EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is effective as of August 25, 2000,
by and between INFe-Relations, Inc. ("Employer"), and Xxxxx Xxxxx
("Employee"). Employer and Employee are also each individually
referred to as a "Party" and collectively as the "Parties".
WHEREAS, Employer desires to retain the experience and skills of
Employee;
THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth and other good and valuable consideration, the
Parties hereto agree as follows:
1. Employment. Commencing August 28, 2000, and continuing through
August 27, 2001, unless sooner terminated under the provisions of
Section 4 below, and from year to year thereafter until terminated
under the provisions of Section 4 below, Employer shall employ
Employee as a Vice President, to perform the duties and assume the
responsibilities assigned to Employee by Employer and mutually agreed
upon by the parties. Employer agrees that Employee's principal time
will be at facilities in the south Florida area. Employee acknowledges
that the responsibilities may involve travel to other locations and
that he will make himself reasonably available for such travel. The
parties agree that Employee's initial responsibilities shall be in the
fields of Internet marketing and advertising. Employee shall have the
responsibility of managing the bottom line results of the Employer and
will oversee all aspects of emailings, database management, video
streaming, website design, hosting and maintenance, as well as
managing the web administration functions for XXXx.xxx, Inc.'s various
websites and website businesses.
2. Commitment of Employee. With the exceptions described in section 2D
below, Employee shall, to the best of his ability, devote the
necessary business time and his best efforts to the performance of his
duties under this Agreement and the business and affairs of Employer.
Employee shall duly, punctually, and faithfully perform and observe
any and all reasonable rules and regulations which Employer may now or
shall hereafter establish governing the conduct of its business and
the conduct of its employees, except to the extent that such rules and
regulations are inconsistent with this Agreement. Without the prior
written consent of Employer Employee:
(A) Shall not acquire, assume, or participate in, directly or
indirectly, any position, investment, or interest known by Employee to
be adverse, competitive, or antagonistic to Employer, Employer's
business, or Employer's prospects, financial or otherwise. If Employee
becomes aware that a previously permitted position, investment, or
interest has become adverse, competitive, or antagonistic to Employer,
Employer's business, or Employer's prospects, financial or otherwise,
Employee shall promptly take effective action to disassociate himself
from said position, investment, or interest.
(B) Notwithstanding the above, may own as a passive investor
securities of any other competing business entity so long as his
direct or indirect holdings in any one such entity shall not in the
aggregate constitute a controlling interest.
(C) Notwithstanding the above, may engage in educational,
charitable, civic, political, social, trade association, and other
non-profit activities to the extent such activities do not materially
interfere with the performance of his duties to Employer and as long
as said activities and the organizations with which he engages in said
activities are not adverse, competitive, or antagonistic to Employer,
Employer's business, or Employer's prospects.
/s/ KC
Exhibit 10.9 - Pg. 2
(D) Notwithstanding the above, Employer acknowledges that
Employee owns part of B.C. Pictures, Ltd., Inc. and WCB Production
Group, Inc. (collectively, the "Entities") and that Employee will have
ongoing responsibilities in the Entities. Notwithstanding the above,
Employee agrees that his responsibilities to Employer under this
Agreement shall be considered non-exclusive, first priority, and that
nothing in his responsibilities to the Entities shall prevent Employee
from fulfilling his obligations under this Agreement.
3. Compensation.
(A) Salary. During his employment under this Agreement, Employer
shall pay Employee a salary at the rate of $72,000 per year payable
biweekly, less appropriate deductions as required by law or otherwise
permitted by Employee. The salary may be paid in the form of cash or
in freely tradeable common stock of XXXX.xxx, Inc.
(B) Benefits. Employee shall be entitled to participate in and
enjoy according to Employer policy any and all expense reimbursement,
pension, retirement, profit-sharing, stock purchase, stock option,
life insurance, accident insurance, medical reimbursement, health
insurance or hospitalization plan, cafeteria plan, deferred
compensation plan, vacations, holidays and other leave, and any other
fringe benefits in which other employees of the Employer in positions
similar to his are eligible to participate and entitled by Employer
policy to enjoy.
(C) Bonus. Subject to the immediately following paragraph, on
the 190th day of employment, Employer agrees to grant to Employee INFE
S-8 Common Stock, par value $.0001 in the following amounts: (a)
50,000 shares plus (b) $25,000 worth of additional shares, with such
number of shares being calculated by dividing $25,000 by the average
closing bid price of INFE for the 15 trading days prior to the date of
payment. On the 365th day of employment, Employer agrees to grant to
Employee an additional $50,000 worth of INFE S-8 Common Stock, par
value $.0001 with such number of shares determined as in (b) in the
immediately preceding sentence. All grants of stock granted under
this paragraph shall be granted under the terms that Employee is
restricted to selling no more than 10% of his stock in any one month.
Employee shall also be entitled to receive 5% of the net pre-tax
profits of Xxxxxxxx0X.xxx's operations. Definition and allocation of
costs shall be worked out by Employee and Employer subsequent to the
signing of this Agreement.
Employee's performance will be evaluated every 90 days after
commencement of employment. Receipt of the full amount of the bonuses
is expressly contingent upon Xxxxxxxx0X.xxx achieving the sales and
revenue projections which are attached hereto as Exhibit A. If
Xxxxxxxx0X.xxx fails to achieve its sales and revenue projections,
Employee will only be entitled to receive a proportional bonus payment
based on the percentage of Xxxxxxxx0X.xxx's sales and revenue
projections which are achieved. By way of example, if Xxxxxxxx0X.xxx
achieves 85% of its sales and revenue projections for the first 180
days of Employee's employment, Employee would be entitled to receive a
bonus payment of 85% of the amounts described in the immediately
preceding paragraph.
(D) Stock Options. Employer hereby grants to Employee options
to purchase 30,000 shares of Employers Common Stock par value $.0001
at an exercise price of $0.50 per share. Such options shall be at no
cost to Employee and shall vest ratably each year over a three year
period. (For explanation, 1/3rd of the 30,000 options vest at the end
of the first year after the Closing Date, a second 1/3rd at the end of
the second year after the Closing Date, and so on.). The shares
underlying these options shall be registered by the Employer in its
next registration, but no later than six months subsequent to the
commencement of this Agreement. The term of these options shall be
five years from the Closing Date.
/s/ KC
Exhibit 10.9 - Pg. 3
4. Term and Termination.
(A) This Agreement shall terminate of its own terms upon the
death of Employee.
(B) Disability. This Agreement shall terminate of its own terms
in the event of the permanent disability of Employee as defined under
Employer's applicable insurance policy or, in the absence of such
policy, any physical or mental incapacity that renders Employee
incapable of performing all duties required of him for three
consecutive months or more, or for an aggregate period of three months
or more in any twelve month period, as determined by Employer's
President.
(C) Termination for Cause. Employer may terminate this Agreement
for Cause without notice if Employee, in the reasonable determination
of Employer's President: Has been indicted for, charged with, or
convicted of any felony or any crime of moral turpitude; has become
notorious for personal dishonesty, willful misconduct, or breach of
fiduciary duty involving personal profit; has engaged or intends to
engage in conduct (by act or omission) which brings Employer or any of
its customers, suppliers, or contractors into public disgrace or
disrepute; has engaged in any conduct (by act or omission) involving
dishonesty or fraud with respect to Employer or any of its customers,
suppliers, or contractors; has intentionally failed or intends to fail
to perform any of his duties to Employer (including but not limited to
persistent unsatisfactory performance of material duties); is or
intends to be in willful violation of any law, rule, or regulation of
any governmental agency having jurisdiction over Employee, other than
traffic violations or similar offenses; has been unaccountably absent
for 15 calendar days; has caused or is causing or intends to cause
Employer to violate any order issued against Employer by a court or
government agency having authority and jurisdiction to issue such
order; or is in breach or default of or intends to breach or default
with respect to any obligation under this Agreement. Employee also
specifically agrees that failure on behalf of Xxxxxxxx0X.xxx to reach
at least 80% of its sales and revenue projections (on a quarterly or
cumulative basis) as set forth in Exhibit A shall also constitute
"cause" allowing termination for cause. Employee may terminate this
Agreement for Cause if Employer breaches any of the material terms of
this Agreement, including but not limited to the timely delivery of
compensation and benefits, and fails to cure such breach within thirty
(30) days after receipt of notice of such breach from Employee.
(D) Return of Property. Upon termination of Employee's employment
under this Agreement, Employee shall deliver to Employer all property
of Employer, including memoranda, notes, plans, records, reports, and
other documents (including copies thereof), on any medium of recording
containing information confidential or otherwise proprietary to
Employer.
(E) Survival of Provisions. Except for the rights and obligations
in Sections 1 and 2 and Subsections (A) and (B) of Section 3, the
rights, obligations, covenants, acknowledgments, and representations
in this Agreement shall survive its termination and shall remain in
full force and effect until each is fully satisfied. However, in the
event that either Employee voluntarily terminates his employment or
Employee is terminated for Cause under Subsection (C) of Section 4,
Employee shall only be entitled to receive the Stock Options which
have vested to that date and Employee shall not be entitled to receive
any other Stock Options or stock or bonus payments. If Employer
terminates Employee's employment other than for Cause, all Stock
Options described in Subsection (D) of Section 3 will vest immediately
in Employee and Employee shall also receive the grants of stock and
bonus payments described in Subsection (C) of Section 3. In all
cases, however, Employee's stock options will require Employee to
exercise such options within 30 days of such termination of
employment. If Employee terminates his employment for cause, Employee
will be entitled to receive the grants of stock and bonus payments
described in Subsection (C) of Section 3 as well as all Stock Options
described in Subsection (D) of Section 3.
/s/ KC
Exhibit 10.9 - Pg. 4
5. Representations and Warranties. Employee represents,
acknowledges, and warrants that:
(A) He has full right, authority, and competence to enter into
this Agreement and fully perform his obligations hereunder;
(B) He is not subject to any non-competition agreement that would
prevent or restrict him in any way from performing his duties for
Employer anywhere in the world;
(C) His past, present, and anticipated future activities have not
and will not infringe on the proprietary rights of others;
(D) He is not obligated under any contract (including licenses,
covenants, guarantees, or moral or legal commitments of any nature) or
other agreement, or subject to any judgment, decree, or order of any
tribunal which would be in conflict with his obligation to use his
best efforts to promote the interests of Employer or which would be in
conflict with Employer's business as conducted or as proposed to be
conducted;
(E) Neither the execution nor the delivery of this Agreement, nor
the carrying on of Employer's business will be in conflict with or
result in a breach of the terms, conditions, or provisions of or
constitute a default under any contract, covenant, or instrument under
which Employee is obligated.
6. Special Covenants. (A). Nondisclosure and Nonuse. Employee
agrees that, except as may be required to be disclosed to a third
party in the discharge of Employee's duties under this or other
Agreements with Employer or as required by law or appropriate
regulatory bodies, he shall regard and preserve as confidential all
information pertaining to the business of Employer or Employer's
parent corporation, XXXx.xxx, Inc, its customers, and others that has
been obtained by him during the course of his employment. During any
period of employment by or other affiliation with Employer, Employee
shall not, directly or indirectly, use for Employee's own benefit or
for the benefit of any third party or disclose to any others any of
such information without written authority from the President of
Employer. Employer and its continued success depend upon the use and
protection of a large body of confidential and other proprietary
information. Under this Agreement Employee will hold a position of
trust and confidence by virtue of which Employee will necessarily
possess and have access to highly valuable, confidential, and
proprietary information of Employer not known to the public in
general. It would be improper for Employee to make use of this
information for the benefit of himself and others. Employer has a
protectable interest in all such information, and all memoranda,
notes, plans, records, reports, and other documents (including copies
thereof), on any medium of recording containing such information are
and will remain the property of Employer. None of the provisions of
this section shall apply to
(i) Information which is or becomes generally available to the
public (other than as a result of a disclosure by Employee or
Employee's representatives, employees, agents or affiliates),
(ii) Information which Employee can show was available to Employee
on a non-confidential basis prior to the disclosure by Employer
to Employee from a source other than the Employer or one of its
representatives which is entitled to disclose it, or
(iii) Information which Employee can show became available to
Employee on a non-confidential basis from a source other than
the Employer or its representatives, provided that such source
is not, nor should be known by Employee to be bound by a
confidentiality agreement with the Employer or otherwise
prohibited from transmitting the information to Employee by a
contractual, fiduciary or other legal obligation.
/s/ KC
Exhibit 10.9 - Pg. 5
This Subsection shall not be construed as restricting Employee from
disclosing any information (whether proprietary and confidential to
Employer or not) to employees of Employer or others engaged by
Employer who reasonably require access to such information in order to
discharge their duties to Employer. Notwithstanding the other
provisions of this Subsection, if Employee obtains any information
subject to statutory, regulatory, or judicial restraints on
disclosure, including but not limited to federal and state securities
laws and regulations, or any information which he is directed to
disclose by law, regulation, government administrative action, or
judicial order, he shall observe said restraints and directives.
(B) Noncompetition. So long as Employee is employed by Employer,
Employee shall not directly or indirectly own, manage, control,
participate in, consult with, render services for, or in any way
engage in the business of Employer, except as provided in Subsection
2(C) and 2(D) above. In addition, so long as Employee is employed by
Employer, Employee shall not, directly or indirectly, knowingly
acquire or attempt to acquire an interest in any business entity
relating to any line of business in which Employer engages or actively
intends to engage.
(C) Nonsolicitation. So long as Employee is employed by or
otherwise affiliated with Employer and for an additional 12 months
thereafter, Employee shall not directly or indirectly knowingly induce
or attempt to induce any employee of Employer to leave the employ of
Employer.
(D) Noninterference. So long as Employee is employed by or
otherwise affiliated with Employer and for an additional 12 months
thereafter, Employee shall not directly or indirectly knowingly induce
or attempt to induce any owner of a site location, customer, supplier,
licensee, or other business relation of Employer to cease doing
business with Employer or in any way interfere with the relationship
between any such owner, customer, supplier, licensee, or other
business relation and Employer.
(E) Acknowledgments. Employee acknowledges that the provisions
in this Section are in consideration of employment by Employer and the
other obligations of Employer under this Agreement. Employee
expressly agrees and acknowledges that the restrictions in this
Section do not preclude Employee from earning a livelihood, nor do
they unreasonably impose limitations on Employee's ability to earn a
living. Employee agrees and acknowledges that the potential harm to
Employer of the non-enforcement of the provisions of this section
outweighs any harm to Employee of their enforcement by injunction,
specific performance, or otherwise. Employee acknowledges that
Employee has carefully read this Agreement and has given careful
thought to the restraints imposed upon him/her by this Agreement, and
is in full accord as to their necessity for the reasonable and proper
protection of Employer. Employee expressly acknowledges and agrees
that each and every restraint imposed by this Agreement is reasonable
with respect to subject matter, time period, and geographical scope,
and may be enforced by equitable remedies including Temporary
Restraining Orders, Preliminary Injunctions, and Permanent
Injunctions.
(F) Employee's obligations under this Section shall also run to
any parent, subsidiary, joint venture, or other business entity in
which Employer has or is subject to a direct or indirect ownership
interest with voting or other control rights, as well as to Employer,
and the term "Employer" as used in this Section shall be deemed to
include any such parent subsidiary, joint venture, or other business
entity, as well as Employer.
(G) Employee acknowledges that Employer's Employee Manual is
considered part of this agreement and that he has read the Manual and
agrees to its terms.
7. Ownership of Intellectual Property Created, Developed, or
Invented by Employee.
/s/ KC
Exhibit 10.9 - Pg. 6
(A) Definition. For the purposes of this Agreement, "Employer
Intellectual Property" includes inventions, discoveries, improvements,
creations, images, sounds, textures, software and media (including but
not limited to tapes, disks, paper, and other storage and recording
media) that were or are or will be created, developed, or invented by
Employee for Employer.
(B) Assignment. Employee grants, transfers, assigns, and conveys
to Employer, its successors and assigns, the entire title, right
interest, ownership, and all subsidiary rights in and to all Employer
Intellectual Property, including but not limited to patent rights, the
right to secure copyright, trademark, service xxxx, or trade name
registration therein and to any resulting registration in Employee's
name as claimant, the right to secure renewals, reissues, and
extensions of any such registration in the United States of America or
any foreign country, and the right to use any other form of legal
protection including maintaining it as a trade secret. Employee
agrees that the rights of Employer under this Section were and are
effective immediately upon the creation of Employer Intellectual
Property.
(C) Authority. Whether any copyright, trademark, service xxxx,
trade secret, or trade name in Employer Intellectual Property shall be
preserved and maintained or registered or whether Employer
Intellectual Property shall be patented in the United States of
America or in any foreign country shall be at the sole discretion of
Employer.
(D) Work Made For Hire. Employee agrees that all Employer
Intellectual Property is "work made for hire" as defined in 17 U.S.C.
Section 201(b) and that Employee has been hired or assigned to create,
develop, and invent same.
(E) All Right and Title. Employee hereby confirms that Employer
owns and shall own the entire title, right, and interest in all
Employer Intellectual Property, including the sole right to reproduce,
to prepare derivative works based on the copyright, to transfer and
distribute by sale, rental, lease, or lending, license, or by other
transfer of ownership, and to display, in and to Employer Intellectual
Property, whether or not Employer Intellectual Property constitutes a
"work made for hire" as defined in 17 U.S.C. Section 201(b). Employee
agrees that no rights in Employer Intellectual Property are or shall
be retained by Employee.
(F) Cooperation. Promptly upon Employer's request, Employee
agrees to take all actions and cooperate as necessary to protect the
copyrightability, patentability, and any other protective measure of
and for Employer Intellectual Property and further agrees to execute
any documents that might be necessary to perfect Employer's ownership
of rights in any Employer Intellectual Property, including but not
limited to registration of copyrights, trademarks, service marks, and
trade names and applications for and ownership of patents. Employer
shall reimburse Employee for reasonable costs incurred by Employee in
cooperating under this Subsection after the termination of Employee's
employment under this Agreement.
8. Other.
(A) Nature; Assignment. This Agreement is intended to bind,
benefit and be enforceable by Employee and Employer. Employee shall
not assign any rights or delegate any duties under this Agreement
without the written consent of the President of Employer. Employer
may assign its rights and delegate its obligations hereunder to any
subsidiary, joint venture, or other business entity in which Employer
has a direct or indirect ownership interest with voting or other
control rights, provided that said assignee or delegatee shall execute
and deliver such documentation necessary to be bound by the terms of
this Agreement. Employer may be released from its obligations under
this Agreement upon such an assignment or delegation.
/s/ KC
Exhibit 10.9 - Pg. 7
(B) Merger. This instrument contains the entire agreement of
the Parties relating to the employment relationship between them and
supersedes and cancels all prior written and oral agreements and
understandings between the Parties relating to same which are not set
forth herein and other agreements and documents executed concurrently
with this Agreement and to effect the intent of the Parties as
expressed therein.
(C) Changes. No amendment or modification of this Agreement
shall be valid unless made in writing and signed by the Parties.
(D) Waiver. No term or condition of this Agreement shall be
deemed to have been waived except by written agreement of the Party
charged with such waiver. Additionally, the failure of any party, in
any instance, to insist upon strict enforcement of the provisions of
this Agreement shall not be construed to be a waiver or relinquishment
of enforcement in the future, and the terms of this Agreement shall
continue to remain in full force and effect.
(E) Choice of Law. This Agreement will be construed in
accordance with the laws of the State of Florida, excluding the choice
of law provisions thereof.
(F) Headings. The headings of the Sections and Subsections in
this Agreement are inserted for convenience only and are not part of
this Agreement.
(E) Counterparts. This Agreement may be executed in separate
counterparts, all of which together constituting one and the same
Agreement.
(F) Severability. In the event any one or more of the provisions
of this Agreement shall for any reason be held invalid, illegal, or
unenforceable in any particular circumstance by any tribunal of
competent jurisdiction, each such provision shall be valid in other
circumstances and for the particular circumstance the remaining
provisions of this Agreement shall be read and construed as though the
said invalid, illegal or unenforceable provision had never been a part
hereof. However, if any one or more of the provisions in this
Agreement shall be held to be excessively broad as to duration,
geographical scope, activity, or subject, it shall be construed by
limiting and reducing it so as to be enforceable to the extent
compatible with applicable law as it shall then appear.
(G) Third Party Beneficiaries. Each Party intends that this
Agreement shall not confer any rights or remedies upon any third party
except as otherwise expressly provided herein.
(H) Time. Time is of the essence in the performance of all
obligations of Employee under this Agreement. If any time period for
giving notice or taking action under this Agreement expires on a day
which is a Saturday, a Sunday, or a holiday in the State of Florida,
said time period shall be automatically extended to the next business
day.
(I) Notices. All notices to be sent to either Party by the other
Party hereto pursuant to this Agreement shall be sent by registered or
certified mail, return receipt requested, to the following respective
addresses or such other address as the respective addressee may
designate by notice to the other addressees, and shall be deemed
delivered as indicated on the return receipt:
/s/ KC
Exhibit 10.9 - Pg. 8
If to Employer:
Xxxxxx X. Richfield, President
INFe-Relations, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to Employee, addressed to him at:
Xxxxx Xxxxx
0000 Xxxxxxx Xxxxx Xxxx
Xx. Xxxxxxxxxx, XX 00000
9. Enforcement. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding
arbitration in Palm Beach County, FL, in accordance with the
commercial arbitration rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction. The prevailing Party in any arbitration
or other action to enforce this Agreement, as determined by the
tribunal, shall be entitled to recover reasonable attorneys' fees and
costs incurred in connection with said arbitration or other action.
The Parties agree and acknowledge that money damages may not be an
adequate remedy for any breach of this Agreement and any tribunal may
order specific performance or injunctive relief in order to enforce or
prevent any violations hereof.
IN WITNESS WHEREOF, the Parties have executed this Agreement
effective as of the day and year first above written.
INFe-Relations, Inc., a Florida corporation:
By: ____/s/Xxxxxx X. Richfield___ By: ___/s/Xxxxx Cable_______
Name: Xxxxxx X. Richfield Name: Xxxxx Xxxxx
Its: President
