Exhibit 10.1
EMPLOYMENT AGREEMENT
DATE: November 18, 1999, to be effective as of October 7, 1999
PARTIES: Advantage Technologies, Inc., a Nevada corporation
0000 X. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000 ( "Company")
Xxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxx
Xxxxx, XX 00000-0000 ("Employee")
RECITAL
The Company desires to employ and retain the unique experience,
abilities, and services of Employee to perform certain duties pursuant to the
terms and conditions described herein.
AGREEMENT
The parties agree as follows:
1. EMPLOYMENT
1.1 Term. The Company agrees to employ Employee as President
and Chief Executive Officer for a term commencing on October 7, 1999 and
continuing for a period of twenty-four (24) months thereafter or until
terminated in accordance with Section 6 herein.
1.2 Duties. Employee accepts employment with the Company on
the terms and conditions set forth in this Agreement. Employee shall perform his
duties and shall exercise such specific authority as may be assigned to Employee
from time to time. In performing such duties, Employee shall be subject to the
direction and control of the Board of Directors of the Company. Employee further
agrees that in all aspects of such employment, Employee shall comply with the
policies, standards, and regulations of the Company established from time to
time, and shall perform his duties faithfully, intelligently, to the best of his
ability, and in the best interest of the Company. The devotion of reasonable
periods of time by Employee for personal purposes, outside business activities,
or charitable activities shall not be deemed a breach of this Agreement,
provided that such purposes or activities do not materially interfere with the
services required to be rendered to or on behalf of the Company. All management
decisions involving the business of the Company, including but no limited to
mergers and acquisitions and the hiring and termination of management personnel
shall require the prior approval of Employee.
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2. COMPENSATION
2.1 Base Compensation. The base compensation ("Base
Compensation")to be paid Employee for services rendered under this Agreement
shall be $100,000.00 per annum, payable monthly.
2.2 Annual Bonus. In addition to the Base Compensation, the
Company may pay Employee an annual bonus ("Annual Bonus") in the sole discretion
of the Board of Directors.
2.3 Benefits. The Company shall provide to Employee the same
health insurance benefits that the Company may provide to other similarly
employed personnel, subject to Employee's satisfaction of the respective
eligibility conditions for such benefits.
2.4 Reimbursement. Employee shall be entitled to reimbursement
from the Company for reasonable expenses necessarily incurred by Employee in the
performance of Employee's duties under this Agreement, upon presentation of
vouchers indicating in detail the amount and business purpose of each such
expense and upon compliance with the Company's reimbursement policies
established from time to time.
3. CONFIDENTIALITY
3.1 Confidentiality. Employee acknowledges and agrees that all
software and proprietary information regarding software, including any
refinements, modifications and changes to such software, planning information,
lists of the Company's clients, financial information, and other Company data
related to its business ("Confidential Information") are valuable assets of the
Company. Except for information that is a matter of public record, Employee
shall not, during the term of this Agreement or after the termination of
employment with the Company, disclose any Confidential Information to any person
or use any Confidential Information for the benefit of Employee or any other
person, except with the prior written consent of the Company.
3.2 Return of Documents. Employee acknowledges and agrees that
all originals and copies of records, software, computer programs, reports,
documents, lists, plans, drawings, memoranda, notes, and other documentation
related to the business of the Company or containing any Confidential
Information shall be the sole and exclusive property of the Company, and shall
be returned to the Company upon the termination of employment with the Company
or upon the written request of the Company. This provision shall not apply to
any personal property of Employee which has been used by Employee during the
course of, and in connection with, his employment hereunder.
3.3 Injunction. Employee agrees that it would be difficult to
measure damage to the Company from any breach by Employee of Section 3.1 or 3.2
and that monetary damages would be an inadequate remedy for any such breach.
Accordingly, Employee agrees that if Employee shall breach or take steps
preliminary to breaching Section 3.1 or 3.2, the Company shall be entitled, in
addition to all other remedies it may have at law or in equity, to an injunction
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or other appropriate orders to restrain any such breach, without showing or
proving any actual damage sustained by the Company.
3.4 No Release. Employee agrees that the termination of
employment with the Company shall not release Employee from any obligations
under Section 3.1, 3.2 or 3.3.
4. ILLNESS OR DISABILITY
In the event Employee is unable to perform his duties under this
Agreement due to illness or disability for a continuous period of two (2) weeks,
the Base Compensation which shall be otherwise payable during said illness or
disability shall be reduced by fifty percent (50%) percent. The Base
Compensation shall be reinstated upon Employee's resumption of his duties
hereunder. In the event, however, that Employee is unable to perform his duties
under this Agreement, for any reason, for a continuous period of 90 days, the
Company shall have the option to terminate this Agreement immediately pursuant
to Section 6.2.5 of this Agreement.
5. DEATH BENEFIT
In the event of Employee's death during his employment under this
Agreement, the Company shall pay to the Employee's estate the Base Compensation
and the Annual Bonus, if any, due and owing through the end of the month in
which death occurred.
6. TERMINATION
6.1 Termination by Prior Notice.
6.1.1 The employment of Employee by the Company may be
terminated by the Company upon the giving of fourteen (14) days' prior written
notice to Employee, which termination shall be effective on the 14th day
following such notice.
6.1.2 Employee may terminate his employment hereunder
only upon the giving of six (6) months' prior written notice to the Company,
which termination shall be effective on the last day of such six (6) month
period. During said six (6) month notice period, Employee shall cooperate with
the Company in training Employee's replacement.
6.1.3 Employee's employment hereunder may be terminated
at any time by mutual agreement of the parties.
6.2 Immediate Termination. The employment of Employee by the
Company may be terminated immediately in the sole discretion of the Company upon
the occurrence of any one of the following events:
6.2.1 Employee willfully and continuously fails or
refuses to comply with the policies, standards, and regulations of the Company
established from time to time;
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6.2.2 Employee engages in fraud, dishonesty, or any other
act of misconduct in the performance of Employee's duties on behalf of the
Company;
6.2.3 Employee fails to perform any provision of this
Agreement to be performed by Employee;
6.2.4 All or substantially all the assets of the Company
are sold, transferred, or otherwise disposed of, the Company's assets are
distributed to its shareholders in liquidation, or the Company's business is
discontinued; or
6.2.5 Employee suffers a permanent disability. For
purposes of this Agreement, "permanent disability" shall be defined as
Employee's inability, due to illness, accident, or other cause, to perform
substantially all of his duties hereunder for a period of ninety (90) days or
more despite reasonable accommodation by the Company, upon certification of such
disability by, in the discretion of the Company, Employee's regularly attending
physician or a physician selected by the Company. Employee shall be deemed to
have become subject to a "permanent disability" on the date the Company has
determined that Employee is permanently disabled and so notifies Employee.
6.3 Payment of Compensation Upon Termination. Upon the
termination of employment of Employee hereunder, the Company shall be obligated
to pay to Employee the Base Compensation for the remaining term of this
Agreement, plus any earned but unpaid Annual Bonus to the date of termination.
7. COVENANT NOT TO COMPETE
During the term of his employment under this Agreement, and for a
period of one(1) year thereafter, Employee shall not, directly or indirectly, as
proprietor, partner, limited partner, member of a limited liability company,
shareholder, officer, director, employee, agent or representative, engage in a
Competitive Business Activity within the United States. "Competitive Business
Activity" shall mean the usual and customary products and services provided by
the Company. In addition, during the term of his employment under this
Agreement, and for a period of one (1) year thereafter, Employee shall not,
directly or indirectly, hire the employees of the Company to engage in a
Competitive Business Activity within the United States nor shall Employee
solicit any employees or customers to leave the Company.
8. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
Employee represents and warrants to the Company that there is no
employment contract or any other contractual obligation to which Employee is
subject which prevents Employee from entering into this Agreement or from
performing fully Employee's duties under this Agreement.
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9. LEGAL COUNSEL
This Agreement was prepared for the Company by the Law Office of Xxxxxx
X. Xxxxxxxxx. Employee has been advised to obtain his own legal counsel in
connection with this Agreement and Employee has elected not to do so.
10. MISCELLANEOUS PROVISIONS
10.1 The wavier by either the Company or Employee of a breach
of any provision of this Agreement will not operate by either the Company as a
waiver of any subsequent breach by either the Company or Employee.
10.2 This Agreement shall be binding upon and shall inure to
the benefit of both the Company and Employee and then respective successors,
heirs, and legal representatives; however, neither this Agreement nor any rights
hereunder may be assigned by either the Company or Employee without the written
consent of the other party.
10.3 No amendment or variation of the terms and conditions of
this Agreement shall be valid unless it is in writing and signed by the Company
and Employee.
10.4 All notices required or permitted to be given under this
Agreement shall be in writing. Notices may be served by certified or registered
mail, postage prepaid with return receipt requested; by private courier,
prepaid; by telex, facsimile or other telecommunications device capable of
transmitting or creating a written record; or personally. Mailed notices shall
be deemed delivered ten (10) days after mailing, properly addressed. Notices
sent by courier shall be deemed delivered on that date the courier warrants the
delivery will occur. Telex or telecommunicated notices shall be deemed delivered
when receipt is either confirmed by confirming transmission equipment or
acknowledged by the addressee or its office. Personal delivery shall be
effective when accomplished. Unless a party changes its address by giving notice
to the other party as provided herein, notices shall be delivered to the parties
at the addresses first set forth above
10.5 In the event suit or action is instituted to enforce any
of the terms of this Agreement, the prevailing party shall be entitled to
recover from the other party such sum as the Court may adjudge reasonable as
attorney's fees at trial or on appeal, in addition to all other sums provided by
law.
10.6 This Agreement shall be interpreted and enforced in
accordance with the laws of the State of California
10.7 This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supercedes all prior oral or written agreements and understandings with respect
thereto.
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10.8 This Agreement may be executed in several counterpart copies, each
of which shall be deemed an original and shall constitute one agreement.
IN WITNESS WHEREOF, this Agreement is executed on the day and year
first above written.
Company: Advantage Technologies, Inc.
By:/s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Employee: /s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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