EMPLOYMENT AGREEMENT
State of Texas County of Xxxx
This Agreement is made by and between Xxxxxx Xxxx "Employee" and Communicate
Xxx.xxx Inc. "Employer". This Agreement is made on this 01 day of March , 2001
In consideration of the promises and of the mutual covenants and agreements
contained in this (Employment Agreement), here in after known as the Agreement,
the parties hereby agree as follows:
I. DEFINITIONS
1.01 "Customer" is hereby defined for the compensation section of this agreement
as a person or entity that purchases a Xxxxxxxxxx.xxx or Communicate Xxx.xxx
Inc. display advertisement, mini web page, web page, or any other product.
1.02 "Employer" is hereby defined as Communicate Xxx.xxx Inc., a Delaware
Corporation.
1.03 "Employee" is hereby defined as Xxxxxx Xxxx.
II. SCOPE OF AGREEMENT AND LIMITATIONS OF AUTHORITY
2.01 The purpose of this Agreement is to employ Employee for the express purpose
of allowing Employee to develop sales of Employer's goods. Employee is entitled
to the rights and privileges detailed in this Agreement and to no other
privileges. Employee shall be entitled to a commission/bonus as provided for in
compensation section of this Agreement.
2.02 Employer will process all sales in accordance with its normal procedures,
and on each sale, have the right of approval or disapproval of the sale.
Employee will be paid in accordance with the compensation section of this
Agreement and incorporated herein. Employer's decision as to which sales shall
be accepted shall be conclusive and binding on Employee.
2.03 Employee has no authority to act for or on behalf of Employer except as
provided for in this Agreement and in the Bylaws of the Corporation. No other
authority, power or use is granted or implied.
2.04 Employee may not make, revise, alter, or otherwise diverge from the terms,
conditions, prices or policies furnished to Employee by Employer.
2.05 Employee may not incur any debt, obligation, expense or other liability of
any kind against Employer without Employer's express prior and written
permission, or in accordance with the Bylaws of the Corporation.
III. DUTIES OF EMPLOYEE AND TERM OF THE AGREEMENT
3.01 The term of the Agreement shall be for one year from the date the Agreement
is executed by the Employee and Employer, here in after known as "the parties".
3.02 If, after the term of the Agreement has expired, the parties continue to do
business together as if the Agreement were still in effect, the Agreement shall
be renewed and shall continue in effect until one of the parties notifies the
other in writing of its termination. The termination letter must give 30 days'
written notice to the other party.
3.03 Termination may be by agreement, on behalf of Employee or Employer on 30
days' written notice, or on the breach of this Agreement by Employee. The breach
of this Agreement includes, but is not limited to, a violation of Employer's
rules or policies, a breach of the non-competition agreement contained in this
Agreement, the making of a misrepresentation or false statement by Employee,
nonperformance of Employee's duties, death of Employee, or the occurrence of a
conflict of interest between Employee and Employer.
(a) A decision by Employer to terminate this Agreement shall be without
prejudice to any other remedy to which Employer may be entitled
either at law or in equity or under this Agreement, and shall
follow the notice for a termination as outlined in provision 3.03.
(b) Employer may also have the right to declare this Agreement void
and terminate the employment contract in the event that Employer
files a petition in bankruptcy court or is adjudicated bankrupt,
has a receiver appointed of his assets, or makes a general
assignment of his assets for the benefit of his creditors.
3.04 If Employee becomes permanently disabled because of sickness, or physical
or mental disability, or for any other reason, so that it reasonably appears
that he will be unable to perform his duties under this Agreement, Employer
shall have the option to terminate this Agreement immediately by giving written
notice of the termination to Employee as outlined in provision 3.03. The
termination shall be without prejudice to any other right or remedy to which
Employer may be entitled either in law or in equity or under this Agreement.
3.05 Effect of Termination on Compensation and Vacation. In the event of
termination of this Agreement prior to the completion of the term of employment
specified herein, Employee shall be entitled to the compensation/vacation earned
prior to the date of termination as provided for in the compensation section of
this agreement. In the case of vacation it shall be compensated on a pro-rata
basis.
3.06 In the event of termination of this Agreement prior to the completion of
the specified term, Employee shall automatically and completely forever forfeit
any rights employee may have in any bonus, incentive plan or Employer benefit or
pension plan, if any, established by Employer. Furthermore; Employee will
forfeit any right or title to compensation or commissions on sales that may have
been instituted by Employee but have not been completed and approved prior to
the termination of this Agreement.
3.07 Damages for Breach of Contract. In the event of a breach of this Agreement
by Employee, Employer may recover from Employee any and all damages that
Employer may sustain as a result of the breach of this Agreement. This includes
Employer's legal fees.
3.08 Payment of Monies due a Deceased Employee. If Employee dies prior to the
expiration of the term of the Agreement, any monies that may be due Employee
under this Agreement shall be paid to Employee's executors, administrators,
heirs, personal representatives, successors or assigns.
3.09 Employee hereby represents and warrants to Employer that Employee is not
under any impediment, restraint, or disability that would prohibit, hinder, or
in any way impair Employee's working ability or relationship with Employer.
Employee hereby represents that Employee is under no prior restrictive trade
covenant agreement or other legal restraint which would cause a breach of the
agreement if Employee becomes an employee or Employer, and Employee represents
that Employer will not be in violation of any such prior employment contract or
restrictive trade agreement by hiring Employee.
3.10 Duties. Employer hereby hires employee to perform the duties of Vice-
President, Operations and Technology. Employee agrees to provide prompt,
courteous, efficient, and professional efforts to promote the work assigned by
Employer and covered by this Agreement.
3.11 Employee at all times during the performance of this Agreement shall
strictly adhere to and obey all the rules and regulations now in effect or
subsequently promulgated by Employer.
3.12 The employment or Employee shall continue only so long as services rendered
by Employee are satisfactory to Employer, regardless of any other provision
contained in this Agreement. Employer shall be the sole judge as to whether the
services of Employee are satisfactory.
3.13 In addition to the foregoing, Employee shall perform such other work as may
be assigned, subject to the instruction, direction, and control of Employer,
provided only that any such additional duties shall be covered by the
compensation schedule reflected in this Agreement.
3.14 Employer shall have the right at any time during this Agreement to assign
Employee, in the discretion of Employer, to perform duties different in any
manner whatsoever from the duties originally assigned and specified above.
3.15 Employee shall devote Employee's entire time, ability, and attention to the
business of Employer during the term of this contract. Employee shall not
directly or indirectly render any services to any business or to any other
person or organization, or be involved in any business or commercial or
professional venture of any nature, whether for compensation or otherwise,
without the prior written consent of Employer.
IV. COMPENSATION
4.01 In consideration of Employee's efforts, Employer agrees to pay to Employee;
1. Base pay of $100,000 USD per year.
2. A quarterly commission of $2.00 for each new paying customer
initiating the date of execution of this Agreement by Employee.
3. Supply the Employee a Laptop computer, cell phone and other
reasonable and necessary office equipment to support sales
development.
4. Supply medical coverage in accordance with the Employer's normal
health insurance plan.
5. Six paid holidays and 3 weeks of paid vacation per year starting
2001.
6. Supply a company car and expenses as soon as practical.
January 2002 Bonus
A bonus based upon successful implementation of successful sales projections:
o A *250,000 share option at 1.00 per share based on successful
implementation of the domestic market launch (see attachment `A').
o In the event the domestic market launch new customer minimums are not
met and the company generates a year end profit Employee will receive
a *100,000 share option at 1.00 per share.
o In the event the domestic market launch new customer minimums are not
met and the company breaks even, the Employee will receive a *50,000
share option at 1.00 per share.
*Restricted Shares as applicable
4.02 Employer agrees to pay Employee twice per month, on approximately the first
(1st) and the fifteenth (15th).
4.03 Employer shall deduct from Employee's compensation all applicable local,
state, federal or foreign taxes, including income tax, withholding tax, social
security tax, and pension contributions, if any.
V. NONCOMPETITION PROVISIONS
5.01 The parties hereto agree that the covenants, agreements and restrictions
(hereinafter refereed to or known as "this covenant") contained herein are
necessary to protect the business goodwill, business interests and proprietary
rights of Communicate Xxx.xxx Inc. and that the parties hereto have
independently discussed, reviewed and had the opportunity of legal counsel to
consider this agreement and now hereby agree and stipulate the following:
(a) This covenant is an integral part of an enforceable agreement and
the covenants contained herein were made at the time this agreement
was consummated by the parties hereto.
(b) This covenant is fair and reasonable in its:
1. Geographical area;
2. Length of time; and
3. Scope of activity being restrained.
5.02 Restrictive Covenants. Employee expressly agrees that while the contract is
in effect, and for a period of three years following the termination of this
Agreement, Employee will not directly or indirectly, as an employee, agent,
proprietor, partner, broker, stockholder, officer, director, or otherwise,
render any service to, on Employee's own behalf or on behalf of any other person
or entity, engage in or own a part of any competitive business or organization
or plan that would compete directly or indirectly with Employee's business, in
any country, world wide, without prior written consent of employer.
(a) Employee further expressly agrees that Employee will not use for Employee's
own benefit or disclose to any person any information, including confidential
information, of Employer obtained or learned while acting as an employee for
Employer, without prior written consent of Employer.
(b) The agreements contained in this section on the part of Employee shall be
construed as agreements independent of any other provision of this Agreement.
The existence of any claim or cause of action against Employee by Employer,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by Employer of the agreements contained in this
section.
5.03 The parties hereby agree and acknowledge that employer has spent
considerable sums of money and time in developing good customer contact and
rapport and that the client list or customer list developed by Employer is worth
a considerable amount of money and therefore is a benefit which Employer seeks
to protect. Such protection is hereby agreed and acknowledged by both parties as
being reasonable consideration for establishing this restrictive covenant.
5.04 The parties hereby agree that it may be difficult or impracticable to
calculate or ascertain actually or definitely the damages that Employer may
suffer if Employee causes a breach of this provision. Therefore Employer may
resort, without prejudice to any appropriate legal remedy, by injunction or
otherwise. If any of the foregoing restrictions in this provision are held to be
invalid, they shall be deemed to be severable and shall not defeat the remaining
provisions in this Agreement.
5.05 Property Rights of Employer. Employee recognizes that the business
interests of Employer require a confidential relationship between Employer and
its employees, and the fullest protection and confidential treatment of its
trade secrets, customer list, know-how, products and other business knowledge
developed, conceived and learned by Employee during the course of employment.
Accordingly, Employee agrees that, during the term of employment with Employer,
Employee will keep secret and confidential all such information, trade secrets,
products, know-how, and customer lists and will not use the same to aid Employee
or others, either directly or indirectly. Employee further agrees that, on
termination of this Agreement, Employee will surrender to Employer all papers,
formulas, information documents, writings and other properties in Employee's
possession relating to employer's business, including both originals and any
copies of such material. Employee also agrees that Employee will not withhold
any such documentation from Employer. All customer lists, and all records of the
accounts of customers, and other records and books relating in any manner
whatsoever to the customers and prospective customers of Employer shall be the
exclusive property of Employer. Employee shall immediately return all such
books, records and catalogs to Employer upon the termination of this Agreement.
Employee shall also return to Employer any and all identification cards, credit
cards, business documents or other documents, if any, to Employer upon the
termination of this Agreement.
5.06 Soliciting Customers after Termination of This Agreement. Employee shall
not, for a period of three years immediately following the termination of this
Agreement, regardless of the reasons or cause for the termination and regardless
of the party causing the termination, either directly or indirectly: (a) make
known to any person, firm or corporation the names and addresses of any of the
customers of Employer or any other information pertaining to them; or (b) call
on, solicit, or take away, or attempt to call on, solicit, or take away any of
the customers of Employer on whom Employee called or with whom Employee became
acquainted during the term of the Agreement either for Employee's benefit or for
any other person or entity.
VI. GENERAL AND ADMINISTRATIVE PROVISIONS
6.01 Parties Bound. This Agreement shall be binding on an inure to the benefit
of the parties and their respective heirs, executors, administrators, legal
representatives, successors and assigns.
6.02 Assignment. Employee shall have no right to transfer or assign Employee's
interest in this Agreement without the prior written consent of employer.
6.03 Corporate Authority. If any party to this Agreement is a legal entity
(partnership, corporation and/or trust), that party represents to the other that
this Agreement, the transaction contemplated in this Agreement, and its
execution and delivery, have been duly authorized by all necessary partnership,
corporate, or trust proceedings and actions, including without limitation action
on the part of the directors, if the party is a corporation. Certified copies of
the corporate or other resolutions authorizing this transaction shall be
delivered at execution.
6.04 Time limits. Time is of the essence in this Agreement; and all time limits
shall be strictly construed and rigidly enforced.
6.05 No Waiver. A failure or delay in the enforcement of the rights detailed in
this Agreement by Employer shall not constitute a waiver of those rights or be
considered a basis for estoppel. Employer may exercise its rights under this
Agreement despite any delay or failure to enforce those rights.
6.06 Dispute or Contest. In the unlikely event that a dispute occurs or an
action in law or equity arises out of the operation, construction, or
interpretation of this Agreement, Employee shall bear the expense of the
attorney's fees and costs incurred by Employer in the action.
6.07 Paragraph Headings. The paragraph headings used in this Agreement are
descriptive only and shall have no legal force or affect whatever.
6.08 Use of Pronouns. The use of the neuter, masculine, or singular to refer to
a party described in this Agreement shall be deemed a proper reference whether
the party is an individual, a partnership, a corporation, or a group of two or
more individuals, partnerships, or corporations. The grammatical changes
required to make the provisions of this Agreement applicable to corporations,
partnerships, individuals, or groups of individuals, or to females as well as
males shall in all instances be assumed as though in each case fully expressed.
6.09 Texas Law. This Agreement shall be subject to and governed by the laws of
the State of Texas. Any and all obligations or payments are due and payable in,
Xxxx County, Texas.
6.10 Severability. If any provision of this agreement shall, for any reason, be
held violative of any applicable law, and so much of the Agreement is held to be
unenforceable, then the invalidity of such a specific provision of this
Agreement shall not be deemed to invalidate any other provisions of this
Agreement, which other provisions shall remain in full force and effect unless
removal of the invalid provisions destroy the legitimate purposes of this
Agreement, in which event this Agreement shall be canceled.
6.11 Entire Agreement. This Agreement represents the entire agreement by and
between the parties, except as otherwise provided in this Agreement, and it may
not be changed except by written amendment duly executed by all parties.
6.12 Claims. All claims of Employee for compensation owed will be waived by
Employee if not claimed within 30 days from the date of the termination of this
Agreement.
6.13 Damages. In the event of a breach of this Agreement by Employee resulting
in damages to Employer, Employer may recover from Employee such damages as
Employer has sustained.
SIGNED, accepted and agreed to, by the undersigned parties who hereby
acknowledge that they have read and understood this Agreement and the
Attachments thereto, and that they execute this legal document voluntarily and
of their own free will.
Employer: Communicate Xxx.xxx Inc.
By: _______________________________________________ Date: _________________
Xxxxx Xxxxxxx, President
Employee: _________________________________________ Date: _________________
Xxxxxx Xxxx
Attachment "A"
New
City Sales Associates DSM Customers
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JAN Central Texas (Waco, Temple, Killeen) and surrounding 5 217
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FEB 3 346
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MAR Houston Xxxxxxxxxxxx Xxxx 000
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APR 30 1645
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MAY Beaumont - Port Xxxxxx area 10 2078
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JUN Dallas - Fort Worth Metropolitan Area 15 1 2728
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JUL 15 3377
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AUG 3377
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SEP San Antonio - New Braunfels area 15 1 4027
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OCT 10 4460
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NOV Lubbock 8 4806
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DEC Austin - San Marcos area 15 1 5456
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TOTALS For calendar 2001 126 3 *32,863
*Successful implementation of the domestic market launch as defined by above
chart is 32,863 new customers in the calendar year 2001.
