EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of January 2009 (the “Commencement Date”) by and among Dewmar International BMC, Inc., a Nevada Corporation (hereinafter the “Company”), and Xxxxx Xxxxx, an individual residing in Xxxxxxx, MS (hereinafter the “Employee”);
WHEREAS, the Company desires to retain the services of Employee and Employee is willing to be employed by Company, on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, the parties as follows:
Section 1. As used in this Agreement, the following terms share have the meanings set forth below:
“Affiliate” shall mean a corporation which, directly or indirectly, controls, is controlled by or is under common control with the Company, or which is a successor in interest to the Company, and for purposes hereof, “control” shall mean the ownership of 20% or more or the voting shares of the corporation in question.
“Basic Salary” shall have the meaning assigned to it in Section 5 of this Agreement.
“The Business” shall mean the business conducted by the Company in the past and on the date of execution of this Agreement, including business activities under investigation or in developmental stages, all other business activities which flow therefrom by a reasonable expansion of the present activities of the Company, all business activities which may be developed by the Company during the Term, and all business activities now conducted by the Company or any Affiliate thereof or which may be developed by the Company or such Affiliates, during the term of this Agreement, as reasonable expansions of their present activities.
“Commencement Date” shall be the effective date of this Agreement, as stated on page 1.
“Confidential Information” shall include, without limitation, trade “know-how,” trade secrets, subscriber, advertiser and customer lists, pricing policies, operational methods, methods of doing business, technical processes, formulae, designs and design projects, inventions, research projects, and other business affairs of the Company or its Subsidiaries and Affiliates, which (i) were, in the case of the Company, or is designed to be used in or are or may be useful in connection with the business of the Company or any Subsidiary or Affiliate thereof or which, in the case of any of these entities, results from any of the research or development activities of any such entity, which (ii) is private or confidential in that it is not generally known or available to the public, except as the result of unauthorized disclosure by or information supplied by Employee or (iii) which gives the Company or any Subsidiary or Affiliate of the Company an opportunity or the possibility of obtaining an advantage over competitors who may not know or use such information or who are not lawfully permitted to use the same.
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“Employment Year” shall mean each twelve-month period, or part thereof, during which Employee is employed hereunder, commencing on the Commencement Date or on January 1 of any subsequent calendar - year, the first such subsequent Employment Year being the twelve-month period which will begin on January 1, 2010.
“Fiscal Quarter” shall mean each four-month period, or part thereof, during which Employee is employed hereunder, commencing on the Commencement Date or on January 1, 2010 of any subsequent calendar year, the first such subsequent Fiscal Quarter being the four-month period which will begin on January 1, 2010.
“Incentive Bonus” shall have the meaning assigned to it in Section 6.
“Person” shall mean any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, institution, public benefit corporation, entity or government (whether Federal, state, county, city, municipal or otherwise, including, without limitation, any instrumentality , division, agency, body or department thereof).
“Restricted Period” shall mean the term of employment of Employee under this Agreement or any extension thereof and the twelve- month period thereafter, or such shorter period as may be provided pursuant to any sections of this Agreement- provided, however, that the Restricted Period shall terminate immediately upon the Occurrence of any termination of the employment of Employee by the Company other than pursuant to this Agreement or as authorized by law.
“Subsidiary” shall mean a corporation, 50% or more of the outstanding voting shares of which is owned or controlled directly or indirectly by the Company.
“Term” shall mean the ten-n of employment of Employee under this Agreement.
“Termination Date” shall have the meaning assigned to it in Section 8.
“Termination Payment” shall have the meaning assigned to it in Section 8.
Wherever from the context it appears appropriate, each word or phrase stated in either the singular or the plural shall include the singular and the plural, and each pronoun stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter.
Section 2. Employment and Duties of Employee.
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Section 3. Term of Employment.
The employment of Employee pursuant to this Agreement shall commence as of the Commencement Date and end on the earlier to occur of (i) January 1, 2015, or (ii) the first date on which such employment is terminated in accordance with Section 10 hereof (the “Termination Date”).
Section 4. Compensation and Benefits.
The Company shall pay Employee as compensation for all of the services to be rendered by him hereunder during the Term, and in consideration of the various restrictions imposed upon Employee during the Term and the Restricted Period, and otherwise under this Agreement, the Basic Salary and other benefits as provided for and determined pursuant to Sections 5 to 10, inclusive, of this Agreement.
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The Company shall pay Employee, as compensation for all of the services to be rendered hereunder by him during the Term, a salary of $120,000.00 per year (the “Basic Salary”), payable in accordance with the regular payroll practices of the Company for executives, less such deductions as are required to be deducted or withheld by applicable laws or regulations and less such other deductions or amounts, if any, as are authorized by Employee. Such Basic Salary may be increased, but not decreased, from time to time in the sole discretion of the Board of Directors.
Section 7. Additional Benefits and Reimbursement for Expenses.
(i) Participation on an equitable basis in medical, hospitalization or accident/disability insurance plans, key man life insurance, dental, vision and health programs and shall be indemnified for any medical expenses not covered by such plans;
(ii) Four (4) weeks vacation with pay in each Employment Year comparable to that afforded other executives of the Company and its subsidiaries. Provided however, Employee shall not be entitled to take more than ten (10) consecutive business days as vacation days without prior approval of the Company’s Board of Directors upon Employee’s request made not less than three (3) weeks prior to the intended vacation days, which approval shall not be unreasonably withheld. There will be no carryover of unused vacation time or pay from year to year. Employee shall also be entitled to all holiday privileges regularly observed by the Company during the Term;
(iii) Employee will be entitled to all reimbursement expenses as it relates to temporary living accomodations in Houston, TX until such time as a permanent residence is undertaken; and
(iv) Employee will be entitled to a relocation package, whenever it becomes necessary to relocate both employee and his family from their current residence to a residence in closer proximity to the Company’s office facility. Company will pay for standard moving expenses as well as related relocation costs and fees in relation to and as it pertains to the the purchase of a domicile for the Employee and his family.
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In addition, the Company, in its sole discretion, may include Employee in any benefit plans which it now maintains or establishes in the future for executives.
Section 8. Termination of Employment.
8.2.1. If, during the Term, Employee becomes physically or mentally disabled, whether totally or partially, so that he is unable to perform substantially all his services hereunder for (i) a period of six (6) consecutive months, or (ii) for shorter periods aggregating six (6) months during any twelve ( 12) month period, the Company may, at any time after the last day of the sixth consecutive month of disability, or after the day on which the shorter periods of disability shall have equaled an aggregate of six (6) months, reduce compensation due Employee from that day forward by twenty-five percent (25%). Employee’s full compensation shall be reinstated upon the Board of Directors’ determination that Employee has become able again to perform all his services hereunder. If, during the Term, Employee’s disability Continues Such that Employee is unable to perform substantially all his services hereunder for (i) a period of nine (9) consecutive months, or (ii) for shorter periods aggregating nine (9) months during any twelve (12) month period, the Company may, at any time after the last day of the ninth consecutive such month, or after the last day on which the shorter periods of disability shall have equaled an aggregate of nine (9) months, terminate Employee’s employment by written notice to him. The date on which Company sends written notice, of termination under this Subsection 8.2 shall be the Termination Date hereunder. In case of any dispute as to whether or not Employee is disabled within the meaning of this Subsection 8.2, the determination of disability is to be made by a licensed physician selected by the Board of Directors of the Company and acceptable to Employee, in his reasonable judgment, which physician’s decision shall be final and binding on the parties hereto. In the event Employee’s employment is terminated pursuant to this Subsection 8.2, the Company shall pay him an amount equal to all compensation remaining unpaid at the time of the Termination Date plus any compensation that would accrue to Employee through the end of the month of the Termination Date. If Employee’s employment is terminated under this Subsection 8.2, his right to receive his Incentive Bonus hereunder for any Fiscal Quarter which has ended shall remain vested, but his right to receive his Incentive Bonus for the Fiscal Quarter in which he is terminated shall be prorated to the Termination Date, as provided in Subsection 6.2, and Employee shall have no right to receive further Incentive Bonus payments thereafter.
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8.3 Termination for Cause. If Employee is convicted of or indicted for an offense involving (i) fraud, (ii) embezzlement, or (iii) any other crime involving moral turpitude, or if Employee commits (iv) gross or willful neglect of duty, (v) a breach of any of the material provisions of this Employment Agreement, on his part to be performed (including breach of the representations and warranties of Section 9), (vi) such conduct as results or as is likely to result in substantial damage to the reputation of the Company, or any of its Subsidiaries or Affiliates, or (vii) if Employee declines to follow any significant instruction adopted by the Board of Directors of the Company and communicated to Employee, and if Employee adheres to persistent refusal or neglect to follow such instructions or policy, the Company may at any time thereafter terminate Employee’s employment hereunder by written notice to him, effective immediately and the date of the notice shall be the Termination Date hereunder. Any Such termination shall be deemed to be termination for cause, for purposes of this Agreement. It’ Employee’s employment is terminated for cause hereunder, then Employee shall be entitled to receive only the following payments: any portion of his Basic Salary accrued to the date of such termination and not theretofore paid to him; and any Incentive Bonus to which he is entitled for any completed Fiscal Quarter under this contract which has not theretofore been paid to him; plus reimbursement for any expenses properly incurred by Employee, and supported by appropriate vouchers, which expenses have been incurred prior to the date of such termination and which have not theretofore been reimbursed. Except as set forth in the immediately preceding sentence, all of Employee’s rights to compensation hereunder shall be terminated, in the event of termination for cause, as of the Termination Date.
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If Employee’s employment is terminated under this Subsection 8.4, and the Termination Date is within five years of the Commencement Date, Employee shall receive, within thirty (30) days of such written notice to the Company, a Termination Payment, which shall be determined according to the following schedule: (i) if the Termination Date hereunder is within one year of the Commencement Date, the Termination Payment shall be three hundred forty thousand dollars ($340,000); (ii) if the Termination Date is within two years of the Commencement Date, the Termination Payment shall be three hundred thousand dollars ($300,000); (ii) if the Termination Date is within three years of the Commencement Date, the Termination Payment shall be two hundred forty thousand dollars ($240,000); (iv) if the Termination Date is within four years of the Commencement Date, the Termination Payment shall be two hundred thousand dollars ($200,000), and so forth. Additionally, Employee shall continue to receive the additional benefits provided in Subsection 7.1 for a period of two (2) years from the Termination Date.
If Employee’s employment is terminated under this Subsection 8.4, and the Termination Date is later than five years after the Commencement Date, Employee shall receive an amount equal to his aggregate Base Salary for five (5) years following the date of such Constructive Termination, or an amount equal to his aggregate Base Salary through the end of the Term, whichever is the lesser amount, and Employee shall continue to receive the additional benefits provided in Subsection 7.1 during the period he is entitled to receive Base Salary pursuant to the provisions of this Subsection 8.4.
In the event or the Constructive Termination of Employee’s Employment pursuant to this Section 8.4, Employee’s right to receive an Incentive Bonus for each Fiscal Quarter completed during the period of such continued Base Salary payments shall remain in effect, and Employee’s fight to receive an Incentive Bonus on account of the year in which his employment terminated by virtue of Constructive Termination shall be prorated to the date of such termination.
Section 9. Representations and Warranties by Employee.
Employee hereby represents and warrants, the same being part of the essence of this Agreement, that, as of the Commencement Date, he is not a party to any agreement, contract or understanding, and no others facts or circumstances exist, which would in any way restrict or prohibit him from undertaking or performing any or his obligations under this Agreement. The foregoing representation and warranty shall remain in effect throughout the Term.
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Section 10. Confidential Information and Proprietary Interests.
The foregoing confidentiality provisions shall cease to be applicable to any Confidential Information which becomes generally available to the public (except by reason of or in consequence of a breach by Employee of his obligations under this Section 10).
In the event Employee is required by law or a court order to disclose any such Confidential Information, he shall promptly notify the Company of such requirement and provide the Company with a copy of any court order or of any law which in his opinion requires such disclosure and, if the Company so elects, permit the Company an adequate opportunity, at its own expense, to contest such law or court order
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Section 11. Non-Competition Provisions.
Employee agrees that he will not, during the Restricted Period, compete directly or indirectly with the business of the Company. The phrase “compete directly or indirectly with the business of the Company” shall be deemed to include, without limiting the generality thereof, (1) engaging or having a material interest, directly or indirectly, as owner, employee, officer, director, partner, sales representative, stockholder, capital investor, lessor, renderer of consultation services or advise, either alone or in association with another or others, in the operation of any aspect of any type of business or enterprise competitive with the business or operation of the Company- (2) soliciting any of the employees of the Company to leave the employ of the Company, or so soliciting any employee of any Subsidiary or Affiliate of the Company; (3) soliciting any of the employees of the Company to become employees of any other Person, or so soliciting any employee of any Subsidiary or Affiliate of the Company, or (4) soliciting any customer or supplier of the Company or any Affiliate or Subsidiary of either of them, with respect to their business. Similarly, Employee shall not raid, entice or induce any Person who on the Termination Date is, or within one (1) year immediately preceding the Termination Date was, a customer or supplier of the Company, or any of its Subsidiaries or Affiliates, to become a customer of any other Person for products or services the same as, or similar to, those products and services as from time to time shall be provided by the Company, or any of its Subsidiaries and Affiliates, and Employee shall not approach any Person for such purpose; nor shall Employee raid, entice or induce any Person who on the Termination Date is, or within one year immediately preceding the Termination Date was, an employee of the Company or any of its Subsidiaries or Affiliates, to become employed by any other Person; similarly, Employee shall not approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other Person or assist any such other Person in taking any such action.
The phrase “compete directly or indirectly with the business of the Company” shall not be deemed to include all ownership interest as an inactive investor, which, for purposes of this Agreement, shall mean only the beneficial ownership of less than five (5%) percent of the outstanding shares of any series or class of securities of any competitor of the Company, which securities of such series or class are publicly traded in the securities market.
Section 12. Disputes and Remedies.
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(i) the right and remedy to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged by Employee that any such breach or threatened breach will or may cause irreparable injury to the Company and that money damages will or may not provide an adequate remedy to the Company- and
(ii) the right and remedy to require Employee to account for and pay over to the Company all compensation, profits, monies, increments, things of value or other benefits, derived or received by Employee as the result of any acts or transactions constituting a breach of any of the provisions of Section 2 or of Sections 10 or 11 of this Agreement, and Employee hereby agrees to account for and pay over all such compensation, profits, monies, increments, things of value or other benefits to the Company.
Employee specifically agrees not to object to any application made by the Company to any court having equity jurisdiction, seeking an injunction restraining him from committing, threatening or continuing any violation of Section 2 or Sections 10 or 11 of this Agreement.
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The provisions of Sections 10, 11, 12 and this Section 13 shall survive termination of this Agreement and remain enforceable according to their terms.
The invalidity or unenforceability of any provision or this Agreement shall in no way affect the validity or enforceability of any other provisions hereof.
All notices, demands and requests required or permitted to be given under the provisions of this Agreement shall be deemed duly given if made in writing and delivered personally or mailed by postage prepaid certified or registered mail, return receipt request, accompanied by a second copy sent by ordinary mail, which notices shall be addressed as follows;
If to the Company:
Dewmar International BMC, Inc.
000 X. Xxxxxxxxx Xx., Xxxxx X
Xxxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq. Ltd.
0000 Xxxxxxx Xxxxx
X. Xxx Xxxxx, XX 00000
If to Employee:
Xxxxx Xxxxx
0000 Xxxxxxxxxxx Xx.
Xxxxxxx, XX 00000
By notifying the other parties in writing, given as aforesaid, any party may from time to time change its address or the name or any person to whose attention notice is to be given, or may add another person, to whose attention notice is to be given, in connection with notice to any party,
Section 16. Assignment and Successors.
Neither this Agreement nor any of his rights or duties hereunder may be assigned or delegated by Employee. This Agreement is not assignable by the Company except to any successor in interest which takes over all or substantially all of the business of the Company, as it is conducted at the time of such assignment. Any corporation into or with which the Company is merged or consolidated or which takes over all or substantially all of the business of Company shall be deemed to be a successor of the Company for purposes hereof this Agreement shall be binding upon and, except as aforesaid, shall inure to the benefit of the parties and their respective successors and permitted assigns.
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Section 17. Entire Agreement and Waiver.
Employee shall not have the right to sign any waiver or modification of any provisions of this Agreement on behalf of the Company, nor shall any action taken by Employee, as the Secretary or Treasurer of the Company, or otherwise, reduce his obligations under this Agreement.
This Agreement may not be supplemented or rescinded except by instrument in writing signed by all of the parties hereto after the Commencement Date. Neither this Agreement nor any of the rights of any of the parties hereunder may be terminated except as provided herein.
This Agreement shall be governed by and construed, and the rights and obligations of the parties hereto enforced, in accordance with the laws of the State of Nevada.
The Section and Subsection headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above, which shall be deemed to be the Commencement Date.
“The Company”
By: _____________________________
Board Member
“Employee”
By: _____________________________
Xxxxx Xxxxx
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