EXHIBIT 10.21
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
this 23rd day of November, 2000 (the "Effective Date"), by and between Talon
Global Solutions, Inc., a Texas corporation ("Employer") and Xxxxx Xxxxxx
("Employee").
W I T N E S S E T H:
WHEREAS, Employee is experienced and qualified to perform duties
connected and associated with the business of Employer;
WHEREAS, Employer wishes to employ Employee, and Employee wishes to be
employed by Employer, upon the terms and subject to the conditions hereinafter
set forth;
WHEREAS, as a condition of Employee's employment, Employer desires to
receive from Employee certain covenants and agreements; and
WHEREAS, Employer and Employee desire to set forth in writing the terms
and conditions of their agreements and undertakings with respect to these
agreements and Employee's employment with Employer.
NOW, THEREFORE, IN CONSIDERATION of the herein recited undertakings,
the compensation to be paid by Employer to Employee and the other covenants,
agreements and consideration contained herein, the receipt and sufficiency of
which are hereby acknowledged and confessed, the parties hereto agree as
follows:
1. Employment. Employer hereby employs Employee as an employee of
Employer upon the terms and subject to the conditions hereinafter set forth.
2. Term of Employment. Employee's term of employment under this
Agreement shall begin on the effective date of this Agreement as hereinafter
provided and shall, subject to early termination as hereinafter set forth in
this Agreement, continue until it is terminated on the third (3rd) anniversary
date of the Effective Date of this Agreement (the "Initial Term"); provided,
however, that the term of employment of Employee under this Agreement may be
extended for an additional period of one (1) year after the expiration of the
Initial Term (the "Additional Term") by written agreement of the parties.
3. Employee Warranties. Employee represents and warrants to Employer
that Employee (a) has the legal power and right to enter into this Agreement,
and that upon execution and delivery of this Agreement by Employee to Employer,
this Agreement will constitute the legal, valid, and binding obligation of
Employee, fully enforceable in accordance with its terms and provisions; (b) is
free to enter into the terms of this Agreement and he has no obligations
inconsistent herewith; and (c) agrees to devote her best efforts to Employer's
business interests to the exclusion of any affiliation in competition with
Employer or that might otherwise utilize Employer's know-how or other
confidential information.
4. Duties of Employee. For the term provided in Paragraph 2 of this
Agreement (subject to earlier termination as hereinafter provided), Employee
shall be employed as Marketing Director of Employer. Employee shall have such
other duties and responsibilities as may from time to time be assigned to
Employee by the President of Employer. Employee shall report to the President of
Employer.
5. Place of Employment. The duties to be performed by Employee shall be
performed primarily at the Company's office located in Dallas, Texas, as well as
at the such other temporary locations as the President of Employer may from time
to time determine or require for the performance of her duties as an employee of
Employer.
6. Time Requirements. Employee shall devote substantially all of her
productive time, ability and attention to the business of Employer during the
term of this Agreement. Employee shall not, directly or indirectly, without the
prior consent of Employer, render any services of a business, commercial or
professional nature to any other organization or legal entity, whether for
compensation or otherwise, during the term of this Agreement as provided in
Paragraph 2 hereof, except to the extent such services do not materially
interfere with the duties of Employee pursuant to this Agreement.
7. Conduct Requirements. Employee shall, at all times during the term
of this Agreement, conduct himself in such a manner as to reflect positive upon
Employer's corporate image and shall not do or perform any acts in her capacity
as an employee of Employer and/or in her personal and/or social life and/or in
her financial affairs which are or may, in the reasonable business judgment of
the Board of Directors, be considered illegal or dishonest, and/or may cause
Employee and/or Employer to suffer loss of business reputation.
8. Compensation; Benefits. Effective as of the Effective Date of this
Agreement, Employer shall pay or provide to Employee during the Initial Term of
this Agreement and any extension hereof (unless this Agreement is earlier
terminated as hereinafter provided in Paragraph 10 hereof) the following
compensation and benefits set forth in subparagraphs (a) through (c)
(collectively the "Benefits"), subject to deductions, offsets and credits as
elsewhere set forth in this Paragraph 8:
(a) Compensation.
(i) Salary. Employee shall receive an annual salary
of $45,000.00 ("Base Salary"), subject to mandatory deductions
and withholdings as required by law. Employee's Base Salary
may be increased at any time at the sole discretion of the
Board of Directors of Employer.
(ii) Bonus. Employee may be eligible to receive an
annual bonus based on Employer's annual performance, which
bonus may be in the form of (a) options to purchase shares of
the Company's common stock annually under terms as determined
by the Board of Directors of Employer, and (b) cash in an
amount not to exceed 15% of Employee's Base Salary as set
forth in Section (a)(i) of this Paragraph, subject to
mandatory deductions and withholdings as required by law. Such
bonus, if any, shall be payable at such time as the Board of
Directors of Employer, in its sole discretion, shall
determine. Any options or warrants granted to the Employee by
the Board of Directors of Employer shall be under such terms
and conditions as solely determined by Employer's Board of
Directors.
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(iii) Commissions. Employee shall be paid a
commission in accordance with a commission plan to be drafted
by the Employer's designee and adopted by the Board of
Directors at a later date.
(b) Employee Benefits.
(i) Medical Benefits. Employer agrees to include
Employee, her spouse and her dependents, if applicable, with
no delay in coverage, in any hospital, surgical, medical,
disability and dental plan or plans of Employer for its
employees generally from time to time during the term of this
Agreement, provided Employee, her spouse and her dependents
are eligible, in accordance with the terms and conditions of
such plan or plans, to be covered by such plan or plans. Such
medical benefits shall be paid by Employer under a Section 125
benefit plan and Employer will increase Employee's
compensation to cover the cost of such benefits.
(ii) Other Benefit Plans. Employee may be eligible to
be included in any profit sharing, pension, deferred
compensation or other benefit plans of Employer, including
group term life insurance, for all or any portion of its
employees, including its key employees, from time to time
during the term of this Agreement. The costs of participating
in any of such benefit plans shall be borne as provided in
rules and regulations adopted by Employer, if applicable, from
time to time dealing with any of such plans. It is agreed and
understood that there shall be no obligation on the part of
Employer to provide for the participation of Employee in, or
to institute, any such plan or plans or to make any
contribution or contributions thereunder.
(iii) Vacation, Personal Days and Holidays. Employee
shall be entitled to paid vacation and personal days as
follows: Employee shall be entitled to two (2) weeks vacation
(after five (5) years of employment with Employer, three (3)
weeks), which vacation shall be taken by Employee at
reasonable times and on or before each anniversary of the
Effective Date of this Agreement. On each anniversary of the
Effective Date, Employee shall have the right to elect to be
paid for any unused vacation day (but not personal days) at
the then current salary of Employee. Unused vacation and
personal days may be carried over if not taken prior to
December 1st. In addition, Employee shall be entitled to such
holidays as Employer elects to provide for its employees
generally.
(c) Other Benefits. Employee may be eligible to participate in
any stock option plan, incentive compensation plan or bonus plan which
may be provided by Employer or by any affiliate of Employer to its key
employees, the actual participants therein, including Employee, and
benefits granted thereunder, if any, to be at the sole discretion of
Employer or its affiliates. Such plans are subject to any rights
reserved by Employer or its affiliates to modify or terminate any such
plans.
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9. Business Expenses; Reimbursement. Employee shall be entitled to
receive reimbursement for, or payment directly by Employer of, all reasonable
expenses incurred by Employee in the performance of her duties under this
Agreement, provided that (i) Employee accounts therefor in writing pursuant to
Section 274 of the Internal Revenue Code of 1986, as amended (the "Code"), (ii)
such expenses are ordinary and necessary business expenses of Employer within
the meaning of Section 162 of the Code, and (iii) Employer approves such
expenses in advance prior to being incurred by Employee if such expenses should
exceed $2,500.00. Reimbursement payments for such business expenses shall be
paid to the Employee within 30 days from the date of submission of invoices and
receipts.
10. Termination. This Agreement shall terminate earlier than provided
in Paragraph 2 hereof upon the first to occur of any of the following:
(a) Death or Disability. In the event Employee shall die or
become disabled during the term of this Agreement, then and in such
event, this Agreement shall automatically terminate as of such date.
Employer shall pay to Employee or Employee's legal representatives all
Benefits as described in Section 8 of this Agreement, if any, then due
and owing to Employee figured pro rata up to and including the date of
death or disability.
As used in this Agreement, the term "disability" shall have
the meaning given such term in any disability insurance policy or
policies covering Employee if any such policy or policies is in force
at the time a determination of disability is to be made. If no such
policy is in force at such time, the term "disability" or "disabled"
shall mean the physical or mental incapacity of Employee which has
prevented or will prevent such Employee from substantially performing
the usual duties of her employment with Employer for a substantially
continuous period of at least one-hundred twenty (120) days. If there
is any dispute as to whether Employee is disabled (whether or not any
disability policy is in force), Employee and Employer shall each select
a medical doctor duly licensed in the state of Employee's permanent
residence within fifteen (15) days of the date the issue of disability
first arises. The two doctors so selected shall then within fifteen
(15) days thereafter mutually agree on a third medical doctor duly
licensed in such state. The three doctors so selected shall then within
thirty (30) days following the selection of a third medical doctor make
a determination as to whether Employee is disabled. The decision of the
three medical doctors so selected shall be conclusive on all parties
concerned. The cost and expense of the three medical doctors so
selected shall be borne by Employer.
(b) Termination for Cause. This Agreement may be terminated,
and Employee discharged, prior-to the expiration of the Initial Term or
Additional Term, if applicable, for the reasons set forth below:
(i) upon the filing of a petition in a court of
bankruptcy by Employer.
EMPLOYMENT AGREEMENT-Xxxxx Xxxxxx
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This Agreement shall also terminate immediately on the
occurrence of any one of the following events:
(ii) Willful or gross negligent failure by Employee
to perform her duties in a manner which is not in the best
interest of the Company, as determined by the Board of
Directors;
(iii) Employee willfully and in bad faith fails to
follow any requirement, order or mandate of the Board of
Directors of Employer;
(iv) Employee engages in any activity involving
fraud, dishonesty, moral turpitude, addiction or dereliction
of duty; or
(v) subject to the provisions of Paragraph 10(a)
above, an incapacity for any reason on the part of Employee to
perform her duties for a continuous period of one-hundred
twenty (120) days, unless waived by Employer.
In the event of termination of this Agreement prior to the
completion of the Initial Term of employment specified herein, for any
reasons set forth above, Employee shall be entitled to the Benefits as
described in Section 8 of this Agreement. If this Agreement is
terminated by reason of Section 10(b)(ii), (iii), (iv) or (v), during
the Initial Term, Employee shall be entitled to her Base Salary and
commissions earned prior to the date of termination, computed on a pro
rata monthly basis of the Base Salary earned up to and including the
date of termination, and including all commissions earned but not paid
as of the date of termination. Employee shall be entitled to no further
Benefits or compensation and will be relieved of all duties and
obligations under this Agreement as of the date of termination.
Notwithstanding anything provided herein, Employee understands and
agrees that Employee's obligations and agreements set forth in Sections
12 and 13 shall survive the terminations of this Agreement.
(c) Termination Without Cause. This Agreement and
Employee's employment by Employer may be terminated by
Employer without cause; provided, however, Employer shall pay
Employee accrued but unpaid Benefits as described in Section 8
of this Agreement up to the termination date. Notwithstanding
the foregoing, Employer shall have no obligation to pay the
accrued Benefits if Employee violates, breaches or otherwise
fails to comply with each and every one of the terms and
provisions of the Non-Compete Agreement as set forth in
Section 12 hereof. Employee shall have no obligation to comply
with the terms and conditions of the Non-Compete Agreement
herein, unless Employer shall agree to pay Employee the
Benefits due Employee under this Section 10(c). Employer may
at its option terminate this Agreement by giving written
notice of termination to Employee without prejudice to any
other remedy to which Employer may be entitled, either at law,
in equity, or under this Agreement:
(d) Early Termination by Employee. If Employee
resigns or otherwise voluntarily terminates her employment
with Employer prior to the expiration of the term provided in
Paragraph 2 hereof, Employee shall forfeit and shall not be
entitled to receive any Benefits from Employer whatsoever
except any Base Salary, bonus and commissions actually earned
by her prior to the date of termination as provided for in
this Agreement. If Employee terminates her employment pursuant
to this Section 10(d) during the Initial Term, Employee shall
be entitled to her Base Salary earned prior to the date of
termination, computed on a pro rata monthly basis of the Base
Salary up to and including the date of termination. Any
termination pursuant to this Paragraph 10(d) shall not limit
any right or remedy that Employer may have against Employee.
EMPLOYMENT AGREEMENT-Xxxxx Xxxxxx
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11. Status of Agreement. The Benefits or payments made under this
Agreement shall be independent of and in addition to those under any other
agreement which may be in effect between the parties hereto or any other
compensation payable to Employee or her designees or estate by Employer and
unless specifically referred to herein or unless otherwise provided by agreement
or law, nothing contained herein shall be deemed to exclude Employee from any
pension, profit-sharing, insurance or other benefits to which she may otherwise
be or might become entitled as an employee of Employer.
12. Non-Compete Agreement.
(a) Employee acknowledges that the services rendered to
Employer by Employee have been and will continue to be of a special
character which have a unique value to Employer and Employee has had or
will have access to trade secrets and confidential information
belonging to Employer, the loss of which cannot adequately be
compensated by damages in an action of law. Employee acknowledges that
Employer's customers and the suppliers are not generally known, and
that the documents and information regarding Employer's customers,
suppliers, services, methods of operation, sales, pricing, and costs
are highly confidential and constitute trade secrets.
In consideration of the disclosure of such trade secrets to
Employee, Employee agrees that, during the term of Employee's
employment with Employer and (a) for a period of one (1) year (with
regard to multi-level marketing) and a period of five (5) years (with
regard to oil and gas software) following the termination of Employee's
employment with Employer if Employee voluntarily terminates her
employment or is terminated for cause under Section 10(b)(ii)-(v)
herein or (b) for a period of one (1) year (with regard to multi-level
marketing) and a period of five (5) years (with regard to oil and gas
software) following the termination of Employee's employment with
Employer if Employee is terminated without cause, Employee, except as
otherwise agreed upon in writing:
(i) will not, directly or indirectly, own, manage,
operate, control, be employed by, perform services for, be
connected with ownership, management, operation, or control of
any business in the multi-level marketing software industry or
in the oil and gas software industry, respectively, in any
city within the United States;
(ii) will not, either on her own account or for any
person, firm, partnership, corporation or other entity,
solicit, interfere with, or endeavor to cause any employee of
Employer to leave her or her employment, or induce or attempt
to induce any such employee to breach her or her employment
agreement with Employer;
EMPLOYMENT AGREEMENT-Xxxxx Xxxxxx
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(iii) shall not solicit, induce or attempt to induce
any past or current customer of Employer to cease doing
business in whole or in part with or through Employer, or to
do business with any other person, firm, partnership,
corporation or other entity.
Notwithstanding the foregoing, Employee may, as a passive
investor, without violating the provisions hereof, own not more than
10% of the issued and outstanding stock of a publicly-held company
which is engaged in the business of Employer. Additionally, the
non-compete restriction set forth in Section 12(a)(i) above shall not
apply if Employee is terminated under Section 10(b)(v) herein.
13. Confidential Information.
(a) Employee recognizes that Employer's business interests
require a confidential relationship between Employer and Employee and
the fullest practical protection and confidential treatment of
Employer's financial data, writings, computer software, sources of
supply, know-how, plans and programs, and other knowledge of Employer's
business, including but not limited to the identity of its customers
and suppliers, its arrangements with such suppliers and customers and
technical data relating to its business, products, and services (all of
which is collectively referred to as the "Confidential Information"),
which may in whole or in part be conceived or learned of by Employee in
the course of Employee's employment with Employer.
(b) Employee agrees to keep secret and to keep confidential
all of Employer's Confidential Information, whether or not
copyrightable or patentable, both during and after the termination of
Employee's employment with Employer. Employee further covenants and
agrees not to use or aid others in learning of or using any of
Employer's Confidential Information except in the faithful performance
of Employee's duties for Employer. In this regard, during the term
hereof and for a period of one (1) year (with regard to multi-level
marketing) and a period of five (5) years (with regard to oil and gas
software) following the termination of this Agreement for any reason,
Employee covenants and agrees that, except insofar as authorized by
Employer as a necessary disclosure to persons having a need to know
consistent with the working relationship within Employer and with
Employer's customers:
(i) Employee will not directly or indirectly disclose
Confidential Information to others either within or outside of
Employer;
(ii) Employee will not use Confidential Information
for her own account and will not aid or abet others in use of
it for either their account or her account or benefit;
(iii) Employee will not make or disclose documents or
copies of documents containing disclosures of Confidential
Information; and
EMPLOYMENT AGREEMENT-Xxxxx Xxxxxx
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(iv) As to documents which are delivered to Employee
or which are made as a necessary part of the working
relationships and duties within Employer and with Employer's
customers and suppliers, Employee will treat them
confidentially and will xxxx them as proprietary confidential
documents not to be reproduced or used without appropriate
authority of Employer.
(c) In the event of a breach or threatened breach by Employee
of the provisions of this Paragraph 13, Employer shall, in addition to
any other available remedies, be entitled to an injunction restraining
Employee from disclosing, in whole or in part, any such information or
from rendering any services to any person to whom any such information
may have been disclosed or is threatened to be disclosed.
(d) The covenants and agreements of Employee set forth in this
Paragraph 13 are in addition to, and not in lieu of, similar provisions
contained in Paragraph 12 hereof.
14. Continuing Effect. The provisions of Paragraphs 12 and 13 of this
Agreement shall continue to be binding upon Employee in accordance with the
terms therein contained, notwithstanding termination of Employee's employment
hereunder for any reason whatsoever.
15. Corporate Opportunities and Property Rights of Parties. Employee
agrees that she will promptly and fully inform and disclose to Employer all
business opportunities to which Employee becomes aware related to any business
venture being undertaken by Employer, a subsidiary of Employer or any entity
affiliated with Employer, during the term of this Agreement and any renewals of
this Agreement, which relates to the multi-level marketing software business,
whether conceived by Employee alone or with others and whether or not conceived
during regular working hours. Employer hereby acknowledges and agrees that,
notwithstanding the provisions of Paragraph 12 above, Employee shall be allowed
to periodically participate in a reasonable number of outside business
activities that relate to the multi-level marketing software industry, the
reasonableness of such participation shall be determined by the Board of
Directors, in their sole discretion.
16. Inventions, Discoveries and Improvements.
(a) Employee shall disclose promptly to Employer or its
nominee any and all inventions, software technology, discoveries and
improvements to any existing multi-level marketing software technology
of Employer conceived or made by Employee during the period of her
employment and related to the business or activities of Employer and
agrees to assign all of her interest therein to Employer or its
nominee, whenever requested to do so by Employer and shall execute any
and all applications, assignments or other instruments which Employer
shall deem necessary to apply for and obtain Letters Patent of the
United States or any foreign country or to protect otherwise Employer's
interest therein. These obligations shall continue beyond the
termination of employment with respect to said inventions, discoveries
and improvements conceived or made by Employee during the period of
employment and shall be binding upon Employee's assigns, executors,
administrators and other legal representatives.
EMPLOYMENT AGREEMENT-Xxxxx Xxxxxx
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(b) Upon termination of said employment, Employee shall
disclose promptly to Employer or its nominee any and all inventions,
software technology, discoveries and improvements to multi-level
marketing software technology of Employer conceived or made by Employee
during the period of her employment and shall promptly deliver to
Employer all drawings, blueprints, manuals, letters, notes, notebooks,
reports, and all other materials of a secret or confidential nature
relating to Employer's business and which are in the possession or
under the control of Employee.
17. Miscellaneous Provisions.
(a) Notice. All notices, demands, changes of address, requests
or other communications that may be or are required to be given, served
or sent by any party to any other party pursuant to this Agreement
shall be in writing and shall be mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, or
transmitted by hand delivery or telegram, or by overnight courier.
(b) Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES
GOVERNING CONFLICTS OF LAWS) OF THE STATE OF TEXAS.
(c) Captions. The captions used herein are for administrative
and convenience purpose only and shall not be construed in interpreting
this Agreement.
(d) Gender. Whenever the context so requires, the masculine
shall include the feminine and neuter, and the singular shall include
the plural, and conversely.
(e) Legal Construction. If any portion of this Agreement shall
be held invalid or inoperative, then so far as reasonable and possible
(i) the remainder of this Agreement shall be considered valid and
operative, and (ii) effect shall be given to the intent manifested by
the portion held invalid or inoperative and that portion shall be
modified to the extent necessary to render it enforceable.
(f) Amendments. This Agreement may be amended from time to
time by an instrument in writing signed by all those who are parties to
this Agreement at the time of such amendment, such instrument being
designated on its face as an "Amendment" to this Agreement.
(g) Waiver. The failure of any party to insist in one or more
instances upon the performance of any of the terms or conditions of
this Agreement shall not be construed as a waiver or relinquishment of
any right granted hereunder or of the future performance of any such
term or condition, but the obligations of any party with respect
thereto shall continue in full force and effect.
(h) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.
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(i) Remedies. Each party hereto acknowledges that a remedy at
law for any breach or attempted breach of Sections 12 and 13 of this
Agreement will be inadequate, agrees that each other party hereto shall
be entitled to specific performance and injunctive and other equitable
relief in case of any such breach or attempted breach and further
agrees to waive any requirement for securing or posting of any bond in
connection with obtaining any such injunctive or other equitable
relief. Such remedy shall be cumulative and not exclusive and shall be
in addition to any other rights or remedies any party may have against
the other.
(j) Attorneys' Fees. If any action at law or in equity,
including any action for injunctive or declaratory relief, is brought
to enforce or interpret any of the provisions of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys'
fees and expenses from the other party, which fees and expenses may be
set by the court in the trial of such action or may be enforced in a
separate action brought for that purpose and which fees and expenses
shall be in addition to any other relief which may be awarded.
(k) Prior Agreements. This Agreement contains the entire
agreement between the parties hereto and supersedes any and all prior
agreements, whether written or oral, between the parties with respect
to the within subject matter. All other employment, salary
continuation, bonus, incentive compensation and other similar
agreements heretofore that may have been entered into between Employer
and Employee and in effect as of the date hereof are hereby cancelled
and shall be of no further force or effect.
18. Time of the Essence. Time shall be of the essence throughout the
term of this Agreement.
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EXECUTED and EFFECTIVE as of the date first set forth herein.
EMPLOYER:
Talon Global Solutions, Inc.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------------------
Xxxxxx X. Xxxxxx, Xx., President
Address: 0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
EMPLOYEE:
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Address: 0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
EMPLOYMENT AGREEMENT-Xxxxx Xxxxxx
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