EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("AGREEMENT") is made and entered into this 24th
day of February 2004 by and between Xxxxx Aws (the "KEY EMPLOYEE") and Robotic
Workspace Technologies, Inc., a Maryland corporation (the "COMPANY").
R E C I T A L S:
A. Company is in the primary Business of developing, marketing and
selling software products for use in the operation of industrial
robot arms and automated systems. The Company also designs and sells
computer hardware necessary to operate the software.
B. Key Employee has certain experience as a Vice
President-Administration that the Company believes to be valuable to
it.
C The Company desires to employ the Key Employee and the Key Employee
desires to accept such employment.
NOW THEREFORE, in consideration of the promises, mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Key Employee do hereby agree as follows:
1. Employment and Duties. On the terms and subject to the conditions set
forth in this Agreement, the Company agrees to employ the Key Employee as the
Vice President-Administration of the Company to perform such duties as are
consistent with such position(s) as may be assigned, from time to time, by the
Company and to render such additional services and discharge such other
reasonable responsibilities as the Company may, from time to time, stipulate.
Each of the parties agree that for purposes of this agreement the "BUSINESS"
shall mean the development, technology, marketing, maintenance and sale of
computer software, controls, and hardware electronics for use in robotics for
manufacturing, automation, medical, entertainment, and service robot industries.
2. Performance. The Key Employee accepts the employment described in
Section 1 of this Agreement and agrees to devote all of his/her business time
and efforts except as specifically permitted herein to the faithful and diligent
performance of the services described herein, including the performance of such
other services and responsibilities as the Company may, from time to time,
stipulate. Without limiting the generality of the foregoing, the Key Employee
ordinarily shall devote not less than five days per week except for regular
business holidays observed by the Company, the Key Employee's vacation days, and
days allowed for sick leave and family emergencies to his/her employment, and
shall be present on the Company premises or actively engaged in service to or on
6
behalf of the Company during normal business hours Monday through Friday and
additional hours as required. The Key Employee further agrees that he/she shall
be present on the Company's premises or actively engaged in service to or on
behalf of the Company at such times during holidays or weekends as the
performance of his/her duties may reasonably require.
3. Term. The term of employment under this Agreement shall commence on
February 24, 2004 (the "COMMENCEMENT DATE") and shall remain in effect for a
period of one (1) year, ending on February 24, 2005 (the "TERMINATION DATE")
(and each subsequent one year anniversary, if extended, as provided herein shall
also be referred to herein as a Termination Date) unless sooner terminated
hereunder (the "EMPLOYMENT PERIOD"). This Agreement shall be automatically
extended each year for an additional one (1) year period unless terminated by
either party by giving written notice to the other no less than thirty (30) days
prior to the Termination Date.
4. Salary. For all the services to be rendered by the Key Employee
hereunder, the Company agrees to pay, during the Employment Period, a salary at
a rate of Forty Two Thousand Dollars ($42,000) per annum ("SALARY"), payable by
Company in accordance with its payroll practices from time to time but no less
frequently than bi-monthly. The Salary shall be reviewed annually on the
anniversary of the date on which the Key Employee first began working for the
Company. Upon completion of the merger with Hy-Tech Technology Group and proper
financing, Key Employee base salary will be set at Sixty Thousand Dollars
($60,000) per annum.
5. Stock Options. In further consideration of Key Employee's employment
and for entering this Agreement, the Company has previously granted Key Employee
stock options as indicated in the Key Employee's Robotic Workspace Technologies,
Inc. Incentive Stock Option Agreement(s). These options shall automatically
terminate if Key Employee discusses the terms therein with any other employee of
the Company except the President, the Vice President-Administration or any
person designated in writing by the Chief Executive Officer.
6. Bonus and Commissions.
(a) Bonus. During the Employment Period, the Key Employee shall be
eligible for such bonuses as may be deemed advisable by the Board of Directors
or Compensation Committee of the Company in consideration of the Key Employee's
performance of his/her duties and the Company's profitability. The Company,
however, shall not be obligated to pay any bonus until the Board of Directors
declares such bonus.
7
(b) Commissions. During the Employment Period, the Key Employee
shall be eligible to receive commissions in such amounts that have been agreed
upon and set forth on Exhibit A to this Agreement and approved by the Chief
Executive Officer prior to accepting orders on behalf of the company.
7. Other Benefits. Except as otherwise specifically provided herein,
during the Employment Period, the Key Employee shall be provided the opportunity
to participate in all benefits provided by Company to its other employees. Until
such time as Company provides Health and Dental plans, Company will pay 100% of
COBRA premiums and 100% Dental procedures excluding routine maintenance and
exams.
8. Surrender of Properties. Upon termination of the Key Employee's
employment with the Company, regardless of the cause therefor, the Key Employee
shall promptly surrender to the Company all property provided him/her by the
Company for use in relation to his/her employment, and, in addition, the
employee shall surrender to the Company any and all sales materials, lists of
customers and prospective customers, price lists, files, patent applications,
records, models, software files, listings, copies of Windows(R) software, or
other materials and information of or pertaining to the Company, its customers
or prospective customers, the products, Business, and operations of the Company.
9. Inventions and Secrecy. Except as otherwise provided in this Section 9,
the Key Employee: (a) shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information, knowledge, or data of the
Company or its Business or production operations obtained by the Key Employee
during his/her employment by the Company, which shall not be generally known to
the public or recognized as standard practice (whether or not developed by the
Key Employee) and shall not, during his/her employment by the Company and after
the termination of such employment for any reason, communicate or divulge any
such information, knowledge or data to any person, firm or corporation other
than the Company or persons, firms or corporations designated by the Company;
(b) shall promptly disclose to the Company all inventions, ideas, devices, and
processes made or conceived by him/her alone or jointly with others, from the
time of entering the Company's employ until such employment is terminated and
within the six (6) month period immediately following such termination, relevant
or pertinent in any way, whether directly or indirectly, to the Company's
Business or production operations or resulting from or suggested by any work
which he/she may have done for the Company or at its request; (c) shall, at all
times during his/her employment with the Company, assist the Company in every
proper way (entirely at the Company's expense) to obtain and develop for the
Company's benefit patents or copyrights on such inventions, ideas, devices and
processes including without limitation software and software files and listings
to be used with industrial automation and industrial robots, whether or not
patented; and (d) shall do all such acts and execute, acknowledge and deliver
8
all such instruments as may be necessary or desirable in the opinion of the
Company to vest in the Company the entire interest in such inventions, ideas,
devices, and processes referred to above. The foregoing to the contrary
notwithstanding, the Key Employee shall not be required to assign or offer to
assign to the Company any of the Key Employee's rights in any invention for
which no equipment, supplies, facility, or trade secret information of the
Company was used and which was developed entirely on the Key Employee's own
time, unless (a) the invention related to (i) the Business of the Company or
(ii) the Company's actual or demonstrably anticipated research or development,
or (b) the invention results from any work performed by the Key Employee for the
Company. The Key Employee acknowledges his/her prior receipt of written
notification of the limitation set forth in the preceding sentence on the Key
Employee's obligation to assign or offer to assign to the Company the Key
Employee's rights in inventions. In addition to and not in limitation of the
above, the Key Employee further acknowledges that he/she has been hired for the
purpose of assisting the Company in its development and maintenance of computer
software, controls, and electronics hardware for use in robotics, manufacturing,
entertainment, and automation industries and that all such software and hardware
is owned and shall be exclusively owned by the Company.
10. Confidentiality of Information; Duty of Non-Disclosure.
(a) The Key Employee acknowledges and agrees that his/her employment
by the Company under this Agreement necessarily involves his/her understanding
of and access to certain trade secrets and confidential information pertaining
to the Business of the Company. Accordingly, the Key Employee agrees that after
the date of this Agreement at all times he/she will not, directly or indirectly,
without the express written consent of the Company, disclose to or use for the
benefit of any person, corporation or other entity, or for himself/herself any
and all files, trade secrets or other confidential information concerning the
internal affairs of the Company, including, but not limited to, information
pertaining to its trade secrets, Business plans, clients, services, products,
earnings, finances, operations, methods or other activities, provided, however,
that the foregoing shall not apply to information which is of public record or
is generally known, disclosed or available to the general public or the industry
generally. Further, the Key Employee agrees that he/she shall not, directly or
indirectly, remove or retain, without the express prior written consent of the
Company, and upon termination of this Agreement for any reason shall return to
the Company, any figures, calculations, letters, papers, records, computer
disks, computer print-outs, lists, documents, instruments, drawings, designs,
programs, brochures, sales literature, Business plans or any copies thereof, or
any information or instruments derived therefrom, or any other similar
information of any type or description, however such information might be
obtained or recorded, arising out of or in any way relating to the Business of
the Company or obtained as a result of his/her employment by the Company except
as disseminated to the public at large or industry generally. The Key Employee
acknowledges that all of the foregoing are proprietary information, and are the
exclusive property of the Company. The covenants contained in this Section 10
shall survive the termination of this Agreement.
9
(b) The Key Employee agrees and acknowledges that the Company does
not have any adequate remedy at law for the breach or threatened breach by the
Key Employee of his/her covenant, and agrees that the Company shall be entitled
to injunctive relief to bar the Key Employee from such breach or threatened
breach in addition to any other remedies which may be available to the Company
at law or in equity.
11. Covenant Not to Compete.
(a) During Employment Period. During the Employment Period, the Key
Employee shall not, without the prior written consent of the Company, which
consent may be withheld at the sole discretion of the Company, engage in any
other business activity for gain, profit, or other pecuniary advantage
(excepting the investment of funds in such form or manner as will not require
any services on the part of the Key Employee in the operation of the affairs of
the companies in which such investments are made) or engage in or in any manner
be connected or concerned, directly or indirectly, whether as an officer,
director, stockholder, partner, owner, employee, creditor, or otherwise, with
the operation, management, or conduct of any business that competes with or is
of a nature similar to that of the Company.
(b) Following Termination of Employment Period. Within the one (1)
year period immediately following the later of the end of the Employment Period
or termination of the Key Employee's employment with the Company, for any reason
except as set forth below, the Key Employee shall not, without the prior written
consent of the Company, which consent may be withheld at the sole discretion of
the Company: (a) engage in or in any manner be connected or concerned, directly
or indirectly, whether as an officer, director, stockholder, partner, owner,
employee, creditor, or otherwise with the operation, management, or conduct of
any business similar to the Business of the Company being conducted at the time
of such termination anywhere in the United States, and any other area in which
the Company is, or reasonably contemplating, doing Business at the time of such
termination; (b) solicit, contact, interfere with, or divert any customer served
by the Company, or any prospective customer identified by or on behalf of the
Company, during the Key Employee's employment with the Company; or (c) solicit
any person then or previously employed by the Company to join the Key Employee,
whether as a partner, agent, employee or otherwise, in any enterprise engaged in
a business similar to the Business of the Company being conducted at the time of
such termination.
10
(c) Severability. The covenants of the Key Employee contained in
Sections 9, 10, and 11 of this Agreement shall each be construed as an agreement
independent of any other provision in this Agreement, and the existence of any
claim or cause of action of the Key Employee against the Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of such covenants. Both parties hereby expressly
agree and contract that it is not the intention of either party to violate any
public policy, or statutory or common law, and that if any sentence, paragraph,
clause, or combination of the same of this Agreement is in violation of the law,
such sentence, paragraph, clause or combination of the same shall be void, and
the remainder of such paragraph and this Agreement shall remain binding on the
parties to make the covenants of this Agreement binding only to the extent that
it may be lawfully done. In the event that any part of any covenant of this
Agreement is determined by a court of law to be overly broad thereby making the
covenant unenforceable, the parties hereto agree, and it is their desire, that
such court shall substitute a judicially enforceable limitation in its place,
and that as so modified the covenant shall be binding upon the parties as if
originally set forth herein.
12. Termination.
(a) Unilateral Termination. Either party may terminate the
Employment Period at any time by written notice of termination given to the
other party at least thirty (30) days in advance of the termination date stated
in such notice.
(b) Termination for Just Cause. The Company shall have the option to
terminate the Employment Period, effective immediately upon written notice of
such termination to the Key Employee, for Just Cause. For purposes of this
Agreement, the term "Just Cause" shall mean the occurrence of any one or more of
the following events: (a) the death or permanent total disability of the Key
Employee or his/her absence from employment by reason of illness or incapacity
for a period of sixty (60) consecutive days; (b) the breach by the Key Employee
of his/her covenants under this Agreement; (c) the commission by the Key
Employee of theft or embezzlement of Company property or other acts of
dishonesty; (d) the commission by the Key Employee of a crime resulting in
injury to the Business, property or reputation of the Company or any affiliate
of the Company or commission of other significant activities harmful to the
Business or reputation of the Company or any affiliate of the Company; (e) the
commission of an act by the Key Employee in the performance of his/her duties
hereunder determined by the Board of Directors of the Company to amount to
gross, willful, or wanton negligence; (f) the willful refusal to perform or
substantial neglect of the duties assigned to the Key Employee pursuant to
Section 1 hereof; (g) any significant violation of any statutory or common law
duty of loyalty to the Company; or (h) other legally sufficient cause.
11
Upon termination of employment, the Key Employee shall have no
rights to compensation or severance for any period beyond the effective date of
termination.
13. General Provisions.
(a) Goodwill. The Company has invested substantial time and money in
the development of its products, services, territories, advertising and
marketing thereof, soliciting clients and creating goodwill. By accepting
employment with the Company, the Key Employee acknowledges that the customers
are the customers of the Company, and that any goodwill created by the Key
Employee belongs to and shall inure to the benefit of the Company.
(b) Notices. Any notice required or permitted hereunder shall be
made in writing (i) either by actual delivery of the notice into the hands of
the party thereunder entitled, or (ii) by the mailing of the notice in the
United States mail, certified or registered mail, return receipt requested, all
postage prepaid and addressed to the party to whom the notice is to be given at
the party's respective address as set forth in the records of the Company.
The notice shall be deemed to be received in case (i) on the date of
its actual receipt by the party entitled thereto and in case (ii) on the date
which is three (3) days after its mailing.
(c) Amendment and Waiver. No amendment or modification of this
Agreement shall be valid or binding upon the Company unless made in writing and
signed by the Chief Executive Officer or an officer of the Company duly
authorized by the Board of Directors or upon the Key Employee unless made in
writing and signed by him/her. The waiver by the Company of the breach of any
provision of this Agreement by the Key Employee shall not operate or be
construed as a waiver of any subsequent breach by him/her.
(d) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the Key Employee's duties and
compensation as a Key Employee of the Company, and there are no representations,
warranties, agreements or commitments between the parties hereto with respect to
his/her employment except as set forth herein.
(e) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the State
of Florida.
(f) Severability. If any provision of this Agreement shall, for any
reason, be held unenforceable, such provision shall be severed from this
Agreement unless, as a result of such severance, the Agreement fails to reflect
the basic intent of the parties. If the Agreement continues to reflect the basic
intent of the parties, then the invalidity of such specific provision shall not
affect the enforceability of any other provision herein, and the remaining
provisions shall remain in full force and effect.
12
(g) Assignment. The Key Employee may not under any circumstances
delegate any of his/her rights and obligations hereunder without first obtaining
the prior written consent of the Company. This Agreement and all of the
Company's rights and obligations hereunder may be assigned or transferred by it,
in whole or in part, to be binding upon and inure to the benefit of any
subsidiary or successor of the Company.
(h) Costs of Enforcement. In the event of any suit or proceeding
seeking to enforce the terms, covenants, or conditions of this Agreement, the
prevailing party shall, in addition to all other remedies and relief that may be
available under this Agreement or applicable law, recover his/hers or its
reasonable attorneys' fees and costs as shall be determined and awarded by the
court.
IN WITNESS WHEREOF, this Agreement is entered into on the day and year
first above written.
COMPANY:
Robotic Workspace Technologies, Inc.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Its: Chief Executive Officer
KEY EMPLOYEE:
/s/ Xxxxx Aws
----------------------------
Xxxxx Aws
13
