Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into on August 1, 1999
between XxxxxxxxXxxxxx.xxx, Inc a Florida Corporation (the "Company"), and Xxx
Xxxxxx
1. AGREEMENT TO EMPLOY AND ACCEPTANCE. The Company hereby agrees to employ
the Employee, and the Employee hereby accepts said employment for the
terms and on the terms and conditions set forth in this Agreement.
Duties and Responsibilities. During the terms of this Agreement, the
Employee shall serve as Vice President and Chief Operating
Officer--Technical and Development, West Coast Operations of the
Company. In the performance of his responsibilities hereunder, the
Employee shall report directly to the President of the Company and
shall be subject to the policies and direction of the Board of
Directors.
During the term of this Agreement, Employee's service hereunder shall
be exclusive to the Company, provided that he may continue to operate
Right Connection and associated businesses so long as they do not
interfere with his duties with the Company. The duties of the Employee
shall be performed at an office of the Company in San Diego or at such
other place within the State of California as shall be agreeable to the
Employee. In the event the Company relocates, moves, or for any reason,
is transferred, the Employee may elect to leave the Company, and the
Company will buy out the contract as provided in paragraph 4.3 herein.
Employee shall have the responsibilities to manage the Company's
California Technical Operations , to manage and supervise all aspects
of technical operations and development of this operation, including
staffing and equipment, , to oversee all technical employees and
supervise the systems and technical controls.
2. COMPENSATION, BENEFITS AND EXPENSES.
2.1 SALARY. During the term of this Agreement, the Employee shall receive
from the Company a salary (the "Salary") at the rate of $75,000 per
year The salary will be reviewed periodically (but not less than
annually) by the Board of Directors and may be adjusted based on, among
other things, performance and market conditions for comparable
positions and comparable companies. Further if at any time the Company
hires another employee or acquires a company with an employee
performing substantially similar services to the Employee, the Salary
will be promptly increased to match the salary of such person.
Employee's annual salary will be payable in bi-weekly payments.
2.2 BONUS. During the term of this Agreement, the Employee shall receive an
annual bonus from the Company of each year, in such amount as shall,
from time to time, be determined by the Board of Directors of the
Company, in its good faith discretion, but no less than that of
comparable employees.
2.3 STOCK OPTIONS. Employee shall receive options to purchase shares of
Common Stock of the Company at various terms and conditions determined
by the Board of Directors of the Company from time to time, which shall
be identical to comparable employees, whether existing or from a new
acquisition. Any and all options that were received from the Company by
the Employee during his employment with the Company shall not be
subject to reverse stock splits.
2.4 REGISTRATION RIGHTS. Company shall agree to register any and all stock
options on a pro-rata basis with other option holders currently being
registered at any time the Company files a Registration Statement. In
addition, Company hereby agrees to register at least 25% of Employee's
options within two (2) years and 25% per year thereafter until all
underlying shares have been registered. In the absence of a
Registration Statement, Company agrees to file an S-8 Registration
Statement, if necessary.
2.5 BENEFITS. The Company shall continue to make available to the Employee
such benefits as are in accordance with the normal benefit practices of
the Company. This will include, but not limited to, major medical and
dental insurance for Employee and family. Employee's benefits shall not
be reduced during the term oh his employment.
2.6 VACATION. During the term of this Employment Agreement, the Employee
shall be entitled to four (4) week's paid annual vacation per year
during the term of this contract. Any vacation not used during each
year will be paid to the Employee at the end of each year.
2.7 EXPENSES. The Company shall pay or reimburse the Employee for all
reasonable expenses which are actually incurred or paid by him in the
performance of his service hereunder.
2.7.1 MEMBERSHIPS. Company shall pay for Employee all appropriate
professional and associate membership dues necessary or
appropriate for fulfillment of Employee 's' responsibilities
under this Agreement and agree to provide an annual allowance
of not in excess of $2,000.00 for payment of social club
memberships.
2.7.2 PROFESSIONAL SEMINARS. Company shall afford Employee with 12
compensated days annually for the purpose of attending
professional seminars necessary to enable Employee to obtain
and maintain licenses and certification related to his
employment. Company will pay all reasonable travel, food and
lodging costs associated with attending such seminars.
3. TERM AND TERMINATION.
3.1 TERM. The Terms of this Agreement shall commence on the date of this
Agreement and shall continue until the fifth anniversary of the date
hereof (the "five-year Term"), unless sooner terminated as provided
herein.
3.2 DISABILITY. In the event the Employee becomes disabled (which shall
mean that the Employee is unable, because of permanent physical or
mental disability, to perform her services or similar services
hereunder), Employee's employment under this Agreement shall terminate.
In that event, the Company shall pay to Employee a reasonable
disability benefit of fifty (50%) percent of his base salary for the
balance of the five-year term or 18 months, whichever is greater, in
addition to any state disability benefits.
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3.3 TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company shall have the
right to terminate the Employee's employment without "cause" under this
agreement, without prior written notice to the Employee. In the event
the Company terminates the Employee's employment under this Agreement
without cause, or if the Company is acquired and Employee's employment
is terminated,the Employee shall be entitled to receive the greater of
(i) three (3) times the annual Salary then payable to the Employee or
(ii) the Salary for the balance of the five-year Term, and benefits for
the lesser of one year or the balance of the Term. For purposes of this
Section 3.3 and Sections 3.4, 3.5 and 3.6 below, "cause" shall mean
only a material breach of Employee's obligations under this Agreement
which breach is not cured within thirty (30) days after written notice
thereof is given to the Employee.
3.4 TERMINATION BY THE COMPANY WITH CAUSE. The Company shall have the right
to terminate the Employee's employment under this Agreement for
"cause". If the Company terminates the Employee's employment under this
Agreement with cause, the Employee shall be entitled to receive the
full salary then payable to the Employee through the date of
termination.
3.5 TERMINATION BY EMPLOYEE WITHOUT CAUSE. The Employee shall have the
right to terminate his employment under this Agreement, without cause,
effective thirty days from the date written notice of termination is
given by the Employee to the Company; provided, however, if the Company
so requests, the Employee shall continue in her position for such
period of time as the Company shall request (up to a maximum of ninety
days) to allow the Company reasonable time to replace the Employee. In
such event of termination by Employee, Employee shall receive his full
Salary to the date of termination or until said continuance.
3.6 TERMINATION BY EMPLOYEE WITH CAUSE. The Employee shall have the right
to terminate his employment under this Agreement, by written notice
thereof to the Company, at any time after the occurrence of a breach of
this Agreement by the Company or any of its subsidiaries which is not
cured within thirty (30) days after notice thereof by the Employee to
the Company. The Employee shall be required to mitigate damages or the
amount of any payment provided for in this section. By terminating the
Agreement, Employee shall not be deemed to waive any rights it may have
for claims against Employer.
4. COVENANT NOT TO COMPETE. During the term of this Agreement, and for two
(2) years after its termination, Employee promises and agrees that he
shall not enter into any employment or business relationship (whether
as a principal, agent, partner, employee, investor, owner, consultant,
board member or otherwise) with any company, business organization or
individual that is engaged in the same or similar business as that
conducted by the Company or with any other business that competes with
the Company. This Section 10 is effective regardless of the reason for
the termination of the Agreement and regardless of whether the
Agreement is terminated by the Employee, the Company or by its own
terms. This restrictive covenant may be assigned to and enforced by any
of the Company's assignees or successors. This covenant shall
automatically terminate upon a termination pursuant to Sections 3.3 or
3.6.
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5. AGREEMENT NOT TO USE OR DISCLOSE TRADE SECRETS. During the term of this
Agreement and a period of two (2) years thereafter, Employee promises
and agrees that he shall not disclose or utilize any trade secrets
acquired during the course of service with the Company and/or its
related business entities. As used herein, "trade secret" refers to the
whole or any portion or phase of any formula, pattern, device,
combination of devices, or compilation of information which is for use,
or is used, in the operation of the Company's business and which
provides the Company an advantage, or an opportunity to obtain an
advantage, over those who do not know or use it. "Trade secret" also
includes any scientific, technical, or commercial information,
including any design, list of suppliers, list of customers, as well as
pricing information or methodology, contractual arrangements with
vendors or suppliers, business development plans or activities, or
Company financial information. This Section 5 is effective regardless
of the reason for the termination of the Agreement and regardless of
whether the Agreement is terminated by the Employee, the Company or by
its own terms. This restrictive covenant may be assigned to and
enforced by any of the Company's assignees or successors.
6. AGREEMENT NOT TO USE OR DISCLOSE CONFIDENTIAL OR PROPRIETARY
INFORMATION. During the term of this Agreement and a period of two (2)
years thereafter, Employee promises and agrees that he shall not
disclose or utilize any confidential or proprietary information
acquired during the course of service with the Company and/or its
related business entities, Employee shall not divulge, communicate, use
to the detriment of the Company or for the benefit of any other person
or persons, or misuse in any way, any confidential or proprietary
information pertaining to the business of the Company. Any confidential
or proprietary information or data now or hereafter acquired by
Employee with respect to the business of the Company (which shall
include, but not be limited to, information concerning the Company's
financial condition, prospects, technology, customers, suppliers,
methods of doing business and promotion of the Company's products and
services) shall be deemed a valuable, special and unique asset of the
Company that is received by Employee in confidence and as a fiduciary.
For purposes of this Agreement "confidential and proprietary
information" means information disclosed to Employee as a consequence
of or through his employment by the Company (including information
conceived, originated, discovered or developed by Employee) prior to or
after the date hereof and not generally known or in the public domain,
about the Company or its business. This Section 6 is effective
regardless of the reason for the termination of the Agreement and
regardless of whether the Agreement is terminated by the Employee, the
Company or by its own terms. This restrictive covenant may be assigned
to and enforced by any of the Company's assignees or successors.
7. AGREEMENT NOT TO HIRE COMPANY EMPLOYEES. If Employee leaves the employ
of the Company or terminates this Agreement, Employee promises and
agrees that, during the two (2) years following his departure from the
Company, Employee shall not, without the express written permission of
the Company, directly or indirectly employ as a consultant or employee
any person who is employed as a consultant or employee of the Company
at the time of Employee's termination, or any person who was an
employee or consultant of the Company during the six months preceding
Employee's termination. This Section 7 is effective regardless of the
reason for the termination of the Agreement and regardless of whether
the Agreement is terminated by the Employee, the Company or by its own
terms. This restrictive covenant may be assigned to and enforced by any
of the Company's assignees or successors. This covenant shall
automatically terminate upon a termination pursuant to Sections 3.3 or
3.6.
8. INJUNCTIVE RELIEF. In recognition of the unique services to be
performed by Employee and the possibility that any violation by
Employee of Section 4, Section 5, Section 6or Section 7 of this
Agreement may cause irreparable or indeterminate damage or injury to
Company, Employee expressly stipulates and agrees that the Company
shall be entitled, upon five (5) days written NOTICE to Employee, to
obtain an injunction from any court of competent jurisdiction
restraining any violation or threatened violation of this Agreement.
Such right to an injunction shall be in addition to, and not in
limitation of, any other rights or remedies the Company may have for
damages.
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9. JUDICIAL MODIFICATION OF AGREEMENT. The Company and Employee
specifically agree that a court of competent jurisdiction (or an
arbitrator, as appropriate) may modify or amend Section 4, Section 5,
Section 6or Section 7 of this Agreement if absolutely necessary to
conform with relevant law or binding judicial decisions in effect at
the time the Company seeks to enforce any or all of said provisions.
10. NOTICES. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be given by personal
delivery or by certified mail, return receipt requested, or by
overnight delivery to the parties at the following addresses:
Employee: Xxx Xxxxxx
0000 Xxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Company: XxxxxxxxXxxxxx.xxx, Inc
Att: Xxxxx Xxxxxxxx CEO
0000 X. Xxxxx Xxx
Xxxxx #000
Xxxx Xxxxx, XX 00000
Notices shall be deemed given on the date of personal delivery, on the
next business day after delivery to the overnight delivery company and
three business days after the date of mailing, as the case may be.
11. INTEGRATION; AMENDMENT. This Agreement and the documents referred to
herein set forth in full the terms of agreement between the parties and
are intended as the full, complete and exclusive Agreement supersedes
all prior discussions, promises, representations, warranties,
agreements and understandings between the parties. This Agreement may
not be modified or amended, nor may any rights hereunder be waived,
except in a writing signed by the party against whom enforcement of the
modification, amendment or waiver is sought.
12. WAIVERS. Any waiver of any breach of this Agreement in a particular
instance shall not operate as a waiver of subsequent breaches of the
same or of a different kind. Any party's exercise or failure to
exercise any rights under this Agreement in a particular instance shall
not operate as a waiver of the party's right to exercise the same or
different rights in subsequent instances.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns; provided, however,
that neither party may assign or transfer any rights hereunder without
the prior written consent of the other party.
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14. NO THIRD PARTY BENEFICIARIES. This Agreement does not create, and shall
not be construed as creating, any rights enforceable by any person not
a party to this Agreement.
15. SEPARABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall nevertheless remain in
full force and effect.
16. HEADINGS. The headings in this Agreement are solely for convenience and
shall be given no effect in the construction for interpretation of this
Agreement.
17. Further Assurances. The parties agree to cooperate fully with each
other and take all further actions and execute all further documents as
may from time to time be reasonably necessary to carry out the purposes
of this Agreement.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, which together shall constitute one and the same
agreement. A facsimile copy and signature shall be acceptable and
binding between the parties and shall be deemed an original
counterpart.
19. GOVERNING LAW. This Agreement is being entered into, and shall be
governed by, the internal laws (and not the conflict of laws rules) of
the State of California.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on the date
first above written.
Employee:
/s/ XXX XXXXXX
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Xxx Xxxxxx
Company:
By: /s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
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