EMPLOYMENT AGREEMENT
FOR
▇▇▇▇▇ ▇▇▇▇▇▇▇
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the
19th day of April, 2000, by and between ▇▇▇▇▇▇▇▇▇.▇▇▇, inc., a Nevada
corporation (the "Company" or "Employer") and ▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual
("▇▇▇▇▇▇▇" or "Employee").
RECITALS
WHEREAS, the Company is interested in hiring a seasoned corporate
professional to serve as its Vice President of Operations; and
WHEREAS, Employee is a seasoned corporate professional who is interested in
working for the Company as its Vice President of Operations; and
WHEREAS, the Company is desirous of hiring Employee and Employee is
desirous of being employed by the Company as its Vice President of Operations,
upon the terms, covenants and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
the Company and Employee agree as follows:
AGREEMENT
1. RECITALS. The above-listed Recitals are incorporated into this Agreement
in their entirety and expressly made a part hereof.
2. POSITION AND TITLE. The Employer will employ the Employee as the Vice
President of Operations for the Company. Employee shall report directly to the
President of the Company. The Employee will act as a senior executive of the
Company with such duties and responsibilities as are consistent with that
position and as assigned to the Employee by the President of the Company,
including, but not limited to: (a) administration of the various departments of
the Company; (b) supervising the overall operations of the Company; (c)
increasing the Company's product offerings; and (d) maintaining and improving
the Company's internet website. The Employee will perform his responsibilities
principally from an office located in Las Vegas, NV, provided that he will
travel to other locations, from time to time, as required for the full and
proper performance of his duties and responsibilities.
3. ELECTION TO THE COMPANY'S BOARD OF DIRECTORS. Within ninety (90) days of
Employees hire date, the Board of Directors of the Company will recommend to the
Company's shareholders that Employee be elected to serve as a member of the
Company's Board of Directors. It should be specifically noted, however, that the
Company's obligation to make a recommendation to the shareholders that Employee
be elected to serve on the Company's Board of Directors is not to be construed
as an ongoing obligation on the part of the Company to maintain Employee as a
member of the Company's Board of Directors. If the Employee is terminated or
resigns under his employment agreement then he is also terminated as a director.
4. TERM. This Agreement shall be valid for a period of one (1) year,
specifically commencing on May 1, 2000 and continuing through and including
April 30, 2001 (the "Term"). The Term shall automatically extend for five (5)
successive one (1) year periods, unless either party provides the other with
written notice of their intent not to have the Term so extended, thirty (30)
days prior to the termination of the then current term
5. COMPENSATION.
(a) Salary. As compensation for providing the services required of Employee
under this Agreement, the Company shall pay Employee a salary of Thirty Six
Thousand Dollars ($36,000.00) per annum (the "Base Salary"), payable every other
week in equal installments. Employees annual Base Salary shall be automatically
increased to Eighty Four Thousand Dollars ($84,000.00) in the event the Company
is successful in consummating a new capital infusion or date during the Term of
this Agreement, to the Company of at least $500,000.
(b) Stock Options. Simultaneous with the execution of this Agreement, the
Company shall issue Employee an option to purchase an aggregate of 300,000
shares of the Company's Common Stock in the form attached hereto as Exhibit 1
(the "Option").
(c) Vacation/Sick Days. Employee shall be eligible for fifteen (15)
business days of paid vacation benefits each employment year, accrued on a pro
rata basis, together with that number of personal sick days and standard
holidays as are afforded to an employee of his status under the Company's
current policies.
(d) Expense Reimbursement. The Company shall reimburse Employee for those
expenses incurred by him in connection with the performance of his duties on
behalf of the Company that are in accordance with the Company's expense
reimbursement procedures currently in place; provided, that such expenses are
reasonable for an executive of Employees status and are appropriately
documented.
(e) Automobile Allowance. The Company shall pay Employee an automobile
allowance of $500.00 per month.
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(f) Insurance. Employee shall be paid a medical and dental insurance
allowance of $500 per month until such time as the Company establishes its own
similar medical and dental plan, at which time the Company will provide the same
to Employee and his immediate family at no cost to him.
(g) Cellular Telephone. The Company will reimburse Employee for business
related cellular telephone calls and for reasonable standard monthly cellular
telephone fees.
6. TERMINATION.
(a) Termination Without Cause.Either party may terminate this Agreement and
Employee's respective employment hereunder, without cause, by providing the
other party with thirty (30) days prior written notice of such intention.
(b) Termination With Cause. Employee's employment may be terminated with
cause, effective upon delivery of written notice to Employee given at any time
(without any necessity for prior notice) if any of the following shall occur:
(i) By mutual agreement of the parties; (ii) On the last day of the month in
which Employee dies or becomes permanently incapacitated. (For purposes of this
paragraph, "permanent incapacity" shall mean mental or physical incapacity, or
both, reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company's Board of
Directors, either Employees regularly attending physician or a duly licensed
physician selected by the Company's Board of Directors, rendering Employee
unable to perform substantially all of his duties hereunder and which appears
reasonably certain to continue for at least six consecutive months without
substantial improvement. Employee shall be deemed to have "become permanently
incapacitated" on the date the Company's Board of Directors has determined that
Employee is permanently incapacitated and so notifies Employee; (iii) a material
breach of this Agreement by Employee; and/or (iv) any material acts or events
which inhibit Employee from fully performing his responsibilities to the Company
in good faith, such as (a) a felony criminal conviction; (b) any other criminal
conviction involving Employees lack of honesty or moral turpitude; (c) drug or
alcohol abuse; or (d) acts of dishonesty, gross carelessness or gross
misconduct.
(c) Severance Pay. If the Employee's employment hereunder is terminated
without cause (except in the event of the termination of Employee's employment
due to a change of voting control, which is discussed in Paragraph (d), below),
the Employer shall pay Employee a lump sum payment on the date of such
termination equal to: one months' Base Salary (to be determined by the actual
salary Employee is being paid at the time of termination), car allowance,
insurance allowance, plus reimburse Employee for any accrued but unused vacation
days up through the date of termination. Employee shall not be entitled to any
such severance pay in the event Employee is terminated with cause.
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If Employee is terminated without cause as a direct result of a change in
voting control in the Company, which for purposes of this Agreement shall be
defined as a change in ownership of 51% or more of the voting stock, other than
through a public offering or subsequent secondary offerings, then the Company
shall: (1) immediately vest all outstanding options identified in Paragraph
5(b); and (2) pay Employee a lump sum payment on the date of termination equal
to: six (6) months' Base Salary (to be determined by the actual salary Employee
is being paid at the time of termination), car allowance, insurance allowance
and any incurred but unpaid expenses described in Paragraphs 5(d) and 5(g).
7. NON-COMPETITION. Except in furtherance of the business of the Employer
and as specifically provided in this Agreement, Employee shall not during the
Term of this Agreement, on his own behalf or on behalf of any other person,
company, corporation, partnership or other entity or enterprise (collectively
"Person") directly or indirectly perform any of the following acts: (a) divert
or use the resources of the Employer or its affiliates to or for any other
Person; (b) divert or use a business opportunity of the Employer or its
affiliates to or for any other Person; (c) solicit any employees, agents or
consultants of the Employer or its affiliates to terminate their business
relationship with the Employer or its affiliates or to cause or encourage them
to substantially alter their business relationship with the Employer or its
affiliates; or (d) for any business purpose, solicit or otherwise communicate
with any client of the Employer or its affiliates or with any Person that is a
reasonably potential client of the Employer or its affiliates, with the
intention of hurting the relationship between that client and the Employer. It
should be noted these prohibitions shall survive for a period of one (1) year
from the date of Employee's last date of employment with the Company, provided
the Company pays Employee a lump sum equal to one year's Base Salary.
8. CONFIDENTIALITY. The Employee acknowledges that in and as a result of
his employment hereunder, he will be making use of, acquiring and/or adding to
confidential information of special and unique nature and value relating to such
matters as the Employer's and its affiliates trade secrets, systems, procedures,
manuals, confidential reports and lists of clients, as well as the nature and
type of services rendered by the Employer and its affiliates, and the equipment
and methods used by the Employer and its affiliates ("Confidential
lnformation"). As a material inducement to the Employer to enter into this
Agreement, and to pay to the Employee the compensation referred to in this
Agreement, Employee covenants and agrees that he shall not, at any time during
or following the Term of this Agreement and Employee's respective employment
hereunder, directly or indirectly, divulge or disclose, for any purpose
whatsoever (other than in the course of his employment duties where warranted),
any of such Confidential Information which has been obtained by or disclosed to
him as a result of, Employee's employment by the Employer. In the event of a
breach or threatened breach by the Employee of any of the provisions of this
Section 8, the Employer and its affiliates, in addition to and not in limitation
of any other rights, remedies or damages available to the Employer and its
affiliates at law or in equity, shall be entitled to a permanent injunction in
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order to prevent or to restrain any such breach by Employee, or by Employee's
partners, agents, representatives, servants, employers, employees and/or any all
persons directly or indirectly acting for or with him.
The Employee acknowledges that, in and as a result of his employment
hereunder, he will acquire Confidential Information about the clients of the
Employer and its affiliates. Employee covenants and agrees that he shall not, at
any time during or following the Term of this Agreement and Employee's
respective employment hereunder, directly or indirectly, divulge or disclose,
for any purpose whatsoever (other than in the course of his employment duties
where warranted) any Confidential Information about the client, which has been
obtained by or disclosed to him as a result of his employment with the Employer.
It should be noted that Confidential Information does not include any items
which: (i) prior to disclosure, is known to the public; (ii) after disclosure,
becomes known to the public or otherwise ceases to be a trade secret, through no
act or omission of the Employee in violation of this Agreement; (iii) is
required to be disclosed pursuant to applicable laws, rules or regulations or
government requirement or court order (provided, however, that Employee shall
promptly advise the Employer of its notice of any such requirement or order);
(v) is already rightfully in the Employee's possession at the time of
disclosure; (vi) is independently developed by or for the Employee; or (vii) is
received by the Employee from another person or entity whom the Employee
reasonably believes is not obligated to the Employer to keep the same
confidential.
9. INVENTIONS AND OTHER INTELLECTUAL PROPERTY. The Employee hereby agrees
that all right, title and interest in and to all of the Employee's "Discoveries"
and work product made during the Term of this Agreement related to the business
of the Employer or its affiliates, whether pursuant to this Agreement or
otherwise, shall belong solely to the Employer and its affiliates, whether or
not they are protected or protectable under applicable patent, trademark,
service ▇▇▇▇, copyright or trade secret laws. For purposes of this Section 9,
"Discoveries" means all inventions, designs, discoveries, improvements and works
of authorship, including, without limitation, any information relating to the
Employer's, and its affiliates' know-how, processes, designs, computer programs
and routines, formulae, techniques, developments or experimental work, or
work-in-progress made or conceived or reduced to practice by the Employer. The
Employee agrees that all work or other material containing or reflecting any
Discoveries and work product shall be deemed to be work made for hire and shall
be owned by the Employer and its affiliates without further consideration. If it
is determined that any works not works made for hire, the Employee hereby
assigns to the Employer and its affiliates all of the Employee's right, title
and interest, including all rights of copyright, patent, and other intellectual
property rights, to or in such Discoveries or work product. The Employee
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covenants that he shall keep the Employer and its affiliates informed of the
development of all Discoveries or work product made, conceived or reduced to
practice by the Employer and its affiliates, in whole or in part, alone or with
others, which either result from any work the Employee may do for, or at the
request of, the Employer and its affiliates, or are related to the Employer's
and its affiliates present or contemplated activities, investigations, or
obligations. The Employee further agrees that at the Employer's and its
affiliates request and expense, he will execute any assignments or other
documents necessary to transfer any such Discoveries or work product to the
Employer and its affiliates and to cooperate with the Employer and its
affiliates or its nominee in perfecting the Employer's and its affiliates' title
(or the title of the Employer's or its affiliates nominee) in such materials.
Employee grants the Employer and its affiliates a permanent, non-exclusive,
paid-up and worldwide license for any and all of Employee's intellectual
property rights in any Discoveries or work product that is delivered to the
Employer and its affiliates by the Employee in connection with the performance
of services for the Employer and its affiliates to use, have used, make, have
made, sell and have sold such Discoveries and reproduce in quantities, prepares
derivative works and publicly display and distribute such work product.
10. SUCCESSORS; BINDING AGREEMENT. The Employer will use its commercially
reasonable best efforts to require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Employer, by agreement in form and substance
satisfactory to the Employee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Employer would be
required to perform it if no such succession had taken place. Failure of the
Employer to obtain such agreement prior to the effectiveness of any such
succession, however, shall not be a breach of this Agreement.
Employee shall not have the right to assign any obligation or benefit under
this Agreement to any person. This Agreement and all rights of the Employee
hereunder shall inure to the benefit of and be enforceable by the Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributes, devises and legatees. If the Employee should die or is legally
incapacitated while any amounts would still be payable to him hereunder if he
had continued to live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to the Employee's
devisee, legatee, or other designee or, if there be no such designee, to the
Employee's estate.
11. RETURN OF PROPERTY. Upon the termination of this Agreement and the
respective employment of Employee contemplated hereunder, by the natural elapse
of time or otherwise, all property (including, but not limited to, keys,
records, notes, data, memoranda, models, credit cards and equipment) that is in
the Employee's possession or under the Employee's control, which is the property
of the Company or related to Company will be immediately returned to Company by
Employee or destroyed at the direction of the Company, which destruction will be
certified by Employee.
12. INDEMNIFICATION. Employee is entitled to the rights of indemnification
available to officers and directors under the corporation law of the state of
incorporation of the Company and, if any, the provisions of the certificate of
incorporation and by-laws of the Company. To this end, simultaneous with the
execution of this Employment Agreement, the Company will enter into a more
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formal Indemnification Agreement with Employee in substantially the same format
as is attached hereto on Exhibit 2. If the Company obtains director and officer
liability insurance or similar insurance coverage it will provide that Employee
will be covered thereunder at all times during which Employee is a director or
an officer of the Company.
13. NOTICE. For the purposes of this Agreement, notices, demands and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
if to the Employee: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
if to the Employer: ▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ and 14
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Mollen & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
14. ARBITRATION. Any disputes between Employee and the Company arising out
of this Agreement or Employees employment by the Company including but not
limited to alleged violations of federal, state and/or local statutes (for
example, claims for discrimination including but not limited to discrimination
based on race, sex, sexual orientation, religion, national origin, age, marital
status, handicap or disability; and claims relating to leaves of absence
mandated by state or federal law), breach of any contract or covenant (express
or implied), tort claims, violation of public policy or any other alleged
violation of Employees statutory, contractual or common law rights (and
including claims against the Company's officers, Directors, employees or
agents), which Employee and the Company or other party are unable to resolve
through direct discussion, regardless of the kind or type of dispute (excluding
claims for workers' compensation, unemployment insurance and any solely monetary
dispute within the jurisdiction of small claims court) shall be decided
exclusively by conclusive and binding arbitration in the State of Nevada in
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accordance with the American Arbitration Association's ("AAA") Employment
Dispute Resolution Rules (the "Rules"). Except for those claims specifically
excluded from coverage under this arbitration provision, Employee and the
Company hereby waive the right to pursue any claims, including but not limited
to employment termination-related claims, through civil litigation outside the
arbitration procedures of this provision, unless otherwise required by law.
Employee and the Company each have the right to be represented by counsel with
respect to arbitration of any dispute pursuant to this paragraph. Each party
shall have the right to take depositions, make requests for production of
documents to any person or entity, and to subpoena witnesses and documents for
the arbitration. Additional discovery may be had only where the arbitrator so
orders, upon a showing of substantial need. The arbitrator shall be selected by
agreement between Employee and the Company, but if they do not agree on the
selection of an arbitrator within 30 days after the date of the request for
arbitration, the arbitrator shall be selected pursuant to the Rules. Each party
shall pay its own expenses for the arbitration and the fee and expenses of the
arbitrator shall be shared equally.
15. GOVERNING LAW. This Agreement shall be governed by and interpreted and
enforced in accordance with the substantive laws of the state of Nevada without
reference to the principles governing conflict of laws applicable in that or any
other jurisdiction.
16. MISCELLANEOUS. No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Employee and the Employer. No waiver by either party
hereto at any time of any breach by the other hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this
Agreement.
17. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
19. CONSTRUCTION. It will be an irrefutable presumption that this Agreement
was drafted by both the Company and the Employee. The parties hereto also
acknowledge the ability and opportunity to have this Agreement reviewed by
independent counsel of their own choosing prior to signing.
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IN WITNESS WHEREOF, the parties hereby acknowledge their acceptance of each
and every term and condition contained in this Agreement by affixing their
signatures below the date and year first above written.
EMPLOYEE: COMPANY:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------- ----------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: President
EXHIBIT 1
FORM OF STOCK OPTION AGREEMENT
EXHIBIT 2
FORM OF INDEMNIFICATION AGREEMENT