EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 30th day of
September, 2003 by and between SIONIX CORPORATION ("Employer"), and XXXXX X.
XXXXX ("Employee").
A. Employee has been employed by Employer since 1998;
B. Employer desires to be assured of the continued association and
services of Employee in order to take advantage of his experience, knowledge and
abilities in Employer's business and is willing to continue to employ Employee,
and Employee desires to continue to be so employed, on the terms and conditions
set forth in this Agreement;
ACCORDINGLY, in consideration of the foregoing and the mutual covenants
set forth below, the parties agree as follows:
1. TERM
1.1 The term of this Agreement shall commence on October 1, 2003 and
continue until September 30, 2008, and monthly thereafter, unless sooner
terminated as hereinafter provided.
1.2 This employment may be terminated immediately, without advance
notice, if, during the term of employment (a) Employee shall be convicted of a
crime involving dishonesty in connection with Employer's business; (b) an
uncured material breach of any term of this Agreement, provided that any breach
which can be cured is not promptly corrected after reasonable notice thereof; or
(c) Employee is convicted of any felony involving moral turpitude.
2. SERVICES TO BE PERFORMED BY EMPLOYEE
2.1 Employee shall serve as President and Chief Executive Officer of
Employer and shall perform the duties and responsibilities specified for said
position in the By-Laws of the Employer, and such other duties and
responsibilities as are usually and customarily performed by the President and
Chief Executive Officer of a corporation. Employer and Employee contemplate
that, during the term of this Agreement, Employer intends to hire a new
President and Chief Executive Officer, and that in such event Employee shall
step down from such positions and become Chief Operating Officer with
responsibility for manufacturing operations, subject to the other terms and
conditions of this Employment Agreement. Employee shall work at the direction of
and under the supervision of Employer's Board of Directors. Employee shall
perform such duties and acts commensurate with his position, skills and
experience as may be reasonably required by Employer's Board of Directors in
connection with any aspect of Employer's business.
3. COMPENSATION
3.1 Employee, during the term of employment pursuant to this Agreement,
shall be compensated pursuant to the Schedule attached hereto as Exhibit "A" and
by reference made a part hereof.
3.2 Employee shall be entitled to all fringe benefits offered generally
to employees of Employer, including without limitation, participation in any
qualified pension, profit-sharing, salary continuation, disability insurance,
hospitalization insurance, major medical insurance, medical reimbursement or
life insurance plan or any other benefit plan established by Employee subject to
the rules and regulations in effect regarding participation in such benefit
plans.
3.3 Employee shall be entitled to such business days of vacation and
such business days of sick leave each year without, reduction in compensation,
as shall be reasonably determined from time to time by the Employer's Board of
Directors; provided, however, that Employee shall be entitled to at least 40
business days of vacation and up to ten business days of sick leave each year.
3.4 Employee shall be entitled to the following holidays and any
additional days as determined by the Board of Directors:
i. New Years Eve and New Years Day.
ii. Memorial Day.
iii. Fourth of July.
iv. Labor Day.
v. Thanksgiving Day and Friday after.
vi. Christmas Eve and Christmas Day.
vii. One Floating Holiday
4. OBLIGATIONS OF EMPLOYEE
4.1 Employee agrees to devote his full business time, attention,
knowledge and skill as necessary to carry out the purposes and intent of this
Employment Agreement. Notwithstanding the foregoing, Employee shall not be
deemed to be in violation of this Section 4.1 if he engages in passive
investment in any corporation, sole proprietorship, partnership or other entity
not involved in a competing business with Employer.
4.2 Employee agrees to perform the above described services at
Employer's place of business and at such other job locations as may be necessary
to satisfactorily perform Employee's duties and obligations hereunder.
-2-
4.3 Employee shall not assign this Agreement nor any duties or
obligations under this Agreement to any other person or entity.
4.4 Employee shall maintain, in good and legible condition, all
materials, supplies and other property provided to Employee by Employer. These
materials shall, however, remain the property of Employer.
5. OBLIGATIONS OF EMPLOYER
5.1 Employer agrees to make the payments due Employee as specified in
this Agreement, in a timely fashion, and without offset or deduction (or other
than employee withholding).
5.2 Employer agrees to provide Employee with adequate space,
administrative support, personnel, and equipment to perform Employee's duties.
5.3 With the exception of injuries, losses, and damages attributed
solely to the gross negligence or willful misconduct of Employee, Employer shall
fully indemnify, defend (with counsel reasonably acceptable to Employee) and
hold harmless Employee, his heirs, successors and assigns from and against all
claims, loss, liability, damage or expense (including, without limitation,
attorneys fees, court costs, investigative fees and expert witness fees) arising
from or relating, either directly or indirectly, to the Employer and/or its
business, whether occurring or accruing prior to or after the effective date
hereof. Employer's obligation to indemnify, defend and hold Employee harmless
shall survive the termination of this Agreement.
6. TERMINATION OF AGREEMENT
6.1 After the initial term of this Agreement, the employment provided in
this Agreement shall terminate at the will of Employer or Employee, without
cause, upon thirty (30) days written notice by the terminating party to the
other party. This Agreement may be terminated immediately, upon written or oral
notice by the terminating party, for cause, as provided in this Agreement.
6.2 This Agreement shall terminate automatically on the occurrence of
any of the following events:
A. Mutual agreement of both parties.
B. At the election of either party, upon the bankruptcy or
insolvency of either party.
C. Death of Employee.
-3-
D. At the election of either party, upon the disability of
Employee, which renders Employee, in the opinion of Employee's treating medical
practitioner, unable to substantially perform Employee's duties under this
Agreement, for a period of six consecutive months. The right to terminate the
employment pursuant to this Paragraph 6.2 shall accrue only after Employee has
been disabled for such six consecutive months.
7. TRADE SECRETS, CONFIDENTIAL INFORMATION AND NONSOLICITATION
7.1 During the term of his employment, Employee will have access to, and
become familiar with, various trade secrets and proprietary and confidential
information of the Employer ("Confidential Information"), including customer
names or lists, pricing structures, customer order or preference information,
marketing and strategic plans, financial information, training manuals,
operating manuals and sales techniques. Employee acknowledges that the
Employer's business requires strict confidentiality and secrecy in connection
with its practices, procedures, and methods of operation. Employee further
acknowledges that information of this nature is confidential and is owned, and
shall continue to be owned, exclusively by the Employer. During the Employment
Period and for three years after employment terminates, except as reasonably
necessary to perform his duties and responsibilities as an employee of the
Employer, Employee shall not use the Confidential Information for any purpose or
divulge the Confidential Information to any person or entity other than the
Employer, unless the Confidential Information already has become generally known
to the public (except to the extent that such information has become generally
known to the public by means of Employee's breach of this Agreement).
7.2 Except as reasonably necessary to perform his duties and
responsibilities as an employee of the Employer, Employee shall not remove from
the Employer's office any of the Employer's books, records, documents, customer
lists, or any copies (in any form) of documents without the Employer's written
permission. Employee shall not make any copies of these books, records,
documents, or customer lists for use outside of the Employer's office, except as
specifically authorized in writing by the Employer. All such documents and
copies in the possession or control of Employee must be returned to the Employer
by Employee immediately upon the termination of his employment.
7.3 Employee agrees that, during his employment and for a period of one
year immediately following the termination of employment, except to the extent
necessary to carry out his duties and responsibilities as an employee, he will
not, directly or indirectly, for himself or on behalf of any other person or
entity, solicit, divert away, take away or attempt to solicit, divert or take
away, any Customer of the Employer for the purpose of selling or providing to
such Customer, provided the Employer is then still engaged in the sale or
provision of that type of good or service. For purposes of this Agreement, the
term "Customer" means any individual or entity to whom the Employer provided
goods or services and with whom Employee had material contact during the twelve
months prior to the termination of his employment.
-4-
7.4 Employee agrees that he will not, during his employment and for a
period of one year immediately thereafter, solicit or induce, or attempt to
solicit or induce, any employee or contractor of the Employer to terminate his
relationship with the Employer and/or to enter into an employment or agency
relationship with Employee or with any other person or entity with whom Employee
is affiliated in any way.
7.5 Employee acknowledges and agrees that the covenants and promises
contained in this Section 7 are a reasonable and necessary means of protecting
and preserving the Employer's goodwill and its interest in the confidentiality
and/or proprietary value of its trade secrets and confidential information.
Employee further acknowledges that said covenants and promises are a reasonable
and necessary means of protecting the Employer from unfair competition by
Employee. Employee agrees that any breach of these covenants or promises will
leave the Employer with no adequate remedy at law and will cause the Employer to
suffer irreparable damage and injury. Employee further agrees that any breach of
these covenants and promises will entitle the Employer to injunctive relief in
any court of competent jurisdiction without the necessity of posting any bond.
Employee also agrees that any such injunctive relief shall be in addition to any
damages that may be recoverable by the Employer as a result of such breach.
8. GENERAL CONDITIONS
8.1 Cooperation. Each of the parties hereto agree to execute any and all
additional documents, and take all additional actions, deemed reasonably
necessary to give full force and effect to the intent of this Agreement.
8.2 Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors, assigns,
heirs, executors and administrators.
8.3 Interpretation. This Agreement shall be interpreted under and
pursuant to the laws of the State of California.
8.4 Entire Agreement. This Agreement, and any other documents executed
pursuant hereto, contains the entire agreement of the parties hereto, and
supersedes all prior agreements, whether written or oral, with respect to the
subject matters covered hereby, including the Employment Agreement. No oral
representation, agreement, statement or promise made by any party hereto or by
any employee or agent of any party hereto, which is not contained herein, shall
be binding or valid.
8.5 No Continuing Waiver. No waiver of any breach of any of the terms,
conditions and covenants of this Agreement shall be construed as a waiver of any
succeeding breach of the same or other terms, covenants and conditions hereof.
-5-
8.6 Notices. Any notices required or permitted to be given hereunder
shall be in writing and may be given by personal delivery or by certified mail,
return receipt requested, addressed to each party at the address appearing on
the Company's books and records. Any party may, by written notice to another
party, specify a different address for notice purposes.
8.7 Remedies Cumulative. No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other remedies
provided by agreement, at law, or in equity.
8.8 Invalidity in Part. In the event any provision of this Agreement
shall be held to be illegal, unenforceable or inoperative as a matter of law,
the remaining provisions shall remain in full force and effect unless such
construction shall substantially frustrate the purpose and intent of this
Agreement.
8.9 Assignment. This Agreement shall not be assigned, either directly or
indirectly, by any of the parties without the prior written consent of the other
party. Each party agrees to reasonably consent to any request for transfer or
assignment by another party to a revocable "estate planning" type trust in which
the transferring party is a trustor and a principal beneficiary.
8.10 Attorneys Fees. In the event of litigation concerning this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys fees from the other party.
Executed at Irvine, California, effective on the date and year first
above written.
EMPLOYER:
SIONIX CORPORATION
BY: /s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx, President
BY: /s/ Xxxxxx X. XxXxxx
--------------------
Xxxxxx X. XxXxxx, Chief Financial Officer
EMPLOYEE:
/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
-6-
EXHIBIT "A"
SCHEDULE OF COMPENSATION
Employee shall receive compensation, during the term of this Agreement,
and during any extensions or renewals of this Agreement, as follows, or as
hereafter mutually agreed between the parties, in writing:
1. BASE COMPENSATION. $11,407.78 per month, payable one-half on the 15th and
one-half on the last day of each month during the term of employment, to be
increased by 8% on October 1, 2004, and annually thereafter.
2. Employee shall receive an automobile allowance of $1,288.65 per month during
the term of this Agreement, and any extensions and renewals hereof. Employee's
automobile allowance shall be increased ten percent (10%) per year.
3. Life insurance on the life of Employee in the amount of $500,000.00.
4. Disability insurance providing disability benefits to Employee in an amount
equal to 50% of Employee's base salary for a period until Employee reaches age
65 years.
EMPLOYER: /s/Xxxxxx X. XxXxxx
-------------------
EMPLOYEE: /s/ Xxxxx X. Xxxxx
------------------
-7-
