EXHIBIT 10a
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
This Employment and Confidentiality Agreement (the "Agreement") is made
and entered into as of November 14, 2001 (the "Effective Date") by and between
Xxxx Xxxxxx ("Employee") and Firstmark Corp. (the "Company").
WHEREAS the Company and Employee have decided to reflect the terms of
Employee's employment with the Company in a written document and which shall
govern the material terms of Employee's employment by the Company. In addition
to the terms of this Agreement, Employee shall be subject to certain policies
and procedures published by the Company, or made known to Employee from time to
time. Such policies and procedures are incorporated within this Agreement as if
fully set forth herein.
NOW THEREFORE, in consideration of the premises and mutual agreements
hereafter set forth, and upon the terms and conditions contained in this
Agreement, Employee and the Company hereby agree as follows:
1. Conditions of Employment.
1.1. Compliance with Company Policies.
Employee shall be subject to the policies and procedures
enacted by the Company from time to time and made known to
Employee either through publication or by direct discussion with
Employee.
1.2. Compliance with Applicable Rules and Regulations.
Employee shall be subject to all of the Rules and Regulations
of the Securities and Exchange Commission and the Company reserves
the right to terminate Employee should he/she not remain compliant
with these Rules and Regulations.
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1.3. Term and Termination.
The term of this agreement is one year from the above stated
date. The terms of this agreement shall be automatically renewed
for an additional one-year term unless expressly terminated. The
Company must provide Employee written notice of intent to
terminate this agreement 30 days prior to November 14, 2002.
2. Duties, Compensation and Benefits.
2.1. Title.
Chairman of the Board, Chief Executive Officer & President.
2.2. Capacity.
Employee shall serve as an employee of the Company and shall
perform such customary, appropriate and reasonable duties as are
performed by an employee as may be delegated to Employee by the
Board of Directors of the Company (the "Board").
2.3. Schedule.
Employee shall be employed on a full time basis and shall
devote all of his/her working time, intentions and energies to the
Company. Employee shall at all times perform his/her duties and
obligations faithfully, diligently and to the best of their
abilities.
2.4. Salary.
During employment with the Company, Employee shall be paid
$25,000.00 per month for each month of employment in accordance
with the Company's standard payroll practice. Salary shall be
subject to annual review and
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adjustment at the discretion of the Board or any committee or
individual appointed by the Board to perform such function.
2.5. Business Expenses.
The Company shall reimburse Employee for reasonable business
expenses necessarily and appropriately incurred by Employee in
performing his/her duties hereunder in accordance with such
policies and procedures regarding employee expenses as the Company
may from time to time put in effect.
2.6. Benefits.
In addition to salary, Employee shall be entitled to
participate in any Employee benefit program established from time
to time for employees of the Company as determined by eligibility
requirements established by the Company or such employee benefit
programs.
2.7. Holiday and Vacation.
Employee shall be entitled to all holidays provided under the
Company's regular holiday schedule published from time to time by
Company. In addition, Employee shall be entitled to vacation time
in accordance with the policies established by the Company from
time to time.
3. Confidential Information.
Employee understands and agrees that in connection with the
performance of their obligations and duties, Employee has and will
receive certain proprietary, confidential or other information
concerning the Company that the Company regards as highly
confidential. In addition, Employee acknowledges and agrees that
he/she will receive special and important training in regard to
the
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performance of the business activities. The information provided
to Employee may include, without limitation or designation as
such, business strategies, terms of contracts and business
relationships, pricing information and other information that is
not generally known to the public. Employee acknowledges and
agrees that all such information, including information obtained
through special training by the Company, is and will at all times
remain the sole and exclusive property of the Company. Employee
acknowledges and agrees that they will, during the term of their
employment with the Company and at all times thereafter hold such
information in confidence and not disclose any such information to
any third party except as authorized in advance in writing by the
Company or directly in connection with the performance of the
employees obligations hereunder. In the event of the termination
of Employee's employment with the Company, Employee shall promptly
return all confidential and propriety information in Employee's
possession to the Company. Employee agrees that notwithstanding
the termination of the employee's employment relationship with the
Company that his/her agreement to keep the Company's confidential
and proprietary business information confidential will survive the
termination of such employment relationship.
In addition, Employee agrees and understands that the damages
which will be incurred by the Company as a result of the breach of
this confidentiality provision are incalculable. Employee agrees
that in addition to any remedy available to the Company provided
by law, that Company will be entitled to injunctive relief,
including but not limited to obtaining such temporary orders of
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the Court as may be necessary and appropriate in order to enforce
this provision.
4. Miscellaneous.
4.1. Successors and Assigns.
This Agreement shall be binding on and inure to the benefit of
the parties hereto and their heirs, executors, legal
representatives and successors. This Agreement may not be
assigned, in whole or in part, without the prior written agreement
of both parties hereto, except with respect to the confidentiality
provisions contained in paragraph 3 hereof. Any attempt to assign
the provisions of this Agreement (except for paragraph 3) shall be
null and void.
4.2. Withholding.
Employee hereby agrees to make appropriate arrangements with
the Company for the satisfaction of all federal, state or local
income tax withholding requirements and other federal, social
security, employee tax requirements applicable to this Agreement.
4.3. Governing Law.
This Agreement is made and entered into and is to be governed
by and construed in accordance with the laws of the State of Texas
applicable to agreements made and to be performed entirely within
such state, without regard of the conflict of law principals for
any such state. Employee agrees that there are sufficient contacts
within the State of Texas to enforce this provision.
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4.4. Waiver.
The failure of either party at any time to require a
performance by the other party of any provision hereof shall not
effect in any way the full right to require such performance at
any time thereafter nor shall a waiver by either party of a breach
of any provision hereof be taken or held to be a continuing waiver
of such provision or a waiver of any other breach under any other
provision of this Agreement.
4.5. Caption.
The captions of the sections which are referenced above are
inserted as a matter of convenience only and are in no way to
define, limit or describe the scope of this Agreement or
provisions hereof.
4.6. Entire Agreement/Interpretation.
This Agreement sets forth the entire agreement and
understanding between the parties hereto with respect to the
subject matter hereof and supercedes all prior contracts,
agreements, arrangements, communications, discussions,
representations and warranties, whether oral or written, between
the parties with respect to the subject matter. This Agreement may
be amended only by a written instrument signed by both parties
hereto making specific reference to this Agreement and express a
plan or intention to modify it. The parties acknowledge that this
Agreement has been drafted through mutual efforts of the parties
and that it shall not be construed more harshly against any party
hereto.
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4.7. Counterpart.
This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original and all of which
together shall constitute on and the same agreement.
In witness whereof the parties hereto have executed this Employment
Agreement as of the date first written above.
FIRSTMARK CORP.
By:
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Printed Name:
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Its:
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EMPLOYEE
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Printed Name:
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