EXHIBIT 10.02
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EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EXECUTIVE EMPLOYMENT AGREEMENT ("the AGREEMENT") is made and entered
into on April 10, 2000 by and between AUGUST PROJECT 1 CORP., a Florida
corporation (the "COMPANY"), and XXX XXXXXXXX (the "EXECUTIVE"), who hereby
agree as hereinafter provided:
Section 1. DEFINITIONS. As used herein, the following terms shall have the
meanings set forth below.
"BASE COMPENSATION" shall have the meaning set forth in Section 5.
"BOARD OF DIRECTORS" means the directors of the Company.
"CAUSE" shall have the meaning set forth in Section 10(b).
"DISABILITY" of the Executive means that, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have been
absent from his duties on a full time basis for three (3) consecutive months, or
for an aggregate of six (6) months in any consecutive twelve (12) month period.
"EMPLOYMENT COMMENCEMENT DATE" means the date hereof.
"EMPLOYMENT PERIOD" means that period commencing on the Employment
Commencement Date and ending two (2) years from the date hereof unless
terminated earlier pursuant to Section 10 hereof.
"EMPLOYMENT TERMINATION DATE" means the date the Employment Period
terminates as provided in Section 10.
"FISCAL YEAR" means the fiscal year of the Company ending December 31 or
as such fiscal year as may be amended by the Board of Directors.
"SCHEDULED EMPLOYMENT TERMINATION DATE" means the later of (a) the day
immediately preceding the second (2nd) anniversary of the Employment
Commencement Date or (b) such date as is specified by either the Company or the
Executive in a Notice of Termination.
"SUBSIDIARIES" means any wholly owned subsidiaries of the Company, if any.
Section 2. EMPLOYMENT AND TERM. The Company hereby employs the Executive,
and the Executive hereby accepts such employment by the Company, for the
purposes and upon the terms and conditions contained in this Agreement. The term
of such employment shall be for the Employment Period.
Section 3. EMPLOYMENT CAPACITY AND DUTIES. The Executive shall be employed
throughout the Employment Period as the President of the Company. The Executive
shall have the duties and responsibilities incumbent with this position, but at
all times shall act in accordance with the directions given by the Board of
Directors.
Section 4. EXECUTIVE PERFORMANCE COVENANTS. The Executive accepts the
employment described in Section 3 and agrees to devote all of his working time
and efforts (except for absences due to illness and appropriate vacations) to
the business and affairs of the Company and the performance of the aforesaid
duties and responsibilities.
Section 5. COMPENSATION. The Executive shall be paid "BASE COMPENSATION"
for each Fiscal Year at an annual rate of $80,000 in 26 bi-weekly equal
installments or such other basis as may be determined by the Board of Directors.
The Base Compensation shall be pro-rated for any Fiscal Year hereunder which is
less than a full Fiscal Year.
Section 6. PAYMENT OF EXPENSES. The Company shall pay the Executive's
reasonable expenses, including expenses for travel, entertainment and similar
items, in accordance with the Company's expense policies as determined from time
to time by the Board of Directors. The Employee shall provide all documentation
in connection with such expenses as the Board of Directors shall request. If
there is a dispute as to the eligibility of an expense for payment in accordance
with the Company's expense policies, then such expense shall be determined to be
payable by the Company if approved by the Board of Directors. Any such
determination shall be final and binding on the parties hereto. Notwithstanding
any other provision hereof, any expenses which cumulatively exceed one thousand
dollars ($1,000) in any one month shall require the prior written approval of
the Board of Directors to be eligible for reimbursement hereunder.
Section 7. EMPLOYEE BENEFITS, VACATIONS. During the Employment Period, the
Executive shall receive the benefits and enjoy the perquisites described below:
(a) BENEFIT PLANS. The Executive shall be entitled to participate
in any perquisite, benefit or compensation plan, including any medical insurance
plan or other plans which is generally applicable to all salaried employees of
the Company (collectively referred to as the "BENEFIT PLANS"). The Company does
not guarantee, represent or warrant that any Benefit Plan will be available or
will continue to be available hereunder during the term of this Agreement.
(b) VACATIONS. The Executive shall be entitled in each Fiscal Year
to a vacation of two (2) weeks (ten [10] working days).
Section 8. COMPANY LIFE INSURANCE; MEDICAL EXAMINATIONS. At any time
during the Employment Period, the Company may, in its discretion, apply for and
procure as owner and for its own benefit, insurance on the life of the
Executive, in such amounts and in such form or forms as the Company may
determine. The Executive shall have no right to any interest in any such policy
or policies, but he shall, at the request of the Company, submit to such medical
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examinations, supply such information and execute such applications, instruments
and other documents as reasonably may be required by the insurance company or
companies to whom the Company has applied for such insurance.
If requested by the Company, the Executive shall submit to at least one
medical examination during each Fiscal Year at such reasonable time and place
and by a physician or physicians determined and selected by the Company.
Section 9. CERTAIN COMPANY PROTECTION PROVISIONS. The following
provisions apply for the protection of the Company:
(a) CONFIDENTIALITY. The Executive agrees and acknowledges
that, by reason of the nature of his duties as an officer and employee of the
Company, he will have access to and become informed of confidential and secret
information which is a competitive asset of the Company ("CONFIDENTIAL
INFORMATION"), including, without limitation, any lists of customers or
suppliers, financial statistics, research data or any other statistics and plans
contained in profit plans, capital plans, critical issue plans, strategic plans,
marketing or operational plans, technical data and information, technology,
software, product information or other information of the Company (whether or
not such information qualifies as a "trade secret" under applicable law) and any
of the foregoing which belong to any person or company but to which the
Executive has had access by reason of his employment relationship with the
Company. Any technology, software, or patents created, obtained, designed, or
produced by Executive during the Employment Period shall be deemed to be
Confidential Information; however, any technology, software, or patents created,
obtained, designed, or produced by Executive during any period other than the
Employment Period shall be deemed not to be Confidential Information. The
Executive agrees to faithfully keep in strict confidence, and not, either
directly or indirectly, to make known, divulge, reveal, furnish, make available
or use (except for use in the regular course of his employment duties) any such
Confidential Information. The Executive acknowledges that all manuals,
instruction books, price lists, technology, software, information and records
and other information and aids relating to the Company's business, and any and
all other documents (and all copies thereof) containing Confidential Information
furnished to the Executive by the Company or otherwise acquired or developed by
the Executive, shall at all times be the property of the Company. Upon
termination of the Employment Period, the Executive shall return to the Company
all such property or documents (and all copies thereof) which are in his
possession, custody or control, but his obligation of confidentiality shall
survive such termination of the Employment Period until and unless any such
Confidential Information shall have become, through no fault of the Executive,
generally known to the public. The obligations of the Executive under this
subsection are in addition to, and not in limitation or preemption of, all other
obligations of confidentiality which the Executive may have to the Company under
general legal or equitable principles or otherwise.
(b) REMEDIES. It is expressly agreed by the Executive and the
Company that these provisions are reasonable for purposes of preserving for the
Company its business, goodwill and proprietary information. It is also agreed
that if any provision is found by a court having jurisdiction to be
unreasonable, for any reason, then that provision shall be amended to correspond
to that considered reasonable by a court and as amended shall be enforced and
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the remaining provisions shall remain effective. In the event of any breach of
these provisions by the Executive, the parties recognize and acknowledge that a
remedy at law will be inadequate and the Company may suffer irreparable injury.
The Executive acknowledges that the services to be rendered by him are of a
character giving them peculiar value, the loss of which cannot be adequately
compensated for in damages; accordingly the Executive consents to injunctive and
other appropriate equitable relief (without the posting of a bond) upon the
institution of proceedings therefor by the Company in order to protect the
Company's rights. Such relief shall be in addition to any other relief to which
the Company may be entitled at law or in equity.
Section 10. TERMINATION OF EMPLOYMENT.
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(a) NOTICE OF TERMINATION; EMPLOYMENT TERMINATION DATE.
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(1) Any terminatio7n of the Executive's employment by the
Company or the Executive shall be communicated by written "NOTICE OF
TERMINATION" to the other party thereto.
(2) "EMPLOYMENT TERMINATION DATE" shall mean the date on
which the Employment Period and the Executive's right and obligation to perform
employment services for the Company shall terminate effective upon the first to
occur of the following:
(A) If the Executive's employment is terminated for
Disability, the date that the Notice of Termination is
given;
(B) If the Executive's employment is terminated by the
Executive by voluntary action of the Executive (see
Section 10(e)), the date specified in the Notice of
Termination, which date (except with the written consent
of the Company to the contrary) shall not be more than
sixty (60) days after the date that the Notice of
Termination is given;
(C) The death of the Executive;
(D) If the Executive's employment is terminated by the
Company for Cause (see Section 10(b)(1)), the date on
which a Notice of Termination is given; and
(E) If the Executive's employment is terminated by the
Company other than for Cause, Disability or death of the
Executive (see Section 10(f)), the date specified in the
Notice of Termination which date (except with the
written consent of the Executive to the contrary) shall
not be more than sixty (60) days after the date that the
Notice of Termination is given.
(b) TERMINATION FOR CAUSE:
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(1) The Company may terminate the Executive's employment and
the Employment Period for Cause. For the purposes of this Agreement, the Company
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shall have "CAUSE" to terminate employment hereunder (A) if termination shall
have been the result of an act or acts of willful misconduct injurious to the
Company, monetarily or otherwise; (B) upon the willful and continued failure by
the Executive substantially to perform his duties with the Company; (C) if the
Executive is convicted of a felony crime; or (D) if the Executive willfully
fails to follow the directives of the Board of Directors in connection with his
employment hereunder.
(2) If the Executive's employment shall be terminated for
Cause, the Company shall pay the Executive within ten (10) days of such
termination, his unpaid Base Compensation through the Employment Termination
Date at the rate in effect at the time Notice of Termination is given, plus any
expenses incurred in accordance with Section 6 hereof.
(c) TERMINATION FOR DISABILITY. The Company may terminate the
Executive's employment because of the Disability of the Executive and thereafter
shall pay to the Executive (or his successors) (1) his unpaid Base Compensation
through the third full month following the Employment Termination Date at his
then effective Base Compensation rate plus (2) any expenses incurred in
accordance with Section 6 hereof.
(d) TERMINATION UPON EXECUTIVE'S DEATH. In the event of the
Executive's death, the Company shall pay to the Executive's estate (1) any
unpaid amount of Base Compensation through the date of death at the then
effective Base Compensation rate, plus (2) any expenses incurred in accordance
with Section 6 hereof.
(e) TERMINATION OF EMPLOYMENT BY THE EXECUTIVE. The Executive
shall have the right voluntarily to terminate his employment prior to the
Scheduled Employment Termination Date, and if the Executive shall so terminate
his employment, he shall be entitled only to payment of the amounts which would
be payable under Section 10(b)(2) had he been terminated for Cause.
(f) COMPENSATION UPON TERMINATION OTHER THAN FOR CAUSE. If the
Company shall terminate the Executive's employment other than for Cause or,
pursuant to Section 10(c) or (d), then the Company shall pay to the Executive
his unpaid Base Compensation through the Scheduled Employment Termination Date
at his then effective Base Compensation Rate, plus (2) any expenses incurred in
accordance with Section 6 hereof.
(g) COMPENSATION UPON DISABILITY. During any period that the
Executive fails to perform his duties hereunder as a result of Disability due to
physical or mental illness, he shall continue to receive his full Base
Compensation at the rate then in effect until this Agreement is terminated
pursuant to Section 10(c) hereof. Thereafter, his benefits shall be determined
in accordance with the Company's Benefit Plans.
Section 11. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Miami-Dade County, Florida in accordance with the rules of the American
Arbitration Association then in effect.
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Section 12. SUCCESSORS AND ASSIGNS. Except as hereinafter expressly
provided, the agreements, covenants, terms and provisions of this Agreement
shall bind the respective heirs, executors, administrators, successors and
assigns of the parties. Specifically, and not by way of limitation of the
foregoing, the Executive shall be bound by the terms and conditions of this
Agreement to any successor assignee of the Company's rights and obligations
hereunder as a result of any merger, consolidation or sale or lease of all or
substantially all of the Company's business and assets.
If the Executive should die while any amounts are payable to him
hereunder, or if by reason of his death payments are to be made to him
hereunder, then this Agreement shall inure to the benefit of and be enforceable
by the Executive's executors, administrators, heirs, distributees, devisees and
legatees and all amounts payable hereunder shall then be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee or other
designee or, if there is no such designee, to this estate.
This Agreement is personal in nature and the Executive shall not, without
the consent of the Company, assign or transfer this Agreement or any rights or
obligations hereunder. Without limiting the foregoing, the Executive's right to
receive payments hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than a transfer by
his will or by the laws of descent or distribution, and in the event of any
attempted assignment or transfer contrary to this paragraph the Company shall
have no liability to pay to the purported assignee or transferee any amount so
attempted to be assigned or transferred.
As used in this Agreement, the "COMPANY" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in the first
paragraph of this Section or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
Section 13. NOTICES. Any notice or other communication required or desired
to be given hereunder shall be in writing and shall be deemed sufficiently given
when personally delivered or delivered by nationally recognized overnight
delivery service, addressed to the parties at their respective addressed set
forth under their respective signatures below or such other person or addresses
as shall be given by notice of any party. Such notice shall be deemed to be
given on the date of delivery.
Section 14. WAIVER; REMEDIES CUMULATIVE. No waiver of any right or option
hereunder by any party shall operate as a waiver of any other right or option,
or the same right or option as respects any subsequent occasion for its
exercise, or of any legal remedy. No waiver by any party of any breach of this
Agreement or of any agreement or covenant contained herein shall be held to
constitute a waiver of any other breach or a continuation of the same breach.
All remedies provided by this Agreement are in addition to all other remedies by
it or the law provided.
Section 15. GOVERNING LAW; SEVERABILITY. This Agreement is made and is
expected to be performed in Florida, and the various terms, provisions,
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covenants and agreements, and the performance thereof, shall be construed,
interpreted and enforced under and with reference to the laws of the State of
Florida, unless otherwise indicated herein. It is the intention of the Company
and the Executive to comply fully with all laws and matters of public policy
relating to employment agreements and restrictive covenants, and this Agreement
shall be construed consistently with such laws and public policy to the extent
possible. If and to the extent any one or more covenants, agreements, terms and
provisions of this Agreement or any portion or portions thereof shall be held
invalid or unenforceable by a court of competent jurisdiction, then such
covenants, agreements, terms and provisions (or portions thereof) shall be
deemed separable from the remaining covenants, agreements, terms and provisions
of this Agreement and such holding shall in no way affect the validity or
enforceability of any of the other covenants, agreements, terms and provisions
hereof.
Section 16. INDEPENDENT REPRESENTATION. Each party hereto acknowledges and
agrees that it has received independent legal counsel of its own choice and that
it has been sufficiently apprised of its rights and responsibilities with regard
to the substance of this Agreement. In addition, Executive acknowledges that
Xxxxxxxxxxx & Xxxxxxxx LLP ("K&L") is solely representing the Company in
connection with this Agreement and all of the other documents associated with
this transaction.
Section 17. MISCELLANEOUS. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be modified, changed or amended except in a writing
signed by each of the parties hereto. This Agreement may be signed in multiple
counterparts, each of which shall be deemed an original hereof. The captions of
the several sections and subsections of this Agreement are not a part of the
context hereof, are inserted only for convenience in locating such sections and
subsections and shall be ignored in construing this Agreement.
Section 18. SURVIVAL. The provisions of Sections 9, 11, 12, 15 and 16
shall survive termination of this Agreement for any reason.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Executive Employment Agreement as of the date first above written.
AUGUST PROJECT 1 CORP. XXX XXXXXXXX
By:_________________________________ ________________________________
Name:_______________________________ Address:
Title:______________________________ ________________________________
Address:____________________________ ________________________________
00 Xxxxx Xxxxx Xxxxx, Xxxxx 000 ________________________________
Xxxxxxxx, Xxxxxxx 00000 ________________________________
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