CO-FOUNDER EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 22nd day of May, 2000, by and between ONE WORLD XXXXXX.XXX, INC., a
Nevada corporation (the "Company"), and Xxxxx X. Xxxxxxx, a co-founder and
individual ("Executive").
WITNESSETH:
WHEREAS, the Company desires to retain the services of the Executive,
and the Executive desires to be employed by the Company, on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Company and Executive, intending
to be legally bound, hereby agree as follows:
1. Employment. The Company hereby employs Executive as the Company's
President and Chief Executive Officer. Executive accepts such employment and
agrees to perform services for the Company, subject always to such resolutions
as are established from time to time by the Board of Directors of the Company,
for the period and upon the other terms and conditions set forth in this
Agreement.
2. Term. The term of Executive's employment hereunder shall commence as
of the date of this Agreement, and shall continue until this Agreement is
terminated by either party, for any reason whatsoever, this being an "at will"
employment agreement, provided that Sections 5 and 10 of this Agreement shall
govern the amount of any compensation and severance to be paid to Executive upon
termination of this Agreement.
3. Position and Duties.
3.1 Service with the Company. During the term of this
Agreement, Executive agrees to perform such executive employment duties as the
Company's Board of Directors, to whom Executive shall report, shall assign from
time to time.
3.2 Conflicting Duties. During the term of this Agreement,
Executive shall not serve as an officer, director or employee to any business
without the prior notification of the Company's Board of Directors.
4. Compensation.
4.1 Base Salary. As compensation for all services to be
rendered by Executive under this Agreement, the Company shall pay to Executive a
beginning base monthly salary of Twelve Thousand Dollars ($12,000.00) (the "Base
Salary"), less required withholdings, which shall be paid on a regular basis in
accordance with the Company's normal payroll procedures and policies.
4.2 Signing Bonus. As additional compensation and as an
inducement for Executive entering into this Agreement, the Company agrees to pay
Executive a One Hundred Forty-Four Thousand Dollar ($144,000) signing bonus. The
bonus will be paid, in the discretion of the Company, no later than June 30,
2000. At the election of the Executive, the bonus may be paid in cash or
restricted common stock of the Company. The common stock shall be valued at
Three Dollars ($3) per share for purposes of this Section 4.2.
4.3 Bonuses.
(a) Beginning on the date hereof, Executive shall be
entitled to a quarterly bonus equal to (i) One and One-Half percent (1.5%) of
Shared Revenue as that term is defined in the Company's IMC Compensation Plan,
plus (ii) Two Percent (2%) of all funds received by the Company as payment for
community account membership
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renewal fees. Any bonus to which Executive is entitled under this Subsection
4.3(a) shall be (y) reduced by the amount of the base salary to which the
Executive was entitled during the quarterly period in question and (z) payable
only to the extent that during the quarterly period in question the Company has
positive cash flow from operating activities both before and after the payment
of the bonus.
(b) It is expected that, in addition to the
Executive, at least one other Company employee and consultant will be entitled
to a quarterly bonus calculated in substantially the same manner as the bonus
described in Subsection 4.3(a) (collectively, a "Bonus"). To the extent that the
Bonus is limited as a result of the Company's cash flow from operating
activities, then the amount of the such Bonus payable to all employees and/or
consultants entitled to a Bonus shall be reduced in proportion, as nearly as
practicable, to the respective amount of Bonus to which each employee is
entitled during the quarterly period in question. In the event any amount of
Bonus is reduced by reason of this Section 4.3, no amount of Bonus shall accrue
to any future quarterly or other period.
4.4 Participation in Benefit Plans. Executive shall be
included to the extent eligible thereunder in any and all plans pursuant to
which the Company may provide general benefits for the Company's employees,
including but not limited to insurance, 401(k) plan, and holidays. Executive's
participation in any such plan or program shall be subject to the provisions,
rules and regulations applicable thereto.
4.5 Business Expenses. In accordance with the Company's
policies established from time to time, the Company will pay or reimburse
Executive for all reasonable and necessary out-of-pocket expenses incurred by
him in the performance of his duties under this Agreement, subject to the
presentment of appropriate vouchers. These expenses shall include reimbursement
for Executive's mobile phone.
5. Compensation Upon the Termination of Executive's Employment by the
Company.
5.1 Compensation upon Disability. In the event that
Executive's employment is terminated pursuant to Section 10.1, then Executive
shall be entitled to receive Executive's then current monthly Base Salary at
such time as his Disability is determined or the Bonus Compensation due pursuant
to Section 4.3. The Company will pay whichever amount is greater until the death
of the Executive.
5.2 Compensation upon Resignation or Termination for Cause. In
the event that Executive's employment is terminated pursuant to Section 10.3 or
10.4, then Executive shall be entitled to receive Executive's then current
monthly Base Salary through the date his employment is terminated, but no other
compensation of any kind or amount, except for previously vested stock options
and stock.
5.3 Compensation upon Death. In the event Executive's
employment is terminated pursuant to Section 10.2, Executive's beneficiary or a
beneficiary designated by Executive in writing to the Company, or in the absence
of such beneficiary, Executive's estate, shall be entitled to receive
Executive's then current monthly Base Salary through the end of the twenty sixth
(26) week in which his death occurs, plus the proceeds from a $3 million term
life policy which will be kept in effect for the term of the Executive's
employment. Such term life policy will be activated within ninety days of the
execution of this agreement.
5.4 Compensation upon Termination without Cause. In the event
Executive is terminated by the Company pursuant to Section 10.5, the Company
shall pay to Executive, as a severance allowance, his then current monthly Base
Salary or the Bonus Compensation due pursuant to Section 4.3. The Company will
pay whichever amount is greater until the death of the Executive.
All payments required to be made by the Company to Executive pursuant to this
Section 5 shall be paid in the manner and at the times specified in Section 4.1
or 4.3 hereof, whichever amount is greater.
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6. Confidential Information. Except as permitted or directed by the
Company's Board, Executive shall not during the term of his employment under
this Agreement or at any time thereafter divulge, furnish, disclose or make
accessible (other than in the ordinary course of the business of the Company) to
anyone for use in any way any confidential or secret knowledge or information of
the Company, or any predecessor or successor of the Company which Executive has
acquired or becomes acquainted with or will acquire or become acquainted with
prior to the termination of the period of his employment by the Company, whether
developed by Executive or by others, concerning any trade secrets, confidential
or secret designs, processes, formulae, software or computer programs, plans,
devices or material (whether or not patented or patentable, copyrighted or
copyrightable) directly or indirectly useful in any aspect of the business of
the Company, any confidential customer or supplier lists of the Company, any
strategic or financial plans, any confidential or secret development or research
work of the Company, or any other confidential, secret or nonpublic aspects of
the business of the Company. Executive acknowledges that the above-described
knowledge or information constitutes a unique and valuable asset of the Company
acquired at great time and expense by the Company, and that any disclosure or
other use of such knowledge or information other than for the sole benefit of
the Company would be wrongful and would cause irreparable harm to the Company
both during and after the term of this Agreement, Executive will refrain from
any acts or omissions that would reduce the value of the use of such knowledge
or information to the Company. The foregoing obligations of confidentiality,
however, shall not apply to any knowledge or information which is now published
or which subsequently becomes generally publicly known, other than as a direct
or indirect result of the breach of this Agreement by Executive. For purposes of
this Agreement in discussing Executives obligations, "Company" shall include any
subsidiaries of the Company.
7. Proprietary Rights Agreement. Contemporaneous with the execution of
this Agreement, Executive shall execute and deliver to the Company an Executive
Proprietary Rights Agreement in the form attached hereto as Exhibit A.
8. Ventures. If, during the term of this Agreement, Executive is
engaged in or associated with the planning or implementing of any project,
program or venture involving the Company and a third party or parties, all
rights in the project, program or venture shall belong to the Company and shall
constitute a corporate opportunity belonging exclusively to the Company. Except
as approved by the Company's Board of Directors, Executive shall not be entitled
to any interest in such project, program or venture or to any commission,
finder's fee or other compensation in connection therewith other than the salary
to be paid to Executive as provided in this Agreement.
9. Non-Competition; Solicitation of Customers and Solicitation of
Employees.
9.1 Non-Competition.
(a) Executive agrees that, during the period of his
employment hereunder and for a period of eighteen (18) months following the
termination of his employment with the Company for any reason, he shall not,
directly or indirectly, engage in competition with the Company within any state
in the United States, or any country, in which the Company is then conducting
its business (the "Territory") in any manner or capacity (e.g., as a management
consultant, principal, partner, officer, director, stockholder or employee) in
any phase of the Company's business as then being conducted.
(b) Executive further agrees that, during the term of
this Agreement and for eighteen (18) months after its termination, he will not,
directly or indirectly, assist or encourage any other person in carrying out,
directly or indirectly, any activity that would be prohibited by the above
provisions of this Section 9 if such activity were carried out by Executive,
either directly or indirectly, and in particular Executive agrees that he will
not, directly or indirectly, induce any employee of the Company to carry out,
directly or indirectly, any such activity.
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9.2 Agreement Not to Solicit Customers. Executive agrees that
during his employment by the Company hereunder and for the period in which a
covenant not to compete is in effect hereunder as to Executive, he will not,
either directly or indirectly, on his own behalf or in the service or on behalf
of others, solicit, divert or appropriate, or attempt to solicit, divert or
appropriate, to any competing business (i) any person or entity whose account
with the Company was sold or serviced by or under the supervision of Executive
during the year preceding the termination of such employment, or (ii) any person
or entity whose account with the Company has been directly solicited at least
twice by the Company within the eighteen (18) month period prior to the date of
termination of employment.
9.3 Agreement Not to Solicit Employees. Executive agrees that
during his employment by the Company hereunder and for the eighteen (18) month
period following the termination of such employment for any reason, he will not,
either directly or indirectly, on his own behalf or in the service or on behalf
of others solicit, divert or hire away, or attempt to solicit, divert or hire
away any person then employed by the Company or then serving as a sales
representative of the Company.
10. Termination.
10.1 Disability. Executive's employment shall terminate upon
Executive's becoming totally or permanently disabled for a period of six (6)
months or more. For purposes of this Agreement, the term "totally or permanently
disabled" or "total or permanent disability" means Executive's inability on
account of sickness or accident, whether or not job-related, to engage in
regularly or to perform adequately his assigned duties under this Agreement. A
reasonable determination by the Board of Directors of the existence of a
disability shall be conclusive for all purposes hereunder. In making such
determination of disability, the Board of Directors may utilize such advice and
consultation as the Board of Directors deems appropriate, but there is no
requirement of procedure or formality associated with the making of a
determination of disability.
10.2 Death of Executive. Executive's employment shall
terminate immediately upon the death of Executive.
10.3 Termination for Cause. The Company may terminate
Executive's employment at any time for "Cause" (as hereinafter defined)
immediately upon written notice to Executive. Such written notice shall set
forth with reasonable specificity the Company's basis for such termination. As
used herein, the term "Cause" shall mean that Executive shall have committed a
criminal act or embezzlement.
10.4 Resignation. Executive's employment shall be terminated
on the earlier of the date that is three (3) months following the written
submission of Executive's resignation to the Board or the earlier date such
resignation is accepted by the Board.
10.5 Termination Without Cause. The Company may terminate
Executive's employment without cause upon written notice to Executive.
Termination "without cause" shall mean termination of employment on any basis
other than termination of Executive's employment hereunder pursuant to Sections
10.1, 10.2, 10.3 or 10.4.
10.6 Surrender of Records and Property. Upon termination of
his employment with the Company, Executive shall deliver promptly to the Company
all records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof, which are the
property of the Company and which relate in any way to the business, products,
practices or techniques of the Company, and all other property, trade secrets
and confidential information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession or
under his control.
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11. Assignment. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party, except
that the Company may, without the consent of Executive, assign its rights and
obligations under this Agreement to any corporation, firm or other business
entity (i) with or into which the Company may merge or consolidate, or (ii) to
which the Company may sell or transfer all or substantially all of its assets or
of which 50% or more of the equity investment and of the voting control is
owned, directly or indirectly, by, or is under common ownership with, the
Company. Upon such assignment by the Company, the Company shall obtain the
assignees' written agreement enforceable by Executive to assume and perform,
from and after the date of such assignment, the terms, conditions, and
provisions imposed by this Agreement upon the Company.
12. Injunctive Relief. Executive agrees that it would be difficult to
compensate the Company fully for damages for any violation of the provisions of
this Agreement, including without limitation the provisions of Sections 6, 9,
10.6 and the provisions in the Employee Proprietary Rights Agreement
contemplated in Section 7. Accordingly, Executive specifically agrees that the
Company shall be entitled to temporary and permanent injunctive relief to
enforce the provisions of this Agreement and the provisions of the Employee
Proprietary Rights Agreement contemplated in Section 7. This provision with
respect to injunctive relief shall not, however, diminish the right of the
Company or Executive to claim and recover damages in addition to injunctive
relief.
13. Miscellaneous.
13.1 Governing Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of Utah.
13.2 Prior Agreements. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understanding with respect to such subject matter, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
13.3 Withholding Taxes. The Company may withhold from any
benefits payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
13.4 Amendments. No amendment or modification of this
Agreement shall be deemed effective unless made in writing signed by the parties
hereto.
13.5 No Waiver. No term or condition of this Agreement shall
be deemed to have been waived nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
13.6 Severability. To the extent any provision of this
Agreement shall be invalid or unenforceable, it shall be considered deleted here
from and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect. In furtherance and not
in limitation of the foregoing, should the duration or geographical extent of,
or business activities covered by any provision of this Agreement be in excess
of that which is valid and enforceable under applicable law, then such provision
shall be construed to cover only that duration, extent or activities which may
validly and enforceably be covered. Executive acknowledges the uncertainty of
the law in this respect and expressly stipulates that this Agreement shall be
given the construction which renders its provisions valid and enforceable to the
maximum extent (not exceeding its express terms) possible under applicable law.
13.7 Survival. Sections 6, 7, 8, 9 and 10.6 shall survive
termination of this Agreement.
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IN WITNESS WHEREOF, the parties have executed and sealed this Agreement
as of the day and year set forth above.
ONE WORLD XXXXXX.XXX, INC.
By /s/ Xxxxx Xxxxxx
-----------------------
Xxxxx Xxxxxx
Its Chairman
/s/ Xxxxx X. Xxxxxxx
-----------------------
Xxxxx X. Xxxxxxx
"Executive"
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Exhibit "A"
Executive Proprietary Rights Agreement
THIS AGREEMENT CREATES IMPORTANT OBLIGATIONS WHICH ARE BINDING. PLEASE
READ IT IN FULL BEFORE YOU SIGN.
I recognize the importance of protecting the Company's rights to
inventions, discoveries, ideas, confidential information and other intellectual
property, and for good and valuable consideration which I have received, I agree
to the following:
1. DEFINITIONS. For the purposes of this Agreement:
(a) "Company" means I Ventures, Inc., a Colorado corporation, dba One
World Online Technologies; One World Online, Incorporated, a Utah corporation,
dba One World Online Marketing; One World Xxxxxx.xxx, Inc., a publicly traded
Nevada corporation, which is the parent of I Ventures, Inc. and One World
Online, Incorporated; and any successor, parent corporation or affiliate of the
Company.
(b) "Creation" means any invention, discovery, idea, concept, design,
process, work of authorship, development or improvement (whether or not subject
to copyright or patent protection and whether or not reduced to practice by me):
(i) relating to any present or reasonably anticipated business of the Company
and which was created and/or otherwise developed during the course of my
employment or relationship with the Company, (ii) which was created or otherwise
developed during Company time, or (iii) which was created or otherwise developed
at any time using equipment, supplies, facilities, information or proprietary
rights or other property of the Company. I expressly agree that the term
"Creation" shall include Creations developed by me for the Company at any time,
including Creations developed prior to the date of this Agreement.
(c) "Confidential Information" means information (including information
created by me) which is not generally known about the Company or its business,
including without limitation about its products, projects, designs,
developmental or experimental work, computer programs, data bases, know-how,
processes, formulas, customers, suppliers, business plans, marketing plans and
strategies, finances, or personnel, and information obtained from third parties
under confidentiality agreements.
2. OWNERSHIP OF CREATIONS
(a) Inventions Retained by Employee. I represent that all matters which
I have created or otherwise developed prior to this employment agreement are
excluded from my obligations to the Company under this agreement.
(b) Assignment of Creations. I hereby agree to hold in trust for the
sole right and benefit of the Company and assign to the Company all my right,
title and interest in and to any and all Creations created or otherwise
developed, alone or in conjunction with others. I further agree to assign to any
third party, as directed by the Company, all my right, title and interest in and
to any and all Creations whenever such assignment is required by a contract
between the Company and such third party.
(c) Maintenance of Records. I agree to keep and maintain adequate and
current written records of all Creations made by me, in the form of notes,
sketches, drawings and other notations which may be specified by the Company,
which records shall be available to and remain the sole property of the Company
at all times.
(d) Disclosure of Creations and Filings. I agree to promptly disclose
to the Company in writing all Creations created or otherwise developed by me
alone or in conjunction with others, as well as any and all patent applications
or copyright registrations filed by me during and within a year after
termination of my employment with the Company.
(e) Assistance. During and after the period of my employment by the
Company, I agree that I will give the Company all assistance it reasonably
requires (at the Company's expense) to file for, maintain, protect and enforce
the Company's patents, copyrights, trademarks, trade secrets and other rights in
Creations, in any and all countries. To that end I will sign documents and do
other acts which the Company may determine to be reasonably necessary or
desirable including, without limitation, giving evidence and testimony in
support of the Company.
(f) Intellectual Property Rights in Works of Authorship. I acknowledge
and agree that any intellectual property rights Creations which are works of
authorship belong to the Company and are "works made for hire" within the
definition of section 101 of the United States Copyright Acts of 0000, Xxxxx 00,
Xxxxxx Xxxxxx Code. The Company or any of its direct or indirect licensees shall
not be obligated to designate me as author of any design, software, firmware,
related documentation, or any other work of authorship when distributed publicly
or otherwise, nor to make any distribution.
3. CONFIDENTIAL INFORMATION
(a) Ownership of Confidential Information. All Confidential Information
which I create or otherwise develop or which comes into my possession shall be
and remain the exclusive property of the Company.
(b) No Disclosure of Confidential Information. Unless authorized in
writing by the Company, I will maintain all Confidential Information in
confidence and, except as necessary in conjunction with my work for the Company,
will not copy or make notes of, divulge to anyone outside the Company or use any
of the Confidential Information for my own or another's benefit, either during
or after the term of my employment with the Company. I agree that I will
promptly disclose to the Company all Confidential Information developed by me.
(c) Returning the Company Documents and Tangible Property. Upon request
of the Company and, in any event, upon termination of my employment, I will
promptly surrender and deliver to the Company (and will not keep in my
possession or deliver to anyone else) and agree not to use any Confidential
Information, records, data, notes, reports, proposals, lists, correspondence,
computer code, specifications, drawings, blueprints, sketches, flow diagrams,
materials, equipment, devices or any other documents or property (including
photocopies or other reproductions of any of the aforesaid items) of the
Company.
(d) Confidential Information of Third Parties. During my employment
with the Company I may receive, under non-disclosure agreements agreed to by
authorized representatives of the Company, information claimed by third parties
to be their confidential information. I agree that I will respect such
agreements and will not disclose such information to any person or organization,
except as is necessary in carrying out my work for the Company consistent with
the Company's agreement with such third parties. At the request of the Company
and, in any event, upon the termination of my employment, I will promptly
surrender to the Company any such information.
4. NON-USE OF PROPERTY OF THIRD PARTIES. During my employment with the Company,
I will not improperly use or disclose any confidential or proprietary
information or property of any third party (including any former employer).
5. NO PRIOR RESTRICTIONS. I hereby represent and warrant that I am free to enter
into your employ and that there are no contracts or restrictive covenants
preventing full performance of my duties.
6. LIMITATIONS ON COMPETITIVE ACTIVITIES DURING EMPLOYMENT. During my employment
with the Company, I will not, alone or with others, directly or indirectly, work
on, plan, organize or engage in any consulting, employment or other business
activity (whether or not for compensation) that is competitive with the business
in which the Company is involved or may hereafter become involved, nor will I
engage in any other activity that conflicts with my obligations to the Company.
7. NO GUARANTEE OF EMPLOYMENT. I expressly acknowledge and agree that this is
not an agreement by the Company to employ me for any period, and unless
otherwise expressly agreed in writing between me and the Company, my employment
with the Company may be terminated at any time, with or without cause by either
myself or the Company. All of the terms of this Agreement shall survive any
termination of my employment.
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8. MISCELLANEOUS
(a) Severability. If any provision of this Agreement or portion thereof
is determined by a court of competent jurisdiction to be wholly or partially
unenforceable for any reason, such provision or portion thereof shall be
considered separate from the remainder of this Agreement, which shall remain in
full force and effect. In furtherance and not in limitation of the foregoing,
should the duration or geographical extent of, or business activities covered by
any provision of this Agreement be in excess of that which is valid and
enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered. I acknowledge the uncertainty of the law in this respect and
expressly stipulates that this Agreement shall be given the construction which
renders its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law.
(b) Waiver. The Company's waiver or failure to enforce any violation or
provision of this Agreement shall not constitute a waiver of its rights
hereunder with respect to any other violation or provision of this Agreement,
and shall be effective only in the specific instance and for the specific
purpose given.
(c) Reasonableness. The restrictions contained in this Agreement are
considered by me to be fair and reasonable and necessary for the protection of
the legitimate business interests of the Company. I acknowledge that I can earn
a livelihood without violating any of the undertakings contained in this
Agreement.
(d) Foreign Laws. I agree to comply with the applicable laws of any
foreign countries with which the Company does business.
(e) Governing Law. This agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Utah.
(f) Employee Policy Manual. I agree to be bound by the policies and
procedures manual(s) of the Company, as such manual may be amended from time to
time, as well as any relevant internal office memoranda.
(g) Successors. This Agreement shall be for the benefit of and be
binding upon: i) my executors, heirs, legatees and personal representatives, and
ii) the successors and assigns of the Company.
(h) Entirety of Agreement. This Agreement supersedes all prior
agreements concerning Creations and Confidential Information between myself and
the Company.
(i) Acknowledgment I acknowledge that I have received a copy of, and
agree to, this Executive Proprietary Rights Agreement. I further acknowledge
that I have been given the opportunity to consult with an attorney or other
advisor of my choosing regarding the terms and conditions of this Executive
Proprietary Rights Agreement prior to my signing of this Executive Proprietary
Rights Agreement.
Xxxxx X. Xxxxxxx
------------------------ ---------------------------
Print Name Executive Soc. Sec. No.
/s/ Xxxxx X. Nemalka May 22, 2000
------------------------ ---------------------------
Executive Signature Date
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