EX-10.1 3 smtp_ex10z1.htm EMPLOYEE AGREEMENT EMPLOYEE AGREEMENT
EXHIBIT 10.1
THIS EMPLOYEE AGREEMENT made as of September___, 2014, by and between SharpSpring, Inc., a Delaware corporation (the “Company”), whose principal place of business is at 000 XX 0xx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx XX 00000; and Xxxxxxx Xxxxxxx (“Employee”). This Employee Agreement replaces in its entirety the employee agreement dated August 15, 2014 between Employee and the Company.
WHEREAS, the parties to this Employee Agreement wish to enter into a written expression of their relationship as Employer and Employee.
THEREFORE, in consideration of the agreements contained in this Employee Agreement, the parties, intending to be legally bound, agree as follows:
ARTICLE 1
1.1. Employment. The Company agrees to employ Employee, and Employee accepts employment with the Company, on and subject to the terms and conditions set forth in this Employee Agreement.
1.2. Term. The Company will employ the Employee pursuant to this Employee Agreement effective as of August 15, 2014. The employment of employee will be at-will, meaning that employment may be terminated by either party at any time in accordance with the provisions of Article 7.
ARTICLE 2
2.2. Time Devoted to Work. Employee agrees that he will devote all of the necessary business time, attention, and energies, as well as Employee’s best talents and abilities to the business of the Company in accordance with the Company’s instructions and directions. Employee may engage in other business activities unrelated to the Company during the term of this Employee Agreement so long as such other business activities do not interfere with the terms and conditions of this Employee Agreement.
ARTICLE 3
ARTICLE 4
ARTICLE 5
Vacations and Other Paid Absences
ARTICLE 6
Employee shall be entitled to participate in and receive benefits from all of the Company’s employee benefit plans that are now, or in the future may be, maintained by the
Company for its employees, including, without limitation, the Company’s health insurance plan. No amounts paid to Employee from an employee benefit plan shall count as compensation due Employee as base salary or additional compensation. Nothing in this Employee Agreement shall prohibit the Company from modifying or terminating any of its employee benefit plans in a manner that does not discriminate between Employee and other Company employees.
ARTICLE 7
ARTICLE 8
suppliers and customers, financial information and practices, plans, pricing, selling techniques, sales and marketing programs and methods, names, addresses and telephone numbers of the Company’s and/or the Affiliates’ suppliers and customers, credit and financial data of the Company’s and/or the Affiliates’ suppliers and customers, particular business requirements of the Company’s and/or the Affiliates’ suppliers and customers, special methods and processes involved in designing, producing and selling the Company’s and/or the Affiliates’ products and services, any other information related to the Company’s and/or the Affiliates’ suppliers and customers that could be used as a competitive advantage by the Company’s and/or the Affiliates’ competitors if revealed or disclosed to such competitors or to persons or entities revealing or disclosing same to such competitors, and all “trade secrets” (as that term is defined in O.C.G.A. s. 10-1-761, as amended) of the Company and/or the Affiliates, all of which, together with any and all extracts, summaries and photo, electronic or other copies or reproductions, in whole or in part thereof, stored in whatever medium (including electronic or magnetic), shall be deemed the Company’s and/or the Affiliates’ exclusive property, as applicable, and shall be deemed to be “Confidential Information.” Employee acknowledges that the Confidential Information has been and will continue to be of central importance to the business of the Company and the Affiliates, and that disclosure of it to, or its use by, others could cause substantial loss to the Company and the Affiliates. In consideration of Employee’s employment hereunder, Employee agrees that, at all times during the term of this Employee Agreement, and (i) with respect to all Confidential Information constituting “trade secrets,” for so long thereafter as such Confidential Information continues to constitute “trade secrets” (or for the period beginning on the last day of the term of this Employee Agreement and ending five (5) years thereafter, whichever is longer); and (ii) with respect to all Confidential Information not constituting “trade secrets,” for the period beginning on the last day of the term of this Employee Agreement and ending five (5) years thereafter, Employee shall not, directly or indirectly, use, divulge or disclose to any person or entity, other than those persons or entities employed or engaged by the Company who or which are authorized to receive such information, any of such Confidential Information, and Employee shall hold all of the Confidential Information confidential and inviolate and will not use such Confidential Information against the best interests of the Company or any of the Affiliates.
ARTICLE 9
Employee acknowledges that his specialized skills, abilities and contacts are important to the success of the Company, and agrees that he shall faithfully and strictly adhere to the following covenants:
services on a global basis. Employee agrees that he and the Company may amend the definition of “Territory” from and after the date hereof to reflect any significant contraction or expansion of the geographical area in which he performs the services hereunder.
9.3 Non-solicitation of Employees and Independent Contractors. At all times during the term of this Employee Agreement and for a period of three (3) years thereafter, Employee will not directly or indirectly solicit or encourage any employee or independent contractor of the Company to leave such employment or engagement with the Company, or directly or indirectly employ or engage in any capacity any former employee or independent contractor of the Company, unless such former employee or independent contractor of the Company shall have ceased to be so employed or engaged by the Company for a period of at least six (6) months immediately prior to such action by Employee.
ARTICLE 10
Employee acknowledges and agrees that the covenants and agreements contained in Articles 8 and 9 of this Employee Agreement are the essence of this Employee Agreement, and that each of such covenants and agreements is reasonable and necessary to protect and preserve the interests and business of the Company. Employee further acknowledges and agrees that: (i) each of such covenants and agreements is separate, distinct and severable, not only from the other of such covenants and agreements, but also from the remaining provisions of this Employee Agreement, (ii) the unenforceability of any such covenants or agreements shall not affect the validity or enforceability of any other such covenants or agreements or any other provision or provisions of this Employee Agreement, and (iii) in the event any court of competent jurisdiction or arbitrator, as applicable, determines, rules or holds that any such covenant or agreement hereof is overly broad or against the public policy of the state, then said
court or arbitrator, as the case may be, is specifically authorized to reform and narrow said covenant or agreement to the extent necessary to make said reformed and narrowed covenant or agreement valid and enforceable to the maximum enforceable restriction permitted by law.
ARTICLE 11
It is specifically understood and agreed that (i) any breach of any of the provisions of Articles 8 and 9 of this Employee Agreement is likely to result in irreparable injury to the Company, (ii) the remedy at law alone will be an inadequate remedy for such breach, and (iii) in addition to any other remedy it may have for such breach, the Company shall be entitled to seek both temporary and permanent injunctive relief (to the extent permitted by law) without the necessity of proving actual damages. Notwithstanding any other provision of this Employee Agreement to the contrary, any and all obligations of the Company to pay any compensation to Employee for any reason shall cease and terminate upon the proven breach by Employee, as determined by an arbitrator or a court of competent jurisdiction as the case may be, of any of the obligations of Employee under Articles 8 or 9 of this Employee Agreement.
ARTICLE 12
Existing Restrictive Covenants and Indemnification
Employee represents and warrants that (i) Employee is not a party to or subject to any outstanding contract, agreement or order whereby Employee is prohibited from entering into this Employee Agreement, or any outstanding restrictive covenant or noncompetition agreement which would interfere with or prevent Employee’s employment hereunder as contemplated by this Employee Agreement; (ii) Employee has performed any and all duties or obligations that he may have under any contract or agreement with a former Employer or other party, including, without limitation, the return of all confidential materials; and (iii) Employee is currently not in possession of any confidential materials or property belonging to any such former Employer or other party. Employee acknowledges and agrees that he shall advise the Company in the event that his duties with the Company should be changed or enlarged in such a manner as to conflict with any such prior contract, agreement, order or restrictive covenant. Without limitation on any other rights or remedies available to the Company with respect to Employee’s breach of his obligations hereunder, Employee shall defend, indemnify and hold the Company, the Affiliates, and each of their respective shareholders, officers, directors, employees, counsel, agents, affiliates and assigns (collectively, the “Company Indemnities”) harmless from and against any and all direct or indirect demands, claims, payments, obligations, recoveries, deficiencies, fines, penalties, assessments, actions, causes of action, suits, losses, diminution in the value of assets of the Company, compensatory, punitive, exemplary or consequential damages (including, without limitation, lost income and profits and interruptions of business), liabilities, costs, expenses, and interest on any amount payable to a third party as a result of the foregoing, whether accrued, absolute, contingent, known, unknown or otherwise asserted against, imposed upon or incurred by Company Indemnities, or any of them, by reason of or resulting from, arising out of, based upon or otherwise in respect of (1) any conflict between Employee’s employment hereunder and any prior employment, duty, contract, express or implied agreement, order or restrictive covenant, or (2) any misrepresentation by Employee hereunder as to any facts which are the
subject matter of any conflict or violation of any prior contract, agreement, order or restrictive covenant on the part of Employee.
ARTICLE 13
If Employee’s employment hereunder terminates for any reason, (i) Employee shall, during the three (3) year period after the effective date of such termination, inform any subsequent employers, business partners or colleagues of the existence and provisions of Sections 9.1 and 9.2 of this Employee Agreement and, if requested, provide a copy of such Sections of this Employee Agreement to any such employer, business partner or colleague; and the Company may, at any time, notify any future employer, business partner or colleague of Employee of the existence and provisions of Sections 9.1 and 9.2 of this Employee Agreement.
ARTICLE 14
Any notice given under this Employee Agreement to either party shall be made in writing. Notices shall be deemed given when delivered by hand, document delivery service, or when mailed by registered or certified mail, return receipt requested, postage prepaid, and addressed to the party at the address set forth below.
Employee address:
Xxxx Xxxxxxx
0000 XX 0xx Xxxxx
Xxxxxxxxxxx, XX 00000
Company address:
Xx. Xxxxxx Xxxxxxx
SharpSpring, Inc.
000 XX 0xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx XX 00000
with copies to:
Xx. Xxxxxxxx Xxxxxxxxx
SMTP, Inc.
000 Xxxxxxxxxx Xxx, Xxxxx 0000
Xxxxxx XX 00000
Xxxxx X. Xxxx, Esq.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Each party may designate a different address for receiving notices by giving written notice of the different address to the other party. The written notice of the different address will be deemed given when it is received by the other party.
ARTICLE 15
ARTICLE 16
The waiver by either party of a breach of any provision of this Employee Agreement shall not operate or be construed as a waiver of any subsequent breach.
ARTICLE 17
ARTICLE 18
No change or modification of this Employee Agreement shall be valid unless it is in writing and signed by the party against whom the change or modification is sought to be enforced. No change or modification by the Company shall be effective unless it is approved by the Company’s Board of Directors and signed by an officer specifically authorized to sign such documents.
ARTICLE 19
If any provision of this Employee Agreement is invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the validity or enforceability of any other provision of this Employee Agreement.
ARTICLE 20
Other than as otherwise provided for in this Employee Agreement, so long as Employee is an Employee pursuant to this Employee Agreement, the Company shall not assign this Employee Agreement without Employee’s prior written consent, which consent shall not be unreasonably withheld. Employee may not assign this Employee Agreement.
ARTICLE 21
This Agreement shall be deemed to have been entered into by all parties within the State of Delaware and all questions regarding the validity and interpretation of this Employee Agreement shall be governed by and construed and enforced in all respects in accordance with the laws of the State of Delaware as applied to contracts made and to be performed entirely within the State of Delaware without regard to choice of law provisions.
ARTICLE 22
If a dispute arises out of or relates to this Employee Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Employment Mediation Rules before resorting to arbitration, litigation or some other dispute resolution procedure.
ARTICLE 23
Employee acknowledges that he has had the benefit of independent professional counsel with respect to this Agreement and that the Employee is not relying upon the Company, the Company’s attorneys or any person on behalf of or retained by the Company for any advice or counsel with respect to this Agreement.
Employee,
_______________
Xxxxxxx Xxxxxxx
Witness
Name: Xxxxxxx Xxxxxxx
SharpSpring, Inc.,
_______________
By: /s/ Xxxxxx Xxxxxxx
Witness
Name: Xxxxxx Xxxxxxx
Title: Chief Technology Officer
Appendix A
Duties of Employee
Employee, as the Company’s President shall be responsible for:
A.
Setting the strategic direction of, and running the daily operations of SharpSpring, Inc.
B.
Such other powers and duties as may be prescribed by the Board of Directors that is reasonably agreed upon by Employee.
Appendix B
Other Compensation
I.
Option Grant:
Options: 60,000
Exercise Price: $6.29 per share, which equals the fair market value on the Grant Date
Grant Date: 8/14/2014
Expiration Date: 8/13/2024
Vesting Schedule: The options vest as follows: 50% are tied to achieving company growth goals for 2016; the remaining 25% are tied to achieving company growth goals for each subsequent year. The option grant shall be made pursuant to the Company’s 2010 Employee Stock Plan and subject to the terms of the Employee Stock Plan’s standard non-statutory stock option agreement.