EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is
made and entered into this 16th day of October, 2001 (the
"Commencement Date"), by and between Commodore Minerals, Inc.
d/b/a/ INTAC International, a Nevada corporation (hereinafter
called the "Employer"), and Xxxx Xxx (hereinafter called the
"Executive").
W I T N E S E T H:
WHEREAS, the Executive desires to enter into an executive
employment relationship with the Employer; and.
WHEREAS, both the Employer and the Executive have read and
understood the terms and provisions set forth in this Agreement
had have been afforded a reasonable opportunity to review this
Agreement with their respective advisors;
NOW, THEREFORE, in consideration of the mutual promises of
each, and other good and valuable consideration, the parties
hereby covenant and agree as follows:
1. SERVICES AND DUTIES
a. Positions. The Executive shall serve as the
President and Chief Executive Officer of the Employer. The
Executive shall report directly to the Board of Directors of the
Employer (the "Board") and shall perform all duties consistent
with this position and such duties generally consistent therewith
and as set forth on Schedule A attached hereto, as such duties
and Schedule A shall be prescribed and/or amended from time to
time by the Board.
b. Devotion of Time. As of the Commencement Date (as
defined above), the Executive shall devote his full time and
attention to the Employer.
2. TERM
This Agreement shall begin on the Commencement Date and
end on the third (3rd) anniversary after the Commencement Date
(the "Original Term"). Thereafter, this Agreement shall
automatically renew for successive one (1) year terms (each a
"Renewal Term").
3. COMPENSATION AND RELATED MATTERS
a. Base Salary. From and after the Commencement
Date, the Executive shall receive an annual base salary of
$120,000 (the "Base Salary") paid by the Employer to the
Executive bi-weekly, subject to upward adjustment as hereinafter
specified.
b. Bonus Compensation. In addition to the Base
Salary, the Executive shall be entitled to receive such bonus
compensation for outstanding performance as ultimately determined
in the sole discretion of the Board.
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c. Base Salary Adjustments. The Executive shall be
entitled to receive a merit increase to his Base Salary for
outstanding performance as shall be determined in the sole
discretion of the Board.
d. Expenses. During his employment hereunder, the
Executive shall be entitled to receive prompt reimbursement for
all reasonable business and entertainment expenses incurred by
him in performing services hereunder, provided that the Executive
properly accounts therefor to the Board.
e. Other Benefits. The Executive shall be entitled
to participate in other benefit plans (including, but not limited
to, stock option plans) to which he is eligible pursuant to the
Employer's policy, which may be amended from time to time in the
Employer's discretion, (the "Standard Benefit Plans").
f. Vacations. The Executive shall be entitled to
reasonable vacation consistent with his position and the
Employer's vacation policy.
4. TERMINATION
The Executive's employment hereunder may be terminated
by the Employer or the Executive under the following
circumstances:
a. Mutual Agreement. Termination by mutual written
agreement between the Executive and the Employer.
b. Death. Employment shall terminate upon the death
of the Executive.
c. Disability: Termination will result if the
Executive is unable to perform his duties on a full-time basis
because of the Executive's inability to perform his duties under
this Agreement, with or without reasonable accommodation, for a
period of more than one hundred twenty (120) days ("Disability").
d. Cause: Termination of the Executive's employment
for "Cause." For purposes of this Agreement, the Employer shall
have "Cause" to terminate the Executive's employment hereunder
only upon:
i. The failure by the Executive to substantially
perform his duties as outlined hereunder or to follow the
reasonable directions of the Board after demand for substantial
performance is delivered to the Executive by the Board;
ii. The engaging by the Executive in conduct that
is materially injurious to the Employer, monetarily or otherwise;
iii. The engaging by the Executive in criminal
conduct or conduct constituting moral turpitude; or
iv. The engaging by the Executive in employment
practices which violate federal, state or local law.
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e. Termination Without Cause: Notwithstanding any
provisions of this Agreement to the contrary, the Employer may
terminate the Executive's employment for any reason other than
those specified in the foregoing paragraphs (a), (b), (c) or (d)
(or for no reason) at any time effective upon delivery by the
Board of two (2) days written notice to the Executive. Any
determination requiring the Executive to accept a significant and
material diminution in title, responsibility, or authority,
without the consent of the Executive, as a result of organization
structural changes, mergers, asset transfers, consolidations or
related events shall constitute termination without Cause.
f. Termination by the Executive with Notice: The
Executive may terminate this Agreement (voluntary resignation) at
any time effective upon thirty (30) days written notice to the
Board.
5. COMPENSATION AND PAYMENTS UPON TERMINATION
The Executive shall be entitled to the following
compensation from the Employer (in lieu of all other sums payable
to the Executive hereunder) upon the termination of the
Executive's employment.
a. Mutual Agreement: If the Executive's employment
is terminated as a result of mutual agreement, the Employer shall
pay the Executive's Base Salary, plus a lump sum payment for the
value of all accrued, earned and unused benefits under the
Standard Benefit Plans through the date of termination, and the
Executive will be entitled to receive any vested pension and
retirement benefits (for all purposes of this Agreement, all such
accrued, earned and unpaid items through the applicable date of
termination are referred to as the "Earned Amounts").
b. Death: If the Executive's employment is
terminated as a result of death, the Employer will pay to the
Executive's estate the Earned Amounts.
c. Disability: If the Executive's employment is
terminated as a result of Disability (as defined in Section 4(c)
above), the Executive will be provided long term disability
benefits to which he may be eligible (if any) in accordance with
the Employer's then existing Standard Benefit Plans and the
Employer shall pay to the executive the Earned Amounts.
d. Cause: If the Executive's employment is
terminated for Cause, the Employer shall pay the Executive the
Earned Amounts, and the Employer shall have no further
obligations to the Executive.
e. Termination Without Cause: If, notwithstanding
any other provision of this Agreement, the Employer shall elect,
pursuant to the provisions of Section 4.e. hereof, to terminate
the Executive's employment for a reason other than a., b., c. or
d. of Section 4 of this Agreement (or for no reason), then the
Employer shall pay the Executive the following:
i. The Earned Amounts; and
ii. The Base Salary in effect as of the date of
termination for a period of (a) the time remaining in the
Original Term or Renewal Term, as applicable, from the date of
termination or (b) twelve months from the date of termination,
whichever period is longer, payable as if the Executive remained
an active employee of the Employer.
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f. Termination by the Executive: In the event the
Executive voluntarily elects to terminate this Agreement pursuant
to the provisions of Section 4.f., the Employer will pay the
Executive the Earned Amounts, and the Employer shall have no
further obligations to the Executive.
6. NON-DISCLOSURE
a. Proprietary Information. By virtue of his
employment with the Employer, the Executive will have access, and
Employer will provide to Executive, confidential, proprietary,
and highly sensitive information relating to the business of the
Employer and which is a competitive asset of the Employer
("Proprietary Information"). Such Proprietary Information
includes all information which relates to the business of the
Employer, which is or has been disclosed to the Executive orally
or in writing by the Employer or obtained by virtue of work
performed for the Employer, is or was developed by the Employer,
and is not generally available to or known by individuals or
entities within the industry in which the Employer is or may
become engaged or readily accessible by independent
investigation. The Proprietary Information sought to be
protected includes, without limitation, information pertaining
to: (i) the identities of customers and clients with which or
whom the Employer does or seeks to do business, as well as the
point of contact persons and decision-makers at these customers
and clients, including their names, addresses, e-mail addresses
and positions; (ii) the past or present purchasing history and
the past and/or current job requirements of each past and/or
existing customer and client; (iii) the volume of business and
the nature of the business relationship between the Employer and
its customers and clients; (iv) the pricing of the Employer's
services, including any deviations from its standard pricing for
particular customers and clients; (v) the Employer's business
plans and strategy, including customer or client assignments and
rearrangements, sales and administrative staff expansions,
marketing and sales plans and strategy, proposed adjustments in
compensation of sales personnel, revenue, expense and profit
projections, industry analyses, and any proposed or actual
implemented technology changes; (vi) information regarding the
Employer's employees, including their identities, skills,
talents, knowledge, experience, and compensation; (vii) the
Employer's financial results and business condition; and (viii)
computer programs and software developed by the Employer and
tailored to the Employer's needs by its employees, independent
contractors, consultants or vendors; (ix) information relating to
the Employer's architects, designers, contractors, or persons
likely to become architects, designers, or contractors; (x) any
past or present merchandise or supply sources in the future; (xi)
system designs, procedure manuals, automated data programs,
reports, personnel procedures, and supply and service resources.
Proprietary Information may be contained on the Employer's
computer network, in computerized documents or files, or in any
written or printed documents, including any written reports
summarizing such information.
b. Non-Disclosure of Proprietary Information. The
Executive acknowledges that the Employer's Proprietary
Information will be disclosed to the Executive throughout his
employment with the Employer in order to enable the Executive to
perform his duties for the Employer. The Executive further
acknowledges that the unauthorized disclosure of Proprietary
Information could place the Employer at a competitive
disadvantage. Consequently, the Executive agrees not to use,
publish, disclose or divulge, directly or indirectly, at any
time, any Proprietary Information for his own benefit and for the
benefit of any person, entity, or corporation other than the
Employer, to any person who is not a current employee of the
Employer, without the express, written consent of the Employer
and except in the performance of
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the duties assigned to him by the Employer. The Executive
further agrees not to make copies of any Proprietary Information,
except as authorized in writing by the Employer.
c. Survival of the Executive's Obligations. The
Executive understands and agrees that his obligations under this
Section shall survive the termination of this Agreement and/or
his employment with the Employer for a period of two (2) years.
The Executive further understands and agrees that his obligations
under this Section are in addition to, and not in limitation or
preemption of, all other obligations of confidentiality which he
may have to the Employer under general legal or equitable
principles, or other policies implemented by the Employer.
7. RETURN OF COMPANY PROPERTY.
The Executive acknowledges that all memoranda, notes,
correspondence, databases, computer discs, computer files,
computer equipment and/or accessories, pagers, telephones,
passwords or pass codes, records, reports, manuals, books,
papers, letters, CD Roms, keys, Internet database access codes,
client profile data, job orders, client and customer lists,
contracts, software programs, information and records, drafts of
instructions, guides and manuals, and other documentation
(whether in draft or final form), and other sales, financial or
technological information relating to the Employer's business,
and any and all other documents containing Proprietary
Information furnished to the Executive by any representative of
the Employer or otherwise acquired or developed by him in
connection with his association with the Employer (collectively,
"Recipient Materials") shall at all times be the property of the
Employer. Within twenty-four (24) hours of the termination of
his employment for any reason, the Executive will return to the
Employer any Recipient Materials which are in his possession,
custody or control.
8. NON-SOLICITATION OF CUSTOMERS/CLIENTS.
a. Access to Proprietary Information. The Executive
acknowledges that the special relationship of trust and
confidence between him, the Employer, and its clients and
customers creates a high risk and opportunity for the Executive
to misappropriate the relationship and goodwill existing between
the Employer and its clients and customers. The Executive
further acknowledges and agrees that it is fair and reasonable
for the Employer to take steps to protect itself from the risk of
such misappropriation. The Executive further acknowledges that,
at the outset of his employment with the Employer and/or
throughout his employment with the Employer, the Executive has
been or will be provided with access to and informed of the
Employer's Proprietary Information, which will enable him to
benefit from the Employer's goodwill and know-how.
b. Non-Solicitation of Customers. Ancillary to the
enforceable promises set forth in this Agreement, including,
without limitation, the promises contained in Sections 3, 6 and
7, as well as to protect the vital interests described in those
Sections, the Executive agrees that, while he is employed by the
Employer and for a period of twelve (12) months following the
termination of his employment with the Employer, regardless of
the reason for such termination, the Executive will not, without
the prior written consent of the Employer, directly or
indirectly, alone or for his own account, or as owner, partner,
investor, member, trustee, officer, director, shareholder,
employee, consultant, distributor, advisor, representative or
agent of any partnership, joint venture, corporation, trust, or
other business organization or entity, (i) contact, solicit sales
of, or sell, deliver or place any product, service or system of
the kind and character sold, provided, distributed or placed by
the Executive on behalf of the Employer to any person,
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association, corporation or other business organization or entity
that the Executive contacted, solicited, called upon, or served,
or that he directed others to solicit, call upon, or serve, on
behalf of the Employer, during his employment with the Employer;
or (ii) contact, solicit, or seek to divert the business or
patronage of any person, association, corporation, or other
business organization or entity with whom or which the Executive
had business relations on behalf of the Employer or with whom or
which he met or communicated, or with whom or which he directed
others to meet or communicate, for the purpose of offering to
sell or place or soliciting for sale or placement any product,
service, or system of the kind and character sold, provided or
distributed by him, on behalf of the Employer, during his
employment with the Employer.
c. Reasonable Restrictions. The Executive agrees
that the restriction set forth above is ancillary to an otherwise
enforceable agreement, is supported by independent valuable
consideration, and that the limitations as to time, geographical
area, and scope of activity to be restrained by this Section are
reasonable and acceptable, and do not impose any greater
restraint than is reasonably necessary to protect the goodwill
and other business interests of the Employer. The Executive
agrees that if, at some later date, a court of competent
jurisdiction determines that the non-solicitation agreement set
forth in this Section does not meet the criteria established
under applicable law, this Section may be reformed by the court
and enforced to the maximum extent permitted under applicable
law.
d. Breach. If the Executive is found to have
violated any of the provisions of this Section, the Executive
agrees that the restrictive period of each covenant so violated
shall be extended by a period of time equal to the period of such
violation by him. The Executive understands that his obligations
under this Section shall survive the termination of his
employment with the Employer and shall not be assignable by him.
9. NON-SOLICITATION OF EMPLOYEES AND CONSULTANTS.
The Executive acknowledges that, as part of his
employment or association with the Employer, he will become
familiar with the salary, pay scale, capabilities, experiences,
skill and desires of the Employer's employees. In order to
protect the confidentiality of such information, the Executive
agrees that, for a period of twelve (12) months following the
termination of his employment with the Employer, whether such
termination occurs at the insistence of the Executive or the
Employer, the Executive shall not recruit, hire, solicit, or
attempt to recruit, hire or solicit, directly or by assisting
others, any other employees or consultants employed by or
associated with the Employer, nor shall he contact or communicate
with any other employees or consultants of the Employer for the
purpose of inducing other employees or consultants to terminate
their employment or association with the Employer. For purposes
of this covenant, "other employees or consultants" shall refer to
permanent employees, temporary employees, or consultants who were
employed by, doing business with, or associated with the Employer
within six (6) months of the time of the attempted recruiting,
hiring or solicitation. The Executive's obligations under this
Section 9 shall survive the termination of this Agreement and the
Executive's employment with the Employer.
10. REMEDIES.
In the event that the Executive violates any of the
provisions set forth in Sections 6, 7, 8, or 9 of this Agreement,
he acknowledges that the Employer will suffer immediate and
irreparable harm which cannot be accurately calculated in
monetary damages. Consequently, the Executive acknowledges and
agrees that the Employer shall be entitled to immediate
injunctive
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relief, either by temporary or permanent injunction, to prevent
such a violation. The Executive further acknowledges and agrees
that this injunctive relief shall be in addition to any other
legal or equitable relief, including monetary damages, to which
the Employer would be entitled.
11. INVENTIONS, IDEAS/PATENTABLE INVENTIONS.
The Executive agrees to disclose, fully and promptly,
and only to the Employer, all ideas, methods, plans, improvements
or patentable inventions of any kind which are made or
discovered, in whole or in part, by the Executive during the
performance of his job duties; that result from any aid, support,
or assistance by the Employer; or that are created during the
Executive's work time with the Employer.
In connection with any invention, discovery, concept or
idea subject to the foregoing Paragraphs, the Executive will
promptly execute a specific assignment of any title, shop-right
or license to the Employer, and, if requested to do so, will
cooperate fully with the Employer to secure a patent, shop-right,
or license therefor in the United States and/or foreign
countries. However, nothing in this Agreement shall require any
assignment otherwise prohibited by law.
The Executive further agrees that any and all work
product created or performed by the Executive while the Executive
is working with or on behalf of the Employer, is a "work for
hire" under the terms of the United States Copyright Act, and
shall be and remain the exclusive property of the Employer. The
Executive hereby assigns any and all rights, title, and ownership
interests that he may now have or hereafter acquire in or to such
work product to the Employer.
12. SUCCESSORS; BINDING AGREEMENT
This Agreement shall be binding upon, and insure to the
benefit of, the Employer, the Executive, and their respective
successors, assigns, personal and legal representatives,
executors, administrators, heirs, distributees, devisees, and
legatees, as applicable. Without limiting the generality of the
foregoing, the Employer may assign this Agreement (or the same
may remain with the Employer as a subsidiary of a larger
institution), without the consent of the Executive, with such
assignee being required to perform the obligations of the
Employer hereunder, to any successor of the Employer.
13. COMPLETE AGREEMENT
This Agreement sets forth the entire agreement among
the Employer and the Executive concerning the subject matter
hereof, and supersedes all prior written or oral understandings
of the parties.
14. NOTICE
For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when (i) delivered
personally; (ii) sent by telecopy or similar electronic device
and confirmed; (iii) delivered by overnight express; or (iv) sent
by registered or certified mail, postage prepaid, addressed as
follows:
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If to the Executive:
Xxxx Xxx
the home address of the Executive
as set forth on the books and
records of the Employer
If to the Employer:
INTAC International
Xxxx 0000, 00/X., Xxxxxx Xxxxxxxxx
0 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxx, Xxxx Xxxx
Telecopy: 000-0000-0000
or to such other address as any party may have furnished to the
other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
15. MISCELLANEOUS
No provision of this Agreement may be modified, waived,
or discharged unless such waiver, modification, or discharge is
agreed to in writing signed by the Executive and the Employer.
No waiver by either party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not set forth
expressly in this Agreement.
16. ATTORNEY FEES
All legal fees and costs incurred in connection with
the resolution of any dispute or controversy under or in
connection with this Agreement shall be borne by the non-
prevailing party.
17. COUNTERPARTS
This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original, but all of which
together will constitute one and the same agreement.
18. VOLUNTARY AGREEMENT.
The Parties acknowledge that each has had an
opportunity to consult with an attorney or other counselor
concerning the meaning, import, and legal significance of this
Agreement, and each has read this Agreement, as signified by
their respective signatures hereto, and each is voluntarily
executing the same after, if sought, advice of counsel for the
purposes and consideration herein expressed.
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IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date and year first above written.
EMPLOYER:
Commodore Minerals, Inc.
(d/b/a INTAC International)
By: /s/ XXXX XXXXXX
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Xxxx Xxxxxx
Authorized Signatory
EXECUTIVE:
/s/ XXX XXXX
---------------------------------
Xxxx Xxx
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