Exhibit 10.4
COMMERCE DEVELOPMENT CORPORATION, LTD.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 1st day of September, 2002, between
COMMERCE DEVELOPMENT CORPORATION, LTD., a Maryland corporation (the "Company"),
and XXXXXX X. XXXXXX (the "Employee").
1. Conditions of Employment. As of the date hereof, the Company hereby employs
the Employee as President and Chief Executive Officer, and the Employee accepts
such employment, subject to the terms and conditions set forth herein. The
Employee shall perform all duties and services regularly incident to the
position of President and Chief Executive Officer of the Company, and the
Employee shall perform such other duties and services as may be prescribed by
the Board of Directors of the Company from time to time; provided, however, that
(a) the Employee's duties will not require him to relocate his residence from
San Diego County, California, and (b) the duties and services the Employee will
be asked to provide will be at minimum of the nature of his position as
President and Chief Executive Officer of the Company. The Employee further
agrees to serve without additional compensation as a director of the Company and
in such executive positions with any subsidiaries of the Company as the Board of
Directors of Company may designate and to fulfill the responsibilities incident
to such positions.
2. Term of Employment. The term of employment shall commence on the date
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hereof, and shall continue for a period of 16 months.
3. Devotion of Effort. The Employee agrees to devote sufficient time, attention,
and skill to the performance of his duties as an employee of the Company as set
out and authorized by the Board of Directors during the term of this Agreement.
Notwithstanding anything herein contained to the contrary, the Employee shall
not be required to devote his full time or attention to the affairs of the
Company.
4. Compensation and Benefits. Contemporaneously with the execution and delivery
of this Agreement, and in full and final payment of all obligations of the
Company to the Employee hereunder, and in full payment for the services rendered
to the Company by the Employee before the date of this Agreement, there has been
delivered to the Employee 3,340,000 shares of the Company's common stock, par
value $0.001 per share, the receipt and sufficiency of which are hereby
acknowledged by the Employee. It is agreed by the parties that the shares of the
Company's common stock delivered to the Employee hereunder have been value at
$0.006 per share. Consequently, the Employee has received consideration in the
amount of $20,040 in connection with this Agreement. In addition, the Employee
shall be entitled to participate in all employee benefit plans to be established
by the Board of Directors on the same terms and conditions as all other
employees similarly situated.
5. Termination for Disability. If the Employee, during the term of this
Agreement, shall fail to perform his duties hereunder as a result of disability,
as defined in Paragraph 7 below, the Company shall have the right to terminate
this Agreement and the employment hereunder as of a date to be specified in a
written notice of termination sent to the Employee, such date to be not less
than 30 days following receipt of said notice.
6. Termination for Cause. If the Employee shall (a) be convicted of a felony, or
(b) engage in conduct as defined under cause, all as set out in Paragraph 7
below, the Company shall have the right to terminate this contract and
employment hereunder in the manner as set out in Paragraph 7 and upon notice
given in the manner specified herein.
7. Definitions. For purposes of this Agreement, the following definitions
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shall apply:
(a) "Termination Date" shall mean the date on which the Employee ceases to be an
employee of the Company irrespective of the cause or manner in which employment
ends.
(b) "Disabled" or "Disability" shall mean a determination by independent
competent medical authority that the Employee is unable to perform his duties
and that in all reasonable medical likelihood such inability will continue for a
period in excess of 180 days. Unless otherwise agreed by the Employee and the
Board of Directors, the independent medical authority shall be selected by the
Employee and the Company each selecting a board certified licensed physician and
the two physicians selected shall designate an independent medical authority,
whose determination of Disability shall be binding upon the Company and the
Employee.
(c) "Cause" shall mean. (i) the Employee's conviction of a felony or any other
criminal act involving moral turpitude; (ii) deliberate and intentional
continuing refusal by the Employee to substantially perform his duties and
obligations under this Agreement (except by reason of incapacity due to illness
or accident) if the Employee (1) shall have either failed to remedy such alleged
breach within 15 days from the date written notice is given by the Board of
Directors demanding that the Employee remedy such alleged breach, or (2) shall
have failed to take reasonable steps in good faith to that end during such 15
day period.
8. Expenses Reimbursed. During the period of his employment, the Employee will
be reimbursed for his reasonable expenses in accordance with general policy of
the Company as adopted by the Board of Directors from time to time. In addition
to such reimbursement expenses, the Employee shall incur and pay in the course
of his employment by the Company certain other necessary expenses for which he
will be required personally to pay but for which the Company shall reimburse or
otherwise compensate him, including, but not limited to the following: cell
telephone expenses, club dues, and the expenses of membership in civic groups,
professional societies, and fraternal organizations, and all other items of
reasonable and necessary professional expenses incurred by the Employee in the
performance of the services in which the Employee has been engaged on behalf of
the Company.
9. Confidential Information and Trade Secrets.
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(a) The Employee recognizes that the Employee's position with the Company
requires considerable responsibility and trust, and, in reliance on the
Employee's loyalty, the Company may entrust the Employee with highly sensitive
confidential, restricted and proprietary information involving Trade Secrets and
Confidential Information of the Company and its affiliates.
(b) For purposes of this Agreement, a "Trade Secret" is any scientific or
technical information, design, process, procedure, formula or improvement of the
Company or any of its affiliates that is valuable and not generally known to
competitors of the Company and its affiliates. "Confidential Information" is any
data or information, other than Trade Secrets, of the Company or any of its
affiliates that is important, competitively sensitive, and not generally known
by the public, including, but not limited to, the strategic and business plans,
business prospects, training manuals, product development plans, bidding and
pricing procedures, market strategies, internal performance statistics,
financial data, confidential personnel information concerning employees,
supplier data, operational or administrative plans, policy manuals, and terms
and conditions of contracts and agreements and such similar information relating
to subsidiaries and affiliates of the Company. The terms "Trade Secret" and
"Confidential Information" shall not apply to information which is (i) already
in the Employee's possession (unless such information was obtained by the
Employee from the Company or its affiliates or was obtained by the Employee in
the course of the Employee's employment by the Company or its affiliates), (ii)
received by the Employee from a third party with no restriction on disclosure,
(iii) becomes generally available to the public through no wrongful act on the
part of the Employee, or (iv) required to be disclosed by any applicable law.
(c) Except as required to perform the Employee's duties as an employee, the
Employee will not use or disclose any Trade Secrets or Confidential Information
during his employment, at any time after termination of his employment and prior
to such time as they cease to be Trade Secrets or Confidential Information
through no act of the Employee in violation of this Paragraph 11.
(d) Upon the request of the Company and, in any event, upon the termination of
employment hereunder, the Employee will surrender to the Company all memoranda,
notes, records, drawings, manuals, distributor lists, or other documents
(including all copies thereof) pertaining to the Company's business, the
Employee's employment or the business of the Company or its affiliates. The
Employee will also leave with the Company all materials involving any Trade
Secrets or Confidential Information. All such information and materials, whether
or not made or developed by the Employee, shall be the sole and exclusive
property of the Company or its affiliates, and the Employee hereby assigns to
the Company all of the Employee's right, title and interest in and to any and
all of such information and materials.
10. Specific Enforcement. The Employee specifically acknowledges and agrees that
the restrictions set forth in Paragraph 11 hereof are reasonable and necessary
to protect the legitimate interest of the Company and its affiliates and that
the Company would not have employed the Employee in the absence of such
restrictions. The Employee further acknowledges and agrees that any violation of
the provisions of Paragraph 11 hereof will result in irreparable injury to the
Company or its affiliates, that the remedy at law for any violation or
threatened violation of such paragraphs will be inadequate and that in the event
of any such breach, the Company or its affiliates, in addition to any other
remedies or damages available at law or in equity, shall be entitled to
temporary injunctive relief before trial from any court of competent
jurisdiction as a matter of course and to permanent injunctive relief without
the necessity of proving actual damages.
11. Attorney's Fees. In the event that it should become necessary for any party
entitled hereunder to bring suit against any other party to this Agreement for
enforcement of the covenants herein contained, the parties hereby covenant and
agree that the party who is found to be in violation of said covenants shall
also be liable for all reasonable attorney's fees and costs of court incurred by
the other parties hereto.
12. Benefit. All the terms and provisions of this Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
13. Notice. All notices, requests and other communications hereunder shall be in
writing and shall be deemed to have been duly given at the time of receipt if
delivered by hand or communicated by electronic transmission, or, if mailed,
three days after deposit in the United States mail, registered or certified,
return receipt requested, with postage prepaid and addressed to the party to
receive same, if to the Company, addressed to the President of the Company at
0000 Xxx Xxx Xxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, telephone
(000) 000-0000, fax (000) 000-0000, and e-mail xxxx@xxxxx.xxx; and if to the
Employee, addressed to Xx. Xxxxxx X. Xxxxxx at 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, telephone (000) 000-0000, fax (858)
000-0000, and e-mail XXXX0@xxx.xxx; provided, however, that if either party
shall have designated a different address by notice to the other given as
provided above, then any subsequent notice shall be addressed to such party at
the last address so designated.
14. Construction. Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
15. Waiver. No course of dealing on the part of any party hereto or its agents,
or any failure or delay by any such party with respect to exercising any right,
power or privilege of such party under this Agreement or any instrument referred
to herein shall operate as a waiver thereof, and any single or partial exercise
of any such right, power or privilege shall not preclude any later exercise
thereof or any exercise of any other right, power or privilege hereunder or
thereunder.
16. Cumulative Rights. The rights and remedies of any party under this
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Agreement and the instruments executed or to be executed in connection
herewith, or any of them, shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
17. Invalidity. In the event any one or more of the provisions contained in this
Agreement or in any instrument referred to herein or executed in connection
herewith shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality, or unenforceability shall not
affect the other provisions of this Agreement or any such other instrument. If
any covenant in this Agreement, or any part thereof, is held to be unenforceable
because of its duration or its geographic scope, the parties agree that the
court making such determination shall have the power to reduce the duration
and/or area of such covenant to the longest duration and to the greatest
geographical scope which is permitted, and, in said reduced form, such covenant
shall then be enforced. The Employee acknowledges that the provisions of this
Agreement are reasonable and necessary for the protection of the Company, that
the consideration therefor is reasonable and sufficient, and that the provisions
of this Agreement are an inducement without which the Company would not have
entered into this Agreement.
18. Headings. The headings used in this Agreement are for convenience and
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reference only and in no way define, limit, simplify or describe the scope or
intent of this Agreement, and in no way effect or constitute a part of this
Agreement.
19. Multiple Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
20. Law Governing. This Agreement shall be construed and governed by the
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laws of the State of California, and all obligations hereunder shall be deemed
performable in San Diego County, California.
21. Entire Agreement. This instrument contains the entire understanding
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of the parties with respect to the subject matter hereof, and may not be
changed orally, but only by an instrument in writing signed by the party
against whom enforcement of any waiver, change, modification, extension, or
discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first written above.
COMMERCE DEVELOPMENT CORPORATION, LTD.
By /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Chief Financial Officer
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
