EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of, by and between
Network Installation Corporation, a Nevada corporation, ("Company"), and Xxxxxx
X. Xxxxxxx, an individual ("Employee").
RECITALS
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A. Company is engaged in the business of providing communication
and networking services (the "Business") and has need for personnel with
experience in said Business.
B. Employee is experienced in the Business and in the operation of such
Business.
C. The parties are willing to enter into this Agreement with respect to
Employee's employment
and services upon the terms and conditions hereinafter set forth.
AGREEMENT
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In consideration of the foregoing recitals and the premises herein
contained, the parties agree as follows:
I. TERM
Subject to the provisions of Section IV hereof, Company hereby employs
Employee and Employee hereby accepts employment with Company beginning on
January 19, 2004 (the "Employment Term").
II. DUTIES
SECTION HO General Duties. Employee shall serve as Vice President (VP) of
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Sales & Marketing in our Corporate Headquarters in Irvine, California during the
Employment Term. Employee, during the Employment Term, subject to the policies
and directives of the CEO/President and/or the Board of Directors of Company,
shall be responsible for Sales, Management and other associated duties.
SECTION III Devotion of Time to Company's Business. Employee agrees during
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the Employment Term, to devote his best efforts, and all of his business time
exclusively, to his employment with Company, and to perform such duties as are
specified in Section 2.01 and such other duties consistent with Section 2.01 as
shall be reasonably requested by the CEO/President and/or Board of Directors of
Company. Employee shall not, during Employee's employment, unless otherwise
agreed to in advance and in writing by Company, become self-employed in any
other capacity (other then as agreed to, listed and attached hereto as an
amendment), or engage in any activities that are detrimental to the business of
Company.
III. COMPENSATION AND BENEFITS
As compensation for his services hereunder, during the Employment Term,
Employee shall receive benefits payable in cash at the times and in the
installments consistent with Company's payroll practices.
$108,000.00'Annual Salary (Fixed Compensation.)
$142,000.OO2Commissions/Bonuses (Variable Compensation.)
$250,000.003Total Compensation at 100% of Plan Target.
$600.00 per month Car Allowance.
1 Fixed Compensation (Salary) will be divided evenly into 24 annualized and
prorated payments (based on start date) to be made on or about the 1st and 13th
of each month.
2 Structure of Commission and Bonus Plans to be determined upon arrival and paid
monthly and/or quarterly. Actual, Variable Compensation earned may be more or
less than stated amount, depending on the percentage (%) of total Plan attained
and the structure of the commission and bonus plans.
3 Total Compensation equals minimum total earned at 100% attainment of Plan
Target, including both Fixed and Variable Compensations plans. Actual, Total
Compensation earned may be more or less than stated amount, depending on the
percentage (%) of total Plan attained and the structure of the commission and
bonus plans.
4 Company Benefits plan according to company handbook for "Executive
Management".
IV. TERMINATION
SECTION IV. 1 Termination for Cause. Company may terminate Employee's
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employment under this Agreement, for "cause", due to any of the following acts
or omissions: (a) Employee's breach of any statutory or common law fiduciary
duty or duty of loyalty to Company; (b) Employee's indictment for any felony, or
for any crime or offense causing harm to Company or any of its affiliates, or
involving acts of theft, fraud, misappropriation of funds, embezzlement, moral
turpitude or similar conduct; (c) any proven illegal act which materially and
adversely affects the business of Company or any of its affiliates; or (d)
Employee's breach of any material provision or covenant of this Agreement, or of
any other agreements entered into in connection with this Agreement. If this
Agreement is terminated by Company for cause pursuant to this Section, Company
shall have no further obligation or liability to Employee.
SECTION IV. 2 Termination for Death or Disability. This Agreement and
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Employee's employment hereunder shall terminate automatically upon (1)
Employee's death or (2) the date of determination by the Board of Directors of
Company that Employee has a disability. As used herein, "disability" shall mean
any condition that qualifies as a disability under Company's long-term
disability plan as in effect on the date of determination or which renders
Employee incapable of performing substantially all of Employee's managerial and
Employee services hereunder for ninety (90) consecutive days or more in the
aggregate during any one (1) year period, and which at any time after such
ninety (90) days Company's Board of Directors shall determine continues to
render Employee incapable of performing Employee's managerial and Employee
services hereunder. If this Agreement is terminated because of Employee's death
or disability pursuant to this Section, Company shall have no further obligation
or liability to Employee, other than as stated hereunder.
SECTION IV. 3 No Additional Payments. Upon termination of Employee's
employment hereunder, Employee shall not be entitled to any severance payments
or severance benefits from Company (other then those agreed to, outlined and
attached hereto as an amendment), or any payments by Company on account of any
claim for wrongful termination, including but not limited to claims under any
federal, state or local human and civil rights or labor laws, except for any
benefits which may be due to Employee in the normal course under any employee
benefit plan or program of Company which provides for benefits after termination
of employment. Employee's right to receive payments or benefits under this
Agreement upon termination of employment will cease if Employee breaches any
provision of Section V below, other than those already due to employee under the
terms of this Agreement.
V. RESTRICTIVE COVENANTS
SECTION VI Confidential and Proprietary Information. As an employee of
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Company, Employee shall have access to certain Confidential and Proprietary
Information (as defined below) concerning Company and its Affiliates (as defined
below). Employee agrees that he will not, either directly or indirectly,
disclose to any person or use any of Ihe Confidential and Proprietary
Information in any way during the Employment Term (except as required in the
course of the performance of his duties to Company) or after the expiration of
the Employment Term.
For purposes of this Agreement, "Confidential and Proprietary Information"
means any of the following information relating to the business of Company that
is not generally known to competitors, suppliers and customers of Company: (i)
any business or technical information, design, process, procedure, formula,
improvement, or any portion or phase thereof, that is owned by or has, at the
time of determination, been used by Company; (ii) any information related to the
development of products and production processes; (iii) any information
concerning proposed new processes; (iv) any information concerning customer
lists and other customer information, vendor lists and information, price data,
cost data, profit plans, capital plans and proposed or existing marketing
techniques or plans: and (v) any other information which would constitute a
"Trade Secret" under the Uniform Trade Secrets Act as in force and effect in the
State of California.
For purposes of this Agreement, "Affiliate" means any corporation, company,
partnership, joint venture, firm and/or other entity which controls, is
controlled by or is under common control with the person with respect to which
the term "Affiliate" is used. For purposes of this Agreement, "Person" means an
individual, corporation, partnership, limited liability company, trust or
unincorporated organization, or a government or any agency or political
subdivision thereof. "Control" means (a) in the case of corporate entities,
direct or indirect ownership of at least fifty percent (50%) of the stock or
participating shares entitled to vote for the election of directors; and (b) in
the case of non-corporate entities (such as limited liability companies,
partnerships or limited partnerships), either (x) direct or indirect ownership
of at least fifty percent (50%) of the equity interest, or (y) the power to
direct the management and policies of the noncorporate entity.
SECTION V.2 Inventions and Improvements. Employee agrees that he will
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assign to Company, without further consideration, the exclusive rights and title
to all inventions, discoveries, ideas, improvements, and other intellectual
property made or acquired by Employee during the Employment Term, whether alone
or jointly with others. Employee further agrees to execute any and all documents
that are required in order to transfer or assign such property rights to
Company.
SECTION V.3 Equitable Relief. Employee acknowledges and agrees that his
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services are of a special, unique and extraordinary value to Company and its
Affiliates and that damages aione may be an inadequate remedy for any breach of
this Agreement. Accordingly, in the event of the breach by Employee of any of
the provisions of this Agreement, Company may, initiate Arbitration hearings
according to Section Vn.5 hereunder.
SECTION V.4 Hold Harmless. Company shall indemnify and hold Employee
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harmless from and against all liabilities, losses, damages, costs or expenses,
including reasonable legal fees, resulting of any acts, infringements, defaults,
omissions or negligence on the part of, or pertaining to the Company's business,
its products, or its employees, agents or other representatives, and for any
violation of municipal, state, federal or foreign laws or regulations governing
the Company.
VI. MISCELLANEOUS
SECTION VII. 1 Severafailitv. Every provision of this Agreement is intended
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to be severable. If any term or provision hereof is declared by a court of
competent jurisdiction to be illegal or invalid, such illegal or invalid term or
provision shall not affect the balance of the terms and provisions hereof, which
terms and provisions shall remain binding and enforceable.
SECTION VII.2 Notice. Any notice or communication required to be given
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hereunder may be delivered by hand, deposited with an overnight courier, sent by
confirmed facsimile, or mailed by registered or certified mail, if to Company,
to its president at its corporate headquarters, and if to Employee, to his
office. Notice shall be deemed received on the date sent if sent by facsimile or
personal delivery; three days after the date sent if sent by registered or
certified mail; and one day after the day it is sent if sent by overnight
courier.
SECTION VI.3 Entire Agreement: Modification. This Agreement contains the
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entire and complete understanding between the parties concerning its subject
matter and all representations, agreements, arrangements and understandings
between or among the parties, whether oral or written, have been fully merged
herein and are superseded thereby.
SECTION VII.4 Law Governing Agreement. This Agreement shall be governed by
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and construed in accordance with the laws of Orange County in the State of
California.
SECTION VII.5 Arbitration. If a dispute arises relating to the terms and
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provisions of this Agreement or involves any claim for breach of any contract or
covenant (express or implied), tort claims, claims for discrimination
(including, but not limited to race, sex, religion, national origin, age,
handicap or disability), claims for compensation or claims for violations of any
federal, state, foreign or other governmental law, statute, regulation or
ordinance, then either party may initiate arbitration proceedings in accordance
with the Rules of the American Arbitration Association ("AAA"). Arbitration
proceedings shall be held in any Orange County, California office of AAA. Both
parties hereby consent to such arbitration, and any arbitration award shall be
final and binding. Neither party shall disclose the existence of any dispute or
the terms of any arbitration decision to any third party, other than their legal
counsel, accountants, and financial advisors or as required by law.
SECTION VII.6 Representation by Counsel. EMPLOYEE ACKNOWLEDGES THAT HE HAS BEEN
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REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THIS AGREEMENT AND HAS CONSULTED
WITH SUCH LEGAL COUNSEL.
SECTION VII.7 Counterparts. This Agreement may be executed in counterparts,
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all of which taken together will constitute one instrument.
SECTION VII.8 Waiver. Either parry's failure to enforce any provision or
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provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions, nor prevent that party thereafter from
enforcing each and every other provision of this Agreement. The rights granted
both parties herein are cumulative and shall not constitute a waiver of either
party's right to assert all other legal remedies available to it under the
circumstances.
SECTION VII.9 Binding Effect. Except as otherwise provided in this
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Agreement, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, heirs, and assigns. Employee
shall not assign, convey, or otherwise transfer, voluntarily or by operation of
law, to any person or entity, this Agreement or any interest herein without the
prior written consent of Company. Any attempt to do so without such consent
shall be null and void.
IN WITNESS WHEREOF, the parties hereto have duly agreed to and executed
this Agreement and its Amendment as of the date first above written.
"Company": Network Installation Corporation. A Nevada Corporation
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By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: CEO/President
"Employee": Xxxxxx X. Xxxxxxx
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By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
AMENDMENT TO THE EMPLOYMENT AGREEMENT
1.) Other Business Associations. Employee shall be allowed and granted Ihe
right to continue business associations, without restriction, with various other
companies, affiliations and other associations as long as such activities do not
interfere with, compete with, or are not detrimental to the business of the
Company and they do not affect the time, dedication or effort put forth by
Employee for the Company. Employees current business associations, affiliations
and other associations are listed below:
Rock Springs Mineral Processing, Inc.
Addonics Technologies, Inc.
Wine Selling & Auction Business
XxxxxXxxx.xxx
XX Xxxx Associates
The Center for XML and Web Services Technologies at New York University
2.) Severance Award. At one (1) year of employment, Employee shall earn and
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accrue severance payments based on "year-to-year" sales performance relating to
the agreed to annual Company revenue plan. Such payments shall accrue at the
rate of 1-month per year of employment, up to a maximum of 6-monthsseverance.
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Such payments shall accrue yearly based on the total annual compensation (to
such date) earned by Employee. This Severance Award shall only be effective in
the event that Company xxxxxx (terminates) the employment of Employee, for any
reason, other than for a fully validated reason relating to SECTION VI. 1
"Termination for Cause" included hereunder. It shall not apply, if Employee
xxxxxx (resigns) employment, unless otherwise agreed in writing between the
parties.
Annual Period Total Time Accrued
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Year-1 1-Month
Year-2 2-Months
Year-3 3-Months
Year-4 4-Months
Year-5 5-Months
Year-6 & above 6-Months
% Sale Performance to Revenue Plan versus % Severance Compensation Earned
0-79% = 0%. 80-89% = 50%. 90% & up = 100%.
0-79% = 0%. 80-89% = 50%. 90% & up = 100%.
0-79% - 0%. 80-89% = 50%. 90% & up = 100%.
0-79% = 0%. 80-89% = 50%. 90% & up - 100%.
0-79% = 0%. 80-89% = 50%. 90% & up = 100%.
6-Months (maximum) 0-79% = 0%. 80-89% = 50%. 90% & up = 100%.
3.) Stock Options. At the appropriate time and when available from Company,
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Employee shall be offered a Stock Option Plan commensurate to this Position,
Title, and the related responsibilities, importance and contribution it has to
the Company overall.
