EMPLOYMENT AGREEMENT BETWEEN
GLOBALOCK CORPORATION AND
XXXXXX XXXXXXXXX
This Employment Agreement is made and entered into as of the 1st day of
August, 1999, by and between Globalock Corporation, a Delaware corporation (the
"Company") and Xxxxxx Xxxxxxxxx ("Xxxxxxxxx")
Whereas, the Company and Xxxxxxxxx desire that Xxxxxxxxx become an
employee of the Company under the terms and conditions set forth in this
Employment Agreement;
Therefore, in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
1. Employment. The Company hereby employs Xxxxxxxxx, and Xxxxxxxxx
hereby accepts such employment from the Company, upon the terms and conditions
hereinafter set forth. Xxxxxxxxx represents that his employment by the Company
under the terms of this Agreement will not violate or result in a breach of any
agreement or obligation to which Xxxxxxxxx is a party or by which he may be
bound.
2. Position and Duties of Xxxxxxxxx. During Xxxxxxxxx'x employment by
the Company, Xxxxxxxxx shall serve as Director of Business Development of the
Company. Xxxxxxxxx shall serve the Company to the best of Xxxxxxxxx'x ability
and shall perform such duties as are required by, appropriate to and consistent
with Xxxxxxxxx'x position and such other duties and in such other capacities as
are assigned to Xxxxxxxxx from time to time by the Board of Directors and
officers of the Company senior to Xxxxxxxxx. Xxxxxxxxx agrees to devote such
working time and efforts to the business of the Company (except for usual
vacations) as may be reasonably requested by the Board of Director, and to be
loyal and faithful to the Company at all times, endeavoring to improve
Xxxxxxxxx'x ability and knowledge of the business of the Company in an effort to
increase the productivity and value of Xxxxxxxxx'x services for the mutual
benefit of Xxxxxxxxx and the Company.
3. Term of Employment. The term of Xxxxxxxxx'x employment under this
Agreement shall be for a one year period commencing as of the date hereof, and
thereafter shall continue from year to year unless terminated by either party as
of the expiration of the initial term or at any time during any such further
term, upon: (a) the giving of ninety (90) days' notice of termination or (b) in
the case of the Company, the payment of termination pay equal to the level of
base salary then payable to Xxxxxxxxx for a ninety (90) day period or any
combination of an aggregate of ninety (90) days notice and termination pay by
the Company, unless this Employment Agreement is terminated at any time during
the initial term or any subsequent term upon the earlier occurrence of any of
the following events:
(i) Upon the mutual agreement in writing of the Company and
Xxxxxxxxx to terminate Xxxxxxxxx'x employment by the Company.
(ii) Upon the death of Xxxxxxxxx.
(iii) At the Company's option, by action of the Company's
Board of Directors, on thirty (30) days written notice, in the event of
Xxxxxxxxx'x disability, defined as: (A) if a policy of disability
insurance is carried by the Company covering Xxxxxxxxx, as disability
is determined under such policy, or (B) if the Company does not carry a
disability insurance policy covering Xxxxxxxxx, the failure of
Xxxxxxxxx substantially to discharge Xxxxxxxxx'x duties under this
Agreement for sixty (60) consecutive days at any time, or for ninety
(90) days during any eighteen (18) month period, as a result of an
injury, disease, sickness or other physical or mental incapacity.
(iv) By the Company for "cause," which shall mean that: (A)
Xxxxxxxxx has been guilty of dishonesty, stealing, embezzlement,
misappropriation of funds, violation of the provision of paragraph 6,
or excessive unexcused absenteeism from work (other than for injury,
disease, sickness or other physical or mental incapacity which is
covered under subparagraph (iii) above); or (B) Xxxxxxxxx has been
convicted of a felony.
4. Compensation.
(a) Base Salary. During the term of Xxxxxxxxx'x employment
under this Agreement, the Company agrees to pay Xxxxxxxxx for
Xxxxxxxxx'x services hereunder compensation at the rate of $60,000 per
annum (the "Base Salary"); provided, however, that all of the Base
Salary shall be deferred and shall become payable to Xxxxxxxxx upon the
earliest to occur of: (i) the receipt by the Company of gross proceeds
from the sale of common stock of not less than $1,000,000, (ii) the
consolidated net earnings of the Company from operations (excluding
extraordinary income and charges) for any calendar quarter being equal
to or greater than $10,000, or (iii) the common stock of the Company
having begun trading for a consecutive 30 trading day period on an
exchange, or, the NASDAQ. Such compensation shall be subject to any
required withholdings and shall be paid semi-monthly or on such other
basis as is consistent with the Company's normal practices.
5. Fringe Benefits; Expenses. During the term of Xxxxxxxxx'x employment
under this Agreement:
(a) The Company will provide Xxxxxxxxx with medical (including
dependant coverage) and life insurance and other fringe benefits
normally accorded the Company's comparable officers (which may require
Xxxxxxxxx contributions); provided, however, that the foregoing shall
not obligate the Company to continue any such benefits in force or to
maintain such benefits at specific standards or levels at any time as
to any class of employees.
(b) The Company will pay directly, or reimburse Xxxxxxxxx, for
such items of reasonable and necessary expense as are authorized by the
Company and incurred by Xxxxxxxxx in the interest of the business of
the Company. All such expenses paid by Xxxxxxxxx will be reimbursed by
the Company upon the presentation by Xxxxxxxxx of an itemized account
of such expenditures, sufficient to support their deductibility to the
Company for income tax purposes, within 30 days after the date such
expenses are incurred.
6. Covenants of Xxxxxxxxx. Xxxxxxxxx covenants to and agrees with the
Company as follows:
(a) Xxxxxxxxx shall not, without the express prior consent of
the Board of Directors or President of the Company, be engaged in any
other business activity, whether or not such business activity is
pursued for gain, profit or other pecuniary advantage; but nothing
contained herein shall be construed as preventing Xxxxxxxxx from
investing Xxxxxxxxx'x assets in not more than 1% of the capital stock
or other securities of any corporation whose stock or other securities
are regularly traded on a national securities exchange or in the
over-the-counter securities market and with which Xxxxxxxxx has no
employment, representative or agency relationship.
(b) During the term of Xxxxxxxxx'x employment with the Company
and thereafter for a period of two (2) years, Xxxxxxxxx will not, in
any manner, directly or indirectly with or through any other person or
entity:
(i) Except as required in Xxxxxxxxx'x duties to the
Company, disclose or divulge to any person or entity, or use
for Xxxxxxxxx'x benefit or the benefit of any other person or
entity, directly or indirectly, as the same may exist during
the term of Xxxxxxxxx'x employment by the Company or at the
date of termination of such employment, any knowledge,
information, business methods, techniques, devices, customer
lists, supplier lists, business plans, software, programs or
other data of the Company, without regard to whether all of
the foregoing matters will be otherwise deemed confidential,
material or important, the parties stipulating that as between
them, the same are important, material and confidential and
greatly affect the effective and successful conduct of the
business and the goodwill of the Company;
(ii) Divert, take away, solicit or interfere with any
of the customers, trade, suppliers, business, patronage,
employees or agents of the Company, or employ any person who
was an employee of the Company at any time during the two year
period prior to the date of such employment; or
(iii) Engage, either personally or as an employee,
partner, officer, manager, agent, advisor, associate,
consultant or otherwise, or by means of any corporate or other
entity or device, in any business which is competitive (as
hereinafter defined) with the business of the Company.
(c) For the purposes hereof, a business will be deemed
competitive with the business of the Company if it involves the
development, installation or operation of telecommunications products
or services (other than by an entity for its own use in its own
business) or other products or services which are competitive with any
business in which the Company is engaged during the term of Xxxxxxxxx'x
employment by the Company or as of the date of Xxxxxxxxx'x cessation of
employment, or as to which the Company has formulated definitive plans,
of which Xxxxxxxxx has knowledge, to enter into during the term of
Xxxxxxxxx'x employment by the Company or as of the date of the
cessation of Xxxxxxxxx'x employment with the Company.
(d) It is the intention of the parties to restrict the
activities of Xxxxxxxxx under paragraph 6(b) only to the extent
necessary for the protection of the business interests of the Company,
and the parties specifically covenant and agree that should any of the
provisions thereof, under any set of circumstances, be determined by a
court or other tribunal or authority having appropriate jurisdiction to
make such a determination to be too broad for that purpose or invalid
or unenforceable for any reason, it is the intention and agreement of
the parties that such provisions shall be so interpreted and applied by
such court, tribunal or authority in such a narrower sense as shall be
necessary to make the same valid and enforceable to the maximum extent
possible, consistent with the intent of the parties expressed in this
Agreement.
(e) The covenants and agreements of Xxxxxxxxx contained in
paragraph 6(b) shall be construed as independent of any other provision
of this Agreement and given for valuable independent consideration, and
the existence of any defense, claim or cause of action against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of such
covenants and agreements.
(f) Except for the application of the confidentiality
provisions contained in Section 7(a), nothing in this Agreement is
intended to prevent or limit Xxxxxxxxx from publishing articles (and
assigning the copyright rights thereto to the publisher thereof) or
speaking at industry conferences.
7. Company Proprietary Rights and Materials.
(a) Xxxxxxxxx agrees to perform his duties in connection with
this Agreement in good faith and in a manner which Xxxxxxxxx reasonably
believes to be in the best interest of the Company, and with such care,
including reasonable inquiry, as an ordinary prudent person in a like
position would use under similar circumstances. Xxxxxxxxx will keep
confidential and will not directly or indirectly divulge any
confidential information of the Company to anyone (except as required
by applicable law or in connection with the performance of Xxxxxxxxx'x
duties and responsibilities as an employee of the Company) nor use or
otherwise appropriate any of the Company's confidential information for
his own benefit, or for or on behalf of any other person or entity.
(b) All proprietary rights which: (i) are made, conceived or
developed with the equipment, supplies, facilities, trade secret
information, time or other assets of the Company; (ii) relate to the
business of the Company; or (iii) result from work performed for the
Company, as between Xxxxxxxxx and the Company, are and shall remain the
sole property of the Company, and upon the request of the Company,
Xxxxxxxxx shall assign any and all rights he may have therein to the
Company, subject to such restrictions as are imposed by applicable law.
The foregoing assignment obligation shall not apply to an invention
that Xxxxxxxxx develops entirely on his own time without using the
Company's equipment, supplies, facilities or trade secret information,
except for inventions (which shall be so assigned to the Company) that
either: (a) relate at the time of conception or reduction to practice
of the invention to the Company's business, or actual or demonstrably
anticipated research or development of the Company; or (b) result from
any work performed by Xxxxxxxxx for the Company.
(c) All documents, records, statements, correspondence,
invoices, statements, software, programs, models, designs, drawings,
specifications, financial statements and projections, plans, notebooks,
including copies thereof, affecting or relating to the business of the
Company, which Xxxxxxxxx shall prepare, use, construct, observe,
possess or control ("Company Materials"), shall be and remain the sole
property of the Company. Upon the termination of the employment of
Xxxxxxxxx with the Company, Xxxxxxxxx shall promptly deliver all
Company Materials to the Company.
8. Remedies.
(a) If Xxxxxxxxx terminates Xxxxxxxxx'x employment with the
Company, or if such employment is terminated under paragraph 3,
Xxxxxxxxx shall be entitled only to receive accrued basic salary and
vacation pay, to the extent that such compensation has accrued and is
payable as of the date of such termination, but no other amounts
accruing or payable under this Agreement shall be payable to or for the
benefit of Xxxxxxxxx, except as otherwise specifically provided in
paragraph 3.
(b) It is expressly agreed that the breach of the terms of
this Agreement by Xxxxxxxxx will result in immediate and irreparable
injury to the Company, for which the payment of money damages would be
an inadequate remedy, and will authorize recourse to the equitable
remedies of injunction and specific performance, as well as to all
other legal or equitable remedies to which the Company may be entitled,
without a requirement that the Company post a bond or other security
therefor. No remedy conferred by any of the specific provisions of this
Agreement is intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in
equity, by statute or otherwise. The election of any one or more
remedies by the Company shall not constitute a waiver of the right to
pursue other available remedies.
(c) Xxxxxxxxx represents and admits that in the event of the
cessation of Xxxxxxxxx'x employment for any reason, Xxxxxxxxx'x
experience and capabilities are such that Xxxxxxxxx can obtain
employment in another business engaged in other lines or of a different
nature, and that the issuance and enforcement of equitable remedies
which require the performance of any provision of this Agreement by
Xxxxxxxxx, including the provisions of paragraph 6(b), will not prevent
Xxxxxxxxx from earning a livelihood.
(d) In the event the Company or Xxxxxxxxx engages counsel or
institutes a suit at law or in equity for the purpose of enforcing the
provisions of this Agreement, the prevailing party in any such action
shall be entitled to recover reasonable attorneys' fees and expenses
and related costs and expenses, in addition to any other judgment,
award or remedy to which the prevailing party may be entitled. In the
event of a settlement or judgment or order of a court, the prevailing
party shall be considered to be that party whose last written
settlement offer most nearly matches the final agreement or result.
Where there is an allocation of remedies, such attorneys' fees and
expenses and related costs and expenses shall be allocated among the
parties equitably according to the results determined relative to any
written offer of settlement made by the parties. (For example, if a
party demands $10,000 and the other party offers to pay or settle the
matter for $6,000 and the outcome is $7,000, the party offering $6,000
shall be considered to be the prevailing party.)
9. Severability. All agreements and covenants herein contained are
severable, and in the event any of them shall be held to be invalid by any
competent court or other tribunal or authority having appropriate jurisdiction,
this Agreement shall continue in full force and effect and, subject to
subparagraph 6(d), shall be interpreted as if such invalid agreements or
covenants were not contained herein.
10. Waiver or Modification. No waiver, amendment or modification of
this Agreement or any portion hereof shall be valid unless in writing and duly
executed by the party to be charged therewith. No evidence of any waiver,
amendment or modification shall be offered or received in evidence in any
proceeding, arbitration or litigation between the parties arising out of or
affecting this Agreement, or the rights or obligations of the parties hereunder,
unless such waiver, amendment or modification is in writing and duly executed as
aforesaid. The failure of either party to exercise or otherwise act with respect
to any of its rights hereunder in the event of a breach of any of the terms or
conditions hereof by the other party shall not be construed as a waiver of such
breach, nor prevent the party from thereafter enforcing strict compliance with
any and all of the terms and conditions hereof.
11. Notices. All notices, requests, demands, consents or other
communications hereunder shall be in writing and shall be deemed to have been
given if delivered personally or mailed by certified, registered or Express
mail, return receipt requested, or next business day courier service (such as
Federal Express), if to the Company, to:
Globalock Corporation
Attention: President
000 Xxx xx xx Xxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000, X.X.X.
and, if to Xxxxxxxxx, to:
Xxxxxx Xxxxxxxxx
000 Xxx xx xx Xxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
or to such other address to which a party gives notice to the other in
accordance with this paragraph 11.
12. Construction.
(a) This Employment Agreement shall be governed by and
construed under the laws of the State of Washington, notwithstanding
the place of execution hereof or the performance of any acts under this
Agreement in any other jurisdiction.
(b) For purposes of paragraphs 6 and 7, references to the
Company shall include all companies or other entities controlled by,
controlling, or under common control with the Company, whether such
control is exercised through ownership or other direction of the
management or policies of any such company or entity, and all licensees
of the Company.
13. Successors. This Agreement shall be binding upon and shall inure to
the benefit of the Company and Xxxxxxxxx and their respective successors,
assigns, heirs, executors, administrators and legal representatives.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
GLOBALOCK CORPORATION
By:
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Xxxxxx Xxxxxxxxx
