EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made effective as of
January 01, 2003, by and between Crowfly, Inc. ("the Employer"), of 000 Xxxxxxx
Xx. Xxx., Xx. Xxxxxxxx, Xxxxx Xxxxxxxx, 00000 and M. Xxxxxxx Xxxxxxxx ("the
Employee"), of 00 Xxx Xxxxx Xx., Xxxxxxxx, Xxxxx Xxxxxxxx, 00000.
A. The Employer is engaged in the business of E-commerce, business to
business and. the Employee will primarily perform the job duties at the
following location: 000 Xxxxxxx Xx. Xxx., Xx. Xxxxxxxx, Xxxxx Xxxxxxxx.
B. The Employer desires to have the services of the Employee.
C. The Employee is willing to be employed by the Employer.
Therefore, the parties agree as follows:
1. EMPLOYMENT. The Employer shall employ the Employee as a(n) Chief
Officer of Business Development (COBD). The Employee shall provide to the
Employer the services described on the attached Exhibit A, which is made a part
of this Agreement by this reference. The Employee accepts and agrees to such
employment, and agrees to be subject to the general supervision, advice and
direction of the Employer and the Employer's supervisory personnel. The Employee
shall also perform (i) such other duties as are customarily performed by an
employee in a similar position, and (ii) such other and unrelated services and
duties as may be assigned to the Employee from time to time by the Employer.
2. BEST EFFORTS OF EMPLOYEE. The Employee agrees to perform faithfully,
industriously, and to the best of the Employee's ability, experience, and
talents, all of the duties that may be required by the express and implicit
terms of this Agreement, to the reasonable satisfaction of the Employer. Such
duties shall be provided at such places) as the needs, business, or
opportunities of the Employer may require from time to time.
3. COMPENSATION OF EMPLOYEE. As compensation for the services provided by
the Employee under this Agreement, the Employer will pay the Employee an annual
salary of $84,000.00 payable monthly on the first day of each month. Upon
termination of this Agreement, payments under this paragraph shall cease;
provided, however, that the Employee shall be entitled to payments for periods
or partial periods that occurred prior to the date of termination and for which
the Employee has not yet been paid, and for any commission earned in accordance
with the Employer's customary procedures, if applicable. Accrued vacation will
be paid in accordance with state law and the Employer's customary procedures.
This section of the Agreement is included only for accounting and payroll
purposes and should not be construed as establishing a minimum or definite term
of employment.
4. EXPENSE REIMBURSEMENT. The Employer will reimburse the Employee for
"out-of-pocket" expenses incurred by the Employee in accordance with the
Employer's policies in effect from time to time.
5. RECOMMENDATIONS FOR IMPROVING OPERATIONS. The Employee shall provide
the Employer with all information, suggestions, and recommendations regarding
the Employer's business, of which the Employee has knowledge, that will be of
benefit to the Employer.
6. CONFIDENTIALITY. The Employee recognizes that the Employer has and
will have information regarding the following:
- inventions
- products
- product design
- processes
- technical matters
- trade secrets
- copyrights
- customer lists
- prices
- costs
- business affairs
- future plans
and other vital information items (collectively, "Information") which are
valuable, special and unique assets of the Employer. The Employee agrees that
the Employee will not at any time or in any manner, either directly or
indirectly, divulge, disclose, or communicate any Information to any third party
without the prior written consent of the Employer. The Employee will protect the
Information and treat it as strictly confidential. A violation by the Employee
of this paragraph shall be a material violation of this Agreement and will
justify legal and/or equitable relief.
7. UNAUTHORIZED DISCLOSURE OF INFORMATION. If it appears that the
Employee has disclosed (or has threatened to disclose) Information in violation
of this Agreement, the Employer shall be entitled to an injunction to restrain
the Employee from disclosing, in whole or in part, such Information, or from
providing any services to any party to whom such Information has been disclosed
or may be disclosed. The Employer shall not be prohibited by this provision from
pursuing other remedies, including a claim for losses and damages.
8. CONFIDENTIALITY AFTER TERMINATION OF EMPLOYMENT. The confidentiality
provisions of this Agreement shall remain in full force and effect for a twelve
month period after the termination of the Employee's employment. During such
twelve month period, neither party shall make or permit the making of any public
announcement or statement of any kind that the Employee was formerly employed by
or connected with the Employer.
9. NON-COMPETE AGREEMENT. The Employee recognizes that the various items
of Information are special and unique assets of the company and need to be
protected from improper disclosure. In consideration of the disclosure of the
Information to the Employee, the Employee agrees and covenants that for a period
of twelve months following the termination of this Agreement, whether such
termination is voluntary or involuntary, the Employee will not directly or
indirectly engage in any business competitive with the Employer. This covenant
shall apply to the geographical area that includes all of the State of South
Carolina. Directly or indirectly engaging in any competitive business includes,
but is not limited to: (i) engaging in a business as owner, partner, or agent,
(ii) becoming an employee of any third party that is engaged in such business,
(iii) becoming interested directly or indirectly in any such business, or (iv)
soliciting any customer of the Employer for the benefit of a third party that is
engaged in such business. The Employee agrees that this non-compete provision
will not adversely affect the Employee's livelihood.
10. VACATION. The Employee shall be entitled to one week of paid vacation
for each completed year of employment. Such vacation must be taken at a time
mutually convenient to the Employer and the Employee, and must be approved by
EXHIBIT A
the Employer. Requests for vacation shall be submitted to the Employee's
immediate supervisor 30 days in advance of the requested beginning date.
The provisions of this Vacation section are subject to change in accordance
with the Employer policies in effect from time to time.
11. SICK LEAVE. The Employee shall be entitled to 7 day(s) paid time, due
to illness or for personal business, for each year of employment, with the year
to be measured using the Employee's starting date as the point of beginning.
Sick leave benefits may not be converted into cash compensation. The Employee's
rights to unused sick leave benefits shall be forfeited upon termination of
employment. Sick leave may be accumulated from year to year up to a total of 4
weeks; excess amounts shall be forfeited.
If the Employee is unable to work for more than 5 days because of sickness
or total disability, and if the Employee's unused sick leave is insufficient for
such period, a maximum of 7 days of the Employee's unused vacation time shall be
applied to such absence.
All requests for sick days off shall be made by the Employee in accordance
with the Employer policies in effect from time to time.
The provisions of this Sick Leave section are subject to change in
accordance with the Employer policies in effect from time to time.
12. PERSONAL LEAVE. The Employee shall be entitled to 40 hour(s) paid
time, for personal business or due to illness, for each year of employment, with
the year to be measured using the Employee's starting date as the point of
beginning. Unused personal leave benefits as of December 31 of each year may be
converted into cash compensation at a rate of $320.00 per day. Personal leave
may be accumulated from year to year up to a total of 80 hours; excess amounts
shall be forfeited.
If the Employee is unable to work for more than 1 week because of personal
business, and if the Employee's unused personal leave is insufficient for such
period, a maximum of 1 week of the Employee's unused vacation time shall be
applied to such absence.
All requests for personal days off shall be made by the Employee in
accordance with the Employer policies in effect from time to time.
The provisions of this Personal Leave section are subject to change in
accordance with the Employer policies in effect from time to time.
13. HOLIDAYS. The Employee shall be entitled to the following holidays
with pay during each calendar year:
- New Year's Day
- Memorial Day
- 4th of July
- Labor Day
- Thanksgiving Day
- Christmas Day
- Christmas Eve and New Years Eve
EXHIBIT A
The provisions of this Holidays section are subject to change in accordance
with the Employer policies in effect from time to time.
14. INSURANCE BENEFITS. The Employee shall be entitled to insurance
benefits, in accordance with the Employer's applicable insurance contract(s) and
policies, and applicable state law. These benefits shall include:
- health insurance
- disability insurance
- life insurance
The provisions of this Insurance Benefits section are subject to change in
accordance with the Employer policies in effect from time to time.
15. BENEFITS. The Employee shall be entitled to the following benefits:
- Medical
as such benefits are provided in accordance with the Employer policies in effect
from time to time.
The Employee shall be able to participate in the Employer's pension plan in
accordance with the plan's terms and the requirements of law.
16. TERM/TERMINATION. The Employee's employment under this Agreement shall
be for 2 years, beginning on January 01, 2003. This Agreement may be terminated
by the Employer upon 30 days written notice, and by the Employee upon 30 days
written notice. If the Employee is in violation of this Agreement, the Employer
may terminate employment without notice and with compensation to the Employee
only to the date of such termination. The compensation paid under this Agreement
shall be the Employee's exclusive remedy.
17. COMPLIANCE WITH EMPLOYER'S RULES. The Employee agrees to comply with
all of the rules and regulations of the Employer.
18. RETURN OF PROPERTY. Upon termination of this Agreement, the Employee
shall deliver to the Employer all property which is the Employer's property or
related to the Employer's business (including keys, records, notes, data,
memoranda, models, and equipment) that is in the Employee's possession or under
the Employee's control. Such obligation shall be governed by any separate
confidentiality or proprietary, rights agreement signed by the Employee.
19. NOTICES. All notices required or permitted under this Agreement shall
be in writing and shall be deemed delivered when delivered in person or on the
third day after being deposited in the United States mail, postage paid,
addressed as follows:
Employer:
Crowfly, Inc.
Xxxxxxx X. Xxxx, III
President/ CEO
000 Xxxxxxx Xx. Xxx.
Xx. Xxxxxxxx, Xxxxx Xxxxxxxx 00000
EXHIBIT A
Employee:
M. Xxxxxxx Xxxxxxxx
00 Xxx Xxxxx Xx.
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Such addresses may be changed from time to time by either party by
providing written notice in the manner set forth above.
20. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other agreement
whether oral or written. This Agreement supersedes any prior written or oral
agreements between the parties.
21. AMENDMENT. This Agreement may be modified or amended, if the amendment
is made in writing and is signed by both parties.
22. SEVERABILITY. If any provisions of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall continue
to be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision it
would become valid or enforceable, then such provision shall be deemed to be
written, construed, and enforced as so limited.
23. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce
any provision of this Agreement shall not be construed as a waiver or limitation
of that party's right to subsequently enforce and compel strict compliance with
every provision of this Agreement.
24. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of South Carolina.
EMPLOYER:
CROWFLY, INC.
By: /S/ XXXXXXX X. XXXX, III Date: /S/ 2-5-03
--------------------------------------- ---------------------------
Xxxxxxx X. Xxxx, III
President/CEO
AGREED TO AND ACCEPTED.
EMPLOYEE:
By: /S/ M. XXXXXXX XXXXXXXX Date: /S/ 2-5-03
--------------------------------------- ---------------------------
M. Xxxxxxx Xxxxxxxx
EXHIBIT A
CROWFLY, INC.
BUSINESS DEVELOPMENT
JOB DESCRIPTION
EXHIBIT A TO EMPLOYMENT CONTRACT
Job Title: Chief Officer of Business Development (COBD)
Reports To: President
Prepared By: Xxxx Xxxx
Prepared Date: 12-19-02
Approved By: Xxxx Xxxx
Approved Date: 01-31-03
SUMMARY
Will be responsible for corporate strategy development as well as the
development of business with the company's business partners and customers. Will
consult with partner firms to define need or problem, conducts studies and
surveys to obtain data, and analyzes data to advise on or recommend solution by
performing the following duties below.
As director of marketing plans, directs, and coordinates the marketing of
the organization's products and/or services by performing the following duties
below personally or through subordinate supervisors. Within the public relations
area develops, coordinates, and directs public relations activities for the
organization by performing the following duties below personally or through
subordinate supervisors. Within the sales area manages sales activities of the
organization by performing the following duties below personally or through
subordinate supervisors.
ESSENTIAL DUTIES AND RESPONSIBILITIES include the following. Other duties
may be assigned.
BUSINESS DEVELOPMENT:
Consults with client to ascertain and define need or problem area, and
determine scope of investigation required to obtain solution. Conducts study or
survey on needs or problems to obtain data required for solution. Advises client
on alternate methods of solving need or problem, or recommends specific
solution. Negotiates contract for consulting services.
MARKETING DIRECTION:
Establishes marketing goals to ensure share of market and profitability of
products and/or services. Develops and executes marketing plans and programs,
both short and long range, to ensure the profit growth and expansion of company
products and/or services. Researches, analyzes, and monitors financial,
technological and demographic factors so that market opportunities may be
capitalized on and the effects of competitive activity may be minimized. Plans
and oversees the organization's advertising and promotion activities including
print, electronic, and direct mail outlets. Communicates with outside
advertising agencies on ongoing campaigns. Works with writers and artists and
oversees copywriting, design, layout, paste-up, and production of promotional
materials.
Develops and recommends pricing strategy for the organization which will
result in the greatest share of the market over the long run. Achieves
satisfactory profit/loss ratio and share of market performance in relation to
pre-set standards and to general and specific trends within the industry and the
economy. Ensures effective control of marketing results and that corrective
action takes place to be certain that the achievement of marketing objectives
are within designated budgets. Evaluates market reactions to advertising
programs, merchandising policy, and product packaging and formulation to ensure
the timely adjustment of marketing strategy and plans to meet changing market
and competitive conditions.
EXHIBIT A
(continue)
Recommends changes in basic structure and organization of marketing group
to ensure the effective fulfillment of objectives assigned to it and provide the
flexibility to move swiftly in relation to marketing problems and opportunities.
Conducts marketing surveys on current and new product concepts. Prepares
marketing activity reports.
PUBLIC RELATIONS:
Plans and implements organization's public relations policies and
procedures. Directs press relations including such activities as preparation of
news releases and feature articles, and the making of arrangements for
interviews between company executives and press, radio, and television
representatives. Provides assistance to company personnel in writing speeches,
preparing letters and drafting articles which are to be made public. Advises on
the preparation and presentation of product shows, displays and exhibits.
Coordinates with marketing and advertising personnel the advertising and sales
promotion material with public relations objectives. Advises management on
community relations projects and activities. Arranges for company public
relations opportunities. Conducts and interprets customer and public opinion
surveys.
SALES MANAGEMENT:
Directs efforts, through partner distributors, to develop and control sales
program. Coordinates sales distribution, through partner distributors, by
establishing sales territories, quotas, and goals, and advises distributors, and
clients concerning sales and advertising techniques. Assigns sales territory to
distributor partners. Analyzes sales statistics to formulate policy and to
assist distributors in promoting sales. Reviews market analyses to determine
customer needs, volume potential, price schedules, and discount rates, and
develops sales campaigns to accommodate goals of company. Directs product
simplification and standardization to eliminate unprofitable items from sales
line. Represents company at trade association meetings to promote product.
Coordinates liaison between sales department and other sales related units.
Analyzes and controls expenditures of division to conform to budgetary
requirements. Assists other departments within organization to prepare manuals
and technical publications. Prepares periodic sales report showing sales volume
and potential sales.
SUPERVISORY RESPONSIBILITIES
Manages four subordinate supervisors who supervise a total of four
employees in the Marketing and Business Development. Is responsible for the
overall direction, coordination, and evaluation of this unit. Also directly
supervises six non-supervisory employees. Carries out supervisory
responsibilities in accordance with the organization's policies and applicable
laws. Responsibilities include interviewing, hiring, and training employees;
planning, assigning, and directing work; appraising performance; rewarding and
disciplining employees; addressing complaints and resolving problems.
EXHIBIT A
