EXHIBIT 10.5
Employment Agreement to be dated and executed at closing by Xxxxxxx Xxxx
1. EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of the ___
day of October 2002 by and between Network 60, LLC, a New York Limited Liability
Company, 000X Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (the "Employer"), and Xxxxxxx
Xxxx, ________________________________ (hereinafter called the "Employee").
Whereas, Employer and Employee have contracted with Dtomi, Inc., a Nevada
corporation, in an Agreement dated October ___, 2002 (hereafter the "Dtomi
Agreement") wherein Employee, through his ownership in Ubiquity, LLC, a New York
limited liability company, owns a majority interest in Employer. The pertinent
parts of said contract with Dtomi, Inc. is included herein by reference;
Whereas, Employee is currently employed by Employer with specific duties and
responsibilities that evolved over the past through present term of employment
with Employer;
Whereas, the Dtomi Agreement obligates Employee to continue his employment with
Employer;
Whereas, the Dtomi Agreement obligates Employer to retain employment of Employee
with Employer;
Whereas, Employee and Employer would like to structure a mutually beneficial
business relationship whereby Employee serves in his present capacities as
developed through his past employment with Employer in exchange for monetary
compensation similarly as paid over the past year;
Now therefore, in consideration of the premises and mutual covenants set forth
herein, the parties hereto, intending to be legally bound, agree as follows:
1. Employment. The Employer hereby agrees to employ the Employee and the
Employee hereby agrees to serve the Employer on the terms and
conditions set forth herein. The recitals as stated above are included
in the body of this Agreement by reference.
2. Duties of Employee. Employee shall perform the identical duties and
responsibilities that he customarily performed over the past six
months and as shall be reasonably assigned to him by the Chief
Executive Officer of Dtomi, Inc. that are consistent with his office.
Employee shall serve at the direction of and be responsible to the
Chief Executive Officer of Dtomi, Inc. Throughout the period of his
employment hereunder, the Employee shall: (i) devote his full business
time, attention, knowledge and skills, faithfully, diligently and
professionally, to the active performance of his duties and
responsibilities hereunder on behalf of the Employer at a level at
least equal to that generally expected of an employee of a business
comparable to that of the Employer, having the rank and
responsibilities of the Employee; (ii) observe and carry out such
rules, regulations, policies, directions and restrictions of general
application to all employees of the Employer having a rank comparable
to that of the Employee as may reasonably be established from time to
time by the Chief Executive Officer of Dtomi, Inc., including but not
limited to the standard policies and procedures of the Employer as in
effect from time to time; and (iii) do such traveling as may
reasonably be required in connection with the performance of such
duties and responsibilities.
3. Term. The term of this Agreement, and the employment of the Employee
hereunder, shall commence on the date of closing the Dtomi Agreement
and shall continue for the duration as required by paragraphs 1.1.2
and 1.1.3 of the Dtomi Agreement (the "Expiration Date") unless sooner
terminated in accordance with the terms and conditions hereof (the
"Term").
4. Compensation. The Employee shall receive a base salary at an annual
rate equal to that annual rate as averaged over the past eight months
immediately preceding the Dtomi Agreement closing. It has been
represented by Employee to Dtomi, Inc. that that salary is $200,000
per annum. This salary shall be paid during the term of this Agreement
payable in monthly installments, subject to applicable withholding and
other taxes.
5. Reimbursement of Expenses. During the term of the Employee's
employment hereunder, upon the submission of proper substantiation by
the Employee and subject to such rules and guidelines as the Employer
may from time to time adopt, the Employer shall reimburse the Employee
for all reasonable expenses actually paid or incurred by the Employee
in the course of and pursuant to the business of the Employer. The
Employee shall account to the Employer in writing for all expenses for
which reimbursement is sought and shall supply to the Employer copies
of all relevant invoices, receipts or other evidence reasonably
requested by the Employer.
6. Termination for Cause. The Employer by way of Chief Executive Officer
of Dtomi, Inc. shall at all times have the right, upon written notice
to the Employee, to terminate the Employee's employment hereunder, for
Cause. For purposes of this Agreement, the term "Cause" shall mean (i)
an action or omission of the Employee which constitutes a breach of
this Agreement which is not cured within 30 days of the Employer's
giving notice of termination to the Employee specifying in reasonable
detail the reasons for termination, (ii) the Employee's committing an
act constituting fraud, theft, conversion, a crime, or breach of
fiduciary duty, (iii) gross negligence in connection with the
performance of the Employee's material duties hereunder, (iv) the
material failure or refusal (other than as a result of a disability)
by the Employee to perform his duties hereunder, (v) the Employee's
abuse of drugs or alcohol that adversely affects the performance of
the Employee's duties hereunder; (vi) the Employee's commission of an
act of misconduct, to the extent that in the reasonable judgment of
the Employer, the Employee's credibility and reputation no longer
conform to the standards of the Employer's senior officers; (vii) the
Employee not being qualified in the Employer's reasonable judgment to
discharge properly the duties of the Employee's employment hereunder.
Upon any termination pursuant to this Section, the Employer shall have
no further liability under the terms of this Employment Agreement.
7. Non-Competition. At all times while the Employee is employed by the
Employer and for a two year period after the termination of the
Employee's employment with the Employer the Employee shall not,
directly or indirectly, engage in or have any interest in any sole
proprietorship, partnership, corporation or business or any other
person or entity (whether as an employee, officer, director, partner,
agent, security holder, creditor, consultant or otherwise) that
directly or indirectly (or through any affiliated entity) engages in
competition with the Employer's current business that in any manner
causes or results in any loss of revenue or to the business of the
Employer; provided that such provision shall not apply to the
Employee's ownership of Common Stock of the Employer or the
acquisition by the Employee, solely as an investment, of securities of
any issuer
having securities registered under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended, that are listed or
admitted for trading on any United States national securities exchange
or that are quoted on the National Association of Securities Dealers
Automated Quotations System, or any similar system of automated
dissemination of quotations of securities prices in common use, so
long as the Employee does not control, acquire a controlling interest
in or become a member of a group which exercises direct or indirect
control of, more than five percent of any class of capital stock of
such corporation.
8. Nondisclosure. The Employee shall not at any time divulge,
communicate, use to the detriment of the Employer or for the benefit
of the Employee or any other person, or misuse in any way, any
Confidential Information (as hereinafter defined) pertaining to the
business of the Employer. Any Confidential Information or data now or
hereafter acquired by the Employee with respect to the business of the
Employer (which shall include, but not be limited to, information
concerning the Employer's financial condition, prospects, technology,
customers, suppliers, sources of leads and methods of doing business)
shall be deemed a valuable, special and unique asset of the Employer
that is received by the Employee in confidence and as a fiduciary and
Employee shall remain a fiduciary to the Employer with respect to all
of such information. For purposes of this Agreement, "Confidential
Information" means information disclosed to the Employee or known by
the Employee as a consequence of or through his employment by the
Employer (including information conceived, originated, discovered or
developed by the Employee) prior to or after the date hereof, and not
generally known, about the Employer or its business. Notwithstanding
the foregoing, nothing herein shall be deemed to restrict the Employee
from disclosing Confidential Information to the extent required by
law. This Section shall not apply to information that (i) is generally
known to the Employee prior to its disclosure to the Employee; (ii) is
or becomes publicly available other than by unauthorized disclosure by
the Employee; or (iii) is received by the Employee from a third party
who is rightfully in possession of such information free of any
obligation to maintain its confidentiality; or (iv) is known by the
Employee prior to his employment by the Employer.
9. Non-solicitation of Employees and Clients. At all times while the
Employee is employed by the Employer and for a two year period after
the termination of the Employee's employment with the Employer for any
reason, the Employee shall not, directly or indirectly, for himself or
for any other person, firm, corporation, partnership, association or
other entity (a) employ or attempt to employ or enter into any
contractual arrangement with any employee or former employee of the
Employer in any business that directly or indirectly competes with the
Employer, and/or (b) call on or solicit any of the Employer's actual
or targeted prospective customers, suppliers, providers of products or
services to the Employer or its customers, or comparable parties
("Customers/Providers") on behalf of any person or entity in
connection with any business competitive with the business of the
Employer as defined herein that in any manner causes or results in any
loss of revenue or to the business of the Employer, nor shall the
Employee make known the names and addresses of Customers/Providers or
any information relating in any manner to the Employer's trade or
business relationships with Customers/Providers, other than in
connection with the performance of Employee's duties under this
Agreement; provided however that this Section 6.3 shall not apply to
any solicitation of users of the Internet generally through a web site
that can be accessed by the public so long as such solicitation does
not involve direct contact with Customers/Providers.
10. Books and Records. All books, records, and accounts relating in any
manner to the customers or clients of the Employer, whether prepared
by the Employee or otherwise coming into the Employee's possession,
shall be the exclusive property of the Employer and shall be returned
immediately to the Employer on termination of the Employee's
employment hereunder or on the Employer's request at any time.
11. Definition of Employer. Solely for purposes of this Agreement, the
term "Employer" also shall include any existing or future subsidiaries
of the Employer and Dtomi, Inc.
12. Acknowledgment by Employee. The Employee acknowledges and confirms
that (a) the restrictive covenants contained in this Employment
Agreement are reasonably necessary to protect the legitimate business
interests of the Employer, and (b) the restrictions contained in this
Employment Agreement are not overbroad, overlong, or unfair and are
not the result of overreaching, duress or coercion of any kind. The
Employee further acknowledges and confirms that his full, uninhibited
and faithful observance of each of the covenants contained in this
Employment Agreement will not cause him any undue hardship, financial
or otherwise, and that enforcement of each of the covenants contained
herein will not impair his ability to obtain employment commensurate
with his abilities and on terms fully acceptable to him or otherwise
to obtain income required for the comfortable support of him and his
family and the satisfaction of the needs of his creditors. The
Employee acknowledges and confirms that his special knowledge of the
business of the Employer is such as would cause the Employer serious
injury or loss if he were to use such ability and knowledge to the
benefit of a competitor or were to compete with the Employer in
violation of the terms of this Employment Agreement. The Employee
further acknowledges that the restrictions contained in this
Employment Agreement are intended to be, and shall be, for the benefit
of and shall be enforceable by, the Employer's successors and assigns.
13. Reformation by Court. In the event that a court of competent
jurisdiction shall determine that any provision of this Employment
Agreement is invalid or more restrictive than permitted under the
governing law of such jurisdiction, then only as to enforcement of
this Employment Agreement within the jurisdiction of such court, such
provision shall be interpreted and enforced as if it provided for the
maximum restriction permitted under such governing law.
14. Extension of Time. If the Employee shall be in violation of any
provision of the restrictive covenants of this Employment Agreement,
then each time limitation set forth in the restrictive covenants of
this Employment Agreement shall be extended for a period of time equal
to the period of time during which such violation or violations occur.
If the Employer seeks injunctive relief from such violation in any
court, then the restrictive covenants set forth in this Employment
Agreement shall be extended for a period of time equal to the pendency
of such proceeding including all appeals by the Employee.
15. Injunction. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Employee of any of the covenants contained
of this Agreement will cause irreparable harm and damage to the
Employer, the monetary amount of which may be virtually impossible to
ascertain. As a result, the Employee recognizes and hereby
acknowledges that the Employer shall be entitled to an injunction from
any court of competent jurisdiction enjoining and restraining any
violation of any or all of the covenants contained this Employment
Agreement by the Employee or any of his affiliates, associates,
partners or agents, either directly or indirectly, and that such right
to injunction shall be cumulative and in addition to whatever other
remedies the Employer may possess.
16. Entire Agreement. This Agreement along with the Dtomi Agreement
constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and, upon its effectiveness,
shall supersede all prior agreements, understandings and arrangements,
both oral and written, between the Employee and the Employer (or any
of its affiliates) with respect to such subject matter. This Agreement
may not be modified in any way unless by a written instrument signed
by both the Employer and the Employee.
17. Notices. All notices required or permitted to be given hereunder shall
be in writing and shall be personally delivered by courier, sent by
registered or certified mail, return receipt requested or sent by
confirmed facsimile transmission addressed as set forth herein.
Notices personally delivered, sent by facsimile or sent by overnight
courier shall be deemed given on the date of delivery and notices
mailed in accordance with the foregoing shall be deemed given upon the
earlier of receipt by the addressee, as evidenced by the return
receipt thereof, or three (3) days after deposit in the U.S. mail.
Notice shall be sent (i) if to the Employer, addressed to the office
address as noted above and (ii) if to the Employee, to his address as
reflected on the payroll records of the Employer, or to such other
address as either party hereto may from time to time give notice to
the other.
18. Benefits; Binding Effect. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs,
personal representatives, legal representatives, and successors.
19. Severability. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement
or any part thereof, all of which are inserted conditionally on their
being valid in law, and, in the event that any one or more of the
words, phrases, sentences, clauses or sections contained in this
Agreement shall be declared invalid, this Agreement shall be construed
as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, or section or sections had not been
inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to
be reduced to a period or area that would cure such invalidity.
20. Waivers. The waiver by either party hereto of a breach or violation of
any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
21. 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.
22. No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give
any person other than the Employer, the parties hereto and their
respective heirs, personal representatives, legal representatives,
successors and assigns, any rights or remedies under or by reason of
this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
Network 60, LLC
By: ______________________________ ______________________________
Xxxx "JT" Thatch Xxxxxxx Xxxx
