BUCKEYE VENTURES, INC. EMPLOYMENT AGREEMENT
Exhibit 10.17
This
Employment Agreement ("Agreement") is made as of February 10, 2006 by and between Buckeye
Ventures, Inc. (the "Company"), a Nevada corporation, and Xxxx X. Xxxxx
("Employee"). Upon the closing
of the Share Exchange Agreement between the Company and World Wide Motion
Pictures Corporation
(“World Wide“) this agreement will continue in force between Employee and World
Wide.
1. Employment. The Company
hereby agrees to employ the Employee and the Employee hereby
agrees to work for the Company upon the terms and conditions set forth
herein.
2. Term of Agreement. This
Agreement shall continue in effect for an initial term of two years (2) from the date of this
Agreement and shall be automatically renewed for successive one year periods unless either party notifies
the other that this Agreement shall expire at the end of the then
current term or unless terminated in accordance
with Section 6.
3. Scope
of Duties; Representations and Warranties.
(a) The
Employee shall have such duties as are assigned or delegated to the Employee
by the Board of Directors of the
Company and will initially serve as the Chief-Executive-Officer
(‘CEO’) of the Company. Unless mutually agreed,
the Employee shall have only such duties as are customary and usual for the position in which the
Employee is serving. The Employee will devote his entire business
time, attention, skills, and energy
exclusively to the business of the Company, and will use his best efforts
to promote the success of the Company's
business, and will cooperate fully with the Board of Directors in
the advancement of the best interests of
the Company. The Employee shall also serve as Chairman of The Board of the Company and the Employee
shall fulfill his duties as such. Employee shall be compensated for such Chairman duties as determined by
the Board of Directors.
(b) The
Employee represents and warrants that the execution and delivery by the
Employee of this Agreement do not, and
the performance by the Employee of the Employee's obligations hereunder will not, with or without the
giving of notice or the passage of time, or both: (i) violate any judgment, writ, injunction, or order of
any court, arbitrator, or governmental agency applicable to the Employee, (ii) conflict with, result in
the breach of any provisions of or the termination of, or constitute
a default under, any agreement to which
the Employee is a party or by which the Employee is or may be bound.
4.
Compensation.
(a) The
Company shall initially pay the Employee an annual base salary to be
determined, but not greater than that
of the other senior managers of the Company (the "Initial Base Salary"), subject to adjustment as
provided below, which will be payable in equal periodic installments according to the Company's customary
payroll practices, but no less frequently than monthly. Employee's base salary will be reviewed by the
Board of Directors of the Company not less frequently than annually, and may be adjusted upward or downward
in the sole discretion of the Board of Directors of the Company, but in no event will Employee's base
salary be less than the Initial Base Salary.
1
(b) All
payments of salary and other compensation to the Employee shall be made
after deduction of any taxes and other
amounts which are required to be withheld with respect thereto under applicable federal and state
laws.
5.
Fringe Benefits;
Expenses.
(a) So long as
the Employee is employed by the Company, the Employee shall participate in all employee benefit
plans sponsored by the Company, or to which the Company contributes, for its executive employees, including
but not limited to vacation policy, sick leave and disability leave,
life insurance, health insurance, dental
insurance, and bonus, stock option, stock ownership and/or profit sharing plans; provided,
however, that the nature,
amount and limitations of such plans shall be determined from time to time by the Board of
Directors of the Company.
(b) The
Company shall reimburse the Employee for all reasonable business expenses
incurred by the Employee in the scope
of his employment; provided,
however, that the Employee
must file expense reports with respect to such
expenses in accordance with the Company's policies as are in effect from time to time.
(c) The
Employee shall be entitled to vacation in accordance with the vacation policies
of the Company in effect from time to
time. The Employee will also be entitled to the paid holidays and other paid leave set forth in the
Company's policies. Vacation days earned during any calendar year that
are not used by the Employee by the end of
the following calendar year will be forfeited.
6. Termination. The Company may
terminate this Agreement with or without "Cause" at any time, subject to the terms of this
Section 6. Such termination shall be effective upon delivery of
written notice to the Employee of the Company's
election to terminate this Agreement under this Section 6.
(a) Definition of
"Cause". When used in connection with the termination of employment with
the Company,
"Cause" means: (i)
Employee's breach of his obligations under this Agreement after the Employee has been given notice
specifying such breach and a reasonable opportunity to cure such breach;
(ii) Employee's failure to adhere to any
written Company policy after the Employee has been given notice specifying the failure and a reasonable
opportunity to comply with such policy or cure his failure to comply;
(iii)the conviction of, indictment for or
the entering of a guilty plea or plea of no contest with respect to,
a felony, the equivalent thereof, or any
other crime with respect to which imprisonment is a possible punishment; (iv) the commission by the
Employee of an act of fraud upon the Company or any of its affiliates; (v) the misappropriation
(or attempted misappropriation) of any funds or property of the Company or any of its affiliates by the
Employee; (vi) the failure by the Employee to perform the duties assigned to him under this Agreement
after reasonable notice and opportunity to cure such performance; (vii) the engagement by the Employee in
any direct, material conflict of interest with the Company without compliance with the Company's conflict
of interest policy, if any, then in effect; (viii) the engagement by the Employee, without the written
approval of the Board of Directors of the Company, in any activity
which competes with the business of the
Company or any of its affiliates or which would result in a material
injury to the Company or any of its
affiliates; (ix) the engagement by the Employee in any activity which
would constitute a material violation of the
provisions of the Company's Xxxxxxx Xxxxxxx Policy or Business
Ethics Policy, if any, then in effect, (x) the
failure by the Employee to sign any lock-up letters, standstill agreements, or other similar
documentation required by an underwriter in connection with a public
offering of securities by the Company or to take
other actions reasonably related thereto as requested by the Board
of Directors of the Company, or (xi) any
act or omission by the Employee that, in the judgment of the Board
of Directors of the Company, has or could
have a material adverse effect on (a) the Company's properties, operations or public image, or (b) the
health, safety or morale of any of the Company's suppliers,
employees or customers.
2
(b) Termination for Cause or
Resignation. If the Company terminates the Employee's employment for Cause or the Employee
voluntarily resigns, the Company shall pay the Employee's base salary earned through the date of
termination but all rights to any other compensation or benefits
arising hereunder shall be canceled and
terminated in all respects concurrently with such termination of employment; provided that Employee may
elect to continue to participate, at Employee's own expense, in such health insurance and other
benefits as to which the opportunity for continuing participation is mandated by applicable
laws.
(c) Termination Without
Cause. In the event that the Employee's employment is terminated by the Company without
Cause, or the Employee terminates this Agreement due to a material breach by the Company, the Company
shall, subject to the terms of
subsections (d) and (e) of this Section 6 below, and only if and as long as
Employee is not in breach of his obligations under this Agreement, pay
to the Employee an amount equal to six
months salary at his then current base salary payable in a lump
sum.
(d) Disability; Death. If
at any time during the term of this Agreement, the Employee is unable due to physical or mental
disability to perform effectively his duties hereunder, the Company
shall continue payment of compensation as
provided in Section
4 during the first six
months of such disability to the extent not covered by the Company's
disability insurance policies. Upon the expiration of such six- month period, the Company, at its sole
option, may continue payment of the Employee's salary for such additional periods as the Company
elects, or may terminate this Agreement without further obligations hereunder. If the Employee should die
during the term of this Agreement, the Employee's employment and the Company's obligations hereunder
shall terminate as of the end of the month in which the Employee's death occurs and there will be no
salary and benefit continuation period.
(e) Waiver and Release.
In the event that employment is terminated by the Company without Cause, the Employee shall
accept, in full settlement of any and all claims, losses, damages and
other demands which the Employee may have
arising out of such termination, as liquidated damages and not as a penalty, the applicable amounts payable
to Employee as set forth in this Section 6. The Employee hereby waives any and all rights he may have
to bring any cause of action or proceeding contesting any
termination without Cause. Under no circumstances
shall the Employee be entitled to any compensation or confirmation of any benefits under this
Agreement for any period of time following his date of termination if his termination is for
Cause.
7.
Covenant Not to
Compete.
(a) During
the Employee’s employment with the Company and its affiliates, the Employee will not compete with the
Company or its affiliates, directly or indirectly, either for himself or
as a member of a partnership or as a
stockholder (except as a stockholder of less than one percent of the
issued and outstanding stock of a
publicly-held company whose gross assets exceed $100 million), investor,
owner, officer or director of a company or
other entity, or as an employee, agent, associate or consultant of any
person, partnership, corporation or
other entity, in any business in competition with that carried on by
the Company or its
affiliates.
(b) For
a period two years from and after the date of termination of Employee's
employment with the Company or any of
its Affiliates, regardless of the reason for such termination, the Employee will not (1) represent, engage
in, carry on, or have a financial interest in, directly or
indirectly, individually, as a member of a
partnership or limited liability company, equity owner, stockholder
(other than as a stockholder of Parent or as a
stockholder of less than one percent (1 %) of the issued and outstanding
stock of a publicly-held company whose gross assets exceed $100 million),
investor, owner, officer,
director, trustee, manager, employee, agent, associate or consultant, in any
business which directly competes
with any of the services or products produced, sold, conducted, developed, or in
the process of
3
development by the Company on the date
of termination of Employee's employment, including any indoor air quality, heating, ventilation, air
conditioning, plumbing products or services (2) directly or
indirectly, whether as a principal, agent, officer,
director, employee, consultant, independent contractor or otherwise, alone, in association with or on behalf
of any other person, firm, corporation or other business
organization, (A) solicit, sell, call upon, advise,
do or attempt to do business with or otherwise contact any customer
of Company, its parent, subsidiaries or
other affiliate companies as of the date of such termination, or (B)
(i) hire or attempt to hire any employee of
Company, its parent, subsidiaries or other affiliate companies, (ii) assist in such hiring by any other
person, (iii) encourage any such employee to terminate his/her employment with Company, its parent,
subsidiaries or other affiliate companies and/or (iv) solicit, encourage or induce any customer to
terminate its relationship with the Company, its parent, subsidiaries
or other affiliate
companies.
(c) The
Employee acknowledges that the limitations set forth herein on his rights to
compete with the Company and its
affiliates are reasonable and necessary for the protection of the
Company and its affiliates. In this regard,
Employee specifically agrees that the limitations as to period of time
and geographic area, as well as all other
restrictions on his activities specified herein, are reasonable and necessary for the protection of the
Company and its affiliates. Employee agrees that, in the event that
the provisions of this Agreement should
ever be deemed to exceed the scope of business, time or geographic limitations permitted by applicable
law, such provisions shall be and are hereby reformed to the maximum scope of business, time or geographic
limitations permitted by applicable law.
(d) Employee
agrees that the remedy at law for any breach by him of this Section 7
will be
inadequate and that the Company shall also be entitled to injunctive
relief.
(e) Any
violation of the covenant not to compete described in this Section 7 shall
extend the time period thereof for a
period of time equal to the period of time during which such
violation continues. In the event the Company or
any of its affiliates is required to seek relief from such violation
in any court, board of arbitration or
other tribunal, then the covenant shall be extended for a period of
time equal to the pendency of such
proceedings and any appeals thereof.
8.
Confidential
Information. During the Employee’s employment with the Company and its
affiliates, and for five years after
his termination of employment, the Employee will not make use of or disclose, without the prior consent of
the Company, Confidential Information (as hereinafter defined) relating to the Company, or any of its
affiliates, and will return to the Company at the termination of the Employee's employment or at any other
time at the Company's request all written materials in his
possession embodying such Confidential
Information. For purposes of this Agreement, "Confidential
Information" includes
information conveyed or assigned to the Company by Employee or conceived,
compiled, created, developed, discovered or obtained by
Employee from and during his employment relationship with the Company, whether solely by the Employee
or jointly with others, which concerns the affairs of the Company or its affiliates and which the
Company could reasonably be expected to desire be held in confidence, or the disclosure of which
would likely be embarrassing, detrimental or disadvantageous to the Company or its affiliates and without
limiting the generality of the foregoing, such information includes information relating to inventions, and
the trade secrets, technologies, algorithms, products, services, finances, business plans, marketing
plans, legal affairs, supplier lists, client lists, potential clients,
business prospects, business opportunities,
personnel assignments, contracts and assets of the Company and information made available to the
Company by other parties under a confidential relationship.
Confidential Information, however, shall not include
information (i) which is, at the time in question, in the public domain through no wrongful act of
Employee, (ii) which is later disclosed to Employee by one not under obligations of confidentiality to the
Company or Employee, (iii) which is required by court or
governmental order, law or regulation to be
disclosed, or (iv) which the Company has expressly given Employee the
right
4
to disclose pursuant to written
agreement. Employee acknowledges that the remedy at law for any
breach by him of this Section 8 will be
inadequate and that the Company shall also be entitled to injunctive
relief.
9. Notice. All notices,
requests, demands and other communications required by or permitted under this Agreement shall be in
writing and shall be sufficiently given if delivered by hand, by
courier service, sent by registered mail,
postage prepaid, or sent by facsimile (with written confirmation of
receipt) to the parties at their respective
addresses listed below:
|
(a)
|
If
to the Employee:
|
|
|
0
Xxxxxxxxx
|
||
|
Xxxxxxx
Xxxxx, XX 00000
|
||
|
(b)
|
If
to the Company:
|
|
|
0000
Xxxx Xxxx Xxx
|
||
|
Xxxxxxx
Xxxxx, XX 00000
|
||
|
Attn:
CEO/President
|
Either
party may change such party's address by such notice to the other
party.
10. Assignment. This Agreement is
personal to the Employee, and he shall not assign any of his rights or delegate any of his
duties hereunder without the prior written consent of the Company.
Neither the Employee nor his spouse will have
the right to pledge, encumber, or otherwise dispose of any payments under this Agreement. The Company shall
have the right to assign this Agreement to a successor in interest in connection with a merger, sale of
substantially all assets, or the like; provided
however, that an
assignment of this Agreement to an
entity with operations, products or services outside of the industries
in which the Company or its affiliates is
then active shall not be deemed to expand the scope of Employee's covenant not to compete with such
operations, products or services without Employee's written
consent.
11. Survival. The provisions of
this Agreement shall survive the termination of the Employee's employment
hereunder in accordance with their terms.
12. Governing Law. This Agreement
shall be governed by, and construed and enforced in accordance
with, the laws of the State of Virginia.
13. Binding Upon Successors. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and
their respective heirs, legal representatives, successors and
permitted assigns.
14. Entire Agreement. This
Agreement constitutes the entire agreement between the Company and the
Employee with respect to the terms of employment of the Employee by the Company
and supersedes
all prior agreements and understandings, whether written or oral, between them
concerning such terms
of employment.
5
15. Waiver and Amendments; CumulativeRights and
Remedies
(a) This
Agreement may be amended, modified or supplemented. and any obligation
hereunder
may be waived, only by a written instrument executed by the parties hereto, The
waiver by either party of a breach of any provision of this Agreement shall not operate as a
waiver of any subsequent breach.
(b) No
failure on the part of any party to exercise, and no delay in exercising, any
right or
remedy hereunder shall operate as a waiver hereof, nor shall any single or
partial exercise of any such right or remedy
by such party preclude any
other or further exercise thereof or the exercise of any other right or remedy. All
rights and remedies hereunder are cumulative and are in addition to all other
rights and remedies provided
by law, agreement or otherwise.
(c) The
Employee's obligations to the Company and the Company's rights and remedies
hereunder are in addition to all other obligations of the Employee and rights
and remedies of the Company created pursuant to any other
agreement.
16. Construction. Each party to
this Agreement has had the opportunity to review this Agreement
with legal counsel.. This Agreement shall not be construed or interpreted against any party
on the basis that such party drafted or authored a particular provision. parts
of or the entirety of this Agreement.
17. Severability. in the event
that any provision or provisions of this Agreement is held to be invalid,
illegal or unenforceable
by any court of law or
otherwise, the remaining provisions of this Agreement shall nevertheless continue
to be valid, legal and enforceable as though the invalid or unenforceable
parts had not bean included therein. in addition, in such event the parties
hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
panics as closely as possible with respect to those provisions which were held
to be invalid, illegal or unenforceable.
WITNESS
WHEREOF, the Company and the employee have executed this agreement effective as
of the date first above written.
| COMPANY: | |||
| Buckeye Ventures, inc. | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxx | |||
| Title: Secretary | |||
| EMPLOYEE: | |||
|
|
By:
|
/s/ Xxxx X. Xxxxx | |
| Name: Xxxx X. Xxxxx | |||
6
