EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of the 1st day of January, 2000, is by
and between CARDXX, INC., a Nevada corporation (hereinafter called the
"Company"), and XXXXX X. XXXXXXX, III (hereinafter called the "Employee").
R E C I T A L S :
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The Company has determined that it is in the best interests of the Company
and its shareholders to employ the Employee as President and Chief Operating
Officer, or upon the direction of the Board of Directors as Chief Technology
Officer, and the Employee is willing to accept such employment on the terms and
conditions described below. Certain provisions to pay Employee for uncompensated
past services are contained herein.
AGREEMENT
NOW, THEREFORE, in consideration of and subject to the agreements, terms
and conditions contained herein, the parties hereto agree as follows:
ARTICLE I
EMPLOYMENT
Section 1.1. Employment of the Employee. The Company hereby employs the
Employee, and the Employee hereby accepts employment by the Company, upon the
terms and conditions hereinafter set forth, for the "Initial Term" of this
Agreement and any "Renewal Term", as such terms are defined in Section 1.2. The
term "Period of Employment" as used herein shall mean the period from the date
of this Agreement until the first to occur of the end of the term of this
Agreement (either the Initial Term or, if applicable, any Renewal Term) as
provided in Section 1.2 or the date of the Employee's termination as provided
herein.
Section 1.2. Term. The Initial Term of this Agreement shall be three (3)
years commencing on the date of this Agreement and ending December 31, 2002. At
the expiration of the Initial Term, this Agreement shall be renewed
automatically for successive one-year terms (each such one-year term being
referred to herein as a Renewal Term) unless on or prior to ninety (90) days
preceding the date this Agreement would otherwise expire, either the Employee or
the Company notifies the other party that this Agreement shall not be renewed.
ARTICLE II
DUTIES
Section 2.1. Duties. During the Period of Employment, the Employee shall,
subject to the authority of the Board of Directors of the Company (the "Board"),
be employed as President and Chief Operating Officer, with such duties,
responsibilities and authority as are consistent with such employment including,
but not limited to, all matters involving research and development of the
Company's products and services, and with such additional responsibilities and
duties as may be reasonably assigned to him by the Board, which in each case he
shall faithfully and diligently perform.
Section 2.2. Time to be Devoted to Employment, Etc. Except for vacations,
which in no event shall be more than three (3) weeks each year, and absences due
to temporary illness or disability, the Employee shall devote such time as
necessary to the business of the Company.
ARTICLE III
COMPENSATION
Section 3.1. Base Salary. The Company shall pay to the Employee a base
annual salary equal to One Hundred Twenty Thousand Dollars ($120,000.00) (the
"Base Salary"), payable bi-monthly in arrears. The Base Salary may be adjusted
as determined by the Board, but shall not be decreased below the Base Salary in
existence immediately prior to such adjustment.
Section 3.2. Reimbursement for Expenses. The Company shall reimburse the
Employee for all reasonable and necessary travel expenses and other reasonable
disbursements made by him for or on behalf of the Company in the performance of
his duties hereunder on the Company's business, upon presentation by the
Employee to the Company of appropriate vouchers or other substantiation.
Section 3.3. Employee Benefit Plans. During the Period of Employment, the
Employee shall be entitled to participate, on terms no less favorable than those
available to any other senior executive officer of the Company in all employee
benefit plans adopted by the Company to which senior executive officers and
their immediate families are entitled to participate.
ARTICLE IV
DISABILITY OR DEATH OF THE EMPLOYEE
Section 4.1. Disability. If the Employee is incapacitated or disabled by
accident, sickness or otherwise so as to render him mentally or physically
incapable of performing the services required to be performed by him under this
Agreement for a period of one hundred eighty (180) consecutive days or for a
total of two hundred sixty (260) days in any twelve (12) month period, the
Company may, at its option, at that time or any time thereafter, terminate the
Period of Employment immediately upon giving him notice to that effect. Until
the Company shall have terminated the Employee's employment in accordance with
the foregoing, the Employee shall be entitled to receive his compensation,
pursuant to Article III notwithstanding any such physical or mental disability.
Nothing herein shall limit the Employee's right to receive any amounts to be
paid to the Employee under any disability or employee benefit plan of the
Company, if any, or under any other disability insurance policy or plan covering
the Employee.
Section 4.2. Death. If the Employee dies during the Period of Employment,
his employment hereunder and the Period of Employment shall terminate on the
date of this death.
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ARTICLE V
TERMINATION FOR CAUSE
The Company may, by summary notice in writing, terminate the Period of
Employment for cause. For the purposes of this Agreement, the term "cause" shall
mean:
(a) a material breach or any continued default by the Employee in the
performance of his duties under this Agreement (other than resulting from his
disability) for a 30-day period after a demand for performance is delivered to
the Employee by the Company, which demand specifies and identifies the manner in
which the Employee has not performed his duties;
(b) misconduct by the Employee which is injurious to himself or the
Company, provided that conduct will not be deemed misconduct if it was engaged
in by the Employee in good faith in the belief that it was in, or not opposed
to, the interests of the Company, or was engaged in at the direction of the
Board; or
(c) the intentional commission by the Employee of either:
(i) a business crime the intended purpose of which was to enrich the
Employee at the expense of the Company; or
(ii) a felony of which the Employee is convicted or to which he
pleads guilty or nolo contendere.
ARTICLE VI
TERMINATION WITHOUT CAUSE
Section 6.1. Company Termination. The Company may terminate the Period of
Employment without cause at any time by giving the Employee written notice, upon
which the Period of Employment shall terminate.
Section 6.2. Employee Termination. For purposes of this Agreement, the
Period of Employment shall be deemed to have been terminated without cause if
the Employee resigns under any of the following conditions:
(a) upon the continued default (including a material reduction in the
duties, responsibilities and authority of the Employee as set forth in Article
II) by the Company in the substantial performance of its obligations hereunder
for a thirty (30) day period after a demand for substantial performance is
delivered to the Company by the Employee, which demand specifies and identifies
the manner in which the Company has not substantially performed its obligations;
or
(b) upon the Employee being directed by the Board to engage in any
activity which the Employee, based upon written advice of competent legal
counsel, believes would
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constitute criminal activity, provided that the Employee gives notice to the
Company providing it with a copy of the written advice of his legal counsel and
the Company does not, within five (5) business days after its receipt of such
notice, withdraw its request that the Employee engage in the activity in
question.
ARTICLE VII
EFFECT OF TERMINATION OF PERIOD OF EMPLOYMENT
Section 7.1. Termination upon Death, Disability, for Cause or Voluntarily.
Upon termination of the Period of Employment pursuant to Articles IV or V or
voluntarily by the Employee for any reason (except under the conditions set
forth in Section 6.2), neither the Employee nor his beneficiaries or estate
shall have any further rights or claims against the Company under this Agreement
except to receive:
(a) the unpaid portion of the Employee's Base Salary provided for in
Section 3.1, computed on a pro rata basis to the date of termination;
(b) reimbursement for any expenses for which the Employee shall not have
theretofore been reimbursed as provided in Section 3.3; and
(c) any benefits, including the right to continued coverage under the
Company's health plans, which are mandated by law for terminated employees.
Section 7.2. Termination Without Cause. Upon the termination of the Period
of Employment pursuant to Article VI, neither the Employee nor his beneficiaries
or estate shall have any further rights or claims against the Company under this
Agreement except to receive:
(a) compensation at the then applicable Base Salary rate through the
term of this Agreement as provided in Section 1.2;
(b) reimbursement for any expenses for which the Employee shall not have
theretofore been reimbursed as provided in Section 3.3;
(c) any benefits, including the right to continued coverage under the
Company's health plans, which are mandated by law for terminated employees.
Section 7.3. Other Company Obligations. The provisions of this Article VII
shall in no way limit any rights or claims which the Employee may have by virtue
of any other agreements entered into with the Company.
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ARTICLE VIII
COVENANT NOT TO COMPETE
Section 8.1. Covenant Not to Compete. During the Period of Employment and
for a period of (i) two years (2) thereafter if terminated by the Company with
cause or Employee terminates his employment without good reason and (ii) for a
period of twelve (12) months thereafter if Employee is terminated without cause,
or Employee terminates his employment due to a breach by the Company of its
obligations hereunder, Employee shall not, alone, together or in association
with others, as owner, shareholder, employee, officer, director, partner,
lender, investor, consultant, principal, agent, independent contractor,
co-venturer or in any other capacity, directly or indirectly, engage in, have a
financial interest in or be in any way connected or affiliated with, or render
advice or service, to, any person, firm or business or enterprise which is in
competition with the Company.
(i) Competition with the Company. For purposes of this Agreement, (a)
the phrase "in competition with the Company" shall be deemed to include
competition with the Company, or their respective successors or assigns, or the
business of any of them, and (b) a business or enterprise shall be deemed to be
in competition with the Company if it is engaged in any business activity which
is the same or comparable to the business activities of the Company from time to
time in any geographic area in which the Company is conducting or has conducted
or solicited business at any time during the Period of Employment or for two (2)
years prior thereto. Notwithstanding the foregoing, nothing herein contained
shall prevent Employee from purchasing and holding for investment less than five
percent (5%) of the shares of any corporation, the shares of which are regularly
traded either on a national securities exchange or in the over-the-counter
market.
(ii) Interpretation of Covenant. The parties hereto acknowledge and
agree that the duration and area for which the covenant not to compete set forth
in this Article VIII is to be effective are fair and reasonable and are
reasonably required for the protection of the Company, and Employee hereby
waives any objections to or defenses in respect thereof. In the event that any
court determines that the time period or the area, or both of them, are
unreasonable and that such covenant is to the extent unenforceable, the parties
hereto agree that this Article VIII shall be deemed amended to delete therefrom
such provisions or portions adjudicated to be unenforceable so that the covenant
shall remain in full force and effect for the greatest time period and in the
greatest area that would not render it unenforceable. The parties intend that
this covenant shall be deemed to be a series of separate covenants, one for each
and every county of each and every state of the United States of America and one
for each and every political subdivision of each and every other country where
the covenant not to compete is intended to be effective and is not proscribed by
law.
Section 8.2. Covenant Regarding Disclosure or Use of Confidential
Information. Employee acknowledges that during his employment he will learn and
will have access to confidential and proprietary information regarding the
Company, its customers and its business. Employee hereby agrees that he shall at
all times during and after the Period of
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Employment keep and maintain Confidential Information (as defined below)
confidential, and Employee shall not, at any time, either during or subsequent
to the Period of Employment, either directly or indirectly, use any Confidential
Information for Employee's own benefit or to the benefit of any other person or
entity or divulge, disclose, communicate or otherwise reveal any Confidential
Information to any person or entity in any manner whatsoever other than
employees or agents of the Company having a need to know such Confidential
Information, and only to the extent necessary to perform their responsibilities
on behalf of the Company and other than in the performance of Employee's duties
hereunder, except to the extent otherwise required by court order. As used
herein, "Confidential Information" shall mean any and all information (excluding
information in the public domain) related to the business of the Company,
including, without limitation, any and all trade secrets, engineering designs or
concepts, computer programs, technical data, information concerning Company
policies, pricing policies, price lists, financial plans and special products,
marketing strategies and techniques, methods and manner of operations,
information relating to the identity and location of all parts, present and
prospective customers, suppliers, affiliates, debtors, distributors,
wholesalers, clients and others who have been dealing with the Company, patents
and patent applications, copyrights and copyright applications (in any such
case, whether registered or to be registered in the United States or any foreign
country) applied for, issued to or owned by the Company, each and all processes
inventions, computer programs, engineering or technical data, drawings or
designs, manufacturing techniques; and any other information known to Employee
to be confidential information. Upon the termination or expiration of this
Agreement, Employee shall leave with Company, without making or keeping copies
thereof, all documents such as memoranda, notes, records, reports, books,
letters, customer lists, manuals or other writings or documents whatsoever,
which reflect or deal with any secret, proprietary or confidential information
or material relating to the business or activities of the Company.
Section 8.3. Covenants Regarding Other Employees. Employee agrees that so
long as he is an employee of the Company and for the period described in Section
8.1, except when acting on behalf of the Company, he shall not, directly or
indirectly, induce or attempt to induce any person in the employment of the
Company to (i) terminate such employment, or (ii) interfere with the business of
the Company.
Section 8.4. Intellectual Property. During and throughout the Period of
Employment, Employee agrees to disclose in writing to the Company all ideas,
improvements, inventions, developments, discoveries, trade secrets and business
plans ("Intellectual Property") developed, conceived, made, devised, discovered,
acquired or acquired knowledge of, by Employee, either by himself or in
conjunction with any other person or persons during such period, which relate
to, directly or indirectly, or may be useful in the business of the Company
(including any lines of business which are in the development or planning stage)
including, without limitation, any process, product, operation or improvement,
whether or not they may be patentable or copyrightable. Employee hereby agrees
that the Intellectual Property shall become and remain the sole and exclusive
property of the Company and that Employee will, at the Company's request and
cost, do whatever the Company deems necessary or desirable to secure the rights
thereto by patent, copyright or otherwise to the Company, including without
limitation the assignment, transfer and conveyance
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of all Employee's right, title and interest in and to the Intellectual Property.
Subject to the terms of an Intellectual Property Agreement of even date,
Employee acknowledges and agrees that any intellectual property concerning
"SmartCards" or any other use of technology related to SmartCards created by
Employee is the property of the Company. Such intellectual property includes
ideas, inventions, development involving other SmartCard-like devices including
"tags", as well as the equipment and processes to manufacture the same. Employee
shall execute such patents and copyrights and assignments as requested by the
Company from time to time. Adequate consideration for this intellectual property
has been received.
Section 8.5. Equitable Relief. Employee hereby acknowledges and agrees that
his obligations contained in this Article VIII are of special, unique and
personal character which gives them a peculiar value to the Company, and the
Company cannot be reasonably or adequately compensated in money damages in an
action at law in the event Employee breaches such obligations. Employee
therefore expressly agrees that, in addition to any other rights or remedies
which the Company may have at law or in equity or by reason of any other
agreement, the Company shall be entitled to injunctive and other equitable
relief in the form of preliminary and permanent injunctions without bond or
other security in the event of any actual or threatened breach of such actual
damages, and to discontinue any salary, bonus and/or insurance continuation
provided hereunder.
Section 8.6. Nullification of Non-Competition Covenant. Notwithstanding any
provision contained herein to the contrary, should the Company fail to pay to
the Employee amounts due under the parties' Exclusive License Agreement and
Assignment of even date (the "License Agreement"), the Employee shall be
relieved of all restrictions or obligations under this Article 8 and such
covenants contained in Section 8.1 through 8.5 shall be null and void. In such
case, unless he remains employed by the Corporation, the Employee shall be free
to accept employment or otherwise compete with the Company and exercise such
other rights as may be available to the Employee under the License Agreement.
ARTICLE IX
ARBITRATION
Section 9.1. Arbitration. If a dispute arises between the Company and the
Employee as to the interpretation of this Agreement, the Company and the
Employee agree to submit the matter to binding arbitration in accordance with
the American Arbitration Association, as modified herein, by a sole arbitrator,
in Denver, Colorado, selected in accordance with the provisions of Section 9.2.
The arbitration shall be governed by the Uniform Arbitration Act, and judgment
upon the award rendered by the arbitrator may be entered by any court having
jurisdiction thereof.
Section 9.2. Selection of Arbitrator. The parties shall have ten (10) days
from the date when written notice is provided to either party by the other party
of a request for arbitration to agree upon a mutually acceptable neutral person
not affiliated with either of the parties to act as arbitrator. If no arbitrator
has been selected within such time, the parties agree jointly to request the
American Arbitration Association or another mutually agreed-upon organization to
supply within
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ten (10) days a list of potential arbitrators with qualifications as specified
by the parties in the joint request. Within five (5) days of receipt of the
list, the parties shall independently rank the proposed candidates, shall
simultaneously exchange rankings, and shall select as the arbitrator the
individual receiving the highest combined ranking who is available to sere.
Section 9.3. Cost of Arbitration. The costs of arbitration shall be
apportioned between the Company and the Employee as determined by the arbitrator
in such manner as the arbitrator deems reasonable taking into account the
circumstances of the case, the conduct of the parties during the proceeding and
the result of the arbitration.
ARTICLE X
MISCELLANEOUS
Section 10.1. Necessary Acts. All parties to this Agreement shall perform
any and all acts as well as execute any and all documents that may be reasonably
necessary to fully carry out the provisions and intent of this Agreement.
Section 10.2. Notices. All notices, demands, requests or other
communications required or permitted by this Agreement or by law to be served
on, given to or delivered to any party hereto by any other party to this
Agreement shall be in writing and shall be deemed duly served, given, received
and delivered (a) on the date of service if served personally on the party to
whom notice is given, (b) on the day of transmission if sent via facsimile
transmission to the facsimile number given below, provided telephonic
confirmation of receipt is obtained promptly after completion of transmission,
(c) on the business day after delivery to an overnight courier service or the
Express Mail service maintained by the United States postal service, provided
receipt of delivery has been confirmed or (d) five (5) days after being sent by
registered or certified mail, provided receipt of delivery is confirmed, first
class, postage prepaid, properly addressed to the respective parties as follows:
If to the Company: CardXX, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxx X. Xxxxxx, Esq.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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Xxxxx X. Xxxx, Esq.
PIRO, ZINNA, XXXXXXX & PARIS
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Xxxxx X. Xxx
00 Xxxxxxxxx Xxxx
Xxxxx Xxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
If to the Employee: Xxxxx X. Xxxxxxx, III
14247 Road X
Xxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
XXXXXXX XXXXX XXXXXXX &
INGERSOLL, LLP
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as may be designated by any such addressees by a notice
given in conformity herewith.
Section 10.3. Binding on Successors. This Agreement shall inure to the
benefit of and be binding on the parties hereto and on each of their respective
heirs, executors, administrators, personal representatives, successors and
assignees.
Section 10.4. Choice of Law and Forum. This Agreement shall be construed
and governed by the laws, commercial usages and customs of the State of
Colorado, without giving effect to the principles of conflict of laws thereof.
In the event that any dispute, action, proceeding or litigation arises between
the parties based on or arising out of this Agreement, or any agreement or
instrument delivered pursuant to this Agreement, subject to the arbitration
provisions of Article IX, the parties agree to submit themselves to and
irrevocably consent to the jurisdiction of the courts of the State of Colorado,
and any federal court located in the State of Colorado.
Section 10.5. Headings. The headings of the articles and sections of this
Agreement have been inserted solely for convenience of reference and shall in no
way restrict or modify any of the terms or provisions hereof.
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Section 10.6. Sole and Only Agreement. This Agreement and the agreements
referred to herein constitute the only agreements of the parties hereto relating
to the subject matter hereof. Any prior agreements, promises, negotiations or
representations concerning the subject matter of this Agreement not expressly
set forth in this Agreement shall have no force or effect.
Section 10.7. Amendment and Extension. This Agreement may not be amended or
extended except by an instrument in writing signed on behalf of each of the
parties hereto.
Section 10.8. Severability. Should any provision or portion of this
Agreement be held unenforceable or invalid for any reason, the remaining
provisions and portions of this Agreement shall be unaffected by such holding,
unless to do so would alter substantially the intended effect of this Agreement
or cause a substantial hardship for any party hereto.
Section 10.9. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
Company:
CARDXX, INC.
By /s/ Xxxxx Xxx
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Xxxxx Xxx, President
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxx, III
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Xxxxx X. Xxxxxxx, III
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