Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made this 11th day of August, 1999, by
and between XXXXXX ENTERPRISES, INC., a Nevada corporation (the
"Corporation") and XXXXX XXXXXX ("Employee"). In consideration of the mutual
covenants and promises contained herein, the parties agree as follows:
1. EMPLOYMENT. The Corporation hereby employs Employee as its
President and Chief Executive Officer. Employee shall report directly to the
President of xxxxxxxxxxxx.xxx, the parent corporation of the Corporation.
Employee shall be responsible for overall supervision of the day to day
operations of the Corporation's business including product development and
implementation of sales and marketing direction and strategy. Employee
hereby accepts such employment and agrees to perform the foregoing and such
other duties as are customarily performed by one holding such position in
other, same or similar businesses as that engaged in by the Corporation and
to render any such other services and duties as may be assigned from time to
time by the President of xxxxxxxxxxxx.xxx or the Board of Directors of the
Corporation.
2. PERFORMANCE OF EMPLOYEE'S DUTIES. The Employee agrees to devote
his full time attention and efforts to the faithful and loyal performance of
his duties for the Corporation and to render service to the Corporation to
the best of his ability, experience and talent to the reasonable satisfaction
of the Corporation. Such duties shall be rendered at such place or places as
the Corporation shall require in accordance with the best interests, needs,
business and opportunities of the Corporation.
3. TERM OF EMPLOYMENT. The term of employment shall be for a period
of five (5) years, commencing on August 11, 1999, and terminating on August
10, 2004, unless earlier terminated as provided herein. Notwithstanding the
foregoing, Employee shall have the option to terminate this Agreement in the
event the Corporation or its business are sold.
4. LIMITATIONS ON OTHER EMPLOYMENT. During the term hereof, Employee
shall not enter into the services of or be employed in any capacity or for
any purposes whatsoever, whether directly or indirectly, by any person, firm,
corporation or entity other than the Corporation, and will not, during said
period of time, be engaged in any business, enterprise or undertaking other
than employment by the Corporation except as approved in writing by the Chief
Executive Officer of the Corporation. Employee may engage in personal
recreation and community or civic service so long as these activities do not
detract from the full discharge of Employee's duties hereunder.
5. COMPENSATION. Provided Employee continues to be employed by the
Corporation pursuant to the terms of this Agreement, the Corporation agrees
to pay Employee and Employee agrees to accept from the Corporation, in
payment for Employee's services hereunder, base compensation at the rate of
Six Thousand Five Hundred and 00/100 Dollars ($6,500.00) per
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month payable in accordance with the Corporation's normal pay practices. The
amount of Employee's compensation shall be reviewed at each one year
anniversary date of this Agreement and may be increased by the Board of
Directors in its sole discretion. The compensation has been expressed in
terms of a gross amount, and the Company is required to withhold from such
gross amount deductions in respect of federal, state or local income taxes,
FICA and the like.
6. BUSINESS EXPENSES. The Corporation shall reimburse Employee or
otherwise provide for or pay for all reasonable expenses incurred by employee
in furtherance or in connection with the business of the Corporation,
including, but not by way of limitation, traveling expenses, and reasonable
entertainment expenses (whether incurred while traveling, or otherwise) in a
manner consistent with the Corporation's policy regarding such expenses. If
such expenses are paid in the first instance by employee, the Corporation
will reimburse him therefor. Expenses shall be reported and documented as
required by the Corporation and the United States Treasury Department for
deductible business expenses.
7. OTHER BENEFITS. The Corporation shall provide Employee with
medical insurance and such other fringe benefits which are at least equal to
the medical insurance and other fringe benefits being provided by the
Corporation to Employee as of July 1999.
8. VACATION. Employee shall be entitled to vacation time in
accordance with the vacation policies of the Corporation. Scheduled vacation
time must be approved in advance by the President of xxxxxxxxxxxx.xxx.
9. TERMINATION BY COMPANY FOR CAUSE. Employee's employment under this
Agreement may be terminated immediately by Company upon the occurrence of one
or more of the following causes:
(a) Employee's conviction of any criminal act involving moral
turpitude or which otherwise tends to bring disrepute upon Company;
(b) The commission by Employee of any act of dishonesty in
connection with the performance of any of Employee's duties hereunder
(including, but not limited to falsification of Company records, making false
statements of material facts to third parties regarding Company's business,
fraud, and misappropriation or embezzlement against Company or any of its
customers or suppliers);
(c) Any willful material breach by Employee of any of the
covenants, conditions or restrictions pertaining to disclosure or use of
confidential information, proprietary rights and materials of the Corporation
or unfair competition as set forth in Sections 10, 11 or 12 of this Agreement;
(d) The material failure to perform Employee's duties, and/or to
observe the written rules, regulations, policies, directions or restrictions
adopted by the Company from time to time to the extent such rules,
regulations, policies, directions or restrictions are not inconsistent with
the terms of this Agreement, provided that such failure shall not have been
cured within ten (10) days after Employee is given specific notice and an
opportunity to cure such failure;
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(e) If Employee dies or becomes disabled (Employee shall be deemed
"disabled" for purposes of this Agreement if he is unable, by reason of
illness, accident, or other physical or mental incapacity, to perform
substantially all of his regular duties for a continuous period of one
hundred eighty (180) days); and
(f) Repeated abuse of alcohol or illegal narcotics confirmed by
testing which results in the failure of Employee to perform his duties
hereunder. Employee agrees to submit to drug and alcohol testing as deemed
necessary by Employer in its reasonable discretion.
Upon termination of Employee's employment by Company for cause, Employee
shall be entitled to all compensation accrued but unpaid to the date of
termination, but Employee shall have no further rights to any salary,
benefits or other compensation of any kind or nature.
10. DISCLOSURE OR USE OF CONFIDENTIAL INFORMATION.
(a) DEFINITION OF CONFIDENTIAL INFORMATION. As used herein, the
term "Confidential Information" means any and all trade secrets or other
confidential information of any kind, nature or description concerning any
matters affecting or relating to the business of the Corporation which
derives economic value, actual or potential, from not being generally known
to the public or to other persons who can obtain economic value from its
disclosure or use and which is subject to efforts by the Corporation that are
reasonable under the circumstances to maintain its secrecy. Confidential
Information shall include information (not readily compiled from publicly
available sources) which is made available to Employee during the course of
his employment including, but not limited to, operations and financial
information concerning the Corporation's business; customer names, addresses,
buying habits, needs and the methods of fulfilling those needs; supplier
names, addresses and pricing policies; and the Corporation's pricing
policies. Employee agrees to cooperate with the Corporation to maintain the
secrecy of and limit the use of such Confidential Information.
Employee further agrees that he is under no obligation to any
former employer which is in any way inconsistent with this Agreement or which
imposes any restriction on the Corporation. Employee also acknowledges that
he has been instructed that during the term of employment by the Corporation,
he is not to divulge to the Corporation, its employees or its consultants any
confidential information or trade secrets obtained from any previous
employers or any other person.
(b) FIDUCIARY DUTY; APPROPRIATION OF CONFIDENTIAL INFORMATION.
Employee agrees to perform his duties pursuant to this Agreement in good faith
and in a manner which he honestly believes to be in the best interests of the
Corporation, and with such care, including reasonable inquiry, as an ordinary
prudent person in a like position would use under similar circumstances.
Employee agrees to observe a duty of loyalty to the Corporation placing the
interests of the Corporation ahead of his own. Employee will keep confidential
and will not directly or indirectly divulge to anyone (except as required by
applicable law or in connection with the performance of his duties and
responsibilities as an employee hereunder) nor use or otherwise appropriate for
Employee's own benefit, or on behalf of any other person, firm, partnership or
corporation by whom Employee might subsequently be employed or otherwise
associated or affiliated with, any Confidential Information. Employee agrees
that he will not at
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any time during or after the termination or expiration of his employment,
except as authorized or directed in writing by the Corporation, use the
Confidential Information for Employee's own benefit or copy, reveal, divulge
or make known in any manner to any person, firm or corporation the
Confidential Information.
11. PROPRIETARY RIGHTS AND MATERIALS. All documents, memoranda,
reports, notebooks, correspondence, files, lists and other records, and the
like, designs, drawings, specifications, computer software and computer
equipment, computer printouts, computer disks, and all photocopies or other
reproductions thereof, affecting or relating to the business of the
Corporation, which Employee shall prepare, use, construct, observe, possess
or control ("the Corporation Materials"), shall be and remain the sole
property of the Corporation. Upon termination of this Agreement, Employee
shall deliver promptly to the Corporation all such the Corporation Materials.
12. COVENANT AGAINST UNFAIR COMPETITION. During the term of this
Agreement, Employee agrees (i) he will not, directly or indirectly, own an
interest in, operate, join, control or participate in, or be connected as an
officer, employee, agent, independent contractor, partner, shareholder or
principal of any corporation, partnership, proprietorship, firm,
association, person or other entity providing services which directly or
indirectly compete with the Corporation's business; (ii) he will not
undertake planning for or organization of any business activity competitive
with the Corporation's business or combine or conspire with other employees
or representatives of the Corporation's business for the purpose of
organizing any such competitive business activity; (iii) he will not,
directly or indirectly, either for Employee or for any other person, firm or
corporation, divert or take away or attempt to divert or take away of the
Corporation's customers, including but not limited to those upon whom
Employee called or whom Employee solicited or serviced or with whom Employee
became acquainted while engaged as an employee in the Corporation's business;
and (iv) he will not, directly or indirectly or by action in concert with
others, induce or influence (or seek to induce or influence) any person who
is engaged (as an employee, agent, independent contractor or otherwise) by
the Corporation to terminate his or her employment or engagement.
13. TERM CORPORATION AS INCLUDING CORPORATE AFFILIATES. For purposes
of this Agreement, the term "Corporation" shall be deemed to include any
corporation which is in control of, controlled by, or under common control
with the Corporation, whether or not Employee is directly employed by such
other corporation or corporations.
14. ATTORNEYS' FEES. If any legal action arises under this Agreement
or by reason of any asserted breach of it, the prevailing party shall be
entitled to recover all costs and expenses, including reasonable attorneys'
fees, incurred in enforcing or attempting to enforce any of the terms,
covenants or conditions, including costs incurred prior to commencement of
legal action, and all costs and expenses, including reasonable attorneys'
fees, incurred in any appeal from an action brought to enforce any of the
terms, covenants or conditions.
15. ENFORCEMENT; SEVERABILITY. The Corporation and Employee recognize and
acknowledge that Employee is employed under this Agreement as an employee in a
position where Employee will be rendering personal services of a special,
unique, unusual and extraordinary character requiring extraordinary ingenuity
and effort by Employee. Employee
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agrees that the breach by him of this Agreement, including its covenants,
could not reasonably or adequately be compensated in damages in an action at
law and that the Corporation shall be entitled to injunctive relief, which
may include but shall not be limited to restraining Employee from rendering
any service that would breach this Agreement. However, no remedy conferred
by any of the specific provisions of this Agreement is intended to be
exclusive of any other remedy, and each and every remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or otherwise. The
election of any one or more remedies by the Corporation shall not constitute
a waiver of the right to pursue other available remedies. If in any
proceeding, an arbiter shall refuse to enforce this Agreement, whether
because the restrictions contained herein are more extensive than is
necessary to protect the business of the Corporation, it is expressly
understood and agreed between the parties hereto that this Agreement is
deemed modified to the extent necessary to permit this Agreement to be
enforced in any such proceedings. The validity and enforceability of the
remaining provisions or portions thereof shall not be affected thereby and
shall remain valid and enforceable to the fullest extent permitted under
applicable laws.
16. CONTINUING OBLIGATIONS. Employee's obligations pursuant to
Paragraphs 10 and 11 of this Agreement and the rights and remedies of the
Corporation hereunder shall continue in effect beyond the term of this
Agreement and such obligations shall be binding on Employee's assigns, heirs,
executors, administrators and other legal representatives.
17. ACCOUNTING FOR PROFITS. Employee covenants and agrees that if he
violates the provisions of Paragraphs 10, 11 or 12, the Corporation shall be
entitled to an accounting and repayment of all profits, compensation,
commissions, remuneration or other benefits that Employee has realized and/or
may realize as a result of or in connection with any such violation. These
remedies shall be in addition and not in limitation of any injunctive relief
or other rights or remedies to which the Corporation is or may be entitled
at law, in equity or under this Agreement.
18. ARBITRATION. Any controversy or dispute between the parties to
this Agreement involving the construction, interpretation, application or
performance of the terms, covenants or conditions of this Agreement, or in
any way arising under this Agreement shall, be decided by neutral binding
arbitration in accordance with the rules of the American Arbitration
Association, and not by court action except as provided by Nevada law for
judicial review of arbitration proceedings. Judgment upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The parties shall have the right to discovery. The filing of a judicial
action to enable the recording of a notice of pending action, for order of
attachment, receivership, injunction, or other provisional remedies, shall
not constitute a waiver of the right to arbitrate under this provision.
19. WAIVER OR MODIFICATION. No waiver or modification of this
Agreement or of any covenant, condition, or limitation herein contained shall
be valid unless in writing and duly executed by the party to be charged
therewith. Furthermore, no evidence of any modification or waiver shall be
offered or received as evidence in any arbitration between the parties
arising out of or affecting this Agreement or the rights or obligations of
any party hereunder, unless such waiver or modification is in writing, duly
executed as aforesaid. The provisions of this Paragraph may not be waived
except as herein set forth.
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20. ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement between the parties as to the matters contained herein, and
supersedes any and all other agreements between them. The parties
acknowledge and agree that neither of them has made any representation with
respect to such matters of this Agreement or any representations except as
are specifically set forth herein, and each party acknowledges that he or it
has relied on his or its own judgment in entering into this Agreement. The
parties further acknowledge that statements or representations that may have
been heretofore made by either of them to the other are void and of no effect
and that neither of them has relied thereon in connection with his or its
dealing with the other.
21. CHOICE OF LAW. This Agreement and the performance hereunder and
all suits and special proceedings hereunder shall be construed in accordance
with the laws of the State of Nevada.
22. BINDING EFFECT OF AGREEMENT; ASSIGNMENT; MERGER; DISSOLUTION. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their heirs, successors, assigns and legal representatives. This
Agreement shall be construed as a contract for personal services by Employee
to the Corporation and shall not be assignable by Employee. In the event of
the sale, merger or consolidation of the Corporation and subject to
Employee's right to terminate this Agreement as herein provided, Employee
agrees that the Corporation may assign its rights and obligations hereunder
to its successor or purchaser.
23. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand or when mailed by certified
registered mail, return receipt requested, with postage prepaid to their
current address or to such other address as they request in writing.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first written above.
"Corporation"
xxxxxxxxxxxx.xxx
By:/s/ XXXX XXXXX
------------------------------------
Xxxx Xxxxx, President
"Employee"
/s/ Xxxxx Xxxxxx
-----------------------------------------
XXXXX XXXXXX
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