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EXHIBIT 6.30
EMPLOYMENT AGREEMENT
THIS AGREEMENT made this 31st day of March 1999, by and between FutureOne,
Inc., an Arizona corporation (hereinafter called "Company"), and X. Xxxxxx
Xxxxxxxx (hereinafter called "Employee") shall be effective as of April 1, 1999.
RECITALS
WHEREAS, the Company, located in Phoenix, Arizona, is a full service
communications company providing Internet access, Website development and
hosting, customer software development, advertising agency services, computer
sales and services and communications and networking solutions; and
WHEREAS, the Company desires to enter into an employment relationship with
Employee pursuant to the terms and conditions set forth herein; and
WHEREAS, Employee is willing to accept such employment with the Company,
pursuant to the terms and conditions set forth in this Agreement; and
NOW THEREFORE, the Parties hereto, in consideration of the mutual
covenants and promises hereinafter contained, do hereby agree as follows:
TERMS
1. EMPLOYMENT DUTIES. The Company hereby employs Employee to perform
the following duties as the Director of Advertising Services:
a. Manage the affairs of Ubiquity as a wholly owned division of
FutureOne and be responsible for sales and purchasing, hiring,
firing and supervision of personnel and overall supervision of
the division.
b. Carry out other duties as may be assigned from time to time by
executive management or the Board of Directors of FutureOne.
2. PERFORMANCE. Employee agrees to devote all of the time and effort
necessary to perform the duties described in Section 1 above in a
manner satisfactory to the Company and to perform such other duties
as are assigned to him from time to time by the Officers or Board of
Directors of the Company.
3. TERM. Except as provided in Section 7 below, the term of this
Contract shall be three (3) years from the effective date hereof.
This Agreement shall automatically renew for periods of one year,
unless earlier terminated in accordance with the provisions of
Section 7 below or either party gives written notice, at least
thirty days (30) prior to the automatic renewal date, of their
intention not to renew this Agreement.
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4. COMPENSATION. In consideration for the services to be rendered by
Employee in his capacity hereunder, Employee shall be compensated as
follows:
a. An annual salary of Seventy Thousand and 00/100 Dollars
($70,00), which shall be payable in equal installments based
on the Company's normal pay periods.
b. Employee salary, may be adjusted by mutual consent of the
parties at any time during the term of this contract or any
subsequent extension hereof. In addition, the Company may
provide other employment benefits as per Section 5 below.
5. EMPLOYEE BENEFITS. The Company, at its sole discretion, may provide
certain group benefits to all full time employees and agrees that
Employee will be covered by any such plans adopted by the Company
while he is a full time employee and Employee hereby agrees to
submit to any medical or other examination and to execute and
deliver any application or other instrument in writing, reasonably
necessary to effectuate such plans and benefits.
6. EXPENSES. The Company will reimburse the Employee for all reasonable
and necessary business expenses which are approved in advance by the
Company.
7. TERMINATION. Employment under this Agreement may be terminated as
follows:
a. DEATH/EXPIRATION OF THIS AGREEMENT WITHOUT RENEWAL. By
Employee's death or upon the expiration of the term of this
Agreement and the Company shall be obligated, in either event,
to pay Employee his normal compensation up to the actual date
of termination, a prorated bonus and benefits actually due
Employee up to the actual date of death or expiration of the
Agreement.
b. TOTAL DISABILITY. For the purpose of this Agreement, the term
"total disability" means Employee's inability, because of
serious physical and/or mental injury, illness or impairment,
certified by a licensed medical doctor and by whatever
supporting documents are requested by the Company, to perform
his assigned duties for more than sixty (60) consecutive days;
and the Company shall be obligated, in that event, to pay
Employee his normal compensation up to the actual date of
termination, a prorated bonus and benefits actually due up to
the date of disability.
c. EMPLOYEE NOTICE. At the election of Employee upon thirty (30)
days written notice to Company, in such event, the Company
shall only be obligated to pay Employee his normal
compensation and benefits actually due Employee up to the date
of termination. Upon receipt of such notice from Employee, the
Company, at its sole discretion, may terminate this Agreement
immediately and pay Employee only his normal compensation and
benefits actually due Employee up to the Company's elected
date of termination.
d. WITHOUT CAUSE. Company may terminate without cause and for any
reason Employee's employment upon thirty (30) days written
notice to Employee. If
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Employee is terminated without cause he shall be entitled to
be paid, his compensation up to the actual date of termination
and benefits actually due Employee up to the date of
termination.
e. WITH CAUSE. Employee's employment may be terminated for cause
at any time upon five (5) days written notice. For the purpose
of this Agreement "for cause" is defined to include, but not
be limited to the following: (i) intentional or unintentional
acts by Employee having the effect or causing significant harm
to the business interests of the Company; (ii) the failure of
Employee to devote all of his time, energies and efforts to
the performance of his duties; (iii) the conviction of
Employee of any felony crime involving an act of moral
turpitude; (iv) the violation of any specific written
direction of the Board of Directors relating to services to be
rendered by him or the scope of his duties as contemplated by
this Agreement; (v) the commission by Employee of any other
material breach of this Agreement, and to the extent that this
act is curable, Employee has not cured it within five (5)
business days following receipt of notice of said material
breach. Any notice to Employee shall specify the facts and
circumstances claimed to provide the basis for such
termination. In the event of termination of this Agreement
under this section, the Company shall only be obligated to pay
Employee his normal compensation and actual benefits due up to
the actual date of termination.
f. DEFAULT. Employee shall have the option to immediately
terminate this agreement if the Company fails to comply with
the terms and conditions of this Agreement, but only if such
default or breach of this Agreement is not caused, directly or
indirectly, by Employee in his managerial and fiduciary
capacity under this Agreement, whereby Employee's, intentional
or unintentional, acts have caused the Company, through lack
of work or excess expenditures, to be unable to meet its
financial obligations under this Agreement. Upon failure of
the Company to meet any of its obligations due Employee under
this Agreement or there is any other material breach of this
Agreement, and to the extent that it is curable, Employee
shall give written notice to the Company and shall specify the
facts and circumstances claimed to be a breach of this
Agreement. The Company shall have five (5) business days
following receipt of such written notice to cure such alleged
breach. If said breach is not cured by the Company within such
time period then it shall be deemed as if the Company has
terminated this Agreement "Without Cause" and Employee shall
be entitled to all amounts due hereunder as if the Agreement
had not been terminated.
8. AGREEMENT NOT TO COMPETE. Employee hereby agrees and stipulates that
he shall not compete, in any business engaged in by the Company,
either directly or indirectly, or compete in any other way with the
business opportunities of the Company, for any period that he is
receiving any compensation from the Company under this Agreement and
not less than one (1) year from the date of any termination of this
Agreement as provided in Section 7 of this Agreement, without the
express written permission of the Company. Employee hereby further
acknowledges, agrees and stipulates, that he has received fair and
adequate consideration, in the form of stock and/or cash, in
exchange for this Agreement. The Parties agree that in the event
that Woodbury is terminated from employment by FutureOne, this
provision shall not be construed so as to prevent Woodbury from
accepting employment in the advertising industry in any position
that does not involve soliciting the existing clients of FutureOne.
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9. PROPRIETARY INFORMATION. Employee shall treat as information
proprietary to FutureOne any and all data and/or information
discovered and/or disclosed and shall not, directly or indirectly,
use any such information and/or data for his own benefit or disclose
or fail to use its best efforts to prevent the disclosure of the
same to any other person or entity for any purpose or reason
whatsoever, during the term of this Agreement or at any time
thereafter.
10. PROPRIETARY INFORMATION DEFINED. Proprietary information includes
but is not limited to unique concepts, products, services,
company/corporate strategy and business development, including plans
relating to this acquisition, expansion, marketing, financials,
client lists and other business information, operating information,
policies, practices and processes, database and networking systems,
information relating to employees, customers, prospective customers
and suppliers, whether such information is documented, contained
electronically and/or contained on any other medium.
11. REPRODUCTION OF PROPRIETARY INFORMATION. Employee stipulates that he
will not, at any time, make any reproduction, copy, abstract,
summary and/or precis of the whole or of any part of any Proprietary
Information without the prior express written consent of the
Company, in which case said reproduction, copy, abstract, summary
and/or precis shall remain the property of the Company.
12. CONFIDENTIALITY. Employee stipulates that he shall keep any and all
Proprietary Information obtained, during the term of this Agreement
or any time thereafter, in the strictest of confidence and secrecy.
13. NON-DISCLOSURE. Employee stipulates that he shall not, during the
term of this Agreement or any time thereafter, in any way or by any
means, disclose, disseminate and/or distribute any Proprietary
Information to any third party without the prior express written
consent of the Company.
14. NON-CIRCUMVENTION. Employee stipulates that he shall not, during the
term of this Agreement or any time thereafter, in any way or by any
means implement and/or use any Proprietary Information, circumvent,
usurp an opportunity, take advantage of and/or benefit from, through
the exclusion of the Company, any Proprietary Information obtained.
15. INJUNCTIVE RELIEF. The Employee recognizes and agrees that, a breach
of this Agreement will cause irreparable harm to FutureOne and no
amount of monetary damages can adequately compensate FutureOne for
the injury that would be caused by said breach. Accordingly,
Employee hereby stipulates that should FutureOne have a good faith
reason to believe that Employee is breaching or taking steps to
breach any material provision of this Agreement then FutureOne shall
be entitled to immediate issuance of an ex-parte temporary
restraining order, by a Court, enjoining the Employee from engaging
in the opposed activities.
16. WAIVER. A Party's failure to insist on compliance or enforcement of
any provision of this Agreement shall not effect the validity or
enforceability or constitute a waiver of future enforcement of that
provision or any other provision of this Agreement by that Party or
any other party.
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17. LAW, JURISDICTION AND VENUE. This Agreement shall in all respects be
exclusively subject to, and governed by, the laws of the State of
Arizona. Exclusive venue and jurisdiction for any and all disputes
shall lie in Maricopa County, Arizona. The Parties hereto stipulate
that any dispute arising out of this Agreement shall be submitted to
binding arbitration in Arizona pursuant to the arbitration rules and
regulations, as codified in the Arizona Revised Statutes.
18. VALIDITY. The invalidity or unenforceability of any provision in
this Agreement shall not in any way effect the validity or
enforceability of any other provision and this Agreement shall be
construed in all respects as if such invalid or unenforceable
provision had never been in this Agreement.
19. NOTICE. All notices and other communications provided for or
permitted hereunder shall be made by hand delivery, overnight
courier, certified or registered mail, postage prepaid and return
receipt requested, telex or facsimile transmission.
20. If to the Company If to Employee
0000 Xxxx Xxxxxxxxx Xxxx 0000 Xxxxx 00xx Xxxxxx
Xxxxx X-000 Xxxxxxx, Xxxxxxx 00000
Xxxxxxx, Xxxxxxx 00000-0000 Fax: ______________
Fax: 000-000-0000
All such notices shall be deemed to have been duly given:
when delivered, by and is personally delivered; and the next day,
after being sent by overnight courier; and when received, if by
mail; and when received (as electronically acknowledged), if by
facsimile transmission.
21. AMENDMENTS. This Agreement may be amended, at any time, only by the
written mutual consent of the Parties hereto, with any such
Amendment to be invalid unless it is both written and signed by both
Parties.
22. LEGAL FEES AND COSTS. The Parties hereby stipulate and agree that in
the event that a dispute arises between the Parties, relating to
this Agreement, and one or both of the Parties deem it necessary to
hire an attorney to protect its rights and/or resolve said dispute,
then the prevailing Party, in any action, shall be entitled to
recover and collect, from the non-prevailing Party, all reasonable
attorney's fees and costs incurred.
23. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding by and between the Parties and no representations,
promises, agreements and/or understandings, written or oral,
relating to this Agreement by either Party not contained herein
shall be of any force or effect.
IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement this 31st day of March, 1999.
FutureOne, Inc. Employee
/s/ Xxxx X. Xxxx /s/ X. Xxxxxx Woodbury
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By: Xxxx X. Xxxx, Executive Vice President By: X. Xxxxxx Woodbury
