Exhibit # 10.09
Employment Agreement - Xxxxx Xxxxx, Jr.
COMPETITIVE COMMUNICATIONS INC.
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
effective the 8th day of April 1996 between COMPETITIVE COMMUNICATIONS INC., a
California corporation, having its principal place of business at 00000 Xxxxxxxx
Xxxxxx, Xxxxx X, Xxxxxxxxx, Xxxxxxxxxx (hereinafter "Employer"), and Xxxxx Xxxxx
II whose address is 23820 Aetna, Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000, (hereinafter
"Employee").
1. Term.
The Term of Employee's employment hereunder shall be for a five (5)
year period, unless terminated prior thereto in accordance with section 4
hereof, commencing on the date hereof (the "Initial Term"). This Agreement shall
automatically extend for an additional two (2) year term (the "Extension Term"),
provided that neither the Employer nor Employee has elected to terminate this
Agreement effective the end of the Initial Term by giving three (3) months'
prior written notice one to the other. The entire duration of Employee's
employment by Employer is herein called the "Employment Period".
2. Position and Duties.
2.1 Position and Duties. Employee agrees to serve as President and
Chief Operating Officer and to perform the duties set forth in Appendix A
attached hereto and such other duties as the Chief Executive Officer/Chairman of
the Board of the Board of Directors of Employer shall from time to time direct.
2.2 Faithful Performance. Employee agrees to serve Employer faithfully
and to the best of his ability, and to devote his attention and efforts to the
business and affairs of Employer. Employee confirms that he is under no
contractual commitments inconsistent with the obligations set forth in this
Agreement, and that while employed hereunder he will not render or perform
services for any other corporation, firm, entity or person inconsistent with
this Agreement without the prior written consent of Employer.
2.3 Rules and Regulations. Employee shall at all times strictly adhere
to and obey all of the reasonable rules, regulations, corporate policies,
directions, and restrictions now in effect or as may be subsequently modified or
adopted by Employer governing the conduct of executive employees.
3. Compensation.
3.1 Base Salary. For all services to be rendered by Employee under this
Agreement, Employer agrees to pay or cause to be paid to Employee:
(a) $76,600 per year ("Base Salary") prorated from date first written
above until the Employer receives at least $1,000,000 in funding investment.
During such period, all amounts not paid, shall be accrued and paid within
fourteen (14) days of receipt of such funding by Employer;
(b) $130,000 per year ("Base Salary") prorated commencing on the receipt
of at least $1,000,000 in funding investment by Employer.
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Base Salary shall be payable at the discretion of the Employer either
weekly at 1/52nd of Base or bi-monthly at 1/26th of Base in two equal monthly
payments due on the first and fifteenth day of each month. Nothing in this
provision shall operate to prevent increases in Employee's Base Salary from time
to time as determined by Employer's Board of Directors.
3.2 Bonus. In addition to the Base Salary, Employee shall be entitled
to a bonus in any fiscal year in which the pre-tax and pre-contribution ("PTPC")
operating profit of Employer is $1,000,000 or more. The bonus shall be 1 equal
share of the Executive Bonus Pool ("ExBP"). The ExBP shall be equal to 6% of the
PTPC profit in any given fiscal year. The ExBP shall be paid at the same time as
the 6% PTPC Non-executive Employee Bonus Pool and within ten (10) days after the
Employer's accountants have completed the net pre-tax audit and has been
accepted by the Board of Directors.
3.3 Additional Benefits. In addition to the Base Salary, Employee shall
be entitled during the Employment Period to receive such Additional Benefits as
may be provided for him or to which he may become entitled because his position,
tenure, salary, age, health or other qualifications make him eligible to
participate. For purposes hereof, "Additional Benefits" means (a) participation
in bonus and incentive compensation plans or pools, stock option, bonus, award
or purchase plans, retirement plans, and other employee benefit plans of
Employer, if any; (b) life, health, medical, dental, accident, and other
personal insurance coverage provided by Employer for employees or their
dependents; (c) directors' and officers' liability insurance coverage provided
by Employer and charter or bylaw provisions or contracts providing for
indemnification of corporate personnel or elimination or limitation of their
liabilities as such; (d) an Employer provided automobile per guidelines approved
by the Board of Directors, (e) use of Employer's property and facilities and
other perquisites of employment with Employer; (f) paid vacation, leave or
holidays; and (f) any and all other compensation, benefits and perquisites of
employment with Employer, if any, other than Base Salary.
3.4 Expenses. Employer will pay or reimburse Employee for all reasonable
and necessary out-of-pocket expenses incurred by him in his performance under this
Agreement, subject to the presentation of appropriate vouchers in accordance with
applicable laws and Employer's expense reimbursement policies and procedures in
effect and applicable to management employees.
3.5 Location and Relocation Expenses. Employer shall pay for all of
Employee's moving and personal expenses in connection with any Employer required
relocations which occurs after Employee is hired.
4. Termination.
4.1 Termination. The employment of Employee with Employer shall terminate
on the date of the occurrence of any of the following events:
(a) Expiration of the Employment Period hereof;
(b) The death of Employee;
(c) Fifteen (15) days after the date on which Employer shall have given
Employee written notice of the termination of Employee's employment by
reason of permanent physical or mental incapacity that prevents
Employee from performing the essential elements of Employee's position
for a period of six consecutive months or more as determined by a
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medical professional selected by Employer, in its sole discretion, and
by Employer acting in good faith;
(d) Upon five (5) days' written notice to Employee for "cause", which
shall include only the following: intentional misconduct or gross
negligence by Employee in the course of employment; the commission or
perpetration by Employee of any fraud against Employer or any other
party in connection with his employment hereunder; the commission by
Employee of such acts or dishonesty, fraud or misrepresentation or
other acts of moral turpitude as would prevent the effective
performance of his duties; knowingly causing or permitting Employer to
violate any law, which violation shall have a material effect on
Employer; or the failure to perform, breach, or violation by Employee
of any of Employee's material obligations under this Agreement which
continues after fifteen (15) days' written notice has been given to
Employee by Employer specifying the failure to perform, breach, or
violation;
(e) Upon at least sixty (60) days' advance written notice by Employee; or
(f) Upon at least sixty (60) days' advance written notice by Employer based
solely on concurrence of a minimum of 4/5th of the Board of Directors.
4.2 Payments of Base Salary, Incentive Bonus, and Additional Benefits.
(a) Upon any termination, (1) Employee (or Employee's estate in the
case of death) shall immediately be paid all accrued Base Salary which
would otherwise be due and payable and accrued vacation pay, all to the
date of termination, (2) benefits accrued under Employer's Employee
benefit plans, if any, will be paid in accordance with such plans, and
(3) bonuses shall be paid at the end of the fiscal year if earned ,
with the amount prorated by the number of days during the fiscal year
Employee was employed. Upon termination, Employee shall not be entitled
to any other payments or benefits except upon the conditions and as set
forth in Section 4.2 (b) of this Agreement.
(b) In the event Employee's employment under this Agreement is
terminated pursuant to Section 4.1(c) or 4.1(f): Employer shall pay
Employee an amount equal the Employee's then Base Salary multiplied by
twenty-four (24) months.
(c) In the event of termination of Employee's employment pursuant to
Section 4.1(c) or 4.1(f), Employer agrees to continue to provide
Employee's medical insurance for a period of twenty four (24) months
following such termination.
4.3 Effect of Termination. Notwithstanding any termination in this
Agreement, the covenants and Agreements contained in Sections 4.4, 5, 6, 7, and
8 shall be construed as independent of any other agreements between the parties
and shall survive the termination of the employment of the Employee. The
existence of any claim or cause of action of Employee against Employer, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by Employer of such covenants.
4.4 Return of Employer's Property. If Employee is terminated either by
expiration of this Agreement, pursuant to Section 4.1, or otherwise, Employee
shall immediately deliver to Employer all originals and copies of notes,
memoranda, writings, lists, files, reports, customer lists, personnel files, and
information, correspondence, tapes, discs, cards, logs, machines, technical
data, credit cards, keys to the premises, or any other tangible product or
documents (individually and collectively known as "Company Proprietary Items")
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which Employee produced, received or otherwise had access to while employed.
5. Confidentiality.
Employee during employment may have access to or become acquainted with
various confidential information and trade secrets, including, but not limited
to, formulas, technical data, patents, devices, secret inventions, personnel
information, customer lists, processes, and compilations of information,
records, reports, correspondence, tapes, discs, tangible property and
specifications (collectively and inclusively, "Confidential Information"), which
are owned by or licensed to Employer. Employee shall not disclose any of the
aforesaid Confidential Information, directly or indirectly, or use it in any way
either during the Employment Period or at any time thereafter, except as
required in the course of his Employment by Employer. All Confidential
Information of Employer, whether prepared by Employee or otherwise coming into
his possession, shall remain the exclusive property of Employer and shall not be
removed from the premises of Employer in any circumstances whatsoever without
the prior written consent of Employer.
6. Restrictive Covenant.
Non-Competition. Employee hereby agrees that during the term of
Employee's employment with Employer, Employee shall not engage, directly or
indirectly, or be interested (as director, officer employee, partner,
consultant, principal, shareholder, or otherwise) in any firm, corporation, or
other entity in the business of developing, producing, distributing, or selling
any product competitive with the products of Employer in any geographic area in
which Employer engages in such business without the express written consent of
Employer. Ownership by Employee of less than one percent (1%) of the outstanding
voting stock of any competing publicly held corporation shall not constitute a
violation of this Section 6.
7. Injunctive Relief.
Employee agrees that it would be difficult to compensate Employer fully
for damages suffered by Employer through any violation of the provisions of this
Agreement by the Employee including without limitation the provisions of
Sections 5 and 6 above, and Employee agrees that there is not adequate remedy at
law for such violation. Accordingly, Employee specifically agrees that Employer
shall be entitled to temporary and permanent injunctive relief to enforce the
provisions of this Agreement and that such relief may be granted without the
necessity of proving actual damages. This provision shall not in any way
whatsoever diminish the right of Employer to claim and recover damages in
addition to injunctive relief.
8. Inventions.
8.1 Inventions. Employee agrees to promptly disclose and assign to
Employer, exclusively, all of his rights and interest in any inventions,
discoveries, improvements, designs, practices, processes, formulae, techniques,
know-how and methods (hereinafter collectively referred to as " Inventions"),
that are in any way related to the services provided by Employee during the term
of his employment with Employer or to the services provided under this
Agreement, or to any other work or project of Employer that Employee may either
become aware of or be assigned to work on by Employer, which he, individually or
jointly, shall make, originate, conceive of or reduce to practice during the
term of his employment with Employer or the term of his relationship with
Employer under this Agreement whether made on or off of the premises of
Employer; and he shall, during and after the term of his employment and the term
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of this Agreement, assist Employer to obtain, for its own benefit, patents on
such Inventions to remain the property of Employer whether or not patented.
8.2 Trailer Period. Employee expressly agrees that any Inventions which
are disclosed or offered to third parties, published or implemented by Employee
or declared in a patent application filed by Employee or by any entity
associated with Employee within one (1) year following termination of Employee's
employment shall be deemed to be originated or made during Employee's employment
with Employer and subject to Section 8.1 hereof, unless Employee can prove by a
preponderance of the evidence to the contrary.
9. Miscellaneous.
9.1 Choice of Laws, Jurisdiction, Venue. This Agreement is being
delivered in the State of California and shall be construed in accordance with
and governed by the laws of such state, without regard to principles of
conflicts of laws. Venue for all proceedings in any way relating to this
Agreement, including without limitation, proceedings conducted under Section 9.5
hereof, shall lie in Riverside County, California.
9.2 Other Agreements. This Agreement contains the entire agreement of
the parties relating to the subject matter hereof and supersedes all prior
agreements and understandings with respect to such subject matter, and the
parties hereto have not made agreements, representations or warranties relating
to the subject matter of this Agreement which are not set forth herein. No
amendment or modification of this Agreement shall be deemed effective unless
made in writing signed by the parties hereto.
9.3 Successors. This Agreement shall extend to and be binding upon
Employee, his legal representatives, heirs and distributees, and upon Employer,
its successors and assigns; provided, however, that Employee may not delegate
any of Employee's duties under this Agreement. For the purposes of this
Agreement, unless the context otherwise requires, references to Employer shall
include Employer's subsidiaries and affiliated persons.
9.4 No Waiver. Forbearance or failure to pursue any legal remedy or
right upon default or breach hereof shall not constitute waiver of such right,
nor shall any such forbearance, failure or actual waiver imply or constitute
waiver of any subsequent default or breach. No term or condition of this
Agreement shall be deemed to have been waived, nor shall there be any estoppel
to enforce any provision of this Agreement, except by a statement in writing
signed by the party against whom enforcement of the waiver or estoppel is
sought.
9.5 Arbitration. All disputes arising under or relating to this
Agreement or its breach other than actions for injunctive relief shall be
submitted to binding arbitration under the Commercial Arbitration Rules of the
American Arbitration Association. Any award of the arbitrator(s) shall be final
and binding on the parties hereto and judgment on such award may be entered in
any court of competent jurisdiction.
9.6 Attorneys' Fees. In the event of any litigation arising out of this
Agreement, the prevailing party shall be entitled to reimbursement of reasonable
attorneys' fees and costs.
9.7 Notices. Any notice with respect to this Agreement shall be deemed
to have been duly served on the party entitled to notice if that notice has been
served at the address provided in this Agreement or such other address as may be
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provided from time to time and shall be deemed duly given or made if delivered
or deposited in the United States mail as first class mail, postage prepaid.
9.8 Headings. Headings used in this Agreement are used for convenience
only and do not constitute substantive matters to be considered in constructing
the terms of this Agreement.
9.9 Severability. In case any one or more of the provisions of this
Agreement shall, for any reason, be held invalid, illegal, or unenforceable in
any respect, any other provisions in this Agreement shall be construed as if
such invalid, illegal, or unenforceable provisions had never been contained
herein. Such provisions shall be given effect to the maximum extent permitted by
law.
9.10 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
9.11 Amendments. This Agreement may not be altered, modified or amended
except pursuant to a written instrument executed by all parties hereto.
9.12 Construction of Agreement. The parties hereto acknowledge and
agree that neither this Agreement nor any of the other documents executed in
connection herewith shall be construed more favorably in favor of one than the
other based upon which party drafted the same, it being acknowledged that all
parties hereto contributed substantially to the negotiation and preparation of
this Agreement and the documents executed in connection herewith.
9.13 No Third Party Beneficiaries. Except as otherwise expressly set
forth in this Agreement, no person or entity not a party to this Agreement shall
have rights under this Agreement as a third party beneficiary or otherwise.
IN WITNESS WHEREOF, the parties hereby have duly executed this Agreement
effective as of the day and year above first written.
"EMPLOYEE" COMPETITIVE COMMUNICATIONS INC.
By:_______________________ By:_________________________
Xxxxx Xxxxx II Xxxxx Xxxxx
Chief Executive Officer
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APPENDIX A
DUTIES OF PRESIDENT AND CHIEF OPERATING OFFICER
Reporting to the Chairman and Chief Executive Officer, the President
shall be the Chief Operating Officer of the corporation and have direct
management and supervision, direction and control of the business and Officers
and personnel of the corporation assigned to him in accordance with policies,
goals and objectives established by the Chairman and Chief Executive Officer and
the Board of Directors. He shall preside at all meetings of the Shareholders and
in the absence of the Chairman of the Board/Chief Executive Officer, or if there
be none, at all meetings of the Board of Directors. He shall be ex officio a
member of all the standing committees, including the Executive Committee, if
any, and shall have the general powers and duties of management usually vested
in the office of President of a corporation, and shall have such other powers
and duties as may be prescribed by the Board of Directors or the By-Laws.
Assists the Chairman and Chief Executive Officer in the development of
corporate policies and goals that cover company operations, personnel, financial
performance and growth. May perform duties of the Chairman and Chief Executive
Officer in his absence.
Directs the activities of Vice President(s) and personnel assigned to him
to include: Chief Technical Manager, and Facility Operations Manager.
Guides and directs the members of management in the development and production
of the corporation's products and services throughout the world.
Directs corporate operations to achieve budgeted profit results and other
financial criteria and preserve the capital funds invested in the enterprise.
Serves as an equal voting member of the Board of Directors. Executes
bonds, mortgages and other contracts requiring a seal, under the seal of the
corporation except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
corporation.
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