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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
AGREEMENT entered into as of April 10, 1997 by and between One Up
Corporation, a Texas corporation with its principal offices at 00000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx Xxxxxx, Xxxxx 00000, the "Employer" or
"One Up" and Xxxxxx Xxxxxxxxxx, an individual residing at 0000 XXX Xxxxxxx,
#000, Xxxxxx, Xxxxx 00000 (the "Employee").
WHEREAS, the Employee has been accepted for employment by One Up as a
President, which position shall be deemed by One Up to be a key position
within the corporation; and,
WHEREAS, One Up desires to have the Employee make their services
available to One Up; and,
WHEREAS, One Up shall employ the Employee on the condition that, in so
doing, it shall have protected its goodwill, trade secrets and other
proprietary or confidential information, business accounts and patronage;
and,
WHEREAS, the Employee desires to render such services on the terms and
conditions set forth herein and agrees to protect One Up's goodwill, trade
secrets and other proprietary or confidential information, business accounts
and patronage.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. DUTIES, COMPENSATION, VACATION, TRAVEL AND EXPENSES
(a) The Employee shall be responsible to perform the duties of a
President and such other activities as One Up may, from time
to time, reasonably assign to him/her. The Employee agrees to
perform such duties to the best of their ability and to
exclusively devote their energies and skill to the
performance of their duties during business hours and for
such additional time as may be necessary to perform such
duties. During the Term of Employment, the Employee shall be
governed by the terms of this Agreement and subject to the
supervision and direction of the Board of Directors of One
Up.
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(b) One Up agrees to employ the Employee and the Employee agrees
to accept employment by One Up on a full time basis at a
starting annual salary of $90,000, which salary shall be paid
in semi-monthly installments on the 15th and last day of each
month or such other pay periods established from time to time
by One Up pursuant to its standard employment practices
during the term of Employment as hereinafter defined;
(c) The Employee shall be eligible under one or more group
policies of health insurance, life insurance and disability
insurance on the same terms and conditions as the benefits
normally provided to its employees by One Up;
(d) Such other compensation including Participation in Stock
Option Plan and Cash Bonus as defined in Exhibit A hereto and
such other incentives as One Up's Board of Directors may,
from time to time, in its sole discretion, determine;
(e) Each year the salary payable to the Employee shall be
reviewed and may be adjusted as One Up may deem reasonable
and warranted by the efforts of the Employee on behalf of One
Up, provided, however, that this provision shall not be
construed as creating any obligation on the part of One Up to
award or pay any salary increase or bonus to the Employee;
(f) The Employee shall receive a paid vacation of 10 business
days during each year of the Term of Employment as published
in the One Up Employee Manual and,
(g) The Employee, throughout the term of this Agreement, shall be
reimbursed for reasonable travel and other expenses incurred
and accounted for in the conduct of One Up business pursuant
to, and in accordance with, One Up's normal practice.
2. TERM OF EMPLOYMENT
(a) The "Term of Employment" as used herein means that period
during which One Up will employ the Employee in its business,
and the Employee will work for One Up beginning from the date
hereof and for a period of 1 year thereafter. After the
expiration of the term described above, the Term of
Employment shall continue from year to year unless or until:
(i) such employment shall have been terminated as hereinafter
provided (ii); this Agreement shall have been renewed or
replaced by mutual agreement of the parties hereto; or, (iii)
the Employee shall have resigned their position; (iv) or upon
thirty (30) days written notice by either party at the end of
the term of employment (initial or renewal term);
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(b) Notwithstanding any provision of the Agreement, the
employment of the Employee shall be terminated upon: (i)
resignation of the Employee from employment, (ii) the death
or inability of the Employee to continue to provide his
services by reason of permanent disability, or, (iii) for
just cause upon notice of such termination of the Employee.
The term "just cause" as used in this Agreement means a
determination of cause for termination by the Board of
Directors of One Up based on one or more of the following
reasons: That the Employee is unable to fulfil their duties
under this Agreement because of the continued abuse of
alcohol or use of controlled substance; That the Employee has
become unable to perform their duties under this Agreement
for a period of at least three consecutive calendar months as
a result of illness or otherwise; The commission by the
Employee of an act of fraud or embezzlement against One Up;
The Employee having been convicted of a felony involving
moral turpitude.
(c) It is agreed and acknowledged that in the event Employee
voluntarily terminates their employment with Employer or
Employer terminates Employee for "just cause," the Employer's
obligation to pay any compensation (base salary or
commission, if any) to Employee shall cease upon the
effective date of such termination.
3. NONDISCLOSURE COVENANTS
The Employee, during the Term of Employment under this
Agreement, shall have access to and become familiar with
various trade secrets consisting of, but not limited to,
processes, computer programs, compilations of information,
records, sales procedures, customer requirements, pricing
techniques, customer lists, methods of doing business and
other confidential information (collectively referred to as
the "Trade Secrets"), which are owned by Employer and
regularly used in the operation of its business. Employee
shall not use in any way or disclose any of the Trade
Secrets, directly or indirectly, either during the term of
the Agreement or at any time thereafter, except as required
in the course of their employment under this Agreement. All
files, records, documents, information, data, and similar
items relating to the business of Employer, whether prepared
by Employee or otherwise coming into their possession, shall
remain the exclusive property of the Employer and shall not
be removed from the premises of the Employer under any
circumstance without the prior written consent of an
authorized officer of the Employer (except in the ordinary
course of business
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during Employee's period of active employment under this
Agreement), and in any event shall be promptly delivered to
the Employer (without Employee retaining any copies) upon
termination of the Agreement.
4. NONCOMPETITION COVENANTS
(a) Without the prior written consent of the Employer, the
Employee shall not, during the term of employment with
Employer, directly or indirectly, as a director, officer,
agent, employee, consultant, or independent contractor, or in
any other individual or representative capacity, (i) invest
(other than investments in publicly owned companies which
constitute not more the 1% of the outstanding securities of
any such company) or engage in any business or activity that
is in competition with the business of Employer or any of its
affiliates, (ii) accept employment with, or render services
to, a competitor of the Employer or any of its affiliates, or
(iii) take any action inconsistent with the fiduciary
relationship of an employee to an employer. As used in this
Agreement, "affiliates" shall mean persons or entities that,
directly or indirectly through one or more intermediaries,
control or are controlled by, or are under common control
with, the Employer;
(b) Upon termination of the Employee's employment with the
Employer for any reason whatsoever, and for a period of three
(3) years thereafter, the Employee shall not, directly or
indirectly, as a director, officer, agent, employee,
consultant, or independent contractor, or in any other
individual or representative capacity, (i) invest (other than
investments in publicly-owned companies which constitute not
more that 1% of the outstanding securities of any such
company) or engage as an owner or equity participant in any
business or activity that is competition with the business of
Employer or any of its affiliates, (ii) accept employment
with or render services to a competitor or intending to
compete with the Employer or any of its affiliates, or
(iii) while or for the purpose of engaging in competition
with the Employer or any of its affiliates in any area
whatsoever, contact, solicit, or attempt to solicit or accept
business from any of the customers of the Employer or any of
its affiliates during the term of the Employee's employment
with the Employer or the Employee's termination or cessation
of employment with the Employer, or from any person or entity
whose business the Employer or any of its affiliates were
actively soliciting as such time without the written consent
of the Employer. The Employer shall provide the Employee with
the names of such
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customers of the Employer an its affiliated described in
clause (iii) of this paragraph 4 upon request therefore, or
(b) upon termination of the Employee's employment (but
failure to do so shall not release Employee for obligations
under this Section); such names shall be for all purposes and
at all times be considered Trade Secrets subject to the
covenants set forth in Section 4 hereof. As used herein, a
person or entity is in "competition" with or is a
"competitor" of Employer or any of its affiliates if such
person or entity is in the business of migration, conversion,
or porting software, assistance or services, or providing,
or planning to provide the same or similar services,
products, or systems as the Employer.
5. COVENANT NOT TO HIRE
For a period of two (2) years after the termination of
employment with the Employer for any reason whatsoever, the
Employee shall not, on their behalf or on behalf of any other
person, partnership, association, corporation, or other
entity, hire, or solicit any employee of Employer or any of
its affiliates, or in any manner attempt to influence or
induce any employee of Employer or any of its affiliates, to
leave the employment of the Employer or its affiliates, nor
shall the Employee use or disclose to any person,
partnership, association, corporation, or other enmity any
information obtained while an employee of the Employer
concerning the names and addresses of the Employer's or any
of its affiliates' employees.
6. SEVERABILITY
Notwithstanding anything to the contrary herein, or in any
exhibit hereto the Employee agrees that the noncompetition
covenants, nondisclosure covenants, and covenant not to hire
set forth above each constitute separate agreements
independently supported by good and adequate consideration,
the actual receipt and adequacy of which are hereby
acknowledged by the Employee, and shall be severable from
other provisions of, and shall survive, this Agreement. The
existence of any claim or cause of action of the Employee
against the Employer, whether predicated on the Agreement or
otherwise, shall not constitute a defense to the enforcement
by the Employer of the covenants and agreements of the
Employee contained in the noncompetition, nondisclosure, or
non-hiring covenants. If any provision of this Agreement is
held to
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be illegal, invalid, or unenforceable under present or future
laws effective during the term hereof, such provision shall
be fully severable and this Agreement shall be construed an
enforced as if such illegal, invalid, or unenforceable
provision never comprised a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full
force an effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid, or
unenforceable provision, there shall be added automatically
as part of this Agreement a provision as similar in its term
to such illegal, invalid or unenforceable provisions may be
possible and be legal, valid, and enforceable.
7. INVENTIONS
The Employee shall promptly disclose, grant, and assign to
Employer for its sole use and benefit any and all inventions,
improvements, technical information, and suggestions relating
in any way to the products of the Employer or any of its
affiliates or capable of beneficial use by the Employer or
any of its affiliates, which the Employee has in the past
conceived, developed, or acquired, or may conceive, develop,
or acquire during the term hereof (whether or not during
usual working hours), together with all patent applications,
letters patent, copyrights, and reissues thereof that may at
any time be granted for or upon any such inventions,
improvement, or technical information. In connection
therewith, Employee shall promptly at all times during and
after the term hereof:
(a) Execute and deliver such applications, assignments,
descriptions, and other instruments as may be necessary or
proper in the opinion of Employer to vest title to such
inventions, improvements, technical information, suggestions,
patent applications, patents, copyrights and reissues thereof
in Employer and to enable it to obtain and maintain the
entire right and title thereto throughout the world; and
(b) Render to the Employer, at its expense, all such assistance
as it may require in the prosecution of applications
aforesaid patents, copyrights, and reissues thereof, in the
prosecution or defense of interference which may be declared
involving any said applications, copyrights, or patents, and
in any litigation in which the Employer may be involved
relating to any such inventions, improvements,
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technical information, suggestions, patent applications,
patents, copyrights and reissues thereof.
8. AFFILIATES
The Employee will use their best efforts to ensure that no
relative of the Employee or the corporation of which such
relative is an officer, director or shareholder, or other
affiliate, shall take any action that the Employee could not
take without violating any provision of this Agreement.
9. REMEDIES
The Employee acknowledges and recognizes that a violation of
the restrictions, agreements, or covenants contained in
Sections 3, 4, 5 and 7 of this Agreement will cause such
damage to Employer as will be irreparable and that Employer
will have no adequate remedy at law for such violation or
threatened violation. Accordingly, the Employee agrees that
the Employer shall be entitled, as a matter of right, to seek
and obtain an injunction from any court of competent
jurisdiction, restraining any further violation or threatened
violation of such restrictions, agreements, or covenants and
granting mandatory relief compelling Employee to carry out
obligations hereunder. Such right to injunctive and mandatory
relief shall be cumulative and in addition to whatever other
remedies the Employer may have at law or in equity.
10. ACKNOWLEDGMENTS
The Employee acknowledges and recognizes that (i) the
enforcement of this Agreement by the Employer is necessary to
protect the legitimate interest of the Employer in protecting
its goodwill, trade secrets and other confidential or
proprietary information, business, accounts, and patronage
(collectively in this Section, "Employer's Interests") and
will not interfere with Employee's ability to pursue a proper
livelihood in the country of residence or elsewhere, and (ii)
the restraints imposed by the covenants of and restrictions
on Employee in this Agreement are not greater that necessary
to protect Employer's Interest. Employee agrees that due to
the nature of Employer's business, the noncompetition
restrictions set forth in this Agreement are reasonable as to
scope of activity, time, and geographic area.
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00. XXXXXXXXXXXXX
(x) NOTICES. Any notices, consents, demands, requests, approvals,
and other communications to be given under this Agreement by
any party to the other shall be deemed to have been duly
given if given in writing and personally delivered or sent by
mail, registered or certified, postage prepaid with return
receipt requested, at the address specified beside each
party's signature at the end of this Agreement. Notices
delivered personally or by telegram, telex, or telecopy shall
be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated as of 10:00 a.m. on the third
business day after mailing. Any party may change its address
for notice hereunder by giving notice of such change in the
manner provided in this paragraph.
(b) ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or written, between the parties
hereto with respect to the subject matter hereof and contains
all of the covenants and agreements between the parties with
respect thereto.
(c) MODIFICATION AND WAIVER. No change or modification of this
Agreement shall be valid or binding upon the parties hereto,
nor shall any waiver of any term or condition in the future
be so binding, unless such change or modification or waiver
shall be in writing and signed by the party against whom or
which such waiver is sought to be enforced. The waiver by the
Employer of a breach of any provision of this Agreement by
the Employee shall not operate or be construed as a waiver of
any subsequent breach by the Employee.
(d) GOVERNING LAW. This Agreement, and the rights and obligations
of the parties hereto, shall be governed by and construed in
accordance with the laws of the State of Texas and shall be
performable in Dallas, Texas. Venue of any litigation arising
hereunder shall be in a court of competent jurisdiction in
Dallas, Texas.
(e) COUNTERPARTS. This Agreement may be executed in counterparts,
including facsimile, each of which shall constitute an
original, but all of which shall constitute one and the same
document.
(f) COST. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys'
fees, costs, and necessary disbursements in addition to any
other relief to which it may be entitled.
(g) ASSIGNMENT. Employer shall have the right to assign this
Agreement to its successors or assigns. The terms
"successors"
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and "assigns" shall include any person, corporation,
partnership, or other entity that buys all or substantially
all of Employer's assets or a contrasting interest of its
stock, or with which the Employer merges of engages in a
share exchange. The rights and duties of Employee hereunder
are personal, and no such right may be assigned or duty
delegated by One Up or its successor in interest.
(h) BINDING EFFECT. This Agreement shall be binding upon the
parties hereto, together with their respective executors,
administrators, successors, personal representative, heirs,
and permitted assigns.
(i) ESTATE. If Employee dies prior to the expiration of the term
of employment, any moneys that may be due from Employer under
this Agreement as of the date of death shall be paid to the
estate.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
EMPLOYER:
Address: ONE UP CORPORATION
00000 Xxxxxxxx Xxxxxxx, Xxxxx 000 By: /s/ XXXXX XXXXXXXXX
--------------------------------- ------------------------------
Farmers Xxxxxx, Xxxxx 00000 Title: Vice President
-------------------------------- ---------------------------
Address: EMPLOYEE
0000 XXX Xxxxxxx, #000 /s/ XXXXXX XXXXXXXXXX
-------------------------------- ---------------------------------
Signature
Xxxxxx, Xxxxx 00000 XXXXXX XXXXXXXXXX
-------------------------------- ---------------------------------
Print Name
Employment Agreement by and Between One Up and Xxxxxx Xxxxxxxxxx
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EXHIBIT "A"
TO THE EMPLOYMENT AGREEMENT BY AND BETWEEN
XXXXXX XXXXXXXXXX AND ONE UP CORPORATION
OTHER COMPENSATION
(1) ADDITIONAL COMPENSATION: Provided the Employee is still employed by the
Employer under the terms of this Agreement, the Employee shall be
eligible for participation in the following:
(a) Base Salary Adjustment: the Employee will become eligible for an
increase in annual base salary of $30,000 once the Company has
realized three (3) consecutive months of profitability and positive
cash flow.
(b) Key Employee Cash Bonus Plan: The Employee shall be eligible for a
bonus. The bonus basis is $60,000 for the 1997 fiscal year based
upon the following criteria:
o Profitability of $100,000 net income before taxes, allocation
percentage 30% of total bonus or $18,000, minimum performance
eligibility 60%, may earn greater than 100% of the bonus.
o Order backlog (firm bookings) as of December 31, 1997 of $3.2 mill
for fiscal 1998, allocation percentage 20% of total bonus or
$12,000, minimum performance eligibility 80%, may earn greater than
100% of the bonus.
o Positive Cash Flow for the six-month period starting July 1, 1997
and ending December 31, 1997, allocation percentage 40% of the
total bonus, minimum performance eligibility 100%, may not exceed
100% of the bonus.
o Strategic Alliances, one alliance approved by the board of
Directors, allocation percentage 10% of the total bonus, minimum
performance eligibility 100%, may not exceed 100% of the bonus.
(c) Key Employee Stock Option Plan: The Employee will be granted
options to purchase 10% of the total amount of Shares outstanding
(27,446,164 currently outstanding) as of the date of this
Agreement. The options will vest according to the following vesting
schedule: 25% or 686,154 options after six (6) months, 25% or
686,154 options after twelve (12) months, 25% or 686,154 options
after eighteen (18) months and 25% or 686,154 options after
twenty-four (24) months of the date of this Agreement.
Options exercise price will be determined by the average closing bid price
per share for the period starting February 24, 1997 and ending one day prior
to the execution of this Agreement. Options are for a term of four years
from the date of vesting. Dilution protection for recapitalizations, stock-
splits, stock dividends and for issuance of stock or derivative securities
at below fair market value. Options terminate, whether vested or not, at the
end of thirty (30) days following the resignation of Employee, and at the
end of twelve months, whether vested or not, in the event of death or
disability as described in this Agreement. All options become fully vested
upon the sale of the Company. All options terminate immediately in the event
Employee is terminated for "just cause" as described in this Agreement.
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EXHIBIT "A"
TO THE EMPLOYMENT AGREEMENT BY AND BETWEEN
XXXXXX XXXXXXXXXX AND ONE UP CORPORATION
PAGE 2
OTHER COMPENSATION
(d) Employee may participate in sales commission at his discretion
as outlined in the Company's business plan as accepted by the
Board of Directors of the Company.
