XXXXXX TREE CONSTRUCTION INC.
Employment Agreement
Exhibit 10(a)
Agreement made as of this 14 day of November 2000, by and among
Xxxxx Xxxx ("Employee") and Xxxxxx Tree Construction, Inc.
(the "company")
PREAMBLE
The Board of Directors of the Company recognizes Employee's
potential contribution to the growth and success of the Company
and desires to assure the Company of Employee's employment in an
executive capacity as Director of the Tenant Improvement Division
(TI Director) and to compensate him therefore. Employee wants to
be employed by the Company and to commit himself to serve the
Company on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties, the parties
agree as follows:
1.Definitions
"Benefits" shall mean all the fringe benefits approved
by the Board from time to time and established by the Company for
the benefit of employees generally and/or for key employees of
the Company as a class.
"Board" shall mean the Board of Directors of the
Company, together with an executive committee thereof (if any),
as same shall be constituted from time to time.
"Cause" for termination shall mean (i) Employee's final
conviction of a felony involving a crime of moral turpitude, (ii)
acts of Employee which, in the judgment of the Board, constitute
willful fraud on the part of Employee in connection with his
duties under this Agreement, including but not limited to
misappropriation or embezzlement in the performance of duties as
an employee of the Company, or willfully engaging in conduct
materially injurious to the Company and in violation of the
covenants contained in this Agreement, or (iii) gross misconduct,
including but not limited to the willful failure of Employee
either to (a) continue to obey lawful written instruction of the
Board after thirty (30) days notice in writing of Employee's
failure to do so and the Board's intention to terminate Employee
if such failure is not corrected, or (b) correct any conduct of
Employee which constitutes a material breach of this Agreement
after thirty (30) days notice in writing of Employee's failure to
do so and the Board's intention to terminate Employee if such
failure is not corrected.
"Chairman" shall mean the individual designated by the
Board from time to time as its chairman.
"change of Control" shall mean the occurrence of one or
more of the following three events:
(1) After the effective date of this Agreement, any
person becomes a beneficial owner (as such term is
defined in Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) directly or
indirectly of securities representing 33% or more of
the total number of votes that may be cast for the
election of directors of the Company;
(2) Within two years after a merger, consolidation,
liquidation or sale of assets involving the company, or
a contested election of a company director, or any
combination of the foregoing, the individuals who were
directors of the company immediately prior thereto shall
cease to constitute a majority of the Board.
(3) Within two years after a tender offer or
exchange offer for voting securities of the company,
the individuals who were directors of the company
immediately prior thereto shall cease to constitute a
majority of the Board
(4) Any change in the majority of the board of
directors during any two year period unless the new
directors were elected or recommended by two thirds of
the members of the board in office at the beginning of
such period,
"Chief Executive Officer" shall mean the individual
having responsibility to the Board for direction and management
of the executive and operational affairs of the Company and who
reports and is accountable only to the Board.
"Employee" shall mean Xxxxx Xxxx and, if the context
requires, his heirs, personal representatives, and permitted
successors and assigns.
"Reorganization" shall mean any transaction, or any
series of transactions consummated in a 12-month period, pursuant
to which any Person acquires (by merger, acquisition, or
otherwise) all or substantially all of the assets of the Company
or the then outstanding equity securities of the Company and the
Company is not the surviving entity, the Company being deemed
surviving if and only if the majority of the Board of Directors of
the ultimate parent of the surviving entity were directors of the
Company prior to its organization.
"Territory" shall mean the state of Nevada.
"Company" shall mean Xxxxxx Tree construction, Inc.,
a Nevada corporation, together with such subsidiaries of the
Company as may from time to time exist.
2. Position, Responsibilities, and Term of Employment.
2.01 Position. Employee shall serve as TI Director and in
such additional management position(s) as the Board shall
designate. In this capacity Employee shall, subject to the bylaws
of the Company, and at the direction of the Board, serve the
Company by performing such duties and carrying out such
responsibilities as are normally related to such position which
shall include the marketing and solicitation of the Company's TI
services and such other services as the Board may determine, the
review and/or examination of proposed TI projects, the submission
of bids, the management and oversight of TI work and the completion
of TI projects. The Board shall either vote, or recommend to the
shareholders of the Company, as appropriate, that during the term
of employment pursuant to this Agreement: (i) Employee be nominated
for election as a director at each meeting of shareholders held for
the election of directors; (ii) Employee be elected to and
continued, in the office of TI Director of the Company (and such
other office, if any, as shall be determined by the Chief Executive
Officer of the Company.
2.02 Best Efforts Covenant. Employee will, to the best of
his ability, devote his full professional and business time and
best efforts to the performance of his duties for the Company and
its subsidiaries and affiliates.
2.03 Exclusivity Covenant. During the Agreement's term,
Employee will not undertake or engage in any other employment,
occupation or business enterprise other than a, business enterprise
in which employee does not actively participate. Further, Employee
agrees, not to acquire, assume, or participate in, directly or
indirectly, any position, investment, or interest in the Territory
adverse or antagonistic to the Company, its business or prospects,
financial or otherwise, or take any action towards any of the
foregoing. The provision of this Section shall not prevent Employee
from owning shares of any competitor of the Company so long as such
shares do not constitute more than five percent(5%) of the
outstanding equity of such competitor, and (ii) are regularly traded
on a recognized exchange or listed for trading by NASDAQ in the
over-the-counter market.
2.04 Post-Employment Noncompetition Covenant. Except
with the prior written consent of the Board, Employee shall not
engage in activities in the Territory either on Employee's own
behalf or that of any other business organization, which are in
direct or indirect competition with the Company for a period of one
(1) year subsequent to Employee's voluntary withdrawal from
employment with the company (except for a termination pursuant to a
Change in Control), or the Company's termination of Employee's
employment for Cause. Employee and the Company expressly declare
that the territorial and time limitations contained in this
Section and the definition of "Territory" are entirely reasonable
at this time and are properly and necessarily required for the
adequate protection of the business and intellectual property of
the Company. If such territorial or time limitations, or any
portions thereof, are deemed to be unreasonable by a court of
competent Jurisdiction, whether due to passage of time, change of
circumstances or otherwise, Employee and the Company agree to a
reduction of said territorial and/or time limitations to such
areas and/or periods of time as said court shall deem reasonable.
For a period of one year subsequent to Employee's voluntary
withdrawal from employment with the Company (except for a
termination pursuant to a Change in Control), or the Company's
termination of Employee's employment for Cause, Employee will not
without the express prior written approval of the Board (i)
directly or indirectly, in one or a series of transactions,
recruit, solicit or otherwise induce or influence any proprietor,
partner, stockholder, lender, director, officer, employee, sales
agent, joint venturer, investor, lessor, supplier, customer, agent,
representative or any other person which has a business
relationship with the Company or had a business relationship with
the Company within the twenty-four (24) month period preceding
the date of the incident in question, to discontinue, reduce, or
modify such employment, agency or business relationship with the
Company, or (ii) employ or seek to employ or cause any business
organization in direct or indirect competition with the company to
employ or seek to employ any person or agent who is then (or was at
any time within six months prior to the date the Employee or the
competitive business employs or seeks to employ such person)
employed or retained by the Company. Notwithstanding the foregoing,
nothing herein shall prevent the Employee from providing a. letter
of recommendation to an employee with respect to a future
employment opportunity.
2.05 Confidential Information. Employee recognizes and acknowledges
that the Company's trade secrets and proprietary information and
know-how, as they may exist from time to time ("Confidential
Information"), may be valuable, special and unique assets of the
Company's business, access to and knowledge of which are essential
to the performance of Employee's duties hereunder Employee will
not, during or after the term of his employment by the Company, in
whole or in part, disclose such secrets, information or know-how to
any Person for any reason or purpose whatsoever, nor shall Employee
make use of any such property for his own purposes or for the
benefit of any Person (except the Company) under any circumstances
during or after the term of his employment, provided that after the
term of his
employment these restrictions shall not apply to such secrets,
information and know-how which are then in the public domain
(provided that Employee was not responsible, directly or
indirectly, for such secrets, information or processes entering
the public domain without the Company's consent). Employee shall
have no obligation hereunder to keep confidential any Confidential
Information if and to the extent disclosure of any thereof
is specifically required by law; provided, however, that in the
event disclosure is required by applicable law, the Employee shall
provide the Company with prompt notice of such requirement, prior
to making any disclosure, so that the Company may seek an
appropriate protective order. Employee agrees to hold as the
Company's property all memoranda, books, papers, letters, customer
lists, processes, computer software, records, financial
information, policy and procedure manuals, training and recruiting
procedures and other data, and all copies thereof and therefrom,
in any way relating to, the Company's business and affairs,
whether made by him or otherwise coming into his possession, and
on termination of his employment, or an demand of the Company at
any time, to deliver the same to the Company. Employee agrees that
he will not use or disclose to other Employees of the Company,
during the term of this Agreement, confidential information
belonging to his former employers.
Employee shall use his best efforts to prevent the
removal of any Confidential Information from the premises of the
Company, except as required-in his normal course of employment by
the company. Employee shall use his best efforts to cause all
persons or entities to whom any Confidential Information shall be
disclosed by him hereunder to observe the term and conditions set
forth herein as though each such person or entity was bound
hereby.
2.06 Non-solicitation. Except with the prior written
consent of the Board, Employee shall not solicit customers,
clients, or employees of the Company or any of its affiliates for
a period of twelve (12) months from the date of the expiration of
this Agreement. Without limiting the generality of the foregoing,
Employee will not willfully canvas, solicit nor accept any such
business in competition with the business of the Company from any
customers of the Company with whom Employee had contact during, or
of which Employee had knowledge solely as a result of, his
performance of services for the Company pursuant to this
Agreement. Employee will not directly or indirectly request,
induce or advise any customers of the Company with whom Employee
had contact during the term of this Agreement to withdraw, curtail
or cancel their business with the Company. Employee will not
induce or attempt to induce any employee of the Company to
terminate his/her employment with the Company.
2.07 Corporate Opportunity. If during the term of this
Agreement and for one year thereafter, Employee identifies, or
otherwise becomes aware of the identification by the Company
of, any Acquisition Opportunity, all rights in such Acquisition
Opportunity (as between the Company and Employee) shall belong
solely to the Company. As used herein, "Acquisition Opportunity"
means any entity engaged in the business in which the Company is
or actively proposer, to engage in any territory in the world in
which the Company is conducting or proposes to conduct material
activities. Such business is generally defined as business
related to the construction Industry and or real estate
development specifically including but not limited to general
contracting for residential, commercial, industrial or
hospitality related projects.
2.08 Records, Files. All records, files, drawings,
documents, equipment and the like relating to the business of the
Company which are prepared or used by Employee during the term
of his employment under this Agreement shall be and shall remain
the sole property of the Company.
2.09 Equitable Relief Employee acknowledges that his
services to the Company are of a unique character which give them.
a special value to the Company. Employee further recognizes that
violations by Employee of any one or more of the provisions of
this Section 2 may give rise to losses or damages for which the
Company cannot be reasonably or adequately compensated in an
action at law and that such violations may result in irreparable
and continuing harm to the Company. Employee agrees that,
therefore, in addition to any other remedy which the Company may
have at law and equity, including the right to withhold any
payment of compensation under Section 4 of this Agreement, the
Company shall be entitled to injunctive relief to restrain any
violation, actual or threatened, by Employee of the provisions of
this Agreement.
3. Compensation
3.01 Annual Salary and, TI Based Compensation.
The Company shall pay to Employee for the services to be
rendered herein a base annual compensation, which compensation
shall be $72,800 per year. This compensation shall be designed
to be incorporated into each TI bid and contract the Company
secures (i.e., supervisory service costs which principally
consist of Employee's annual salary shall be incorporated into each
bid). Employee shall be entitled to payment of wages on either a
weekly or twice-monthly basis as determined by the Company's senior
management. All other (above and beyond the Employee's annual
salary) profits, labor and other non-supervisory or supervisory
services performed and accrued to said employee
above-and-beyond said Employee's annual salary shall not be paid
to the Employee, but will instead accrue to the Company.
3.02 Direct Payment Program. As part and parcel to the
Employee's Annual Salary and TI Based Compensation, Employee shall be
entitled to have the Company direct payments on his
behalf to ------------- ,a consolidated debt services company or law
firm on a monthly basis which payment shall be in amounts no
greater than ----- dollars ($-----) .Under no conditions shall this
provision be construed as imposing upon the Company any legal
obligation to assume this debt or impart upon the Company any
liability for such debt. This payment shall be deducted from the
Employee's section 3.01 income as direct payment to the creditor
referred to in this section 3.02, is intended strictly as a
convenience to the Employee. This direct payment on behalf of the
employee shall be supplemented by the laborer wage component of
each TI bid such that any portion of a TI bid allocated to
ancillary job laborer costs actually serviced and performed by
Xxxxx Xxxxxx, CEO, shall additionally accrue to the benefit of the
Employee in the form of an after tax direct payment to the
Employee's creditor as above which payment shall be on a monthly
basis. If or when the Employee's employment is terminated in any
manner, the Company shall not be obliged to continue such payments.
3.03 Participating in Benefits. Employee shall be
entitled to all Benefits for as long as such Benefits may remain
in effect and/or any substitute or additional Benefits made
available in the future to similarly situated employees of the
Company, subject to and on a basis consistent with the terms,
conditions and overall administration of such Benefits adopted by
the Company. Benefits paid to Employee shall not be deemed to be in
lieu of other compensation to Employee hereunder as described in
this Section 3.
3.04 Bonuses and Employee Stock Options/Stock
Participation. Once the Employee's debt obligation as specified
in sub-paragraph 3.02 is terminated by virtue of full and final
payment as specified in sub-paragraph 3.02, Employee shall be
entitled to bonuses and participation in the Company's
stock ownership participation and/or stock option program (to be
determined) which bonuses and programs are to be determined by the
Board of Directors of the Company at a later date.
4. Termination.
4.01 Termination by the Company for Cause. The Company
shall have the right to terminate the employment of Employee for
Cause. Effective as of the date that the employment of Employee
terminates by reason of Cause, this Agreement, shall terminate and
no further payments of the Compensation described in Section 3
shall be made.
5. Miscellaneous.
5.01 Assignment. This Agreement and the rights and
obligations of the parties hereto shall bind and inure to the
benefit of each of the parties hereto and shall also bind and
inure to the benefit of any successor or successors of the
company in a reorganization, merger or consolidation and any
assignee of all or substantially all of the Company's business
and properties, but, except as to any such successor of the
Company, neither this Agreement nor any rights or benefits
hereunder may be assigned by the Company or Employee.
5.02 Initial Term and Ex . Except as otherwise provided,
the term of this Agreement shall be one (1) year commencing with the
effective date hereof. on the first anniversary of the effective
date, and on each subsequent annual anniversary of the effective
date thereafter, the Agreement shall be automatically extended for
an additional year unless either party notifies the other in
writing more than 60 days prior to the relevant anniversary date
that the Agreement is no longer to be extended.
5.03 Governing Law. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the
State of Nevada.
5.04 Interpretation. In case any one or more of the
provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
5.05 Notice. Any notice required or permitted to be
given hereunder shall be effective when received and shall be
sufficient if in writing and if personally delivered or sent by
prepaid cable, telex or registered air mail, return receipt
requested, to the party to receive such notice at its address set
forth at the end of this Agreement or at such other address as a
party may by notice specify to the other.
5.06 Amendment and Waiver. This Agreement may not be
amended, supplemented or waived except by a writing signed by the
party against which such amendment or waiver is to be enforced.
The waiver by any party of a breach of any provision of this
Agreement shall not operate to, or be construed as a waiver of,
any other breach of that provision nor as a waiver of any breach
of another provision.
5.07 Binding Effect. Subject to the provisions of
Section 4 hereof, this Agreement shall be binding on the
successors and assigns of the parties hereto.
5.08 Survival of Rights and Obligations. All rights and
obligations of Employee or the Company arising during the term of
this Agreement shall continue to have full force and effect after
the termination of this Agreement unless otherwise
provided herein.
WHEREFORE, the parties hereto, having been duly authorized to
do so, have caused this Employment Agreement to be executed as of
the date first above written.
XXXXXX TREE CONSTRUCTION
By /S/ Xxxxx Xxxxxx
Xxxxx XxxXxx, President
EMPLOYEE
/S/ Xxxxx Xxxx
Xxxxx Xxxx
