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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into on
June 30, 2000 by and between High Speed Net Solutions, Inc. ("High Speed") a
Florida corporation and Xxxxxxx X. May, an individual residing in Dallas County,
Texas ("Employee").
The Agreement is being executed contemporaneously with the execution of
a Share Acquisition Agreement (hereinafter so called) between Employee and HIGH
SPEED for all of the stock of Xxxxxxx May & Co, Inc., a Texas corporation
("May"), dated as of the date hereof.
Accordingly, the parties hereto agree as follows:
1. TERM. HIGH SPEED shall employ Employee and Employee accepts employment
by HIGH SPEED as Executive Vice President and Chief Creative Officer
for a period of three (3) years, commencing on the date of this
Agreement and ending on June 30, 2003 (the "Employment Period") subject
to the terms and conditions provided in this Agreement.
2. DUTIES.
(a) Employee shall report directly to the President and Chief
Executive Officer of HIGH SPEED.
(b) Employee shall have responsibility in the management and
operation of the "rich media delivery services" designed,
developed and marketed by HIGH SPEED.
(c) As Chief Creative Officer, Employee shall oversee the creative
content of all products and services designed, developed,
and/or marketed by HIGH SPEED and its business divisions. HIGH
SPEED has the right to delegate the task fulfillment to
persons within HIGH SPEED based on need, capabilities and time
constraints but, Employee shall at all times retain the
responsibility for the creative content of all products and
services designed, developed, and/or marketed by HIGH SPEED
and its business divisions.
(c) Employee will also serve as President of May, and have
responsibility for the management and operations of the
Company, and any further development of its business.
(d) Employee shall fully and satisfactorily perform, during the
Employment Period, on a full-time basis, such executive,
administrative, managerial, research and development, sales,
marketing and other duties as shall be reasonably determined
by
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the management of HIGH SPEED, including all duties customarily
performed by employees in similar positions with HIGH SPEED or its
affiliates. Employee shall use his best efforts in the performance of
his duties hereunder and shall not become personally involved in the
management or advisement of any other entity without the prior written
consent of HIGH SPEED.
3. COMPENSATION.
(a) SIGNING BONUS. HIGH SPEED shall pay Employee the sum of Twenty
Thousand and N0/100 Dollars ($20,000) upon the execution of
this Agreement as a signing bonus.
(b) SALARY AND EXPENSES. Subject to Employee's performance of his
duties hereunder, HIGH SPEED shall pay Employee a salary of
eleven thousand-two hundred and fifty thousand dollars
($11,250) per month ($135,000 annually), in installments
conforming to the then-utilized payroll system of HIGH SPEED,
less any payroll deductions required to be withheld by any
applicable law (the "Salary"). HIGH SPEED shall reimburse
Employee for all business expenses properly approved and
incurred by him in the performance of his duties hereunder, in
accordance with policies established from time to time by HIGH
SPEED. Subject to satisfactory performance of his duties under
this Agreement, Employee shall be eligible for a minimum five
percent (5%) salary increase on each annual anniversary date
of this Agreement, as well as performance based bonuses,
described in Section 3(b), subject to approval by the Board of
Directors of HIGH SPEED in its discretion.
(c) AUTOMOBILE ALLOWANCE. Employee shall receive a monthly
automobile allowance of $600 per month.
(d) BONUS. Employee will, in addition to salary compensation, be
eligible to earn an additional one hundred percent (100.00%)
of the annual salary described in Section 3(a) as part of a
bonus plan, which shall be based upon achieving objective and
discretionary elements of an annual business plan. Objective
elements used to measure performance shall include, but not be
limited to, meeting budgeted earnings as reasonably
established by Employee and HIGH SPEED management and as
approved by HIGH SPEED's board of directors. A maximum of
twenty-five percent of the bonus will be related to the
performance of May; and, the other seventy-five percent will
be related to the performance of HIGH SPEED and the Employee's
fulfillment of his responsibilities as Executive
Vice-President and Chief Creative Officer of HIGH SPEED as
well as his contribution to the rich media delivery service
division, unless reorganized, or, unless Employee has been
reassigned to manage other divisions or oversee other
responsibilities.
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Each succeeding year, the percent of annualized salary will
differ based on salary adjustments for cost of living and
management's prerogative to adjust Employee's annual salary
from one year to another.
(e) BENEFITS. Employee shall be included in HIGH SPEED's health
insurance plan and sick leave policy as provided to Employee
prior to Closing. HIGH SPEED shall procure and pay all
premiums for disability and life insurance policies for
Employee at levels commensurate with Employee's position and
compensation under this Agreement, naming persons designated
by Employee as beneficiaries. Employee will be eligible for
all benefits offered to other key employees of HIGH SPEED with
similar responsibilities as well as benefits offered to full
Board members and Officers.
(f) VACATION ACCRUAL. Employee shall be eligible to four weeks of
vacation annually.
(g) QUALIFIED STOCK OPTION PLAN. Employee shall receive options to
purchase 150,000 shares of HIGH SPEED stock (the "Option
Stock") vesting in equal annual installments over three (3)
years upon the terms and conditions set forth in HIGH SPEED's
Qualified Stock Plan on the same terms made available to all
officers, key employees and executives of HIGH SPEED. Except
in the event of the termination of the Employee's employment
with HIGH SPEED pursuant to Section 5(b), and 5(d), the Option
Stock shall fully vest.
4. EXTENSION OF EMPLOYMENT PERIOD. Except as otherwise provided in Article
5 of this Agreement, after the expiration of the Employment Period,
this Agreement shall be extended annually on a year-to-year basis
unless HIGH SPEED or Employee give written notice of its or his
intention to modify or terminate the Agreement. Such notice shall be
delivered to the other party at least sixty (60) days prior to the
expiration of the Employment Period or any extension period, as
applicable.
5. Termination.
(a) TERMINATION BY HIGH SPEED OTHER THAN FOR CAUSE. HIGH SPEED
shall be entitled to terminate Employee's employment at any
time. If Employee is terminated, HIGH SPEED shall pay Employee
his Salary and all benefits provided herein to Employee for
the remainder of the Employment Period.
(b) TERMINATION BY EMPLOYEE OTHER THAN FOR CAUSE. After the
expiration of eighteen (18) months from the effective date of
this Agreement, Employee may terminate his employment with
HIGH SPEED at any time without cause upon not less than thirty
(30) days written notice to HIGH SPEED. HIGH SPEED shall pay
Employee his Salary and all accrued benefits provided herein
through the date of termination.
(c) UPON DEATH OR DISABILITY OF EMPLOYEE. If Employee dies during
the term of the
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Agreement, his employment with HIGH SPEED shall terminate. If
Employee, by virtue of ill health or other disability, is
unable to perform substantially and continuously the duties
assigned him on a full-time basis for an aggregate of 180 days
within any period of twelve (12) consecutive months, HIGH
SPEED may, at its sole option, terminate Employee's employment
with HIGH SPEED. HIGH SPEED shall pay Employee, or the legal
representative of Employee's estate, as the case may be, his
Salary and all accrued benefits provided herein through the
date of termination, as well as all benefits provided in
Section 3(d) hereof.
(d) BY HIGH SPEED FOR CAUSE. If HIGH SPEED determines that
Employee has knowingly committed a felony or crime involving
dishonesty, breached this Agreement or committed any act of
fraud or dishonesty or has committed or is committing any
willful or negligent acts of malfeasance or nonfeasance which,
at the time(s) thereof would tend to have an adverse effect on
HIGH SPEED, whether financially or intellectually, HIGH SPEED
may, at its sole option, terminate this Agreement immediately
upon written notice. Employee shall not be discharged because
of actions taken by him prior to the date of the Agreement
unless such actions have a material adverse effect on the
business of HIGH SPEED. HIGH SPEED shall pay Employee his
Salary and all accrued benefits provided herein through the
date of termination.
(e) BY EMPLOYEE FOR CAUSE. Upon the occurrence of any of the
following: (i) the filing of a petition by or against any HIGH
SPEED under any provisions of the United States Bankruptcy
Code, the appointment of a receiver, trustee, custodian or
liquidator of or for any part of the assets or property of
HIGH SPEED; (ii) the default by HIGH SPEED of its obligations
under this Agreement, the Share Acquisition Agreement, or any
other contract or agreement between HIGH SPEED and Employee,
which default has a material adverse effect on the Employee;
(iii) any warranty or representation made by HIGH SPEED this
Agreement, the Share Acquisition Agreement, or any other
contract or agreement between HIGH SPEED and Employee, proves
false when it was made; (iv) any sale or transfer of all or
substantially all of the assets of HIGH SPEED, other than in
the ordinary course of business; (v) the delisting, after the
expiration of twelve (12) months from the date hereof, of the
stock of HIGH SPEED from the OTC Bulletin Board, or any
recognized Stock Exchange; (vi) a substantial and material
change of Employee's position, duties and/or responsibilities
with HIGH SPEED; and/or (vi) a substantial and material
change, in the business of HIGH SPEED, to include, the loss of
its license to use or market the technology licensed from
Summus, Ltd, and the use or application of the technology,
products or services of HIGH SPEED for any lewd, indecent,
immoral, illegal or unethical application or purpose, Employee
may, at his
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sole option, terminate his employment with HIGH SPEED
immediately upon written notice. HIGH SPEED shall pay Employee
his Salary and all accrued benefits provided herein for the
remainder of the Employment Period.
(f) SALE OF COMPANY. If at any time HIGH SPEED shall sell its
business, stock, assets, or a substantial part thereof to any
person, firm or company (a "Purchasing Entity") and Employee
is offered employment with such Purchasing Entity and such
offer is accepted by Employee, then this Agreement shall
automatically terminate with no further obligation to either
party.
6. COVENANTS BY EMPLOYEE.
(a) OWNERSHIP OF INVENTIONS. Employee agrees that any and all
ideas, inventions, creative works, designs, improvements, and
techniques relating to the business of HIGH SPEED, conceived
by Employee during the term of his employment with HIGH SPEED,
solely or jointly with others, together with all trademark,
patent and copyright rights therein (including rights under
international conventions), shall be the sole property of HIGH
SPEED. Employee covenants and agrees to hold same in trust and
confidence in accordance with all of the terms and provisions
hereof. Notwithstanding any other term or provision to the
contrary contained in this Agreement, after termination of his
employment, Employee shall be entitled to use non-confidential
ideas, inventions, creative works, designs, improvements, and
techniques developed by him during his employment with HIGH
SPEED as part of his resume and portfolio, to display his
experience, skills and ability to prospective customers,
clients or employers, or for educational purposes in lectures
and courses taught or given by him.
(b) FULL DISCLOSURE TO HIGH SPEED. Employee will communicate to
HIGH SPEED promptly and fully all inventions, improvements or
discoveries (whether or not patentable), any copyrightable
creations, any trade secrets, any intellectual property of
whatsoever description, and any proprietary and/or other
confidential information (hereinafter referred to,
collectively, as "Inventions") which Employee may conceive or
first reduce to practice, whether solely or jointly with
others, during the term of the Agreement, provided such
inventions relate in any manner to HIGH SPEED's business.
(c) COVENANT AGAINST COMPETITION AND SOLICITATION. Except as
provided in Section 6(e), during the Noncompetition Period
(defined below), Employee shall not, directly or indirectly,
in any capacity:
(i) invest (other than investments in publicly-owned
companies which constitute
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not more than 1% of the voting securities of any such
company) or engage in any business that manufactures,
sells, markets or designs products or services using
the same or similar technology as the products or
services manufactured, sold, marked or designed by
HIGH SPEED during the term of his employment with
HIGH SPEED; or
(ii) accept employment with or render services to a
competitor of HIGH SPEED as a director, officer,
agent, employee or consultant with any business that
manufactures, sells, markets or designs products or
services using the same or similar technology as the
products or services manufactured, sold, marketed or
designed by HIGH SPEED during the term of his
employment with HIGH SPEED; or
(iii) hire or induce to leave the employment of HIGH SPEED
or May any employee of HIGH SPEED or May.
(d) The noncompetition provisions set forth in this subsection
shall begin on the date hereof, and shall continue for a
period of six months following the termination of Employee's
employment hereunder (the "Noncompetition Period").
(e) Notwithstanding any other term or provision to the contrary
contained in this Agreement, upon termination, Employee may
continue his career as practiced with May prior to employment
with HIGH SPEED, anywhere in the world. Employee may solicit
business relationships with prior clients of May and suppliers
without any encumbrances of the Noncompetition Period, but he
may not manufacture, sell, market or design products or
services using the technology licensed by HIGH SPEED from
Summus, Ltd.
(f) The agreements set forth in this Section each constitute
separate agreements independently supported by good and
adequate consideration and shall be severable from the other
provisions of this Agreement. The existence of any claim or
cause of action of Employee, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the
enforcement by HIGH SPEED of the covenants and agreements of
Employee contained in this Section.
(g) HIGH SPEED and Employee acknowledge and recognize that the
enforcement of the provisions of this Section is necessary to
ensure the preservation and continuity of the business and
good will of HIGH SPEED. Employee further agrees that the
covenants contained in this Section 6 are made and entered
into as substantial consideration and inducement for the
agreement by HSNS to enter into the Share Acquisition
Agreement with him, and that due to the nature of HIGH SPEED's
business, the
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noncompetition restrictions set forth in this Section are
reasonable as to time and geographic area.
7. REMEDIES. Except as specifically set forth herein, the rights and
remedies provided for in this Agreement are cumulative and not
exclusive. Use of one remedy shall not be deemed an election of
remedies. The failure to, or delay in, exercise of any remedy shall not
constitute a waiver of the right to exercise any such remedy.
8. OTHER PROVISIONS.
(a) SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, or
unenforceable, that provision shall not affect any other
provision of this Agreement, which shall remain in full force
and effect to the extent possible.
(b) NOTICES. Any notices, requests, demands or other
communications required and permitted to be sent under this
Agreement shall be (i) in writing, (ii) delivered personally
or delivered by a facsimile transfer device, receipt
confirmed, sent by overnight courier or mailed by registered
or certified mail, return receipt requested, (iii) deemed to
have been received on the day of personal delivery, on the day
of confirmed receipt of facsimile transmission, one (1)
business day after deposit with an overnight courier or three
(3) business days after deposit in the mail, and (iv)
delivered to the addresses or facsimile numbers set forth
below or to such other address as any party may from time to
time direct by a notice given in compliance with this Section:
if to HIGH SPEED: Xxxxxxx May
Xxxxxxx May & Co., Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
With a copy to: Xxxx Xxxxx, Esq.
Short, How, Xxxxx & Xxxxx, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000, XX X-0
Xxxxxx, Xxxxx 00000
if to Employee: High Speed Net Solutions, Inc.
Attention: Xxxxxx Xxxxxx
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
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With a copy to: Xxxxx X. Xxxx, Esq.
Xxxxxx Xxxx Xxxxxx Xxxx & Xxxxxxxxxx
P.L.L.C.
000 Xxxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
(c) ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding and agreement of the parties relating to the
employment of Employee, and supersedes any and all other
understandings, negotiations or agreements between the parties
relating to the employment of Employee.
(d) WAIVER. The terms of this Agreement may only be waived by the
party granting such waiver in writing. Any waiver or failure
to insist upon strict compliance with any obligation,
covenant, agreement or condition of this Agreement shall not
operate as a waiver of any other provision.
(e) AMENDMENT AND MODIFICATION. This Agreement may be amended or
modified only by written agreement executed by all parties.
(f) GOVERNING LAW. The Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, the Employee has executed this Agreement, and HIGH
SPEED its duly authorized representative to execute this Agreement, as of the
date first above written.
HIGH SPEED NET SOLUTIONS, INC.,
a Florida corporation
By: /s/ Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Acting President and CEO
/s/ Xxxxxxx X. May
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Xxxxxxx X. May
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