EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of October, 17, 2005 (the
"Effective Date"), by and between Incentra Solutions, Inc., a Nevada corporation
with its headquarters located in Boulder, Colorado (the "Employer"), and Xxxxx
X'Xxxxx (the "Executive"). In consideration of the mutual covenants contained in
this Agreement, the Employer and the Executive agree as follows:
1. EMPLOYMENT. The Employer agrees to employ the Executive and the
Executive agrees to be employed by the Employer on the terms and conditions set
forth in this Agreement.
2. CAPACITY; LOCATION. The Executive shall serve the Employer as
President and Chief Operating Officer. In his capacity as President and Chief
Operating Officer, Executive will report to the Chief Executive Officer, and
shall be responsible for strategic and operational matters relating to the
Employer's overall business requirements subject to the direction of the Chief
Executive Officer. In such capacity, the Executive shall perform such services
and duties in connection with the business, affairs and operations of the
Employer as may be assigned or delegated to the Executive from time to time by
or under the authority of the Chief Executive Officer. Executive's employment
with Employer will be based in Employer's Broomfield, Colorado offices;
provided, that Employee may be required from time to time to travel in
connection with Employer's business needs.
3. TERM. The term of this Agreement shall be two (2)years, subject to
the provisions of Section 6, the employment relationship described herein may be
terminated by either Executive or Employer at any time.
4. COMPENSATION AND BENEFITS. The regular compensation and benefits
payable to the Executive under this Agreement shall be as follows:
(a) SALARY. For all services rendered by the Executive under this
Agreement, the Employer shall pay the Executive a salary (the "Salary")
at the annual rate of Two Hundred and Forty Thousand Dollars
($240,000.00), subject to increase from time to time in the discretion
of the Compensation Committee of the Board of Directors (the
"Compensation Committee"). The Salary shall be payable in periodic
installments in accordance with the Employer's usual practice for its
senior executives.
(b) BONUS. For the fiscal year ending December 31, 2005 Executive
shall be guaranteed a bonus of Forty Thousand Dollars ($40,000). The
Executive shall be eligible for a targeted bonus up to One Hundred
Sixty Thousand Dollars ($160,000) based upon performance at 100% of
plan for the fiscal year ending December 31, 2006. For fiscal year
ending December 31, 2006, executive will be guaranteed $40,000 as the
minimum bonus paid. If performance exceeds plan by 3% or more,
Executive will be eligible for an additional bonus payment. Performance
is evaluated by the Board and any non-guaranteed bonus is at the
discretion of the Board. Thereafter, Executive shall be eligible to
participate in an incentive program established by the Compensation
Committee, with such terms as may be established in the sole discretion
of the Compensation Committee.
(c) REGULAR BENEFITS. The Executive shall be reimbursed for an
individual health insurance policy to a maximum of Seven Hundred Fifty
Dollars ($750.00) per month or shall be entitled to health insurance
benefits from Employer, and shall also be entitled to participate in
any employee benefit plans, life insurance plans, disability income
plans, retirement plans, expense reimbursement plans and other benefit
plans which the Employer may from time to time have in effect for all
or most of its executive management employees. Such participation shall
be subject to the terms of the applicable plan documents, generally
applicable policies of the Employer, applicable law and the discretion
of the Board of Directors, the Compensation Committee or any
administrative or other committee provided for in or contemplated by
any such plan. Except with respect to the aforementioned health
insurance benefits, nothing contained in this Agreement shall be
construed to create any obligation on the part of the Employer to
establish any such plan or to maintain the effectiveness of any such
plan which may be in effect from time to time.
(d) ADDITIONAL LIFE INSURANCE. Employer will provide term life
insurance in the amount of three times the Executive's base salary.
(e) VACATION. The Executive shall be entitled to four weeks of
vacation, such vacation time to accrue on a per-pay-period basis.
(e) TAXATION OF PAYMENTS AND BENEFITS. The Employer shall undertake
to make deductions, withholdings and tax reports with respect to
payments and benefits under this Agreement to the extent that it
reasonably and in good faith believes that it is required to make such
deductions, withholdings and tax reports. Payments under this Agreement
shall be in amounts net of any such deductions or withholdings. Nothing
in this Agreement shall be construed to require the Employer to make
any payments to compensate the Executive for any adverse tax effect
associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.
(f) CAR ALLOWANCE. Executive shall be entitled to a car allowance of
$750.00 per month for the term of this Agreement.
(g) EXPENSES. The Employer shall reimburse the Executive for all
reasonable and necessary business related travel expenses incurred or
paid by the Executive in performing his duties under this Agreement and
which are consistent with applicable policies of the Employer. All
payments for reimbursement of such expenses shall be made upon
presentation by the Executive of expense statements or vouchers and
such other supporting information as the Employer may from time to time
reasonably request.
(h) STOCK OPTIONS. Executive shall also be eligible for
participation in Employer's Stock Option Plan and Executive shall be
entitled to receive stock options pursuant to the terms of option
agreements.
(i) EXCLUSIVITY OF SALARY AND BENEFITS. The Executive shall not be
entitled to any payments or benefits other than those provided under
this Agreement.
5. EXTENT OF SERVICE. During the Executive's employment under this
Agreement, the Executive shall devote the Executive's full business time, best
efforts and business judgment, skill and knowledge to the advancement of the
Employer's interests and to the discharge of the Executive's duties and
responsibilities under this Agreement. The Executive shall not engage in any
other business activity, except as may be approved by the Board of Directors;
PROVIDED, that nothing in this Agreement shall be construed as preventing the
Executive from:
(a) investing the Executive's assets in any company or other entity
in a manner not prohibited by Section 7(d) and in such form or manner
as shall not require any material activities on the Executive's part in
connection with the operations or affairs of the companies or other
entities in which such investments are made; and
2
(b) engaging in religious, charitable or other community or
non-profit activities that do not impair the Executive's ability to
fulfill the Executive's duties and responsibilities under this
Agreement.
6. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the provisions
of Section 3, the Executive's employment under this Agreement shall terminate
under the following circumstances set forth in this Section 6.
(a) TERMINATION BY THE EMPLOYER FOR CAUSE. The Executive's
employment under this Agreement may be terminated for "Cause" without
further liability on the part of the Employer, effective immediately
upon a vote of the Board of Directors and written notice to the
Executive. Only the following shall constitute "Cause" for such
termination:
(i) dishonest or fraudulent statements or acts of the Executive
with respect to the Employer or any affiliate of the Employer;
(ii) the Executive's conviction of, or entry of a plea of
guilty or nolo contendere for, (A) a felony or (B) any misdemeanor
(excluding minor traffic violations) involving moral turpitude,
deceit, dishonesty or fraud;
(iii) gross negligence, willful misconduct or insubordination
of the Executive with respect to the Employer or any affiliate of
the Employer; or
(iv) material breach by the Executive of any of the Executive's
obligations under this Agreement, or any other agreement to which
Executive and Employer are now or hereafter a party to.
(b) TERMINATION BY THE EXECUTIVE. The Executive's employment under
this Agreement may be terminated by the Executive by written notice to
Employer at least thirty (30) days prior to such termination.
(c) TERMINATION BY THE EMPLOYER WITHOUT CAUSE. Subject to the
payment of Termination Benefits pursuant to Section 6(d), the
Executive's employment under this Agreement may be terminated by the
Employer without Cause upon written notice to the Executive (a
termination "Without Cause").
(d) CERTAIN TERMINATION BENEFITS. Unless otherwise specifically
provided in this Agreement or otherwise required by law, all
compensation and benefits payable to the Executive under this Agreement
shall terminate on the date of termination of the Executive's
employment under this Agreement. Notwithstanding the foregoing, in the
event of termination of the Executive's employment with the Employer
Without Cause pursuant to Section 6(c) above, the Employer shall
provide to the Executive the following termination benefits
("Termination Benefits"):
(i) payment of the Executive's Salary at the rate then in
effect pursuant to Section 4(a) for the period from the date of
termination until the date that is twelve (12) months after the date
of termination; and
(ii) continuation of group health plan benefits to the extent
authorized by and consistent with 29 U.S.C. ss. 1161 ET SEQ.
(commonly known as "COBRA"), with the cost of the regular premium
for such benefits shared in the same relative proportion by the
Employer and the Executive as in effect on the date of termination
for twelve (12) months and at a cost of 102% of premium provided
under COBRA, for up to an additional six (6) months.
3
Notwithstanding the foregoing, nothing in this Section 6(d) shall be
construed to affect the Executive's right to receive COBRA continuation
entirely at the Executive's own cost to the extent that the Executive
may continue to be entitled to COBRA continuation after the Executive's
right to cost sharing under Section 6(d)(ii) ceases.
(e) DISABILITY. If the Executive shall be disabled so as to be
unable to perform the essential functions of the Executive's then
existing position or positions under this Agreement with reasonable
accommodation, the CEO may remove the Executive from any
responsibilities and/or reassign the Executive to another position with
the Employer during the period of such disability. Notwithstanding any
such removal or reassignment, the Executive shall continue to receive
the Executive's full Salary (less any disability pay or sick pay
benefits to which the Executive may be entitled under the Employer's
policies) and benefits under Section 4 of this Agreement (except to the
extent that the Executive may be ineligible for one or more such
benefits under applicable plan terms) for a period of time equal to
nine (9) months. If any question shall arise as to whether during any
period the Executive is disabled so as to be unable to perform the
essential functions of the Executive's then existing position or
positions with reasonable accommodation, the Executive may, and at the
request of the Employer shall, submit to the Employer a certification
in reasonable detail by a physician selected by the Employer to whom
the Executive or the Executive's guardian has no reasonable objection
as to whether the Executive is so disabled or how long such disability
is expected to continue, and such certification shall for the purposes
of this Agreement be conclusive of the issue. The Executive shall
cooperate with any reasonable request of the physician in connection
with such certification. If such question shall arise and the Executive
shall fail to submit such certification, the Employer's determination
of such issue shall be binding on the Executive. Nothing in this
Section 6(e) shall be construed to waive the Executive's rights, if
any, under existing law including, without limitation, the Family and
Medical Leave Act of 1993, 29 U.S.C. ss.2601 ET SEQ. and the Americans
with Disabilities Act, 42 U.S.C. ss.12101 ET SEQ.
7. CONFIDENTIAL INFORMATION, NONCOMPETITION AND COOPERATION.
(a) CONFIDENTIAL INFORMATION. As used in this Agreement,
"Confidential Information" means information belonging to the Employer
which is of value to the Employer in the course of conducting its
business and the disclosure of which could result in a competitive or
other disadvantage to the Employer. Confidential Information includes,
without limitation, financial information, reports, and forecasts;
inventions, improvements and other intellectual property; trade
secrets; know-how; designs, processes or formulae; software; market or
sales information or plans; customer lists; and business plans,
prospects and opportunities (such as possible acquisitions or
dispositions of businesses or facilities) which have been discussed or
considered by the management of the Employer. Confidential Information
includes information developed by the Executive in the course of the
Executive's employment by the Employer, as well as other information to
which the Executive may have access in connection with the Executive's
employment. Confidential Information also includes the confidential
information of others with which the Employer has a business
relationship. Notwithstanding the foregoing, Confidential Information
does not include information in the public domain, unless due to breach
of the Executive's duties under Section 7(b).
(b) CONFIDENTIALITY. The Executive understands and agrees that the
Executive's employment creates a relationship of confidence and trust
between the Executive and the Employer with respect to all Confidential
Information. At all times, both during the Executive's employment with
the Employer and after its termination, the Executive will keep in
confidence and trust all such Confidential Information, and will not
use or disclose any such Confidential Information without the written
consent of the Employer, except as may be necessary in the ordinary
course of performing the Executive's duties to the Employer.
(c) DOCUMENTS, RECORDS, ETC. All documents, records, data,
apparatus, equipment and other physical property, whether or not
pertaining to Confidential Information, which are
4
furnished to the Executive by the Employer or are produced by the
Executive in connection with the Executive's employment will be and
remain the sole property of the Employer. The Executive will return to
the Employer all such materials and property as and when requested by
the Employer. In any event, the Executive will return all such
materials and property immediately upon termination of the Executive's
employment for any reason. The Executive will not retain with the
Executive any such material or property or any copies thereof after
such termination.
(d) NONCOMPETITION AND NONSOLICITATION. Without the prior written
consent of the CEO, during the period that Executive is employed by
Employer and (i) for one (1) year thereafter, the Executive will not,
directly or indirectly, whether as owner, partner, shareholder,
consultant, agent, employee, co-venturer or otherwise, engage,
participate, assist or invest in any Competing Business (as hereinafter
defined); (ii) for a period of two (2) years thereafter will refrain
from directly or indirectly employing, attempting to employ, recruiting
or otherwise soliciting, inducing or influencing any person to leave
employment with the Employer; and (iii) for a period of two (2) years
thereafter will refrain from soliciting or encouraging any customer or
supplier to terminate or otherwise modify adversely its business
relationship with the Employer. The Executive understands that the
restrictions set forth in this Section 7(d) are intended to protect the
Employer's interest in its Confidential Information and established
employee, customer and supplier relationships and goodwill, and agrees
that such restrictions are reasonable and appropriate for this purpose.
For purposes of this Agreement, the term "Competing Business" shall
mean any business that provides or intends to provide the same or
similar types of services or products as those provided or targeted by
Employer or any of its subsidiaries in any geographic area then served
or targeted by Employer or any of its subsidiaries. Notwithstanding the
foregoing, the Executive may own up to two percent (2%) of the
outstanding stock of a publicly held corporation.
(e) THIRD-PARTY AGREEMENTS AND RIGHTS. The Executive hereby confirms
that the Executive is not bound by the terms of any agreement with any
previous employer or other party which restricts in any way the
Executive's use or disclosure of information or the Executive's
engagement in any business. The Executive represents to the Employer
that the Executive's execution of this Agreement, the Executive's
employment with the Employer and the performance of the Executive's
proposed duties for the Employer will not violate any obligations the
Executive may have to any such previous employer or other party. In the
Executive's work for the Employer, the Executive will not disclose or
make use of any information in violation of any agreements with or
rights of any such previous employer or other party, and the Executive
will not bring to the premises of the Employer any copies or other
tangible embodiments of non-public information belonging to or obtained
from any such previous employment or other party.
(f) LITIGATION AND REGULATORY COOPERATION. During and after the
Executive's employment, the Executive shall cooperate fully with the
Employer in the defense or prosecution of any claims or actions now in
existence or which may be brought in the future against or on behalf of
the Employer which relate to events or occurrences that transpired
while the Executive was employed by the Employer. The Executive's full
cooperation in connection with such claims or actions shall include,
but not be limited to, being available to meet with counsel to prepare
for discovery or trial and to act as a witness on behalf of the
Employer at mutually convenient times. During and after the Executive's
employment, the Executive also shall cooperate fully with the Employer
in connection with any investigation or review of any federal, state or
local regulatory authority as any such investigation or review relates
to events or occurrences that transpired while the Executive was
employed by the Employer. The Employer shall reimburse the Executive
for any reasonable out-of-pocket expenses incurred in connection with
the Executive's performance of obligations pursuant to this Section
7(f) and shall pay the Executive for his time at his annual salary rate
in effect at the time of the termination of his employment.
(g) DEVELOPMENTS. Executive will make full and prompt disclosure to
the Employer of all inventions, discoveries, designs, developments,
methods, modifications, improvements, processes, algorithms, databases,
computer programs, formulae, techniques, trade secrets, graphics
5
or images, audio or visual works, and other works of authorship
(collectively "Developments"), whether or not patentable or
copyrightable, that are created, made, conceived or reduced to practice
by Executive (alone or jointly with others) or under Executive's
direction during the period of his employment. Executive acknowledges
that all work performed by Executive for Employer hereunder is on a
"work for hire" basis, and Executive hereby assigns and transfers, and
will assign and transfer, to the Employer and its successors and
assigns all of Executive's right, title and interest, including but not
limited to all patents, patent applications, trademarks and trademark
applications, copyrights and copyright applications, and other
intellectual property rights in all countries and territories worldwide
and under any international conventions, in and to all Developments
that (a) relate to the business of the Employer or any of the products
or services of the Employer; (b) result from tasks assigned to
Executive by the Employer; or (c) result from the use of personal
property (whether tangible or intangible) owned, leased or contracted
for by the Employer.
(h) INJUNCTION. The Executive agrees that it would be difficult to
measure any damages caused to the Employer which might result from any
breach by the Executive of the promises set forth in this Section 7,
and that in any event money damages would be an inadequate remedy for
any such breach. Accordingly, subject to Section 8 of this Agreement,
the Executive agrees that if the Executive breaches, or proposes to
breach, any portion of this Agreement, the Employer shall be entitled,
in addition to all other remedies that it may have, to an injunction or
other appropriate equitable relief to restrain any such breach without
showing or proving any actual damage to the Employer.
8. ARBITRATION OF DISPUTES. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of the
Executive's employment or the termination of that employment (including, without
limitation, any claims of unlawful employment discrimination whether based on
age or otherwise) shall, to the fullest extent permitted by law, be settled by
arbitration in any forum and form agreed upon by the parties or, in the absence
of such an agreement, under the auspices of the American Arbitration Association
("AAA") in Denver, Colorado in accordance with the Employment Dispute Resolution
Rules of the AAA, including, but not limited to, the rules and procedures
applicable to the selection of arbitrators. In the event that any person or
entity other than the Executive or the Employer may be a party with regard to
any such controversy or claim, such controversy or claim shall be submitted to
arbitration subject to such other person or entity's agreement. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. This Section 8 shall be specifically enforceable.
Notwithstanding the foregoing, this Section 8 shall not preclude either party
from pursuing a court action for the sole purpose of obtaining a temporary
restraining order or a preliminary injunction in circumstances in which such
relief is appropriate; PROVIDED, that any other relief shall be pursued through
an arbitration proceeding pursuant to this Section 8.
9. CONSENT TO JURISDICTION. To the extent that any court action is
permitted consistent with or to enforce Section 8 of this Agreement, the parties
hereby consent to the jurisdiction of the courts of the State of Colorado.
Accordingly, with respect to any such court action, the Executive (a) submits to
the personal jurisdiction of such courts; (b) consents to service of process;
and (c) waives any other requirement (whether imposed by statute, rule of court,
or otherwise) with respect to personal jurisdiction or service of process.
10. INTEGRATION. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements between the parties with respect to any related subject matter.
11. ASSIGNMENT; SUCCESSORS AND ASSIGNS, ETC. Neither the Employer nor
the Executive may make any assignment of this Agreement or any interest herein,
by operation of law or otherwise, without the prior written consent of the other
party; PROVIDED, that the Employer may assign its rights under this Agreement
without the consent of the Executive in the event that the Employer shall effect
a reorganization, consolidate with or merge into any other corporation,
partnership, organization or other entity, or transfer all or substantially all
of its properties or assets to any other corporation, partnership,
6
organization or other entity. This Agreement shall inure to the benefit of and
be binding upon the Employer and the Executive, their respective successors,
executors, administrators, heirs and permitted assigns.
12. ENFORCEABILITY. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
13. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
14. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Executive at the last address the Executive has filed in writing with the
Employer or, in the case of the Employer, at 0000 Xxxxx Xxxxxx, Xxxxxxx, XX
00000, ATTN: Chief Executive Officer, and shall be effective on the date of
delivery in person or by courier or three (3) days after the date mailed.
15. AMENDMENT. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a duly authorized
representative of the Employer.
16. GOVERNING LAW. This is a Colorado contract and shall be construed
under and be governed in all respects by the laws of the State of Colorado,
without giving effect to the conflict of laws principles of such State.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
IN WITNESS WHEREOF, this Agreement has been executed by the Employer
and by the Executive as of the Effective Date.
INCENTRA SOLUTIONS, INC.:
By: /s/ XXXXXX X. XXXXXXX III
--------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chairman & CEO
EXECUTIVE:
/s/ XXXXX X'XXXXX
-----------------
Xxxxx X'Xxxxx
OCTOBER 10, 2005
----------------
Date
7
