EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of the 16th day of
July, 2000, is entered into between MegaMedia Networks, Inc., (the "Company"),
and Xxxxxxx X. Xxxxxx, Xx., (the "Executive").
RECITAL
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be employed by the Company upon the terms and subject to the
conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the Recital and of the mutual promises
set forth in this Agreement, the company and the Executive agree as follows:
AGREEMENT
1. Employment. The Company employs the Executive as the Chief Technology
Officer and as CTO he shall coordinate all of the Employer's technical
operations, new product development and implementation of Internet related
software and hardware, management of third party vendor support, relations
and alliances, and the Employee hereby accepts such employment, upon the
terms and subject to the conditions set forth in this Agreement.
2. Term. The term of this Agreement shall be six months (6), commencing on
July 16, 2000, and ending on January 20, 2001.
3. Duties. During the term of this Agreement, subject to the direction of the
Board of Directors of the Company, the Executive shall serve in the
capacities set forth in Section 1 hereof. The Executive shall devote his
time and energies to the business and affairs of the Company and shall use
his best efforts, skills and abilities to promote the interests of the
Company and to diligently and competently perform his duties.
4. Compensation and Benefits:
A. Executive Compensation. Commencing with the start of employment
pursuant to this Agreement, Executive shall receive an annual salary
of $150,000.00 (one hundred, fifty thousand dollars). Executive shall
also be entitled to participate in the executive bonus program as that
Program may be in force and determined from time to time by the
Company's Board of Directors and its Compensation Committee.
B. Benefits: During the term of this Agreement, the Executive shall be
entitled to participate in or benefit from, in accordance with the
eligibility and other provisions thereof such medical, insurance,
pension, retirement, life insurance, profit sharing and other fringe
benefit plans or policies as the company may make available to, or
have in effect for, its other senior executives and Executive's
participation shall not be less that that of any other executive
officer of the Company. The Company retains the right to terminate or
alter any such plans or policies from time to time. At this time, the
Company pays 30% of the cost of participation of Executive's family in
the Company medical insurance plan.
C. Reimbursement of Business Expenses: During the term of this Agreement,
upon submission of appropriate supporting documentation, the Executive
shall be reimbursed by the Company for all reasonable business
expenses actually and necessarily incurred by the Executive on behalf
of the Company in connection with the performance of services under
this Agreement.
D. Reimbursement of Other Expenses: During the ter of this Agreement the
Executive shall receive an auto allowance of $500.00 per month and
shall participate in any other reimbursements (i.e. cellular phone,
E. pager, etc.) offered to other senior executives at a level that shall
not be less than that of any other executive officer of the Company.
F. Vacation: During the term of this Agreement Executive shall be
eligible for ten (10) business days paid vacation during this six
month agreement. Vacation days are not cumulative and will not carry
over from year to year.
G. Sick Leave: Executive will be eligible for five (5) paid sick days per
year. Paid sick days can be used for any purpose during the employment
term. Sick days are not cumulative and will not carry over from year
to year.
5. Representation of Executive: The Executive represents and warrants that he
is not a party to, or bound by, any agreement or commitment, or subject to
any restriction, including but not limited to agreements related to
previous employment containing confidentiality or non-compete covenants,
which in the future may have a possibility of adversely affecting or
interfering with the business of the Company, the full performance by the
Executive of his duties under this Agreement or the exercise of his best
efforts hereunder.
6. Termination: This Agreement may be terminated prior to the expiration of
the term set forth in Paragraph 2 upon the occurrence of any of the events
set forth in, and subject to the terms of this Paragraph 6.
A. Death. This Agreement will terminate immediately and automatically
upon the death of the Executive. In the event of Executive's death,
Executive's estate or his designated beneficiary shall be paid by the
Company all of the compensation and benefits due to Executive through
the date of his death, including without limitation, the Escrow Stock
and stock option benefits to which Executive was entitled as of the
date of his death.
B. Disability. This Agreement may be terminated at the Company's option,
immediately upon written notice to the Executive, if the Executive
shall suffer a permanent disability. For the purposes of this
Agreement, the term "permanent disability" shall mean the Executive's
inability to perform his duties under this Agreement for a period of
90 consecutive days or for an aggregate of 120 days, whether or not
consecutive, in any six (6) month period, due to illness, accident or
any other physical or mental condition, as determined by the Board of
Directors of the Company. In the event of a permanent disability,
Executive shall be paid by the Company all of the compensation and
benefits due to Executive through the date of his permanent
disability..
C. Voluntary termination by Executive. Thi Agreement may be terminated by
Executive upon giving 30 days written notice to the Board of
Directors. In the event that Executive voluntarily terminates this
Agreement, except for "Constructive Discharge" as hereinafter defined,
he shall be paid by the Company all of the compensation and benefits
due to Executive through the date of termination.
i. any reduction of compensation, or othe benefits set forth in
Paragraph 4 hereof;
ii. a material reduction in Executive's job function, duties or
responsibilities, or a similar change in Executive's reporting
relationships; or
iii. a required relocation of Executive xxx xxxx 35 miles from the
Company's offices at 00 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000;
or,
iv. any breach of any of the material term of this Agreement by the
Company which is not fully cured within 15 (fifteen) days of
Company's receipt of written notice thereof from Executive.
D. Cause. This Agreement may be terminated at the Company's option,
immediately upon written notice to the Executive, upon (i)
"Misconduct" which includes, but is not limited to, the following,
which shall not
E. be construed in pari materia with each other: (a) Conduct evincing
such willful or wanton disregard of an employer's interests as is
found by the Company's Board of Directors to be in deliberate
violation or disregard of standards of behavior which the employer has
the right to expect of the Executive; or (b) Carelessness or
negligence of such a degree or recurrence as is found by the Company's
Board of Directors to manifest culpability, wrongful intent, or evil
design, or to show an intentional and substantial disregard of an
employer's interests or of the Executive's duties and obligations to
the employer, or (ii) fraud, criminal conduct (as evidenced by a plea
of no contest or guilty or upon conviction of the Executive for any
felony) or embezzlement by the Executive. In the event that Executive
is terminated for cause, he shall be paid by the Company all
compensation and benefits due through the date of written notice of
termination..
E. Without Cause. This Agreement may be terminated at the Company's
option without cause immediately upon notice to the Executive. In the
event the Company elects to terminate this Agreement without cause
pursuant to this subsection, or the Executive is Constructively
Discharged as specified in Paragraph 6C above, the Company shall:
i. Pay to Executive as wages in lieu of notice the sum of $75,000,
or an amount equal to half of the Executive's latest annual
salary level, whichever is greater, to be paid in two equal
payments, with the first payment paid immediately upon
termination and subsequent payments being paid on the 60th day
after termination, until paid in full.
ii. Simultaneous with delivery of the Executive's general release
referenced in paragraph 6F, Company shall deliver to Executive or
Executive's estate a general release, in form substantially
similar to Executive's Release, releasing the Executive and/or
his estate from any and all rights, claims, demands, judgments,
obligations, liabilities and damages, whether accrued or
unaccrued, asserted or unasserted, and whether known or unknown,
relating to the Company which ever existed, then existed, or may
thereafter exist, by reason of the termination of this Agreement
without cause..
F. Upon the termination of Executive's employment by the Company without
cause, simultaneously with the receipt of the first installment of the
wages in lieu of notice, and as a condition to the receipt thereof,
the Executive or his estate, shall deliver to the Company a general
release form acceptable to the Company releasing the Company from any
and all rights, claims, demands, judgments, obligations, liabilities
and damages, whether accrued or unaccrued, asserted or unasserted, and
whether known or unknown, relating to the Company which ever existed,
then existed, or may thereafter exist, by reason of termination of
this Agreement without cause, except payment of $75,000 or an amount
equal to half of the Executive's latest annual salary level, whichever
is greater..
G. Effect of Termination. In the event of any termination under this
Paragraph 6, the Company shall have no further obligation under this
Agreement to make any payment to, or bestow any benefits on, the
Executive from and after the date of the termination other than
payments or benefits accrued and due and payable to Executive as
provided herein.
7. Indebtedness. If, during the course of the Executive's employment under
this Employment Agreement, the Executive becomes indebted to MegaMedia for
any reason, MegaMedia may, if it so elects, set off any sum due to
MegaMedia from the Executive and collect form the Executive any remaining
balance.
8. Training Expenses. MegaMedia shall pay for all reasonable training expenses
incurred by the Executive while he is employed under this Employment
Agreement.
9. Consent to Personal Jurisdiction and Venue; waiver of Jury Trial. The
Executive and Company hereby consent to personal jurisdiction and venue,
for any action brought by either party arising out of a breach or
threatened breach of this Employment Agreement, exclusively in the United
States District Court for the Middle
District of Florida, Orlando Division, or in the Circuit Court in and for
Orange County, Florida; the Executive and Company hereby agree that any
action brought by either party, alone or in combination with others,
against the other party, whether arising out of this Agreement or
otherwise, shall be brought exclusively in the United States District Court
for the Middle District of Florida, Orlando Division, or in the Circuit
Court in and for Orange County, Florida. The Executive and Company hereby
agree that any controversy which may arise under this Agreement would
involve complicated and difficult factual and legal issues. Therefore, if a
court of law determines for any reason that the arbitration clause of
Paragraph 10 of the Agreement is unenforceable, then any action brought by
MegaMedia against the Executive, alone or in combination with others,
against MegaMedia, whether arising out of this Agreement or otherwise,
shall be determined by a Judge sitting without a jury.
10. Arbitration. All controversies, claims, disputes, and matters in question
arising out of, or related to, this Employment Agreement or the breach of
this Agreement, or the relations between the signatories to this Agreement,
shall be decided by arbitration in accordance with the commercial
Arbitration Rules of the American Arbitration Association. The signatories
agree that the arbitration shall take place exclusively in Orlando,
Florida, and shall be governed by the substantive law of the state of
Florida. Any award rendered by the arbitrator shall be final, and final
judgment may be entered upon it in accordance with applicable law in any
court having jurisdiction thereof, including a federal district court,
pursuant to the Federal Arbitration Act. The arbitrator may grant a party
injunctive relief, including mandatory injunctive relief, to protect the
rights of such party, but the arbitrator shall not be limited to such
relief. This arbitration provision shall not preclude a party from seeking
temporary or preliminary injunctive relief in a court of law to protect its
rights, nor shall the filing of such an action constitute any waiver by
either party of its right to arbitrate. In connection with the arbitration
of any dispute between the signatories to this Agreement, each signatory
may utilize all methods of discovery authorized by the Federal and Florida
Rules of Civil Procedure.
11. Acknowledgements. The Executive hereby acknowledges tha he has been
provided with a copy of this Employment Agreement for review prior to
signing it, that he has been given the opportunity to have this Agreement
reviewed by his own attorney prior to signing it, that he understands the
purposes and effects of this Agreement, and that he has been given a signed
copy of this Agreement for his own records. The parties hereto acknowledge
that this Agreement and all matters contemplated herein, have been
negotiated between both of the parties hereto and their respective legal
counsel and that both parties have participated in the drafting and
preparation of this Agreement from the commencement of negotiation at all
times through the executive hereof.
12. Waiver. The waiver by either party of a breach or threatened breach of this
employment Agreement by the other party shall not be construed as a waiver
of any subsequent breach. The refusal or failure of MegaMedia to enforce
this Agreement (or any similar Agreement) against any other executive,
agent, or independent contractor, for any reason shall not constitute a
defense to the enforcement by MegaMedia of this Agreement, nor shall it
give rise to any claim or cause of action by such executive, agent, or
independent contractor or consulting against MegaMedia.
13. Indemnification. The Company shall indemnify Executive to the fullest
extent permitted by applicable law against damages and expenses (including
fees and disbursements of counsel) in connection with his status or arising
out of the ordinary and proper conduct of his duties as an employee,
officer and director of the Company.
14. Miscellaneous.
A. Entire Agreement. This Employment constitutes the entire agreement
between its signatories pertaining to the subject matters of the
Agreement, and it supersedes all negotiations, preliminary agreements,
and all prior and contemporaneous discussions and understandings of
the signatories in connection with the subject matters of the
Agreement. Except as otherwise herein provided, no covenant,
representation, or condition not expressed in this Agreement, or in an
amendment made and executed in accordance with the provisions of
subparagraph (b) of this paragraph, shall be binding upon the
signatories or shall affect or be effective to interpret, change, or
restrict the provisions of this Agreement.
B. Amendments. No change, modification, or termination of any of the
terms, provisions, or conditions of this Agreement shall be effective
unless made in writing and signed or initialed by all signatories to
this Agreement.
C. Governing Law. This Agreement shall be governe and construed in
accordance with the statutory and decisional law of the State of
Florida governing contracts to be performed in their entirety in
Florida.
D. Separability. If any paragraph, subparagraph, or provision of this
Agreement, or the application of such paragraph, subparagraph or
provision, is held invalid by a court of competent jurisdiction, the
remainder of the Agreement, and the application of such paragraph,
subparagraph, or provision to persons or circumstances other than
those with respect to which is held invalid, shall not be affected.
E. Headings and Captions. The titles and captions of paragraphs and
subparagraphs contained in this Agreement are provided for convenience
of reference only, and they shall not be considered a part of this
Agreement for purposes of interpreting or applying this Agreement;
such titles or captions are not intended to define, limit, extend,
explain or describe the scope or extent of this Agreement or any of
its terms, provisions, representations, warranties, or conditions in
any manner or way whatsoever.
F. Attorney's Fees. In the event it shall be necessary for any party to
seek arbitration or court intervention in order to enforce or defend
its rights hereunder, the prevailing party in any such action shall
recover from the non-prevailing party or parties, all reasonable
attorneys' and paralegal fees in the trail and appellate courts and in
all arbitration, including expert witness fees, deposition costs
(appearance fees and transcript charges), injunction bond premiums,
travel and lodging expenses, arbitration fees and charges, and all
other reasonable costs and expenses.
G. Continuance of Agreement. The rights, responsibilities, and duties of
the signatories to this Agreement, and the covenants and agreements
contained in this Agreement, shall continue to bind the signatories,
shall continue in full force and effect until each and every
obligation of the signatories pursuant to this Agreement (and any
document or agreement incorporated hereby by reference) shall have
been fully performed, and shall be binding upon the successors and
assigns of the signatories.
H. Successors and Assigns. Neither party shall have the right to assign
this personal Agreement, or assign any rights or delegate any
obligations hereunder, without the consent of the other party;
provided, however, that upon the sale of all or substantially all of
the assets, business and goodwill of the Company to another company,
this Agreement shall inure to the benefit of; and be binding upon,
both Executive and the company purchasing such assets, business and
goodwill, or surviving such merger or consolidation, as the case may
be, in the same manner and to the same extent as though such other
company were the Company, subject to the Executive's rights hereunder.
Subject to the foregoing, this Agreement shall inure to the benefits
of; and be binding upon, the parties hereto and their legal
representatives, heirs, successors and assigns.
I. Additional Acts. The Executive and the Company each agrees to execute,
acknowledge and deliver and file, or cause to be executed,
acknowledged and delivered and filed, any and all further instruments,
agreements or documents as may be necessary or expedient in order to
consummate the transactions provided for in this Agreement and do any
and all further acts and things as may be necessary or expedient in
order to carry out the purposes and intent of this Agreement.
J. Notices. Any notice or other communication under this Agreement, other
than as provided above, shall be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, or sent by
facsimile or prepaid overnight courier to the parties at the addresses
set forth below (or at such other addresses as shall be specified by
the parties by like notice). Such notices, demands, claims and other
communications shall be deemed given when actually received or (a) in
the case of delivery by overnight
service with guaranteed next day delivery, the next day or the day
designated for delivery, (b) in the case of facsimile, the date upon
which the transmitting party received confirmation of receipt by
facsimile, telephone or otherwise.
To the Company: To the Executive:
MegaMedia Networks, Inc. Xxxxxxx X. Xxxxxx
00 Xxxx Xxxx Xxxxxx 000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000 Xxxxxxx, XX 00000
Attn: Human Resources
Fax: 000-000-0000
K. Counterparts. This Agreement may be executed i counterparts, each of
which shall be deemed an original and all of which, together, will
constitute one and the same agreement. Any facsimile version of a
manually executed signature page delivered by one party to the other
shall be deemed manually executed and delivered original.
/S/ XXXXXXX X. XXXXXX, XX.
Executive - Xxxxxxx X. Xxxxxx, Xx
/S/ XXXXX X. XXXX
MegaMedia Networks, Inc.
By: Xxxxx X. Xxxx President
