EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into, as of this
31stday of August 1999 ("Effective Date"), by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
an individual resident of the State of Pennsylvania ("Employee"), and Internet
Cable Corporation, a Nevada corporation ("Employer") with its principal place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H
WHEREAS, Employer desires to employ Employee, and Employee desires to
be employed by Employer, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
SECTION 1.EMPLOYMENT.
1.1 Subject to the terms hereof, Employer hereby employs Employee,
and Employee hereby accepts such employment. Employee will serve in the capacity
of Chief Executive Officer and President of Employer and will have duties and
responsibilities customarily assigned to a person with such title. Employee
hereby agrees that, throughout his period of employment, he shall devote his
business time, attention, knowledge and skills, diligently in the furtherance of
the business of the Employer and of its subsidiaries and affiliates, shall
perform his duties consistent with his position with Employer and shall observe
and carry out such rules and regulations, policies and directions as Employer
may from time to time establish to the extent consistent herewith. During the
term of this Agreement, Employee shall do such traveling as may be reasonably
required of him in the performance of his duties on behalf of Employer.
1.2 The principal offices of Employer will be located in the West
Chester, Pennsylvania are with appropriate secretarial support at Employer's
expense.
SECTION 2.TERM OF EMPLOYMENT.
2.1 The term of Employee's employment hereunder (the "Initial Term")
shall be from the Effective Date and expire at the earlier of (a) the third
anniversary of the date of this Agreement or (b) the occurrence of any of the
following events:
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(i) The death or total disability of Employee (total disability
meaning the failure to substantially perform his normal required
services hereunder for a period of six (6) consecutive months
during any consecutive twelve (12) month period during the term
hereof, as determined by an independent medical doctor jointly
chosen by the Employee and the Employer, by reason of mental or
physical disability; or
(ii) The termination by Employer of Employee's employment hereunder,
upon seven (7) days prior written notice to Employee, which
termination shall be for "Cause", as determined by the Board of
Directors of Employer in accordance with the terms hereof. For
purposes of this Agreement, "Cause" for termination of
Employee's employment shall exist (V) if Employee is convicted
of, pleads guilty to, or confesses to any felony or any act of
fraud, misappropriation or embezzlement with regard to Employer,
(W) if Employee has engaged in a dishonest act to the material
damage or prejudice of Employer or an affiliate of Employer, or
in conduct or activities materially damaging to the property,
business, or reputation of Employer or an affiliate of Employer,
(X) if Employee violates any of the provisions contained in
Section 4 of this Agreement, after receiving thirty (30) days
written notice from Employer specifically outlining the alleged
violations by the Employee of Section 4 hereof and Employee has
not cured the alleged violations within thirty (30) days of
receipt of written notice by the Employer; (Y) Employee
willfully breaches or habitually and recklessly neglects the
duties he is required to perform hereunder, or performs such
duties in a grossly negligent manner, after receiving thirty
(30) days written notice from Employer specifically outlining
the violations of this Section and Employee has not cured the
alleged violations of this Section within thirty (30) days of
receipt of written notice by Employer.
2.2 SUCCESSIVE TERMS. After the Initial Term, this Agreement shall
continue upon a year-to-year basis (the "Successive Terms"; together with the
Initial Term, the "Term") unless terminated by either the Employer or the
Employee upon ninety (90) days written notice to the other prior to the end of
the Initial Term or the then Successive Term.
SECTION 3.COMPENSATION.
3.1 TERM OF EMPLOYMENT. Employer will provide Employee with the
following salary, expense reimbursement and additional employee benefits during
the term of employment hereunder:
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(a) SALARY. During the Initial Term, Employee will be paid a salary
(the "Salary"), that shall be no less than
three-hundred-thousand United States dollars (US$300,000.00) per
annum, less deductions and withholdings required by applicable
law. Thereafter, and during the Successive Terms, Employee will
be paid a salary of not less than three-hundred-thousand United
States dollars (US$300,000) (the "Successive Terms Salary")
determined in good faith negotiations between Employer and
Employee. The Salary and Successive Terms Salary shall be paid
to Employee in equal monthly installments (or on such more
frequent basis as other executives of Employer are compensated).
(b) COMPENSATION FOR SERVICES PROVIDED. From September 1, 1999 to
the date of this Agreement, Employee has served as a Consultant
of Employer. Upon the execution of this Agreement, Employer will
tender a check payable to Employee in the amount of
eighty-thousand United States dollars (US$80,000) representing
the balance of compensation due to Employee for his services as
a Consultant.
(c) PERFORMANCE BONUS.
(i) Subject to Employer's and Employee's discussions, Employer
shall reserve as an equity performance bonus, shares of
Employer's common stock, no par value per share (the
"Shares") , which shall be available for issuance to
Employee as follows:
(1) In the event Employer's pre-tax earnings (which shall
be calculated as follows: gross revenues - cost of
sales - salary, general and administrative expenses)
in Employee's first year of employment exceed the
mutually agreed upon target, Employer shall issue to
Employee a mutually agreed upon number of Shares.
(ii) Employee shall be entitled to receive a monetary
performance bonus as follows:
(1) In the event Employer's pre-tax earnings (which shall
be calculated as follows: gross revenues - cost of
sales - salary, general and administrative expenses)
in Employee's first year of employment exceed the
mutually agreed upon target, Employer shall pay to
Employee a bonus in the amount to mutually agreed
upon.
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(iii) The determination of whether Employer has achieved a
certain level of pre-tax earnings in any year for the
purposes of this section shall be made by the certified
public accountant regularly retained or employed by
Employer with ninety (90) days after the end of each
calendar year, and shall be conclusive on Employer and
Employee.
(iv) The parties' good faith and fair dealing is a material term
of this Agreement, particularly with regard to future
negotiations to define the performance bonuses identified
in this section.
Notwithstanding any provision to the contrary contained herein. Employee shall
not be eligible to any performance bonus for any year during which Employee is
not employed by Employer pursuant to this Agreement.
(d) VACATION. Employee shall be entitled to receive six (6) weeks
paid vacation during each year of employment upon dates to be
taken at such times and in such periods as shall not interfere
with the duties required to be rendered by Employee hereunder.
(e) EXPENSES. Employer shall reimburse Employee within thirty (30)
days of its receipt of a reimbursement report with supporting
receipts from the Employee, for all reasonable and necessary
expenses incurred by Employee in performing services hereunder,
including without limitation, all expenses of travel and living
expenses when away from home on business at the request of or in
the service of Employer; use of country club membership; and
automobile allowance.
(f) BENEFIT PLANS. Employee shall have the option of participating
in such medical, dental, disability, hospitalization, life
insurance, stock option and other benefit plans (such as pension
and profit sharing plans) as Employer maintains from time to
time for the benefit of other full-time employees of Employer,
on the terms and subject to the conditions set forth in such
plans.
(g) STOCK COMPENSATION. This Agreement confirms the parties'
pre-exisiting agreement that, Employer shall issue to Employee
an option to purchase one-million-five-hundred-thousand
(1,500,000) Share at an exercise price of four United States
dollars and sixty-two and one-half cents (US$4.625) per share.
The term of such option shall be for a period of five (5) years
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from the Effective Date. The option shall vest according to the
following schedule: (i) three-hundred-seventy-five-thousand
(375,000) Shares on the Effective Date; (ii)
three-hundred-seventy-five-thousand (375,000) Shares on August
31, 2000 (iii) three-hundred-seventy-five-thousand (375,000)
Shares on August 31, 2001; and (iv)
three-hundred-seventy-five-thousand (375,000) Shares on August
31, 2002.
However, vesting shall be accelerated in full in the event of
death, disability, involuntary termination without Cause (as
defined in Section 2.1(ii) above); the termination of employment
with Employer's consent; the filing of a voluntary or
involuntary bankruptcy; or upon the sale, pledge or distribution
of Employer's assets defined as follows: (W) the sale of
forty-five percent (45%) or more of Employer's assets; (X) the
entry into an agreement covering over fifteen (15%) of the
voting common stock to a related party, as defined in Section 12
of the Securities Act of 1933, as amended, without Employee's
written consent, which will not be unreasonably withheld; or (Y)
a recapitalization of Employer; or (Z) a split of any manner in
Employer's voting common stock.
(h) AUTOMOBILE ALLOWANCE. During the Term, Employer shall pay
Employee nine-hundred United States dollars (US$900.00) per
month as an allowance for the use of Employee's automobile. In
lieu of such allowance, Employer may furnish, or lease, an
automobile mutually acceptable to both Employer and Employee for
Employee's use.
3.2 EFFECT OF TERMINATION. Upon the termination of the employment of
Employee hereunder for Cause, Employee shall be entitled to all compensation and
benefits earned or accrued under Section 3.1 as of the effective date of
termination. Upon the termination of this Agreement during the first thirty (30)
months of the Initial Term or the then Successive Term, as the case may be, for
any reason other than for Cause, Employee shall be entitled to receive all
compensation and benefits provided in Section 3.1 through the end of the Initial
Term or the then Successive Term, as the case may be. Upon the termination of
this Agreement during the last six (6) months of the Initial Term or the then
Successive Term, as the case may be, for any reason other than for Cause,
Employee shall be entitled to receive all compensation and benefits earned or
accrued under Section 3.1 as of the effective date of termination plus an amount
equal to six (6) months Salary and continuation of benefits for six (6) months.
SECTION 4.NONSOLICITATION.
4.1 DEFINITIONS. For the purposes of this Section 4, the following
definitions shall apply.
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(a) "Confidential Information" means any confidential, proprietary
business information or data belonging to or pertaining to
Employer that does not constitute a "Trade Secret" (as
hereinafter defined) and that is not generally known by or
available through legal means to the public, including, but not
limited to, information regarding the Employer's customers or
actively sought prospective customers, acquisition targets,
suppliers, manufacturers and distributors gained by Employee as
a result of his employment with Employer.
(b) "Customer" means actual customers or actively sought prospective
customers of Employer.
(c) "Trade Secrets" means information or data of or about Employer,
including but not limited to technical or non-technical data,
formulas, patterns, compilations, programs, devices, methods,
techniques, drawings, processes, financial data, financial
plans, products plans, or lists of actual or potential
customers, clients, distributees or licensees, information
concerning or Employer's finances, services, staff, contemplated
acquisitions, marketing investigations and surveys, that are not
generally known to, and/or are not readily ascertainable by
proper means by, other persons.
(d) "Work Product" means any and all work product property, data
documentation or information of any kind prepared, conceived,
discovered, developed or created by Employee for Employer or its
affiliates' clients or customers for utilization in Employer's
business, not generally known by or not readily ascertainable by
proper means by other persons who can obtain economic value from
their disclosure or use.
4.2 TRADE NAME AND CONFIDENTIAL INFORMATION.
(a) Employee hereby agrees that at all times during the Term
and thereafter:
(i) Employee shall not, directly or by assisting others
own, manage, operate, join, control or participate in
the ownership, management, operation or control of, or
be connected in any manner with, any business
conducted under any corporate or trade name of
Employer or name confusingly similar thereto, without
the prior written consent of Employer;
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(ii) Employee shall hold in confidence all Trade Secrets
and all Confidential Information and will not, either
directly or indirectly, use, sell, lend, lease,
distribute, license, give, transfer, assign, show,
disclose, disseminate, reproduce, copy, appropriate or
otherwise communicate any Trade Secrets or
Confidential Information, without the prior written
consent of Employer; and
(iii) During the Term Employee shall immediately notify
Employer of any unauthorized disclosure or use of any
Trade Secrets or Confidential Information of which
Employee becomes aware, Employee shall assist
Employer, to the extent necessary, in the procurement
or any protection of Employer's rights to or in any of
the Trade Secrets or Confidential Information.
(b) Upon the request of Employer, Employee shall deliver to
Employer all memoranda, notes, records, manuals and other
documents, including all copies of such materials and all
documentation prepared or produced in connection therewith,
pertaining to the performance of Employee's services
hereunder or Employer's business or containing Trade
Secrets or Confidential Information, whether made or
complied by Employee or furnished to Employee from another
source by virtue of Employee's employment with Employer.
(c) To the greatest extent possible, all Work Product shall be
deemed to be "work made for hire" (as defined in the
Copyright Act, 17 U.S.C.A. Section 101 ET SEQ., as amended)
and owned exclusively by Employer. Employee hereby
unconditionally and irrevocably transfers and assigns to
Employer all rights, title and interest Employee may have
in or to any and all Work Product, including, without
limitation, all patents, copyrights, trademarks, service
marks and other intellectual property rights arising out of
the Work Product. Employee agrees to execute and deliver to
Employer any transfers, assignments, documents or other
instruments which Employer may deem necessary or
appropriate to vest complete title and ownership of any and
all such Work Product, and all rights therein, exclusively
in Employer.
4.3 NONSOLICITATION AND NONCOMPETE. Employee hereby agrees that
Employee will not, during the Term and for a period of one (1) year following
the Term, either directly or indirectly, alone or in conjunction with any other
party, on the North American continent:
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(a) solicit, divert or appropriate or attempt to solicit,
divert or appropriate, any Customer for the purpose of
providing the Customer with services or products
competitive with those offered by Employer during the Term;
or
(b) solicit or attempt to solicit any officer, director,
employee, consultant, contractor, agent, lessor, lessee,
licensor, licensee, supplier or any shareholder of Employer
or other personnel of Employer or any of its affiliates or
subsidiaries to terminate, alter or lessen that party's
affiliation with Employer or such affiliate or subsidiary
or to violate the terms of any agreement or understanding
between such employee, consultant, contractor or other
person and Employer; or
(c) engage in, as owner, stockholder, employee, partner, agent,
representative or otherwise, or have an interest in (except
for ownership of publicly trade securities representing not
more than five percent (5%) of the outstanding voting
shares), any business, firm, corporation or other entity in
direct competition with the business of Employer.
(i) Upon the conclusion of the Initial Term, if this
Agreement is not renewed for a Successive Term,
Employee may be engaged solely as an employee in any
business, firm, corporation or other entity in direct
competition with the business of Employer.
Nothing contained in this Section 4 shall prohibit Employee from
acquiring not more than five percent (5%) of any competitor of Employer whose
common stock is publicly traded on a national securities exchange or in the
over-the-counter market or from acquiring any percentage of any company which is
non-competitive with Employer.
SECTION 5.MISCELLANEOUS.
5.1 SEVERABILITY. The covenants in this Agreement shall be construed
as covenants independent of one another and as obligations distinct from any
other contract between Employee and Employer. Any claim that Employee may have
against Employer shall not constitute a defense to enforcement by Employer of
this Agreement.
5.2 SURVIVAL OF OBLIGATIONS. The covenants in Section 4 of this
Agreement shall survive termination of Employee's employment for the period set
forth therein.
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5.3 NOTICES. Any notice or other document to be given hereunder by
any party hereto to any other party hereto shall be in writing and delivered in
person or by courier, by telecopy transmission or sent by any express mail
service, postage or fees prepaid at the following addresses:
EMPLOYER: Internet Cable Corporation
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
WITH A
COPY TO: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
EMPLOYEE: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address or number for a party as shall be specified by like
notice. Any notice which is delivered in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or its agent.
5.4 BINDING EFFECT. This Agreement inures to the benefit of, and is
binding upon, Employer and their respective successors and assigns, and
Employee, together with Employee's executor, administrator, personal
representative, heirs, and legatees.
5.5 ENTIRE AGREEMENT. This Agreement is intended by the parties
hereto to be the final expression of their agreement with respect to the subject
matter hereof and is the complete and exclusive statement of the terms thereof,
notwithstanding any representations, statements or agreements to the contrary
heretofore made. This Agreement supersedes and terminates all prior employment
and compensation agreements, arrangements and understandings between or among
Employer, Employer's Management and Employee. This Agreement may be modified
only by a written instrument signed by all of the parties hereto.
5.6 ARBITRATION. Any claim or controversy arising out of or relating
to the formation, interpretation and enforcement of this Agreement or any breach
thereof, shall be settled by arbitration, in accordance with the ten current
rules of the American Arbitration before a panel of three (3) arbitrators. Any
such arbitration shall take place in Philadelphia, Pennsylvania. Judgement upon
the written award rendered by a majority of the arbitrators may be entered in
the court having jurisdiction thereof. The written decision of the majority of
the arbitrators shall be valid, binding and final, and shall be a condition
precedent to any legal action that any party may contemplate against the other,
except to compel arbitration pursuant hereto.
5.7 GOVERNING LAW. This Agreement shall be deemed to be made in, and
in all respects shall be interpreted, construed, and governed by and in
accordance with, the laws of the Commonwealth of Pennsylvania. No provision of
this Agreement shall be construed against or interpreted to the disadvantage of
any party hereto by any court or other governmental or judicial authority or by
any board of arbitrators by reason of such party or its counsel having or being
deemed to have structured or drafted such provision.
5.8 ATTACHMENT. Except as required by law, the right to receive
payments under this Agreement shall not be subject to attachment, sale, pledge,
encumbrance, charge, levy or similar process or assignment, and any attempt to
do so shall be null and void.
5.9 HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
5.10 SPECIFIC PERFORMANCE. Each party hereto hereby agrees that any
remedy at law for any breach of the provisions contained in this Agreement shall
be inadequate and that the other parties hereto shall be entitled to specific
performance and any other appropriate injunctive relief in addition to any other
remedy such party might have under this Agreement or at law or in equity.
5.11 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the _____day of December, 1999.
INTERNET CABLE CORPORATION
By:__________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
By:___________________________
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