EXHIBIT 10.4
[GRAPHIC OMITTED]
RESTORATION GROUP
EMPLOYMENT AGREEMENT
This Agreement is made by and between RG Restoration, Inc. d/b/a The Restoration
Group, a Texas corporation, with its principal office located at 0000 Xxxxxx
Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (the "Company") and Xxxxx X. Xxxxxxxx
,("Employee'). In consideration of the mutual promises and covenants contained
herein, the adequacy and receipt of which are hereby acknowledged, the parties
agree to the following:
1. Employment. The Company employs Employee commencing on March 1st, 2005
("Start Date"), (subject to a probationary period of ten days from employment
Start Date to allow The Company to complete a background check, including
criminal, employment, and education verification, and findings satisfactory to
The Company), to perform such duties and have such responsibilities as set forth
from time to time by The Company's Management. Employee shall comply with all
policies and procedures set forth by the Company from time to time, including
but not limited to the Company's Employee Handbook. Either party may terminate
this employment agreement at any time and for any or no reason, and no term is
implied herein. If the Company terminates Employee without Cause, employee will
be entitled to 3 months of compensation and all stock options granted shall
immediately vest. "Cause" means: a) failing to carryout all lawful requests of
the Company including strictly following its policies, procedures and
performance criterion or any breach of this Employment Agreement; or b) any act
of subordination, dishonesty, or moral turpitude which could be potentially
damaging to the Company; or c) violations of any law or code that potentially
could directly affect the Company.
Initials:_____
2. Base Compensation. Employee shall earn an initial annual salary ("Base
Salary") of $100,000 per year, which shall be paid pro-rata pursuant to the
Company's regular payroll practices, less any and all applicable taxes,
withholdings, and other deductions required by law. Additionally, Employee shall
receive increases in Base Salary upon the Company's achievement of certain goals
with regard to its business. Employee shall receive performance reviews on an
annual basis at which time incremental future increases may be determined.
Additionally, Employee shall receive a minimum of $ 500 per month automobile
allowance and up to a maximum of $ 500 per month health insurance allowance.
Employee shall further be entitled to reimbursement for usual and customary
business expenses approved in advance by the Company and properly documented
with receipts and timely submitted pursuant to the Company's expense
reimbursement policies in effect from time to time. Employee shall be entitled
to participate in the Company's Senior Management Bonus Policy, and any other
benefits to which Employee may be eligible, including but not limited to the
Company's 2005 Long Term Incentive Plan or other benefit programs that the
Company offers from time to time to similar employees.
Initials:_____
2.1 Stock Option Plan (to be determined by the compensation committee)
The Employee shall receive an incentive stock option grant effective March 1st
2005 of________restricted common shares of RG America, Inc. The options shall
expire 5 years from the date each option shares vest and shall be exercisable
for a price of $_______per share.________shares of this grant shall vest on
January l s, 2006. The remaining________option shares will be vested equally on
a quarterly basis over 2 years, equating to_______shares per quarter. Any stock
option(s) granted to Employee shall be strictly conditioned and governed and
controlled by Inwision Capital, Inc.'s stock option plan(s) and the documents
related thereto, and not by this Agreement unless where specifically outlined
herein.
Initials:_____
2.2 Other benefits.
Sales commissions: Employee has the ability to earn additional sales commissions
per the following schedule: a) Direct Sale : defined as any sale originated,
developed, and closed by the employee with no assistance from other company
sales employees. Commission defined as 3 % of the contract proceeds.
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b) Joint Sale: defined as any sale originated, developed, and closed by the
above named employee with assistance from another company employee. Commission
structure will be worked out equitably between the parties involved (a normal
commission structure might be defined as 1.0% for contract origination, 1.0% for
contract development and 1.0% for contract closing) on a sale by sale basis
depending on the value and effort contributed by each party. In the event of a
dispute, employee agrees to allow the company president to arbitrate and decide
a fair and equitable commission split.
c) Sales Referrals: defined as any referral to another company sales employee
ultimately resulting in a contract closure. Commission defined as 0.5% of the
contract proceeds.
d) Sales Override: defined as any sale originated and developed by a company
junior sales employee under the direction of the above named employee and closed
with the assistance of the above named employee. Commission defined as 0.5 % to
the above named employee, and 2.5 % to junior sales employee.
Sales commissions payment: Sales commissions will be paid as follows:
a) 10% sales commission will be paid within 14 days following contract closing.
b) 50% sales commission will be paid within 14 days following the completion of
50% of the project.
c) 40% sales commission will be paid within 14 days following the completion of
100% project.
Commissions versus Base Compensation:
a) Commissions will be absorbed by the base compensation as defined above until
the base salary is exceeded, and then commissions shall be paid above and beyond
the base compensation.
b) If, for any reason, employment shall be discontinued at the initiative of
either party, commissions earned will be paid as earned, if they exceed the
prorated base compensation at that point.
Initials:_____
3. Confidentiality and Trade Secret. Confidential Information received by
Employee shall be held by Employee in secrecy and confidence, and shall not be
disclosed by Employee to any person or other entity at any time. Employee shall
not remove, distribute, publish, copy, download, or otherwise extract in any
manner from The Company's premises or its databases and records any Confidential
Information. Upon termination of this Agreement, Employee shall return to The
Company any and all Confidential Information received from The Company which is
in written or computer readable form, together with a letter certifying that the
information contained therein has in no way been reproduced, copied or disclosed
in an unauthorized manner. The provisions of this Agreement regarding
Confidential Information and trade secrets shall survive the termination of this
Agreement.
Initials:_____
4. Representations and Warranties. Employee represents and warranties to the
Company that i) he is duly qualified to be employed by the Company; and ii) he
is not prohibited from being employed with the Company by virtue of any
non-competition or other restrictive agreement with any other person or company;
and iii) Employee's employment with the Company does and will not infringe on
the rights of any other person; and iv) the Company did not solicit nor seek out
the Employee for employment with the Company but rather the Employee approached
the Company and sought employment with the Company; and iv) the Employee has not
obtained any confidential or proprietary intellectual property, trade secrets,
or other information or knowledge particular to Employee's former employers that
Employee will utilize in his employment with the Company; and v) the
information, skills and other knowledge that Employee will utilize in his
employment with the Company is all the sort of information, knowledge that any
person in the Company's field would possess and be familiar with.
Initials:_____
5. Non-Competition/Non-Solicitation. Employee acknowledges and agrees that the
pursuit of the activities forbidden by this section would necessarily involve
the use or disclosure of Confidential Information in breach of this Agreement,
but that proof of such a breach would be extremely difficult. To forestall this
disclosure, use, and breach, and in consideration of the employment under this
Agreement, and in order to protect the goodwill and other business interests of
The Company, and provided that the Company remains in business, then for a
period of twelve (12) months after employment is terminated, Employee shall not,
directly or indirectly, or through any other person acting on Employee's behalf:
(a) solicit business from or perform services for, any persons,
company or other entity which at any time during the Employee's employment by
the Company is a client or customer of the Company if such business or services
are of the same general character as those engaged in or performed by the
Company;
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(b) solicit for employment or in any other fashion hire any of the
employees of the Company;
(c) own, manage, operate, finance, join, control or participate in
the ownership, management, operation, financing or control of, or be connected
as an officer, director, employee, partner, principal, agent, representative,
consultant or otherwise with any business or enterprise engaged in the business
of designing, developing, and implementing any sort of business described
generally as relating to a unique Habitational I Apartment insurance product
which is made unique by the alignment of interests between Construction, Claims,
Marketing and Underwriting (collectively, the "Business") within a radius of 35
miles from Company's or any of Company's affiliates principal places of business
(the "Restricted Area");
(d) use or permit his name to be used in connection with any
competitive business or enterprise engaged in the Business within the Restricted
Area; or
(e) use the name of the Company or any name similar thereto, but
nothing in this clause shall be deemed, by implication, to authorize or permit
use of such name after expiration of such period; provided, however, that this
provision shall not be construed to prohibit the ownership by the Employee of
not more than 5% of any class of the outstanding equity securities of any
corporation which is engaged in any of the foregoing businesses having a class
of publicly traded securities. In the event that the provisions of this Section
should ever be adjudicated to exceed the time, geographic, service or product
limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, service or product limitations permitted by applicable law.
Initials:_____
6. Inventions. All work performed by Employee and all materials, products,
deliverables, inventions, software, ideas, disclosures and improvements, whether
patented or unpatented, and copyrighted material, made or conceived by Employee
during Employee's employment by The Company (collectively referred to as
"inventions") which (i) relate to methods apparatuses, designs, products,
processes or devices sold, licensed, used or under development by The Company,
(ii) otherwise relate to or pertain to any present, proposed or contemplated
business, functions or operations of The Company, (iii) relate to The Company's
actual or anticipated research or development, (iv) involve the use of The
Company's assets, information, inventions or the like, are Confidential
Information and are the property of The Company and shall be deemed to be a work
made for hire. To the extent that title to any of the foregoing shall not, by
operation of law, vest in The Company, all right title and interest therein are
hereby irrevocably assigned to The Company. Employee agrees to give or any
person or entity designated by The Company reasonable assistance required to
perfect its rights therein.
Initials:_____
7. Equipment. All equipment issued to the Employee by the Company shall at all
times remain the property of The Company. It is the Employee's responsibility to
immediately notify the Company if any equipment issued to the employee becomes
inoperable or damaged. If and when equipment is exchanged or returned, the
Employee is responsible for maintaining receipts evidencing same. Upon leaving
employment, Employee shall immediately return to the Company all equipment and
other items issued to Employee.
Initials:_____
8. Offset Right at Termination, Subject to applicable law, the Company may
offset from Employee's wages and any other earned benefits, any obligations due
the Company, as set forth herein, from the Employee upon termination.
Initials:_____
9. Arbitration. Other than claims under paragraphs 2,3,4,5 and 6 of this
Agreement, all disputes between Employee (and Employee's attorneys, successors,
and assigns) and The Company, (and its Affiliates, shareholders, directors,
officers, employees, agents, successors, attorneys, and assigns) shall be
submitted to binding arbitration pursuant to the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association in a
timely manner. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY
JURY IN REGARDING CLAIMS, INCLUDING WITHOUT LIMITATION ANY RIGHT TO TRIAL BY
JURY AS TO THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THE AGREEMENT
TO ARBITRATE. THE ARBITOR SHALL NOT HAVE THE AUTHORITY TO AWARD EITHER PARTY
ATTORNEYS FEES OR EXEMPLARY DAMAGES. Notwithstanding the foregoing, pursuant to
appropriate provisions of state law, either party may, at its option, seek
injunctive relief through a court of competent jurisdiction to enforce the
Non-Competition and Non-Solicitation sections of this Agreement. All proceedings
and all documents prepared in connection with any Arbitrable Claim shall be
confidential and, unless otherwise required by law, the subject matter thereof
shall not be disclosed to any person other than the parties to the proceedings,
their counsel, witnesses and experts, the
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arbitrator, and, if involved, the court and court staff. All documents filed
with the arbitrator or with a court shall be filed under sea(. The parties shall
stipulate to all arbitration and court orders necessary to effectuate fully the
provisions of this subsection concerning confidentiality. The rights and
obligations of Employee and The Company set forth in this Section on Arbitration
shall survive the termination of Employee's employment.
Initials:_____
10. Miscellaneous.
a) "Confidential Information' means any and all information and
materials that are proprietary to The Company (or its affiliates) or
to any third-party licensor, the same having been acquired through
the expenditure of time, effort and money, including but not limited
to the following items and other items of a similar nature
considered by The Company to be confidential and/or in the nature of
trade secrets, whether or not reduced to a tangible medium: business
and marketing plans, sales records, price lists, pricing policies,
market studies, financial and technical information, customer names,
business relationships and other information relating to, among
other things, customers, supplier's names, discoveries, algorithms,
data structures, concepts, product plans, software in any stage of
development, source code, designs, drawings, specifications,
techniques, models, data, technical manuals, research and
development materials, processes, procedures and know-how.
Confidential Information shall not include any information publicly
or generally known or known to the Employee prior to employment with
the company. Because of the unique nature of the Confidential
Information, Employee understands and agrees that The Company will
suffer irreparable harm from the breach of any covenant contained
herein including the covenant not to compete and the covenant not to
disclose Confidential Information and that monetary damages may be
inadequate to compensate for such a breach. Accordingly, Employee
agrees that, notwithstanding the Arbitration clause of this
Agreement, in addition to any other remedies available at law or
equity, The Company shall be entitled to injunctive relief to
enforce the terms of this Agreement.
b) The Agreement shall be governed in all respects by the laws of the
State of Texas and the covenants and agreements hereunder shall
inure to the benefit of and be enforceable by each party's
successors and assigns. The parties hereby agree to submit
themselves to the exclusive jurisdiction and venue of any state or
federal court located in Dallas County, Texas.
c) Employee agrees that this agreement is the complete and exclusive
statement of the agreement between the parties, which supersedes all
proposals or prior agreements, oral or written and all other
communications between the parties relating to the subject matter of
this agreement including any cover letter hereto,
d) If any provision(s) of this Agreement shall be declared invalid for
any reason, the remaining provisions of this Agreement remain in
full force and effect.
IN WITNESS HEREOF, the parties hereto have voluntarily executed this
Employment Agreement by their person or their duly authorized representatives as
of the date set forth above.
RG RESTORATION, INC. EMPLOYEE:
BY: /s/ Xxxxx Xxx /s/ Xxxxx X. Xxxxxxxx 3/24/05
------------------------------- ------ ------------------------- -------
XXXXX XXX DATE XXXXX X. XXXXXXXX DATE
CHIEF OPERATING OFFICER,
PRESIDENT
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