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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Agreement is made effective as of February 14, 2000, by and between Xxxxx
X. Xxxxx ("Employee") and FOCUS AFFILIATES, INC., a Delaware corporation
("Employer" or the "Company")
RECITALS
A. Employer desires to employ Employee as its Chief Financial Officer (CFO) and
to be assured of his services as such on the terms and conditions hereinafter
set forth.
B. Employee is willing to accept employment in the above-described capacity on
such terms and conditions.
C. For all the reasons set forth above, and in consideration of the mutual
covenants and promises of the parties, and intending to be legally bound hereby,
Employer and Employee agree as follows:
Section I
Employment
Employee shall perform the duties and responsibilities of CFO,
reporting directly to the Chief Executive Officer and its Board of Directors
("Board"). Employee shall be entitled to report to, and confer with, members of
the Board of Directors at any time, in the Employee's sole discretion. Such
duties and responsibilities shall be reasonably related to Employee's position.
(See attached initial Job Description). Employee shall not have the
responsibility of Chief Accounting Officer as that position pertains to the
regulatory filings for fiscal periods, or portions thereof, ended on or prior to
December 31, 1999. Employee shall devote all of his business time, attention,
knowledge and skills faithfully, diligently and to the best of his ability, in
furtherance of the business and activities of the Company and may not, directly
or indirectly, in any capacity, do any work for or on behalf of himself
exclusively, or any other company, person or entity, irrespective of whether or
not same is in a competing business. Employee is under Texas law considered
employed at will. The principal place of performance by Employee of his duties
hereunder shall be the Company's principal executive offices or such other
place, as the Board shall determine, although Employee may be required to travel
outside of the area where the Company's principal executive offices are located
in connection with the business of the Company.
Section II
Term of Employment
The term of employment shall be one (1) year commencing as of the date
hereof (the "Effective Date") (such period being referred to as the "Initial
Term" and any year commencing on the Effective Date or any anniversary of the
Effective Date being hereinafter referred to as an "Employment Year"). After the
Initial Term, this Agreement shall be renewable automatically
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for successive one year periods (each such period being referred to as a
"Renewal Term"), unless, at least sixty (60) days prior to the expiration of the
Initial Term or any Renewal Term, either the Employee or the Company give
written notice that the employment will not be renewed. Notwithstanding the
foregoing, the term of this Agreement shall automatically expire (a) upon the
Employer's termination of Employee under Section VI, (b) upon the death or
resignation of Employee, in which event Employee shall not be entitled to any
compensation other than that earned through his date of death or his
resignation, or (c) as provided in Section VI(d).
Section III
Compensation
Employer shall pay employee an annual salary ("Salary") of $150,000,
payable every other week (pro-rated, as applicable), or at such other times as
may mutually be agreed upon between Employer and Employee. In addition, Employee
shall be entitled to the following:
(a) Employer shall grant Non-Qualified Stock Options to purchase
110,000 shares of common stock of the Company. The five-year options shall be
granted with an exercise price of $3.00. Of these options, 10,000 will vest on
the 91st day of employment. One-third of the remaining 100,000 options will vest
on each of December 31, 2000, December 31, 2001 and December 31, 2002. Except as
specifically provided in this agreement, all of the options will be subject to
the same terms and conditions as Non-Qualified Stock Options under the Company's
1998 Stock Option Plan.
(b) Subject to formal Board approval and at the sole discretion of the
Board, Employee may, from time to time receive bonuses based on performance of
the Employee and the earnings of the Employer. Said bonuses will be paid in
either cash or stock options, at the Board's sole discretion.
(c) It is the intention of the Board to institute an annual Bonus Plan
for the benefit of Executive Management and other employees. This Plan is in the
design and drafting stage at the date of this Agreement. Employee would be
included under the Plan when implemented.
Section IV
Benefits
(a) During the term of this Agreement, Employee shall have the right to
receive or participate in all benefits and plans, which the Company may from
time to time, institute during such period for its employees and for which
Employee is eligible. In addition, Employee shall be afforded such other general
benefits as are made available from time to time to the CEO or other senior
members of management. Nothing paid to Employee under any plan or arrangement
presently in effect or made available in the future shall be deemed to be in
lieu of salary or any other obligation payable to Employee pursuant to this
Agreement.
(b) During the term of this Agreement Employee shall be entitled to the
number of paid holidays, personal days off and sick leave days in each calendar
year as are determined by the Company from time to time. Employee shall be
entitled to two (2) weeks of vacation per year. Such vacation shall be taken in
Employee's discretion with the prior approval of Employer, and at such times as
are not inconsistent with the reasonable business needs of the Company.
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(c) Employee will be entitled to reasonable reimbursement for cost of
maintaining his CPA status (including costs of licenses, membership in
professional organizations, tuition and travel expenses related to continuing
education and professional education programs). In addition, Employee is
entitled to reimbursement of monthly membership dues in the Dallas Crescent Club
(approx. $160/mo.) and the Columbian C.C. (approx. $425/mo.).
Section V
Travel and Other Expenses
Employer shall pay all travel and other expenses incident to the
rendering of services reasonably incurred on behalf of the Company by Employee
during the term of this Agreement. If Employee pays any such expenses in the
first instance, Employer shall reimburse him therefor within a reasonable time
of presentation of appropriate receipts for such expenses.
Section VI
Termination
(a) Notwithstanding anything in this Agreement to the contrary,
Employer shall have the right to discharge Employee for "cause," which is
defined to include any of the following circumstances: (i) Employee shall be
unable to perform his full duties pursuant to this Agreement to the satisfaction
of Employer as a result of illness, disability, or other incapacity for an
aggregate period of 90 days or more during any 12-month period during the term
hereof; or (ii) Employer notifies Employee that he has failed to competently
perform his reasonable duties assigned to him by Employer and Employee has not
cured such violation within 15 days of such notice; or (iii) Employee shall
commit a willful or intentional breach of his duties and obligations to Employer
or engage in any materially dishonest conduct in connection with the performance
of his duties under this Agreement; or (iv) Employee shall otherwise violate any
material provision of this Agreement, and after notification by Employer, in
writing, Employee has not cured such violation within 15 days of such notice; or
(v) Employee shall be adjudicated an incompetent; or (vi) Employee shall engage
in criminal misconduct (including, without limitation, embezzlement and criminal
fraud); or (vii) Employee shall be convicted of any felony; or (viii) Employee
shall have breached any material warranty given under this Agreement and
Employer shall have been materially damaged as a result of such breach. Upon
discharge pursuant to this Section, Employer shall have no further obligation or
duties to Employee other than payment of salary and reimbursement of expenses
through the effective date of termination of Employee. Notwithstanding the
foregoing, Employer shall have no right to terminate Employee for any reason
relating to events occurring, or actions taken, by any employee of Employer for
periods ending on or before December 31, 1999 or any actions taken after such
date in respect to periods ending before such date.
(b) In the event that Employee's employment is terminated with cause,
then Employer shall have no further obligation or duties to Employee, other than
for payment of amounts as provided under Section V and VI and shall be entitled
to recover from Employee any costs or damages resulting from Employee's breach
of this Agreement. In the event of termination without cause, after six months
from the Effective Date, Employer shall continue to pay Employee, at the current
Salary rate, and provide benefits, for a further period of twelve months
following termination. In the event of such termination without cause, within
six months from the Effective Date, Employer shall continue to pay Employee, at
the current Salary rate, and
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provide benefits, for a further period of six months following termination. For
purposes of this Section VI(b), Employee shall be deemed to have been terminated
without cause if the Company relocates its Executive Headquarters to a county
outside of Dallas county, Texas or its contiguous counties unless this provision
is waived in writing by Employee.
(c) Notwithstanding the discharge of Employee pursuant to Sections 6(a)
and 6(b) above, Employee shall continue to be bound by the provisions of
Sections VII and VIII of this Agreement.
(d) In the event that there is a Change in Control (as hereinafter
defined), (i) the Company shall notify Employee in writing of such event, (ii)
all options granted to Employee shall become fully vested and exercisable, but
any unexercised options shall automatically expire on the eleventh calendar day
following such notice, and (iii) upon such notice, this Agreement will be
terminated and the Employer and Employee shall have no further obligation or
duties to each other, except as provided in Sections VII and VIII. In addition,
should a Change of Control occur after six months from the Effective Date,
Employer shall continue to pay Employee for a period of one (1) year after the
Change of Control. Should a Change of Control occur within six months from the
Effective Date, Employer shall continue to pay Employee for a period of six
months after the Change of Control.
(e) For purposes of this Agreement a "Change in Control" shall mean and
be determined to have occurred if (A) any person ("Person") (as such term is
used in Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934, as
amended) (the "Exchange Act") is or becomes the beneficial owner ("Beneficial
Owner") (as defined in Rule 13d-3 promulgated under the Exchange Act), directly
or indirectly, of securities of the Company representing thirty five percent (35
%) or more of the combined voting power of the then outstanding securities of
the Company; (B) during any period of two (2) years, a majority of the members
of the Board is replaced by directors who were not nominated and approved by the
Board; or (C) the Company is combined with or acquired by another company and
the Board shall have determined, either before such event or thereafter, by
resolution, that a Change in Control will occur or has occurred.
Section VII
Non-Disclosure and Non-Competition
(a) Employer and Employee acknowledge that the services to be performed
by Employee under this Agreement are unique and extraordinary and, as a result
of such employment, Employee will come unto possession of confidential
information relating to the business and practices of the Company. The term
"Confidential Information" shall mean any and all information (verbal and
written) relating to the Company or any of its affiliates, or any of their
respective activities, other than such information which can be shown by
Employee to be in the public domain (such information not being deemed to be in
the public domain merely because it is embraced by more general information
which is in the public domain) other than as a result of a breach of the
provisions of this Section, including, but limited to: trade secrets, research
projects, personnel lists, financial information, services used, pricing,
customers, customer lists and prospects, product sourcing, marketing and selling
and servicing. Employee will not at any time, either during or after the term of
this Agreement, divulge any Confidential Information to any other person, firm,
or entity, nor use or permit the use of any said Confidential Information, other
than pursuant to Employment on behalf of Employer hereunder. Without limiting
the generality of the foregoing, upon the termination of Employment hereunder,
for any reason, Employee shall forthwith deliver to Employer all documents and
other material in his possession or under his control containing any
Confidential Information and/or relating to the business of Employer.
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(b) It is understood and agreed by Employee that all business
relationships and goodwill now existing with respect to customers and suppliers
of Employer, whether or not created or served by Employee hereunder, and all
such relationships and goodwill which may hereafter become known to or be
created or enhanced by Employee in the course of Employment hereunder,
constitute valuable proprietary rights and interests of Employer, and are, and
shall at all times remain, the sole property of, and shall inure to the sole
benefit of Employer. Accordingly, Employee agrees that during the term of
Employment and for a further period (i) corresponding to the period during which
the Employee is paid pursuant to Section VI(b), up to a period of one (1) year
from the date of termination of Employment, or (ii) of one (1) year following
the termination of Employee for cause, Employee will not, as proprietor,
partner, joint venturer, stockholder, director, officer, trustee, principal,
agent, servant, employee consultant or in any other capacity whatever, directly
or indirectly, solicit orders from, sell, or render services to any customer
within the United States, its territories and possessions, with respect to any
product or service competitive with any product or service sold or developed by
Employer or any subsidiary or affiliated corporation at any time during
Employment, nor shall Employee directly or indirectly aid or assist any other
person, firm, or corporation to do any of the aforesaid acts.
(c) During Employment and for a further period (x) corresponding to the
period during which the Employee is paid pursuant to Section VI(b), up to a
period of one (1) year from the date of termination of Employment, or (y) of one
(1) year following the termination of Employee for cause, Employee shall not, as
a proprietor, partner, joint venturer, stockholder, director, officer, trustee,
principal, agent, servant, employee, consultant or any other capacity whatever,
directly or indirectly, (i) engage in, or be financially interested in any
business operating within the United States, and any other country in which
Employer conducts substantial business, which is competitive with any business
which is conducted, or contemplated to be conducted (as evidenced in writing),
by Employer as of the date of Employee's termination from employment, or (ii)
solicit or induce any officer, salesman, or other employee of Employer or any
subsidiary or affiliated corporation, for any employment in a line of business
which is competitive with any business which is conducted, or contemplated to be
conducted (as evidenced in writing), by Employer as of the date of Employee's
termination from employment, nor shall Employee directly or indirectly aid or
assist any other person, firm, or corporation to do any of the aforesaid acts.
(d) The provisions of Section VII(b) and Section VII(c) above will be
limited to a period of six months if the Employee's employment with Employer is
less than one year.
(e) Employee acknowledges that, as an executive of Employee, he will
become familiar with the affairs, customers and other Confidential Information
of Employer. Employee acknowledges that his compliance with the provisions of
this Agreement and, in particular, this Section is necessary to protect the
goodwill and other proprietary interests of Employer, that their enforcement
will not significantly impair the ability of Employee to earn a livelihood and
that, but for the covenants entered into hereunder, Employer would not enter
into this Agreement with Employee. Employee acknowledges that his breach of any
of the provisions of this Section will result in irreparable and continuing
damage to the business of Employer for which there will be no adequate remedy at
law and agrees that in the event of any such breach, Employer and its successors
and assigns shall be entitled to injunctive relief and to such other and further
relief as may be proper.
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(f) The parties hereto hereby acknowledge that, in addition to any
other remedies the Company may have under paragraph (e) of this Section, the
Company shall have the right and remedy to require Employee to account for, and
pay over to the Company, all compensation, profits, monies, accruals, increments
or other benefits (collectively, "Benefits") derived or received by Employee as
the result of any transactions constituting a breach of this Section VII or
Section VIII below, and Employee hereby agrees to account for and pay over such
Benefits to the Company.
(g) Each of the rights and remedies enumerated above shall be
independent of the other and shall be severally enforceable. All 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 in equity.
(h) If any provision contained in this agreement is construed to be
invalid or unenforceable, the same shall not affect the remainder of the
covenants, which shall be given full effect, without regard to the invalid
portions. If any provision contained in this Section VII, or Section VIII below,
is found to be unenforceable by reason of the extent, duration or scope thereof,
or otherwise, then the court making such determination shall have the right to
reduce the extent, duration, scope, or other provision, and in its reduced form
any such restriction shall thereafter be enforceable as contemplated hereby.
Section VIII
Discoveries and Inventions
(a) Any discovery, invention, formula, process, improvement or idea
("Discovery" or "Discoveries"), whether or not patentable, relating to or useful
in the business of Employer and wholly or partially conceived, made or learned
by Employee during the period of Employment shall be the sole and exclusive
property of Employer. Employee shall disclose any Discovery to Employer promptly
and shall upon request, assist Employer in obtaining and assigning to it all
rights, title and interest in any United States or foreign patent on any
Discovery.
(b) If any Discovery is described in a patent application or is
disclosed to third parties, directly or indirectly, by Employee within one (1)
year following termination of his employment with the Company, it is to be
presumed that the Discovery was conceived or made during the period of
Employee's employment by the Company.
(c) Employee will not assert rights to any Discovery as having been
made or acquired by him prior to the date of this Agreement, except for
Discoveries, if any, disclosed to the Company in writing prior to the date
hereof.
Section IX
Indemnification
Employee agrees to indemnify and hold harmless Employer and its
successors and assigns against any loss, cost, liability or expense incurred by
any of them (including, without limitation, attorney's fees and costs of suit)
by reason of breach or nonfulfillment by Employee of any provision of this
Agreement
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Section X
Arbitration
Any differences, claims, or matters in dispute arising between the
parties out of this agreement or connected with this agreement shall be
submitted by them to arbitration by the American Arbitration Association or its
successor, and the determination of the American Arbitration Association or its
successor shall be final and absolute. The arbitrator shall be governed by the
rules and regulations of the American Arbitration Association or its successor,
and the pertinent provisions of the laws of the State of Texas relating to
arbitration. The decision of the arbitrator may be entered as a judgement in any
court of the State of Texas or elsewhere.
Section XI
Provisions of General Application
(a) Employee warrants and represents that (i) he is in good health and
not suffering from any impairment to his general well being, (ii) the execution
of this Agreement and discharge of Employee's obligations hereunder does not and
will not constitute a breach of or default under (A) any employment agreement or
non-competition agreement to which Employee is a party, or (B) any other
contract, agreement, or understanding between Employee and any other party or
parties, and (iii) Employee has ideas, information and know-how relating to the
type of business conducted by Employer, and Employee's disclosure of such ideas,
information and know-how to Employer will not conflict with or violate the
rights of any third party or parties.
(b) This Agreement contains the entire agreement of the parties
relating to the subject matter hereof. This Agreement supersedes and is in lieu
of any and all other employment arrangements between Employee and Employer.
(c) Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been effectively given for all
purposes (i) if delivered personally, upon delivery, or (ii) if mailed, upon
deposit in the United States mail, registered or certified mail, postage
prepaid, addressed to Employee's residence (as last known to Employer), in the
case of Employee, or to the principal office of Employer, in the case of
Employer. Either party may change the address at which such party is to receive
notice by notice to the other party.
(d) Any waiver, change, modification, extension or discharge in
connection with this Agreement must be in writing and signed by the party to be
bound thereby. The waiver by Employer of a breach by Employee of, or failure of
Employee to comply with, any provision of this Agreement shall not be construed
as, or constitute, a continuing waiver of, or a waiver of any breach of, or
failure to comply with any provision of this Agreement.
(e) Employer may sell, assign and transfer all or part of its rights
under this Agreement to any affiliates of Employer or any purchaser of Employer
or successor to the business or assets of Employer, provided, however, that such
purchaser or successor assumes the obligations of Employer hereunder. This
Agreement is personal to Employee, and Employee may not sell, assign, pledge or
otherwise transfer any of these rights under this Agreement.
(f) All provisions of this Agreement are intended to be interpreted and
construed in a manner making such provisions valid, legal and enforceable. In
the event any provision of this Agreement or portion thereof is found to be
wholly or partially invalid, illegal or unenforceable in
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any judicial proceeding, such provision shall be deemed to be modified or
restricted to the extent necessary to make such provision valid, legal and
enforceable. In the event such provision or portion thereof cannot be so
modified or restricted, such provision or portion thereof shall be deemed to be
excised from this Agreement, and the validity, legality and enforceability of
the remainder of this Agreement shall not be affected or impaired in any manner.
(g) Confidential Information shall constitute a "Trade Secret" as
defined and subject to protection by Employer, under the Uniform Trade Secrets
Act. This Agreement is entered into in the State of Texas and shall not be
governed by and construed in accordance with the internal laws and decisions of
the State of Texas.
IN WITNESS WHEREOF, Employer and Employee have executed this Agreement
as of the date first above written.
FOCUS AFFILIATES, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
--------------------------- -------------------------------------
Xxxxxxx Xxxxx, CEO Xxxxx X. Xxxxx
"Employer" "Employee"
