EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is effective as of February 1, 2001, by
and between XXXx.xxx, Inc. ("Employer"), and Xxxx Xxxxxx ("Employee").
Employer and Employee are also each individually referred to as a "Party" and
collectively as the "Parties".
WHEREAS, Employer desires to retain the experience and skills of
Employee;
THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth and other good and valuable consideration, the Parties
hereto agree as follows:
1. Employment. Commencing February 1, 2001, and continuing through January
31, 2002, unless sooner terminated under the provisions of Section 4 below,
and from year to year thereafter until terminated under the provisions of
Section 4 below, Employer shall employ Employee as its President and Member of
the Board of Directors, to perform the duties and assume the responsibilities
assigned to Employee by Employer and mutually agreed upon by the parties.
Employer agrees that Employee's principal time will be at facilities in the
Northern Virginia area. Employee acknowledges that the responsibilities may
involve travel to other locations and that he will make himself reasonably
available for such travel. The parties agree that Employee's initial
responsibilities shall be those as described in Schedule A (Job
Responsibilities).
2. Commitment of Employee. With the exceptions described in section 2D below,
Employee shall, to the best of his ability, devote his full business time and
best efforts to the performance of his duties under this Agreement and the
business and affairs of Employer. Employee shall duly, punctually, and
faithfully perform and observe any and all reasonable rules and regulations
which Employer may now or shall hereafter establish governing the conduct of
its business and the conduct of its employees, except to the extent that such
rules and regulations are inconsistent with this Agreement. Without the prior
written consent of Employer Employee:
(A) Shall not acquire, assume, or participate in, directly or
indirectly, any position, investment, or interest known by Employee to be
adverse, competitive, or antagonistic to Employer, Employer's business, or
Employer's prospects, financial or otherwise. If Employee becomes aware that a
previously permitted position, investment, or interest has become adverse,
competitive, or antagonistic to Employer, Employer's business, or Employer's
prospects, financial or otherwise, Employee shall promptly take effective
action to disassociate himself from said position, investment, or interest.
(B) Notwithstanding the above, may own as a passive investor securities
of any other competing business entity so long as his direct or indirect
holdings in any one such entity shall not in the aggregate constitute a
controlling interest.
(C) Notwithstanding the above, may engage in educational, charitable,
civic, political, social, trade association, and other non-profit activities
to the extent such activities do not materially interfere with the performance
of his duties to Employer and as long as said activities and the organizations
with which he engages in said activities are not adverse, competitive, or
antagonistic to Employer, Employer's business, or Employer's prospects.
(D) Notwithstanding the above, Employer acknowledges that Employee owns
(list current ownership in other companies). Notwithstanding the above,
Employee agrees that his responsibilities to Employer under this Agreement
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shall be considered non-exclusive, first priority, and that nothing in his
responsibilities to these companies shall prevent Employee from fulfilling his
obligations under this Agreement.
3. Compensation.
(A) Salary. During his employment under this Agreement, Employer shall pay
Employee a salary at the rate of $120,000.00 per year payable biweekly at the
rate of $4,615.38, less appropriate deductions as required by law or otherwise
permitted by Employee.
(B) Benefits. Employee shall be entitled to participate in and enjoy according
to Employer policy any and all expense reimbursement, pension, retirement,
profit-sharing, stock purchase, stock option, life insurance, accident
insurance, medical reimbursement, health insurance or hospitalization plan,
cafeteria plan, deferred compensation plan, vacations, holidays and other
leave, and any other fringe benefits in which other employees of the Employer
in positions similar to his are eligible to participate and entitled by
Employer policy to enjoy.
(C) Commissions. Employee is entitled to receive commissions according to
the Employer's commission schedule as applied to Employee's job
description. Employer reserves the right to modify or change the
Company's commission schedules at any time with 30 day notice given to
employee. A copy of the Employer's commission schedule is attached as
Exhibit B to this agreement.
(D) Bonus. Employer agrees to grant to Employee a $15,000.00 in the form of
INFE S-8 Common Stock, par value $.0001 based on the fair market value of
the stock on the date of grant as a sign-on bonus. Such stock shall be
granted under the terms that Employee is restricted to selling no more
than one-third of this stock in any one month. Employer or its officers,
directors or employees will be notified prior to each sale so as to have
a first right of purchase at fair market value off the market.
(E) Stock Options. Employer hereby grants to Employee options to purchase
1,500,000 shares of INFE Common Stock par value $.0001 as long as the
employee is employed by the company. The first 500,000 options priced at
$0.26 will vest immediately. The second 500,000 options priced at $0.50
will vest on the first employment anniversary; the third 500,000 options
priced at $1.00 will vest on the second employment anniversary.
4. Term and Termination.
(A) This Agreement shall terminate of its own terms upon the death of
Employee.
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(B) Termination for Cause. Employer may terminate this Agreement for Cause
without notice if Employee, in the reasonable determination of Employer's
Board of Directors, President or CEO: Has been indicted for, charged with, or
convicted of any felony or any crime of moral turpitude; has become notorious
for personal dishonesty, willful misconduct, or breach of fiduciary duty
involving personal profit; has engaged or intends to engage in conduct (by act
or omission) which brings Employer or any of its customers, suppliers, or
contractors into public disgrace or disrepute; has engaged in any conduct (by
act or omission) involving dishonesty or fraud with respect to Employer or any
of its customers, suppliers, or contractors; has intentionally failed or
intends to fail to perform any of his duties to Employer (including but not
limited to persistent unsatisfactory performance of material duties); is or
intends to be in willful violation of any law, rule, or regulation of any
governmental agency having jurisdiction over Employee, other than traffic
violations or similar offenses; has been unaccountably absent for 15 calendar
days; has caused or is causing or intends to cause Employer to violate any
order issued against Employer by a court or government agency having authority
and jurisdiction to issue such order; or is in breach or default of or intends
to breach or default with respect to any obligation under this Agreement.
Employee may terminate this Agreement for Cause if Employer breaches any of
the material terms of this Agreement, including but not limited to the timely
delivery of compensation, benefits, and offices in South Florida.
(C) Return of Property. Upon termination of Employee's employment under this
Agreement, Employee shall deliver to Employer all property of Employer,
including memoranda, notes, plans, records, reports, and other documents
(including copies thereof), on any medium of recording containing information
confidential or otherwise proprietary to Employer.
(D) Survival of Provisions. Except for the rights and obligations in Sections
1 and 2 and Subsections (A) and (B) of Section 3, the rights, obligations,
covenants, acknowledgments, and representations in this Agreement shall
survive its termination and shall remain in full force and effect until each
is fully satisfied. If Employer is in default and such default leads to the
termination of this Agreement, Section 3 shall survive for the remainder of
the then current term of this Agreement and Section 6B shall terminate.
5. Representations and Warranties. Employee represents, acknowledges, and
warrants that:
(A) He has full right, authority, and competence to enter into this Agreement
and fully perform his obligations hereunder;
(B) He is not subject to any non-competition agreement that would prevent or
restrict him in any way from performing his duties for Employer anywhere in
the world;
(C) His past, present, and anticipated future activities have not and will not
infringe on the proprietary rights of others;
(D) He is not obligated under any contract (including licenses, covenants,
guaranties, or moral or legal commitments of any nature) or other agreement,
or subject to any judgment, decree, or order of any tribunal which would be in
conflict with his obligation to use his best efforts to promote the interests
of Employer or which would be in conflict with Employer's business as
conducted or as proposed to be conducted;
(E) Neither the execution nor the delivery of this Agreement, nor the carrying
on of Employer's business will be in conflict with or result in a breach of
the terms, conditions, or provisions of or constitute a default under any
contract, covenant, or instrument under which Employee is obligated.
6. Special Covenants. A. Nondisclosure and Nonuse. Employee agrees that,
except as may be required to be disclosed to a third party in the discharge of
Employee's duties under this or other Agreements with Employer or as required
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by law or appropriate regulatory bodies, he shall regard and preserve as
confidential all information pertaining to the business of Employer, its
customers, and others that has been obtained by him during the course of his
employment. During any period of employment by or other affiliation with
Employer, Employee shall not, directly or indirectly, use for Employee's own
benefit or for the benefit of any third party or disclose to any others any of
such information without written authority from the President of Employer.
Employer and its continued success depend upon the use and protection of a
large body of confidential and other proprietary information. Under this
Agreement Employee will hold a position of trust and confidence by virtue of
which Employee will necessarily possess and have access to highly valuable,
confidential, and proprietary information of Employer not known to the public
in general. It would be improper for Employee to make use of this information
for the benefit of himself and others. Employer has a protectable interest in
all such information, and all memoranda, notes, plans, records, reports, and
other documents (including copies thereof), on any medium of recording
containing such information are and will remain the property of Employer.
None of the provisions of this section shall apply to
(i) Information which is or becomes generally available to the public
(other than as a result of a disclosure by Employee or Employee's
representatives, employees, agents or affiliates),
(ii) Information which Employee can show was available to Employee on a
non-confidential basis prior to the disclosure by Employer to
Employee from a source other than the Employer or one of its
representatives which is entitled to disclose it, or
(iii) Information which Employee can show became available to Employee on
a non-confidential basis from a source other than the Employer or
its representatives, provided that such source is not, nor should be
known by Employee to be bound by a confidentiality agreement with
the Employer or otherwise prohibited from transmitting the
information to Employee by a contractual, fiduciary or other legal
obligation.
This Subsection shall not be construed as restricting Employee from disclosing
any information (whether proprietary and confidential to Employer or not) to
employees of Employer or others engaged by Employer who reasonably require
access to such information in order to discharge their duties to Employer.
Notwithstanding the other provisions of this Subsection, if Employee obtains
any information subject to statutory, regulatory, or judicial restraints on
disclosure, including but not limited to federal and state securities laws and
regulations, or any information which he is directed to disclose by law,
regulation, government administrative action, or judicial order, he shall
observe said restraints and directives.
(B) Noncompetition. So long as Employee is employed by Employer,
Employee shall not directly or indirectly own, manage, control, participate
in, consult with, render services for, or in any way engage in the business of
Employer, except as provided in Subsections 2(B), 2(C) and 2(D) above. In
addition, so long as Employee is employed by Employer, Employee shall not,
directly or indirectly, knowingly acquire or attempt to acquire an interest in
any business entity relating to any line of business in which Employer engages
or actively intends to engage.
(C) Nonsolicitation. So long as Employee is employed by or otherwise
affiliated with Employer and for an additional 12 months thereafter, Employee
shall not directly or indirectly knowingly induce or attempt to induce any
employee of Employer to leave the employ of Employer.
(D) Noninterference. So long as Employee is employed by or otherwise
affiliated with Employer and for an additional 12 months thereafter, Employee
shall not directly or indirectly knowingly induce or attempt to induce any
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owner of a site location, customer, supplier, licensee, or other business
relation of Employer to cease doing business with Employer or in any way
interfere with the relationship between any such owner, customer, supplier,
licensee, or other business relation and Employer.
(E) Acknowledgments. Employee acknowledges that the provisions in this
Section are in consideration of employment by Employer and the other
obligations of Employer under this Agreement. Employee expressly agrees and
acknowledges that the restrictions in this Section do not preclude Employee
from earning a livelihood, nor do they reasonably impose limitations on
Employee's ability to earn a living. Employee agrees and acknowledges that
the potential harm to Employer of the non-enforcement of the provisions of
this section outweighs any harm to Employee of their enforcement by
injunction, specific performance, or otherwise. Employee acknowledges that
Employee has carefully read this Agreement and has given careful thought to
the restraints imposed upon him/her by this Agreement, and is in full accord
as to their necessity for the reasonable and proper protection of Employer.
Employee expressly acknowledges and agrees that each and every restraint
imposed by this Agreement is reasonable with respect to subject matter, time
period, and geographical scope, and may be enforced by equitable remedies
including Temporary Restraining Orders, Preliminary Injunctions, and Permanent
Injunctions.
(F) Employee's obligations under this Section shall also run to any
subsidiary, joint venture, or other business entity in which Employer has a
direct or indirect ownership interest with voting or other control rights, as
well as to Employer, and the term "Employer" as used in this Section shall be
deemed to include any such subsidiary, joint venture, or other business
entity, as well as Employer.
(G) Employee acknowledges that Employer's Employee Manual is considered
part of this agreement and that he has read the Manual and agrees to its
terms.
7. Ownership of Intellectual Property Created, Developed, or Invented by
Employee.
(A) Definition. For the purposes of this Agreement, "Employer
Intellectual Property" includes inventions, discoveries, improvements,
creations, images, sounds, textures, software and media (including but not
limited to tapes, disks, paper, and other storage and recording media) that
were or are or will be created, developed, or invented by Employee for
Employer.
(B) Assignment. Employee grants, transfers, assigns, and conveys to
Employer, its successors and assigns, the entire title, right interest,
ownership, and all subsidiary rights in and to all Employer Intellectual
Property, including but not limited to patent rights, the right to secure
copyright, trademark, service xxxx, or trade name registration therein and to
any resulting registration in Employee's name as claimant, the right to secure
renewals, reissues, and extensions of any such registration in the United
States of America or any foreign country, and the right to use any other form
of legal protection including maintaining it as a trade secret. Employee
agrees that the rights of Employer under this Section were and are effective
immediately upon the creation of Employer Intellectual Property.
(C) Authority. Whether any copyright, trademark, service xxxx, trade
secret, or trade name in Employer Intellectual Property shall be preserved and
maintained or registered or whether Employer Intellectual Property shall be
patented in the United States of America or in any foreign country shall be at
the sole discretion of Employer.
(D) Work Made For Hire. Employee agrees that all Employer Intellectual
Property is "work made for hire" as defined in 17 U.S.C. Section 201(b) and
that Employee has been hired or assigned to create, develop, and invent same.
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(E) All Right and Title. Employee hereby confirms that Employer owns
and shall own the entire title, right, and interest in all Employer
Intellectual Property, including the sole right to reproduce, to prepare
derivative works based on the copyright, to transfer and distribute by sale,
rental, lease, or lending, license, or by other transfer of ownership, and to
display, in and to Employer Intellectual Property, whether or not Employer
Intellectual Property constitutes a "work made for hire" as defined in 17
U.S.C. Section 201(b). Employee agrees that no rights in Employer
Intellectual Property are or shall be retained by Employee.
(F) Cooperation. Promptly upon Employer's request, Employee agrees to
take all actions and cooperate as necessary to protect the copyrightability,
patentability, and any other protective measure of and for Employer
Intellectual Property and further agrees to execute any documents that might
be necessary to perfect Employer's ownership of rights in any Employer
Intellectual Property, including but not limited to registration of
copyrights, trademarks, service marks, and trade names and applications for
and ownership of patents. Employer shall reimburse Employee for reasonable
costs incurred by Employee in cooperating under this Subsection after the
termination of Employee's employment under this Agreement.
8. Other.
(A) Nature; Assignment. This Agreement is intended to bind, benefit
and be enforceable by Employee and Employer. Employee shall not assign any
rights or delegate any duties under this Agreement without the written consent
of the President of Employer. Employer may assign its rights and delegate its
obligations hereunder to any subsidiary, joint venture, or other business
entity in which Employer or its parent company has a direct or indirect
ownership interest with voting or other control rights, provided that said
assignee or delegatee shall execute and deliver such documentation necessary
to be bound by the terms of this Agreement. Employer may be released from its
obligations under this Agreement upon such an assignment or delegation.
(B) Merger. This instrument contains the entire agreement of the
Parties relating to the employment relationship between them and supersedes
and cancels all prior written and oral agreements and understandings between
the Parties relating to same which are not set forth herein and other
agreements and documents executed concurrently with this Agreement and to
effect the intent of the Parties as expressed therein.
(C) Changes. No amendment or modification of this Agreement shall be
valid unless made in writing and signed by the Parties.
(D) Waiver. No term or condition of this Agreement shall be deemed to
have been waived except by written agreement of the Party charged with such
waiver.
(E) Choice of Law. This Agreement will be construed in accordance with
the laws of the State of Florida, excluding the choice of law provisions
thereof.
(F) Headings. The headings of the Sections and Subsections in this
Agreement are inserted for convenience only and are not part of this
Agreement.
(E) Counterparts. This Agreement may be executed in separate
counterparts, all of which together constituting one and the same Agreement.
(F) Severability. In the event any one or more of the provisions of
this Agreement shall for any reason be held invalid, illegal, or unenforceable
in any particular circumstance by any tribunal of competent jurisdiction, each
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such provision shall be valid in other circumstances and for the particular
circumstance the remaining provisions of this Agreement shall be read and
construed as though the said invalid, illegal or unenforceable provision had
never been a part hereof. However, if any one or more of the provisions in
this Agreement shall be held to be excessively broad as to duration,
geographical scope, activity, or subject, it shall be construed by limiting
and reducing it so as to be enforceable to the extent compatible with
applicable law as it shall then appear.
(G) Third Party Beneficiaries. Each Party intends that this Agreement
shall not confer any rights or remedies upon any third party except as
otherwise expressly provided herein.
(H) Time. Time is of the essence in the performance of all obligations
of Employee under this Agreement. If any time period for giving notice or
taking action under this Agreement expires on a day which is a Saturday, a
Sunday, or a holiday in the State of Florida, said time period shall be
automatically extended to the next business day.
(I) Notices. All notices to be sent to either Party by the other Party
hereto pursuant to this Agreement shall be sent by registered or certified
mail, return receipt requested, to the following respective addresses or such
other address as the respective addressee may designate by notice to the other
addressees, and shall be deemed delivered as indicated on the return receipt:
If to Employer:
Xxxxxx X. Richfield, President
INFe-Relations, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to Employee, addressed at:
____________________________
____________________________
____________________________
9. Enforcement. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by binding arbitration in
Palm Beach County, Fl, in accordance with the commercial arbitration rules of
the American Arbitration Association then in effect. Judgment may be entered
on the arbitrator's award in any court having jurisdiction. The prevailing
Party in any arbitration or other action to enforce this Agreement, as
determined by the tribunal, shall be entitled to recover reasonable attorneys'
fees and costs incurred in connection with said arbitration or other action.
The Parties agree and acknowledge that money damages may not be an adequate
remedy for any breach of this Agreement and any tribunal may order specific
performance or injunctive relief in order to enforce or prevent any violations
hereof.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective
as of the day and year first above written.
XXXx.xxx, Inc., a Florida corporation:
By: __________________________ By: ________________________
Name: Xxxxxx X. Richfield Name: Xxxx Xxxxxx
Its: Chief Executive Officer
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