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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
AGREEMENT entered into as of April 1, 1998 by and between MigraTEC,
Inc., a Florida corporation with its principal offices at 00000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx Xxxxxx, Xxxxx 00000, the "Employer" or "MigraTEC"
and Xxxx X. Xxxxx, an individual residing at 0000 Xxxxxxxxx Xxxxx, Xxxxx, Xxxxx
00000 (the "Employee").
WHEREAS, the Employee has been accepted for employment by MigraTEC as
Chief Financial Officer and General Counsel, which position shall be deemed by
MigraTEC to be a key position within the corporation; and,
WHEREAS, MigraTEC desires to have the Employee make their services
available to MigraTEC; and,
WHEREAS, MigraTEC shall employ the Employee on the condition that, in
so doing, it shall have protected its goodwill, trade secrets and other
proprietary or confidential information, business accounts and patronage; and,
WHEREAS, the Employee desires to render such services on the terms and
conditions set forth herein and agrees to protect MigraTEC's goodwill, trade
secrets and other proprietary or confidential information, business accounts and
patronage.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. DUTIES, COMPENSATION, VACATION, TRAVEL AND EXPENSES
(a) The Employee shall be responsible to perform the duties of
Chief Financial Officer and General Counsel and such other
activities as MigraTEC may, from time to time, reasonably
assign to him/her. The Employee agrees to perform such duties
to the best of their ability and to exclusively devote their
energies and skill to the performance of their duties during
business hours and for such additional time as may be
necessary to perform such duties. During the Term of
Employment, the Employee shall be governed by the terms of
this Agreement and subject to the supervision and direction
of the Board of Directors of MigraTEC. MigraTEC reserves
the right to reasonably change, from time to time, the nature
and scope of the Employee's duties and the place where such
duties shall be performed;
Employment Agreement by and Between MigraTEC and Xxxx X. Xxxxx
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(b) MigraTEC agrees to employ the Employee and the Employee
agrees to accept employment by MigraTEC on a full time basis
at a starting annual salary of $125,000, which salary shall
be paid in semi-monthly installments on the 15th and last day
of each month or such other pay periods established from time
to time by MigraTEC pursuant to its standard employment
practices during the term of Employment as hereinafter
defined;
(c) The Employee shall be eligible under one or more group
policies of health insurance, life insurance and disability
insurance on the same terms and conditions as the benefits
normally provided to its employees by MigraTEC;
(d) Such other compensation including Participation in the Key
Employee Cash Bonus and the grant of a stock option as
defined in Exhibit A hereto and such other incentives as
MigraTEC's Board of Directors may, from time to time, in its
sole discretion, determine;
(e) Each year the salary payable to the Employee shall be
reviewed and may be adjusted upward as MigraTEC may deem
reasonable and warranted by the efforts of the Employee on
behalf of MigraTEC, provided, however, that this provision
shall not be construed as creating any obligation on the part
of MigraTEC to award or pay any salary increase or bonus to
the Employee;
(f) The Employee shall receive a paid vacation of ten (10)
business days during each year (fifteen (15) after two years)
of the term of Employment as published in the MigraTEC
Employee Manual and,
(g) The Employee, throughout the term of this Agreement, shall be
reimbursed for reasonable travel and other expenses incurred
and accounted for in the conduct of MigraTEC business
pursuant to, and in accordance with, MigraTEC's normal
practice.
2. TERM OF EMPLOYMENT
(a) The "Term of Employment" as used herein means that period
during which MigraTEC will employ the Employee in its
business, and the Employee will work for MigraTEC beginning
from the date hereof and for a period of one (1) year
thereafter. After the expiration of the term described above,
the Term of Employment shall continue from year to year
unless or until: (i) such employment shall have been
terminated as hereinafter provided (ii); this Agreement
shall have been renewed or replaced by mutual agreement of
the parties hereto; or, (iii) the Employee shall have
resigned their position; (iv) or upon thirty (30) days
written notice by either party at the end of the term of
employment (initial or renewal term);
Employment Agreement by and Between MigraTEC and Xxxx X. Xxxxx
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(b) Notwithstanding any provision of the Agreement, the
employment of the Employee shall be terminated upon: (i)
resignation of the Employee from employment, (ii) the death
or inability of the Employee to continue to provide his
services by reason of permanent disability, or, (iii) for
just cause upon notice of such termination of the Employee.
The term "just cause" as used in this Agreement means: That
the Employee is unable to fulfill their duties under this
Agreement because of the continued abuse of alcohol or use of
a controlled substance; That the Employee has become unable
to perform their duties under this Agreement for a period of
at least three consecutive calendar months as a result of
illness or otherwise; The commission by the Employee of an
act of fraud or embezzlement against MigraTEC; The Employee
having been convicted of a felony involving moral turpitude;
or the Employee shall resign from employment or the Employee
and MigraTEC shall mutually agree to terminate this
Agreement.
(c) It is agreed and acknowledged that in the event Employee
voluntarily terminates their employment with Employer or
Employer terminates Employee for "just cause," the Employer's
obligation to pay any compensation (base salary or
commission, if any) to Employee shall cease upon the
effective date of such termination.
3. NONDISCLOSURE COVENANTS
The Employee, during the Term of Employment under this
Agreement, shall have access to and become familiar with
various trade secrets consisting of, but not limited to,
processes, computer programs, compilations of information,
records, sales procedures, customer requirements, pricing
techniques, customer lists, methods of doing business and
other confidential information (collectively referred to as
the "Trade Secrets"), which are owned by Employer and
regularly used in the operation of its business. Employee
shall not use in any way or disclose any of the Trade
Secrets, directly or indirectly, either during the term of
the Agreement or at any time thereafter, except as required
in the course of their employment under this Agreement. All
files, records, documents, information, data, and similar
items relating to the business of Employer, whether prepared
by Employee or otherwise coming into their possession, shall
remain the exclusive property of the Employer and shall not
be removed from the premises of the Employer under any
circumstance without the prior written consent of an
authorized officer of the Employer (except in the ordinary
course of business during Employee's period of active
employment under this Agreement), and in any event shall be
promptly delivered to the
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Employer (without Employee retaining any copies) upon
termination of the Agreement.
4. NON-COMPETITION COVENANTS
(a) Without the prior written consent of the Employer, the
Employee shall not, during the term of employment with
Employer, directly or indirectly, as a director, officer,
agent, employee, consultant, or independent contractor, or in
any other individual or representative capacity, (i) invest
(other than investments in publicly owned companies which
constitute not more than 1% of the outstanding securities of
any such company) or engage in any business or activity that
is in competition with the business of Employer or any of its
affiliates, (ii) accept employment with, or render services
to, a competitor of the Employer or any of its affiliates, or
(iii) take any action inconsistent with the fiduciary
relationship of an employee to an employer. As used in this
Agreement, "affiliates" shall mean persons or entities that,
directly or indirectly through one or more intermediaries,
control or are controlled by, or are under common control
with, the Employer;
(b) Upon termination of the Employee's employment with the
Employer for just cause or upon voluntary resignation, and
for a period of one year thereafter, the Employee shall not,
directly or indirectly, as a director, officer, agent,
employee, consultant, or independent contractor, or in any
other individual or representative capacity, (i) invest
(other than investments in publicly-owned companies which
constitute not more that 1% of the outstanding securities of
any such company) or engage as an owner or equity participant
in any business or activity that is competition with the
business of Employer or any of its affiliates, (ii) accept
employment with or render services to a competitor or
intending to compete with the Employer or any of its
affiliates, or (iii) while or for the purpose of engaging in
competition with the Employer or any of its affiliates in any
area whatsoever, contact, solicit, or attempt to solicit or
accept business from any of the customers of the Employer or
any of its affiliates during the term of the Employee's
employment with the Employer or the Employee's termination or
cessation of employment with the Employer, or from any person
or entity whose business the Employer or any of its
affiliates were actively soliciting as such time without the
written consent of the Employer. The Employer shall provide
the Employee with the names of such customers of the Employer
and its affiliates described in clause (iii) of this
Paragraph 4 upon request therefore, or upon termination of
the Employee's employment (but failure to
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do so shall not release Employee from obligations under this
Section); such names shall be for all purposes and at all
times be considered Trade Secrets subject to the covenants
set forth in Section 4 hereof. As used herein, a person or
entity is in "competition" with or is a "competitor" of
Employer or any of its affiliates if such person or entity is
in the business of migration, conversion, or porting
software, assistance or services, or providing, or planning
to provide the same or similar services, products, or systems
as the Employer.
5. COVENANT NOT TO HIRE
For a period of two (2) years after the termination of
employment with the Employer for any reason whatsoever, the
Employee shall not, on their behalf of any other person,
partnership, association, corporation, or other entity, hire,
or solicit any employee of Employer or any of its affiliates,
or in any manner attempt to influence or induce any employee
of Employer or any of its affiliates, to leave the employment
of the Employer or its affiliates, nor shall the Employee use
or disclose to any person, partnership, association,
corporation, or other entity any information obtained while
an employee of the Employer concerning the names and
addresses of the Employer's or any of its affiliates'
employees.
6. SEVERABILITY
Notwithstanding anything to the contrary herein, or in any
exhibit hereto the Employee agrees that the non-competition
covenants, nondisclosure covenants, and covenant not to hire
set forth above each constitute separate agreements
independently supported by good and adequate consideration,
the actual receipt and adequacy of which are hereby
acknowledged by the Employee, and shall be severable from
other provisions of, and shall survive, this Agreement. The
existence of any claim or cause of action of the Employee
against the Employer, whether predicated on the Agreement or
otherwise, shall not constitute a defense to the enforcement
by the Employer of the covenants and agreements of the
Employee contained in the non-competition, nondisclosure, or
non-hiring covenants. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under present
or future laws effective during the term hereof, such
provision shall be fully severable and this Agreement shall
be construed as enforced as if such illegal, invalid, or
unenforceable provision never comprised a part of this
Agreement; and the remaining provisions of this
Employment Agreement by and Between MigraTEC and Xxxx X. Xxxxx
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Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid, or unenforceable
provision or by its severance herefrom. Furthermore, in lieu
of such illegal, invalid, or unenforceable provision, there
shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid or
unenforceable provisions may be possible and be legal, valid,
and enforceable.
7. INVENTIONS
The Employee shall promptly disclose, grant, and assign to
Employer for its sole use and benefit any and all inventions,
improvements, technical information, and suggestions relating
in any way to the products of the Employer or any of its
affiliates or capable of beneficial use by the Employer or
any of its affiliates, which the Employee has in the past
conceived, developed, or acquired, or may conceive, develop,
or acquire during the term hereof (whether or not during
usual working hours), together with all patent applications,
letter patents, copyrights, and reissues thereof that may at
any time be granted for or upon any such inventions,
improvement, or technical information. In connection
therewith, Employee shall promptly at all times during and
after the term hereof:
(a) Execute and deliver such applications, assignments,
descriptions, and other instruments as may be necessary or
proper in the opinion of Employer to vest title to such
inventions, improvements, technical information, suggestions,
patent applications, patents, copyrights and reissues thereof
to Employer and to enable it to obtain and maintain the
entire right and title thereto throughout the world; and
(b) Render to the Employer, at its expense, all such assistance
as it may require in the prosecution of applications,
aforesaid patents, copyrights, and reissues thereof, in the
prosecution or defense of interference which may be declared
involving any said applications, copyrights, or patents, and
in any litigation in which the Employer may be involved
relating to any such inventions, improvements, technical
information, suggestions, patent applications, patents,
copyrights and reissues thereof.
8. REMEDIES
The Employee acknowledges and recognizes that a violation of
the restrictions, agreements, or covenants contained in
Sections 3, 4, 5 and 7 of this Agreement will cause such
damage to Employer as
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will be irreparable and that Employer will have no adequate
remedy at law for such violation or threatened violation.
Accordingly, the Employee agrees that the Employer shall be
entitled, as a matter of right, to seek and obtain an
injunction from any court of competent jurisdiction,
restraining any further violation or threatened violation of
such restrictions, agreements, or covenants and granting
mandatory relief compelling Employee to carry out obligations
hereunder. Such right to injunctive and mandatory relief
shall be cumulative and in addition to whatever other
remedies the Employer may have at law or in equity.
9. MISCELLANEOUS
(a) NOTICES. Any notices, consents, demands, requests, approvals,
and other communications to be given under this Agreement by
any party to the other shall be deemed to have been duly
given if given in writing and personally delivered or sent by
mail, registered or certified, postage prepaid with return
receipt requested, at the address specified beside each
party's signature at the end of this Agreement. Notices
delivered personally or by telegram, telex, or telecopy shall
be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated as of 10:00 am. on the third
business day after mailing. Any party may change its address
for notice hereunder by giving notice of such change in the
manner provided in this paragraph.
(b) ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or written, between the parties
hereto with respect to the subject matter hereof and contains
all of the covenants and agreements between the parties with
respect thereto.
(c) MODIFICATION AND WAIVER. No change or modification of this
Agreement shall be valid or binding upon the parties hereto,
nor shall any waiver of any term or condition in the future
be so binding, unless such change or modification or waiver
shall be in writing and signed by the party against whom or
which such waiver is sought to be enforced. The waiver by the
Employer of a breach of any provision of this Agreement by
the Employee shall not operate or be construed as a waiver of
any subsequent breach by the Employee.
(d) GOVERNING LAW. This Agreement, and the rights and obligations
of the parties hereto, shall be governed by and construed in
accordance with the laws of the State of Texas and shall be
performable in Dallas, Texas. Venue of any litigation arising
hereunder shall be in a court of competent jurisdiction in
Dallas, Texas.
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(e) COUNTERPARTS. This Agreement may be executed in counterparts,
including facsimile, each of which shall constitute an
original, but all of which shall constitute one and the same
document.
(f) COST. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys'
fees, costs, and necessary disbursements in addition to any
other relief to which it may be entitled.
(g) ASSIGNMENT. Employer shall have the right to assign this
Agreement to its successors or assigns. The terms
"successors" and "assigns" shall include any person,
corporation, partnership, or other entity that buys all or
substantially all of Employer's assets or a controlling
interest of its stock, or with which the Employer merges or
engages in a share exchange. The rights and duties of
Employee hereunder are personal, and no such right may be
assigned or duly delegated by MigraTEC or its successor in
interest.
(h) BINDING EFFECT. This Agreement shall be binding upon the
parties hereto, together with their respective executors,
administrators, successors, personal representative, heirs,
and permitted assigns.
(i) ESTATE. If Employee dies prior to the expiration of the term
of employment, any moneys that may be due from Employer under
this Agreement as of the date of death shall be paid to the
estate.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
EMPLOYER:
Address: MIGRATEC CORPORATION
00000 Xxxxxxxx Xxxxxxx, Xxxxx 000 By: /s/ XXXXXX XXXXXXXXXX
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Farmers Xxxxxx, Xxxxx 00000 Title: President/CEO
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Address: EMPLOYEE:
0000 Xxxxxxxxx Xxxxx, Xxxxx, XX 00000 /s/ XXXX X. XXXXX
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Signature
XXXX X. XXXXX
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Print Name
Employment Agreement by and Between MigraTEC and Xxxx X. Xxxxx
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EXHIBIT A
TO THE EMPLOYMENT AGREEMENT BY AND BETWEEN
MIGRATEC, INC. AND XXXX X. XXXXX
1. Additional Compensation: Provided the Employee is still employed by the
Employer under the terms of this Agreement, the Employee shall be eligible for
participation in the following:
a. Key Employee Cash Bonus Plan: The Employee shall be eligible for an
annual bonus of $25,000. The prorated bonus for the calendar year 1998 is
$18,750. Additionally, the Employee shall be eligible for a similar bonus in
1999. The Employee is eligible for the 1998 bonus if he is an employee as of
12-31-98.
b. Key Employee Stock Option Plan: The Employee is hereby granted an
option to purchase 900,000 shares of common stock of the Employer at a price of
$.20 (Twenty Cents) per share. The option will vest 1/24th each month for 24
months beginning April 1, 1998. Any unexercised portion of the option will
terminate, whether vested or not, either 1) at the end of the thirty (30) days
following the resignation of the Employee or 2) at the end of twelve (12) months
after the Employee's death or disability as described in this Agreement. It is
agreed that in the event Employer registers shares or options owned by any other
officer of Employer, Employer shall simultaneously register all shares or
options owned by Employee.
x. Xxxxxxxxx Pay: In the event that the Company and the Employee do not
reach agreement to renew the Employee's contract at the end of the initial term
or in the event the Employee is terminated without "just cause" during the
initial term. Employee is entitled to receive payment of salary for the
remaining period of the Employment term. Additionally, in such event, the
Employer will pay the Employee a severance equal to three (3) month's base pay
and pay all normal benefits for a period of three (3) months.
Agreed and Executed this 1st day of April, 1998.
MigraTEC, Inc. Xxxx X. Xxxxx, Employee
By: /s/ XXXXXX XXXXXXXXXX /s/ XXXX X. XXXXX
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Xxxxxx Xxxxxxxxxx Signature
Its: President & CEO
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