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Exhibit 10.3
XXXXXXX XXXXX
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement') dated as of August 5, 1998, between
I-Storm, Inc., a Nevada corporation, and its wholly owned subsidiary, LVL
Communications Corporation, a California corporation, (collectively, the
"Company"), each with its principal place of business in the United States at
000 Xxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx, 00000 (herein called the "Company")
and XXXXXXX XXXXX (herein called the "Employee") residing at 000 Xxxxx Xxxxxx,
Xxx Xxxxxxxxx, XX 00000.
1. EMPLOYMENT. The Company hereby employs Employee as the Vice President and
Executive Creative Director of I-Storm Inc. and as the Vice President and
Executive Creative Director of LVL Communications Corporation reporting to the
Company's President. Employee will be responsible for management and
supervision of all Company activities for the term of this Agreement, and the
Employee hereby accepts such employment upon the terms and conditions
hereinafter set forth.
2. TERM. The term of this Agreement shall have commenced as of July 15, 1998
(the "Employment Date") and shall continue in effect for a term of 36 months,
unless earlier terminated in accordance with the provisions of Section 6 of
this Agreement. Thereafter, this Agreement shall be automatically renewed on a
year-to-year basis unless either party shall provide the other with notice in
writing of the termination of this Agreement at least 60 days' prior to the
expiration of this Agreement at the end of its original term or any renewal
thereof. For purposes of this Agreement, the "term of this Agreement" shall
refer to the initial term and all renewal terms hereof. In the event of
termination by the Company prior to the expiration of this Agreement at the end
of its original term or any renewal thereof, the Company shall pay the Employee
severance pay and benefits required by Section 6(e) of this Agreement unless
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termination by the Company is for a reason specified in Sections 6(a), 6(b) or
6(c) hereunder
3. COMPENSATION. For all services rendered by the Employee under this
Agreement, the Company shall pay the Employee a salary and fringe
benefits as follows:
(a) Cash Compensation: The Company shall pay the Employee a base salary
during the term of this Agreement, payable semi-monthly, at the rate of
$240,000 per year. Employee will be eligible to receive an fiscal annual
performance bonus of up to 50% of base salary based upon achievement of
reasonable and achievable Company goals as determined and approved in
good faith by the Board of Directors to be paid no later than 30 days
from the end of such year. Employee shall be eligible for annual
performance appraisal and merit increase. Company may, but is not
obligated to, increase Employee's salary as Company deems appropriate.
(b) Stock Options: The Company shall grant the Employee stock options to
purchase 75,000 common shares of the Company at $0.50 per share, of
which 37,500 shares shall vest ratably over a period of 36 months from
the Employment Date; and of which 37,500 shares will only vest upon the
Company's sales revenue meeting or exceeding twelve million dollars
($12,000,000) for any twelve month period from the Employment Date and
upon the Company's quarterly revenue exceeding operating expenses for
the same twelve month period, as determined by the Board of Directors at
its sole discretion.
(c) Medical, Insurance, and Other Benefits: The Employee shall at his
option be entitled to participate with other employees of the Company in
all group fringe benefit plans or other group arrangements authorized
and adopted from time to time. Employee shall also receive such other
benefits including
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vacation, holidays, and sick leave, as Company generally provides to its
employees holding similar positions as that of Employee.
(d) Expenses: The Company shall either pay directly or reimburse
Employee for reasonable travel, entertainment and other business
expenses incurred by Employee in the performance of his duties
hereunder; provided that the incurring of such expenses shall be subject
to such policies as shall be established by the Board of Directors of
the Company from time to time, and Employee shall submit to the Company
such documentation to substantiate such expenses as the Company shall
reasonably request.
Nothing herein shall be deemed to preclude the Company from awarding additional
compensation or benefits to Employee during the term of this Agreement, upon
approval of Company's Board of Directors, whether in the form of raises,
bonuses, additional fringe benefits, or otherwise.
4. DUTIES. During the term of this Agreement, the Employee hereby promises to
perform and discharge faithfully the duties which may be assigned to him from
time to time by the Board of Directors in connection with the conduct of its
business so long as such duties are reasonably related to the Employee's duties
as an Executive Officer of the Company. Employee will be responsible for all
activities of the Company as determined by the President and as required of
officers of the Company under applicable state and federal law, and will have
all relevant executives and their respective subordinates report to him.
Employee is employed to actively serve on a full-time basis as an executive
officer of the Company.
5. EXTENT OF SERVICES; OTHER INTERESTS. During the term of this Agreement, the
Employee shall devote all of his working time, attention and energies which are
reasonably required for the performance of his duties and the business of the
Company
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and shall travel as reasonably required to discharge the duties of his position
with the Company as assigned by its President. The Employee shall not during
the term of this Agreement be engaged in any other business activities that
are, or could potentially be, in competition with the business activities of
the Company whether or not such business activities are pursued for gain,
profit or other pecuniary advantage. Subject to the foregoing, the Employee may
engage in investment, business, professional and continuing education
activities so long as such activities do not substantially interfere with the
performance of his duties as an Officer of the Company.
6. TERMINATION. Payment of severance described in this Section 6 shall be paid
no later than ten (10) days after becoming due.
(a) Death: In the event of Employee's death during the term hereof, this
Agreement shall terminate immediately and, except as expressly set forth
in this paragraph, the Company shall have no further liability hereunder
to Employee or his estate. The Company shall continue to pay to
Employee's estate his salary and continued stock option vesting for a
period of three (3) months from and after the date of death during the
term of this Agreement.
(b) Permanent Disability. In the event that Employee becomes totally
disabled during the term hereof and such total disability continues for
a period in excess of ninety (90) days, whether consecutive or in the
aggregate during any 12 month period, at the end of such period of
disability the Employee shall be considered as permanently disabled and
this Agreement shall terminate immediately and, except as expressly set
forth in this paragraph, the Company shall have no further liability
hereunder to Employee. The Company shall continue to pay to Employee his
salary and continue stock option vesting for the period of disability
and a period of two (2) months from and after the date of total
disability commencing with the expiration of the first 90 day period of
such disability as severance pay hereunder.
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Employee shall be considered as totally disabled if, and when because of
injury, illness or physical or mental disability, he is prevented from
effectively performing the duties of his employment. The determination
of total disability shall be made by the Board of Directors of the
Company, but said decision shall not be unreasonable or arbitrary and
shall be supported by the opinion (at the Company's expense) of at least
one licensed physician, unless Employee shall without justification fail
to submit to the necessary physical or mental examinations. It is
understood that Employee's occasional sickness of short duration shall
not result in Employee being considered totally disabled, and Employee
shall continue to be compensated hereunder during such periods of
occasional sickness so long as they shall not exceed the greater of
twelve (12) days in a calendar year or the amount of sick leave
available to any other employee of the Company.
(c) Involuntary Termination for Cause. The Company may terminate this
Agreement for cause. For the purposes of this Agreement, a termination
for "cause" shall mean a termination resulting from a good faith and
reasonable determination by the Company's Board of Directors that
Employee (i) has committed a felony or act of moral turpitude which
would materially injure the Company or its reputation or, (ii) has
intentionally or willfully and repeatedly breached his duties hereunder
in a material respect and, if curable, has failed to cure the same
within thirty (30) days after receiving written notice of such breach
from the Board of the Company. Such notice must be given to Employee
following each claimed breach, whether or not curable. In the event of
termination for cause, the Company shall have no further liability
hereunder to Employee from and after the date of such termination.
(d) Termination Without Cause. Termination of Employee by the Company
for any reason other than in paragraphs 6(a), 6(b), and 6(c) hereof
shall be considered Termination Without Cause.
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(e) Salary and Benefit Continuation Upon Termination Without
Cause. Upon the Company's termination of Employee's employment
for any reason whatsoever prior to the expiration of the original
term or any annual renewal of the term of this Agreement, except
for (i) termination upon death as set forth in paragraph 6(a)
hereof; (ii) termination upon permanent disability as set forth
in paragraph 6(b) hereof; or (iii) termination for cause pursuant
to paragraph 6(c) hereof ("Termination without Cause"); or (iv)
Employee's voluntarily electing not to continue in the employment
of the Company under conditions other than Constructive
Discharge; then the Company within thirty (30) days after such
termination, and in lieu of all other obligations, the Company
hereunder, shall: 1) pay to Employee a lump-sum payment equal to
his then base salary for a period equal to twelve (12) months;
2) provide Employee, at Company's cost, with employment benefits
consisting of life, health, dental and long-term disability
insurance for a period of 12 months after termination; and
3) enter into a Post-termination Consulting Agreement as defined
below in paragraph 6(f) hereof. Thereafter, any continuation of
benefits under the Consolidated Omnibus Budget Reconciliation Act
(COBRA) will be at Employee's cost.
(f) Post-termination Consulting Agreement. Upon the Termination
Without Cause, the Employee will hold himself available to
provide consulting services to the Company for a period
terminating one year after the Termination Date (the "Consulting
Period"). Employee will provide the consulting services only upon
the request of the Company's President and for no more than ten
hours per week at such times and places as are mutually
convenient to Employee and the Company. However, Employee will
perform those services at times and places that do not reasonably
conflict with his responsibilities to his then current employer.
Employee will perform services as an independent contractor with
the customary and usual independence associated therewith, and he
will not be deemed an employee or agent of the Company or have
the authority to bind, or to enter into any contract on behalf
of, the Company, unless expressly authorized in writing to do so.
The Company will pay Employee a consulting fee of $150.00 per
hour for each hour actually worked
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at the Company's request. The Company's Board of Directors has
determined that Employee will be providing "substantial services"
to the Company during the Consulting Period such that any option
held by Employee on the Termination Date, if not fully vested at
the time, will continue to vest at the rate of 1/36 of the option
grant per month during the Consulting Period provided that total
vesting shall not exceed the original total shares granted under
each stock option. Any option held by Employee at the Termination
Date will remain exercisable for 36 months from the Termination
Date even though the employment of Employee will terminate on the
Termination Date.
7. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. The Employee recognizes
and acknowledges that the Company's trade secrets and proprietary
processes as they may exist from time to time are valuable, special and
unique assets of the Company's business, access to and knowledge of
which are essential to the performance of the Employee's duties
hereunder. The Employee will not during or after the term of his
employment, disclose such secrets or processes to any person, firm,
corporation, association or other entity for any reason or purpose
whatsoever, nor shall the Employee make use of any such secrets or
processes for his own purposes or for the benefit of any person, firm,
corporation, or other entity (except the Company) under any
circumstances during or after the term of his employment; provided that,
after the expiration of the term of his employment these, restrictions
shall not apply to such secrets and processes which are then, or from
time to time thereafter, in the public domain (provided that he was not
responsible, directly or indirectly, for permitting such secrets or
processes to enter the public domain without the Company's consent).
8. COVENANT NOT TO COMPETE OR INTERFERE. With the exception of
activities associated with the purchase and subsequent operation of the
Company., Employee agrees that during the term of this Agreement and for
a period of one (1) year after the date of Termination under this
Agreement, whichever occurs first; (a) Employee shall not intentionally
interfere with, disrupt or attempt to disrupt the relationship,
contractual
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or otherwise between the Company and any customer, supplier, lessor or
employee of the Company or any of its subsidiaries and (b) Employee
shall not as a sole proprietor or otherwise for his own account or as a
partner, employee, officer, director, manager, agent, distributor,
consultant, marketing representative, associate, investor or otherwise
(except as to a less than 5% interest in a public company listed on the
Nasdaq, a national, or a regional exchange), directly or indirectly,
own, purchase, organize or take preparatory steps for the organization
of, finance, work for, provide services to, advise, acquire, lease,
operate, manage or invest in or permit his name to be used or employed
in connection with any business which engages directly in competition
with the Company. Employee further agrees that the covenants and other
provisions of this paragraph shall cover his activities in the whole of
North America, Europe and Asia (the "Territory"). The parties hereto
agree that the covenants contained in this paragraph (b) shall be
construed as if the covenants are divided into separate and distinct
covenants in respect of each of the products and services of the
Company, each capacity in which the party is prohibited from competing,
and each part of the world in which such competition is prohibited from
taking place. The territorial restrictions contained in this Section 8
are properly required for the adequate protection of the Company and in
the event any covenant or other provision contained this Section 8 shall
be deemed to be illegal, unenforceable, or unreasonable by a court or
other tribunal of competent jurisdiction. With respect to any part of
the Territory or otherwise, such covenant or provision shall not be
affected with respect to any other part of the Territory or otherwise,
and each of the parties hereto agrees and submits to the reduction of
said territorial restriction or other provisions to such an area or
otherwise, as said court shall deem reasonable. The parties further
agree that if any provision of this Agreement is found to be
unenforceable, it shall not affect the enforceability of the remaining
provisions and the court shall enforce all remaining provisions to the
extent permitted by law.
9. INVENTIONS. The Employee hereby sells, transfers, and assigns to the
Company, or to any person or entity designated by the Company, at of the
entire right, title and interest of the Employee in and to all
inventions, ideas, disclosures, and improvements, whether patented or
unpatented, and copyrightable material made or
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conceived by the Employee, solely or jointly during the term hereof
which relate to methods, apparatus, formulae, designs, products,
processes or devices, sold, leased, used, or under consideration or
development by the Company, or which otherwise relate to or pertain to
the business, functions, or operations of the Company. The Employee
agrees to communicate promptly and to disclose to the Company, in such
form as the Employee may be required to do so, all information, details,
and data pertaining to the aforementioned inventions, ideas,
disclosures, and improvements and to execute and deliver to the Company
such formal transfers and assignments and such other papers and
documents as may be required of the Employee to permit the Company or
any person or entity designated by the Company to file and prosecute the
patent applications and, as to copyrightable material, to obtain
copyright thereof.
For the purposes of this Agreement, an invention shall be deemed to have
been made during the term of Employee's employment if, during such
period, the invention was conceived or first actually reduced to
practice by the Company, and Employee agrees that any patent application
filed within one (1) year after termination of this employment shall be
presumed to relate to an invention which was made during the term of
Employee's employment unless Employee can provide satisfactory evidence
to the contrary.
10. INJUNCTIVE RELIEF. The parties hereto acknowledge that (a) the
covenants and restrictions set forth in Sections 8, 9 and 10 of this
Agreement are necessary, fundamental and required for the protection of
the business of the Company, (b) such covenants and restrictions are
material inducements to investors to enter into agreements to invest in
the Company, and (c) a breach of any of such covenants and restrictions
by Employee will result in irreparable harm and damages to the Company
which cannot be adequately compensated by a monetary award. Accordingly,
in the event of breach or threatened breach of such provisions by
Employee, Employee expressly agrees that the Company shall be entitled
to the immediate remedy of a temporary restraining order, preliminary
injunction or such other form of injunctive or equitable relief as may
be used by any court of competent jurisdiction to restrain or enjoin the
Employee from breaching any such covenant or provision or to
specifically
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enforce the provisions hereof. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies for such breach
or threatened breach.
11. INSURANCE. The Company, at its election and for its benefit, may
insure the Employee against accidental loss or death and the Employee
shall submit to such physical examination and supply such information as
may be required in connection therewith.
12. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered or
certified mail to his last known residence in the case of the Employee
or to its last known principal office in the case of the Company.
13. WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed by a
waiver of any subsequent breach.
14. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California.
15. ASSIGNMENT. The rights and obligations of the parities under this
Agreement shall inure to the benefit of and shall be binding upon the
successors of such parties.
16. ENTIRE AGREEMENT. This instrument contains the entire agreement of the
parties and supersedes all existing agreements between them. It may not be
changed orally but only by an agreement in writing signed by the party against
whom enforcement of any waiver, modification, extension or discharge is sought.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first written above.
XXXXXXX XXXXX
EMPLOYEE: /s/ XXXXXXX XXXXX
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XXXXXXX XXXXX
COMPANY I-STORM, INC
BY: /s/ XXXXX XxXXXX
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Xxxxx XxXxxx
Chairman of the Board
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