Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of this15th day of
January, 2004, by and between Faraday Financial, Inc., a Delaware corporation,
hereinafter referred to as the "Company" and Xxxxx X. Xxxxxx, hereinafter
referred to as "Employee."
WHEREAS, the Company and Employee desire that the term of this
Agreement begin on February 1, 2004("Effective Date").
WHEREAS, the Company desires to employ Employee as its President and
Employee is willing to accept such employment by the Company, on the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the parties hereto
agree to the terms and conditions set forth below.
1. EMPLOYMENT:
The Company and Employee hereby confirm the Company's employment of
Employee for the period and upon the terms and conditions hereinafter set forth.
2. TERM:
Employee's employment is at-will, meaning that either Employee or
Company may terminate the employment relationship at any time for any reason or
no reason (the "Term").
3. TITLE AND DESCRIPTION OF DUTIES:
Employee shall serve as the President of the Company and will report
directly to the Company's Board of Directors. During his employment, Employee
shall perform the duties and bear the responsibilities commensurate with his
position, as directed by the Company's, Board of Directors and shall serve the
Company faithfully and to the best of his ability. Employee shall not engage in
any other business activity or activities that require personal services by
Employee that, in the judgment of the Board of Directors, conflicts with the
proper performance of Employee's duties hereunder. Employee further agrees not
to work for any competitive enterprise during his employment, including after
hours.
4. OWNERSHIP OF WORK PRODUCT:
The Company shall own all copyrights, patents, trade secrets, or other
intellectual property rights associated with any ideas, concepts, techniques,
inventions, processes, or works of authorship developed or created by Employee
during the course of performing work for the Company (collectively, the "Work
Product"), but excludes all ideas, concepts, techniques, inventions, processes,
or works of authorship developed or created by Employee during the term hereof
that do not relate to the business of the Company (the business of the Company
includes providing wireless broadband service to various locations in the United
States and identifying companies that could be acquired by the company in a roll
up of their industry). Work Product shall belong exclusively to the Company and
shall, to the extent possible, be considered work made for hire for the Company
within the meaning of Title 17 of the United States Code. Employee automatically
assigns, at the time of creation of applicable Work Product, without any
requirement of further consideration, any right, title, or interest it or they
may have in such Work Product, including any copyrights or other intellectual
property rights pertaining thereto. Upon request of the Company, Employee shall
take such further actions, including execution and delivery of instruments of
conveyance, as may be appropriate to give full and proper effect to such
assignment. Employee further agrees to provide to Company the assistance and
documentation required in the procurement of intellectual property.
5. BASE SALARY:
During the Term of this Agreement, the Company shall pay Employee a
minimum salary on an annualized basis of forty eight thousand dollars ($48,000),
payable in monthly installments of four thousand dollars ($4,000) and in
accordance with the Company's payroll schedule and subject to all applicable
withholdings and deductions.
6. INCENTIVE COMPENSATION:
In addition to the base salary described in Section 5, the Company may
pay to Employee a discretionary bonus or other incentive compensation, as
determined by the board of directors [and/or the president].
7. BENEFITS:
In addition to the base salary described in Section 5 and any other
Company benefits and deferred compensation plans as are now generally available
or later made generally available to employees of the Company, the Company shall
provide Employee, during the Term, with the following Employee benefits:
7.1 Medical Insurance. Employee shall be eligible to
participate in the medial insurance plan as is generally available to employees
of the Company. The medical insurance premiums will be fully paid by the
Company.
7.2 Vacation. Employee shall be entitled to two (2) weeks of
paid vacation during each twelve-month period. Vacation days shall be taken at
times mutually satisfactory to the Company and Employee. Unused vacation time
shall not accrue from year to year.
7.3 Expense Reimbursement. Employee is authorized to incur
reasonable business expenses in promoting the business of the Company, including
expenses for travel, entertainment and similar items. The Company shall
reimburse Employee for all such reasonable expenses upon the presentation by
Employee of an itemized accounting and reasonable supporting documentation of
such expenses.
7.4 Disability Insurance. Employee shall be eligible to
participate in any disability insurance plan as is generally available to
employees of the Company. The disability insurance premiums will be fully paid
by the Company.
7.5 Director & Officer Insurance. Employee will be covered by
Director & Officer Insurance that the Board of Directors deems adequate.
8. TERMINATION:
Employee's employment is at-will, meaning that either Employee or
Company may terminate the employment relationship at any time for any reason or
no reason. In furtherance and not in limitations of the foregoing, if Employee
brings materials that the Company's board of directors determines are
pornographic or if Employee places or causes such materials to be placed on any
Company computer then the Employee may be immediately terminated.
9. DEATH:
If Employee dies during the Term of this Agreement, the Company shall
promptly pay to the estate of Employee all compensation and bonuses due him upon
the date of his death. The term of employment shall be deemed terminated on the
date of death.
10. COVENANT NOT TO COMPETE:
10.1 Factual Background. The Company expects to invest
considerable time, effort, and capital in enhancing the value and desirability
of the skills of its officers and technical personnel. Both this investment and
Employee's individual compensation reflect the Company's expectation of
receiving a considerable return from the exclusive use of Employee's services
and know-how in the future, free from any danger that the Company's competitors
may attempt to induce Employee to leave the Company and wrongfully gain the
benefit of the Company's investment. The partial restraint set forth in
2
paragraph 10.2 hereof does not, and cannot, provide complete protection for the
Company's investment, development efforts, product strategy, and proprietary
information, but the Company believes that in combination with the other
provisions of this Agreement, it is the most fair and reasonable measure
permitted under applicable law to protect the Company's interests, giving due
regard to both Employee's interests and the interests of the Company.
10.2 Covenant Not to Compete. Employee agrees that for a
period of two years (2) following the termination of Employee's employment,
Employee may not compete with the Company in the United States or in such other
markets that the Company targeted to enter during the Term of this Agreement by
engaging in any business that is directly or indirectly engaged in the
development and/or commercialization of products or processes involving
broadband, wireless or such other businesses that the Company is engaged in
during Employee's employment with the Company. In addition, during said 2 year
period Employee agrees not to induce, entice, hire or attempt to hire or employ
any employee of the Company.
10.3 Post Termination Employment. Employee acknowledges that
(i) in the event this Agreement terminates for any reason, Employee will be able
to earn a livelihood without violating the above restrictions; and (ii) that
Employee's ability to earn a livelihood without violating such restrictions is a
material condition to employment with the Company.
10.4 Injunctive Relief. Employee further acknowledges (i) that
compliance with paragraph 10.2 above is necessary to protect the business and
goodwill of Employer; and (ii) that a breach of those sections will irreparably
and continually damage Employer for which money damages may not be adequate.
Consequently, Employee agrees that, in event of a breach or a threat to breach
any of these covenants, Employer shall be entitled to both (i) a preliminary or
permanent injunction in order to prevent the continuation of such harm and (ii)
money damages insofar as they can be determined. Nothing in this Agreement,
however, shall be construed to prohibit Employer from also pursuing any other
remedy, the parties having agreed that all remedies shall be cumulative. Without
limiting the foregoing, as such money damages for the period of time during
which Employee violates these covenants, Employer shall be entitled to recover
the amount of fees, compensation or other remuneration earned by Employee from
any such breach.
10.5 Scope of Restraint Post-Termination Competition. The
parties have attempted to limit Employee's right to compete only to the extent
necessary to protect the Company from unfair competition. The parties recognize,
however, that reasonable people may differ in making such a determination.
Consequently, the parties hereby agree that if the scope or enforceability of
the restrictive covenant is in anyway disputed at any time, a court or trier
fact may modify and enforce the covenant to the extent it believes to be
reasonable under the circumstances existing at the time.
11. COVENANT REGARDING CONFIDENTIAL INFORMATION:
11.1 Confidential Information Defined. For purposes of this
Agreement, "Confidential Information" is any information, including, but not
limited to, technical or non-technical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans, or lists of actual or potential customers or
suppliers that: (1) derive economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from their disclosure or use and (2)
are the subject of efforts that are reasonable under the circumstances to
maintain their secrecy.
11.2 Restrictions on Use and Disclosure of Confidential
Information. During the Term of this Agreement and for so long afterwards as the
pertinent information or data remain Confidential Information, Employee
covenants and agrees that, except as required by Employee's duties to the
Company, he will not at any time, directly or indirectly, disclose to or use for
the benefit of others, or appropriate for his own personal use, or cause to be
used by others, any Confidential Information without first obtaining the written
consent of the Company.
11.3 Return of Materials. Employee agrees that all records and
other writing of Confidential Information prepared by Employee, or which come
into his possession or control, or to which he has access, shall remain the
exclusive property of the Company. Upon the request of the Company and, in any
event, upon the termination of Employee's employment, Employee must return to
3
the Company and leave at its disposal all memoranda, notes, records, drawings,
manuals, computer programs, documentation, diskettes, and other documents or
media pertaining to the business of the Company or Employee's specific duties
for the Company, including all copies of such materials. Employee must also
return to the Company and leave at its disposal all materials involving any
Confidential Information of the Company. This paragraph 11.3 is intended to
apply to all materials made or compiled by Employee, as well as to all materials
furnished to Employee by anyone else in connection with Employee's employment.
12. MISCELLANEOUS:
12.1 Notices. Any notice or request required or permitted to
be given hereunder shall be sufficient if in writing and delivered personally or
sent by certified mail, return receipt requested, to the addressees given below
or to any other address designated by either party by notice similarly given.
Such notice shall be deemed to have been given upon the personal delivery or
such mailing thereof, as the case may be.
Notices to Company: Faraday Financial, Inc.
Attn: Xxxxx X. Xxxxxx, President
000 Xxxxx Xxxx Xxxxxx, #0000
Xxxx Xxxx Xxxx, Xxxx 00000
Notices to Employee: Xxxxx X. Xxxxxx
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
12.2 Effect of Waiver. The failure of either party to insist
on strict compliance with any of the terms, covenants, or conditions of this
Agreement by the other party shall not be deemed a waiver of that term,
covenant, or condition, nor shall any waiver or relinquishment of any right or
power at any one time or times be deemed a waiver or relinquishment of that
right or power for all or any other times.
12.3 Severability. The covenants in this Agreement shall be
construed as covenants independent of one another and as obligations distinct
from any other contract between Employee and the Company. Any claim that
Employee may have against the Company shall not constitute a defense to
enforcement by the Company of this Agreement. Moreover, it is the desire and
intent of the parties that the provisions of this Agreement shall be enforced to
the fullest extent possible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any provision or
portion of this Agreement shall be adjudicated to be invalid or unenforceable,
this Agreement shall be deemed amended to delete from it the portion adjudicated
to be invalid or unenforceable and the remaining provisions shall nevertheless
continue in full force and effect without being impaired or invalidated in any
way.
12.4 Entire Agreement; Modifications. This Agreement is the
sole and entire agreement and understanding of the parties with respect to the
arrangements herein and supersedes any and all other agreements, either oral or
in writing, between the parties hereto with respect to the employment of
Employee by the Company. No prior agreement, whether written or oral, shall be
construed to change, amend, alter, repeal, or invalidate this Agreement. Any
modification of this Agreement will be effective only if it is in writing and
signed by Employee and the Company.
12.5 Voluntary Agreement. Employee represents and agrees that
he has reviewed all aspects of this Agreement, that Employee has carefully read
and fully understands all the provisions of this Agreement, that Employee is
voluntarily entering into this Agreement, and that Employee he has had the
opportunity to review any or all aspects of this Agreement with the legal
advisor or advisors of Employee's choice before affixing his signature hereto.
12.6 The Company's Rules and Benefits. The parties acknowledge
and agree that from time to time the Company may publish rules and regulations
pertaining to employees, and may from time to time provide benefits to
employees, including Employee, all of which except as hereinafter provided,
shall become part of the terms and conditions of Employee's employment for so
4
long as such rules or regulations are deemed applicable to Employee by the
Company in its discretion. Provided, however, that in no case shall such rules,
regulations or benefits, to the extent they conflict in any way with any of the
terms or conditions of this Agreement, be considered to be a modification or
waiver of any of the terms of this Agreement. In all cases of conflict, this
Agreement shall prevail.
12.7 Construction. This Agreement shall not be construed
against the party preparing it, and shall be construed without regard to the
identity of the person who drafted it or the party who caused it to be drafted
and shall be construed as if all parties had jointly prepared this Agreement and
it shall be deemed their joint work product, and each and every provision of
this Agreement shall be construed as though all the parties hereto participated
equally in the drafting hereof; and any uncertainty or ambiguity shall not be
interpreted against any one party. As a result of the foregoing, any rule of
construction that a document is to be construed against the drafting party shall
not be applicable.
12.8 Governing Law. This Agreement shall at all times be
governed by, construed, interpreted and enforced in accordance with the laws of
the State of Utah
12.9 Survival of Obligations. All covenants, agreements,
representations, and warranties made herein shall survive the execution and
delivery of this Agreement and related documents. The covenants in Section 4 and
Sections 10 through 12 of this Agreement shall survive termination of this
Agreement, regardless of who causes the termination and under what
circumstances.
12.10 Specific Performance and Consent to Injunctive Relief.
Irreparable harm should be presumed if Employee breaches any covenant in this
Agreement. The faithful observance of all covenants in this Agreement is an
essential condition to Employee's employment, and the Company is depending upon
absolute compliance. Damages would probably be very difficult to ascertain if
Employee breached any covenant in this Agreement. This Agreement is intended to
protect the proprietary rights of the Company in many important ways. Even the
threat of any misuse of the technology of the Company would be extremely
harmful, since that technology is essential to the business of the Company. In
light of these facts, Employee agrees that any court of competent jurisdiction
should immediately enjoin any breach of this Agreement upon the request of the
Company, and Employee specifically release the Company from the requirement of
posting any bond in connection with temporary or interlocutory injunctive
relief, to the extent permitted by law.
12.11 Related Parties. This Agreement shall inure to the
benefit of, and be binding upon, the Company and its subsidiaries and its
affiliates, together with their successors and assigns, and Employee, together
with Employee's executor, administrator, personal representative, heirs, and
legatees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
Faraday Financial, Inc.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Its: President
EMPLOYEE:
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
5
