Exhibit 10.2
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 1st day of November 2002, between HUMANA TRANS
SERVICES GROUP, LTD., a Delaware Corporation, with principal offices at 000
Xxxxxxxxxxx Xxxx Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as
the "Company") and Xxxxx Xxxxxxxx, residing at 0000 Xxx Xxxxx Xxxx, Xxxxxxx,
Xxxxxxxx (herein referred to as "KW").
WITNESSETH:
WHEREAS, the Company desires to formalize its relationship with KW and KW
wishes to formalize his relationship with the Company; and
WHEREAS, KW has the requisite experience, background and skills, and is
willing to formalize his relationship with the Company on the terms and subject
to the conditions contained herein.
NOW, THEREFORE, the parties have agreed to the following:
1. Employment. The Company hereby employs KW, and KW hereby agrees to
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enter into the agreement with the Company, as President, and Chief Executive
Officer ("CEO") of the Company.
2. No Breach of Obligations. KW represents and warrants to the Company
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that he has the requisite skills and experience, and has proven his values and
abilities to the Company, and is ready, willing and able to perform those duties
attendant to the position for which he is hired and that his entry into this
Agreement with the Company does not constitute a breach of any agreement with
any other person, firm or corporation, nor does any prior agreement between KW
and any person, firm or corporation contain any restriction or impediment to the
ability of KW to perform those duties for which he was hired, or which may be
assigned to, or reasonably expected of him.
3. Services. During the full term of this Agreement, KW shall perform to
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the best of his abilities the following services and duties, in such manner and
at such times as the Company may direct, the following being included by way of
example and not by way of limitations:
a) KW will be available to discuss all company matters that are presented
to him, within a reasonable time;
b) KW shall aid and assist in guiding the Company's national Marketing
Program in cooperation with the Board of Directors and Officers of the
Company;
c) KW shall, in cooperation with the Company's financial relations,
public relations and investor relations firms(s), keep the Company's
shareholders, and the brokerage community updated from time to time as
to the Company's progress;
d) KW shall consult with and advise the officers of the Company, either
orally or at the request of the Company, in writing, to such matters
as he, the President, shall deem necessary to discuss relating to the
management and operations of the Company; and
e) KW shall be responsible for such other duties and responsibilities as
necessary to fulfill his duties President and CEO.
4 Exclusivity. KW agrees that during the term of this Agreement he will
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impart and devote the necessary time, energy, skill and attention to the
performance of his duties hereunder. This paragraph shall not exclude KW from
devoting part of his time to other firms, as long as they are in non-competitive
fields of endeavor, or making investments in business ventures outside the
general area of the Company.
5. Place of Performance. KW agrees to perform his duties hereunder and
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agrees to the extent that it has been determined necessary and advisable, in the
discretion of the President and CEO, to travel to any place in the United
States, or to a foreign country, where his presence is or may reasonably be
required for the performance of his duties hereunder.
6. Compensation. The Company hereby agrees to compensate KW; and KW
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hereby accepts for the performance of the services of President and CEO as
indicated below:
a) Fees. Subject to review and upward adjustment from time to time
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by the Board of Directors, the Company shall pay to KW and annual fee of ONE
HUNDRED THOUSAND DOLLARS ($100,000.00), during the first year of this Agreement.
During the second through final year of this Agreement, KW's fee shall increase
at least five percent (5%) per year, or a percentage above 5% as directed and
approved by the Board of Directors. Such fees shall be payable in accordance
with the regular payroll practices of the Company, and shall not be less than
the total compensation package to any of its Officers or Directors;
b) Stock: The issuance of 2,000,000 shares of Common Stock of the
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Company, fully paid and non-assessable, in consideration of the time and effort
put forth by KW.
c) Bonus. KW shall be entitled to participation in a bonus or other
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incentive compensation, profit sharing or retirement plan that the Company may
institute, or make generally available to its executives;
d) Insurance and Medical Benefits. The Company shall maintain and
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pay disability income and life insurance along with medical insurance benefits
for KW equal to those available to its executive from time to time;
e) Automobiles. KW shall be entitled to the use of an automobile in
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the class of a Lincoln Town Car as well as gas and repair costs for such
vehicle;
f) Stock Options. KW shall have the right to enter into a Agreement
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with the Company for the Option to purchase additional Shares of Stock, as
determined by the Board of Directors; and
g) Other. KW shall be entitled to any other benefits as approved by
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the Board of Directors
7. Representation and Warranties of KW. By virtue of his execution
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hereof, and in order to induce the Company to enter into this Agreement, KW
hereby represents and warrants, as follows:
a) KW is not presently actively engaged in any business, employment or
venture, which is, or may be, in direct conflict with the business of the
Company;
b) KW has full power and authority to enter this Agreement with the
Company and to perform in the time and manner contemplated; and
c) KW is in good health and is not aware of any material medical
conditions that will act as a bar to the Company's obtaining "Key Man" and/or
disability income insurance policy on his life, should the Company so elect;
d) KW's compliance with the terms and conditions of this Agreement, in
the time and the manner contemplated herein, will not conflict with any
instrument or agreement pertaining to the transaction contemplated herein, and
will not conflict in, result in a breach or, or constitute a default under any
instrument to which he is a party;
e) KW represents that he shall devote his best efforts to the success
of the Company.
8. Representation and Warranties of the Company. By virtue of the
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execution of this Agreement, the Company hereby represents and warrants to KW as
follows:
a) The Company and KW agree that KW shall receive reimbursement for all
reasonable expenses incurred by KW in connection with the performance of his
duties hereunder subject to compliance with the Company's procedures; and the
Company shall pay to KW directly, or reimburse KW for all other reasonable
necessary and proven expenses and disbursements incurred by KW for and on behalf
of the Company in the performance of the KW's duties during the term of this
Agreement.
9. Vacations. During the term of this Agreement, KW shall receive a
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minimum of three (3) weeks vacation per year, or more at the approval of the
Board of Directors.
10. Proprietary Rights. KW shall at no time before or after the
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termination of his employment hereunder use or divulge or make known to anyone
without the express written consent of the Board of Directors of the Company
(except to those duly authorized by the Company to have access thereto), any
marketing systems, programs or methods, customer or client lists, computer
programs configurations, systems or procedures, ideas, formulae, inventions,
discoveries, improvements, secrets, processes or technical, or other information
of the Company, or any accounts, customer or client lists, transactions or
business affairs of the Company. All ideas, marketing systems, computer
programs, configurations, system or procedures, program or methods, formulae,
inventions, discoveries, improvements, secrets or processes, whether or not
patentable or copyrightable, made or developed by KW during the term of this
Agreement, or within three (3) years after its expiration or termination, and
relating to the business of the Company, shall be the exclusive right of the
Company, whether or not any claim of KW to compensation under Paragraph 6 hereof
has been, or will be satisfied, and KW agrees to provide the Company at its
request and expense such instruments and evidence as it may reasonably request
to perfect, enforce and maintain the Company's right to such property. At the
conclusion of his employment by the Company, KW shall forthwith surrender to the
Company all letters, brochures, agreements and documents of every character
relating to the business affairs and properties of the Company then in his
possession and shall not, without the Company's prior written consent retain or
disclose any copies thereof.
11. Disability. If during the term of this Agreement, and any additional
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terms, and in the opinion of the Board of Directors, as confirmed by competent
medical evidence, KW shall become physically or mentally incapacitated to
perform his duties for the Company for a continuous period, then for the first
six (6) months of such period, KW shall receive his full compensation and for
the remainder of such period (but in no event beyond the termination date of
this Agreement, or any subsequent additional term), KW shall receive
seventy-five percent (75%) of his compensation. KW hereby agrees to submit
himself for appropriate medical examination by his personal physician as
necessary. The obligations of the Company shall be satisfied, in whole or in
part, by payments to KW under disability insurance provided by the Company. If
no such insurance shall have been obtained by the time that an event of
disability occurs, then no payments shall be due KW hereunder.
12. Competition. a) During the term of this Agreement, or upon the
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termination of his employment, whichever event shall occur earlier, and for a
period of twelve (12) consecutive months thereafter, KW shall not, without the
prior written consent of the Company engage, either as a Consultant, Agent,
Proprietor, Officer, Director, Partner or majority stockholder in the business
directly related to that of the Company.
b) KW further covenants that during the stated term of this agreement,
and for the twelve (12) month period thereafter, whichever shall occur earlier,
he will not solicit any clients or customers known by him to be clients or
customers of the Company for competitive business. The foregoing restrictions
shall not apply to a termination of KW's employment by the Company without
Cause, or a termination of the employment by KW because of a breach of the
Agreement by the Company.
13. Term and Termination. This Agreement shall be deemed to be effective
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as of the date indicated above and shall continue in full force and effect until
the last day of the December, 2005, unless sooner terminated as hereunder set
forth. This Agreement shall automatically be renewed for an additional period
of three (3) years, unless the Board of Directors determines not to renew this
Agreement, KW notifies the Board of Directors of his desire not to renew the
Agreement, or the Company reaches a new agreement with KW.
The Company herein acknowledges that KW, has been instrumental in
structuring, and developing the business of the Company. The Company also
acknowledges that KW continues to be a major asset to the Company during its
stage of development to become a National Company.
a) Termination by the Company for Cause.
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1) The Company may terminate KW's employment for Cause. Upon such
termination the Company shall have no further obligations to KW, except for
compensation, or other benefits due, but not yet paid.
2) "Cause" shall mean: (i) KW's willful and continued failure
substantially to perform his duties with the Company (other than as a result of
KW's incapacity due to illness or injury), if KW is not then acting in the best
interests of the Company, as determined by the Board of Directors, or (ii) KW's
wilful engagement in misconduct which is materially injurious to the Company,
monetary or otherwise.
3) Termination for Cause shall be effectuated only if: (i) the
Company has delivered to KW a copy of "Notice of Termination", which gives KW
at least forty-five (45) business days prior notice, therefore, affording KW the
opportunity, together with KW's counsel to be heard before the Board of
Directors: and (ii) the Board of Directors (after such Notice and opportunity to
be heard) adopts a resolution concurred in by not less than two-thirds of all
directors of the Company then in office, that in the good faith opinion of the
Board of Directors, KW was guilty of conduct set forth and specifying the
particulars thereof in detail.
b) Termination by KW for Good Reason.
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1) KW may terminate his employment for "Good Reason" by giving the
Company a "Notice of Termination". Upon such termination, KW shall have the
rights described below in sub paragraph (c) of this paragraph 13.
2) "Good Reason" shall mean, (i) KW being removed as described
hereof, except in connection with termination of KW's employment by the Company
for Cause or Disability, or by KW without Good Reason; the assignment to KW,
without his express written consent of any duties other than those permitted,
the failure of the Company to obtain the assumption and agreement to perform
this agreement by any successor as contemplated, repudiation by the Company of
any obligations of the Company, the delivery of a "Notice of Termination" by the
Company, except that the delivery of such Notice shall be retroactively deemed
not to constitute Good Reason if within sixty (60) days after the Board of
Directors shall make the determination (after the opportunity to be heard
provided for therein) and such determination is not thereafter reversed by a
arbitration decision or final judgment of a Court of competent jurisdiction, and
(ii), substantially all of the Company's assets or stock being purchased by
another entity, with or without the permission of KW, then for a period of 180
days, KW may elect to Terminate his position pursuant to this provision, and
enforce all rights and obligations of this Agreement.
c) KW's Rights Upon Certain Terminations. If the Company terminates
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KW's employment hereunder, otherwise than for Cause, or if KW terminates his
employment for Good Reason:
1) The Company shall continue to pay KW his full base compensation
at the rate in effect on the Date of Termination for the period (the "Post
Termination Period") from the Date of Termination until the end of the term of
this Agreement. Notwithstanding anything to the contrary, which may be
contained herein, if KW shall have died prior to the termination of this
agreement, then, and in such event, such payment of KW's full base compensation
shall cease as of the time of death;
2) KW shall be entitled to the full amount which would have been
due him under any bonus or profit sharing plan, or similar arrangement, in which
he was participating prior to the "Date of Termination", for the full term of
this Agreement, without any proration or reduction, because of KW not being
employed during the full term;
3) KW shall also be entitled to the full amount of any contingent
compensation benefit, which would have become vested, had his employment
continued;
4) The Company shall also pay to KW an amount equal to all legal
fees and expenses incurred by KW as a result of such termination, including all
fees and expenses, if any, incurred in contesting or disputing any such
determination or seeking to obtain, or enforce, or retain any right or benefit
provided by this Agreement. These payments shall be made promptly on a
quarterly basis as submitted by KW;
5) The Company shall maintain in full force and effect for KW's
continued benefits (throughout the "Post-Termination Period"), all life and
health insurance and other benefits plans in which KW was entitled to
participate immediately prior to the "Date of Termination," provided that KW's
continued participation is possible under the general terms and conditions of
such plans. If KW's participation is any such plan is barred for any reason
whatsoever, the Company shall arrange to provide KW with benefits substantially
similar to those which he is entitled to receive under such plan until the
expiration of the term of this Agreement; and
6) KW shall not be required to mitigate the amount of any payment
provided for in this Paragraph by seeking other employment or otherwise, nor
shall the amount of any payment provided for in this Paragraph be reduced by any
compensation earned by KW in any manner after the "Date of Termination".
14. Notice of Termination. Any purported termination of KW's employment
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shall be communicated by written "Notice of Termination" from one party to the
other party hereto. For the purposes of this Agreement a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of KW's
employment, under the provision so indicated. No purported termination by the
Company of KW's employment shall be effective if it is not effected pursuant to
a "Notice of Termination" satisfying the requirements of this Paragraph.
15. Date of Termination. "Date of Termination" shall mean the date on
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which a "Notice of Termination" is given.
16. Successors; Binding Agreement.
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a) The Company shall require any purchaser of all the business of
the Company, by agreement or form and substance satisfactory to KW, to assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform, if no such purchase had taken
place. As used in this Agreement, "Company" shall mean the Company as
hereinafter defined, and any successor to its business, or assets, which
executes becomes bound by all the terms and provisions of this Agreement by
operation of law.
b) This Agreement shall inure to the benefit of and to be
enforceable by KW's personal or legal representative, executors, administrators,
successors, heirs, distributees, devisees and legates. If KW should die while
any amount would still be payable to him hereunder if KW had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement with the terms of this Agreement to KW's
devisee, legatee or other designee, or if there be no designee, to his estate.
17. Arbitration. KW shall have the right to submit any determination by
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the Board of Directors terminating his employment for Cause, or any other
dispute hereunder, to Arbitration by a single arbitrator under the rules of the
America Arbitration Association in the City of New York or Nassau or Suffolk
County. Any award in such arbitration may be enforced in any Court of competent
jurisdiction.
18. Governing Law. This Agreement is being delivered in the State of New
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York and shall be construed and enforced in accordance with the Laws of the
State of New York, irrespective of the state of Incorporation of the Company and
the place of domicile of KW. KW consents to the jurisdiction of the Courts of
the State of New York.
19. Remedies on Breach. Any remedies on breach of this Agreement are to
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be determined exclusively through arbitration as discussed in the Agreement.
20. Prohibition Against Assignment. Except as herein above otherwise
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expressly provided, KW agrees on behalf of himself and of his executors and
administrators, heirs, legates, distributees, and any other person, or persons
claiming benefits under him by virtue of this Agreement and the rights,
interests and benefits hereunder, shall not be assigned, transferred, pledged or
hypothecated in any way by KW or any executor, administrator, heir, legatee,
distrubutee or other persons claiming under KW by virtue of the Agreement and
shall not be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge or hypothecation, or other dispositions of this
Agreement of such rights, interests and benefits contrary to the foregoing
provisions, or the levy of any attachment or similar process thereupon shall be
null and void and without effect.
21. Miscellaneous Provisions. The Company is in the formative stage,
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which the parties recognize. The parties also recognize the cash flow position
of the Company. They therefore agree that the Company may only pay a percentage
of the fee on a weekly basis, until such time such funds are available, at which
time the balance will be paid. This determination shall be made by KW, in
consultation with the Board of Directors.
22. Final Agreement. This Agreement represents the Final Agreement
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between the parties and supercedes all previously executed Agreements and all
verbal representations made by any of the parties or their agents or their
employees.
23. Changes. The parties agree that no changes will be made to this
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executed Agreement except in writing, initialed by both parties and attached to
this document.
This Agreement has been approved by the Board of Directors, as indicated by
their respective signatures. This Agreement has been approved by KW, as
indicated by his signature.
In Witness Whereof, the parties have executed this Agreement as of the 1st
Day of November, 2002.
Dated as of the date first indicated above and is agreed to By:
Humana Trans Services Group, Inc. Xxxxx Xxxxxxxx
By: _________________________ _____________________
For the Board of Directors
______________________
Director
______________________
Director
