exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this 1st
day of January 2003, by and between XxxxXXXXxxxx.xxx, Inc., a
Nevada corporation (the "Company"), and Xxxx Xxxxxxxx, an
individual ("Executive").
RECITALS
A. The Company desires to be assured of the continued
association and services of Executive for the Company.
B. Executive is willing and desires to maintain employment
by the Company, and the Company is willing to maintain employment
of 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 employs Executive as
President.
2. Term. The term of this Agreement shall be for a period
of one (1) year commencing on the date hereof, unless terminated
earlier pursuant to Section 6 below.
3. Compensation.
3.1 Executive Compensation. For all services rendered
by Executive under this Agreement, the Company, in lieu of a
salary, insurance coverage, and other equity compensation (e.g.
car allowance, vacation pay, etc.) shall issue 2,500,000 shares
of common stock of the Company per annum, payable in one
installment. Said compensation shall be delivered on or before
February 15, 2003.
3.2 Compensation Valuation. Shares shall be valued at
fair market value as of the date of the issuance, and
subsequently adjusted to reflect the then current market
valuation as related to the selling restriction of said
securities.
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4. Scope of Duties.
4.1 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.
4.2 General Specification of Duties. Executive's
duties shall include, but not be limited to, the duties and
performance goals as follows:
(1) Act as the President of the Company and perform
all duties, functions and responsibilities generally associated
with the President of the Company;
(2) Execute on behalf of the Company, in his capacity
as President, all documents as requested by the Company;
(3) 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;
(4) Establish procedures for implementing the policies
established by the Company;
(5) Cause Company to be operated in compliance with
all legal requirements; and
(6) Cause to be prepared, as directed by the Company,
financial statements, tax returns and other similar items
respecting the operation of the Company.
The foregoing specifications are not intended as a complete
itemization of the duties that Executive shall perform and
undertake on behalf of the Company in satisfaction of his or her
employment obligations under this Agreement.
4.3 Conflicting Activities.
(1) Executive shall not, during the term of this
Agreement, be engaged in any other business activity 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
passive investments in business entities which are not in
competition with the Company or its affiliates, or from pursuing
business opportunities as permitted by paragraph 4.5(b).
(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
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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
sixty (60) 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, or other investments of a
personal nature.
5. Stock of Company. So long as this Agreement is in
effect, Executive shall be entitled to purchase stock of the
Company in the same amounts and for the same consideration, terms
and conditions as provided to other chief operating officers of
the Company's operating divisions or subsidiaries. The manner of
acquisition of stock shall be structured so as to minimize
adverse tax consequences to Executive.
6. Termination.
6.1 Bases for Termination.
(1) Executive's employment hereunder may be terminated
at any time by mutual agreement of the parties.
(2) Executive's employment may be terminated by the
Company "with out cause" (for any reason or no reason at all) at
any time by giving Executive 60 days prior written notice of
termination, which termination shall be effective on the 60th day
following such notice. If Executive's employment under this
Agreement is so terminated, the Company shall (a) make a lump sum
cash payment to Executive within 10 days after termination of an
amount equal to (i) Executive's Base Salary for the balance of
the year in which termination occurs, (ii) a prorata portion of
the Incentive Bonus, if any, earned for the year in which
termination occurs prorated to the date of termination, plus
(iii) any unreimbursed expenses accruing to the date of
termination; and (b) make a lump sum cash payment equal to
Executive's annual Base Salary, as increased pursuant to Section
3.1, on each anniversary date of this Agreement for the balance
of the term specified in Section 2. For purposes of this
provision, Executive's annual Base Salary and the remaining
portion of the term of the Agreement shall be calculated as of
the termination date. After the Company's termination of
Executive under this provision, the Company shall not be
obligated to provide the benefits to Executive described in
Section 3.1 (except as may be required by law).
(3) Executive may terminate his or her employment
hereunder by giving the Company 60 days prior written notice,
which termination shall be effective on the 60th day following
such notice.
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7. Miscellaneous.
7.1 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.
7.2 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.
7.3 Governing Law. This Agreement is made under and shall
be construed pursuant to the laws of the State of Nevada.
7.4 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.
7.5 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, supersession,
cancellation, or waiver.
7.6 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.
7.7 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.
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7.8 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: 0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
If to Executive: 0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
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.
7.09 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.
7.10 Right of Set-Off. Upon termination or expiration
of this Agreement, the Company shall have the right to set-off
against the amounts due Executive hereunder the amount of any
outstanding loan or advance from the Company to Executive.
7.11 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/ Xxxx Xxxxxxxx /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx Xxxx Xxxxxxxx, Chief Executive Officer
XxxxXXXXxxxx.xxx, Inc.
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