Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made effective the 1st day of January,
2005 ("Effective Date"), by and between Arcadia Resources, Inc., a Nevada
corporation ("Employer") and Xxxxxxx X. Irish, a Florida resident ("Employee").
W I T N E S S E T H:
WHEREAS, subject to the terms and provisions of this Agreement, Employer
desires to employ Employee in the positions set forth herein and Employee
desires to accept such employment.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other valuable consideration the receipt and sufficiency of
which is hereby expressly acknowledged, the parties hereto agree as follows:
1. "AT WILL" EMPLOYMENT. Employer hereby employs Employee on an "AT
WILL" basis and Employee hereby accepts such employment, in accordance with the
terms and conditions hereinafter set forth. Employee acknowledges and agrees
that her employment with Employer is and shall remain on an "AT WILL" basis, and
that nothing contained in this Agreement is intended to confer to Employee any
guaranty of continued employment with Employer. Accordingly, either Employee or
Employer may terminate the employment relationship at any time, with or without
cause, upon thirty (30) days prior written notice.
2. DUTIES AND RESPONSIBILITIES. Employee shall serve as the Chief
Financial Officer of Employer on a full-time basis and shall report to the Chief
Executive Officer of Employer. Employee shall perform such duties and
responsibilities assigned to her from time to time by the Chief Executive
Officer and by the Board of Directors of the Employer that are consistent with
the titles held by Employee. If requested by the Board of Directors, Employee
shall serve on any committee established by the Board of Directors without
additional compensation. Employee agrees to use her best efforts to perform any
and all duties, responsibilities and other services necessary or appropriate to
perform the functions of her position, as modified, expanded or assigned, from
time to time, by the Chief Executive Officer and/or the Board of Directors of
Employer. During the term of this Agreement, Employee shall devote substantially
all of her business time and efforts to the performance of her duties and
responsibilities to the Employer. Employee agrees not to work for any other
business or enterprise during the course of her employment with Employer,
whether as an employee, agent, independent contractor or in any other capacity
whatsoever, except passive ownership of real estate interests.
3. COMPENSATION AND BENEFITS. Employer agrees to pay and provide
Employee and Employee agrees to accept in full consideration for her services to
Employer, the following:
A. SALARY. A base salary ("Base Salary") of One Hundred Twenty
Five Thousand ($125,000.00) Dollars per annum, less applicable
withholdings, payable in accordance with the normal payroll practices of
Employer. Employee's Base Salary may be increased from time to time at
the discretion of the Board of Directors of the Employer.
B. ANNUAL BONUS. Employee shall be eligible to receive an annual
cash bonus as determined by the Board of Directors, in its sole
discretion, at the end of each fiscal year of the Employer. Nothing
contained herein shall, however, require that any bonus be paid and it
shall remain discretionary with the Board of Directors of the Employer.
C. VACATION AND SICK TIME. Employee shall be entitled to take up
to four (4) weeks of paid vacation per year, plus a limited amount of
paid time off for sickness, disability, or other personal reasons in
accordance with the Employer's general time-off policies in effect from
time to time for its employees.
D. FRINGE BENEFITS/RETIREMENT PLAN. Employee shall be entitled
to health care benefits, and additionally to participate in such
additional fringe benefits and qualified retirement plans and stock
option plans offered by Employer to its employees generally from time to
time, in accordance with Employer's eligibility and participation
provisions of such plans.
E. EXPENSE REIMBURSEMENT. The Employer shall reasonably promptly
reimburse Employee all reasonable out-of-pocket expenses incurred by her
in connection with the performance of her duties on behalf of the
Employer and upon Employee's submission of such receipts and records as
may be necessary to evidence such expenses.
F. VEHICLE ALLOWANCE. Employee shall receive a monthly vehicle
allowance of Six Hundred and no/100 ($600.00) Dollars.
4. OBLIGATION UPON TERMINATION OF EMPLOYMENT
A. TERMINATION AND SEVERANCE PAYMENT. Subject to Section 4(B)
immediately below, if the Employer terminates this Agreement and
Employee's employment for any reason, then the Employer shall pay
Employee the unpaid Base Salary and benefits earned and accrued through
the date of termination, plus all unreimbursed expenses through such
date, plus the Employer shall pay, as severance, an amount equal to the
product obtained by multiplying Employee's Base Salary in effect on the
date of termination, by one-half (1/2). Fifty percent (50%) of such
severance amount, less applicable withholdings, shall be made within
thirty (30) days following the termination of this Employee's employment
and the balance shall be paid, less applicable withholdings, in six (6)
equal monthly installments, with the first installment due and payable
within ninety (90) days following the termination of Employee's
employment. No interest shall be paid on the severance amounts set forth
in this paragraph.
B. TERMINATION FOR CERTAIN REASONS. If this Agreement and
Employee's employment is terminated by the Employer for any one or more
of the following reasons, then in such case Employer shall only be
obligated to pay Employee the amount of any unpaid Base Salary earned
and accrued through the date of termination, together with any
unreimbursed expenses:
(i) The conviction of any crime involving moral
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(ii) The conviction of, or pleading guilty or no contest
to, any crime, whether or not involving the Employer,
constituting a felony in the jurisdiction involved, which the
Board of Directors, in its sole discretion, determines may have
an injurious effect on the Employer;
(iii) The Employee's gross negligence, willful
misconduct, insubordination, or the willful and repeated failure
or refusal to perform such duties as may be properly delegated
to Employee by the Board of Directors or Chief Executive Officer
which are consistent with the Employee's position;
(iv) The failure to act in the best interest of the
Employer or the non-performance of her duties within fourteen
(14) days following receipt of written notice from the Employer
of such failure or non-performance, provided such is consistent
with the duties normally associated with Employee's position and
not violative of applicable laws.
C. NO FURTHER OBLIGATIONS. Upon the termination of Employee's
employment under 4A or 4B above, Employer shall have no further
liability or obligation whatsoever to Employee or her personal
representative, estate, heirs, beneficiaries, or any other person
claiming by, under or through her, except as stated in such Sections.
5. INVENTIONS. If any at time Employee shall, either alone or with
others, make, devise, create, invent or discover any inventions, improvements,
modifications, developments, ideas, products, property, formulas, know-how,
designs, models, processes, prototypes, sketches, drawings, plans or other
matters whatsoever (whether or not capable of being protected by letters of
patent, registration, copyright, registered trademark, service marks or other
protection) which, in any manner, relate to, arise out of, or are in connection
with the present or future business prospects or activities of Employer
(collectively "Inventions"), all such Inventions shall immediately be and remain
the sole and exclusive property of Employer and Employee shall immediately and
confidentially communicate a description of the Invention to Employer and to no
other party at any time, and if Employer so desires, Employee shall execute all
documents and instruments and do all things as may be requested by Employer in
order to forever vest all right, title and interest in such Invention solely in
Employer and to obtain such letters of patent, copyrights, registrations or
other protections as Employer may, from time to time, desire.
6. CONFIDENTIALITY. Employee acknowledges and agrees that at all times
during and following the termination of her employment with Employer under any
circumstances, she shall not use or disclose (i) any information, knowledge or
data relating in any way to the business, financial condition, sales, public and
private sources of financing, sales, customers, operations, suppliers, products,
services, Inventions, business relationships, manufacturing, technologies or
services of Employer, or (ii) any other proprietary or confidential information,
knowledge, data or details of the past, present or future business affairs or
practices of Employer (items (i) and (ii) are hereafter referred to as
"Confidential Information"), except Employee may use any such Confidential
Information provided to her as necessary during the term of this Agreement for
purposes of carrying out her duties hereunder for Employer's benefit provided
adequate measures are taken to protect the confidentiality thereof. Employee
covenants and agrees that (i) the use and disclosure restrictions applicable to
Confidential Information shall also apply to all
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documents or other materials containing any Confidential Information
("Confidential Materials"), (ii) all Confidential Materials are and shall remain
at all times the sole exclusive property of Employer and (iii) upon termination
of employment, Employee shall promptly return all Confidential Materials, and
all copies and extracts thereof, to Employer and at no time shall any
Confidential Materials be used, copied, published, circulated or disclosed, in
any manner whatsoever, except as specifically authorized in writing by Employer.
7. COVENANT-NOT-TO-COMPETE. Employee covenants and agrees that during
the course of her employment and for the one (1) year period following
termination of her employment ("Restricted Period"), Employee shall not within
60 miles of any location of the Employer or its affiliates (collectively the
"Restricted Area"), in any manner, directly or indirectly, through
intermediaries or other persons or entities, either as owner, shareholder,
director, officer, manager, member, agent, consultant, creditor, representative,
investor, partner, employee, or on behalf of any other person or entity, or in
any other capacity whatsoever (excepting Employee's passive ownership of less
than 5% of the securities of a publicly traded entity) (i) engage in, assist,
provide capital, services, advice or information to, or in any manner whatsoever
become associated with any business or enterprise that offers products or
services similar in type, nature, style, function or purpose with those
currently offered by the Employer or its affiliates or any business or
enterprise that is competitive with or similar to any business currently
conducted by the Employer or its affiliates, (ii) contact for any business
purpose, solicit or attempt to solicit any supplier, customer, agent,
representative or employee of the Employer or its affiliates, or otherwise
interfere with or attempt in any manner to disrupt any relationship or agreement
between the Employer or its affiliates and any of its customers, employees,
agents, representatives or others doing business with the Employer or its
affiliates, or (iii) compete with the Employer or its affiliates ("Restricted
Activities"). Employee agrees that any Restricted Activities outside the
Restricted Area with respect to or directly or indirectly relating to any
portion of the Restricted Area shall be deemed conducted within the Restricted
Area and prohibited hereby.
8. ENFORCEABILITY. Employee expressly agrees and acknowledges that a
loss arising from a breach of any provision under Paragraphs 5, 6 or 7 may not
be reasonably and equitably compensated by money damages. Therefore, Employee
agrees that in a case of any such breach, Employer shall be entitled to
injunctive and/or other extraordinary relief in order to prevent Employee from
engaging in any of the foregoing prohibited activities, which relief shall be
cumulative and in addition to any and all other additional remedies to which
Employer may be entitled to at law or equity. In the event that any court of
competent jurisdiction shall determine that any part or all of the provisions of
Paragraphs 5, 6 or 7 are unenforceable or invalid due to the scope of the
activities restrained, the geographical extent of the restraints imposed, the
duration of the restraints imposed, or otherwise, the parties hereby expressly
intend, agree and stipulate that under such circumstances, the provisions of
Xxxxxxxxxx 0, 0 xxx 0 xxxxx xx enforceable to the fullest extent and scope
permitted by law and that the parties shall be bound by any judicial
modifications to the provisions therein which said court of competent
jurisdiction may make in order to carry out the intentions of the parties as
provided herein.
9. GOVERNING LAW AND ARBITRATION. This Agreement and all disputes
arising out of Employee's employment shall be governed by and construed in
accordance with the laws of the State of Michigan, notwithstanding the fact that
either party is or may hereafter become
domiciled or located in a different state. Any dispute, controversy or claim
arising out of or relating to this Agreement or Employee's employment, whether
arising in contract, tort or otherwise, shall be resolved at arbitration in
accordance with the rules of the American Arbitration Association, except for
any equitable or injunctive relief sought under this Agreement. The arbitration
shall be held at a location within Oakland County, Michigan. The parties agree
that any arbitration award rendered on any claim submitted to arbitration shall
be final and binding upon the parties and not subject to appeal and that
judgment may be entered upon any arbitration award by any circuit court located
in Michigan or by any other court of competent jurisdiction.
10. WAIVER OF BREACH. The waiver of breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. Each and every right, remedy and power hereby granted to any Party or
allowed it by law shall be cumulative and not exclusive of any other.
11. SEVERABILITY. If any of the provisions of this Agreement or the
application thereof to any party under any circumstances is adjudicated to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement or the application thereof.
12. INTERPRETATION OF AGREEMENT. Where appropriate in this Agreement,
words used in the singular shall include the plural, and words used in the
masculine shall include the feminine and neuter. All headings that are used in
this Agreement are for the convenience of the reader only and shall not be used
to limit or construe any of the provisions hereof.
13. SURVIVAL OF PROVISIONS. The obligations of Employee under Paragraphs
4, 5, 6, 7 and 8 of this Agreement are continuing and shall survive the
termination or expiration of this Agreement under any circumstances whatsoever.
14. AMENDMENT OF AGREEMENT. The terms and provisions of this Agreement
may be altered or amended in any of their provisions only by the mutual written
agreement of the parties hereto.
15. SUCCESSORS. The Agreement shall inure to the benefit of Employer and
its successors, but may not be assigned or delegated by Employee as it requires
Employee's personal services.
16. ADVICE OF COUNSEL. Employee is entering into this contract freely
and voluntarily, and has been advised to seek the advice of her legal counsel
prior to entering into this Agreement.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all other previous or contemporaneous communications, representations,
understandings, agreements, negotiations and discussions, either oral or
written, between the parties. The parties acknowledge and agree that there are
no written or oral agreements, understandings, or representations, directly or
indirectly related to this Agreement that are not set forth herein.
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18. COUNTERPART/FACSIMILE SIGNATURES. This Agreement may be executed in
two or more counterparts and by facsimile signature, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the date and year first above written.
"EMPLOYER"
ARCADIA RESOURCES, INC.,
a Nevada corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
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Its: Vice Chairman of Finance
(Principal Financial and
Accounting Officer),
President and
Chief Operating Officer.
"EMPLOYEE"
/s/ Xxxxxxx X. Irish
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Xxxxxxx X. Irish
