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EXHIBIT 10.09
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is entered into as of the 9th
day of November, 1998, by and among INTERNET CENTURY, INC., a Nevada corporation
(the "Company") and XXXXXXX XXXXXXXXXXX ("Xxxxxxxxxxx").
WHEREAS, the Company desires to employ Xxxxxxxxxxx as provided herein;
and,
WHEREAS, Xxxxxxxxxxx desires to accept such employment,
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT. The Company hereby employs Xxxxxxxxxxx and Xxxxxxxxxxx
hereby accepts employment with the Company as a Programer upon the terms and
conditions hereinafter set forth.
2. DUTIES. Xxxxxxxxxxx will serve the Company as a Programer and will
faithfully and diligently perform the services and functions relating to such
position or otherwise reasonably incident to such position, provided that all
such services and functions will be reasonable and within Xxxxxxxxxxx'x area of
expertise. Xxxxxxxxxxx'x specific duties shall include those related to those of
a Programer and such other duties as the Company may reasonably direct.
Xxxxxxxxxxx will, during the term of this Agreement (or any extension thereof),
devote his time, attention and skills and best efforts as a full time employee
to the promotion of the business of the Company.
3. TERM. This Agreement and Xxxxxxxxxxx'x employment shall commence on
the 9th day of November, 1998, (the "Effective Date") and shall continue for a
term of two years ("Initial Term") unless terminated earlier in accordance with
this Agreement. The term of this Agreement may be extended by agreement of the
Company and Xxxxxxxxxxx.
4. COMPENSATION. As compensation for the services rendered to the
Company under this Agreement commencing on the Effective Date hereof,
Xxxxxxxxxxx will be paid a base salary of Sixty Five Thousand dollars ($65,000)
per year, payable in accordance with the then current payroll policies of the
Company or as otherwise agreed to by the parties (the "Salary"). At any time and
from time to time, the Salary may be increased if so determined by the Company's
board of directors after a review of Xxxxxxxxxxx'x performance of his duties
hereunder.
5. TERMINATION. This Agreement will terminate upon the occurrence of
any of the following events:
a. The death of Xxxxxxxxxxx;
b. The "Total Disability" (as hereinafter defined) of
Xxxxxxxxxxx;
c. Written notice to Xxxxxxxxxxx from the Company of termination
for "Cause" (as hereinafter defined);
d. The voluntary termination of this Agreement by Xxxxxxxxxxx
upon thirty (30) days prior written notice;
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e. The later of two (2) years from the Effective Date of this
Agreement or the date to which this Agreement is extended in
accordance with Section 3 above; or
f. Written notice to Xxxxxxxxxxx from the Company for any reason
without "Cause".
For purposes of Section 5b, the term "Total Disability" means physical
or mental disability, or both, determined to be (or reasonably expected to be,
based upon then available medical information) of not less than twelve (12)
months duration or more. The determination shall rest upon the opinion of the
physician regularly attending Xxxxxxxxxxx. If the Company disagrees with said
physician's opinion, the Company may engage at their own expense a physician to
examine the Xxxxxxxxxxx, and Xxxxxxxxxxx hereby consents to such examination and
to waive, if applicable any privilege between the physician and Xxxxxxxxxxx that
may arise as a result of said examination. If after conferring, the two
physicians cannot concur on a final opinion, they shall choose a third
consulting physician whose opinion shall control. The expense of the third
consulting physician shall be borne equally by the Xxxxxxxxxxx and the Company.
For purposes of Section 5c, "Cause" means (i) Xxxxxxxxxxx has failed to
substantially perform his duties as reasonably determined by any Officer of the
Company or the Board of Directors of the Company, (ii) Xxxxxxxxxxx engages in
poor performance that is not cured within thirty (30) days after counseling by
the Company, (iii) Xxxxxxxxxxx has failed to comply with the reasonable
directives and policies of the Board of Directors of the Company or of any
Officer of the Company, or (iv) Xxxxxxxxxxx breaches his fiduciary duty to the
Company or commits any dishonest, unethical, fraudulent, or felonious act in
respect to Xxxxxxxxxxx'x duties to the Company.
6. BENEFITS. Xxxxxxxxxxx shall be entitled to receive any benefits,
including health insurance, life insurance, vacation time, etc., which are
normal and customary Company benefits for a like position.
7. LOAN. The Company will loan to Xxxxxxxxxxx up to Five Thousand
dollars ($5,000) with Two Thousand Five Hundred Dollars ($2,500) to be loaned
and disbursed on the Effective Date and the remaining Two Thousand Five Hundred
($2,500) to be loaned and disbursed thirty (30) days from the Effective Date.
All amounts loaned will be evidenced by a promissory note with interest at 10%
per annum and with all principal and accrued but unpaid interest due one (1)
year from the Effective Date if not sooner paid. The Company agrees that if
Xxxxxxxxxxx has been employed by the Company for six continuous months from the
Effective Date, 50% of the principal balance and accrued but unpaid interest
shall be forgiven and, if Xxxxxxxxxxx has been employed by the Company for an
additional six continuous months for a total of twelve continuous months of
employment by the Company, then the remaining principal balance and accrued, but
unpaid interest shall be forgiven by the Company and the Note evidencing such
loan shall be canceled.
8. NON-COMPETITION AND CONFIDENTIALITY.
a. Non-Competition. Xxxxxxxxxxx agrees that during the term of this
Agreement, Xxxxxxxxxxx will not (1) enter into any agreement with or directly or
indirectly solicit or attempt to solicit any employee or other representatives
of the Company (the "Company") for the purpose of causing them to leave the
Company to take employment with any other business entity, or (2) compete,
directly or indirectly, with the Company in any way and that Xxxxxxxxxxx will
not act as an officer, director, employee, consultant, shareholder, lender or
agent of any entity engaged in any business of the same nature as, or in
competition with, the business in which the Company is now engaged except for
the ownership of less than five percent
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(5%) of the outstanding capital stock of a publicly traded company. Restrictions
regarding competition by Xxxxxxxxxxx shall only apply to competing businesses or
entities that operate in the continental United States.
b. Confidentiality.
(1) Xxxxxxxxxxx acknowledges that in Xxxxxxxxxxx'x employment
hereunder, Xxxxxxxxxxx will be making use of, acquiring and adding to the
Company's trade secrets and its confidential and proprietary information of a
special and unique nature and value relating to such matters as, but not limited
to, the Company's business operations, internal structure, financial affairs,
programs, software systems, procedures, manuals, confidential reports, lists of
clients and prospective clients and sales and marketing methods, as well as the
amount, nature and type of services, equipment and methods used and preferred by
the Company's clients and the fees paid by such clients, all of which shall be
deemed to be confidential information. Xxxxxxxxxxx acknowledges that such
confidential information has been and will continue to be of central importance
to the business of the Company and that disclosure of it to or its use by others
could cause substantial loss to the Company. In consideration of employment by
the Company, Xxxxxxxxxxx agrees that during the Initial Term and any renewal
term of this Agreement and upon and after leaving the employ of the Company for
any reason whatsoever, Xxxxxxxxxxx shall not, for any purpose whatsoever,
directly or indirectly, divulge or disclose to any person or entity any of such
confidential information which was obtained by Xxxxxxxxxxx as a result of the
Xxxxxxxxxxx'x employment with the Company or any trade secrets of the Company,
but shall hold all of the same confidential and inviolate.
(2) All contracts, agreements, financial books, records,
instruments and documents; client lists; memoranda; data; reports; programs;
software, tapes; Rolodexes; telephone and address books; letters; research; card
decks; listings; programming; and any other instruments, records or documents
relating or pertaining to clients serviced by the Company or Xxxxxxxxxxx, the
services rendered by Xxxxxxxxxxx, or the business of the Company (collectively,
the "Records") shall at all times be and remain the property of the Company.
Upon termination of this Agreement and Xxxxxxxxxxx'x employment under this
Agreement for any reason whatsoever, Xxxxxxxxxxx shall return to the Company all
Records (whether furnished by the Company or prepared by Xxxxxxxxxxx, and
Xxxxxxxxxxx shall neither make nor retain any copies of any of such Records
after such termination.
(3) All inventions and other creations, whether or not
patentable or copyrightable, and all ideas, reports and other creative works,
including, without limitation, computer programs, manuals and related materials,
made or conceived in whole or in part by Xxxxxxxxxxx while employed by the
Company and within one year thereafter, which relate in any manner whatsoever to
the business, existing or proposed, of the Company or any other business or
research or development effort in which the Company or any of its subsidiaries
or affiliates engages during Xxxxxxxxxxx'x employment by the Company will be
disclosed promptly by Xxxxxxxxxxx to the Company and shall be the sole and
exclusive property of the Company. All copyrightable works created by
Xxxxxxxxxxx and covered by this Section 8b(3) shall be deemed to be works for
hire. Xxxxxxxxxxx shall cooperate with the Company in patenting or copyrighting
all such inventions, ideas, reports and other creative works, shall execute,
acknowledge, seal and deliver all documents tendered by the Company to evidence
its ownership thereof through the world, and shall cooperate with the Company
obtaining, defending and enforcing its rights therein.
c. Enforceability. In the event of the breach of the covenants
contained in this Section 8, it is understood that damages will be difficult to
ascertain and the Company may petition a court of law or
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equity for injunctive relief in addition to any other relief which the Company
may have under the law, this Agreement or any other agreement executed in
connection herewith. In connection with the bringing of any legal or equitable
action for the enforcement of this Agreement, the Company shall be entitled to
recover, whether the Company seeks equitable relief, and regardless of what
relief is afforded, such reasonable attorneys' fees and expenses as the Company
may incur in prosecution of the Company's claim for breach hereof.
It is hereby agreed that the provisions of this Section 8 are separate
and independent from the other provisions of this Agreement, that these
provisions are specifically enforceable by the Company notwithstanding any claim
by Xxxxxxxxxxx that the Company has violated or breached this Agreement or any
claim that Xxxxxxxxxxx is entitled to any offset or compensation.
To induce the Company to enter into this Agreement, Xxxxxxxxxxx
represents and warrants to the Company that Section 8 of this Agreement is
enforceable by the Company in accordance with its terms.
9. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
10. NOTICES. Any notices, consents, demands, request, approvals and
other communications to be given under this Agreement by either party to the
other will be deemed to have been duly given if given in writing and personally
delivered, faxed or if sent by mail, registered or certified, postage prepaid
with return receipt requested, as follows:
If to the Company: Internet Century, Inc.
One Arizona Center
000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
If to Xxxxxxxxxxx: Xxxxxxx Xxxxxxxxxxx
0000 X. Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Notices delivered personally will be deemed communicated as of actual receipt,
notices by fax shall be deemed delivered when such notices are faxed to
recipient's fax number and notices by mail shall be deemed delivered when
mailed.
11. ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understanding, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
12. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
this Agreement, such provision will be fully severable and this Agreement will
be construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions hereof will remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there will be added
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automatically, as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
13. GOVERNING LAW. To the extent permitted by applicable law, this
Agreement and the rights and obligations of the parties will be governed by and
construed and enforced exclusively in accordance with the substantive laws (but
not the rules governing conflicts of laws) of the State of Arizona and the State
of Arizona shall have exclusive jurisdiction regarding any legal actions
relating to this Agreement.
14. CAPTIONS. The captions in this Agreement are for convenience of
reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
15. GENDER AND NUMBER. When the context requires, the gender of all
words used herein will include the masculine, feminine and neuter, and the
number of all words will include the singular and plural.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE COMPANY:
INTERNET CENTURY, INC., a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, Chief Financial Officer
XXXXXXXXXXX:
/s/ Xxxxxxx Xxxxxxxxxxx
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Xxxxxxx Xxxxxxxxxxx
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