EXHIBIT 10.2 EMPLOYMENT AGREEMENT BETWEEN Xxxxxxxx Digicom AND XXXXXX XXXXXX
THIS AGREEMENT, dated as of October 16, 1998, is entered into between Xxxxxxxx
Digicom, Inc.. whose address is 305 Cadillac Xxxxx 0-000X, Xxxxx Xxxx, XX
00000, hereinafter ("Company"), and Xxxxxx Xxxxxx, whose address is 000
Xxxxxxxx Xxxxxx Xxxxx, Xxxxxx XX 00000 hereinafter ("Executive").
1.Employment
(a) Company hereby employs Executive to serve as Chairman of Xxxxxxxx Digicom,
and to perform, subject to the overriding directions and authority of the board
of trustee(s) of Xxxxxxxx Digicom, the duties and responsibilities commensurate
with such position such employment shall be for the period commencing on
October 16, 1998, (the "Commencement Date"), and ending five years from the
Commencement Date (the "Term") (each year of which Term shall be referred to
hereinafter as a "Term Year"), unless such employment is sooner terminated as
provided in this Agreement. This Executive shall also retain a permanent
position as a Director of Xxxxxxxx Digicom during the life of this
agreement.
(b) Executive hereby accepts employment under this Agreement and agrees to
devote Executive's best efforts and his full time and attention to the business
and affairs of Company, as such business and affairs now exist and as they may
be hereafter changed or augmented, under and pursuant to the general direction
of the Board of directors of Xxxxxxxx Digicom (the "Board"). Company shall
retain full direction and control of the manner, means and methods by which
Executive performs the services for which Executive is employed thereunder and
of the place or places at which such services shall be tendered.
2. Compensation
Executive shall be paid at the yearly rate of $150,000 (US Dollars), payable at
semimonthly intervals during the term of employment and shall be reviewed
annually. Executive shall, in addition to his annual salary, be entitled to an
annual bonus as awarded by the Board of Directors. Bonus shall be based on the
performance of company before taxes and extraordinary items. Executive shall
be awarded 85% of base salary as a annual bonus, based on performance of
company as per approved plan as directed by the Board of Directors. Such bonus
shall be paid within 90 days after the expiration of each Term Year. Bonus may
be award as cash payment or stock or any combination thereof. Executive shall
further be entitled to stock options of 500,000 shares at a purchase price
that shall be the maximum discounted permitted as per the SEC requirements as
per the executed date of this agreement. One fifth (1/5) of such awards
shall be awarded at the signing of this agreement and on the Commencement Date
of each anniversary for this contract duration and all shall be exercisable
for a period of five years thereafter.
(a) Reimbursements.
Executive, shall be entitled to reimbursement for reasonable travel and other
business expenses incurred by Executive in the performance of his duties under
this Agreement in accordance with the general policy of Company, as it may
change from time to time.
(b)Withholding.
Company shall be entitled to withhold from any compensation thereunder such
amounts on account of payroll taxes, income taxes and other similar matters as
are require to be withheld by applicable law.
(c) Insurance.
Company may, at its discretion, secure at its own expense a "key-man" insurance
policy upon the life of Executive, payable to Company in he event of
Executive's death. Executive agrees that any such insurance policy shall be
for Company's benefit only, and acknowledges that no person claiming by or
through Executive shall have any right to the proceeds of such insurance
policy. Executive agrees to execute all documents and take all acts reasonably
requested by Company to secure and enjoy the benefits of such insurance policy.
(d) Vacation.
Executive shall be entitled to four (4) weeks vacation per calendar year.
(e) Benefit Plans.
Executive and designated dependents shall be entitled to participate in
Xxxxxxxx Digicom's health insurance, and life insurance plans and other benefit
plans as may from time to time be adopted for similarly situated employees of
company during the course of his employment. The amount and extent of benefits
to which executive is entitled shall be governed by Xxxxxxxx Digicom's specific
benefit plan and any amendments thereto. Nothing in this Agreement shall
preclude Company or any affiliate of Company from terminating or amending any
employee benefit plan or program at any time or from time to time.
3. Confidentiality
(a) The Executive acknowledges that in the course of his employment he will
acquire information about certain matters and things which are confidential to
Xxxxxxxx Digicom and which information is the exclusive property of Xxxxxxxx
Digicom. Further, the Executive acknowledges that Xxxxxxxx Digicom's business
depends significantly upon the maintenance of trade secrets, technical
innovations and other confidential proprietary information that Xxxxxxxx
Digicom has developed at great expense. The Executive further acknowledges
that Xxxxxxxx Digicom has developed a close and valuable relationship with many
of its customers and suppliers.
(b) Xxxxxxxx Digicom acknowledges that in the course of Executives employment
they will acquire information about certain matters and things which are
confidential to the Executive and which information is the exclusive property
of the Executive. Further, Xxxxxxxx Digicom acknowledges that the Executive's
relationships are confidential proprietary information that the Executive has
developed at great expense. Xxxxxxxx Digicom further acknowledges that the
Executive has developed a close and valuable relationship with many other key
executives and they shall remain the confidential property of the Executive.
(c) In partial consideration for the Executive's employment hereunder, the
Executive and Company in considering those matters set out in subparagraph (a)
hereof, covenants and agrees that he will not, at any time during the term of
his employment by Xxxxxxxx Digicom and for a period of two (2) yews thereafter,
reveal, divulge or make known to any person or entity other than Xxxxxxxx
Digicom and its duly authorized employees) or make use of for his own or any
other's benefit, Xxxxxxxx Digicom's list of customers and suppliers or its
trade secrets, production processes and materials, formulae, research
techniques or accomplishments, markets or marketing plans, present and future,
technical and business information relating to Xxxxxxxx Digicom's services or
products, research and development, potential business ventures, or his
knowledge of any of the other business or financial affairs of Xxxxxxxx
Digicom, or any other information regarded by Xxxxxxxx Digicom as confidential,
which during this employment pursuant hereto is made known to the Executive
(the "Confidential Information"). For greater certainty, Executive and Company
shall maintain in confidence and will not disclose or use, without the prior
express written consent of Executive or Company, any Confidential Information
whether or not it is in written or permanent form, except to the extent
required to perform duties on behalf of Company in Executive's capacity as an
employee. Confidential Information includes, without limitation, any
information, not generally known in the relevant trade or industry, which was
obtained from Company, or any of its affiliates, or which was, discovered,
developed, conceived, originated or prepared by Executive in the scope of his
employment. Upon termination of Executive's employment or at the request of
Company before termination, Executive will deliver to Company all written and
tangible material in his possession incorporating Confidential Information or
otherwise relating to Company's business. These obligations with respect to
Confidential Information extend to information belonging to customers and
suppliers of Company who may have disclosed such information to Executive as
the result of his status as an employee of Xxxxxxxx Digicom.
4. Executive's Business Activities.
(a) Executive shall devote such professional time, attention and energy as
required by the business and affairs of Company, as its business and affairs
now exist and as they hereafter may be changed. Executive shall not, during
the term of this agreement, engage in any other business activity in the
related industry without disclosure.
(b) Executive agrees that, at no time during the term of his employment with
Xxxxxxxx Digicom he will not (without the prior written consent of Xxxxxxxx
Digicom) directly or indirectly, in any manner whatsoever, including, without
limitation, enter into the employment of or render services to or either
individually or in partnership or jointly or in conjunction with any other
Person, as principal, agent, shareholder, employee or in any other manner
whatsoever, carry on or be engaged in the same or substantially similar
business which may be carried on by Xxxxxxxx Digicom or any business
competitive with the business now carried on by Xxxxxxxx Digicom (a
"Competitive Business,"), or be concerned with or interested in or lend money
to, guarantee the debt or obligations of or permit his name or any part thereof
to be used by any person, persons, firm, association, syndicates company Or
corporation engaged or concerned with or interest in a Competitive Business.
Xxxxxxxx Digicom does acknowledge that his relationships that are disclosed in
the agreement are exempt for this article.
5. Interference with Company's Business
(a) During the term hereof, or at any time thereafter, Executive shall riot,
directly or indirectly, employ, solicit for employment, or advise or recommend
to any other person that such other person employ or solicit for employment,
any person employed (whether as a consultant, employee, agent or otherwise) by
Company in a Competitive Business of Xxxxxxxx Digicom.
(b) Executive will not at any time during the term of his employment with
Xxxxxxxx Digicom or at any time thereafter for himself, or on behalf of any
other Person, divulge any name or names of any or all of the customers of
Xxxxxxxx Digicom or knowing solicit, interfere with or attempt to entice away
from Xxxxxxxx Digicom in any manner whatsoever, any customer or supplier or any
Person in the habit of dealing with Xxxxxxxx Digicom or known by him to be
about to deal with Xxxxxxxx Digicom.
6. Termination of Employment by Company.
(a) Notwithstanding anything here into the contrary, Company may terminate
Executive's employment hereunder for cause at any time. Sufficient "cause" for
termination of Executive's employment hereunder shall include, but is not
limited to Executive's violation of any provision of this Agreement,
Executive's conviction for any criminal violation other than minor traffic
violations, or in the event Executive is guilty of misconduct or neglect or
dereliction of his duties hereunder, or for any course which would entitle
Company at law to terminate the employment of Executive. Upon said
termination, Company shall be under no obligation to Executive, except to pay
Executive's accrued salary and stock to the date of termination, plus one year
of salary. Upon said termination, Company shall be under no further obligation
to the Executive, except for the obligations set forth in Xxxxxxxxxx 0, 0 xxx 0
xxxxxx.
(x) Notwithstanding anything herein to the contrary, Executive may terminate
his employment hereunder at any time in the event that Xxxxxxxx Digicom
violates any provision of this Agreement, Upon said termination, Executive
shall be under no further obligation to Xxxxxxxx Digicom, except for the
obligations set forth in Paragraphs 3, 4 and 5 hereof.
7. Disability
If Executive shall be prevented during the period of employment hereunder from
properly performing services hereunder by reason of illness or other physical
or mental incapacity for a period of more than 30 consecutive days in any 60
day period, then Executive's salary shall be paid up through the last day of
the year in which the thirtieth (30th) consecutive day of incapacity occurs,
and thereafter Company's obligations hereunder shall cease and terminate. If
Executive becomes disabled and unable to perform the Executive's duties during
the term of this Agreement, Executive will be eligible to participate in the
disability plans or programs applicable to employees of Company, if any.
8. Death of Executive
(a) In the event of the death of Executive during the period of his employment
hereunder, Executive's shall be paid up through the end of this contact in the
30 days in which the date of death occurs, and thereafter Company's
obligations hereunder shall cease and terminate. Executive's heirs or personal
representatives shall perform Executive's obligations under Section 3 of this
Agreement to return the materials therein described by Company upon Company's
request.
(b) Notwithstanding Subparagraph (a), in the event of the accidental death of
the Executive while traveling on behalf of Xxxxxxxx Digicom and while in the
performance of his duties on behalf of Xxxxxxxx Digicom, the heirs or personal
representatives of the Executive shall be entitled to receive, as a lump sum
payment of, the balance of the salary and stock then owing to the Executive
for the balance of the Term.
9. Assignment and Transfer
(a) Executive's rights and obligations under this Agreement shall not be
transferable by assignment or otherwise, and any purported assignment,
transfer, or delegation thereof shall be void.
(b) This Agreement shall inure to the benefit of, and be enforceable by, any
purchaser of substantially all of Company's assets, any corporate successor to
Company or any assignee thereof.
10. Obligations Surviving Expiration or Termination
Executive's and Company's obligations under Section 3, relating to proprietary
information, and Sections 4 and 5 shall survive expiration or termination of
this Agreement and termination of employment hereunder for any reason. All such
obligations shall be binding upon Executive's heirs and personal
representatives and shall inure to the benefit of Company's successors and
assigns.
11. No Inconsistent Obligations
Executive represents and warrants that there exist no obligations, legal of
otherwise, inconsistent with the terms of this Agreement or with Executive
undertaking employment with Company. Executive will not disclose to Company,
or use, or induce Company to use, any proprietary information or trade secrets
of others.
12. Obligations of or to Other Entities: Indemnification.
Executive represents and warrants that there exist no obligations or
liabilities of or claims against, and that Executive has no obligations of any
kind to, any corporation, partnership or other business entity, of which
Executive is or was a principal shareholder, partner or principal owner, other
than those which have been disclosed in writing to Company.
13. Notwithstanding anything to the contrary herein, in the event there is a
change of control of Xxxxxxxx Digicom prior to the expiration of the Term, the
Executive shall be entitled, by ninety (90) days' notice in writing given to
Xxxxxxxx Digicom within thirty (30) days following the aforementioned change of
control, to terminate his employment with Xxxxxxxx Digicom. In the event of
such termination, the Executive shall be entitled to receive, as at the date of
such termination, a lump sum payment equal to the balance of the salary then
owing to the Executive for the remainder of the Term. In addition, at the
date of such termination, all options granted to the Executive pursuant to
Paragraph 2 that have not then vested in the Executive shall be deemed to have
been vested and to be immediately exercisable by the Executive. If Executive
has any stock of any class, restricted and non restricted it shall be deemed to
have been vested and to be immediately exercisable by the Executive. As used
herein, "change of control" means any change of responsibility or position
that is not preapprove by the Executive in writing.
14. Miscellaneous
(a) Legal Fees.
Should either party hereto, or any heir, personal representative, successor or
assign of either party hereto, resort to litigation or arbitration to enforce
this Agreement, the party or parties prevailing In such litigation or
arbitration shall be entitled, in addition to such other relief as may be
granted, to recover its or their reasonable legal fees and costs in such
litigation or arbitration from the party or parties against whom enforcement
was sought.
(b) Governing Law.
This Agreement shall be governed by and construed according to the laws of the
United States and shall be treated as an Nevada contract.
(c) Entire Agreement.
This Agreement contains the entire agreement and understanding between the
parties hereto and supersedes any prior or contemporaneous written or oral
agreements between them respecting the subject matter hereof.
(d) Amendments.
This Agreement may be amended only by a writing signed by Executive and by a
representative of Company duly authorized.
(e) Severability.
If any term, provision, or condition of this Agreement, or the application
thereof to any person, place or circumstance, shall be held to be invalid,
unenforceable, or void, the remainder of this Agreement and such term,
provision, covenant, or condition as applied to other persons, places and
circumstances shall remain in full force and effect.
(f) Construction.
The headings and captions of this Agreement are provided for convenience only
and are intended to have no effect in construing or interpreting this
Agreement. The language in all parts of this Agreement shall be in all cases
construed according to its fair meaning and not strictly for or against Company
or Executive. "Person" or "persons" shall mean any person, firm, partnership,
trust, government, corporation or other legal entity, including any combination
of them.
(g) Rights Cumulative.
The rights and remedies provided by this Agreement are cumulative, and the
exercise of any right or remedy by either party hereto (or by its successor),
whether pursuant to this Agreement, to any other agreement, or to law, shall
not preclude or waive its right to exercise any or all other rights and
remedies.
(h) No waiver.
No failure or neglect or either party hereto to any instance to exercise any
right, power, or privilege hereunder or under law shall constitute a waiver of
any other right, power, or privilege or of the same right, power or privilege
in any other instance. All waivers by either party hereto must be contained in
a written instrument signed by the party to be charged and, in the case of
Company, by an officer of Company (other than executive ) or other person duly
authorized by Company.
(i) Remedy for Breach.
The parties hereto agree that, in the event of breach or threatened breach of
any covenants of Executive, the damage or imminent damage to the value and the
goodwill of Company's business shall be inestimable, and that therefore any
remedy at law or in damages shall be inadequate. Accordingly, the parties
hereto agree that Company shall be entitled to injunctive relief against
Executive in the event of any breach or threatened breach of any such
provisions by Executive, in addition to any other relief (including damages)
available to Company under this Agreement or under law.
(j)Notices.
Any notice, request, consent, or approval required or permitted to be given
under this Agreement or pursuant to law shall be sufficient if in writing, and
if and when sent by carried or registered mail, with postage prepaid, to
Executive's residence (as noted in Company's records), or to Company's
principal office, as the case may be.
(k)Assistance in Litigation.
Executive shall, during and after termination of employment, upon reasonable
notice, furnish such information and proper assistance to Xxxxxxxx Digicom as
any reasonably be required by Xxxxxxxx Digicom in connection with any
litigation in which it or any of its subsidiaries or affiliates is, or any
become, a party.
(1)Advice of Counsel.
Executive acknowledges that he has had the opportunity to consult legal counsel
of his choice with regard to this agreement, that he has read any understood
his agreement, and that he is fully aware of its legal effect and that he has
entered into it freely and voluntarily and based on his own judgment, with
advice of counsel, and not based on any representations or promises by Company,
or third parties, other than those contained in this agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date
first written above.
EXECUTIVE
/S/XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
Company ( Xxxxxxxx Digicom, Inc.)
/s/XXXX X. XXXX
Director
