Exhibit 10(bb)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of this 15th
day of October, 1996 between I-Link Worldwide Inc., a Utah Corporation (the
"Company") and Xxxx X Xxxxx Xx., an individual resident of the State of Utah
(the "Employee"), and shall be effective upon execution.
WITNESSETH:
WHEREAS, the Employee is desirous of becoming an employee of the Company;
WHEREAS, it is the desire of the Company to offer the Employee employment
with the Company upon the terms and subject to the conditions set forth herein;
and
WHEREAS, it is the desire of the Employee to accept the Company's offer of
employment with the Company upon the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the Premises and mutual Covenants,
conditions and agreements contained herein and for such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, each intending to be legally bound hereby, agree as follows:
1. Employment. The Company hereby agrees to employ the Employee and
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the Employee hereby agrees to be employed by the Company upon the terms and
subject to the conditions set forth herein for the period of employment as set
forth in Section 2 hereof (the "Period of Employment).
2. Period of Employment. Subject to termination as hereinafter Provided,
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the period of employment shall be three (3) years from the effective date. Such
period of employment may be extended for such period and upon such terms as the
parties hereto may hereafter mutually agree.
3. Office and Duties. During the Period of Employment:
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(a) the Company shall employ the Employee as Chief Financial Officer
with the responsibilities reasonably prescribed for such position by the Board
of Directors of the Company; and
(b) the Employee shall devote all of his working time to the business
and affairs of the Company; except (1) for vacations of three (3) weeks per
year, (ii) illness or (iii) incapacity. Employee may also devote time to the
following Companies in the following positions:
Xxxxxx Industries, Inc., Director
Rise Financial, Owner
4. Compensation and Benefits. In exchange for the services rendered by the
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Employee, the Employee shall be compensated as follows:
(a) Compensation. The Company shall pay the Employee one hundred and
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twenty five thousand ($125,000) per annum at a rate of ten thousand four hundred
sixteen ($10,416.00) per month. Employee's compensation shall be reviewed after
six months and adjustments may be made based on good faith negotiations.
(b) Profitability Bonus. The Company may pay the Employee a bonus if,
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in the sole judgment of the Chief Executive Officer, the earnings of the Company
or the services of the Employee merit such a bonus.
(c) Withholding and Employment Tax. Payment of all compensation
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hereunder shall be subject to customary withholding tax and other employment
taxes as may be required to be withheld or otherwise imposed pursuant to
applicable laws, rules or regulations to which the Company as an employer is
subject with respect to compensation paid by an employer/corporation to an
employee.
(d) Options. The Company hereby grants to employee options to
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Purchase two hundred fifty thousand (250,000) shares of the common stock of I-
Link at an exercise price equal to the closing bid price as of the date hereof.
Options as to twenty-five thousand shares shall vest and become exercisable
immediately upon the execution of this Agreement by Employee. Thereafter, the
remaining options shall vest and become exercisable over a three-year period in
eleven calendar quarterly increments of 20,455 each, with the first such vesting
occurring on January 1, 1997, and the remaining vesting events occurring on the
first day of each following calendar quarter. In addition, in the event that the
Company undergoes a "change of control" as that term is generally understood,
whether by acquisition through an asset purchase, by merger, or by the
acquisition of a majority of the outstanding stock, the vesting of all then
unvested options granted Employee hereunder shall accelerate, and all such
options shall thereupon be fully vested and immediately exercisable.
5. Business Expenses. The Company shall pay or reimburse the Employee for
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all reasonable travel or other expenses incurred by the Employee in connection
with the performance of his duties under this Agreement, provided that the same
are incurred, in accordance with such procedures as the Company may from time to
time establish for employees and as required to preserve any deductions for
federal income taxation purposes to which the Company may be entitled.
6. Other Benefits. The Company shall provide the Employee health insurance
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for the Employee and his dependents, life insurance, and disability insurance
benefits and such other benefits as are generally provided to executive officers
of the Company. The Employee shall
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have the right to participate in any and all Company stock option, stock
purchase and similar plans currently in effect or hereafter adopted for which he
is eligible.
7. Termination of Employment. This Agreement may be terminated as follows:
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(a) The Company and the Employee may terminate this Agreement at any
time upon mutual consent evidenced in writing and signed by both parties.
(b) The Company may terminate this Agreement for cause at any time if
Employee: (i) breaches any provision of the Agreement; (ii) is convicted of a
felony; (iii) substantially and material fails to perform properly the duties
and responsibilities assigned to him; or (iv) engages in serious misconduct
which substantially and materially xxxxx or damages the Company. No discharge
for cause shall occur unless the chief executive officer of the Company first
gives written notice to Employee, specifying the aspect in which the Company
claims that Employee has given the Company cause, and Employee is unable or
unwilling within 30 days to remedy the situation to the satisfaction of the
Company.
(c) This Agreement shall immediately terminate upon the Employee's death
and Employee's legal representative shall be entitled to receive Employee's
salary compensation through the last day of the calendar month in which
Employee's death occurred as well as any earned but unpaid bonus compensation.
(d) The Company may terminate Employee's employment at any time without
cause or notice, provided that in such event the Company shall be obligated upon
such termination to pay Employee all salary and bonuses then accrued and owing,
together with a one-time, lump-sum severance payment equal to one year's salary.
Additionally, all then unvested options granted to Employee under Section 4(e)
of this Agreement shall immediately and fully vest, and Employee shall be
entitled to hold or exercise all such options, together with all options vested
prior to such termination, in accordance with 4(e).
8. Non-Competition. Notwithstanding any earlier termination, during the
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period of employment and for one (1) year thereafter:
(a) The Employee shall not, anywhere in North America or in any other
place or venue where the Company or any affiliate, subsidiary or division
thereof now conducts or operates, or may conduct or operate its business in the
future, directly or indirectly, individually or as a member of any partnership
or joint venture, or as an officer, director, stockholder, employee or agent of
any other person, firm, corporation, business organization or other entity,
participate in, engage in, solicit or have any financial or other interest in
any activity or any business or other enterprise in the field of marketing,
distribution, sale, production, research or development of Internet related
access services or any services or products primarily using the Internet as a
means of delivery, or in any other field which is or may be reasonably expected
to become competitive with the current or contemplated business of the Company
or any affiliate, subsidiary or division thereof (unless the Board of Directors
shall have authorized such activity and the Company shall have consented thereto
in writing),
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as an individual or as a member of any partnership or joint venture, or as an
officer, director, stockholder, investor, employee or agent of any other person,
firm, corporation, business organization or other entity; and
(b) The Employee shall not: (i) solicit or induce any employee of the
Company to terminate his employment or otherwise leave the Company's employ or
hire any such employee (unless the Board of Directors shall have authorized such
employment and the Company shall have consented thereto in writing); or (ii)
contact, service or solicit any clients, customers, vendors, suppliers or other
accounts of the Company, either as an individual or as a member of any
partnership or joint venture, or as an officer, director, stockholder, investor,
employee or agent of any other person, firm, corporation, business organization
or other entity with respect to any business, matter, service or product related
to similar, comparable to or otherwise competitive with that which is provided
by the Company.
9. Confidential Information. The parties hereto recognize that it is
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fundamental to the business and operation of the Company, its affiliates,
subsidiaries and divisions thereof to preserve the specialized knowledge, trade
secrets, and confidential information of the foregoing concerning the Internet
services industry. The strength and good will of the Company is derived from the
specialized knowledge, trade secrets, and confidential information generated
from experience through the activities undertaken by the Company, its
affiliates, subsidiaries and divisions thereof. The disclosure of any of such
information and the knowledge thereof on the part of competitors would be
beneficial to such competitors and detrimental to the Company, its affiliates,
subsidiaries and divisions thereof, as would the disclosure of information about
the marketing practices, pricing practices, costs, profit margins, design
specifications, analytical techniques, concepts, ideas, process developments
(whether or not patentable), customer and client agreements, vendor and supplier
agreements and similar items or technology. By reason of his being an employee
of the Company, in the course of his employment, the Employee has or shall have
access to, and has obtained or shall obtain, specialized knowledge, trade
secrets and confidential information such as that described herein about the
business and operation of the Company, its affiliates, subsidiaries and
divisions thereof. Therefore, the Employee hereby agrees as follows, recognizing
and acknowledging that the Company is relying on the following in entering into
this Agreement:
(a) The Employee hereby sells, transfers and assigns to the Company, or
to any person or entity designated by the Company, any and all right, title and
interest of the Employee in and to all inventions, ideas, disclosures and
improvements, whether patented or unpatented, and copyrightable material, made
or conceived by the Employee solely or jointly, in whole or in part, during the
term hereof which: (I) relate to methods, apparatus, designs, products,
processes or devices distributed, sold, leased, used or under construction or
development by the Company or any affiliate, subsidiary or division thereof; or
(ii) otherwise relate to or pertain to. the business, operations or affairs of
the Company or any affiliate, subsidiary or division thereof. The Company shall
acquire all right, title and interest to the Employee's inventions, ideas,
disclosures and improvements whether made or conceived during the term hereof or
before. The Employee shall make adequate written records of all inventions
(which records shall be the Company's property) and shall communicate promptly
and disclose to the Company, in such form as the Company requests, all
information, details
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and data pertaining to such inventions, ideas, disclosures and improvements.
Whether during the period of employment or thereafter, the Employee shall
execute and deliver to the Company such formal transfers and assignments and
such other papers and documents as may be required of the Employee to permit the
Company or any person or entity designated by the Company to file, enforce and
prosecute the patent applications relating to any of the foregoing, and, as to
copyrightable material, to obtain copyright thereon; and
(b) Notwithstanding any earlier termination, during the period of
employment and for a period of one (1) year thereafter, the Employee shall keep
secret and retain in strict confidence, and shall not, except in furtherance of
the Company's business, use, disclose to others, or publish any information,
other than information which is in the public domain or becomes publicly
available through no wrongful act on the part of the Employee, which information
shall be deemed not to be confidential information, relating to the business,
operation or other affairs of the Company, its affiliates, subsidiaries and
divisions thereof, including but not limited to confidential information
concerning the marketing practices, pricing practices, costs, profit margins,
products, methods, guidelines, procedures, engineering designs and standards,
design specifications, analytical techniques, technical information, customer,
client, vendor or supplier information, employee information, and any and all
other confidential information acquired by him in the course of his past or
future services for the Company or any affiliate, subsidiary or division
thereof. The Employee shall hold as the Company's property all notes, memoranda,
books, records, papers, letters, formulas and other data and all copies thereof
and therefrom in any way relating to the business, operation or other affairs of
the Company, its affiliates, subsidiaries and divisions thereof, whether made by
him or otherwise coming into his possession. Upon termination of his employment
or upon the demand of the Company, at any time, the Employee shall deliver the
same to the Company within twenty-four (24) hours of such termination or demand.
10. Reformation. In the event that a court of competent jurisdiction
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determines that the non-compete or the confidentiality provisions hereof are
unreasonably broad or otherwise unenforceable because of the length of their
respective terms or the breadth of their territorial scope, or for any other
reason, the parties hereto agree that such court may reform the terms and/or
scope of such covenants so that the same are reasonable and, as reformed, shall
be enforceable.
12. Remedies. Subject to Section 18 below, in the event of a breach of any
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of the provisions of this Agreement, the non-breaching party shall provide
written notice of such breach to the breaching party. The breaching party shall
have thirty (30) days after receipt of such notice in which to cure its breach.
If, on the thirty-first (31st) day after receipt of such notice, the breaching
party shall have failed to cure such breach, the non-breaching party thereafter
shall be entitled to seek damages. It is acknowledged that this Agreement is of
a unique nature and of extraordinary value and of such a character that a breach
hereof by the Employee shall result in irreparable damage and injury to the
Company for which the Company may not have any adequate remedy at law.
Therefore, if, on the thirty-first (31st) day after receipt of such notice, the
breaching party shall have failed to cure such breach, the non-breaching party
shall also be entitled to seek a decree of specific performance against the
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breaching party, or such other relief by way of restraining order, injunction or
otherwise as may be appropriate to ensure compliance with this Agreement. The
remedies provided by this Section 13 are non-exclusive and the pursuit of such
remedies shall not in any way limit any other remedy available to the parties
with respect to this Agreement, including, without limitation, any remedy
available at law or equity with respect to any anticipatory or threatened breach
of the provisions hereof.
13. Certain Provisions, Specific Performance. In the event of a breach by
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the Employee of the non-competition or confidentiality provisions hereof, such
breach shall not be subject to the cure provision of Section 12 above and the
Company shall be entitled to seek immediate injunctive relief and a decree of
specific performance against the Employee, such remedy is non-exclusive and
shall be in addition to any other remedy to which the Company or any affiliate,
subsidiary or division thereof may be entitled. Monetary breaches by the Company
shall not be subject to the notice and cure provisions hereunder.
14. Consolidation; Merger; Sale of Assets. Nothing in this Agreement shall
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preclude the Company from combining, consolidating or merging with or into,
transferring an or substantially all of its assets to, or entering into a
partnership or joint venture with, another corporation or other entity, or
effecting any other kind of corporate combination, provided that, the
corporation resulting from or surviving such combination, consolidation or
merger, or to which such assets are transferred, or such partnership or joint
venture assumes this Agreement and all obligations and undertakings of the
Company hereunder. Upon such a consolidation, merger, transfer of assets or
formation of such partnership or joint venture, this Agreement shall inure to
the benefit of, be assumed by, and be binding upon such resulting or surviving
transferee corporation or such partnership or joint venture, and the term
"Company," as used in this Agreement, shall mean such corporation, partnership
or joint venture, or other entity and subject to the provisions of this
Agreement relating to the Change of Control this Agreement shall continue in
full force and effect and shall entitle the Employee and his heirs,
beneficiaries and representatives to exactly the same compensation, benefits,
perquisites, payments and other rights as would have been their entitlement had
such combination, consolidation, merger, transfer of assets or formation of such
partnership or joint venture not occurred.
15. Survival. Sections 8 through 14 shall survive the termination for any
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reason of this Agreement (whether such termination is by the Company, by the
Employee, upon the expiration of this Agreement by its terms or otherwise);
provided, however, that in the event that the Company ceases to exist and
neither an affiliate, subsidiary or division thereof has assumed, at its option,
the obligations of the Company hereunder, the Employee shall no longer be bound
by the non-competition provision set forth in Section 8 hereof.
16. Severability. The provisions of this Agreement shall be considered
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severable in the event that any of such provisions are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable. Such
invalid, void or otherwise unenforceable provisions shall be automatically
replaced by other provisions which are valid and enforceable and which are as
similar as Possible in term and intent to those provisions deemed to be invalid,
void or
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otherwise unenforceable. Notwithstanding the foregoing, the remaining provisions
hereof shall remain enforceable to the fullest extent permitted by law.
17. Entire Agreement; Amendment. This Agreement contains the entire
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agreement between the Company and the Employee with respect to the subject
matter hereof and thereof. This Agreement may not be amended, changed, modified
or discharged, nor may any provision hereof be waived, except by an instrument
in writing executed by or on behalf of the party against whom enforcement of any
amendment, waiver, change, codification or discharge is sought. No course of
conduct or dealing shall be construed to modify, amend or otherwise affect any
of the provisions hereof.
18. Notices. All notices, request, demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given if
physically delivered, delivered by express mail or other expedited service or
upon receipt if mailed, postage prepaid, via first class mail as follows:
(a) To the Company:
I-Link Worldwide Inc.
00 X. Xxxxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxx, Xxxx
(b) With an additional Copy by like means to:
Xxxxx X. Xxxxxx
0000 X. 0000
Xxxxx, Xxxx 00000
(c) To the Employee:
Xxxx X. Xxxxx Xx.
0000 Xxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
and/or to such other persons and addresses as any party hereto shall have
specified in writing to the other.
19. Assignability. This Agreement shall be assignable by the Employee with
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the prior written Consent of the Company and shall be binding upon and shall
inure to the benefit of, his heirs, executors, administrators, legal
representatives and any permitted assignee. This Agreement shall be assignable
by the Company to any affiliate, subsidiary or division thereof and to any
successor in interest, subject to the Employee's right to terminate employment
hereunder Pursuant to Section 7 above.
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20. Governing Law. This Agreement shall be governed by and construed under
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the laws of the State of Utah, without regard to the principles of conflicts of
laws thereof.
21. Waiver and Further Agreement. Any waiver of any breach of any terms or
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conditions of this Agreement shall not operate as a waiver of any other breach
of such terms or conditions or any other term or condition hereof, nor shall any
failure to enforce any provision hereof operate as a waiver of such Provision or
of any other provision hereof. Each of the parties hereto agrees to execute all
such further instruments and documents and to take all such further action as
the other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
22. Headings of No Effect. The paragraph headings contained in this
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Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
23. Counterparts. This Agreement may be executed simultaneously in two or
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more counterparts each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
I-Link Worldwide Inc.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Its: President
Xxxx X. Xxxxx, Xx.
/s/ Xxxx X. Xxxxx, Xx.
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