EXHIBIT 10.1
EMPLOYMENT AGREEMENT
by and between
Infinity Capital Group, Inc.,
and
Xxxxxx X. Xxxxxxxxxx
As of
January 5, 2009
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 5th day of January, 2009, by and between Xxxxxx X. Xxxxxxxxxx
("Employee") and Infinity Capital Group, Inc. a Maryland corporation with
offices at 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 ("ICG" or "Employer"),
BACKGROUND
WHEREAS, Employer desires to employ Employee as the Vice President of
Corporate Development & Managing Director of Employer, and
WHEREAS, Employee is willing to be employed as the Employee as the Vice
President of Corporate Development & Managing Director in the manner provided
for herein, and to perform the duties of the Employer upon the terms and
conditions herein set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth it is agreed as follows;
AGREEMENTS
In consideration of the foregoing and of the mutual promises and other
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. SCOPE OF EMPLOYMENT.
(a) Employer agrees that during the term of this Agreement, Employer
shall employ Employee to perform such duties and exercise such authority as
assigned or delegated to Employer by Employer's Board of Directors, and shall
serve as Vice President of Corporate Development & Managing Director of
Employer.
(b) Employee hereby accepts such employment and agrees that during the
term of this Agreement that:
(i) Employee shall perform such duties in the foregoing
capacity;
(ii) Employee shall devote time and attention, as well as
necessary, to the performance of his duties hereunder and to the
affairs of Employer;
(iii) Employee shall comply with all lawful policies which
from time to time may be in effect at Employer or adopted by Employer
and conveyed to Employee.
2. COMPENSATION. As compensation for the services to be performed by
Employee hereunder, Employer agrees to pay to Employee, and Employee agrees to
accept, the following:
(a) SALARY. Employee or his assigns shall receive an initial Salary at
the rate of $60,000 per year, less applicable payroll deductions required by
law. Such Salary shall be paid in substantially equal periodic installments
according to Employer's customary payroll practices, but no less frequently than
monthly. Unless otherwise determined at the sole discretion of the Board of
Directors, the initial grant of Options in section 2(c) below shall be in lieu
of the first two months salary. The basic compensation provided in this
Agreement shall be automatically adjusted on an annual basis to reflect the
increase, if any, in the cost of living by adding to such basic salary an amount
obtained by multiplying the basic salary by the percentage by which the level of
the Consumer Price Index for all urban consumers for the United States, as
reported by the Bureau of Labor Statistics of the United States Department of
Labor has increased over its level as of the date of the commencement of this
Agreement. The adjustment shall take place on January 1, of each year and the
Employer shall begin paying the adjusted salary on January 5, of each year. The
Employee shall be paid additional compensation from the Employer for the
services rendered under this Agreement as may be determined, from time to time,
in the sole discretion of the Board of Directors. Employer agrees that if
additional capital is raised and/ or Employee's scope of responsibilities are
increased that Salary will be revised upward as agreed by the parties at that
time.
(b) STOCK BONUS. None
(c) INCENTIVE COMPENSATION. Concurrent with signing this agreement the
Employee shall receive a grant of 196,000 options ("Options") to purchase
Employer's common stock. 50,000 of the Options shall vest immediately, 73,000 of
the Options shall vest on the one year anniversary of this agreement and 73,000
of the Options shall vest on the second anniversary of this agreement. Employee
shall receive future incentive compensation as determined by the Employer's
Board of Directors.
(c) EMPLOYEE BENEFITS. In addition to Employee's Salary and Incentive
Compensation, Employer shall make available to Employee, during the term hereof:
(i) Participation in any plans from time to time generally
offered to Employer's employees with respect to group health, life,
accident and disability insurance or payment plans or similar employee
benefits, if any.
(ii) Three (3) weeks paid annual vacation, as well as paid
holidays and other fringe benefits regularly provided to Employees of
Employer; and
(iii) Reimbursement for reasonable and necessary business
expenses in accordance with Employer's policies.
3. TERM AND NATURE OF RELATIONSHIP.
(a) EMPLOYMENT. Employee's employment hereunder shall commence on the
Closing Date and continue for five years through January 5, 2014, subject to
earlier termination as hereinafter provided in Sections 4(a)-4(e). Each 12 month
period from the commencement date forward during the term hereof shall be
referred to as an "Annual Period."
(b) Subject to Section 4 below, unless the Board of Directors of
Employer (the "Board") shall determine to the contrary and shall so notify
Employee in writing on or before the end of any Annual Period or unless the
Employee notifies Employer in writing on or before the end of the final Annual
Period of his desire not to renew this Agreement, then at the end of each Annual
Period, the term of this Agreement shall be automatically extended for one (1)
additional Annual Period to be added at the end of the then current term of this
Agreement.
4. TERMINATION.
(a) TERMINATION BY EMPLOYER WITH CAUSE. Employer may terminate
Employee's employment with "cause" as hereafter defined in this Section 4(a)
upon 5 days' written notice. "Cause" for purposes of Sections 4(a) and 4(b)
means Employee's: (i) conviction of, or indictment for, criminal negligence or
criminal acts in the work place, (ii) violation of Employer policies or
procedures that have been made known to Employee provided Employee has not cured
such violation within 10 business days after receiving written notice of
violation from Employer, (iii) material breach of the covenants of this
Agreement, provided that Employee has not cured such breach within 10 days after
receiving written notice from Employer, (iv) the appropriation (or attempted
appropriation) of a material business opportunity of Employer, including
attempting to secure or securing any profit in connection with any transaction
entered into on behalf of the Employer, and (v) the misappropriation (or
attempted misappropriation) of any of Employer's funds or property. In the event
that Employee is terminated with "cause," Employee shall be entitled to (a) the
payment of Employee's then-current accrued, unpaid Salary and accrued, unused
vacation which have accrued, each prorated through the date of termination.
(b) TERMINATION BY EMPLOYER WITHOUT CAUSE. Employer may terminate
Employee's employment without "cause" as defined in Section 5(a) upon 30 days'
written notice. In the event that Employee is terminated without "cause,"
Employee shall be provided with (i) payment of Employee's then-current accrued,
unpaid Salary and accrued, unused vacation, each prorated through the date of
termination, and (ii) providing that Employee complies with his obligations
under Sections 6 and 7 herein, payment of severance compensation of a lump-sum
payment equal to 3 months' Salary.
(c) TERMINATION BY EMPLOYEE WITHOUT CAUSE. Employee may terminate
Employee's employment upon 30 days' written notice. In the event that Employee
terminates his employment without "cause" as defined in Section 4(d), Employee
shall be paid his then-current accrued, unpaid Salary and accrued, unused
vacation, prorated through the date of termination.
(d) TERMINATION BY EMPLOYEE WITH CAUSE. Employee may terminate his
employment upon 30 days' written notice with "cause" as hereafter defined in
this Section 4(d). "Cause" for purposes of Section 4(c) and (d) means Employer's
material breach of the covenants of this Agreement or the Stock Purchase
Agreement, provided that Employee does not cure any such breach upon 10 days'
written notice from Employee. In the event that Employee terminates his
employment with "cause," Employee shall be provided with payment of Employee's
then-current accrued, unpaid Salary and accrued, unused vacation, each prorated
through the date of termination and providing that Employee complies with his
obligations under Sections 6 and 7 herein, payment of severance compensation of
a lump-sum payment equal to 3 months' Salary.
(e) TERMINATION DUE TO EMPLOYEE'S DEATH OR DISABILITY. In the event
that this Agreement and Employee's employment is terminated due to Employee's
death or disability, Employee (or Employee's legal representatives) shall be
paid (i) Employee's then-current unpaid Salary and accrued, unused vacation,
each prorated through the date of termination, (ii) an additional 2 months'
Salary. For purposes of this Agreement, the term "disability" shall mean the
mental or physical inability to perform satisfactorily Employee's regular
full-time duties, with or without a reasonable accommodation, as determined by
Employee's physician, for 120 days, whether or not consecutive, in any 24-month
period.
(f) INITIAL EMPLOYMENT PERIOD. Employer and Employee agree that no
severance shall be due under any circumstance if Employee is terminated during
the first six months of employment as the result of an unsatisfactory
performance review.
5. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE. Employee hereby represents
and warrants to Employer that Employee is not now under any obligation to any
person, firm or corporation, and has no other interest, which is inconsistent or
in conflict with this Agreement, or which would prevent, limit or impair, in any
way, Employee's performance of any of the obligations set forth in this
Agreement.
6. EMPLOYER COVENANTS
(a) Directors & Officers Insurance. Employer shall maintain directors
and officers insurance in an amount typical for companies of its size and nature
of its business.
(b) Director & Officer Indemnification. Employer shall indemnify
Employee for actions as an employee except for any action of willful fraud by
Employee.
7. NON-DISCLOSURE COVENANT.
(a) CONFIDENTIAL INFORMATION DEFINED. "Confidential Information," as
used in this Agreement, shall mean any and all:
(i) trade secrets concerning the business and affairs of
Employer, product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current and planned
research and development, current and planned manufacturing or
distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code
and source code), computer software and database technologies, systems,
structures and architectures (and related formulae, compositions,
processes, improvements, devices, know-how, inventions, discoveries,
concepts, ideas, designs, methods and information), and any other
information, however documented, that is a trade secret under
applicable state law;
(ii) information concerning the business and affairs of
Employer (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials), however documented;
and
(iii) notes, analysis, compilations, studies, summaries and
other material prepared by or for Employer containing or based, in
whole or in part, on any information included in the foregoing.
(b) ACKNOWLEDGMENTS BY EMPLOYEE. Employee acknowledges that (i) as part
of Employee's employment with Employer, both prior to entering into this
Agreement and during the term of this Agreement, Employee has been and will be
afforded access to Confidential Information; (ii) public disclosure of such
Confidential Information could have an adverse effect on Employer and its
business; and (iii) the provisions of this Section 7 are reasonable and
necessary to prevent the improper use or disclosure of Confidential Information
and to provide Employer with exclusive ownership of all Employee Inventions.
(c) AGREEMENTS OF EMPLOYEE. In consideration of the compensation and
benefits to be paid or provided to Employee by Employer under this Agreement,
Employee covenants as follows:
(i) During and following the Employment Period, Employee will
hold in confidence the Confidential Information and will not disclose
it to any person except with the specific prior written consent of
Employer or except as otherwise expressly permitted by the terms of
this Agreement.
(ii) Any trade secrets of Employer shall be accorded all
protections and benefits available under applicable state trade-secret
law and any other applicable law.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that Employee
demonstrates was or became generally available to the public other than
as a result of a disclosure by Employee.
(iv) Employee will not remove from Employer's premises (except
to the extent such removal is for purposes of the performance of
Employee's duties at home or while traveling, or except as otherwise
specifically authorized by Employer) any document, record, notebook,
plan, model, component, device, or computer software or code, whether
embodied in a disk or in any other form (collectively, the "Proprietary
Items"). Employee recognizes that, as between Employer and Employee,
all of the Proprietary Items, whether or not developed by Employee, are
the exclusive property of Employer. Upon termination of this Agreement
by either party, or upon the request of Employer during the Employment
Period, Employee will return to Employer all of the Proprietary Items
in Employee's possession or subject to Employee's control, and Employee
shall not retain any copies, abstracts, sketches, or other physical
embodiment of any of the Proprietary Items.
(d) DISPUTES OR CONTROVERSIES. Employee recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by Employer,
Employee, and their respective attorneys and experts, who will agree, in advance
and in writing, to receive and maintain all such information in secrecy, except
as may be limited by them in writing.
8. NON-INTERFERENCE.
(a) ACKNOWLEDGMENTS BY EMPLOYEE. Employee acknowledges that: the
provisions of this Section 8 are reasonable and necessary to protect Employer's
business.
(b) COVENANTS OF EMPLOYEE. In consideration of the acknowledgments by
Employee, and in consideration of the compensation and benefits to be paid or
provided to Employee by Employer, Employee covenants that he will not, directly
or indirectly:
(i) during the period of employment under this Agreement (the
"Employment Period"), except in the course of his employment hereunder,
and during the 2-year period following termination of Employee's
employment under this Agreement (the "Post-Employment Period"),
interfere with existing investment activities of Employer; (ii)whether
for Employee's own account or the account of any other person (A) at
any time during the Employment Period or Post-Employment Period,
without consent of Employer, solicit, employ, or otherwise engage as an
employee, independent contractor, or otherwise, any person who is or
was an employee of Employer at any time during the Employment Period or
in any manner induce or attempt to induce any employee of Employer to
terminate his employment with Employer; or (B) at any time during the
Employment Period or Post-Employment Period, interfere with Employer's
relationship with any person, including any person who at any time
during the Employment Period was an employee, contractor, supplier, or
customer of Employer; or
(iii) at any time during or after the Employment Period,
disparage Employer or any of its shareholders, directors, officers,
employees or agents.
(c) BLUE-PENCILING. If any covenant in Section 8(b) is held to be
unreasonable, arbitrary, or against public policy, such covenant will be
considered to be divisible with respect to scope, time, and geographic area, and
such lesser scope, time, or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding, and enforceable against
Employee.
(d) EXTENSION OF COVENANTS. The period of time applicable to any
covenant in Section 7(b) will be extended by the duration of any violation by
Employee of such covenant.
9. REMEDIES. Employee acknowledges and agrees that the business of
Employer is highly competitive, and that violation of any of the covenants
provided for in Sections 7 and 8 of this Agreement would cause immediate, harm,
loss and damage to Employer. Accordingly, Employee agrees, without limiting any
of the other remedies available to Employer, that any violation of said
covenants, or any of them, may be enjoined or restrained by any court of
competent jurisdiction, and that any temporary restraining order or emergency,
preliminary or final injunctions may be issued by any court of competent
jurisdiction. In the event any proceedings are commenced by Employer against
Employee for any actual or threatened violation of any of said covenants, the
losing party in such proceedings shall be liable to the prevailing party for all
reasonable costs and expenses of any kind, including reasonable attorneys' fees,
which the prevailing party has incurred in connection with such proceedings.
10. NOTICES. Any notices or communications hereunder will be deemed
sufficient if made in writing and hand-delivered or sent by facsimile or by
registered or certified mail, postage prepaid, return receipt requested, to the
following addresses:
If to Employer: Infinity Capital Group, Inc.
00 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxxx
Fax: 000-000-0000
If to Employee: Xxxxxx X. Xxxxxxxxxx
00 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
or to such other address as either party may designate for such party by written
notice to the other given from time to time in the manner herein provided.
11. BINDING EFFECT AND BENEFIT. The provisions hereof shall be binding
upon, and shall inure to the benefit of, Employee, his heirs, executors, and
administrators as well as to Employer, its successors, and assigns; however,
Employee's services under this personal services contract are not assignable.
12. WAIVERS. No delay on the part of any party in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
or waiver thereof by any party of any right or remedy shall preclude the
exercise or further exercise thereof or the exercise of any other right or
remedy.
13. SEVERABILITY AND BLUE-PENCILING. The illegality or invalidity of any
provision or provisions in this Agreement shall not impair, affect or invalidate
any other provisions contained in this Agreement. If any provision or part of
this Agreement is held by a court of competent jurisdiction to be unenforceable
because of the duration of such provision or the geographic area or other scope
covered thereby, the court making such determination shall have the power to
modify such provision, to reduce the duration, area or scope of such provision,
or to delete specific words or phrases therefrom ("blue-penciling") and, in its
reduced or blue-penciled form, such provision shall then be enforceable and
shall be enforced to the fullest extent permitted by law.
14. ENTIRE AGREEMENT. Any and all prior discussions, understandings, and
agreements, whether written or oral, express or implied, held or made between
Employee and Employer are superseded by and merged into this Agreement, which
alone fully and completely expresses the agreement of the parties with regard to
the matters addressed herein, and this Agreement is entered into with no party
relying on any statement or representation made by any other party which is not
contained in this Agreement.
15. AMENDMENTS. This Agreement may be modified, amended or supplemented
only by execution of a written instrument signed by both Employee and Employer.
16. TERMINATION AND SURVIVAL OF PROVISIONS. Termination of employment under
this Agreement shall not be interpreted to terminate other provisions of the
Agreement, including but not limited to the rights and obligations contained in
Sections 6-16.
(signature page follows)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
XXXXXX X. XXXXXXXXXX INFINITY CAPITAL GROUP, INC.
/s/Xxxxxx X. Xxxxxxxxxx
_____________________________________ By: /s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxx X. Xxxxxxxxxx Its: President
EMPLOYEE EMPLOYER
