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EXHIBIT 10.4
Employment Agreement with Xxxxxx Xxxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into this 30th day of September, 1999,
between EAGLETECH COMMUNICATIONS, INC., a Nevada Corporation, hereinafter called
the "Employer", and Xxxxxx X. Xxxxx, hereinafter called the "Employee",
WITNESSETH:
WHEREAS, Employer is actively engaged in the business of
telecommunications.
WHEREAS, Employer wishes to employ Employee and Employee wishes to be
employed pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
(1) Position: Executive Vice President/Director of Technology
(2) Duties of Employee: Employee shall have the responsibilities
and perform the duties and to work in such other capacity as
the Corporation may direct from time to time and as is
consistent with the Employee's position as Director of
Technology. The Employee shall at all times use the Employee's
best efforts and shall promote the interests of the
Corporation. Employer reserves the right to change the nature
of Employee's duties, however Employee's duties and job title
shall always be of an executive nature and have those
opportunities for earnings and bonuses as recited in this
Agreement.
(3) Place of Employment:
- Employee shall be based at Employer's principal
office at 000 Xxxxx Xxxxxxx Xxxxxx, Xx. Xxxxxxxxxx,
Xxxxxxx 00000 and shall not be required to travel
away from that office on business more than sixty
(60) days during a calendar year. Employer agrees
that during the term of this Agreement, Employer
shall not assign Employee to work at any location
that is more than 100 miles from said principal
office without Employee's consent.
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- Moving Expenses. If Employer relocates its principal
office more than 50 miles from its current principal
offices, or requests that Employee relocate to one of
its offices which is more than 50 miles from its
current principal offices, and if the Employee
consents to relocate to that new location, Employer
shall promptly pay or reimburse Employee for all
reasonable moving expenses incurred by Employee in
connection with the relocation plus an amount to
reimburse Employee for any federal and state income
taxes that it has to pay on amounts reimbursed.
Employer shall indemnify Employee against any loss
incurred in connection with the sale of Employee's
principal residence. The amount of any loss shall be
determined by taking the difference between the
average of two appraisal prices set by two
independent appraisers agreed to by Employer and
Employee and the actual sales price of Employee's
principal residence so long as the sale transaction
is at "arms length" and the listing and marketing of
the sale of the residence was conducted in a manner
consistent with local real estate practices.
(4) Compensation of Employee:
- Base Salary. For all services rendered by Employee
under this Agreement, Employer agrees to pay Employee
an annual base salary of $90,000, which shall be
payable to Employee is such installments, but not
less frequently than monthly, as are to be consistent
with Employee's practice for its other employees.
Commencing on the below referenced dates the
following salary changes automatically go into
effect:
- October 1, 2000 $100,000.00
- October 1, 2001 $110,000.00
- Signing Bonus. Employer agrees to pay employee
$5,000.00 upon execution of this Agreement.
- Bonus/Incentive Compensation. In addition to the
base salary, Employee shall be entitled to receive
incentive compensation to be equal to one percent
(1.0%) of Employee's pre-tax earnings.
Notwithstanding the foregoing, Employee agrees the
Employer will not pay and the Employee will both
receive any bonuses until such time as Employer's
pre-tax earnings exceed $750,000.00 in any fiscal
year. Bonus payment is to be based on audited
financial statements and is to be considered fully
earned and due upon the completion of the Company's
FYE financial statements.
- Reimbursement for Business Expenses. Employee shall
promptly pay or
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reimburse Employee for all reasonable business
expenses incurred by Employee in performing
Employee's duties and obligations under this
Agreement, but only if Employee properly accounts for
expenses in accordance with Employer's policies and
related tax statutes.
(5) Employee Benefits:
- Vacation Days. Employee shall be entitled to three
(3) weeks paid vacation each calendar year during the
term of this Agreement.
- Holidays. Employee shall be entitled to the same paid
holidays as authorized by Employer for its other
employees.
- Sick Days and Personal Absence Days. Employee shall
be entitled to the same number of paid sick days and
personal absence days (currently 15 and 5,
respectively) authorized by Employer for its other
employees.
- Employer/Employee Benefits Plans. Employee shall be
entitled to participate in and receive benefits from
all of Employer's employee benefit plans that are
currently maintained by Employer for its employees.
Employee shall be entitled to participate in and
receive benefits under any retirement plan,
profit-sharing plan, medical/health and accident
coverage, life insurance, automotive allowance
(currently $500.00 monthly) or other Employee benefit
plan that Employer establishes for the benefit of its
employees and after the date of this Agreement. No
amounts paid to Employee from an Employee benefit
plan shall count as compensation due Employee as base
salary or incentive compensation.
(6) Terms of Employment:
- Term of Employment. Employee's employment shall
commence on the date of execution by Employer and
shall continue for three (3) years
("end-of-employment date"), unless extended or
terminated sooner, as provided within this Agreement.
- Extension of Employment. On the end-of-employment
date and every two (2) years thereafter, Employee's
employment with Employer automatically shall be
extended for an additional two (2) years unless, at
least ninety (90) days prior to the end-of-employment
date, or successive two (2) year anniversary thereof,
Employer or Employee delivers to the other a written
notice that Employee's employment with Employer is
not to be extended.
- Termination of Employee. Employee may, but is not
obliged to, terminate
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this Agreement at any time under the following
circumstances:
- Employee's health becomes so impaired that continued
performance of Employee's duties under this Agreement
would be hazardous to Employee's physical or mental
health.
- Employer requires Employee to travel more frequently
than contemplated by this Agreement.
- Employer becomes insolvent or files a bankruptcy
petition.
- Employee provides Employer with a minimum of ninety
(90) day's notice of intent to terminate employment.
- Notice of Termination. Any termination of Employee's
employment by Employer or Employee must be
communicated to the other party by a written notice
of termination. The notice must specify the provision
of this Agreement authorizing the termination and
must set forth in reasonable detail the facts and
circumstances establishing the basis for termination
of Employee's employment.
- Date of Termination is Effective. If Employee's employment
terminates because this Agreement expires, then Employee's
employment will be considered to have terminated on that
expiration date. If Employee's employment terminates because
of Employee's death, the Employee's employment will be
considered to have terminated on the date of Employee's death.
If Employee's employment is terminated by Employee, then
Employee's employment will be considered to have terminated on
the date that notice of termination is given.
- Compensation Following Termination. If Employer terminates
Employee's employment, Employer shall pay Employee immediately
an amount equal to the remaining balance of Employee's total
compensation due under this Agreement.
(7) Notices: Any notice given under this Agreement to either party
shall be in writing. Notices shall be deemed given when
delivered by hand 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's Address: 0000 XX 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
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Employer's Address: 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
(8) Binding Agreement:
- Employer's Successors. The rights and obligations of
Employer under this Agreement shall inure to the
benefit of and shall be binding in all respects upon
the successors and assigns of Employer.
- Employee's Successors. This Agreement shall inure to
the benefit and be enforceable by and upon Employee's
personal representatives, legatees and heirs. If
Employee dies while amounts are still owed, such
amounts shall be paid to Employee's legatees or, if
no such person or persons have been designated, to
Employee's estate.
(9) Governing Law and Venue: This Agreement has been made in the
State of Florida and shall be construed and governed and
enforced in all respects in accordance with the laws of the
State of Florida and venue shall be Broward County Florida,
including Federal or State courts.
(10) Confidentiality and Trade Secrets:
- Employee's work for the Company will involve
confidential information and/or trade secrets of the
Company, including matters of a technical nature,
such as scientific, trade and engineering secrets,
formulas, processes, machines, inventions, and
research projects; matters of business nature, such
as information about costs, profits, markets, sales,
lists of customers and vendors, databases, computer
programs, and models; and other information of a
similar nature, including plans for future projects
and services. Employee agrees to keep secret all
confidential information and trade secrets of the
Company and agrees not to disclose, either directly
or indirectly, such information to anyone outside the
Company, during or after Employee's employment with
the Company except upon written consent of the Board
of Directors. Employee shall keep such matters
confidential after leaving the employment of the
Company, regardless of the reason for the separation
of employment. All records, files, software,
memoranda, reports price lists, customer lists,
drawings, plans, sketches, documents, technical
information, information on the use, development and
integration of Employer products or materials, and
the like (together with all copies of such documents
and things) relating to the business of Employer,
including any and all Trade Secrets and Confidential
Information, which Employee shall use or prepare or
come in contact with in the course of, or as a result
of, his employment shall, as between the
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parties to this Agreement, remain the sole property
of Employer and Employee hereby conveys such property
to Employer. Employee agrees that he shall return to
Employer all such information and materials,
including all copies thereof, immediately upon the
termination of his employment with Employer and, at
the request of Employer, he shall cooperate with
Employer to assign such information and materials to
Employer and/or to register to obtain patent,
trademark, service xxxx or copyright protection in
favor of Employer with respect to all such
information and materials.
- For purposes of this Agreement, "Confidential
Information" means information, other than Trade
Secrets, which relates to Employer, Employer's
business, or Employer's suppliers or customers that
is not generally known by persons not employed by
Employer and which Employee has learned as a
consequence of Employee's relationship to Employer.
Such information includes, without limitation,
financial information, strategic plans and forecasts,
marketing plans and forecasts, customer lists,
customer pricing and order data, supplier lists, or
technical information relating to Employer's products
or services. Confidential information shall not
include information which has become generally
available to the public by the act of one who has the
right to disclose such information without violating
a legal right to Employer.
(11) Agreement Not to Compete:
- Employee covenants and agrees that during his
employment with the Company and six (6) month
following the payment of salary/benefits if
terminated by the Company, or for such foregoing
period as applicable following the Company obtaining
injunctive relief to prevent Employee's violation of
this Agreement, Employee shall not, either directly
or indirectly, engage in the following activities, or
assist others in such activities in any location
where the Company conducts its business at the time
of the termination of Employee's employment with the
Company:
- Employee acknowledges that the restrictions set forth
in this section are necessary to prevent the use and
disclosure of the Company's confidential information
as described and to be otherwise protect the
legitimate business interests of the Company.
Employee further acknowledges that if Employee's
employment with the Company terminates for any
reason, he will be able to learn a livelihood without
violating the foregoing restrictions and that
Employee's ability to earn a livelihood without
violating such restrictions is a material condition
to Employee's employment or continued employment with
the Company. Employee
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agrees that this covenant is reasonable and shall
apply both during the term of Employee's employment
under this Agreement and thereafter as described
above, regardless of how said employment is
terminated.
- That pursuant to this Agreement, Employee will be
placed in a position of trust and responsibility and
he will have access to a substantial amount of
Confidential Information and Trade Secrets and that
Employer is placing Employee in such position and
giving Employee access to such information in
reliance upon Employee's not competing against
Employer or its subsidiaries, and not soliciting
Employer's or its subsidiaries' customers during the
time periods set forth in this Agreement.
- For purposes of this Agreement, "Trade Secrets" shall
mean all secret, propriety or confidential
information regarding Employer or its business,
whether developed by Employee or otherwise, including
any and all information not generally known to, or
ascertainable by, persons not employed by Employer,
this disclosure or knowledge of which would permit
those persons to derive actual or potential economic
value therefrom or to cause economic or financial
harm to Employer. "Trade Secrets" shall not include
information that has become generally available to
the public by the act of one who has the right to
disclose such information without violating a legal
right of Employer.
- Remedies. The Company and Employee agree that
irreparable injury would result from any breach by
Employee of the provisions in this Agreement,
specifically including the Agreement Not to Compete,
and that monetary damages would not provide adequate
relief for any such breach. Accordingly, in addition
to other remedies which may be available to the
Company, if Employee breaches this Agreement,
Employee agrees that injunctive relief in favor of
the Company is proper and that an injunction
restraining Employee from violating the terms of the
Agreement Not to Compete Section will not contrary to
the public health, safety or welfare.
(12) Severability: In the event that any provision of this
Agreement shall be determined to be invalid or unenforceable
for any reason, the remaining provisions shall be unaffected
thereby and shall remain in full force and effect. Each party
understands this Agreement constitutes the entire agreement
between the parties. It supersedes any prior understandings or
agreements between them upon the subjects covered by this
Agreement. There are no other warranties or representations or
agreements other than those set forth herein.
Acknowledged and Accepted by:
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Witness EMPLOYEE:
/s/ Summer Xxxxxx /s/ Xxxxxx X. Xxxxx
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Summer Xxxxxx Xxxxxx X. Xxxxx
EMPLOYER:
EAGLETECH COMMUNICATIONS, INC.
/s/ Xxxxxxxxxxx X. Xxxxxxxx BY:/s/ Xxxxxx Xxxxx
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Xxxxxxxxxxx X. Xxxxxxxx Title: President
BY: /s/ Xxxxxx Xxxxxxx
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Title: Assistant Secretary
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