EXHIBIT 10.4
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
This Employment and Confidentiality Agreement (the "Agreement") is made
and entered into as of June 1, 2004 (the "Effective Date") by and between Xxxx
X. Xxxxxx ("Employee") and Westech Capital Corp. ("Westech") and its
subsidiaries. For purposes of this Agreement, references made to "the Company"
are to Westech and its subsidiaries.
WHEREAS the Company and Employee have decided to reflect the terms of
Employee's employment with the Company in a written document and which shall
govern the material terms of Employee's employment by the Company. In addition
to the terms of this Agreement, Employee shall be subject to certain policies
and procedures published by the Company, or made known to Employee from time to
time. Such policies and procedures are incorporated within this Agreement as if
fully set forth herein.
NOW THEREFORE, in consideration of the premises and mutual agreements
hereafter set forth, and upon the terms and conditions contained in this
Agreement, Employee and the Company hereby agree as follows:
1. Conditions of Employment.
1.1. Compliance with Company Policies.
Employee shall be subject to the policies and procedures
enacted by the Company from time to time and made known to
Employee either through publication or by direct discussion with
Employee.
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1.2. Compliance with Applicable Rules and Regulations.
Employee shall be subject to all of the Rules and
Regulations of the Securities and Exchange Commission and the
National Association of Securities Dealers and the Company
reserves the right to terminate Employee should he/she not remain
compliant with these Rules and Regulations.
1.3. Other Business Interests.
Employee shall not be employed by or receive any other
employment compensation from any other person or entity except as
may be agreed to by the Company in writing. All revenues
generated from Employee's efforts shall at all times belong to
the Company unless otherwise agreed to pursuant to written
agreement between Company and Employee.
1.4. Term and Termination.
Employee's employment with the Company shall be "at will"
and may be terminated by either Employee or Company at any time
and for any or no particular reason or cause with or without
advance notice to the other.
2. Duties, Compensation and Benefits.
2.1. Title.
Chief Financial Officer.
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2.2. Capacity.
Employee shall serve as an employee of the Company and shall
perform such customary, appropriate and reasonable duties as are
performed by an employee as may be delegated to Employee by the
Board of Directors of the Company (the "Board").
2.3. Schedule.
Employee shall be employed on a full time basis and shall
devote all of his/her working time, intentions and energies to
the Company. Employee shall at all times perform his/her duties
and obligations faithfully, diligently and to the best of their
abilities.
2.4. Salary.
During employment with the Company, Employee shall be paid
$10,416.67 per month for each month of employment in accordance
with the Company's standard payroll practice. Salary shall be
subject to annual review and adjustment at the discretion of the
Board or any committee or individual appointed by the Board to
perform such function.
2.5. Bonus.
Employee is eligible for annual bonus based upon performance
and Company profitability. If Employee is terminated or
terminates his/her employment, he/she shall not be entitled to
any additional bonus.
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2.6. Business Expenses.
The Company shall reimburse Employee for reasonable business
expenses necessarily and appropriately incurred by Employee in
performing his/her duties hereunder in accordance with such
policies and procedures regarding employee expenses as the
Company may from time to time put in effect.
2.7. Benefits.
In addition to salary, bonuses, commissions and stock
options, Employee shall be entitled to participate in any
Employee benefit program established from time to time for
employees of the Company as determined by eligibility
requirements established by the Company or such employee benefit
programs.
2.8. Holiday and Vacation.
Employee shall be entitled to all holidays provided under
the Company's regular holiday schedule published from time to
time by Company. In addition, Employee shall be entitled to
vacation time in accordance with the policies established by the
Company from time to time.
3. Confidential Information.
Employee understands and agrees that in connection with the
performance of their obligations and duties, Employee has and
will receive certain proprietary, confidential or other
information concerning the Company that the Company regards as
highly confidential. In addition, Employee acknowledges and
agrees that he/she will receive special and important training in
regard to the performance of the business activities.
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The information provided to Employee may include, without
limitation or designation as such, business strategies, terms of
contracts and business relationships, pricing information and
other information that is not generally known to the public.
Employee acknowledges and agrees that all such information,
including information obtained through special training by the
Company, is and will at all times remain the sole and exclusive
property of the Company. Employee acknowledges and agrees that
they will, during the term of their employment with the Company
and at all times thereafter hold such information in confidence
and not disclose any such information to any third party except
as authorized in advance in writing by the Company or directly in
connection with the performance of the employees obligations
hereunder. In the event of the termination of Employee's
employment with the Company, Employee shall promptly return all
confidential and propriety information in Employee's possession
to the Company. Employee agrees that notwithstanding the
termination of the employee's employment relationship with the
Company that his/her agreement to keep the Company's confidential
and proprietary business information confidential will survive
the termination of such employment relationship.
In addition, Employee agrees and understands that the
damages which will be incurred by the Company as a result of the
breach of this confidentiality provision are incalculable.
Employee agrees that in addition to any remedy available to the
Company provided by law, that Company will be entitled to
injunctive relief, including but not limited to obtaining such
temporary orders of the Court as may be necessary and appropriate
in order to enforce this provision.
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4. Miscellaneous.
4.1. Successors and Assigns.
This Agreement shall be bind on and inure to the benefit of
the parties hereto and their heirs, executors, legal
representatives and successors. This Agreement may not be
assigned, in whole or in part, without the prior written
agreement of both parties hereto, except with respect to the
confidentiality provisions contained in paragraph 3 hereof. Any
attempt to assign the provisions of this Agreement (except for
paragraph 3) shall be null and void.
4.2. Withholding.
Employee hereby agrees to make appropriate arrangements with
the Company for the satisfaction of all federal, state or local
income tax withholding requirements and other federal, social
security, employee tax requirements applicable to this Agreement.
4.3. Governing Law.
This Agreement is made and entered into and is to be
governed by and construed in accordance with the laws of the
State of Texas applicable to agreements made and to be performed
entirely within such state, without regard of the conflict of law
principals for any such state. Employee agrees that there are
sufficient contacts within the State of Texas to enforce this
provision.
4.4. Waiver.
The failure of either party at any time to require a
performance by the other party of any provision hereof shall not
effect in any way the full right to require such performance at
any time thereafter nor shall a waiver by either party of a
breach of any provision
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hereof be taken or held to be a continuing waiver of such
provision or a waiver of any other breach under any other
provision of this Agreement.
4.5. Caption.
The captions of the sections which are referenced above are
inserted as a matter of convenience only and are in no way to
define, limit or describe the scope of this Agreement or
provisions hereof.
4.6. Entire Agreement/Interpretation.
This Agreement sets forth the entire agreement and
understanding between the parties hereto with respect to the
subject matter hereof and supercedes all prior contracts,
agreements, arrangements, communications, discussions,
representations and warranties, whether oral or written, between
the parties with respect to the subject matter. This Agreement
may be amended only by a written instrument signed by both
parties hereto making specific reference to this Agreement and
express a plan or intention to modify it. The parties acknowledge
that this Agreement has been drafted through mutual efforts of
the parties and that it shall not be construed more harshly
against any party hereto.
4.7. Counterpart.
This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original and all of which
together shall constitute on and the same agreement.
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In witness whereof the parties hereto have executed this Employment
Agreement as of the date first written above.
WESTECH CAPITAL CORP.
By: /s/ XXXX X. XXXXXXX
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Printed Name: Xxxx X. Xxxxxxx
Its: President
EMPLOYEE
/s/ XXXX X. XXXXXX
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Printed Name: Xxxx X. Xxxxxx
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