Xxxxxxx
Xxxxxx LLP
000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
(ii)
if
to the Executive:
Xxxxx
Xxxx
0000
X.
Xxxxxx Xx.
Xxxxxx,
XX 00000
18. Severability
of Agreement.
Should
any part of this Agreement for any reason be declared invalid by a court of
competent jurisdiction, such decision shall not affect the validity of any
remaining portion, which remaining provisions shall remain in full force and
effect as if this Agreement had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties that they
would have executed the remaining portions of this Agreement without including
any such part, parts or portions which may, for any reason, be hereafter
declared invalid.
19. Withholdings.
Employer
may withhold from any amounts payable under this Agreement such Federal, state
or local taxes as shall be required to be withheld pursuant to any applicable
law or regulation.
[Signatures
on the following page]
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IN
WITNESS WHEREOF,
each of
the undersigned has executed this Employment Agreement as of the day and year
first above written.
| PHOENIX INTERNATIONAL VENTURES, INC. | ||
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| By: | /s/ Xxxx Xxxxxxxxx | |
|
Xxxx Xxxxxxxxx |
||
| Vice President | ||
| |
|
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| By: | /s/ Xxxxx Xxxx | |
|
Xxxxx Xxxx |
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