EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the
_____day of ______________, 2007 (the "Effective Date"), by and among Knobias,
Inc., a Delaware corporation (the "Company"), and E. Key ▇▇▇▇▇▇ ("Employee").
The Employee has been employed by the Company pursuant to that certain
Employment Agreement, dated as of November 15, 2004 (the "Existing Employment
Agreement"). The parties desire to terminate the Existing Employment Agreement
and enter into this Agreement to confirm the terms and conditions on which
Employee shall be employed by the Company from and after the Effective Date.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the Company and Employee set forth below, the Company and
Employee hereby agree as follows:
1. Termination of Existing Employment Agreement. The Company and Employee
hereby agree and acknowledge that as of the Effective Date that the
Existing Employment Agreement shall be null and void and superseded and
replaced by this Agreement, and neither party shall have any further
obligations to the other party arising from the Employment Agreement.
2. Term. Unless terminated at an earlier date for one of the events set forth
in Section 6.01, the term of Employee's employment hereunder shall be a
period of six (6) months commencing on the Effective Date (the "Term").
3. Position and Duties.
3.01 Service with the Company. During the Term, Employee shall provide
services to the Company commensurate with his experience in accordance
with the strategies and tasks defined and responsibilities assigned to
Employee by the Board of Directors of the Company.
3.02 Performance of Duties. Employee agrees to serve the Company to the
best of his ability and to devote his full time, attention and efforts
to the business and affairs of the Company during the Term. Employee
shall report directly to the Board of Directors of the Company.
Employee shall be entitled to fulfill his duties under this Agreement
from the Company's officers in Ridgeland, Mississippi.
4. Compensation.
4.01 Base Salary. As base compensation for all services to be rendered by
Employee under this Agreement, the Company shall pay to Employee a
base salary, which base salary shall be $14,583.33 per month (the
"Base Salary"), which Base Salary shall be paid in accordance with the
Company's normal payroll procedures and policies, subject to
applicable deductions as required by law.
4.02 Bonus. In addition to Base Salary, the Company shall issue to Employee
at the expiration of the Term such number of shares of Series B Senior
Convertible Preferred Stock of the Company equal to $80,000 (the
"Bonus Shares").
4.03 Participation in Benefit Plans. During the Term, Employee shall be
entitled to participate in all employee benefit plans or programs
offered to the employees of the Company (to the extent that Employee
meets the requirements for each such plan or program) on the terms and
conditions offered to the Company's employees generally.
5. Additional Covenants.
5.01 Noncompetition.
(a) During the Term and, if Employee is terminated for Cause or
resigns, for a period of six (6) months following such
termination of Employee's employment, Employee shall not,
directly or indirectly, for himself or on behalf of or in
conjunction with any other person, persons, company, partnership,
corporation or business of whatever nature:
(i) contact any customer of the Company or any of its
subsidiaries or other person for the purpose of inducing or
attempting to induce such customer or other person to cease
doing business with the Company or any of its subsidiaries;
(ii) induce or attempt to trade any agent or employee of the
Company or any of its subsidiaries to terminate employment
with the Company or any of its subsidiaries or to commence
work with any competitor of the Company or any of its
subsidiaries;
(iii) call on, solicit, attempt to obtain, accept, or in any way
secure business from any of the customers of the Company or
any of its subsidiaries for purposes of competing with the
Company or any of its subsidiaries in the United States,
nor, directly or indirectly, aid or assist any other person,
firm or corporation in the solicitation of such customer for
purposes of competing with the Company or any of its
subsidiaries in the United States; and
(iv) engage, as an officer, director, shareholder, owner,
partner, joint venture, or in a managerial capacity, whether
as an employee, independent contractor, consultant or
advisor, or as a sales representative, in any business
selling any products or services in direct competition with
the Company or any of its subsidiaries in the United States.
(b) The covenants in this Section are severable and separate, and the
unenforceability of any specific covenant shall not affect the
provisions of any other covenant. Moreover, in the event any
court of competent jurisdiction shall determine that any
restrictions set forth in this Section are unreasonable, then it
is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable,
and this Agreement shall thereby be reformed.
(c) Each of the covenants in this Section shall be construed as an
agreement independent of any other provision in this Agreement,
and the existence of any claim or cause of action of Employee
against the Company or any of its subsidiaries, whether
predicated on this Agreement or otherwise shall not constitute
defense to the enforcement by the Company or any of its
subsidiaries of such covenants.
5.02 Confidentiality.
(a) Employee acknowledges and agrees that all Confidential
Information (as defined below) of the Company and any of its
subsidiaries is confidential and a valuable, special, and unique
asset of the Company that gives the Company an advantage over its
actual and potential, current, and future competitors. Employee
further acknowledges and agrees that Employee owes the Company
and any of its subsidiaries a fiduciary duty to preserve and to
protect all Confidential Information from unauthorized disclosure
or unauthorized use, certain Confidential Information constitutes
"trade secrets" under the laws of the state of Mississippi; and
unauthorized disclosure or unauthorized use of the Company's or
any of its subsidiaries' Confidential Information would
irreparably injure the Company and its subsidiaries.
(b) Both during the Term and after the termination of Employee's
employment for any reason (including wrongful termination),
Employee shall hold all Confidential Information in strict
confidence, and shall not use any Confidential Information except
for the benefit of the Company, in accordance with the duties
assigned to Employee. Employee shall not at any time (either
during or after the term of Employee's employment), disclose any
Confidential Information to any person or entity (except other
employees of the Company who have a need to know the information
in connection with the performance of their employment duties),
or copy, reproduce, modify, decompile, or reverse engineer any
Confidential Information, or remove any Confidential Information
from the Company's premises, without the prior written consent of
the Board of Directors of the Company or permit any other person
to do so, except as may otherwise be required by law or legal
process. Employee shall take reasonable precautions to protect
the physical security of all documents and other material
containing Confidential Information (regardless of the medium on
which the Confidential Information is stored). This Agreement
applies to all Confidential Information, whether now known or
later to become known to Employee.
(c) As used in this Agreement, the term "Confidential Information"
shall mean any information or material known to or used by or for
the Company or any of its subsidiaries (whether or not owned or
developed by the Company or any of its subsidiaries and whether
or not developed by Employee) that is not generally known to the
public. Confidential Information includes, without limitation,
the following: all trade secrets of the Company or any of its
subsidiaries; all information that the Company or any of its
subsidiaries has marked as confidential or has otherwise
described to Employee (either in writing or orally) as
confidential; all non-public information concerning the products,
services, prospective products or services, research, product
designs, prices, discounts, costs, marketing plans, marketing
techniques, market studies test data, customers, customer lists
and records, suppliers and contracts of the Company or any of its
subsidiaries; all business records and plans of the Company or
any of its subsidiaries; all personnel files of the Company or
any of its subsidiaries; all financial information of or
concerning the Company or any of its subsidiaries; all
information relating to operating system software, applications
software, software and system methodology, hardware platforms,
technical information, inventions, computer programs and
listings, source codes, object codes, copyrights, patents,
trademarks, service marks, and other intellectual property; all
technical specifications; any proprietary information belonging
to the Company or any of its subsidiaries; all computer hardware
or software manuals; all training or instruction manuals; all
data and all computer system passwords and user codes.
6. Termination.
6.01 Termination. This Agreement shall terminate prior to the expiration of
the Term upon the occurrence of any of the following events:
(a) Employee's resignation;
(b) Employee's termination by Company without Cause (as hereinafter
defined); and
(c) Employee's termination by Company for Cause (as hereinafter
defined).
6.02 Severance. If Employee's employment is terminated:
(a) as a result of Sections 6.01(a) and (c), then the Company shall
not be required to pay Employee his Base Salary after the
effective date of such termination and Employee shall not be
entitled to receive any of the Bonus Shares; or
(b) as a result of Section 6.01(b), then the Company shall pay to
Employee or Employee's estate the Base Salary that would have
been due through the end of the Term and all of the Bonus Shares.
6.03 "Cause" Defined. For the purposes of this Agreement, the term "Cause"
means, as determined by the Board (or its designee), with respect to
conduct during the Employee's employment or service relationship with
the Company or its affiliates, whether or not committed during the
Term, (i) commission of a felony by Employee; (ii) acts of dishonesty
by Employee resulting or intending to result in personal gain or
enrichment at the expense of the Company or its subsidiaries; (iii)
conduct by Employee in connection with his duties hereunder that is
fraudulent, unlawful or grossly negligent, including, but not limited
to, acts of discrimination; (iv) engaging in personal conduct by
Employee (including but not limited to employee harassment or
discrimination, the use or possession at work of any illegal
controlled substance) which seriously discredits or damages the
Company or its subsidiaries; (v) repeated failure of Employee to
follow the directions of the Board of Directors of the Company; and
(vi) breach of the Employee's covenants set forth in Section 5 before
termination of employment; provided, that, the Employee shall have
fifteen (15) days after notice from the Company to cure the deficiency
leading to the Cause determination (except with respect to (i) above),
if curable. A termination for "Cause" shall be effective immediately
or on such later date set forth by the Company in the notice of
termination. Any termination other than for "Cause" as defined herein
shall be deemed a termination without Cause.
6.04 Surrender of Records and Property. Upon termination of Employee's
employment by Employee or by the Company, for any reason or for no
reason, Employee shall deliver promptly to the Company all records,
manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, and calculations, and copies
thereof, in whatever medium, which are the property of the Company or
which relate in any way to the business, products, practices,
techniques, customers, suppliers, functions or operations of Company,
and all other property and Confidential Information of the Company,
including, but not limited to, all documents which in whole or in part
contain any Confidential Information of the Company, which in any of
these cases are in his possession or under his control.
7. Injunctive Relief. Employee agrees that (i) any breach or threatened breach
of Sections 5 or 6.04 shall be a material breach of this Agreement, (ii)
such breach will cause substantial harm to the Company and any of its
subsidiaries, the amount of which will be difficult to determine and
compute, (iii) the remedies of the Company or any of its subsidiaries at
law for such breach would be inadequate to fully compensate Company or any
of its subsidiaries for the harm caused thereby and (iv) in addition to,
but not to the exclusion of any other available remedy, the Company and any
of its subsidiaries shall have the right to enforce the provisions of
Sections 5 and 6.04 by applying for and obtaining temporary and permanent
restraining orders, injunctions, decrees of specific performance and other
equitable relief from any court of competent jurisdiction without the
necessity of filing a bond therefor or proving irreparable harm.
8. Indemnification. In the event Employee is made party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by the Company
against Employee), by reason of the fact that he is or was performing
services under this Agreement, then the Company shall indemnify Employee
against all expenses (including reasonable attorneys' fees), judgments,
fines and amounts paid in settlement, as actually and reasonably incurred
by Employee in connection therewith. In the event that both Employee and
the Company are made a party to the same third-party action, complaint,
suit or proceeding, the Company agrees to engage competent legal
representation, and Employee agrees to use the same representation,
provided that if counsel selected by the Company shall have a conflict of
interest that prevents such counsel from representing Employee, Employee
may engage separate counsel and the Company shall pay all attorneys' fees
of such separate counsel. Further, while Employee is expected at all times
to use his best efforts to faithfully discharge his duties under this
Agreement, Employee cannot be held liable to the Company for errors or
omissions made in good faith where Employee has not exhibited gross,
willful and negligence and misconduct or performed criminal and fraudulent
acts which materially damage the business and the Company.
9. Relocation Expenses. In the event the Company's principal executive offices
are relocated outside of Ridgeland, Mississippi during the Term, except if
such relocation is for a valid business reason, the Company will, at the
option of Employee, either (i) provide an apartment for Employee in the new
location and will reimburse Employee for his reasonable costs in commuting
from Ridgeland, Mississippi, to such new location or (ii) allow Employee to
work out of the Company's Ridgeland, Mississippi, offices.
10. Miscellaneous.
10.01 Governing Law. This Agreement is made under and shall be governed by
and construed in accordance with the law of the State of Mississippi.
10.02 Entire Agreement. This Agreement contains the entire agreement of the
parties relating to the employment of Employee by Company and
supersedes all prior agreements and understandings with respect to
such matters, and the parties hereto have made no agreements,
representations or warranties relating to such employment which are
not set forth herein.
10.03 Withholding Taxes. The Company may withhold from any compensation and
benefits payable under this Agreement all federal, state, city or
other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
10.04 Amendments. No amendment or modification of the terms of this
Agreement shall be valid unless made in writing and signed by all
parties hereto.
10.05 Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable under any applicable law or rule,
the validity, legality and enforceability of the other provisions of
this Agreement will not be affected or impaired thereby.
10.06 No Waiver. No waiver of any provision of this Agreement shall in any
event be effective unless the same shall be in writing and signed by
the party against whom such waiver is sought to be enforced and any
such waiver shall be effective only in the specific instance and for
the specific purpose for which given.
10.07 Assignment. This Agreement is a personal service contract and shall
not be assignable by any party without the written consent of the
other parties.
10.08 Notices. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage
prepaid, addressed, in either case to the Company's headquarters or to
such other address as either party shall have furnished to the other
party in writing in accordance with herewith. Notices and
communications shall be effective when actually received by the
addressee.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
KNOBIAS, INC.
By:
Name:
Title:
________________________________________
E. Key ▇▇▇▇▇▇