EXHIBIT 10.1
EMPLOYMENT AGREEMENT - XXXXX XXXX
105
XXXXXXXXX.XXX EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this 01st day of February, 2000 (the "Agreement"), by
and between Xxxxxxxxx.xxx, Inc., a Florida corporation ("Employer"), and Xxxxx
Xxxx ("Employee").
WITNESSETH: WHEREAS, Employer desires to employ Employee and Employee desires to
be employed by Employer as Vice President of Marketing; and WHEREAS, Employer
recognizes the need of the knowledge, talents and assistance of Employee and
desires to enter into this Agreement to secure the foregoing. NOW, THEREFORE, in
consideration of the promises herein contained, the parties covenant and agree
as follows:
1. EMPLOYMENT. Employer agrees to employ Employee and Employee agrees to be
employed by Employer and to perform work as determined by Employer, as
President and CEO of Employer, on the terms and conditions set forth in
this Agreement. This Agreement shall be effective as of the date mutually
agreed to in writing by both parties (the "Effective Date") but in no
event shall it be more than two weeks following the date on which the
Employer receives more than $500,000 of gross investment capital.
2. COMPENSATION. Employer agrees to employ Employee at the base rate of
compensation of seventy thousand and No/Dollars ($70,000.00) per year.
Compensation is to be paid twice per month. Compensation is to be
reviewed by Board of Directors on an annual basis. In addition to the
base compensation, Employer agrees to pay or provide Employee with
the following:
A. Expenses. Reimbursement for reasonable expenses actually incurred by
Employee in the furtherance of Employer's business, including, but
not limited to, telephone calls (including business related calls on
Employee's cellular phone and business related long distance calls),
entertainment, attendance at conferences, conventions and
institutes, provided proper itemization of said expenses is
furnished to Employer by Employee. All such expenditures shall be
subject to the reasonable control of Employer.
B. Medical and Disability Benefits. Employee and his spouse shall be
entitled to participate in Employer's medical program, Employer-paid
disability and other benefit programs as other executives of
Employer are entitled to participate in, as is in place from time to
time. If Employee desires to include any family members other than
his spouse in the medical plan, Employee shall be responsible for
all additional costs.
C. Additional Benefits. Employee shall be entitled to participate in
and receive such additional benefits as Employer shall from time to
time make available to its executive employees including, without
limitation, profit sharing, stock purchase, stock option,
automobile allowance, and other incentive plans.
D. Preferred Stock, Class C. Pursuant to the "Agreement " dated
February 01, 2000, employee shall be entitled to receive 200,000
Preferred Stock, Class C which may, under certain conditions (to be
detailed within the "Certificate of Designation of Rights and
Preferences" and "Irrevocable Voting Trust" agreements), be
converted into 2,000,000 shares of Common Stock.
E. Bonus. Employee shall be entitled to receive cash or stock option
bonuses for exceeding pre-tax profit targets, set by the Board of
directors. The amount of bonus shall be determined by the Board
of Directors.
106
3. DUTIES. Employee agrees to perform work as determined by the Board of
Directors, subject to the direction of Employer and agrees to subject
himself at all times during the Term (as hereinafter defined) to the
direction and control of Employer in respect to the work to be performed.
Employee shall devote 50% of his full business time and attention to the
furtherance of Employer's best interests. In that regard, and as further
consideration for this Agreement, Employee agrees to comply with, and abide
by, such rules and directives of Employer as may be reasonably established
from time to time, and recognizes the right of Employer, in its reasonable
discretion, to change, modify or adopt new policies and practices affecting
the employment relationship, not inconsistent with this Agreement, as
deemed appropriate by Employer. During the term of Employee's employment,
Employee will not undertake any new business ventures, partnerships,
consulting arrangements or other enterprise or business other than those on
behalf of Employer, without Employer's prior written consent.
4. WORKING FACILITIES. Employee shall be furnished with office space,
secretarial services, and such other facilities and services suitable to
Employee's position and adequate for the performance of Employee's duties.
5. AGENCY. Employee shall have no authority to enter into any contracts
binding upon Employer, except as authorized in writing, in advance, by
Employer.
6. TERM OF EMPLOYMENT; SEVERANCE.
A. Employee's employment hereunder shall commence as of the Effective Date
hereof and continue for a period of two (2) years thereafter (the "Term").
B. Anything herein to the contrary notwithstanding, Employee's employment
hereunder may be terminated at any time and for any reason by either party
upon not less than one hundred twenty (120) days' prior written notice to
the other party. It is understood and acknowledged that Employer shall have
the right to effectuate such termination at will, with or without
Reasonable Cause (as hereinafter defined). Any such termination shall be
effective as of the end of such one hundred twenty (120) day period (the
"Final Date"). If Employee's employment shall be terminated with reasonable
cause, then Employee shall be entitled to (i) severance compensation equal
to Employee's then-current base salary and benefits (which for purposes
hereof shall include all compensation payable hereunder, of any type) for a
period equal to the Severance Period (as defined below)
C. If Employee's employment hereunder shall be terminated by Employer without
Reasonable Cause pursuant to paragraph 6.B. or because of Employee's
disability, as determined by Employer in good faith, then Employee shall be
entitled to (i) severance compensation equal to Employee's then-current
base salary and benefits (which for purposes hereof shall include all
compensation payable hereunder, of any type) for a period equal to the
Severance Period (as defined below). Such severance compensation payments
consisting of cash shall be paid in a lump sum plus any outstanding
benefits and allocated bonuses on or before the Final Date. The severance
compensation are intended to be in lieu of all other payments to which
Employee might otherwise be entitled in respect of termination of
Employee's employment without Reasonable Cause or in respect of any action
by Employer constituting Good Reason for voluntary termination.
107
D. If Employee's employment hereunder shall be terminated for Reasonable Cause
pursuant to paragraph 6.C., or if Employee voluntarily terminates
Employee's employment without Good Reason, Employee shall be entitled to
receive Employee's base salary as accrued through the effective date of
such termination, and shall be entitled to any Severance Benefits or other
amounts in respect of such termination.
E. Reasonable Cause," as used herein, shall mean Employee's involvement in any
action or inaction involving fraud resulting in a personal benefit in
excess of any payments to which Employee is entitled hereunder, dishonesty,
or material violation of Corporation policy and procedures. Employee shall
vacate the offices of Employer on such effective date.
F. "Good Reason," as used herein, means the occurrence of any of the following
events without Employee's consent: i. a material diminution in Employee's
duties and responsibilities; ii. a reduction in Employee's base salary;
iii. a forced relocation; or 79 iv. a Change of Control (as defined below)
if Successor Employer (as defined in paragraph H below) fails to assume
this Agreement in its entirety.
G. "Severance Period," as used herein, means (i) twenty four months (24)
months.
H. H."Change of Control" means a sale outside the ordinary course of business
of more than fifty percent (50%) of the assets of or equity interests in
Employer to any person or entity.
7. COMPLIANCE WITH LAWS. Employee will comply with all federal and state laws,
rules and regulations relating to any of Employee's responsibilities and
duties with Employer and will not violate any such laws, rules and
regulations.
8. COVENANT NOT TO COMPETE.
Employee agrees to conform to the following concerning non-competition.
A. Employer undertakes to train Employee and to give Employee confidential
information and knowledge about Employer's business policies, accounts
procedures and methods. For the purposes of this Agreement, the term
"confidential information" shall include but is not limited to any list of
suppliers, customers, investors, stockholders, including their names,
addresses, phone numbers, amount of investments and similar information. In
addition, any operational information of Employer, including but not
limited to information on Employer's methods of conducting business,
profits and/or losses of Employer, marketing material and any information
that would reasonably be considered proprietary or confidential in nature.
Employer has established a valuable and extensive trade in its products and
services, which business has been developed at a considerable expense to
Employer. The nature of the business is such that the relationship of its
customers with Employer must be maintained through the close personal
contact of its employees.
B. Employee desires to enter into or continue in the employ of Employer and by
virtue of such employment by Employer, Employee will become familiar with
the manner, methods, secrets and confidential information pertaining to
such business. During the Term, Employee will continue to receive
additional confidential information of the same kind. Through
representatives of Employer, Employee will become personally acquainted
with the business of Employer and its methods of operation.
108
C. In consideration of the employment or continued employment of Employee as
herein provided, the training of Employee by Employer, and the disclosure
by Employer to employee of the knowledge and confidential information
described above, Employer requests and Employee makes the covenants
hereinafter set forth. Employee understands and acknowledges that such
covenants are required for the fair and reasonable protection of the
business of Employer carried on in the area to which the covenants are
applicable and that without the limited restrictions on Employee's
activities imposed by the covenants, the business of Employer would suffer
irreparable and immeasurable damage. The covenants on the part of Employee
shall be construed as an agreement independent of any other provision of
this Agreement, and existence of any claim or course of action whether
predicated on this Agreement or otherwise, shall not constitute a defense
to the enforcement by Employer of the covenants.
D. Employee agrees that during the term of Employee's employment and for the
period of twelve (12) months immediately following the termination of
employment (which said time period shall be increased by any time during
which Employee is in violation of this Agreement) Employee will not, within
the territory hereinafter defined, directly or indirectly, for Employee, or
on behalf of others, as an individual on Employee's own account, or as an
employee, agent, or representative for any other person, partnership, firm
or corporation: i. Compete with the business of Employer by engaging or
participating in or furnishing aid or assistance in competition with the
business of Employer. 80 ii. Engage, in any capacity, directly or
indirectly, in or be employed by any business similar to the kind or nature
of business conducted by Employer during the employment. iii. For the
purposes of this paragraph 8, the business of Employer shall be limited to
the (1) Internet based e-commerce software solutions (2) Internet
Business-to-Business Incubator(3) and (3) any business that the Employer
enters into during the Term.
E. The territory referred to in this paragraph 8 shall be the entire World.
F. Each restrictive covenant is separate and distinct from any other covenant
set forth in this paragraph. In the event of the invalidity of any
covenant, the remaining obligation shall be deemed independent and
divisible. The parties agree that the territory set forth is reasonable and
necessary for the protection of Employer. In the event any term or
condition is deemed to be too broad or unenforceable, said provision shall
be deemed reduced in scope to the extent necessary to make said provision
enforceable and binding.
G. The provisions of this paragraph 8 shall not apply if Employee's employment
is terminated by Employer without Reasonable Cause or by Employee for Good
Reason.
9. INDUCING EMPLOYEE OF EMPLOYER TO LEAVE. Any attempt on the part of
Employee to induce others to leave Employer's employ or any efforts by
Employee to interfere with Employer's relationship with other employees
would be harmful and damaging to Employer. Employee expressly agrees that
during the term of Employee's employment and for a period of twelve (12)
months thereafter (provided said time period shall be increased by any
time during which Employee is in violation of this Agreement), Employee
will not in any way directly or indirectly:
A. Induce or attempt to induce an employee to sever his or his employment
with Employer;
B. Interfere with or disrupt Employer's relationship with other employees;
and
109
C. Solicit, entice, take away or employ any person employed with Employer,
excluding people Employee brings to Employer.
10. CONFIDENTIAL INFORMATION. It is understood between the parties hereto that
during the term of employment, Employee will be dealing with confidential
information, as defined above, which is Employer's property, used in the
course of its business. Employee will not disclose to anyone, directly or
indirectly, any of such confidential information or use such information
other than in the course of Employee's employment. All documents that
Employee prepares, or confidential information that might be given to
Employee in the course of employment, are the exclusive property of
Employer and shall remain in Employer's possession on the premises. Under
no circumstances shall any such information or documents be removed without
Employer's written consent first being obtained.
11. RETURN OF EMPLOYER'S PROPERTY. On termination of employment, regardless of
how termination is effected, or whenever requested by Employer, Employee
shall immediately return to Employer all of Employer's property used by
Employee rendering services hereunder or otherwise that is in Employee's
possession or under Employee's control.
12. VACATION. Employee shall be entitled to a vacation period of four (4) weeks
per calendar year. Employee shall take the vacation at such time during the
year and for such period as reasonable. All vacations should be taken in
the year earned. No vacations may be accrued without written permission of
the Board of Directors.
13. REFERENCES. Employer agrees that, upon termination of this Agreement, it
will, upon written request of Employee, furnish references to third
parties, including prospective employers, regarding Employee. However,
Employee acknowledges that it is Employer's policy to confirm employment
only and not to release any additional information without a written
release from Employee.
14. NOTICES. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be deemed to have been
delivered on the date personally delivered or the date mailed, postage
prepaid by certified 81 mail, return receipt requested, or faxed and
confirmed, if addressed to the respective parties as follows:
If to Employer:
Xxxxxxxxx.xxx, Inc.
0000 X Xxxxxxxx Xx Xx , Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Board of Directors
If to Employee:
Xxxxx X Xxxx
0000 X Xxxxxxxx Xx Xx , Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Either party may change its address for the purpose of receiving notices,
demands, and other communications by giving written notice to the other
party of the change.
110
15. VOLUNTARY AGREEMENT. Employee represents that he has not been pressured,
misled or induced to enter this Agreement based upon any representation by
Employer not contained herein.
16. PROVISIONS TO SURVIVE. The parties hereto acknowledge that many of the
terms and conditions of this Agreement are intended to survive the
employment relationship. Therefore, any terms and conditions that are
intended by the nature of the promises or representations to survive the
termination of employment shall survive the term of employment regardless
of whether such provision is expressly stated as so surviving.
17. MERGER. This Agreement represents the entire Agreement between the parties
and shall not be subject to modification or amendment by any oral
representation, or any written statement by either party, except for a
dated written amendment to this Agreement signed by Employee and an
authorized officer of Employer.
18. VENUE AND APPLICABLE LAW. This Agreement shall be enforced and construed in
accordance with the laws of the State of Florida, and venue for any action
or arbitration under this Agreement shall be Kent County, Florida.
19. SUBSIDIARIES AND AFFILIATED ENTITIES. Employee acknowledges and agrees
that Employer has or may have various subsidiaries and affiliated
entities. In rendering services to Employer, Employee will have
considerable contact with such subsidiaries and affiliates. Therefore,
Employee agrees that all provisions of paragraphs 7, 8, 9 and 10 shall
apply to all such subsidiaries and affiliates.
20. PERSONNEL INFORMATION. Employee shall not divulge or discuss personnel
information such as salaries, bonuses, commissions and benefits relating
to Employee or other employees of Employer or any of its subsidiaries with
any other person except the Executive Committee and the Board of Directors
of Employer.
21. ASSIGNMENT. This Agreement shall not be assignable by either party without
the written consent of the other party; provided, however, that this
Agreement shall be assignable to any corporation or entity which purchases
the assets of or succeeds to the business of Employer (a "Successor
Employer"). Subject to the foregoing, this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns. IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above written.
Employer:
Xxxxxxxxx.xxx
Name: Xxxxx Xxxx
Signature:_______________
Title: President and CEO
Employee:
Name: Xxxxx Xxxx
Signature_________________
111
