EXHIBIT 10.4
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT, dated as of March 24, 1997 (the "Effective
Date"), is by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (the "Manager") and Global
Exchange, Inc, a Virginia corporation with its principal offices at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company").
WHEREAS the Company desires to employ Manager as a Project Manager of the
Company for the period and upon the terms and conditions hereinafter set forth;
and
WHEREAS Manager desires to serve in such capacities upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the Company and Manager hereby agree as follows:
1. Employment.
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a) The Company will employ the Manager and Manager agrees to be employed
by the Company, as a Project Manager. Manager will have the responsibilities,
duties and authority commensurate with his position as a Project Manager
including, without limitation, responsibility for directing the certain client
projects ("Responsibilities"). Manager will also have such other
responsibilities, duties and authority as may from time to time be assigned to
him by the President or Board of Directors of the Company.
b) The Manager will be required to devote (i) substantially his entire
time during Company business hours as defined in then current Company policies,
plus any other reasonable time required to complete the obligations of his
Responsibilities (reasonable sick leave, holidays, vacation time and other time
and efforts not defined in this section of the Employment Agreement exempt) and
(ii) his best efforts to faithfully and satisfactorily fulfill the obligations
of his Responsibilities to further the Company's best interests.
2. Term of Employment. Manager's employment hereunder shall commence on
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March 24, 1997 (the "Commencement Date") and continue until the first
anniversary thereof, unless terminated earlier in accordance with the terms
hereof. The term of the Manager's employment hereunder shall renew automatically
for additional successive one-year periods, unless either party hereto provides
written notice of its intention not to renew the Agreement at least ninety (90)
days prior to the applicable expiration date.
3. Compensation. In consideration for Manager's services under this
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Agreement, Manager will be (i) paid salary at an annual rate of $85,000, subject
to increases (the "Annual Salary") and (ii) Manger agrees to accrue $5,000 of
his annual salary until December 31, 1997, the accrued amount to be paid with
his first pay installment of the 1998 fiscal year or at such other time as
directed by the President. Manager's Annual Salary shall be paid in periodic
installments at such times as salaries are generally paid to other Managers of
the Company and all compensation under this agreement shall be subject to
required withholdings and deductions.
4. Vacation, Benefits and Reimbursement of Expenses.
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(a) Vacation. Manager shall be entitled to vacation commensurate with
other senior managers of the Company.
(b) Employee Benefit Plans and Other Benefits. Manager shall also be
entitled to participate in any employee benefit plans which the Company provides
or may establish for the benefit of its Managers including, without limitation,
life, medical, dental and other insurance, 401(k), stock option, and similar
plans.
(c) Reimbursement of Expenses. Manager shall be entitled to reimbursement
for all ordinary and reasonable out-of-pocket business expenses which are
reasonably incurred by him in furtherance of the Company's business in
accordance with policies adopted from time to time by the Company.
5. Termination by the Manager. Manager's employment may be terminated by
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him, by giving a written notice of at least ninety (90) days to the Company. In
the event of such a notice, the Company may elect to waive the ninety (90) day
period or any portion thereof, in which event Manager's employment shall end as
of such earlier date. For purposes of this Paragraph 6, the Termination Date
shall be such date as Manager's employment ends.
6. Termination by the Company. Manager's employment may be terminated at
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any time by the Company (a) with Cause, by a written notice to Manager,
effective immediately unless otherwise stated in such notice, which date shall
be the Termination Date therefor, (b) without Cause at any time, by a written
notice to Manager, effective ninety (90) days after the date given, except as
Manager and the Company may otherwise agree in writing, which date of
effectiveness shall be the Termination Date therefor, or (c) for death or total
and permanent disability in accordance with Paragraph 7.
For purposes of this Agreement, the term "Cause" means (i) the willful and
continued failure by Manager to substantially perform his duties hereunder, or
(ii) the willful engaging by Manager in misconduct which is materially injurious
to the Company, monetarily or otherwise, or (iii) a felony conviction by a court
of competent jurisdiction or (iv) confirmed and continuing intoxication by
alcohol or other controlled substances.
7. Termination upon Death or Disability.
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(a) Manager's employment by the Company shall terminate upon his death, or
upon the Company's written notice if, by virtue of total and permanent
disability, Manager is unable to perform his duties hereunder.
(b) Manager shall be considered to be totally and permanently disabled
hereunder if for reasons involving mental or physical illness or physical injury
Manager is unable to or fails to perform his duties hereunder for a period of
ninety (90) consecutive calendar days or for any periods aggregating ninety (90)
days or more in any twelve (12) consecutive month period. The determination
that, by virtue of total and permanent disability, Manager is unable to perform
his duties hereunder shall be made by a physician chosen by the Company and
reasonably satisfactory to Manager (or his legal representative). The cost of
such examination shall be borne by the Company. In the event of total and
permanent disability, the Termination Date shall be the date of the Company's
written notice.
8. Payments of Compensation Upon Termination.
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(a) In the event Manager's employment hereunder shall be terminated by the
Manager other than for Good Reason (as herein after defined), by the Company for
Cause or as a result of death or total and permanent disability, Manager shall
be entitled as of the Termination Date to no compensation under this Agreement,
except as provided in Section 9.
(b) In the event Manager's employment is terminated by Manager for Good
Reason, by the Company without Cause or by reason of the Company's election of
non-renewal of the term under Section 2 such that Manager will not have been
employed hereunder for at least three years from the Commencement Date, then in
any of such events the Company shall pay to Manager an amount equal one-half to
his then-current annualized salary as provided for in Section 3, which salary-
based amount shall be paid, commencing with the first day of the month next
following the month during which such termination occurs, in six equal monthly
installments at the times and in the manner in which his salary had been paid
during his employment.
(c) During such six-month period after termination of his employment, the
Company shall continue to pay or provide all of the fringe benefits which it had
been making available to Manager prior to such termination or, if the provision
thereof is not possible, the economic equivalent thereof.
(d) For purposes of this Agreement, the term "Good Reason" shall mean a
diminution in the authority, compensation level (annual salary or annual bonus),
working conditions or support which Manager had or was entitled to have as of
the Commencement Date, or the promotion date if the Manager accepts a promotion,
including but not limited to any curtailment by the Company's President, or as
appropriate the Board of Directors, of the power of the Manager to act within
his role as Project Manager or other role as defined by any accepted promotion,
any change in his title or position not accepted by the Manager as a promotion
such that he is no longer in name or in fact a Project Manager of the Company,
or any requirement that Manager serve as an Manager of the Company or any
subsidiary or other affiliate of the Company in any location other than the
Washington, D.C. - Metroplex area or Greater New York City.
9. Accrued Compensation. In the event of any termination of Manager's
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employment for any reason, Manager (or his estate) shall be paid such portion of
Manager's Base Salary as has accrued by virtue of his employment during the
period prior to termination and has not yet been paid, together with any amounts
for expense reimbursement which have been properly incurred in accordance with
the provisions hereof prior to termination and have not yet been paid. Such
amounts shall be paid within fifteen (15) days of the Termination Date.
10. General.
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(a) Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth above or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by
telecopy, (iii) sent by overnight courier, or (iv) sent by registered or
certified mail, return receipt requested, postage prepaid. All notices,
requests, consents and other communications hereunder shall be deemed to have
been given either (i) if by hand, at the time of the delivery thereof to the
receiving party at the address of such party set forth above, (ii) if made by
telecopy, at the time that receipt thereof has been acknowledged by electronic
confirmation or otherwise, (iii) if sent by overnight courier, on the next
business day following the day such notice is delivered to the courier service,
or (iv) if sent by registered
or certified mail, on the fifth business day following the day such mailing is
made.
(b) Entire Agreement. This Agreement, agreements to which this Agreement
refers and the Exhibits hereto embody the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersede all prior oral or written agreements and understandings relating to
the subject matter hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in this Agreement or the Exhibits
hereto shall affect, or be used to interpret, change or restrict, the express
terms and provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by the
parties hereto.
(d) Waivers and Consents. The terms and provisions of this Agreement may
be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent shall be deemed to be or shall constitute
a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
(e) Parties. This Agreement is personal and shall in no way be subject to
assignment by Manager except as contemplated hereby. This Agreement shall be
binding upon and shall inure to the benefit of the Company and its successors
and assigns.
(f) Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the law
of The Commonwealth of Virginia, without giving effect to the conflict of law
principles thereof.
(g) Severability. The parties intend this Agreement to be enforced as
written. However, if any portion or provision of this Agreement shall to any
extent be declared illegal or unenforceable by a duly authorized court having
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(h) Headings and Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify, or affect the meaning or construction of any of the terms or
provisions hereof.
(i) No Waiver of Rights, Powers and Remedies. No failure or delay by a
party power or remedy under this Agreement, and no course of dealing between the
parties hereto, shall operate as a waiver of any such right, power or remedy of
the party. No single or partial exercise of any right, power or remedy under
this Agreement by a party hereto, nor any abandonment or discontinuance of steps
to enforce any such right, power or remedy, shall preclude such party from any
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder. The election of any remedy by a party hereto shall not
constitute a waiver of the right of such party to pursue other available
remedies. No notice to or demand on a party not expressly required under this
Agreement shall entitle the party receiving such notice or demand to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the party giving such notice or demand to any other or
further action in any circumstances without such notice or demand.
(j) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
Global Exchange Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇, President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
March 24, 1997
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇▇:
This letter sets forth in writing the terms of the agreement between you
(the "Employee") and Global Exchange, Incorporated, a Virginia corporation (the
"Company", which term shall include any subsidiaries and affiliates of Global
Exchange, Incorporated).
The Company and the Employee hereby acknowledge the following: (i) The
Company is currently engaged in all phases of the business of researching,
developing, owning, marketing, licensing and distributing Internet-related
computer software and providing related consulting services to its clients,
including its ForSite Extranet software; (ii) The Company has developed
significant reputation and goodwill in its industry throughout the United States
and abroad; (iii) The success of the Company's business depends upon the
continued confidentiality of its proprietary information and trade secrets; (iv)
The Employee is or will be employed by the Company in a position of trust and
confidence and in a capacity in which he has or will become familiar with the
Company's confidential information and trade secrets; (v) In the course of his
employment or through the use of Company facilities or resources, the Employee
may have or may in the future have contributed to the development of Company
trade secrets and confidential business information; and (vi) The Company and
the Employee are entering into this agreement in consideration of the employment
or continued employment of Employee, the granting of bonuses, raises or stock
options, if applicable, other good and valuable consideration, and to further
document Company policies now in effect.
In consideration of the foregoing acknowledgments and the agreements set
forth herein, the Employee and the Company hereby agree as follows:
1. The Employee will make full and prompt written disclosure to the
Company of all inventions, innovations, improvements, modifications, know-how,
discoveries and developments (the "Developments"), whether or not patentable or
copyrightable, which are conceived, made or discovered by or under the direction
of the Employee, alone or jointly with others, during the course of his
employment with the Company or as a direct or indirect result thereof, including
those made or discovered during normal working hours, on the premises of the
Company, or using Company resources, and including Developments suggested by any
work or services performed or to be performed by the Employee for the Company.
The Developments will be the sole, absolute and exclusive property of the
Company, including any copyrights and patent rights in the Developments, and
Employee hereby assigns all rights in the Developments to Company.
2. All Developments devised, made, developed or perfected after
termination of the Employee's employment are within the provisions of Paragraph
1 if conceived in whole or material part during the period of employment or with
the use of Company resources or facilities.
3. At the request and expense of the Company but without charge to the
Company, the Employee will do all acts and things as may be necessary to confirm
and vest the entire right, title and interest in the Developments in the Company
and secure to the Company full protection of the same, including without
limitation, the execution and delivery of assignments, patent applications and
other documents or papers. In order to confirm the Company's rights, the
Employee will also assign to the Company any and all copyrights and reproduction
rights to any written material prepared by the Employee in connection with his
employment.
4. All Developments furnished by the Employee to the Company will be the
Employee's own and original creation except for materials in the public domain
and will not to the best of his knowledge or belief violate or infringe upon any
right, patent, copyright, trademark or right of privacy, or constitute libel or
slander against or violate any other rights of any person, firm or corporation.
5. During the Employee's period of employment with the Company and after
the voluntary or involuntary termination of such employment, whether initiated
by the Employee or the Company, the Employee will hold in the strictest
confidence and will not, without the express written authority of the Company,
directly or indirectly disclose to others, disseminate, use or publish, other
than use in the ordinary course of the Company's business, any proprietary,
secret or confidential information of the Company (which for the purposes hereof
shall include without limitation the Developments, information designated by the
Company as "proprietary," "secret," or "confidential" (or similarly designated)
and information which is not generally known to those outside of the Company),
including but not limited to any such information concerning: (a) the business
or operations of the Company or any of its clients, suppliers, customers,
consultants, licensees, or others with which it does business ("Business
Partners"), (b) any Company or Business Partner materials, apparatus, processes,
methods, ways of business, formulae, technology, research, development, customer
lists, customer requirements, supplier lists, models, computer programs, program
descriptions, flow charts, equipment designs, equipment descriptions,
documentation, records, books, technical information, blueprints, databases, or
data, or (c) the existence or betterment of, or possible new uses or
applications for, any Company or Business Partner product or service
(Collectively, "Confidential Information").
Additionally, during the Employee's period of employment with the Company
and after the voluntary or involuntary termination of such employment, whether
initiated by the Employee or the Company, the Employee will hold in the
strictest confidence and will not, without the express written authority of the
Company's executive staff, directly or indirectly disclose to others,
disseminate, use or publish, other than use in the ordinary course of the
employee's duties for the Company, any proprietary, secret or confidential
information of the Company (which for the purposes hereof shall include without
limitation information designated by the Company as "proprietary," "secret," or
"confidential" (or similarly designated) and personnel or financial information
which is not generally known to the Company's staff), including but not limited
to any such information concerning: (a) the business or operations of the
Company or any of its clients, suppliers, customers, consultants, licensees, or
others with which it does business
("Business Partners") or (b) any Company personnel and financial records,
processes, methods, ways of business, or documentation (Collectively,
"Confidential Information").
6. Upon the cessation of the Employee's employment by the Company for
any reason, he shall not take from, and will promptly return to the Company, any
and all Confidential Information and any writings or documents whatever or
reproductions thereof and any and all other information of a proprietary, secret
or confidential nature which relate in any way to the Company's operations,
business, assets, research, development, and any of the other items covered by
paragraph 5 above then in Employee's possession or control.
7. The Employee represents and warrants to the Company as follows: (i)
he is not under any obligation to any person which is inconsistent or in
conflict with this letter agreement or which would prevent, limit or impair in
any way the performance of his obligations hereunder; and (ii) he has not
disclosed and will not disclose to the Company, nor use for the Company's
benefit, any confidential information or trade secrets of any prior employer or
principal, unless and until such confidential information and trade secrets have
become public knowledge without the Employee's participation, or unless such
disclosure is permitted by any agreement with such prior employer or principal.
8. The Employee agrees that during the term of his employment with the
Company he will not: (a) directly or indirectly, either as principal, agent,
employee, consultant, officer, director, stockholder, or in any other capacity,
engage in or have a financial interest in, any business which is competitive
with the business of the Company or any of its subsidiaries or affiliates, (b)
induce employees of the Company or any of its subsidiaries or affiliates to join
with him in any capacity, direct or indirect, in any business in which he may be
or become interested whether or not competitive with the Company, or (c) solicit
customers of the Company in competition with the Company. Notwithstanding
Section 8(a), the Employee may continue to hold or purchase at prevailing
publicly traded rates not more than one percent (1%) of the outstanding and
issued shares of any publicly traded company which is competitive with the
business of the Company or any of its subsidiaries or affiliates.
Without limiting the generality of the foregoing, a business will be deemed
competitive or in competition with the Company if it involves the research,
development, production, manufacture, marketing, distribution, licensing, or
sale of any product which is or is intended to be directly or indirectly
competitive with or similar to products being researched, developed, produced,
manufactured, marketed, distributed, licensed or sold by the Company at any time
during the Employee's employment.
9. This letter agreement does not bind the Employee or the Company to
any specified period of employment, such employment being at the will of both
the Company and the Employee unless otherwise agreed in writing; and the
voluntary or involuntary termination of the Employee's employment shall not
affect the obligations of the Employee and the Company hereunder.
10. The Employee acknowledges that should he breach any of the covenants
set forth in this letter, monetary damages would not provide the Company with an
adequate remedy for such breach, and he hereby consents in addition to any
monetary award to the entry of an order in any court of competent jurisdiction
enjoining any activity constituting such a breach and requiring specific
performance of his obligations hereunder.
11. If any portion or provision of this letter agreement should be
determined by a court of competent jurisdiction to be invalid or unenforceable,
then this letter agreement is intended to and shall be valid and enforced to the
fullest extent permitted by law.
12. Nothing contained in this letter agreement shall refer to or affect
any condition of employment or other item not specifically mentioned herein.
This letter agreement shall be construed in accordance with and governed by the
laws of the Commonwealth of Virginia, and shall inure to the benefit of and be
binding upon the heirs, executors, administrators, personal representatives and
assigns of the Employee and upon the legal representatives, successors and
assigns of the Company. The Employee agrees to jurisdiction and venue in the
federal and state courts within the Commonwealth of Virginia for all disputes
and enforcement actions arising under this Agreement.
Please indicate your acceptance of the terms of this letter agreement by
signing in the place provided below, whereupon this letter agreement shall take
effect as an instrument under seal.
Very truly yours,
Global Exchange, Incorporated
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇
___________________________
Title: CEO
_______________________
Agreed to as of the date
on page 1 of this letter agreement.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
