Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this 31st day of March, 2003 (the "Agreement"), by
and between Donar Enterprises, Inc., a Delaware corporation ("Employer"), and
Xxxxxxx Xxx ("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee and Employee desires to be
employed by Employer as President of Employer; and
WHEREAS, Employer recognizes the need of the knowledge, talents and assistance
of Employee and desires to enter into this Agreement to secure the foregoing.
NOW, THEREFORE, in consideration of the promises herein contained, the parties
covenant and agree as follows:
1. EMPLOYMENT. Employer agrees to employ Employee and Employee agrees to be
employed by Employer and to perform work as determined by Employer, as
President of Employer, on the terms and conditions set forth in this Agreement.
2. COMPENSATION. Employer agrees to employ Employee at the base rate of
compensation of eighty-five thousand and No/Dollars ($85,000.00) per year.
Compensation is to be paid twice per month. Compensation is to be reviewed by
the Compensation Committee on an annual basis. In the event that Employer is
not in a position, due to its then- current financial situation, to make any
salary payment(s) to Employee, the unpaid salary shall accrue without interest.
All accrued and unpaid salary shall be immediately due and payable upon the
occurrence of any "change of control" of Employer, as defined in Section 6(h)
hereof.
In addition to the base compensation, Employer agrees to pay or provide
Employee with the following:
A. Expenses. Reimbursement for reasonable expenses actually incurred by
Employee in the furtherance of Employer's business, including, but not limited
to, telephone calls (including business related calls on Employee's cellular
phone and business related long distance calls), entertainment, attendance at
conferences, conventions and institutes, provided proper itemization of said
expenses is furnished to Employer by Employee. All such expenditures shall be
subject to the reasonable control of Employer.
B. Medical and Disability Benefits. Employee and family shall be entitled to
participate in Employer's medical program, Employer-paid disability and other
benefit programs as other executives of Employer are entitled to participate
in, as is in place from time to time.
C. Additional Benefits. Employee shall be entitled to participate in and
receive such additional benefits as Employer shall from time to time make
available to its executive employees.
3. DUTIES. Employee agrees to perform work as determined by the Board of
Directors, subject to the direction of Employer and agrees to subject himself
at all times during the Term (as hereinafter defined) to the direction and
control of Employer in respect to the work to be performed. Employee shall
devote his working time and attention to the furtherance of Employer's best
interests. In that regard, and as further consideration for this Agreement,
Employee agrees to comply with, and abide by, such rules and directives of
Employer as may be reasonably established from time to time, and recognizes the
right of Employer, in its reasonable discretion, to change, modify or adopt new
policies and practices affecting the employment relationship, not inconsistent
with this Agreement, as deemed appropriate by Employer.
4. WORKING FACILITIES. Employee shall be furnished with office space and such
other facilities and services suitable to Employee's position and adequate for
the performance of Employee's duties.
5. AGENCY. Employee shall have no authority to enter into any contracts binding
upon Employer, except as authorized in writing, in advance, by Employer.
6. TERM OF EMPLOYMENT; SEVERANCE.
A. Employee's employment hereunder shall commence as of the Effective Date
hereof and continue until January 1, 2006 thereafter (the "Term").
B. Anything herein to the contrary notwithstanding, Employee's employment
hereunder may be terminated immediately at any time by Employee or by the
Employer for Reasonable Cause (as hereinafter defined). It is understood and
acknowledged that Employer shall have the right to effectuate such termination
at will (the "Final Date").
C. If Employee's employment hereunder shall be terminated by Employer without
Reasonable Cause or because of Employee's disability, as determined by Employer
in good faith, then Employee shall be entitled to (i) severance compensation
equal to Employee's then-current base salary and benefits (which for purposes
hereof shall include all compensation payable hereunder, of any type) for a
period equal to the Severance Period (as defined below). Such severance
compensation payments consisting of cash shall be paid in a lump sum plus any
outstanding benefits and allocated bonuses on or before the Final Date. The
severance compensation are intended to be in lieu of all other payments to
which Employee might otherwise be entitled in respect of termination of
Employee's employment without Reasonable Cause or in respect of any action by
Employer constituting Good Reason for voluntary termination.
D. If Employee's employment hereunder shall be terminated for Reasonable Cause,
or if Employee voluntarily terminates Employee's employment without Good
Reason, Employee shall be entitled to receive Employee's base salary as accrued
through the effective date of such termination, but shall not be entitled to
any Severance Benefits or other amounts in respect of such termination.
E. "Reasonable Cause," as used herein, shall mean Employee's involvement in any
action or inaction involving fraud resulting in a personal benefit in excess of
any payments to which Employee is entitled hereunder, dishonesty, or material
violation of Corporation policy and procedures. Employee shall vacate the
offices of Employer on such effective date.
F. "Good Reason," as used herein, means the occurrence of any of the following
events without Employee's consent:
i. a material diminution in Employee's duties and responsibilities;
ii. a reduction in Employee's base salary;
iii. a forced relocation; or
iv. a Change of Control (as defined below) if Successor Employer (as defined in
paragraph H below) fails to assume this Agreement in its entirety.
G. "Severance Period," as used herein, means the lesser of (i) three months
(3) months or (ii) the remaining time of the Term.
H. "Change of Control" of Employer shall occur either: (A) upon the sale of a
controlling interest in the capital stock of Employer in a single transaction
or in a group of related transactions to one or more buyers acting in concert;
(B) upon the sale of all or substantially all of Employer's assets; or (C) upon
any corporate merger or consolidation resulting in one or more parties, who did
not previously hold a controlling interest in the capital stock of Employer,
owning a controlling interest in the capital stock of Employer or its successor
entity.
7. COMPLIANCE WITH LAWS. Employee will comply with all federal and state laws,
rules and regulations relating to any of Employee's responsibilities and duties
with Employer and will not violate any such laws, rules and regulations.
8. COVENANT NOT TO COMPETE. Employee agrees to conform to the following
concerning non-competition.
A. Employer undertakes to train Employee and to give Employee confidential
information and knowledge about Employer's business policies, accounts
procedures and methods. For the purposes of this Agreement, the term
"confidential information" shall include but is not limited to any list of
suppliers, customers, investors, stockholders, including their names,
addresses, phone numbers, amount of investments and similar information. In
addition, any operational information of Employer, including but not limited to
information on Employer's methods of conducting business, profits and/or losses
of Employer, marketing material and any information that would reasonably be
considered proprietary or confidential in nature. Employer has established a
valuable and extensive trade in its products and services, which business has
been developed at a considerable expense to Employer. The nature of the
business is such that the relationship of its customers with Employer must be
maintained through the close personal contact of its employees.
B. Employee desires to enter into or continue in the employ of Employer and by
virtue of such employment by Employer, Employee will become familiar with the
manner, methods, secrets and confidential information pertaining to such
business. During the Term, Employee will continue to receive additional
confidential information of the same kind. Through representatives of Employer,
Employee will become personally acquainted with the business of Employer and
its methods of operation.
C. In consideration of the employment or continued employment of Employee as
herein provided, the training of Employee by Employer, and the disclosure by
Employer to employee of the knowledge and confidential information described
above, Employer requests and Employee makes the covenants hereinafter set
forth. Employee understands and acknowledges that such covenants are required
for the fair and reasonable protection of the business of Employer carried on
in the area to which the covenants are applicable and that without the limited
restrictions on Employee's activities imposed by the covenants, the business of
Employer would suffer irreparable and immeasurable damage. The covenants on the
part of Employee shall be construed as an agreement independent of any other
provision of this Agreement, and existence of any claim or course of action
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by Employer of the covenants.
D. Employee agrees that during the term of Employee's employment and for the
period of twelve (12) months immediately following the termination of
employment (which said time period shall be increased by any time during which
Employee is in violation of this Agreement) Employee will not, within the
territory hereinafter defined, directly or indirectly, for Employee, or on
behalf of others, as an individual on Employee's own account, or as an
employee, agent, or representative for any other person, partnership, firm or
corporation:
i. Compete with the business of Employer by engaging or participating in or
furnishing aid or assistance in competition with the business of Employer.
ii. Engage, in any capacity, directly or indirectly, in or be employed by any
business similar to the kind or nature of business conducted by Employer during
the employment.
iii. For the purposes of this paragraph 8, the business of Employer shall be
limited to the business of formatting and filing XXXXX (Electronic Data
Gathering Analysis and Retrieval) documents for companies and individuals.
E. The territory referred to in this paragraph 8 shall be the entire World.
F. Each restrictive covenant is separate and distinct from any other covenant
set forth in this paragraph. In the event of the invalidity of any covenant,
the remaining obligation shall be deemed independent and divisible. The parties
agree that the territory set forth is reasonable and necessary for the
protection of Employer. In the event any term or condition is deemed to be too
broad or unenforceable, said provision shall be deemed reduced in scope to the
extent necessary to make said provision enforceable and binding.
G. The provisions of this paragraph 8 shall not apply if Employee's employment
is terminated by Employer without Reasonable Cause.
9. INDUCING EMPLOYEE OF EMPLOYER TO LEAVE. Any attempt on the part of Employee
to induce others to leave Employer's employ or any efforts by Employee to
interfere with Employer's relationship with other employees would be harmful
and damaging to Employer. Employee expressly agrees that during the term of
Employee's employment and for a period of twelve (12) months thereafter
(provided said time period shall be increased by any time during which Employee
is in violation of this Agreement), Employee will not in any way directly or
indirectly:
A. Induce or attempt to induce an employee to sever his or her employment with
Employer;
B. Interfere with or disrupt Employer's relationship with other employees; and
C. Solicit, entice, take away or employ any person employed with Employer,
excluding people Employee brings to Employer.
10. CONFIDENTIAL INFORMATION. It is understood between the parties hereto that
during the term of employment, Employee will be dealing with confidential
information, as defined above, which is Employer's property, used in the course
of its business. Employee will not disclose to anyone, directly or indirectly,
any of such confidential information or use such information other than in the
course of Employee's employment. All documents that Employee prepares, or
confidential information that might be given to Employee in the course of
employment, are the exclusive property of Employer and shall remain in
Employer's possession on the premises. Under no circumstances shall any such
information or documents be removed without Employer's written consent first
being obtained.
11. RETURN OF EMPLOYER'S PROPERTY. On termination of employment, regardless of
how termination is effected, or whenever requested by Employer, Employee shall
immediately return to Employer all of Employer's property used by Employee
rendering services hereunder or otherwise that is in Employee's possession or
under Employee's control.
12. VACATION. Employee shall be entitled to a vacation period of two (2) weeks
per calendar year. The vacation shall be taken by Employee at such time during
the year and for such period as reasonable. All vacations should be taken in
the year earned. No vacations may be accrued without written permission of the
Board of Directors.
13. REFERENCES. Employer agrees that, upon termination of this Agreement, it
will, upon written request of Employee, furnish references to third parties,
including prospective employers, regarding Employee. However, Employee
acknowledges that it is Employer's policy to confirm employment only and not to
release any additional information without a written release from Employee.
14. NOTICES. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be deemed to have been delivered
on the date personally delivered or the date mailed, postage prepaid by
certified mail, return receipt requested, or faxed and confirmed, if addressed
to the respective parties as follows:
If to Employer: Donar Enterprises, Inc.
0000 Xxxxxxxx Xxxxxx, #000
Xxxxxxxxxxxx, XX 00000
Attention: Board of Directors
If to Employee: Xxxxxxx Xxx
0000 Xxxxxxxx Xxxxxx, #000
Xxxxxxxxxxxx, XX 00000
Either party may change its address for the purpose of receiving notices,
demands, and other communications by giving written notice to the other party
of the change.
15. VOLUNTARY AGREEMENT. Employee represents that he has not been pressured,
misled or induced to enter this Agreement based upon any representation by
Employer not contained herein.
16. PROVISIONS TO SURVIVE. The parties hereto acknowledge that many of the
terms and conditions of this Agreement are intended to survive the employment
relationship. Therefore, any terms and conditions that are intended by the
nature of the promises or representations to survive the termination of
employment shall survive the term of employment regardless of whether such
provision is expressly stated as so surviving.
17. MERGER. This Agreement represents the entire Agreement between the parties
and shall not be subject to modification or amendment by any oral
representation, or any written statement by either party, except for a dated
written amendment to this Agreement signed by Employee and an authorized
officer of Employer.
18. VENUE AND APPLICABLE LAW. This Agreement shall be enforced and construed in
accordance with the laws of the State of Delaware, and venue for any action or
arbitration under this Agreement shall be Philadelphia County, Pennsylvania.
19. SUBSIDIARIES AND AFFILIATED ENTITIES. Employee acknowledges and agrees that
Employer has or may have various subsidiaries and affiliated entities. In
rendering services to Employer, Employee will have considerable contact with
such subsidiaries and affiliates. Therefore, Employee agrees that all
provisions of paragraphs 7, 8, 9 and 10 shall apply to all such subsidiaries
and affiliates.
20. PERSONNEL INFORMATION. Employee shall not divulge or discuss personnel
information such as salaries, bonuses, commissions and benefits relating to
Employee or other employees of Employer or any of its subsidiaries with any
other person except the Executive Committee and the Board of Directors of
Employer.
21. ASSIGNMENT. This Agreement shall not be assignable by either party without
the written consent of the other party; provided, however, that this Agreement
shall be assignable to any corporation or entity which purchases the assets of
or succeeds to the business of Employer (a "Successor Employer"). Subject to
the foregoing, this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, personal representatives,
successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Employer
Donar Enterprises, Inc.
/s/ Xxxxxxx Xxx
---------------------------------
By: Xxxxxxx Xxx
Title: President and CEO
Employee
/s/ Xxxxxxx Xxx
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Xxxxxxx Xxx
