EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made the 29th day of October 1999, by and between
▇▇▇▇-▇▇▇.▇▇▇, INC. (the "Company") and ▇▇▇▇▇ ▇▇▇▇▇, whose residence address is
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ (the "Executive").
The Company and the Executive hereby agree as follows with respect to the
Executive's employment with the Company:
1. EMPLOYMENT.
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The Company hereby employs the Executive, and the Executive hereby accepts
employment with the Company, on the terms and conditions hereafter set forth,
commencing November 1, 1999 and for a term of three (3) years thereafter (the
"Term"). During the Term, the Executive shall serve as the Company's Vice
President of Technology and Operations, and shall report to the Company's Chief
Executive Officer and its Board of Directors.
2. EXCLUSIVE EFFORTS.
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The Executive shall devote his best efforts, skills and attention exclusively to
the business and affairs of the Company, shall serve the Company faithfully and
competently and shall, at all times, act in the Company's best interest. The
services to be rendered by Executive during the Term shall be the normal duties
of a person employed as a Vice President of Technology and Operations by a
corporation in the Company's business, subject at all times to the direction and
control of the Company's Chief Executive Officer and its Board of Directors.
During his employment by the Company, the Executive shall not, either directly
or indirectly, have any interest in or involvement with any person, firm or
corporation, the business of which is competitive with any aspect of the
business of the Company; provided, however, that nothing herein shall be
construed to prevent Executive from investing his personal assets in other
entities which do not compete with the Company.
3. BASE COMPENSATION.
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The Company shall pay to the Executive, and the Executive agrees to accept,
minimum base compensation of Eighty Thousand Dollars (CAN$80,000) during the
first year of the Term, Ninety Thousand Dollars (CAN$90,000) during the second
year of the Term, and One Hundred Thousand Dollars (CAN$100,000) during the
third year of the Term.
4. STOCK OPTIONS.
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The Executive is hereby granted options to purchase 200,000 shares of the
Company's common stock (the "Options"). These are the Options authorized by the
Company's Board of directors on May 27, 1999, and are the sole options to which
the Executive is entitled. The Options are exercisable at $.36 per share and are
granted pursuant to the Company's 1999 Stock Option Plan (the "Plan"). The
Options shall expire on December 31, 2004 and shall vest one-third on the first
day of the Term, one third one year thereafter and one-third two years
thereafter. The Options and their exercise shall at all times remain subject to
the terms and conditions of the Plan.
5. GRANT OF COMMON STOCK.
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As an inducement to the Executive to enter into this Agreement and subject to
his continued employment throughout the Term, on the first day of the Term, and
on each anniversary of the Term, the Company shall issue to Executive One
Hundred Thousand (100,000) shares of the Company's common stock (the "Shares").
The Shares will not have been registered under the Securities Act of 1933, as
amended, and may not be sold, assigned, transferred, pledged or otherwise
disposed of absent registration or an opinion of counsel satisfactory to the
Company that such registration is not required.
6. BENEFIT PLANS.
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The Executive shall be entitled to participate, to the extent eligible, in
medical, dental, hospital, group life insurance and other fringe benefit
programs from time to time made available to the Company's executives.
7. BUSINESS EXPENSE.
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The Executive shall be reimbursed for all usual expenses incurred on behalf of
the Company, in accordance with Company practices and procedures, provided that:
(a) each such expenditure is of a nature qualifying it as a proper
deduction on the federal and state income tax returns of the Company as a
business expense and not as deductible compensation to Executive; and
(b) the Executive furnishes the Company with adequate documentary
evidence substantiating such expenditures as deductible business expenses of the
Company and not as deductible compensation to Executive.
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8. VACATION.
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Employee shall be entitled to a paid vacation of two calendar weeks during the
first year of the Term and three calendar weeks during each of the second and
third years of the Term. Any unused vacation time shall be forfeited by
Executive if not used during the year in which earned. Executive shall also be
entitled to all paid holidays made generally available by the Company to its
executive officers.
9. DEATH OR DISABILITY.
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Notwithstanding anything to the contrary contained in Paragraph 1 above, if,
while the Executive is employed by the Company, he dies or suffers a physical or
mental disability which prevents him, for a period of three (3) consecutive
months, from performing his duties hereunder in a satisfactory manner, his
employment shall terminate effective on the date of death or the end of such
three (3) month period, as may be the case. In the event of such termination,
(a) all compensation earned as of the date of termination shall be paid by the
Company and (b) the Executive's base compensation shall be continued for a
period of six (6) months after such termination, and shall be paid to the
Executive if he is alive, or to his estate, if deceased.
10. TERMINATION.
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(a) This Agreement may be immediately terminated by the Company at
anytime during the Term for cause.
(b) This Agreement may be terminated by either the Company, without
cause, or the Executive upon sixty (60) days written notice to the other party.
(c) In the event of termination by the Company for cause or at the
election of the Executive, the Company shall be obligated only to pay the
Executive all compensation earned up to the date of termination.
(d) In the event of termination by the Company without cause, the
Company shall be obligated to continue to pay the Executive his compensation
earned up to the date of termination, plus an amount equal to the Executive's
base compensation then in effect, which shall be paid in twelve consecutive
equal monthly installments.
(e) For purpose of the Agreement, "cause" shall mean any act involving
gross negligence, gross misfeasance, gross malfeasance, willful misconduct,
failure to follow the reasonable instructions of the Company's Chief Executive
Officer or its Board of Directors, or the Executive's breach of any of the terms
and conditions of this Agreement.
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11. RESTRICTIVE COVENANTS.
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(a) The Executive recognizes that he has and will acquire knowledge of
certain trade secrets, information, data, know-how and knowledge (including, but
not limited to, trade secrets, information, date, know-how and knowledge
relating to customers, suppliers, sales market programs, costs, products,
apparatus, equipment, processes, manufacturing methods, compositions, designs,
plans and employees) belonging to, or relating to the affairs of the Company
(collectively referred to as "Trade Secrets"). Accordingly, during the Term and
at all times thereafter, Executive agrees not to divulge, communicate, use to
the detriment of the Company or for the benefit of any other person or persons,
or misuse in any way, any confidential information or Trade Secrets relating to
the Company and its business. The Executive acknowledges and agrees that any
information or data he has acquired or will acquire relating to the Company
which is not generally known was received in confidence and as a fiduciary of
the Company.
(b) At all times during the Term and thereafter, the Executive shall
not, directly or indirectly, induce, influence, combine or conspire with, or
attempt to induct, influence, combine or conspire with, any of the officers,
employees, or consultants of the Company to terminate their relationship with or
compete against the Company or any of its present or future subsidiaries,
parents or affiliates.
(c) The Executive acknowledges that his services and responsibilities
are unique in character and are of particular significance to the Company, that
the Company is a competitive business and the Executive's continued and
exclusive service to the Company under this Agreement is of a high degree of
importance to the Company. Therefore, if Executive is either terminated for
cause or voluntarily terminates his employment with the Company, for a period of
two (2) years following the date Executive is terminated or voluntarily
terminates his employment with the Company (the "Noncompete Period"), for any
reason whatsoever, Executive shall not, directly or indirectly, engage in any
business which is competitive with the business conducted by the Company, except
as an employee or agent of the Company, and shall not, directly or indirectly,
as owner, partner, joint venturer, employee, broker, agent, corporate officer,
principal, licensor, shareholder (unless as owner of no more than five percent
(5%) of the issued and outstanding capital stock of such entity if such stock is
traded on a major securities exchange or otherwise as a purely passive
shareholder) or in any other capacity whatsoever, engage in or have any
connection with any business which is competitive with the business of the
Company, and which operates anywhere in North America.
(d) If, in any judicial proceeding, a court shall refuse to enforce any
of the covenants included in this Paragraph 11, then such unenforceable covenant
shall be amended to relate to such lesser period or geographical area as shall
be enforceable. In the event the Company should bring any legal action or other
proceeding against Executive for enforcement of this Agreement, the calculation
of the Noncompete Period, if any, shall not include the period of time
commencing with the filing of legal action or other proceeding to enforce this
Agreement through the date of final judgment or final resolution,
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including all appeals, if any, of such legal action or other proceeding unless
the Company is receiving the practical benefits of this Paragraph 11 during such
time. The existence of any claim or cause of action by the Executive against the
Company predicated on this Agreement shall not constitute a defense to the
enforcement by the Company of these covenants.
(e) The Executive hereby acknowledges that the restrictions on his
activity as contained in this Agreement are required for the Company's
reasonable protection and is a material inducement to the Company to enter into
this Agreement. The Executive hereby agrees that in the event of the violation
by him of any of the provisions of this Agreement, the Company will be entitled
to institute and prosecute proceedings at law or in equity to obtain damages
with respect to such violation or to enforce the specific performance of this
Agreement by the Executive or to enjoin the Executive from engaging in any
activity in violation hereof.
12. ASSIGNMENT OF INVENTIONS; WORK FOR HIRE.
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(a) Any and all ideas, inventions, improvements and other intellectual
property rights which the Executive may conceive, create or make, during the
period of his employment by the Company, shall be the sole and exclusive
property of the Company. The Executive hereby assigns and conveys to the Company
any and all such ideas, inventions, improvements and rights, and relinquishes
any and all rights thereto. The Executive hereby agrees and acknowledges that
any and all intellectual property rights conceived, created or developed by the
Executive during the period of this employment by the Company and within the
scope of the Executive's employment shall be "works made for hire" and shall be
the sole and exclusive property of the Company. To the extent that any such
copyrightable materials are determined not to be "works made for hire", the
Executive hereby conveys, transfers and assigns all rights thereto to the
Company.
(b) The Executive agrees to execute any and all documents, patent,
copyright or other applications and instruments that may be requested by the
Company, either during the term of this Agreement or thereafter, in order to
convey to the Company the ownership rights contemplated by this Section 12.
(c) The Executive hereby waives any and all moral rights that the
Executive may have with respect to the creation of any software, inventions,
devices, processes, intellectual property or any other discoveries made by the
Executive during the period of his employment by the Company and created within
the scope of his employment.
13. BINDING EFFECT.
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Except as herein otherwise provided, this Agreement shall inure to the benefit
of and shall be binding upon the parties hereto, their personal representatives,
successors, heirs and assigns.
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14. SEVERABILITY.
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Invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provisions.
15. TERMINOLOGY.
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All personal pronouns used in this Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural and vice versa. Titles of Paragraphs are for convenience
only, and neither limit nor amplify the provisions of the Agreement itself.
16. GOVERNING LAW.
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This Agreement shall be governed and construed in accordance with the law of the
State of Florida.
17. ENTIRE AGREEMENT.
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This Agreement contains the entire understanding between the parties and may not
be changed or modified except by an agreement in writing signed by all the
parties. This Agreement supercedes any prior agreements or understandings
between the parties and any and all such prior Agreements are hereby canceled
and shall cease to be of any further force or effect.
18. NOTICE.
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Any notice requiring or permitted to be delivered hereunder shall be deemed to
be delivered when deposited in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, addressed to the parties
at the addresses first stated herein, or to such other address as either party
hereto shall from time to time designate to the other party by notice in writing
as provided herein.
19. OTHER INSTRUMENTS.
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The parties hereby covenant and agree that they will execute such other and
further instruments and documents as are or may become necessary or convenient
to effectuate and carry out the terms of this Agreement.
20. COUNTERPARTS.
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This Agreement may be executed in any number of counterparts and each such
counterpart shall for all purposes be deemed an original.
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21. ASSIGNABILITY.
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This Agreement shall not be assigned by either party, except with the written
consent of the other.
22. ATTORNEYS' FEES.
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In any litigation arising out of this Agreement, the prevailing party shall be
entitled to all costs and expenses, including reasonable attorneys' fees.
IN WITNESS WHEREOF, this Agreement has been duly signed by the Executive and on
behalf of the Company on the day and year first above written.
▇▇▇▇-▇▇▇.▇▇▇, INC. EXECUTIVE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
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October 21, 1999
Reference is made to the Employment Agreement dated to be effective
November 1, 1999 (the "Employment Agreement"), by and between ▇▇▇▇-▇▇▇.▇▇▇, Inc.
(the "Company") and ▇▇▇▇▇ ▇▇▇▇▇ ("Employee"). This shall confirm that prior to
execution of the Employment Agreement, the Company paid Employee, as part of his
employment compensation, the sum of $1.00 per unit sold of the Company's Direct
Connect product, such sum to be paid quarterly, in the local currency of the
purchaser of the Direct Connect unit (the "Unit Compensation").
This shall further confirm that the Employment Agreement provides for
the payment of agreed upon compensation to the Employee for his services
rendered thereunder, but that such compensation does not include the payment of
Unit Compensation to the Employee. Notwithstanding the Employment Agreement:
1. the Company agrees to continue to pay the Unit Compensation to the Employee;
2. the Company may discontinue payment of the Unit Compensation to the Employee,
at any time, for any reason whatsoever, immediately upon notice to the Employee
(the "Termination Date");
3. in the event the Company discontinues payment of Unit Compensation to the
Employee, the Company shall continue to pay Unit Compensation to the Employee
for a period of 90 days from the Termination Date; and
4. except as set forth herein, the Employee shall have no right to the payment
of Unit Compensation.
▇▇▇▇-▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO ▇▇▇▇▇ ▇▇▇▇▇
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