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Exhibit 6.3
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made this 27th day of July 1998, , by and between World's Fare,
Inc. dba FutureOne, a Nevada corporation, and FutureOne, Inc., an Arizona
corporation, (hereinafter jointly called "Company") and Xxxx X. Xxxx
(hereinafter called "Employee") shall be effective as of July 26, 1998
RECITALS:
WHEREAS, The Company, located in Phoenix Arizona, is a full service
communications company providing Internet access, Website development and
hosting, custom software development, computer sales and services and
communications and networking solutions; and
WHEREAS, The Company was co-founded by Employee and Employee has performed
services for the Company and served as its Executive Vice President and member
of the Board of Directors since its inception.
WHEREAS, The Employee has previously performed services for the Company for a
portion of the time with no compensation and for a period of time at
compensation below the fair market value of his services.
WHEREAS, The Employee was willing to perform services under this arrangement
because Employee believed it was in the best interest of the Company to conserve
cash flow in a start up environment and with the understanding that Employee
would be fairly compensated when the Company was able to pay fair compensation.
WHEREAS, The Company, now desires to enter into a permanent employment
relationship with Employee pursuant to the terms and conditions set forth
herein; and
WHEREAS, Employee is willing to accept such permanent 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 Executive Vice President and Chief Operating
Officer of the Company.
a. Carry out all of the functions as Executive Vice President and Chief
Operating Officer as defined in the By-laws of the Company and other
duties as established by the President and Board of Directors.
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 President and Board of Directors
of the Company.
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3. TERM. Except as provided in Section 7 below, the term of this Contract
shall be five (5) 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 six (6) months prior to the automatic
renewal date, of their intention not to renew this Agreement.
4. COMPENSATION.
a. ANNUAL SALARY. In consideration for the services to be rendered by
Employee in his capacity hereunder, the Company agrees to pay
Employee an initial annual salary of Eighty Thousand & 00/100
dollars ($80,000.00).
b. DIRECTORS FEES. In addition Employee shall be paid any fees paid to
members of the Board of Directors as established by the Board of
Directors as long as he is a member of the Board of Directors.
c. PERFORMANCE BONUSES. Employee is responsible for Company
profitability, developing new product lines and services, corporate
growth through acquisitions and raising additional capital and as an
incentive to perform these functions in the best manner possible,
the Company shall pay Employee a stock performance bonus determined
as follows:
By measuring the increases in the net "Stockholders Equity" on the
audited Balance Sheet of the Company as of each of its year ends
occurring during the term of this Agreement, with the first year end
being September 30, 1998 and the base year being September 30, 1997,
and then:
Such stock bonuses shall be computed to be equal to two and one half
percent (2.5%) of the dollar increase in such Stockholder Equity and
the number of shares earned and payable shall be equal to said
percentage dollar amount divided by $1.
For example if the net increase in stockholder equity is $1,000,000,
Employee shall receive 25,000 shares of stock.
Such stock bonus shall be paid within thirty (30) days after the
audited year end financial statements of the Company have been
prepared or such other time as is mutually agreeable to the Company
and Employee. Such stock may be "Restricted" as that term is defined
under the Securities Act of 1933 as amended.
In addition to the above described stock performance bonus, Employee
shall be eligible to receive any other cash or stock bonuses and any
stock options awarded by the Board of Directors of the Company
during the Term of this Agreement.
d. OTHER BENEFITS. Employees salary, and/or bonus, 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.
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5. EMPLOYEE BENEFITS. The Company, at its sole discretion, may provide
certain group benefits to all employees and agrees that Employee will be
covered by any such plans adopted by the Company 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 also reimburse the employee for all reasonable
and necessary business expenses which are approved in advance by the
Company. The Company acknowledges that Employee's personal residence is in
Niceville Florida and accordingly the Company agrees to pay all necessary
travel and lodging expenses of Employee when Employee is required to be in
Phoenix or other locations requested by the Company
7. TERMINATION. Except as otherwise provided in this agreement all
compensation, bonuses and other benefits shall cease upon death,
disability or termination. Based on the following circumstances or
conditions this Employment Agreement shall 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 their
annual salary and prorated stock performance bonus and any other
benefits actually due Employee up to the 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 required by the
Company, to perform his assigned duties for more than three (3)
consecutive months; and the Company shall be obligated, in that
event, to pay Employee their annual salary, pro-rated stock
performance bonus and any other benefits actually due up to the date
of disability.
c. EMPLOYEE NOTICE. At the election of Employee upon Six (6) Months
written notice to Company and the Company shall only be obligated,
in that event, to pay Employee their annual salary, pro-rated stock
performance bonus and any other benefits actually due up to the date
of termination.
d. WITH CAUSE. Employee's employment may be terminated for cause at any
time upon fifteen (15) days written notice. For the purpose of this
Agreement "for cause" is defined to include, but not be limited to
the following: intentional or unintentional acts by Employee having
the effect or causing significant harm to the business interests of
The Company; but to the extent that such acts are curable, Employee
shall have ten (10) business days following receipt of notice of
said material breach to cure such 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 their annual salary, and any other benefits earned or
due up to the actual date of termination.
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e. 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.
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 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 the Company shall be obligated, to pay Employee
their annual salary, pro-rated stock performance bonus and any other
benefits actually due up to the date of termination, with the date
of termination being determined as of the date of notice, as
determined by Section 19 of this Agreement. Under these
circumstances the Employee shall have no further obligations to the
Company from and after the termination date, but the Company shall
remain obligated to Employee for any amounts or benefits owed
Employee prior to the termination date.
f. SUBSTANTIAL CHANGE IN MANAGEMENT OR OWNERSHIP OF THE COMPANY.
Employee shall have the option to immediately terminate this
Agreement if there is a substantial change in management and/or
ownership of the Company under which Xxxxxxx X. Northern and Xxxx X.
Xxxx have diminished roles in ownership or management control so
that, in the sole opinion of Employee, it is not deemed in his best
long term interest to continue as an employee of the Company under
this Agreement.
Upon notice or knowledge of such a change of management or control
of the Company, Employee shall have thirty (30) days in which to
provide the Company with written notice to terminate this Agreement.
The date of termination shall be determined as of the date of
notice, as determined by Section 19 of this Agreement, and if this
Agreement is terminated by Employee, under this Section, the Company
shall be obligated to pay Employee the following:
1) His annual salary, a pro-rated stock performance bonus and any
other benefits actually due Employee up to the date of
termination and;
2) An amount equal to the greater of i) ten percent (10%) of the
Company's net equity as indicated on the Company's Balance
Sheet at the end of the month prior to the termination of this
Agreement by Employee; or ii) ten percent (10%) of the
"acquisition price of the Company" as calculated by applying
the purchase price of the new controlling interest shares to
all of the issued and outstanding shares of the Company; or
iii) One Million & 00/100 Dollars ($1,000,000).
The Employee's option to terminate this Agreement under this Section shall take
precedents over any other termination provision of Section 7 and termination by
Employee under this Section shall release Employee from the Covenant not to
Compete under Section 8 of this Agreement.
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8. AGREEMENT NOT TO COMPETE. Employee hereby agrees and stipulates that he
shall not compete, in the personal and/or business internet access,
website development and hosting, computer sales and services,
programming and software development and networking solutions business,
either directly or indirectly, in any way that competes 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.
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.
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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 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.
If to the Company If to Employee
0000 X. Xxxxxxxxx Xx., Xxx. X-000 000 Xxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000 Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000 Fax: 000-000-0000
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.
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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.
IN WITNESS WHEREOF, The Company and Employee have duly executed this Agreement
this 27th day of July 1998.
World's Fare, Inc. dba FutureOne Employee
/s/ Xxxxxxx X. Northern /s/ Xxxx X. Xxxx
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By: Xxxxxxx X. Northern By: Xxxx X. Xxxx
Its: President
FutureOne, Inc.
/s/ Xxxxxxx X. Northern
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By: Xxxxxxx X. Northern
Its: President
