OXIR INVESTMENTS, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 29th day of June, 1998, by and between Oxir Investments, Inc., a California
corporation doing business in the State of Nevada and having its principal place
of business at 0000 Xxxxxx Xxxxxx Xxxx. #000, Xxx Xxxxx, Xxxxxx 00000
(hereinafter the "Company"), and Xxxxxxx Xxxxxx, an individual (hereinafter
"Employee").
1. Employment. In consideration of the mutual covenants and conditions
herein contained, the Company agrees to employ Employee and Employee agrees to
be so employed in the capacity of President and Chief Executive Officer and to
faithfully perform the duties assigned to him to the best of his ability, devote
his full and undivided time to the transaction of the Company's business and
abide by the terms and conditions set forth herein.
2. Term of Employment. Employment under this Agreement shall commence
on the date hereof and shall continue for a period of five (5) years
unless sooner terminated as provided herein.
3. Scope of Employment. Employee shall at all times discharge his
duties to the furtherance of the business of the Company and to
perform faithfully to the best of his ability all assignments of
work given to him by the Company. Employee's duties shall consist of
the following:
(a) Hold the executive offices of President and Chief Executive Officer
of the Company and assume all responsibilities normally associated with
such offices and as set forth in the Company's by-laws.
(b) To act on behalf of the Company with its ordinary business and
related transactions and to have the power and authority to bind the
Company in all proper business transactions involving the Company.
4. Compensation. All compensation below shall be in addition to any and
all applicable sales commissions and bonuses in accordance with the standard
payroll policies and practices of the Company and as otherwise set forth herein
or as hereinafter established by the Company:
(a) Initial Salary. Commencing the date hereof and through the term of
employment set forth in paragraph 2 above, the Company agrees to pay
Employee as compensation for his services the base salary of $120,000
per annum, payable in equal semi-monthly installments. The Company
agrees to consider the salary increase upon accumulation of greater
assets.
(b) Incentive Bonus Plan. As further compensation, the Company agrees
to compensate the Employee yearly in such amounts and under such terms
as set forth below:
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20 % of book value With book value less than 10 million dollars
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15 % of book value With book value more than 10 million dollars, less than 50 million dollars
-------------------------------- ----------------------------------------------------------------------------
10 % of book value With book value more than 50 million dollars, less than 200 million dollars
-------------------------------- ----------------------------------------------------------------------------
5 % of book value With book value more than 200 million dollars
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The payment will be performed on a quarterly basis in the form of the
Company stock, based on the stock closing price on the last day of the
Quarter. The Employee has the option of taking the dollar equivalent of
the compensation.
(c) Severance. In the event the Company is acquired by another person
or entity, merged or liquidated whereby the current management and/or
shareholders of the Company are no longer in control, the Company will
negotiate its compensation.
(d) Other Incentive Programs. Employee shall be eligible to participate
in any incentive performance program instituted by the Company to the
full extent permitted to all other employees of the Company
5. Other Benefits.
(a) General. In addition to the salary and bonuses provided in
paragraph 4 above, Employee shall be entitled to receive such other
benefits as are generally available to other employees of the Company,
including but not limited to a major medical hospitalization policy and
a disability.
(b) Expense Reimbursement. Employee may incur expenses while performing
duties for the Company under the terms of this Agreement, including
expenses for travel, entertainment and similar items. The Company
agrees to reimburse Employee for all reasonable business expenses
incurred by Employee in connection with the business of the Company,
upon submission by Employee of an expense report with such
substantiating vouchers as the Company may require.
(c) Vacation. Employee shall be entitled to an annual vacation of six
(6) weeks, at full pay and pursuant to the Company's employee policies
regarding vacations during the term of this Agreement. Should Employee
not use all of his vacation time in any one calendar year, the unused
portion may not be carried forward into subsequent years.
(d) Illness or Incapacity. Employee is entitled to absence because of
illness or incapacity of no more than a total of four (4) weeks each
year. . For purposes of this Agreement, "illness" is defined as absence
from the work place. In case this absence is extended over the two day
period, the doctors' care and attention, as well as confirmation is
required. If Employee is unable to perform his duties because of
illness or incapacity for more that a total of four (4) weeks in any
single year, the compensation otherwise due Employee under this
Agreement shall be reduced by fifty percent (50%) as of the start of
the fifth week (on a cumulative basis) of such absence. Employee's full
compensation will be reinstated when he returns to work and is able to
discharge his duties. Notwithstanding anything to the contrary, the
Company may terminate this Agreement at any time after the Employee is
absent from his employment, for whatever cause, for a continuous period
of more than three (3) months, and previous obligations of the Company
shall thereupon terminate.
(e) Life Insurance. Upon the execution of this Agreement, the Company
agrees to purchase for Employee a term life insurance policy payable to
the Employee or his designee as beneficiary in the amount of
$1,000,000. In the event this Agreement is terminated or Employee
leaves the employment of the Company for any reason, Employee will have
the option of transferring ownership of the life insurance policy to a
person or entity of Employee's choice and to a beneficiary of his
choice. Thereafter, Employee will be responsible for all future
premiums due on the life insurance policy.
6. Performance.
(a) Confidential Information. Employee acknowledges that, in the course
of his employment hereunder, he will become acquainted with
confidential and proprietary information belonging to the Company. This
information relates to the management, products and customers of the
Company and includes all information disclosed to Employee or known,
learned, created or observed as a consequence of his employment not
generally known in the relevant trade about the Company's business
activities, products, processes and services, including trade secrets,
research and development programs, business plans, customer lists,
potential customers lists, marketing and sales. Employee agrees that at
any time during or after his employment he will not, without the prior
written consent of the Company, directly or indirectly, disclose,
furnish, publish, make accessible to others or make any use of such
confidential information except as may be required in the course of his
employment hereunder.
(b) Protection of Company Property. All records, files, manuals, lists
of customers, blanks, forms, materials, supplies, computer programs and
other materials furnished to the Employee by the Company, used by him
on its behalf, or generated or obtained by him during the course of his
employment shall be and remain the property of the Company. Employee
shall be deemed the bailee thereof for the use and benefit of the
Company and shall safely keep and preserve such property, except as
consumed in the normal business operations of the Company. Employee
acknowledges that this property is confidential and is not readily
accessible to the Company's competitors. Upon termination of employment
hereunder, the Employee shall immediately deliver to the Company or its
authorized representative all such property, including all copies,
remaining in the Employee's possession or control.
(c) Disclosure of Information. Employee agrees to promptly disclose to
the Company all discoveries, marketing or research developments,
techniques, know-how, and data, whether patentable or capable of being
registered under similar statutes, made or conceived or reduced to
practice or learned by Employee, either alone or jointly with others,
during the period of his employment resulting from tasks assigned to
him by the Company, resulting in any way from his employment by the
Company, related in any way to the business of the Company, or
resulting from the use of premises owned, leased or contracted for by
the Company.
(d) Inventions. All inventions by Employee or to which he has an
interest made during the term of this Agreement shall be the sole
property of the Company and the Company shall be the sole owner of all
patents, copyrights and other rights in connection therewith. Employee
shall assign to the Company or to persons designated by the Company,
any rights that Employee may have or may acquire in such inventions.
Employee shall assist the Company in every proper manner, at the
Company's expense, to obtain and from time to time enforce all patents,
copyrights and other rights and protections relating to said
inventions, and shall execute all necessary documents for use in
applying for and obtaining such patents, copyrights, and other rights
and protections.
7. Employee Covenants. Employee hereby covenants and agrees as follows:
(a) During the term of this Agreement Employee agrees that he will not
own a material interest in, operate, join, control, participate in or
be connected with as an officer, employee, agent, independent
contractor, partner, controlling shareholder or principal of any
corporation, partnership, proprietorship, firm, association, person or
other entity producing, designing, providing, soliciting orders for
selling, distributing or marketing products, goods, equipment and/or
services which directly competes with the business of the Company.
(b) For one (1) year following the termination of Employee's
employment, if such termination is at the election of Employee or if
Employee is terminated by the Company with cause (as defined in
paragraph 8(b) below), Employee agrees not to undertake any employment
or activity, or own, operate, manage, control or participate in any
business entity or activity located within the United States, either
directly or indirectly, which is directly or indirectly competitive
with the Company's business or any of its affiliates wherein the loyal
and complete fulfillment of the duties of the competitive employment or
activity would call upon Employee to reveal, to make judgments on or
otherwise to use any confidential business information or trade secrets
of the Company's business to which Employee had access by reason of the
Company's business.
(c) During the term of this Agreement and for one (1) year following
termination of Employee's employment, if such termination is at the
election of Employee or if Employee is terminated by the Company with
cause (as defined in paragraph 8(b) below), Employee agrees not to
divulge, furnish, publish or use for his personal benefit or for the
direct or indirect benefit of any other person or business entity,
other that the Company or any of its subsidiaries or affiliates, any
confidential or proprietary information of the Company or any of its
subsidiaries or affiliates, including, without limitation, any business
methods, systems, customers, suppliers, procedures, techniques,
research, knowledge or processes used or developed by the Company or
any such subsidiary or affiliates.
(d) During the period that Employee is employed by the Company and for
one (1) year following his termination as an employee of the Company,
if such termination is at the election of Employee or if Employee is
terminated by the Company with cause (as defined in paragraph 8(b)
below, Employee agrees that he will not directly, either for himself or
for any other person, firm, corporation or entity whose products or
primary business activities are in direct competition with the Company,
divert or take away or attempt to divert or take away, call or solicit
or attempt to call or solicit any of the Company's customers or
patrons, including but not limited to those upon whom he called on or
who he solicited or to whom he catered or with whom he became
acquainted while engage with the Company in its business.
(e) During the term of Employee's employment with the Company, Employee
agrees that he will not undertake planning for or organization of, any
business activity competitive with the Company's business or combine or
conspire with other employees or representatives of the Company's
business for the purpose of organizing any such competitive business
activity whereby that activity has a financial remuneration impact for
Employee.
(f) During the period that Employee is employed by the Company and for
one (1) year following his termination as an employee of the Company,
Employee agrees that he will not, directly or indirectly or by action
in concert with others, induce or influence, or seek to induce or
influence, any person who is engaged as an employee, agent, independent
contractor or otherwise by the Company, to terminate their employment
or engagement with the Company.
(g) The covenants of this paragraph 7 shall be construed as separate
covenants covering their subject matter in each of the separate
counties and states in which the Company may operate or transact
business within the United States or in any foreign country, and, to
the extent that any covenant shall be judicially unenforceable in any
one or more of said counties, states or foreign countries, said
covenant shall not be affected with respect to each other county, state
or foreign country, and each covenant with respect to each county,
state and foreign country shall be construed as sovereign and
independent.
8. Termination of Employment.
(a) Termination. The term of Employee's employment shall terminate upon
the occurrence of any of the following: (i) Death of Employee; (ii) in
the event any illness or accident renders Employee totally disabled,
Company's obligations under this Agreement shall terminate three (3)
months after the determination of total disability; (iii) termination
of Employee's employment by the Company's Board of Directors for cause
as defined in subparagraph (b) below; (iv) a merger, consolidation, or
acquisition involving the Company in which the Company is not, in
effect or in fact, the surviving entity, or the transfer of all or
substantially all of the assets of the Company, or the voluntary or
involuntary dissolution of the Company; (v) upon the date specified by
Employee in a written notice to the Company of Employee's resignation
provided that Employee shall specify a date not less than thirty (30)
days from the date Employee submits to the Company the letter of
resignation; (vi) thirty (30) days after the Company gives written
notice of termination of Employee without cause; or (vii) upon the
expiration of this Agreement unless otherwise extended in writing by
the parties.
(b) Definition of Cause. As used herein, the term "cause" shall mean
(i) Employee's willful breach or neglect of the duties and obligations
required of him either expressly or implied by the terms of this
Agreement; (ii) in the event Employee is convicted of or enters a plea
of guilty or nolo contendere to an act of dishonesty, an act involving
public ridicule or moral turpitude, or an act constituting a felony; or
(iii) any other conduct on the part of Employee which would make his
retention by the Company prejudicial to the Company's best interests in
the judgment of a majority of the Board of Directors.
(c) Termination - Nonexclusive Remedy. Termination of Employee's
employment by the Company shall be without prejudice to any other
remedy to which the Company may be entitled either at law, in equity or
under this Agreement.
(d) Compensation Upon Termination. If the Company should terminate
Employee without cause during the term of this Agreement, the Company
shall pay to Employee an amount equal to his total salary otherwise due
under the balance of the five (5) year term of this Agreement.
9. Miscellaneous.
(a) Non-Waiver. Failure on the part of either party to complain of any
action or non-action, breach or default on the part of the other party,
regardless of how long the same may continue, shall never be deemed to
be a waiver of any rights or remedies hereunder, at law or in equity.
It is further agreed to by the parties hereto that a waiver at any time
of any provision hereof shall not be construed as a waiver at any
subsequent time of the same or any other provision.
(b) Notices. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effective upon personal delivery or five
(5) days after deposit in the United States Mail, by registered or
certified mail, postage prepaid, duly addressed to the other party.
(c) Parties in Interest. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors
and assigns. Nothing in this Agreement is intended to confer expressly
or by implication upon any other person, any rights or remedies under
or by reason of this Agreement.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed as an original and
together, shall constitute one document.
(e) Severability. The parties hereto agree and affirm that none of the
provisions herein is dependent upon the validity of the provision, and
if any part of this Agreement is deemed to be unenforceable, the
remainder of the Agreement shall remain in full force and effect.
(f) Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof and fully
supersedes any and all prior agreements between the parties hereto
respecting Employee's employment.
(g) Headings. Headings used herein are provided for the convenience of
reference only and do not constitute a part of this Agreement.
(h) Governing Law. This Agreement shall be governed by the laws of the
State of Nevada. Any action to enforce the provisions of this Agreement
shall be brought in a court of competent jurisdiction within the State
of Nevada and in no other place.
(i) Assignability. The rights and duties of Employee under this
Agreement shall not be subject to alienation, assignment or transfer,
whether voluntary or involuntary. The Company, however, may assign this
Agreement to any entity that may succeed to the business and assets of
the Company, and any such successor corporation may similarly assign
this Agreement.
(j) Costs and Expenses. In the event of any controversy, claim or
dispute between the parties hereto arising out of or relating to this
Agreement, the prevailing party shall be entitled to recover from the
other party its reasonable expenses including payment of a reasonable
attorneys' fee.
(k) Amendment. This Agreement shall not be amended except by an
instrument in writing and signed on behalf of each of the parties
hereto. No amendment shall be made which substantially and adversely
changes the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in a manner legally binding upon them as of the date first written
above.
"Company" "Employee"
Oxir Investments, Inc.
Xxxxxx Xxxxxxxxx Xxxxxxx Xxxxxx
Director
Xxxxxxx Xxxxxxx
Director
Xxxx Xxxxxxxxx
Director
May _____, 0000
Xxxxxx Xxxxxx Securities and Exchange Commission
000 0xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X-X Xxxxx
Senior Financial Analyst
Re: Oxir Investments, Inc.
Amendment No. 2 to Form 10-SB
File No. 0-26377
Ladies and Gentlemen:
We represent Oxir Investments, Inc. (the "Company"). The enclosed
Amendment No. 2 to Form 10-SB, which has been filed electronically in accordance
with Regulation S-T, has been revised in response to the January 7, 2000
correspondence from your staff to Xxxxxxx Xxxxxx concerning the Company's
Amendment No. 1 to Form 10-SB filed with the Commission on November 9, 1999 and
to update the information described therein.
Numbers utilized below correspond to those set forth in the comment
letter and unless otherwise defined herein, capitalized terms and other terms
used repeatedly throughout the Amendment shall have the same meaning as in the
Form 10-SB.
Business Development
1. In November 1998 the Company merged with Oxir-Private in order to avail
itself of Oxir-Private's contacts and opportunities in Russia. The disclosure
regarding the merger has been clarified. See page 3.
2. The date of Oxir-Private's incorporation has been deleted from the
Amendment.
3. References to Oxir Private, OFS, OIS, OIL and the Company have been
revised throughout the Form 10-SB.
4. Comment complied with. See Part I, Item 1, "Description of Business -
Equity Market Investing and Asset Management."
5. Comment complied with. See Part I, Item 1, "Description of Business -
Equity Market Investing and Asset Management."
6. Comment complied with. See Part I, Item 1, "Description of Business -
Equity Market Investing and Asset Management."
Equity Market Investing and Asset Management
7. More specific references have been provided throughout Part I, Item 1,
"Description of Business."
8. Comment complied with. See Part I, Item 1, "Description of Business -
Equity Market Investing and Asset Management."
9. Comment complied with throughout the Form 10-SB.
Russian Real Estate Development Projects
10. Details regarding the Project have been disclosed. See Part I,
Item 1, "Description of Business - Russian Real Estate
Development Project." However, since the Project has not been
completed, information such as the average cost per square
meter is not yet available. The Company has disclosed the
Company's total investment in the Project and its development
of the Complex.
11. The total cost of the Project has not been determined because
the Project is not completed. The Company made an investment
of $3,261,706 in the Project. As a partial return on that
investment, the Company was granted a portion of the Project
by the developer. The Company has chosen to develop its
portion of the Project into the Complex. These facts have been
disclosed in the Amendment.
12. Comment complied with. See Part I, Item 1, "Description of
Business - Russian Real Estate Development Project."
13. References to "more attractive prices" have been deleted from
the Form 10-SB. Cost comparison between the cost of other
similar apartment units and those of the Project has been
provided.
14. The last paragraph has been deleted. Risk factors are
described in Part I, Item 1, "Description of Business - Risk
Factors."
Internet Solutions
15. Comment complied with. See Part I, Item 1, "Description of
Business - Internet Solutions."
16. Comment complied with. See Part I, Item 1, "Description of
Business - Internet Solutions - Payment for Goods and
Services."
17. Comment complied with. See Part I, Item 1, "Description of
Business - Internet Solutions - Delivery of Goods and
Services."
18. Comment complied with. See Part I, Item 1, "Description of
Business - Internet Solutions - Delivery of Goods and
Services."
19. Information regarding the opening of local warehouses
internationally has been deleted.
20. Credit card payments to the Company are outlined in Part I,
Item 1, "Description of Business - Internet Solutions -
Payment for Goods and Services."
21. The number of projected book offerings has been adjusted to
40,000. The price to be charged to customers is based upon the
price that the Company receives from its suppliers, which will
be adjusted from time to time. The Company intends to price
its products competitively. See Part I, Item 1, "Description
of Business - Internet Solutions - Delivery of Goods and
Services."
22. Comment complied with. The Company's research and development
budget is disclosed in Part I, Item I, "Description of
Business - Research and Development." The Company's licensing
arrangements are disclosed in Part I, Item I, "Description of
Business - Patents, Trademarks and Licensing Agreements." None
of the Company's license agreements are material.
23. The Company has contacted various providers in order to
conclude that web-hosting services cost, on average, $25 to
$30 per month. The Company intends to charge a fee of $15 to
$95 per month to users of the virtual web-hosting services.
This fee structure is based upon a price comparison of similar
services from the most popular providers of web-site hosting.
See Part I, Item 1, "Description of Business - Internet
Solutions - Virtual Server."
24. Web-hosting services differ substantially from Internet
stores, and the creation of mailing lists is not a primary
goal of the Company. Under the "traditional approach," a
client receives a standard set of services that allow the
client to transfer previously prepared information to the
Internet. The Company's approach is to allow the client to
create its own web site which is maintained on the Company's
server and to provide back-up power and support to a heavily
used web site. The client may maintain an Internet store on
its web site which is maintained and/or supported by the
Company.
25. Reference to the Company's capability to upgrade the system as
needed, be independent of the terms and conditions enforced by
the licensed producers of the existing software and to sell
the final product as shrink wrapped software has been deleted
from the Amendment.
26. Copies of the relevant publications are provided
supplementally. The Company is not relying upon data compiled
by any market data analysis firm.
27. The paragraphs concerning Internet shopping statistics have
been deleted. A statement regarding Internet shopping
statistics is contained in Part I, Item 1, "Description of
Business - Internet Solutions." A discussion of the Company's
marketing efforts has been included.
28. Comment complied with. Copies of advertisements are provided
supplementally. See Part I, Item 1, "Description of Business -
Marketing - Television and Radio."
29. Descriptive terms such as "major business forum and trade
show" have been deleted.
30. Comment complied with. See Part I, Item 1, "Description of
Business - Competition."
31. Comment complied with. Aspects of Russian taxation have been
addressed in a new section. See Part I, Item 1, "Description
of Business - Competition - Doing Business in Russia."
32. Comment complied with. See Part I, Item 1, "Description of
Business - Competition - Real Estate."
33. Comment complied with. The language regarding "the pitfalls
typically experienced by start ups" has been deleted.
34. Comment complied with. See Part I, Item 1, "Description of
Business - Competition - Internet."
35. Comment complied with. Information regarding the establishment
of a "merchant account" has been deleted. Details regarding
the Company's payment systems is contained in Part I, Item 1,
"Description of Business - Internet Solutions - Payment for
Goods and Services."
36. Comment complied with. See Part I, Item 1, "Description of
Business - Competition - Internet."
37. Comment complied with. See Part I, Item 1, "Description of
Business - Risk Factors."
38. Comment complied with. See Part I, Item 1, "Description of
Business - Risk Factors."
39. Comment complied with. See Part I, Item 1, "Description of
Business - Risk Factors."
40. Comment complied with. See Part I, Item 1, "Description of
Business - Research and Development."
41. Comment complied with. See Part I, Item 6, "Executive
Compensation."
42. Comment noted.
43. Comment complied with. See Part I, Item 6, "Certain
Relationships and Related Transactions."
44. Comment complied with. See Part I, Item 7, "Certain
Relationships and Related Transactions."
45. Comment complied with. See Part I, Item 7, "Certain
Relationships and Related Transactions."
46. Comment complied with. There has been no trading in, and there
is no public market for, the Company's common stock. See Part
II, Item 1, "Market Price of and Dividends on Registrant's
Common Equity and Other Shareholder Matters."
47. The Company is not aware of any broker-dealers holding shares
of the Company's common stock on behalf of stockholders. This
information has been deleted.
48. Comment complied with. The Company's offerings were conducted
pursuant to Rule 504 of Regulation D and Section 4(2) of the
Securities Act of 1933, as amended. The Company has identified
the class to whom the securities were sold. The Company did
not distinguish between foreign and domestic investors. To the
best knowledge of the Company, each investor was an accredited
investor. Each investor was given a private placement
memorandum, which included a comprehensive business plan and
the Company's audited financial statements. A copy of these
documents will be filed supplementally.
49. [Accounting comment]
50. [Accounting comment] Comment complied with. The financial
statements have been revised and updated.
51. [Accounting comment]
52. [Accounting comment]
53. [Accounting comment]
54. [Accounting comment]
We believe the foregoing and the revised preliminary proxy materials
fully responds to the staff's comments. If you have any further questions or
comments please do not hesitate to call Xxxxx Xxxxxxxx Xxxxxx (202-861-1694) or
me.
Sincerely,
Xxxxx X. Xxxxxxxxx
