Exhibit 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into by and between COMMERCE PLANET, INC., a Utah corporation (hereafter
"Employer" or "Commerce"), and XXXXXX XXXXXXX (hereafter "Employee"). Employer
and Employee may for convenience of reference be collectively referred to as
"Parties".
R E C I T A L S:
WHEREAS, Employer is a publicly traded media company offering media products,
lead generation services and marketing tools to its client partners and has
printing and other fulfillment work needs; and
WHEREAS, Employee maintains experience in printing and fulfillment work and
desires to commence employment for Employer on May 31, 2006, and the Parties
desire to confirm the terms of the employment of Employee by Employer as herein
set forth and hereby enter into this Agreement effective May 31, 2006 (hereafter
the "Effective Date"), which Agreement shall supersede any and all prior
agreements between the Parties; and
NOW, THEREFORE, the Parties agree as follows:
1. EMPLOYMENT.
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Employer shall employ Employee as the President of Commerce's printing and
fulfillment division or as the President of an affiliate entity specializing in
printing and fulfillment to be formed at a later date. Employee will render
printing and fulfillment services on a full-time basis in accordance with the
terms and conditions herein set forth, in accordance with Employer's policies,
and consistent with the laws of the State of California.
Employee will work on a full-time basis (five days per week, eight hours a
day), in fulfilling the duties assigned to him hereunder and will continue to
spend as much time as needed to fulfill his duties in a successful manner.
2. JOB DUTIES.
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Employee's duties shall include, but are not limited to, the following:
Operating Commerce's printing and fulfillment affiliate; establishing and
managing each operating division; establishing and implementing proper operating
procedures; ensuring that implemented operating procedures provide for adequate
productivity and are compliant with all applicable rules and regulations; and
responsibility for revenue growth and operational expense management.
2.1 EMPLOYMENT.
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Employee shall act as President of Commerce's printing and fulfillment division
or as the President of an affiliate entity specializing in printing and
fulfillment to be formed at a later date.
During the term of this Agreement, Employee shall not engage in any other
activities which would limit his ability to effectively perform the
responsibilities set forth in this Agreement. Specifically, during the term of
this Agreement, Employee shall not engage in any other business, other than
Commerce or Commerce's affiliated companies and/or divisions which would be
considered a conflict of interest and could affect the satisfactory performance
of his duties hereunder.
2.2 EXEMPT STATUS.
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Employee shall perform such duties as are necessary to the administration and
management of Employer's business and has control and supervision of that
business during his employment for Commerce. It is understood that while
Employee reports and shall be responsible to the CEO/President of Employer, or
designee, Employee has discretion to perform such functions as he deems
reasonably necessary to the successful operation of Employer's printing and
fulfillment division. Accordingly, the Parties understand and agree that
Employee is "exempt" on both an executive and administrative basis under
applicable California wage and hour laws.
3. TERM AND TERMINATION.
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The term of Employee's employment under this Agreement will commence on the
Effective Date and shall be for an initial term of two (2) years from the
Effective Date (the "Initial Term"). This Agreement shall be subject to
termination during the Initial Term only upon the occurrence of any of the
following events:
(a) At any time Employer and Employee mutually agree in writing to terminate
this Agreement.
(b) On the death or legal incapacity of Employee.
(c) If Employee is "disabled" as defined below and if Employee's disability
continues for a period of more than three (3) months, his employment hereunder
will automatically terminate with or without formal notice from Employer. For
purposes of this Agreement, "disability" shall be defined as an Employee's
inability through physical or mental illness or other cause to fully and capably
engage in the management of Employer's business operations and/or to perform
Employee's obligation herein set forth.
(d) Employer may terminate this Agreement and Employee's employment
hereunder, for "cause" as herein defined, upon thirty (30) days prior written
notice. For the purposes of this Agreement, "cause" shall be defined as any of
the following:
i) Employee's misappropriation of assets, properties, or funds of
Employer; or
ii) Employee's conviction of, or plea of guilty or nolo contendere to a
felony or misdemeanor involving moral turpitude.
iii) Any conduct that will reasonably tend to materially degrade Employee or
bring Employer into public hatred, contempt, or ridicule, or tend to offend the
community in which Employee represents Employer, or to materially prejudice
Employer's position in the community. Employee acknowledges and agrees that
this provision is necessary to protect the profitability of Employer's business.
Upon termination for cause, the Employee shall be entitled to receive only such
salary, wages, vested warrants and any earned and unused vacation time, as may
have accrued as of the effective date of termination, unless otherwise agreed by
Employer in writing. All vested warrants held by Employee at the time of
termination of Employee's employment or this Agreement must be exercised or
returned immediately to Employer.
(e) In the event that Employee voluntarily terminates his employment with
Employer, Employee shall be entitled to receive such salary, wages, and other
compensation which has accrued through the effective date of termination.
(g) In the event this Agreement is terminated for any reason, Employer or its
affiliates shall have the right in its sole discretion to terminate the Asset
Purchase Agreement executed by Employee to any extent possible.
3.1 At-Will Employment. Employee agrees and acknowledges that upon
completion of the Initial Term, Employee shall be deemed an "at-will" employee
and Employer may terminate this Agreement and Employee's employment hereunder
without "cause" as defined herein.
4. COMPENSATION.
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4.1 Annual Salary. Employer shall pay to Employee during the term of this
Agreement or any extension thereof, as consideration for Employee's full and
faithful performance of his duties hereunder, an annual salary of $135,000 per
annum for the Initial Term and for each Renewal Period thereafter. Payment
shall be made on a pro rata basis in accordance with Employer's then applicable
payroll procedures.
4.2 Grant of Restricted Stock. As additional compensation, Employer
hereby grants to Employee 300,000 restricted shares of Commerce common stock.
The shares shall vest to Employee in increments of 12,500 shares per month for
two (2) years; provided, however, that all 300,000 shares shall vest immediately
in the event Commerce is acquired by another entity. Notwithstanding the
foregoing, Employee acknowledges and agrees that said shares shall not be
registered securities and shall only be tradable upon compliance with applicable
state and Federal securities laws. In addition, Employee agrees to execute any
lockup agreements or similar agreements reasonably requested by Employer or an
underwriter for Employer in connection with any proposed public offerings of
Employer's common stock. Vesting of shares of said stock shall cease upon
termination.
4.3 Performance Bonus. Commerce's Board of Directors may elect to pay
Employee up to $25,000 per annum if a performance bonus is deemed appropriate
under the circumstances.
5. VACATION.
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Employee shall be entitled to take up to two weeks (ten working days) paid
vacation during each calendar year. To the extent possible, vacation leave shall
be scheduled at such times as will not interfere with Commerce or its printing
and fulfillment division's operations.
6. SICK LEAVE.
Employee shall be entitled to up to five (5) working days
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paid sick leave during each calendar year. Unused sick days will not accrue and
Employer shall not be obligated to compensate Employee for any unused sick days
at any time.
7. HEALTH INSURANCE.
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Employee, Employee's spouse and Employee's dependents shall be provided with
health insurance coverage or reimbursement at no cost to Employee.
8. OTHER BENEFITS.
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Employee will be entitled to participate in any other employee benefit plans
which the Board of Directors of Employer may elect to provide for other
employees of Commerce or Commerce's affiliated companies and/or divisions.
9. CONFIDENTIAL INFORMATION/EMPLOYER'S OWNERSHIP OF INTANGIBLES.
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Upon termination of his employment hereunder, Employee shall not be entitled to
keep or use any documents, files, property or information of any description
acquired by Employee pursuant to the performance of his duties herein and
pertaining to Employer's business, including, but not limited to, vendor
information, accounts receivable, customer lists, business and financial
information, trade names, trademarks, service marks, or related matters,
including but not limited to the name "Commerce".
Employee agrees that he will not, during or after the Agreement, furnish or make
accessible to any person, firm, corporation or other entity any financial
information, receipts, business information, customer lists, vendor information,
or other proprietary or trade secret data (whether technical or non-technical)
acquired by him from Employer, from Employer's principals, or from his
co-employee, without the prior written consent of Employer, unless such
information is or shall have become public knowledge, other than by being
divulged or made accessible by Employee.
10. AMENDMENTS TO AGREEMENT.
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The terms of Employee's employment for Employer are described in full in this
Agreement, and there are no other terms not contained in this Agreement. Any
changes in the terms of employment shall be deemed valid only if they are in
writing and signed by an authorized representative of Commerce and by Employee.
11. NOTICES. In the event that any notices are sent by either of the
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parties to the other, such notices shall be in writing, and shall be sent by
registered or certified mail, return receipt requested, as follows:
If to Employer: COMMERCE PLANET, INC.
C/O XXXXXXX XXXX
CEO/PRESIDENT
00 X. Xx Xxxxxx Xxxx, Xxxxx 0
Xxxxxx, XX 00000
If to Employee: XXXXXX XXXXXXX
0000 Xxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
12. ASSIGNMENT.
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This Agreement shall inure to the benefit of and be binding upon the Employer,
its successors and assigns, and upon Employee and his heirs, executors,
administrators, and legal representatives. Notwithstanding the foregoing, this
Agreement shall not be assignable by Employee or Employer without the prior
written consent of the other party hereto; provided, however, that Employer may
assign all of its rights and interests under this Agreement to any of its
affiliates.
13. GOVERNING LAW.
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This Agreement shall be governed in all respects by the laws of the State of
California. Should any action or proceeding be brought to construe or enforce
the terms and conditions of this Agreement or the rights of the parties
hereunder, the losing party shall pay to the prevailing party all court costs
and reasonable attorneys' fees and costs incurred in such action or proceeding.
14. VALIDITY OF AGREEMENT.
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If any provision of this Agreement is declared by a court of competent
jurisdiction to be invalid, such provision shall not be null and void but the
remaining provisions of this Agreement shall remain in full force and effect.
This Agreement is executed at Santa Barbara, California, and shall be effective
as of the 1st day of June, 2006.
EMPLOYER
COMMERCE PLANET, INC.
BY /S/ XXXXXXX XXXX
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XXXXXXX XXXX
CEO AND PRESIDENT
EMPLOYEE
/S/ XXXXXX XXXXXXX
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XXXXXX XXXXXXX
