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EXHIBIT 6.29
EMPLOYMENT AGREEMENT
THIS AGREEMENT made this 11th day of January 1999, by and between FutureOne,
Inc., a Nevada corporation, (hereinafter called "Company") and Xxxxx X. Xxxxxx
(hereinafter called "Employee") shall be effective as of January 1, 1999.
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, 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 the Director of Marketing:
a. Establish marketing plans for the Company's products, prepare
advertising programs, arrange and participate in trade shows and
determine and manage other programs to promote the Company's
products to potential customers.
b. Manage the Company's sales force, including hiring sales personnel,
establishing sales programs, establishing sales quotas and
integrating cross selling programs for the Company's various
operating divisions products.
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 Officers or Board of Directors 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.
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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 Seventy Five Thousand Dollars ($75,000), which
shall be payable in equal installments based on the Company's normal
pay periods.
b. Employee shall be eligible to receive a management bonus as defined
below.
1) Employee shall be paid a bonus equal to 2% of the increase in
gross revenues, less refunds and discounts, from the prior
year, for all of the Company's operations, except
construction, based on the audited financial statements of the
Company for the comparative periods. Such bonus shall be
subject to the calculations defined below.
The year shall be defined as the 12 month period, or shorter period ending
September 30 and the Company and Employee acknowledge that the books and
records of the Company may not be kept in an exact format, nor are the
Company's audits prepared to specifically calculate the basis for the
above bonuses. Therefor, the Company and Employee will work together to
determine a reasonable comparison of revenues within the spirit of this
agreement to determine the basis for the bonus calculations as defined
above. The bonus for the first period, which shall end September 30, 1999,
shall compare revenues from the period January 1, 1999 through September
30, 1999 with revenues for the period March 1, 1998 through December 31,
1998,
The bonus shall be paid in cash within 90 days after the amount of the
bonus is determined from the audited financial statements.
c. Employee shall also be immediately issued Seventy Five Thousand
(75,000) shares of common stock of the Company 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:
The Seventy Five Thousand (75,000) shares shall be split into
three (3) units ("Unit") of Twenty Five Thousand 25,000 shares
each and each Unit may become fully earned and fully vested on
each of the following dates January 1, 2000, January 1, 2001
and January 1, 2002. Each unit will become fully earned and
fully vested 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.
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 stock Units, that have not been earned and vested
according to the above schedule and FutureOne shall cancel such
shares on the books of the corporation.
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Employee hereby agrees that any of the above referenced stock
certificates that have not been earned and vested shall be held by
the Company 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.
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 employees and agrees that Employee
will be covered by any such plans adopted by the Company 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
normal compensation up to the actual date of termination, 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 Sixty (60)
consecutive days; and the Company shall be obligated, in that event,
to pay Employee his normal compensation up to the actual date of
termination, a prorated bonus and benefits actually due up to the
date of disability.
c. EMPLOYEE NOTICE. At the election of Employee upon thirty (30) days
written notice to Company, in such event, the Company shall only be
obligated to pay Employee his normal compensation 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 only his
normal compensation and benefits actually due Employee up to the
Company's elected date of termination.
d. WITHOUT CAUSE. Company may terminate without cause and for any
reason Employee's employment upon thirty (30) 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.
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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) intentional or unintentional acts by Employee
having the effect or causing significant harm to the business
interests of The Company; (ii) the failure of Employee to devote all
of his 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 normal compensation and actual
benefits 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 a breach of this Agreement. The Company
shall have five (5) business days following receipt of such written
notice to cure such alleged 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 any business engaged in by the Company, either
directly or indirectly, or compete in any other way 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 FutureOne 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.
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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 FutureOne and no
amount of monetary damages can adequately compensate FutureOne for the
injury that would be caused by said breach. Accordingly, Employee
hereby stipulates that should FutureOne have a good faith reason to
believe that Employee is breaching or taking steps to breach any
material provision of this Agreement then FutureOne 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.
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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 E. Camelback Rd., Ste. K-192 4545 E. Caida del Sol Dr.
Phoenix, Arizona 85018-2751 Xxxxxxxx Xxxxxx, XX 00000
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.
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 11th day of January, 1999.
FutureOne, Inc. Employee
/s/ Xxxx X. Xxxx /s/ Xxxxx X. Xxxxxx
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By: Xxxx X. Xxxx By: Xxxxx X. Xxxxxx
Its: Executive Vice President
