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EXHIBIT 10.06
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is entered into as of the 15th
day of October, 1998, by and among INTERNET CENTURY, INC., a Nevada corporation
(the "Company") and XXXXXXX X. XXXXXXXXX ("Xxxxxxxxx").
WHEREAS, the Company desires to employ Xxxxxxxxx as provided herein;
and,
WHEREAS, Xxxxxxxxx desires to accept such employment,
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT. The Company hereby employs Xxxxxxxxx and Xxxxxxxxx
hereby accepts employment with the Company as its Chief Financial Officer and
Chief Operating Officer upon the terms and conditions hereinafter set forth.
Xxxxxxxxx'x employment shall not be deemed an "at will" employment.
2. DUTIES. Xxxxxxxxx will serve the Company as its Chief Financial
Officer and its Chief Operating Officer and will faithfully and diligently
perform the services and functions relating to such office and position or
otherwise reasonably incident to such office and position, provided that all
such services and functions will be reasonable and within Xxxxxxxxx'x areas of
expertise. Xxxxxxxxx'x specific duties shall include those related to (i) all
phases of the Company's finances, (ii) coordination of the Company's daily
operations and strategic planning and (iii) such other duties as the Company may
reasonably direct. Xxxxxxxxx will, during the term of this Agreement (or any
extension thereof), devote his time, attention and skills and best efforts as a
full time employee to the promotion of the business of the Company.
3. TERM. This Agreement and Xxxxxxxxx'x employment shall commence on
the 15th day of October, 1998, (the "Effective Date") and shall continue for a
term of seven (7) years ("Initial Term") unless terminated earlier in accordance
with this Agreement. The term of this Agreement may be extended by agreement of
the Company and Xxxxxxxxx.
4. COMPENSATION. As compensation for the services rendered to the
Company under this Agreement commencing on the effective date hereof, Xxxxxxxxx
will be paid a base salary of Eighty Thousand dollars ($80,000) per year payable
in accordance with the then current payroll policies of the Company or as
otherwise agreed to by the parties (the "Salary"). At any time and from time to
time, the Salary may be increased if so determined by the board of directors of
the Company after a review of Xxxxxxxxx'x performance of this duties hereunder.
5. TERMINATION. This Agreement will terminate upon the occurrence of
any of the following events:
a. The death of Xxxxxxxxx;
b. The "Total Disability" (as hereinafter defined) of Xxxxxxxxx;
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c. Written notice to Xxxxxxxxx from the Company of termination
for "Cause" (as hereinafter defined);
d. The voluntary termination of this Agreement by Xxxxxxxxx upon
thirty (30) days prior written notice;
e. The later of seven (7) years from the Effective Date of this
Agreement or the date to which this Agreement is extended in
accordance with Section 3 above; or
For purposes of Section 5(b), the term "Total Disability" means
physical or mental disability, or both, determined to be (or reasonably expected
to be, based upon then available medical information) of not less than twelve
(12) months duration or more where Xxxxxxxxx is unable to reasonably perform the
duties he was performing for the Company immediately prior to such disability.
The determination shall rest upon the opinion of the physician regularly
attending Xxxxxxxxx. If the Company disagrees with said physician's opinion, the
Company may engage at their own expense a physician to examine the Xxxxxxxxx,
and Xxxxxxxxx hereby consents to such examination and to waive, if applicable
any privilege between the physician and Xxxxxxxxx that may arise as a result of
said examination. If after conferring, the two physicians cannot concur on a
final opinion, they shall choose a third consulting physician whose opinion
shall control. The expense of the third consulting physician shall be borne
equally by the Xxxxxxxxx and the Company.
For purposes of Section 5(c), "Cause" means (i) Xxxxxxxxx has failed to
substantially perform his duties as reasonably determined by the chief executive
officer of the Company or the Board of Directors of the Company, (ii) Xxxxxxxxx
engages in poor performance that is not cured within thirty (30) days after
counseling by the Company, (iii) Xxxxxxxxx has failed to comply with the
reasonable directives and policies of the Board of Directors of the Company or
of the chief executive officer of the Company, or (iv) Xxxxxxxxx breaches his
fiduciary duty to the Company or commits any dishonest, unethical, fraudulent,
or felonious act in respect to Xxxxxxxxx'x duties to the Company.
6. STOCK OPTIONS. Contingent upon Xxxxxxxxx being employed by the
Company, Xxxxxxxxx shall be granted options to purchase up to 25,000 shares of
the Company's common stock (post 284 for 1 forward stock split) at $1.50 per
share pursuant to the Company's 1998 Stock Option Plan to be vested and
exercisable in accordance with the terms of the 1998 Stock Option Plan, except
that the options shall vest immediately on the Effective Date and the exercise
of such options shall not be contingent upon Xxxxxxxxx being employed by the
Company. Further, the Company agrees to register the options and the underlying
shares on Form S-8 within 90 days of the effective date of any initial public
offering of the Company's securities.
7. TERMINATION PAYMENT. It is agreed that (i) if Xxxxxxxxx'x employment
by the Company is terminated without "Cause", (ii) if his duties and
responsibilities are materially changed by the Company and Xxxxxxxxx voluntarily
terminates his employment due to such change in duties or responsibilities, or
(iii) if Xxxxxxxxx'x employment terminates due to Total Disability, the Company
shall pay Xxxxxxxxx xxxxxxxxx of $200,000 immediately upon the occurrence of
either 7(i), (ii) or (iii) above, together with the amount due for the remaining
portion of the term of this Agreement. If Xxxxxxxxx'x employment terminates due
to death, the Company will be obligated to only pay to Xxxxxxxxx'x estate any
amounts accrued under this Agreement together with $200,000. It is agreed that
the Company may purchase a disability income insurance policy and/or a life
insurance policy to pay all or part of the amounts due upon
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termination of Xxxxxxxxx'x employment due to either Total Disability or death,
respectively, and that Xxxxxxxxx agrees to cooperate in the obtaining of such
insurance.
8. LOAN. The Company will loan to Xxxxxxxxx up to One Hundred Fifty
Thousand dollars ($150,000) with Twenty Five Thousand Dollars ($25,000) to be
loaned and disbursed on the Effective Date and the remaining One Hundred Twenty
Five Thousand ($125,000) to be loaned and disbursed on the closing of any
portion of the Company's private placement offering of its securities to raise
between $1,750,000 and $3,000,000. All amounts shall be evidenced by a
promissory note with interest each year of the term of the note to be variable
and at the prime rate charged by Norwest Bank or its successor at the close of
business on the Effective Date and on the anniversary date of each year
thereafter and with all principal and accrued but unpaid interest due seven (7)
years from the loan (the "Loan"). The Company agrees that if Xxxxxxxxx is
employed by the Company two years from the Effective Date or his employment has
been previously terminated by the company without "Cause" as that term is
defined in Section 5 above, then all loan amounts including principal and
accrued but unpaid interest shall be forgiven by the Company and the Note
evidencing such loan shall be canceled.
9. BENEFITS. Xxxxxxxxx shall be entitled to receive any benefits,
including health insurance, life insurance, automobile allowance, vacation time,
etc., which are offered to other Company executives.
10. EXPENSES. Xxxxxxxxx is authorized to incur reasonable expenses for
promoting the business of the Company, including expenses for entertainment,
travel and similar items. The Company shall reimburse Xxxxxxxxx for all such
expenses on the presentation by Xxxxxxxxx of itemized accounts of such
expenditures in accordance with guidelines set forth by the Internal Revenue
Service.
11. NON-COMPETITION AND CONFIDENTIALITY.
x. Xxxxxxxxx agrees that during the term of this Agreement,
Xxxxxxxxx will not (1) enter into any agreement with or
directly or indirectly solicit or attempt to solicit
Xxxxxxxxx or other representatives of the Company (the
"Company") for the purpose of causing them to leave the
Company to take employment with any other business entity,
or (2) compete, directly or indirectly, with the Company in
any way and that Xxxxxxxxx will not act as an officer,
director, employee, consultant, shareholder, lender or agent
of any entity engaged in any business of the same nature as,
or in competition with, the business in which the Company is
now engaged except for the ownership of less than five
percent (5%) of the outstanding capital stock of a publicly
traded Internet service provider company.
b. For purposes of Section 11a, restrictions regarding
competition by Xxxxxxxxx shall only apply to competing
businesses or entities that operate in the continental
United States.
c. In the event of the breach of the covenants contained in
this Section 11, it is understood that damages will be
difficult to ascertain and the Company may petition a court
of law or equity for injunctive relief in addition to any
other relief which the Company may have under the law, this
Agreement or any other agreement executed in connection
herewith. In connection with the bringing of any legal or
equitable action for the enforcement of this Agreement, the
Company shall be entitled to
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recover, whether the Company seeks equitable relief, and
regardless of what relief is afforded, such reasonable
attorneys' fees and expenses as the Company may incur in
prosecution of the Company's claim for breach hereof.
d. It is hereby agreed that the provisions of this Section 11
are separate and independent from the other provisions of
this Agreement, that these provisions are specifically
enforceable by the Company notwithstanding any claim by
Xxxxxxxxx that the Company has violated or breached this
Agreement or any claim that Xxxxxxxxx is entitled to any
offset or compensation.
e. To induce the Company to enter into this Agreement,
Xxxxxxxxx represents and warrants to the Company that
Section 11 of this Agreement is enforceable by the Company
in accordance with its terms.
12. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
13. NOTICES. Any notices, consents, demands, request, approvals and
other communications to be given under this Agreement by either party to the
other will be deemed to have been duly given if given in writing and personally
delivered, faxed or if sent by mail, registered or certified, postage prepaid
with return receipt requested, as follows:
If to the Company: Internet Century, Inc.
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
If to Xxxxxxxxx: Xxxxxxx X. Xxxxxxxxx
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Notices delivered personally will be deemed communicated as of actual
receipt, notices by fax shall be deemed delivered when such notices are faxed to
recipient's fax number and notices by mail shall be deemed delivered when
mailed.
14. ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understanding, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
15. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
this Agreement, such provision will be fully severable and this Agreement will
be construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions hereof will remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there will be added
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automatically, as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
16. GOVERNING LAW. To the extent permitted by applicable law, this
Agreement and the rights and obligations of the parties will be governed by and
construed and enforced exclusively in accordance with the substantive laws (but
not the rules governing conflicts of laws) of the State of Arizona and the State
of Arizona shall have exclusive jurisdiction regarding any legal actions
relating to this Agreement.
17. CAPTIONS. The captions in this Agreement are for convenience of
reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
18. GENDER AND NUMBER. When the context requires, the gender of all
words used herein will include the masculine, feminine and neuter, and the
number of all words will include the singular and plural.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE COMPANY:
INTERNET CENTURY, INC.,
a Nevada corporation
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Xxxxxxx Xxxxxxxx, Chief Executive Officer
XXXXXXXXX:
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxxxx
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AMENDMENT OF EMPLOYMENT AGREEMENT
This Amendment of Employment Agreement is entered into as of the 21st
day Of January, 1999, by and between xxxxxxx.xxx, inc., a Nevada corporation
(the "Employer"), and Xxxxxxx X. Xxxxxxxxx (the "Employee").
Explanatory Statements
A. Employer and Employee entered into an Employment Agreement dated as
of October 15, 1998 (the "Employment Agreement") whereby the Employer employed
the Employee.
B. The Employer and Employee desire to amend and modify certain terms
and conditions of the Employment Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Employment Agreement is hereby amended and
modified as follows:
1. Section numbered 1, "Employment" is amended to read as
follows:
"The Company hereby employs Xxxxxxxxx and Xxxxxxxxx hereby
accepts employment with the Company as its Operations
Coordinator upon the terms and conditions hereinafter set
forth. Xxxxxxxxx'x employment shall not be deemed an "at will"
employment".
2. Section numbered 2, "Duties" is hereby amended to read as
follows:
"Xxxxxxxxx will serve the Company as its Operation's
Coordinator and will faithfully and diligently perform the
services and functions relating to such office and position or
otherwise reasonably incident to such office and position,
provided that all such services and functions will be
reasonable and within Xxxxxxxxx'x areas of expertise.
Xxxxxxxxx'x specific duties shall include those related to (i)
coordinating all phases of the Company's finances, (ii)
coordination of the Company's daily operations and strategic
planning and (iii) such other duties as the Company may
reasonably direct. Xxxxxxxxx will, during the term of this
Agreement (or any extension thereof), devote his time,
attention and skills and best efforts as a full time employee
to the promotion of the business of the Company".
3. Section numbered 3, "Term" is hereby amended by the addition
of the following at the end of such section:
"This Agreement and Xxxxxxxxx'x employment shall commence on
the 15th day of October, 1998, (the "Effective Date") and
shall continue for a term of seven (7) years ("Initial Term")
unless terminated earlier in accordance with this Agreement.
The term of this Agreement may be extended by agreement of the
Company and Xxxxxxxxx. Notwithstanding
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the foregoing, unless otherwise terminated pursuant to this
Agreement, for a period of ten (10) years, the term of this
Agreement shall automatically renew each year for one (1)
additional year on the yearly anniversary date of the
Effective Date".
4. The first sentence of Section numbered 7, "Termination
Payment" is hereby amended to read as follows:
"It is agreed that (i) if Xxxxxxxxx'x employment by the
Company is terminated without "Cause", (ii) if his duties and
responsibilities are materially changed by the Company and
Xxxxxxxxx voluntarily terminates his employment due to such
change in duties or responsibilities, or (iii) if Xxxxxxxxx'x
employment terminates due to Total Disability, the Company
shall pay Xxxxxxxxx severance of $200,000 immediately upon the
occurrence of either 7(i), (ii) or (iii) above, together with
one hundred fifty percent (150%) of the amount due for the
remaining portion of the term of this Agreement".
5. Section numbered 13, "Notices" is amended by changing the
notification address to read as follows:
"If to the Company: xxxxxxx.xxx, inc.
000 X. Xxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
If to Xxxxxxxxx: Xxxxxxx X. Xxxxxxxxx
000 X. Xxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000"
6. Any and all other terms and conditions of the Employment
Agreement not amended or modified herein shall remain the same and in full force
and effect.
Employer:
XXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Chief Executive Officer
Employee:
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
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AMENDMENT OF EMPLOYMENT AGREEMENT
This Amendment of Employment Agreement is entered into as of the 21st day
of, Jan., 1999 by and between XXXXXXX.XXX,INC., a Nevada corporation (the
"Employer"), and XXXXXXX X. XXXXXXXXX (the "Employee").
Explanatory Statements
A. Employer and Employee entered into an Employment Agreement dated as of
October 15, 1998 (the "Employment Agreement") whereby the Employer employed the
Employee.
B. The Employer and Employee desire to amend and modify certain terms and
conditions of the Employment Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Employment Agreement is hereby amended and modified
as follows:
1. Section numbered 1, "Employment" is amended to read as follows:
"The Company hereby employs Xxxxxxxxx and Xxxxxxxxx hereby accepts
employment with the Company as its Operations Coordinator upon the
terms and conditions hereinafter set forth. Xxxxxxxxx'x employment
shall not be deemed an "at will" employment. It is acknowledged, and
agreed to that Xxxxxxxxx resides in California and that he discharges
the majority of his responsibilities as set forth in (2) below of this
amendment from California. Further there are no requirements that
Xxxxxxxxx be on corporate headquarter premises at any time to discharge
any or all of his duties.".
2. Section numbered 2, "Duties" is hereby amended to read as follows:
"Xxxxxxxxx will serve the Company as its Operations Coordinator and
will faithfully and diligently perform the services and functions
relating to such office and position or otherwise reasonably incident
to such office and position, provided that all such services and
functions will be reasonable and within Xxxxxxxxx'x areas of expertise.
Xxxxxxxxx'x specific duties shall include those related to;
(i) troubleshooting as a beta tester, the Company's website and
links,
(ii) assisting management in the coordination of the Company's
operations and strategic planning, and
(iii) such other duties as the Company may reasonably direct. Xxxxxxxxx
will, during the term of this Agreement (or any extension
thereof), devote his time, attention and skills and best efforts
as a full time employee to the promotion of the business of the
Company.".
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4. The first sentence of Section numbered 7, "Termination Payment" is
hereby amended to read as follows:
"It is agreed that
(i) if Xxxxxxxxx'x employment by the Company is terminated without
"Cause",
(ii) if his duties and responsibilities are materially changed by
the Company and Xxxxxxxxx voluntarily terminates his
employment due to such change in duties or responsibilities,
(iii) if Xxxxxxxxx'x employment terminates due to Total Disability,
(iv) the Company shall forgive Xx. Xxxxxxxxx'x $150,000 forgivable
loan in full.
5. Section numbered 13, "Notices" is amended by changing the notification
address to read as follows:
"If to the Company: xxxxxxx.xxx, inc.
One Arizona Center
000 X. Xxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
If to Xxxxxxxxx: Xxxxxxx X. Xxxxxxxxx
6. Any and all other terms and conditions of the Employment Agreement not
amended or modified herein shall remain the same and in full force and effect.
Employer: Employee:
Xxxxxxx.xxx, inc.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxxx
President and CEO
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