Exhibit 10.4 Employment Agreement with Mr. Smitten
Employment Agreement
This Agreement effective Nov 19, 1999
Between: Xxxxxxx Xxxxxxx (The employee.)
0000 X.X. Xxxxx Xxxxxxx
Xxxxx 000-X
Xxxx Xxxxxxxxxx, Xx
00000
AND
xxxxxxxxxxxxxx.xxx Inc. (the employer)
0000 X.X. Xxxxx Xxxxxxx
Xxxxx 000-X
Xxxx Xxxxxxxxxx, Xx
00000
Whereas The Employer desires to obtain the benefit of the services of the
Employee, and the Employee desires to render such services in the terms and
conditions set forth in this Agreement.
EFFECTIVE DATE: This agreement shall become effective and operational upon the
completion and sale of the planned underwriting of SMS Stock Market Solutions
Inc., which is currently to be presented to the SEC (Security Exchange
Commission) for approval and subsequently to be listed on the Nasdaq Bulletin
Board. Completion will be defined as: when the minimum registered stock of SMS
Stock Market Solutions Inc. has been sold to the public.
IN CONSIDERATION of the promises and other good and valuable considerations set
forth, the Employee and Employer agree as follows, subject to a 1 year review:
The Employment: The Employer appoints the Employee as Chairman and a President
and CEO (Chief Executive Officer) and to undertake the duties and exercise the
powers of such position as may be requested by the Employer, such duties to
include those duties normally performed by CEO as directed by the board and
specifically the Chairman of the board of directors, on the terms and conditions
set forth in this Agreement. The Employee agrees that he or she will at all
times faithfully, industriously, competently and to the best of the Employee's
skill, ability, experience and talents, perform all of the duties required of
the Employee's position. In carrying out these duties and responsibilities, the
Employee shall comply with all Employer's policies, procedures, and rules and
regulations, both written and oral, as are announced by the Employer from time
to time.
The Employment shall be for a one year term extendable for two more years,
subject to the provisions of section 6 hereunder.
Compensation-- As full compensation for all services provided herein, the
Employer shall pay or cause to be paid to the Employee, and the Employee shall
accept a salary, at an annual rate of $ 84,000.00 U.S. funds, in equal
installments, to be paid biweekly.
The Employer agrees that the Employee's compensation will be reviewed annually
by assessing the Employee's achievement of the overall objectives established by
the Employer. The Employee agrees that increases in compensation are wholly
within the discretion of the Employer.
In addition to the fixed remuneration, the Employee may receive from the
Employer a bonus payment based upon the Employee achieving personal and
corporate financial objectives. The entitlement to and the amount of the bonus
payment will be in the absolute discretion of the Employer, and should not be
deemed to be part of salary. The payments referred to herein shall be subject to
such deductions by the Employer as the Employer is from time to time required to
make pursuant to law, government regulations order, or by agreement or consent
of the Employee.
Expenses:
The Employee shall be entitled to reimbursement by the Employer for reasonable
expenses actually incurred on behalf of the Employer in the course of the
Employee's employment by the Employer, upon the presentation by the Employee,
form time to time, of an itemized account of such expenditures together with
such receipts as the Employer may request.
Vacation
The Employee shall be entitled to vacation in the amount of 2 weeks per year, to
be pro-rated should the Employee be terminated before completing a given year.
The Employee shall not be allowed to carry forward any unused vacation into the
next calendar year, except with the written permission of the Employer.
Benefits
The Employee shall participate in all the Employer's standard benefits plan,
and/or stock option plans, but such plans may be amended or canceled, from time
to time at the sole discretion of the Employer, and all other terms in this
Agreement shall prevail notwithstanding any such amendment or cancellation.
Termination
The parties understand and agree that this Agreement may be terminated as
follows in each of the specified circumstances:
By the Employer, at any time, without the requirement of providing either notice
of termination, pay in lieu thereof, severance, or any other payments, for any
material breach of this Agreement by the Employee, or for any other reason that
constitutes just cause, including, but not limited to the following:
Neglect of duties;
Dishonesty or fraud;
Theft;
Breach of fiduciary duties;
Breach of the covenants set out in section 7 hereunder.
By the Employee, at any time, for any reason whatsoever, upon the Employee
giving the Employer one (1) months written notices. However, the Employer may
waive such notice, in whole or in part, in which case the Employee will be
deemed to have resigned immediately.
By the Employer, in the Employer's sole discretion and for any reason
whatsoever, by providing the employee with 2 (two) weeks' written notice of
termination, or immediately, by paying the Employee an amount equal to the
period of notice. Should the aforesaid notice, or pay in lieu thereof be less
than the amount prescribed by law.
The Employer retains the discretion to provide the Employee additional notice,
or pay in lieu thereof, without forfeiting or prejudicing its right to terminate
the Employee pursuant to section 6(3).
Confidential Information and Non-Competition
The Employee acknowledges that during the Employee's employment with the
Employer he or she will have access to and become familiar with financial and
business information concerning the Employer's customers, suppliers, employees,
technology, know-how, business and sales strategy, and trade secrets, all of
which constitute valuable assets of the Employer.
The Employee further acknowledges and agrees that the disclosure of such
information to competitors of the Employer would be detrimental to the vital
interests of the Employer and would cause irreparable harm to the Employer's
interests.
The Employee further acknowledges and agrees that given the nature of the
Employee's employment with the Employer, if the employee was to provide services
to a competitor of the Employer within a one (1) year period of the termination
of the Employee's employment with the Employer, the Employer would suffer
irreparable harm through the loss of goodwill and customers. The Employee
accordingly covenants and agrees as follow:
Except as may be required to fulfill the Employee's duties as an employee of the
Employer, or as required by law, governmental body, or court order, the Employee
shall not, during the course of the Employee's employment or any time
thereafter, disclose or cause to be disclosed, or otherwise use for the
Employee's own purposes or for any purpose other than those of the Employer, any
information dealing with any of the Employer's business operations, sales and
business strategy, market research, pricing, communications between the Employer
and its customers and suppliers or its potential customers, and suppliers,
inventories, cosigns procedures, design and engineering plans and
specifications, machinery, equipment, devices, manufacturing processes, computer
software, customers lists, proposals for development and design of future
products, trade secrets, know how or other confidential technical or business
information of the Employer ( collectively referred to hereinafter as "
Confidential Information") The Employee acknowledges and agrees that all
Confidential Information is the property of the Employer and upon the
termination of the Employee's employment with the Employer ( for whatever
reason, with or without just cause), the Employee shall not be permitted to use
or distribute or disclose such Confidential Information, for the Employee's own
benefit, shall not remove or copy any Confidential Information, for the
Employee's own benefit, and shall return to the Employer all copies of such
confidential information upon the termination of the Employer's employment.
During the course of the Employee's employment with the Employer and for a
further period of two (2) years after the termination of his or her employment
(for whatever reason, with or without just cause), the Employee agrees that he
or she shall not persuade or attempt to persuade any employee or the Employer to
leave the employ of the Employer or any of it's affiliates, or to become
employed by any person other than a third party person.
/s/ Xxxxxxx Xxxxxxx Nov 19,1999
Accepted by: Xxxxxxx Xxxxxxx, The Employee Dated
/s/ Xxxxxxx Xxxxxxx Nov 19, 1999
Accepted by: Xxxxxxx Xxxxxxx, Chairman Dated
SMS Stock Market Solutions Inc., Inc. The Employer
