EMPLOYMENT AGREEMENT
State of Texas County of Xxxx
This Agreement is made by and between Xxxxxx X. Xxxx, "Employee" and
Communicate Xxx.xxx Inc. "Employer". This Agreement is made on March 15, 2000.
In consideration of the promises and of the mutual covenants and agreements
contained in this (Employment Agreement), here in after known as the Agreement,
the parties hereby agree as follows:
I. Definitions
1.01 "Customer" is hereby defined for the compensation section of
this agreement as a person or entity that purchases a
Communicate Xxx.xxx Inc. display advertisement, mini web page,
or web page for the first time.
1.02 "Employer" is hereby defined as Communicate Xxx.xxx Inc., a
Delaware Corporation.
1.03 "Employee" is hereby defined as Xxxxxx X. Xxxx.
II. SCOPE OF AGREEMENT AND LIMITATIONS OF AUTHORITY
2.01 The purpose of this Agreement is to employ Employee for the
express purpose of allowing Employee to manage Employer's office
and operations help center, and serve in a secretary capacity.
Employee is entitled to the rights and privileges detailed in
this Agreement and to no other privileges. Employee shall be
entitled to compensation per the compensation section of this
Agreement.
2.02 Employee has no authority to act for or on behalf of Employer
except as provided for in this Agreement and in the Bylaws of
the Corporation. No other authority, power or use is granted or
implied.
2.03 Employee may not make, revise, alter, or otherwise diverge from
the terms, conditions, prices or policies furnished to Employee
by Employer.
2.04 Employee may not incur and debt, obligation, expense or other
liability of any kind against Employer without Employer's
express prior and written permission, or in accordance with the
Bylaws of the Corporation.
III. DUTIES OF EMPLOYEE AND TERM OF THE AGREEMENT
3.01 The term of the Agreement shall be for one year from the date
the Agreement is executed by the Employee and Employer, here in
after known as "the parties".
3.02 If, after the term of the Agreement has expired, the parties
continue to do business together as if the Agreement were still
in effect, the Agreement shall be renewed and shall continue in
effect until one of the parties notifies the other in writing of
its termination. The termination letter must give 30 days'
written notice to the other party.
3.03 Termination may be by agreement, on 30 days' written notice
pursuant to Provision 3.02 above, or on the breach of this
Agreement by Employee. The breach of this Agreement includes,
but is not limited to, a violation of Employer's rules or
policies, a breach of the non-competition agreement contained in
this Agreement, the making of a misrepresentation or false
statement by Employee, nonperformance of Employee's duties,
death of Employee, or the occurrence of a conflict of interest
between Employee and Employer.
(a) A decision by Employer to terminate this Agreement shall be
without prejudice to any other remedy to which Employer may
be entitled either at law or in equity or under this
Agreement, and shall follow the notice for a termination as
outlined in provision 3.02.
(b) Employer may also have the right to declare this Agreement
void and terminate the employment contract in the event that
Employer files a petition in bankruptcy court or is
adjudicated bankrupt, has a receiver appointed of his
assets, or makes a general assignment of his assets for the
benefit of his creditors.
3.04 If Employee becomes permanently disabled because of sickness, or
physical or mental disability, or for any other reason, so that
it reasonably appears that he will be unable to perform his
duties under this Agreement, Employer shall have the option to
terminate this Agreement immediately by giving written notice of
the termination to Employee as outlined in provision 3.02. The
termination shall be without prejudice to any other right or
remedy to which Employer may be entitled either in law or in
equity or under this Agreement.
3.05 Effect of Termination on Compensation. In the event of
termination of this Agreement prior to the completion of the
term of employment specified herein, Employee shall be entitled
to the compensation earned prior to the date of termination as
provided for in the compensation section of this agreement.
3.06 In the event of termination of this Agreement prior to the
completion of the specified term, Employee shall automatically
and completely forever forfeit any rights employee may have in
any bonus, incentive plan or Employer benefit or pension plan,
if any, established by Employer. Furthermore; Employee will
forfeit any right or title to commissions on sales that may have
been instituted by Employee but have not been completed and
approved prior to the termination of this Agreement.
3.07 Damages for Breach of Contract. In the event of a breach of this
Agreement by Employee, Employer may recover from Employee any
and all damages that Employer may sustain as a result of the
breach of this Agreement. This includes Employer's legal fees.
3.08 Payment of Monies due a Deceased Employee. If Employee dies
prior to the expiration of the term of the Agreement, any monies
that may be due Employee under this Agreement shall be paid to
Employee's executors, administrators, heirs, personal
representatives, successors or assigns.
3.09 Employee hereby represents and warrants to Employer that
Employee is not under any impediment, restraint, or disability
that would prohibit, hinder, or in any way impair Employee's
working ability or relationship with Employer. Employee hereby
represents that Employee is under no prior restrictive trade
covenant agreement or other legal restraint which would cause a
breach of the agreement if Employee becomes an employee or
Employer, and Employee represents that Employer will not be in
violation of any such prior employment contract or restrictive
trade agreement by hiring Employee.
3.10 Duties. Employer hereby hires employee to perform the duties of
Vice President, Operations and Technology. Employee agrees to
provide prompt, courteous, efficient, and professional efforts
to promote the work assigned by Employer and covered by this
Agreement.
3.11 Employee at all times during the performance of this Agreement
shall strictly adhere to and obey all the rules and regulations
now in effect or subsequently promulgated by Employer.
3.12 The employment or Employee shall continue only so long as
services rendered by Employee are satisfactory to Employer,
regardless of any other provision contained in this Agreement.
Employer shall be the sole judge as to whether the services of
Employee are satisfactory.
3.13 In addition to the foregoing, Employee shall perform such other
work as may be assigned, subject to the instruction, direction,
and control of Employer, provided only that any such additional
duties shall be covered by the compensation schedule reflected
in this Agreement.
3.14 Employer shall have the right at any time during this Agreement
to assign Employee, in the discretion of Employer, to perform
duties different in any manner whatsoever from the duties
originally assigned and specified above.
3.15 Employee shall devote Employee's entire time, ability, and
attention to the business of Employer during the term of this
contract. Employee shall not directly or indirectly render any
services to any business or to any other person or organization,
or be involved in any business or commercial or professional
venture of any nature, whether for compensation or otherwise,
without the prior written consent of Employer.
IV. COMPENSATION
4.01 In consideration of Employee's efforts, Employer agrees to pay
to Employee;
Base pay of $100,000.00 USD per year.
Supply the Employee a cell phone including expenses.
Supply the Employee a Laptop computer with docking capability at home
and office, including ISP fees for the home location.
When available supply medical coverage in accordance with the Employer's
normal health insurance plan. Until a health insurance plan is available
the Employer will compensate the Employee $500.00 ISD per month from
time of employment until such time the Employer makes available a health
insurance plan.
Six paid holidays and 3 weeks of paid vacation per year.
A yearly bonus paid in December of each year and based upon the number
of sales as follows:
4.02 Employer agrees to pay Employee twice per month, on the first
(1st) and the fifteenth (15th).
4.03 Employer shall deduct from Employee's compensation all
applicable local, state, federal or foreign taxes, including
income tax, withholding tax, social security tax, and pension
contributions, if any.
V. NONCOMPETITION PROVISIONS
5.01 The parties hereto agree that the covenants, agreements and
restrictions (hereinafter refereed to or known as "this
covenant") contained herein are necessary to protect the
business goodwill, business interests and proprietary rights of
Communicate Xxx.xxx Inc. and that the parties hereto have
independently discussed, reviewed and had the opportunity of
legal counsel to consider this agreement and now hereby agree
and stipulate the following:
(a) This covenant is an integral part of an enforceable
agreement and the covenants contained herein were made at
the time this agreement was consummated by the parties
hereto.
(b) This covenant is fair and reasonable in its:
1. Geographical area;
2. Length of time; and
3. Scope of activity being restrained.
5.02 Restrictive Covenants. Employee expressly agrees that while the
contract is in effect, and for a period of one year following
the termination of this Agreement, Employee will not directly or
indirectly, as an employee, agent, proprietor, partner, broker,
stockholder, officer, director, or otherwise, render any service
to, on Employee's own behalf or on behalf of any other person or
entity, engage in or own a part of any competitive business or
organization or plan that would compete directly or indirectly
with Employee's business, in any country, world wide, without
prior written consent of employer.
(a) Employee further expressly agrees that Employee will not use
for Employee's own benefit or disclose to any person any
information, including confidential information, of Employer
obtained or learned while acting as an employee for
Employer, without prior written consent of Employer.
(b) The agreements contained in this section on the part of
Employee shall be construed as agreements independent of
any other provision of this Agreement. The existence of any
claim or cause of action against Employee by Employer,
whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Employer of the
agreements contained in this section.
5.03 The parties hereby agree and acknowledge that employer has spent
considerable sums of money and time in developing good customer
contact and rapport and that the client list or customer list
developed by Employer is worth a considerable amount of money
and therefore is a benefit which Employer seeks to protect. Such
protection is hereby agreed and acknowledged by both parties as
being reasonable consideration for establishing this restrictive
covenant.
5.04 The parties hereby agree that it may be difficult or
impracticable to calculate or ascertain actually or definitely
the damages that Employer may suffer if Employee causes a breach
of this provision. Therefore Employer may resort, without
prejudice to any appropriate legal remedy, by injunction or
otherwise. If any of the foregoing restrictions in this
provision are held to be invalid, they shall be deemed to be
severable and shall not defeat the remaining provisions in this
Agreement.
5.05 Property Rights of Employer. Employee recognizes that the
business interests of Employer require a confidential
relationship between Employer and its employees, and the fullest
protection and confidential treatment of its trade secrets,
customer list, know-how, products and other business knowledge
developed, conceived and learned by Employee during the course
of employment. Accordingly, Employee agrees that, during the
term of employment with Employer, Employee will keep secret and
confidential all such information, trade secrets, products,
know-how, and customer lists and will not use the same to aid
Employee or others, either directly or indirectly. Employee
further agrees that, on termination of this Agreement, Employee
will surrender to Employer all papers, formulas, information
documents, writings and other properties in Employee's
possession relating to employer's business, including both
originals and any copies of such material. Employee also agrees
that Employee will not withhold any such documentation from
Employer. All customer lists, and all records of the accounts of
customers, and other records and books relating in any manner
whatsoever to the customers and prospective customers of
Employer shall be the exclusive property of Employer. Employee
shall immediately return all such books, records and catalogs to
Employer upon the termination of this Agreement. Employee shall
also return to Employer any and all identification cards, credit
cards, business documents or other documents, if any, to
Employer upon the termination of this Agreement.
5.06 Soliciting Customers after Termination of This Agreement.
Employee shall not, for a period of one year immediately
following the termination of this Agreement, regardless of the
reasons or cause for the termination and regardless of the party
causing the termination, either directly or indirectly: (a) make
known to any person, firm or corporation the names and addresses
of any of the customers of Employer or any other information
pertaining to them; or (b) call on, solicit, or take away, or
attempt to call on, solicit, or take away any of the customers
of Employer on whom Employee called or with whom Employee became
acquainted during the term of the Agreement either for
Employee's benefit or for any other person or entity.
VI. GENERAL AND ADMINISTRATIVE PROVISIONS
6.01 Parties Bound. This Agreement shall be binding on an inure to
the benefit of the parties and their respective heirs,
executors, administrators, legal representatives, successors and
assigns.
6.02 Assignment. Employee shall have no right to transfer or assign
Employee's interest in this Agreement without the prior written
consent of employer.
6.03 Corporate Authority. If any party to this Agreement is a legal
entity (partnership, corporation and/or trust), that party
represents to the other that this Agreement, the transaction
contemplated in this Agreement, and its execution and delivery,
have been duly authorized by all necessary partnership,
corporate, or trust proceedings and actions, including without
limitation action on the part of the directors, if the party is
a corporation. Certified copies of the corporate or other
resolutions authorizing this transaction shall be delivered at
execution.
6.04 Time limits. Time is of the essence in this Agreement; and all
time limits shall be strictly construed and rigidly enforced.
6.05 No Waiver. A failure or delay in the enforcement of the rights
detailed in this Agreement by Employer shall not constitute a
waiver of those rights or be considered a basis for estoppel.
Employer may exercise its rights under this Agreement despite
any delay or failure to enforce those rights.
6.06 Dispute or Contest. In the unlikely event that a dispute occurs
or an action in law or equity arises out of the operation,
construction, or interpretation of this Agreement, Employee
shall bear the expense of the attorney's fees and costs incurred
by Employer in the action.
6.07 Paragraph Headings. The paragraph headings used in this
Agreement are descriptive only and shall have no legal force or
effect whatever.
6.08 Use of Pronouns. The use of the neuter, masculine, or singular
to refer to a party described in this Agreement shall be deemed
a proper reference whether the party is an individual, a
partnership, a corporation, or a group of two or more
individuals, partnerships, or corporations. The grammatical
changes required to make the provisions of this Agreement
applicable to corporations, partnerships, individuals, or groups
of individuals, or to females as well as males shall in all
instances be assumed as though in each case fully expressed.
6.09 Texas Law. This Agreement shall be subject to and governed by
the laws of the State of Texas. Any and all obligations or
payments are due and payable in, Xxxx County, Texas.
6.10 Severability. If any provision of this agreement shall, for any
reason, be held violative of any applicable law, and so much of
the Agreement is held to be unenforceable, then the invalidity
of such a specific provision of this Agreement shall not be
deemed to invalidate any other provisions of this Agreement,
which other provisions shall remain in full force and effect
unless removal of the invalid provisions destroy the legitimate
purposes of this Agreement, in which event this Agreement shall
be canceled.
6.11 Entire Agreement. This Agreement represents the entire agreement
by and between the parties, except as otherwise provided in
this Agreement, and it may not be changed except by written
amendment duly executed by all parties.
6.12 Claims. All claims of Employee for compensation owed will be
waived by Employee if not claimed within 30 days from the date
of the termination of this Agreement.
6.13 Damages. In the event of a breach of this Agreement by Employee
resulting in damages to Employer, Employer may recover from
Employee such damages as Employer has sustained.
SIGNED, accepted and agreed to on March 15, 2000, by the undersigned parties who
hereby acknowledge that they have read and understood this Agreement and the
Attachments thereto, and that they execute this legal document voluntarily and
of their own free will.
Employer: Communicate Xxx.xxx Inc.
By: ______________________________________________________
Xxxxx Xxxxxxx, President
Employee: ________________________________________________
Xxxxxx X. Xxxx
