EXHIBIT 10.1
AGREEMENT
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This Agreement is made on August 1, 1998 between Xxxxxx X. Xxxxxxxx (HSS)
an individual residing in California, and XXXXXXXX.XXX (S.C.), a California
corporation. Xxxxxx X. Xxxxxxxx has accepted the position of Executive Vice
President of Xxxxxxxx.xxx and Xxxxxxxx.xxx wishes to employ HSS.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
ARTICLE I
Term
1. The term of this Agreement shall be for a period of three years
commencing August 1, 1998 and ending on July 31, 2001. The contract will
automatically be renewed in one-year increments unless either party terminates
via giving written notice by June 1st each year starting with June 1, 2001.
Employer may terminate this Agreement at any time for "Cause" with or without
notice. For purposes of the Agreement, the term "Cause" shall mean any of the
following:
(i) Employee's willful breach or habitual neglect of the duties and
obligations required of him, either expressly or impliedly by the
terms of the Agreement;
(ii) Employee's failure to perform his duties in a manner consistent
with good business judgment, or in the best interests of
Employer;
(ii) The event of Employee being charged by any federal, state, or
local authority with act of dishonesty, any act involving public
ridicule or moral turpitude, or an act constituting a felony, and
Employee either being convicted or entering a plea of guilty or
nolo contendere; or
(iv) Employee's commission of a fraud, embezzlement, or mis
appropriation, whether or not a criminal or civil charge is filed
in connection therewith.
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ARTICLE II
Services
HSS shall provide executive management for the financial and administration
functions of S.C.'s business. HSS will devote substantially all of his business
time to the operation of S.C. HSS shall report directly to the President and
Chief executive Officer of Xxxxxxxx.xxx. HSS agrees to obtain, at S.C.'s
expense, key man life insurance of $1.0 million with the company as the
beneficiary.
ARTICLE III
Compensation
HSS shall receive a bi-weekly base compensation of $5,385 during the period
commencing August 1, 1998 and ending July 31, 1999. For the period commencing
August 1, 1999 through July 31, 2000 the bi-weekly base compensation shall be
$7,692. For period commencing August 1, 2000 through July 31, 2001 the bi-
weekly base compensation shall be $8,461. Actual business expenses will be 100%
reimbursed by S.C. HSS will document all expenses on an approved expense form.
S.C. has authorized a $1,000 per month auto allowance. S.C. agrees to provide
health and life insurance for the employee at the company's expense. In addition
to the above, HSS will participate in a formula bonus which will provide for the
opportunity to receive an amount equal 100% of HSS base compensation for
exceeding the Shopping-com annual business plan net profit. The incentive plan
shall be approved annually by the Board of Directors.
ARTICLE IV
Non-Disclosure and Secrecy
1. HSS agrees that, during the term of this Agreement, and at all
times thereafter, it will keep and cause all S.C. information in strictest
confidence and will not either directly or indirectly use or allow to be used
for personal benefit, or the benefit of others, disseminate or disclose any
Confidential Information or Trade Secrets (as such terms are defined below) used
and/or obtained in providing the Services hereunder, except to parties to this
Agreement, regardless of whether the Confidential information of Trade Secrets
have been conceived or developed, in whole or in part by HSS. HSS acknowledges
and agrees that the terms "Confidential Information" and "Trade Secrets" as used
in this Agreement include without limitation, the whole or any portion or phase
of any design, process, service, procedure, formula, improvement, customer list,
information with respect to customer requirements and practices, marketing
research and development information, statistical data, sources of merchandise,
technical information, computer models, and all other information concerning the
industry and business in which the S.C. concept operates and which is of value
in the operation of S.C. business, or is otherwise understood to be, of a
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confidential character and which has not been published or otherwise understood
to be, of a confidential character and which has not been published or otherwise
become a matter of general public knowledge, under circumstances involving no
breach of this Agreement. HSS agrees that all Trade Secrets and Confidential
Information are and shall be the property of S.C. regardless of whether
conceived or developed by HSS pursuant to the Services. To that end, HSS hereby
assigns to S.C. all rights and all Trade Secrets and proprietary information
developed by HSS in providing the Services.
2. Upon termination or earlier expiration of this Agreement HSS
shall surrender to S.C. at any time of such expiration or termination of this
Agreement or upon demand by S.C. at any time all material of a confidential and
secret nature, including without limitation, the Confidential Information and
Trade Secrets, and any other documents of a proprietary nature as may then be in
HSS (s) possession or control.
ARTICLE V
Miscellaneous
1. Injunctive Relief. HSS acknowledges and agrees that any breach
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of obligations to be performed by and pursuant to Article IV is likely to result
in irreparable harm to S.C. and HSS therefore consents and agrees that if it
violates any such obligations, S.C. shall be entitled, among and in addition to
any other rights and remedies available under this Agreement or otherwise, to
temporary and permanent injunctive relief to prevent HSS from committing or
continuing a breach of such obligations.
2. Entire Agreement. This agreement constitutes the whole Agreement
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between the parties hereto and there are no other terms other than those
contained herein. This Agreement supersedes any prior contract or understanding
related to retaining HSS.
3. Amendment. No variation of this Agreement shall be deemed valid
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unless in writing and signed by the parties hereto.
4. Governing Law. This Agreement shall be construed and enforced in
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accordance with the laws of California
5. Severability. Each provision of this Agreement is intended to
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be severable from the other so that if any provision or term hereof is illegal
or invalid for any reason whatsoever, such illegality or invalidity shall not
effect the validity of the remaining provisions and terms hereof.
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6. Indemnity and Hold Harmless. S.C. agrees to indemnify and does
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hold harmless HSS from and against any and all liabilities, claims, demands,
damages, costs and expenses (including attorney's fees) resulting from, arising
out of, or occasioned by any S.C. business related activity.
7. Assignment. This Agreement may not be assigned by HSS to any
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other person or party without S.C.'s prior written consent which may be withheld
in S.C.'s sole discretion. Notwithstanding the forgoing, S.C. may assign this
Agreement to any successor corporation, affiliated company of subsidiary. In the
case of assignment by S.C., Assignee shall assume, in writing, S.C. obligations.
8. Representation and Warranty. HSS hereby agrees that any
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documents produced with respect to the business of S.C. shall be marked
"Confidential" and "Property of Xxxxxxxx.xxx" whether those documents are
produced by HSS or by a vendor or party chosen by HSS.
9. Captions. Captions used in this Agreement are used for
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convenience only and are not intended to, nor are they to be construed to, have
any substantive meaning or control in the construction of the Agreement.
10. Notices. Any Notice given by one party to any other party
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hereunder shall be delivered to the party at the address indicated below that
party's signature to this Agreement. Such notice shall be given to U.S. Mail,
certified, and shall be deemed delivered on the date of actual receipt or the
date of first refusal to accept delivery.
11. Representation By Counsel. Each party agrees and acknowledges
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that it has had the opportunity to consult with independent legal, tax and
financial counsel of each party's choice in order to be advised with respect to
the effect of this Agreement.
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12. Construction. Any issues with respect to construction or
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interpretation of this Agreement are to be resolved without resort to the
presumption that any ambiguities in this Agreement should be construed against
the drafter.
Agreed to:
Date: July 16, 1998 /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxx
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Xxxxxxxx.xxx Xxxxxxxx.xxx
By: Xx Xxxxxxx By: Xxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxx
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Xxxxxxxx.xxx
By: Xxxx X. Xxxxxxx
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