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EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of April 9,
1997 by and between ON'VILLAGE COMMUNICATIONS, INC., a California corporation
(the "Company"), and XXXX XXXXXXX (the "Employee"), with reference to the
following facts:
A. Employee has previously been employed by Network Publishing,
Inc. ("NPI") and in such capacity has performed services for the
Company pursuant to arrangements between the Company and NPI.
B. Effective as of the date of this Agreement and pursuant to
an understanding among the Company, NPI and Employee, Employee
has terminated his employment with NPI and is entering into
employment by the Company pursuant to the terms and conditions
of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1. Term. The Company hereby employs Employee, and Employee hereby
accepts employment, on the terms and conditions of this Agreement. The term of
Employee's employment shall commence on the date of this Agreement, and shall
continue until terminated as provided in this Agreement.
2. Duties and Place of Employment.
(a) Duties. Employee agrees to serve the Company in the
position of Director of Technology. Employee's duties shall include those of
similar employees for a company similar to the Company and such other
reasonable duties as are specified by the officers or Board of Directors of the
Company from time to time. During the term of this Agreement, Employee will
devote substantially full time to, and use his best efforts to advance the
business and welfare of the Company.
(b) Place of Employment. Employee shall perform his
services hereunder at Orem, Utah, other suitable locations or at NPI or Provo,
Utah, provided Employee shall be available from time to time for short-term
visits to the Company's headquarters in California or such other place as it
may be located during the term of this Agreement. Employee will be available
upon reasonable request to travel for Company business when requested.
1. Salary and Benefits.
(a) Salary. For the first 12 months of this Agreement,
Company shall pay Employee a salary at the annual rate of $70,000.00 per year,
payable biweekly and subject to payroll deductions as may be necessary or
customary in respect of the Company's salaried employees in general. For each
successive 12-month period of this
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Agreement, Employee's salary shall be increased as deemed appropriate by the
Board of Directors of the Company, but in no event shall such increases be less
than increases in the cost of living for such period, as reasonably determined
by the Board of Directors.
(b) Vacations. Employees shall be entitled to 3 weeks paid
vacation during each 12-months of the term of this Agreement. Any unused
pro-rata portion of his annual paid vacation shall be paid to Employee upon
termination of his employment for any reason. Employee shall not be entitled to
any carryover of unused vacation from year to year.
(c) Annual Bonus, Incentive, Savings and Retirement Plans.
Employee shall be entitled to bonuses after the 13th month of employment as
deemed appropriate by the Board of Directors in its discretion. Employee shall
also be entitled to participate in all annual incentive plans, practices,
policies and programs applicable generally to other Director Level employees of
the Company.
(d) Welfare Benefit Plans. Employee shall be eligible for
participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company to the extent
applicable generally to other Director Level employees of the Company.
(e) Stock Option Grants. Employee shall be entitled to Stock
Option Grants as outlined in a separate Stock Option Grant Agreement.
(f) Expenses. Employee shall be entitled to receive prompt
reimbursement for all reasonable employment expenses incurred by him in
accordance with the policies, practices and procedures as in effect generally
with respect to other Director Level employees of the Company.
(g) Fringe Benefits. Employee shall be entitled to fringe
benefits in accordance with the plans, practices, programs and policies as in
effect generally with respect to other Director Level employees of the Company.
(h) Incentive Compensation. During the term of this
Agreement, and in certain events for the specified period after termination as
specifically provided elsewhere in this Agreement, Employee shall be paid
additional compensation (herein the "Incentive Compensation"), equal to one
percent (1%) of the Company's "Net Revenues" (as hereinafter defined). The
Incentive Compensation shall be calculated for each calendar quarter (or portion
thereof), and shall be paid to Employee within thirty (30) days after the end of
each calendar quarter. For purposes hereof, "Net Revenues" shall be determined
in accordance with generally accepted accounting principles as applied to the
Company by its independent certified public accountants in preparing financial
statements for the Company from time to time. "Net Revenues" is defined as gross
revenues from the Company sales less discounts and bad debts, and excludes other
income such as interest earned or any other extraordinary income.
4. Death or Disability of Employee. If employee dies or becomes
disabled prior to the expiration of this Agreement, Employee's employment under
this Agreement shall
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automatically terminate upon death or disability, as the case may be.
"Disability" shall mean any physical or mental illness that renders the
Employee unable to perform his agreed-upon services under this Agreement for
120 consecutive days or an aggregate of 180 days, whether or not consecutive,
during any consecutive 12-month period. In the event of Employee's death or
disability, the amounts due him pursuant to this Agreement through the date of
his death or disability, as the case may be, shall be paid to him, in the case
of his disability, or, in the case of his death, to whomever he has previously
designated or, in the event no such designation is made, to his estate, or to
the beneficiaries of his estate.
5. Termination for Cause. By majority vote of the Board and with
ten days' prior written notice, Employee's employment under this Agreement may
be terminated by Company for "good cause." The term "good cause" is defined as
any one or more of the following occurrences:
(a) Employee's continuing repeated willful failure or
refusal to perform his duties as required by this Agreement or other material
breach of this Agreement, provided, that termination of Employee's employment
pursuant to this subparagraph (a) shall not constitute valid termination for
cause unless Employee shall have first received written notice from the Board
of Directors of Company stating with specificity the nature of such failure or
refusal and affording Employee at least 30 days to correct the act or omission
complained of;
(b) Gross negligence, material violation by Employee of any
duty of loyalty to Company or any other material misconduct on the part of
Employee, provided that termination of Employee's employment pursuant to this
subparagraph (b) shall not constitute valid termination for cause unless
Employee shall have first received written notice from the Board of Directors
of Company stating with specificity the nature of such failure or refusal and
affording Employee at least 30 days to fully correct the act or omission
complained of and to indemnify the Company for any damage caused to it by such
act or omission.
(c) Employee's conviction by, or entry of a plea of guilty
or nolo contendere in, a court of competent and final jurisdiction for any
crime involving moral turpitude or punishable by imprisonment in the
jurisdiction involved; or
(d) Employee's commission of an act of fraud, whether prior
to or subsequent to the date hereof, upon the Company.
In the event of termination for "good cause," Employee's salary
hereunder, the Incentive Compensation, and unexercised stock options shall
terminate as of the last day of the month in which proper notice of his
termination was given to Employee.
6. Other Termination.
(a) Termination by Company. The Company may terminate this
Agreement at any time without cause by giving Employee notice of termination not
less than 30 days prior to the effective date of termination. In the event of
termination by the
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Company without cause, Employee shall be paid his salary and shall receive any
benefits to which he is otherwise entitled hereunder through the date of
termination, and shall continue to receive the incentive Compensation for a
period of three (3) years from the date of termination.
(b) Termination by Employee. Employee may terminate this
Agreement at any time without cause by giving Company
notice of termination not less than 120 days prior to
the date of termination (except in case of death or
serious disability). In the event of termination by
Employee, Employee shall be paid his salary and shall
receive any benefits to which he is otherwise entitled
hereunder through the date of termination, and shall
continue to receive the incentive Compensation: (i) for
a period of one year following the date of termination
if the termination occurs during the first one-year term
of this Agreement, (ii) for a period of two years
following the date of termination if termination occurs
during the second one-year term of this Agreement, and
(iii) for a period of three years following the date of
termination if termination occurs at any time after the
second anniversary of the term of this Agreement.
(c) Post-Employment Consultation. Upon Termination by
Employee, Employee shall be available to the Company,
upon reasonable notice, not to exceed 20 hours per month
for consultation regarding the Company's technological
activities. The compensation shall be $100 per hour. The
post-employment consultation period will end
simultaneously with the end of the Incentive
Compensation.
7. Confidential Information. Employee shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Employee
during his employment by the Company or any of its affiliated companies and
which shall not be or become public knowledge (other than by acts by the
Employee or his representatives in violation of this Agreement). After
termination of the Employee's employment with the Company, he shall not,
without the prior written consent of the Company, or as may otherwise be
required by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it
in writing. Employee acknowledges that such actions could cause irreparable
harm to the Company and that the Company may obtain an injunction or other
equitable relief to enforce this provision. Furthermore, upon termination of
this Agreement, Employee will promptly deliver to the Company all books,
memoranda, records and written data in original form of every kind relating to
the business and affairs of the Company that may then be in his personal
possession.
8. Non-Compete. Employee hereby agrees that for a period commencing on
the date hereof and ending one year following the termination or expiration of
Employee's employment with the Company (the "Restricted Period"), except on
behalf of the Company and its affiliates in accordance with this Agreement,
Employee shall not, directly or indirectly, as employee, agent, consultant,
stockholder, director, partner or in any other individual or representative
capacity, own, operate, manage, control, engage in, invest in
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or participate in any manner in, act as a consultant or advisor to, render
services for (alone or in association with any person, firm, corporation or
entity), or otherwise assist any person or entity that engages in or owns,
invests in, operates, manages or controls any venture or enterprise that
directly or indirectly competes with the business of the Company as then
conducted (the "Business") provided, however, that nothing contained herein
shall be construed to prevent Employee from investing in the stock of any
competing corporation listed on a national securities exchange or traded in the
over-the-counter market, but only if Employee is not involved in the business
of said corporation and if Employee and Employee's affiliates collectively do
not own more than an aggregate of 5% of the stock of such corporation. Nothing
in the foregoing is intended to preclude Employee from becoming involved in
Internet or on-line services or businesses that do not compete with the
business of the Company as then conducted.
9. Non-Solicitation. Without limiting the generality of the
provisions of Section 8 above, Employee hereby agrees that during the
Restricted Period, except on behalf of the Company and its affiliates in
accordance with this Agreement, Employee will not interfere with or disrupt or
attempt to disrupt the Company's business relationship with its customers or
suppliers or solicit any of the employees of the Company to leave the employment
of the Company.
10. Inventions. All processes, technologies and inventions relating
to the Business (collectively, "Inventions"), including new contributions,
improvement, ideas, discoveries, trademarks and trade names, conceived,
developed, invented, made or found by Employee, alone or with others, during
his employment by the Company, whether or not patentable and whether or not
conceived, developed, invented, made or found on the Company's time or with the
use of the Company's facilities or materials, shall be the property of the
Company and shall be promptly and fully disclosed by Employee to the Company.
Employee shall perform all necessary acts (including, without limitation,
executing and delivering any confirmatory assignments, documents or instruments
requested by the Company) to vest title to any such inventions in the Company
and to enable the Company, at its expense, to secure and maintain domestic
and/or foreign patents or any other rights for such inventions.
11. Arbitration of Disputes. Either party to this Agreement may
require the arbitration of any dispute arising under or in connection with any
matter related to this Agreement or any related agreement. Such party may
initiate or require the other party to submit to arbitration. If legal action
has already commenced, the party seeking arbitration must so notify the other
party in writing of such demand within twenty (20) days after the first service
of process on such party. The arbitration shall be in conformity with and
subject to the applicable rules and procedures of the American Arbitration
Association or, at the election of the demanding party, and other form of
"alternative dispute resolution" procedure generally recognized in the State of
California; e.g., a reference pursuant to California Code of Civil Procedure
("Code") Section 638 and/or reliance upon Section 1280 et. seq. of the Code.
Any arbitration shall incorporate Section 1283.05 of the Code with respect to
discovery matters. All parties agree to be (1) subject to the jurisdiction and
venue of the arbitration in the county in which the principal office of the
Company is located or any other county in the State of California that may be
mutually agreeable to the parties, (2) bound by the decision of the arbitrator
as the final decision with respect to the dispute
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and (3) subject to the jurisdiction of the Superior Court of the State of
California for the purpose of confirmation and enforcement of any award.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE FOREGOING ARBITRATION OF
DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW
AND YOU ARE GIVING UP ANY RIGHTS YOU MAY POSSESS TO HAVE THE DISPUTE LITIGATED
IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP
YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE
SPECIFICALLY INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION. IF YOU REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION YOU MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.
YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. YOU HAVE READ AND
UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE
MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION TO NEUTRAL
ARBITRATION.
EMPLOYEE: THE COMPANY:
ON'VILLAGE COMMUNICATIONS, INC.
By XXXX XXXXXXX By XXXX XXXXXX
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Xxxx Xxxxxxx Xxxx Xxxxxx
Chief Executive Officer
12. Miscellaneous.
12.1 Modification and Waiver of Breach. No waiver or
modification of this Agreement shall be binding unless it is in writing signed
by the parties hereto. No waiver of a breach hereof shall be deemed to
constitute a waiver of a future breach, whether of a similar or dissimilar
nature.
12.2 Notices. All notices and other communications required
or permitted under this Agreement shall be in writing, served personally on, or
mailed by certified or registered United States mail to, the party to be
charged with receipt thereof. Notices and other communications served by mail
shall be deemed given hereunder 72 hours after deposit of such notice or
communication in the United States Post Office as certified or registered mail
with postage prepaid and duly addressed to whom such notice or communication is
to be given, in the case of (a) Company, 000 Xxxxx Xx Xxxxxxx Xxxxxxxxx, Xxxxx
000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: President, or (b) Employee, to
the address set forth below his name on the signature page hereof. Any such
party may change said party's address for purposes of this Section by giving to
the party
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intended to be bound thereby, in the manner provided herein, a written notice
of such change.
12.3 Counterparts. This instrument may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
12.4 Construction of Agreement. This Agreement shall be construed in
accordance with, and governed by, the internal laws of the State of California.
12.5 Legal Fees. If any legal action, arbitration or other proceeding
is brought for the enforcement of this Agreement, or because of any alleged
dispute, breach, default or misrepresentation in connection with this
Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs it incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
12.6 Savings Clause. If any provision of this Agreement or the
application thereof is held invalid, the invalidity shall not affect other
provisions or applications of the Agreement which can be given effect without
the invalid provisions or applications and to this end the provisions of this
Agreement are declared to be severable.
12.7 Complete Agreement. This instrument constitutes and contains the
entire agreement and understanding concerning the Employee's employment and the
other subject matters addressed herein between the parties, and supersedes and
replaces all prior negotiations and all agreements proposed or otherwise,
whether written or oral, concerning the subject matters hereof. This is an
integrated document.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
day and year first above written.
EMPLOYEE: THE COMPANY:
ON'VILLAGE COMMUNICATIONS, INC.
/s/ XXXX XXXXXXX By /s/ XXXX XXXXXX
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Xxxx Xxxxxxx Xxxx Xxxxxx
Chief Executive Officer
Address:
0000 Xxxxx 000 Xxxx
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Xxxx, Xxxx 00000
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