EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of April 1, 2000
is entered into between XXXXXX X. XXXXXX, residing at 000 Xxxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxx 00000 ("Executive"), and PRE-CELL SOLUTIONS, INC., a Colorado
corporation having its principal office at 000 Xxxx Xxxxx, Xxxxx X, Xxxxxxxxx,
Xxxxxxx 00000 ("Company").
WHEREAS, the Company and Executive desire to provide for the employment
of Executive by the Company on the terms set forth herein;
IT IS AGREED:
1. Employment, Duties and Acceptance.
1.1 The Company hereby employs Executive as its Chief
Executive Officer. All of Executive's powers and authority in any capacity shall
at all times be subject to the reasonable direction and control of the Company's
board of directors (the "Board").
1.2 The Board may assign to Executive such other executive
duties for the Company or any Affiliate (as defined in Section 5.1) as are
consistent with Executive's status as Chief Executive Officer.
1.3 Executive accepts such employment and agrees to devote a
sufficient portion of his business time, energies and attention to the
performance of his duties. Executive shall perform his duties primarily in and
from the Company's offices located in Melbourne, Florida.
2. Compensation and Benefits.
2.1 The Company shall pay to Executive a base salary
("Salary") at the aggregate rate of $250,000 per annum during the Employment
Term (as such term is defined in Section 3.1, below). Executive's Salary shall
be paid in equal, periodic installments, in accordance with the Company's normal
payroll procedures and shall be subject to withholding taxes and other normal
payroll deductions.
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2.2 The Company may award Executive a bonus (the "Bonus") at
the sole discretion of the Board, which Bonus shall be determined based upon
Executive's performance and the Company's performance generally. Notwithstanding
the foregoing, Executive understands that the Company is not obligated under any
circumstances, to award any such Bonus.
2.3 The Company shall annually review Executive's performance.
Based upon such review and such other factors as the Company may consider, the
Company may determine to increase Executive's salary. Notwithstanding the
foregoing, Executive understands that the Company is not obligated under any
circumstances, to award any such increase in salary.
2.4 Executive shall be entitled to such medical, dental and
disability insurance which is no less favorable than generally afforded to other
senior executives of the Company, subject to applicable waiting periods and
other conditions. Executive shall be entitled to five weeks of vacation in each
employment year and to a reasonable number of other days off for religious and
personal reasons. Executive acknowledges that the Company may, from time to
time, apply for and take out in its own name and at its expense, life, health,
disability, accident or other insurance, including key man insurance, upon
Executive that the Company may deem necessary and advisable to protect its
interests hereunder; and Executive agrees to submit to any medical or other
reasonable examination necessary for such purpose and to assist and cooperate
with the Company in procuring such insurance; and Executive acknowledges that he
shall have no right, title or interest in or to such insurance.
2.5 The Company will pay or reimburse Executive for all
transportation, hotel and other expenses reasonably incurred by Executive on
business trips and for all other ordinary and reasonable out-of-pocket expenses
actually incurred by him in the conduct of the business of the Company against
itemized vouchers submitted with respect to any such expenses approved in
accordance with customary procedures.
2.6 The company will pay Executive a monthly automobile
allowance equal to $1,500 per month during the Employment Term.
3. Term and Termination.
3.1 The term of this Agreement commences as of April 1, 2000,
and shall continue until April 1, 2003 (the "Employment Term"), unless sooner
terminated or extended as herein provided.
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3.2 If Executive dies during the term of this Agreement, this
Agreement shall thereupon terminate.
3.3 The Company, by notice to Executive, may terminate this
Agreement if Executive shall fail because of illness or incapacity to render,
for six consecutive months, services of the character contemplated by this
Agreement.
3.4 The Company, by not less than 30 days notice to Executive,
may terminate this Agreement without cause at any time. In the event of such
termination the Company shall pay to Executive the salary due Executive pursuant
to Paragraph 2.1 through the Employment Term as provided in Section 3.1. In the
event Executive is terminated without cause during the final year of the
Employment Term, then Executive shall receive the greater of: (i) the salary due
Executive pursuant to Paragraph 2.1 through the Employment Term; or (ii) the
salary due Executive pursuant to Paragraph 2.1 for a period of six calendar
months. Notwithstanding such termination, the provisions of paragraph 4 shall
survive.
3.5 The Company, by notice to Executive, may terminate this
Agreement for cause. As used herein, "cause" shall include, but not be limited
to: (a) the refusal or failure by Executive to carry out specific directions of
the Board of Directors which are of a material nature, or the refusal or failure
by Executive to perform a material part of Executive's duties hereunder; (b) the
commission by Executive of a material breach of any of the provisions of this
Agreement; (c) common law fraud or dishonest action by Executive in his
relations with the Company or any of its subsidiaries or affiliates, or with any
customer or business contact of the Company or any of its subsidiaries or
affiliates ("dishonest" for these purposes shall mean Executive's knowingly or
recklessly making of a material misstatement or omission for his personal
benefit); or (d) the conviction of Executive of any crime involving an act of
moral turpitude. Notwithstanding the foregoing, no "cause" for termination shall
be deemed to exist with respect to Executive's acts described in clauses (a) or
(b) above, unless the Company shall have given written notice to Executive
specifying the "cause" with reasonable particularity and, within ten business
days after such notice, Executive shall not have cured or eliminated the problem
or thing giving rise to such "cause;" provided, however, that a breach of any
provision of clauses (a) or (b) above, involving the same or substantially
similar actions or conduct for which the Company previously gave notice of
termination and with respect to which, Executive satisfactorily cured, shall be
grounds for termination for cause without any additional notice from the
Company. Notwithstanding such termination, the provisions of paragraph 4 shall
survive.
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3.6 The Executive, by notice to the Company, may terminate
this Agreement if the Company materially breaches any of the provisions of this
Agreement or does not comply with Section 2.4. Notwithstanding the foregoing,
the Executive shall not have grounds for termination unless Executive shall have
given written notice to the Company specifying the breach with reasonable
particularity and, within ten days after such notice, the Company shall not have
cured or eliminated the problem or thing giving rise to such breach; provided,
however, that a breach of any provision of this Agreement involving the same or
substantially similar actions or conduct for which the Executive previously gave
notice of termination and with respect to which, the Company satisfactorily
cured, shall be grounds for termination for cause without any additional notice
from the Executive. In the event of termination by Executive under this Section
3.6, the Company shall pay to Executive the Salary due Executive pursuant to
paragraph 2.1 hereof through the Employment Term. Notwithstanding such
termination, the provisions of paragraph 4 shall survive termination if the
Company continues to pay Executive the Salary as provided in the immediately
preceding sentence.
4. Protection of Confidential Information; Non-Competition.
4.1 Executive acknowledges that:
(a) As a result of his employment with the Company,
Executive will obtain secret and confidential information concerning the
business of the Company and/or its subsidiaries and affiliates (referred to
collectively in this paragraph 4 as the "Company"), including, without
limitation, financial information, designs and other proprietary rights, trade
secrets and "know-how," customers and sources ("Confidential Information").
(b) The Company will suffer substantial damage which
will be difficult to compute if, during the period of his employment with the
Company or thereafter, Executive should divulge Confidential Information.
(c) The provisions of this Agreement are reasonable
and necessary for the protection of the business of the Company.
4.2 Executive agrees that he will not at any time, either
during the term of this Agreement or thereafter, divulge to any person or entity
any Confidential Information obtained or learned by him as a result of his
employment with, or prior retention by, the Company, except (i) in the course of
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performing his duties hereunder; (ii) with the Company's express written
consent; (iii) to the extent that any such information is in the public domain
other than as a result of Executive's breach of any of his obligations
hereunder; or (iv) where required to be disclosed by court order, subpoena or
other government process. If Executive shall be required to make disclosure
pursuant to the provisions of clause (iv) of the preceding sentence, Executive
promptly, but in no event more than 72 hours after learning of such subpoena,
court order, or other government process, shall notify, by personal delivery or
by electronic means, confirmed by mail, the Company and, at the Company's
expense, Executive shall: (a) take all reasonably necessary and lawful steps
required by the Company to defend against the enforcement of such subpoena,
court order or other government process, and (b) permit the Company to intervene
and participate with counsel of its choice in any proceeding relating to the
enforcement thereof.
4.3 Upon termination of his employment with the Company,
Executive will promptly deliver to the Company all memoranda, notes, records,
reports, manuals, drawings, blueprints and other documents (and all copies
thereof) relating to the business of the Company and all property associated
therewith, which he may then possess or have under his control; provided,
however, subject to Executive's obligations under this Section 4, that Executive
shall be entitled to retain copies of such documents reasonably necessary to
document his financial relationship (both past and future) with the Company.
4.4 If Executive commits a breach, or threatens to commit a
breach, of any of the provisions of Sections 4.2, the Company shall have the
right and remedy:
(a) to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed by Executive that any such breach or threatened breach
will cause irreparable injury to the Company and that money damages will not
provide an adequate remedy to the Company; and
(b) to require Executive to account for and pay over
to the Company all monetary benefits received by the Executive as the result of
any transactions constituting a breach of any of the provisions of Sections 4.2,
and Executive hereby agrees to account for and pay over such benefits to the
Company.
Each of the rights and remedies enumerated in this Section 4.4
shall be independent of the other, and shall be severally enforceable, and such
rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company under law or equity.
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4.5 During the one-year period following termination of
Executive's employment with the Company for any reason, Executive, without the
prior written permission of the Company, shall not, anywhere in the United
States, (i) enter into the employ of or render any services to any person, firm
or corporation engaged in any Competitive Business, as defined below; (ii)
engage in any Competitive Business for his own account; (iii) become associated
with or interested in any Competitive Business as an individual, partner,
shareholder, creditor, director, officer, principal, agent, employee, trustee,
consultant, advisor or in any other relationship or capacity; (iv) employ or
retain, or have or cause any other person or entity to employ or retain, any
person who was employed or retained by the Company while Executive was employed
by the Company; or (v) solicit, interfere with, or endeavor to entice away from
the Company, for the benefit of a Competitive Business, any of its customers or
other persons with whom the Company has a contractual relationship or is
otherwise doing business or has done business during the term of this Agreement.
Notwithstanding the foregoing, nothing in this Agreement shall preclude
Executive from investing his personal assets in the securities of any
corporation or other business entity which is engaged in a Competitive Business
if such securities are traded on a national stock exchange or in the
over-the-counter market and if such investment does not result in his
beneficially owning, at any time, more than 4.9% of the publicly-traded equity
securities of such Competitive Business.
4.6 If Executive shall violate any covenant contained in
Section 4 the duration of such covenant so violated shall be automatically
extended for a period of time equal to the period of such violation.
4.6 The provisions of this paragraph 4 shall survive the
termination of this Agreement for any reason.
5. Definitions.
As used in this Agreement:
5.1 "Affiliate" shall mean any entity that, directly or
indirectly, is controlled by, controlling, or under common control with the
Company.
5.2 "Competitive Business" shall mean a businesses engaged in
(i) the sale, manufacture, or distribution of wireless handsets; (ii) the
development of software to be utilized in a wireless handset; (iii) the
development of software designed or intended to provide management information
or support systems to wireless handsets; (iv) any other businesses engaged in
the sale, marketing, development or distribution of prepaid communication or
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utility services; or (v) or any other business engaged in by the Company during
the fiscal year immediately prior to the termination of Executive's employment.
6. Termination of all Other Agreements. This Agreement shall supersede
all prior agreements between the Company and any of its affiliates, subsidiaries
or related entities and Executive in connection with his employment.
Accordingly, that certain Employment Agreement between the Company and Executive
dated as of December 1, 1998 is hereby terminated and of no further force or
effect. Notwithstanding such termination, the Options granted to Executive under
his prior Agreement shall survive. Additionally, that certain Employment
Agreement between Executive and Pre-Paid Solutions, Inc., a wholly owned
subsidiary of the Company, dated May 1, 1998 is hereby terminated and of no
further force or effect.
7. Miscellaneous Provisions.
7.1 All notices provided for in this Agreement shall be in
writing, and shall be deemed to have been duly given when delivered personally
to the party to receive the same, when transmitted by electronic means, or when
delivered by reputable overnight courier, postage prepaid, addressed to the
party to receive the same at his or its address set forth below, or such other
address as the party to receive the same shall have specified by written notice
given in the manner provided for in this Section 7.1. All notices shall be
deemed to have been given upon actual receipt.
If to Executive:
Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
If to the Company:
Pre-Cell Solutions, Inc.
000 Xxxx Xxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
7.2 This Agreement sets forth the entire agreement of the
parties relating to the employment of Executive and are intended to supersede
all prior negotiations, understandings and agreements. No provisions of this
Agreement may be waived or changed except by a writing by the party against whom
such waiver or change is sought to be enforced. The failure of any party to
require performance of any provision hereof or thereof shall in no manner affect
the right at a later time to enforce such provision.
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7.3 All questions with respect to the construction of this
Agreement, and the rights and obligations of the parties hereunder, shall be
determined in accordance with the law of the State of Florida applicable to
agreements made and to be performed entirely in Florida.
7.4 This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Company. This Agreement shall not
be assignable by Executive, but shall inure to the benefit of and be binding
upon Executive's heirs and legal representatives.
7.5 Should any provision of this Agreement become legally
unenforceable, no other provision of this Agreement shall be affected, and this
Agreement shall continue as if the Agreement had been executed absent the
unenforceable provision.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
EXECUTIVE
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
PRE-CELL SOLUTIONS, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Xxxxxxx X. XxXxxxxxxx
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