Unassociated Document


    
 

    
      	
              Mr.
      Matt Hill

            	
              Exhibit
      (10.02)

            


    

    133 North
Almont Drive

    Los
Angeles, CA 90048

     

    
      Re:    
Employment Agreement
with Beyond Commerce,
Inc.

    

     

    Dear
Matt:

     

    On behalf
of AdJuice, Inc. and Beyond Commerce (the “Company”), I am pleased to offer you
employment as President of AdJuice on the terms and conditions set forth in
this letter agreement (this “Agreement”). You may accept this Agreement by
signing and returning a copy of this Agreement to the Company as provided
below.

     

    1. Term of Employment. Your
employment under this Agreement shall commence on May 18th, 2010 (“Start Date”)
and continue until May 18th, 2013, unless it is terminated earlier either by you
or the Company or is extended by both you and the Company in a signed writing
(“Separation Date”). Your employment under this Agreement is terminable at will
by you or the Company at any time (for any reason or for no reason) subject to
the provisions of Section 3.

     

    2. Position and Duties. During
the term of this Agreement, the Company shall employ you as the President
of AdJuice and you shall report to the Board of Directors of the Company
(the “Board”) and it’s Chief Executive Officer and Chairman. Your duties shall
include the duties set forth in the bylaws of the Company for your position and
any other duties the Board may delegate to you from time to time that are not
inconsistent with duties assigned to a President of a company of a comparable
size and with a similar business. You agree, beginning May 18th, 2010 and until
the Separation Date, to commit substantially all of your working time, attention
and efforts to the position on a full-time basis. Subject to the foregoing, the
Company acknowledges that, outside of your obligations to the Company, you may
also be spending a reasonable amount of time on Permitted Activities (as defined
below). Upon your employment, the Board shall appoint you to serve as a member
of the AdJuice Board of Directors (if applicable). Thereafter, you may be
elected and re-elected to the Board in accordance with the terms of the bylaws
of AdJuice. This Agreement is personal to you and you may not assign or delegate
any of your rights or obligations hereunder without first obtaining the written
consent of the Company by action of the Board.

     

    3. Compensation and Benefits.
In consideration for your services to the Company during the time period in
which this Agreement is effective, you shall receive the following compensation
and benefits from the Company.

     

    (a) Base Salary. The Company
shall pay you an annual base salary at the rate of one hundred and forty
thousand dollars ($140,000) per year and to be automatically adjusted to
$175,000 per year once AdJuice achieves profitability after the date of
closing.  The salary will be paid in installments according to the
Company’s regular payroll policy.  The Company may elect to defer this
compensation at any point and accrue for periods of three (3) months at a time,
for financial reasons.  In this event, the compensation will accrue
and be paid on the 90th day or
before from the beginning of the deferred period.   The Company
shall withhold and deduct all applicable federal and state income and employment
and disability taxes from your base salary as required by applicable laws. You
shall be eligible for discretionary annual increases in your base salary in
connection with the Company’s annual executive compensation and performance
review conducted by the Board.

     

    
      
         


      

      
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    (b) Annual Incentive Opportunity.
You shall be eligible to participate in any bonus plan which the Company
may maintain or establish for the executives of the Company on the terms that
apply to the executives of the Company. Until the Company establishes such a
plan, it shall provide you with an individual annual incentive opportunity under
which you would be eligible to receive an annual target bonus based on the
achievement of individual and/or corporate objectives set by the Compensation
Committee of the Board. Such annual target bonus shall be set at One Hundred
percent (100%) of your annual base salary provided AdJuice is EBITDA
positive and an additional 10% for every $1 million over $1 million in EBITDA .
The incentive payment shall be in cash.

     

    (c) Stock Options. The Company shall grant you
options to purchase  the common stock of the Company in accordance
with the Beyond Commerce, Inc. 2008 Equity Incentive Plan.

     

    (1) Stock Option. The Company shall grant you
stock options in the amount of one million and five hundred thousand
(1,500,000) options to purchase Beyond Commerce common stock on the
date of the commencement of your employment with the Company. These stock
options will have a twenty-four (24) month vesting schedule:

     

    
      	
               
      

            	
              a.

            	
              Twelve-month
      cliff: After the 12th month you will have vested 500,000 options and you
      will then vest monthly of the balance of one million shares at the rate of
      1/12.The strike price and option grant price will be at $0.10 per
      share.

            


    

     

    (2) Milestone Option Grant. The Company shall also
grant you a second, stock option grant (per the earn out in (2.i)) of the common
stock of the Company (the “Milestone Grants”).

     

    The
Milestone Stock Option Grant shall be earned upon the achievement of the
following performance milestones:

     

    (i)
Seventy-Five thousand (75,000) options shall be granted for each One Hundred
Thousand Dollars ($100,000) in cumulative EBITDA over any 4 consecutive quarters
achieved through Organic Efforts. Organic Efforts shall be defined as utilizing
the current resources of AdJuice to generate income. Additionally, the strike
price and option grant price will be at $0.10 per share. EBITDA will be
calculated as individual and combined company EBITDA and will not include any
corporate expense induced by the Company.

     

    
      
         


      

      
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    (3)
Other Benefits.

     

     (a) Vacation and Sick Leave. You
shall be entitled to accrue up to three (3) weeks of paid vacation each year of
employment under this Agreement plus sick leave on the same basis as all other
executives of the Company in accordance with the terms and conditions of the
vacation and sick leave policies of the Company.

     

    (b) Termination and Change of Control
Payments and Benefits.

     

    (1) Termination for Cause or
Termination for Other than Good Reason. In the event that your employment
with the Company is terminated by the Company for “Cause” (as defined below) or
is terminated by you for reasons other than “Good Reason” (as defined below)
then you shall be entitled to payment of your accrued but unpaid salary and
vacation pay through the date of the termination of your employment plus any
earned but unpaid incentive payments tied to your quarterly bonus targets
achieved through the termination date.

     

    (2) Termination Without Cause or for
Good Reason or Termination Due to Death or Disability. In the event that
your employment as the President of AdJuice is terminated by the Company without
Cause, or is terminated by you due to a Good Reason, or is terminated due to
your death or Disability, then you or your estate (if applicable) shall be
entitled to payment of your accrued but unpaid salary and vacation pay through
the date of the termination of your employment plus any earned but unpaid
incentive payments tied to your quarterly bonus targets achieved through the
termination date plus the following severance benefits provided that you (unless
you are deceased) execute an effective release in a form to be provided by the
Company with terms substantially as set forth in the attached Exhibit
B:

     

    (i) Cash Severance Payment.
The Company shall pay you or your estate (if applicable) an additional three (3)
months of your then current base salary and shall continue your health insurance
coverage for such nine month period.

     

    (ii) Acceleration of Vesting of
Standard Grant. The vesting of your Standard
grant shall be accelerated in the amount of (A) 750,000 shares of the common
stock of the Company if the termination of your employment occurs within the
first 12 months of your employment with the Company, or (B) 500,000 shares of
the common stock of the Company if termination of your employment occurs after
12 months from the commencement of your employment with the
Company.

     

      (c) Definitions.

     

    As used
in this Agreement, the following terms shall have the meanings set forth
below:

     

    (1) “Cause” shall
mean:

     

    (i) your
failure (other than due to Disability) to materially comply with written Company
policies generally applicable to Company officers or employees or any directive
of the Board that is reasonably achievable, that is not inconsistent with your
position as President or the fulfillment of your fiduciary duties and that is
not otherwise prohibited by law or established public policy, subject to notice
and 30 day cure period to the extent curable;

     

    
      
         


      

      
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    (ii) your
engagement in willful misconduct against the Company that is materially
injurious to the Company;

     

    (iii)
your engagement in any activity that is a conflict of interest or competitive
with the Company (other than (1) any action not taken in bad faith and which is
promptly remedied by you upon notice by the Board, (2) your management of
current personal investments which do not require your active participation in
the management or the operation of the investments, such service does not
constitute a breach of your fiduciary duties to the Company or prevents you from
discharging all of your duties under this Agreement (the activities described in
clause (2) are hereafter referred to as “Permitted Activities”);

     

    (iv) your
engaging in any act of fraud or dishonesty against the Company or any of its
Affiliates or any material breach of federal or state securities or commodities
laws or regulations;

     

    (v) your
engaging in an act of assault or other acts of violence in the
workplace;

     

    (vi) your
harassment of any individual in the workplace based on age, gender or other
protected status or class or violation of any policy of the Company regarding
harassment (subject to investigation by an independent third party of such
harassment claim); or

     

    (vii)
your conviction, guilty plea or plea of nolo contendre for any felony
charge.

     

    (2) Reserved

     

    (3) “Disability” shall mean a
disability as determined under the Company’s long-term disability plan that
prevents you from performing your duties under this Agreement (even with a
reasonable accommodation by the Company) for a period of six months or
more.

     

    (4) “EBITDA”
shall mean AdJuice’s earnings before interest, taxes, depreciation and
amortization expenses.

     

    (5) “Good
Reason” shall mean any one of the following without your
consent:

     

    (i) a
demotion or any action by the Company which results in diminution of your
position, authority, duties or responsibilities (other than any insubstantial
action not taken in bad faith and which is promptly remedied by the Company upon
notice by you);

     

    
      
         


      

      
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    (ii)
requirement that you report to work more than 60 miles from the Company’s
existing headquarters (not including normal business travel required of your
position);

     

    (iii) a
reduction in your base salary or benefits (unless, in the case of a reduction in
benefits only, such reduction in benefits applies to all officers of the
Company);

     

    (iv) a
material breach by the Company of its obligations hereunder which is not cured
within thirty (30) days following written notice to the Board by you;
or

     

     (v)
any failure by a successor to the Company to assume and agree to perform the
Company’s obligations hereunder.

     

    4. Employment and Post Termination
Covenants. By accepting the terms of this Agreement and as a condition
for the termination payments and benefits contemplated above, you hereby agree
to the following covenants in addition to any obligations you may have by law
and make the following representations.

     

    (a) Confidentiality. You
acknowledge that, in connection with your employment by the Company, you will
have access to trade secrets of the Company and AdJuice and other information
and materials which the Company desires to keep confidential, including customer
lists, supplier lists, financial statements, business records and data,
marketing and business plans, and information and materials relating to AdJuice
and the Company’s services, products, methods of operation, key personnel,
proprietary software and other proprietary intellectual property and information
disclosed to AdJuice and the Company of third parties to which the Company owes
a duty of nondisclosure (collectively, the “Confidential Information”);
provided, however, that Confidential Information does not include information
which (i) is or becomes publicly known other than as a result of your actions in
violation of this Agreement; (ii) is or becomes available to you from a source
(other than the Company) that you reasonably believe is not prohibited from
disclosing such information to you by a contractual or fiduciary obligation to
the Company, (iii) has been made available by the Company, directly or
indirectly, to a non-affiliated third party without obligation of
confidentiality; or (iv) you are obligated to produce as a result of a court
order or pursuant to governmental action or proceeding, provided that you give
the Company prompt written notice of such requirement prior to such disclosure
and assistance in obtaining an order protecting such Confidential Information
from public disclosure. You covenant and agree that, both during and after the
term of your employment with the Company, you will keep secret all Confidential
Information and will not disclose, reveal, divulge or otherwise make known any
Confidential Information to any person (other than the Company or its employees
or agents in the course of performing you duties hereunder) or use any
Confidential Information for your own account or for the benefit of any other
individual or entity, except with the prior written consent of the
Company.

     

    
      
         


      

      
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    (b) Ownership of Intellectual
Property. You agree that all inventions, copyrightable material,
software, formulas, trademarks, trade secrets and the like which are developed
or conceived by you in the course of your employment by the Company or on the
Company’s time or property (collectively, the “Intellectual Property”) shall be
disclosed promptly to the Company and the Company shall own all right, title and
interest in and to the Intellectual Property. The parties expressly agree that
any and all of the Intellectual Property developed by you shall be considered
works made-for-hire for the Company pursuant to the United States Copyright Act
of 1976, as amended from time to time. In order to ensure that the Company shall
own all right, title and interest in and to the Intellectual Property in the
event that any of the Intellectual Property is not deemed a work made-for-hire
(as defined in the Copyright Act of 1976) and in any other event, you hereby
sell and assign all right, title and interest in and to all such Intellectual
Property to the Company, and you covenant and agree to affix to the Intellectual
Property appropriate legends and copyright notices indicating the Company’s
ownership of all Intellectual Property and all underlying documentation to the
extent reasonably appropriate, and shall execute such instruments of transfer,
assignment, conveyance or confirmation as the Company reasonably considers
necessary to transfer, confirm, vest, perfect, maintain or defend the Company’s
right, title and interest in and to the Intellectual Property throughout the
world. Your obligation under this Section 4(b) to assign to the Company
inventions created or conceived by you shall not apply to an invention that you
developed entirely on your own time without using the Company’s equipment,
supplies, facilities, or trade secret information, provided that those
inventions (1) do not or did not relate directly, at the time of conception or
reduction to practice of the invention, to the Company’s business as conducted
at such time or actual or demonstrably anticipated research or development of
the Company; and (2) do not or did not result from any work performed by you for
the Company.

     

    (c) Non-Solicitation. You
agree for a period of not less than one year following the last receipt of any
payments under this Agreement that you shall not solicit the services or
employment of the employees of AdJuice or the Company and you shall not
divert clients or customers of AdJuice or the Company to the disadvantage of the
Company; provided that (i) general advertisements not specifically directed at
employees of AdJuice or the Company shall not constitute solicitation for
purposes of this clause (c) and (ii) this clause (c) shall not prohibit you from
hiring employees of AdJuice or the Company who first approach you seeking
employment.

     

    (d) Non-Competition. You agree
not to compete directly or indirectly as a principal, partner, shareholder,
limited liability company member, agent, officer, directors, employee,
consultant or in any other capacity, with any current or future business of
AdJuice or the Company during the period of your employment with the Company and
during the post-employment period during which you are being paid compensation
by the Company; provided that (i) this clause (d) shall not prohibit you from
acquiring securities representing less than 5% of the voting interests of any
entity (so long as you are not involved in the management of such entity) and
(ii) this clause (d) will not prohibit you from engaging in Permitted Activities
(during or after a termination of employment) to the extent you are (or would
be) permitted to engage in such Permitted Activity under Section 2 of this
Agreement.

     

    
      
         


      

      
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    (e) Authorization To Work for the
Company. You represent that you are legally authorized to work in the
United States and that your employment with the Company shall not constitute a
violation of any contractual or other legal obligation you may have to another
entity or employer.

     

    5. Business Expenses. You
shall be entitled to reimbursement by the Company for such customary, ordinary
and necessary business expenses as are incurred by you in the performance of
your duties and activities associated with promoting or maintaining the business
of the Company. All expenses as described in this paragraph shall be reimbursed
only upon presentation by you of such documentation as may be reasonably
necessary to substantiate that all such expenses were incurred in the
performance of his duties in accordance with the Company’s policies

     

    6. Return Of Company Property.
On the Separation Date or as earlier requested by the Company, you agree to
return to the Company all AdJuice and Company documents (and all copies thereof)
and other AdJuice and Company property in your possession or control, including,
but not limited to, Company files, correspondence, memos, notebooks, notes,
drawings, records, business plans and forecasts, financial information,
specifications, computer-recorded information, tangible property and equipment,
credit cards, entry cards, identification badges and keys; and any materials of
any kind that contain or embody any proprietary or confidential information of
the AdJuice and Company (and all reproductions thereof in whole or in part)
(collectively, the “Company Property”). You agree to conduct a good faith and
diligent search of your belongings in advance of the aforementioned deadline to
ensure your compliance with the provisions of this Section 6.

     

    7. Binding on Successors. This
Agreement shall be binding upon the Company and any entity which is a successor
by merger, acquisition, consolidation or otherwise to the business formerly
carried on by the Company, or an affiliate of any such entity, and becomes your
employer by reason of (or as the direct result of) any direct or indirect sale
or other disposition of the Company or substantially all of the assets of the
business currently carried on by the Company, without regard to whether or not
such person actively adopts this letter agreement.

     

    8. Arbitration. You agree that
any future disputes between you and the Company (the “parties”) including but
not limited to disputes arising out of or related to this Agreement, shall be
resolved by binding arbitration except where the law specifically forbids the
use of arbitration as a final and binding remedy, or where section 8(g) below
specifically allows a different remedy.

     

    (a) The
complainant shall provide the other party a written statement of the claim
identifying any supporting witnesses or documents and the relief
requested.

     

    (b) The
respondent shall furnish a statement of the relief, if any, that it is willing
to provide, and identifying supporting witnesses or documents. If the matter is
not resolved, the parties agree to submit their dispute to a non-binding
mediation paid for by the Company, provided, however, that if the amount in
dispute is $50,000 or less, this step may be waived at the election of either
party.

     

    
      
         


      

      
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    (c) If
the matter is not resolved, the parties agree that the dispute shall be resolved
by binding arbitration according to the California Code of Civil Procedure,
including the provisions of Section 1283.05, pertaining to
discovery.

     

    (d) The
arbitrator shall have the authority to determine whether the conduct complained
of in section 8(a) violates the complainant’s rights and, if so, to grant any
relief authorized by law; subject to the exclusions of section (g) below. The
arbitrator shall not have the authority to modify, change or refuse to enforce
any lawful term of this Agreement.

     

    (e) The
Company shall bear the costs of the arbitration. If the Company prevails, you
shall pay any litigation costs of the Company to the same extent as if the
matter had been heard in a court of general jurisdiction. Each party shall pay
its own attorneys’ fees, unless the arbitrator orders otherwise, pursuant to
applicable law.

     

    (f)
Arbitration shall be the exclusive final remedy for any dispute between the
parties, such as disputes involving claims for discrimination or harassment
(such as claims under the Fair Employment and Housing Act, Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act, or the Age
Discrimination in Employment Act), wrongful termination, breach of contract,
breach of public policy, physical or mental harm or distress or any other
disputes, and the parties agree that no dispute shall be submitted to
arbitration where the complainant has not complied with the preliminary steps
provided for in sections (a) and (b) above.

     

    (g) The
parties agree that the arbitration award shall be enforceable in any court
having jurisdiction to enforce this Agreement, so long as the arbitrator’s
findings of fact are supported by substantial evidence on the whole and the
arbitrator has not made errors of law; however, either party may bring an action
in a court of competent jurisdiction, regarding or related to matters involving
the Company’s confidential, proprietary or trade secret information, or
regarding or related to inventions that you may claim to have developed prior to
or after joining the Company, seeking preliminary injunctive relief in court to
preserve the status quo or prevent irreparable injury before the matter can be
heard in arbitration.

     

    (h) The
arbitration shall be held in the City of Los Angeles, California, unless the
parties mutually agree to a different location for the arbitration.

     

    9. Indemnification. As soon as
practicable following the commencement of your employment with the Company, the
Company shall enter into an indemnification agreement mutually acceptable to you
and the Company which shall provide you with indemnification to the fullest
extent permissible under Nevada law. In addition, the Company shall maintain a
Directors and Officers insurance policy covering its directors and officers
consistent with prevailing commercial practice, and you shall be entitled to
indemnification as set forth in the Company’s Certificate of Incorporation and
Bylaws.

     

    
      
         


      

      
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    10.
Miscellaneous.

     

    (a) This
Agreement constitutes the complete, final and exclusive embodiment of the entire
agreement between you and the Company with regard to the terms and conditions of
your employment with the Company and your anticipated termination of employment.
It is entered into without reliance on any promise or representation, written or
oral, other than those expressly contained herein, and it supersedes any other
such promises, warranties or representations and any other written or oral
statements concerning your rights to any compensation, equity or benefits from
the Company, its predecessors or successors in interest.

     

    (b)
Subject to the mandatory arbitration provided in Section 8 above, jurisdiction
and venue in any action to enforce any arbitration award or to enjoin any action
that violates the terms of this Agreement shall be in the Superior Court of the
County of Los Angeles or the U.S. District Court for the Central District of
California.

     

    (c) This
Agreement may not be modified or amended except in a writing signed by both you
and a duly authorized officer of the Company. This Agreement shall bind the
heirs, personal representatives, successors and assigns of both you and the
Company, and inure to the benefit of both you and the Company, their heirs,
successors and assigns. If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, this determination shall not
affect any other provision of this Agreement and the provision in question shall
be modified by the court so as to be rendered enforceable in a manner consistent
with the intent of the parties insofar as possible. Headings and subheadings in
this Agreement are solely for convenience and do not constitute terms of this
Agreement.

     

    (d) This
Agreement may be signed in counterparts and the counterparts taken together
shall constitute one agreement. Facsimile signatures shall be deemed as
effective as original signatures.

     

    (e) This
Agreement shall be deemed to have been entered into and shall be construed and
enforced in accordance with the laws of the State of California as applied to
contracts made and to be performed entirely within California.

     

    If this
Agreement is acceptable to you, please sign below and return the original, fully
executed Agreement to Mark Noffke, Corporate Secretary of the Company. A copy of
the Agreement is also being provided to you for your records.

     

    
      
         


      

      
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    I and the
other members of the Board of Directors of the Company look forward to your
future contributions to the Company.

     

    Sincerely,

     

    
      
        
          
            
              	
                      Beyond
      Commerce Inc.

                    
	 
      	 
      
	
                      By:

                    	 
      
	 
      	
                      /s/
      Robert J. McNulty

                    
	 
      	
                          Robert
      J McNulty

                    
	 
      	
                          Chairman
      and Chief Executive
Officer

                    


            

          

        

      

    

     

    AGREED
AND ACCEPTED:

     

    
      
        
          
            
              	
                      /s/
      Matt Hill

                    	 
      	
                      05/19/2010

                    	 
      	 
      
	
                      Matt
      Hill

                    	 
      	
                      Date

                    	 
      	 
      


            

          

        

      

    

     

    
      
         


      

      
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