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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is entered into as of the 11th
day of January, 1999, by and among xxxxxxx.xxx, inc., a Nevada corporation (the
"Company") and XXXXXX XXXXXX ("Xxxxxx").
WHEREAS, the Company desires to employ Xxxxxx as provided herein; and,
WHEREAS, Xxxxxx 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 Xxxxxx and Xxxxxx hereby
accepts employment with the Company as Vice President - Legal Affairs upon the
terms and conditions hereinafter set forth.
2. DUTIES. Xxxxxx will serve the Company as Vice President - Legal
Affairs and will faithfully and diligently perform the services and functions
relating to such position or otherwise reasonably incident to such position,
provided that all such services and functions will be reasonable and within
Xxxxxx'x area of expertise. Xxxxxx'x specific duties shall include those related
to (i) coordinating legal matters, (ii) negotiating contracts with companies
commonly known as Univision, Galavision, Telemuendo and Sony, or their
subsidiaries or affiliates, and (iii) and such other duties as the Company may
reasonably direct. Xxxxxx 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 Xxxxxx'x employment shall commence on the
11th day of January, 1999, (the "Effective Date") and shall continue for a term
of three 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 Xxxxxx.
4. COMPENSATION. As compensation for the services rendered to the
Company under this Agreement commencing on the Effective Date hereof, Xxxxxx
will be paid a base salary of Sixty Thousand dollars ($60,000) 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 Company's board of
directors after a review of Xxxxxx'x performance of his duties hereunder.
5. TERMINATION. This Agreement will terminate upon the occurrence of
any of the following events:
a. The death of Xxxxxx;
b. The "Total Disability" (as hereinafter defined) of Xxxxxx;
c. Written notice to Xxxxxx from the Company of termination for
"Cause" (as hereinafter defined);
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d. The voluntary termination of this Agreement by Xxxxxx upon
thirty (30) days prior written notice;
e. The later of three (3) years from the Effective Date of this
Agreement or the date to which this Agreement is extended in
accordance with Section 3 above; or
f. Written notice to Xxxxxx from the Company for any reason
without "Cause".
For purposes of Section 5b, 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. The determination shall rest upon the opinion of the
physician regularly attending Xxxxxx. If the Company disagrees with said
physician's opinion, the Company may engage at their own expense a physician to
examine the Xxxxxx, and Xxxxxx hereby consents to such examination and to waive,
if applicable any privilege between the physician and Xxxxxx 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 Xxxxxx and the Company.
For purposes of Section 5c, "Cause" means (i) Xxxxxx has failed to
substantially perform his duties as reasonably determined by any Officer of the
Company or the Board of Directors of the Company, (ii) Xxxxxx engages in poor
performance that is not cured within thirty (30) days after counseling by the
Company, (iii) Xxxxxx has failed to comply with the reasonable directives and
policies of the Board of Directors of the Company or of any Officer of the
Company, or (iv) Xxxxxx breaches his fiduciary duty to the Company or commits
any dishonest, unethical, fraudulent, or felonious act in respect to Xxxxxx'x
duties to the Company.
6. BENEFITS. Xxxxxx shall be entitled to receive any benefits,
including health insurance, life insurance, vacation time, etc., which are
normal and customary Company benefits for a like position. In addition, for the
first six (6) months of the term of this Agreement, the Company shall pay the
rental for the current apartment used by Xxxxxx at 000 X. Xxxxxxxx, Xxxxxxxxx
000, Xxxxxxx, Xxxxxxx 00000. In addition, for four (4) months from the Effective
Date, the Company agrees to reimburse Xxxxxx for airfare expense in coach class
between Phoenix, Arizona and Santa Barbara, California no more than once per
week.
7. LOAN. The Company will loan to Xxxxxx Five Thousand dollars ($5,000)
to be loaned and disbursed on the Effective Date. All amounts loaned will be
evidenced by a promissory note with interest at 10% per annum and with all
principal and accrued but unpaid interest due one (1) year from the Effective
Date if not sooner paid. The Company agrees that if Xxxxxx has been employed by
the Company for six continuous months from the Effective Date, 50% of the
principal balance and accrued but unpaid interest shall be forgiven and, if
Xxxxxx has been employed by the Company for a total of twelve continuous months
of employment by the Company, then the remaining principal balance and accrued,
but unpaid interest shall be forgiven by the Company and the Note evidencing
such loan shall be canceled.
8. STOCK OPTIONS. Specifically subject to Section 8a and 8b below and
contingent upon Xxxxxx being employed by the Company, Xxxxxx shall be granted
options to purchase 20,000 shares of the Company's Common Stock exercisable at
$1.00 per share (the "Stock Options"), pursuant to and in accordance with the
following:
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(a) If Xxxxxx'x employment is terminated for any reason other than "for
Cause" as defined herein, then the unexercised options shall be exercisable for
a period of either (i) forty-five (45) days from the termination of Xxxxxx'x
employment or (ii) the end of the initial term of this Agreement or any
extension thereof; whichever period of later.
(b) If Xxxxxx'x employment by the Company is terminated "for Cause" as
defined in this Agreement, then all unexercised options granted to Xxxxxx shall
immediately terminate and not be exercisable upon notice of Xxxxxx'x termination
of employment "for Cause."
9. NON-COMPETITION AND CONFIDENTIALITY.
a. Non-Competition. Xxxxxx agrees that during the term of this
Agreement, Xxxxxx will not (1) enter into any agreement with or directly or
indirectly solicit or attempt to solicit any employee 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 Xxxxxx 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 company. Restrictions regarding competition by Xxxxxx shall only apply to
competing businesses or entities that operate in the continental United States.
b. Confidentiality.
(1) Xxxxxx acknowledges that in Xxxxxx'x employment hereunder,
Xxxxxx will be making use of, acquiring and adding to the Company's trade
secrets and its confidential and proprietary information of a special and unique
nature and value relating to such matters as, but not limited to, the Company's
business operations, internal structure, financial affairs, programs, software
systems, procedures, manuals, confidential reports, lists of clients and
prospective clients and sales and marketing methods, as well as the amount,
nature and type of services, equipment and methods used and preferred by the
Company's clients and the fees paid by such clients, all of which shall be
deemed to be confidential information. Xxxxxx acknowledges that such
confidential information has been and will continue to be of central importance
to the business of the Company and that disclosure of it to or its use by others
could cause substantial loss to the Company. In consideration of employment by
the Company, Xxxxxx agrees that during the Initial Term and any renewal term of
this Agreement and upon and after leaving the employ of the Company for any
reason whatsoever, Xxxxxx shall not, for any purpose whatsoever, directly or
indirectly, divulge or disclose to any person or entity any of such confidential
information which was obtained by Xxxxxx as a result of the Xxxxxx'x employment
with the Company or any trade secrets of the Company, but shall hold all of the
same confidential and inviolate.
(2) All contracts, agreements, financial books, records,
instruments and documents; client lists; memoranda; data; reports; programs;
software, tapes; Rolodexes; telephone and address books; letters; research; card
decks; listings; programming; and any other instruments, records or documents
relating or pertaining to clients serviced by the Company or Xxxxxx, the
services rendered by Xxxxxx, or the business of the Company (collectively, the
"Records") shall at all times be and remain the property of the Company. Upon
termination of this Agreement and Xxxxxx'x employment under this Agreement for
any reason whatsoever, Xxxxxx shall return to the Company all Records (whether
furnished by the
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Company or prepared by Xxxxxx), and Xxxxxx shall neither make nor retain any
copies of any of such Records after such termination.
(3) All inventions and other creations, whether or not
patentable or copyrightable, and all ideas, reports and other creative works,
including, without limitation, computer programs, manuals and related materials,
made or conceived in whole or in part by Xxxxxx while employed by the Company
and within one year thereafter, which relate in any manner whatsoever to the
business, existing or proposed, of the Company or any other business or research
or development effort in which the Company or any of its subsidiaries or
affiliates engages during Xxxxxx'x employment by the Company will be disclosed
promptly by Xxxxxx to the Company and shall be the sole and exclusive property
of the Company. All copyrightable works created by Xxxxxx and covered by this
Section 9b(3) shall be deemed to be works for hire. Xxxxxx shall cooperate with
the Company in patenting or copyrighting all such inventions, ideas, reports and
other creative works, shall execute, acknowledge, seal and deliver all documents
tendered by the Company to evidence its ownership thereof through the world, and
shall cooperate with the Company obtaining, defending and enforcing its rights
therein.
c. Enforceability. In the event of the breach of the covenants
contained in this Section 9, 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 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.
It is hereby agreed that the provisions of this Section 9 are separate
and independent from the other provisions of this Agreement, that these
provisions are specifically enforceable by the Company notwithstanding any claim
by Xxxxxx that the Company has violated or breached this Agreement or any claim
that Xxxxxx is entitled to any offset or compensation.
To induce the Company to enter into this Agreement, Xxxxxx represents
and warrants to the Company that Section 9 of this Agreement is enforceable by
the Company in accordance with its terms.
10. 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.
11. 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: xxxxxxx.xxx, inc.
One Arizona Center
000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
If to Xxxxxx: Xxxxxx Xxxxxx
000 X. Xxxxxxxx, Xxx. 000
Xxxxxxx, XX 00000
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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.
12. 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.
13. 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
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.
14. 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.
15. 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.
16. 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.
17. 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:
xxxxxxx.xxx, inc., a Nevada corporation
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Chief Executive Officer
XXXXXX:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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