EXHIBIT 10.18
digital broadcast network corporation
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is by and between digital
broadcast network corporation, a Missouri corporation having its principle
offices at 000 Xxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 (hereinafter, the
"Company"), and XXXX XXXXXXXX, an individual residing at 0000 Xxxxxxxxxx,
Xxxxxxxxxx, XX 00000 (hereinafter, "Employee").
WITNESSETH:
WHEREAS, Company is in the business of developing and implementing systems
that provide high-speed network bandwidth and services in connection therewith
to connect media-rich providers ("Company's Business"); and
WHEREAS, Company wishes to hire Employee as its Vice President of
Marketing, and Company desires to obtain Employee's knowledge and expertise
concerning marketing activities; and
WHEREAS, Employee wishes to become employed as Company's Vice President of
Marketing.
NOW, THEREFORE, in consideration of the foregoing and of the covenants and
agreements hereinafter set forth, and other good and valuable consideration the
receipt and sufficiency of which hereby are acknowledged, the Parties hereby
agree as follows:
Section 1. Employment, Duties and Acceptance. During the Employment Term (as
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defined in Section 2 of this Agreement), Company hereby agrees to employ
Employee as its Vice President of Marketing, to perform the duties set forth on
the attached Exhibit "A". Exhibit "A" is incorporated hereunder and made a part
of this Agreement as if fully set forth. During the Employment Term, Employee
agrees to devote his full business time and attention to the business and
affairs of Company and, to the extent necessary to discharge the
responsibilities assigned to Employee hereunder, to perform faithfully,
efficiently, diligently and competently such responsibilities. In addition to
the duties enumerated in this Agreement, Employee shall perform such other
duties as are reasonably commensurate with his position and title.
Section 2. Employment Term. The term of Employee's employment hereunder (the
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"Employment Term") shall commence on the date set forth on the date immediately
below the signature lines ("Effective Date") and shall continue for a period of
one (1) year after the Effective Date, unless otherwise terminated in accordance
with the sections of this Agreement. Employment shall automatically renew for
additional one (1) year periods, subject to Section 5, unless either party gives
the other party fourteen (14) days notice of termination.
Section 3. Compensation Arrangements. Company shall pay Employee based on the
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Compensation Arrangement set forth on Exhibit "A". Employee agrees that Company
may change the Compensation Arrangement with notice to Employee and that no
amendments, assurances or understandings are effective unless in writing and
signed by the President of the Company, and that such changes shall not
constitute a breach of this Agreement by Company.
Section 4. Ownership of Papers and Intellectual Property Rights.
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(a) Papers and Property. Employee acknowledges Company's
exclusive right to ownership, possession and title to all papers, documents,
tapes, drawings, notebooks, formulas, customer lists, software, hardware,
trademarks, trade names, service marks, processes, data, intellectual property,
or other records, information, or products prepared by Employee during
employment with Company or provided by Company, or which otherwise come into
Employee's possession by reason of employment with Company. Employee agrees not
to make or permit to be made, except in pursuit of Employee's duties hereunder,
any copies of such items. Employee further agrees to deliver to the Company upon
request all
such items in Employee's possession and without request to immediately deliver
such items upon the termination, voluntarily or involuntarily, of Employee's
employment.
(b) Inventions. The term "Inventions" means all ideas,
inventions, and discoveries, whether patentable, copyrightable, or not, relating
to any present or prospective business of the Company, including but not limited
to software, algorithms, designs, devices, processes, methods, formulae,
techniques, software, data storage systems, networks, servers, and any
improvements to the foregoing.
(i) Report. Employee agrees to promptly disclose all
Inventions made or conceived by the Employee, whether or not during the hours of
his employment or with the use of Company facilities, materials, or personnel,
either solely or jointly with others, during the term of his employment by the
Company. Employee shall inform the Company promptly and fully of such Inventions
by a written report, setting forth in detail the structures, procedures, and
methodology employed and the results achieved. A report shall also be submitted
by the Employee upon completion of any study or research project undertaken on
the Company's behalf, whether or not in the Employee's opinion a given study or
project has resulted in an Invention.
(ii) Assignment and Patent. Employee hereby assigns and
agrees to assign to the Company all of his rights to such Inventions and to all
proprietary rights therein, based thereon or related thereto, including, but not
limited to, applications for United States and foreign letters patent and
resulting letters patent. At the Company's request and expense, the Employee
shall execute such documents and provide such assistance as may be deemed
necessary by the Company of apply for, defend or enforce any United States and
foreign letters patent based on or related to such Inventions. Employee agrees
to execute all documents reasonably requested by Company to assist the Company
in perfecting or protecting any or all of its rights in the Inventions.
(iii) Copyright. Employee acknowledges that all
copyrightable Inventions are "works made for hire" and consequently that the
Company owns all copyrights thereto, including, but not limited to, 17 U.S.C.
Sections 101 and 210. The Company shall have the sole and exclusive right to
register the copyright(s), or its assignees, in all such work in its name as the
owner and author of such work and shall have the exclusive rights conveyed under
17 U.S.C. Sections 106 and 106A, including, but not limited to, the right to
make all uses of the works in which attribution or integrity rights may be
implicated. Additionally, without in any way limiting the foregoing, Employee
hereby assigns, transfers and conveys to Company, its successors, heirs and
assigns, any and all right, title or interest that Employee may now have, or may
acquire in the future, to the work including, but not limited to, all ownership,
patent (United States and foreign letters patent), trade secret, trade names and
trademarks, copyright moral, attribution and/or integrity rights. Employee
hereby expressly and forever waives any and all rights that Employee may have
arising under 17 U.S.C. Section 106A, and any rights arising under any federal
or state laws that convey rights which are similar in nature to those conveyed
under 17 U.S.C. Section 106A. Notwithstanding any provision of the Copyright
Act, any and all copyrightable works, prepared either in whole or in part by
Employee under this agreement, are, shall be, or shall become, owned by the
Company.
Section 5. Termination of Employment.
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(a) Subject to Section 5.(b), either party, with or without
cause, may terminate the employment relationship with fourteen (14) days written
notice ("Required Notice") to the other party. The relationship established
hereunder is employment at will. If Employee fails to give the Required Notice,
Employee shall waive any and all rights he may have to any accrued vacation due
him. In the event either Employee gives the Required Notice or Company gives the
Required Notice, but Company wishes to accelerate termination of Employee's
employment, Company may elect to so accelerate, in Company's sole discretion,
and terminate Employee immediately; provided, however, Company must in all
events pay the Employee for the fourteen (14) day notice period unless the cause
of the termination was for Employee's violation of
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Company's rules, regulations and policies, Employee misconduct, Employee neglect
of duties, or Employee's conviction of a felony. The death of Employee shall
automatically terminate this Agreement.
(b) The foregoing notwithstanding, in the event that Employee's
employment is terminated by Company other than for Good Cause and prior to the
Company's initial public offering, the Company shall pay to Employee an amount
equal to the Employee's annual compensation in 12 equal monthly installments and
if Employee's employment is terminated by Company other than for Good Cause and
after the Company's initial public offering, the Company shall only pay to
Employee an amount equal to one half (1/2) of the Employee's annual compensation
paid monthly for six months. The term "Good Cause" shall mean Employee's
commitment of an act of dishonesty, conviction of a felony, gross neglect or
material failure to perform Employee's duties hereunder. If the Company proposes
to terminate the employment relationship for Good Cause, the Company shall give
notice to Employee with sufficient particularity that the Employee will have an
opportunity to correct the situation to the reasonable satisfaction of the
Company within a reasonable period of time set forth in the Company notice which
shall not be less than 45 days, provided no notice and cure shall be required
for terminations attributable to dishonesty and conviction of a felony.
Section 6. Confidentiality and Noncompetition.
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In order for Company to reasonably protect its interests against the
competitive use of any of Company's confidential information or business
relationships, Employee agrees to the following covenants.
(a) Covenant Not to Compete. During Employee's employment, and
for a period of one (1) year after Employee's termination of employment, for
whatever reason, Employee shall not, within the continental United States,
directly or indirectly, acting alone or with others, voluntarily or
involuntarily, own, operate, engage in, be interested in, control through stock
ownership or otherwise, or become employed by, work for, advise, be connected
with, consult with or represent in any capacity or in any manner whatsoever in
any role, an individual, firm, corporation, partnership, association or other
entity other than the Company who or which is engaged in a business competitive
with the Company or with the Company's Business.
(b) Confidentiality. For purposes of this Agreement,
"Confidential Information" shall mean any communication disclosed to Employee or
known by Employee as a consequence of or through his past, present or
prospective employment or business relationship with Company, not generally
known and available in Company's industry, which constitutes Company's
proprietary and non-public method(s) of doing business, including, but not
limited to, any information related to trade secrets, pricing formulas, know-
how, test data, customer lists, vendor lists, training and operating manuals,
software, and reporting systems. Company and Employee acknowledge that during
Employee's period of employment by Company, Company will furnish Employee with
Confidential Information. Employee agrees both during his employment with the
Company, whether under this Agreement or otherwise, and at all times thereafter,
that Employee, his officers, directors, partners, employees, affiliates, agents,
representatives, or assigns (collectively "representatives") shall keep all
Confidential Information in the strictest confidence and shall not discuss,
publish, communicate, transmit, reproduce, or otherwise disclose such
Confidential Information, in any manner whatsoever, in whole or in part, without
the prior written consent of Company, unless and until such time as the
Confidential Information becomes generally known in Company's industry other
than through breach of this Agreement. Any written consent by Company to
Employee's disclosure of Confidential Information, if given, shall in no way
operate as a waiver of Employee's obligation to maintain the confidential nature
of the material disclosed or to protect and preserve that Confidential
Information from disclosures so that it will receive confidential treatment
thereafter. Employee agrees to reimburse Company for any damages sustained and
costs and expenses, including attorneys' fees, incurred in connection with an
unauthorized disclosure of Confidential Information by Employee, his
representatives, or other any person or persons to whom Employee or his
representatives previously had disclosed Confidential Information.
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(c) Non-Solicitation of Customers and Employees. During
Employee's employment and for a period of one (1) year after Employee's
termination of employment, for whatever reason, Employee shall not, either
directly or indirectly: 1) solicit any person or persons employed by or
otherwise associated with Company for the purpose of terminating said employee's
or person's employment relationship or association with Company.
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(d) Reasonableness of Covenants. Employee acknowledges and
agrees that the covenants and agreements contained in this Section are
reasonable, and Employee agrees he shall not raise any issue of their
reasonableness in any proceeding to enforce such covenants and agreements.
Employee agrees that any violation or breach by Employee and/or his
representatives of this Agreement would cause immediate and irreparable harm to
Company, the exact amount of which will be impossible to ascertain, and for that
reason further agrees that Company shall be entitled, as a matter of right, to
an injunction out of any court of competent jurisdiction, restraining any
further violation or breach of this Agreement by Employee and/or his
representatives, either directly or indirectly, such right to an injunction
being cumulative and in addition to whatever remedies Company may have under
applicable law and/or this Agreement. In the event of any litigation or
arbitration under this agreement, the prevailing party shall be entitled to an
award of all cost of the proceeding or suite, including reasonable attorney's
fees.
Section 7. Ability to Perform. Employee warrants that Employee's execution and
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performance of this Agreement is not restricted or prohibited by any agreement
to which Employee is subject.
Section 8. Miscellaneous. In case of any conflict or ambiguity in connection
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with or between this Agreement and any policy manuals, including but not limited
to any employee manuals, employment applications, management instructions or
promises, etc., this Agreement shall control. This Agreement shall inure to the
benefit of and be binding upon the Parties hereto, their successors and assigns.
Company may assign this Agreement. Provided, however, Employee's rights under
this Agreement shall not be assignable, nor shall Employee's obligations be
delegable. This Agreement shall be construed and enforced in accordance with the
laws of the State of Missouri, and the Parties hereby irrevocably and
unequivocally consent to the jurisdiction of the court sitting in the County of
St. Louis, State of Missouri, and waive any defense of an inconvenient forum to
the maintenance of any action or proceeding brought in such court in connection
with this Agreement, any objection to venue with respect to any such action, and
any right of jurisdiction on account of the place of residence or domicile of
any party to such action. If any provision or part thereof of this Agreement is
declared invalid, illegal or unenforceable in any respect, the validity,
legality or enforceability of the remaining provisions of this Agreement, and
any other application thereof, shall not in any way be affected or impaired, and
the Agreement shall be construed in all respects as if such invalid, illegal or
unenforceable provisions are omitted. Any notice or other communication required
or which may be given to any party hereunder shall be in writing and shall be
delivered personally, sent by facsimile transmission, or sent by certified,
registered or express mail, postage prepaid, and shall be deemed given when so
delivered personally, sent by facsimile transmission, or if mailed, two days
after the date of mailing, to the address of such party set forth on the first
page hereof, or to such other address as the parties may indicate in writing.
This writing contains the agreement of the parties with respect to the
employment contemplated herein. No amendments or variations of the terms or
conditions of this Agreement shall be valid unless in writing and signed by the
parties hereto. The headings contained in this Agreement are for convenience
only and shall in no manner be construed as part of the Agreement. The waiver by
either Party of a breach or violation of any provisions of this Agreement shall
not operate as or be construed to be a waiver of any subsequent breach hereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed effective as of the day and year first above written.
"Company" "Employee":
DIGITAL BROADCAST
NETWORK CORPORATION:
_______________________________ _________________________________
Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxx
President
EFFECTIVE DATE
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April 1, 1999
EXHIBIT "A" TO EMPLOYMENT AGREEMENT
DUTIES AND COMPENSATION ARRANGEMENT
A. Employee's Name Xxxx Xxxxxxxx
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B. Duties. In her capacity as Vice President of Marketing, Employee shall be
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responsible for (1) establishing company as a premier provider of next
generation network services within the industry press and analyst community,
managing all related activities and resources connected therewith; (2)
developing a concise market message for the Company that is integrated into all
sales and marketing activities and collateral; (3) supporting the sales and
channel marketing efforts with all required marketing materials and activities,
to include all web-related activities; and (4) actively participate in the
overall planning, budgeting and prioritization of Company activities and
resources. Employee acknowledges that in the performance of her duties as Vice
President of Marketing, whether under this Agreement or otherwise, he shall be
supervised by the President and the Board of Directors, as may be provided in
the By-laws or other governing instrument of the Company, as same may be amended
from time to time.
C. Salary. Subject to Paragraph 3, during the Employment Term, the Company
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shall pay Employee as salary for her services an annual base salary of One
Hundred Fifty thousand dollars ($150,000.00), payable in equal bi-monthly
installments of $6,250.00, subject to customary withholding taxes and other
employment taxes as required with respect thereto.
D. Benefits. Employee shall be entitled to participate in any health
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insurance, life insurance, or defined contribution or defined benefit plans that
the Company may offer to its employees on the same basis and under the same
terms as similarly situated employees.
E. Travel; Expenses. Company shall pay or reimburse Employee for all
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reasonable travel and other expenses actually incurred by Employee in the
performance of Employee's duties hereunder, upon presentation of expense
statements or vouchers or such other reasonable supporting information as is
generally required by Company in accordance with its expense account policies.
Mileage shall be paid at $.31 per mile. Employee expenses must be submitted on
the customary expense report form no later than the 10th of the month following
the occurrence of the expense.
F. Discretionary Bonuses. The Company may, from time to time and in its sole
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discretion, declare and pay bonuses to some or all of its employees. Such
bonuses may be payable in cash, stock, stock options, or other property as the
Company, in its sole discretion, deems advisable and in such amounts as the
Company, in its sole discretion, deems advisable. The Company shall establish
and maintain Management Performance Objectives ("MPOs") for Employee for each
year of Employee's employment. Such MPOs shall be maintained in Employee's
personnel file, and a copy of such MPOs shall be transmitted to Employee. In
the event Employee meets or exceeds said MPOs for any given year, Employee shall
become eligible for any discretionary bonus or bonuses declared by the Company
for that year.
G. Stock. As compensation for Employee's continued service to the Company, the
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Company shall grant 17,500 options to acquire shares of common stock in Company,
in accordance with the Stock Option Plan between Company and Employee.
"Company" "Employee":
DIGITAL BROADCAST
NETWORK CORPORATION:
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxx Xxxxxxxx
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Xxxxxx Xxxxxxxxx Xxxx Xxxxxxxx
CEO/President
