XXXXX PARTNERSHIP INC.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made exclusively
between The Xxxxx Partnership Inc., a Nevada corporation and its affiliated
companies, and subsidiaries (collectively referred to as the "Company"), and
Xxxxx Xxxxxxx ("Xxxxxxx"). Unless otherwise indicated, all references to
Sections are to Sections in this Agreement. This Agreement is effective as of
the "Effective Date" set forth in Section 11 below.
W I T N E S S E T H:
WHEREAS, the Company desires to obtain the services of Xxxxxxx, and Xxxxxxx
desires to be employed by the Company upon the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises, the agreements herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as of the date hereof as follows:
1. Employment. The Company hereby agrees to employ Xxxxxxx, and Xxxxxxx
hereby agrees to serve the Company, as its President ("Employment").
2. Scope of Employment.
(a) During the Employment, Xxxxxxx will serve as President. In that
connection, Xxxxxxx will (i) devote his full time, attention, and energies
to the business of the Company and will diligently and to the best of his
ability perform all duties incident to his employment hereunder; (ii) use
his best efforts to promote the interests and goodwill of the Company; and
(iii) perform such other duties commensurate with his office as the Board
of Directors of the Company may from time-to-time assign to him.
(b) Section 2(a) shall not be construed as preventing Xxxxxxx from (i)
serving on corporate, civic or charitable boards or committees, or (ii)
making investments in other businesses or enterprises; provided in no event
shall any such service, business activity or investment require the
provision of substantial services by Xxxxxxx to the operations or the
affairs of such businesses or enterprises such that the provision thereof
would interfere in any respect with the performance of Xxxxxxx'x duties
hereunder.
3. Compensation and Benefits During Employment. During the Employment, the
Company shall provide compensation to Xxxxxxx as follows.
(a) The Company shall pay Xxxxxxx US $5,000 per month from February
1st 2002 through April 30th, 2002, payable in monthly installments, without
deduction for taxes as Xxxxxxx shall be responsible for the payment of any
and all taxes required by law.
(b) The Company shall provide for Xxxxxxx a definitive agreement,
covering a long-term compensation plan to be executed by May 1, 2002.
(c) Xxxxxxx or his designate shall receive options to purchase 75,000
shares of The Xxxxx Partnership, Inc. at an exercise price of $1.00 per
share vesting 1/3 at the end of February 2002, March 31, 2002 and April 30,
2002. Such options shall have a cashless feature and have a term of three
years.
(d) Xxxxxxx or his designate shall receive options to purchase an
additional 500,000 shares of The Xxxxx Partnership, Inc. at an exercise
price of $1.00 per share vesting 1/12 at the end of each month beginning
with May 2002 and ending with April 2003. Such options shall have a
cashless feature and have a term of three years.
(e) Xxxxxxx or his designate shall receive 2% of the financing
received net of commissions and expenses associated with financing received
for the following properties: Windjammer, Mosquito Blue and Xxxxx Xxxxx.
(f) The Company will reimburse Xxxxxxx for reasonable business
expenses incurred by Xxxxxxx in connection with the Employment in
accordance with the Company's then-current policies.
(g) Xxxxxxx will be entitled to participate in any incentive program
or bonus program of the Company which may be implemented in the future.
(h) The Company shall pay a benefit in kind of $500 per month for
Xxxxxxx'x major medical and dental coverage throughout the term of this
Agreement.
Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the advice of counsel
for the Company shall be conclusively presumed to be done, or omitted to be
done, by Xxxxxxx in good faith and in the best interests of the Company and
thus shall not be deemed grounds for termination for Cause.
4. Confidential Information.
(a) Xxxxxxx acknowledges that the law provides the Company with
protection for its trade secrets and confidential information. Xxxxxxx will
not disclose, directly or indirectly, any of the Company's confidential
business information or confidential technical information to anyone
without authorization from the Company's management. Xxxxxxx will not use
any of the Company's confidential business information or confidential
technical information in any way, either during or after the Employment
with the Company, except as required in the course of the Employment.
(b) Xxxxxxx will strictly adhere to any obligations that may be owed
to former employers insofar as Xxxxxxx'x use or disclosure of their
confidential information is concerned.
(c) Information will not be deemed part of the confidential
information restricted by this Section 4 if Xxxxxxx can show that: (i) the
information was in Xxxxxxx'x possession or within Xxxxxxx'x knowledge
before the Company disclosed it to Xxxxxxx; or (ii) the information was or
became generally known to those who could take economic advantage of it; or
(iii) Xxxxxxx obtained the information from a party having the right to
disclose it to Xxxxxxx without violation of any obligation to the Company,
or (iv) Xxxxxxx is required to disclose the information pursuant to legal
process (e.g., a subpoena), provided that Xxxxxxx notifies the Company
immediately upon receiving or becoming aware of the legal process in
question. No combination of information will be deemed to be within any of
the four exceptions in the previous sentence, however, whether or not the
component parts of the combination are within one or more exceptions,
unless the combination itself and its economic value and principles of
operation are themselves within such an exception.
(d) All originals and all copies of any drawings, blueprints, manuals,
reports, computer programs or data, notebooks, notes, photographs, and all
other recorded, written, or printed matter relating to research,
manufacturing operations, or business of the Company made or received by
Xxxxxxx during the Employment are the property of the Company. Upon
termination of the Employment, whether or not for Cause, Xxxxxxx will
immediately deliver to the Company all property of the Company which may
still be in Xxxxxxx'x possession. Xxxxxxx will not remove or assist in
removing such property from the Company's premises under any circumstances,
either during the Employment or after termination thereof, except as
authorized by the Company's management.
(e) For a period of six (6) months after the date of termination of
the Employment, Xxxxxxx will not, either directly or indirectly, hire or
employ or offer or participate in offering employment to any person who at
the time of such termination or at any time during such year following the
time of such termination was an employee of the Company without the prior
written consent of the Company.
5. Ownership of Intellectual Property. The following provisions apply
except to the extent expressly stated otherwise in Schedule 1.
(a) The Company will be the sole owner of any and all of Xxxxxxx'x
Inventions that are related to the Company's business, as defined in more
detail below.
(b) For purposes of this Agreement, "Inventions" means all inventions,
discoveries, and improvements (including, without limitation, any
information relating to manufacturing techniques, processes, formulas,
developments or experimental work, work in progress, or business trade
secrets), along with any and all other work product relating thereto.
(c) An Invention is "related to the Company's business"
("Company-Related Invention") if it is made, conceived, or reduced to
practice by Xxxxxxx (in whole or in part, either alone or jointly with
others, whether or not during regular working hours), whether or not
potentially patentable or copyrightable in the U.S. or elsewhere, and it
either: (i) involves equipment, supplies, facilities, or trade secret
information of the Company; (ii) involves the time for which Xxxxxxx was or
is to be compensated by the Company; (iii) relates to the business of the
Company or to its actual or demonstrably anticipated research and
development; or (iv) results, in whole or in part, from work performed by
Xxxxxxx for the Company.
(d) Xxxxxxx will promptly disclose to the Company, or its nominee(s),
without additional compensation, all Company-Related Inventions.
(e) Xxxxxxx will assist the Company, at the Company's expense, in
protecting any intellectual property rights that may be available anywhere
in the world for such Company-Related Inventions, including signing U.S. or
foreign patent applications, oaths or declarations relating to such patent
applications, and similar documents.
(f) To the extent that any Company-Related Invention is eligible under
applicable law to be deemed a "work made for hire," or otherwise to be
owned automatically by the Company, it will be deemed as such, without
additional compensation to Xxxxxxx. In some jurisdictions, Xxxxxxx may have
a right, title, or interest ("Right," including without limitation all
right, title, and interest arising under patent law, copyright law,
trade-secret law, semiconductor chip protection law, or otherwise, anywhere
in the world, including the right to xxx for present or past infringement)
in certain Company-related Inventions that cannot be automatically owned by
the Company. In that case, if applicable law permits Xxxxxxx to assign
Xxxxxxx'x Right(s) in future Company-Related Inventions at this time, then
Xxxxxxx hereby assigns any and all such Right(s) to the Company, without
additional compensation to Xxxxxxx; if not, then Xxxxxxx agrees to assign
any and all such Right(s) in any such future Company-Related Inventions to
the Company or its nominee(s) upon request, without additional compensation
to Xxxxxxx.
(g) To the extent that Xxxxxxx retains any so-called "moral rights" or
similar rights in a Company-Related Invention as a matter of law, Xxxxxxx
authorizes the Company or its designee to make any changes it desires to
any part of that Company-Related Invention; to combine any such part with
other materials; and to withhold Xxxxxxx'x identity in connection with any
business operations relating to that Company-Related Invention; in any case
without additional compensation to Xxxxxxx.
6. Noncompetition. As a condition to, and in consideration of, the
Company's entering into this Agreement, and giving Xxxxxxx access to certain
confidential and proprietary information, which Xxxxxxx recognizes is valuable
to the Company and, therefore, its protection and maintenance constitutes a
legitimate interest to be protected by the provisions of this Section 6 as
applied to Xxxxxxx and other employees similarly situated to Xxxxxxx, Xxxxxxx
hereby agrees as follows:
(a) Xxxxxxx acknowledges that the obligations of this Agreement are
directly related to the Employment and are necessary to protect the
Company's legitimate business interests. Xxxxxxx acknowledges that the
Company's need for the covenants set forth in this Agreement is based on
the following: (i) the substantial time, money and effort expended and to
be expended by the Company in developing technical designs, computer
program source codes, marketing plans and similar confidential information;
(ii) the fact that Xxxxxxx will be personally entrusted with the Company's
confidential and proprietary information; (iii) the fact that, after having
access to the Company's technology and other confidential information,
Xxxxxxx could become a competitor of the Company; and (iv) the highly
competitive nature of the Company's industry, including the premium that
competitors of the Company place on acquiring proprietary and competitive
information.
(b) Notwithstanding the foregoing, Xxxxxxx may acquire an ownership
interest, directly or indirectly, of not more than 5% of the outstanding
securities of any corporation which is engaged in a business competitive
with the Company and which is listed on any recognized securities exchange
or traded in the over the counter market in the United States; provided,
that such investment is of a totally passive nature and does not involve
Xxxxxxx devoting time to the management or operations of such corporation.
7. Legal Fees and Expenses. In the event of a lawsuit, arbitration, or
other dispute-resolution proceeding between the Company and Xxxxxxx arising out
of or relating to this Agreement, the prevailing party, in the proceeding as a
whole and/or in any interim or ancillary proceedings (e.g., opposed motions,
including without limitation motions for preliminary or temporary injunctive
relief) will be entitled to recover its reasonable attorneys' fees and expenses
unless the court or other forum determines that such a recovery would not serve
the interests of justice.
8. Successors.
(a) This Agreement shall inure to the benefit of and be binding upon
(i) the Company and its successors and assigns and (ii) Xxxxxxx and
Wallace's heirs and legal representatives, except that Xxxxxxx'x duties and
responsibilities under this Agreement are of a personal nature and will not
be assignable or delegable in whole or in part.
(b) the Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "the Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
9. Arbitration.
(a) Except as set forth in paragraph (b) of this Section 9 or to the
extent prohibited by applicable law, any dispute, controversy or claim
arising out of or relating to this Agreement will be submitted to binding
arbitration before a single arbitrator in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association in effect on the date of the demand for arbitration. The
arbitration shall take place before a single arbitrator, who will
preferably but not necessarily be a lawyer but who shall have at least five
years' experience in working in or with computer software companies. Unless
otherwise agreed by the parties, the arbitration shall take place in the
city in which Xxxxxxx'x principal office space is located at the time of
the dispute or was located at the time of termination of the Employment (if
applicable). The arbitrator is hereby directed to take all reasonable
measures not inconsistent with the interests of justice to expedite, and
minimize the cost of, the arbitration proceedings.
(b) To protect Inventions, trade secrets, or other confidential
information, and/or to enforce the non-competition provisions of Section 5,
the Company may seek temporary, preliminary, and/or permanent injunctive
relief in a court of competent jurisdiction, in each case, without waiving
its right to arbitration.
(c) At the request of either party, the arbitrator may take any
interim measures s/he deems necessary with respect to the subject matter of
the dispute, including measures for the preservation of confidentiality set
forth in this Agreement.
(d) Judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction.
10. Indemnification.
(a) Company shall to the full extent permitted by law or as set forth
in the Articles of Incorporation, and any future amendments, and the Bylaws
of the Company, indemnify, defend and hold harmless Xxxxxxx from and
against any and all claims, demands, liabilities, damages, losses and
expenses (including attorney's, court costs and disbursements) arising out
of the performance of duties hereunder except in the case of willful
misconduct.
(b) Xxxxxxx shall indemnify the Company with respect to the payment of
any and all taxes owed under this Agreement.
11. Other Provisions.
(a) All notices and statements with respect to this Agreement must be
in writing. Notices to the Company shall be delivered to the Chairman of
the Board or any vice president of the Company. Notices to Xxxxxxx may be
delivered to Xxxxxxx in person or sent to Xxxxxxx'x then-current home
address as indicated in the Company's records.
(b) This Agreement sets forth the entire agreement of the parties
concerning the subjects covered herein; there are no promises,
understandings, representations, or warranties of any kind concerning those
subjects except as expressly set forth in this Agreement.
(c) Any modification of this Agreement must be in writing and signed
by all parties; any attempt to modify this Agreement, orally or in writing,
not executed by all parties will be void.
(d) If any provision of this Agreement, or its application to anyone
or under any circumstances, is adjudicated to be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability will not affect
any other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and
will not invalidate or render unenforceable such provision or application
in any other jurisdiction.
(e) This Agreement will be governed and interpreted under the laws of
the United States of America and of the State of Texas law as applied to
contracts made and carried out in Texas by residents of Texas.
(f) No failure on the part of any party to enforce any provisions of
this Agreement will act as a waiver of the right to enforce that provision.
(g) Termination of Xxxxxxx'x employment by the Company, with cause,
will result in Xxxxxxx receiving any amounts owed as of the date this
Agreement is terminated, and Xxxxxxx shall have the rights to all Options
which have vested as of the date this Agreement is terminated.
(h) Section headings are for convenience only and shall not define or
limit the provisions of this Agreement.
(i) This Agreement may be executed in several counterparts, each of
which is an original. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the
other counterparts. A copy of this Agreement signed by one party and Faxed
to another party shall be deemed to have been executed and delivered by the
signing party as though an original. A photocopy of this Agreement shall be
effective as an original for all purposes.
Effective Date February 1, 2002
Term 3 Months
Termination 30 Days Either Side
Office / Position President, Xxxxx Partnership Inc.
Salary US $5,000 per month
This Agreement contains provisions requiring binding arbitration of
disputes. By signing this Agreement, Xxxxxxx acknowledges that he or she (i) has
read and understood the entire Agreement; (ii) has received a copy of it (iii)
has had the opportunity to ask questions and consult counsel or other advisors
about its terms; and (iv) agrees to be bound by it.
Executed to be effective as of the Effective Date.
For
Xxxxx Partnership Inc. Employee: Xxxxx Xxxxxxx
By:
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Signature Signature
Printed name Printed name
