EXHIBIT 10.46
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT is made as of June 27, 2001 between, InfoCast
Corporation ("InfoCast"), and Xxxxxxx X. Xxxx ("Xxxx").
WITNESSETH:
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Whereas, InfoCast desires to have the services of and Xxxx for his expertise in
the disciplines of executive management, strategy, technology, operations, and
other matters of importance to InfoCast, and Xxxx willing to provide their
expertise and capabilities in those matters in return for consideration detailed
within this Agreement.
NOW, THEREFORE, the Company, InfoCast, and Xxxx agree as follows:
1. Executive Management. Xxxxxxx X. Xxxx ("Xxxx"), will serve as
Chairman of the Board and Chief Executive Officer of InfoCast for
the term of this Agreement. In this capacity, Xxxx will be required
to provide a broad range of services typical for a position of this
type, including directing the activities of the senior management of
InfoCast, devising and directing the implementation of business
strategy, working to establish relationships with strategic partners
of all types on a global basis, assisting in fund raising
activities, and involvement in all other activities incidental to
the position, all subject to the following conditions:
(a) In his role as Chairman and Chief Executive Officer of
InfoCast, Xxxx shall be required to participate in the
day-to-day operations of InfoCast. He will reside in
Tucson, Arizona. Xxxx agrees to spend whatever time is
necessary at the headquarters office of InfoCast, or its
other operating locations to perform the duties of his
position.
(b) Xxxx also agrees to undertake whatever business travel
is necessary for the performance of his duties, subject
to InfoCast's obligation to reimburse Xxxx for all
legitimate business expenses incurred and for which
adequate documentation is provided.
(c) Notwithstanding his obligations under this Agreement,
Xxxx shall not be precluded from limited involvement in
other business activities unrelated to InfoCast. These
activities will be reviewed with and approved by the
Executive Committee InfoCast's Board of Directors.
(d) InfoCast shall provide Xxxx with adequate liability
indemnification and insurance, protecting him from
liability in his roles as Chairman and Chief Executive
Officer of InfoCast.
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2. Compensation for Services. In return for the services provided by
Xxxx under this Agreement, InfoCast hereby agrees to the following:
(a) InfoCast shall pay a monthly salary to Xxxx during the
term of this Agreement. Such fee shall be payable on the
fifteenth day of each month, commencing July 15, 2001.
Each monthly payment shall be for $39,500 in U.S.
currency. Appropriate withholding and reporting will be
handled by the company.
(b) InfoCast shall reimburse to Xxxx all expenses incurred
in fulfillment of this position, including all
reasonable travel expenses, subject to provision of all
appropriate receipts and other documentation required by
InfoCast in accordance with its existing expense
reimbursement policies.
(c) InfoCast shall provide to Xxxx the services of a
Secretary to be located at the offices of InfoCast
Corporation in Tucson, Arizona.
(d) Upon the establishment by InfoCast of a medical benefits
program to be available to all of its U. S. based
employees, Xxxx shall be offered medical benefits under
the program during the term of this Agreement. The cost
of providing such benefits shall be borne by InfoCast.
(e) Xxxx shall be granted options to purchase 1.5M shares of
InfoCast common stock; 500K options vested to Xxxx on
March 5, 2001, an additional 500K options shall vest on
January 1, 2002, and the remaining 500K options will be
vested to Xxxx on January 1, 2003. The options shall
allow for exercise at a price of $1.00 per share of
common stock, payable by Xxxx upon date of exercise.
Each set of options shall be exercisable for a period of
five years from the date they may be first exercised.
InfoCast agrees to enter into a definitive option
agreement with Xxxx which shall detail all terms and
conditions of the option grant and the exercise rights
thereunder. Xxxx and InfoCast agree to negotiate in good
faith to execute such option agreement within 90 days of
the date of this Agreement. In the case of a change in
control for InfoCast, all stock options will vest
immediately.
(f) InfoCast agrees to extend credit to Xxxx in the form of
a $200,000 non-interest bearing loan, the proceeds of
which will be utilized to purchase common shares of
InfoCast. This loan shall be extended, and the purchase
of InfoCast common shares completed by July 27, 2001,
and Xxxx and InfoCast shall execute such legal
documentation, including a promissory note, necessary to
complete this transaction. The loan will be for a period
of 24 months from the date of its creation, and shall be
payable upon the earlier of maturity, or the sale of the
InfoCast common shares acquired with the loan proceeds.
The terms of the common stock purchases effected via the
loan proceeds shall be identical to those offered to
other
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investors in InfoCast on the date of this Agreement (one
share of InfoCast stock and one-half of a warrant to
purchase one share of InfoCast stock at an exercise
price of $0.75, with the total purchase price for each
of these "units" being $0.50).
(g) The InfoCast Executive Committee of the Board can at its
discretion create an incentive program for Xxxx
conditioned on achievement of pre-arranged goals or in
recognition of significant business accomplishment.
3. Term of Agreement. This Agreement shall remain in force through
March 15, 2003, unless terminated earlier by either party, which
termination may occur only upon the expiration of a period of 30
days after which termination notice has been given by the party
wishing to terminate. In the event of termination by Xxxx, Xxxx will
be entitled to keep all options for the purchase of InfoCast common
shares which are vested in accordance with the schedule described in
Section 2(e) of this Agreement. Upon such voluntary termination by
Xxxx, the loan extended to Xxxx by InfoCast as described in Section
2(f) of this Agreement shall be immediately due and payable. Upon
termination of this agreement by InfoCast for any reason other than
the gross negligence or willful misconduct of Xxxx, InfoCast will be
obligated to continue paying the monthly management services fee for
a period of six months beyond the date of such termination. Upon
such termination by InfoCast, Xxxx will be entitled to keep all
options to purchase InfoCast common stock which have been vested in
accordance with the schedule defined in Section 2(e) of this
Agreement. Xxxx will not be obligated to repay the loan described in
Section 2(f) of this Agreement until its state maturity date.
4. Death or Disability. If Xxxx were to die or become permanently
disabled, his family would receive the benefit of his acquired
shares (without repayment of loan) in section f, and the right to
the vested options at the date of such occurrence.
5. Notice. Any notice, request, demand, or instruction required or
desired to be given hereunder by either party hereto to the other
shall be in writing and shall be delivered personally or sent by
registered or certified mail, postage prepaid, as follows:
(a) If to InfoCast:
Xx. Xxx Xxxxxxx
InfoCast Corporation
0 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
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(b) If Xxxx:
Xx. Xxxxxxx X. Xxxx
5201 Hacienda del sol
Xxxxxx, Xxxxxxx 00000
6. Waiver; Validity. The waiver by any of the parties hereto of a
breach of any provision of this agreement by either of the other
parties shall not be construed as a waiver of any subsequent breach
by such other party. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or
enforceability of any other provision.
7. Binding Effect. Except as otherwise expressly provided herein, this
Agreement shall inure to the benefit of and be binding upon each
party and its respective successors and assigns (including but not
limited to any corporation or entity which may acquire all or
substantially all of the assets or business of any of the parties or
with or into which party may be consolidated or merged); provided
that the rights and obligations of any of the parties to this
Agreement may not be assigned without the prior written consent of
each party.
8. Applicable Law. This Agreement shall be governed by the laws of the
State of Arizona, without giving effect to the principles of
conflicts of laws thereof.
9. Amendments. This Agreement shall not be subject to change or
modification except by the execution of a written amendment by all
parties hereto.
10. Counterparts. This Agreement may be executed in any number of
counterparts by any of the parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be an original,
but all such counterparts shall together constitute one and the same
instrument. One or more counterparts of this agreement may be
delivered by facsimile, with the intention that delivery by such
means shall have the same effect as delivery of an original
counterpart.
IN WITNESS WHEREOF, this Management Services Agreement has been executed
by the parties hereto all as of the date first above written.
InfoCast Corporation Xxxxxxx X. Xxxx
By:
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Its: Date:
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Date:
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