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EXHIBIT 10
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of October 12, 1999, to be
effective on the 1st day of November, 1999, between Xxxxxxxx.xxx, Inc. a
Delaware corporation ("Kinetiks"), and Xxx X. Xxxxxx ("Xxxxxx").
RECITALS
Kinetiks, Elinear Corporation, a Colorado corporation ("Elinear") and
Imagenuity, Inc., a Florida corporation ("Imagenuity") have entered into an
Agreement and Plan of Merger, dated as of October 11, 0000, ("xxx "Xxxx") under
which Imagenuity will merge with Elinear (the "Merger") and under which shares
of Kinetiks Common Stock and Series A Preferred Convertible Stock, which,
following the Merger, will vest in Xxxxxx approximately 75 percent of the
control of Kinetiks, will be distributed to Xxxxxx.
Under Subsection 7.01(k) of the Plan, Kinetiks may terminate and
abandon the Plan if Xxxxxx fails to enter into this Agreement.
THEREFORE, in consideration of the premises and of the mutual covenants
set forth in this Agreement, Kinetiks and Xxxxxx agree as follows:
1. ENGAGEMENT. Kinetiks hereby appoints and employs Xxx Xxxxxx as
president of Kinetiks and Elinear and Xxxxxx accepts such appointment and
employment, subject to the terms and conditions set forth in this Agreement.
2. DUTIES.
(a) Xxxxxx shall (i) perform the duties of president and
chief executive officer of Kinetiks and Elinear, (ii) provide all services
necessary and reasonable to develop and promote the businesses of Kinetiks and
Elinear and (iii) provide such other services as the board of directors of
Kinetiks and Elinear shall request from time to time.
(b) Xxxxxx shall diligently and conscientiously devote
his attention and his best efforts on a full-time basis to the discharge of his
duties, subject only to the directives of the board of directors of Kinetiks.
3. COMPENSATION.
For the year commencing on November 1, 1999, Kinetiks shall pay Xxxxxx
an annual salary of $75,000, payable in 12 equal monthly installments. Xxxxxx'x
compensation in subsequent years shall be established by the board of directors
from time to time.
4. COVENANT OF NONDISCLOSURE; COMPETITION.
(a) Xxxxxx acknowledges that in connection with, and as a
result of his employment by Kinetiks (i) Xxxxxx will develop, has use of, will
acquire, and will be provided information that Xxxxxx believes is, or Kinetiks
has designated as, confidential information or a trade secret, and (ii) Xxxxxx
will have access to financial and accounting information, programs, designs,
systems, proprietary and other computer software, business plans, procedures,
estimates, manuals, and reports, all of which are referred to generally as the
"Proprietary Information." Xxxxxx acknowledges that the Proprietary Information
is a valuable asset of Kinetiks and is subject to the terms of this Agreement
notwithstanding how such information is delivered or disclosed to or discovered
by Xxxxxx during the term of this Agreement.
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(b) Xxxxxx shall upon the termination of this Agreement,
promptly deliver to Kinetiks all Proprietary Information. Xxxxxx shall not,
without the prior written consent of Kinetiks, copy or remove from Kinetiks a
copy of Proprietary Information upon termination of his employment under this
Agreement.
(c) Xxxxxx shall not, at any time directly or indirectly,
use for any purpose whatsoever other than for the benefit of Kinetiks (including
any corporation or entity that controls, is controlled by, or is under common
control with Kinetiks) any Proprietary Information (the "Covenant of
Nondisclosure").
(d) During the Term of this Agreement, and for a period
of one year following the termination of this Agreement, Xxxxxx shall not
directly or indirectly engage in any business similar to the business of
Kinetiks or have any interest directly or indirectly in any such business (the
"Covenant Not to Compete"). This covenant is necessary to protect Kinetiks'
interests in the Proprietary Information.
(e) In the event Xxxxxx breaches the Covenant of
Nondisclosure or the Covenant Not to Compete, Kinetiks, in addition to and not
in limitation of any other rights, remedies, or damages available to it at law
or in equity, shall be entitled to the following relief: (i) a permanent
injunction or order to prevent or restrain any breach of the Covenant of
Nondisclosure or the Covenant Not to Compete by Xxxxxx or any person directly or
indirectly acting for or with Xxxxxx and (ii) and accounting and repayment of
all compensation that Xxxxxx directly or indirectly shall have realized and may
realize as a result of, growing out of, or in connection with, this Agreement.
5. TERM. This Agreement shall be terminable at will upon 90 days
prior written notice by either party. It shall automatically renew as of
November 1, 2000, and each year after that unless written notice of termination
is delivered by Kinetiks to Xxxxxx or Xxxxxx shall deliver a written notice of
his resignation to Kinetiks. The date of such termination or resignation shall
for purposes of this Agreement be the earlier of the date described in the
notice or the date such notice is sent or received by Xxxxxx.
6. TRANSFER FEE. Notwithstanding any restriction or limitation to
the contrary in paragraph 4 related to the Nondisclosure Covenant or the
Covenant Not to Compete, for a period of one year following the termination of
this Agreement, Xxxxxx shall pay and turn over to Kinetiks an amount (the
"Transfer Fee") equal to 100 percent of any profit, fees or commissions received
by Xxxxxx from any individual or entity that was a customer or client of
Kinetiks as of the date of the termination (the "Existing Clients"). The
obligation to pay Xxxxxx the Transfer Fee shall commence effective as of
Xxxxxx'x date of termination and shall be due 15 days after Xxxxxx shall receive
any payment from Existing Clients.
7. GENERAL PROVISIONS.
(a) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given when delivered
personally or on the third succeeding business day after being mailed, postage
prepaid, as follows:
If to Xxxxxxxx.xxx, Inc. at:
Xxxxxxxx.xxx, Inc.
Attn.: Xxx Xxxxxx
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
If to Xxx Xxxxxx at:
Xxx Xxxxxx
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
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(b) Assignment. This Agreement shall not be assignable by
either party. Nothing in this Agreement, express or implied, is intended to
confer upon any persons, other than the parties and their successors and
assigns, any rights or remedies under or by reason of this Agreement.
(c) Entire Agreement; Amendments. This Agreement
represents the entire agreement of the parties with respect to the subject
matter hereof, superseding all prior agreements, understandings, discussions,
negotiations and commitments of any kind. This Agreement may not be amended or
supplemented, nor may any rights hereunder be waived, except in writing signed
by Kinetiks and Xxxxxx.
(d) Invalidity. If any provision of this Agreement is
invalid, illegal, or unenforceable, the balance of this Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstances,
it shall nevertheless remain applicable to all other persons and circumstances.
(e) Waiver. Any waiver of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right after such time to insist upon strict adherence
to that term or any other term of this Agreement. No waiver shall be effective
unless it is written and signed by the waiving party, and, in the case of a
corporation, authorized by a resolution of the board of directors or by an
officer of such corporation.
(f) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of Colorado, without giving effect to
conflict of laws. Any action, suit or proceeding arising out of, based on, or in
connection with this Agreement, may be brought only in the District Court for
the City and County of Denver and each party covenants and agrees not to assert,
by way of motion, as a defense, or otherwise, in any such action, suit, or
proceeding, any claim that it is not subject personally to the jurisdiction of
such court, that its property is exempt or immune from attachment or execution,
that the action, suit, or proceeding is brought in an inconvenient forum, that
the venue of the action, suit, or proceeding is improper, or that this Agreement
or its subject matter may not be enforced in or by such court.
The parties have executed this Agreement on the day and date first
above written.
Xxxxxxxx.xxx, Inc.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, assistant secretary
/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx, individually
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