EXHIBIT 10.1
EMPLOYMENT AGREEMENT
Agreement made as of the 11th day of October, 2004, by and between Xxxxxx
+ Xxxxxx, Inc. having an office at 00 Xxxxxxx Xxxxxx., Xxxxxxxxxxxx, XX 00000
(the "Company"), and Xxx X. Xxxxxxxxxxx, an individual having an address at 0
Xxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company will employ the Employee to serve as an employee of
the Company at the corporate office of the Company located at 00 Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxx Xxxx 00000 (the "Office"), in accordance with the terms
hereof.
NOW, THEREFORE, In consideration of the promises and the mutual covenants
contained herein, the sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. Employment. The Company hereby employs the Employee as Associate
General Counsel of the Company, and the Employee hereby accepts such employment.
The Employee will perform his duties as an employee of the Company under the
supervision and direction of the duly appointed officers and directors of the
Company.
2. Term. The term of this agreement shall commence on the date hereof and
shall continue thereafter for a period of three (3) years.
3. Employees Duties, Promises and Responsibilities.
(a) The duties of the Employee shall be to serve as Associate
General Counsel, including but not limited to all legal matters assigned to him
by the Company's General Counsel.
(b) The Employee shall serve the Company loyally, faithfully and to
the best of his abilities.
(c) The Employee shall at all times perform his duties in strict
accordance with the Company's employee manuals applicable to all G+C employees
and in accordance with all applicable laws, rules and regulations.
(d) The Employee shall not engage in any business activity that
materially interferes with the performance of his obligations under this
Agreement.
(e) Because of Employee's position with the Company, he may become
privy to information about the Company and its affiliates considered "insider
information" as defined by applicable securities laws. Therefore, and in
addition to complying with the applicable Laws and Rules governing xxxxxxx
xxxxxxx, during a Black-Out Period (as defined by the Company from time to time)
he shall not recommend the purchase or sale of any security issued by the
Company (NASDAQ: GTAX) to any person, or effectuate the purchase or sale of any
security issued by the Company in his own account.
4. Hours, Compensation and Benefits.
(a) The Employee shall work at the Office three (3) days per week,
for approximately nine (9) hours per day.
(b) The Employee shall be paid an annual salary of $100,000 on a
bi-weekly basis.
(c) During the Term, the Employee shall be entitled to participate
fully in such employee stock option plans or employee stock purchase plans
applicable to employees of the Company, if any and as amended from time to time.
(d) The Employee shall receive health insurance as is made available
to other employees of the Company.
(e) The Company shall allow the employee to participate in its 401K
Plan, on terms and conditions similar to those offered to other Company
employees.
(f) The Employee shall be reimbursed for reasonable expenses
incurred on behalf of the Company.
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(g) The Employee shall be entitled to twelve (12) vacation days per
year which cannot be accumulated from year to year and will not be paid for if
not used. The Employee will not be entitled to or paid for sick or personal days
or for holidays.
5. Termination of Employment.
(a) The Company may at any time terminate this Agreement and the
Employee's employment hereunder by written notice to the Employee effective
immediately upon delivery.
(b) The Employee may terminate his employment hereunder by written
notice, effective 30 business days after delivery to the Company, provided that
the Employee shall be required to perform all of his obligations hereunder
during such 30 business days.
6. Severance Payments
(a) In the event that the Company terminates the Employee for any
reason other than for "Proper Cause", then for six (6) months from the date of
termination, the Company shall continue to pay to the Employee his regular
salary being earned on the date of termination and continue to pay to or for the
Employee all employee benefits being paid to or for the Employee on the date of
termination (the "Severance Payments"). However, in the event that the notice of
termination is delivered prior to October 1, 2005, then the severance payments
shall be computed at an annual salary of $160,000. In addition, if the notice of
termination is delivered after April 1, 2006, the Severance Payments shall only
be for three (3) months.
(b) The following shall constitute "Proper Cause":
(i) The Employee shall commit any act whether or not
involving the Company that constitutes a felony in the jurisdiction
involved.
(ii) The Employee engages in repeated substance abuse.
(iii) The Company's Board of Directors, after due
inquiry and providing the Employee with a reasonable opportunity to
be heard, shall have determined that the Employee committed willful
malfeasance or gross misconduct in the performance of his duties or
has committed a material act of fraud or dishonesty against the
Company.
(iv) The Employee's death.
(c) Proper Cause shall not include the Employee's refusal to work at
a corporate office located more than a 50 mile radius from Mahopac, NY or in New
York City.
7. Releases
(a) Except for matters constituting Proper Cause, upon the
termination of the Employee's employment, the Company will release and discharge
the Employee, his heirs, executors, administrators, successors and assigns from
all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity, which
against the Employee, the Company and its successors and assigns have by reason
of any matter, cause or thing whatsoever through the date that the Employee's
employment is terminated.
(b) Upon payment in full by the Company of the Severance Payments
and all other amounts due from the Company to the Employee, and upon the
delivery to the Employee of all shares of Company stock due from the Company to
the Employee , the Employee will release and discharge the Company, and its
successors and assigns from all actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims, and demands whatsoever, in law,
admiralty or equity, which against the Company, the Employee and his heirs,
executors, administrators successors and assigns have by reason of any maker,
cause or thing whatsoever through the date that the Employee's employment is
terminated.
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8. Non-Disclosure of Confidential
Information and Non-Competition.
(a) The Employee acknowledges that he has been informed that it is
the policy of the Company to maintain as secret and confidential all
information, except such information as is or becomes widely publicly known or
publicly available other than through the action of the Employee, (i) relating
to the products, processes and/or systems used by the Company and (ii) relating
to the suppliers, customers, Clients and employees of the Company (all such
information hereafter referred to as "Confidential Information"), and the
Employee further acknowledges that such Confidential Information has been
assembled at great cost to the Company, through the expenditure of extensive
resources of the Company over a long period and is of great value to the
Company. The parties hereto recognize that the services to be performed by the
Employee are special and unique, and that by reason of his employment by the
Company, he has and will acquire Confidential Information as aforesaid. The
parties hereto confirm that it is reasonably necessary to protect the Company's
goodwill that the Employee agree, and accordingly the Employee does agree, that
he will not directly or indirectly (except where authorized by the Company), for
or on behalf of himself or any Person (hereinafter defined):
(i) at any time divulge, except where required by law,
in which case, if practicable and lawful, after notice to the
Company, to any Person other than the Company (hereinafter referred
to collectively as a "third party"), or use or cause to authorize
any third parties to use, any such Confidential Information, or any
other information regarded as confidential and valuable by the
Company, except such information as is or becomes widely publicly
known or publicly available other than through the action of the
Employee, that he knows or should know is regarded as confidential
and valuable by the Company (whether or not any of the foregoing
information is actually novel or unique or is actually known to
others and whether or not the Confidential Information is labeled as
confidential); or
(ii) at any time during his employment by the Company
and for a period of two years after he ceases to be engaged by the
Company, employ or otherwise obtain services from, or solicit or
otherwise attempt to employ or otherwise obtain services from, or
assist any Person in employing or otherwise obtaining services from,
or attempt to employ or otherwise obtain services from, any person
who is then, or at any time during the preceding twelve months shall
have been, in the employ of or retained by the Company and/or its
affiliates; or
(iii) at any time during his employment by the Company
and the applicable period thereafter specified in each of the
clauses above, negotiate for or enter into an agreement,
understanding or arrangement, or otherwise knowingly or
intentionally cause or authorize any Person, to take any of the
actions prohibited by such clause.
(b) As used herein, the term "Person" means any person, corporation,
limited liability company, partnership, trust or other entity. This Section
shall be assignable by the Company in a sale of all or substantially all of the
assets of the Company and shall apply to the continuing business conducted with
such transferred assets and replacements thereof.
(c) The Employee shall not copy any Confidential Information except
as needed to perform his duties, and if he does make copies, he shall make the
copies only on the property of the Company. Upon ceasing employment with the
Company for any reason, the Employee shall:
(i) Immediately deliver to the Company all copies of any
and all drawings, notebooks, phone books, address books, customer or
supplier lists, and other documents and materials, or copies
thereof, on any media and in any form (including magnetic discs,
compact discs or other computer-readable formats, copies of which
shall be delivered in similar electronic format), in Employee's
possession or under his control that contains or otherwise embodies
Confidential Information; and
(ii) After a period of ten days, deliver to the Company
a sworn affidavit stating that all copies on any medium containing
any Confidential Information have been returned, except to the
extent recorded on computer hard drives or similar media, which have
been deleted.
(d) The Employee agrees that any breach or threatened breach by him
of any provision of this Section will, because of the unique nature of his
services and the Confidential Information he has been entrusted with, will cause
irreparable harm to the Company. Accordingly, the Employee agrees that the
Company is entitled, at its option, in addition to or in lieu of the damages and
any other legal remedies available to it, to apply to any court of competent
jurisdiction to enjoin his/her breach or threatened breach, without having to
prove irreparable harm or to post any bond or other security.
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(e) The Employee and the Company understand and intend that each
restriction to which he has agreed above, and the damages and injunctive relief
provided, shall be construed as separable and divisible from every other
restriction, and the unenforceability, in whole or in part, of any such
restriction, shall not affect the enforceability of the remaining restrictions
and that one or more or all of such restrictions may be enforced in whole or in
part as the circumstances warrant. Furthermore, if any of the above
restrictions, monetary damages or injunctive relief are deemed by a court or
arbitrator, as the case may be, to be unenforceable, that restriction shall
automatically, and without further action of either the Employee or the Company,
be revised to limit its enforcement, scope and/or duration to the extent, but
only to the extent, necessary to make that restriction monetary damages, or
injunctive relief enforceable.
9. Employee's Promissory Note. The Company presently owes the Employee the
principal sum of $175,000 pursuant to the terms of a Promissory Note (the
"Note") dated December 23, 2003. The present $175,000 principal balance of the
Note and all unpaid interest (the "Balance") is due and payable by the Company
on or before December 31, 2004. The parties agree that the December 31, 2004
maturity date shall be extended as follows: $58,333.33 of principal shall be
paid on or before March 15, 2005; $58,333.33 of principal shall be paid on or
before April 15,2005; and $58,333.33, and all unpaid interest, shall be paid on
or before May 15, 2005 (the "Principal Payments"). Monthly interest payments on
outstanding principal at 10% per year shall continue to be paid on the first day
of each month as provided in the Note. In the event that the Company does not
make any of the Principal Payments within thirty (30) days from its due date,
then in addition to the Employee's rights under the Note, upon written notice
from the Employee, Prime Partners, Inc. agrees that it will purchase the Note
from the Employee, or find another Person to purchase the Note, for the then
Balance on or before sixty (60) days from the due date of the unpaid Principal
Payment. Prime Partners, Inc. is executing this Employment Agreement to agree to
this provision.
10. Employee as an Officer. Upon the appointment by the Company of a new
general counsel, upon request of the Company, the Employee will submit his
resignation as an officer of the Company and all of its subsidiaries.
11. Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes any prior
agreement between the parties. No change, termination or attempted waiver of any
of the provisions hereof shall be binding unless in writing and signed by the
party against whom the same is sought to be enforced. No action by either party
shall be deemed a waiver of any right hereunder, and no waiver of any right at
any time shall operate as a waiver of any other right or as a waiver of such
right at any other time.
12. Successors and Assignee. This Agreement shall be binding upon and
shall inure to the benefit of the respective heirs, legal representatives,
successors and assigns of the parties hereto, except that the Employee may not
assign his duties hereunder.
13. Governing Law. All matters concerning the validity and interpretation
of and performance under this Agreement shall be governed by the laws of the
State of New York, without giving effect to its conflict of laws provisions.
14. Arbitration and Litigation. Any controversy or claim arising out of or
related to this Agreement or any breach of this Agreement, including claims of
employment or other discrimination by the Employee against the Company, shall be
commenced, prosecuted and resolved in Dutchess County, New York by arbitration
before a single arbitrator in accordance with the Commercial Arbitration Rules
of the American Arbitration Association then in effect, and judgment upon any
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The prevailing party in any arbitration shall receive reasonable
attorney's fees, costs and disbursements from the other party. Not withstanding
the foregoing, if the Company elects to enforce its rights under Section 8 of
this Agreement, the Company may commence an action in New York State Supreme
Court, Dutchess County, and the Employee irrevocably consents to the
jurisdiction and venue of such court.
15. Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient when delivered personally
or telecopied by confirmed facsimile, or the day signed for or rejected by
addressee after mailing by registered or certified mail, return receipt
requested, or the next business day if sent by nationally recognized overnight
courier providing for a return receipt, in each case postage prepaid, addressed
to the addresses in the preamble. Any party may by notice change the address to
which notice or other communications to it are to be delivered or mailed,
effective ten (10) days after such notice
16. Severability. The invalidity or unenforceability of any particular
provision of this Agreement in any jurisdiction shall not affect any other
provision of this Agreement (or that same provision in other jurisdictions), and
this Agreement shall be construed in that jurisdiction in all respects as if the
invalid or unenforceable provisions were omitted. Furthermore, in lieu of that
illegal, invalid, or unenforceable provision in such jurisdiction there shall be
added automatically as a part of this Agreement a provision as similar in terms
to the illegal, invalid, or unenforceable provisions as may be possible and be
legal, valid and enforceable.
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IN WITNESS WHEREOF, the Employee has executed this Agreement and the
Company has caused this Agreement to be executed by its duly authorized officer
as of the date first above written.
XXXXXX + XXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxx /s/ Xxx X. Xxxxxxxxxxx
----------------------------- -----------------------------
Xxxxxxx X. Xxxx, President Xxx X. Xxxxxxxxxxx
As to Section 9 only:
PRIME PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Xxxxxxx X. Xxxx, President
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