Exhibit 10.4
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT (the "Agreement") is entered
into this 22nd day of November, 2000, between iExalt, Inc. a Texas corporation
(the "Company"), and Xxxxx X. Xxxx (the "Employee"), and shall be effective as
of the 27th day of November, 2000.
WITNESSETH:
WHEREAS, the Company desires to retain the services of the employee to
assist in the operation of the company's financial affairs, and;
WHEREAS, the Employee desires to assume an employment position as the
Chief Financial Officer with the Company on the terms and conditions set forth
below;
WHEREAS, the agreements of the Company contained herein are an important
aspect of employment.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Duties.
The Company hereby employs the Employee as the Chief Financial Officer
located in Houston, Texas. The employee is expected to perform his primary
duties in and around Houston, Texas unless otherwise instructed by the iExalt
Board of Directors or CEO. The Employee will use his best efforts to promote the
interests of the Company and to carry out his duties hereunder. The employee
agrees, during the employment period, to devote his best efforts and skills to
the business and interests of the company, and do his utmost to further enhance
and develop the best interests and welfare of the Company. The Employee will
dedicate his full time and attention in the performance of his duties and
responsibilities.
a. The Employee acknowledges and agrees that his services under this
Agreement necessarily involve his understanding of and access to
certain trade secrets and confidential information pertaining to the
business of the Company and its affiliates. Accordingly, the
Employee agrees that at all time after the date hereof, he will not
disclose to any unauthorized third party any of the trade secrets or
confidential information pertaining to the business of the company
and its affiliates, and will not remove or retain, without the
express written consent of the Company, except in the normal conduct
of his duties, any figures, letters, papers, documents, instrument,
or copies thereof, or any other confidential information of any type
or description. The obligations of the Employee under this paragraph
shall survive the termination of this Agreement.
2. Compensation.
For and in consideration of the performance of the Employee of the
services, terms, conditions, covenants and promises herein recited, the Company
agrees and promises to pay to the Employee at the times and in the manner herein
stated, the following:
a. Salary. As the compensation for the services to be performed by the
Employee hereunder during the employment period, the Employee shall receive, as
gross salary before any withholding or whatever sort, the sum of $130,000 per
year, payable in the manner in which the Company's payroll is customarily
handled.
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b. Cash Bonus. In addition to salary, Employee may be entitled to receive
an annual cash bonus, which annual cash bonus, if any, up to a maximum amount
equal to 50% of Employee's salary, shall be based upon the achievement of the
performance objectives specified herein.
c. Stock Options. In addition to the salary and cash bonus, Employee may
be entitled to receive cashless stock options for up to 75,000 shares of common
stock, par value $.001, of iExalt, Inc., a Nevada Corporation, per year during
the initial three-year term of this Agreement, based upon the achievement of the
performance objectives agreed to with the Company.
d. Benefits. In addition to the above, the Company shall provide the
Employee with participation in any present benefits program available to all
employees of the Company, such participation to be on the same basis as other
employees; fifteen (15) paid vacation days annually; and reimbursement of all
reasonable out-of-pocket expenses incurred by the Employee in the performance of
the duties hereunder in accordance with the policies of the Company.
e. Part time employment. It is understood that the Employee is in process
of leaving the employment of another company, and desires to immediately assist
the Company with transitional responsibilities. It is expected that full time
employment with iExalt shall begin on or about 1/1/01, and as interim
compensation, Employee shall be paid $65.00/hour until such time as he is able
to fulfill the full time responsibilities.
3. Term and Termination.
a. The term of this agreement shall be three (3) years. At any time the
Company may, in its sole discretion, discharge the Employee for "cause,"
effective immediately upon providing the Employee with notice of his dismissal.
The only occurrences which shall constitute "cause" within the meaning of this
paragraph shall be the following:
(i) the conviction of the Employee of a felony or any crime involving
moral turpitude; or
(ii) the commission of the Employee of an act of fraud or bad faith upon
the Company, or
(iii) the willful misappropriation of any funds or property of the Company
by the Employee; or
(iv) the willful, continued failure by the Employee to perform the duties
or obligations under this Agreement; or
(v) the breach of any material provisions hereof, which is not promptly
cured after the Company notifies the employee of such breach, or the
engagement by the Employee, without the prior written approval of
the Company, in any activity which would violate the provisions of
Paragraph 4 of this Agreement.
(vi) failure to meet agreed to performance objectives.
b. Employee's employment shall also terminate upon:
(i) the death or permanent disability of the Employee; The Company has
advised the Employee that it currently maintains disability insurance for
its employees and during the term of this Agreement, the Company shall
maintain disability insurance covering the Employee on terms and
conditions no less favorable than the terms and conditions in effect at
the date of this Agreement.
(ii) the voluntary resignation of the Employee.
c. The Company may, in its sole discretion, terminate the Employee without
"cause," which term is defined in paragraph 3(a) hereof.
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d. If the employment period is terminated pursuant to paragraph 3(a) or
3(b), then the Company will have no obligation to pay any amount to the employee
other amounts earned or accrued pursuant to the salary provisions above.
e. If this Agreement is terminated pursuant to paragraph 3(c), then the
Company shall pay the Employee all amounts earned or accrued pursuant to the
provisions of paragraphs 2(a) and 2(d) hereof, but which have not yet been paid
as of the date of the termination of the Employee. In addition, the Company
shall until three (3) months following the termination, pay the amount of salary
that would be payable pursuant to paragraph 2(a) if Employee's employment had
not been terminated.
f. Unless otherwise terminated, this Agreement shall expire in three
years.
4. Covenants Not to Compete.
a. In consideration of the Company's agreement to enter into this
Agreement and to provide Employee with access during the course of his
employment to certain confidential information of the Company and its
Affiliates, for the period commencing on the date hereof and expiring on the
first anniversary date of the termination of Employee's employment with the
Company, neither the Employee nor any of his Affiliates (defined below) shall,
directly or indirectly, for himself or on behalf of any other person,
corporation, firm, partnership, association or any other entity (i) engage or
participate in any "Competing Business" anywhere in the United States, (ii)
induce any customers of the Company or its Affiliates to patronize any Competing
Business; (iii) canvass, solicit or accept any Competing Business from any
customer of the Company or its Affiliates unless directed to do so by the
Company; (iv) request or advise any customers of the Company or its Affiliates
to withdraw, curtail or cancel such customer's business with respect to any
Competing Business; (v) disclose to any other person, firm or corporation
engaged in any Competing Business the names or addresses of any of the customers
of the Company or its Affiliates; or (vi) induce or attempt to influence any
employee of the Company or any of its Affiliates to terminate his/her employment
or to hire any such employee, whether or not so induced or influence.
5. Miscellaneous.
a. The undersigned parties to this Agreement warrant and represent that
they have the power and authority to enter into this Agreement in the names,
titles and capacities herein stated.
b. A waiver by either party of any of the terms and conditions of this
Agreement in any instance shall not be deemed or construed to be a waiver of
such term or condition of for the future, or of any subsequent breach thereof,
or of any other term and condition of this Agreement.
c. This Agreement constitutes the entire agreement between the parties
respecting the services of the Employee, and there are no representations,
warranties, agreements or commitments between the parties hereto with respect to
such employment relationship except as set forth herein. This Agreement may be
amended only by an instrument in writing executed by the undersigned parties.
d. Any notice, request, demand or other communication permitted to be
given hereunder shall be in writing to the address set forth by the signature of
the parties below, and shall be deemed to be duly given when personally
delivered to an employment officer of the company or to the Employee, as the
case may be, or when deposited in the United States mails, by certified or
registered mail, return receipt requested, portage prepaid. Either party may
change by notice the address to which notices are to be sent.
e. The Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of Texas.
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f. If any provisions of this Agreement shall, for any reason, be held
violative of any applicable law, and so much of said Agreement is held to be
unenforceable, then the invalidity of such specific provision herein shall not
be held to invalidate any other provision herein, such provision to remain in
full force and effect.
g. This Agreement is personal to the Employee, and the Employee may not
assign, transfer in any way or delegate any of the rights or obligations
hereunder.
h. Any dispute arising from this agreement shall be governed in accordance
with the Rules of Procedure for Christian Conciliation of the Institute for
Christian Conciliation (Peacemaker Ministries) for any and all disputes
concerning or arising from or under this agreement. Both parties realize that
arbitration will be the exclusive remedy for potential disputes and may not
later litigate these or any other related matters in civil court.
i. The Company shall, to the maximum extent permitted by law, indemnify
and hold the Employee harmless against, including reasonable attorney fees,
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding arising by reason of the Employee's
employment by the Company, except fraud, or willful misconduct. The Company
shall advance to the Employee any expense incurred in defending any such
proceeding to the maximum extent permitted by law. Furthermore, the Company
shall maintain adequate D & O coverage, and such coverage shall be deemed as the
primary source of protection for any and all claims arising from actions of the
Employee.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
iExalt, Inc., the "COMPANY"
By /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Chairman, CEO
Xxxxx X. Xxxx, "Employee"
By /s/ Xxxxx X. Xxxx
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Individually
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