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EXHIBIT 10.08
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 XXXXX XXXX ("Xxxx").
WHEREAS, the Company desires to employ Ross as provided herein; and,
WHEREAS, Ross 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 Ross and Ross hereby accepts
employment with the Company as its Chief Technical Officer upon the terms and
conditions hereinafter set forth.
2. DUTIES. Ross will serve the Company as its Chief Technical Officer
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 Xxxx'x area
of expertise. Xxxx'x specific duties shall include overseeing applications'
development and such other duties as the Company may reasonably direct. Ross
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 Xxxx'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 Ross.
4. COMPENSATION. As compensation for the services rendered to the
Company under this Agreement commencing on the Effective Date hereof, Ross will
be paid a base salary of Seventy Five Thousand dollars ($75,000) 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 Xxxx'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 Ross;
b. The "Total Disability" (as hereinafter defined) of Ross;
c. Written notice to Ross from the Company of termination for
"Cause" (as hereinafter defined);
d. The voluntary termination of this Agreement by Ross 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 Ross 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 Ross. If the Company disagrees with said
physician's opinion, the Company may engage at their own expense a physician to
examine the Ross, and Ross hereby consents to such examination and to waive, if
applicable any privilege between the physician and Ross 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 Ross and the Company.
For purposes of Section 5c, "Cause" means (i) Ross 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) Ross engages in poor
performance that is not cured within thirty (30) days after counseling by the
Company, (iii) Ross 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) Ross breaches his fiduciary duty to the Company or commits any
dishonest, unethical, fraudulent, or felonious act in respect to Xxxx'x duties
to the Company.
6. BENEFITS. Ross 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 Ross up to Thirty Thousand dollars
($30,000) with Fifteen Thousand dollars ($15,000) to be loaned and disbursed on
the Effective Date and the remaining Fifteen Thousand ($15,000) 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 Ross 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 Ross
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. STOCK BONUS. It is acknowledged that during the initial term of this
Agreement, the Company may complete an initial public offering of its
securities. The Company agrees to reserve 50,000 shares of its Common Stock (the
"Shares") for issuance to Ross in accordance with the terms of this Section 8,
and, as an inducement for Xxxx'x continued employment by the Company, agrees to
issue such Shares to Ross as follows:
a. 25,000 shares to be issued six (6) months from the closing
of the IPO (the "Initial Issuance Date") so long as Ross has been continually
employed by the Company from the Effective Date until the Initial Issuance Date.
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b. The remaining 25,000 Shares to be issued one (1) year from
the Closing of the IPO (the "Second Issuance Date") so long as Ross has been
continually employed by the Company from the Effective Date until the Second
Issuance Date.
Prior to the issuance of the Shares, Ross shall execute a Subscription
Agreement and Letter of Investment Intent substantially the form as set forth in
Exhibit A attached hereto and made a part hereof.
9. NON-COMPETITION AND CONFIDENTIALITY.
a. Non-Competition. Ross agrees that during the term of this Agreement,
Ross 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 Ross 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 (5%) of the outstanding capital stock of a publicly
traded company. Restrictions regarding competition by Ross shall only apply to
competing businesses or entities that operate in the continental United States.
b. Confidentiality.
(1) Ross acknowledges that in Xxxx'x employment hereunder,
Ross 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. Ross 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, Ross 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, Ross 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 Ross as a result of the Xxxx'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 Ross, the services
rendered by Ross, 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 Xxxx'x employment under this Agreement for any reason
whatsoever, Ross shall return to the Company all Records (whether furnished by
the Company or prepared by Ross, and Ross shall neither make nor retain any
copies of any of such Records after such termination.
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(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 Ross 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 Xxxx'x employment by the Company will be disclosed
promptly by Ross to the Company and shall be the sole and exclusive property of
the Company. All copyrightable works created by Ross and covered by this Section
9b(3) shall be deemed to be works for hire. Ross 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 9, it is understood that damages will be difficult to
ascertain and the Company may petition a court of law or 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 9 are separate
and independent from the other provisions of this Agreement, that these
provisions are specifically enforceable by the Company notwithstanding any claim
by Ross that the Company has violated or breached this Agreement or any claim
that Ross is entitled to any offset or compensation.
To induce the Company to enter into this Agreement, Ross represents and
warrants to the Company that Section 9 of this Agreement is enforceable by the
Company in accordance with its terms.
10. 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.
11. 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 Ross: Xxxxx Xxxx
0000 X. Xxxxxxxxx #0000
Xxxx, XX 00000
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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.
12. 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.
13. 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
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.
14. 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.
15. 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.
16. 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.
17. 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
ROSS:
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
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AMENDMENT OF EMPLOYMENT AGREEMENT
This Amendment of Employment Agreement is entered into as of the 17th
day of February, 1999, by and between xxxxxxx.xxx, inc., a Nevada corporation
(the "Employer"), and Xxxxx Xxxx (the "Employee").
Explanatory Statements
A. Employer and Employee entered into an Employment Agreement dated as
of November 9, 1998 (the "Employment Agreement") whereby the Employer employed
the Employee.
B. The Employer and Employee desire to amend and modify certain terms
and conditions of the Employment Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Employment Agreement is hereby amended and
modified as follows:
1. Section numbered 8, "Stock Bonus" is deleted in its entirety and a
new Section numbered 8 is inserted in its place to read as follows:
"8. STOCK OPTIONS. Specifically subject to Section 8a and 8b
below and Section 10c Ross shall be granted options to purchase 150,000
shares of the Company's Common Stock (the "Shares") exercisable at
$8.00 per share to vest and be exercisable immediately and otherwise in
accordance with the Company's 1998 Stock Option Plan and in accordance
with the following and Section 10c below:
(a) If Ross' employment is terminated for any reason other
than "for Cause" as defined herein, then the unexercised options shall
be exercisable for a period of either (i) forty-five (45) days from the
termination of Ross' employment or (ii) the end of the initial term of
this Agreement or any extension thereof; whichever period is later.
(b) If Ross' employment by the Company is terminated "for
Cause" as defined in this Agreement, then all unexercised options
granted to Ross shall immediately terminate and not be exercisable upon
notice of Ross' termination of employment "for Cause."
Ross acknowledges that the Company is in the process of
completing an initial public offering ("IPO") of its securities and
that as part of the IPO, Ross may be required to lock up the Shares for
a period of six months from the effective date of the IPO. Accordingly,
Ross agrees the Shares will be subject to any lock up agreement
required in regard to the IPO and will execute any agreement to
evidence such lock up of Shares."
2. Section numbered 9, Subsection a "Non-competition" is hereby amended
to read as follows:
"a. Non-Competition. The Company and Ross acknowledge and
agree that Ross' services are of a special and unusual character which
have a unique value to the Company, the loss of which cannot be
adequately compensated by damages in an action at law and if used in
competition with
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the Company, could cause serious harm to the Company. Accordingly, Ross
agrees that during the term of this Agreement and for a period of two
(2) years after the termination of this employment by the Company,
irrespective of the reason for such termination, Ross 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 Ross 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, was engaged during Ross' employment or is engaged at the
time of Ross' termination of employment, except for the ownership of
less than five percent (5%) of the outstanding capital stock of a
publicly traded company."
3. Section numbered 9, "NON-COMPETITION AND CONFIDENTIALITY" is hereby
amended by the addition of a new subsection c to read as follows:
"c. Certain Claims Upon Termination. Ross understands that if
within one year prior to the termination of Ross employment with the
Company, Ross has either (i) committed an act of theft, dishonesty,
gross dereliction of duty, fraud, embezzlement, misappropriation, or
breach of fiduciary duty against the Company or any other act of
comparable misconduct against the Company; or (ii) breached any of his
obligations under this Agreement, then the Company shall have the right
to purchase any or all shares of Common Stock of the Company owned by
Ross at the time of such termination for a purchase price equal to the
amount that Ross paid for such shares, together with interest thereon
at a rate of ten percent (10%) per annum. If the Company desires to
exercise such right, it shall notify Ross within 60 days after the date
of such termination and Ross shall tender the shares being purchased by
the Company at the time and place designated in such notice from the
Company upon receipt of the purchase price for such shares. If Ross
fails to tender such shares, the shares shall be deemed to be canceled
as of the date the Company tenders payment of the purchase price
thereof."
4. Section numbered 9, Subsection c "Enforceability " is hereby amended
to be Section numbered 9, Subsection d and is amended by the addition of the
following at the end of such Subsection:
"The parties hereto agree that to the extent that any
provision or portion of Section 9 of this Agreement shall be held,
found or deemed to be unreasonable, unlawful or unenforceable by a
court of competent jurisdiction, then any such provision or portion
thereof shall be deemed to be modified to the extent necessary in order
that any such provision or portion thereof shall be legally enforceable
to the fullest extent permitted by applicable law; and the parties
hereto do further agree that any court of competent jurisdiction shall,
and the parties hereto do hereby expressly authorize, request and
empower any court of competent jurisdiction to, enforce any such
provision or portion thereof or to modify any such provision or portion
thereof in order that any such provision or portion thereof shall be
enforced by such court to the fullest extent permitted by applicable
law."
5. Section numbered 11, "NOTICES" is amended by changing the
notification address of the Company to read as follows:
"If to the Company: xxxxxxx.xxx, inc.
One Arizona Center
000 X. Xxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000"
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6. Any and all other terms and conditions of the Employment Agreement
not amended or modified herein shall remain the same and in full force and
effect.
Employer:
XXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Chief Executive Officer
Employee:
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
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