EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is effective as of April 26, 2000, by and
between XXXx.xxx, Inc. ("Employer"), and Xxxx Xxxxxx ("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 April 26, 2000, and continuing through April 30, 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 its Executive Vice President, to perform the
duties and assume the responsibilities assigned to Employee by Employer and
mutually agreed upon by the parties. Employer agrees that Employee's principal
time will be at Employer facilities in the south Florida area. Employee
acknowledges that the responsibilities will involve travel to other locations
and that he will make himself reasonably available for such travel.
2. Commitment of Employee. With the exceptions described in section 2E below,
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 reasonable 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, which shall not be unreasonably withheld,
Employee:
(A) 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 from said position, investment, or interest.
(B) 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..
(C) 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 with
which he engages in said activities are not adverse, competitive, or
antagonistic to Employer, Employer's business, or Employer's prospects.
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Exhibit - 10.24
(D) Notwithstanding the above, Employer acknowledges that Employee owns
part or all of a number of product companies for the marketing of products
through direct response. Employer acknowledges and agrees that Employee will
from time to time have administrative or ownership responsibilities that must be
done in order to keep these companies and/or product efforts alive. These
responsibilities will be performed at employee's expense and will be limited to
a maximum of four (4) hours per month. Employee will supply Employer with a
current list of such ownership at the time of execution of this Agreement and
shall be responsible for advising Employer in writing of changes to such list on
an ongoing basis throughout the term of this Agreement. As of the date of this
Agreement, Employee owns 25% of Xxxxxx/Fox Enterprises, LLC, and 100% of Xxxx
Xxxxxx Marketing Company, Inc.
3. Compensation.
(A) Salary. During his employment under this Agreement, Employer shall pay
Employee a salary at the rate of $150,000 per year payable biweekly, 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 three weeks
of paid vacation per year, and will provide Employee with a company paid cell
phone, notebook computer and such other reasonable tools the Employee will need
to fulfill his obligations under this Agreement.
(C) Signing Bonus. As a material inducement for signing this Agreement,
Employer agrees to grant, contemporaneous with the signing of this Agreement,
30,000 free trading shares of the Employer's Common Stock par value $.001, and
70,000 shares of same restricted under Rule 144 of the SEC. Such shares shall be
granted as of the close of business on May 26, 2000.
(D) Stock Options. Employer hereby grants to Employee options to purchase
100,000 shares of Employers Common Stock par value $.001 at a price per share
equal to the closing price of the stock on May 25, 2000. Such options shall be
at no cost to Employee and shall vest ratably each month throughout the
employment year, commencing May 2000. (For explanation, 1/12th of the 100,000
options vest at the end of May 2000, a second 1/12th at the end of June 2000,
and so on.). The shares underlying these options shall be registered by the
Employer in its next registration, but no later than six months subsequent to
the commencement of this Agreement.
(E) Incentive Compensation. Employee shall also be entitled to receive:
o 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
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Exhibit - 10.24
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. Employer and
Employee have agreed that the first two companies under this
section are StrategiNet and ATI Networks.
o 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.
o 7.5% of any monies raised by Employee for Employer or any of
Employer's affiliates or companies with which Employer has
agreements.
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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 him 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. Employer 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
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Exhibit - 10.24
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.
5. Representations and Warranties. Employee represents, acknowledges, and
warrants that:
(A) He has full right, authority, and competence to enter into this
Agreement and fully perform his obligations hereunder;
(B) He is not subject to any non-competition agreement that would prevent
or restrict him in any way from performing his duties for Employer anywhere in
the world;
(C) His past, present, and anticipated future activities have not and will
not infringe on the proprietary rights of others;
(D) He 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 his obligation to use his 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.
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 or as required by
law or appropriate regulatory bodies, he shall regard and preserve as
confidential all information pertaining to the business of Employer, its
customers, and others that has been obtained by him during the course of his
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.
Employer and its continued success depend upon the use and protection of a large
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Exhibit - 10.24
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 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. . None of the
provisions of this section shall apply to
(i) Information which is or becomes generally available to the public (other
than as a result of a disclosure by Employee or Employee's
representatives, employees, agents or affiliates),
(ii) Information which Employee can show was available to Employee on a
non-confidential basis prior to the disclosure by Employer to Employee
from a source other than the Employer or one of its representatives which
is entitled to disclose it, or
(iii) Information which Employee can show became available to Employee on a
non-confidential basis from a source other than the Employer or its
representatives, provided that such source is not, nor should be known by
Employee to be bound by a confidentiality agreement with the Employer or
otherwise prohibited from transmitting the information to Employee by a
contractual, fiduciary or other legal obligation.
Notwithstanding the above, Employer acknowledges that Employee may draft
agreements from time to time, and that these agreements contain information,
wording and know how accumulated both prior to and during his term of employment
with Employer. Consequently, Employee will have the right to utilize, subsequent
to his employment with Employee, forms of agreements drafted during his
Employment, but will not use or reveal deal points specific to agreements
negotiated on behalf of Employee. In addition, as described above, Employee
shall have the right to use the names and contact information of people met
during employment at Employer, subject to the limitations of Sections 6A, 6B and
6C.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) and 2(D) above. In addition, so long as
Employee is employed by Employer, Employee shall not, directly
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Exhibit - 10.24
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
actively intends to engage.
(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.
(D) Noninterference. 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 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.
(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, images,
sounds, textures, software 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.
(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
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Exhibit - 10.24
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) 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.
(D) 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.
(E) 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.
(F) 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.
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Exhibit - 10.24
(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.
(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 at:
Xxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
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Exhibit - 10.24
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:
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Name: Xxxxxx X. Richfield
Its: President
Employee:
---------------------------------
Name: Xxxx Xxxxxx
