EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of April 2,
2001, between US Dataworks, Inc. (the "Company"), and Xxxxx Xxxxxxxx
("Xxxxxxxx"). In consideration of the terms and conditions herein, the parties
agree as follows:
ARTICLE 1
General Provisions
Section 1.01. COMMENCEMENT. Xx. Xxxxxxxx'x employment pursuant to this
Agreement shall commence on April 2, 2001, and all prior employment arrangements
are hereby superceded by this agreement.
Section 1.02. PROBATIONARY PERIOD. Xx. Xxxxxxxx shall not be subject to
a 90-day probationary period.
Section 1.03. TERM OF EMPLOYMENT. Subject to earlier termination as
specifically set forth herein, the initial term of employment shall be two (2)
years, commencing on April 2, 2001, and ending on April 2, 2003. Employment
shall be governed by the laws of the State of California. The Company may
terminate this Agreement and Employee's employment with the Company at any time
for cause by giving notice to the Employee of such termination. For purposes of
this section "cause" shall mean any material fraud, dishonesty, embezzlement,
gross negligence or criminal conviction. This Agreement and Employee's
employment with the Company may be terminated without cause by either party by
giving notice to the other party that this Agreement shall terminate and setting
forth a date of termination not less than 30 days following the giving of notice
to the other party. Notwithstanding any of the foregoing, termination of
Employee's employment by the Company (unless for cause) shall not in any way
affect any compensation, benefits or other consideration (including commissions)
to which Employee may be entitled hereunder.
Section 1.04. TERMINATION OBLIGATIONS: RETURN OF COMPANY PROPERTY. Upon
termination of this Agreement, Xx. Xxxxxxxx shall promptly return all Company
property.
ARTICLE 2
POSITION AND DUTIES; OTHER BUSINESS ACTIVITIES
Section 2.01. POSITION. Xx. Xxxxxxxx'x position shall be President for
the Company. Xx. Xxxxxxxx hereby agrees to perform such services and accepts
such employment upon the terms and conditions herein set forth.
Section 2.02. DUTIES. Xx. Xxxxxxxx shall perform such services for the
Company as may be assigned to him by the Company and its parent company,
Sonicport, Inc. ("SPO") its Board of Directors and/or Executive Officers which
reasonably serve the purpose of this Agreement and/or meet the needs of Company.
Section 2.03. FULL ATTENTION TO BUSINESS. During said employment, Xx.
Xxxxxxxx shall devote his full business time, energies, interest, abilities and
productive efforts to the business of the Company and its affiliates or
subsidiaries. Without the Company's written consent, Xx. Xxxxxxxx shall not
render any kind of services to others for compensation and, in addition, shall
not engage in any activity which conflicts or interferes with his performance of
duties hereunder.
Section 2.04. COVENANT NOT TO COMPETE DURING TERM. During said
employment, Xx. Xxxxxxxx shall comply in all respects with the Company's
policies with respect to conflicts of interest. Xx. Xxxxxxxx shall not, without
the prior written consent of the Chief Executive Officer and/or Board of
Directors of Sonicport, Inc., engage in or be interested, directly or
indirectly, in any business or operation competitive with the Company or any of
Company's related or affiliated companies. For the purpose of this paragraph,
Xx. Xxxxxxxx shall be deemed to be interested in a business or operation which
is competitive with the Company if Xx. Xxxxxxxx is interested in such business
or operation as a stockholder of 5% or more of the issued and outstanding common
stock, director, officer, employee, agent, partner, individual proprietor,
lender, consultant, or independent contractor.
Section 2.05. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Xx. Xxxxxxxx
acknowledges that in connection with this Agreement and his performance
hereunder, he may acquire or learn "Confidential Information" of the Company by
virtue of a relationship of trust and confidence between Xx. Xxxxxxxx and the
Company. Xx. Xxxxxxxx warrants and agrees that during his said employment and
thereafter, he shall not disclose to anyone (other than to officers of Company
or to such other persons as such officers may designate), or use, except in the
course of his employment, any Confidential Information acquired by him in the
course of or in connection with his employment. As used herein, the term
"Confidential Information" shall include, but not be limited to: all information
of any type or kind, whether or not reduced to a writing and whether or not
conceived, originated, discovered or developed in whole or in part by Xx.
Xxxxxxxx, which is directly related to Company, its operations, policies,
agreements with third parties, its financial affairs and related matters,
including business plans, strategic planning information, product information,
purchase and sales information and terms, supplier negotiation points, styles
and strategies. contents and terms of contracts between the Company and
suppliers, advertisers, vendors, contact persons, terms of supplier and/or
vendor contracts or particular transactions, potential suppliers and/or vendors,
or other related data; marketing information such as but not limited to, prior,
ongoing or proposed marketing programs, presentations, or agreements by or on
behalf of the
Company, pricing information, customer bonus programs, marketing tests and/or
results of marketing efforts, computer files, lists and reports, manuals and
memos pertaining to the business of the Company, lists or compilations of vendor
and/or supplier names, addresses, phone numbers, requirements and descriptions,
contract information sheets, compensation requirements or terms, benefits,
policies, and any other financial information whether about the Company,
entities related or affiliated with the Company or other key information
pertaining to the business of the Company, including but not limited to all
information which is not generally available to or known in the information
services industry (or is available only as a result of an unauthorized
disclosure) and is treated by the Company as "Confidential Information" during
the term of this Agreement, regardless of whether or not such Information is a
"trade secret" as otherwise defined by applicable law.
Section 2.06. NO SOLICITATION OF EMPLOYEES. Xx. Xxxxxxxx specifically
agrees that during his said employment, and for a period of two (2) years after
his termination of employment with the Company, Xx. Xxxxxxxx shall not, directly
or indirectly, either for himself or for any other person, firm, corporation or
legal entity, solicit any individual then employed by the Company to leave the
employment of the Company.
Section 2.07. OWNERSHIP OF WORK PRODUCT AND IDEAS. During Xx.
Xxxxxxxx'x said employment, any discoveries, inventions, patents, materials,
licenses and ideas relating to Xx. Xxxxxxxx'x services hereunder, whether or not
patentable or copyrightable and whether created by Employee during the term of
this Agreement or owned by the Company prior to or after the execution of this
Agreement ("Work Product") and all business opportunities within the industry
("Opportunities") introduced to Xx. Xxxxxxxx by Company will be owned by the
Company, and Xx. Xxxxxxxx will have no personal interest in such, except to the
extent that Xx. Xxxxxxxx invests in the same or the Company allows Xx. Xxxxxxxx
to participate in or have other rights to such Work Product or Opportunities
during the term hereof or upon the termination of this Agreement. Xx. Xxxxxxxx
will, in such connection, promptly disclose any such Work Product and
Opportunities to the Company and, upon request of the Company, will assign to
the Company all right in such Work Product and Opportunities.
ARTICLE 3
COMPENSATION: BENEFITS
Section 3.01. SALARY. The Company shall pay Xx. Xxxxxxxx Four-thousand
six-hundred fifteen dollars and thirty-eight cents ($4,615.38) on a bi-weekly
basis, for an annualized base salary of One Hundred Twenty Thousand Dollars
($120,000.00).
Section 3.02. COMMISSION. Employee shall receive certain sales
commission amounts to be calculated based on revenue and sales commission
percentages. Revenue includes, but is not limited to, license fees, custom code,
implementation services, consulting, transaction fees and maintenance charges
paid by the Company's customer. Employee shall be entitled to receive such sales
commissions on Revenue generated from the contract for the first two years of
the life of a contract entered into with the Company's customer (to and through
the contract's second anniversary). All contracts existing on the date hereof
shall be treated as though such contract began on the date hereof Commission
percentages are defined as follows:
(i) A 6% sales commission shall be paid on all sales generated by the
Employee primarily through his own contacts, initiatives and efforts.
(ii) A 2% sales commission shall be paid on all sales generated by the
Company's business partners, including but not limited to CheckFree
Corporation, where the majority of the sales effort is provided by the
efforts of the business partner.
(iii) A 1% sales commission shall be paid on all sales generated by any
Company sales person under the direct supervision of the Employee.
All commissions shall be paid to Employee within two pay periods of receipt of
good funds by the Company from its customer. Employee shall be entitled to
commissions as set forth in this Section 3.02 notwithstanding termination or
expiration of this Agreement unless Employee voluntarily terminated or was
terminated by the Company for cause.
Section 3.03. BONUS. Xx. Xxxxxxxx shall be eligible for a discretionary
performance bonus which shall be determined by the Chief Executive Officer of
SPO and/or the Board of Directors.
Section 3.04. PAID VACATION. Xx. Xxxxxxxx shall be entitled to two
weeks of paid vacation during each year of service or such longer amount of
vacation time as Employee and the Corporation shall mutually agree upon, for
each year of employment under this Agreement.
Section 3.05. STOCK OPTION PLAN ELIGIBILITY. Xx. Xxxxxxxx shall be
granted as of the date hereof options, in accordance with SPO's Stock Option
Agreement, on a total of Two Hundred and Twenty Five Thousand (225,000) common
shares of the company (AMEX: SPO) according to the following vesting schedule:
25,000 shares shall vest 120 days after employment begins;
35,000 shares shall vest 6 months after employment begins;
50,000 shares shall vest 12 months after employment begins; and
115,000 shares shall vest 18 months after employment begins.
The exercise price of all options shall be the closing bid listed on
the American Stock Exchange for Sonicport, Inc. (AMEX:SPO) on the day of
execution of this agreement. The options shall have a cashless exercise feature.
In addition, Xx. Xxxxxxxx shall be eligible to purchase options on
additional common shares of SPO on an annual basis, pursuant to SPO's Incentive
Stock Option Plan.
Section 3.06. OTHER BENEFITS. During the term of this Agreement, and
subject to the terms and provisions of such plans or policies regarding
continuation rights, if any, Xx. Xxxxxxxx shall be entitled to participate in
present and future employee benefit plans which are available to SPO's employees
of similar rank and title, subject to eligibility requirements thereunder;
provided, however, the Company reserves the right to modify or terminate such
benefits at any time, without notice, and without further recourse by Xx.
Xxxxxxxx.
Section 3.07 REIMBURSEMENT OF EXPENSES. The Company shall reimburse
Employee for all expenses incurred by him in the performance of his duties
hereunder including, without limitation, expenses incurred for transportation,
accommodations, entertainment and otherwise in connection with the business of
the Company, such reimbursement to be paid promptly to Employee and advance
approval to be requested by Employee in accordance with the customary procedures
followed by the Company for reimbursement of expenses generally.
Section 3.08. DISABILITY. In the event Employee fails or becomes unable
to substantially perform his duties under this Agreement due to illness or
mental or physical disability, and such failure or inability continues for any
consecutive six-month period, the Company shall have the option to terminate
this Agreement by giving written notice to Employee thereof at least 30 days
prior to the effective date of termination. In the event the Company terminates
Employee's employment with the Company pursuant to
this Section 3.08, the Company shall continue to pay Employee the salary,
bonuses and commissions to which he would be entitled in his capacity as an
officer and/or employee of the Company for a period of 30 days following the
date of termination of Employees employment. The provisions of this Section 3.08
shall survive the termination of the Agreement and remain in full force and
effect until the Company has fully satisfied all of its payment obligations
hereunder.
ARTICLE 4
MISCELLANEOUS PROVISIONS
Section 4.01. ENTIRE AGREEMENT. This Agreement contains the entire
Agreement between the Parties and supersedes all prior oral and written
Agreements, understandings, commitments, or practices between the Parties. Other
than as expressly set forth herein, Xx. Xxxxxxxx and the Company acknowledge and
represent that there are no other promises, terms, conditions or representations
(verbal or written) regarding any matter relevant hereto. No supplement,
modification, or amendment of any term, provision or condition of this Agreement
shall be binding or enforceable unless evidenced in writing and executed by the
Parties.
Section 4.02. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, and the venue
of any litigation commenced hereunder shall be Houston, Texas.
Section 4.03. INJUNCTIVE RELIEF. Xx. Xxxxxxxx acknowledges that his
services are of a special, unique, unusual, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages in an action at law. If he
should breach this Agreement, in addition to its rights and remedies under
general law, the Company shall be entitled to seek equitable relief by way of
injunction or otherwise.
Section 4.04. PARTIAL INVALIDITY. If the application of any provision
of this Agreement, or any section, subsection, subdivision, sentence, clause,
phrase, word or portion of this Agreement should be held invalid or
unenforceable, the remaining provisions thereof shall not be affected thereby,
but shall continue to be given full force and effect as if the invalid or
unenforceable provision had not been included herein.
Section 4.05. NOTICES. Notices given under this Agreement may be given
by registered or certified mail, return receipt requested, or by delivery to the
respective addresses of the Parties. For Xx. Xxxxxxxx that address shall be 0000
Xxxxxxxxxxx, Xxxxxxx, Xxxxx 00000. For the Company, it shall be addressed to Xx.
Xxxxx Xxxxx, CEO, Sonicport, Inc. 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000. A
mailed notice shall be deemed given two (2) business day after mailing.
Section 4.06. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
Section 4.07. ASSIGNMENT. This Agreement may not be assigned or
encumbered in any way by Xx. Xxxxxxxx. The Company may assign this Agreement to
any successor
(whether by merger, consolidation, or purchase of the Company's stock) to all or
a controlling interest in the Company's business, in which case this Agreement
shall be binding upon and inure to the benefit of such successor(s) and
assign(s).
Section 4.08. LIMITATION ON WAIVER. A waiver of any term, provision or
condition of this Agreement shall not be deemed to be, or constitute a waiver of
any other term, provision or condition herein, whether or not similar. No waiver
shall be binding unless in writing and signed by the waiving party.
Section 4.09. ATTORNEYS' FEES. In the event that any proceeding is
commenced involving the interpretation or enforcement of the provisions of this
Agreement, the Party prevailing in such proceeding shall be entitled to recover
its reasonable costs and attorneys' fees.
Section 4.10. ARBITRATION. If a dispute or claim shall arise with
respect to any of the terms or provisions of this Agreement, or with respect to
the performance by either of the parties under this Agreement, then either party
may, by notice as herein provided, require that the dispute be submitted under
the Commercial Arbitration Rules of the American Arbitration Association to an
arbitrator in good standing with the American Arbitration Association within
fifteen (15) days after such notice is given. The written decision of the single
arbitrator ultimately appointed by or for both parties shall be binding and
conclusive on the parties. Judgment may be entered on such written decision by
the single arbitrator in any court having jurisdiction and the parties consent
to the jurisdiction of the courts of the state of California for this purpose.
Any arbitration undertaken pursuant to the terms of this section shall occur in
the state of Texas.
Section 4.11. TAXES. Any income taxes required to be paid in connection
with the payments due hereunder shall be borne by the party required to make
such payment. Any withholding taxes in the nature of a tax on income shall be
deducted from payments due, and the party required to withhold such tax shall
furnish to the party receiving such payment all documentation necessary to prove
the proper amount to withhold of such taxes and to prove payment to the tax
authority of such required withholding.
Section 4.12. NOT FOR THE BENEFIT OF CREDITORS OR THIRD PARTIES. The
provisions of this Agreement are intended only for the regulation of relations
among the parties. This Agreement is not intended for the benefit of creditors
of the parties or other third parties and no rights are granted to creditors of
the parties or other third parties under this Agreement.
IN WITNESS WHEREOF, this Agreement is executed in Los Angeles,
California on the dates set forth below.
Dated: April 2, 2001
---------------
Xxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
US DATAWORKS, INC.
Dated: April 2, 2001 /s/ Xxxxx Xxxxx
--------------- ---------------
Xxxxx Xxxxx
President and CEO
Sonicport, Inc.
