EXHIBIT 10.1
EXECUTIVE SERVICES AGREEMENT - XXXXXX XXXXX XXXX
DATED JUNE 19, 2009
EXECUTIVE SERVICES AGREEMENT
30DC, INC.
and
XXXXXX XXXXX XXXX
Xxxxx 00
Xxxxxxxxx Square
000-000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
DX 000 XXXXXX
ABN 00 000 000 000
Tel: (00) 0000 0000
Fax: 0000 000 000
XXX.XXXXXXXXXXX.XXX.XX
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION......................................................................1
1.1 DEFINITIONS................................................................................1
1.2 INTERPRETATION.............................................................................2
2. ENGAGEMENT AND PLACE OF WORK........................................................................3
2.1 ENGAGEMENT.................................................................................3
2.2 PRINCIPAL PLACE OF WORK....................................................................4
3. COMMENCEMENT........................................................................................4
4. REMUNERATION AND REVIEW.............................................................................4
4.1 REMUNERATION...............................................................................4
4.2 PERFORMANCE BONUS..........................................................................4
4.3 REVIEW.....................................................................................4
5. EXPENSES AND OTHER ENTITLEMENTS.....................................................................5
5.1 EXPENSES...................................................................................5
5.2 OTHER ENTITLEMENTS.........................................................................5
5.3 ENTITLEMENT OF THE EXECUTIVE ON THE OCCURRENCE OF A TAKEOVER EVENT OR TRADE SALE...........5
6. RESPONSIBILITIES AND DUTIES.........................................................................6
7. LEAVE...............................................................................................7
7.1 ANNUAL LEAVE...............................................................................7
7.2 PAID PERSONAL/CARER'S LEAVE................................................................7
7.3 PUBLIC HOLIDAYS............................................................................8
7.4 UNPAID CARER'S LEAVE.......................................................................8
7.5 UNPAID PARENTAL LEAVE......................................................................8
7.6 COMPASSIONATE LEAVE........................................................................8
7.7 LONG SERVICE LEAVE.........................................................................8
7.8 DISCRETIONARY LEAVE........................................................................8
7.9 ACCIDENT COMPENSATION LEAVE................................................................9
8. POLICIES AND PROCEDURES.............................................................................9
9. INTELLECTUAL PROPERTY...............................................................................9
10. CONFIDENTIALITY....................................................................................10
11. CONFLICT OF INTEREST...............................................................................10
12. TERMINATION........................................................................................11
12.1 RESTRICTION ON TERMINATION................................................................11
12.2 BY THE COMPANY WITHOUT NOTICE.............................................................11
12.3 BY THE COMPANY WITH NOTICE................................................................11
12.4 BY THE EXECUTIVE WITH NOTICE..............................................................11
12.5 CONSEQUENCES OF TERMINATION...............................................................12
12.6 BOARD REACTION TO TERMINATION.............................................................12
12.7 RETURN OF COMPANY PROPERTY................................................................12
13. REAPPOINTMENT......................................................................................13
13.1 REAPPOINTMENT.............................................................................13
13.2 FURTHER AGREEMENT.........................................................................13
14. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURE.........................................................13
14.1 DISPUTE...................................................................................13
14.2 NOTICE OF DISPUTE.........................................................................13
14.3 DISPUTE RESOLUTION........................................................................13
15. NOTICES............................................................................................14
16. GENERAL PROVISIONS.................................................................................15
16.1 GOVERNING LAW.............................................................................15
16.2 ENTIRE AGREEMENT..........................................................................15
16.3 NO RELIANCE...............................................................................15
16.4 NO WAIVER.................................................................................15
16.5 SEVERABILITY..............................................................................15
16.6 BINDING NATURE............................................................................15
16.7 NO VARIATION..............................................................................15
16.8 NO ASSIGNMENT.............................................................................15
16.9 COUNTERPARTS..............................................................................15
16.10 EXTENT THAT THE LAW PERMITS...............................................................16
16.11 SPECIFIC PERFORMANCE......................................................................16
16.12 CUMULATIVE RIGHTS.........................................................................16
SCHEDULE................................................................................................... 17
EXECUTIVE SERVICES AGREEMENT HWL EBSWORTH
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EXECUTIVE SERVICES AGREEMENT
DATE 19 June 2009
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PARTIES
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30DC, INC. of 00 Xxxxxxxxx Xxxx, Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx
(COMPANY)
XXXXXX XXXXX XXXX of 00 Xxxxxxxxx Xxxx, Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx
(EXECUTIVE)
BACKGROUND
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A. The Company offers the Executive employment
on the terms and conditions set out in this
Agreement.
B. The Executive wishes to accept the offer of
employment on the terms set out in this
Agreement.
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AGREEMENT
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
30 DAY CHALLENGE BUSINESS means the internet marketing business and
educational program owned and operated by the Company;
30DC GROUP means the businesses and entities operating within the
Company and includes the 30 Day Challenge Business, the Immediate Edge
Business and the Facebook Applications Business;
AGREEMENT means this agreement, the Schedules and Annexures attached to
this agreement and any document or documents supplemental to this
agreement;
BOARD means the board of directors of the Company, and includes any
committee of the Board duly appointed by it;
BUSINESS DAY means a day which is not a Saturday, Sunday or public
holiday in Delaware, United States of America;
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CHAIRMAN means the person appointed as Chairman of the Board of the
Company from time to time;
COMMENCEMENT DATE means the commencement date set out in Item 1 of the
Schedule;
CONFIDENTIAL INFORMATION has the meaning given in clause 10(a);
EMPLOYMENT means the employment of the Executive under this Agreement;
EMPLOYMENT COST means the remuneration package, including the Salary,
non salary payments and benefits (for the avoidance of doubt this does
not include performance-based bonuses referred to in clause 4.2)
provided to the Executive in accordance with clauses 4 and 5 includes
any applicable taxation payable on the components of the remuneration
package (whether income tax, fringe benefits tax or otherwise), set out
in Item 6 of the Schedule;
FACEBOOK APPLICATIONS BUSINESS means the business of developing and
operating the Facebook applications: "Peel a Meal", "Brimmies Super
Cups" and "Pop the Top", owned and operated by the Company;
IMMEDIATE EDGE BUSINESS means the online education and training
business in internet marketing and small business start up, owned and
operated by the Company;
INTELLECTUAL PROPERTY means:
(a) copyright;
(b) all rights conferred under statute, common law or equity in
relation to inventions (including patents);
(c) registered and unregistered trademarks;
(d) registered and unregistered designs;
(e) circuit layouts; and
(f) all other agreed rights resulting from intellectual activity
in the industrial and mining fields;
MONTH means calendar month;
PRINCIPAL PLACE OF WORK means the principal place of work set out in
Item 3 of the Schedule;
REASONABLE ADDITIONAL HOURS means hours in excess of normal working
hours but such that the total number of hours worked per week does not
exceed 48 hours in any given week;
SALARY means the amount set out in Item 5 of the Schedule; and
TERM means the term set out in Item 2 of the Schedule.
1.2 INTERPRETATION
In this Agreement, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) a reference to gender includes both genders;
(c) the word "person" means a natural person and any association,
body or entity whether incorporated or not;
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(d) headings in this Agreement are for convenience only and do not
affect its interpretation or construction;
(e) a reference to writing includes any communication sent by
post, fax or e-mail transmission;
(f) where any word or phrase is defined, any other part of speech
or other grammatical form of that word or phrase has a cognate
meaning;
(g) a reference to any statute, proclamation, rule, code,
regulation or ordinance includes any amendment, consolidation,
modification, re-enactment or reprint of it or any statute,
proclamation, rule, code, regulation or ordinance replacing
it;
(h) a reference to US DOLLARS or USD or US$ is a reference to the
lawful tender of the United States of America;
(i) a reference to AUSTRALIAN DOLLARS or AUD or A$ is a reference
to the lawful tender of the Commonwealth of Australia;
(j) a reference to time refers to time in Delaware, United States
of America;
(k) mentioning anything after "include", "includes" or "including"
does not limit what else might be included;
(l) no rule of construction applies to the disadvantage of a party
because this Agreement is prepared by (or on behalf of) that
party;
(m) a reference to any thing is a reference to the whole and each
part of it;
(n) a reference to a group of persons is a reference to all of
them collectively and to each of them individually;
(o) any direction, approval, discretion or decision given,
exercised or made by the Board under this Agreement will be
deemed to be a direction, approval, discretion or decision
given, exercised or made by the Company pursuant to an
irrevocable authority given to the Board by the Company to act
for and on its behalf; and
(p) any direction, approval, discretion or decision given,
exercised or made by the Chairman under this Agreement will be
deemed to be a direction, approval, discretion or decision
given, exercised or made by the Company pursuant to an
irrevocable authority given to the Chairman by the Board to
act for and on behalf of the Company.
2. ENGAGEMENT AND PLACE OF WORK
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2.1 ENGAGEMENT
The Executive will:
(a) be employed by the Company in the position of Chief Executive
Officer of the Company, and will continue to be so employed
for the Term unless the Employment is terminated by either
party in accordance with the terms of this Agreement;
(b) serve the Company as Chief Executive Officer under this
Agreement with responsibility for planning, directing and
controlling the operations of the Company in line with the
strategy agreed by the Board and in accordance with the
authority delegated to him by the Board from time to time. The
Executive's key areas of responsibility are set out in Item 4
of the Schedule to this Agreement;
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(c) serve the Company in such additional offices or capacities as
may be assigned to him by the Board from time to time
consistent with his position; and
(d) report to the Board or to such other persons as the Board may
nominate from time to time.
2.2 PRINCIPAL PLACE OF WORK
The Company acknowledges and agrees that the Executive shall perform
the Employment at the Principal Place of Work or such other place
nominated by him provided he is able to perform his duties as
determined by the Board.
3. COMMENCEMENT
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The Executive will commence work on the Commencement Date.
4. REMUNERATION AND REVIEW
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4.1 REMUNERATION
(a) The Company will pay the Employment Cost to the Executive as
remuneration for his services.
(b) The Employment Cost will comprise the Salary and other
entitlements as set out in clause 5.2 and shall otherwise be
adjusted in accordance with this Agreement.
(c) Subject to clause 4.1(d), the Executive will be entitled to
receive the Employment Cost wholly by way of salary or partly
by way of salary and partly by way of such other benefits as
the Company may lawfully provide to him, as the Executive may
elect from time to time consistent with the policy of the
Company on such matters, provided that the cost to the
Company, including any applicable fringe benefits tax, does
not exceed the Employment Cost.
(d) The Salary will be paid to the Executive by equal monthly
instalments on the 15th day of each Month or as otherwise
agreed.
(e) The Executive's remuneration including the Employment Cost is
compensation to the Executive for all time worked or time off
in lieu of time worked, as such, the Executive is not entitled
to additional payment for Reasonable Additional Hours worked,
or time off in lieu of Reasonable Additional Hours worked.
4.2 PERFORMANCE BONUS
In addition to the Employment Cost, the Board and the Executive will
agree upon milestones for bonus achievement. The actual bonus amount
and the method of payment will be determined by the Board in its
absolute discretion, details of which are set out in Item 7 of the
Schedule.
4.3 REVIEW
(a) The Executive's remuneration will be subject to annual review
by the Board. At each review, the Employment Cost will be
reviewed having regard to such matters as the responsibilities
of the Executive, the performance of the Company, the
performance of the 30DC Group, the performance of the
Executive, the remuneration available in the workforce outside
the 30DC Group for persons with responsibilities and
experience equivalent to those of the Executive and the
benefits which have accrued and will accrue to the Executive
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under this Agreement. At each review the Employment Cost may
be increased by such amount as the Board may determine and any
such increase will take effect on the date determined by the
Board.
(b) The Executive may, at any time in writing, request that the
Employment Cost be varied. The Company may after a full
investigation into performance agree to the variation of the
Employment Cost and the terms of this Agreement shall be
altered accordingly.
(c) The Company shall not unreasonably refuse a request for
variation of the Employment Cost. However, it shall not be
unreasonable for the Company to refuse such a request where
the request is made sooner than six Months after an earlier
agreement has been reached between the parties in relation to
the Employment Cost.
(d) In the event that there is a change in the cost of the other
entitlements provided to the Executive arising from any cause
whatsoever, the Company shall have the right after
notification to the Executive to alter the terms of the
Agreement accordingly.
5. EXPENSES AND OTHER ENTITLEMENTS
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5.1 EXPENSES
The Company will reimburse the Executive for all reasonable business
class travel, hotel, entertainment, home telephone, internet and other
expenses properly incurred by him in the performance of his duties
provided that the Executive must produce to the Board such records and
receipts verifying those expenses as the Board may reasonably request
in accordance with the Company's policy in this regard from time to
time.
5.2 OTHER ENTITLEMENTS
Without limiting clause 5.1 in any way, the Executive will also be
entitled to:
(a) use a Company credit or debit card linked to a designated
expense account for such expenses as are reasonably incurred
by the Executive in the performance of his duties provided
that such expenses are supported by appropriate receipts; and
(b) an appropriate level of coverage for a senior executive under
the Company's director's and officer's insurance.
5.3 ENTITLEMENT OF THE EXECUTIVE ON THE OCCURRENCE OF A TAKEOVER EVENT OR
TRADE SALE
(a) For the purposes of this clause 5.3:
(i) a TAKEOVER EVENT occurs if, at any time during the
Term, an off-market bid, a market bid, scheme of
arrangement or offer or invitation is made to all
shareholders of the Company to purchase or otherwise
acquire shares from them within a specified period
and the bid, scheme or offer becomes unconditional,
and:
(A) the offeror has at least 50% of the voting
power in the Company; or
(B) the directors issue a statement recommending
that the bid, scheme or offer (as the case
may be) be accepted or approved by
shareholders of the Company; and
(ii) TRADE SALE means a sale of:
(A) the main operating subsidiaries of the
Company;
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(B) all or a substantial part of the 30DC Group;
or
(C) all or substantially all of the assets of
the Company, during the Term.
(b) Notwithstanding the provisions of clause 12.1, if a Trade Sale
or a Takeover Event occurs and the Executive is required to
resign as Chief Executive Officer of the Company and this
Agreement is effectively terminated, then in addition to any
other entitlements due to the Executive in accordance with the
terms of this Agreement, the Executive will be entitled to:
(i) be paid a lump sum equal to at least the total of all
amounts that, if the Employment had continued until
the end of the Term, the Company would have become
liable to pay to the Executive because of the
Employment continuing during that period; and
(ii) be issued with that number of shares in the Company
comprising 50% of the Salary.
6. RESPONSIBILITIES AND DUTIES
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(a) During the course of the Employment, the Executive:
(i) will carry out the duties appropriate to his
appointment as Chief Executive Officer and in so
doing he must use his best endeavours to further the
prosperity and enhance the reputation of the Company
and the 30DC Group and must comply with all lawful
orders and instructions given to him by the Board;
(ii) must not, without the prior written consent of the
Board, directly or indirectly be engaged or
interested in any other business activity competing
with that of the 30DC Group but this will not
preclude the Executive from holding or acquiring not
more than 5% of the shares or securities of any
corporation officially listed on any recognised stock
exchange or holding or acquiring any real property by
way of passive personal investment which holding or
acquisition is not inconsistent with the intent of
the foregoing provisions of this clause; and
(iii) may, with the prior written consent of the Board,
accept appointments as a director of other
corporations and to the boards of committees and
charities and devote such time as may be necessary to
these activities on such terms as the Board may
agree.
(b) Unless absent on leave as provided under this Agreement or
through illness or injury, during the course of the Employment
the Executive must devote the whole of his time and attention
during normal working hours and at such other times as may be
reasonably necessary to his duties and responsibilities and to
the business of the 30DC Group.
(c) The Executive acknowledges that:
(i) the Employment Cost includes a provision for the
Reasonable Additional Hours which the Executive may
be required to work; and
(ii) he has no further entitlement to pay or time off in
lieu for all such Reasonable Additional Hours worked
by him.
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(d) The Executive must undertake such travel during the
course of the Employment as the Company may
reasonably require from time to time.
(e) In addition to the above provisions the Executive
must:
(i) carry out all lawful and reasonable
instructions given to the Executive by the
Board in relation to the Employment;
(ii) serve the Company and the 30DC Group
faithfully, efficiently and diligently and
exercise all due care and skill in the
performance of the Executive's duties;
(iii) refrain from acting or giving the appearance
of acting contrary to the interests of the
Company and the 30DC Group;
(iv) not solicit or attempt to persuade any
clients of the Company and the 30DC Group to
use the services of any other business;
(v) keep confidential all raw data and trade
secrets the Executive acquires during the
Employment with the Company and the 30DC
Group, including techniques, product
information, client lists and any other
information which is confidential to the
Company and the 30DC Group; and
(vi) carry out any other duties reasonably
required by the Company and the 30DC Group
to the best of the Executive's skills and
abilities.
(f) Where appropriate, the Executive may be required to undertake
training as arranged by the Company and the 30DC Group for the
acquisition of a broader range of skills and competence and
the better performance of the Executive's duties.
(g) Each of the Company and the Executive will act towards each
other with respect to this Agreement and all matters
incidental to it in good faith.
7. LEAVE
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7.1 ANNUAL LEAVE
(a) The Executive shall be entitled to 20 working days' holidays
in each calendar year (in addition to the usual public or
statutory holidays) to be taken at such times as shall be
agreed between the Executive and the Company.
(b) Annual leave accrues every four weeks on a pro-rata basis and
is cumulative.
7.2 PAID PERSONAL/CARER'S LEAVE
(a) The Executive is entitled to:
(i) accrue an amount of paid personal/carer's leave, for
each completed four-week period of continuous service
with the Company, of 1/13 of 20 days of paid personal
leave; and
(ii) take an amount of paid personal/carer's leave if the
amount of leave is accrued.
(b) Paid personal leave accrues on a pro-rata basis and is
cumulative.
(c) In relation to the accrual in clause 7.2(a)(i), the Executive
will accrue this leave at the rate of 20 days paid
personal/carer's leave per annum.
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(d) To be entitled to paid personal leave during a period the
Executive must:
(i) give the Company notice that the Executive is (or
will be) absent from the Employment during the period
because of the Executive's illness or the Executive's
injury, or to care for a member of the Executive's
immediate family or household. The notice must be
given to the Company as soon as reasonably
practicable; and
(ii) for periods of paid personal/carer's leave of two
days or more, provide the Company with either a
medical certificate from a registered health
practitioner, or if it is not reasonably practicable
for the Executive to give the Company a medical
certificate, a statutory declaration made by the
Executive.
(e) If at the time the Employment ends the Executive has untaken
accrued paid personal leave, the Executive is not entitled to
any payment in respect of that untaken leave.
7.3 PUBLIC HOLIDAYS
The Executive is entitled to public holidays prescribed by the State of
Delaware, United States of America and Australia.
7.4 UNPAID CARER'S LEAVE
(a) The Executive is entitled to a period of up to two days'
unpaid carer's leave for each occasion when a member of the
Executive's immediate family, or a member of the Executive's
household, requires care or support because of:
(i) a personal illness, or injury, of the member; or
(ii) an unexpected emergency affecting the member.
(b) Notice of unpaid carer's leave must be given to the Company as
soon as reasonably practicable.
7.5 UNPAID PARENTAL LEAVE
The Executive is entitled to unpaid parental leave in accordance with
the provisions of the laws of the State of Delaware.
7.6 COMPASSIONATE LEAVE
(a) The Executive is entitled to two days' paid leave for each
permissible occasion.
(b) A permissible occasion is the death, serious injury or serious
illness of the Executive's immediate family or a member of the
Executive's household.
(c) Notice of compassionate leave must be given to the Company as
soon as reasonably practicable.
7.7 LONG SERVICE LEAVE
The Executive is entitled to long service leave in accordance with
applicable legislation.
7.8 DISCRETIONARY LEAVE
All leave in addition to the leave entitlements outlined in this clause
is at the discretion of the Company, including as to whether any such
additional leave, if any, is paid or unpaid.
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7.9 ACCIDENT COMPENSATION LEAVE
(a) In the event of a claim for accident compensation being
brought by the Executive, the Company shall pay the difference
between compensation benefits available under the appropriate
State and/or Federal legislation and the Salary for a maximum
period of 52 weeks. The Executive may utilise accrued leave
credits for absences beyond the period for which compensation
is made. Leave without pay may be granted where entitlements
to paid leave have been exhausted.
(b) Payments made under clause 7.9(a) shall cease on the date:
(i) on which the Executive is fit to resume duty;
(ii) that the Executive receives a disability benefit from
a retirement plan; or
(iii) on which a lump sum redemption is received, whichever
comes first.
(c) The Executive is obliged to refund any make-up pay received if
the Executive receives a settlement sum in a civil claim which
specifically compensates the Executive for make-up payments.
8. Policies and procedures
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(a) The Company, in order to comply with its legal obligations and
employment best practice, will from time to time introduce
policies and procedures with respect to, for example,
workplace surveillance (including email and internet usage),
anti-discrimination, equal employment opportunity and
occupational health and safety.
(b) The Executive agrees to read and become familiar with such
policies and procedures and comply with them and encourage
others to do likewise.
(c) These policies and procedures do not form part of this
Agreement and are not incorporated into the terms and
conditions of the Employment with the Company.
(d) A policy or procedure introduced by the Company may contain
provisions to redress breach of that policy. Steps taken by
the Company to redress breach of a policy or procedure by the
Executive may include warning, suspension or termination.
9. Intellectual Property
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(a) All rights of any nature in relation to Intellectual Property
developed or created by the Executive using the Company's
resources, on the Company's premises or in the course of the
Employment, whether such Intellectual Property was created
during business hours or not, will vest in the Company upon
creation, and the Executive will have no claim to or interest
of any nature in such Intellectual Property, unless otherwise
agreed in writing by the Executive and the Company.
(b) Notwithstanding clause 9(a), and to the extent possible, the
Executive shall assign to the Company all present and future
rights in relation to Intellectual Property developed or
created by the Executive using the Company's resources, on the
Company's premises or in the course of the Employment.
(c) The assignment in clause 9(b) is:
(i) without restriction as to use or territory;
(ii) in perpetuity; and
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(iii) effective without any further payment to the
Executive, whether by way of royalty or otherwise, in
consideration for the assignment.
(d) The Executive must do all things necessary to give effect to
this assignment.
(e) The Executive gives consent to the Company for all acts or
omissions (whether occurring before or after the date of this
Agreement) made in relation to any work created during the
course of the Employment, which would otherwise be an
infringement of the Executive's moral rights in the relevant
work.
10. CONFIDENTIALITY
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(a) During the Employment and at all times after the termination
of the Employment, the Executive must not, except:
(i) in the proper course of his duties;
(ii) as may be required by law; or
(iii) with the prior consent in writing of the Board,
divulge or disclose to any other person, firm or corporation
any confidential information relating to the Company or the
30DC Group, being specifically any raw data, technology, or
process which is confidential or of a sensitive nature and not
already in the possession of the Executive prior to the
Employment or in the public domain, or any trade secrets of
which he may become possessed whilst employed in any way
whatsoever by the Company (collectively referred to as the
CONFIDENTIAL INFORMATION).
(b) The Executive must not use or attempt to use the Confidential
Information in any manner which will or may cause or be
calculated to cause injury or loss to the Company or the 30DC
Group.
(c) During the Employment, the Executive must use his best
endeavours to prevent the unauthorised disclosure of any of
the Confidential Information by or to third parties.
(d) The provisions of clauses 10(a) and 10(b) of this Agreement
will continue to apply after termination of the Employment
without limitation in point of time but will cease to apply to
information or knowledge which may come into the public
domain, other than by breach by the Executive of this
Agreement.
(e) Since any breach of the provisions of clauses 10(a), 10(b) and
10(c) of this Agreement may diminish the value of the
Confidential Information, the Executive acknowledges that the
Company, for itself and on behalf of the 30DC Group, will be
entitled to equitable relief, including but not limited to
injunctive relief and specific performance, without showing or
proving actual damages sustained by the Company or the 30DC
Group and the Executive also acknowledges that the Company and
the 30DC Group will also be entitled to money damages.
11. CONFLICT OF INTEREST
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(a) The Executive must at the earliest opportunity, disclose in
writing to the Board any financial, legal, professional or
personal interest that may conflict with the conduct of his
duties or responsibilities under this Agreement or with the
business of the Company and the 30DC Group.
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(b) The Executive may, with the prior written consent of the
Board, engage in activities outside the Employment where:
(i) the Executive's involvement in such activities does
not affect the performance of his official duties;
(ii) there is no conflict of interest;
(iii) there is no inconvenience to the Company; and
(iv) no Company property or resources are used for such
activities without express permission of the Board.
12. TERMINATION
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12.1 RESTRICTION ON TERMINATION
Subject to the provisions of clauses 5.3(b) and 12.2, this Agreement
may not be terminated by either party during the 24 Month period
commencing on the Commencement Date.
12.2 BY THE COMPANY WITHOUT NOTICE
(a) Where the Board decides to terminate the Employment for
reasons specified in this clause, it may do so by giving
notice effective forthwith and without payment of any salary,
allowances or incentives of any nature, other than as accrued
to the date of termination. Termination without notice may
occur in circumstances where the Executive:
(i) is or becomes incapacitated by illness or injury from
performing his duties under this Agreement for a
period of not less than three consecutive Months or
any periods aggregating not less than three Months in
any period of 12 Months;
(ii) is guilty of any serious or wilful misconduct;
(iii) is charged with any criminal offence which in the
reasonable opinion of the Board brings the Executive,
the Company or the 30DC Group into serious disrepute;
(iv) becomes prohibited by law from becoming or holding
office as a director;
(v) is or becomes bankrupt or makes a composition or
arrangement with his creditors generally or takes
advantage of any statute for the relief of insolvent
debtors; or
(vi) is or becomes of unsound mind or a person whose
person or estate is liable to be dealt with under any
law relating to mental health.
12.3 BY THE COMPANY WITH NOTICE
Subject to clause 12.1, the Company may terminate the Employment at any
time by giving six Months' notice in writing to the Executive.
12.4 BY THE EXECUTIVE WITH NOTICE
Subject to clause 12.1, the Executive may terminate the Employment by
giving six Months' notice in writing to the Company. If the Executive
does not give the required period of notice then the Company may
withhold money equivalent to the Executive's remuneration for the
shortfall in the required period of notice, on the basis that amount be
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forfeited by the Executive to the Company.
12.5 CONSEQUENCES OF TERMINATION
Where either the Executive or the Company gives notice of termination
of the Employment, on the date that notice is given or at any time
after that during the currency of the notice, the Company may do any of
(a), (b) or (c) below:
(a) pay the Executive a lump sum equal to at least the total of
all amounts that, if the Employment had continued until the
end of the required period of notice, the Company would have
become liable to pay to the Executive because of the
Employment continuing during that period. If the Company makes
that payment then the Employment terminates on tender by the
Company to the Executive of that lump sum;
(b) require the Executive to not attend for work (for the balance
of the period of the notice); or
(c) require the Executive to continue to attend for work or to
work from another place (for the balance of the period of the
notice) but to perform duties that are different to those the
Executive were required to perform at times during the
Employment, providing the Executive has the necessary skills
and competencies to perform those duties.
12.6 BOARD REACTION TO TERMINATION
If at any time either the Company or the Executive gives the other
notice of termination of the Employment, the Board will immediately be
entitled to:
(a) require the Executive to resign from his position. The
Executive irrevocably appoints the company secretary of the
Company as his attorney to provide his resignation on his
behalf;
(b) appoint, with effect from such date as may be designated by
the Board, another person to undertake, as successor to the
Executive, the duties and responsibilities that were being
carried out by the Executive immediately prior to the date
upon which any such notice of termination is given; and
(c) require the Executive to assist any person appointed as his
successor to carry out the duties and responsibilities of
Chief Executive Officer and to perform all such tasks and
provide all such assistance to the successor as the Board may
deem necessary and for such period within the six Month period
of notice as the Board may determine to ensure an orderly
handover of the Executive's duties and responsibilities to the
successor.
12.7 RETURN OF COMPANY PROPERTY
The Executive expressly covenants that he shall immediately upon the
termination of the Employment deliver up to the Company all
correspondence, documentation, specifications, papers, records
(including for the avoidance of doubt all records held in electronic
format) and all other property of the 30DC Group which may be in his
possession or under his control and the Executive warrants that no
copies of any such correspondence, documentation, specifications,
papers, records or other property shall be retained by him.
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13. REAPPOINTMENT
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13.1 REAPPOINTMENT
Subject to clause 13.2:
(a) at least six Months prior to the expiration of the Term, the
Company and the Executive shall confer with the view to
reaching agreement as to whether the Executive shall be
re-appointed for a further term, and if so, on the terms for
re-appointment; and
(b) each party shall advise the other no later than four Months
(or such other period as may be agreed in writing) prior to
the expiration of the Term of their decision regarding
re-appointment pursuant to clause 13.1(a).
13.2 FURTHER AGREEMENT
Upon agreement in relation to re-appointment of the Executive in
accordance with this clause 13:
(a) the Executive shall enter a further agreement on termination
or completion of this Agreement;
(b) the continued service of the Executive shall be recognised
under the new agreement so as to avoid any break of service;
and
(c) any accrued or pro-rata entitlements shall be carried forward
into the new agreement.
14. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURE
--------------------------------------------------------------------------------
14.1 DISPUTE
If any dispute arises out of this Agreement (DISPUTE), a party to the
Agreement must not commence any court or arbitration proceedings unless
the parties to the Dispute have complied with the following provisions
of this clause 14, except where a party seeks urgent interlocutory
relief.
14.2 NOTICE OF DISPUTE
A party to this Agreement claiming that a Dispute has arisen out of or
in relation to this Agreement must give written notice (NOTICE) to the
other party to this Agreement specifying the nature of the Dispute.
14.3 DISPUTE RESOLUTION
If the parties do not agree within seven days of receipt of the Notice
(or such further period as agreed in writing by them) as to the:
(a) dispute resolution technique (e.g. expert determination) and
procedures to be adopted;
(b) timetable for all steps in those procedures; and
(c) selection and compensation of the independent person required
for such technique, the parties must mediate the Dispute in
accordance with the mediation rules of the State of Delaware,
and the mediator will be selected by the Superior Court of
Delaware from the Superior Court's Mediator's List.
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15. NOTICES
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(a) A party must ensure that a notice it sends under this
Agreement is in writing.
(b) Subject to the requirements for service in any relevant
legislation, a notice is deemed to be given:
(i) if sent by hand, at the time of delivery;
(ii) if sent by facsimile transmission, at the time
recorded on the transmission report;
(iii) if sent by e-mail, subject to the sending party
receiving proof of a successful transmission, on the
Business Day it is sent;
(iv) if the notice is sent by prepaid post, seven Business
Days after posting; and
(v) if the notice is sent by registered mail, seven
Business Days after the sender sends the notice.
(c) Clause 15(b)(ii) does not apply if:
(i) the intended recipient promptly informs the sender
that the transmission was received in an incomplete
or garbled form; or
(ii) the transmission report of the sender indicates a
faulty or incomplete transmission.
(d) If delivery or receipt is not on a Business Day or if receipt
is later than 5.00 pm, local time at the place of delivery,
then the notice is deemed to have been delivered and received
on the next Business Day.
(e) Subject to clause 15(g), a party must address a notice as
follows:
If to the Executive:
Address: 00 Xxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 0000
Xxxxxxxxx
Email: xxxxxx@xxx.xxx
Attention: Xxxxxx Xxxx
If to the Company:
Address: 30DC, INC.
00 Xxxxxxxxx Xxxx
Xxxxxx Xxxxx XXX 0000
XXXXXXXXX
Facsimile: x00 0 0000 0000
Email: xxxxxxx.xxxxx@xxxxxxxxxxxxxx.xxx.xx
Attention: Xxxxxxx Xxxxx
(f) A party must notify the other party that it has changed its
address.
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(g) A party must send a notice to the other party's last notified
address.
(h) Despite anything in this clause 15, a party does not
effectively send a notice if that party knows that the
intended recipient will not see the notice for the whole or a
substantial part of the period in the notice.
16. GENERAL PROVISIONS
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16.1 GOVERNING LAW
This Agreement is governed by the laws of the State of Delaware, United
States of America.
16.2 ENTIRE AGREEMENT
(a) This Agreement contains the entire understanding between the
parties in relation to its subject matter.
(b) There are no express or implied conditions, warranties,
promises, representations or obligations, written or oral, in
relation to this Agreement other than those expressly stated
in it or necessarily implied by law.
16.3 NO RELIANCE
The Executive acknowledges that the Executive has entered into this
Agreement without relying on any representation by the Company.
16.4 NO WAIVER
(a) No failure, delay, relaxation or indulgence by a party in
exercising any power or right conferred upon it under this
Agreement will operate as a waiver of that power or right.
(b) No single or partial exercise of any power or right precludes
any other or future exercise of it, or the exercise of any
other power or right under this Agreement.
16.5 SEVERABILITY
If any provision of this Agreement is invalid, void or unenforceable,
all other provisions which are capable of separate enforcement without
regard to an invalid, void or unenforceable provision are and will
continue to be of full force and effect in accordance with their terms.
16.6 BINDING NATURE
This Agreement binds and inures for the benefit of the parties, their
respective successors (including, in the case of natural persons, their
legal personal representatives) and permitted assigns.
16.7 NO VARIATION
This Agreement may not be varied except by written instrument executed
by the parties.
16.8 NO ASSIGNMENT
The Executive may not without the prior written consent of the Company
assign or encumber all or any part of his rights under this Agreement
or attempt or purport to allow another person to assume the Executive's
obligations under this Agreement.
16.9 COUNTERPARTS
(a) The parties may execute this Agreement in two or more
counterparts.
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(b) The parties deem that each counterpart is an original.
(c) All counterparts together constitute one instrument.
16.10 EXTENT THAT THE LAW PERMITS
The terms of this Agreement apply to the extent the law permits.
16.11 SPECIFIC PERFORMANCE
The parties agree that:
(a) damages for breach of this Agreement are inadequate; and
(b) a party is entitled to specific performance or injunctive
relief or both.
16.12 CUMULATIVE RIGHTS
A party's rights under this Agreement are in addition to the rights of
the parties at law.
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SCHEDULE
ITEM 1 June 2009
Commencement Date
ITEM 2 The period of three years from the Commencement Date
Term
ITEM 3 00 Xxxxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx 0000 Xxxxxxxxx
Principal Place of Work
ITEM 4 The Executive's key areas of responsibility will include:
Key areas of responsibility
1. devoting his time and attention, including during the Company's
normal business hours, to the business and to the conduct of the
affairs of the Company and the 30DC Group, as he may be directed;
2. using his best and reasonable efforts to promote the interests of
the Company, the 30DC Group and associated entities to aid the
profitable operation of the Company and the 30DC Group;
3. reporting to the Board of the Company; and
4. leading and managing the day-to-day operations of the 30 Day
Challenge Business, the Immediate Edge Business and the Facebook
Applications Business as the Company may direct and any other related
work that shall reasonably be requested by the Board
ITEM 5 US$250,000
Salary
ITEM 6 US$250,000 + US$ =
Employment Cost US$
1. If the revenue of the 30DC Group in any year of the Employment
ITEM 7 calculated from the Commencement Date is doubled, the Company shall
Performance bonus issue to the Executive that number of shares in the Company
comprising 50% of the Salary.
2. The Executive will be entitled to participate in any senior
executive stock option plan adopted by the Company on listing on
the OTC Bulletin Board.
3. The Executive will be entitled to other such benefits and incentive
payments, as may be deemed appropriate by the Company and the 30DC
Group
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EXECUTED AS AN AGREEMENT
SIGNED for and on behalf of 30DC, INC. by )/s/ Xxxxxxx Xxxxx
its authorised officer: )...................................
Director
Xxxxxxx Xxxxx
..................................
(Print) Full Name
SIGNED by XXXXXX XXXXX XXXX )
in the presence of: )
/s/ Xxxxxx Xxxx Xxxxxxxxxx /s/ Xxxxxx Xxxxx Xxxx
....................................... .....................................
Signature of Witness Signature of XXXXXX XXXXX XXXX
Xxxxxx Xxxx Xxxxxxxxxx 00 Xxxxxxxxx Xxxx, Xxxxxx Xxxxx
....................................... .....................................
(Print) Name of Witness Address
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