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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") entered into as of
this 1 day of
February, 2002, between Expertise Technology Innovation, Inc., a
Nevada
corporation (the "Company") and Larry Wilcox (the
"Executive").
WHEREAS, the Company has strong and legitimate business
interests in
preserving and protecting its investment in the Executive, its
trade secrets and
Confidential Information, and its substantial relationships with
vendors, and
Customers, as defined, actual and prospective; and
WHEREAS, the Company desires to preserve and protect its
legitimate
business interests further by restricting competitive activities
of the
Executive during the term of this Agreement and following (for a
reasonable
time) termination of this Agreement; and
WHEREAS, the Company desires to employ the Executive and to
ensure the
continued availability to the Company of the Executive's
services, and the
Executive is willing to accept such employment and render such
services, all
upon and subject to the terms and conditions contained in this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants
set forth in this Agreement, and intending to be legally bound,
the Company and
the Executive agree as follows:
1. Representations and Warranties. The Executive hereby
represents and
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warrants to the Company that he (i) is not subject to any
written
nonsolicitation or noncompetition agreement affecting his
employment with the
Company (other than any prior agreement with the Company), (ii)
is not subject
to any written confidentiality or nonuse/nondisclosure agreement
affecting his
employment with the Company (other than any prior agreement with
the Company),
and (iii) has brought to the Company no trade secrets,
confidential business
information, documents, or other personal property of a prior
employer.
2. Term of Employment.
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(a) Term. The Company hereby employs the Executive, and the
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Executive hereby accepts employment with the Company for a
period commencing on
the date of this Agreement and ending three years from the date
of the closing
of the merger by and among the Company, United Communications
Hub, Inc. and New
ETI, Inc. (the "Merger").
(b) Automatic Extension. Beginning on the third anniversary
of
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the date of this Agreement and continuing every third
anniversary thereafter
(the "Extension Date"), this Agreement shall be automatically
extended for an
additional term of three years unless either party notifies the
other in writing
more than 90 days prior to the Extension Date that this
Agreement is no longer
to be extended.
(c) Continuing Effect. Notwithstanding any termination of
this
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Agreement except for termination under Section 6(b), at the end
of the Term or
otherwise, the provisions of Sections 7 and 8
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shall remain in full force and effect and the provisions of
Section 8 shall be
binding upon the legal representatives, successors and assigns
of the Executive.
3. Duties.
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(a) General Duties. The Executive shall serve as the
president
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and chief executive officer of the Company with duties and
responsibilities that
are customary for such executives. The Executive shall also
perform services
for such subsidiaries as may be necessary. The Executive shall
use his best
efforts to perform his duties and discharge his responsibilities
pursuant to
this Agreement competently, carefully and faithfully in
determining whether or
not the Executive has used his best efforts hereunder, the
Executive's and the
Company's delegation of authority and all surrounding
circumstances shall be
taken into account and the best efforts of the Executive shall
not be judged
solely on the Company's earnings or other results of the
Executive's
performance.
(b) Devotion of Time. The Executive shall devote such time,
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attention and energies during normal business hours (exclusive
of periods of
sickness and disability and of such normal holiday and vacation
periods as have
been established by the Company) to the affairs of the Company
as necessary to
completely and adequately perform his duties. The Executive
discloses and the
Company acknowledges the following business venture that the
Executive is
involved with and may devote time to:
Wilcox Productions
The Company agrees that the Executive may devote time to these
business ventures
so long as he continues to completely and adequately perform his
duties pursuant
to this Agreement. The Executive shall not enter the employ of
or serve as a
consultant to, or in any way perform any services with or
without compensation
to, any other persons, business or organization without the
prior consent of the
board of directors of the Company. In addition, the Executive
shall be
permitted to devote a limited amount of his time, without
compensation, to
professional, charitable or similar organizations.
(c) Location of Office. The Executive's principal business
office
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shall be at the Company's Rancho Cucamonga, California corporate
offices, or
such other location within 60 miles of Los Angeles, California.
However, the
Executive's job responsibilities shall include all business
travel necessary to
the performance of his job.
(d) Adherence to Inside Information Policies. The Executive
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acknowledges that the Company is publicly-held and, as a result,
has implemented
inside information policies designed to preclude its executives
and those of its
subsidiaries from violating the federal securities laws by
trading on material,
non-public information or passing such information on to others
in breach of any
duty owed to the Company its parent or any third party. The
Executive shall
promptly execute any agreements generally distributed by the
Company to its
employees requiring such employees to abide by its inside
information policies.
4. Compensation and Expenses.
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(a) Salary. For the services of the Executive to be rendered
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under this Agreement, the Company shall pay the Executive an
annual salary of
$360,000 (the Base Salary"). The Base Salary shall
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be increased each year by an amount equal to the cost of living
increase based
upon the Consumer Price Index calculated upon the commencement
of each year of
the Agreement using the prior month as the measuring month
published by the
Bureau of Labor Statistics (or similar successor index. The
Consumer Price
Index increase calculation shall be calculated as follows:
Commencing with the one year anniversary of the commencement
of
the term and the beginning of each year thereafter during
the
term of this Agreement, the Executive's annual salary shall
be
adjusted in accordance with the Consumer Price Index, all
Urban
Consumers issued by the Bureau of Labor Statistics of the
U.S.
Department of Labor using the years 1982-84 as a base of 100
(the
"Index"). At the commencement of the second year, and of
each
year thereafter, the Executive's adjusted Base Salary shall
be
multiplied each year by a fraction, the numerator of which
shall
be the published Index number for the month preceding the
commencement of the new year, i.e., February 2005, and the
denominator of which shall be the published Index number for
the
month of January 2004. The resulting increase to the
Executive's
Base Salary shall be added to the prior year's Base Salary
and
become a part thereof for the current year. In the event that
the
Index herein referred to ceases to be published during the
term
of this Agreement, or if a substantial change is made in the
method of establishing such index, then the determination of
the
adjustment in the Executive's compensation shall be made with
the
use of such conversion factor, formula or table as may be
published by the Bureau of Labor Statistics, or if none is
available, the parties shall accept comparable statistics on
the
cost of living in the United States as shall then be computed
and
published by an agency of the United States, or if not by a
respected financial periodical selected by the Company.
(b) Incentive Bonus. The Executive shall be entitled to
receive
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a bonus based upon the Company achieving certain financial
milestones as
determined by the board of directors. The amount of the bonus
shall be
determined by the board of directors but shall not exceed 100%
of the
Executive's base salary.
(c) Discretionary Bonus. The Executive shall be eligible to
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receive an annual bonus in an amount to be determined by the
board of directors
based on any criteria or factors the board of directors deems
appropriate.
(d) Stock Options. The Executive shall receive 1,500,000
stock
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options to purchase the Company's common stock exercisable at
$.16 per share
under the Company's 2003 Stock Option Plan pursuant to a
separate stock option
agreement, which options replace stock options granted to the
Executive in April
2003 by United Communications Hub, Inc. The options shall vest
over a three year
period in equal increments each June 30 and December 31, subject
to continued
employment.
(e) Expenses. In addition to any compensation received
pursuant
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to Section 4(a) and (b), the Company will reimburse or advance
funds to the
Executive for all reasonable travel, entertainment and
miscellaneous expenses
incurred in connection with the performance of his duties under
this Agreement,
provided that the Executive properly provides a written
accounting of such
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expenses to the Company in accordance with the Company's
practices. Such
reimbursement or advances will be made in accordance with
policies and
procedures of the Company in effect from time to time relating
to reimbursement
of or advances to Executive officers.
5. Benefits.
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(a) Vacation and Sick Leave. For each 12-month period during
the
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Term, the Executive shall be entitled to five weeks of vacation
without loss of
compensation or other benefits to which he is entitled under
this Agreement, to
be taken at such times as the Executive may select and the
affairs of the
Company may permit. The Executive shall be entitled to sick
leave each year.
(b) Employee Benefit Programs. The Employee is entitled to
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participate in any pension, 401(k), insurance or other employee
benefit plan
that is maintained by the Company for its executives, including
programs of life
and medical insurance and reimbursement of membership fees in
professional
organizations.
(c) Insurance. The Company shall pay or reimburse the
Executive
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for the premiums on a life insurance policy in the face amount
of $2 million
which policy shall provide that it is fully funded after no more
than five
years. This policy shall be the sole property of the Executive
and the Company
shall not retain or be entitled to any benefit therefrom. The
Company shall
also pay premiums on the Company's medical insurance policy
covering Executive
and pay the premiums or reimburse the Executive for disability
insurance
covering the Executive's disability which insurance shall have
only a 30-day
waiting period on disability insurance in an amount equal to the
maximum allowed
by the insurance company.
(d) Automobile. The Company shall pay the Executive an
automobile
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allowance of (i) $1,500 per month, and (ii) the cost of
insurance for such
automobile.
6. Termination.
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(a) Death or Disability. Except as otherwise provided in
this
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Agreement, it shall automatically terminate without act by any
party upon the
death, or disability of the Executive. For purposes of this
Section 6(a),
"disability" shall mean that for a period of 45 consecutive days
or 90 aggregate
days in any 12-month period, the Executive is incapable of
substantially
fulfilling the duties set forth in Section 3 because of
physical, mental or
emotional incapacity resulting from injury, sickness or disease.
In the event
of death of the Executive, the Executive's estate shall receive
any unpaid,
earned compensation due the Executive and this Agreement shall
terminate.
(b) Termination for Cause. The Company may terminate the
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Executive's employment pursuant to the terms of this Agreement
at any time for
Cause (as defined below) by giving written notice of
termination. Such
termination shall become effective upon the giving of such
notice. Upon any
such termination for Cause, the Executive shall have no right to
compensation,
or reimbursement under Section 4, or to participate in any
Executive benefit
programs under Section 5, except as provided by law, for any
period subsequent
to the effective date of termination. For purposes of this
Section 6(b),
"Cause" shall mean: (i)the Executive is convicted of a felony
which is related
to the Executive's employment or the business of the Company;
(ii) the
Executive, in carrying out his duties hereunder, has been found
in a
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civil action to have committed gross negligence or intentional
misconduct
resulting, in either case, in material harm to the Company; or
(iii) the
Executive has been found in a civil action to have materially
breached any
provision of Section 6 or Section 7 and to have caused material
harm to the
Company. The term "found in a civil action" shall not apply
until all appeals
permissible under the applicable rules of procedure or statutes
have been
determined and no further appeals are permissible.
(c) Special Termination. In the event that (i) the
Executive,
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