EXHIBIT 10.5
EMPLOYMENT AGREEMENT
AGREEMENT made this 13th day of April, 2008 by and between ADVANCED
TECHNOLOGIES GROUP, LTD (THE "COMPANY") AND XXXX XXXXXX (THE "EMPLOYEE").
1. EMPLOYMENT
The Company agrees to employ the Employee during the Term specified in
section 2 in the capacity of PRESIDENT and the Employee accepts such employment,
subject to the terms and conditions in this Agreement. The Employee's primary
responsibilities shall include Mergers and Acquisitions, Sales and Marketing as
well as Director of Software Development of the Company.
2. TERM
The Employee's employment by the Company pursuant to this Agreement shall
be for a term commencing on the date hereof and continuing for a period of three
(3) years (the "Term"), unless sooner terminated by the Company pursuant to
section 4 below or by the Employee on thirty- (30) days written notice to the
Company.
3. COMPENSATION
(A) BASE SALARY. As compensation for his services, during the Term, the
Company shall pay the Employee an annualized base salary equal to $ 250,000. The
salary shall be less applicable withholding taxes and deductions, in accordance
with the Company's normal payroll practices. Notwithstanding any of the
foregoing, Employee shall be paid a Base Salary (calculated retroactively
beginning from April 13, 2002) only after the Company has begun receiving profit
distributions from its 25% share ownership in FX Direct Dealer, LLC.
(B) BONUS. Additionally, the Company may determine, in its sole discretion,
to pay the Employee an annual bonus, not to exceed Thirty Percent (30%) of the
Base Salary, based upon the Company's assessment of the Employee's performance
over the previous year and available funds.
(C) EXPENSES. The Company agrees to pay or to reimburse the Employee for
all reasonable, ordinary, necessary and documented business expenses incurred
during the Term in the performance of his services hereunder in accordance with
the policy of the Company as from time to time in effect as determined by the
Company in its sole discretion. The Employee shall provide to the Company any
and all statements, bills or receipts evidencing the travel or out-of-pocket
expenses for which the Employee seeks payment or reimbursement, and any other
information or materials, as the Company may from time to time reasonably
require.
(D) BENEFITS. Employee acknowledges that he will be entitled to health and
life insurance benefits and any other benefits in connection with his employment
set forth in this Agreement or as otherwise determined by the Company in its
sole discretion.
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(E) VACATION. The Employee shall be entitled to up to three (3) weeks of
vacation in accordance with the Company's policy, to be taken at such times as
shall not, materially interfere with the Employee's fulfillment of his duties
hereunder.
4. TERMINATION FOR CAUSE
The Company may terminate this Agreement for: (1) Conviction of a felony or
any act of involving moral turpitude; (2) Commission of any act of theft, fraud,
dishonesty or falsification of any employment record; (3) Material breach of
this Agreement by Employee, which breach is not cured within 30 days of written
notice from Company; and/or (4) Improper disclosure of the Company's
confidential information. In the event of termination of this Agreement by
Company, which is not for cause, Employee will receive a payment equal to three
(3) times the Base Salary.
5. RESTRICTIVE COVENANTS
As a condition of employment, Employee agrees to sign a Non-Disclosure,
NonSolicitation, and Works for Hire Agreement, a copy of which is attached as
Appendix A. By executing this Agreement, Employee agrees to abide by the terms
and conditions of the enclosed Non-Disclosure, Non-Solicitation, and Works for
Hire Agreement.
6. MODIFICATION
This Agreement may not be orally canceled, changed, modified or amended,
and no cancellation, change, modification or amendment shall be effective or
binding, unless in writing and signed by the parties to this Agreement.
7. WITHHOLDINGS
The Company may withhold (from any compensation or benefits payable
hereunder to Employee) from any amounts payable under this Agreement such
federal, state or local taxes as shall be required or appropriate to be withheld
in the reasonable judgment of the Company to comply with any applicable law or
regulation.
8. APPLICABLE LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
and to be performed therein. Each of the parties hereto hereby irrevocably and
unconditionally submits to the exclusive jurisdiction of any court of the State
of New York, County of New York or any federal court sitting in the State of New
York, County of New York for purposes of any suit, action or other proceeding
arising out of this Agreement (and agrees not to commence any action, suit or
proceedings relating hereto except in such courts). Each of the parties hereto
agrees that service of any process, summons, notice or document by U.S.
registered mail at its address set forth herein shall be effective service of
process for any action, suit or proceeding brought against it in any such court.
Each of the parties hereto hereby irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement, which is brought by or against it, in the courts of the State
of New York or any federal court sitting in the State of New York and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
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in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
9. NOTICES
Any notice, request, demand, statement, authorization, approval, consent or
acceptance made hereunder shall be in writing and shall be hand delivered or
sent by Federal Express or other reputable courier service, or by registered or
certified mail, postage prepaid with return receipt requested, and shall be
deemed given (i) upon delivery, if delivered in person, (ii) one (1) business
day after being deposited with Federal Express or any other reputable overnight
courier service, or (iii) three (3) business days after being postmarked and
addressed as follows if sent by registered or certified mail, return receipt
requested, addressed as follows:
If to the Company:
Advanced Technologies Group, Ltd.
# 000 Xxxxxx Xxx., Xxxxx 000
Xxxxxx Xxxx, XX 00000
If to Employee:
Xx. Xxxx Xxxxxx
10. COUNTERPARTS
This Agreement may be executed in two counterparts, each of which shall be
deemed an original, but both of which taken together shall constitute one
instrument.
11. SEVERABILITY
If any provision of this Agreement, or part thereof, is held to be
unenforceable, the remainder of such provision and this Agreement, as the case
may be, shall nevertheless remain in full force and effect.
12. AGREEMENT AND REPRESENTATION
This Agreement contains the entire agreement and understanding between the
Company and Employee with respect to the subject matter hereof. This Agreement
supersedes any prior agreement between the parties relating to the subject
matter hereof.
13. ASSIGNMENT
This Agreement shall inure to the benefit of, and be binding upon, the
Company and its successors and assigns, including, without limitation, any
corporation, entity or person which may acquire all or substantially all of the
Company's assets or business, or with or into which the Company may be
consolidated or merged. This Agreement shall also inure to the benefit of, and
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be enforceable by, the Employee and his personal or legal representatives,
executors, administrators, successors, heirs, distributees, divisees and
legatees provided that Employee may not assign his rights or delegate his duties
hereunder to any third party.
14. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Company and the
Employee with respect to the employment of the Employee by the Company, and all
prior agreements, plans and arrangements relating to the employment of the
Employee by the Company are nullified and superseded hereby.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
Accepted and Agreed to by:
/s/ Xxxx Xxxxxxx CEO April 13, 2008
Name Title Date
Accepted and Agreed to by:
Xxxx Xxxxxx - President
April 13, 2008
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APPENDIX A
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
In consideration of your employment with ADVANCED TECHNOLOGIES GROUP, LTD.
(The "Company") and for other good and valuable consideration, receipt of which
is hereby acknowledged, you agree as follows:
1. In the course of your employment with the Company, you will acquire and
have access to confidential or proprietary information about Company and/or its
clients and/or customers, including but not limited to, trade secrets, methods,
models, passwords, access to computer files, financial information and records,
computer software programs, agreements and/or contracts between Company and its
clients and/or customers, Company's client contacts, Company's editorial,
marketing, advertising and/or creative policies, practices, concepts,
strategies, and methods of operations, financial or business projections, and
information about or received from clients and other companies with which
Company does business. The foregoing shall be collectively referred to as
"confidential information."
2. You are aware that the confidential information is not readily available
to the public. You agree that during your employment and thereafter, you will
keep confidential and not disclose the confidential information to anyone or use
it for your own benefit or for the benefit of others, except in performing your
duties as our employee or agent. You agree that this restriction shall apply
whether or not any such information is marked "confidential."
3. You hereby assign to the Company, or its designee, all your right, title
and interest in and to any and all materials, including without limitation, all
original works of authorship, developments, concepts, improvements, formulas,
algorithms, software, technology applications or trade secrets, which you may
solely or jointly conceive or develop-to reduce to practice, or cause to be
conceived or developed, during your services rendered to the Company and which
(i) relate to the Company's business, (ii) result from any work performed for
the Company, or (iii) result from any use of the Company's equipment, supplies,
facilities or confidential information (collectively referred to as the
"Works"). You further acknowledge that all Works that are protectable are "works
made for hire" as that term is defined in the United States Copyright Act. If
for any reason any portion of the Works does not qualify as works made for hire,
then you hereby transfer and assign to the Company all right, title and interest
in and to the Works.
4. You agree to assist the Company, or its designee, at Company expense, in
every proper way, to secure the Company's rights in the Works and any
intellectual property rights relating thereto, including the disclosure to the
Company of all pertinent information and data with respect thereto, the
execution of all applications, assignments and all other instruments that the
Company shall deem necessary in order to apply for and obtain such rights.
5. All memoranda, disks, files, notes, records or other documents, whether
in electronic form or hard copy (collectively, the "material") compiled by you
or made available to you during your employment (whether or not the material
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contains confidential information) are the property of Company and shall be
delivered to the Company on the termination of your employment or at any other
time upon request. Except in connection with your employment, you agree that you
will not make or retain copies of the material.
6. You agree that your position with the Company requires the performance
of services which are special, unique, extraordinary and of an intellectual
character and places you in a position of confidence and trust with the clients
and employees of the Company. You further acknowledge that the rendering of
services to the Company's clients necessarily requires the disclosure of
confidential information and trade secrets of Company. You agree that in the
course of your employment with the Company, you will develop a personal
acquaintanceship and relationship with the clients of the Company and knowledge
of those client's affairs and requirements. Consequently, you agree that it is
reasonable and necessary for the protection of the good will and business of the
Company that you make the covenants contained herein.
Accordingly, you agree that while you are in the Company's employ and for the
one-year period after termination of your employment, for any reason whatsoever,
you shall not, except on behalf of the Company:
(a) attempt in any manner to solicit from any client business of the
type performed by the Company or to persuade any client to cease to do business
or to reduce the amount of business which any such client has customarily done
or contemplates doing with the Company, whether or not the relationship between
the Company and such client was originally established in whole or in part
through your efforts;
(b) employ as an employee or retain as a consultant any person who is
then, or at any time during the preceding six months was, an employee or
exclusive consultant to the Company, or to persuade or attempt to persuade any
employee of or exclusive consultant to the Company to leave the employ of the
Company or to become employed as an employee or retained as a consultant by
anyone other than the Company; or
(c) render to or for any client any services of the type rendered by
the Company.
As used in this paragraph 6, the term "Company" shall include all
subsidiaries of the Company, and the term "client" shall mean, as applicable,
(A) anyone who is a client of the Company at the time your employment is
terminated, or, if your employment shall not have terminated, at the time of the
alleged prohibited conduct (any such applicable date being called the
"Determination Date"); (B) anyone who was a client of the Company at any time
during the one year period immediately preceding the Determination Date; (C) any
prospective client to whom the Company had made a new business presentation (or
similar offering of services) at any time during the one year period immediately
preceding the Determination Date; provided that you were involved in such new
business presentation or similar offering of services. For purposes of this
clause, it is agreed that a general mailing or an incidental contact shall not
be deemed a "new business presentation or similar offering of services" or a
"discussion".
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In addition, if the client is part of a group of companies which
conducts business through more than one entity, division or operating unit,
whether or not separately incorporated (a "Client Group"), the term "client" as
used herein shall also include each entity, division and operating unit of the
Client Group where the same management group of the Client Group has the
decision making authority or significant influence with respect to contracting
for services of the type rendered by the Company.
7. You agree that the type and periods of restrictions contained in this
agreement are reasonably required for the protection of the Company. You further
agree that upon any breach of this agreement the Company will, in addition to
all other available remedies, be entitled to injunctive relief without having to
post bond or other security and without having to prove the inadequacy of the
available remedies at law.
8. If any provision of this agreement, or any part thereof, is found to
be invalid or unenforceable, the same shall not affect the remaining provisions,
which shall be given full effect, without regard to the invalid portions.
Moreover, if any one or more of the provisions contained in this agreement shall
be held to be excessively broad as to duration, scope, activity or subject, such
provisions shall be construed by limiting and reducing them so as to be
enforceable to the maximum extent with applicable law.
9. You agree that this agreement shall survive the termination of your
employment with the Company.
10. This agreement supersedes all agreements concerning the subject
matter hereof.
11. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
and to be performed therein. You hereby irrevocably and unconditionally submit
to the exclusive jurisdiction of any court of the State of New York, County of
New York or any federal court sitting in the State of New York, County of New
York for purposes of any suit, action or other proceeding arising out of this
Agreement (and agrees not to commence any action, suitor proceedings relating
hereto except in such courts). You agree that service of any process, summons,
notice or document by U.S. registered mail at your address set forth in your
employment agreement with the Company shall be effective service of process for
any action, suit or proceeding brought against it in any such court. You hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement, which is brought
by or against it, in the courts of the State of New York or any federal court
sitting in the State of New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
AGREED TO AND ACCEPTED:
Signature /s/ Xxxx Xxxxxx
Date: April 13, 2008 Print Name: Xxxx Xxxxxx
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