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EXHIBIT 10.10
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement"), is made and entered into
as of the 26th day of August, 1999, by and between WORLD COMMERCE ONLINE, INC.,
a Nevada corporation, with an address at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000 ("Corporation"), and JOBO HOLDING B.V., an entity organized under the
laws of the Netherlands, with an address at Xxxxxxxxxx 0, 0000 XX Xxxxxxx,
Xxxxxxxxxxx ("Consultant").
R E C I T A L S:
WHEREAS, Consultant was the sole shareholder of the common stock of
Fresh Products Network B.V., an entity organized under the laws of the
Netherlands ("FPN"); and
WHEREAS, FPN is an e-commerce trading system methodology designed to
sell cut flowers from growers to resellers via the world wide web; and
WHEREAS, Consultant has agreed to sell its interest in FPN to
Corporation pursuant to that certain Stock Purchase Agreement dated August 26,
1999 by and among Corporation, FPN, Consultant, Omniflora International Ltd.
and Xxxx xxx Xxxx (the "Stock Purchase Agreement"); and
WHEREAS, pursuant to the Stock Purchase Agreement, Corporation and
Consultant agreed to enter into this Agreement; and
WHEREAS, Corporation is engaged in providing seamless and secure
networks on the world wide web to organizations and industries to enable them
to do business-to-business and business-to-consumer transactions worldwide (the
"Business"), and has invested substantial time and money to develop and build
substantial relationships with specific prospective or existing customers and
other individuals and businesses with which it does business;
WHEREAS, Consultant desires to be retained by Corporation and
currently has or will have access to Corporation's Confidential Information
(hereinafter defined in Section 2(a));
WHEREAS, Consultant executes this Agreement, intending Corporation
rely on the terms, covenants, and provisions specifically set forth and stated
herein, and expressly to induce Corporation to employ Consultant; and
WHEREAS, Corporation, as an express condition precedent to retaining
Consultant, requires that Consultant execute this Agreement wherein Consultant
expressly covenants and agrees to maintain the confidentiality of the
Confidential Information and not to engage in conduct competitive to the
Corporation.
NOW, THEREFORE, for the reasons set forth hereinabove, and in
consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and
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sufficiency of which are hereby acknowledged, Consultant hereby covenants and
agrees as follows:
1. RECITALS. The foregoing recitals are true and correct and
form a part of this Agreement.
2. TERM AND DUTIES. Corporation hereby retains Consultant for
period beginning on August 30, 1999 ("Starting Date"), and ending four (4)
years from the Starting Date (the "Term"), as a general advisor and consultant
to management on matters pertaining to sales and product marketing for Europe,
Africa and the Middle East, and such other matters pertaining to the Business
as may, from time-to-time, be assigned by or under the authority of
Corporation's Chief Marketing Officer or President. Consultant's duties will
include, but not be limited to, the following:
(a) Defining a sales and marketing plan for Europe,
Africa and the Middle East;
(b) Recruit, hire and train a sales and marketing team;
(c) Work with and assist Corporation's management team
to accomplish Corporation's goals;
(d) Work closely with Jaap Kras on a daily basis to
insure the overall success of Corporation in Europe,
Africa and the Middle East.
3. COMPENSATION.
3.1 Base Compensation. The Consultant shall receive base
compensation at the annual rate of One Hundred Fifty Thousand Dollars $150,000
(the "Base Compensation") during the Term, with such Base Compensation payable
in monthly installments.
3.2 Bonuses. At the end of each fiscal quarter of each of
Corporation's fiscal years during the Term, Consultant shall be eligible to
receive a bonus of $20,000 if certain quota goals ("Quota Goals") are achieved
for that fiscal quarter. The Quota Goals for the 4th fiscal quarter of fiscal
year 1999 through the 3rd fiscal quarter of fiscal year 2000 as set forth on
the schedule attached hereto as Exhibit "A." The Quota Goals for any subsequent
fiscal quarter after the 3rd fiscal quarter of fiscal year 2000 shall be
mutually agreed to by Corporation and Consultant.
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4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 Reimbursement of Expenses. Upon the submission of
proper substantiation by Consultant, and subject to Corporation's sole
discretion, including rules and guidelines as Corporation may from time to time
adopt, Corporation shall reimburse Consultant for all reasonable expenses
actually paid or incurred by Consultant during the Term in the ordinary course
of and pursuant to the business of Corporation. Consultant shall account to
Corporation in writing for all expenses for which reimbursement is sought and
shall supply to Corporation copies of all relevant invoices, receipts or other
evidence reasonably requested by Corporation.
4.2 Automobile. During the Term, Corporation shall
provide Consultant with a non-accountable automobile allowance of One Thousand
Two Hundred Dollars ($1,200) per month, which amount is intended to compensate
Consultant for wear and tear and, in addition, reimburse Consultant for all
costs of gasoline, oil, repairs, maintenance, insurance and other expenses
incurred by Consultant by reason of the use of Consultant's automobile for
Corporation business from time to time.
4.3 Cellular Phone. During the Term, Corporation shall
provide Consultant with a cellular or digital phone (the "Phone") and
sufficient air time usage to enable Consultant to perform his duties set forth
in this Agreement. The Phone shall be the property of Corporation. Consultant
is responsible for any damage or loss to the Phone, except for normal wear and
tear, and upon any termination of this Agreement, the Phone shall be promptly
returned to Corporation.
5. TERMINATION.
(a) This Agreement may be terminated/canceled by either
party upon the occurrence of any of the following, except for Section 5(a)(v)
below which permits only Corporation to terminate, and the
terminating/canceling party shall have no liability to the other party for the
exercise of such right of termination/cancellation:
(i) In the event that the other party has
breached a covenant, obligation or warranty under this Agreement, other than as
discussed in Section 5 (a)(b), and such breach remains uncured for a period of
thirty (30) days after notice thereof is delivered to such other party;
(ii) In the event the other party ceases to
conduct business;
(iii) In the event the other party becomes
insolvent, makes a general assignment for the benefit of creditors, files a
voluntary petition of bankruptcy, suffers or permits the appointment of a
receiver for its business or assets, or becomes subject to any proceeding under
any bankruptcy or insolvency law, whether domestic or foreign, or has wound up
or liquidated, voluntarily or otherwise;
(iv) In the event of the mutual agreement of the
parties hereto;
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(v) By Corporation in the event Consultant
fails to earn the bonus and achieve the prescribed Quota Goals for any two
consecutive fiscal quarters; or
(vi) In the event the Stock Purchase Agreement
is not executed by all the parties thereto, and the transactions contemplated
thereby are not consummated within thirty (30) days from the date first set
forth above.
(b) If Corporation terminates/cancels this Agreement
pursuant to this Section 5, Corporation shall have no further liability to
Consultant, except to pay Consultant for the Services performed and expenses
incurred by Consultant up to the effective date of termination/cancellation. If
Consultant terminates/cancels this Agreement pursuant to this Section 5,
Consultant shall have no further liability or obligation to Corporation
whatsoever.
6. RESTRICTIVE COVENANTS.
(a) Confidential Information. Consultant hereby
acknowledges and agrees that in the course of his employment he will acquire
knowledge and will have access to information, whether in written, typed or
other form, regarding the business operations of Corporation. Specifically, the
following types of information are deemed confidential ("Confidential
Information") and shall not be disclosed or used by Consultant except as
required and authorized in furtherance of Corporation's business: trade
secrets, as defined in Section 688.002(4), Florida Statute's; specific
prospective customers of the Corporation; specific existing customers of the
Corporation; other individuals and businesses with whom Corporation does
business; proprietary information; financial or corporate records; operational,
sales, promotional, and marketing methods and techniques; computer programs,
including source codes and/or object codes; and/or any other proprietary,
competition sensitive, or technical information or secrets developed with or
without the help of Consultant.
(b) NonDisclosure. Consultant shall not, during the term
of his employment, or at any time thereafter, either directly or indirectly,
communicate, publish, disclose, divulge, or use, or authorize anyone else to
communicate, publish, disclose, divulge, or use, for the benefit of himself or
any other person, persons, partnership, association, corporation, or other
entity, any Confidential Information which may be communicated to Consultant or
of which Consultant may be apprised by virtue of his employment with
Corporation. Any and all information, knowledge, know-how, and techniques which
Corporation designates as confidential shall be deemed confidential for
purposes of this Agreement, except information which Consultant can demonstrate
came to his attention prior to disclosure thereof by Corporation; or which, at
or after the time of disclosure by Corporation to Consultant, lawfully had
become a part of the public domain through lawful publication or communication
by others.
(c) NonCompetition. Consultant covenants that, except as
otherwise approved in writing by Corporation, Consultant shall not, during the
term of this Agreement, and for a continuous uninterrupted period of twenty
four (24) months commencing upon the termination of Consultant's employment
relationship with Corporation, regardless of the cause for termination,
individually, or jointly with others, either directly or indirectly, for
himself, or
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through, on behalf of, or in conjunction with any person, persons, partnership,
association, corporation, or other entity, own, maintain, operate, engage in,
or have any interest in any business enterprise which is the same as, similar
to or competitive with the Business, regardless of the geographical location of
such other business enterprise, shall not directly or indirectly act as an
officer, director, employee, partner, contractor, consultant, advisor,
principal, agent, or proprietor, or in any other capacity for, nor lend any
assistance (financial, managerial, consulting or otherwise) to or cooperate
with, any such business enterprise.
(d) NonSolicitation. Consultant specifically acknowledges
that he will have access to Confidential Information, including, without
limitation, trade secrets and prospective and existing customers or customer
lists of Corporation. Consultant covenants and agrees that during the term of
this Agreement, and for a continuous uninterrupted period of twenty four (24)
months, commencing upon the expiration or termination of Consultant's
relationship with Corporation, except as otherwise approved in writing by
Corporation, Consultant shall not, either directly or indirectly, for himself,
or through, on behalf of, or in conjunction with any person, persons,
partnership, association, corporation, or entity:
(i) Divert or attempt to divert or solicit any
prospective or existing customer of Corporation to any competitor by direct or
indirect inducement or otherwise; or
(ii) Employ or seek to employ any person
who is at that time employed by Corporation, any affiliate of Corporation, or
otherwise directly or indirectly induce or solicit such person to leave his or
her employment.
(e) Reasonably Necessary. Corporation and Consultant
agree that the Confidential Information set forth in Section 6(a), including,
without limitation, trade secrets: (i) are valuable, special, and a unique
asset of Corporation; (ii) have provided and will hereafter provide Corporation
with a substantial competitive advantage in the operation of its business; and
(iii) are a legitimate business interest of Corporation. Corporation and
Consultant also agree that the existence of these legitimate business interests
justifies the need for the restrictive covenants set forth in this Section 6,
and the restrictive covenants are reasonably necessary to protect Corporation's
legitimate business interests.
(f) Reasonable Restrictions. Consultant agrees and
acknowledge that the geographical and time limitations contained in this
Agreement are reasonable and properly required for the adequate protection of
Corporation. It is agreed by Consultant that if any portion of the restrictions
contained in this Agreement are held to be unreasonable, arbitrary, or against
public policy, then the restriction 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 country or portion thereof
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, non-arbitrary, and not
against public policy may be enforced against Consultant.
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(g) Continuity of Restrictions. If Consultant shall
violate any of the terms or covenants contained herein, and if any court action
is instituted by Corporation to prevent or enjoin such violation, then the
period of time during which the terms or covenants of this Agreement shall
apply, as provided in this Agreement, shall be lengthened by a period of time
equal to the period between the date of the initial breach of the terms or
covenants contained in this Agreement, whether or not Corporation had knowledge
of the breach, 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.
7. REMEDIES.
(a) Consultant and Corporation hereby acknowledge and
agree that, in the event of any breach by Consultant, directly or indirectly,
of the foregoing restrictive covenants, it will be difficult to ascertain the
precise amount of damages that may be suffered by Corporation by reason of such
breach; and accordingly, the parties hereby agree that, as liquidated damages
(and not as a penalty) in respect of any such breach, Consultant shall be
required to provide an accounting of any and all benefits received or derived,
either directly or indirectly, by Consultant as a result of such breach,
including, but not limited to, true and correct financial records, or other
data detailing the financial benefit Consultant received or derived, directly
or indirectly, from any and all violative acts or activities, and Consultant
thereafter shall be required to pay to Corporation, as damages, cash amounts
equal to any and all gross revenues received or derived by Consultant, directly
or indirectly, from any and all violative acts or activities. The parties
hereby agree that the foregoing constitutes a fair and reasonable estimate of
the actual damages that might be suffered by reason of any breach of Section 6
by Consultant, and the parties hereby agree to such liquidated damages in lieu
of any and all other measures of damages that might be asserted in respect of
any subject breach.
(b) Consultant agrees that a violation or a breach of the
terms, covenants, or provisions contained in this Agreement would cause
irreparable injury to Corporation, and that the remedy at law for any violation
or breach would be inadequate and would be difficult to ascertain, and
therefore, in the event of the violation or breach, or threatened violation or
breach of any such terms, covenants, or provisions contained in this Agreement,
Corporation shall have the independent right to enjoin Consultant from any
threatened or actual activities in violation thereof. Consultant hereby
consents and agrees that temporary and permanent injunctive relief may be
granted in any proceedings which might be brought to enforce any such terms,
covenants, or provisions without the necessity of proof of actual damages or
the posting of a bond. In the event Corporation does apply for such an
injunction, Consultant shall not raise as a defense thereto that Corporation
has an adequate remedy at law.
8. OWNERSHIP OF DEVELOPMENTS. All copyrights, patents, trade
secrets, or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship developed
or created by Consultant during the course of performing work for Corporation
or its clients (collectively, the "Work Product") shall belong exclusively to
Corporation and shall, to the extent possible, be considered a work made by
Consultant for hire for Corporation within the meaning of Title 17 of the
United States Code. To the extent the
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Work Product may not be considered work made by Consultant for hire for
Corporation, Consultant agrees to assign, and automatically does assign at the
time of creation of the Work Product, without any requirement of further
consideration, any right, title, or interest Consultant may have in such Work
Product. Upon the request of Corporation, Consultant shall take such further
actions, including execution and delivery of instruments of conveyance, as may
be appropriate to give full and proper effect to such assignment.
9. RETURN OF RECORDS AND PROPERTY. Upon the request of
Corporation, or absent such request, upon the termination of Consultants
relationship contemplated in this Agreement with Corporation for any reason,
Consultant shall immediately return to Corporation all of Corporation's
property and any and all copies thereof in Consultants possession (the
"Property"). The Property shall include, but shall not be limited to, all
notes, data, reference material, sketches, drawings, memoranda, files,
documents, specifications and any records or any other property, tangible or
intangible, in any way relating to any of the Confidential Information or to
Corporation's business, whether prepared by Consultant or otherwise coming into
Consultants possession. The Property shall remain the exclusive property of
Corporation and shall not be removed from the premises of Corporation under any
circumstances whatsoever without the prior written consent of Corporation.
10. NATURE OF RELATIONSHIP. Consultant herein is an independent
contractor and will not act as Corporation's agent, nor shall be deemed an
employee of Corporation for any purpose and shall not be entitled to any
employee fringe benefits. Consultant shall not enter into any agreement or
incur any obligations on Corporation's behalf, or commit Corporation in any
manner without Corporation's prior written consent. As an independent
contractor, Consultant understands and agrees that Consultant is solely
responsible for the control and supervision of the means by which Consultant's
services are performed.
11. WAIVER. No waiver by Corporation of any default or
nonperformance hereunder shall be deemed a waiver of any subsequent default or
nonperformance. No waiver shall be effective unless in writing, and signed by
the party or parties to which the performance of duty is owed. No delay in the
serving of any right or remedy shall constitute a waiver of any right or
remedy.
12. CUMULATIVE REMEDIES. Notwithstanding the foregoing, all
remedies of Corporation hereunder are cumulative, in addition to any other
remedies provided for by law, and may, to the extent permitted by law, be
exercised concurrently or separately. The exercise of any one remedy shall not
be deemed to be an election of such remedy, or to preclude the exercise of any
other remedy.
13. CLAIMS NOT A DEFENSE. Consultant expressly agrees that the
existence of any claims that he may have against Corporation, whether or not
arising from this Agreement, shall not constitute a defense to the enforcement
by Corporation of the covenants or provisions herein.
14. INDEPENDENT COVENANTS. The parties agree that each of the
covenants and provisions contained in this Agreement shall be deemed severable
and construed as independent of any other covenant or provision. If all or any
portion of a covenant or provision in this
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Agreement is held invalid, unreasonable or unenforceable by a court or agency
having valid jurisdiction in an unappealed final decision to which Corporation
is a party, the remaining covenants and provisions shall remain valid and
enforceable. Consultant expressly agrees to be bound by any lesser covenant or
provision subsumed within the terms of such covenant or provision that imposes
the maximum duty permitted by law, as if the resulting covenant or provision
were separately stated in, and made a part of this Agreement.
15. ENTIRE AGREEMENT. This Agreement contains and represents the
entire and complete understanding and agreement concerning and in reference to
the employment arrangement between the parties hereto. The parties hereto agree
that no prior statements, representations, promises, agreements, instructions,
or understandings, written or oral, pertaining to this Agreement, other than
those specifically set forth and stated herein, shall be of any force or
effect.
16. MODIFICATIONS AND AMENDMENTS. This Agreement may not be, and
shall not be construed to have been modified, amended, rescinded, canceled, or
waived, in whole or in part, except if done so in writing and executed by the
parties hereto.
17. ATTORNEYS' FEES. In the event of a dispute regarding, arising
out of, or in connection with the breach, enforcement, or interpretation of
this Agreement, including, without limitation, any action seeking declaratory
relief, equitable relief, injunctive relief, or damages, or any litigation or
cause of action, including, without limitation, any appeals, federal bankruptcy
proceedings, receivership or insolvency proceedings, reorganization, or other
proceedings, the prevailing party shall recover all costs and actual attorney's
fees incurred in connection therewith, including any costs of collection
(including paralegals' fees).
18. PERSONAL JURISDICTION; VENUE. EACH PARTY HERETO AGREES TO
SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL
COURTS LOCATED IN ORANGE COUNTY, FLORIDA, FOR RESOLUTION OF ALL DISPUTES
ARISING OUT OF, IN CONNECTION WITH, OR BY REASON OF THE INTERPRETATION,
CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR
DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM.
19. WAIVER OF JURY TRIAL. AS A MATERIAL INDUCEMENT FOR THIS
AGREEMENT, EMPLOYEE SPECIFICALLY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY
ISSUES SO TRIABLE.
20. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, and to the
exclusion of the law of any other forum, without regard to the jurisdiction in
which any action or special proceeding may be instituted.
21. CONSTRUCTION. Each party to this Agreement had the opportunity
to consult with counsel of their choice and make comments concerning the
Agreement. No legal or other presumption against the party drafting this
Agreement concerning its construction, interpretation or
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otherwise accrue to the benefit of any party to this Agreement and each party
expressly waives the right to assert such a presumption in any proceedings or
disputes connected with, arising out of, or involving this Agreement.
22. SECTION HEADINGS. The titles to the numbered paragraphs in
this Agreement are solely for the convenience of the parties and shall not be
used to explain, modify, simplify, or aid in the interpretation of said
covenants or provisions set forth therein.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first set forth above.
WORLD COMMERCE ONLINE, INC., a
Nevada corporation
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Xxxxx Xxxxx, Chief Marketing Officer &
Executive Vice President
JOBO HOLDING B.V., an entity organized under
the laws of the Netherlands
By: /s/ Xxxx xxx Xxxx
----------------------------------------------
Xxxx xxx Xxxx, President
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EXHIBIT A
Q4 1999 Q1 2000 Q2 2000 Q3 2000
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Turnover Revenue 3,000,000g 14,000,000g 14,000,000g 8,000,000g
(in Guilders)
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