EXECUTIVE EMPLOYEE AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT ("Agreement") is made and entered into effective as of
January 24, 2007, by and between TECHNOCONCEPTS INC., a Colorado corporation
(the "Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇, an individual ("Employee").
RECITALS
A. The
Company desires to employ Employee upon the terms and subject to the conditions
contained in this Agreement.
B. Employee
desires to be hired and employed by the Company upon the terms and subject
to
the conditions contained in this Agreement.
TERMS
AND CONDITIONS
NOW,
THEREFORE, the parties hereto agree as follows:
Employment.
The
Company hereby agrees to employ Employee, and Employee hereby agrees to be
employed by the Company, upon the terms and subject to the conditions set forth
herein and to the established policies of the Company including (but not limited
to) the Company’s Employee Manual. Employee shall serve the Company as its
CHIEF
OPERATING OFFICER, with authority regarding the management and supervision
of
the Company's affairs commensurate with his position, subject at all times
to
the Bylaws of the Company and the direction and control of the Company's Board
of Directors and officers senior to Employee. Employee agrees to perform
Employee's duties hereunder as a full-time employee in an efficient, faithful
and businesslike manner and shall conduct himself/herself at all times during
the term of this Agreement in a manner which does not damage or otherwise
adversely reflect upon the business reputation and integrity of the Company.
Term
and Termination.
2.1
Term.
Subject
to the provisions of Section 2.2 hereof, the term of this Agreement shall
commence as of January 24, 2007 (“Commencement Date”) and shall thereafter be
terminable "at will" by either party to this Agreement.
2.2
Other
Termination.
Notwithstanding the provisions of Section 2.1 hereof, this Agreement shall
also
terminate and cease: (i) as of the date that Employee dies, or (ii) as of the
date that Employee becomes unable or unwilling to perform Employee's duties
under this Agreement for a continuous period of at least 90 days or 90 days
within any 180-day period by reason of any medically determinable physical
or
mental impairment.
Annual
Salary.
The
Company agrees to pay Employee $5,538.46 upon execution of this Agreement and
then a base salary of $13,333.33 per month, for a projected annual compensation
of $160,000, for the services to be rendered by Employee hereunder. Employee's
salary shall be payable in accordance with the Company's established payroll
policy, subject to customary withholding and employment taxes; provided,
however, that the Company's duties and obligations under this Section 3 shall
immediately cease on and as of the date that this Agreement is terminated
pursuant to Section 2 hereof. Notwithstanding the foregoing, the Company agrees
to pay Employee any accrued but unpaid salary through the date that this
Agreement is terminated. Employee's salary may be adjusted from time to time
in
the sole discretion of the Company.
4.
Bonuses.
In
addition to Employee's annual base salary, Employee shall be eligible for an
annual discretionary bonus, in a range from zero (0) up to 25% of his base
salary. The amount of the annual discretionary bonus is, if any, in the sole
discretion of the Board of Directors and shall be based upon the Employee's
personal performance during the calendar year, including the following factors:
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Schedule
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Establish
a Realistic budget and conformance to the
budget.
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Profitability
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Staff
Performance
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Investor
Relations
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Infrastructure
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Technical
Support
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Application
Engineering Support
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Technical
documentation preparation and maintenance of those
documents
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5.
Employment
Benefits.
5.1 Benefit
Plan.
Thirty
(30) days after the Commencement Date of this Agreement, Employee shall be
entitled to participate, subject to any rules and conditions and applicable
laws
and regulations, in any medical, dental, life insurance, disability insurance,
pension and/or 401(k) plan established and operated by the Company, for the
benefit of senior executives of the Company and their dependents. Any such
plan
may be changed from time to time in the sole discretion of the Company.
5.2 Paid
Time Off.
During
the term of Employee's employment hereunder, Employee shall be entitled to
fourteen (14) days annually of paid vacation and six (6) days of sick leave
in
accordance with the Company's then vacation and sick days policies, practices
and procedures. The fourteen (14) days of paid vacation shall accrue monthly
each year. The maximum number of days of paid vacation which Employee shall
be
entitled to accrue during the term of Employee's employment hereunder shall
be
twenty-eight (28) days. Sick leave may accrue up to eighteen (18) days during
the life of this Agreement, but if not used before the termination of this
Agreement, Employer shall not be obligated to pay Employee for any unused sick
leave.
5.3 Reimbursement
of Expenses.
During
the term of Employee's employment hereunder, Employee shall be promptly
reimbursed by the Company for Employee's reasonable travel, entertainment and
other incidental expenses incurred on business of the Company and also for
Employee’s reasonable medical expenses, in lieu of the Company’s medical benefit
plan, upon the submission by Employee of such vouchers or other proof and when
approved in accordance with the practices now existing at the Company or in
accordance with such practices as may hereafter be changed from time to time
by
the Company.
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6.
Grant
of Options.
Effective as of the Commencement Date, the Company agrees to recommend to the
Board of Directors to grant Employee incentive stock options covering an
aggregate of two hundred thousand (200,000) shares of the common stock of
TechnoConcepts Inc., with a vesting schedule of -
100,000
shares on execution of this agreement;
50,000
on
the first anniversary of this agreement;
50,000
on
the second anniversary of this agreement; -
and
at an
exercise price to be determined and pursuant to the TechnoConcepts 2005 Equity
Incentive Plan, as adopted by the Company’s Board of Directors, and which shall
be considered to be incorporated herein by this reference.
7.
Severance
Benefits.
Effective ninety (90) days after the Commencement Date, in the event that the
Company terminates its employment of Employee pursuant to the provisions of
Section 2.1 hereof for any reason other than For Cause (as defined in Section
7.1 hereof) or Employee terminates Employee's employment with Company for Good
Reason (as defined in Section 7.2 hereof), the Company agrees to pay Employee,
as severance benefits, an amount equal to three (3) times Employee's then
monthly base salary, which amount shall be payable in three (3) equal monthly
installments, commencing one month after the date of said termination and
continuing on the same day of each calendar month thereafter until paid in
full.
Employee shall remain eligible to participate in the Company’s benefit plan
(other than pension and/or 401(k) plan) during the severance
period.
7.1 For
Cause.
For
purposes of this Agreement, the Company shall be deemed to have terminated
Employee's employment with it pursuant to Section 2.1 of this Agreement "For
Cause" if the Company shall have involuntarily terminated Employee's employment
with it because: (i) Employee shall have willfully breached a material term
of
this Agreement; (ii) Employee shall have been repeatedly or have been habitually
intoxicated or under the influence of drugs while on the premises of the Company
or while performing any of the Employee's normal duties or responsibilities
on
behalf of the Company; (iii) Employee shall have been convicted of a violation
of law involving moral turpitude or a felony; (iv) Employee shall have embezzled
any property belonging to the Company or shall have willfully injured the
Company or any of the Company's tangible or intangible property; (v) Employee
shall have engaged in other willful misconduct in the performance of Employee's
normal duties or responsibilities on behalf of the Company, which other willful
misconduct shall have materially and adversely affected the business or
reputation of the Company.
7.2 Resignation
for Good Reason.
For
purposes of this Agreement, Employee may terminate Employee's employment with
the Company for "Good Reason" if Employee shall have terminated Employee's
employment with Company because:
(i) There
is
an assignment by the Company to Employee of any duties inconsistent in any
substantial respect with the position, authority or responsibilities associated
with the Employee's position as set forth herein, but excluding any isolated,
insubstantial or inadvertent action not taken in bad faith by the Company which
was promptly remedied by the Company after receipt of notice by
Employee;
(ii) The
Company relocates the Employee during the first twelve (12) months of this
Agreement to a location which is greater than forty-five (45) miles from the
Company office at which Employee was originally assigned
hereunder;
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(iii) The
Company fails to obtain an agreement from any successor to the Company that
is
satisfactory to Employee to perform the obligations of the Company under this
Agreement;
(iv) The
Company requires the Employee to perform any illegal act; or
(v) The
Company fails to fulfill any of its other material obligations to Employee
under
this Agreement.
8. Confidentiality
and Inventor's Assignment Agreement.
Employee hereby expressly acknowledges that Employee previously or concurrently
executed that certain Confidentiality and Inventor's Assignment Agreement (the
"Confidentiality Agreement") pertaining to the Company. The Company and Employee
hereby agree that the terms of said Confidentiality Agreement are incorporated
herein by this reference as if set forth in full.
9. Indemnification.
If
Employee is made, or is threatened to be made a party to, or is involved in
any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was an Officer of the
Company, or is or was serving at the request of the Company as a Director or
Officer of another company or the Company, or as its representative in a
partnership, joint venture, trust or other enterprise, shall be indemnified
and
held harmless to the fullest extent legally permissible against all expenses,
liability and loss (including attorneys' fees judgments, fines and amounts
paid
or to be paid in settlement) reasonably incurred or suffered by him in
connection therewith. Such right of indemnification shall be a contract right
which may be enforced in any manner desired by such person. The expenses of
Employee incurred in defending a civil or criminal action, suit or proceeding
must be paid by the Company as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking
by
or on behalf of the Employee to repay the amount if it is ultimately determined
by a court of competent jurisdiction that he is not entitled to be indemnified
by the Company. Such right of indemnification shall not be exclusive of any
other right which Employee may have or hereafter acquire, and, without limiting
the generality of such statement, Employee shall be entitled to any rights
of
indemnification under any by-law, agreement, vote of Stockholders, provision
of
law, or otherwise, that may be in addition to the rights under this Agreement.
The application of this provision shall, however, be limited by applicable
provisions in the Employer’s Articles of Incorporation and the bylaws, which the
Employer’s Stockholders and/or Board of Directors may adopt from time to time
with respect to indemnification. To the extent authorized by law, the Employer’s
Articles of Incorporation and/or bylaw, the indemnification provided in this
Article shall continue as to Employee even after he has ceased to be an Employee
and shall inure to the benefit of the heirs, executors and administrators of
such person.
10. General
Provisions.
10.1 Entire
Agreement; Amendment.
This
Agreement and the Confidentiality Agreement contain the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersede any and all prior and contemporaneous written or oral negotiations
and
agreements between them regarding the subject matter hereof. This Agreement
may
be amended only in a writing signed by both of the parties.
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10.2 Notices.
All
notices or other written communications required or permitted to be given by
this Agreement shall be deemed given when personally delivered or when sent
by
United States registered or certified mail, postage prepaid, properly addressed
to the party to receive the notice at the following address or at such other
addresses as the parties will from time to time designate in like manner to
the
other party:
If
to the
Company:
TECHNOCONCEPTS
INC.
Attn.
Chief Financial Officer
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Phone:
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Fax:
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If
to
Employee:
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Phone:
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Fax:
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10.3 Severability.
If any
provision or part of any provision of this Agreement is determined to be invalid
or unenforceable, the provision or part thereof shall be deemed to be severable
from the remainder of this Agreement and shall not cause the invalidity or
unenforceability of the remainder of this Agreement.
10.4 Assignment.
The
parties acknowledge that this Agreement constitutes a personal contract with
Employee. Employee may not transfer, assign or delegate any of his rights,
duties or obligations hereunder without the prior written consent of the
Company. Subject to the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their heirs, personal
representatives, successors and assigns.
10.5
No
Implied Waivers.
The
failure of either party at any time to require performance by the other party
of
any provision hereof shall not affect in any way the right to require such
performance at any later time nor shall the waiver by either party of a breach
of any provision hereof be taken or held to be a waiver of such
provision.
10.6 Disputes.
Except
as provided in Section 13 of the Confidentiality Agreement, the parties agree
that any and all disputes, claims or controversies arising out of or relating
to
the Executive's employment by the Company shall be submitted to JAMS/Endispute
or a similar dispute resolution service (as may be agreed by the parties),
for
mediation, and if the matter is not resolved through mediation, then it shall
be
submitted to JAMS/Endispute, or its successor, for final and binding
arbitration.
(a) Mediation.
Either
party may commence mediation by providing to JAMS/Endispute and the other party
a written request for mediation, setting forth the subject of the dispute and
the relief requested. The mediation will be conducted in accordance with the
provisions of JAMS/Endispute's "Employment Mediation/Arbitration Rules" in
effect at the time of filing of the demand for arbitration. The parties will
cooperate with JAMS/Endispute and with one another in selecting a mediator
from
JAMS/Endispute's panel of neutrals, and in scheduling the mediation proceedings.
The parties covenant that they will participate in the mediation in good faith,
and that they will share equally in its costs. All offers, promises, conduct
and
statements, whether oral or written, made in the course of the mediation by
any
of the parties, their agents, employees, experts and attorneys, and by the
mediator or any JAMS/Endispute employees, are confidential, privileged and
inadmissible for any purpose, including impeachment, in any arbitration or
other
proceeding involving the parties, provided that evidence that is otherwise
admissible or discoverable shall not be rendered inadmissible or
non-discoverable as a result of its use in the mediation.
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(b) Arbitration.
Either
party may initiate arbitration with respect to the matters submitted to
mediation by filing a written demand for arbitration at any time following
the
initial mediation session or 45 days after the date of filing the written
request for mediation, whichever occurs first. The mediation may continue after
the commencement of arbitration if the parties so desire. Unless otherwise
agreed by the parties, the mediator shall be disqualified from serving as
arbitrator in the case. The parties will cooperate with JAMS/Endispute and
with
one another in selecting an arbitrator from JAMS/Endispute's panel of neutrals,
and in scheduling the arbitration proceedings. The parties covenant that they
will participate in the arbitration in good faith. The Company shall bear the
fees and costs of the arbitration proceeding, but each party shall bear its
own
attorneys' fees. Both parties are entitled to be represented by counsel at
the
arbitration hearing and the rights and remedies otherwise available to the
parties, if established, under applicable federal, state or local law, shall
remain available in the arbitration proceeding. The provisions of this Section
may be enforced by any Court of competent jurisdiction, and the party seeking
enforcement shall be entitled to an award of all costs, fees and expenses,
including attorneys fees, to be paid by the party against whom enforcement
is
ordered.
(c) Waiver
of Right to Litigate in Court.
By
agreeing to have all disputes, claims or controversies arising out of or
relating to Employee's employment resolved through the arbitration, Employee
acknowledges his understanding that he is giving up any rights he might possess
to have those matters litigated in a court or jury trial, including the right
to
judicial discovery and appeal except to the extent that they are specifically
required by law. Employee acknowledges his understanding that if he refuses
to
submit a claim to arbitration after agreeing to this provision, he may be
compelled to arbitrate under federal or state law. Employee represents that
he
has read and understood the foregoing and agrees to submission of all disputes,
claims or controversies arising out of or relating to this Agreement to neutral
arbitration in accordance with this Section. Employee acknowledges and
represents that his agreement to this arbitration provision is
voluntary.
10.7 Attorneys'
Fees.
If any
legal action or any arbitration or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any provision of this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs incurred in that action or proceeding, in
addition to any other relief to which such party may be entitled.
10.8 Governing
Law.
This
Agreement has been entered into in the State of California and all questions
with respect to the construction of this Agreement and the rights and
liabilities of the parties shall be governed by and construed and interpreted
in
accordance with the laws of the State of California.
10.9 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
10.10 Captions.
The
captions of the sections and subsections of this Agreement are included for
reference purposes only and are not intended to be a part of this Agreement
or
in any way to define, limit or describe the scope or intent of the particular
provision to which they refer.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of
the date first above mentioned.
| "Company" | "Employee" | ||
| TECHNOCONCEPTS INC. | ▇▇▇▇▇▇▇ ▇▇▇▇ | ||
| /s/ | /s/ | ||
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO |
▇▇▇▇▇▇▇ ▇▇▇▇, an individual |
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