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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into effective as of the
_________ day of ____________________, 1998 by and between The Insurance
Resource Center, Inc. ("IRC"), a North Carolina corporation, ("Company") and Tim
Higham, an individual.
For and in consideration of the agreement to employ Employee described
below, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT. The Company agrees to employ Employee, and Employee agrees to
accept such employment, subject to the following terms and conditions.
2. DUTIES. Employee shall assume and perform the duties specified in Exhibit A.
Such duties may be revised from time to time at the sole discretion of the
Company. Employee agrees to devote his or her full time and energy to the
Company's business and shall not during the term of employment work or perform
services in any advisory or other capacity for any other individual or entity.
3. COMPENSATION. The Company shall pay to Employee the salary and additional
compensation, if any, described in Exhibit A as compensation for all the
services to be rendered by Employee and as such compensation may be modified by
the Company in its sole discretion from time to time. The Company's obligation
to pay Employee any compensation shall cease upon termination of Employee's
employment with the Company. Employee's annual or monthly salary shall be
prorated on a daily basis for the years or months, as the case may be, in which
Employee commences and terminates his or her employment relationship with the
Company.
4. TERM AND TERMINATION. This agreement shall be effective upon execution by the
parties and shall remain in full force and effect thereafter, until terminated
as provided herein. Either party may terminate this Agreement at any time for
any reason, whether for cause or not for cause, by providing written notice to
the other on or prior to the proposed date of termination. This Agreement shall
terminate immediately upon the death of Employee. Upon termination of employment
for any reason, Employee shall return immediately to the Company all documents,
property, and other records of the Company, and all copies thereof, within
Employee's possession, custody or control, including but not limited to any
materials containing any Trade Secrets or Confidential Information (as defined
below) or any portion thereof.
5. OWNERSHIP. For purposes of this Agreement, "Work Product" shall mean the
data, materials, documentation, computer programs, inventions (whether or not
patentable), and all works of authorship, including all worldwide rights therein
under patent, copyright, trade secret, confidential information, or other
property right, created or developed in whole or in part by Employee, whether
prior to the date of this Agreement or in the future while employed by the
Company (whether developed during work hours or not) and which either (i) relate
to the present or anticipated business, research, developments, tests, products,
work or activities of the Company or (ii) result from or are suggested by any
work Employee may do for the Company. All Work Product shall be considered work
made for hire by the Employee and owned by the Company. If any of the Work
Product may not, by operation of the law, be considered work made for hire by
Employee for the Company, or if ownership of all right, title, and interest of
the intellectual property rights therein
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shall not otherwise vest exclusively in the Company, Employee hereby assigns to
the Company, and upon the future creation thereof automatically assigns to the
Company, without further consideration, the ownership of all Work Product. The
Company shall have the right to obtain and hold in its own name copyrights,
registrations, and any other protection available in the Work Product. Employee
agrees to perform, during or after Employee's employment, such further acts as
may be necessary or desirable to transfer, perfect, and defend the Company's
ownership of the Work Product that are reasonably requested by the Company.
6. LICENSE. To the extent that any preexisting materials are contained in the
materials Employee delivers to Company or Company's customers, Employee grants
to Company an irrevocable, nonexclusive, worldwide, royalty-free license to: (i)
use and distribute (internally or externally) copies of, and prepare derivative
works based upon, such preexisting materials and derivative works thereof, and
(ii) authorize others to do any of the foregoing.
7. TRADE SECRETS AND CONFIDENTIAL INFORMATION
(a) The Company may disclose to Employee certain Trade Secrets and Confidential
Information (defined below). Employee acknowledges and agrees that the
Trade Secrets and Confidential Information are the sole and exclusive
property of the Company (or a third party providing such information to the
Company) and that the Company or such third party owns all worldwide rights
therein under patent, copyright, trade secret, confidential information, or
other property right. Employee acknowledges and agrees that the disclosure
of the Trade Secrets and Confidential Information to Employee does not
confer upon Employee any license, interest or rights of any kind in or to
the Trade Secrets or Confidential Information. Employee may use the Trade
Secrets and Confidential Information solely for the benefit of the Company
while Employee is employed or retained by the Company. Except in the
performance of services for the Company, Employee will hold in confidence
and not reproduce, distribute, transmit, reverse engineer, decompile,
disassemble, or transfer, directly or indirectly, in any form, by any
means, or for any purpose, the Trade Secrets or Confidential Information or
any portion thereof. Employee agrees to return to the Company, upon request
by the Company, the Trade Secrets and Confidential Information and all
materials relating thereto.
(b) Employee's obligations under this Agreement with regard to the Trade
Secrets shall remain in effect for as long as such information shall remain
a trade secret under applicable law. Employee acknowledges that its
obligations with regard to the Confidential Information shall remain in
effect while Employee is employed or retained by the Company and for three
(3) years thereafter. As used herein, "Trade Secrets" means the trade
secrets of the Company and its subsidiaries and affiliates all as defined
in the Georgia Trade Secrets Act. As used herein, "Confidential
Information" means information of the Company and its subsidiaries and
affiliates, its licensors, suppliers, customers, or prospective licensors
or customers, other than Trade Secrets, that is of value to its owner and
is treated as confidential, including, but not limited to, technical or
non-technical data, formulas, patterns, compilations, programs, devices,
methods, techniques, drawings, processes, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers,
future business plans, licensing strategies, advertising campaigns,
information regarding executives and employees, and the terms and
conditions of this Agreement.
(c) Employee acknowledges that existing or prospective customers of the Company
may
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be companies which are publicly traded and subject to various rules and
regulations of the Securities and Exchange Commission. Employee
acknowledges that the Company has a policy that no one associated with the
Company may trade in securities of any customer of the Company based on
material, nonpublic information concerning the customer. Additionally, the
Company expressly forbids the unauthorized disclosure of any nonpublic
information acquired by anyone associated with the Company relating to a
customer of the Company. Employee shall notify the Company prior to trading
the securities of any customer or in any Securities of the Company.
(d) Nothing contained herein shall be deemed to waive any of the Company's
rights or remedies under any applicable trade secrets acts, including, but
not limited to, the Georgia Trade Secrets Act.
8. CUSTOMER NON-SOLICITATION. Employee agrees that for a period of two (2) years
immediately following termination of Employee's employment with the Company for
any reason, including, without limitation, voluntary resignation from employment
by Employee ("Non-Solicitation Period"), Employee shall not, on Employee's own
behalf or on behalf of any person, firm, partnership, association, corporation
or business organization, entity or enterprise, solicit, contact, call upon,
communicate with or attempt to communicate with any customer or immediate
prospect of the Company, or any representative of any customer or immediate
prospect of the Company, with whom the Employee had Material Contact ("Material
Contact"), with a view to sale or providing of any deliverable or service
competitive or potentially competitive with any deliverable or service sold or
provided or under development by the Company during the time of two (2) years
immediately preceding cessation of Employee's employment with the Company,
provided that the restrictions set forth in this paragraph shall apply only to
customers or prospects of the Company, or representatives of customers or
prospects of the Company, with which Employee had substantial contact during
such two (2) year period. For the purposes of this agreement, "immediate
prospect" is defined as an entity with which the Company is engaged in
discussions that go beyond mere identification of the entity as a potential
customer. At a minimum, included within this definition are such events as
initial entity solicitation of the Company or initial Company solicitation of
the entity. The actions prohibited by this paragraph shall not be engaged in by
Employee directly or indirectly, whether as manager, salesperson, agent,
technical support, sales or service representative, developer, or otherwise. As
used herein, "Material Contact" means contact between Employee and each customer
or immediate prospect (A) with whom Employee dealt; (B) whose dealings with the
Company were coordinated or supervised by Employee; (C) about whom Employee
obtained Confidential Information in the ordinary course of business as a result
of Employee's association with the Company; or (D) who receives services
provided by the Company, the sale or provision of which results or resulted in
compensation, commissions or earnings for Employee, in each of cases (A) through
(D) within two years prior to the date of Employee's termination of employment.
9. NON-COMPETITION. Employee agrees that during the term of Employee's
employment and during the non-Solicitation Period, Employee shall not, within
thirty miles from the intersection of Roswell Road and Piedmont Road, the
nearest major intersection to the Company's principal place of business, on
Employee's own behalf or on behalf of any person, firm, partnership,
association, corporation or business organization, entity or enterprise, perform
services substantially similar to the activities described in Exhibit A for any
company or other entity that creates Web sites or develops Internet or Intranet
enabled computer software applications. The actions prohibited by this paragraph
shall not be engaged in by Employee directly or indirectly, whether as manager,
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salesperson, agent, technical support, sales or service representative,
developer, or otherwise. Employee acknowledges that the Company provides
products and services to customers throughout the United States given the global
scope of the internet and that a more limited territorial restriction on the
non-competition provisions of this paragraph would not adequately protect the
legitimate interests of the Company. The provisions of this Section 9 and the
noncompetition provision contain in Section 3 of the Noncompetition Agreement,
dated of even date herewith between HomeCom Communications, Inc. and Employee,
shall apply after the term of Employee's employment only in the event that
Employee's termination from employment is for one or more of the following
reasons: (i) termination by the Company for a willful dishonesty toward or
deliberate injury or attempted injury to the Company; or (ii) termination by the
Company for moral turpitude; or (iii) termination by Company for a violation or
other failure of Employee to perform in accordance with any of the material
provisions of this Agreement; or (iv) termination by the Company for negligence
or disregard in the performance of the Employee's duties, or (v) voluntary
resignation or retirement from employment by Employee.
10. EMPLOYEE NON-SOLICITATION. During the Non-Solicitation Period, Employee
agrees that Employee shall not call upon, solicit, recruit, or assist others in
calling upon, recruiting or soliciting any person who is or was an employee of
the Company who is or was an employee of the Company within twelve months of
such solicitation or recruitment, for the purpose of having such person
terminate his employment with the Company or work in any other corporation,
association, entity, or business.
11. EQUITABLE RELIEF. The parties to this Agreement acknowledge that a breach by
Employee of any of the terms or conditions of this Agreement will result in
irrevocable harm to the Company and that the remedies at law for such breach may
not adequately compensate the Company for damages suffered. Accordingly,
Employee agrees that in the event of such breach, the Company shall be entitled
to injunctive relief or such other equitable remedy as a court of competent
jurisdiction may provide. Nothing contained herein will be construed to limit
the Company's right to any remedies at law, including the recovery of damages
for breach of this Agreement.
12. SEVERABILITY. In any provision or part of any provision of this Agreement is
held invalid or unenforceable by a court of competent jurisdiction, such holding
shall not affect the enforceability of any other provisions or parts thereof,
and all other provisions and parts thereof shall continue in full force and
effect.
13. NO DEFENSE. The existence of any claim, demand, action or cause of action
that Employee may have against the Company, whether predicated upon this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of any of the covenants contained in Sections, 5, 6, 7,8, 9 or 10
hereof.
14. WAIVER. The waiver by one party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach of the same or any other provision by the other party.
15. MISCELLANEOUS. This agreement shall not be amended or modified except by a
writing executed by both parties. This Agreement shall be binding upon and inure
to the benefit of the Company and its successors and assigns. Due to the
personal nature of this Agreement, Employee shall not have the right to assign
Employee's rights or obligations under this Agreement without the prior written
consent of Company. This Agreement shall be governed by the laws of the State of
Georgia without regard to its rules governing conflicts of law. Venue shall lie
in Superior Court of Fulton County, Georgia. The parties hereto acknowledge that
such Court has the jurisdiction to interpret and enforce the provisions of this
Agreement and the parties waive any and all objections which they may have as to
personal jurisdiction or venue in any of the above Courts. This agreement and
the attached
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Exhibit represent the entire understanding of the parties concerning the subject
matter hereof and supersede all prior communications, agreements and
understandings, whether oral or written, relating to the subject matter hereof.
All communications required or otherwise provided under this Agreement shall be
in writing and shall be deemed given when delivered to the address provided
below such party's signature (as may be amended by notice from time to time), by
hand, by courier or express mail, return receipt requested, postage prepaid.
Exhibit A, attached hereto, is incorporated herein by reference.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Signed: ____________________ Date:____________
Print Name: ____________________
____________________ Date:____________
Harvey Sax
CEO HomeCom Communications, Inc.
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IV. MISCELLANEOUS
1. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia.
2. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original as against any party whose signature
appears thereon, and all of such counterparts shall together constitute one and
the same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the fax
signatures of all of the parties reflected hereon as the signatories. This
Agreement may be executed and delivered by fax (telecopier); any original
signatures that are initially delivered by fax shall be physically delivered
with reasonable promptness thereafter.
3. This Agreement shall become effective on the date the Company has
received an executed counterpart of this Agreement from each of the Purchasers.
4. Neither the execution of this Agreement nor anything herein contained
is intended to be, nor shall be construed to be, an admission by the Company or
its officers and directors, First Granite Securities, Inc. or the Purchasers of
any liability to the other, now, in the past or in the future, or an admission
of the existence of facts upon which liability could be based. This Agreement
is contractual and it has been entered into to compromise disputed claims and
to avoid the uncertainty and expense of further litigation.
5. This Agreement shall constitute the full and complete agreement
between the parties concerning its subject matter and fully supersedes any and
all other prior agreements or understandings between the parties regarding the
subject matter thereto. This Agreement shall not be modified or amended except
by written instrument signed by all of the parties hereto.
Very truly yours,
HomeCom Communications, Inc.
By: /s/ Harvey Sax
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Harvey Sax, President
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[SIGNATURES CONTAINED FROM PREVIOUS PAGE]
Accepted and agreed to by the undersigned
Purchaser:
Eurofactors International Inc.
By:
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Print Name:
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Print Title:
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Attest:
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Print Name:
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Signed, sealed and delivered in the presence of:
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Notary Public
My commission expires:
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[NOTARIAL SEAL]
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[SIGNATURES CONTAINED FROM PREVIOUS PAGE]
Accepted and agreed to by the undersigned
Purchaser:
Beauchamp Finance
By:
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Print Name:
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Print Title:
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Attest:
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Print Name:
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Signed, sealed and delivered in the presence of:
- --------------------------------------------
Notary Public
My commission expires:
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[NOTARIAL SEAL]
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[SIGNATURES CONTAINED FROM PREVIOUS PAGE]
Accepted and agreed to by the undersigned
Purchaser:
FTS Worldwide Corporation
By:
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Print Name:
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Print Title:
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Attest:
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Print Name:
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Signed, sealed and delivered in the presence of:
- --------------------------------------------
Notary Public
My commission expires:
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[NOTARIAL SEAL]
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[SIGNATURES CONTAINED FROM PREVIOUS PAGE]
Accepted and agreed to by the undersigned
Purchaser:
COLBO
By:
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Print Name:
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Print Title:
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Attest:
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Print Name:
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Signed, sealed and delivered in the presence of:
- --------------------------------------------
Notary Public
My commission expires:
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[NOTARIAL SEAL]
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[SIGNATURES CONTAINED FROM PREVIOUS PAGE]
Accepted and agreed to by the undersigned
Purchaser:
First Granite Securities, Inc.
By:
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Print Name:
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Print Title:
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Attest:
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Print Name:
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Signed, sealed and delivered in the presence of:
- --------------------------------------------
Notary Public
My commission expires:
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[NOTARIAL SEAL]