EMPLOYMENT AGREEMENT WITH W. EARL SOMERVILLE DATED OCTOBER 12, 2007
EXHIBIT
10.44
EMPLOYMENT
AGREEMENT WITH W. XXXX XXXXXXXXXX
DATED
OCTOBER 12, 2007
This
Employment Agreement (this “Agreement”) is entered into as of
October 12, 2007 (the “Effective Date”), by and between
Worldwide Strategies Incorporated, a Nevada corporation (“WWSI”
or “Company”), and W. Xxxx Xxxxxxxxxx
(“Employee”).
The
parties agree as follows:
1. Employment. Company
hereby employs Employee for the limited term set forth below, and Employee
hereby accepts such employment, upon the terms and conditions set forth
herein.
2. Duties.
2.1 Position. Employee
is employed in the position of Chief Financial Officer and Secretary of WWSI,
and shall have the duties and responsibilities assigned by the Board of
Directors of WWSI (the “Board of Directors”) both upon initial
hire and as may be reasonably assigned from time to time. Employee
shall perform faithfully and diligently all duties assigned to
Employee. Employee acknowledges that Company, under the direction of
the Board of Directors, has the right to modify Employee’s position and duties
at any time in its sole and absolute discretion. Employee shall
report to and be supervised by the Board of Directors.
2.2 Best
Efforts/Full-time. Employee will expend Employee’s best efforts
on behalf of Company, and will abide by all policies and decisions made by
Company and the Board of Directors, as well as all applicable federal, state
and
local laws, regulations or ordinances. Employee will act in the best
interest of Company at all times. Employee shall devote Employee’s
full business time and efforts to the performance of Employee’s assigned duties
for Company, unless Employee notifies the Board of Directors in advance of
Employee’s intent to engage in other paid work and describes in sufficient
detail the nature of such work, and the Board of Directors grants Employee
express written consent to do such work.
2.3 Work
Location. Employee’s principal place of work shall be located at
the principal offices of Company or such other location as the Board of
Directors may authorize from time to time.
3. Term.
3.1 Initial
Term. The employment relationship pursuant to this Agreement
shall be for an initial term commencing on the Effective Date set forth above
and continuing for a period of one (1) year following such date
(“Initial Term”), unless sooner terminated in accordance with
section 7 below. Employee agrees and acknowledges that the Initial
Term of the Agreement is a material term to Company, and waives any rights
not
expressly provided for in this Agreement should Company exercise its right
not
to renew this Agreement in accordance with subsection 3.2 at the conclusion
of
the Initial Term.
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3.2 Renewal. On
completion of the Initial Term specified in subsection 3.1 above, this Agreement
will automatically renew for subsequent one (1)-year terms unless either party
provides at least thirty (30) days’ advance written notice to the other that it
does not wish to renew the Agreement for a subsequent one (1)-year
period. In the event either party gives notice of nonrenewal pursuant
to this subsection 3.2, this Agreement will expire at the end of that
term.
4. Compensation.
4.1 Base
Salary. As compensation for Employee’s performance of Employee’s
duties hereunder, Company shall pay Employee a Base Salary of $12,500 per month,
payable in accordance with the normal payroll practices of Company, less
required deductions for state and federal withholding tax, social security
and
all other employment taxes and payroll deductions.
4.2 Annual
Bonus. Employee will be granted an annual bonus equal to 50% of
Base Salary, so long as individual and Company objectives, as established by
the
Board of Directors in its sole discretion, are achieved, such bonus to be paid
in cash or shares of common stock of WWSI at the date of grant market price,
in
the sole discretion of WWSI.
4.3 Other
Incentive Compensation. From time to time, in the sole and
absolute discretion of the Board of Directors, Employee may receive other
incentive bonuses based on the achievement of written goals established by
the
Board of Directors and communicated to Employee, paid in cash, stock options,
or
common stock of WWSI.
4.4 Automobile
Allowance. Employee will receive a monthly allowance of $400 per
month for automobile expenses, payable without deduction with the normal payroll
practices of Company.
4.5 Retirement
Contribution. In lieu of any other retirement benefit, Company
will make a matching contribution of up to 3% of Base Salary deposited by
Employee to a specifically designated savings account established by
Employee. Company’s contribution will be made without deduction for
state and federal withholding tax, social security or any other employment
taxes
and payroll deductions and payment of such taxes shall be the sole
responsibility of Employee.
4.6 Performance
and Salary Review. Employee’s supervisor, or in the absence of a
supervisor, the Board of Directors, will periodically review Employee’s
performance on no less than an annual basis and will make adjustments to salary
or other compensation in their sole discretion.
5. Customary
Employee Benefits. Employee will be eligible for all customary
and usual fringe benefits generally available to other full-time employees
of
Company. Company reserves the right to change or eliminate the fringe
benefits on a prospective basis, at any time, effective upon notice to
Employee.
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6. Business
Expenses. Employee acknowledges that he owes Company a fiduciary
obligation to minimize, to the extent practicable, expenses incurred in the
course and scope of performing his duties for Company. Employee will
be reimbursed for all reasonable, out-of-pocket business expenses incurred
in
the performance of Employee’s duties on behalf of Company. To obtain
reimbursement, expenses must be submitted promptly with appropriate supporting
documentation in accordance with Company’s policies.
7. Termination
of Employee’s Employment.
7.1 Termination
for Cause by Company. The Board of Directors may terminate
Employee’s employment immediately at any time for Cause. In the event
Employee’s employment is terminated in accordance with this subsection 7.1,
Employee shall be entitled to receive only the Base Salary then in effect,
prorated to the date of termination. All other Company obligations to
Employee pursuant to this Agreement will become automatically terminated and
completely extinguished. If Employee is terminated for Cause pursuant
to this provision, the Company may ask him to leave the Company’s offices
immediately.
For
purposes of this Agreement, “Cause” is defined as:
(a) Employee’s
breach of fiduciary duty to the Company or its Board of Directors;
(b) Acts
or
omissions constituting negligence, recklessness or willful misconduct on the
part of Employee with respect to Employee’s obligations or otherwise relating to
the business of Company;
(c) Employee’s
material breach of this Agreement;
(d) Employee’s
conviction or entry of a plea of nolo contendere for fraud, misappropriation
or
embezzlement, or any felony or crime of moral turpitude;
(e) Employee’s
willful neglect of duties as determined in the sole and exclusive discretion
of
the Board of Directors;
(f) Employee’s
failure to perform the essential functions of Employee’s position, with or
without reasonable accommodation, due to a mental or physical disability;
or
(g) Employee’s
death.
7.2 Termination
Without Cause by Company. Company may terminate Employee’s
employment under this Agreement without Cause at any time by giving at least
thirty (30) days’ advance written notice to Employee. In the event of
a termination pursuant to this subsection 7.2, all other Company obligations
to
Employee will be automatically terminated and completely extinguished and
Employee will be entitled to receive a payment equal to two months of the Base
Salary in effect at the date of termination (“Severance
Payment”), provided that Employee:
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(a) Complies
with all surviving provisions of this Agreement as specified in subsection
15.8
below;
(b) Executes
a full general release, releasing all claims, known or unknown, that Employee
may have against Company arising out of or in any way related to Employee’s
employment or termination of employment with Company; and
(c) Agrees
to
act as a consultant for Company, without further compensation, for thirty (30)
days following the termination of the employment relationship, if requested
to
do so by Company. The Company may also direct Employee to cease all
work on behalf of Company immediately if it decides to terminate his employment
under this provision as long as it provides Employee with the described
benefits.
Should
Employee fail or refuse to provide the items required under this subsection
7.2,
the termination shall be deemed to be for Cause under subsection
7.1.
7.3 Employee
Resignation for Good Reason. Employee may voluntarily resign
Employee’s position with Company for Good Reason, at any time by giving at least
thirty (30) days’ advance written notice. In the event of Employee’s
resignation for Good Reason, Employee will be entitled to receive the Base
Salary then in effect, prorated to the date of resignation, and all accrued
paid-time-off, in accordance with Company’s customary employee benefit
policies. All other Company obligations to Employee pursuant to this
Agreement will become automatically terminated and completely
extinguished.
Employee
will be deemed to have resigned for “Good Reason” in the event of Company’s
material breach of this Agreement.
7.4 Employee
Resignation Without Good Reason. Employee may voluntarily resign
Employee’s position with Company without Good Reason, by giving at least thirty
(30) days’ advance written notice. In the event of Employee’s
resignation without Good Reason, Employee will be entitled to receive only
the
Base Salary for the thirty (30)-day notice period and no other
amount. All other Company obligations to Employee pursuant to this
Agreement will become automatically terminated and completely
extinguished.
7.5 Termination
of Employment Upon Nonrenewal. In the event either party decides
not to renew this Agreement after completion of the Initial Term in accordance
with subsection 3.2 above, this Agreement will expire, Employee’s employment
with Company will terminate and Employee will only be entitled to Employee’s
Base Salary paid through the last day of the current term.
8. No
Conflict of Interest. During the term of Employee’s employment
with Company and during any period Employee is receiving payments from Company
pursuant to this Agreement, Employee must not engage in any work, paid or
unpaid, that creates an actual conflict of interest with Company.
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9. Covenant
Not to Compete. Employee agrees not to, directly or indirectly
competing with Company in any way, or acting as an officer, director, employee,
consultant, stockholder, volunteer, lender, or agent of any business enterprise
of the same nature as, or which is in direct competition with, the business
in
which Company is now engaged or in which Company becomes engaged, as may be
determined by the Board of Directors in its sole discretion, during the term
of
Employee’s employment with Company and for two (2) years after the termination
of employment with Company. If the Board of Directors believes such
competition exists during the term of this Agreement, the Board of Directors
may
ask Employee to choose to discontinue the other work or resign employment with
Company. If the Board of Directors believes such competition exists
during any period in which Employee is receiving payments pursuant to this
Agreement, the Board of Directors may ask Employee to choose to discontinue
the
other work and forfeit any Severance Payment.
10. Nonsolicitation. Employee
understands and agrees that Company’s employees and customers and any
information regarding Company’s employees and/or customers is confidential and
constitutes its trade secrets under Colorado law. Employee agrees to
use his best efforts to protect against the intentional or inadvertent
disclosure of such trade secrets to Company’s competitors, customers or vendors,
or to the general public.
10.1 Nonsolicitation
of Customers or Prospects. Employee agrees that all customers of
Company shall remain customers of Company during the term and after the
termination of this Agreement, and that during the term of this Agreement and
for a period of two (2) years after the termination of this Agreement, Employee
will not, either directly or indirectly, separately or in association with
others, interfere with, impair, disrupt or damage Company’s relationship with
any of its customers or customer prospects by soliciting or encouraging others
to solicit any of them for the purpose of diverting or taking away business
from
Company.
10.2 Nonsolicitation
of Company’s Employees. Employee agrees that during the term and
after the termination of this Agreement, Employee will not, either directly
or
indirectly, separately or in association with others, interfere with, impair,
disrupt or damage Company’s business by soliciting, encouraging or recruiting
any of Company’s employees or causing others to solicit or encourage any of
Company’s employees to discontinue their employment with Company.
11. Assignment
of Intellectual Property. Employee hereby transfers and assigns
to Company all trade secrets, inventions, trademarks, service marks, logos,
corporate names, domain names, ideas, processes, customer lists, business plans,
copy rights, other works of authorship, know-how, improvements, discoveries,
developments, refinements, designs and techniques (collectively referred to
as
“Intellectual Property”), which Employee made, conceived,
developed or reduced to practice or caused be made, conceived, developed or
reduced to practice prior to the Effective Date or which Employee makes,
conceives, develops or reduces to practice or causes to be made, conceived,
developed or reduced to practice while employed by Company, that Employee
considers to be personal property of the property of third parties, and which
is
directly related to the business to be conducted by Company.
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11.1 Further
Documentation. Employee agrees that, without charge to Company,
Employee will promptly execute and deliver further documents and perform all
lawful acts necessary to transfer all rights, title and interest in the
Intellectual Property to Company. The obligation to provide documents
and perform lawful acts will not expire with the termination of this
Agreement.
12. Confidentiality. Company
possess and will continue to possess information which has been created,
discovered, developed or otherwise come into the possession of Company, which
information has commercial value to Company, including but not limited to the
Intellectual Property, information that Company is obligated to keep
confidential, and information Employee has reason or should reasonably know
Company would like to treat as confidential for any purpose
(“Confidential Information”). Unless previously
authorized in writing by the Board of Directors, Employee will not, at any
time,
disclose to others, use, or allow anyone else to use any Confidential
Information except as may be necessary in the performance of Employee’s duties,
unless and only to the extent that (i) such confidential information has become
ascertainable or obtained from public or published sources; or (ii) Employee
is
required by law to disclose such Confidential Information, in which case,
Employee will give timely notice, if possible, of the request for disclosure
so
that Company may seek a protective order as to the Confidential
Information.
12.1 Return
of Documentation. Upon termination of employment, Employee shall
return all property and records, of any type, of Company held anywhere in
Employee’s possession.
13. Injunctive
Relief. Employee acknowledges that Employee’s breach of the
covenants contained in sections 8, 9, 10, 11, and 12 (collectively
“Covenants”) would cause irreparable injury to Company and
agrees that in the event of any such breach, Company shall be entitled to seek
temporary, preliminary and permanent injunctive relief without the necessity
of
proving actual damages or posting any bond or other security.
14. Agreement
to Arbitrate. To the fullest extent permitted by law, Employee
and Company agree to arbitrate any controversy, claim or dispute between them
arising out of or in any way related to this Agreement, the employment
relationship between Company and Employee and any disputes upon termination
of
employment, including but not limited to breach of contract, tort,
discrimination, harassment, wrongful termination, demotion, discipline, failure
to accommodate, family and medical leave, compensation or benefits claims,
constitutional claims; and any claims for violation of any local, state or
federal law, statute, regulation or ordinance or common law. Claims
for workers’ compensation, unemployment insurance benefits, and Company’s right
to obtain injunctive or equitable relief pursuant to the Covenants above are
excluded. For the purpose of this agreement to arbitrate, references
to “Company” include all parent, subsidiary or related entities and their
employees, supervisors, officers, directors, agents, pension or benefit plans,
pension or benefit plan sponsors, fiduciaries, administrators, affiliates and
all successors and assigns of any of them, and this agreement shall apply to
them to the extent Employee’s claims arise out of or relate to their actions on
behalf of Company.
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14.1 Consideration. The
mutual promise by Company and Employee to arbitrate any and all disputes between
them (except for those referenced above) rather than litigate them before the
courts or other bodies, provides the consideration for this agreement to
arbitrate.
14.2 Initiation
of Arbitration. Either party may exercise the right to arbitrate
by providing the other party with written notice of any and all claims forming
the basis of such right in sufficient detail to inform the other party of the
substance of such claims. In no event shall the request for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claims would be barred by the applicable statute
of
limitations.
14.3 Arbitration
Procedure. The arbitration will be conducted in Denver,
Colorado by a panel of three (3) arbitrators and in accordance
with the
then current rules for resolution of employment disputes of the American
Arbitration Association (AAA) (available on-line at
xxx.xxx.xxx). Each party shall choose an arbitrator and the two
arbitrators shall select a third arbitrator. The parties are entitled
to representation by an attorney or other representative of their
choosing. The arbitrators shall have the power to enter any award
that could be entered by a judge of the trial court of the State of Colorado,
and only such power, and shall follow the law. The parties agree to
abide by and perform any award rendered by the arbitrators. The
arbitrators shall issue the award in writing and therein state the essential
findings and conclusions on which the award is based. Judgment on the
award may be entered in any court having jurisdiction thereof.
14.4 Costs
of Arbitration. The parties shall share equally the costs of the
arbitration filing and hearing fees and the cost of the
arbitration.
15. General
Provisions.
15.1 Successors
and Assigns. The rights and obligations of Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of Company. Employee shall not be entitled to assign any
of Employee’s rights or obligations under this Agreement.
15.2 Waiver. Either
party’s failure to enforce any provision of this Agreement shall not in any way
be construed as a waiver of any such provision, or prevent that party thereafter
from enforcing each and every other provision of this Agreement.
15.3 Attorneys’
Fees. Each side will bear its own attorneys’ fees in any dispute
unless a statutory section at issue, if any, authorizes the award of attorneys’
fees to the prevailing party.
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15.4 Severability. In
the event any provision of this Agreement is found to be unenforceable by an
arbitrator or court of competent jurisdiction, such provision shall be deemed
modified to the extent necessary to allow enforceability of the provision as
so
limited, it being intended that the parties shall receive the benefit
contemplated herein to the fullest extent permitted by law. If a
deemed modification is not satisfactory in the judgment of such arbitrator
or
court, the unenforceable provision shall be deemed deleted, and the validity
and
enforceability of the remaining provisions shall not be affected
thereby.
15.5 Interpretation;
Construction. The headings set forth in this Agreement are for
convenience only and shall not be used in interpreting this
Agreement. This Agreement has been jointly drafted by legal counsel
representing Employee and the Company.
15.6 Governing
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Colorado. Each party
consents to the jurisdiction and venue of the state or federal courts in Denver,
Colorado, if applicable, in any action, suit, or proceeding arising out of
or
relating to this Agreement.
15.7 Notices. Any
notice required or permitted by this Agreement shall be in writing and shall
be
delivered as follows with notice deemed given as indicated: (a) by
personal delivery when delivered personally; (b) by overnight courier upon
written verification of receipt; (c) by telecopy or facsimile transmission
upon
acknowledgment of receipt of electronic transmission; or (d) by certified or
registered mail, return receipt requested, upon verification of
receipt. Notice shall be sent to the addresses set forth below, or
such other address as either party may specify in writing.
15.8 Survival. Sections
8 (“No Conflict of Interest”), 9 (“Covenant Not to Compete”), 10
(“Nonsolicitation”), 11 (“Assignment of Intellectual Property”), 12
(“Confidentiality”), 13 (“Injunctive Relief”), 14 (“Agreement to Arbitrate”), 15
(“General Provisions”) and 17 (“Entire Agreement”) of this Agreement shall
survive Employee’s employment by Company indefinitely.
16. Employee
to Seek Advice. Employee acknowledges that he has been advised
and encouraged by Company to seek independent advice by counsel before executing
this Agreement.
17. Entire
Agreement. This Agreement, and any documents incorporated by
reference in this Agreement, constitutes the entire agreement between the
parties relating to this subject matter and supersedes all prior or simultaneous
representations, discussions, negotiations, and agreements, whether written
or
oral. This Agreement may be amended or modified only with the written
consent of Employee and the Board, including without limitation any changes
that
may be necessary to comply with the provisions of Section 409A of the Internal
Revenue Code, to the extent applicable. This Agreement may be amended
or modified only with the written consent of Employee and the Board of Directors
of Company. No oral waiver, amendment or modification will be
effective under any circumstances whatsoever.
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THE
PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND
EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED
THIS AGREEMENT ON THE DATES SHOWN BELOW.
EMPLOYEE
Dated:
W.
Xxxx
Xxxxxxxxxx
WORLDWIDE
STRATEGIES INCORPORATED
Dated: By:
Xxxxx
X.
Xxxxx,
Compensation
Committee Member
Dated: By:
Xxxxxx
X.
Xxxx,
Compensation
Committee Member
Initials: Employee
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Company
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