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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with or without change in title or for
