EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") entered into as of this 4th day of
August 1999, between BGS (Southwest Florida), Inc. (the "Company") and Xxxxx
Xxxxx , (the "Executive").
WHEREAS, the Company desires to employ the Executive and to ensure the continued
availability to the Company of the Executive's services, and the Executive is
willing to accept such employment and render such services, all upon and subject
to the terms and conditions contained in this Agreement:
NOW, THEREFORE, in consideration of the premises and the mutual covenants set
forth in this Agreement, and intending to be legally bound, the Company and the
Executive agree as follows:
1. TERM OF EMPLOYMENT
(a) TERM. The Company hereby employs the Executive, and the
Executive hereby accepts employment with the Company for a
period commencing on the date of this Agreement and ending one
year from the date of this Agreement. This contract is in
effect for one year and is renewable only upon renegotiation
by the parties involved.
(b) CONTINUING EFFECT. Notwithstanding any termination of this
agreement at the end of the Term or otherwise, the provisions
of Sections 6 and 7 shall remain in full force and effect and
the provisions of Section 7 shall be binding upon the legal
representatives, successors and assigns of the Executive.
2. DUTIES
(a) GENERAL DUTIES.
The Executive shall serve as the Director of Information
Technologies is responsible for the system architecture,
implementation, operation, administration and maintenance of
all information systems and technology at the Company. The
Director of Information Technologies coordinates the efforts
of both the Art Department and the Programming Department;
establishes budgets for technology purchases; evaluates
vendors, equipment, service agreements, etc; and analyzes new
technologies and reviews current procedures and methodologies.
This position is responsible for the hiring and staffing of
positions within both the Art and Programming Departments. The
Director is responsible for charting the
technological growth of the company, controlling expenses, and
finding solutions. This position reports directly to the Chief
Executive Officers.
(b) DEVOTION OF TIME. The Executive shall conscientiously devote
his time, attention and energies to the affairs of the
Company.
(c) LOCATION OF OFFICE. In no event shall the Company relocate its
principal offices to any area outside a 15-mile radius of its
current location without the Executive's express written
consent.
3. COMPENSATION.
(a) SALARY. For the services of the Executive to be rendered under
this agreement, the Company shall pay the Manager an annual
salary of $85,000 (the "Base Salary").
4. BENEFITS
(a) VACATION. During the Term, the Executive will be entitled to
10 unpaid personal days, and 20 business days of vacation
without loss of compensation or other benefits to which he is
entitled under this Agreement, to be taken at such times as
the Executive may select and the affairs of the Company may
permit.
(b) EMPLOYEE BENEFIT PROGRAMS. The Executive is entitled to
participate in any pension, 401(k), insurance or any other
employee benefit plan that is maintained by the Company for
its executive officers, including programs of life, medical,
dental and vision insurance and stock options or other
profit-sharing plans.
(c) MEDICAL/DENTAL/VISION INSURANCE. The Company shall provide the
Executive with company-paid medical, vision and dental
insurance.
(d) LIFE INSURANCE. The Company shall maintain a life insurance
policy on the Executive in the amount of $100,000.00 and pay
all premiums on such policy. The Executive or his assigns
shall be the beneficiaries of such policy.
(e) STOCK OPTIONS/PROFIT-SHARING. Should the Company offer
stock-options or other profit sharing plans to other
executives of the Company, then the Company shall offer said
options or plans to the Executive in an amount commiserate
with the salary and/or duties of the Executive's position.
5. TERMINATION
(a) TERMINATION FOR CAUSE. The Company may terminate the
Executive's
employment pursuant to the terms of this Agreement at any time
for cause by giving written notice of termination. Such
termination will become effective upon the giving of such
notice. Upon any such termination for cause, the Executive
shall have no right to compensation or reimbursement under
Section 3, or to participate in any employee benefit programs
under section 4, except as provided by law, for any period
subsequent to the effective date of termination. For purposes
of this Section 5(a), "cause" shall mean: (i) the Executive is
convicted of a felony which is related to the Manager's
employment or the business of the company, (ii) the Executive,
in carrying out his duties hereunder, has been found in a
civil action to have committed gross negligence or intentional
misconduct resulting in either case in material harm to the
Company; or (iii) the Executive has been found in a civil
action to have materially breached any provision of Section 6
or Section 7 and to have caused material harm to the company.
The term "found in a civil action" shall not apply until all
appeals permissible under the applicable rules of procedure or
statutes have been determined and no further appeals are
permissible.
6. NON-COMPETITION AGREEMENT
(a) COMPETITION WITH THE COMPANY. Until termination of his
employment and for a period of 12 months commencing on the
date of termination, the Executive, directly or indirectly, in
association with or as a stockholder, director, officer,
consultant, employee, partner, joint venturer, member or
otherwise of or through any person, firm, corporation,
partnership, association or other entity, will not compete
with the Company or any of its affiliates in the offer, sale,
or marketing of products or services that are competitive with
the search engine portal technology products and service
offered by the company("Prohibited Business"), within any
metropolitan area in the United States or elsewhere in which
the Company is then engaged. The foregoing shall not prevent
Executive from accepting employment with an enterprise engaged
in two or more lines of business, one of which is a Prohibited
Business if Executive's employment is totally unrelated to the
Prohibited Business. Further, the foregoing shall not prohibit
Manager from owning up to 5% of the securities of any
publicly-traded enterprise provided Manager is not an
employee, director, officer, consultant to such enterprise or
otherwise reimbursed for services rendered to such enterprise.
(b) SOLICITATION OF CUSTOMERS. During the periods in which the
provisions of section 6(a) shall be in effect, the Executive,
directly or indirectly, will not seek Prohibited Business from
any Customer (as defined below) on behalf of any enterprise or
business other than the Company or receive commissions based
on sales or otherwise relating to the Prohibited Business from
any Customer, or any enterprise or business other than the
Company. For purposes of this Section 6(b), the term
"Customer" means
any person, firm, corporation, partnership, association or
other entity to which the Company or any of its affiliates
sold or provided goods or services from the initial date of
this Agreement to the time at which any determination is
required to be made as to whether any such person, firm,
corporation, partnership, association or other entity is a
Customer. Notwithstanding the above, a Customer shall not
include those individuals and entities listed on Schedule 6(b)
with whom the Executive had a relationship with prior to
entering into this agreement.
(c) NO PAYMENT. The Executive acknowledges and agrees that no
separate or additional payment will be required to be made to
him in consideration of his undertakings in this Section 6.
7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) CONFIDENTIAL INFORMATION. Confidential Information includes,
but is not limited to, trade secrets as defined by the common
law and statute in Florida or any future Florida statute,
processes, policies, procedures, techniques, designs,
drawings, know-how, technical information, specifications,
computer software and source code, information and data
relating to the development, research, testing, manufacturing
costs, marketing and uses of the Products (as defined herein),
the Company's budgets and strategic plans, and the identity
and special needs of customers for the Products, databases,
data, and all technology relating to the Company's businesses,
systems, methods of operations, customer lists, customer
information, solicitation leads, marketing and advertising
materials, methods and manuals and forms, all of which pertain
to the activities or operations of the Company, names, home
addresses and all telephone numbers and e-mail addresses of
the Company's employees and former employees. Confidential
Information also includes, without limitation, Confidential
Information received from the Company's subsidiaries and
affiliates. For purposes of this Agreement, the following will
not constitute Confidential Information (i) information which
is or subsequently becomes generally available to the public
through no act of the Executive, (ii) information set forth in
the written records of the Executive prior to disclosure to
the Executive by or on behalf of the Company, (iii)
information which is lawfully obtained by the Executive in
writing from a third party (excluding any affiliates of the
Executive) who did not acquire such confidential information
or trade secret, directly or indirectly, from Executive or the
Company and (iv) any information required to be disclosed in
the normal course of performing the Executive's duties. As
used herein, the term "Products" shall include all Internet
search engines marketed by it, together with all services
provided by the Company during the term of the Executive's
Employment.
(b) LEGITIMATE BUSINESS INTERESTS. The Executive recognizes that
the Company has legitimate business interests to protect and
as a consequence, the Executive agrees to the restrictions
contained in this Agreement because they further the Company's
legitimate business interests. These legitimate business
interests include, but are not limited to (i) trade secrets as
defined in Section 7(a), (ii) valuable confidential business
or professional information that otherwise does not qualify as
trade secrets including all Confidential Information, (iii)
substantial relationships with specific prospective or
existing customers or clients; (iv) customer or client
goodwill associated with the Company's business; and (v)
specialized training relating to the Company's technology,
methods, and procedures.
(c) CONFIDENTIALITY. For a period of three years following
termination of the Executive's employment, the Confidential
information shall be held by the Executive in the strictest
confidence and shall not, without prior written consent of the
company, be disclosed to any person other than in connection
with Executive's employment by the company. The Executive
further acknowledges that such Confidential Information as is
acquired and used by the Company or its affiliates is a
special, valuable, and unique asset. The Executive shall
exercise all due and diligent precautions to protect the
integrity of the Company's Confidential Information and to
keep it confidential whether it is in written form, on
electronic media or oral. The Executive shall not copy any
Confidential Information except to the extent necessary to his
employment nor remove any Confidential Information or copies
thereof from the Company's premises except to the extent
necessary to his employment. All records, files, materials and
other Confidential Information obtained by the Executive in
the course of his employment with the Company are confidential
and proprietary and shall remain the exclusive property of the
Company or its customers, as the case may be. The Executive
shall not, except in connection with and as required by his
performance of his duties under this Agreement, for any reason
use for his own benefit or the benefit of any person or entity
with which he may be associated or disclose any such
Confidential Information to any person, firm, corporation,
association, association or other entity for any reason or
purpose whatsoever without prior written consent of an officer
of the Company (excluding the Executive, if applicable).
8. EQUITABLE RELIEF
(a) The Company and the Executive recognize that the services to
be rendered under this Agreement by the Executive are special,
unique and of extraordinary character, and that in the event
of the breach by the Executive of the terms and conditions of
this Agreement or if the Executive, without the prior consent
of the board of directors of the Company, shall leave his
employment for any reason and take any action in violation of
Section 6 or Section 7, the Company will be entitled to
institute and prosecute proceedings in any court of competent
jurisdiction referred to in Section 8(b) below, to enjoin the
Executive from breaching the provisions of Section 6 or
Section 7. In such action, the Company will not be required to
plead or prove irreparable harm or lack of an adequate remedy
at law. Nothing contained in this Section 8 shall be construed
to prevent the Company from seeking such other remedy in
arbitration in case of any breach of this Agreement by the
Executive, as the Company may elect.
(b) Any proceeding or action must be commenced in Xxxxxxx County,
Florida. The Executive and the Company irrevocably and
unconditionally submit to the exclusive jurisdiction of such
courts and agree to take any and all further action necessary
to submit to the jurisdiction of such courts. The Executive
and the Company irrevocably waive any objection that they now
have or hereafter irrevocably waive any objection that they
now have or hereafter may have to the laying of venue of any
suit, action or proceeding brought in any such court and
further irrevocably waive any claim that any such suit, action
or proceeding brought in any such court has been brought in an
inconvenient forum. Final judgment against the Executive or
the Company in any such suit shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment, a
certified or true copy of which shall be conclusive evidence
of the fact and the amount of any liability of the Executive
or the Company therein described, or by appropriate
proceedings under any applicable treaty or otherwise.
9. ASSIGNABILITY.The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company, provided that such successor or
assign shall acquire all or substantially all of the securities or
assets and business of the Company. The Executive's obligations
hereunder may not be assigned or alienated and any attempt to do so by
the Executive will be void.
10. SEVERABILITY
(a) The Executive expressly agrees that the character, duration
and geographical scope of the non-competition provisions set
forth in this Agreement are reasonable in light of the
circumstances as they exist on the date hereof. Should a
decision, however, be made at a later date by a court of
competent jurisdiction that the character, duration or
geographical scope of such provisions is unreasonable, then it
is the intention and the agreement of the Executive and the
Company that this Agreement shall be construed by the court in
such a manner as to impose only those restrictions on the
Executive's conduct that are reasonable in the light of the
circumstances and as are necessary to assure to the Company
the benefits of this Agreement. If, in any judicial
proceeding, a court shall refuse to enforce all of the
separate covenants deemed included herein
because taken together they are more extensive than necessary
to assure to the Company the intended benefits of this
Agreement, it is expressly understood and agreed by the
parties hereto that the provisions of this Agreement that, if
eliminated, would permit the remaining separate provisions to
be enforced in such proceeding shall be deemed eliminated, for
the purpose of such proceeding, from this Agreement.
(b) If any provision of this Agreement otherwise is deemed to be
invalid or unenforceable or is prohibited by the laws of the
state or jurisdiction where it is to be performed, this
Agreement shall be considered divisible as to such provision
and such provision shall be inoperative in such state or
jurisdiction and shall not be part of the consideration moving
from either of the parties to the other. The remaining
provisions of this Agreement shall be valid and binding and of
like effect as though such provision were not included.
11. NOTICES AND ADDRESSES. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and
shall be sufficiently given if delivered to the addresses in person, by
Federal Express or similar receipted delivery, by facsimile delivery
or, if mailed, postage prepaid, by certified mail, return receipt
requested, as follows:
To the Company: Xxxxxxx.xxx, Inc.
0000 Xxxxx Xxxxxx Xxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx, P.A.
0000 Xxxx Xxxxx Xxxxx, Xxxx. Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
To the Executive: Mr. Xxxxx Xxxxx
0000 Xxxxxxxxx Xx.
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Or to such other address as either of them, by notice to the other may
designate from time to time. The transmission conformation receipt from
the sender's facsimile machine shall be conclusive evidence of
successful facsimile delivery. Time shall be counted to, or from, as
the case may be, the delivery in person or by mailing.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. The
execution of this Agreement may be actual or facsimile signature.
13. ATTORNEY'S FEES. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation,
breach or enforcement thereof, and any action or proceeding is
commenced to enforce the provisions of this Agreement, the prevailing
party shall be entitled to a reasonable attorney's fee, costs and
expenses.
14. GOVERNING LAW. This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to
its execution, its validity, the obligations provided therein or
performance shall be governed or interpreted according to the internal
laws of the State of Florida without regard to choice of law
considerations.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between he parties and supersedes all prior oral and written agreements
between the parties hereto with respect to he subject matter hereof.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, except by a statement in writing
signed by the party or parties against which enforcement of the change,
waiver discharge or termination is sought.
16. ADDITIONAL DOCUMENTS. The parties hereto shall execute such additional
instruments as may be reasonably required by their counsel in order to
carry out the purpose and intent of this Agreement and to fulfill the
obligations of the parties hereunder.
17. SECTION AND PARAGRAPH HEADINGS. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the Company and the Manager have executed this Agreement as
of the date and year first above written.
Witnesses BGS SOUTHWEST FLORIDA, INC
a Florida corporation
By:
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Paulo Mylla, President
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Xxxxx Xxxxx, IT Director
