EXHIBIT 10
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of November 28, 1998, is made and entered into by and
between xxxxxxxx.xxx inc., a Nevada corporation, having an office address at
0000 X.X. Xxxx 000, Xxx Xxxxxxx, Xxxxx 00000 ("xxxxxxxx.xxx" or the "Company")
and the individual named in Schedule 1 hereto, residing at the address listed in
Schedule 1 (hereinafter referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to hire and retain the Executive as an Executive to
perform certain services for the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and on
the attached Schedule, and for other good and valuable consideration the receipt
of which is hereby acknowledged, the Company and the Executive hereby agree as
follows:
1. EMPLOYMENT OF EXECUTIVE.
(a) The Company hereby employs the Executive in the capacity and for the
position set forth on Schedule 1 attached hereto. Executive hereby
accepts such employment with the Company upon the terms and
conditions hereinafter set forth.
(b) The duties of the Executive shall include the duties and services
described in Schedule 1, which duties and services shall at all
times be subject to the direction, approval and control of the Board
and shall include such other duties, as may be assigned by the Board
commensurate with the responsibilities normally associated with
Executive's position.
2. SERVICES TO BE RENDERED.
(a) Executive shall perform such duties as are usually performed by an
Executive with the position set forth in Schedule 1 of a business
similar in size and scope as the Company and such other reasonable
additional duties as may be prescribed from time to time by the
Company which are reasonable and consistent with the Company's
operations, taking into account Executive's expertise and job
responsibilities. During the term of this Agreement, Executive
agrees to devote his full time and attention to the business and
affairs of the Company to the extent necessary to discharge the
responsibilities assigned to Executive and to use reasonable efforts
to perform faithfully and efficiently such responsibilities. The
Executive will use Executive's best efforts to promote the interests
of the Company.
(b) During this Agreement, it shall not be a violation of this Agreement
for Executive to (i) serve on corporate, civic or charitable boards
or committees; (ii) deliver lectures, fulfill speaking engagements
or teach at educational institutions; or (iii) manage personal
investments or companies in which personal investments are made so
long as such activities do not significantly interfere with the
performance of Executive's responsibilities with the Company and
which companies are not in direct competition with the Company. Any
income incurred by Executive outside the scope of his employment and
permitted
pursuant to the provisions hereof, shall inure to the benefit of
Executive, and the Company shall not claim any entitlement thereto;
provided, however, that any income derived by Executive related to
the business of the Company, including, without limitation,
compensation for serving on boards of directors of companies in
which the Company has a significant investment, shall be paid over
to the Company as and when received.
(c) During the term of this Agreement, the Company shall furnish, at
Executive's principal place of employment, an office, furnishings,
secretary and such other facilities commensurate and suitable to his
position and adequate for the performance of his duties hereunder.
3. TERM.
(a) Term of Employment. The term of this Agreement (the "Term") shall
commence effective as of the date hereof (the "Commencement Date"),
and shall continue until December 31, 2001, unless (i) extended by
the mutual agreement of the Company and the Executive or (ii)
extended or terminated as hereinafter provided.
(b) Termination of Employment by the Company for Cause. The Company may
terminate Executive's employment if such termination is for "Cause"
(as defined herein) and Cause is not cured by Executive within any
available cure period provided below. Such notice must set forth in
reasonable detail the facts underlying the claim of Cause. For the
purposes of this Agreement, "Cause" shall be defined as any of the
following, which act or omission is in bad faith by Executive
without a reasonable belief that such act or omission would benefit
the Company:
(i) a default or breach by Executive of any of the provisions of
this Agreement materially detrimental to the Company which is
not cured within 15 days following written notice thereof;
(ii) actions by Executive constituting fraud, embezzlement or
dishonesty which result in a conviction of a criminal offense
not yet overturned on appeal;
(iii) actions by Executive in intentionally furnishing materially
false, misleading, or omissive information to the Company's
Board of Directors that is materially detrimental to the
Company;
(iv) actions constituting a breach of the Sections 7 or 8 of this
Agreement which is materially detrimental to the Company;
(v) acts or omissions which constitute willful failure to follow
reasonable and lawful directives of the Company's Board of
Directors, which are consistent with Executive's job
responsibilities and performance which is not cured within 15
days following written notice thereof.
Upon termination for Cause, Executive shall immediately cease to
have any power of his position, but shall nevertheless be given a
reasonable opportunity to
access his office with the Company for the purpose of retrieving his
personal goods and files. If any conviction pursuant to Section 3(b)
above is overturned on appeal, Executive will be deemed to have been
terminated without Cause as of the effective date of his earlier
termination.
(c) Termination Without Cause. The Company has the right to terminate
this Agreement without Cause upon written notice, subject to payment
by the Company of the Deferred Compensation described in Section
4(c) herein. In such event, Executive shall cease to have any power
of his office as of the effective date of the termination specified
in such written notice.
(d) Termination by Executive. Executive may terminate this Agreement
upon 30 days' written notice after the occurrence of a material
default of this Agreement by the Company, which default is not cured
within the 30- day notice period. Such notice shall set forth in
reasonable detail the acts underlying the default. If Executive
terminates this Agreement under this Section 3(d), Executive shall
be entitled to the Deferred Compensation as described in Section
4(c) herein.
(e) Termination by Executive Upon Change of Control. Executive may
terminate this Agreement upon 30 days' written notice at any time
within 6 months following the occurrence of a "Change of Control",
but only prior to Executive's receiving a notice of termination by
the Company for Cause. Upon such termination Executive shall be
entitled to the Deferred Compensation described in Section 4(c)
herein. Change of Control is defined for the purposes of this
Agreement as any of the following acts:
(i) The acquisition by any person, entity or "group" within the
meaning of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), other than a
person, entity or "group" that includes Executive, of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of (A) prior to the
consummation of a Qualified Public Offering, more than 50% of
the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of the
Board of Directors or (B) after the consummation of a
Qualified Public Offering, more than 40% of the combined
voting power of the then outstanding voting securities
entitled to vote generally in the election of the Board of
Directors ; or
(ii) If the individuals who serve on the Board of Directors as of
the Commencement Date (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of
Directors; provided, however, any person who becomes a
director subsequent to the Commencement Date, whose election
or nomination for election was approved by a vote of at least
a majority of the directors then constituting the Incumbent
Board, shall for purposes of this Agreement be considered a
member of the Incumbent Board; or
(iii) Approval by the Company's equity holders of (A) a merger,
reorganization or consolidation whereby the Company's equity
holders immediately prior to such approval do not, immediately
after consummation of such reorganization, merger or
consolidation own more
than 50% of the combined voting power of the surviving
entity's then outstanding voting securities entitled to vote
generally in the election of directors; or (B) liquidation or
dissolution of the Company; or (C) the sale of all or
substantially all of the assets of the Company.
(f) Termination by Executive for Good Reason. Executive may terminate
this Agreement upon 30 days' written notice if (i) Executive's
duties are materially diminished or altered in a manner contrary to
Section 1 and 2 of this Agreement, (ii) Executive's title is altered
in a material and adverse manner, (iii) Executive's reporting
relationship is materially and adversely modified, (iv) Executive's
Base Salary, as provided hereunder, is diminished, (v) the
methodology for calculating Executive's Bonus Compensation, as
provided hereunder, is adversely (from the Executive's point of
view) altered or (vi) the Company shall relocate its executive
offices more than 40 miles from their current location (collectively
"Good Reason"). Upon such termination Executive shall be entitled to
the Deferred Compensation described in Section 4(c) herein.
(g) Termination by Executive Without Good Reason. Executive may
terminate this Agreement without Good Reason upon 30 days' written
notice. Upon the termination date specified in such written notice
(which date shall be not more than 30 days following the date of
such notice) Executive shall cease to have any power of his office.
(h) Automatic Extension. This Agreement shall be automatically extended
for successive one-year periods at the end of the initial term and
each extended term thereafter, unless either party provides written
notice of termination to the other party at least three months prior
to the expiration of the initial or such extended term,
respectively. In the event the Company terminates this Agreement or
fails to renew this Agreement or does not permit the automatic
extension to occur at the end of any term hereof, Executive shall be
entitled to receive his Deferred Compensation under Section 4(c)
hereof.
4. COMPENSATION.
(a) Base Salary.
(i) Executive shall receive a base salary as set forth on Part I
of Schedule 4(a) attached hereto.
(ii) Each January, commencing with January 2000, the Board of
Directors of the Company shall review Executive's performance
and the Board of Directors may in its sole discretion elect to
increase the salary then paid to Executive above the amount
set forth on Schedule 4(a)(i), however, there shall be
absolutely no obligation to do so.
(b) Bonus Compensation.
(i) The Executive shall receive as "Bonus Compensation" each year,
the amount calculated in accordance with Schedule 4(b)
attached hereto.
(ii) If at anytime hereafter, the Company shall adopt a bonus
program, an option program or any other form of equity
participation for senior executive officers of the Company,
the Executive shall be eligible to participate in such bonus
program, option program or other form of equity participation
in a manner and capacity commensurate with his position and
duties.
(c) Deferred Compensation.
(i) When Due. Executive (or his estate as the case may be) shall
be entitled to the Deferred Compensation as calculated below,
the initial installment of which is to be paid within 30 days
after the event giving rise to the payout (except as provided
below) in the event that Executive's employment is terminated
for any of the following reasons herein: (A) death of
Executive; (B) termination by the Company without cause
pursuant to Section 3(c); (C) termination by Executive upon
default by the Company pursuant to Section 3(d); (D)
termination by Executive after a Change of Control pursuant to
Section 3(e); (E) termination by the Executive pursuant to
Section 3(f); (F) termination by the Company pursuant to
Section 3(h); or (G) termination by the Company pursuant to
Section 7(a).
(ii) Amount. The Deferred Compensation shall be the amount ("Base
Deferred Compensation") which is calculated as the greater of
(A) the Base Salary payments Executive would have received had
his employment continued for the remaining term of this
Agreement (including yearly increases calculated at the
maximum increase for the prior two years); or (B) an amount
equal to 150% of the higher annual compensation earned by
Executive in the past two years (including both Base Salary
and Bonus Compensation). In addition to the Base Deferred
Compensation, Executive shall be entitled to the following
(which, together with the Base Deferred Compensation and the
Bonus Deferred Compensation (as defined below) shall be
collectively called the "Deferred Compensation") all of the
benefits and personal perquisites otherwise provided in this
Agreement (including automobile expenses) during that period
of time which is the greater of (X) the remaining term of this
Agreement, or (Y) one year (the "Deferral Period") and an
amount equal to the pro rata portion of the Bonus Compensation
for the year in which executive's employment is terminated
determined on the basis of the number of days elapsed in such
year prior to such termination (the "Bonus Deferred
Compensation"). The Deferred Compensation herein shall be
deemed liquidated damages resulting from the Company's
termination of this Agreement and shall be Executive's sole
and exclusive remedy for any such termination. Deferred
Compensation shall not be diminished or offset by reason of
any earnings by Executive subsequent to the date of
termination.
(d) Payment of Deferred Compensation. Except as provided below, the
Deferred Compensation shall be paid in monthly installments over the
12 months following the event giving rise to a Deferred
Compensation. If such termination
is a result of the death of Executive, the initial Deferred
Compensation shall be made within 15 days after the personal
representative of Executive's estate notifies the Company that
Letters of Administration have been filed in the probate proceeding.
The Company shall have the option at all times during the term of
this Agreement to maintain key man life insurance on Executive's
life to cover the cost of any Deferred Compensation due to
Executive. If such key man life insurance is maintained, and the
Deferred Compensation is due as a result of Executive's death, the
Deferred Compensation shall be paid 100% in cash upon Executive's
death. The Bonus Deferred Compensation shall be paid in a single
lump sum within 90 days of the end of the year in which Executive's
employment is terminated.
5. BENEFITS.
(a) Executive shall be entitled to a minimum of 4 weeks paid vacation
during each 12-month period during the term of this Agreement. In
addition, Executive shall be entitled to paid time off for the same
holidays as other employees of the Company as established by the
Board.
(b) Executive shall be entitled to reimbursement for all maintenance,
insurance and gasoline expenses incidental to the use of one
automobile.
(c) Executive shall be entitled to participate (in a manner and capacity
commensurate with his position and duties), subject to eligibility
and other terms generally established by the Board, in any employee
benefit plan (including but not limited to life insurance plans,
stock option plans, group hospitalization, health, dental care
(which health insurance shall also cover Executive's dependents),
profit sharing and pension, bonus and other benefit plans), as may
be adopted or amended by the Company from time to time.
(d) Following the consummation of a Qualified Public Offering, the
Company shall pay the premium on a "whole life" insurance policy on
the life of Executive in the initial face amount of seven times Base
Salary during the term hereof. Executive shall have the right to
designate the beneficiaries of such policies. The Company shall pay
timely all premiums on such life insurance, and on demand provide
Executive due proof of such payment. The insurance companies issuing
such policies shall be authorized to give Executive, upon his
request, any information regarding the status of any such policy.
Any dividend declared upon such policy shall be applied to the
premium.
(e) Following the consummation of a Qualified Public Offering, the
Company shall pay all initial membership fees and monthly dues on
behalf of Executive for Executive's membership in one business
luncheon club, and one airline club; provided that the aggregate
initial membership fees and the annual membership fees of such clubs
in the aggregate do not exceed $2,000 and $1,000, respectively.
Executive shall pay all expenses for such club use that is not
otherwise reimbursable as a Company business expense.
(f) The Company will reimburse Executive for the cost of reasonable tax
and financial preparation and planning, including services that may
be requested by Executive from time to time pertaining to this
Agreement.
(g) Executive shall receive any such additional benefits that any other
executive officer may receive during the term of this Agreement at
the reasonable discretion of the Board.
6. EXPENSES.
The Company shall reimburse the Executive against appropriate vouchers or other
receipts for business expenses reasonably incurred by Executive in the
performance of Executive's duties pursuant to the terms hereof. Executive is
authorized to incur reasonable traveling and other expenses in connection with
the Company's business and in performance of his duties under this Agreement.
When engaging in business related air travel, the executive may fly first class
on domestic flights and business class on international flights. In addition,
upon the submission of appropriate vouchers or other receipts the Company shall
reimburse Executive for tolls and reasonable business car phone charges.
Executive shall submit vouchers or other receipts once per calendar month and
shall be reimbursed by Company within 30 days of submission.
7. DISABILITY.
(a) In the event of the death of the Executive during the Term, the
Executive's employment hereunder shall automatically terminate. In
the event that Executive shall become mentally or physically
Disabled (as hereinafter defined) so as to be unable to fully
perform his duties herein, Executive shall continue to receive his
monthly salary for each of the first nine months or any part thereof
of any continuous Disability, less any amounts received by him under
any disability insurance paid for by the Company. If upon the
expiration of nine months of continuous Disability, Executive
remains incapacitated (hereinafter, "Permanent Disability"), the
Company shall have the right to immediately terminate this
Agreement. Such "Permanent Disability" shall be established by a
written certification submitted by a medical doctor agreed to by the
Executive and the Company. In the absence of agreement, the Company
and the Executive shall each nominate a qualified medical doctor and
these two doctors shall select a third qualified medical doctor,
which third doctor shall make the determination as to total
disability. After the termination of these time periods, Executive
will receive disability insurance proceeds for the term of such
disability.
(b) The Company shall reimburse Executive for the premiums of all
insurance policies covering the long and short-term disability of
Executive not to exceed $10,000 per annum (as adjusted for increases
in the Consumer Price Index) during the term hereof.
(c) Disability for the purposes of this Agreement shall mean that the
Executive is judged disabled pursuant to the Company's long term
disability policy.
8. NON-COMPETITION, NON-SOLICITATION AND NON-DISPARAGEMENT.
During the Term and for a period of two years thereafter, except if the Company
breaches its obligations to pay the Deferred Compensation pursuant to Section
4(c) hereof:
(a) Executive shall not, directly or indirectly, enter into or
participate (whether as owner, partner, shareholder, officer,
director, salesman, consultant, employee,
principal or in any other relationship or capacity) in any business
operating or providing services in the United States within any
State in which the Company or its affiliates are operating or
providing services as of the date of termination which is, or owns,
manages or performs Internet billing services, including without
limitation as principal or on behalf of others and the development
or operation of any network to accomplish same (a "Competing
Entity").
(b) Company and Executive understand and agree that the scope and
duration of the covenants contained in this Section 8 are reasonable
both in time and geographical area and are fairly necessary to
protect the Company's legitimate business interests. Such covenants
shall survive the termination of Executive's employment except as
otherwise provided herein. The parties further agree that such
covenants shall be regarded as divisible and shall be operative as
to time and geographical area to the extent that they may be made so
and, if any part of such covenants is declared invalid or
unenforceable, the validity and enforceability of the remainder
shall not be affected. Executive hereby warrants to Company that
Executive's compliance with each of the restrictive covenants set
forth in this Agreement will not, upon the termination, of
Executive's employment with the Company for any reason whatsoever,
cause Executive to be unable to earn a living that is suitable and
acceptable to Executive.
(c) Executive understands and agrees that, due to the highly competitive
nature of the Company's industry, the breach of any covenants set
out in this Section 8 will cause irreparable injury to the Company
for which it will have no adequate remedy at law. Therefore, the
Company shall be entitled, in addition to such other remedies as it
may have hereunder, to a temporary restraining order and to
preliminary and permanent injunctive relief in state or federal
court for any breach or threatened breach of Section 8. Nothing
herein, however, shall be construed as prohibiting the Company from
pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from Executive,
(d) Executive shall not, without the prior written consent of the
Company, directly or indirectly, (i) solicit, request, cause or
induce any person who is at the time, or 12 months prior thereto had
been, an employee of or a consultant of the Company to leave the
employ of or terminate such person's relationship with the Company
or (ii) employ, hire, engage or be associated with, or endeavor to
entice away from the Company any such person, or any customer of the
Company or its affiliates or (iii) attempt to limit or interfere
with any business agreement or relationship existing between the
Company and/or its affiliates with a third party.
(e) Executive shall not disparage the business reputation of the Company
(or its management team) or take any actions that are harmful to the
Company's goodwill with its customers, content providers, bandwidth
or other network infrastructure providers, vendors, employees, the
media or the public. Executive recognizes that such actions would
cause irreparable harm for which there is no adequate remedy at law
and that the Company may seek in state or federal court, and is
entitled to a temporary restraining order and to preliminary and
permanent injunctive relief in state or federal court to stop any
such conduct or statements for any breach or threatened breach of
this Section 8(e) during the term of this Agreement and for a period
of two years thereafter.
(f) Company spends considerable amounts of time, money and effort in
developing and maintaining good will in its industry. Executive
agrees the covenants contained within this Section 8: (i) are
reasonable and necessary in all respects to protect the goodwill,
trade secrets, confidential information, and business interests of
Company; (ii) are not oppressive to Executive; and (iii) do not
impose any greater restraint on Executive than is reasonably
necessary to protect the goodwill, trade secrets, confidential
information and legitimate business interests of Company.
(g) Executive acknowledges and agrees that promises made by the Company
in this Agreement such as (i) the establishment of a term of
employment (rather than employment at will) and (ii) the commitment
to provide severance compensation in the event of the termination of
Executive's employment for reasons other than Cause (subject to
certain requirements on the part of Executive), constitute one form
of consideration for Executive's agreement to and compliance with
the restrictive covenants in this Agreement. Executive acknowledges
and agrees that Company's agreement to provide Executive with access
to Company's confidential and proprietary information is a separate
form of consideration supporting the restrictive covenants in this
Agreement. Executive acknowledges and agrees that the Company's
agreement to permit the use of the Company's goodwill with the
Company's customers, investors and content providers is a separate
form of consideration supporting the restrictive covenants in this
Agreement. Executive acknowledges and agrees that the Company's
commitment to providing Executive with unique skill development and
training is a separate form of consideration supporting the
restrictive covenants in this Agreement.
9. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that as a result of Executive's
employment by the Company, the Executive, both during and after the
Term, will obtain secret and confidential information concerning the
business of the Company and its affiliates, including, without
limitation, financial information, trade secrets, information
concerning the operations, sales, personnel, suppliers, customers,
costs, profits and pricing policies, "know how" and certain business
methodologies (the "Confidential Information").
(b) During the Term and thereafter, the Executive shall exercise all due
and diligent precautions to protect the integrity of the customer
lists, mailing lists and sources thereof, statistical data and
compilations, agreements, contracts, manuals, memoranda, notes,
records, reports or other documents and any and all other materials
embodying any Confidential Information (the "Confidential
Materials") and, upon the Company's request in writing, Executive
shall immediately return to the Company all such Confidential
Materials (and copies thereof) then in Executive's possession or
control.
(c) Executive shall not at any time, either during the Term of this
Agreement or thereafter, divulge to any person or entity any
Confidential Information or deliver or permit any person or entity
to obtain any Confidential Materials except (i) when required in the
course of performing Executive's duties hereunder, (ii) with
the Company's express written consent, (iii) where required to be
disclosed by court order, subpoena or other government process or
(iv) the Executive shall have no responsibility for the divulgence
of any information which is in the public domain. If the Executive
shall be required to make disclosure pursuant to the provisions of
clause (iii) of the preceding sentence, the Executive promptly, but
in no event more than 48 hours after learning of such subpoena,
court order or other governmental process, shall notify, by personal
delivery or by electronic means, confirmed by mail, the Company and,
at the Company's expense, Executive shall (x) take all reasonably
necessary steps required by the Company to defend against the
enforcement of such subpoena, court order or other government
process and (y) permit the Company to intervene and participate with
counsel of its choice in any proceeding relating to the enforcement
thereof.
(d) Upon termination of Executive's employment with the Company, the
Executive shall promptly deliver to the Company all Confidential
Materials relating to the Company and its affiliates, which
Executive may then possess or have under Executive's control;
provided, however, that Executive shall be entitled to retain copies
of such documents reasonably necessary to document Executive's
financial relationship (both past and future) with the Company.
(e) The Executive acknowledges that (i) any breach of the provisions of
these Sections 8 and 9 may cause substantial and irreparable harm to
the Company for which the Company would have no adequate remedy at
law and (ii) the provisions of this Agreement are reasonable and
necessary for the protection of the business of the Company and its
affiliates.
10. REMEDIES.
(a) If Executive commits a breach, or threatens to commit a breach, of
any of the provisions of Sections 8 or 9, the Company shall have the
right and remedy:
(i) to have the provisions of this Agreement specifically enforced
by any court having equity jurisdiction or through arbitration
as provided herein; and
(ii) to require Executive to account for and to pay over the
Company all damages suffered by the Company (including
consequential and incidental damages) as the result of any
transactions constituting a breach of any of the provisions of
Sections 8 and 9, and Executive hereby agrees to account for
and pay over such damages to the Company;
(b) The Executive acknowledges that the services being rendered
hereunder to the Company are of a special, unique and extraordinary
character and that any such breach or threatened breach may cause
substantial and irreparable injury to the Company and that money
damages will not provide an adequate remedy to the Company. In any
equitable proceeding to enforce the provisions hereof, the Company
shall not have to prove irreparable harm. (However, in a suit for
damages Company shall be required to prove the amount of damages
actually sustained.)
(c) Each of the rights and remedies enumerated in Section 10 (a) shall
be independent of the other, and shall be severally enforceable, and
such rights and remedies shall be in addition to, and not in lieu of
any other rights and remedies available to the Company under law or
equity.
(d) If any provision of Section 8 or 9 is held to be unenforceable
because of the scope, duration or area of its applicability, the
court making such determination shall have the power to modify such
scope, duration, or area, or all of them, and such provision or
provisions shall then be enforceable in such modified form.
(e) The Company and Executive agree that any dispute or controversy
arising between any of the parties to this Agreement, or any person
or entity in privity therewith, out of the transactions effected and
relationships created in connection herewith, including any dispute
or controversy involving the formation, terms or construction of
this Agreement, regardless of kind or character, will be resolved
through binding arbitration held in Bexar County, Texas. The only
disputes not subject to mandatory, binding arbitration are requests
for injunctive relief. With respect to the arbitration of any
dispute or controversy, each party understands that:
(i) arbitration is final and binding on the parties;
(ii) each party is waiving its right to seek certain remedies in
court, including to right to a jury trial;
(iii) discovery in arbitration is different and more limited than
discovery in litigation; and
(iv) an arbitrator's award need not include factual findings or
legal reasoning, and any party's right to appeal or to seek
modification of a ruling by the arbitrator is strictly
limited.
Each party to this Agreement will submit any dispute or controversy to
arbitration before the American Arbitration Association ("AAA") within five days
after receiving a written request to do so from the other party. If any party
fails to submit a dispute or controversy to arbitration as requested, then the
requesting party may commence the arbitration proceeding. The Federal
Arbitration Act will govern the proceeding and all issues raised by this
Agreement to be arbitrated. Each party to this Agreement will be bound by the
determination of any arbitrator or arbitration panel empaneled by the AAA to
adjudicate the dispute. Judgment on any arbitration award may be entered in any
court of competent jurisdiction.
Any party to this Agreement may bring an action including a summary or expedited
proceeding, to counsel arbitration of any such dispute or controversy in a court
of competent jurisdiction and, further, may seek provision or ancillary
remedies, including temporary or injunctive relief in connection with such
dispute or controversy in a court of competent jurisdiction, provided that the
dispute or controversy is ultimately resolved through binding arbitration
conducted in accordance with the terms and conditions of Section 10(e). If any
party institutes legal proceedings in an effort to resist arbitration and is
unsuccessful in doing so, the prevailing party is entitled to recover, from the
losing party, its legal fees and out-of-pocket expenses incurred in connection
with the defense of such legal proceedings.
11. INDEMNIFICATION.
(a) To the full extent allowed by law, the Company shall hold harmless
and indemnify the Executive, his executors, administrators or
assigns, against any and all judgments, penalties (including excise
and similar taxes), fines, settlements and reasonable expenses
(including attorneys' fees) actually incurred by the Executive (net
of any related insurance proceeds or other amounts received by the
Executive or paid by or on behalf of the Company on the Executive's
behalf in compensation of such judgments, penalties, fines,
settlements or expenses) in connection with any threatened, actual
or completed action, suit or proceeding, whether civil, criminal,
arbitral, administrative or investigative, or any appeal in such
action, suit or proceeding, to which the Executive was, is or is
threatened to be made a named defendant or respondent (a
"Proceeding"), because such person is or was a director or officer
of the Company, or is or was serving at the request of the Company
as a director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary (an "Affiliate Executive") of
another corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise
(each, a "Company Affiliate"). Upon authorization of indemnification
of the Executive by the Board of Directors in accordance with the
applicable provisions of the Nevada General Corporation Law (the
"NGCL"), the Executive shall be presumed to be entitled to such
indemnification under this Agreement upon submission of a Claim (as
hereinafter defined). Thereafter, the Company shall have the burden
of proof to overcome the presumption that the Executive is so
entitled. Such presumption shall only be overcome by a judgment or
other final adjudication, after all appeals and all time for appeals
have expired ("Final Determination"), adverse to the Executive
establishing that such indemnification is not permitted hereunder or
by law. An actual determination by the Company (including its Board
of Directors, legal counsel, or its stockholders) that the Executive
has not met the applicable standard of conduct for indemnification
shall not be a defense to the action or create a presumption that
the Executive has not met the applicable standard of conduct. The
purchase, establishment or maintenance of any Indemnification
Arrangement shall not in any way diminish, restrict, limit or affect
the rights and obligations of the Company or of the Executive under
this Agreement except as expressly provided herein, and the
execution and delivery of this Agreement by the Company and the
Executive shall not in any way diminish, restrict, limit or affect
the Executive's right to indemnification from the Company or any
other party or parties under any other indemnification arrangement,
the Certificate of Incorporation or Bylaws of the Company, or the
NGCL.
(b) Subject only to the provisions of this Section 11(b), as long as the
Executive shall continue to serve as a director and/or officer of
the Company (or shall continue at the request of the Company to
serve as an Affiliate Executive) and, thereafter, as long as the
Executive shall be subject to any possible Proceeding by reason of
the fact that the Executive was or is a director and/or officer of
the Company (or served in any of said other capacities), the Company
shall, unless no such policies are available in any market, purchase
and maintain in effect for the benefit of the Executive one or more
valid, binding and enforceable policies (the "Insurance Policies")
of directors' and officers' liability insurance ("D&O Insurance")
providing adequate liability coverage for the Executive's acts as a
director and/or officer of the Company or as an Affiliate Executive.
The Company shall promptly notify the Executive of any lapse,
amendment or failure to renew said policy or policies or any
provision thereof relating to the extent or nature of coverage
provided thereunder. In the event the Company does not purchase and
maintain in effect said policy or policies of D&O Insurance pursuant
to the provisions of this Section 11(b), the Company shall, to the
full extent permitted by law, in addition to and not in limitation
of the other rights granted the Executive under this Agreement, hold
harmless and indemnify the Executive to the full extent of coverage
which would otherwise have been provided for the benefit of the
Executive pursuant to the Insurance Policies.
(c) The Executive shall have the right to receive from the Company on
demand, or at his option to have the Company pay promptly on his
behalf, in advance of a Final Determination of a Proceeding all
expenses payable by the Company pursuant to the terms of this
Agreement as corresponding amounts are expended or incurred by the
Executive in connection with such Proceeding or otherwise expended
or incurred by the Executive (such amounts so expended or incurred
being referred to as "Advanced Amounts"). In making any claim for
payment by the Company of any expenses, including any Advanced
Amount, pursuant to this Agreement, the Executive shall submit to
the Company a written request for payment (a "Claim"), which
includes a schedule setting forth in reasonable detail the dollar
amount expended (or incurred or expected to be expended or
incurred). Each item on such schedule shall be supported by the
xxxx, agreement or other documentation relating thereto, a copy of
which shall be appended to the schedule as an exhibit.
Where the Executive is requesting Advanced Amounts, the Executive
must also provide (i) written affirmation of such Executive's good
faith belief that he has met the standard of conduct required by law
for indemnification, and (ii) a written undertaking to repay such
Advanced Amounts if a Final Determination is made that the Executive
is not entitled to indemnification hereunder.
(d) The Company shall not be liable under this Agreement to make any
payment in connection with any claim made against the Executive for
an accounting of profits made from the purchase or sale by the
Executive of securities of the Company within the meaning of Section
16(b) of the Exchange Act or similar provisions of any state
statutory law or common law.
(e) All agreements and obligations of the Company contained herein shall
continue during the period the Executive is a director and/or
officer of the Company (or is serving at the request of the Company
as an Affiliate Executive) and shall continue thereafter so long as
the Executive shall be subject to any possible Proceeding by reason
of the fact that the Executive was a director or officer of the
Company or was serving as such an Affiliate Executive.
(f) Promptly after receipt by the Executive of notice of the
commencement of any Proceeding, the Executive shall, if a claim in
respect thereof is to be made against the Company under this
Agreement, notify the Company of the commencement thereof, but
failure to so notify the Company will not relieve the Company from
any liability which it may have to the Executive. With respect to
any such Proceeding:
(i) The Company shall be entitled to participate therein at its
own expense;
(ii) Except with prior written consent of the Executive, the
Company shall not be entitled to assume the defense of any
Proceeding; and
(iii) The Company shall not settle any Proceeding in any manner
which would impose any penalty or limitation on the Executive
without the Executive's prior written consent. The Executive
shall not settle any Proceeding with respect to which the
Executive has received indemnified amounts or Advanced Amounts
without the Company's prior written consent, nor will the
Executive unreasonably withhold consent to any proposed
settlement.
12. NOTICE.
Any notice required hereunder shall (a) be delivered by hand or (b) sent by
registered or certified mail addressed to the other party hereto at its address
set forth above for Company and on Item 1 of the Schedule for Executive or at
such other address as notice thereof shall have been given in accordance with
the provisions of this Section 12. Any such notice shall become effective (i) if
mailed, on the date indicated on the receipt or if not accepted, the date
indicated that delivery was attempted, and (ii) in the case of delivery by hand,
upon delivery or attempted delivery as shown on the records of the deliveries.
13. ENTIRE AGREEMENT; AMENDMENTS.
This Agreement supersedes any prior agreements or understandings, oral or
written, between the parties hereto and represents their entire understanding
and agreement with respect to the subject matter hereof. This Agreement can be
amended, supplemented or changed, and any provision hereof can be waived, only
by written instrument making specific reference to this Agreement which is
executed by both parties to this Agreement. Any waiver of any breach of this
Agreement shall not be construed to be a continuing waiver or consent to any
subsequent breach by any party hereto.
14. SEVERABILITY.
In the event of the invalidity or unenforceability of any one or more provisions
of this Agreement, such illegality or unenforceability shall not affect the
validity or enforceability of the other provisions hereof and such other
provisions shall be deemed to remain in full force and effect.
15. ASSIGNMENT; BINDING EFFECT.
This Agreement is not assignable by Executive or the Company without the prior
written consent of the other party. This Agreement shall be binding upon and
shall inure to the benefit of the Executive and the Company and their successors
and assigns. It is agreed that in the event of the termination under this
Agreement for any reason, except as expressly provided in this Agreement, all
salary and benefits shall cease as of the date of termination provided that all
accrued salary, bonus and expenses shall be paid to Executive or Executive's
successors, assigns, estate or legal representative as the case may be.
16. SECTION HEADINGS.
The Section headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
17. GOVERNING LAW; VENUE.
This Agreement shall be construed and governed in accordance with the laws of
the State of Texas. The parties hereto agree that any actions or proceedings
instituted to enforce rights hereunder shall be initiated in Bexar County,
Texas.
18. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instruments.
19. SECTION 280G PROTECTION.
The Company shall make a cash payment to the Executive at the time set forth
below equal to the amount of excise taxes (i.e., the "excise tax gross
payments") which Executive would be required to pay pursuant to Section 4999 of
the Internal Revenue Code of 1986, as amended ("Code"), as a result of any
payments (or any other transfer or deemed transfer of property including any
acceleration of stock options or similar instruments) made by or on behalf of
the Company or any successor thereto resulting in an "excess parachute payment"
within the meaning of Section 280G(b) of the Code. In addition to the foregoing,
the cash payment due to the Executive under this Section 19 shall be increased
by the aggregate of the amount of federal, state and local income and excise
taxes for which the Executive will be liable on account of the cash payments to
be made under this Section 19, such that the Executive will receive the excise
tax gross-up payment net of all income and excise taxes. The computation of this
payment shall be determined, at the expense of the Company, by an independent
accounting, actuarial or consulting firm selected by the Company. Payment of the
cash amount set forth above shall be made at such time as the Company shall
determine, in its sole discretion, but in no event later than the date five
business days before the due date, without regard to any extension, for filing
the Executive's federal income tax return for the calendar year which includes
the date as of which the aforementioned "excess parachute payments" are
determined. In the event that the Executive is ultimately assessed with excise
taxes under Section 4999 of the Code as a result of payments made by the Company
or any successor thereto which exceed the amount of excise taxes used in
computing the Executive's payment under this Section 19, the Company or its
successor shall indemnify the Executive for such additional excise taxes plus
any additional excise taxes, income taxes, interest and penalties resulting from
the additional excise taxes and the indemnity hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
"Company"
XXXXXXXX.XXX INC.
By:
-------------------------------------
Name:
Title: Chief Executive Officer
"EXECUTIVE"
-----------------------------------------
Name:
SCHEDULE 1
EMPLOYMENT CONTRACT
1. Executive: Xxxxxxxx X. Xxxxxxx
2. Position: Vice President and General Counsel
3. Duties: Management, operations and administration as
appropriate for the General Counsel of the Company.
SCHEDULE 4(A)(I)
$100,000 per annum
SCHEDULE 1
EMPLOYMENT CONTRACT
SCHEDULE 4(B)
BONUS: Not to exceed 40% of the then-current annual salary, as
authorized by the Board of Directors.
