Exhibit 10.4 Employment Agreement with Xxx X. Xxxxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 1st day of January, 2002,
by and between FORCE 10 TRADING, INC., a Nevada corporation (herein called the
"CORPORATION"), and XXX X. XXXXXX (herein called the "EMPLOYEE").
1. EMPLOYMENT. The CORPORATION hereby employs EMPLOYEE, and EMPLOYEE
hereby accepts such employment, to serve as and in the capacity of
Chief Executive Officer or such other capacity as may be determined by
the Board of Directors of the CORPORATION upon and subject to the terms
and conditions set forth herein.
2. TERM OF EMPLOYMENT. The term of this Agreement, and the term of the
employment of EMPLOYEE hereunder, shall be for a period of five (5)
years beginning January 1, 2002 and ending December 31, 2007, unless
sooner terminated in the manner provided herein. The term of this
Agreement and of the employment of EMPLOYEE hereunder may be extended
or renewed for such additional terms or periods and upon and subject to
such additional terms and conditions as the parties may agree.
5. DUTIES.
D. EMPLOYEE, during normal business hours, shall devote his best
efforts and his entire time, attention and energy to the
business and affairs of the CORPORATION. EMPLOYEE shall
perform all duties normally and properly incident to the
office or positions held by him and such further duties as may
from time to time be assigned to him by the Board of Directors
of the CORPORATION.
E. EMPLOYEE agrees to adhere to all existing rules and company
policies of the CORPORATION, as well as any other procedures,
duties and responsibilities that may be reasonably required of
EMPLOYEE and promulgated by the CORPORATION, its executive
officers and its Board of Directors.
F. During the term of this Agreement, EMPLOYEE shall not engage,
directly or indirectly, in any activities competitive with any
business which is now or which hereafter may be conducted by
the CORPORATION, or its any of its subsidiaries.
6. COMPENSATION. As compensation for the services rendered by EMPLOYEE
during the term of this Agreement, the CORPORATION shall make the
following payments to EMPLOYEE:
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E. A base salary in the amount of ten thousand Dollars
($10,000.00) per month. This amount will be paid pro-rata
twice a month unless employment is terminated in a manner
provided herein. On January 1 of each year under this
contract, the monthly salary due under this subparagraph shall
increase by ten percent (10%).
F. An override commission shall be paid to EMPLOYEE on all sales
of instructional materials by CORPORATION or any of its
subsidiaries in the amount of four percent (4%) of gross
sales.
G. EMPLOYEE shall be due an annual bonus as determined by the
Compensation Committee of the Board of Directors of
CORPORATION. Such bonus may be paid in cash or stock form as
determined by the Compensation Committee of the Board of
Directors of CORPORATION.
H. EMPLOYEE shall be granted under a separate agreement, the
option to purchase one million (1,000,000) shares of common
stock in CORPORATION at a price of $0.25 per share. These
options shall vest pro-rata over a three-year period
commencing on June 30, 2002. One-third of the options will
vest on June 30, 2002 and an additional one-third of the
options will vest on June 30, 2003. The remaining options will
vest on June 30, 2004.
5. EMPLOYEE BENEFITS. During the term of this Agreement, EMPLOYEE shall
receive and be entitled to participate in all benefits customarily
offered to or conferred upon other employees of the CORPORATION.
7. TERMINATION OF EMPLOYMENT.
B. Upon the occurrence of any of the following events and the
expiration of the period, if any, specified, this Agreement
and the employment of EMPLOYEE hereunder shall terminate:
(6) The death of EMPLOYEE.
(7) The expiration of a period of three (3) business days
after the delivery by EMPLOYEE of notice of
resignation of EMPLOYEE as an employee of the
CORPORATION.
(8) The "disability" of EMPLOYEE. The term "disability",
as used herein, shall mean the inability or failure
of EMPLOYEE, by reason of any medically demonstrable
physical or mental condition, to perform his duties
hereunder. The disability of EMPLOYEE shall be deemed
to have occurred if: (i) the issuer of any disability
income policy insuring EMPLOYEE shall have determined
that EMPLOYEE is disabled, whether partially or
totally, within the meaning of the provisions of such
policy; (ii) EMPLOYEE shall be absent from work for a
period of sixty (60) consecutive business days or two
or more periods, each of which shall be of less than
sixty (60) business days but all of which in the
aggregate shall be of more than ninety (90) business
days for any reason without the written notice of the
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CORPORATION or (iii) the CORPORATION shall have
received written opinions from two duly licensed
physicians that EMPLOYEE, by reason of any medically
demonstrable physical or mental condition, is unable
to perform his duties for the foreseeable future or
that the continued performance of his duties will
endanger his life.
(9) The misconduct of EMPLOYEE as evidenced by the
following:
(e) The material breach by EMPLOYEE of any
covenants of this Agreement.
(f) The habitual neglect by EMPLOYEE of his
duties as an employee.
(g) The commission by EMPLOYEE of fraud,
misappropriation, embezzlement or the like.
(h) Any gross or lewd misbehavior, any material
wrongdoing, any criminal activity or the
like on the part of the EMPLOYEE.
(10) A determination on the part of the Board of Directors
of the CORPORATION of the inability or failure of
EMPLOYEE to perform his duties hereunder in a
reasonably satisfactory manner.
7. CONFIDENTIAL INFORMATION AND TRADE SECRETS. As consideration for and to
induce the employment of EMPLOYEE by the CORPORATION, EMPLOYEE hereby
covenants and agrees that:
E. All information relating to or used in the business and
operation of the CORPORATION including, but not limited to,
data, records, computer programs, manuals, processes, methods,
marketing programs and intangible rights and procedures,
client and customer lists, and client lead lists whether
prepared, compiled, developed or obtained by EMPLOYEE or by
the CORPORATION prior to or during the term of this Agreement
and the employment of EMPLOYEE hereunder, are and shall be
confidential information and trade secrets which are the
exclusive property of the CORPORATION.
F. All programs, customer and clients lists, computer programs,
manuals, records, data and processes relating to or used in
the business and operations of the CORPORATION or of any of
its customers and made, first reduced to practice, devised or
conceived by EMPLOYEE, alone or with others, during the term
of this Agreement and the employment of EMPLOYEE hereunder,
whether made, first reduced to practice, devised or conceived
during or outside of regular working hours, on or away from
the CORPORATION's premises or at the expense of the
CORPORATION or of EMPLOYEE or of any other person, are and
shall be confidential information and trade secrets which are
the exclusive property of the CORPORATION. EMPLOYEE further
agrees that he shall promptly and fully disclose and assign to
the CORPORATION (or, if the CORPORATION shall otherwise direct
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EMPLOYEE in writing, as so directed by the CORPORATION) all
rights and interests that he has or may have in and to all
such programs, lists, records and data. All such matters are
and shall be confidential information and trade secrets, which
are the exclusive property of the CORPORATION whether or not
so disclosed or assigned. EMPLOYEE shall fully cooperate with
the CORPORATION and its representatives in preparing, and
shall execute, acknowledge and deliver as directed by the
CORPORATION, such instruments (including, but not limited to,
assignments, applications for copyrights, trade names and
trademarks) and take such other action as the CORPORATION may
deem necessary or appropriate to evidence of effect the
provisions of this paragraph.
G. All records, customer and client lists, programs, data,
computer programs and other materials relating to confidential
information and trade secrets which are the exclusive property
of the CORPORATION, including, without limitation, material in
written form or in a form produced or stored by any electrical
or mechanical means or process, whether prepared, compiled or
obtained by EMPLOYEE or by the CORPORATION or prior to or
during the term of this Agreement and the employment of
EMPLOYEE hereunder, are and shall be the exclusive property of
the CORPORATION.
H. Except in the regular course of his employment by the
CORPORATION hereunder or as the CORPORATION may expressly
authorize or direct in writing, EMPLOYEE shall not, during or
after the term of this Agreement and of his employment
hereunder copy, reproduce, disclose or divulge to others, use
or permit others to use any confidential information and trade
secrets which are the property of the CORPORATION, or any
records, client and customer lists, lead lists, data, computer
programs, other materials relating to any such confidential
information or trade secrets. EMPLOYEE further covenants and
agrees that during the term of this Agreement and his
employment by the CORPORATION he shall not remove from the
custody and control of the CORPORATION any lists, data,
recorders, computer programs and other materials relating to
such confidential information and trade secrets and that upon
termination of this Agreement and of his employment he shall
deliver the same to the CORPORATION.
8. RESTRICTION OF ACTIVITY WITH CUSTOMER AND EMPLOYEES. The EMPLOYEE
agrees that his services hereunder are of special, unique,
extraordinary and intellectual character, and that his position with
the CORPORATION places him in a position of confidence and trust with
the clients and customers and employees of the CORPORATION. EMPLOYEE
also acknowledge that the customers serviced by the CORPORATION are
located throughout the world and, accordingly, it is reasonable that
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the restrictive covenants set forth below are not limited by specific
geographic area but by the location of the CORPORATION's customers and
potential clients and customers EMPLOYEE further acknowledges that the
rendering of services to the clients and customers necessarily requires
the disclosure of confidential information and trade secrets of those
clients and customers (such as, without limitation, marketing plans,
manufacturing processes, budgets, designs, customer preferences and
policies, and identify of appropriate personnel of customers with
sufficient authority to influence a shift in suppliers). The EMPLOYEE
has and will continue to develop a personal acquaintanceship and
relationship with the CORPORATION's customers and/or business partners,
and a knowledge of those customers' and partners' affairs and
requirements, which may constitute the CORPORATION's primary or only
contact with such customers. The EMPLOYEE acknowledges that the
CORPORATION's relationships with its established customers and business
partners may therefore be placed in the EMPLOYEE's hands in confidence
and trust. The EMPLOYEE consequently agrees that it is reasonable and
necessary for the protection of the goodwill business of the
CORPORATION that the EMPLOYEE make the covenants contained herein; that
the covenants are given as an integral part of and incident to this
Agreement; that there is adequate consideration for such covenants and
employment hereunder; that in making its decision to employ EMPLOYEE
for the consideration outlined above, the CORPORATION relied upon and
was induced by the covenants made by the Executive in the Section 8.
Accordingly, the EMPLOYEE agrees that while he is in the CORPORATION's
employ and for a three (3) year period after termination of employment,
he shall not directly or indirectly:
A. Solicit (or attempt to solicit) business from or perform any
services for any "Client(s)" or "Customer(s)" of the type
performed by the CORPORATION or to persuade any "Client(s)" or
Customer(s) to cease to do business or to reduce the amount of
business which any such "Client(s)" or Customer(s) has
customarily done or contemplates doing with the CORPORATION.
For purposes of this Agreement, "Client(s)" or "Customer(s)"
shall mean (i) any company, person, or other entity the
EMPLOYEE has had personal involvement with, solicited capital
from, or provided services to, while employed by CORPORATION:
or (ii) any company, person or other entity where CORPORATION
has performed work, solicited capital from, made presentations
or otherwise proposed CORPORATION services within the six (6)
months preceding EMPLOYEE's termination; or
B. Employ, attempt to employ or assist anyone to employ or
attempt to employ any person employed by the CORPORATION.
9. EQUITABLE REMEDIES. The parties acknowledge and agree that in the event
of a default or breach or of a threatened default or breach by EMPLOYEE
of the provisions of Section 7 and 8 of this Agreement, the CORPORATION
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shall sustain irreparable injury and damages, the amount or extent of
which cannot be measured in money and for which there does not and
shall not exist any adequate remedy at law. Accordingly, each of the
parties hereby agrees that in the event of a fault or breach or of a
threatened default or breach by EMPLOYEE of the provisions of Section 7
and 8 of this Agreement, the CORPORATION shall be entitled to immediate
injunctive relief and to specific performance and that in any legal
action or proceeding for injunctive relief and specific performance the
EMPLOYEE or CORORATION shall be deemed to have hereby waived, and shall
not assert in such action or proceeding, the defense or claim that the
CORPORATION has an adequate remedy at law or that an adequate remedy at
law exists. The foregoing shall not, however, be deemed to limit or
restrict the remedies at law or in equity of the CORPORATION for any
default or breach or any threatened default or breach of the provisions
of this Agreement. The covenants contained in this paragraph shall be
construed as covenants independent of any other provisions of this
Agreement, and the existence of any claim or cause of action by one
party against the other shall not constitute a defense to the
enforcement thereof.
10. SEVERANCE. Upon the termination of this contract for any reason other
than those described in subparagraphs 6(A)(4)(c) or 6(A)(4)(d),
EMPLOYEE shall be due severance pay equal to the payments as calculated
in Paragraph 4 herein for a period of five (5) years.
11. NOTICES. All notices, directions, consents, other communications to,
upon, and between the parties shall be in writing and shall be deemed
to have been given, delivered, made and received when sent or mailed by
certified mail, postage prepaid and return receipt requested, addressed
to the CORPORATION at its principal office and to EMPLOYEE at his
residential address as it appears on the employment records or the
CORPORATION
12. PRIOR AGREEMENTS. All prior agreements and understandings of every kind
between the parties regarding the employment of EMPLOYEE by the
CORPORATION are superseded by this Agreement and are hereby terminated.
13. EFFECT. This Agreement shall be binding on and inure to the respective
benefit of EMPLOYEE and the personal representative of EMPLOYEE and the
CORPORATION and its successor and assigns.
14. SEVERABILITY. The invalidity or unenforceability or any provision of
this Agreement shall not affect the validity or enforceability of any
other provision.
15. MODIFICATION. No provision of this Agreement, including the provision
of this paragraph, may be modified, deleted or amended in any manner
except by an Agreement in writing executed by each of the parties.
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16. ASSIGNMENT. Neither this Agreement nor any interest herein may be
assigned by either party.
17. CONSTRUCTION. This Agreement is executed and delivered in the State of
Utah and shall be construed and enforced in accordance with the laws of
such state.
18. ORIGINAL COPIES. This Agreement may be executed in more than one
counterpart, each of which shall be deemed an original and binding as
against the signator.
19. HEADINGS. The underlined headings herein are for convenience only and
shall not affect the interpretation of this Agreement.
20. ATTORNEYS' FEE. If either party brings an action to enforce his or its
rights under this Agreement, in addition remedies to which such party
may be entitled, the prevailing party shall be entitled to recover
attorneys' fees and costs.
SIGNATURE PAGE FOLLOWS
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WITNESS the following signatures as of the above written date.
CORPORATION: FORCE 10 TRADING, INC.
A Nevada corporation
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Director
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Director
EMPLOYEE: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
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