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Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made and entered into this 4th day of
April, 2000, by and between PODS, INC., a Florida corporation (the "Employer")
hereafter called "Employer", and R. XXXX XXXXXX (the "Employee)".
RECITALS
WHEREAS, Employer desires to employ Employee as its Chief Operating
Officer.
WHEREAS, Employee desires such employment upon the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of such employment and the premises
and covenants hereinafter set forth the parties hereto agree as follows:
1. EMPLOYMENT. Employer hereby agrees to employ Employee and
Employee accepts such employment upon the terms and conditions hereinafter set
forth.
2. TERM. The term of such employment shall commence April 3,
2000, and thereafter shall continue for additional one (1) year terms, unless
terminated as herein provided (such period being hereinafter referred to as the
"term" or the "period of active employment").
3. COMPENSATION. For all services rendered by the Employee under
this Agreement, Employer shall pay Employee an annual salary of not less than
One Hundred Twenty-Five Thousand Dollars ($125,000.00) per annum (the "Base
Salary"). Said Base Salary shall be paid pro rata weekly on Employer's regular
payroll dates or in such more frequent intervals as Employer shall in its
discretion determine. Employer's compensation committee shall review Employee's
Base Salary annually, in accordance with Employer's procedures that are
applicable to its management employees.
4. DUTIES. Employee is employed as the Chief Operating Officer of
Employer and shall perform such services as are normally associated with such
position, subject to the direction, supervision, and rules and regulations of
Employer and its officers, which duties shall include but are not limited to the
following:
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(a) developing, implementing and directing the operating
procedures of Employer, as approved by the President of Employer; and
(b) management and oversight of Employer's operations,
including but not limited to call center, customer service, and operations
management and growth.
The precise services of Employee may be extended or curtailed, from
time to time at the discretion of Employer, and Employee agrees to render such
different and/or additional services of a similar nature as may be assigned from
time to time by Employer.
5. STOCK OPTIONS.
(a) Except as provided in subsection 5(b) below, upon
execution of this Agreement or no later than the date on which Employer's
directors and shareholders have approved the contemplated 2000 Stock Option Plan
of Employer, Employee shall be granted options to purchase forty thousand
(40,000) shares of stock of Employer at a purchase price equal to its current
fair market value of one dollar ($1.00) per share. One fourth of this number
(options for ten thousand (10,000) shares) shall vest on April 1, 2001 and on
each April 1st thereafter until all options have been fully vested; provided,
that Employee is still employed on said vesting dates; and provided, further,
that the vesting of all such options shall accelerate and become fully vested
upon the earlier of an initial public offering of the stock of Employer or upon
a "sale of Employer", as defined herein, except that said options shall not be
fully vested as a result of a transaction between Employer and Xxxxxxx.xxx, Inc.
that would otherwise constitute a "sale of Employer" if said transaction occurs
on or before April 1, 2001 (the "Bigmove Transaction").
In addition, except as provided in subsection 5(b) below, if Employee
continues to be employed by Employer on each respective grant date, on each of
January 1, 2001, January 1, 2002, January 1, 2003 and January 1, 2004, Employer
shall grant to Employee options to purchase an additional ten thousand (10,000)
shares of stock of Employer at a purchase price equal to the then current fair
market value, as determined by Employer; provided that such additional options
shall vest on the date that is fifteen (15) months after the grant date (that
is, April 1, 2002, April 1, 2003, April 1, 2004 and April 1, 2005, respectively)
if Employee is still employed on said vesting dates; and provided, further, that
the vesting of all such options that have been then granted shall accelerate and
become fully vested upon the earlier of an initial public offering
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of the stock of Employer or upon a "sale of Employer", as defined herein.
The term "sale of Employer" means (A) the sale, including a merger,
consolidation or reorganization, of eighty percent (80%) or more of the stock by
shareholders of Employer in a transaction in which the shareholders do not
receive stock or an equity interest in the acquiring entity, or (B) the sale of
substantially all of the assets of Employer to a buyer that is not an affiliate
of Employer, if the sale of the assets is followed by the liquidation of
Employer and the proceeds of such liquidation are assets other than stock or an
equity interest in the acquiring entity.
(b) In the event of the occurrence of a "sale of
Employer" or a Bigmove Transaction, Employee agrees that Employer shall have the
right to exchange any outstanding and unexercised options granted to Employee
hereunder for equivalent options to acquire stock of the acquiring entity in the
"sale of Employer" or the Bigmove Transaction; provided, that (i) the number of
shares of the acquiring entity that Employee is entitled to purchase under
Employee's options shall be determined on a fully diluted basis at the valuation
used for Employer and/or its shareholders in the "sale of Employer" or Bigmove
Transaction, and (ii) the grant dates and vesting terms of Employee's options
shall be the same as those applicable to the options described in subparagraph
(a).
6. VACATION. Employee shall be entitled to vacations with pay in
accordance with the vacation policy of Employer promulgated from time to time by
the Employer. Vacations shall be taken by Employee at any time during the year
and for any period as determined by the President of Employer.
7. WORKING FACILITIES; BENEFITS.
(a) Employer shall furnish Employee with an office and
such other facilities and services as are suitable to his position and adequate
for the performance of his duties hereunder.
(b) Employer shall pay the cost of Employee's coverage
under its group medical insurance coverage, if available. Any health insurance
coverage of Employee's family and/or dependants shall be at Employee's sole
cost.
(c) Employee shall be eligible to participate under the
Employer's pension plan, if any, pursuant to the pension plan's requirements,
including but not limited to requirements regarding eligibility and vesting.
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8. EXTENT OF SERVICES. During the period of active employment,
Employee shall devote full time, attention, and energies to the business of
Employer. Employee shall not during the term of this Agreement be engaged in any
other business activity, whether or not such business activity is pursued for
gain, profit, or other pecuniary advantage; but this shall not be construed as
preventing Employee from investing his assets in such form or manner as will not
require any services on the part of Employee in the operation of the affairs of
the business in which such investments are made.
9. CONFIDENTIALITY. Employee occupies a position of trust and
confidence with Employer. To fulfill his responsibilities, Employee will be
afforded full and unlimited access to all Employer data and documents,
regardless of the location of the data and documents, and regardless of the
physical form in which they are kept. Except where he is under an obligation
under this Agreement or under a legal obligation to do so, Employee shall not
disclose the information which he learns in his capacity as Chief Operating
Officer of Employer. Information commonly known outside of the Employer or which
is disclosed to regulatory authorities or publicly available is excluded from
this provision. This confidentiality provision extends beyond the term of this
Agreement and shall be in addition to any separate confidentiality agreement
entered into by and between Employee and Employer. In the event of a breach or
threatened breach by Employee of the provisions of this paragraph, Employer
shall be entitled to an injunction restraining Employee from disclosing, in
whole or in part, the Employer's confidential information or from rendering any
services to any person, firm, corporation, association, or other entity to whom
such confidential information, in whole or in part, has been disclosed or is
threatened to be disclosed. Nothing herein shall be construed as prohibiting
Employer from pursuing any other remedies available to Employer for such breach
or threatened breach, including the recovery of damages from Employee.
10. TERMINATION WITHOUT CAUSE. Without cause, Employer may
terminate this Agreement at any time upon thirty (30) days' written notice to
Employee. In such event, (unless Employee is absent from work because of
accident or sickness) Employee, if requested by Employer, shall continue to
render his services, and shall be paid his Base Salary to the termination date.
Without cause, Employee may terminate this Agreement upon thirty (30) days'
written notice to Employer. In such event, (unless Employee is absent from work
because of accident or sickness) Employee, if requested by Employer, shall
continue to render his services and shall be paid his Base Salary to the
termination date.
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11. TERMINATION WITH CAUSE. In addition to termination as provided
in the preceding paragraphs hereof, this Agreement may be terminated by Employer
at any time without notice upon the occurrence of one or more of the following
events:
(a) In the event Employee shall fail or refuse to comply
with the policies, standards and regulations of Employer from time to time
established; or
(b) In the event Employee shall be guilty of fraud,
dishonesty or other acts of misconduct in the rendering of services on behalf of
Employer; or
(c) In the event Employee shall fail or refuse to
faithfully or diligently perform the provisions of this Agreement or the usual
and customary duties of her employment; or
(d) In the event Employee shall make an assignment for
the benefit of creditors; or
(e) In the event Employee shall file a voluntary petition
in bankruptcy or becomes the subject of an involuntary petition in bankruptcy.
In the event of a termination pursuant to this Section 11, Employee shall be
paid his Base Salary to the termination date.
12. DEATH AND DISABILITY DURING EMPLOYMENT.
(a) If Employee dies during the term of this employment,
Employer shall pay to the estate of Employee the Base Salary up to the end of
the month in which his death occurred.
(b) In the event Employee is disabled because of accident
or sickness, as determined by Employer, Employee shall be paid the Base Salary
up to the end of the month in which his disability occurred. Thereafter,
Employer shall have no further obligation to pay Employee under this Agreement.
13. WAIVER OF BREACH. The waiver by Employer of a breach of any
provision of this Agreement by Employee shall not operate or be construed as a
waiver of any subsequent breach by Employee.
14. LEGAL ACTION. Should Employer or Employee institute legal
action, whether at law or in equity, to enforce any provision hereunder, the
prevailing party shall be entitled to receive from the other party all costs and
reasonable attorney's fees,
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including, but not limited to, fees for trial and appeals or other legal
proceedings.
15. NOTICES. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing, and if sent by registered mail
to his address in the case of Employee, or to its principal office in the case
of Employer.
16. AGENCY. Employee shall have no authority to enter into any
contracts binding upon Employer, or to create any obligations on the part of
Employer except such as shall be specifically authorized by the Board of
Directors of Employer or by an executive officer of Employer acting pursuant to
authority granted by the Board of Directors.
17. ASSIGNMENT. The rights and obligations of Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of Employer. Employer depends upon the personal services of
Employee, and Employee shall not assign this Agreement or any rights or duties
hereunder without the express written consent of Employer, nor shall Employee
delegate any of his obligations hereunder to any other person or corporation
without the express written consent of Employer. Any assignment or delegation by
Employee without such written consent shall be void.
18. RETURN OF EMPLOYER PROPERTY. Employee agrees that on
termination of his employment for any cause whatsoever the Employee will return
to Employer any of Employer's property in her possession or under his control,
including, but not limited to records and names, addresses, and other
information with regard to customers or potential customers of Employer with
whom Employee has had contact or done business.
19. INVENTIONS. All ideas, inventions, and other developments
conceived by Employee, alone or with others, during the term of his employment,
whether or not during working hours, that are within the scope of Employer's
business operations or that relate to any of Employer's work or projects, are
exclusive property of Employer. Employee agrees to assist Employer, at its
expense, to obtain patents on any such patentable ideas, inventions, and other
developments, and agrees to execute all documents necessary to obtain such
patents in the name of Employer.
20. RESTRICTIVE COVENANT. Notwithstanding anything in this
Agreement to the contrary, during the period of active employment and if
Employee's employment is terminated under this Agreement, with or without cause,
voluntarily or involuntarily, by either party Employee agrees that for a period
ending on the later of (i)
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the date that is five (5) years after the date of this Agreement or (ii) the
date that is two (2) years after the termination of employment, he shall not,
within the state of Florida, own, manage, operate, control, be employed by, act
as an agent for, participate in or be connected in any manner with the
ownership, management, operation or control of any business which is engaged in
businesses which are or may be competitive to the business of Employer. It is
the intention of the parties that Employer be given the broadest protection
allowed by law with regard to the restrictions herein contained. In the event of
a breach or a threatened breach by Employee of provisions in this paragraph,
Employer shall be entitled to an injunction restraining Employee from such
breach or threatened breach. Nothing herein shall be construed as prohibiting
Employer from pursuing any other remedies available to it for such breach or
threatened breach including the recovery of damages from Employee. This covenant
on the part of Employer and Employee shall be construed as an agreement
independent of any other provision of this Agreement and the existence of any
claim or cause of action by Employee against Employer whether predicated upon
this Agreement or otherwise shall not constitute a defense to the enforcement by
Employer of this covenant. Employer agrees if Employee provides services as a
certified public accountant on behalf of an accounting firm engaged in public
accounting after the termination of this Agreement, such practice shall not
constitute a violation of the restrictive covenants contained in this Section
20.
In the event that this restrictive covenant shall be determined by any
court of competent jurisdiction to be unenforceable by reason of it being
extended for too great a period of time, or as encompassing too large a
geographic area, or over too great a range of activities, or any combination of
these elements, the parties agree that this covenant shall be interpreted to
extend only over the maximum period of time, geographic area, and range of
activities as to which said court of competent jurisdiction deems reasonable and
enforceable.
21. CONSTRUCTION; ENTIRE AGREEMENT. This instrument reflects the
entire agreement between the parties. It may not be changed orally but only by
an instrument in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought. This Agreement
supersedes any prior employment agreement between the parties. This Agreement
shall be construed in accordance with the laws of the State of Florida.
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IN WITNESS WHEREOF, the parties hereto have set forth their hands and
seals the day and year first above written.
WITNESSES:
/s/ PODS, INC.
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/s/ By: /s/ Xxxxx X. Xxxxxxxx, President
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Xxxxx X. Xxxxxxxx, President
EMPLOYER
/s/ /s/ R. Xxxx Xxxxxx
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R. Xxxx Xxxxxx
/s/
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EMPLOYEE
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