EXHIBIT 10.02 - Employment Agreement dated December 1, 1997 by and between the
Company and Xxxx X. Xxxxx.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of the _____ day of _________________________, 1997 by and between
Xxxx X. Xxxxx (referred to hereinafter as "Employee"), and JVWeb, Inc., a
Delaware corporation (referred to hereinafter as "Employer").
RECITALS:
WHEREAS, Employer desires to employ Employee, and Employee desires to be
employed by Employer; and
WHEREAS, Employer and Employee desire to set forth the terms and conditions
of Employee's employment with Employer;
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by each
of Employer and Employee, each of Employer and Employee hereby agrees as
follows:
l. Employment. Employer hereby employs Employee, and Employee hereby
accepts such employment, subject in both cases to the terms, provisions and
conditions hereinafter stated.
2. Title of Employee. Employee shall have the title of President of
the Company.
3. Duties of Employee. Employee shall have the customary
responsibilities of a President of a company. In addition to the preceding,
Employee shall perform all duties as from time to time may be assigned to
Employee by the Board of Directors of Employer.
4. Time Devoted and Exclusivity. Employee shall devote a sufficient
amount of Employee's business time and attention to performing Employee's duties
hereunder. Employee shall be permitted to engage in other business activities
but only to the extent that the activity does not compete with the business of
Employer and does not interfere with Employee's duties hereunder.
5. Standard of Performance. In providing Employee's duties hereunder,
Employee shall use reasonable, and Employee's best, efforts, and shall perform
such duties in a competent, professional and good xxxxxxx-like manner of the
highest caliber.
6. Place of Performance. Employee shall be based in Houston, Texas or
surrounding area, but shall undertake such travel at the direction of the Board
of Directors of Employer as he believes necessary or advisable for Employee to
perform Employee's duties hereunder.
7. Compensation and Benefits.
(a) Base Salary. As compensation for services rendered hereunder,
Employee shall be paid an annual salary of $60,000. Such salary shall be paid in
accordance with Employer's payroll policies in effect from time to time.
(b) Employee shall be entitled to participate in all plans that
Employer establishes for the benefit of its employees; provided, however,
Employee shall be entitled to participate in such plans only at the time
Employee meets the eligibility criteria established for the plan and shall
receive benefits thereunder based on the terms of the plan. Employee's
eligibility and benefit level shall be determined separately for each plan and
all determinations shall be made by the parties charged with responsibility for
such determinations in the plan. Employer is under no obligation to establish
any plan or plans to provide benefits for its employees, and this Section 7(b)
shall not be interpreted to require the establishment of any benefit plan. The
terms of any benefit plans existing, established, or provided hereafter do not
constitute a part of this Agreement and are not incorporated herein for any
purpose.
8. Expense Reimbursement. Employer shall reimburse Employee, from time
to time, for all business expenses with respect to which Employer has given
prior written authorization for Employee to incur. To the extent that Employer
has given general prior written authorization for Employee to incur expenses but
has not given the specifics pertaining thereto, then in order for Employee to be
reimbursed for such expenses, such expenses shall be actual, reasonable and
necessary business expenses incurred by Employee on behalf of Employer, and
Employee must present to Employer documentary evidence, such as a receipt or a
paid xxxx, that states sufficient information to establish the amount, date,
place, and the essential character of the expenditure for each such expenditure.
No expenditure will be reimbursed pursuant hereto unless the expense is verified
as provided above and approved by the Board of Directors of Employer or such
person designated by the Board of Directors of Employer.
9. Term. Subject to Section 10 below, the term of this Agreement shall
begin on the date hereof and shall continue for three years thereafter.
10. Termination.
(a) For Cause. Employer may, at its election, terminate
Employee's employment at any time for just cause, which shall include, without
any limitations thereon, the following: (i) Employee shall have failed or
refused to faithfully, diligently and competently perform the duties assigned to
Employee under this Agreement or otherwise to have breached any term or
provision contained herein; (ii) Employee shall be disabled or otherwise unable
for whatever reason to fully perform Employee's duties hereunder for 60
consecutive days or for more than 120 days in any twelve-month period; (iii)
Employee shall be guilty of fraud, dishonesty, or similar acts of misconduct; or
(iv) Employee shall be finally convicted of a felony or a misdemeanor involving
moral turpitude. At any time after the occurrence of an event permitting
Employer to terminate Employee's employment pursuant to this Section 10(a),
Employer may elect for termination of Employee's employment by notifying
Employee as to Employer's election to terminate, and thereupon Employee's
employment with Employer will terminate on the date specified in the notice or
(if no date is specified) upon the delivery of the notice. Notwithstanding the
preceding, upon any an event permitting Employer to terminate Employee's
employment pursuant to this Section 10(a) and in lieu of terminating Employee's
employment, Employer may, with or without notice to Employee, suspend the
performance of Employer's obligations under this Agreement (including, without
limitation, Employer's obligations under Section 7), and while such an event has
occurred and has not been cured, (x) Employer shall not be obligated to fulfill,
but shall be relieved of, Employer's obligations under this Agreement
(including, without limitation, Employer's obligations under Section 7), (y)
such obligations shall not accrue, and (z) Employee shall forfeit all rights and
remedies with respect thereto. Notwithstanding anything else contained herein,
if Employer suspends any of its obligations to Employee pursuant to the
preceding sentence, Employer may thereafter elect to terminate Employee's
employment in accordance with the other provisions of this Section 10(a).
(b) Automatic. The term of this Agreement shall automatically
terminate upon Employee's death.
(c) Effect. Upon termination of this Agreement, all rights and
obligations under this Agreement shall cease except for the rights and
obligations under Section 10, 11, 12 and 13 of this Agreement and the rights and
obligations under Section 7 of this Agreement to the extent Employee had not
been compensated for services performed prior to termination (Employee's salary
to be pro rated for the portion of the pay period prior to termination).
11. Noncompetition Agreement. For a period of one year after the
termination of this Agreement by Employer with cause or Employee without cause,
Employee shall not, directly or indirectly, acting alone or as a member of a
partnership, or as an officer, director, shareholder, employee, consultant, or
representative of any corporation or in any other capacity with any other
business entity, engage in the electronic commerce business anywhere in the
world. Employee hereby specifically acknowledges and agrees that the temporal
and other restrictions contained in this Section 11 are reasonable and necessary
to protect Employer, and that the enforcement of the provisions of this Section
11 will not work an undue hardship on him. Employee further agrees that in the
event either the length of time or any other restriction or portion thereof set
forth in this Section 11 is held to be overly restrictive and unenforceable in
any court proceeding, the court may reduce or modify such restrictions to those
which it deems reasonable and enforceable under the circumstances, and the
parties agree that the restrictions of this Section 11 will remain in full force
and effect as reduced or modified. Employee further agrees and acknowledges that
Employer does not have an adequate remedy at law for the breach or threatened
breach by him of the covenants contained in this Section 11, and Employee
therefore specifically agrees that Employer, in addition to other remedies which
may be available to it hereunder, may file a suit in equity to enjoin Employee
from such breach or threatened breach. Employee further agrees, in the event
that any provision of this Section 11 is held to be invalid or against public
policy, the remaining provisions of this Section 11 and the remainder of this
Agreement shall not be affected thereby. Notwithstanding anything else contained
herein, Employee shall be permitted to own any amount of stock in Employer and
up to five percent of the publicly-traded securities, registered under Section
12 or 15(d) of the Securities Exchange Act of 1934, of any other company engaged
in electronic commerce.
12. Confidentiality. Employee hereby recognizes and acknowledges that
Employee may receive information from, or may develop information on the behalf
of, Employer pertaining to Employer and its business that is confidential and
proprietary. All such information is referred to hereinafter as the
"Information". Employee hereby agrees to maintain on a confidential basis all
Information, and Employee agrees that Employee shall not, without the prior
express written consent of Employer, use for Employee's or anyone else's benefit
or disclose to any other person any Information, except in connection with
Employee's work on behalf of Employer. Employee hereby acknowledges that, as
between Employer and Employee, Employer has the complete, sole and full right,
title and interest in and to the Information, and that Employee has no rights,
expressed or implied, with respect to the foregoing other than those expressly
provided for to the contrary in a writing signed by both Employer and Employee.
Employee further agrees that Employee shall, immediately upon Employer's
request, return to Employer all written Information and all writings regarding
oral Information whether such writings were authorized or not. Employee hereby
agrees that the confidentiality agreement provided for hereby shall last with
respect to any Information for five years after such Information is disclosed by
Employer to Employee or developed by Employee on behalf of Employer, as the case
may be.
13. Property of Employer. Employee agrees that, upon the expiration or
termination of Employee's employment with Employer, Employee will immediately
surrender to Employer all property, equipment, funds, lists, books, records, and
other materials of Employer or any affiliate thereof in the possession of or
provided to Employee.
14. Law Governing. THIS AGREEMENT HAS BEEN ENTERED INTO IN THE STATE OF
TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS.
15. Notices. Any notice or request herein required or permitted to be
given to any party hereunder shall be given in writing and shall be personally
delivered or sent to such party by prepaid mail at the address set forth below
the signature of such party hereto or at such other address as such party may
designate by written communication to the other party to this Agreement. Each
notice given in accordance with this paragraph shall be deemed to have been
given, if personally delivered, on the date personally delivered, or, if mailed,
on the third day following the day on which it is deposited in the United States
mail, certified or registered mail, return receipt requested, with postage
prepaid.
16. Headings. The headings of the paragraphs of this Agreement have
been inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
17. Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement and the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
18. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings, whether written or
oral, relating to the subject matter hereof.
19. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of each party hereto and his, her or its respective
successors, heirs, assigns, and legal representatives, but neither this
Agreement nor any rights hereunder may be assigned by any party hereto without
the consent in writing of the other party.
20. Remedies. No remedy conferred by any of the specific provisions of
this Agreement is intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute
or otherwise. The election of any one or more remedies by any party hereto shall
not constitute a waiver of the right to pursue other available remedies.
IN WITNESS WHEREOF, the undersigned have set their hands hereunto as of
the first date written above.
"EMPLOYER"
JVWEB, INC.
By /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, President
Address:
0000 Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
"EMPLOYEE"
/s/Xxxx X. Xxxxx
Xxxx X. Xxxxx, individually
Address:
0000 Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
