EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is effective as of September 15, 2000,
by and between XXXx.xxx, Inc. ("Employer"), and Xxxxxxxxx Xxxx ("Employee").
Employer and Employee are also each individually referred to as a "Party" and
collectively as the "Parties".
WHEREAS, Employer desires to retain the experience and skills of
Employee;
THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth and other good and valuable consideration, the Parties
hereto agree as follows:
1. Employment. Commencing September 15, 2000, and continuing through
September 15, 2001, unless sooner terminated under the provisions of Section 4
below, and from year to year thereafter until terminated under the provisions
of Section 4 below, Employer shall employ Employee as Comptroller and
Executive Vice President of Finance.
2. Commitment of Employee. Employee shall, to the best of his ability,
devote his full business time and best efforts to the performance of his
duties under this Agreement and the business and affairs of Employer.
Employee shall duly, punctually, and faithfully perform and observe any and
all rules and regulations which Employer may now or shall hereafter establish
governing the conduct of its business and the conduct of its employees, except
to the extent that such rules and regulations are inconsistent with this
Agreement. Without the prior written consent of Employer's President,
Employee:
(A) Shall not undertake or engage in any other employment, occupation,
or business enterprise, other than ones in which he is a passive investor.
(B) Shall not acquire, assume, or participate in, directly or
indirectly, any position, investment, or interest known by Employee to be
adverse, competitive, or antagonistic to Employer, Employer's business, or
Employer's prospects, financial or otherwise. If Employee becomes aware that
a previously permitted position, investment, or interest has become adverse,
competitive, or antagonistic to Employer, Employer's business, or Employer's
prospects, financial or otherwise, Employee shall promptly take effective
action to disassociate himself/herself from said position, investment, or
interest.
(C) Notwithstanding the above, may own as a passive investor securities
of any other competing business entity so long as his direct or indirect
holdings in any one such entity shall not in the aggregate constitute a
controlling interest.
(D) Notwithstanding the above, may engage in educational, charitable,
civic, political, social, trade association, and other non-profit activities
to the extent such activities do not materially interfere with the performance
of his duties to Employer and as long as said activities and the organizations
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with which he engages in said activities are not adverse, competitive, or
antagonistic to Employer, Employer's business, or Employer's prospects.
3. Compensation.
(A) Salary. During his employment under this Agreement, Employer shall
pay Employee a salary at the rate of $125,000.00 per year payable in equal
installments bi-weekly, less appropriate deductions as required by law or
otherwise permitted by Employee.
(B) Benefits. Employee shall be entitled to participate in and enjoy
according to Employer policy any and all expense reimbursement, pension,
retirement, profit-sharing, stock purchase, stock option, life insurance,
accident insurance, medical reimbursement, health insurance or hospitalization
plan, cafeteria plan, deferred compensation plan, vacations, holidays and
other leave, and any other fringe benefits in which other employees of the
Employer in positions similar to his are eligible to participate and entitled
by Employer policy to enjoy. Notwithstanding the above, and regardless of
what other employees receive, Employer agrees that it shall pay the monthly
premiums for family health and dental insurance for Employee, grant to
Employee four weeks of paid vacation per year, pay employee a car allowance of
$600 a month, and pay Employee's cellular telephone bills.
(C) Stock Options. Employer hereby grants to Employee options to
purchase 60,000 shares of Employers Common Stock par value $.0001 at a price
per share equal to the closing price of the stock on December 15, 2000. Such
options shall be at no cost to Employee and shall vest immediately. The
shares underlying these options shall be registered by the Employer in its
next registration.
(E) Incentive Compensation. Employee shall also be entitled to receive:
* Thirty (30%) percent of the cash remitted to INFE by third party
companies that sign agreements with INFE if Employee has primary
responsibility for fulfilling the agreement. If Employee does not
have primarily responsibility for fulfilling the agreement,
merely referring the third party to INFE, Employee shall receive
five (5%) percent of the cash remitted to INFE. If Employee and
another INFE employee or consultant jointly share primary
responsibility for fulfilling the agreement, they shall split the
thirty (30%) percent equally between them.
* Thirty (30%) percent of any stock, stock options or warrants
remitted to INFE by third party companies that sign agreements
with INFE if Employee has primary responsibility for fulfilling
the engagement agreement and five (5%) percent of the stock,
stock options or warrants remitted to INFE if Employee merely
refers the third party to INFE and does not have primarily
responsibility for fulfilling the agreement. If Employee and
another INFE employee or consultant jointly share primary
responsibility for fulfilling the agreement, they shall split
the thirty (30%) percent equally between them.
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* 7.5% of any monies raised by Employee for Employer or any
of Employer's affiliates or companies with which Employer has
agreements.
4. Term and Termination.
(A) This Agreement shall terminate of its own terms upon the death of
Employee.
(B) Disability. This Agreement shall terminate of its own terms in the
event of the permanent disability of Employee as defined under Employer's
applicable insurance policy or, in the absence of such policy, any physical or
mental incapacity that renders Employee incapable of performing all duties
required of her for three consecutive months or more, or for an aggregate
period of three months or more in any twelve month period, as determined by
Employer's President. Employee shall carry disability insurance for Employee
during the term of this Agreement.
(C) Termination for Cause. Employer may terminate this Agreement for
Cause without notice if Employee, in the reasonable determination of
Employer's President: Has been indicted for, charged with, or convicted of
any felony or any crime of moral turpitude; has become notorious for personal
dishonesty, willful misconduct, or breach of fiduciary duty involving personal
profit; has engaged or intends to engage in conduct (by act or omission) which
brings Employer or any of its customers, suppliers, or contractors into public
disgrace or disrepute; has engaged in any conduct (by act or omission)
involving dishonesty or fraud with respect to Employer or any of its
customers, suppliers, or contractors; has intentionally failed or intends to
fail to perform any of his duties to Employer (including but not limited to
persistent unsatisfactory performance of material duties); is or intends to be
in willful violation of any law, rule, or regulation of any governmental
agency having jurisdiction over Employee, other than traffic violations or
similar offenses; has been unaccountably absent for 15 calendar days; has
caused or is causing or intends to cause Employer to violate any order issued
against Employer by a court or government agency having authority and
jurisdiction to issue such order; or is in breach or default of or intends to
breach or default with respect to any obligation under this Agreement.
Employee may terminate this Agreement for Cause if Employer breaches any of
the material terms of this Agreement, including but not limited to the timely
delivery of compensation, benefits, and offices in South Florida.
(D) Return of Property. Upon termination of Employee's employment under
this Agreement, Employee shall deliver to Employer all property of Employer,
including memoranda, notes, plans, records, reports, and other documents
(including copies thereof), on any medium of recording containing information
confidential or otherwise proprietary to Employer.
(E) Survival of Provisions. Except for the rights and obligations in
Sections 1 and 2 and Subsections (A) and (B) of Section 3, the rights,
obligations, covenants, acknowledgments, and representations in this Agreement
shall survive its termination and shall remain in full force and effect until
each is fully satisfied.
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5. Representations and Warranties. Employee represents, acknowledges, and
warrants that:
(A) She has full right, authority, and competence to enter into this
Agreement and fully perform her obligations hereunder;
(B) She is not subject to any non-competition agreement that would
prevent or restrict her in any way from performing her duties for Employer
anywhere in the world;
(C) Her past, present, and anticipated future activities have not and
will not infringe on the proprietary rights of others;
(D) She is not obligated under any contract (including licenses,
covenants, guaranties, or moral or legal commitments of any nature) or other
agreement, or subject to any judgment, decree, or order of any tribunal which
would be in conflict with her obligation to use her best efforts to promote
the interests of Employer or which would be in conflict with Employer's
business as conducted or as proposed to be conducted;
(E) Neither the execution nor the delivery of this Agreement, nor the
carrying on of Employer's business will be in conflict with or result in a
breach of the terms, conditions, or provisions of or constitute a default
under any contract, covenant, or instrument under which Employee is obligated.
(F) Employer and its continued success depend upon the use and
protection of a large body of confidential and other proprietary information.
Under this Agreement Employee will hold a position of trust and confidence by
virtue of which Employee will necessarily possess and have access to highly
valuable, confidential, and proprietary information of Employer not known to
the public in general. It would be improper for Employee to make use of this
information for the benefit of himself/herself and others. Employer has a
protectable interest in all such information, and all memoranda, notes, plans,
records, reports, and other documents (including copies thereof), on any
medium of recording containing such information are and will remain the
property of Employer.
(G) Employee's services will be of special, unique, and extraordinary
value to Employer.
6. Special Covenants. A. Nondisclosure and Nonuse. Employee agrees
that, except as may be required to be disclosed to a third party in the
discharge of Employee's duties under this or other Agreements with Employer,
he/she shall regard and preserve as confidential all information pertaining to
the business of Employer, its customers, and others that has been obtained by
him/her during the course of his/her employment. During any period of
employment by or other affiliation with Employer, Employee shall not, directly
or indirectly, use for Employee's own benefit or for the benefit of any third
party or disclose to any others any of such information without written
authority from the President of Employer. Employee shall not directly or
indirectly knowingly acquire or attempt to acquire an interest in any business
entity relating to any line of business in which Employer engages or intends
to engage and, to Employee's knowledge, with which Employer has within the
previous twelve months entertained discussions or which has within the
previous twelve months requested and received information relating to the
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acquisition of such business by Employer. The obligations set forth in the
preceding sentences of this Subsection shall not apply to any information
which is or comes into the public domain through no wrongful act or omission
of Employee. This Subsection shall not be construed as restricting Employee
from disclosing any information (whether proprietary and confidential to
Employer or not) to employees of Employer or others engaged by Employer who
reasonably require access to such information in order to discharge their
duties to Employer. Notwithstanding the other provisions of this Subsection,
if Employee obtains any information subject to statutory, regulatory, or
judicial restraints on disclosure, including but not limited to federal and
state securities laws and regulations, or any information which he is directed
to disclose by law, regulation, government administrative action, or judicial
order, he shall observe said restraints and directives.
(B) Noncompetition. So long as Employee is employed by Employer,
Employee shall not directly or indirectly own, manage, control, participate
in, consult with, render services for, or in any way engage in the business of
Employer, except as provided in Subsection 2(C) above.
(C) Nonsolicitation. So long as Employee is employed by or otherwise
affiliated with Employer and for an additional 12 months thereafter, Employee
shall not directly or indirectly (1) knowingly induce or attempt to induce any
employee of Employer to leave the employ of Employer; or (2) knowingly engage
any person who, within the previous six months, was an employee of or a
contractor providing services to Employer.
(D) Noninterference. So long as Employee is employed by or otherwise
affiliated with Employer and for an additional 36 months thereafter, Employee
shall not directly or indirectly knowingly induce or attempt to induce any
owner of a site location, customer, supplier, licensee, or other business
relation of Employer to cease doing business with Employer or in any way
interfere with the relationship between any such owner, customer, supplier,
licensee, or other business relation and Employer.
(E) Acknowledgments. Employee acknowledges that the provisions in this
Section are in consideration of employment by Employer and the other
obligations of Employer under this Agreement. Employee expressly agrees and
acknowledges that the restrictions in this Section do not preclude Employee
from earning a livelihood, nor do they reasonably impose limitations on
Employee's ability to earn a living. Employee agrees and acknowledges that
the potential harm to Employer of the non-enforcement of the provisions of
this section outweighs any harm to Employee of their enforcement by
injunction, specific performance, or otherwise. Employee acknowledges that
Employee has carefully read this Agreement and has given careful thought to
the restraints imposed upon him/her by this Agreement, and is in full accord
as to their necessity for the reasonable and proper protection of Employer.
Employee expressly acknowledges and agrees that each and every restraint
imposed by this Agreement is reasonable with respect to subject matter, time
period, and geographical scope, and may be enforced by equitable remedies
including Temporary Restraining Orders, Preliminary Injunctions, and Permanent
Injunctions.
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(F) Employee's obligations under this Section shall also run to any
subsidiary, joint venture, or other business entity in which Employer has a
direct or indirect ownership interest with voting or other control rights, as
well as to Employer, and the term "Employer" as used in this Section shall be
deemed to include any such subsidiary, joint venture, or other business
entity, as well as Employer.
7. Ownership of Intellectual Property Created, Developed, or Invented by
Employee.
(A) Definition. For the purposes of this Agreement, "Employer
Intellectual Property" includes inventions, discoveries, improvements,
creations, information, concepts, images, sounds, textures, software
(including but not limited to any source code, object code, enhancements,
modifications, files, input and output materials, and related documentation),
and media (including but not limited to tapes, disks, paper, and other storage
and recording media) that were or are or will be created, developed, or
invented by Employee for Employer, or within the scope of Employee's
employment, or using Employer resources, or during Employer work hours, or on
Employer premises.
(B) Assignment. Employee grants, transfers, assigns, and conveys to
Employer, its successors and assigns, the entire title, right interest,
ownership, and all subsidiary rights in and to all Employer Intellectual
Property, including but not limited to patent rights, the right to secure
copyright, trademark, service xxxx, or trade name registration therein and to
any resulting registration in Employee's name as claimant, the right to secure
renewals, reissues, and extensions of any such registration in the United
States of America or any foreign country, and the right to use any other form
of legal protection including maintaining it as a trade secret. Employee
agrees that the rights of Employer under this Section were and are effective
immediately upon the creation of Employer Intellectual Property.
(C) Disclosure. To avoid misunderstandings, Employee will promptly
disclose in writing to Employer all inventions, discoveries, improvements,
creations, information, concepts, images, sounds, textures, software
(including but not limited to any source code, object code, enhancements,
modifications, files, input and output materials, and related documentation),
and media (including but not limited to tapes, disks, paper, and other storage
and recording media), whether or not patentable, copyrightable or protectable
as trade secrets or otherwise, that are made, conceived, first reduced to
practice, created, developed, or invented by Employee, either alone or jointly
with others, during Employee's employment by or other affiliation with
Employer, whether or not in the course of Employee's employment with Employer.
Employee will immediately inform Employer of any third party information and
materials used in or for Employer Intellectual Property.
(D) Authority. Whether any copyright, trademark, service xxxx, trade
secret, or trade name in Employer Intellectual Property shall be preserved and
maintained or registered or whether Employer Intellectual Property shall be
patented in the United States of America or in any foreign country shall be at
the sole discretion of Employer.
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(E) Work Made For Hire. Employee agrees that all Employer Intellectual
Property is "work made for hire" as defined in 17 U.S.C. Section 201(b) and
that Employee has been hired or assigned to create, develop, and invent same.
(F) All Right and Title. Employee hereby confirms that Employer owns
and shall own the entire title, right, and interest in all Employer
Intellectual Property, including the sole right to reproduce, to prepare
derivative works based on the copyright, to transfer and distribute by sale,
rental, lease, or lending, license, or by other transfer of ownership, and to
display, in and to Employer Intellectual Property, whether or not Employer
Intellectual Property constitutes a "work made for hire" as defined in 17
U.S.C. Section 201(b). Employee agrees that no rights in Employer
Intellectual Property are or shall be retained by Employee.
(G) Cooperation. Promptly upon Employer's request, Employee agrees to
take all actions and cooperate as necessary to protect the copyrightability,
patentability, and any other protective measure of and for Employer
Intellectual Property and further agrees to execute any documents that might
be necessary to perfect Employer's ownership of rights in any Employer
Intellectual Property, including but not limited to registration of
copyrights, trademarks, service marks, and trade names and applications for
and ownership of patents. Employer shall reimburse Employee for reasonable
costs incurred by Employee in cooperating under this Subsection after the
termination of Employee's employment under this Agreement.
8. Other.
(A) Nature; Assignment. This Agreement is intended to bind, benefit
and be enforceable by Employee and Employer. Employee shall not assign any
rights or delegate any duties under this Agreement without the written consent
of the President of Employer. Employer may assign its rights and delegate its
obligations hereunder to any subsidiary, joint venture, or other business
entity in which Employer has a direct or indirect ownership interest with
voting or other control rights, provided that said assignee or delegatee shall
execute and deliver such documentation necessary to be bound by the terms of
this Agreement. Employer may be released from its obligations under this
Agreement upon such an assignment or delegation.
(B) Merger. This instrument contains the entire agreement of the
Parties relating to the employment relationship between them and supersedes
and cancels all prior written and oral agreements and understandings between
the Parties relating to same which are not set forth herein and other
agreements and documents executed concurrently with this Agreement and to
effect the intent of the Parties as expressed therein.
(C) Changes. No amendment or modification of this Agreement shall be
valid unless made in writing and signed by the Parties.
(D) Waiver. No term or condition of this Agreement shall be deemed to
have been waived except by written agreement of the Party charged with such
waiver.
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(E) Choice of Law. This Agreement will be construed in accordance with
the laws of the Commonwealth of Virginia, excluding the choice of law
provisions thereof.
(F) Headings. The headings of the Sections and Subsections in this
Agreement are inserted for convenience only and are not part of this
Agreement.
(E) Counterparts. This Agreement may be executed in separate
counterparts, all of which together constituting one and the same Agreement.
(F) Severability. In the event any one or more of the provisions of
this Agreement shall for any reason be held invalid, illegal, or unenforceable
in any particular circumstance by any tribunal of competent jurisdiction, each
such provision shall be valid in other circumstances and for the particular
circumstance the remaining provisions of this Agreement shall be read and
construed as though the said invalid, illegal or unenforceable provision had
never been a part hereof. However, if any one or more of the provisions in
this Agreement shall be held to be excessively broad as to duration,
geographical scope, activity, or subject, it shall be construed by limiting
and reducing it so as to be enforceable to the extent compatible with
applicable law as it shall then appear.
(G) Third Party Beneficiaries. Each Party intends that this Agreement
shall not confer any rights or remedies upon any third party except as
otherwise expressly provided herein.
(H) Time. Time is of the essence in the performance of all obligations
of Employee under this Agreement. If any time period for giving notice or
taking action under this Agreement expires on a day which is a Saturday, a
Sunday, or a holiday in the Commonwealth of Virginia, said time period shall
be automatically extended to the next business day.
(I) Notices. All notices to be sent to either Party by the other Party
hereto pursuant to this Agreement shall be sent by registered or certified
mail, return receipt requested, to the following respective addresses or such
other address as the respective addressee may designate by notice to the other
addressees, and shall be deemed delivered as indicated on the return receipt:
If to Employer:
Xxxxxx X. Richfield, President
XXXx.xxx, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to Employee, addressed to him/her at:
0000 XX 00 Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
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9. Enforcement. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by binding arbitration in
Fairfax County, Virginia, in accordance with the commercial arbitration rules
of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction.
Notwithstanding the foregoing, Employer specifically reserves the right to
seek equitable remedies, together with other remedies pendant to same, in the
Circuit Court of Fairfax County, Virginia, and the Alexandria Division of the
United States District Court for the Eastern District of Virginia. The
Parties consent to the jurisdiction of and agree that venue shall be proper in
the Circuit Court of Fairfax County, Virginia, and the Alexandria Division of
the United States District Court for the Eastern District of Virginia. The
prevailing Party in any arbitration or other action to enforce this Agreement,
as determined by the tribunal, shall be entitled to recover reasonable
attorneys' fees and costs incurred in connection with said arbitration or
other action. The Parties agree and acknowledge that money damages may not be
an adequate remedy for any breach of this Agreement and any tribunal may order
specific performance or injunctive relief in order to enforce or prevent any
violations hereof.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective
as of the day and year first above written.
XXXx.xxx, Inc., a Florida corporation:
By: __________________________ ____________________________
Name: Xxxxxx X. Richfield Witness
Its: President
Employee:
______________________________ _____________________________
Xxxxxxxxx Xxxx Witness
