EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is made and effective
1/1/98, by and between Intraco Systems, Inc., a Florida Corporation
("Company") and Xxxx X. Xxxxxx ("Executive").
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment.
Company hereby agrees to initially employ Executive as its Chief Executive
Officer and Executive hereby accepts such employment in accordance with the
terms of this Agreement and the terms of employment applicable to regular
employees of Company. In the event of any conflict or ambiguity between the
terms of this Agreement and terms of employment applicable to regular
employees, the terms of this Agreement shall control. Election or
appointment of Executive to another office or position, regardless of whether
such office or position is inferior to Executive's initial office or position,
shall not be a breach of this Agreement.
2. Duties of Executive.
The duties of Executive shall include the performance of all of the duties
typical of the office held by Executive as described in the bylaws of the
Company and such other duties and projects as may be assigned by a superior
officer of the Company, if any, or the board of directors of the Company.
Executive shall devote his entire productive time, ability and attention to
the business of the Company and shall perform all duties in a professional,
ethical and businesslike manner. Executive will not, during the term of this
Agreement, directly or indirectly engage in any other business, either as an
employee, employer, consultant, principal, officer, director, advisor, or in
any other capacity, either with or without compensation, without the prior
written consent of Company.
3. Compensation.
Executive will be paid compensation during this Agreement as follows:
A. A base salary of One Hundred Thirty Seven Thousand, Eight Hundred Dollars
($137,800) per year, payable in installments according to the Company's
regular payroll schedule. The base salary shall be adjusted at the end of
each year of employment at the discretion of the board of directors.
4. Benefits.
A. Holidays. Executive shall be entitled to Holiday, Vacation & Sick Leave
and Emergency leave according to the regular policies and procedures of
Company. Additional sick leave or emergency leave over and above paid leave
provided by the Company, if any, shall be unpaid and shall be granted at the
discretion of the Board of Directors.
B. Medical and Group Life Insurance. Company agrees to include Executive in
the group medical and hospital plan of Company and provide group life
insurance for Executive at no charge to Executive in the amount of Five
Hundred Thousand ($500,000) during this Agreement. Executive shall be
responsible for payment of any federal or state income tax imposed upon these
benefits.
E. Pension and Profit Sharing Plans. Executive shall be entitled to
participate in any pension or profit sharing plan or other type of plan
adopted by Company for the benefit of its officers and/or regular employees.
F. Automobile. Company will provide to Executive the use of an automobile
of Executive's choice. Company will pay all automobile operating expenses
incurred by Executive in the performance of an Executive's company duties.
Company will procure and maintain in force an automobile liability policy for
the automobile with coverage, including Executive, in the amount as it
currently exists in combined single limit on bodily injury and property
damage.
G. Expense Reimbursement. Executive shall be entitled to reimbursement for
all reasonable expenses, including travel and entertainment, incurred by
Executive in the performance of Executive's duties. Executive will maintain
records and written receipts as required by the Company policy and reasonably
requested by the board of directors to substantiate such expenses.
5. Term and Termination.
A. The Initial Term of this Agreement shall commence on January 1, 1998 and
it shall continue in effect for a period of Three (3) years. Thereafter, the
Agreement shall be renewed upon the mutual agreement of Executive and
Company. This Agreement and Executive's employment may be terminated at
Company's discretion during the Initial Term, provided that Company shall pay
to Executive an amount equal to payment at Executive's base salary rate for
the remaining period of Initial Term, plus an amount equal to Fifty percent
(50%) of Executive's base salary. In the event of such termination,
Executive shall not be entitled to any incentive salary payment or any other
compensation then in effect, prorated or otherwise.
B. This Agreement and Executive's employment may be terminated by Company at
its discretion at any time after the Initial Term, provided that in such
case, Executive shall be paid Fifty percent (50%) of Executive's then
applicable base salary. In the event of such a discretionary termination,
Executive shall not be entitled to receive any incentive salary payment or any
other compensation then in effect, prorated or otherwise.
C. This Agreement may be terminated by Executive at Executive's discretion
by providing at least thirty (30) days prior written notice to Company. In
the event of termination by Executive pursuant to this subsection, Company
may immediately relieve Executive of all duties and immediately terminate this
Agreement, provided that Company shall pay Executive at the then applicable
base salary rate to the termination date included in Executive's original
termination notice.
D. In the event that Executive is in breach of any material obligation owed
Company in this Agreement, habitually neglects the duties to be performed
under this Agreement, engages in any conduct which is dishonest, damages the
reputation or standing of the Company, or is convicted of any criminal act or
engages in any act of moral turpitude, then Company may terminate this
Agreement upon five (5) days notice to Executive. In event of termination of
the agreement pursuant to this subsection, Executive shall be paid only at
the then applicable base salary rate up to and including the date of
termination. Executive shall not be paid any incentive salary payments or
other compensation, prorated or otherwise.
E. In the event Company is acquired, or is the non-surviving party in a
merger, or sells all or substantially all of its assets, this Agreement shall
not be terminated and Company agrees to use its best efforts to ensure that
the transferee or surviving company is bound by the provisions of this
Agreement.
6. Notices.
Any notice required by this Agreement or given in connection with it, shall
be in writing and shall be given to the appropriate party by personal
delivery or by certified mail, postage prepaid, or recognized overnight
delivery services;
If to Company:
Intraco Systems, Inc.
0000 XXX Xxxx #000
Xxxx Xxxxx, XX 00000
If to Executive:
Xxxx X. Xxxxxx
0000 Xxxx Xxx
Xxxx Xxxxx XX 00000
7. Final Agreement.
This Agreement terminates and supersedes all prior understandings or
agreements on the subject matter hereof. This Agreement may be modified only
by a further writing that is duly executed by both parties.
8. Governing Law.
This Agreement shall be construed and enforced in accordance with the laws of
the state of Florida with venue in Palm Beach County..
9. Headings.
Headings used in this Agreement are provided for convenience only and shall
not be used to construe meaning or intent.
10. No Assignment.
Neither this Agreement nor any or interest in this Agreement may be assigned
by Executive without the prior express written approval of Company, which may
be withheld by Company at Company's absolute discretion.
11. Severability.
If any term of this Agreement is held by a court of competent jurisdiction to
be invalid or unenforceable, then this Agreement, including all of the
remaining terms, will remain in full force and effect as if such invalid or
unenforceable term had never been included.
12. Arbitration.
The parties agree that they will use their best efforts to amicably resolve
any dispute arising out of or relating to this Agreement. Any controversy,
claim or dispute that cannot be so resolved shall be settled by final binding
arbitration in accordance with the rules of the American Arbitration
Association and judgment upon the award rendered by the arbitrator or
arbitrators may be entered in any court having jurisdiction thereof. Any
such arbitration shall be conducted in Boca Raton, Florida, or such other
place as may be mutually agreed upon by the parties. Within fifteen (15) days
after the commencement of the arbitration, each party shall select one person
to act as arbitrator, and the two arbitrators so selected shall select a
third arbitrator within ten (10) days of their appointment. Each party shall
bear its own costs and expenses and an equal share of the arbitrator's expenses
and administrative fees of arbitration.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Intraco Systems, Inc.
By: ______________________________ _________________________________
Xxxx X. Xxxxxx, Xxxx X. Xxxxxx
President An Individual
Memorandum of Understanding
As of the above referenced date, Intraco Systems, Inc, ("Intraco") hereby
excepts Xxxx X. Xxxxxx to engage in the normal business activities as they
relate to; 1) Pro-Data Systems, Inc, 2) Intraco International, Inc. 3)
Intraco Holding, Inc. 4) Intraco Trading, Inc., (the "Excepted Businesses").
It is further understood that the business activities of the Excepted
Businesses are non-competitive to those of Intraco's and that Xx. Xxxxxx'x
involvement will not interfere with his duties as they relate to Intraco. In
the event that this understanding is breached in either respect, Intraco
reserves the right to revoke this Memorandum of Understanding. Subsequent to
any notice as it may be given, continued involvement with the Excepted
Businesses will be considered a breach of a material obligation as defined in
that Executive Employment Agreement dated 1/1/98 between Xx. Xxxxxx and
Intraco.
Agreed this 1st day of January, 1998
______________________________ ______________________________
Xxxx X. Xxxxxx, President Xxxx X Xxxxxx, an Individual
Intraco Systems, Inc.
INTRACO SYSTEMS, INC.
NONDISCLOSURE AND NON-COMPETITION AGREEMENT
ADDENDUM B
As an employee of Intraco Systems, Inc., I hereby agree to observe all
the provisions of this Agreement, as well as all other rules and policies
that Intraco Systems, Inc. may announce from time to time. Furthermore, this
AGREEMENT is provided by me for the benefit of Intraco Systems, Inc., its
subsidiaries, affiliates, successors and assigns (collectively referred to
"Intraco Systems" or the "Company"). This Agreement serves as a legally
binding acknowledgment and assignment of the ownership of all "Work Product"
(as defined below) that Company may encounter.
Section 1. AVOIDANCE OF CONFLICT OF INTEREST
While employed by Intraco Systems, I will not engage in. any other
business activity that conflicts with my duties to Intraco Systems. Under no
circumstances win I work for any competitor or have any financial interest in
any competitor of Intraco Systems; provided, however, that this Agreement
does not prohibit investment of a reasonable part of my assets in the stock
or securities of any competitor whose stock or securities are publicly traded
on a national exchange.
Section 2. OWNERSHIP AND RIGHTS IN WORK PRODUCT
For purposes of this Agreement, "Work Product" shall mean all
intellectual property rights, including all trade secrets, U.S. and
international copyrights, patentable inventions, and other intellectual
property rights in any programming, documentation, technology, or other work
product that is created in connection with my Work. In addition, all rights
in any preexisting programming, documentation, technology, or other Work
Product provided to Company during the course of my employment or engagement
shall automatically become part of the Work Product. hereunder, whether or not
it arises specifically out of my "Work." For purposes of this Agreement, "Work"
shall mean (1) any direct assignments and required performance by or for
Company, and (2) any other productive output that relates to the business of
Company and is produced during the course of my engagement by Company. For
this purpose, Work may be considered present even after normal working hours,
away from Owner's premises, on an unsupervised basis, alone or with others.
Unless otherwise provided in a subsequent writing signed by Company, this
Agreement shall apply to all Work Product created in connection with all Work
conducted before or after the date of this Agreement.
Intraco Systems, Inc. shall own all rights in the Work Product. To this end,
all Work Product shall be considered Work made by me for hire for Company. If
any of the Work Product may not, by operation of law or agreement be
considered Work made by me for hire for Company (or if ownership of all
rights therein do not otherwise vest exclusively in Company), I agree to
assign, and upon creation thereof automatically assign, without further
consideration, the ownership thereof to Company. I hereby irrevocably
relinquish for the benefit of Company and its assigns any moral rights in the
Work Product recognized by applicable law. Company shall have the right to
obtain and hold, in whatever name or capacity it selects, copyrights,
registrations, and any other protection available in the Work Product.
I agree to perform upon the request of Company, during or after my Work,
such Further acts as may be necessary or desirable to transfer, perfect, and
defend Owner's ownership of the Work Product, including by (1) executing,
acknowledging, and delivering any requested affidavits and documents of
assignment and conveyance, (2) obtaining and/or aiding in the enforcement of
copyrights, trade secrets, and (if applicable) patents with respect to the
Work Product in any countries, and (3) providing testimony in connection with
any proceeding affecting the rights of Company in any Work Product.
I warrant that my Work for Company does not and will not in any way
conflict with any remaining obligations I may have with any prior employer or
contractor. I also agree to develop all Work Product in a manner that avoids
even the appearance of infringement of any third party's intellectual
property rights.
Section 3. CONFIDENTIALITY AND NON-DISCLOSURE
During the course of my engagement and afterwards, I agree not to use or
disclose any trade secrets of Company at any time except as necessary to
perform my duties for Company. Under the law, a "trade secret" -is a type of
intangible property, the theft (i.e., misappropriation) of which is a tort
and crime in most states. It does not have to be in written form to be
protected.
A trade secret generally consists of valuable, secret information or ideas
that Company collects or uses in order to keep its competitive edge,
including confidential information supplied to Company by its customers,
clients, vendors, or agents. Examples of trade secrets are such technical
information as manufacturing or operating processes, equipment design,
product specifications, computer software in source code form, and other
proprietary technology, and such business information as selling and pricing
information and procedures, customer lists, business and marketing plans, ideas
and plans for products, services or other business development, and internal
financial statements. These restrictions do not apply to any information
generally available to the public or any information properly obtained from a
completely independent source.
Furthermore, I agree to maintain in strict confidence, and agree not to
use and disclose except as authorized by Intraco Systems, any information of
a competitively sensitive or proprietary nature that I receive from Intraco
Systems, Inc. or its clients or contractors in connection with my services
hereunder. Intraco Systems agrees to take reasonable steps to identify, and
cause its clients and contractors to identify, for my benefit such
information, including by using confidentiality notices in written material
where appropriate. These restrictions shall not be construed to apply to (1)
information generally available to the public, (2) information released by
Intraco Systems or its clients or contractors, as the case may be, generally
without restriction, (3) information independently developed or acquired by
me without reliance in any way on other protected information of Intraco
Systems or its clients or contractors, or (4) information approved by Intraco
Systems or its clients or contractors, as the case may be, for my use and.
disclosure without restriction.
Section 4. RETURN OF MATERIALS
Upon the request of Intraco Systems and, in any event, upon termination
of my employment, I will leave with Intraco Systems all memoranda, notes,
records, drawings, manuals, disks, or other documents and media pertaining to
Intraco Systems's business, including all copies thereof.
Section 5. COVENANT NOT TO COMPETE
During the term hereof and for a period of two years thereafter, I shall
not compete, directly or indirectly, with the Company, interfere with,
disrupt or attempt to disrupt the relationship, contractual or otherwise,
between the Company and any customer, client, supplier, consultant or employee
of the Company, including, without limitation, employing or being an investor
(representing more than a 5% equity interest) in, or officer, director or
consultant to, any person or entity which employs any former key or technical
employee whose employment with the Company was terminated after the date
which is one year prior to the date of termination of the employee's
employment therewith. An activity competitive with an activity engaged in by
the Company shall mean performing services specifically in the computer
systems integration industry (whether as an employee, officer, consultant,
director, partner or sole proprietor) for any person or entity engaged in the
business engaged in by the Company during the time of my relationship with the
Company or at the time of my termination of my relationship with the Company.
It is the desire and intent of the parties that the provisions of this
Section shall be enforced to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular portion of this Section shall be
adjudicated to be invalid or unenforceable, this Section shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of
this Section in the particular jurisdiction in which such adjudication is made.
Nothing in this Section shall reduce or abrogate the employee's
obligations during the term of this Agreement..
Section 6. NONINTERFERENCE WITH PERSONNEL RELATIONS
During my employment with Intraco Systems and for a period of twelve
months afterwards, I will not knowingly solicit, entice, or persuade any
other employees of Intraco Systems to leave the services of Intraco Systems,
Inc. for any reason.
Section 7. REMEDIES
If there is a breach or threatened breach of the provisions of this
Agreement, the Company shall be entitled to an injunction restraining the
employee from such breach. Nothing herein shall be construed as prohibiting
the Company from pursuing any other remedies for such breach or threatened
breach.
Section 8. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
Laws of the State of Florida with venue in Palm Beach County.
Section 9. MISCELLANEOUS
This Agreement shall inure to the benefit of, and be binding upon,
Intraco Systems and its subsidiaries and affiliates, together with their
successors and assigns, and me, together with my executor, administrator,
personal representative, heirs, and legatees.
This Agreement merges and supersedes all prior and contemporaneous
agreements, undertakings, covenants, or conditions (including specifically
all prior confidentiality and non-competition agreements I have entered),
whether oral or written, express or implied, to the extent they contradict or
conflict with the provisions hereof.
Although it is understood that my employment is contingent on the
acceptance and observance of this Agreement, this Agreement shall not be
construed to make my employment other than -terminable at will at any time by
me or. Intraco Systems in the sole discretion of either party.
IN WITNESS WHEREOF, I have accepted and executed this Agreement under
seal as of the 1st day of January 1998.
EMPLOYEE INTRACO
SYSTEMS, INC.
__________________________ _____________________________
Signature: Xxxx X. Xxxxxx Signature: Xxxx
Xxxxxx, President
Social Security No.____________________
Address:________________________
_______________________________
