1
EXHIBIT 10.1(a)
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into on this 1st day of July, 1995 (the
"Effective Date"), by and between GOLD EXPRESS CORPORATION, a Washington
corporation (the "Company"), and XXXX XXXXXXX, a resident of the State of
California ("Employee").
In consideration of the employment by the Company and of the
compensation and other remuneration paid, and to be paid, by the Company and
received by Employee for such employment, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
Employee, it is agreed by and between the parties hereto as follows:
1. EMPLOYMENT: The Company agrees to employ Employee and Employee
agrees that he will devote his full productive time, skill, energy, knowledge
and best efforts during the period of his employment to such duties as the Board
of Directors of the Company may reasonably assign to him, and he will faithfully
and diligently endeavor to the best of his ability to further the best interest
of the Company during the period of his employment. However, Employee is not
prohibited from making personal investments in any other businesses, as long as
those investments do not require Employee to participate in the operation of the
companies in which he invests and such other businesses are not in competition
with the Company or any of its subsidiaries.
2. TERMS OF EMPLOYMENT: Employee's employment will begin on the 1st
day of July, 1995, and will end on the 1st day of July, 2000, a term of five (5)
years, unless earlier terminated in accordance with Sections 7 or 9 hereof or
extended upon the mutual consent of both parties.
3. COMPENSATION: On the terms and subject to the conditions of this
Agreement, (i) the Company will pay Employee a salary and a bonus determined in
accordance with Schedule A, (ii) Employee will be entitled to participate in the
Company's Employee Stock Option Plan as in effect from time to time, and (iii)
the Company will provide Employee with employee benefits consistent with those
provided by the Company to similarly situated executives. The Company's Employee
Stock Option Plan is summarized in Schedule B. The employee benefits provided by
the Company as of the date hereof are summarized in Schedule C.
4. TITLE AND DUTIES: The Company hires Employee as President and
Chief Executive Officer. Employee shall perform such duties and functions for
the Company as shall be specified from time to time by the Board of Directors of
the Company, including, but not limited to the duties and functions expressly
set forth on Schedule D, and which are consistent with Employee's duties set
forth on Schedule D.
5. ILLNESS OR INCAPACITY: Employee is entitled to absences because of
illness or incapacity of no more than a total of ninety (90) days in each
calendar year. If Employee cannot perform his duties because of illness or
incapacity for more than a total of ninety (90) days in any
1
2
year, the Company may terminate this Agreement upon thirty (30) days' written
notice to Employee. Employee is not entitled to receive, and the Company shall
not be required to pay, Employee's compensation hereunder for absences because
of illness or incapacity other than the total of ninety (90) days in each year
granted to Employee under this Paragraph 5. If Employee returns to work and is
able to discharge his duties in full, Employee shall be deemed reinstated and
thereafter shall be entitled to full compensation hereunder.
6. TERMINATION OF AGREEMENT UPON SALE OR TERMINATION OF COMPANY'S
BUSINESS:
a. Notwithstanding anything to the contrary contained in this
Agreement, the Company may terminate Employee's employment upon thirty (30)
days' written notice to Employee upon the occurrence of any of the following
events:
(1) The acquisition, directly or indirectly, of any "person"
(excluding any "person" who on the date hereof owns or controls ten percent
(50%) or more of the voting power of the Company's common stock), as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended, within any twelve (12) month period of securities of the Company
representing an aggregate of fifty percent (50%) or more of the combined voting
power of the Company's then outstanding securities; provided, that for purposes
of this Paragraph (a), "acquisition" shall not include shares which are received
by a person through gift, inheritance, under a will or otherwise through the
laws of descent and distribution;
(2) During any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors of the
Company (the "Board"), cease for any reason to constitute at least a majority
thereof, unless the election of each new director was approved in advance by a
vote of at least a majority of the directors then still in office who were
directors at the beginning of such period; or
(3) The occurrence of any other event or circumstance which
is not covered by (1) or (2) above which the Board determines affects control of
the Company and, in order to implement the purposes of this Agreement, adopts a
resolution that such event or circumstance constitutes an "event" under this
Paragraph 6.
b. If the Company terminates Employee pursuant to Paragraph
6(a), Company will, for the Applicable Period (as defined in Paragraph 8(c)),
pay Employee his then current salary (subject to decrease pursuant to Schedule
A, but without any increase pursuant to Schedule A) and provide Employee with
Group Health Insurance, but Company shall not be required to pay any other
compensation or provide any other benefits.
7. DISCLOSURE OF INFORMATION; NONSOLICITATION.
a. DEFINITIONS. For purposes of this Paragraph 8, the following
terms shall have the meanings specified below:
3
"BUSINESS" - the development, marketing and distribution of
products or services of the type offered by the Company or any of its
subsidiaries, including (i) the development, marketing and distribution of (1)
screen phones, touch screens and other receiving hardware to provide home
shopping, xxxx paying, banking, utility meter reading, swipe-card services,
access to video and audio programming (whether from low-orbiting satellites or
other sources), wireless communications and emergency response, and related
hardware or software, and (2) wireless communications and/or pagers, including
without limitation hardware and services related to a telecom/pager wrist watch
with access to information, including winning lottery numbers, weather
conditions, sports scores and stock market and financial data, and related
hardware and software; (ii) the provision of international long distance,
domestic long distance or local telephone time or services in the United States,
including (1) the prepayment of telephone charges, (2) telephone debit cards,
(3) international or domestic long distance local telephone sales or resales,
(4) international calling from non-U.S. locations to the United States, (5) "1
plus 1" residential telephone service, (6) business telephone service and (iii)
the provision of environmental, surveying, engineering, mapping and right-of-way
acquisition consulting services, or (7) the development and marketing of an
"On-Line" service;
"CONFIDENTIAL INFORMATION" - information relating to the
operations, customers, or finances of the Company, or the Business, that derives
value from not being generally known to other Persons, including, but not
limited to, technical or nontechnical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data, and
lists of or identifying information about actual or potential customers or
suppliers, whether or not reduced to writing, certain unpatented information
relating to the research and development, manufacture or serving of the
Company's products, information concerning proposed new products, market
feasibility studies and proposed or existing marketing techniques or plans.
Confidential Information also includes the same types of information relating to
the operations, customers, finances, or Business of any affiliate of the
Company, if such information is learned by Employee during the term of this
Agreement or in connection with Employee's performance of Services. Confidential
Information also includes information disclosed to the Company by third parties
that the Company is obligated to maintain as confidential. Confidential
Information may include information that is not a trade secret, but Confidential
Information that is not also a trade secret shall constitute Confidential
Information only for three (3) years after the Termination Date;
"CUSTOMER" - any customer of the Company in the United
States that Employee, during the one year period prior to the Termination Date,
(i) provided goods or services to or solicited on behalf of the Company; or (ii)
about whom Employee possesses Confidential Information;
"PERSON" - any individual, corporation, partnership, limited
liability company, association, municipality, government agency, government,
unincorporated organization or other entity;
"SERVICES" - the duties and functions that Employee shall
provide in the United States as an employee of the Company and that Employee
shall be prohibited from providing in the United States in competition with the
Company in accordance with the terms of
4
this Agreement, including the duties and functions expressly set forth on
Schedule B attached hereto. Employee acknowledges that Employee has been
informed of and discussed with the Company the specific activities that Employee
will perform as Services and that Employee understands the scope of the
activities that constitute Services under this Agreement;
"TERMINATION DATE" - the last day Employee is employed by the
Company, whether the termination is voluntary or involuntary and whether with or
without cause; and
b. CONFIDENTIAL INFORMATION. Employee shall protect Confidential
Information. Except as required in connection with work for the Company,
Employee will not use, disclose or give to others, during or after Employee's
employment, any Confidential Information.
c. RETURN OF MATERIALS. On the Termination Date or for any
reason or at any time at the Company's request, Employee will deliver promptly
to the Company all materials, documents, plans, records, notes, manuals,
subcontracts, procedures and other papers and any copies thereof in Employee's
possession, custody or control relating to the Company or the Business, all of
which at all times shall be the property of the Company.
d. SOLICITATION OF CUSTOMERS. During employment and for two (2)
years after the Termination Date, Employee will not solicit Customers within the
United States for the purpose of providing products or services comparable to
those provided by the Business, except on behalf of the Company.
e. SOLICITATION OF COMPANY EMPLOYEES. During employment and for
two (2) years after the Termination Date, Employee will not solicit for
employment with another Person anyone who is or was, at any time during the one
year period prior to the Termination Date, an employee of the Company.
f. DISPARAGEMENT. Employee shall not at any time make false,
misleading or disparaging statements about the Company, including the Business,
management, employees and Customers.
g. PRIOR AGREEMENTS. Employee represents and warrants that
Employee is not under any obligation, contractual or otherwise, limiting,
impairing or affecting Employee's performance of Services. Upon execution of
this Agreement, Employee shall give the Company any agreement with a prior
employer or other Person purporting to limit or affect, in any way, Employee's
ability to work for the Company, to solicit customers or potential customers or
employees or to use any type of information.
h. FUTURE EMPLOYMENT OPPORTUNITIES. Prior to and for two (2)
years after the Termination Date, Employee shall (a) provide any prospective
employer with a copy of this Agreement, and (b) upon accepting any position,
provide the Company with the employer's name and a description of the services,
if any, Employee will provide for such employer.
5
"BUSINESS" - the development, marketing and distribution of
products or services of the type offered by the Company or any of its
subsidiaries, including (i) the development, marketing and distribution of (1)
screen phones, touch screens and other receiving hardware to provide home
shopping, xxxx paying, banking, utility meter reading, swipe-card services,
access to video and audio programming (whether from low-orbiting satellites or
other sources), wireless communications and emergency response, and related
hardware or software, and (2) wireless communications and/or pagers, including
without limitation hardware and services related to a telecom/pager wrist watch
with access to information, including winning lottery numbers, weather
conditions, sports scores and stock market and financial data, and related
hardware and software; (ii) the provision of international long distance,
domestic long distance or local telephone time or services in the United States,
including (1) the prepayment of telephone charges, (2) telephone debit cards,
(3) international or domestic long distance local telephone sales or resales,
(4) international calling from non-U.S. locations to the United States, (5) "1
plus 1" residential telephone service, (6) business telephone service and (iii)
the provision of environmental, surveying, engineering, mapping and right-of-way
acquisition consulting services, or (7) the development and marketing of an
"On-Line" service;
"CONFIDENTIAL INFORMATION" - information relating to the
operations, customers, or finances of the Company, or the Business, that derives
value from not being generally known to other Persons, including, but not
limited to, technical or nontechnical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data, and
lists of or identifying information about actual or potential customers or
suppliers, whether or not reduced to writing, certain unpatented information
relating to the research and development, manufacture or serving of the
Company's products, information concerning proposed new products, market
feasibility studies and proposed or existing marketing techniques or plans.
Confidential Information also includes the same types of information relating to
the operations, customers, finances, or Business of any affiliate of the
Company, if such information is learned by Employee during the term of this
Agreement or in connection with Employee's performance of Services. Confidential
Information also includes information disclosed to the Company by third parties
that the Company is obligated to maintain as confidential. Confidential
Information may include information that is not a trade secret, but
Confidential Information that is not also a trade secret shall constitute
Confidential Information only for three (3) years after the Termination Date;
"CUSTOMER" - any customer of the Company in the United States
that Employee, during the one year period prior to the Termination Date, (i)
provided goods or services to or solicited on behalf of the Company; or (ii)
about whom Employee possesses Confidential Information;
"PERSON" - any individual, corporation, partnership, limited
liability company, association, municipality, government agency, government,
unincorporated organization or other entity;
"SERVICES" - the duties and functions that Employee shall
provide in the United States as an employee of the Company and that Employee
shall be prohibited from providing in the United States in competition with the
Company in accordance with the terms of
6
i. WORK FOR HIRE ACKNOWLEDGMENT; ASSIGNMENT. All writings,
drawings, photographs, tapes, recordings, computer programs and other works in
any tangible medium of expression, regardless of the form of medium which have
been or are prepared by Employee, or to which Employee contributes, in
connection with Employee's employment by the Company (collectively the "Works")
and all copyrights and other rights in and to the Works, belong solely,
irrevocably and exclusively throughout the world to the Company as works made
for hire. However, to the extent any court or agency should conclude that the
Works (or any of them) do not constitute or qualify as a "work made for hire,"
Employee hereby assigns, grants and delivers, solely, irrevocably, exclusively
and throughout the world to the Company all copyrights and other rights to the
Works. Employee also agrees to cooperate with the Company and to execute such
other further grants and assignments of all rights as the Company from time to
time reasonably may request for the purpose of evidencing, enforcing,
registering or defending its ownership of the Works and the copyrights in them,
and Employee hereby irrevocably constitutes and appoints the Company as
Employee's agent and attorney-in-fact, with full power of substitution, in
Employee's name, place and stead, to execute and deliver any and all such
assignments or other instruments which Employee shall fail or refuse promptly to
execute and deliver, this power and agency being coupled with an interest and
being irrevocable. Without limiting the preceding provisions of this Paragraph
8(j), Employee agrees that the Company may edit and otherwise modify, and use,
publish and otherwise exploit, the Works in all media and in such manner as the
Company, in its discretion, may determine.
j. INVENTIONS, IDEAS AND PATENTS. Employee shall disclose
promptly to the Company (which shall receive it in confidence), and only to the
Company, any invention or idea of Employee (developed alone or with others)
conceived or made during Employee's employment by the Company (or, if related to
the Business, during employment or within one year after the Termination Date).
Employee assigns to the Company any such invention or idea in any way
connected with Employee's employment or related to the Business, research or
development of the Company, or demonstrably anticipated research or development
of the Company, and will cooperate with the Company and sign all papers deemed
necessary by the Company to enable it to obtain, maintain, protect and defend
patents covering such inventions and ideas and to confirm the exclusive
ownership of the Company of all rights in such inventions, ideas and patents,
and irrevocably appoints the Company as its agent to execute and deliver any
assignments or documents Employee fails or refuses to execute and deliver
promptly, this power and agency being coupled with an interest and being
irrevocable. This constitutes written notification to Employee that this
assignment does not apply to an invention for which no equipment, supplies,
facility or trade secret information of the Company or any Customer was used and
which was developed entirely on Employee's own time, unless (a) the invention
relates (i) directly to the Business or (ii) to the actual or demonstrably
anticipated research or development of the Company, or (b) the invention results
from any work performed by Employee for the Company.
k. INDEPENDENCE OF COVENANTS. The covenants contained herein
shall be construed as agreements independent of each other and of any other
provision of this or any other contract between the parties hereto, and the
existence of any claim or cause of action by Employee against the Company,
whether predicated upon this or any other contract, shall not constitute a
defense to the enforcement by the Company of said covenants.
7
l. RIGHT TO INJUNCTIVE RELIEF. Employee recognizes and agrees
that the injury the Company will suffer in the event of the Employee's breach of
any covenant or agreement contained herein cannot be compensated by monetary
damages alone, and Employee therefore agrees that the Company, in addition and
without limiting any other remedies or rights that it may have, either under his
Agreement or otherwise, shall have the night to obtain an injunction against
Employee from any court of competent jurisdiction enjoining any such breach.
8. TERMINATION.
a. This Agreement and the employment of Employee may be
terminated as follows:
(1) By the Company (i) pursuant to Xxxxxxxxx 0, 0 xx 0, (xx)
upon commission by the Employee of any felony or material misdemeanor under
federal, state or local laws or ordinances, except traffic violations or (iii)
upon the failure of Employee to diligently or competently discharge the duties
assigned to him pursuant to this Agreement; or
(2) (i) By Employee upon thirty (30) days' written notice to
the Company or (ii) by the Company upon thirty (30) days' written notice to
Employee, or
(3) By the Company upon material violation by Employee of
any of the terms and conditions of this Agreement or the breach by Employee of
any representation or warranty made to the Company herein or in any other
agreement, document or instrument executed by Employee and delivered to the
Company, or should any representation or warranty made by Employee hereunder or
thereunder prove to have been false or misleading in any material respect when
made or furnished; or
(4) By the Company upon the death of Employee.
b. In the event Employee is terminated by the Company for any
reason (including, without limitation, in accordance with Paragraph
8(a)(2)(ii)) other than pursuant to Paragraph 8(a)(1) or 8(a)(3), the Company
shall (i) pay Employee his then current salary (subject to decrease pursuant to
Schedule A, but without any increase thereafter pursuant to Schedule A) and
provide Employee with Group Health Insurance, but no other compensation or
benefits, for the Applicable Period beginning with the date of termination and
(ii) subject to the Employee's strict adherence to and performance of the
covenants set forth in Paragraph 7. If Employee is terminated pursuant to
Paragraph 8(a)(1) or 8(a)(3) or Employee terminates his employment pursuant to
Paragraph 8(a)(2)(i), Employee shall be entitled only to compensation accrued
through the date of termination and all benefits accrued as of such date, and
shall not be entitled to any portion of the payment set forth in clause (ii) of
this Paragraph (b).
c. For purposes of this Agreement, the term "Applicable Period"
means: (i) ninety (90) days, in the case of a notice given to Employee prior to
the first anniversary of the date on which Employee commenced his employment
with the Company or its affiliate (the
8
"Employment Date"); (ii) one hundred eighty (180) days, in the case of a notice
given to Employee on or after the first anniversary and prior to the second
anniversary of his Employment Date, and (iii) one (1) year, in the case of a
notice given to Employee on or after the second anniversary of his Employment
Date.
9. MISCELLANEOUS.
a. This Agreement may be assigned by the Company to any
successor in interest to its business, which successor in interest shall be
bound herein to the same extent as the Company. Employee agrees to perform his
duties for such successor in interest to the same extent as he would for the
Company.
b. This is a personal agreement on the part of Employee and may
not be sold, assigned, transferred or conveyed by Employee.
c. The waiver by either party of a breach of any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any subsequent breach by the other party.
d. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
e. This Agreement states the entire agreement and understanding
between the parties and supersedes all prior understandings and agreements.
f. No change or modification to this Agreement shall be valid
unless in writing and signed by both parties hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
GOLD EXPRESS CORPORATION
DIRECTORS: By: /s/ J. Xxxxxxx Xxxxxxxx
-------------------------------------
/s/ Xxxx Xxxxxxx Name: J. Xxxxxxx Xxxxxxxx
---------------------------- ------------------------------------
/s/ J. Xxxxxxx Xxxxxxxx Title: Executive Vice President
---------------------------- -----------------------------------
EMPLOYEE
/s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------
9
SCHEDULE A - SALARY AND BONUS
BASE SALARY. $120,000 Annually
SALARY ADJUSTMENT. Annually, commencing on the first day of the second fiscal
quarter of the fiscal year of the Company the Company shall pay Employee for
each of the next twelve months, a Monthly Salary (as defined below) based on the
Net Income Amount (as defined below) for the previous full fiscal year,
according to the following table:
ANNUAL NET INCOME AMOUNT CORRESPONDING MONTHLY
SALARY
less than or equal to $1 million $10,000
greater than $1 million but less than or equal to $3 million $15,000
greater than $3 million but less than or equal to $5 million $20,000
greater than $5 million $25,000
*For purposes of this Agreement, "Net Income Amount" means the
Company's annual net income before income taxes and "Monthly Salary" means
Employee's monthly salary, before deductions. The Company will deduct from
payments of Monthly Salary to Employee all federal, state and local income tax,
FICA, FUTA, and other withholdings as required by law. For purposes of this
Agreement, the Company's net income and gross sales shall be determined in
accordance with generally accepted accounting principles in the United States,
applied as a basis consistent with prior periods.
CASH BONUS. On the last day of each of the second, third and fourth
fiscal quarters following the end of the previous full fiscal year of the
Company, the Company shall pay Employee a cash bonus equal to one-third of the
Net Income Amount for such full fiscal year multiplied by the Applicable
Percentage; provided that no cash bonus shall be payable to Employee on any date
unless Employee is employed by the Company on that date.
ANNUAL NET INCOME AMOUNT APPLICABLE PERCENTAGE
less than or equal to $1 million 0%
greater than $1 million but less than or equal to $3 million 1%
greater than $3 million but less than or equal to $5 million 2%
greater than $5 million 3%
CEO STOCK BONUS PLAN. During the term of this Agreement, Employee shall be
granted an annual exclusive option to purchase shares of Gold Express
Corporation stock at One ($1) Dollar per share. The Number of share per annum
shall be determined by the Net Income Amount multiplied by Fifteen (15%)
percent.
(Example: Assume $1,000,000 Net Income Amount x 15% = #150,000 shares.)
10
SCHEDULE B - SUMMARY OF EMPLOYEE STOCK OPTION PLAN
As of the date hereof, the Company's Employee Stock Option Plan (the
"Option Plan") provides for the Employee to earn, as of the last day of the
first fiscal quarter of each fiscal year (the "Issuance Date") options for
restricted common stock of the Company in an aggregate amount (the "Annual
Amount") equal to (i) one percent (1%) of the Net Income Amount divided by the
average closing price of such common stock during the last thirty days of the
previous fiscal year (the "Stock Price"), on the following terms and conditions
and the other terms and conditions as now are, and may in the future be, set
forth as the Option Plan: The exercise price for the options issued shall equal
seventy-five percent (75%) of the Stock Price. The options shall vest over a
five year period, exercisable in an amount equal to up to twenty percent (20%)
of the Annual Amount on each of the first five anniversaries of the Issuance
Date.
Employee understands that the above is a summary of key items in a
proposed stock plan. The details of the Stock Option Plan will be provided to
Employee upon the approval of the Board of Directors of the Company.
11
SCHEDULE C- SUMMARY OF EMPLOYEE BENEFITS
1. Employee shall receive full medical and dental benefits for Employee
and Employee's spouse and dependents. Included in the benefit package
will be a 401K plan, the terms of which are not determined at the
time of signing this Agreement.
2. Company shall provide Employee with the exclusive use of a leased
automobile. Such automobile shall be replaced at the end of the
original lease term or sooner if needed due to serious mechanical
malfunction. At the end of the lease term, Employee shall have the
right to purchase the vehicle at its residual value pursuant to the
lease agreement. Company shall provide all maintenance and repair of
the vehicle and automobile insurance in an amount equal to or greater
than the requirements of the lease agreement.
3. Company shall pay Employee $2,000 per month for unaccountable business
expenses, payable on the fifteenth (15th) day of each month commencing
July 1, 1995 and continuing thereafter on a monthly basis for the term
of this Agreement and as extended upon mutual consent of the parties.
This payment shall not be offset for accountable Employee expenses,
which shall be payable upon presentation to Company.
4. Company shall pay for Employee's clothing required for Company
presentations.
5. Employee shall be entitled to four (4) weeks vacation per year.
6. Company shall pay Employee's monthly cellular telephone xxxx.
12
SCHEDULE D - DUTIES AND RESPONSIBILITIES
PRESIDENT AND CHIEF EXECUTIVE OFFICER
As President and Chief Executive Officer Employee will manage and
direct the Company toward its primary objectives, based on profit and return on
capital by performing the following duties personally or through subordinate
managers.
The essential duties and responsibilities will include but not be
limited to the following:
Establish current and long range objectives, plans, and policies,
subject to the approval of the Board of Directors.
Dispense advice, guidance, direction, and authorization to carry out
major plans and procedures, consistent with established policies and Board
approval.
Oversee the adequacy and soundness of the organization's financial
structure.
Review operating results of the organization, compare them to the
established objectives, and take steps to ensure that appropriate measures are
taken to correct unsatisfactory results.
Plan and direct all investigation and negotiation pertaining to
mergers, joint ventures, the acquisition of businesses, or the sale of major
assets with the approval of the Board of Directors.
Establish and maintain an effective system of communication throughout
the entire organizational.
Represent the organization with major customers, shareholders, the
financial community and the public.
