EMPLOYMENT AGREEMENT
AGREEMENT, dated September 20, 1999, by and between Enterprises
Solutions Inc., a Nevada corporation ("Company"), doing business as Secure
Systems Solutions, and Xxxxxxx X. Xxxxxxxx ("Employee").
WHEREAS, Secure Systems Solutions is a start up technology company
engaged in developing products for internet security,
WHEREAS, Employee has unique skills and experience in Internet and
computer security solutions.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein and the performance of each, it is
hereby agreed as follows:
ARTICLE I
Employment and Duties
1.01 Position, Duties. The Company hereby employs Employee as Senior Engineer
for new and existing security products development of the Company. The duties of
Employee are as part of the new division, subsidiary or affiliate and include
the design, implementation and installation of products as well as preparation
of related documentation and business proposals. From time to time the Company
may change employee's position and duties in a manner consistent with Employee's
abilities and the needs of the business. Employee hereby accepts this employment
upon the terms and conditions herein contained and agrees to devote his time,
attention and efforts to promote and further the business and services of the
Company. Employee shall faithfully adhere to, execute and fulfill all policies
established by the Company. Any Prior Agreements are hereby superseded,
terminated and shall have no further force or effect nor shall they be legally
binding upon either Employee or the Company.
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1.02 Place of Employment. Company will employ Employee in Northern California.
1.03 Full Time Employment.
A. Employee shall devote his entire productive time, ability and attention
to the business of Employer during the term of this Contract.
B. During the term of this Contract, Employee shall not engage in any
other business duties or pursuits without the knowledge and approval of
the Company. Furthermore, during the term of this Contract, Employee shall
not, whether directly or indirectly, render any services of a commercial
or professional nature to any other person or organization, whether for
compensation or otherwise, without prior consent from the Company.
However, the expenditure of reasonable amounts of time for educational,
charitable or professional activities shall not be deemed a breach of this
Contract if these activities do not materially interfere with the services
required under this Contract, and shall not require the prior written
consent of Employer.
C. This Contract shall not be interpreted to prohibit Employee from making
personal investments in any publicly held shares in any company which are
traded on a securities exchange so long as such holding doe not exceed
five percent (5%) of that company's capital shares. Further, it shall not
prohibit Employee from conducting private business affairs if those
activities do not materially interfere with the services required under
this Contract.
1.04 Funds Held in Trust. All funds received by Employee on behalf of Company,
if any, shall be held in trust for Company and shall be delivered to Company as
soon as practicable.
ARTICLE II
Compensation
2.01 Salary and Draw. From and after the effective date of this Agreement, the
Employee shall receive a salary ("Salary") from the Company in an amount equal
to EIGHTY FIVE THOUSAND DOLLARS ($85,000) per year. Employee's Salary shall be
payable semi monthly payments of $3,541.67.
2.02 Expense Reimbursement. The Company shall reimburse Employee for all
reasonable travel, entertainment and other expenses related to his employment by
or promotion of the Company. Employee shall provide a written accounting an
explanation of all expenses for which reimbursement is sought on a monthly basis
and the Company shall reimburse all such expenses within ten (10) days following
receipt of each written accounting.
2.03 Bonuses. The Employee shall be entitled to receive such bonuses as the
Company shall determine from time to time in accordance with Company policy and
at the sole discretion of the Company.
2.04 Plan Participation. The Employee shall be entitled to participate in any
and all stock option, stock bonus, pension, profit sharing, retirement or other
similar plans adopted by the Company.
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2.05 Other. The Employee shall be entitled to such fringe benefits as the
Company shall establish for its employees generally which shall include with
respect to the Employee at least two weeks paid vacation annually, eight paid
holidays as designated by the Company, provisions for an industry competitive
health, dental and vision and life insurance coverage for Employee and his
dependents from the starting date of this agreement, and such other benefits as
the Company shall adopt, subject to the discretion of the Company to add or
delete such standard benefits as the Company deems appropriate, from time to
time.
2.06 Stock Compensation. Employee shall be entitled to purchase from the
Company 15,000 shares of the Company's Common Stock in blocks of 5,000 shares
each on or after the first, second and third anniversary of the commencement of
his employment, paying the aggregate price of FIVE DOLLARS ($5.00) for each
block of shares, provided that this Agreement is not sooner terminated for death
under Section 5.02A, disability under Sections 5.02B or 5.03A or Cause under
sections 5.02C below. On the execution of this Agreement, Company shall place
all of said shares in escrow, and hold them for the benefit of Employee.
ARTICLE III
Non-Competition Agreement
3.01 No Competition During Employment Term. Employee will not, during his
employment with the Company or during the term of this Agreement, whichever
period is longer, engage in Competition with Company.
3.02 Competition Defined. For purposes of this Agreement, Employee engages in
"Competition" when he directly or indirectly, for himself or on behalf of or in
conjunction with any other person, persons, company, partnership, corporation or
business of whatever nature, (i) calls upon any customer of Company (including,
but not limited to, any customer obtained for Company by Employee) for the
purpose of soliciting or selling any Commercial and Mass market security
products; and (ii) establishes, enters it, is employed by or advises, consults
with or becomes a part of, any company, partnership corporation or other
business entity or venture, or in any way engage in business for himself or for
others, in producing or selling Commercial and Mass Market Security products.
3.03 Injunctive Relief. Because of the difficulty of measuring economic losses
to the Company and its affiliates as a result of his breach of the foregoing
covenant and because of the immediate and irreparable damage that would be
caused to the Company and its affiliates for which it would have no other
adequate remedy, Employee agrees that the foregoing covenant may be enforced by
the Company and its affiliates in the event of breach by him by injunctions and
restraining orders.
3.04 Reasonable Restraint. It is agreed by the parties that the foregoing
covenants in this Paragraph 3 are necessary to protect the goodwill and business
interests of the Company and its affiliates and impose a reasonable restraint on
Employee in light of the activities and business of the Company and its
affiliates on the date of the execution of this Agreement and the future plans
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of the Company; but it is also the intent of the Company and Employee that such
covenants be construed and enforced in accordance with the activities and
business of the Company and its affiliates on the date of the termination of the
employment of the Employee.
ARTICLE IV
Proprietary Information and Non Solicitation
4.01 Proprietary Information. Employee herewith executes and delivers to
Employer the Proprietary Information Agreement attached hereto.
4.02 Non-Solicitation. During the term of this Agreement and for one year
thereafter, Employee will not call upon or cause to be called upon any employee
of Company or any of its affiliates for the purpose or with the intent of
enticing them away from or out of the employ of Company or any reason whatever.
4.03 Injunctive Relief. In the event of a breach or threatened breach by
Employee of the provisions of this Paragraph 4, Company shall be entitled to an
injunction:
A. Restraining the Employee from disclosing, in whole or in part, any
information as described above or from rendering any services to any
person, firm, corporation association or other entity to whom such
information, in whole or in part, has been disclosed or is threatened to
be disclosed; and/or
B. Requiring that Employee deliver to Company all information, documents,
notes, memoranda and any and all discoveries or other material as
described above upon Employee's leave of the employ of the Company.
Nothing herein shall be construed as prohibiting the Company from pursuing
other remedies available to the Company for such breach or threatened
breach, including the recovery of damages from the Employer.
ARTICLE V
Term: Terminations
5.01 Term. The term of this agreement shall begin on September 20, 1999 and
continue until September 19, 2002, unless further extended or sooner terminated
as herein provided. On September 19, 2002, and on the 18th day of July of each
year thereafter, the term of the Employee's employment shall be automatically
extended one (1) additional year unless, on or before sixty (60) days in advance
of such last day of December, the Company shall have delivered to the Employee
or the Employee shall have delivered to the Company written notice that the term
of the Employee's employment hereunder will not be extended.
5.02 Termination by Company. Company may terminate this Agreement and
Employee's employment only in one of the following ways:
A. Termination for Death. Company may terminate this Agreement in the
event of the death of Employee.
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B. Termination for Disability. Company may terminate the Agreement after
thirty (30) days written notice ("Notice of Termination") to Employee if,
because of illness or physical or mental disability or other incapacity
which continues for a period in excess of three (3) months, Employee is
unable to perform his duties under this agreement. Until such Notice of
Termination becomes effective, Employee shall continue to receive his
compensation and benefits hereunder.
C. Termination for Cause. Company may terminate this Contract for Cause.
For purposes of this Agreement "Cause" exists if Employee commits any of
the following acts that have a direct, substantial and adverse effect on
Employer's business: material act of dishonesty or gross misconduct,
unjustifiable neglect of his employment duties, violation of company
policy, conviction of a felony, or such acts of dishonesty, theft, fraud,
misrepresentation, or other acts of moral turpitude.
5.03 Termination by Employee. Employee may terminate this Agreement and
Employee's employment only in one of the following ways:
A. Termination for Disability. Employee may terminate his employment if
his health should become impaired to an extent that makes his continued
performance of his duties hereunder hazardous to his physical or mental
health or his life, provided that Employee shall have furnished Company
with a written statement from a qualified doctor to such effect and
provided, further, that, at Company's request, Employee shall submit to an
examination by a doctor selected by Company and such doctor shall have
concurred in the conclusion of Employee's doctor.
B. Termination for Good Reason. Employee may terminate this agreement
hereunder by resigning for Good Reason.
C. Termination for Management Change. Employee may terminate his
employment and this Agreement in the event that Company changes its Senior
Engineer Executive.
D. Definitions. For purposes of this Agreement, the capitalized terms
shall have the meaning set forth below:
"Good Reason" shall mean (i) a failure by Company to comply with any
material provision of this Agreement, including without limitation any
demand that Employee relocate outside of the Northern California area,
which has not been cured within thirty (30) days after written notice of
such noncompliance has been given by Employee to Company, or (ii) any
purported termination of Employee's employment by Company which is not
effected pursuant to the provisions hereof (and for purposes of this
Agreement no such purported termination shall be effective).
5.04 Compensation Upon Termination for Death or Disability. If Employee's
employment is terminated on death pursuant to 5.02A or disability pursuant to
Section 5.02B or 5.03A, Company shall pay Employee's estate his full salary and
benefits through the date of termination plus all outstanding expenses payable
pursuant to section 2.02 and Company shall have no further obligations to
Employee under this Agreement.
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5.05 Compensation Upon Termination for Cause. If Company terminates Employee's
employment for Cause pursuant to Section 5.02C, Company shall pay Employee his
full salary through the date of termination, at the rate in effect at the time
Notice of Termination is given, and Company shall have no further obligations to
Employee under this Agreement.
5.06 Compensation on Resignation for Good Reason or Company Termination in
Breach of Agreement.
If Employee shall terminate his employment for Good Reason or if Company
shall commit a material breach hereof, including without limitation the wrongful
termination of this Agreement, the Company shall pay Employee the following but
shall have no further obligation to Employee for any other payments,
compensation, benefits, claims or damages.
A. Within 30 days after such resignation or termination, Company shall pay
Employee four (4) months compensation at Employee's then current monthly
salary.
B. Employee shall receive for three (3) months from the date of
termination, all employee benefits plans and programs in which Employee
participated immediately prior to the date of termination provided that
Employee's continued participation is possible under the general terms and
provisions of such plans and programs. All such benefit plans and programs
shall be maintained at the level and value provided immediately prior to
the date of termination. In the event that Employee's participation in any
such plan or program is barred, Company shall arrange to provide Employee
with benefits substantially similar to those which Employee would
otherwise have been entitled to receive under such plans and programs from
which his continued participation is barred.
C. Except as required above, Company shall not be required to maintain in
force for the benefit of Employee any employee benefit plans or programs
following the date of termination.
D. Employee shall not be required to mitigate the amount of any payment
provided for in this Section 5.05 by seeking other employment or
otherwise.
ARTICLE VI
Representations of Employee
6.01 Restrictions from Prior Employment. Employee hereby represents and
warrants to the Company that he is not subject to any restriction or
non-competition covenant in favor of a former employer or any other persons or
entity, other than those listed in Exhibit A attached hereto and incorporated
herein by this reference. Employee further represents that the execution of this
Agreement by Employee and his employment by Company or its affiliates and the
performance of his duties described herein will not violate or be a breach of
any of the agreements listed in Exhibit A or any other agreement with a former
employer or any other person or entity.
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6.02 Non Disclosure of Trade Secrets. Employee agrees not to disclose to
Company or use in the course of his employment by the Company, any information
to the extent that such information constitutes a trade secret of prior
employers. Employee further agrees not to xxx in the course of his employment by
the Company, any documentation containing proprietary information, or equipment
that may have been obtained by Employee from former employers.
6.03 Remedies. Employee agrees to indemnify Company and its affiliates for any
claim, including, but not limited to, attorney's fees and expenses of
investigation, by any such third party that such third party may now have or may
hereafter come to have against Company or its affiliates based upon or arising
out of any non-competition agreement or invention and secrecy agreement between
Employee and such third party.
ARTICLE VII
Miscellaneous
7.01 Complete Agreement. This Agreement is not a promise of future employment.
There are no oral representations, understandings or agreements with the Company
or any of its officers, directors or representatives covering the same subject
matter as this Agreement. This written Agreement is the final, complete and
exclusive statement and expression of the agreement between the Company and
Employee and of all the terms of this Agreement and it cannot be varied,
contradicted or supplemented by evidence of any prior or contemporaneous oral or
written agreements. Upon the effective date of this agreement, the Prior
Agreement shall be terminated and superseded in its entirety. This written
agreement may not be later modified except by a further writing signed by the
Company and Employee, and no term of this Agreement may be waived except by
writing signed by the party waiving the benefit of such terms.
7.02 No Waiver. No waiver by the parties hereto of any default or breach of any
terms, condition or covenant of this Agreement shall be deemed to be a waiver of
any subsequent default or breach of the same or any other term, condition or
covenant contained herein.
7.03 Assignment: Binding Effect. Employee understands that he has been selected
for employment by the Company on the basis of his personal qualifications,
experience and skills per Article I, preceding. Employee agrees, therefore, that
this Agreement and the rights to his services may be assigned by the Company at
any time without notice to him. Subject to the preceding two sentences, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors, and assigns. It is further understood
and agreed that the Company may be merged or consolidated with another entity
and that any such entity shall automatically success to the rights, powers and
duties of the Company hereunder.
7.04 Notice. Whenever any notice is required hereunder, it shall be given in
writing addressed as follows:
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To Employee: Xxxxxxx X. Xxxxxxxx
00000 Xxxxxxx Xxx Xx
Xxxxxxx, XX 00000
To the Company: Secure Systems Solutions
00 Xxxxxxxx Xxxxx #000
Xxxxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
with a copy to: Xxxxx X. Xxxxxxxx
Xxxxxxxx & Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Notice shall be deemed given and effective three (3) days after the deposit in
the Unites States mail of a writing addressed as above and sent first class
mail, certified, return receipt requested, or when actually received. Either
party may change the address for notice by notifying the other party of such
change in accordance with this Section 7.04.
7.05 Attorneys Fees. In the event of litigation or arbitration to enforce or
interpret this Agreement, the court or arbitrator shall award the prevailing
party his reasonable attorneys' fees and costs of suit, including the costs of
expert witnesses.
7.06 Severability: Headings. If any portion of this Agreement is held invalid
or inoperative, the other portions of this Agreement shall be deemed valid and
operative and, so far as is reasonable and possible, effect shall be given to
the intent manifested by the portion held invalid or inoperative. The paragraph
headings herein are for reference purposes only and are not intended in any way
to describe, interpret, define or limit the extent or intent of this Agreement
or of any part hereof.
7.07 Governing Law. This Agreement shall in all respects be construed according
to the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
date herein first set forth.
SECURE SYSTEMS SOLUTION
-----------------------
BY: Xxxxx X. Xxxxxx
ITS: President
EMPLOYEE:
WITNESSED BY:
----------------------- -----------------------
Xxxxxxx X. Xxxxxxxx
Dated: _________________
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EXHIBIT A TO
EMPLOYMENT AGREEMENT
A. Non-Compete Agreements.
B. Other companies entrusting Employee with restricted intellectual property
that may not be used by others:
PROPRIETARY INFORMATION AGREEMENT
This Agreement is made between Enterprise Solutions, Inc., doing business as
Secure Systems Solutions, (the "Company") and _____________________ (the
"Employee") effective as of the date of employment of a new employee, or in the
case of a current employee, on the date signed by Employee. For purposes of this
Agreement, the "Company" shall include any division, subsidiary, affiliate or
successor of Enterprise Solutions.
In consideration of the employment or continued employment of Employee by the
Company and payment of a salary, wage or other remuneration, the parties agree
as follows:
1. COVENANTS AGAINST DISCLOSURE. Employee will have possession of or access to
apparatus, equipment, drawings, report, manuals, invention records, customer
lists, computer programs or other materials embodying trade secrets or
confidential technical or business information of Company (collectively referred
to as "Proprietary Information"). Employee agrees:
i. not to use any such information or material for himself or others, and:
ii. not to take any such material or reproductions thereof from company
facilities,
at any time during or after employment by Company, except as required in
discharging Employee's duties to Company. Employee agrees immediately to return
all such material and reproductions thereof in his possession to Company upon
request and in any event upon termination of employment.
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Except with prior written authorization by Company, Employee agrees not to
disclose or publish any Proprietary Information of Company or of another party
to whom Company owes an obligation of confidence, at any time during or after
employment by Company.
2. DISCLOSURE OBLIGATIONS. Employee will fully and promptly disclose and
furnish to Company a complete record of any and all inventions and improvements,
whether patentable or not, which he, solely or jointly, may conceive, make
discover or first disclose during the period of his employment by Company which
were developed using Company's time or resources or which relate to the
Company's business or to the Company reasonably anticipated business. Employee
agrees to make and maintain adequate and current written records of all such
inventions and improvements in the form of notes, sketches, drawings or reports
relating thereto, which records shall be and remain the property of and
available to the Company at all times.
3. ASSIGNMENT. Employee agrees to and does hereby grant and assign to Company
or its nominee his entire right, title and interest in an to invention and
improvements coming within the scope of Paragraph 2 that relate in any way to
the actual or anticipated business or activities of Company or that are
suggested by or result form any task or work for or on behalf of Company
improvements. However, no provision in this Agreement is intended to require
assignment of any Employee rights in an invention if no equipment, supplies
facilities or trade secret information of the Company was used, and the
information was developed entirely on Employee's own time, and the invention
does not relate to the business of the Company or to the Company's actual or
demonstrably anticipated research or development or does not result from any
work performed by Employee for the Company.
4. EXECUTION OF DOCUMENTS AND PRIOR INVENTIONS. Employee agrees to fully
cooperate with Company in securing full benefit and protection for the Company
in said inventions and improvements including patent or copyright protection,
wherever and whenever the Company should elect. Employee will execute all
papers, documents and do such other acts reasonably requested by Company at any
time during and after employment by Company, without additional compensation,
but at the Company's expense.
As a matter of record the following is a complete list of all the inventions
which Employee had made heretofore and which Employee desires to be excluded
from this Agreement. (If none, state "NONE". Also, it is not necessary to list
prior inventions previously assigned or agreed to be assigned to others.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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5. COMPLIANCE NOT CONTINGENT UPON ADDITIONAL CONSIDERATION. Employee has not be
promise, and shall not claim any additional or special payment for compliance
with the covenants and agreements herein contained.
6. PRIOR EMPLOYMENT. Employee agrees not to disclose to Company or use in the
course of his employment by the Company, any information to the extent that such
information constitutes a trade secret of prior employers. Employee further
agrees not to use in the course of his employment by the Company any
documentation containing proprietary information or equipment that may have been
obtained by Employee from former employers.
7. WAIVER. No waiver by either party of any breach by the other party of nay
provision of this Agreement shall be deemed or construed to be a waiver of any
succeeding breach of such provision or as a waiver of the provision itself.
8. APPLICABILITY TO SUCCESSOR. This Agreement shall be binding upon and pass to
the benefit of the successors and assigns of Company, and insofar as the same
may be applied thereto, the heirs, legal representatives and assigns of
Employee.
9. SUPERSEDES PRIOR AGREEMENTS. This Agreement shall supersede the terms of any
prior employment agreement or understanding between Employee and the Company.
This Agreement may be modified or amended only in writing signed by an Officer
of Company and by Employee.
10. JURISDICITONS AND SEVERABILITY. It is agreed that this Agreement will be
interpreted and construed in accordance with the laws California. Should any
portion of this Agreement be judicially held to be invalid, unenforceable or
void, such holding shall not have the effect of invalidating the remainder of
this Agreement or any other part thereof, the parties hereby agreeing that the
portion so held to be invalid, unenforceable or void shall, if possible, be
deemed amended or reduced in scope.
EMPLOYEE____________________________
Employee acknowledges reading and understanding this Agreement.
________________________________ Date ____________
Employee's signature
Enterprise Solutions, Inc. doing business as Secure Systems Solutions
By______________________________ Date_____________
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