EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this day
of February 25, 2004 by and between OneCap, a Nevada corporation
(the "Company"), and Xxxxxxx X. Xxxxxx, an individual
("Executive").
RECITALS
A. The Company desires to be assured of the association and
services of Executive for the Company.
B. Executive is willing and desires to be employed by the
Company, and the Company is willing to employ Executive, upon the
terms, covenants and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms,
covenants and conditions hereinafter set forth, the parties
hereto do hereby agree as follows:
1. Employment. The Company hereby employsagrees to employ
Executive as President, Chief , and Executive Officer and
Principal Officeragrees to be employed by Company, beginning as
of the Effective Date and continuing until the termination date
as set forth herein " (the "Term"), subject to the terms and
conditions of this Agreement and further subject to the
supervision and direction of the Company's Board of Directors.
2. Term. The term of this Agreement shall be for a period of
five (5) years commencing on the date hereof, unless terminated
earlier pursuant to Section 7 below; provided, however, that
Executive's obligations in Section 6 below shall continue in
effect after such termination.
2.1 Post Term Employment.
Should Executive remain employed by Company beyond the
expiration of the Term specified on Exhibit "A," such employment
shall convert to a month-to-month relationship terminable at any
time by either Company or Executive for any reason whatsoever,
with or without cause.
3. Scope of Duties.
3.1 Assignment of Duties. Executive shall have such duties
as may be assigned to him or her from time to time by the
Company's Board of Directors commensurate with his experience and
responsibilities in the position for which he is employed
pursuant to Section 1 above. Such duties shall be exercised
subject to the control and supervision of the Board of Directors
of the Company.
3.2 General Specification of Duties. Executive's duties
shall include, but not be limited to, the duties and performance
goals as follows:
(1) act as President and Chief Executive Officer of the Company
and perform all duties, functions and responsibilities generally
associated thereto;
(2) personally review and certify the financial statements of
the company as filed with the Securities and Exchange Commission
in compliance with Sarbanes Oxley and otherwise cause to be
prepared, as directed by the Company, financial statements, tax
returns and other similar items respecting the operation of the
Company;
(3) execute on behalf of the Company, in his capacity as
President and Chief Executive Officer, all documents as requested
by the Company;
(4) employ, pay, supervise and discharge all employees
of the Company, and determine all matters with regard to such
personnel, including, without limitation, compensation, bonuses
and fringe benefits, all in accordance the policies which may be
implemented by the Board of Directors of the Company;
(5) assist in establishing procedures for implementing the
policies established by the Company;
(6) assist in insuring cooperation of the officers of the
Company;
(7) assist in causing the Company to be operated in compliance
with all legal requirements;
(8) assist in operating the Company in conformance with any plan
approved by the Company, as such may be amended from time to time
with the concurrence of the Company; and
(9) from time to time, and at Executive's sole discretion,
personally guarantee certain obligations for the benefit of the
Company including but not limited to specifically,:
the execution of a personal guarantee for the
commercial guarantee related to a note for purposes of
purchasing the building serving as corporate
headquarters for the Company in thewhich guarantee is
for a total amount of $4,000,000.00 (Four (4) Million
U.S. Dollars).
The foregoing specifications are not intended as a complete
itemization of the duties which Executive shall perform and
undertake on behalf of the Company in satisfaction of his or her
employment obligations under this Agreement.
3.3. Executive initially shall be employed in the position
set forth herein.. Company may subsequently modify Executive's
duties and responsibilities; provided however, in the event
Company substantially reduces the duties or responsibilities of
Executive, Executive may elect to terminate this Agreement and
said termination shall constitute an Involuntary Termination.
Executive shall at all times comply with and be subject to such
policies and procedures as Company may establish from time to
time.
3.34 Executive's Devotion of Time. Executive hereby agrees
to devote his time, abilities and energy to the faithful
performance of the duties assigned to him or her and to the
promotion and forwarding of the business affairs of the Company,
and not to divert any business opportunities from the Company to
himself or herself or to any other person or business entity,
unless otherwise approved by the Board of Directors.
3.45 Conflicting Activities.
(1) Executive shall not, during the term of this Agreement,
be engaged in any other business activity substantially similar
to that of the Company's primary business without the prior
consent of the Board of Directors of the Company; provided,
however, that this restriction shall not be construed as
preventing Executive from investing his personal assets in any
investments, including but not limited to real estate, in
business entities which are not in competition with the Company
or its affiliates, or from pursuing business opportunities which
do not unreasonably impede his performance as executive for the
Company.
(2) Executive hereby agrees to promote and develop all
business opportunities that come to his attention relating to
current or anticipated future business of the Company, in a
manner consistent with the best interests of the Company and with
his duties under this Agreement. Should Executive discover a
business opportunity that does not relate to the current or
anticipated future business of the Company, he shall first offer
such opportunity to the Company. Should the Board of Directors of
the Company not exercise its right to pursue this business
opportunity within a reasonable period of time, not to exceed ten
(10) days, then Executive may develop the business opportunity
for himself; provided, however, that such development may in no
way conflict or interfere with the duties owed by Executive to
the Company under this Agreement. Further, Executive may develop
such business opportunities only on his own time, and may not use
any service, personnel, equipment, supplies, facility, or trade
secrets of the Company in their development. As used herein, the
term "business opportunity" shall not include business
opportunities involving investment in publicly traded stocks,
bonds or other securities, real estate or other investments of a
personal nature.
4. Compensation; Reimbursement.
4.1 Base Salary. For all services rendered by Executive
under this Agreement, the Company shall pay Executive a base
salary per annum, payable bi-weekly in equal installments (the
"Base Salary"). The amount of the Base Salary shall be determined
by the Board of Directors and may be increased from time to time
by the Board of Directors of the Company. No such change shall
in any way abrogate, alter, terminate or otherwise affect the
other terms of this Agreement.
4.2 Periodic Bonuses. In addition to the Base Salary,
Executive shall be eligible for periodic bonuses ("Periodic
Bonuses") in amounts to be determined by the Board of Directors.
The criteria upon which the Periodic Bonuses are awarded shall be
at the discretion of the Board of Directors or Compensation
Committee.
4.3 Stock Compensation. In addition to the Base Salary and
the Periodic Bonuses, Executive shall receive shares of common
stock of OneCap (the "Stock Based Compensation") which stock
shall be vested with Executive at a rate of 250,000 shares per
year for the term of this Agreement or a total of five (5) years
and subject to risk of forfeiture. In the event that Executive
leaves the Company or substantially abandons his duties as set
forth herein, Executive shall be obliged to forgo his right and
ownership of any stock not yet vested and shall be obliged
therefore to sell back to the Company any stock received under
this subsection which stock has not yet vested at a purchase
price payable by the Company of $0.10 (ten cents) per share (the
"Repurchase Price") regardless of its value. In the event that
Executive terminates his employ or is terminated for cause prior
to the expiration of the five (5) year term of this Agreement,
Executive shall be obliged to remit any unvested shares back to
the Company for the Repurchase Price. Executive shall be issued
all of the Stock based Compensation upon execution of this
Agreement. The Stock Based Compensation shall be deemed earned-
out and vested pursuant to the following schedule:
No. Shares Date Deemed Vested
-------------- ------------------
250,000 shares February 19, 2005
250,000 shares February 19, 2006
250,000 shares February 19, 2007
250,000 shares February 19, 2008
250,000 shares February 19, 2009
Executive may not transfer any shares received hereunder until
such time as such shares are deemed vested. In the event 1)
Executive is terminated without cause, 2) there is a change in
control of the Company (such as a buyout, majority control
transfer, takeover, etc.), 3) the Company ceases to be publicly
traded on a recognized exchange (becomes private), or 4) the
Company becomes publicly traded on a nationally recognized
exchange (AMEX, NASDAQ, or NYSE), any unvested shares outstanding
at that time will become immediately vested.
4.4 Reimbursement. Executive shall be reimbursed for all
reasonable "out-of-pocket" business expenses for business travel
and business entertainment incurred in connection with the
performance of his or her duties under this Agreement (1) so long
as such expenses constitute business deductions from taxable
income for the Company and are excludable from taxable income to
the Executive under the governing laws and regulations of the
Internal Revenue; and (2) to the extent such expenses do not
exceed the amounts allocable for such expenses in budgets that
are approved from time to time by the Company. The reimbursement
of Executive's business expenses shall be upon monthly
presentation to and approval by the Company of valid receipts and
other appropriate documentation for such expenses.
5. Severance. So long as this Agreement is in effect,
Executive shall at all times be entitled to severance benefits as
may be determined by the Board of Directors in its sole
discretion. These benefits may include, the Company's maintenance
at its cost of a life insurance policy and disability policy on
Executive payable to Executive and/or his or her legal
representative or heirs as applicable, in amounts reasonably
agreed to by Executive and the Company.
6. Confidentiality of Trade Secrets and Other Materials.
6.1 Trade Secrets. Other than in the performance of his or
her duties hereunder, Executive agrees not to disclose, either
during the term of his or her employment by the Company or at any
time thereafter, to any person, firm or corporation any
information concerning the business affairs, the trade secrets or
the customer lists or similar information of the Company. Any
technique, method, process or technology used by the Company
shall be considered a "trade secret" for the purposes of this
Agreement.
6.2 Ownership of Trade Secrets; Assignment of Rights.
Executive hereby agrees that all know-how, documents, reports,
plans, proposals, marketing and sales plans, client lists, client
files and materials made by him or her or by the Company are the
property of the Company and shall not be used by him in any way
adverse to the Company's interests. Executive shall not deliver,
reproduce or in any way allow such documents or things to be
delivered or used by any third party without specific direction
or consent of the Board of Directors of the Company. Executive
hereby assigns to the Company any rights which he or she may have
in any such trade secret or proprietary information.
7. Termination.
7.1 Bases for Termination.
(1) Executive's employment may be terminated by the Company
"with cause," effective upon delivery of 5 business days of
written notice to Executive if any of the following shall occur:
(a) any action by Executive which would constitute a
willful breach of duty or habitual neglect of duty;
(b) any material breach of Executive's obligations as
described herein; or
(c) any material acts or events which inhibit Executive
from fully performing his or her responsibilities to the Company
in good faith, such as (i) a felony criminal conviction; (ii) any
other criminal conviction involving Executive's lack of honesty
or moral turpitude; (iii) drug or alcohol abuse; or (iv) acts of
dishonesty, gross carelessness or gross misconduct.
..
(2) This Agreement shall automatically terminate on the last
day of the month in which Executive dies or becomes permanently
incapacitated. "Permanent incapacity" as used herein shall mean
mental or physical incapacity, or both, reasonably determined by
the Company's Board of Directors based upon a certification of
such incapacity by, in the discretion of the Company's Board of
Directors, either Executive's regularly attending physician or a
duly licensed physician selected by the Company's Board of
Directors, rendering Executive unable to perform substantially
all of his or her duties hereunder and which appears reasonably
certain to continue for at least six consecutive months without
substantial improvement. Executive shall be deemed to have
"become permanently incapacitated" on the date the Company's
Board of Directors has determined that Executive is permanently
incapacitated and so notifies Executive.
(3) Notwithstanding any other provisions of this
Agreement, Executive shall have the right to terminate the
employment relationship under this Agreement at any time prior
to the expiration of the Term of employment for any of the
following reasons:
(i) a breach by Company of any provision of this Agreement which
remains uncorrected for 30 days following written notice of such
breach by Executive to Company; or
(ii) for any other reason whatsoever, in the sole discretion of
Executive.
The termination of Executive's employment by Executive under
Section 7.1(3)(i), prior to the expiration of the Term shall
constitute an "Involuntary Termination" as though Executive was
terminated by the Company without cause. The termination of
Executive's employment by Executive prior to the expiration of
the Term shall constitute a "Voluntary Termination" if made
pursuant to Section 7.1.(3)(ii) and shall be treated as the
Company was forced to terminate Executive with cause.
8. Miscellaneous.
8.1 Transfer and Assignment. This Agreement is personal as
to Executive and shall not be assigned or transferred by
Executive without the prior written consent of the Company. This
Agreement shall be binding upon and inure to the benefit of all
of the parties hereto and their respective permitted heirs,
personal representatives, successors and assigns.
8.2 Severability. Nothing contained herein shall be
construed to require the commission of any act contrary to law.
Should there be any conflict between any provisions hereof and
any present or future statute, law, ordinance, regulation, or
other pronouncement having the force of law, the latter shall
prevail, but the provision of this Agreement affected thereby
shall be curtailed and limited only to the extent necessary to
bring it within the requirements of the law, and the remaining
provisions of this Agreement shall remain in full force and
effect.
8.3 Governing Law. This Agreement is made under and shall be
construed pursuant to the laws of the State of Nevada.
8.4 Counterparts. This Agreement may be executed in several
counter parts and all documents so executed shall constitute one
agreement, binding on all of the parties hereto, notwithstanding
that all of the parties did not sign the original or the same
counterparts.
8.5 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the
subject matter hereof and supersedes all prior oral or written
agreements, arrangements, and understandings with respect
thereto. No representation, promise, inducement, statement or
intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged
representation, promise, inducement, or statement not so set
forth herein.
8.6 Modification. This Agreement may be modified, amended,
superseded, or cancelled, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived,
only by a written instrument executed by the party or parties to
be bound by any such modification, amendment, super-session,
cancellation, or waiver.
8.7 Attorneys' Fees and Costs. In the event of any dispute
arising out of the subject matter of this Agreement, the
prevailing party shall recover, in addition to any other damages
assessed, its attorneys' fees and court costs incurred in
litigating or otherwise settling or resolving such dispute
whether or not an action is brought or prosecuted to judgment. In
construing this Agreement, none of the parties hereto shall have
any term or provision construed against such party solely by
reason of such party having drafted the same.
8.8 Waiver. The waiver by either of the parties, express or
implied, of any right under this Agreement or any failure to
perform under this Agreement by the other party, shall not
constitute or be deemed as a waiver of any other right under this
Agreement or of any other failure to perform under this Agreement
by the other party, whether of a similar or dissimilar nature.
8.9 Cumulative Remedies. Each and all of the several rights
and remedies provided in this Agreement, or by law or in equity,
shall be cumulative, and no one of them shall be exclusive of any
other right or remedy, and the exercise of any one of such rights
or remedies shall not be deemed a waiver of, or an election to
exercise, any other such right or remedy.
8.10 Headings. The section and other headings contained in
this Agreement are for reference purposes only and shall not in
any way affect the meaning and interpretation of this Agreement.
8.11 Notices. Any notice under this Agreement must be in
writing, may be telecopied, sent by express 24-hour guaranteed
courier, or hand-delivered, or may be served by depositing the
same in the United States mail, addressed to the party to be
notified, postage-prepaid and registered or certified with a
return receipt requested. The addresses of the parties for the
receipt of notice shall be as follows:
If to the Company:
OneCap
0000 Xxxx Xxxxxx Xxxxxx 0xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
If to Executive:
________________________
________________________
________________________
________________________
Each notice given by registered or certified mail shall be deemed
delivered and effective on the date of delivery as shown on the
return receipt, and each notice delivered in any other manner
shall be deemed to be effective as of the time of actual delivery
thereof. Each party may change its address for notice by giving
notice thereof in the manner provided above.
8.12 Survival. Any provision of this Agreement which imposes
an obligation after termination or expiration of this Agreement
shall survive the termination or expiration of this Agreement and
be binding on Executive and the Company.
8.13 Effective Date. This Agreement shall become effective
as of the date set forth on page 1 when signed by Executive and
the Company.
IN WITNESS WHEREOF, the parties hereto have caused this
Employment Agreement to be executed as of the date first set
forth above.
"Executive"
/s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
"Company"
OneCap
By: /s/ Xxxxxx Xxxxxx
---------------------
Xxxxxx X. Xxxxxx (Representing the Board Pro Tem)
