EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("AGREEMENT") made as of September
22, 2005 (the "EFFECTIVE DATE"), by and between Xxxxxxxx.xxx, Inc., a Nevada
corporation, having its principal office at 0000 Xxxxx-Xxxxxxxxxxxx Xxxx, Xxxxx
000, Xxxxx, XX 00000 ("EMPLOYER") or ("COMPANY"), and Xxxxxxxxx X. Xxxxxx,
residing at 00000 Xxxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000 ("EXECUTIVE").
WITNESSETH
WHEREAS, Employer is a publicly traded company currently listed on the
OTC:BB and in the business, through a recent merger with IPv6, Summit, Inc., of
developing high-technology involving the next generation of the Internet and
related technologies;
WHEREAS, Executive is skilled as a manager of consulting services
specializing in government and commercial operations; and
WHEREAS, Employer desires to employ Executive, and Executive desires to
be employed by Employer, to perform the services set forth herein.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained, the parties hereby
agree as follows:
1. EMPLOYMENT.
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Employer hereby employs Executive, and Executive accepts employment
with Employer, pursuant to the terms and conditions of this Agreement.
2. POSITION AND TITLE; DUTIES.
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A. During the TERM (as hereinafter defined), Executive shall have the
position and title of VICE PRESIDENT OF CONSULTING to Employer reporting
directly to the Company CEO. In such capacity, Executive shall perform the
following duties, during the Term and on a full-time priority basis:
(i) Participate in the planning of Employer's strategic and
business plans;
(ii) Be responsible for overseeing, implementing and managing
all of the Employer's consulting services;
(iii) Manage the Employer's Consulting division which shall
provide consulting services to government and private sectors;
(iv) Be responsible for opening and overseeing the Employer's
Virginia offices;
(v) Be responsible for opening and overseeing the Employer's
East Coast operations, specifically building an IPv6-based consulting
practice which will be intended to support both Government and private
commercial clientele; and
(vi) Perform such other duties as are reasonably associated
with such position and such other duties consistent therewith as may
reasonably be requested by Employer to ensure that Employer provides
consistent, quality services and work product to its clientele.
B. Executive shall notify Employer in writing promptly, but in no event
later than five (5) days, after Executive has received notice of any of the
following:
(i) Executive becomes the subject of a disciplinary proceeding
or action, or the subject of any investigation, sanction or similar
action by any federal, state or private peer review organization or
agency, or the subject of an audit or similar proceeding by any
government organization; or
(ii) any event occurs that substantially interrupts all or a
portion of Executive's ability to perform hereunder or that materially
adversely affects Executive's ability to perform his duties under this
Agreement.
C. Executive shall devote full-time, exclusive efforts to Employer,
thereby providing sufficient time, attention, knowledge, skill and energy to the
business and affairs of the Employer throughout the Term and as necessary to
fulfill his obligations hereunder, and shall use his best efforts and abilities
to promote the Employer's interests and as necessary to fulfill his obligations
hereunder.
3. COMPENSATION.
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A. Executive is deemed to be an employee of Employer for all purposes
as provided by law, including for purposes of federal law and for purposes of
state law related to taxes unemployment compensation, salary, benefits, and
workers' compensation. As compensation for services rendered by Executive while
employed hereunder, Employer will pay Executive the compensation set forth
below:
(i) During the TERM, the Employer shall pay Executive the
SALARY of One Hundred and Fifty Thousand Dollars ($150,000) per annum
as compensation (the "COMPENSATION"). The Compensation shall be paid in
regular bi-weekly payments, in accordance with Employer's salary
payment procedures as in effect from time to time. The Compensation
shall be subject to withholding and deductions for all applicable
taxes. In addition, Employer shall provide Executive a BONUS PACKAGE of
compensation during the Initial Term as follows:
(1) A performance target bonus equal to a maximum of
thirty-five percent (35%) of the total cash value of each
annual salary paid to Executive ("Target Bonus") and
determined solely at the election of the Board of Directors of
Employer or such Compensation Committee as may be established
by Employer and as calculated by such determining body on or
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about December 31 of each year worked by Executive. It is
understood that fifty-seven percent (57%) of any such Target
Bonus may be taken in the form of cash and the balance of such
Target Bonus taken in the form of common stock by Executive
and pro rata depending on the actual Target Bonus issued by
the Employer in any given Tern. The Target Bonus shall be
based on annual goal attainment as set by the Employer for
both Executive and the Company.
(ii) During any Renewal Term, Executive will be paid
salary Compensation and Bonus as may be mutually agreed by the
parties.
(iii) Commencing on the effective date of the
Employer's Stock Option Plan, Executive shall be eligible to
be issued options to purchase 200,000 RESTRICTED COMMON STOCK
SHARES of the Company ("Options"). Such Options shall have an
exercise price equal to the last trade price of INFN.ob on the
date of execution hereof. The Options shall vest over a THREE
(3) YEAR TERM in equal monthly installments commencing with
twenty-five percent (25%) of such Options vesting on the date
of execution hereof and twenty-five percent (25%) of such
Options vesting on each successive anniversary hereof assuming
this Agreement is not terminated prior to the commencement of
any annual period. Any and all such Option vesting shall
accelerate should Executive be terminated for any reason other
than for cause as defined herein or upon mutual agreement of
the parties.
(iv) Employer shall make available to the Executive
employee benefits of the type Employer generally makes
available to the other executive officers of Employer.
4. VACATION TIME.
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For the Term, Executive shall be entitled to two (2) weeks of paid time
off per contract year for vacation and one week for sick leave time
(collectively "PTO"). Thereafter, Executive shall be entitled to the amount of
PTO for vacation, sick leave as may be made available by Employer to other
persons similarly employed by it in positions and with seniority similar to that
of Executive.
5. REIMBURSEMENT OF EXPENSES.
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Employer shall pay directly, or shall reimburse Executive upon
presentation of an itemized accounting for, the following reasonable expenses as
reasonably and in good faith approved in advance by Employer in accordance with
Employer's policies and procedures then in effect:
A. Costs of membership in, and subscription expenses for publications
of, generally recognized professional organizations in which Executive is or may
become a member, as well as the cost of journals, books, and other educational
material reasonably related to the duties performed by Executive hereunder, as
reasonably approved by Employer;
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B. Costs of transportation, room, and board and other expenses related
to Executive's performance hereunder, as reasonably approved by Employer and
including travel arrangements for travel outside the continental United States
and as afforded other key executives of the Company; and
C. All other reasonable expenses incurred by Executive in connection
with the performance of his duties under this Agreement, including expenses for
entertainment and similar items.
D. Reimbursement of any and all reasonable health insurance premiums
for Executive and his family, not to exceed $370 per month, commencing on the
execution hereof and so long as this Agreement is in effect.
6. TERM, RENEWAL, SUSPENSION OR TERMINATION.
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A. Unless terminated earlier pursuant to the provisions hereof, this
Agreement and Executive's employment hereunder shall commence on the Effective
Date and continue for a minimum of one (1) year ("Term") and shall renew
thereafter for a period of one (1) year on each anniversary of the Effective
Date (each, a "RENEWAL TERM") unless written notice of the non-renewal has been
given by one party to the other party no later than sixty (60) days prior to the
end of the then-current Term ("Notice Period"). Either Employer or Executive may
terminate this Agreement at any time without cause upon sixty (60) days notice
to the other party provided Executive is paid any and all compensation due to
him on termination.
B. Employer may terminate this Agreement upon written notice to
Executive at anytime "for cause" if-
(i) Executive engages in acts of proven fraudulent
conduct;
(ii) Executive is convicted of a felony;
(iii) Executive fails to materially perform hereunder.
C. This Agreement shall terminate upon the death of Executive. Employer
may terminate this Agreement upon written notice to Executive or his personal
representative at anytime for the disability (as hereinafter defined) of the
Executive. For all purposes of this Agreement, "disability" shall mean temporary
or permanent incapacity, physical or mental, which results in Executive's being
unable to perform the requirements of his position hereunder for a continuous
period in excess of two (2) months.
D. Upon termination of this Agreement, Employer shall pay Executive all
Compensation and any Bonus earned but not yet paid as of the date of
termination. If this Agreement is terminated without cause, then Employer shall
pay Executive any and all compensation due hereunder plus all Options vested in
full.
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7. RESTRICTIVE COVENANTS.
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A. During the term of this Agreement and any renewal period thereof and
for a period of one (1) year following the date of expiration or termination of
this Agreement, Executive shall not:
(i) Directly or indirectly attempt to solicit or solicit the
Employer's employees to terminate, curtail or restrict their
relationship with Employer;
(ii) Directly or indirectly attempt to solicit or solicit any
person employed or contracted by Employer to leave their employment or
not fulfill their contractual responsibility, whether or not the
employment or contractual arrangement is full-time or temporary,
pursuant to a written or oral agreement, or for a determined period or
at will; or
(iii) Directly or indirectly employ any person employed or
contracted by Employer as of the date of expiration or termination of
this Agreement, whether or not the employment or contractual
arrangement is full-time or temporary, pursuant to a written or oral
agreement, or for a determined period or at will.
B. Executive shall keep and maintain confidential at all times, during
the Term and thereafter, all trade secrets or confidential or proprietary
information of Employer, including but not limited to lists, data, know-how,
technology, strategy and the terms and conditions of this Agreement (and all
agreements and documents associated herewith) and shall not disclose the same to
any third persons or entities whomsoever, except to Executive's legal counsel
and accountants, and except as otherwise required by law, and Executive shall
not use the same for personal gain.
C. The provisions of this SECTION 7, as well as all remedial provisions
contained in this Agreement and related thereto, shall expressly survive the
termination of this Agreement.
8. MISCELLANEOUS.
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A. Any notice, consent, or other communication which either party
hereto is required or permitted to give to the other party shall be deemed duly
given if in writing and if delivered personally, sent by registered or certified
mail, return receipt requested, or by overnight delivery by a nationally
recognized courier, to the recipient at his or its address first stated above or
at such other address of which he or it shall have given the other party due
notice hereunder. All notices duly given hereunder shall be deemed effective (a)
upon delivery if delivered personally, (b) forty-eight (48) hours after posting
if mailed, or (c) the next business day if delivered by nationally recognized
overnight courier service.
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B. The failure of either party hereto to insist in any one or more
instances upon the performance of any of the terms and conditions of this
Agreement shall not be construed as a waiver or relinquishment of any right
granted hereunder, or of the future performance of any such term or condition.
C. Executive acknowledges that all files, records, lists, books,
records, literature, products, computer hardware and software, cellular
telephone and other materials owned by Employer or used by it in connection with
the conduct of its business shall at all times remain the property of Employer
as appropriate, and that upon termination of this Agreement, irrespective of the
time manner, or cause of such termination, Executive will surrender to Employer
as appropriate, all such files, records, lists, books, records, and other items
of value, including but not limited to computer hardware and software, cellular
telephone, etc.; provided, however, that upon Executive's termination of
employment, he shall, at his own expense, be entitled to copy the records of any
legal matter of the Company. The provisions of this Section shall expressly
survive the termination of this Agreement.
D. This Agreement shall be binding upon and inure to the benefit of the
successors, assigns, personal representatives, heirs, and legatees of the
respective parties hereto. Executive acknowledges that this is an agreement to
retain his personal services and, as such, Executive may not assign his rights
under this Agreement. The parties hereby agree that Employer may, with the
consent of Executive and upon assignment terms as may be required by Employer,
assign this Agreement in whole or in part to any affiliate of Employer or any
party that acquires all or substantially all of the assets of Employer.
E. No modification or amendment of this Agreement shall be binding
unless in writing add signed by the parties hereto.
F. Any and all disputes arising out of, under, in connection with, or
in relation to this Agreement shall be settled by arbitration in Los Angeles,
California, utilizing JAMS in accordance with its rules and for which judgment
upon any award rendered may be entered in any court having jurisdiction thereof.
Any designated JAMS arbitrator shall be familiar with the corporate legal
profession and such dispute resolution.
G. This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada.
H. Notwithstanding anything herein contained to the contrary,
Executive, unless directed to do so by Employer, shall not have the right to
enter into any material contracts or commitments for or on behalf of Employer
without prior consent of Employer.
I. Neither party shall be liable or be deemed in default of this
Agreement for any delay or failure to perform caused by Acts of God, war,
disasters, strikes, or any similar cause beyond the control of either party.
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J. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
K. This Agreement supersedes all previous contracts and constitutes the
entire agreement between the parties including that certain offer letter to
Executive dated September 1, 2005 and related emails issued by the parties, said
payment under which shall have been deemed fully earned as pursuant to invoice.
Executive specifically acknowledges that in entering into and executing this
Agreement, Executive relies solely upon the representations and agreements
contained in this Agreement and no others.
L. Employer and Executive are the mutual drafters of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on and as of the day and year first above written.
EMPLOYER: XXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Its: CEO
EXECUTIVE:
By: /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx
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