EXHIBIT 10.1
CONFIDENTIAL
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EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("AGREEMENT") made as of September
6, 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 ("EMPLOYE ") or ("COMPANY"), and Xxxxxx X. Xxxxxx, Xx.,
residing at 0000 00xx Xxxxxx, Xx. 000, Xxxxx Xxxxxx, 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 highly skilled as a corporate attorney; 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 premises 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 INITIAL PART-TIME TERM (as hereinafter defined),
Executive shall have the position and title of CORPORATE COUNSEL to Employer.
During the TERM (as defined) thereafter, Executive shall have the position and
title of VP BUSINESS AND LEGAL AFFAIRS of Employer. Executive shall in no way be
considered an officer or director of Employer until such time as Employer
maintains directors' and officers' insurance as appropriate for a public company
at which time Executive's title may change to VP Business and Legal Affairs at
the mutual consent of the parties. In each such capacity, Executive shall
perform the following duties, first on a part-time, "as needed", basis for
Employer during the Initial Part-Time Term and thereafter during the Term on a
full-time basis:
(i) Participate in the planning of Employer's strategic and
business plans;
(ii) Be responsible for overseeing the Employer's legal
transaction and managing all professional output including the review
and overseeing of Employer's SEC counsel, litigation counsel (as
necessary), patent counsel and other forms of legal services;
(iii) Be responsible for all actual CORPORATE LEGAL SERVICES
for Employer which shall include contracts, due diligence for mergers
and acquisitions, purchase agreements, merger agreements, sales
agreements, Company policy implementation, internal agreements,
disputes prior to actual litigation, stock option plans, employment
matters, financings and as required;
(iv) Be responsible for overseeing the compliance of the
Employer with the requirements of regulatory agencies;
(v) Contribute to the development of leads for acquisitions
and growth; 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.
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's license to practice law in any state or
jurisdiction is suspended, revoked, terminated or made subject to any
conditions or restriction;
(ii) 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 State Bar association; or
(iii) any event occurs that substantially interrupts all or a
portion of Executive's professional practice or that materially
adversely affects Executive's ability to perform his duties under this
Agreement.
C. As disclosed to Employer and with Employer's full knowledge, the
Executive maintains business interests outside the scope of those covered in
this Agreement including those activities as owner of Xxxxxx Alliance, LLP
("Other Activities"). In addition to any coverages for insurance provided by
Employer for Executive, Executive may maintain his own professional liability
policy as necessary to facilitate any Other Activities. Regardless of Other
Activities, Executive shall devote such of his business time, attention,
knowledge, skill and energy to the business and affairs of the Employer during
the Initial Term and Term 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 under SECTION 2.B.
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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 INITIAL PART-TIME TERM, the Employer shall pay
Executive the SALARY of One Hundred and Forty-Two Thousand Five Hundred
Dollars ($142,500) 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:
a) 50,000 shares of RESTRICTED COMMON STOCK or
options to purchase common stock (to be determined
solely at Executives election) on execution hereof.
Such common stock shall carry piggy-back
registration rights and as such shall be added to
the then next-filed Registration Statement of the
Company so long as approved by any underwriter to
same, if any;
(ii) During any Renewal Term, Executive will be paid salary
Compensation and Bonus as mutually agreed by the parties, provided that
Executive's Compensation shall be no less than the rate of full-time
salary provided for under Section 3 (iii) hereunder.
(iii) During the TERM (UPON WHICH EXECUTIVE SHALL BECOME A
FULL-TIME EMPLOYEE), which shall commence on the mutual agreement of
the parties and is anticipated to be on or before December 1, 2005, the
Employer shall pay Executive the salary of Two Hundred and Eighty-Five
Thousand Dollars ($285,000) 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 during the Term as
follows:
(1) 100,000 shares of RESTRICTED COMMON STOCK or
options to purchase common stock (to be determined solely at
Executives election) on commencement of the Term hereof
carrying piggyback registration rights;
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(2) A cash and/or equity bonus at intervals and as a
percentage of salary parri passu to that received, if any, by
the CEO of Employer. Such bonus to be decided upon the good
faith, mutual agreement of the parties no later than December
31 of each year hereof the Term and based generally on the
performance of Employer in relation to its stated business
goals and/or as set by any Compensation Committee of Employer,
if any.
(iv) Commencing on the Part-Time Term start-date, Executive
shall be eligible at Executive's election to participate in any bonus
or incentive programs on the same terms as instituted for key employees
of Employer. Also commencing on the Initial Part-Time Term execution
date, Employee shall be issued 600,000 RESTRICTED COMMON STOCK SHARES
OR OPTIONS to purchase common stock of the Company ("Additional
Compensation"). Should such additional compensation be taken by
Executive in the form of options, such options shall have an exercise
price equal to $0.50 per share. Executive may use cashless exercise as
a form of exercise for any options hereunder this Agreement per the
formula last agreed to under any Company financing arrangement, if any.
Regardless of form of compensation accepted by Executive, such
Additional Compensation shall vest over a THREE (3 YEAR TERM in equal
monthly installments commencing on the Initial Part-Time Term
start-date so long as this Agreement is effective. Any and all such
Additional Compensation vesting shall accelerate should Executive be
terminated for any reason other than for cause as defined herein or
upon mutual agreement of the parties.
(v) 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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Executive's time off shall be unrestricted during the Part-Time Term.
For the Term, Executive shall be entitled to three (3) 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 including but not limited to Lexis-Nexis
subscription, corporate counsel books and media, Continuing Education media,
forums, and conferences, required cellphone use for the business, computer needs
as mutually agreed;
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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 business-class 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 $ 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 until the parties agree that Employee shall become a full-time employee
of Company (the "INITIAL PART-TIME TERM" or "Part TIME TERM").
B. Thereafter the date of mutual agreement of the parties on which
Executive shall commence the performance of full-time work for Employer, the
term of this Agreement shall be guaranteed for a minimum of one (1) year
starting on election to become a full-time employment agreement ("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 One Hundred and
Eighty (180) 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 One Hundred and Eighty (180) days notice to the other party provided
that a minimum of one (1) year compensation is due in full to Employee along
with all Additional Compensation and Bonus compensation in full and accelerated
for full vesting so long as this Agreement is not terminated (a) by Executive or
(b) by Employer for cause as defined herein.
C. 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 loses his professional license or is suspended
from the practice of law in the state of California.
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D. 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 four (4) months.
E. 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 for a minimum of the total
Term (one year) plus through the Notice Period (180 days).
7. MALPRACTICE AND GENERAL LIABILITY INSURANCE.
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During the Term, Employer shall provide Executive with professional
malpractice and general liability insurance and Directors/Officers insurance,
naming Executive as insureds as long as Executive is employed by Employer,
including
a. rendering to and on behalf of Employer the services to be
provided hereunder,
b. rendering to and on behalf of Employer part-time service, or
c. receiving disability benefits from Employer as a result of
temporary disability.
Furthermore, if Executive's employment terminates, then Employer
shall provide so-called "tail-end" malpractice coverage for a period of three
(3) years starting from the date of termination of Executive's employment. The
selection of the underwriter of, and amount and terms of coverage of, all such
insurance shall be in the sole discretion of Employer; provided, however, that
such any "tail-end" coverage shall be in connection with or substantially
similar to amount and terms of coverage as that provided by Employer to
Executive during Executive's employment hereunder.
d. So long as Executive was acting lawfully and professionally, within
the scope of his duties and in compliance with his obligations hereunder,
Employer shall indemnify and hold Executive harmless for any claims, causes of
action, judgments or liabilities ("Liability") against or incurred by Executive
in connection with or resulting from (a) the performance of his duties hereunder
(such indemnification to be within the scope of liability insurance coverage for
Executive procured by Employer and excluding any liabilities excluded by such
insurance); (b) any Liability related to or arising from Executive's ownership
of the Company common stock or options.
8. 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:
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(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 8, as well as all remedial provisions
contained in this Agreement and related thereto, shall expressly survive the
termination of this Agreement.
9. 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.
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
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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 California applicable to contracts made and to be
wholly performed within said State.
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.
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 Engagement Agreement for
legal services effective on or about July 22, 2005 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.
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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: PRESIDENT
EXECUTIVE:
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Xx.
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