EXHIBIT 10.3
EMPLOYMENT AGREEMENT
AGREEMENT made this 1st day of January 1, 2000 by and between Xxxx
Mortgage Depot, Inc. (hereinafter referred to as the "Corporation"), and Xxxxx
X. Xxxx (hereinafter referred to as "Xxxx").
FOR VALUE RECEIVED, the parties hereto agree as follows:
1. Employment. Subject to the terms and conditions hereof, the
Corporation agrees to employ Xxxx and Xxxx accepts employment by the Corporation
commencing March 1, 2000 and ending December 31, 2003 or on the Effective Date
of Termination (as determined in Paragraph 4 below), whichever shall be earlier.
2. Duties. During the period of his employment Xxxx shall serve as
Chief Executive Officer and shall serve as a member of the Board of Directors.
Xxxx will oversee all of the company's operations. While he is so employed Xxxx
shall devote his full business time, energy and attention to his duties
hereunder.
3. Compensation. For his services hereunder, the Corporation will pay
the following compensation to Xxxx:
a. Salary. Xxxx will receive a salary of $135,000 per year
with annual increases of 10%. Payments shall be made biweekly.
b. Commission & Bonus. In addition to his salary, Xxxx will
receive a commission based on the gross commission revenues of the Corporation.
Xxxx'x commission will equal 1% of the gross commission revenues and will be
paid biweekly, in the event the company's revenues grew over 15% from the
previous year, Xxxx would receive an additional bonus equal to 0.5% of the gross
commission revenues, which would be paid at year-end. Xxxx is also entitled to a
bonus of 3% of the pre-tax profits of the Corporation, paid at year-end.
c. Options. Xxxx may receive stock options to acquire a total
of 1,000,000 shares of common stock at an exercise price of $3.00 per share or
15% below the 52-week trading average, contingent upon the company achieving the
following revenue milestones:
FYE 2000 2001 2002 2003 2004
--------- --------- --------- --------- ---------
Comm. Rev. 1,900,000 2,700,000 4,000,000 5,500,000 7,500,000
Number of Options 200,000 200,000 200,000 200,000 200,000
Beginning with FY2000 and at each of the following four
year-ends thereafter, 200,000 options will become exercisable if the company
attains the above forecasted loan originations. For any year after FY2000 it
which the company attains the above forecasted commission revenues, any options
eligible for vesting prior to that period will also become exercisable. If all
options could have been exercised in full, or in the event of merger, takeover,
acquisition or other strategic proposed business combination, Xx. Xxxx will be
granted an additional 500,000 options to purchase 500,000 shares of common stock
for the lesser of $4.00 per share or 15% below the market value of the shares of
common stock.
d. Benefits. Xxxx will be eligible to participate in all
benefit programs of the Corporation that are in effect for its personnel from
time to time.
c. Expenses. Xxxx will be reimbursed for all reasonable
business expenses incurred on behalf of Corporation while performing his duties,
including but not limited to reimbursement for travel, food and lodging for his
required trips to Puerto Rico.
4. Termination of Employment. Upon termination of Xxxx'x employment
hereunder for any reason other than death, physical or mental incapacity, fraud,
criminal acts, voluntary termination, breach of any provision of this agreement
or neglect of his duties, Xxxx will be entitled to continue to receive
compensation for a six-month period equivalent to what his salary would be for
that period.
5. Covenant not to Compete. During the period commencing on the date
hereof and ending one (1) year after the termination of Xxxx'x employment for
any reason, Xxxx shall not directly or indirectly, except as a passive investor
in publicly held companies and except for investments held at the date hereof,
engage in or own or control any interest in or act as director, officer or
employee of or consultant to any firm or corporation directly or indirectly
engaged (as these terms may be reasonably construed) in a business (i)
substantially similar to that of the Corporation or (ii) in competition with
Corporation,
The business of the Corporation shall be defined as the marketing of
financial services products via point of sale kiosks in automotive service
centers.
Xxxx hereby acknowledges that the remedy at law for any breach of the
foregoing covenants will be inadequate and that the Corporation shall, in
addition to whatever other remedies it may have, be entitled to proper
injunctive relief.
6. Intellectual Property. Xxxx covenants and agrees that all right,
title and interest in any Information (hereinafter defined) is, shall be and
shall remain the exclusive property of the Corporation, provided, however, that
the foregoing shall not apply to any invention for which no equipment, supplies,
facility or information of the Corporation was used which was developed entirely
on Xxxx'x own time and which does not (i) relate to the business of the
Corporation, (ii) relate to the Corporation's actual or demonstrably anticipated
research or development, or (iii) result from any work performed by Xxxx for the
Corporation. Xxxx agrees immediately to disclose to the Corporation all
information developed in whole or in part by Xxxx during the term of Xxxx'x
employment with the Corporation. Xxxx hereby assigns to the Corporation any
right, title or interest Xxxx may have in any and all such Information. If
deemed necessary by the Corporation, Xxxx agrees to execute any further
instruments and to do all other things reasonably requested. by the Corporation,
both during and after Xxxx'x employment with the Corporation, in order to vest
more fully in the Corporation all ownership rights in those items hereby
transferred by Xxxx to the Corporation. If any one or more of the items so
described are protected or protectible by copyright and are deemed in any way to
fall within the definition of "work made for hire" as such term is defined in 17
USC Section 101, such work shall be considered a "work made for hire" the
copyright of which is and shall be owned solely, completely and exclusively by
the Corporation. If any one or
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more of the aforementioned items are protected or protectible by copyright and
are not considered to be included in the categories of works covered by the
"work made for hire" definition contained in 17 USC Section 101, such items
shall likewise be deemed to be assigned and transferred completely and
exclusively to the Corporation by virtue of the execution of the Agreement.
For purposes of the foregoing, the term "Information" shall mean all of
the following materials and information, whether or not reduced to writing and
whether or not patentable or protectible by copyright, which Xxxx receives,
receives access to, conceives or develops or has received, received access to,
conceived or developed, in whole or in part, directly or indirectly, in
connection with Xxxx'x employment with the Corporation, or in the course of
Xxxx'x employment with the Corporation, immediately after or through the use of
any of the Corporation's facilities or resources:
a. Application software which relates to the business of the
Corporation; the physical appearance and architecture of all of the
Corporation's hardware, including software packaging;
b. Application, operating system, data base, communications
and other computer Software, whether now or hereafter existing, developed for
use on any operating system, all modifications, enhancements and versions and
all options available with respect thereto, and all future products developed or
derived therefrom;
c. Source and object codes, flowcharts, Algorithms, coding
sheets, routines, subroutines, compilers, assemblers, design concepts and
related documentation and manuals;
d. Unique production processes, mailing lists, purchasing
data, pricing policies, quoting procedures, financial data, customer and
prospect names and requirements, employee, customer, supplier and distributor
data, and other materials or information relating to the Corporation's business
and activities and the manner in which the Corporation does business;
e. Discoveries, concepts and ideas, including, without
limitation, the nature and results of research and development activities,
patents, patent applications, trademarks or service marks or applications
therefor, processes, formulas, inventions, computer related equipment or
technology and techniques;
f. Any other materials or information related to the business
or activities of the Corporation which are not generally known to others engaged
in similar business or activities.
Xxxx agrees to receive confidential proprietary information of the
Corporation in confidence and not to disclose such information to others except
as authorized by the Corporation. Information shall be deemed to be confidential
and proprietary if not generally known to the public and created by or disclosed
to Xxxx as a consequence of his employment by the Corporation, whether or not
pursuant to this Agreement.
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7. Warranties, Representations. Xxxx hereby warrants, represents,
covenants and agrees as follows; (i) Xxxx has the full right, power and
authority to grant to and vest in the Corporation all rights herein set forth,
free and clear of any and all claims, rights and obligations whatsoever; are and
shall be new and original and capable of copyright protection. (ii) No software
application that has been or will be developed by Xxxx shall, either in whole or
in part, be an imitation or copy of, or infringe upon, any other material, or
violate or infringe upon, any common law or statutory rights of any party.
8. Other Agreement. Xxxx represents and warrants that the execution and
delivery of this Agreement and the performance of his duties hereunder will not
violate the terms of any other agreements to which he is a party or by which he
is bound.
9. Miscellaneous. This agreement shall be binding upon and inure to the
benefit of the Corporation, its successors and assigns, and may not be assigned
by Xxxx. This Agreement contains the entire agreement of the parties and
supersedes all prior agreements relating to the subject matter hereof and may be
changed only by writing signed by the party against whom enforcement of such
change is sought. This agreement shall be governed by and construed in
accordance with the laws of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
Xxxx Mortgage Depot, Inc.
/S/Xxxxx X. Xxxx
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XXXXX X. XXXX, Director
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