Contract
10.4 Employment
Agreement with Xxxxx Xxxxxxxxx
THIS EMPLOYMENT
AGREEMENT is made and entered into as of this 20th day of
July, 2010, by and between MARKETING WORLDWIDE CORP, a Nevada corporation, whose
address is 0000 Xxxxx Xxxxxxxx Xx., Xxxxxx, Xxxxxxxx 00000 (hereinafter referred
to as "Employer") and Xxxxx
Xxxxxxxxx, whose address is 0000 Xxxxx Xxxx, Xxxxxxxx, XX 00000
(hereinafter referred to as "Employee").
WITNESSETH
WHEREAS,
Employer wishes to secure the employment of Employee upon the terms and
conditions hereinafter set forth; and
WHEREAS,
Employer is engaged in the business of the development, design, marketing and
sale of automotive accessories to select global customers; and
WHEREAS,
Marketing WorldWide is seeking employee’s services as its CEO, including
services to instigate and supervise sales and marketing and general operations
of the company.
WHEREAS,
the business of the development, design and supply of automotive accessories to
the customers is highly competitive and the success of Employer depends in great
part of the development, maintenance and retention of its Trade Secrets (as
defined in Paragraph 7); and
WHEREAS,
Employer has compiled and continues to supplement its Trade Secrets;
and
WHEREAS,
the unauthorized use, disclosure or appropriation of Employer's Trade Secrets by
Employee during or after Employee's employment with Employer would cause such
irreparable damage to Employer that Employer has taken preventative measures,
including the execution of this Agreement and similar agreements and the
observance of operating practices designed to secure and restrict the
dissemination of its Trade Secrets; and
WHEREAS,
Employee acknowledges that the Trade Secrets to be disclosed to Employee during
the course of employment are of such value and importance to Employer that it is
reasonably necessary to restrict Employee from any business related contact or
relationship whatsoever with certain Customers and employees of Employer and
from disclosing, appropriating or using Employer's Trade Secrets without
Employer's permission both during employment and thereafter, regardless of the
reasons for termination of the employment relationship; and
WHEREAS,
Employer and Employee wish to have an employment relationship on the basis of
the premises recited above, the attached job description and according to the
specific provisions set forth below;
NOW,
THEREFORE, in consideration of the above recitals of fact (which recitals are
hereby incorporated as covenants of the parties hereto) and the several
promises, covenants and agreements hereinafter set forth, the parties agree as
follows:
1. Employment. The
Employer hereby employs Employee and Employee hereby accepts such employment, in
accordance with the terms and conditions hereinafter set forth.
2. Employment
Term. The term of this Agreement shall commence on July 20,
2010 ("Commencement Date") and shall terminate on July 20, 2011. ("Termination
Date"), or on Employee's death or any other termination of this Agreement,
whichever is first to occur. If Employee continues employment beyond
the termination date of Employee's contract and the parties hereto have not
executed a subsequent Employment Agreement, such continued employment shall
continue on the same terms and conditions as set forth in this Agreement, until
the parties execute a new Employment Agreement.
3. Duties
and Responsibilities. During the term of this Agreement,
Employee will serve as CEO. Employee will have the responsibility
customarily associated with the position of a CEO in a publically traded
company. Employee shall perform other services, especially in regards to sales
and marketing and the general operations of the company as Employer may, at its
sole and absolute discretion, deem necessary and appropriate in the furtherance
of Employer's business and as specified in, but not limited to the job
description. Employee will report to the Board of Directors of
the company. Employee agrees to adhere to all rules and policies established by
Employer.
4. Full-Time
Effort/Extent of Service. Employee agrees that he will at all
times, faithfully, industriously and to the best of his ability, experience and
talents, perform all of his duties and responsibilities hereunder and devote his
full-time attention and energy to the business of the Employer.
5. Compensation. As
compensation for services rendered under this Agreement:
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(a)
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The
Employer shall pay Employee a salary of $5,000 per month, less
withholding as required by law;
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(b)
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A
signing bonus of 100,000 stock options vested in equal allocations over
one year at an exercise price as of the date of
grant.
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(c)
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Compensation
will be reevaluated after the first 60 days and after 120 days and new
compensation levels will be mutually agreed
upon.
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(d)
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An
additonal issuance of 1,000,000 shares after the second evaluation period
of 120 days vesting in equal portions over two
years.
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(e)
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Employee
will be eligible to participate in the Management Stock Option Plan, the
details of which will be mutually agreed upon and become part of this
agreement
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(f)
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Employer
may, in its sole and absolute discretion, pay Employee additional
compensation (bonuses) for services performed in connection with this
Agreement;
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(g)
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In
addition to the Employee's Salary, the Employee shall be entitled to
medical and vacation benefits as established by the company for all
employees.
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6. Death
During Employment. If Employee should die during the term of
this employment, the Employer shall pay to Employee's estate the compensation
which would otherwise be payable to him up to the end of the month in which his
death occurs.
7. Confidentiality.
Employee acknowledges and agrees that Employee will be performing certain
services that involve access to confidential information concerning the Employer
and its operations relating to design and development, customer lists or
customer contacts, pricing formulas, internal business forms, technical
procedures, services, marketing strategies or plans of the Employer or its
clients, matters of a technical or business nature, which the Employer has
expended substantial resources in developing and cultivating ("Trade Secrets"),
Employee agrees that he shall not, either during the term of this Agreement or
anytime thereafter, use or disclose any Trade Secrets of Employer or any other
proprietary information, knowledge or data concerning the operations, business
affairs or practices of the Employer, its clients and others doing business with
it.
8. Breach of
Trust. Employee acknowledges that he will learn and come in
contact with certain proprietary information or facilities that Employer
considers Trade Secrets. Employee understands that if, either during
employment or anytime thereafter, Employee discloses to others or uses for
Employee's own benefit or copies or makes notes of any of these Trade Secrets
and disseminates or uses the same, such conduct will constitute a breach of the
confidence and trust bestowed on Employee by Employer and which may result in
Employee being liable to Employer for damages.
9. Business
Records. Employee agrees that all documents, reports,
memoranda, files, manuals, books, writings, materials, computer software
programs, disks and other data storage or processing media, and all copies
thereof, which contain any confidential information (collectively "Business
Records") are the sole and exclusive property of the Employer and shall remain
as such upon termination of Employee's employment with Employer (regardless of
whether such business records were created, modified or developed, in whole or
in part, by Employee). At no time during Employee's employment with
the Employer or following the termination thereof, shall Employee have any right
or privilege of copying or obtaining any Business Records for any purpose
whatsoever and no Business Records shall be removed from the office of the
company, without the prior written consent of the president of
Employer.
10. Authorization. Employee
authorizes Employer to perform a back ground check on employee, conducted by a
professional service company and agrees to supply references to employer on
request.
11. Covenant
Not to Compete. Employee agrees that during the term of
Employee’s employment and for an eighteen (18) months period following the
termination of his employment, he will not, for any reason whatsoever, directly
or indirectly (whether as an employee, agent, representative, consultant,
independent contractor or in any capacity of another company or otherwise) (i)
contact, solicit or attempt to solicit, any client, customer, agent,
representative or employee of the Employer, (ii) perform the same or similar
services performed by Employer for any of Employer’s current customers or former
customers for whom Employer has performed such services, or (iii) otherwise
interfere with or attempt in any manner to disrupt any relationship or agreement
between the company and any of its clients, customers, employees, agents,
representatives or others doing business with the company.
12. Termination
of Employment. Employee agrees and understands that his
employment with the Employer is and shall always remain "AT
WILL." This means that the company, after the end of the first term,
may terminate Employee's employment at any time, with or without cause with a
two (2) week notice, for any or no reason whatsoever. During the
first four (4) months of the agreement, either party may terminate this
agreement with seven (7) day notice and without cause. Nothing in this Agreement
shall be construed to require the Employer to terminate the Employee's
employment for "just cause." Employee acknowledges and understands
that under no circumstances whatsoever shall verbal statements made by any
individual employed by or affiliated with Employer, including without
limitation, the owner, president, chairman of the board of directors or any
other individual, alter or in any way modify the "at will" nature of Employee's
employment. Employee further acknowledges that the only allowable
method to alter, change or modify the "at will" nature of this Employment
Agreement and Employee's employment with Employer is through the mutual assent
of Employer and Employee in writing. No representative of the company
has the authority to enter into any agreement or promise to employ Employee on
any terms and conditions different from those set forth herein, except the
president of the company and then only when done so by written agreement signed
by the president and employee.
13. Rights of
Employee Upon Termination. In the event that Employee is
terminated, Employee shall only be entitled to receive the unpaid salary accrued
to the date of termination. The amounts paid to Employee by Employer
shall be as full settlement of its obligations to Employee
hereunder.
14. Forfeiture
of Benefits. In the event Employee breaches any provision of
this Agreement, Employee will forfeit his right to further participation in any
of Employer's benefit packages or plans. This provision shall not be
construed and is not intended to be a limitation upon any other remedy that
Employer may have for breach of this Agreement.
15. Damages
for Breach of Contract. In the event of a breach of this
Agreement by either the Employer or the Employee resulting in damages to the
other party, such party may recover from the party in breach hereof any and all
damages that may be sustained, including actual, reasonable attorney fees and
court costs.
16. Assignment. The
parties agree that this Agreement is personal to the Employer and that Employee
cannot assign Employee's interest in this Agreement. The parties
further agree that Employer may assign its interest in this Agreement upon
notification of the same to Employee.
17. Enforceability.
The Employee expressly agrees and acknowledges that a loss arising from a breach
of any provision under Paragraphs 7, 8, 9, or 10 may not be reasonably and
equitably compensated by money damages. Therefore, the Employee
agrees that in a case of any such breach, the Employer shall be entitled to
injunctive and/or other extraordinary relief in order to prevent the Employee
from engaging in any of the foregoing prohibited activities, which relief shall
be cumulative and in addition to any and all other additional remedies to which
the Employer may be entitled to at law or equity. In the event that
any court of competent jurisdiction shall determine that any part or all of the
provisions of Paragraphs 7, 8, 9, or 10 are unenforceable or invalid due to the
scope of the activities restrained, the geographical extent of the restraints
imposed, the duration of the restraints imposed, or otherwise, the Parties
hereby expressly intend, agree and stipulate that under such circumstances, the
provisions of Paragraph 7, 8, 9, or 10 shall be enforceable to the fullest
extent and scope permitted by law and that the Parties shall be bound by any
judicial modifications to the provisions therein which said court of competent
jurisdiction may make in order to carry out the intentions of the Parties as
provided herein.
18. Counsel/Ambiguity. Each
party hereto agrees, represents and acknowledges that such party (i) is entering
into this Agreement voluntarily, after and due consideration, (ii) has read this
Agreement and the Exhibits and documents delivered concurrently herewith and
fully understands all the terms and conditions thereof and the ramifications and
consequences of same, and (iii) has received the advice and counsel of such
party's own attorney prior to entering into this Agreement and any Exhibits and
documents delivered concurrently herewith.
19. Severability. It
is agreed that if any part, term or provision of this Agreement is held by the
courts or any other governing tribunal to be illegal or in conflict with any
law, rule or regulation then, the validity of the remaining portions or
provisions shall not be affected and the rights and obligations of both parties
hereto shall be construed and enforced as if this Agreement did not contain the
particular part, term or provision held to be invalid.
20. Notices. All
notices given shall be in writing and shall be sent by registered or certified
mail to the parties at their respective addresses set forth above or such other
addresses as either party may make known to the other.
21. Entire
Agreement. This Agreement embodies the entire agreement
between the Employer and Employee. There are no other promises,
terms, conditions or obligations other than those contained herein and this
Agreement shall supersede all previous communications, representations or
agreements, either verbal or written, between the parties hereto or their
agents.
22. Captions. The
captions contained in this Agreement are for reference only and do not form a
substantive part of this Agreement and shall not restrict or enlarge the
substantive provisions of this Agreement.
23. Written
Modification. There shall be no modification of this
Agreement, except in writing, and executed with the same formalities as this
Agreement. No persons other than Employer and Employee shall have
authority to agree to modify or change this Agreement.
24. Choice of
Forum. The parties agree that all actions arising directly or
indirectly out of this Agreement shall be litigated only in the United States
District Court - Eastern District of Michigan or the Xxxxx County, Michigan
Circuit Court, and the parties hereby consent to the jurisdiction and venue of
those courts over the parties to this Agreement.
25. Law
Governing. It is mutually understood and agreed that this
Agreement shall be governed and construed in accordance with the laws of the
State of Michigan both as to interpretation and performance.
("Employer") MARKETING
WORLDWIDE CORP
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By:
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/S/ Xxxxxxx Winzkowski
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Xxxxxxx
Winzkowski, President
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("Employee")
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/s/ Xxxxx Xxxxxxxxx
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Xxxxx
Xxxxxxxxx
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APPEDIX
A
Job
Description
Typical
responsibilities of a CEO
