EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 30th day of June, 1999.
BETWEEN:
XXXXXXXXXXXXXX.XXX, INC., Suite 1000 - 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, XX
00000
(hereinafter called the "Company")
OF THE FIRST PART
AND:
XXXXXX X. XXXXXX, businessman of 00 Xxxxx Xxxx, Xxxx Xxxxx, XX 00000
(hereinafter called "Xxxxxx")
OF THE SECOND PART
WHEREAS:
A. The Company has recently acquired substantially all of the assets of
Clickshop (the "Business"), including certain application software known as the
"GOLDPAINT SHOPPING CART" software and certain operating system software known
as "TAG ACTIVATED MARKUP ENHANCER (TAME)" software (collectively, the "Assets")
and wishes to further develop and market the Asset; and
B. The Company has agreed to employ Xxxxxx and Xxxxxx has agreed to be
employed by the Company on the terms and conditions hereinafter set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises
and the mutual covenants and agreements herein contained, and the sum of $10 now
paid by the Company to Xxxxxx, the Parties hereto covenant and agree, each with
the other, as follows:
1. TERMS
1.1 The terms used in this Agreement will have the same meaning as
those set out in the asset purchase agreement dated June 30, 1999 among Xxxxxx,
the Company and Xxxx Xxxxxxx (the "Asset Purchase Agreement"), unless otherwise
specified.
2. EMPLOYMENT, TERM AND DUTIES
2.1 The Company hereby employs Xxxxxx to train employees, or other
persons designated by the Company with respect to:
(a) the operation of the Business;
(b) how to support and service existing customers of the Business; and
(c) how to further develop the Assets.
2.2 All such employment will take place in Ohio unless otherwise
directed by the Company.
2.3 The effective date of this Agreement is June 30, 1999 and the
employment of Xxxxxx hereunder shall continue, unless terminated in accordance
with the terms and conditions of this Agreement, for a one year term to June 29,
2000.
2.4 Unless prevented by ill health or other sufficient cause, during
the term of this Agreement, Xxxxxx shall devote the whole of his time and
attention to the business of the Company.
2.5 Xxxxxx shall well and faithfully serve the Company and shall use
his best efforts to promote the interests of the Company.
3. REMUNERATION
3.1 The Company shall pay to Xxxxxx immediately upon the commencement
of employment the sum of ten thousand ($10,000) dollars (the "Advance").
3.2 The remuneration of Xxxxxx shall be sixty thousand ($60,000)
dollars annually (including the Advance), payable monthly on the last day of
each month during the term of this Agreement, commencing July 31, 1999.
3.3 The Company shall deduct from all payments due to Xxxxxx, all
applicable government taxes as required of employers by federal and state
legislation.
3.4 There are no other benefits or compensation payable to Xxxxxx
pursuant to this Agreement.
4. DISCLOSURE OF CONFIDENTIAL INFORMATION
4.1 At all times during and subsequent to the termination of this
Agreement, Xxxxxx will receive and keep in strictest confidence and trust the
Confidential Information. Xxxxxx will take all necessary precautions against
unauthorized disclosure of the Confidential Information and will not directly or
indirectly disclose, allow access to, transmit or transfer the Confidential
Information to any third party and Xxxxxx will not copy or reproduce the
Confidential Information or store the Confidential Information on any form of
media, except as may be reasonably required to perform his duties for the
Company.
5. RESTRICTED USE OF CONFIDENTIAL INFORMATION
5.1 At all times during and subsequent to the termination of this
Agreement, Xxxxxx will not use the Confidential Information in any manner except
as reasonably required to perform his duties for the Company. Without limiting
the foregoing, at all times during and subsequent
to the termination of this Agreement, Xxxxxx will not use or take advantage of
the Confidential Information for the purpose of creating, maintaining or
marketing or aiding in the creation, maintenance or marketing of any product or
service which is competitive with any product or service developed, owned,
licensed, sold or marketed by the Company.
5.2 Upon the request of the Company, and in any event upon the
termination of this Agreement, Xxxxxx will immediately return to the Company all
materials, including all copies in whatever form or media, containing the
Confidential Information which are in his possession or under his control.
6. OWNERSHIP OF CONFIDENTIAL INFORMATION
6.1 Xxxxxx will not acquire any right, title or interest in or to the
Confidential Information, all of such right, title and interest being owned by
the Company.
7. NON-COMPETITION
7.1 During Xxxxxx'x employment and for the period of twelve (12) months
immediately following the termination of this Agreement, Xxxxxx will not,
without the prior written approval of the Company, become engaged, directly or
indirectly, as an employee, consultant, contractor, partner, principal, agent,
proprietor, shareholder (other than the holding of shares listed on a public
stock exchange that does not exceed 2% of the outstanding shares so listed),
investor or advisor in a business anywhere else in the world where the Company
markets its products or services that:
(a) develops, markets, sells or licences products competitive with those
products developed, marketed, sold or licensed by the Company; or
(b) that provides consulting, maintenance, support or training services that
are competitive with the consulting, maintenance, support or training services
provided by the Company,
save for in accordance with the terms of the Asset Purchase Agreement.
8. NON-SOLICITATION OF CLIENTS
8.1 While Xxxxxx is employed by the Company and for the period of two
(2) years immediately following the termination of this Agreement, Xxxxxx will
not, directly or indirectly, contact or solicit any clients of the Company for
the purpose of selling or supplying to such clients, any products or services
which are competitive with the products or services developed, marketed, sold or
licensed by the Company at the time of the termination of this Agreement. For
the purpose of this Agreement, clients of the Company means any business or
organization that:
(a) was a client of the Company at the time of the termination of this
Agreement; or
(b) became a client of the Company within six months after the termination
of this Agreement if Xxxxxx was involved with the marketing effort in respect of
such client prior to the termination of this Agreement.
9. NON-SOLICITATION OF EMPLOYEES AND CONSULTANTS
9.1 While Xxxxxx is employed by the Company and for the period of
twelve (12) months immediately following the termination of this Agreement,
Xxxxxx will not directly or indirectly hire any employees of or consultants or
contractors to the Company, nor will Xxxxxx solicit or induce or attempt to
induce any persons who were employees of or consultants or contractors to the
Company at the time of such termination or during the period of ninety (90) days
immediately preceding such termination, to terminate their employment,
consulting agreement or contract for services with the Company.
10. REASONABLENESS OF NON-COMPETITION AND NON-SOLICITATION OBLIGATIONS
10.1 Xxxxxx confirms that the obligations in Sections 7, 8 and 9 herein
are fair and reasonable given that, among other reasons the sustained contact
Xxxxxx will have with the employees of the Company and to the Confidential
Information, and Xxxxxx agree that the obligations in Sections 7, 8 and 9,
together with his other obligations under this Agreement are reasonably
necessary for the protection of the Company's proprietary interests.
10.2 Xxxxxx further confirm that the geographic scope of the
obligations in Sections 7, 8 and 9 are reasonable, given the international
nature of the market for the products and services of the Company.
10.3 Xxxxxx also agree that the obligations in Sections 7, 8 and 9 are
in addition to the non-disclosure and other obligations provided elsewhere in
this Agreement.
10.4 Xxxxxx further acknowledge that the fulfilment or enforcement of
his obligations contained in this Agreement will not preclude me from becoming
gainfully directly employed in the computer software industry following
termination of this Agreement, given his general knowledge and experience in
such industry.
11. SEVERABILITY
11.1 If any covenant or provision contained in this Agreement is
determined to be void or unenforceable in whole or in part, it shall not affect
or impair the enforceability or validity of any other covenant or provision of
this Agreement or any part thereof.
12. ASSIGNMENT
12.1 This Agreement will enure to the benefit of and be binding upon
the parties hereto and upon the successors and assigns of the Company. This
Agreement and the rights, duties, responsibilities and obligations of Xxxxxx
hereunder may not be assigned by Xxxxxx. This Agreement may be assigned by the
Company to any other person, firm or corporation without restriction, provided
that any such assignment will be subject to such assignee executing in
writing an agreement acknowledging and accepting the terms, conditions,
covenants and agreements contained herein.
13. FURTHER ASSURANCES
13.1 As and so often as the Company may require, Xxxxxx will, at the
expense of the Company, execute and deliver to the Company all such further
documents, do or cause to be done all such further acts and things, and give all
such further assurances as in the opinion of the Company or its counsel are
necessary or advisable to give full effect to the provisions and intent of this
Agreement.
14. PROPER LAW
14.1 This Agreement will be governed by and construed in accordance
with the law of British Columbia and the parties hereby attorn to the exclusive
jurisdiction of the courts of British Columbia.
15. AMENDMENTS/ALTERATIONS
15.1 Except as herein otherwise provided, no subsequent alteration,
amendment, change, or addition to this Agreement will be binding upon the
parties hereto unless reduced to writing and signed by the parties.
16. INDEPENDENT LEGAL ADVICE
16.1 Xxxxxx has been notified of the advisability of obtaining
independent legal advice and has been given adequate opportunity to obtain such
legal advice prior to executing and delivering this Agreement.
17. NON-WAIVER
17.1 The Company may at any time and from time to time waive in whole
or in part the benefit to it of any provision in this Agreement or any default
by Xxxxxx; but any waiver on any occasion will be deemed not to be a waiver of
that provision thereafter or of any subsequent default or a waiver of any other
provision or default.
IN WITNESS WHEREOF the parties hereto have hereunto placed their hands and seal
or their corporate seal in the presence of their duly authorized officer upon
the day and year first above written.
XXXXXXXXXXXXXX.XXX, INC.
Per: /s/ signed
Authorized Signatory
SIGNED, SEALED AND DELIVERED )
by XXXXXX X. XXXXXX in the presence of:. )
)
)
Name. . . . . . . . . . . . . . . . . . )
)
Address . . . . . . . . . . . . . . . . )
)
)
) . . . . . . . . . . . . /s/ Xxxxxx X. Xxxxxx
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Occupation. . . . . . . . . . . . . . . . . . ) Xxxxxx X. Xxxxxx
