Exhibit
10.36
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT is
made
effective as of the 1st
day of
April, 2007
(the
“Effective Date”).
AMONG:
WPCS
INTERNATIONAL INCORPORATED, a
corporation formed pursuant to the laws of the State of Delaware and having
an
office for business located at One East Uwchlan Avenue, Exton, PA 19341
("Employer");
AND
CHARLES
H. MADENFORD,
an
individual having an address at 10556 Combie Road, Auburn, CA 95602
(“Employee”)
WHEREAS,
Employee
has agreed to continue to serve as an Employee of Employer, and Employer has
agreed to hire Employee as such, pursuant to the terms and conditions of this
Employment Agreement (the “Agreement”).
NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Employee and Employer hereby agree as follows:
ARTICLE
1
EMPLOYMENT
Employer
hereby affirms, renews and extends the employment of Employee as Executive
Vice
President, and Employee hereby affirms, renews and accepts such employment
by
Employer for the “Term” (as defined in Article 3 below), upon the terms and
conditions set forth herein.
ARTICLE
2
DUTIES
During
the Term, Employee shall serve Employer faithfully, diligently and to the best
of his ability, under the direction and supervision of the President of Employer
and shall use his best efforts to promote the interests and goodwill of Employer
and any affiliates, successors, assigns, subsidiaries, and/or future purchasers
of Employer. Employee shall render such services during the Term at Employer’s
principal place of business or at such other place of business as may be
determined by the President of Employer, as Employer may from time to time
reasonably require of him, and shall devote all of his business time to the
performance thereof. Employee shall have those duties and powers as generally
pertain to each of the offices of which he holds, as the case may be, subject
to
the control of the President.
ARTICLE
3
TERM
The
“Term” of this Agreement shall commence on the Effective Date and continue
thereafter for a term of three (3) years, as may be extended or earlier
terminated pursuant to the terms and conditions of this Agreement. The Term
of
this Agreement shall automatically renew for successive one (1) year periods
unless, prior to the 30th
calendar
day preceding the expiration of the then existing Term, either Employer or
Employee provides written notice to the other that it elects not to renew the
Term. Upon delivery of such notice, this Agreement shall continue until
expiration of the Term, whereupon this Agreement shall terminate and neither
party shall have any further obligation thereafter arising under this Agreement,
except as explicitly set forth herein to the contrary.
ARTICLE
4
COMPENSATION
Salary
4.1
Employer
shall pay to Employee through the Clayborn Contracting Group (“CCG”) subsidiary
an annual salary (the “Salary”) of One Hundred Fifty Thousand Dollars
($150,000.00), payable in equal installments at the end of such regular payroll
accounting periods as are established by Employer, or in such other installments
upon which the parties hereto shall mutually agree, and in accordance with
Employer’s usual payroll procedures, but no less frequently than
monthly.
Benefits
4.2
During
the Term, Employee shall be entitled to participate in all medical and other
employee benefit plans, including vacation, sick leave, retirement accounts
and
other employee benefits provided by the CCG subsidiary to similarly situated
employees on terms and conditions no less favorable than those offered to such
employees. Such participation shall be subject to the terms of the applicable
plan documents, Employer’s generally applicable policies, and the discretion of
the Board of Directors or any administrative or other committee provided for
in,
or contemplated by, such plan.
Expense
Reimbursement
4.3
Employer
shall reimburse Employee through the CCG subsidiary for reasonable and necessary
expenses incurred by him on behalf of Employer in the performance of his duties
hereunder during the Term in accordance with Employer's then customary policies,
provided that such expenses are adequately documented.
Automobile
4.4
Employee
shall be entitled to the full-time use of an automobile owned or leased by
the
CCG subsidiary. In addition, Employer shall reimburse Employee through the
CCG
subsidiary for all maintenance and gasoline expenses associated with the
automobile, provided that such expenses are adequately documented.
Bonus
4.5
In
addition to the Salary, Employee shall be entitled to receive through the CCG
subsidiary an annual bonus equal to 3% (the "Bonus") of the consolidated annual
operating income, before the deduction of interest and taxes of designated
subsidiaries as assigned by Employer. The amount of the Bonus shall be
determined based upon the operating income reported in the financial statements
of each designated subsidiary, as calculated based on U.S. generally accepted
accounting principles and as audited by the Employer’s accounting firm at year
end. Any Bonus amount will be payable within thirty (30) days from completion
of
the audit. Employee shall have the right to review and independently verify
the
conclusions of any audit by delivering notice in writing to Employer within
30
days after receipt of such audit indicating that Employee wishes to exercise
his
right of review and verification. Within 10 business days after receipt of
any
such notice, Employer shall make available to Employee and his representatives,
at reasonable times during normal business hours, the books and records of
Employer which are reasonably necessary to conduct such review and verification.
Employee shall cause such review to be conducted and concluded as quickly as
reasonably practicable and in such a manner so as not to unreasonably interfere
with the business and operations of Employer. Any representatives conducting
such review shall, prior to being given access to such books and records, be
required to enter into confidentiality and non-disclosure agreements with
Employer on terms and conditions satisfactory to Employer, acting reasonably.
If
Employee disputes the results of the audit, he shall, within 20 days after
notice is delivered by Employee to Employer that there exist a dispute, be
submitted to arbitration as set forth below. . Employer can assign subsidiaries
at its sole discretion.
Arbitration
4.6
Any
unresolved disputes in regards to the Bonus due from Employer to Employee will
be subject to arbitration by an independent chartered accountant mutually chosen
by Employer and Employee at an expense equally borne by both parties. The
parties shall, within 20 days after appointment of the Arbitrator present their
written position and related evidence with respect to the unresolved disputes.
The Arbitrator shall review evidence accordingly and submit a written decision
which shall be final and binding on the parties within 20 days after submission
of such evidence. The Arbitrator shall comply, and the arbitration shall be
conducted in accordance with, the Commercial Arbitration Rules of American
Arbitration Association then in force.
ARTICLE
5
OTHER
EMPLOYMENT
During
the Term of this Agreement, Employee shall devote substantially all of his
business and professional time and effort, attention, knowledge, and skill
to
the management, supervision and direction of Employer’s business and affairs as
Employee’s highest professional priority. Except as provided below, Employer
shall be entitled to all benefits, profits or other issues arising from or
incidental to all work, services and advice performed or provided by Employee.
Provided that the activities listed below do not materially interfere with
the
duties and responsibilities under this Agreement, nothing
in
this Agreement shall preclude Employee from devoting reasonable periods required
for:
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(a)
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Serving
as a member of any organization involving no conflict of interest
with
Employer, provided that Employee must obtain the written consent
of
Employer;
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(b)
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Serving
as a consultant in his area of expertise to government, commercial
and
academic panels where it does not conflict with the interests of
Employer;
and
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(c)
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Managing
his personal investments or engaging in any other non-competing
business
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ARTICLE
6
CONFIDENTIAL
INFORMATION/INVENTIONS
Confidential
Information
6.1
Employee
shall not, in any manner, for any reasons, either directly or indirectly,
divulge or communicate to any person, firm or corporation, any confidential
information concerning any matters not generally known or otherwise made public
by Employer which affects or relates to Employer’s business, finances, marketing
and/or operations, research, development, inventions, products, designs, plans,
procedures, or other data (collectively, “Confidential Information”) except in
the ordinary course of business or as required by applicable law. Without regard
to whether any item of Confidential Information is deemed or considered
confidential, material, or important, the parties hereto stipulate that as
between them, to the extent such item is not generally known, such item is
important, material, and confidential and affects the successful conduct of
Employer’s business and goodwill, and that any breach of the terms of this
Section 6.1 shall be a material and incurable breach of this Agreement.
Confidential Information shall not include information in the public domain
at
the time of the disclosure of such information by Employee or information that
is disclosed by Employee with the prior consent of Employer.
Documents
6.2
Employee
further agrees that all documents and materials furnished to Employee by
Employer and relating to the Employer’s business or prospective business are and
shall remain the exclusive property of Employer. Employee shall deliver all
such
documents and materials, not copied, to Employer upon demand therefore and
in
any event upon expiration or earlier termination of this Agreement. Any payment
of sums due and owing to Employee by Employer upon such expiration or earlier
termination shall be conditioned upon returning all such documents and
materials, and Employee expressly authorizes Employer to withhold any payments
due and owing pending return of such documents and materials.
Inventions
6.3
All
ideas, inventions, and other developments or improvements conceived or reduced
to practice by Employee, alone or with others, during the Term of this
Agreement, whether or not during working hours, that are within the scope of
the
business of Employer or that relate to or result from any of Employer’s work or
projects or the services provided by Employee to Employer pursuant to this
Agreement, shall be the exclusive property of Employer. Employee agrees to
assist Employer, at Employer’s expense, to obtain patents and copyrights on any
such ideas, inventions, writings, and other developments, and agrees to execute
all documents necessary to obtain such patents and copyrights in the name of
Employer.
Disclosure
6.4
During
the Term, Employee will promptly disclose to the Board of Directors of Employer
full information concerning any interest, direct or indirect, of Employee (as
owner, shareholder, partner, lender or other investor, director, officer,
employee, consultant or otherwise) or any member of his immediate family in
any
business that is reasonably known to Employee to purchase or otherwise obtain
services or products from, or to sell or otherwise provide services or products
to, Employer or to any of its suppliers or customers.
ARTICLE
7
COVENANT
NOT TO COMPETE
Except
as
expressly permitted in Article 5 above, during the Term of this Agreement,
(a)
Employee shall not engage, directly or indirectly, in any business or activity
competitive to any business or activity engaged in, or proposed to be engaged
in, by Employer or (b) soliciting or taking away or interfering with any
contractual relationship of any employee, agent, representative, contractor,
supplier, vendor, customer, franchisee, lender or investor of Employer, or
using, for the benefit of any person or entity other than Employer, any
Confidential Information of Employer. The foregoing covenant prohibiting
competitive activities shall survive the termination of this Agreement and
shall
extend, and shall remain enforceable against Employee, for the period of one
(1)
year following the date this Agreement is terminated. In addition, during the
one-year period following such expiration or earlier termination, neither
Employee nor Employer shall make or permit the making of any negative statement
of any kind concerning Employer or its affiliates, or their directors, officers
or agents or Employee.
ARTICLE
8
SURVIVAL
Employee
agrees that the provisions of Articles 6, 7 and 9 shall survive expiration
or
earlier termination of this Agreement for any reasons, whether voluntary or
involuntary, with or without cause, and shall remain in full force and effect
thereafter. Notwithstanding the foregoing, if this Agreement is terminated
upon
the dissolution of Employer, the filing of a petition in bankruptcy by Employer
or upon an assignment for the benefit of creditors of the assets of Employer,
Articles 6, 7 and 9 shall be of no further force or effect.
ARTICLE
9
INJUNCTIVE
RELIEF
Employee
acknowledges and agrees that the covenants and obligations of Employee set
forth
in Articles 6 and 7 with respect to non-competition, non-solicitation,
confidentiality and Employer’s property relate to special, unique and
extraordinary matters and that a violation of any of the terms of such covenants
and obligations will cause Employer irreparable injury for which adequate
remedies are not available at law. Therefore, Employee agrees that Employer
shall be entitled to an injunction, restraining order or such other equitable
relief (without the requirement to post bond) as a court of competent
jurisdiction may deem necessary or appropriate to restrain Employee from
committing any violation of the covenants and obligations referred to in this
Article 9. These injunctive remedies are cumulative and in addition to any
other
rights and remedies Employer may have at law or in equity.
ARTICLE
10
TERMINATION
Termination
by Employee
10.1
Employee
may terminate this Agreement for Good Reason at any time upon 30 days’ written
notice to Employer, provided the Good Reason has not been cured within such
period of time.
Good
Reason
10.2
In
this
Agreement, “Good Reason” means, without Employee’s prior written consent, the
occurrence of any of the following events, unless Employer shall have fully
cured all grounds for such termination within thirty (30) days after Employee
gives notice thereof:
(i) any
reduction in his then-current Salary;
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(ii)
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any
material failure to timely grant, or timely honor, any equity or
long-term
incentive award;
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(iii)
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failure
to pay or provide required compensation and
benefits;
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(iv)
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any
failure to appoint, elect or reelect him to the position of Executive
Vice
President of Employer; the removal of him from such position; or
any
changes in the reporting structure so that Employee reports to someone
other than the President of
Employer;
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(v)
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any
material diminution in his title or duties or the assignment to him
of
duties not customarily associated with Employee’s position as Executive
Vice President of Employer;
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(vi)
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any
relocation of Employee’s office as assigned to him by Employer, to a
location more than 25 miles from the assigned
location;
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(vii)
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the
failure of Employer to obtain the assumption in writing of its obligation
to perform the Employment Agreement by any successor to all or
substantially all of the assets of Employer or upon a merger,
consolidation, sale or similar transaction of Employer
or;
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the
voluntary or involuntary dissolution of Employer, the filing of a
petition
in bankruptcy by Employer or upon an assignment for the benefit of
creditors of the assets of Employer.
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The
written notice given hereunder by Employee to Employer shall specify in
reasonable detail the cause for termination, and such termination notice shall
not be effective until thirty (30) days after Employer’s receipt of such notice,
during which time Employer shall have the right to respond to Employee’s notice
and cure the breach or other event giving rise to the termination.
Termination
by Employer
10.3
Employer
may terminate its employment of Employee under this Agreement for cause at
any
time by written notice to Employee. For purposes of this Agreement, the term
“cause” for termination by Employer shall be (a) a conviction of or plea of
guilty or nolo
contendere by
Employee to a felony, or any crime involving fraud or embezzlement; (b) the
refusal by Employee to perform his material duties and obligations hereunder;
(c) Employee’s willful and intentional misconduct in the performance of his
material duties and obligations; or (d) if Employee or any member of his family
makes any personal profit arising out of or in connection with a transaction
to
which Employer is a party or with which it is associated without making
disclosure to and obtaining the prior written consent of Employer. The written
notice given hereunder by Employer to Employee shall specify in reasonable
detail the cause for termination. In the case of a termination for the causes
described in (a) and (d) above, such termination shall be effective upon receipt
of the written notice. In the case of the causes described in (b) and (c) above,
such termination notice shall not be effective until thirty (30) days after
Employee’s receipt of such notice, during which time Employee shall have the
right to respond to Employer’s notice and cure the breach or other event giving
rise to the termination.
Severance
10.4
Upon
a
termination of this Agreement without Good Reason by Employee or with cause
by
Employer, Employer shall pay to Employee all accrued and unpaid compensation
as
of the date of such termination, subject to the provision of Section 6.2. Upon
a
termination of this Agreement with Good Reason by Employee or without cause
by
Employer, Employer shall pay to Employee all accrued and unpaid compensation
and
expense reimbursement as of the date of such termination and the “Severance
Payment.” The Severance Payment shall be payable in a lump sum, subject to
Employer’s statutory and customary withholdings. If the termination of Employee
hereunder is by Employee with Good Reason, the Severance Payment shall be paid
by Employer within five (5) business days of the expiration of any applicable
cure period. If the termination of Employee hereunder is by Employer without
cause, the Severance Payment shall be paid by Employer within five (5) business
days of termination. The “Severance Payment” shall equal the amount of the
Salary payable to Employee under Section 4.1 of this Agreement from the date
of
such termination until the end of the Term of this Agreement (prorated for
any
partial month).
Termination
Upon Death
10.5
If
Employee dies during the Term of this Agreement, this Agreement shall terminate,
except that Employee’s legal representatives shall be entitled to receive any
earned but unpaid compensation or expense reimbursement due hereunder through
the date of death.
Termination
Upon Disability
10.6
If,
during the Term of this Agreement, Employee suffers and continues to suffer
from
a “Disability” (as defined below), then Employer may terminate this Agreement by
delivering to Employee thirty (30) calendar days’ prior written notice of
termination based on such Disability, setting forth with specificity the nature
of such Disability and the determination of Disability by Employer. For the
purposes of this Agreement, “Disability” means Employee’s inability, with
reasonable accommodation, to substantially perform Employee’s duties, services
and obligations under this Agreement due to physical or mental illness or other
disability for a continuous, uninterrupted period of sixty (60) calendar days
or
ninety (90) days during any twelve month period. Upon any such termination
for
Disability, Employee shall be entitled to receive any earned but unpaid
compensation or expense reimbursement due hereunder through the date of
termination.
ARTICLE
11
PERSONNEL
POLICIES, CONDITIONS, AND BENEFITS
Except
as
otherwise provided herein, Employee’s employment shall be subject to the
personnel policies and benefit plans which apply generally to Employer’s
employees as the same may be interpreted, adopted, revised or deleted from
time
to time, during the Term of this Agreement, by Employer in its sole discretion.
During the Term hereof, Employee shall be entitled to vacation during each
year
of the Term at the rate of three (3) weeks per year. Employee shall take such
vacation at a time approved in advance by Employer, which approval will not
be
unreasonably withheld but will take into account the staffing requirements
of
Employer and the need for the timely performance of Employee's
responsibilities.
ARTICLE
12
BENEFICIARIES
OF AGREEMENT
This
Agreement shall inure to the benefit of Employer and any affiliates, successors,
assigns, parent corporations, subsidiaries, and/or purchasers of Employer as
they now or shall exist while this Agreement is in effect.
ARTICLE
13
GENERAL
PROVISIONS
No
Waiver
13.1
No
failure by either party to declare a default based on any breach by the other
party of any obligation under this Agreement, nor failure of such party to
act
quickly with regard thereto, shall be considered to be a waiver of any such
obligation, or of any future breach.
Modification
13.2
No
waiver
or modification of this Agreement or of any covenant, condition, or limitation
herein contained shall be valid unless in writing and duly executed by the
parties to be charged therewith.
Choice
of Law/Jurisdiction
13.3
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California, without regard to any conflict-of-laws principles. Employer
and Employee hereby consent to personal jurisdiction before all courts in the
State of California, and hereby acknowledge and agree that California is and
shall be the most proper forum to bring a complaint before a court of
law.
Entire
Agreement
13.4
This
Agreement embodies the whole agreement between the parties hereto regarding
the
subject matter hereof and there are no inducements, promises, terms, conditions,
or obligations made or entered into by Employer or Employee other than contained
herein.
Severability
13.5
All
agreements and covenants contained herein are severable, and in the event any
of
them, with the exception of those contained in Articles 1 and 4 hereof, shall
be
held to be invalid by any competent court, this Agreement shall be interpreted
as if such invalid agreements or covenants were not contained
herein.
Headings
13.6
The
headings contained herein are for the convenience of reference and are not
to be
used in interpreting this Agreement.
Independent
Legal Advice
13.7
Employer
has obtained legal advice concerning this Agreement and has requested that
Employee obtain independent legal advice with respect to same before executing
this Agreement. Employee, in executing this Agreement, represents and warranties
to Employer that he has been so advised to obtain independent legal advice,
and
that prior to the execution of this Agreement he has so obtained independent
legal advice, or has, in his discretion, knowingly and willingly elected not
to
do so.
No
Assignment
13.8
Employee
may not assign, pledge or encumber his interest in this Agreement nor assign
any
of his rights or duties under this Agreement without the prior written consent
of Employer.
IN
WITNESS WHEREOF the
parties have executed this Agreement effective as of the day and year first
above written.
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Employer:
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By: |
/s/ Andrew
Hidalgo |
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Andrew
Hidalgo
President
& CEO
WPCS
International Incorporated
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Employee: |
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By: |
/s/ Charles H.
Madenford |
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Charles
H. Madenford
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