EXHIBIT 10.4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated this 18/th/ day of November 1999, between
ebaseOne Corporation, a Delaware corporation, currently having its principal
place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 (the "Company"),
and Xxxxx Xxxxxxx (the "Executive") an individual currently residing in Houston,
Texas.
WHEREAS, the Company desires to employ Executive and Executive desires to
be employed by the Company, as Senior Vice President of Technology.
WHEREAS, the Executive is willing to enter into an agreement with the
Company upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereto agree as follows:
1. Term of Agreement. Subject to the terms and conditions hereof, the term of
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employment of the Executive under this Employment Agreement shall be for the
period commencing on the date hereof (the "Commencement Date") and terminating
on December 31, 2002, unless sooner terminated as provided in accordance with
the provisions of Section 5 hereof. (Such term of employment is herein
sometimes called the "Employment Term.")
2. Employment. As of the Commencement Date, the Company hereby agrees to
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employ the Executive as Senior Vice President of Technology of the Company, and
the Executive hereby accepts such employment and agrees to perform his duties
and responsibilities hereunder in accordance with the terms and conditions
hereinafter set forth.
3. Duties and Responsibilities.
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(a) Duties. Executive shall perform such duties as are usually performed by a
Senior Vice President of Technology of a business similar in size and scope
as the Company and such other reasonable additional duties as may be
prescribed from time-to-time by the Company's board of directors which are
reasonable and consistent with the Company's operations, taking into
account Executive's expertise and job responsibilities. This agreement
shall survive any job title or responsibility change agreed to by
Executive. Executive shall report directly to the Chief Executive Officer
of the Company regarding implementation of all business matters. All
actions of Executive shall be subject and subordinate to the review and
approval of the board of directors. No other person or group shall be given
authority to supervise or direct Executive in the performance of his
duties. The board of directors shall be the final and exclusive arbiter of
all policy decisions relative to the Company's business.
(b) Devotion of Time. During the term of this agreement, Executive agrees to
devote sufficient time and attention during normal business hours to the
business and affairs of the company
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to the extent necessary to discharge the responsibilities assigned to
Executive and to use reasonable best efforts to perform faithfully and
efficiently such responsibilities.
4. Compensation and Benefits During the Employment Term:
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(a) Base Compensation. The Executive's base compensation from the Commencement
Date through December 31, 2000, shall be at the rate of $9,583.33 per
month, payable in regular semi-monthly installments in accordance with the
Company's practice for its executives, less applicable withholding for
income and employment taxes as required by law and other deductions as to
which the Executive shall agree. Such base compensation shall be subject to
increases as and when determined by the Company's board of directors in its
sole discretion.
(b) Bonus Compensation. In addition to the Executive's base compensation,
Executive will be entitled to a performance bonus as determined by the
board of directors, as recommended by the Chief Executive Officer.
(c) Warrants. The Executive will be entitled to receive five year warrants to
purchase an aggregate 750,000 shares of Company common stock having the
terms set forth in the warrant agreements attached hereto as Exhibit "A."
(d) Expense Reimbursement. The Executive shall be entitled to reimbursement of
all reasonable, ordinary and necessary business related expenses incurred
by him in the course of his duties and upon compliance with the Company's
procedures.
(e) Participation in Employee Benefit Plans. Executive shall be entitled to
participate, subject to eligibility and other terms generally established
by the Company's board or directors, in any employee benefit plan
[including but not limited to life insurance plans, stock option plans,
group hospitalization, hearth, dental care (which health insurance shall
also cover Executive's dependents) profit sharing, pension and other
benefit plans], as may be adopted or amended by the Company from time-to-
time.
5. Termination. Subject to the notice and other provisions of this Section 5,
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the Company shall have the right to terminate the Executive's employment with
the Company, and the Executive shall have the right to resign from such
employment, at any time and for no stated reason.
(a) Disability. The Company shall have the right to terminate the employment
of the Executive under this Agreement for disability in the event Executive
suffers an injury, illness or incapacity as defined in the Company's Long
Term Disability Insurance Policy in effect as of the date hereof for a
period of more than six (6) months provided that during such six month
period the Company shall have given at least ten (10) days written notice
of termination; provided further, however, that if the Executive is
eligible to receive disability payments pursuant to a disability policy
paid for by the Company, the Executive shall assign such benefits to the
Company for all periods as to which he is receiving full payment under this
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agreement. If Executive is determined to be disabled, as defined within the
Americans with Disabilities Act, the Company will make reasonable
accommodations, including but not limited to the following: (i) job
restructuring; (ii) modification of work schedules, (iii) job
reassignments, (iv) acquisition of devices to help accommodate an
individual with a disability; and (v) use of interpreters or other support
personnel for an individual with a disability.
(b) Death. This agreement shall terminate upon the death of Executive.
(c) With Cause. The Company may terminate this agreement effective upon
delivery of written notice to Executive given at any time (without any necessity
for prior notice) if any of the following shall occur:
(i) any material breach of Executive's obligations of this Agreement, not
cured after ten (10) days notice from the board of directors;
(ii) Executive's gross negligence in the performance of his duties
hereunder;
(iii) any material acts or events which may inhibit Executive from fully
performing his or her responsibilities to the Company in good faith,
and upon which the board of directors in the exercise of its
reasonable judgment, determines that the Executive has committed any
of the following: (w) a felony criminal conviction; (x) any other
criminal conviction involving Executive's lack of honesty or moral
turpitude; (y) drug or alcohol abuse; or (z) acts of dishonesty,
gross carelessness or gross misconduct.
In the event Executive's employment with the Company is terminated pursuant
to items 5(a), (b) or (c), Executive or his beneficiary shall be entitled to
receive all base compensation earned by Executive up to the date of termination,
all unreimbursed expenses, and any bonus earned in respect of a prior year and
not yet paid. For a termination by the Company without good cause, Executive
shall be entitled to receive the greater of (i) the remaining base salary at the
then base salary rate for the remainder of the Employment Term or (ii) the base
salary rate for the period of six months, and all unreimbursed expenses, any
bonus earned in respect of a prior year and not yet paid, and the pro rata
portion of any bonus for the current year.
6. Revealing of Trade Secrets, etc. Executive acknowledges the interest of
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the Company in maintaining the confidentiality of information related to its
business and shall not at any time during the Employment Term or thereafter,
directly or indirectly, reveal or cause to be revealed to any person or entity
the supplier lists, customer lists or other confidential business information of
the Company; provided, however, that the parties acknowledge that it is not the
intention of this paragraph to include within its subject matter (a) information
not proprietary to the Company, (b) information which is then in the public
domain, or (c) information required to be disclosed by law.
7. Arbitration. If a dispute should arise regarding this agreement, all
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claims, disputes, controversies, differences or other matters in question
arising out of this relationship shall be settled finally, completely and
conclusively by arbitration of a single arbitrator in Houston, Texas, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association (the "Rules"). Arbitration shall be initiated by written demand.
This agreement to arbitrate shall be
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specifically enforceable only in the District Court of Xxxxxx County, Texas. A
decision of the arbitrator shall be final, conclusive and binding on the Company
and the Executive, and judgement may be entered in the District Court of Xxxxxx
County, Texas, for enforcement and other benefits. On appointment, the
arbitrator shall then proceed to decide the arbitration subjects in accordance
with the Rules. Any arbitration held in accordance with this paragraph shall be
private and confidential and no person shall be entitled to attend the hearings
except the arbitrator, Executive, Executive's attorneys, and an designated
representatives of the Company and their respective attorneys. The matters
submitted for arbitration, the hearings and proceedings and the arbitration
award shall be kept and maintained in strictest confidence by Executive and the
Company and shall not be discussed, disclosed or communicated to any persons. On
request of any party, the record of the proceeding shall be sealed and may not
be disclosed except insofar, and only insofar, as may be necessary to enforce
the award of the arbitrator and any judgement enforcing an award. The prevailing
party shall be entitled to recover reasonable and necessary attorneys' fees and
costs from the non-prevailing party.
8. Confidentiality. In the course of the performance of Executive's duties
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hereunder, Executive recognizes and acknowledges that Executive may have access
to certain confidential and proprietary information of Employer or any of its
affiliates. Without the prior written consent of Employer, Executive shall not
disclose any such confidential or proprietary information to any person or firm,
corporation, association, or other entity for any reason or purpose whatsoever,
and shall not use such information, directly or indirectly, for Executive's own
behalf or on behalf of any other party. Executive agrees and affirms that all
such information is the sole property of Employer and that at the termination
and/or expiration of this Agreement, at Employer's written request, Executive
shall promptly return to Employer any and all such information so requested by
Employer.
(a) The provisions of this Section 8 shall not, however, prohibit Executive
from disclosing to others or using in any manner information that:
(i) has been published or has become part of the public domain other
than by acts, omissions or fault of Executive;
(ii) has been furnished or made known to Executive by third parties
(other than those acting directly or indirectly for or on behalf of
Executive) as a matter of legal right without restriction on its use
or disclosure;
(iii) was in the possession of Executive prior to obtaining such
information from Employer in connection with the performance of this
Agreement; or
(iv) is required to be disclosed by law.
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9. Covenants Not to Compete.
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(a) Executive's Acknowledgment. Executive agrees and acknowledges that in order
to assure the Company that it will retain its value as a going concern, it is
necessary that Executive undertake not to utilize his special knowledge of the
business and his relationships with customers and suppliers to compete with the
Company. Executive further acknowledges that:
(i) the Company is and will be engaged in the business;
(ii) Executive will occupy a position of trust and confidence with the
Company prior to the date of this agreement and, during such period
and Executive's employment under this agreement, Executive has, and
will become familiar with the Company's trade secrets and with other
proprietary and confidential information concerning the Company;
(iii) the agreements and covenants contained in this Section 9 are
essential to protect the Company and the goodwill of the business;
and
(iv) Executive's employment with the Company has special, unique and
extraordinary value to the Company and the Company would be
irreparably damaged if Executive were to provide services to any
person or entity in violation of the provisions of this agreement.
(b) Competitive Activities. Executive hereby agrees that for a period
commencing on the date hereof and ending one year following the later of (i)
termination of Executive's employment with the Company for whatever reason, and
(ii) the conclusion of the period, if any, during which the Company is making
payments to Executive, he will not, directly or indirectly, as employee, agent,
consultant, stockholder, director, co-partner or in any other individual or
representative capacity, own, operate, manage, control, engage in, invest in or
participate in any manner in, act as a consultant or advisor to, render services
for (alone or in association with any person, firm, corporation or entity), or
otherwise assist any person or entity (other than the Company) that engages in
or owns, invests in, operates, manages or controls any venture or enterprise
that directly or indirectly engages or proposes in engage in the business of the
manufacturing, distribution or sale of (i) products manufactured, distributed,
sold or licensed by the Company or services provided by the Company at the time
of termination or (ii) products or services proposed at the time of such
termination to be manufactured, distributed, sold, licensed or provided by the
Company within the United States (the "Territory"); provided, however, that
nothing contained herein shall be construed to prevent Executive from investing
in the stock of any competing corporation listed on a national securities
exchange or traded in the over-the-counter market, but only if Executive is not
involved in the business of said corporation and if Executive and his associates
(as such term is defined in Regulation 14(A) promulgated under the Securities
Exchange Act of 1934, as in effect on the date hereof), collectively, do not own
more than an aggregate of two percent of the stock of such corporation. With
respect to the Territory, Executive specifically acknowledges that the Company
has conducted the business throughout those areas comprising the Territory and
the Company intends to continue to expand the business throughout the Territory.
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(c) Blue Pencil. If an arbitrator shall at any time deem the terms of this
agreement or any restrictive covenant too lengthy or the Territory too
extensive, the other provisions of this Section 8 shall nevertheless stand, the
restrictive period shall be deemed to be the longest period permissible by law
under the circumstances and the Territory shall be deemed to comprise the
largest territory permissible by law under the circumstances. The arbitrator in
each case shall reduce the restricted period and/or the Territory to permissible
duration or size.
10. Opportunities. During his employment with the Company, and for one year
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thereafter, Executive shall not take any action which might divert from the
Company any opportunity learned about by him during his employment with the
Company (including without limitation during the Employment Term) which would be
within the scope of any of the businesses then engaged in or planned to be
engaged in by the Company.
11. Survival. In the even that this Agreement shall be terminated, then
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notwithstanding such termination, the obligations of Executive pursuant to
Sections 6,7,8 9, and 10 of this agreement shall survive such termination.
12. Contents of Agreement, Parties in Interest, Assignment, etc. This
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Agreement sets forth the entire understanding of the parties hereto with respect
to the subject matter hereof. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors and assigns of the parties hereto,
except that the duties and responsibilities of Executive hereunder which are of
a personal nature shall neither be assigned nor transferred in whole or in part
by Executive. This Agreement shall not be amended except by a written
instrument duly executed by the parties.
13. Severability. If any term or provision of this Agreement shall be held to
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be invalid or unenforceable for any reason, such term or provision shall be
ineffective to the extent of such invalidity or unenforceability without
invalidating the remaining terms and provisions hereof, and this Agreement shall
be construed as if such invalid or unenforceable term or provision had not been
contained herein.
14. Notices. Any notice, request, instruction or other document to be given
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hereunder by any party to the other party shall be in writing and shall be
deemed to have been duly given when delivered personally or five (5) days after
dispatch by registered or certified mail, postage prepaid, return receipt
requested, to the party to whom the same is so given or made:
If to the Company addressed to:
Xxxxxxx X. Xxxxxxx
ebaseOne Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
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with a copy to:
Xxxxxx X. Xxxxxxxxx
Xxxxxx & Xxxxxxxxx, P.C.
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
If to Executive addressed to:
Xxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
or to such other address as the one party shall specify to the other party in
writing.
15. Counterparts and Headings. This agreement may be executed in one or more
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counterparts, each of which shall be deemed an original and all which together
shall constitute one and the same instrument. All headings are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
EBASEONE CORPORATION
By: /s/ Xxxxxxx Skamsrer
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Xxxxxxx Xxxxxxx
Director and Chief Executive Officer
EXECUTIVE
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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