EXHIBIT 10
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
into as of the 1st day of May, 2000, by and between e resources inc, a Utah
corporation and its subsidiaries (collectively, the "Company")
and________________, a resident of Tarrant County, Texas (the "Executive").
WITNESSETH:
WHEREAS, the Company is an acquisition and development company engaged in
investing in, and directing the business strategy of companies in the business
of providing Internet, Intranet, and electronic commerce based applications
(herein called "Development Companies");
WHEREAS, the Company expects to invest and expend substantial time, effort
and money to develop methods, approaches, strategies and systems which, in the
Company's view, constitute trade secrets and confidential or proprietary
information;
WHEREAS, the Company desires to obtain the Executive's services to assist
in operating its business on the terms and conditions herein provided; and
WHEREAS, the Executive is willing to commit himself to serve the Company on
the terms and conditions herein provided.
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ the Executive and the Executive
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shall serve the Company, on the terms and conditions set forth herein.
2. Term. The employment of the Executive by the Company shall commence as
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of May 1, 2000 and end on the third anniversary of such date; subject, however,
to the termination provisions contained herein. This Agreement shall
automatically be renewed for additional successive one (1) year terms, unless
either party gives notice of intent to terminate this Agreement to the other
party not less than ninety (90) days prior to the end of the term then in
effect.
3. Position and Duties. The Executive shall be employed by the Company as
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______________ and shall report to the Board of Directors of the Company (the
"Board of Directors") and such other persons as the Board of Directors may from
time to time designate. The Executive shall have such duties and powers as may
be delegated to him from time to time by the Board of Directors.
4. Service of Executive. The Executive agrees that he will:
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(a) Faithfully and diligently serve the Company to the best of his
ability in an executive capacity.
(b) Hold such office or offices as the shareholders or the Board of
Directors may determine from time to time.
(c) Perform such executive duties as may be committed to him by the
Board of Directors.
(d) Devote his full working time and attention to the business of the
Company.
(e) Stand for election as a member of the Board of Directors and serve
as a director if and when so elected.
(f) Be available to travel both domestically and internationally on
Company business as the needs of the Company may reasonably require.
5. Place of Performance. The Executive shall be based at the principal
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executive offices of the Company which shall initially be located in Roanoke,
Texas, but which thereafter may be established at any other location as
determined by the Board of Directors.
6. Compensation and Related Matters.
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(a) Salary. The Company shall pay to the Executive as base compensation
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for his services hereunder an initial annual salary of One Hundred Twenty
Thousand Dollars ($120,000.00) payable in accordance with the Company's
payroll policy as then in effect (the "Base Salary"), but in no event shall
such Base Salary be payable less frequently than in approximately equal bi-
monthly installments. Effective on each anniversary of this Agreement, the
Executive shall be eligible for a raise of his Base Salary, to be
determined by the Board of Directors. Any increase in the Executive's Base
Salary shall be in writing. In no event shall the Executive's Base Salary
be reduced by the Company.
(b) Stock Options. As an additional inducement for the Executive to
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enter into this Agreement, upon execution of this Agreement by the parties
and approval of the Company's Stock Option Plan by the Company's Board of
Directors and shareholders, the Company shall grant to the Executive
options to acquire One Hundred Thousand (100,000) shares of the Company's
common stock. Such options will be evidenced by a Stock Option Agreement
and Grant in substantially the form attached hereto as Exhibit A, and will
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vest in accordance with the vesting schedule set forth on Schedule A to the
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Stock Option Agreement.
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(c) Bonus. In addition to the compensation provided for under Sections
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6(a) and 6(b) above, the Executive will be eligible to be paid such
bonuses, if any, as shall be determined by the Board of Directors which
shall be based on the Executive's performance and contribution to the
Company. Any such bonus may be paid to the Executive in cash, stock
options, or other compensation at the discretion of the Board of Directors.
(d) Expense Payments and Reimbursement. The Executive shall be entitled
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to receive direct payment of or reimbursement for all reasonable travel and
business expenses in connection with services performed by the Executive
hereunder, in accordance with the established policies of the Company with
respect to expense payment and/or reimbursement. As a condition of
receiving any such payment or reimbursement, the Executive shall assist the
Company in accounting for such expenses to the extent necessary to
substantiate the Company's Federal income tax deductions for such expenses
under the Internal Revenue Code of 1986, as amended from time to time and
the regulations thereunder (the "Code").
(e) Benefits. The Executive shall be entitled to receive benefits
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under the Company's benefit plans as now in effect or hereafter
implemented, including, without limitation, health, dental, vision, life
and disability insurance, or any similar benefits (collectively, the
"Benefits") on terms which are no less favorable than the benefits made
available to other executive officers of the Company.
(f) Vacation. The Executive shall be entitled during each of the
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Company's fiscal years, at a time mutually convenient to the Company and
the Executive, to an annual vacation of no less than twenty (20) business
days (of which no more than ten (10) business days may be taken
consecutively without the prior consent of the Company) during which time
the Executive's Base Salary will be paid in full.
7. Death. The Executive's employment hereunder shall terminate upon his
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death, and the Company shall pay the Executive his full Base Salary for thirty
(30) days past the date of the Executive's death. Benefits shall continue in
accordance with the Company's policies as then in effect.
8. Disability.
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(a) If as a result of the Executive's incapacity due to substantial
physical or mental disability which renders or will render the day to day
performance of the Executive's duties impossible or hazardous to perform
("Disability"), the Executive shall have been absent from the performance
of his duties hereunder for a consecutive period of ninety (90) days, or an
aggregate of ninety (90) days out of any one hundred eighty (180) day
period, either party may terminate the Executive's employment based upon
such Disability, upon the giving of thirty (30) days written notice of such
party's intent to terminate the Executive's employment. In no event shall
termination of the Executive due to his Disability be effective prior to
the end of the running of the ninety (90) or one hundred eighty (180) day
period, which ever is appropriate.
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(b) If the Executive returns to the performance of his duties under
this Agreement on a full time basis before the expiration of the thirty
(30) days written notice of termination given pursuant to Section 11(a),
then the Executive shall not be terminated but shall retain his employment
with the Company.
(c) During any period of Disability, the Executive shall continue to
receive his full Base Salary at the rate in effect for such period of
Disability. Upon termination of the Executive's employment due to
Disability, the executive shall continue to receive his full Base Salary
for a period of one (1) year from the date of termination. Base Salary
payments made to the Executive during any such period of Disability or for
the subsequent year thereafter shall be reduced by any disability benefits
paid to the Executive under the Company's disability plan.
9. Termination With Cause by the Company.
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(a) Definition. Upon a unanimous vote of the Board of Directors
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(excluding the Executive, if he is a member of the Board of Directors), the
Company may immediately terminate the Executive's employment under this
Agreement at any time if such termination is "With Cause." For purposes of
this Agreement, the term "With Cause" shall include, without limitation,
any of the following:
(i) an intentional act of fraud, embezzlement or theft in
connection with the Executive's duties or in the course of the
Executive's employment with the Company;
(ii) intentional or willful damage to property of the Company;
(iii) the willful or negligent failure of the Executive to
substantially perform his duties hereunder or to comply with the terms
of this Agreement, after written demand for substantial performance is
delivered to the Executive by the Company, which failure has not been
cured within thirty (30) days after the Executive's receipt of such
written notice; or
(iv) the conviction of the Executive for any felony or misdemeanor
involving dishonesty, deceit, fraud or moral turpitude.
(b) Termination Payments. If the Executive's employment is terminated
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by the Company With Cause, then the Company shall pay the Executive his
full Base Salary and benefits through the date of termination at the rate
then in effect.
10. Termination Without Cause by the Company.
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(a) Definition. The Company may terminate the Executive's employment
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under this Agreement Without Cause upon ninety (90) days' prior written
notice to the Executive of such termination. For purposes of this
Agreement, the term "Without
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Cause" shall mean termination by the Company on any grounds other than the
Executive's Death, Disability, termination With Cause, or the expiration of
this Agreement pursuant to Section 2 hereof (if not renewed).
(b) If the Executive's employment is terminated pursuant to any Change
in Control of the Company, then the Executive shall be deemed to have been
terminated Without Cause. For purposes of this Agreement, "Change In
Control" shall mean fifty percent (50%) or more of the equity ownership
interest of the Company is transferred during any twelve (12 ) month
period.
(c) Termination Payments. If the Executive's employment is terminated
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by the Company Without Cause, then the Company shall pay the Executive his
full Base Salary through the date of termination at the rate then in
effect. In addition, after the date of termination, the Company shall pay
the Executive an amount equal to 150% of the Executive's annual Base Salary
at the rate then in effect (the "Termination Payment"). Such Termination
Payment shall be made, at the option of the Company, in a lump sum or in
accordance with the Company's payroll policy as then in effect, but in no
event shall such payments be made less frequently then in bimonthly
installments over the one (1) year period immediately following the
Executive's termination. In addition, during the one (1) year period
immediately following the Executive's termination, the Company shall
continue to provide the Executive with such Benefits as the Executive was
entitled to receive immediately prior to his termination. In addition, any
stock options granted to the Executive shall vest immediately upon
termination. All options vested prior to and at termination shall be
immediately exercisable and shall expire pursuant to the provisions of the
Company's Stock Option Plan.
11. Termination by the Executive.
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(a) Right to Terminate For Any Reason. The Executive may terminate
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his employment hereunder at any time, for any reason, by providing the
Company with at least ninety (90) days written notice of such intent to
terminate his employment. In the event that the Executive terminates his
employment pursuant to this Section 11(a), then the Company shall pay the
Executive his full Base Salary and Benefits through the date of termination
at the rate then in effect.
(b) Termination by the Executive for Breach. In the event that the
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Company (i) fails to comply with any material provision of this Agreement,
which failure has not been cured within thirty (30) days after written
notice of such noncompliance has been given by the Executive to the
Company; (ii) removes the Executive from his position as President of the
Company, or otherwise demotes the Executive; or (iii) relocates the
corporate headquarters of the Company to a location greater than fifty (50)
miles from its present location without the Executive's consent; then the
Executive shall be entitled to terminate his employment by providing the
Company with at least thirty (30) days written notice of such intent to
terminate his employment; provided, however, that if the Executive gives
the Company written notice of noncompliance pursuant to this Section
11(b)(i) and the Company fails to cure its noncompliance, then the
Executive's
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termination shall be deemed effective upon the expiration of such thirty
(30) day written notice. In the event that the Executive terminates his
employment pursuant to this Section 11(b), then the Company shall pay the
Executive his full Base Salary and Benefits through the date of termination
at the rate then in effect. .In addition, any stock options granted to the
Executive shall vest immediately upon termination. All options vested prior
to and at termination shall be immediately exercisable and shall expire
pursuant to the provisions of the Company's Stock Option Plan.
12. Limitation on Payments. Notwithstanding anything in this Agreement or
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elsewhere to the contrary, in the event that any compensation received by the
Executive pursuant to this Agreement would (a) constitute a "parachute payment"
within the meaning of Section 280G of the Code and (b) but for this Section 12,
be subject to the excise tax imposed by Section 4999 of the Code (the "Excise
Tax"), then, such compensation shall be reduced to the largest amount which
would result in no portion of the compensation being subject to the Excise Tax.
The Company further agrees that, as soon as practicable following the written
request of the Executive, the Company shall request stockholder approval with
respect to Code Section 280G(b)(5). Any disputes with respect to the
determination of the Executive's compensation pursuant to this Section 12 shall
be resolved by an accounting or law firm that is mutually acceptable to the
Company and the Executive.
13. Representations and Warranties of the Executive. The Executive
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represents and warrants to the Company that:
(a) The Executive is not a party to any contract or other restriction
or obligation, the compliance of which is inconsistent with the execution
of this Agreement, the performance of the Executive's obligations
hereunder, or the rights of the Company hereunder; and
(b) As of the date of this Agreement, the Executive is under no
physical or mental disability that would hinder the full performance of his
duties and obligations under this Agreement.
14. Return of Information. Upon termination of this Agreement by either
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party, at the request of the Company, all documents, information, manuals,
customer lists, credit cards and any other materials or property of the Company
in the Executive's possession or control, including all copies thereof, shall be
returned to the Company by the Executive.
15. Covenant Not to Disclose Trade Secrets or Other Confidential
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Information. The Executive hereby assigns to Company all of his right, title,
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and interest to, and shall promptly disclose to Company, all ideas, inventions,
discoveries, or improvements (whether or not patentable) conceived or developed
solely or jointly by the Executive during his employment with Company that (a)
relate to the business or the actual or anticipated research or development of
the Company, its subsidiaries or any of the Development Companies; (b) result
from any work performed by the Executive for the Company, its subsidiaries or
any of the Development Companies; or (c) for which equipment, supplies, or
facilities of the Company, its Subsidiaries or any of the Development Companies
were used. During the term of this Agreement and
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perpetually thereafter, the Executive shall keep secret all confidential and
proprietary trade secrets and all other designated confidential and/or
proprietary information of the Company, its Subsidiaries or any of the
Development Companies. The Executive shall not disclose such trade secrets and
confidential information to anyone outside of the Company, except as required by
law or in the course of performing his duties hereunder.
16. Covenant of Nondisparagement. The Executive agrees and promises
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that, during the term of this Agreement, he shall not make any libelous,
disparaging or otherwise injurious statements about or concerning the Company,
or its subsidiaries, officers, directors, employees or representatives. Such
prohibited statements include any statement that is intended to be injurious to
the business or business reputation of the Company, or its subsidiaries,
officers, directors, employees, or representatives.
17. Binding Agreement. This Agreement and all rights of the Executive
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hereunder shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. In addition, this Agreement and the
obligations and rights of the Company hereunder shall be binding on any person,
firm, or corporation which is a successor in interest to the Company.
18. Notice. All notices, requests and other communications under this
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Agreement shall be in writing (including a writing delivered by facsimile
transmission) and shall be deemed to have been duly given if delivered
personally, or sent by either certified or registered mail, return receipt
requested, postage prepaid, or by overnight courier guaranteeing next day
delivery, or by facsimile, addressed as follows:
If to the Executive:
________________________
________________________
________________________
Facsimile No.: (___)________
or at such other address or facsimile number as the Executive may have advised
the Company in writing; and
If to the Company:
e resources inc
000 X. Xxxxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: ________________________
Facsimile No.: _________________
or at such other address or facsimile number as the Company may have advised the
Executive in writing.
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All such notices, requests and other communications shall be deemed to have
been received on the date of delivery thereof, if delivered by hand, on the
third day after the mailing thereof, if mailed, on the next day after the
sending thereof, if by overnight courier, and when receipt is acknowledged, if
faxed.
19. Waivers and Amendments. No amendment or waiver of any provision of
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this Agreement, nor consent to any departure therefrom, shall be effective
unless the same shall be in writing and signed by each party hereto, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No failure on the part of a party hereto
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies provided in this Agreement are cumulative and not exclusive
of any remedies provided by law.
20. Captions. The captions, headings and arrangements used in this
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Agreement are for convenience only and do not in any way affect, limit or
amplify the provisions hereof.
21. Invalid Provisions. If any provision of this Agreement is held to be
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illegal, invalid or unenforceable such provision shall be fully severable and
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof; and the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by such illegal, invalid or unenforceable provision or its severance
from this Agreement.
22. Entirety. This Agreement contains the entire agreement among the
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parties with respect to the matters addressed herein and supersedes all prior
representations, inducements, promises or agreements, oral or otherwise, which
are not embodied herein.
23. Counterparts. This Agreement may be executed in multiple counterparts,
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each of which shall be deemed an original for all purposes and all of which
shall be deemed collectively to be one agreement.
24. Assignability. This Agreement may not be transferred, assigned,
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pledged or hypothecated by either party hereto without the prior written consent
of the other party to this Agreement.
25. Attorneys' Fees. In the event that any action or proceeding is
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commenced by any party hereto for the purpose of enforcing any provision of this
Agreement, the party to such action or proceeding may receive as part of any
award, judgment, decision or other resolution of such action or proceeding, its
costs and attorneys' fees as determined by the person or body making such award,
judgment, decision or resolution. Should any claim hereunder be settled short of
the commencement of any such action or proceeding, the parties may mutually
agree to include as part of the damages alleged to have been incurred reasonable
costs of attorneys or other professionals in investigation or counseling on such
claim.
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26. Governing Law. This Agreement, its validity, construction and
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interpretation and the rights and remedies of the parties hereto shall be
governed by the substantive laws of the State of Texas, without giving effect to
principles of conflict of laws thereof.
27. Arbitration. To the extent that the parties hereto are unable to
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resolve their disputes or controversies arising out of or relating to this
Agreement, including the performance, breach, validity, interpretation or
enforcement of this Agreement, and the Executive's employment and/or termination
pursuant to this Agreement, such disputes will be resolved by binding
arbitration in accordance with Title 9 of the U.S. Code (United States
Arbitration Act) and the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA"), and judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. A party
hereto may initiate arbitration by sending written notice of its intention to
arbitrate to the other party hereto and to the AAA office located in Dallas,
Texas. Such written notice will contain a description of the dispute and the
remedy sought. The arbitration will be conducted at the offices of the AAA in
Dallas, Texas before an independent and impartial arbitrator acceptable to the
parties hereto. In the event that the parties have not mutually agreed on an
acceptable arbitrator within thirty (30) days after the demand for arbitration
is filed, the arbitrator shall be appointed in the manner provided by section 13
of the Commercial Arbitration Rules of the AAA. The decision of the arbitrator
will be final and binding on the parties hereto and their successors and
assignees. The parties hereto intend that this agreement to arbitrate be
irrevocable.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first written above.
COMPANY: e resources inc
By:___________________________________
Printed Name:
Title:
EXECUTIVE:
__________________________________
Printed Name:
Title:
WITNESS:
_____________________________
Printed Name: _________________
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