EMPLOYMENT AGREEMENT
The Employment Agreement is made and entered into effective as of the 1st
day of December, 2001, by and between 000Xxxxx.xxx, Inc., a Utah corporation
("Company") and Xxxxx X. Xxxxx ("Employee").
WHEREAS, the Company is engaged in the business of providing virtual home
tours for real estate brokers and agents via the Internet; and,
WHEREAS, the Employee has extensive experience in the Company's business
and desires to utilize his experience in providing administration services to
the Company on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
herein after set forth, the parties agree as follows:
1. Employment. The Company hereby employs the Employee, and the
Employee hereby accepts employment by the Company, upon the terms and
conditions hereinafter set forth.
2. Term. The Employee shall be employed by the Company for a period of
five years ("Employment Period") commencing upon the date hereof
(the"Commencement Date").
3. Duties. The Employee shall be engaged as the President and Chief
Executive Officer of the Company. The Employee shall perform such duties and
services, consistent with the Employee's position, as may be assigned to the
Employee from time to time by the Board of Directors. In furtherance of the
foregoing, the Employee hereby agrees to perform well and faithfully the
aforesaid duties and responsibilities and the other reasonable executive
duties and responsibilities assigned to the Employee from time to time by the
Board of Directors.
4. Time Devoted to Employment. During the Employment Period the
employee shall devote his full time efforts to the Company's business. During
the Employment Period the Employee may be engaged in other business pursuits,
including, but not limited to the management of Employee's individual
investments, as long as such other business pursuits do not interfere with the
Employee effectively discharging his responsibilities to the Company.
5. Compensation; Reimbursements.
(a) The Company shall pay to the Employee a base salary of $120,000 per
year("Base Salary"), payable in such installments as is the policy of the
Company with respect to the employees of the Company at substantially the same
employment level as the Employee.
(b) In addition to the base salary, the Employee shall be entitled to one
half of the Company executive "Bonus Pool". The Bonus Pool shall be an amount
equal to 25% of the net income before interest, taxes, depreciation, and
amortization of the Company ("EBITDA") computed in accordance with Generally
Accepted Accounting Principles, consistently applied.
Amounts due to the Employee from the Bonus pool shall be paid on or
before fifteen days after the end of each of the Company's fiscal quarters.
(c) During the Employment Period, the Employee shall be entitled to such
fringe benefits as are made available from time to time to full time employees
of the Company and to such other bonuses as may be granted by the Board of
Directors from time to time.
(d) The Company shall reimburse Employee, in accordance with the practice
from time to time for other employees of the Company, for all reasonable and
necessary traveling expenses and other disbursements incurred by the Employee
for or on behalf of the Company in the performance of his duties hereunder.
6. Involuntary Termination.
If the Employee is incapacitated or disabled by accident, sickness or
otherwise so as to render the Employee mentally or physically incapable of
performing the services required to be performed by the employee under this
Agreement for a period of 90 consecutive days or longer, or for a total of 90
days during any six-month period (such conditions being herein referred to as
"Disability"), the Company may, at that time or any time thereafter as along
as the Disability continues, at its option, terminate the employment of the
employee under this Agreement immediately upon giving the employee notice to
that effect, which termination shall be an Involuntary Termination for
purposes of this Agreement. If the Employee dies during the Employment
Period, the Employee's employment hereunder shall be deemed to be an
Involuntary Termination as of the date of the employee's death.
7. Termination for Cause.
The Company, upon approval of the Board (including not less that one of
the Initial Board Members, Xxxx Xxxxx and Xxxxx Xxxxx), may terminate the
employment of the Employee hereunder at any time during the Employment Period
for "Cause" (such termination being hereinafter called a "Termination for
Cause") by giving the Employee notice of such termination, upon the giving of
which, such termination shall take effect immediately. For purposes of this
Section 7, Cause shall mean (a) the Employee's willful misconduct with respect
to the business and affairs of the Company or any subsidiary or affiliate
thereof or (b) the commission by the Employee of a crime involving moral
turpitude or crime involving fraud.
8. Termination Without Cause.
The Company may terminate the employment of the Employee hereunder at any
time during the Employment Period without "Cause" (such termination being
hereinafter referred to as a "Termination Without cause") by giving the
Employee notice of such termination, such termination to take effect on the
date specified in such notice.
9. Voluntary Termination.
Any termination of the employment of the Employee hereunder otherwise
than as a result of an Involuntary Termination, a Termination for Cause or a
Termination without Cause shall be deemed to be a "Voluntary Termination". A
Voluntary Termination shall be deemed to be effective immediately upon notice
of such termination.
10. Effect of Termination of Employment.
(a) Upon the termination of the Employee's employment hereunder pursuant
to a Voluntary Termination, an Involuntary Termination, or a Termination for
Cause, neither the Employee nor the Employee's estate or beneficiaries shall
have any further rights or claims against the Company under this Agreement
except to receive:
(i) the unpaid portion of the Base Salary provided for in Section
5(a), computed on a pro rata basis to the date of termination;
(ii) reimbursement for any expenses for which the Employee shall not
have therefore been reimbursed as provided in Section 5(d).
(b) Upon the termination of the Employee's employment hereunder pursuant
to a Termination Without Cause, neither the Employee nor the Employee's
beneficiaries nor estate shall have any further rights or claims against the
Company under this Agreement except: (a) to receive an amount computed
pursuant to paragraph (a) of this Section 10; (b) an amount equal to the
balance of the Base Salary for the Employment Period; and (c) in the event of
litigation concerning the payment of any amount specified in this Section, the
Company agrees to pay all costs of enforcement incurred by the Employee,
including, without limitation, attorney's fees, as long as the Employee
prevails in such litigation.
11. Disclosure of Information.
The Employee agrees that the Employee will not, at any time during or
after the Employment Period, disclose to any person, firm, corporation or
other business entity, except as required by law, any non-public information
concerning the business, clients, or affairs of the Company or any subsidiary
or affiliate thereof, including, without limitation, any information
concerning the business, clients or affairs of the Company (the "Confidential
Information"), for any reason or purpose whatsoever nor shall the employee
make use of any of the Confidential Information for the Employee's own
purposes or for the benefit of any person, firm, corporation or other business
entity except the Company or any subsidiary or affiliate thereof. For
purposes of this Employment Agreement the Confidential Information shall not
include (i) information which is in the public domain at the time of receipt
thereof by the Employee; (ii) becomes part of the public domain through no
act or omission of the Employee and (iii) information which the Employee can
show was lawfully within the Employee's possession prior to the commencement
of the Employee's employment with the Company.
12. Non-Compete.
The Employee agrees that the execution and fulfillment of the terms of
this agreement are a material and germane part of his employment. For a
period of two (2) years after the date of any termination of this Agreement,
he shall not, without the Company's prior written consent, directly or
indirectly own, manage, operate, join, control or participate in the
ownership, management, operation, development, control of, or be connected as
a director, officer employee, partner, consultant or otherwise with any profit
or non-profit business or organization in any part of the United states, that
directly or indirectly competes with the Company. The Employee agrees that
technological developments which he invents or produces while employed by the
Company are the proprietary property of the Company and he agrees to maintain
in confidence and not disclose to any third party, any ideas, methods,
developments, inventions, improvements and business plans and information that
are the confidential information of the Company. In the event the agreements
in this Section 12 shall be determined by any court of competent jurisdiction
to be unenforceable by reason of its extending for too great a period of time
or over too great a geographical area or by reason of its being too extensive
in any other respect, it shall be interpreted to extend only to the maximum
period of time for which it may be enforceable and/or to the maximum
geographical area for which it may be enforceable, all as determined by such
court in such action or by arbitration as set forth hereafter.
13. Enforcement.
It is the desire and intent of the parties hereto that the provisions of
this Agreement shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, to the extent that a restriction contained in this
Agreement is more restrictive than permitted by the laws of any jurisdiction
where this Agreement may be subject to review and interpretation, the terms of
such restriction, for the purpose only of the operation of such restriction in
such jurisdiction, shall be the maximum restriction allowed by the laws of
such jurisdiction and such restriction shall be deemed to have been revised
accordingly herein.
14. Remedies.
The Employee acknowledges and understands hat the provisions of this
Agreement are of a special and unique nature, the loss of which cannot be
accurately compensated for in damages or an action at law, and that the breach
or threatened breach of the provisions of this Agreement may cause the Company
irreparable harm. In the event of a breach or threatened breach by the
Employee of the provisions of Sections 11 and 12 hereof, the Company shall be
entitled to an injunction restraining the Employee from such breach. Nothing
herein contained shall be construed as prohibiting the Company from pursuing
any other remedies available for any breach or threatened breach of this
Agreement.
15. Mandatory Arbitration.
Every dispute, controversy or claim arising out of or relating to the
Employee's employment by the Company or his termination will be settled by
binding arbitration in Salt lake County in accordance with the then current
rules of the American Arbitration Association ("AAA"), before an experienced
employment arbitrator licensed to practice law in the State of Utah. Each of
the Company and Employee acknowledges and agrees that any claim shall be
governed by the internal laws of the State of Utah without regard to the laws
that might otherwise apply under applicable principles of conflicts of laws.
The prevailing party to any such action shall be entitled to recover, in
addition to any other relief granted, its attorneys' fees and costs.
16. Notices.
Notices and other communications hereunder shall be in writing and shall
be delivered personally or sent by air courier, first class certified or
registered mail, return receipt requested and postage prepaid, or facsimile,
addressed as follows:
If to the Company:
000Xxxxx.xxx, Inc.
000 X. 000 X.
Xxxx Xxxx Xxxx, Xxxx 00000
If to the Employee:
Xxxxx X. Xxxxx
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on
the date of delivery if personally delivered or by facsimile; on the business
day after the date when sent if sent by air courier; and on the third business
day after the date when sent if sent by mail, in each case addressed to such
party as provided in this Section or in accordance with the latest unrevoked
direction from such party.
17. Binding Agreement; Benefit.
The provisions of this Agreement will be binding upon, and will inure to
the benefit of, the respective heirs, legal representatives and successors of
the parties hereto.
18. Governing Law .
This Agreement will be governed by, and construed and enforced in
accordance with, the laws of the State of Utah.
19. Other.
The waiver by any party of a breach of any provision of this Agreement
must be in writing and shall not operate or be construed as a waiver of any
subsequent breach by such other party.
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements or
understandings among the parties with respect thereto. This Agreement may be
amended only by an agreement in writing signed by the parties hereto.
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.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
This Agreement is personal in its nature and the parties hereto shall
not, without the consent of the other, assign or transfer this Agreement or
any rights or obligations hereunder; provided, however, that the company may
assign its rights and obligations under this agreement to any subsidiary or
affiliate of the company and the provisions hereof shall inure to the benefit
of, and be binding upon each successor of the company, whether by merger,
consolidation, transfer of all or substantially all of its assets, or
otherwise.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the date first above written.
EMPLOYEE COMPANY
/s/ Xxxxx X. Xxxxx /s/ Xxxx Xxxxx
-------------------------------- --------------------------------
Xxxxx X. Xxxxx 000Xxxxx.xxx, Inc.
By Xxxx Xxxxx, its CEO
