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Exhibit
10.1
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered
into as of October 15, 2007, by and between Iventa
Corporation, a Delaware corporation (the "Company"), I-Corp.
Acquisition Sub, Inc., California corporation ("
Acquisition Sub "), and Jamison Stafford, residing at
the address set forth on the signature page hereto (the
"Executive"). This Agreement shall be effective
upon signing.
RECITALS
A.
Executive currently serves as President of the
Company.
B.
Commerce Planet, Inc. is acquiring from Executive all of
Executive's capital stock of the Company pursuant to the
transactions (the "Transaction") described in that certain
Agreement and Plan of Merger (the "Merger Agreement"), dated
October 12, 2007, by and among Commerce Planet, Inc., I-Corp.
Merger Sub, LLC, Acquisition Sub, the Company and certain of
the Company's stockholders, including Executive.
C.
The Company desires to employ the Executive on the terms and
conditions set forth in this Agreement and the Executive
desires to accept such employment on the terms and conditions
set forth herein.
D. The
Executive acknowledges that his covenants and the
Company’s remedies set forth in Sections 7 through 12
are reasonable and necessary to protect the Company’s
business interests and goodwill.
NOW,
THEREFORE, in consideration of the premises and the mutual
promises made herein, the parties agree as
follows:
1.
Employment . The Company hereby employs the
Executive in the capacity of President, and the Executive
hereby accepts the employment, on the terms and conditions
hereinafter set forth.
2.
Duties .
(a)
Primary Duties . During the Term (as defined
below), the Executive’s principal duties and
responsibilities shall be those determined by the Chief
Executive Officer of the Company to be reasonably necessary to
carry out the functions of the Executive’s
office. Executive shall report to the Chief
Executive Officer of the Company. The
Executive’s duties shall be similar to those customarily
performed by comparable officers of companies that conduct the
same or similar business as the Company.
(b)
Other Activities . The Executive agrees to
perform Executive’s duties and responsibilities and to
devote his full business time, energies, and commercially
reasonable efforts to the performance thereof; provided,
however that Executive shall be entitled to engage in such
activities that do not materially interfere with
Executive’s performance of his duties under this
Agreement.
(c)
Additional Capacities . During the Term, the
Executive shall serve in any additional offices or positions
of the Company and/or its subsidiaries and/or affiliates under
common control with the Company (such subsidiaries and
affiliates which are in the same business as the Company are
referred to herein as the "Company Related Entities"), to
which, with Executive’s consent, he may be elected or
appointed by appropriate action of the Company or any Company
Related Entity. The Executive shall serve in any
such additional capacities without separate compensation for
so serving, unless otherwise authorized in writing by the
Board.
(d)
Location of Service . During the Term, the
Executive shall perform Executive's duties at the offices of
the Company located at Iventa’s now current Corporate
Offices.
(e)
Exempt Status . It is understood that while
Executive reports and shall be responsible to the Chief
Executive Officer of the Company, or designee, Executive has
discretion to perform such functions as he deems reasonably
necessary to the successful operation of the Company's
business. Accordingly, the parties understand and agree that
Executive is "exempt" on both an executive and administrative
basis under applicable California wage and hour
laws.
3.
Nature of Employment . The Executive’s
employment with the Company is "at will" and is for no
specific period of time. As a result, either the Executive or
the Company may terminate the employment relationship at any
time for any reason, with or without
cause. Termination of employment will not affect
the rights and obligations which this Agreement expressly
contemplates will be performed following such
termination. The period commencing on the date of
this Agreement and ending on the date of the Executive’s
termination is the "Term."
4.
Salary and Other Benefits . During the Term,
as compensation for the services to be rendered by the
Executive to the Company pursuant to this Agreement, the
Executive shall be paid the following compensation and other
benefits:
(a)
Salary . The Company will pay the Executive
a base salary at the annual rate of $175,000 (the "Base
Salary"), payable in accordance with the Company’s
regular payroll policies. The Base Salary will be
reviewed annually by the Board.
(b)
Bonus . The Executive shall receive a
quarterly bonus equal to 3% of the Net Profit (as defined in
the Merger Agreement) of the Iventa business unit as
determined in accordance with the Merger Agreement on a
quarterly basis for each applicable calendar year during the
Term. The bonus for any quarter shall be paid
within five (5) days following determination of Net Profit for
such quarter in accordance with the Merger
Agreement.
(c)
Vacation and Sick Leave . Executive shall be
entitled to take up to three weeks (fifteen (15) working days)
paid vacation during each calendar year. Executive
shall be entitled to up to five (5) working days paid sick
leave during each calendar year. Unused sick days will not
accrue and the Company shall not be obligated to compensate
Executive for any unused sick days at any time. Unless
otherwise stated to the contrary within this section, vacation
and sick leave will be governed in accordance with the terms
of the applicable policies of Commerce Planet,
Inc.
(d)
Expenses . The Company will pay or reimburse
the Executive for all reasonable business expenses in
accordance with the Company’s policy as in effect from
time to time.
(e)
Benefits . The Executive shall be entitled
to participate in customary benefit programs that the Company
or Commerce Planet, Inc. establishes and makes available to
its executive-level employees.
5.
Equity Incentive . Within thirty (30) days
of the date hereof the Company will adopt an equity incentive
plan not inconsistent with the terms of the Restricted Stock
Unit Agreement attached hereto as Exhibit B and execute
and deliver said agreement to Executive. The
foregoing agreement described in this Section 5 is sometimes
referred to as the "Equity Document."
6.
Definition of Confidential Information .
(a)
Definition . For the purposes of this
Agreement, "Confidential Information" means any of the
Company’s or any Company Related Entity's information,
whether or not reduced to writing, (i) that is not generally
known in the Company’s trade or industry, (ii) that the
Company and/or any Company Related Entity treats, or is
obligated to treat, as confidential and (iii) that the
Executive may create or have access to in connection with the
Executive’s employment with the Company; provided, that
Confidential Information does not include information that
becomes publicly and generally known (other than through any
unauthorized act of the Executive).
(b)
Duty to Inquire . If the Executive has some
question as to whether certain information falls within the
scope of Confidential Information as defined herein, the
Executive agrees to treat such information as Confidential
Information until informed otherwise in writing by the
Company.
7.
Obligations Respecting Confidential Information
.
(a)
Non-disclosure and Use . During the term of
the Executive’s employment and thereafter, the Executive
agrees (i) not to disclose the Confidential Information except
as required in the course of the Executive’s employment,
(ii) not to copy or use the Confidential Information except as
required for the performance of the Executive’s duties
hereunder, and (iii) to comply with any procedures that the
Company may adopt from time to time to preserve the
confidentiality of the Confidential Information.
(b)
Ownership . The Executive acknowledges that
the Company owns all right, title and interest in and to the
Confidential Information and that the Executive acquires no
right, title or interest in any Confidential Information by
virtue of the Executive’s employment by the Company or
access to or creation of Confidential
Information.
(c)
Return . Upon termination of the
Executive’s employment with the Company for any reason,
the Executive agrees to deliver to the Company all
copies of any data, records, documents and other materials,
including files stored on electronic or other media, in the
Executive’s possession that contain any Confidential
Information. The Executive understands that he may
not retain copies of any Confidential Information and must
delete files containing any Confidential Information stored on
any computer that the Executive owns. The Executive
agrees, if requested by the Company, to confirm in writing
that the Executive has complied with the foregoing
obligations.
8.
Inventions .
(a)
Inventions Defined . For the purposes of
this Agreement, "Inventions" mean any concepts, ideas,
processes, designs, specifications, improvements, trade
secrets, discoveries or other developments, whether or not
reduced to practice or patentable, that the Executive
conceives or creates, in whole or in part, alone or jointly
with others, pursuant to his employment by the Company (and
its predecessor) which (i) directly relate to the
Company’s business (including without limitation the
Company’s present or contemplated products, services and
research) or to tasks assigned to the Executive by or on
behalf of the Company or (ii) are written or developed using
any of the Company’s equipment, facilities, materials,
trade secrets, labor, money, time or other
resources.
(b)
Disclosure and Assignment of Inventions
. The Executive agrees that he will promptly
disclose to the Company all Inventions and that all Inventions
shall be the sole and exclusive property of the
Company. The Executive hereby assigns to the
Company all of his right, title and interest in all
Inventions.
(c)
Patents . During the period of his
employment and at any time thereafter, the Executive shall,
upon the Company’s request, execute U.S. and foreign
copyright registrations and patent applications and/or any
other legal documents reasonably necessary to transfer all
right, title and interest in and to the Inventions to the
Company and reasonably assist, at the Company’s request
and expense, in any reasonable and proper manner in obtaining
and enforcing such copyrights and patents. In the
event that the Company is unable, after reasonable effort, to
secure the Executive’s signature on any such
registrations, application and other legal documents solely
for any of the aforesaid purposes, the Executive hereby
irrevocably designates and appoints the Company and its duly
authorized directors, officers and agents as his agent and
attorney-in-fact, to do all lawfully permitted acts (including
but not limited to the execution, verification and filing of
applicable documents) with the same legal force and effect as
if performed by the Executive.
(d)
Preexisting Inventions . The Executive has
identified on Exhibit C to this Agreement, by title and
dates of documents describing them, all inventions in which
the Executive has any right, title or interest and/or which
the Executive conceived or created at any time prior to the
start of his employment by the Company (the "Preexisting
Inventions"). All right, title or interest in any
such Preexisting Invention(s) shall be the sole and exclusive
property of Executive or any other entity to which Executive
has assigned the right, title or interest
to such Preexisting Invention.
9.
Written Materials .
(a)
Ownership . The Executive acknowledges and
agrees that all writings and works of authorship, including
without limitation, analyses, memoranda, proposals, reports,
speeches, studies, software, logic diagrams, flow charts,
decision charts, drawings, procedural diagrams, documentation
manuals of any kind produced by him in the course of his work
for the Company ("Works") are works made for hire and the
property of the Company, including, without limitation, any
copyrights in those Works. To the extent any such
Works may not, by operation of law or otherwise, be a work
made for hire, the Executive hereby assigns to the Company the
ownership of and all copyrights in and to such Works, whether
published or unpublished, and the right to secure renewals of
such copyrights. The Executive further agrees upon
request to execute such specific assignments or instruments
and take any action necessary to enable the Company to secure
all copyright rights in such Works and/or extensions or
renewals thereof.
(b)
Moral Rights Waiver . The Executive
understands that the term "moral rights" means any rights of
paternity or integrity, including any right to claim
authorship of a copyrightable work, to object to a
modification of such copyrightable work, and any similar right
existing under the judicial or statutory law of any country in
the world or under any treaty, regardless of whether or not
such right is denominated or generally referred to as a "moral
right," including, without limitation, the rights of
attribution and integrity in works of visual art pursuant to
17 U.S.C. § 106A. The Executive irrevocably
waives and agrees never to assert any moral rights that he may
have in any Works, even after any termination of his
employment with the Company.
(c)
Exclusions . Notwithstanding anything in
this Section 9 to the contrary, "Works" as used herein
shall not include articles authored by the Executive for
publication in academic or trade journals. No
assignments in this Agreement shall extend to Inventions or
Works, the assignment of which Executive proves would be
prohibited by Section 2870 of the California Labor Code (a
copy of which is attached hereto as Exhibit D
).
10.
Incorporation of Preexisting Materials
. Unless the Company otherwise agrees in writing in
each instance, the Executive agrees not to include or
otherwise incorporate into any Inventions or Works any
preexisting materials, except for preexisting materials owned
by the Executive. To the extent that any
preexisting materials owned by the Executive are contained or
embedded in any Inventions or Works or are reasonably
necessary to the proper operation or use thereof and in the
absence of a written agreement with the Company to the
contrary, the Executive hereby grants to the Company an
irrevocable, perpetual, worldwide, fully-paid, royalty-free,
nonexclusive license to use such preexisting materials in any
manner and prepare derivative works thereof in connection with
the use, operation, modification, transfer or disposition of
such Invention or Works.
11.
Post Employment Restrictions .
(a)
Covenant Not-to-Solicit Customers . During
the Executive’s employment with the Company and for a
period of one (1) year after the Date of Termination (as
defined in Section 14(b)(2)), the Executive shall not solicit
directly or indirectly, individually or on behalf of any other
person or entity, whether as principal, agent, stockholder,
employee, consultant, representative or in any other capacity,
contact any person or entity, which:
(1)
is a customer or client of the Company and/or any Company
Related Entity on the Date of Termination,
(2) the
Company can evidence in writing has been a customer or client
of the Company and/or any Company Related Entity at any time
within the one (1) year period prior to the Date of
Termination, or
(3) the
Company can evidence in writing is a prospective customer or
client that the Company and/or any Company Related Entity is
actively soliciting as of the Date of Termination, for the
purpose of selling products or services similar to any of the
products and services offered for sale to such customers or
prospective customers by the Company and/or any Company
Related Entity as of the Date of Termination.
(b)
Covenant Not-to-Solicit Executives or Consultants
. During the Executive’s employment with the
Company and for a period of one (1) year after the Date of
Termination, the Executive shall not directly or indirectly,
individually or on behalf of any other person or entity,
whether as principal, agent, stockholder, employee,
consultant, representative or in any other capacity recruit or
solicit any person to leave the employ of the Company and/or
any Company Related Entity; provided, however that the
following activities shall not constitute a violation of this
Section 11(b) : (i) general employment related
advertising, or (ii) participation in employment fairs or
similar events.
(c)
Non-Competition . The Executive recognizes
and acknowledges the competitive and proprietary nature of the
business operations of the Company and the Company Related
Entities. In consideration of the consideration received by
the Executive pursuant to the Transaction, during the
Executive’s employment with the Company and for a period
of two (2) years after the Date of Termination, the Executive
shall not, without the prior written consent of the Company,
for himself or on behalf of any other person or entity,
directly or indirectly, whether as principal, agent,
stockholder, employee, consultant, representative or in any
other capacity, own, manage, operate or control or have a
financial interest in any entity which is engaged primarily in
the business of (1) creating, developing, licensing e-commerce
website or web-software or selling computer software to
businesses, in each case for the management of e-commerce
websites, webstores and/or order processing for such
businesses; or (2) providing product fulfillment services;
provided, however that nothing contained herein shall preclude
the Executive from purchasing or owning stock in any such
competitive business if such stock is publicly traded, and
provided that his holdings do not exceed one percent (1%) of
the issued and outstanding capital stock of such
business.
(d)
Severability of Restrictions . In the event
that any of the provisions of this Section 11 shall be
held to be invalid or unenforceable, the remaining provisions
thereof shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable parts had
not been included therein. In the event that any
provision of this Section 11 relating to the time period
and/or the areas of restriction and/or related aspects shall
be declared by a court of competent jurisdiction to exceed the
maximum restrictiveness such court deems reasonable and
enforceable, the time period and/or areas of restriction
and/or related aspects deemed reasonable and enforceable by
the court shall become and thereafter be the maximum
restriction in such regard, and the restriction shall remain
enforceable to the fullest extent deemed reasonable by such
court.
12.
Remedies . The Executive understands and
agrees that the Company and the Company Related Entities will
suffer irreparable harm in the event that the Executive fails
to comply with the Executive’s obligations under
Sections 7 , 8 , 9 , 10 and
11 of this Agreement and that monetary damages will be
inadequate to compensate the Company for such
breach. The Executive agrees that the Company and
the Company Related Entities shall, in addition to any other
remedies available to them, be entitled to seek preliminary
and permanent injunctive relief against any breach by the
Executive of the covenants and agreements contained in
Sections 7 , 8 , 9 , 10 and
11 hereof without having to post bond. The
parties submit to the exclusive jurisdiction of the state or
federal courts located in Los Angeles, California in
connection with any dispute, controversy or claim between the
parties arising out of or related to any term or condition of
Sections 7 , 8 , 9 , 10 and
11 . In addition to Executive's other
remedies at law or under this Agreement (including enforcement
of the Severance Payments), if the Company shall fail to
timely make any payments due Executive hereunder, the
provisions of Section 11 shall immediately cease to
apply.
13.
No Prior Employment Restrictions . The
Executive represents and warrants that the Executive is not
restricted by any restrictive covenant or confidentiality
agreement of any type or nature from any prior employment from
performing any of the duties required by this
Agreement. The Executive agrees that he will not
improperly use or disclose confidential information or trade
secrets of any prior employer or third person or knowingly
bring onto the Company’s premises any confidential
information or trade secrets belonging to any prior employer
or third person unless the Executive has received the prior
written consent of such prior employer or third
party.
14.
Term and Termination .
(a)
Events of Termination . The initial term
(the "Term") of Executive's employment shall be for a period
of two (2) years from the Effective Date unless terminated
earlier pursuant to the terms hereof. Employment of
the Executive under this Agreement may be
terminated:
(1)
by the Executive’s death.
(2) as
a result of the Executive’s Total
Disability.&
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