EXHIBIT 14.1
XXXXXX BEAUMONT, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "AGREEMENT") IS made AND entered INTO this 91" DAY
OF December, 2004 (the "Effective Date"), by and between the Xxxxxx Beaumont,
Inc. (the "Company"), and Xxxxxxxx Xxxxxxxxx ("Employee"). The Company desires
to retain Employee, and Employee desires to accept or continue employment
pursuant to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of their mutual agreements, the
parties agree as follows..
ARTICLE 1: PROVISION OF SERVICES
The Company hereby retains Employee in the capacity described in
EXHIBIT A. Employee hereby accepts such position. Employee shall (i) perform all
duties and responsibilities assigned by the Company, and (ii) such additional
duties as are set forth in EXHIBIT A (collectively, the "Services").
ARTICLE 2: CERTAIN COVENANTS OF EMPLOYEE
2.1 PERFORMANCE OF SERVICES. Employee is employed to perform the
Services exclusively under this Agreement. Employee shall devote full time and
attention and best efforts to providing the Services in a high quality,
efficient and economical manner.
2.2 ADEQUATE COVERAGE. Employee shall provide the Services in a manner
sufficient to meet the needs of the Company, as may be reasonably determined
from time-to-time by the Company, but shall include but not be limited to
working during regular business hours as established by the Company and as
otherwise needed.
2.3 ADHERENCE TO COMPANY'S, POLICIES AND RULES. Employee shall fully
comply with all Company policies, procedures and rules, whether now in force or
hereafter adopted or amended at the Company's discretion.
2.4 CONDUCT. Employee shall adhere to all applicable ethical rules and
all applicable Federal, state, and local laws, rules, and regulations. Employee
shall act in a professional and cooperative manner in all matters concerning
employment by the Company.
2.6 OUTSIDE EMPLOYMENT. Prior to the termination of this Agreement
Employee shall not accept any other office or outside employment, full time or
part time, whether public, private, for-profit or non-profit, and whether with
or without compensation, without the written consent of the Company CEO or
President. Except, however, Employee may engage in unpaid, purely personal,
non-profit work that does not in any way violate the Company's policies or the
Restrictive Covenant provisions and does not interfere with Employee's
performance for the Company.
2.6 COMPLIANCE WITH LAWS. Employee shall adhere to all Federal, state,
and local laws, rules, and regulations and shall observe and conduct his or her
activities with respect to co-workers, employees and agents, and others in
compliance with all federal, state and local
laws and ordinances, including anti-discrimination laws and those governing the
appropriate treatment of employees.
2.7 OWNERSHIP AND RETENTION OF FILES, DOCUMENTS AND RECORDS. All
records and related documents (collectively, "Records") created by Employee, if
any, while performing Services shall belong to the Company. Records shall not be
removed from Company property without the Company President's prior consent_
2.8 SETOFF. In the event Employee owes the Company any amount, the
Company shall HAVE THE RIGHT TO setoff that amount against amounts owed TO
Employee, through payroll deduction or otherwise.
ARTICLE 3: COMPENSATION AND BENEFITS
3.1 COMPENSATION AND BENEFITS. In consideration of Employee's
compliance with this Agreement, Company shall pay Employee compensation and
provide benefits as described in EXHIBIT B pursuant to the Company's normal
payroll procedures. NON-CASH COMPENSATION. The Company shall provide Executive
with non-cash compensation as set forth on EXHIBIT C.
3.2 EMPLOYEE STOCK PLAN. Employee will be permitted to participate in
any Company employee stock incentive or stock benefit plan adopted by the
Company and approved by the Board of Directors pursuant to the terms of such
plan.
ARTICLE 4. EMPLOYMENT STATUS
To the extent that Employee acts within the scope of this Agreement,
Employee shall be regarded as an employee of the Company, including, without
limitation, income tax and employment tax purposes, and shall represent such to
third parties. The Company shall withhold and be responsible for the payment of
any Federal, state or local income or occupational taxes, FICA taxes,
unemployment compensation or workers' compensation contributions, or similar
payments. In the event Employee acts outside the scope of this Agreement, he or
she shall be acting on his or her own accord and not for the Company or as an
employee or agent of the Company.
ARTICLE 5: TERM AND TERMINATION
5.1 TERM. The term of this Agreement shall be from January 1, 2005 to
December 31, 2006. The terms and conditions of Employee's employment are subject
to change at any time. Employee may resign at any time, with or without reason.
Employer may terminate Employee's employment at any time, with or without cause.
This Agreement shall continue in effect until it is terminated by either party.
5.2 TERMINATION UPON EXPIRATION OF PROBATIONARY PERIOD. The initial 90
day period of employment is the probationary or introductory period. In the
event Employee's employment is terminated during the probationary period based
on performance, Employee agrees and acknowledges that Employer shall have no
responsibility, directly or indirectly, to Employee for Unemployment
Compensation payments.
5.3 NOTICE. Either party may terminate this Agreement at any time.
However, in the event Employee terminates without giving four (4) weeks written
notice to the Company, any Compensation owed to Employee at that time shall be
reduced to the minimum wage provided
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by law rather than the regular compensation amount. However, if Employee is
unable to give notice due to medical, health or other unavoidable condition or
the Company otherwise waives this provision, Employee's final pay shall not be
reduced as set forth in this Section.
5.4 VACATION OF PREMISES AND STATUS REPORT. Upon any termination of
this Agreement, Employee shall, on or before the effective date for said
termination: (i) remove all personal possessions from the office and other areas
Employee occupies within the Company (ii) vacate the premises owned or occupied
by the Company, (iii) return to the Company all equipment, records, and other
property of the Company then in Employee's possession, or otherwise under
Employee's direction or control, and (iv) within 3 days of the termination shall
advise the Company's President in writing of the progress and status of material
matters for which Employee had primary responsibility.
5.5 EFFECT OF TERMINATION. Upon termination of this Agreement, neither
party shall have any further obligation hereunder except for (i) obligations
accruing prior to the date of termination, and (ii) obligations or covenants
contained herein that are expressly intended to extend beyond the term of this
Agreement, including, without limitation, covenants relating to confidentiality,
non-competition, non-solicitation, and non-piracy, and setoff. Employee's final
paycheck shall be due to Employee on the next payroll date within 14 days of
Employee's compliance with this Agreement.
5.6 PAYMENT BY COMPANY UPON SEPARATION. Subject to the Setoff
provision, if this Agreement is terminated for any reason, the Company shall pay
to Employee accrued but unpaid base compensation through the date of
termination. Payment or forfeiture of vacation pay, sick pay and bonuses shall
be shall pursuant to Company policy in effect at the time of separation. The
payments set forth in this subsection shall be in full and complete discharge of
any and all liabilities or obligations of the Company to Employee under this
Agreement, and Employee shall be entitled to no further benefits under this
Agreement.
ARTICLE 6: RESTRICTIVE COVENANTS
6.1 TERMS OF AGREEMENT. Employee understands the Company's need to
protect the Company's Business, Company Assets and its relationships with its
Business Associates, Business Associates shall mean clients, customers,
suppliers, employees, independent contractors, funding sources, and referral
sources. Business shall mean any and all businesses in which the Company
currently participates and those which the Company contemplates participation.
Company Assets shall mean the Company's relationships with its Business
Associates, all Confidential Information and all information, documents and
other goods owned by the Company. Employee hereby agrees that the terms of this
Agreement are fair and reasonable and will not constitute an undue hardship on
Employee. Employee understands that the terms of this Agreement apply regardless
of the reason for or the circumstances relating to Employee's termination or
separation from the Company. A claim against the Company by Employee is not a
defense to the Company's enforcement of this Agreement.
6.2 LOYALTY DURING EMPLOYMENT. Employee agrees that during employment,
Employee owes a duty of loyalty to the Company. Employee will not take any
action adverse to the interests of the Company during employment. Employee
expressly agrees that Employee will not directly or indirectly solicit the
Company's actual or potential Business Associates; and will not directly or
indirectly compete with the Company; and will protect and not disclose the
Company's confidential information and Company Assets, including but not limited
to Trade Secrets. Employee expressly acknowledges that during employment,
Employee will not directly
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or indirectly receive compensation or remuneration of any kind relating to the
Business, including a kick-back or commission, from any referral sources,
client, supplier, competitor, or other Business Associate of the Company or from
any source other than the Company without the Company President's express
permission. It is understood by the Company that Employee is a licensed real
estate sales associate who wishes to have his license placed with a licensed
real estate broker in Sarasota, Florida and Employee is recognized by the State
of Florida as an employee of said broker. Employee is not planning to actively
sell or buy real estate other than for personal investment.
6.3 NON-SOLICITATION/NON-COMPETITION. Upon hiring and during the course
of Employee's employment with the Company, the Company may reveal to Employee
significant information about Business Associates in addition to other Company
Assets. The Company will assist Employee in developing relationships with its
actual and potential referral sources, clients, and other Business Associates.
Employee acknowledges that but for his agreement to comply with the terms and
conditions of this Agreement, Employee would not be employed by the Company, and
the Company would not reveal this information to Employee or assist Employee in
developing these relationships. Accordingly, Employee hereby agrees that after
the effective date of termination or separation of Employee's employment with
the Company, for any reason, Employee shall not (either as an individual on
his/her own account, or as a partner or joint venturer, or as an employee or
agent, or under the authority of any person or business entity, or as an
officer, director or stockholder of a company) directly or indirectly solicit or
contact for any business-related purpose any Business Associate of the Company,
especially actual and potential referral sources and actual and potential
clients, without the specific written consent of the Company President. Further
Employee shall not be employed in any capacity or receive compensation from any
entity that is soliciting the Company's Clients. This obligation shall begin on
the Employee's final date of employment with the Company and shall expire the
latter of (a) two years following the Employee's final date of employment with
the Company or (b) two years following any violation of this Agreement by
Employee.
6.4 NON-PIRACY. Upon hiring and during the course of Employee's
employment with the Company, the Company will reveal to Employee significant
valuable and Confidential Information about the Company and Business Associates
in addition to its other Company Assets. The Company will assist Employee in
developing relationships with its employees and independent contractors, and
recruits. Employee acknowledges that but for his/her agreement to comply with
the terms and conditions of this Agreement, Employee would not be employed by
the Company, and the Company would not reveal this information to Employee or
assist Employee in developing these relationships. Accordingly, Employee hereby
agrees that after the effective date of termination or separation of Employee's
employment with the Company, for any reason, Employee shall not (either as an
individual on his/her own account, or as a partner or joint venturer, or as an
employee or agent, or under the authority of any person or business entity, or
as an officer, director or stockholder of a company) directly or indirectly,
solicit, or attempt to influence any employee, independent contractor, or
recruit of the Company to (a) alter or terminate his/ her employment
relationship with the Company or (b) to enter into any other business
relationship relating to the Company's Business without the written consent of
the Company President. These obligations shall begin on the Employee's final
date of employment with the Company and shall expire the latter of (a) two years
following the Employee's final date of employment with the Company or (b) two
years following Employee's violation of this provision.
6.5 CONFIDENTIALITY. Employee agrees that during the period of
employment by the Company, AND AT ALL TIMES THEREAFTER, Employee will take all
necessary means to safeguard and
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protect the confidentiality of all Confidential Information (as defined herein).
Employee will not directly or indirectly disclose, or authorize or permit anyone
under Employee's direction to disclose, to anyone not properly entitled to such
disclosure any Confidential Information, without the prior written consent of
the Company President. For the purposes of this Agreement, "Confidential
Information" shall mean information possessed by the Company relating to the
Company's Business, referral sources, employees, clients or other Business
Associates. Confidential Information shall further be deemed to include, but not
be limited to, information relating to disclosures, processes, systems,
know-how, methods, techniques, drawings, apparatus, formulae, patentable and
non-patentable inventions, trade secrets, technical data, government filings,
materials, devices, costs, pricing information, payroll, finances, business
plans, marketing plans, business strategy, promotional methods, client
information and supplier information. Information or collections of information
shall be included in the definition of Confidential Information if not known by
the trade generally, even though portions of such information may be publicly
available, or may be available to certain third parties pursuant to arrangements
with the Company or other having contractual relationships with the Company.
Confidential Information shall include information, whether verbal or written,
whether disclosed to or learned by Employee intentionally or inadvertently, and
whether learned directly or indirectly because of Employee's relationship with
the Company. Notwithstanding the foregoing, Confidential Information shall not
include information which Employee can demonstrate by written proof was known to
Employee prior to Employee's initial employment with the Company and which was
not the subject of a contractual, legal or fiduciary duty to not disclose. The
obligations of Employee hereunder shall continue in effect indefinitely.
ARTICLE 7: INDEMNITY
7.1 The Employee shall indemnify and hold the Employer harmless from
and against any and all claims or actions brought by any person or from
liabilities, loses damages, costs, penalties and expenses, including but not
limited to attorneys' fees, costs and interest incurred by counsel of Employer's
choice, which may be sustained or incurred at any time by reason of:
(a) The Employee's failure to perform the services,
responsibilities and duties set out in this Agreement; or
(b) The Employee's gross negligence or willful conduct in
performing or failing to perform any service within the scope of Employee's
employment under this Agreement; or
(c) Violations of the prohibitions of criminal statutes under
federal or state law; or
(d) Violations of the prohibitions of civil statutes or
regulations under federal or state law (other than those involving simple or
ordinary negligence).
7.2 PROPRIETARY INFORMATION. Employee agrees that all documents,
information, and intellectual property purchased, possessed or created by any
employee of the Company, including Employee, during employment and relating to
the Company's Business are owned by and shall be controlled by the Company
UNLESS otherwise expressly AGREED IN WRITING. Without limiting the foregoing,
Employee agrees that all works, inventions and creations that relate in any way
to the Company's Business and which were invented or created while Employee was
an employee of the Company are owned by the Company. Upon termination, Employee
will immediately cease use of all information and property related to the
Company's Business and
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Employee will return all copies thereof to the Company by Employee. Any
discovery or invention or other proprietary information, including without
limitation, technical know-how, manufacturing techniques and pricing procedures
of the Company, which is known to Employee, but which has not been authorized to
be disclosed to the public, shall be deemed a Trade Secret and Confidential
Information held by Employee in strictest confidence and in a fiduciary capacity
for the exclusive benefit of the Company and the Company's successors and
assigns. UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, Employee shall have no
right to duplicate, translate, reverse engineer or adopt products, processes or
other Confidential Information without the Company President's prior written
consent. Employee shall promptly notify the Company of any third party
duplication, distribution, or use of any Company Confidential Information which
comes to the attention of Employee and shall provide the Company with whatever
reasonable assistance is necessary to stop such activities. Employee agrees to
execute any documents and take all reasonable steps to carry out this provision
and protect the Company's rights regarding its proprietary information.
7.3 INDEPENDENCE OF AGREEMENT AND INTERPRETATION. Each of these
covenants on the part of Employee shall be construed as an agreement independent
of any other agreement, and the existence of any claim or cause of action by
Employee against the Company, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of these
covenants. Each of these covenants shall be supported individually by the
consideration referenced herein. Each covenant shall be interpreted as broadly
as permitted by law, and if the law would require that any provision be
restricted for any reason, it is the Parties' desire that the Agreement remain
in full force and effect to the extent permitted by law.
7.4 REMEDIES. Employee further acknowledges and agrees with the Company
that the particular matters referred to in this Agreement are of such nature
that in the event of a threatened or actual violation thereof, proof of damages
would be extremely difficult. Therefore, in the event of the breach or
threatened breach by Employee of the covenants contained herein, Employee agrees
that the Company shall be entitled to injunctions, both preliminary and final,
without bond or security, enjoining and restraining such breach or threatened
breach and such remedies shall be in addition to all other remedies which may be
available to the Company either at law or in equity. The Company and Employee
agree and acknowledge that a violation of the covenants contained herein shall
cause the Company to suffer irreparable damages, including the potential
inability of the Company to prove specific money damages and Employee agrees
that he or she is estopped from subsequently asserting in any action to enforce
the provisions of the covenants contained herein that the Company has an
adequate remedy at law and therefore is not entitled to injunctive relief. The
Company shall maintain its right to collect from Employee damages caused by
Employee's breach of this Agreement.
ARTICLE 8: STANDARD PROVISIONS
8.1 AVOIDANCE OF VIOLATIONS, MODIFICATION. Notwithstanding any
provision of this Agreement, the parties shall not violate any applicable laws,
rules, or regulations. The parties shall modify this Agreement to the extent
necessary to comply with such laws, rules, and regulations.
8.2 AMENDMENT. No amendment to this Agreement shall be effective unless
it is in writing, attached to, or made a part of this Agreement, and executed by
a duly authorized representative of each party.
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8.3 ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. The Employee must personally perform the
Services. The Company may assign this Agreement to an entity with which it
becomes merged or otherwise affiliated and such entity may be added to or may
replace the Company at the Company's discretion upon notice to the Employee.
8.4 ENTIRE AGREEMENT. This Agreement and its exhibits embody the entire
agreement and understanding of the parties in respect of the transactions
contemplated by this Agreement. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
transactions.
8.6 NO THIRD PARTY RIGHTS. This Agreement is intended solely for the
benefit of the parties hereto and shall not be deemed to create any rights in
any other person or entity.
8.6 SEVERABILITY. If any provision or portion of this Agreement shall
become invalid or unenforceable for any reason, there shall be deemed to be made
such minor changes in such provision or portion as are necessary to make it
valid or enforceable. The invalidity or unenforceability of any provision or
portion hereof shall not affect the validity or enforceability of the other
provisions or portions hereof.
8.7 CAPTIONS. The captions of this Agreement are for convenience only
and are not a part of this Agreement and do not in any way limit or amplify the
provisions of this Agreement.
8.8 WAIVER OF COMPLIANCE. Except as otherwise provided in this
Agreement, any breach by a party may only be waived by the other party in a
written instrument signed by the waiving party. Such waiver shall not operate as
a waiver of, or estoppel with respect to, any subsequent or other breach.
8.9 ATTORNEYS' FEES. In the event of any litigation brought to enforce
the terms and covenants of this Agreement, the prevailing party shall have the
right to recover all costs, expenses and reasonable attorneys' fees incurred by
the prevailing party, including, without limitation, those incurred through any
trial, appeal or appearance in federal bankruptcy or reorganization proceedings,
or in connection with enforcing or collecting upon any final judgement.
8.10 NOTICE. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by certified or
registered mail, return receipt requested, to the parties at the following
address:
To the Company:
Attention: President
0000 Xxxxxxxxx Xxxxx, Xxxxx
000 Xxxxxxxx, XX 00000
With a copy to: Xxxxxxxx X. Xxxxxx
Williams, Parker, Xxxxxxxx, Xxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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To Employee: At the most recent home address on
file or an alternative address provided in writing
by employee.
8.11 WAIVER OF BREACH. The waiver by the Company of a breach of any
condition of this Agreement by Employee shall not be construed as a waiver by
the Company of any subsequent breach by Employee.
8.12 GOVERNING LAW AND VENUE. This Agreement shall be construed under
and governed by the laws of the State of Florida and venue shall lie in Sarasota
County.
8.13 DISCRETION TO WAIVE ENFORCEMENT. The Company President shall
retain the unilateral discretion to waive the enforcement of any provision of
this Agreement. Such a waiver would be effective only upon the Company
President's signing a detailed description of the waiver. The Company has not
and will not make any representations regarding future waivers of any provision
of this Agreement until presented with detailed facts and circumstances at the
time the request is made. Further, any waiver shall be limited to the signed
description.
8.14 ASSIGNMENT. The Company shall have the right to unilaterally
assign all rights and interests in this Agreement. In the event of such an
assignment, the new entity shall be added to the Company throughout this
Agreement and shall receive all of the rights, privileges and protections
afforded the Company under this Agreement.
8.15 WAIVER OF JURY TRIAL. To the extent permitted by law, in the event
OF A dispute between the parties, Employee and the Company hereby elect to have
a judge rather than a jury resolve any future disputes and hereby waive a trial
by jury of any and all issues arising in any action or proceeding relating to
this Agreement or to their employment relationship. However, for additional
clarity, the following is a list of some of the types of claims included in this
Waiver of Jury Trial: all claims in tort (for negligent or intentional acts), in
contract (whether verbal or written), by statute, for constitutional violation,
for wrongful discharge, discrimination, harassment, retaliation, or claims of
personal injury, for compensatory, punitive, or other damages, expenses,
reimbursements, or costs of any kind, including but not limited to, any and all
claims, demands, rights, and/or causes of action arising out of their
relationship from the beginning of time until the end of time. The Parties
understand that the right to a trial by jury is a constitutional right and that
this election to have a judge determine any claim, rather than a jury, is a
voluntary choice.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the Effective Date.
XXXXXX BEAUMONT, INC.
By: /S/ XXXXXXXX XXXXXX
-------------------------------
As Its CEO
---------
EMPLOYEE
By: /S/ XXXXXXXX XXXXXXXXX
-------------------------------
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EXHIBIT A
SERVICES
1. Employee is employed as the Vice President of Finance of the
Company.
2. Employee shall report to the CFO or his or her express designee on
the Board of Directors of the Company.
3. The Services shall include the following:
A. Employee shall perform such duties as may be assigned from
time to time at the direction of the Company's CFO or CEO.
B. Employee shall advise the Company CFO or CEO, of his or her
express designee of any problems, complaints, or concerns that Employee may have
or that may have been reported to Employee by others relating to the Company.
C. Employee shall keep the CFO or CEO informed and advised of
all significant events relating to Employee's performance, the Company, its
personnel, liability, risk, compliance, finances, and other matters identified
by the Company President or his or her designee.
D. Employee shall be responsible for interacting with clients,
volunteers, Board members, funding sources, and other professional contacts in a
professional friendly manner.
E. Employee shall perform all duties ordinarily performed by
an employee in an equivalent position of a comparable public company.
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EXHIBIT B
COMPENSATION AND BENEFITS
The Company shall pay Employee the following amounts as compensation
for the Services under this Agreement:
1. SALARY. Employee's annual salary at the time of execution of this
Agreement shall be $85,000. That salary may be adjusted from time to time by the
Company in consultation with the Employee. It is anticipated that Employee may
be moved to the position of CFO during the 2005 Fiscal Year. If the move is made
his annual salary will be increased to $96,000.
2. VACATION. Employee shad receive three weeks of paid vacation each
year of this agreement. Vacation shall be earned pro-rata each pay period
throughout the year.
3. BENEFITS. Employee shall be entitled to participate in the benefits
offered to all Company employees pursuant to the terms and conditions of those
plans and policies, which may change from time to time at the Company's
discretion. The Company retains the right to cancel or change plans or policies
in compliance with law. Employee will move from Benefits Group "B" to Benefits
Group "A" if he moves to position of CFO.
4. Employee shall have auto allowance of $400 per month. If he moves to
position of CFO his auto allowance shall increase to $500.
The compensation and benefits described above are consistent with
present Company policies. The Company reserves the right to unilaterally change
its policies with respect to compensation and benefits at any time.
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EXHIBIT C
STOCK PARTICIPATION
STOCK OPTIONS
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Employee shall be issued Options directly from Company (the "Options"):
500,000 Options at $.66 per share; 166,667 vest January 1, 2005; 166,666 vest
December 31, 2005; and 166,666 vest December 31, 2006. If the Company is sold,
vesting of all Options will accelerate to the date of sale. If Employee is
terminated "not for cause" all Options hereunder shall accelerate and vest as of
the date of termination.
EMPLOYEE STOCK PLAN. Employee will be permitted to participate in any Company
employee stock incentive or stock benefit plan adopted by the Company and
approved by the Board of Directors pursuant to the terms of such plan.
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