EXHIBIT 10.4
EMPLOYMENT AGREEMENT BETWEEN
XXX XXXXXX AND THE REGISTRANT
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), is made and entered into
this 27th day of October, 1998, by and between XXX XXXXXX, whose mailing address
is 0000 Xxxxxxxx Xxx Xxxxxxx, Xxxxx 00000 (hereinafter "EMPLOYEE"), and ONE
COMMERCE CORPORATION, a Texas corporation having its principal office at 000 XX
00 XXXXX, XXXXX 000, XXX XXXXXXXXX, XXXXX 00000 (hereinafter "Employer").
W I T N E S S E T H:
This Agreement is made and entered into under the following
circumstances:
(1) Whereas the Employer is engaged in the business of DESIGNING,
DEVELOPING, MAINTAINING, AND MARKETING ELECTRONIC COMMERCE
INTERNET SITES CONTENT; and
(2) Whereas the Employer desires, on the terms and conditions
stated herein, to employ the Employee as VICE PRESIDENT OF
CORPORATE DEVELOPMENT, a position with the rights, duties and
responsibilities as described in this Agreement; and
(3) Whereas the Employee desires, on the terms and
conditions stated herein, to be employed by the
Employer.
NOW, THEREFORE, in consideration of the foregoing recitals, and of the
promises, covenants, terms and conditions contained herein, the parties hereto
agree as follows:
1. EMPLOYMENT AND TERM. Subject to earlier termination as
provided for in Section 8 hereof, the Employer hereby
employs Employee, and Employee hereby accepts
employment with the Employer commencing NOVEMBER 1,
1998 (hereinafter the "EFFECTIVE DATE") and continuing
for a period of ONE YEAR (hereinafter the "TERM OF
EMPLOYMENT"). Upon the expiration of the initial term,
the Term of Employment shall automatically be renewed
for successive one (1) year periods commencing upon the
first anniversary of the Effective Date, unless either
party gives written notice of intent not to renew not
less than sixty (60), nor more than ninety (90), days
prior to the end of any term.
2. DUTIES AND QUALIFICATIONS. Employee shall serve as VICE
PRESIDENT OF CORPORATE DEVELOPMENT of the Employer's, at the
Employer's office located at 000 XX 00 Xxxxx Xxxxx 000 Xxx
Xxxxxxxxx, Xxxxx 00000 or such other locations as requested by
Employer, in accordance with any applicable state and federal
laws and regulations.
During the Term of Employment, Employee will be employed as an employee
of Employer on a full-time basis and will perform all services, acts or things
necessary or advisable to DESIGN AND DEVELOP ELECTRONIC COMMERCE INTERNET SITES
AND EXPAND THE BUSINESS OF EMPLOYER. Furthermore, the Employee will have such
other duties as are reasonably assigned to Employee from time to time by the
Board of Directors of Employer ("Board of Directors") and/or the CEO or
President. Such duties shall include, without limitation:
a. Developing Clients, Vendors, and Contractors
b. Opening new offices
c. Expanding the client base
d. Directing programming efforts
e. Providing strategic advise and implementation for
corporate expansion
f. Assist with the management of sales and
administration
g. Organize and provide forecasts and budgets
relating to the above tasks
3. STATUS OF EMPLOYEE. The parties expressly acknowledge that
Employee, in the performance of services hereunder, is an
employee of Employer. Accordingly, Employer shall deduct from
all compensation paid to Employee pursuant to this Agreement
any sums required by law or any other requirement of any
governmental body.
4. SALARY. Employee shall be entitled to a monthly minimum base
salary $8,000.00, payable semi-monthly at $4,000.00 per pay
period. Any deferred pay will be considered earned and payable
to the employee upon demand.
a. Bonus - Employee will be entitled to participate in
any bonus plans offered by employer without
restriction.
b. Stock Options - Employee will be entitled to
participate in any stock option plans offered by
employer without restriction.
5. VACATION/PERSONAL TIME. Employee shall be entitled to paid
leave FOR VACATION, ILLNESS AND DISABILITY PURPOSES AS
PROVIDED FOR IN THE CURRENT EMPLOYEE POLICY MANUAL. The Board
of Directors may authorize, any additional paid absences for
any reason. Employer and Employee shall mutually agree on
the scheduling of Employee's vacation, holiday and leave time.
6. TERMINATION. Notwithstanding any other provisions of
this Agreement, the Term of Employment shall terminate
upon:
a. the cessation of all of Employer's DESIGNING,
DEVELOPING, MAINTAINING, AND MARKETING ELECTRONIC
COMMERCE INTERNET SITES CONTENT; provided that the
Agreement shall not terminate prior to ninety (90)
days' written notice to Employee of the
discontinuance of business operations; or
b. the death of Employee; or,
c. upon Employee's "disability" (For purposes of this
Agreement, the term "disability" shall mean the
inability of Employee, arising out of any
medically determinable physical or mental
impairment, to perform the services required of
him hereunder for a period of sixty (60)
consecutive days during which sixty (60) day
period Employee's compensation hereunder shall
continue); or,
d. at Employer's option, with 60 days severance pay upon
the existence of "cause." For purposes of this
Agreement, the term "cause" shall be defined as:
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(1) failure of Employee to perform the duties
required of him in this Agreement in a manner
satisfactory to Employer, in Employer's sole
discretion; provided, however, that the Term of
Employment shall not be terminated pursuant to this
subparagraph unless Employer first gives Employee a
written notice ("Notice of Deficiency"). The Notice
of Deficiency shall specify the deficiencies in
Employee's Performance of his duties. Employee shall
have a period of sixty (60) days, commencing on
receipt of the Notice of Deficiency, in which to cure
the deficiencies contained in the Notice of
Deficiency. In the event Employee does not cure the
deficiencies to the satisfaction of Employer, in its
sole discretion, within such sixty (60) day period,
the Employer shall have the right to immediately
terminate the Term of Employment and this Agreement.
The provisions of this subparagraph (1) may be
invoked by Employer any number of times and cure of
deficiencies contained in any Notice of Deficiency
shall not be construed as a waiver of this
subparagraph (1) nor prevent the Employer from
issuing any subsequent Notices of Deficiency;
(2) any dishonesty by Employee in his dealings with
the Employer, the commission of fraud by Employee, or
negligence in the performance of the duties of
Employee;
(3) the arrest or conviction (or plea of guilty or
nolo contendere) of Employee of any felony or other
crime involving dishonesty or moral turpitude;
(4) any violation of any covenant or restriction
contained in Section 11 or Section 12 hereof;
(5) unlawful use of narcotics or other controlled
substances, or use of alcohol or other drugs in a
manner the Employer reasonably determines to be
adverse to the best interests of the Employer;
For all purposes of this Agreement, termination for "cause" shall be
deemed to have occurred in the event of Employee's resignation when, because of
existing facts and circumstances, subsequent termination for "cause" can
reasonably be foreseen.
Except as otherwise provided in Section 6(c), in the event of
termination of this Agreement pursuant to this Section 6, Employee or Employee's
estate, as appropriate, shall be entitled to receive (in addition to any fringe
benefits payable upon death in the case of Employee's death) the salary provided
for in Section 4 hereof (prorated on a daily basis) and any Bonus provided for
in Section 5 hereof (determined as provided in Section 5), up to and including
the effective date of termination.
7. EFFECTS OF TERMINATION. In the event of termination of
this Agreement, except for insolvency of the employer,
neither party shall have any further obligations
hereunder except for (i) obligations accruing prior to
the date of termination and (ii) obligations, promises
or covenants contained herein which are expressly made
to extend beyond the term of this Agreement, including,
without limitation, confidentiality of information,
indemnities and Employee's covenants not to compete and
to pay damages (which covenants and agreements shall
survive the termination or expiration of this
Agreement). If the Employee's employment terminates
prior to the end of the initial term or any renewal
term of this Agreement, any compensation owed to
Employee shall continue to be calculated based on the
formula for compensation under this Agreement for 60
days. The termination of this Agreement, for whatever
reason, shall not extinguish those
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obligations of Employee specified in the Restrictive
Covenants (hereinafter defined), nor shall the same
extinguish the right of either party to bring an action,
either in law or in equity, for breach of this
Agreement by the other party.
8. TRANSITION FOLLOWING NOTICE OF TERMINATION. Following
any notice of termination of employment hereunder,
whether given by Employer or Employee, Employee will
fully cooperate with Employer in all matters relating
to the winding up of Employee's pending work on behalf
of Employer and the orderly transfer of such work to
the other employees of Employer. On or after the giving
of notice of termination hereunder and during any
notice period, Employer will be entitled to such full-
time or part-time services of Employee as Employer may
reasonably require.
9. NON-COMPETITION. Except for insolvency of the employer
or failure to pay as stated in paragraph #4. During the
Term of Employment and for a continuous period of 2
years thereafter commencing upon expiration or
termination of the Term of Employment, except for
termination resulting from the Employer's cessation of
business operations, Employee shall not without the
written consent of Employer, individually or jointly
with others, directly or indirectly, whether for his
own account or for that of any other person or entity,
own or hold any ownership or voting interest in any
person or entity engaged in DESIGNING, DEVELOPING,
MAINTAINING, AND MARKETING ELECTRONIC COMMERCE INTERNET
SITES CONTENT, or in a business which competes in such
a manner with the business of Employer or Employer's
Facility, and Employee shall not act in any role, nor
provide any assistance, performance or cooperation to
any competitor.
10. NON-DISCLOSURE: NON-SOLICITATION. Except in the
performance of his duties hereunder, at no time during
the Term of Employment or at any time thereafter shall
Employee, individually or jointly with others, for the
benefit of Employee or any third party, publish,
disclose, use or authorize anyone else to publish,
disclose or use, any secret or confidential material or
information relating to any aspect of the business or
operations of the Employer or any information regarding
the business methods, business policies, procedures,
techniques, or trade secrets, or other knowledge or
processes of or developed by Employer (and/or any other
Employee or agent of Employer), any affiliate of the Employer,
any entity in which the Employer has an interest, including,
without limitation,
- business records and plans
- financial statements
- customer lists and records
- trade secrets
- technical information
- products
- inventions
- product design information
- pricing structure
- discounts
- costs
- computer programs and listings
- source code and/or object code
- copyrights and other intellectual property
- and other proprietary information.
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11. Except for disclose affiliation with xxxxxxxxxxxx.xxx.
Moreover, during the Term of Employment, Employee shall
not act as employee, Employer, Independent Contractor,
Partnership, Limited Partnership, General Partnership,
Shareholder, Director or Sole Proprietor, any
competitive or similar business as that of Employer or
otherwise contract with individuals formerly associated
with Employer or any of its affiliates nor employ,
induce or attempt to influence any current employees of
Employer.
12. REASONABLENESS OF RESTRICTIONS REFORMATION;
ENFORCEMENT. The parties hereto recognize and
acknowledge that the geographical and time limitations
contained in Sections 11 and 12 hereof (hereinafter the
"RESTRICTIVE COVENANTS") are reasonable and properly
required for the adequate protection of the Employer's
interest. Employee acknowledges that the Employer will
provide to Employee confidential information concerning
the Employer's business methods and operating practices
in reliance on the covenants contained in the
Restrictive Covenants. It is agreed by the parties
hereto that if any portion of the restrictions
contained in the Restrictive Covenants are held to be
unreasonable, arbitrary or against public policy, then
the restrictions shall be considered divisible, both as
to the time and to the geographical area, with each
month of the specified period being deemed a separate
period of time and each radius mile of the restricted
territory being deemed a separate geographical area, so
that the lesser period of time or geographical area
shall remain effective so long as the same is not
unreasonable, arbitrary or against public policy. The
parties hereto agree that in the event any court of
competent jurisdiction determines the specified period
or the specified geographical area of the restricted
territory to be unreasonable, arbitrary or against
public policy, a lesser time period or geographical
area which is determined to be reasonable, nonarbitrary and
not against public policy may be enforced against Employee. If
Employee shall violate any of the covenants contained herein
and if any court action is instituted by the Employer to
prevent or enjoin such violation, then the period of time
during which the Employee's business activities shall be
restricted, as provided in this Agreement, shall be lengthened
by a period of time equal to the period between the date of
the Employee's breach of the terms or covenants contained in
this Agreement and the date on which the decree of the court
disposing of the issues upon the merits shall become final and
not subject to further appeal.
13. NO REMEDY AT LAW. Employee agrees that the remedy at
law for any breach by him of the Restrictive Covenants
will be inadequate and would be difficult to ascertain
and therefore, in the event of the branch or threatened
breach of any such covenants, the Employer, in addition
to any and all other remedies, shall have the right to
enjoin Employee from any threatened or actual
activities in violation thereof; and Employee hereby
consents and agrees that temporary and permanent
injunctive relief may be granted in any proceedings
which might be brought to enforce any such covenants
without the necessity of proof of actual damages.
14. SPECIFIC PERFORMANCE. With respect to the covenants and
agreements of Employee set forth in the Restrictive
Covenants, the parties agree that a violation of such
covenants and agreements will cause irreparable injury
to Employer for which Employer will not have an
adequate remedy at law, and, that Employer shall be
entitled, in addition to any other rights and remedies
it may have, at law or in equity, to obtain an
injunction to restrain Employee from violating, or
continuing to violate, such covenants and agreements.
In the event Employer does apply for such an
injunction, Employee shall not raise as a defense
thereto that the Employer has an adequate remedy at
law.
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15. REPRESENTATIONS OF EMPLOYEE. Employee hereby makes the
following representations to Employer, each of which is
material and is being relied on by Employer and shall be true
as of the date hereof and throughout the Term of Employment:
a. FACTUAL INFORMATION. Any and all factual information
furnished by Employee to Employer is true and
accurate in every material respect as of the date on
which such information was furnished.
b. AUTHORITY. Employee has full power and authority to
enter into this Agreement and perform all obligation
hereunder. The execution and performance of this
Agreement by Employee will not constitute a breach or
violation of any covenant, agreement or contract to
which Employee is a party or by which Employee is
bound.
16. ASSIGNABILITY. This Agreement and the rights and duties
created hereunder shall not be assignable or delegable by
Employee. Employer may, at Employer's option and without
consent of Employee, assign its rights and duties hereunder to
any successor entity or transferee of Employer's assets.
17. NOTICES. All notices or other communications provided
for herein to be given or sent to a party by the other
party shall be deemed validly given or sent if in
writing and mailed, postage prepaid, by registered or
certified United States mail or hand delivered or sent
by facsimile, addressed to the parties at their
addresses hereinabove set forth. Any party may give
notice to the other parties at any time, by the method
specified above, of a change in the address at which,
or the person to whom, notice is to be addressed.
18. SEVERABILITY. Each section, subsection and lesser
section of this Agreement constitutes a separate and
distinct undertaking, covenant or provision hereof. In
the event that any provision of this Agreement shall be
determined to be invalid or unenforceable, such
provision shall be deemed limited by construction in
scope and effect to the minimum extent necessary to
render the same valid and enforceable, and, in the
event such a limiting construction is impossible such
invalid or unenforceable provision shall be deemed
severed from this Agreement, but every other provision
of this Agreement shall remain in full force and
effect.
19. WAIVER. The failure of a party to enforce any term, provision
or condition of this Agreement at any time or times shall not
be deemed a waiver of that term, provision or condition for
the future, nor shall any specific waiver of a term, provision
or condition at one time be deemed a waiver of such term,
provision or condition for any future time or times.
20. PARTIES. This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their heirs,
personal representatives, legal representatives, and proper
successors and assigns, as the case may be.
21. GOVERNING LAW. The validity, interpretation and performance
of this Agreement shall be governed by the laws of the
State of Texas, without giving effect to the principles of
comity or conflicts of laws thereof. Each party hereto
agrees to submit to the personal jurisdiction and venue
of the state and federal courts having jurisdiction for
a resolution of all disputes arising in connection with
the interpretation, construction, and
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enforcement of this Agreement, and hereby waives the claim
or defense therein that such courts constitute an
inconvenient forum.
22. CAPTIONS. The captions of this Agreement have been assigned
thereto for convenience only, and shall not be construed to
limit, define or modify the substantive terms hereof.
23. ENTIRE AGREEMENT; COUNTERPARTS. This Agreement
constitutes the entire agreement between the parties
hereto concerning the subject matter hereof, and
supersedes all prior agreements, memoranda,
correspondence, conversations and negotiations. This
Agreement may be executed in several counterparts that
together shall constitute but one and the same
Agreement.
24. COSTS OF ENFORCEMENT. In the event it is necessary for
any party to retain the services of an attorney or to
initiate legal proceedings to enforce the terms of this
Agreement, the prevailing party shall be entitled to
recover from the non-prevailing party, in addition to
all other remedies, all costs of such enforcement,
including reasonable attorneys' fees and costs and
including trial and appellate proceedings.
25. GENDER, ETC. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to
include any other number, singular or plural, and any other
gender, masculine, feminine or; neuter, as the context
indicates is appropriate.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands on
the date first written above.
EMPLOYEE:
Xxx Xxxxxx
/s/ Xxx Xxxxxx
-------------------------------------
EMPLOYER:
One Commerce Corporation, a Texas
corporation
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx, CEO & President
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