EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
is
made and entered into effective as of the 1st day of July, 2006, by and between
XXXXXXX TECHNOLOGIES CORPORATION, a Delaware corporation, (“Company”),
with
its principal offices located at 0000 Xxxxx 000xx
Xxxxxx,
Xxxxx, Xxxxxxxx 00000, and XXXXX
X.
XXXXX,
residing at 0000 X. 000xx
Xxxxxx,
Xxxxx, XX 00000 (“Executive”).
The
Company and Executive are sometimes hereinafter referred to individually as
a
“Party”
and
collectively as the “Parties”.
R
E C I T
A L S:
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A.
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Company
currently employs Executive in the position of Chief Technology Officer
and Company desires to confirm and continue such employment and establish
the terms thereof in this
Agreement.
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B.
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Company
has from time to time and may in the future assign certain of its
executives to serve in executive and/or consulting roles with Company
and/or one or more of its wholly or partly owned subsidiary companies
(each, a “Subsidiary”),
including Trace Technologies, LLC, a Nebraska limited liability company
(“Trace”)
and to provide for the compensation payable and benefits due to the
Executive to be the responsibility of such subsidiary. In the event
that
Executive serves in such capacity currently or in the future during
the
Term of this Agreement, such assignment shall not diminish any rights
described or referenced in this Agreement, and Company shall nonetheless
be responsible for any portion of the compensation and benefits or
other
payments provided for herein but not timely paid or provided by such
Subsidiary as if the arrangement with the Subsidiary had never taken
place.
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C.
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Executive
desires to continue employment with Company on the terms and conditions
of
such employment as contained in this
Agreement.
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D.
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Company
desires to continue employment of Executive on the terms and conditions
of
such employment as contained in this
Agreement.
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NOW,
THEREFORE, in consideration of the foregoing, and the mutual covenants and
agreements contained herein, the Parties agree as follows:
| 1. |
Position;
Duties.
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a.
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Company
agrees to employ the Executive during the Term of this Agreement
as an
executive officer of Company and/or one or more of its Subsidiaries
in
Omaha, Nebraska, and Executive accepts such employment on the terms
and
subject to the conditions contained in this
Agreement.
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b.
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Executive’s
duties shall from time to time during the Term be as assigned by
the Board
of Directors of Company but shall at all times be consistent with
those
duties previously performed by Executive on behalf of Company at
the time
of the making of this Agreement and ordinarily assigned to an executive
level employees.
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c.
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Executive
shall be furnished with office space, secretarial support, and other
assistance consistent with the character of his position hereunder
and
with duties performed at the time of the making of this Agreement.
During
the term of this Agreement, Executive will devote his best efforts
and his
full business time and attention (exclusive of vacation periods,
holidays
or periods of illness or incapacity) to the business of Company and
its
Subsidiaries, and his duties
hereunder.
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2. Term.
Unless
earlier terminated as provided pursuant to the provisions of this Agreement,
the
term of this Agreement shall commence as of July 1, 2006 and shall continue
thereafter until December 31, 2007 (the “Initial
Term”).
On
the expiration of the Initial Term, this Agreement shall be deemed renewed
on an
annual basis thereafter for each calendar year (each, a “Renewal
Term”),
unless Company shall give written notice to Executive or Executive shall give
written notice to Company, in the manner provided in Subsection
7d,
hereof
of its or his intent not to renew the Term of this Agreement not less than
90
days prior to the end of the Initial Term or any then effective Renewal Term.
For purposes of this Agreement, “Term”
shall
mean and include the Initial Term and any Renewal Term and any portion thereof
through expiration or termination of this Agreement.
| 3. |
Compensation
and Bonuses.
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a.
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In
consideration of the services rendered by Executive to or as directed
by
Company, Company agrees to pay Executive during the Term a base salary
equal to $150,000.00 per year (the “Base
Salary”),
subject to increase from time to time by the action of the Board
of
Directors of Company. Said base salary shall be paid to Executive
in 26
equal bi-weekly installments or in accordance with any other reasonable
policy established from time to time by Company in respect to payment
of
salary to its executive employees generally, subject only to such
payroll
and withholding deductions as may be required by law and other deductions
applied generally to executives of Company for insurance and other
Executive benefit plans. The Base Salary payable pursuant to this
Subsection
3a
shall be exclusive of (i) any bonus payable to Executive pursuant
to
Section
3b
or
Section
3c
hereof; (ii) any discretionary bonus or other compensation approved
by the
Board of Directors of Company; and (iii) any benefits to which Executive
shall be entitled pursuant to Section
4
of
this Agreement.
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b.
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In
addition to the Base Salary, Executive is eligible for participation
in
those bonus programs available to executives of Company generally
upon
terms no less favorable than those made available to such other executive
officers of Company (each, a “Bonus
Program”).
If and as adopted by the Board of Directors of Company, such Bonus
Programs shall provide Executive with the opportunity to earn additional
compensation hereunder (each, a “Bonus
Payment”)
which may be earned and paid pursuant to the terms and conditions
of each
such Bonus Program.
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c.
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In
addition, Company acknowledges and recognizes that Executive has
provided
and will continue to provide value in respect to the business and
development of the assets of Company and its Subsidiaries, including
Trace. Company is pursuing certain transactions and is attempting
to
maximize the value of certain assets and certain rights in the Trace
Assets, as defined below. Consequently, Company agrees to pay Executive
a
special bonus pursuant to the terms of this Section
3c.
For purposes of such bonus, the following provisions and definitions
shall
apply:
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(i) “Trace
Assets”
consists of assets and intellectual property acquired from Locate Networks,
Inc.
and any improvements thereto and enhancements thereof.
(ii) “Trace
Asset Transaction”
means
any transaction whatsoever, whether occurring during the Term of this Agreement
or within 5 years after the date of termination or expiration of employment,
by
which all or a significant portion of the Trace Assets are, and/or ownership
of
Trace itself is, directly or indirectly, sold, transferred, assigned, licensed,
released or in any other way disposed of, including, without limitation, by
any
sale of assets, merger, sale of stock, transfer, change of control of Trace;
provided that if such a transaction is pending but not yet closed at the date
5
years after the date of termination or expiration of employment and is
thereafter closed according to its terms, such transaction will be a Trace
Asset
Transaction hereunder. A transaction involving the creation of a new entity
or
entities spun out to Company stockholders with a purpose to convey a significant
portion of the Trace Assets or control of a significant portion the Trace Assets
shall be deemed a Trace Asset Transaction.
(iii) “Transaction
Amount”
means
the total amount paid to or received by either Company or any affiliate or
assignee (including without limitation, the transferee or assignee of an
ownership interest in Trace) of Company, or any other related party or entity,
whether directly or indirectly, from a Trace Asset Transaction, net of any
related attorney’s fees and reasonable transaction expenses. In the event that
the Transaction Amount is not readily determinable or the proceeds of the Trace
Asset Transaction are not distributable in kind, the Board of Directors of
Company will, promptly after the Trace Asset Transaction occurs, make a
reasonable determination of the value of the Transaction Amount.
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(iv) If
at any
time a Trace Asset Transaction occurs, Company shall pay to Executive an amount
equal to 3.125% of the Transaction Amount (the “Trace
Bonus”).
If
the Transaction Amount is received in installments, then the portion of the
Trace Bonus payable to Executive shall be proportionate to the portion of the
Transaction Amount received. Further, Company agrees to cooperate with Executive
in an effort to obtain the most beneficial tax treatment of the transfer or
payment of the Trace Bonus, or any part thereof, to Executive. Such Trace Bonus
shall be paid within 10 days following receipt of the Transaction Amount or
the
installment thereof, as the case may be. In the event the Transaction Amount
is
paid, in any part, with consideration other than cash, payment of the portion
of
the Trace Bonus to Executive shall be made by the transfer of the same assets
or
things of value received by Company or its assignees, designees, successors,
agents, affiliates, or other similar persons or entities (collectively referred
to as “Assignees”)
and/or
cash in the same proportions as the cash or the same assets or things of value
received by Company or its Assignees, and Executive shall be entitled to his
proportion of all rights (including registration rights) received by Company
or
its Assignees with respect to such non-cash assets. In the event that the
proceeds can not be distributed in kind, Company will pay the cash equivalent
of
the Trace Bonus, determined by the Board of Directors as provided in Section
3c(iii) above. The Trace Bonus shall be payable even though such payments or
transfers of the Transaction Amount continue after this Agreement’s termination
or expiration, and payments thereof shall continue throughout the entire period
of such transfers or payments, should they be spread out or delayed in any
fashion. The Trace Bonus described above is in recognition of the unique
knowledge, experience and effort expended and to be expended by Executive with
respect to the development and realization of the values of the Trace Assets
to
the Company and shall continue and be paid notwithstanding the termination
of
Executive’s employment hereunder.
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d.
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Any
rights or options previously granted to Executive by Company or Trace
in
respect to the equity of, or bonuses in respect to, Trace, including
without limitation the option to acquire membership interests in
Trace,
are hereby acknowledged and agreed to be terminated without additional
compensation and are null and void; provided that nothing in this
subsection shall be taken to impact or diminish the Trace Bonus described
above, or any rights or options of any type granted to Executive
with
respect to Xxxxxxx.
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| 4. |
Benefits.
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a.
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Executive
shall be entitled to participate in such group life, disability and
medical insurance plans, qualified retirement plans and profit sharing,
stock purchase and stock option plans, as Xxxxxxx may establish from
time
to time for its executives generally. Company agrees to pay such
percentage of the costs or contributions, including, but not limited
to,
the health insurance cost for Executive and his eligible family members,
as defined by the health insurance plan, under a family policy, including
any optional or additional dental insurance coverage, as paid from
time to
time for its executive employees generally. Any such plans shall
be
revocable and subject to termination or amendment at any
time.
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b.
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Company
shall reimburse Executive for such travel, entertainment and other
business expenses reasonably incurred by him in connection with the
business of Company and its Subsidiaries in the performance of his
duties
hereunder upon presentation by Executive to Company of substantiating
evidence thereof in such form as Company may reasonably require from
time
to time.
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c.
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Executive
shall be entitled to four (4) weeks of paid vacation during each
year in
which this Agreement shall continue in full force and effect. Executive
shall be vested in such vacation on January 1 of each calendar year,
provided that, in the initial calendar year of this agreement, Executive
will be deemed to have qualified for three weeks vacation for use
in
calendar 2006. All unused vacation may be carried over from one calendar
year to the next, without limitation. Such vacation shall be taken
at
times consistent with the effective discharge of the Executive’s duties.
In addition, Executive shall be entitled to such paid holidays as
are made
available generally to executive employees of the Company.
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d.
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In
the event that Company and Executive shall agree that it is necessary
for
Executive to relocate, Executive shall be reimbursed for the reasonable
moving cost of relocating his personal and household effects and
establishing residence for Executive and his immediate family in
the
location to which he shall be relocated, in accordance with the relocation
policies of Company; provided that Executive may be required, as
a
condition to such relocation program, to execute a relocation agreement
which includes an obligation to repay such relocation expense
reimbursement should Executive voluntarily leave the employ of Company
within one year of the date of
relocation.
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| 5. |
Termination.
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a.
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This
Agreement shall terminate prior to the expiration date of the
Term:
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| (i) |
Immediately
upon death, in the event the Executive shall
die;
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(ii)
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If
Executive shall become permanently disabled, which for the purposes
hereof
and notwithstanding any contrary or conflicting definition in any
policy
of disability insurance, shall mean Executive’s inability to perform the
essential functions of his job as defined under this Agreement, with
or
without reasonable accommodation, due to physical or mental incapacity,
for a period of 6 months in a consecutive 12 month period. For the
purposes of this Agreement, the initial determination of whether
Executive
has been rendered permanently disabled shall be made by Executive’s
personal physician. In the event Company disagrees with the determination
of Executive’s personal physician, Company shall pay for and Executive
shall agree to an examination by a medical doctor disinterested in
Company
or any of Company’ affiliates or Subsidiaries, for an independent
determination of whether or not Executive is permanently disabled
under
this Agreement. If the Opinions of Executive’s personal physician and the
independent medical doctor selected by Company disagree, the two
doctors
shall mutually agree upon and appoint a third disinterested medical
doctor
to perform an independent examination of Executive for the final
determination of whether Executive has become permanently disabled;
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(iii)
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At
Executive’s election.
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(iv)
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Immediately
by the Company for cause. Termination of Executive for “cause” shall be
defined as:
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1.
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The
commission by Executive of an act of fraud on Company or any of its
Subsidiaries or affiliates;
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2.
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An
act or acts of dishonesty by Executive constituting a felony, or
intended
to result, directly or indirectly, in substantial gain or personal
enrichment to Executive at the expense of Company or any of its
Subsidiaries or affiliates; or
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3.
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Actions
or failures to act by Executive directly and proximately constituting
a
material violation of any Company and/or Subsidiary policy or procedure,
or any statute, regulation or other law to which Company, any Subsidiary
or Executive is subject, and which causes or is reasonably likely
to cause
a material adverse effect to Company and/or any of its Subsidiaries
or
affiliates; or
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4.
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Executive’s
willful and repeated failure (other than a failure resulting from
his
incapacity due to physical or mental illness) or refusal, without
proper
legal cause, to perform, in all material respects, his duties and
responsibilities as contemplated in this Agreement, including without
limitation the reasonable and lawful directives or assignments given
by
any superior executive officer or the Board of Directors of Company.
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(v)
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In
the event this Agreement is terminated due to the death of Executive
or
the permanent disability of Executive, as described in subsections
(i) and
(ii), the termination date of this Agreement shall be Executive’s date of
death or the date upon which Executive is finally determined to be
permanently disabled, subject to the continuing effect of the Trace
Bonus
as provided in Section
3c
above and without impact or impairment of any other bonus program
then in
effect under which Executive has earned a bonus, other than according
to
the terms thereof;. In the event this Agreement is terminated pursuant
to
Subsections
a(iii)
or
a(iv)
of
this Section
5,
the termination date of the Agreement shall be the date upon which
the
Executive gives notice of termination or the Company gives notice
to
Executive of the election to terminate the Agreement for “cause” as
defined herein. Any notice provided by either Party pursuant to this
Section
5
shall be in writing and delivered to the other Party as hereinafter
described in Section
7d
hereof.
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b.
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Upon
the expiration of this Agreement or if this Agreement is terminated
pursuant to Subsection
a(i),
a(ii),
a(iii)
or
a(iv)
of
this Section
5,
Company shall pay, or shall cause its Subsidiary to pay, to Executive,
or
to his estate, that portion of Executive’s Base Salary through the date of
expiration or termination of this Agreement, together with any bonus
or
other compensation theretofore approved by the Board of Directors
of the
Company as of such date, and vested accrued and unused vacation and
for
which Executive has not previously been compensated. Payments of
any bonus
will be paid according to its terms. Any salary and other accrued
but
unpaid compensation shall be paid to Executive or Executive’s estate on
the next payday after of the date of termination, or as otherwise
required
under applicable state law.
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c.
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If
this Agreement is terminated by Company other than under circumstances
permitted by Subsection
5a
hereof, in addition to the obligation of Company to make the payments
contemplated by Subsection
5b
hereof, Company shall pay to Executive, in lieu of any damages related
to
unearned salary for the remainder of the Term, a severance amount
equal to
12 months compensation at the salary level then in effect for Executive
as
of the date of such termination, payable in 26 equal bi-weekly
installments commencing upon the first regular Company payday after
the
date of such termination. In such circumstance, Company shall also
pay any
earned bonus (other than any Trace Bonus, which shall be payable
according
to the provisions of Section
3c
regardless of termination) or other accrued but unpaid compensation
theretofore approved by the Board of Directors of Company as of such
date,
and any vested, accrued and unused vacation for which Executive has
not
previously been compensated. Such vacation amount shall be paid to
Executive on the next payday after of the date of expiration or
termination, or as otherwise required under applicable state law.
Payments
of any bonus will be made according to its terms. All post-termination
payments to Executive will be subject to withholding as
appropriate.
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| 6. |
Restrictive
Covenants and Proprietary
Rights.
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a.
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Executive
acknowledges and agrees that all confidential matters relating to
Company,
its Subsidiaries and their affiliates, including, without limitation,
(i)
trade secrets, customer lists, detailed contracts, pricing policies,
operational methods, marketing plans or strategies, product development
techniques or plans, business acquisition plans, new personnel acquisition
plans, methods of manufacture and service, technical processes, design
and
design projects, inventions and research projects information, which
is
used in the business of Company or one of its Subsidiaries or their
affiliates, and (ii) information that gives Company or one of its
Subsidiaries, or their affiliates some competitive business advantage
or
the opportunity of obtaining such advantage or the disclosure of
which
could be detrimental to the commercial or marketing interests of
Company,
or one of its Subsidiaries or their affiliates or their respective
customers, (iii) is designated as Proprietary Information by Company
or
one of its Subsidiaries, or is known by Executive to be considered
confidential by Company, one of its Subsidiaries or their affiliates,
or
from all the relevant circumstances should reasonably be assumed
by
Executive to be confidential and proprietary to Company, one of its
Subsidiaries or their affiliates, or (iv) is not generally known
by
persons other than Company personnel or personnel of one of its
Subsidiaries or affiliates (collectively, “Proprietary
Information”),
are the property of Company, its Subsidiaries and their affiliates.
Accordingly, Executive agrees that, except as provided herein, Executive
will not disclose such confidential matters to any third party or
use any
Proprietary Information outside of the scope of his duties under
this
Agreement or to the detriment of Company and/or any of its Subsidiaries
or
their affiliates. Executive shall not be bound by this requirement
in
respect to: (i) Proprietary Information that is generally available
in the
industry or has become a matter of public record or public knowledge
other
than as a result of unauthorized disclosure by Executive; or (ii)
Proprietary Information that Executive is required to disclose by
legal
process or an order of a court of competent jurisdiction, but only
to the
extent and in the circumstances required; provided, however, that
Executive, upon being subpoenaed to testify gives immediate notice
to
Company so that it may take reasonable action to prevent or limit
the
disclosure of said material.
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b.
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Executive
hereby assigns to Company and/or its designee any right, title and
interest he may have or acquire in the Proprietary Information and
Inventions, as defined herein, and in any Moral Right, as defined
herein,
he may have in the same. Executive agrees to assist Company in every
reasonable and proper way, but at the expense of Company, to obtain
and
enforce patents, copyrights and other rights and protections relating
to
such Proprietary Information and Inventions in any and all countries
and
to further carry out the terms of this Agreement, as Company may
request
from time to time, whether before or after the termination or expiration
hereof. Executive hereby waives and agrees not to assert against
Company
or its Subsidiaries, or their respective successors or licensees,
any and
all rights that Executive may have or acquire in any Invention or
Proprietary Information. For purposes of this Agreement “Inventions”
means any discovery, development, design, improvement, invention,
formula,
algorithm, process, technique, method, software, program, know-how
and
data, whether or not patentable or registrable under copyright or
similar
statutes, made or conceived or reduced to practice or learned by
Executive, either alone or jointly with others, that (i) was developed
using any trade secret, technologies or Proprietary Information of
the
Company and/or any of its Subsidiaries, (ii) results from any work
performed by Executive for Company and/or any of its Subsidiaries
or any
of their affiliates, and (iii) was developed during the period of
employment or for 6 months after termination thereof and is useful
to the
Company or one of its Subsidiaries and relates at the time of conception
or reduction to practice to the business of the Company or any of
its
Subsidiaries or any of their actual or demonstrably anticipated research
or development, and “Moral
Right”
means any right to claim authorship of a work, any right to object
to any
distortion or other modification of a work, and any similar right,
existing under the law of any country in the world or under any
treaty..
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c.
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Executive
hereby acknowledges and agrees that all original works of authorship
which
are made by Executive, whether solely or jointly with others, within
the
scope of Executive’s employment with Company, any of its Subsidiaries
and/or any of their affiliates and which are protectable by copyright,
are
“works made for hire,” as that term is defined in the United States
Copyright Act (17 U.S.C., Section 101), for the benefit of Company,
such
Subsidiary and/or such affiliates, as the case may
be.
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d.
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Executive
covenants and agrees that he will assist Company, its Subsidiaries
and/or
any of their affiliates in every reasonable and proper way to obtain
and
from time to time to enforce United States and foreign proprietary
rights
relating to Inventions in any and all countries and to execute, verify
and
deliver such documents and perform such other acts (including appearance
as a witness) as Company may reasonably request for use in applying
for,
obtaining, perfecting, evidencing, sustaining and enforcing Company’s,
such Subsidiaries’ and/or their affiliates’ rights to the Proprietary
Information and Inventions provided that if such assistance is requested
or required, Executive will be compensated for the reasonable value
of his
time spent in such provided that if such assistance is requested
or
required, Executive will be compensated for the reasonable value
of his
time and services spent in such
activities.
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e.
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The
provisions of this Section
6
shall be in effect for the Term of this Agreement and shall survive
for
such period after the termination or expiration of this Agreement
for as
long as permitted by law. The obligations of this Agreement shall
not
supersede any obligations of loyalty or confidentiality of Executive
to
Company, its Subsidiaries and/or their affiliates, whether imposed
by
contract or by law, but shall be deemed to be complementary and
supplemental thereto.
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| 7. |
Miscellaneous.
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a.
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Notwithstanding
any other provision of this Agreement, upon the death of Executive,
Xxxxxxx shall make any payments at the times and in the amount specified
in Section
5
to
or for the benefit of the person or persons designated in writing
by
Executive to Company or, if Executive fails to so designate any person
or
shall have revoked all of such designations or if Company or its
Subsidiary is prohibited from honoring such directive by law, to
the
executors or administrators of Executive’s estate or as otherwise required
by applicable state law. Company and its Subsidiaries shall be fully
protected in making any payment due hereunder in accordance with
what it
reasonably believes to be the last written instrument received by
it
pursuant to this Subsection
7a.
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b.
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This
Agreement shall inure to the benefit of and be binding upon each
of the
Parties hereto and their respective heirs, personal representatives,
successors and assigns, except that Executive’s rights and interests under
this Agreement may not be assigned, pledged or encumbered by him
without
Company’s prior written consent, and all of Executive’s rights and
interest hereunder shall terminate on his death, except for any payment
expressly provided for in Subsection
5
hereof; provided, however, that this Subsection
7b
will not be deemed to preclude the executors or administrators of
Executive’s estate from assigning rights to payment hereunder to
Executive’s heirs or devisees in connection with probate, administration
or settlement of Executive’s estate. This Agreement and the rights of
Company, its Subsidiaries and/or any affiliates hereunder may be
assigned
by Company, such Subsidiaries and such affiliates without any requirement
of consent by Executive, provided, however, that the performance
of the
obligations and covenants of Company hereunder shall be binding upon
such
assignee or successor of Company.
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c.
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Except
as otherwise expressly set forth herein, including without limitation
as
stated in Subsection 6e hereof, this Agreement constitutes the entire
Agreement between the Parties with respect to the subject matter
hereof
and supersedes any prior agreement, understanding, warranty or
representation, express or implied, and no modification, amendment
or
waiver of any provision of this Agreement shall be effective unless
approved in writing by the Parties hereto.
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d.
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When
a notice is required by the terms of this Agreement, notice shall
mean the
following: notice in writing and delivered either personally or by
certified mail, return receipt requested, or recognized overnight
courier,
to the Parties as follows:
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(i)
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Notice
to Company shall be directed to the address for Company set forth
in the
preamble to this Agreement, or such other address as Company shall
provide
to Executive in the manner provided in this Subsection
7d.
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(ii)
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Notice
to Executive shall be addressed to Executive at his address set forth
in
the preamble to this Agreement or such other address as he may provide
to
Company in the manner provided in this Subsection
7d.
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e.
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If
any provision of this Agreement shall be held to be unenforceable,
such
provision shall be ineffective only to the extent of such prohibition
or
invalidity without invalidating the remainder of such provision or
the
remaining provisions of this
Agreement.
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f.
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This
Agreement shall be governed by and construed in accordance with the
substantive and not the conflict of law provisions of the State of
Nebraska.
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IN
WITNESS WHEREOF, this Agreement has been duly executed by or on behalf of the
Parties hereto by their representatives duly authorized as of the day and year
first above written.
XXXXXXX
TECHNOLOGIES CORPORATION
By:
/s/
Xxxxx X. Xxxxxxxxx
Its
CEO
EXECUTIVE
/s/
Xxxxx X.
Xxxxx 11/29/06
Xxxxx
X.
Xxxxx
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