EMPLOYMENT AGREEMENT
THIS AGREEMENT made this 14th day of January, 2000, by and between FutureOne,
Inc., a Nevada corporation (hereinafter called "Company") and Xxxxx Xxxxx
(hereinafter called "Employee") shall be effective as of December 6, 1999.
RECITALS:
WHEREAS, the Company, located in Phoenix, Arizona 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 Vice President of Finance.
a. Perform all duties as Vice President of Finance of the Company, to
supervise the management of the day to day financial affairs of the
Company and all of its subsidiaries, including preparation of
financial statements, payment of invoices, billing and collections,
payroll preparation and preparation of other financial reports, and to
carry out any other duties assigned to him by the President of the
Company. Coordinate audits of the Company's books, by the Company's
auditors, filings with the SEC and other government agencies, and
preparation and filing of tax returns.
2. PERFORMANCE. Employee agrees to devote reasonable 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 President 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.
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 Eighty Thousand & 00/100 Dollars ($80,000), which
shall be payable in equal installments based on the Company's normal
pay periods.
b. Employee shall also be issued stock options for Thirty Thousand
(30,000) shares of common stock of FutureOne at $1 to vest equally
over three years and expiring in 10 years as additional consideration
that may be earned under this Agreement. Such stock when issued will
be "Restricted" as that term is defined under the Securities Act of
1933 as amended and shall be earned and vest only under the following
terms and schedule:
Percent
Period Exercisable
------ -----------
Before the first anniversary of Grant Date 0%
On or after the first anniversary of the Grant Date
And before the second anniversary of the Grant Date 33 1/3%
On or after the second anniversary of the Grant Date
And before the third anniversary of the Grant Date 66 2/3%
On or after the third anniversary of the Grant Date 100%
If Employee is not employed by the Company for any reason on any of
the above dates and this Agreement has been terminated under any
provision of Section 7 of this Agreement before any of the above
dates, then the Employee shall not be entitled to any of the remaining
Options, that have not been earned and vested according to the above
schedule and FutureOne shall cancel such options on the books of the
corporation.
Employee hereby agrees that any of the above referenced stock
certificates that have not been earned and vested shall be held by
FutureOne and shall be delivered to Employee only on the vesting dates
shown above and only if Employee has met all of the terms of this
Agreement to that date and is still employed by the Company on that
date.
c. Employee shall be eligible to receive a management bonus as defined
below.
1) Bonus upon the Company obtaining funds in an equity or debt
offering. The Bonus shall be either $15,000 cash or 10,000 shares
of restricted common stock, or any combination thereof, with
employee having the sole discretion to choose the form of payment
by giving the Company written notice within ten (10) days of the
offering funds being received by the Company.
Bonus provision at the end of the first year for additional
options (vesting over three years) to purchase Ten Thousand
(10,000) shares of the Company's restricted common stock at $1
upon meeting certain defined objectives, which shall be mutually
agreed upon by the Employee, the President and the Chairman of
the Board.
d. Employees 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 executive employees and agrees that
Employee will be covered by any such plans adopted by FutureOne 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 Employees death
or upon the expiration of the term of this Agreement and the Company
shall be obligated, in either event, to pay Employee his annual
salary, 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 Thirty (30)
consecutive days; and the Company shall be obligated, in that event,
to pay Employee his annual salary, a prorated bonus and benefits
actually due up to the date of disability.
c. EMPLOYEE NOTICE. At the election of Employee upon fifteen (15) days
written notice to Company and the Company shall only be obligated, in
that event, to pay Employee their normal compensation up to the actual
date of termination 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 his annual salary, a prorated bonus and benefits actually
due Employee up to such date of termination as hereby invoked by the
Company.
d. WITHOUT CAUSE. Company may terminate without cause and for any reason
Employee's employment upon fifteen (15) days written notice to
Employee. If 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. If there
is a substantial change in ownership or control and Employee is
thereafter terminated, without cause, within 180 days of such change,
Employee shall be paid an additional severance amount equal to six
months salary, based on Employee's salary at the time 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) willful, malicious and grossly negligent acts by
Employee having the effect or causing significant harm to the business
interests of The Company; (ii) the failure of Employee to devote
reasonable 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 compensation, and benefits earned or 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 as breach of this Agreement. The Company shall have five (5)
business days following receipt of such written notice of said
material breach to cure such breach. If said breach is not cured by
the Company within such time period than 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 business engaged in by the Company, the Company's
subsidiaries or affiliates, either directly or indirectly, or compete in
any other way with the business opportunities of any of these entities, for
any period that he is receiving any compensation from the Company under
this Agreement and not less than one (1) years 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 options and or cash, in
exchange for this Agreement. The Parties agree that in the event that
Employee is terminated from employment by the Company, this provision shall
not be construed so as to prevent Employee from accepting employment in any
position that does not involve soliciting the existing clients of the
Company.
9. PROPRIETARY INFORMATION. Employee shall treat as information proprietary to
the Company 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 the Company and no amount of
monetary damages can adequately compensate the Company for the injury that
would be caused by said breach. Accordingly, Employee hereby stipulates
that should the Company have a good faith reason to believe that Employee
is breaching or taking steps to breach any material provision of this
Agreement then the Company 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.
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 American Arbitration Association.
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.
If to the Company If to Employee
----------------- --------------
4250 East Camelback 0000 Xxxx Xxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Fax: 000-000-0000 Fax:__________________
All such notices shall be deemed to have been duly given:
when delivered, by hand if 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.
20. 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.
21. 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.
22. 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.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the Company and Employee have duly executed this Agreement
this ____ day of ________, 1999.
FutureOne, Inc. Employee
/s/ Xxxx X. Xxxx /s/ Xxxxx Xxxxx
------------------------------- -------------------------------
By: Xxxx X. Xxxx Xxxxx Xxxxx
Its: President/CEO
