EMPLOYMENT AGREEMENT
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AGREEMENT made as of the 13th day of December, 1999, by and between
DYNAMIC I-T, 00000 Xxxx 00xx xxxxx 000, Xxxxx Xxxxx, Xxxxxxxx (hereinafter the
"Employer"), and Xx. Xxxxxxx Xxxxx, 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, XX 00000
(hereinafter the "Employee").
In consideration of the mutual covenants herein contained, the parties
hereto have agreed and do agree as follows:
1. SERVICES.
Employer hereby employs Employee and Employee hereby agrees to
perform professional services as an executive director of Employer with primary
responsibility for the Distance Education division of Employer. Notwithstanding
the foregoing Employee shall also perform other duties, commensurate with
Employee's position as an executive director, that Employer may, in good faith,
determine are in the best interests of Employer provided such additional duties
do not materially interfere with Employee's primary area of responsibility.
2. COMMENCEMENT AND TERMINATION.
(a) TERM. The term of this Agreement shall commence on February 1,
2000 and shall continue, unless sooner terminated, for a period of two years.
The term shall consist of one employment cycle of one hundred four (104) weeks
per cycle (herein called a "cycle") and shall automatically terminate at the end
of the term unless extended by mutual agreement of the parties.
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(b) FIRST NEGOTIATION. If Employer desires to continue to utilize
Employee's services after the expiration of this Agreement, Employer shall so
notify Employee, in writing, at least ninety (90) days prior to the expiration
of the term of this Agreement. Upon such written notification, for at least the
following sixty (60) days, Employee shall negotiate in good faith exclusively
with Employer concerning continuation of Employee's services to Employer in the
period following expiration of this Agreement.
(c) NON-COMPETE. Employee is familiar with the business of Employer, the
commercial and competitive nature of the industry, and recognizes the
substantial commitment Employer has made and will continue to make in developing
its distance education programs, and Employee further recognizes that the value
of Employer's business would be injured if Employee obtained competitive
employment within Employer's market. It is therefore agreed that after this
Agreement expires, for a period of three (3) months, Employee shall not enter
into the employ of nor perform services for any Employer engaged in distance
education on the internet. In the event that Employer terminates this agreement,
whether or not entitled to do so and regardless of whether Employee has
commenced proceedings seeking redress for wrongful termination the foregoing
period shall not apply and Employee shall be free to accept employment
regardless of its competitive nature. The compensation contained in Paragraph 3
of this Agreement serves as full consideration for this covenant not to compete.
This provision shall not apply to Employee's services as a non-executive
director.
(d) TERMINATION OF EMPLOYMENT. Any termination of this Agreement, whether by
expiration or otherwise as provided hereunder, shall also constitute a
termination of employment with Employer, unless a successor agreement is
executed or employment otherwise continues as provided below. Severance and
other termination benefits shall be governed as set forth herein. If, by the
expiration date of this Agreement, no successor agreement is executed by
Employee and Employer and, at Employer's request, Employee continues to provide
Employee's services to Employer, any such continued employment of Employee by
Employer shall be month to month, terminable at the will of either party for any
reason and with only the lesser of thirty days notice or such notice as may be
required by any governing laws. Unless otherwise expressly agreed to in writing
by Employer, compensation and other terms and conditions of such month to month
employment shall be governed solely by the terms of this agreement. Further, the
time periods referred to in the Non-Compete clause set forth in this Agreement
shall be deemed to commence pursuant to the provisions contained in Paragraphs
2(c) and 2(d) unless Employee continues employment past the expiration date of
the Agreement. In that case, such time periods shall be
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deemed to commence on the date Employee's employment with Employer is ended. If
Employer does not request Employee to continue providing Employee's personal
services after expiration of this Agreement, and Employee has not advised
Employer of Employee's intention to terminate Employee's employment with
Employer upon expiration of this Agreement, then Employee's employment shall be
deemed terminated by Employer. If Employer does request Employee to continue
providing Employee's personal services after expiration of this Agreement, but
Employee declines to provide Employee's personal services, then Employee's
employment shall be deemed terminated by Employee. Employee's termination as an
executive shall not serve to terminate Employee's services as a director, each
being the subject of separate terms of employment/appointment.
3. SALARY AND BENEFITS.
(a) COMPENSATION. As full compensation for performance by Employee
of all Employee's obligations as an executive hereunder and all rights granted
herein, Employer shall pay Employee, less any deductions required by law or
otherwise mutually agreed upon, as follows:
TERM ANNUAL SALARY
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First Contract Year
February 1, 2000 to January 31, 2001 $110,000
Second Contract Year
February 1, 2001 to January 31, 2002 $110,000
Although Employee's salary is calculated on an annual basis, such
calculation does not affect the term of Employee's employment which is subject
to the terms and conditions of this Agreement. It is understood that due to the
executive nature of Employee's services rendered hereunder, Employee is exempt
from overtime requirements of any state or local regulations relating to wages
and hours.
(b) REIMBURSEMENT. Employer shall, at Employee's option either
reimburse or advance to Employee all authorized and actual out-of-pocket
transportation and reasonable expenses incurred in the performance of assigned
services outside the metropolitan area which is, from time to time, the
designated location in which Employee is to be resident. Such reimbursement or
advance shall be in accordance with Employer's policies with respect thereto.
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(c) UTILIZATION OF SERVICES. Nothing herein contained shall be
deemed to obligate Employer to use Employee's services hereunder and Employer
shall have fully discharged its obligations hereunder by payment to Employee of
the applicable compensation set forth in this Paragraph 3. In the event of
Employee's death, this Agreement shall terminate and Employer shall make all
payments accrued and not yet paid as of the date of Employee's death plus one
month. Employer may make such payments to Employee's legal representative or
representatives.
(d) VACATIONS AND HOLIDAYS. Employer agrees to provide Employee with
four weeks of vacation days during each year of this Agreement. The periods
during which Employee's vacation and "holiday" days shall occur shall be
mutually agreed upon between the parties; but in the event of any failure to so
agree, Employer shall designate such periods, and, in so doing, Employer will
endeavor to accommodate Employee. Employee's ability to carry over accrued and
unused vacation time into the next calendar year shall be subject to Employer's
policies regarding vacation carryover.
(e) BENEFITS. To the extent Employee may be entitled to participate
in any pension plan or investment plan for eligible employees of Employer, or to
participate in any other employment benefit plan, Employee's benefit bases shall
be as provided for in the applicable benefit plan. Nothing herein shall affect
the right of Employer to terminate or modify any such pension plan, investment
plan, or other benefit plan in whole or in part at any time. Notwithstanding the
foregoing Employer shall supply Employee, at Employer's cost, Standard and Major
Medical Insurance.
4. SERVICES EXCLUSIVE.
Except as otherwise provided herein, Employee's services shall be
completely exclusive to Employer during the term of this Agreement and during
such term Employee will not perform professional services of any nature for any
person, firm or corporation or on Employee's own account, except with the prior
written consent of Employer. Employee acknowledges that Employee's professional
services and the rights and privileges granted to Employer hereunder are unique,
which gives them a peculiar value, the loss of which cannot be adequately or
reasonably compensated in damages in an action at law. Employee further
acknowledges that Employee's failure to perform Employee's material obligations
hereunder, or to otherwise fail to comply with any provision of this Agreement
may cause Employer irreparable injury or damage. Employer shall be entitled to
seek injunctive and other equitable relief to prevent any breach of this
Agreement by
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Employee. Resort by Employer to injunctive or other relief, however, shall not
be considered a waiver of any other rights Employer may have against Employee
for damages or otherwise.
5. BEST EFFORTS.
Employee shall devote Employee's best talents, efforts and abilities in
connection with Employee's services hereunder. Employee shall perform the
duties and services hereunder to the best of Employee's ability subject
to the reasonable direction and control of Employer at such place or
places and at such times as Employer may from time to time determine.
Employee shall perform such duties and services on such projects as
Employer shall from time to time determine. Employee shall comply with
such rules and policies as Employer may from time to time adopt and of
which Employee has been given written notice. Any failure to comply with
such rules, policies or directions shall be deemed a breach of this
Agreement and unless cured within a reasonable time of receiving notice
of such breach shall be deemed to be material in nature.
6. WARRANTIES AND INDEMNITIES.
(a) FREEDOM TO CONTRACT. Employee warrants that Employee has the
right and power to enter into and fully perform this Agreement.
(b) EMPLOYEE'S IDEAS. Employee warrants that the ideas, creations,
literary, musical, and Employee's material and intellectual properties
(hereinafter collectively referred to as the "Materials") created or developed
by Employee hereunder will be Employee's own, original creation and/or
development, except for Materials in the public domain and Materials which
Employee is fully licensed to use, and that the Materials and use thereof will
not violate any law or infringe upon or violate any rights of any kind or nature
whatsoever of any person, firm or corporation.
(c) INDEMNITIES. Employee will at all times (notwithstanding the
expiration or termination of this Agreement) indemnify and hold harmless
Employer and any licensee of Employer and all of their parents, subsidiaries and
affiliates and all of their respective officers, directors, agents and
employees, from and against any and all claims, damages, liabilities, costs and
expenses, including, without limitation, reasonable counsel fees, arising out
of: (i) the use of any Materials furnished by Employee hereunder; (ii) any
breach by Employee of any warranty or agreement made by Employee herein; and
(iii) any acts done by Employee in connection with the
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performance of Employee's duties. Employer will at all times indemnify and hold
harmless Employee from and against any and all claims, damages, liabilities,
costs and expenses, including, without limitation, reasonable counsel fees,
arising out of the use of any materials or any acts by or services furnished by
Employer in connection with the services performed hereunder provided, however,
that Employee shall promptly notify Employer of any claim or litigation to which
the indemnity set forth in this sentence applies; and provided further, that at
Employer's option, Employer may assume the defense of any such claim or
litigation, to which the indemnity set forth in this sentence applies, in which
event Employer's obligations with respect thereto shall be limited to the
payment of any judgment or settlement approved by Employer in connection
therewith.
7. NONPERFORMANCE.
(a) BREACH. If Employee at any time breaches any material provision
of this Agreement, or at any time fails, neglects or refuses to substantially
perform any one or more of Employee's obligations hereunder and fails or refuses
to cure such breach after notice, Employer shall not be required to pay Employee
any compensation hereunder during such period of breach or non-performance and
Employer may accumulate and hold such compensation pending the resolution of any
such dispute. If the dispute is resolved in favor of Employer, Employer may
reduce the Annual Salary hereunder pro rata, and Employer may, at its election,
by so notifying Employee during or within two business days after such period:
(i) terminate this Agreement forthwith if such breach is grounds for termination
hereunder; or (ii) if such breach is based upon Employee's failure or refusal to
render services hereunder, add an equal period of time to the then current
contract year provided further, that any such action by Employer shall not serve
to be construed to be a waiver of any other right or remedy granted to Employer
herein.
(b) INCAPACITY. If in any contract year, due to a physical or mental
disability, Employee becomes unable to perform all the essential functions of
the applicable job description and/or the services to be provided pursuant to
this Agreement for a period of six or more consecutive weeks or ten weeks in the
aggregate, whichever is applicable, even with a reasonable accommodation of such
disability, Employer may suspend or terminate this Agreement at its sole
discretion, without any further obligation to Employee under this Agreement. In
the event of a suspension or termination of this Agreement pursuant to this
Paragraph 7(b), benefit plan coverage applicable to Employee will be available
to Employee to the extent provided by the terms and conditions of such plan.
Whether or not Employer suspends or terminates this Agreement, Employer will
have no obligation to, but may at its option and in its sole discretion, pay
Employee the pro rata share of Employee's Annual Salary applicable to any
portion or all of such period during which, due to any personal illness or
injury, whether or not it constitutes a disability, Employee fails
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to provide services or materials (if any) required to be furnished by Employee
pursuant to this Agreement. Should a question arise as to Employee's ability to
perform all the essential functions of the work required under this Agreement,
Employee agrees to cooperate fully in assisting Employer in making a
determination of whether a physical or mental disability affects Employee's
ability to perform those essential functions with or without a reasonable
accommodation, including, without limitation, submission to medical examinations
by licensed health care providers designated by Employer. Employee will also be
asked to help in determining if a reasonable accommodation can be made. Employer
will give Employee prompt notice of the action it intends to take upon
determining that Employee cannot perform all essential functions of the
applicable job description and/or the services to be provided pursuant to this
Agreement.
8. FORCE MAJEURE.
In the event that because of: act of God; inevitable accident; fire;
lockout, strike or other labor dispute; riot or civil commotion; act of public
enemy; enactment, rule, order or act of government or governmental
instrumentality (whether federal, state, local or foreign); failure of technical
facilities; failure or delay of transportation facilities; or other cause of
similar or different nature beyond the control of Employer, the normal business
of Employer is substantially prevented or canceled, Employer may suspend the
performance of services by Employee and the payment of compensation hereunder
during the continuation of such prevention or cancellation. Employer,
nevertheless, may not suspend Employee's services unless the services of all
other executive directors of the company are also suspended. No such suspension
shall operate to extend the term of this Agreement.
9. NAME AND LIKENESS.
Employer may, and may grant to others the right to, reproduce,
print, publish or disseminate in any medium, Employee's name, portrait, picture,
likeness and voice, and biographical material concerning Employee, as news or
information, for the purpose of trade, or for advertising purposes, including,
without limitation, "institutional" advertising (i.e., advertising designed to
create good will and prestige and not for the purpose of selling any specific
product or service), and including, without limitation, the advertising or
promotion of the programs and, in connection therewith, the products or services
of any sponsor thereof; provided, however, that no direct endorsement by
Employee of any product or service shall be used without Employee's written
consent. The rights granted in this Paragraph 9 shall continue for so long as
Employer shall have the right to use or exploit any program in any manner.
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10. CONFIDENTIALITY.
Employee acknowledges that, in the course of Employee's employment,
Employee will have access to confidential information, trade secrets, records,
data, specifications and secret inventions and other knowledge (hereinafter
collectively referred to as the "Confidential Information") owned by or in the
possession of Employer and/or its related companies. All Confidential
Information shall be and remain the property of Employer and/or its related
companies, as the case may be. Employee agrees that during and after Employee's
employment by Employer, whether pursuant to this Agreement or otherwise,
Employee shall not, without the prior written consent of Employer, disclose to
any individual or entity for any reason or purpose whatsoever, other than in the
regular course of business of Employer and/or its related companies, any
Confidential Information of Employer and/or its related companies.
11. MATERIALS.
(a) OWNERSHIP OF MATERIALS. The seminars and all elements thereof
and all recordings of the seminars, as between Employee and Employer, shall be
the sole and exclusive property of Employer and may be used, exploited,
broadcast and rebroadcast, by Employer and its licensees in any manner
(including, without limitation, the editing and re-editing of any recorded
program for rebroadcast) and in any media, throughout the world in perpetuity.
The word "broadcast" as used in this Agreement means broadcast, transmission and
exhibition by means of the internet, television (including, without limitation,
cable, closed circuit or pay television) or radio, and television and radio
devices, methods or improvements now or hereafter developed. Any program may be
produced for original broadcast in whole or in part on a live basis (which
includes, without limitation, the making of recordings thereof by Employer for
broadcast subsequent to live broadcast) or, as Employer may at any time or from
time to time elect, may be produced for original broadcast in whole or in part
by means of recording. The terms "recording" and "recordings", as used herein,
shall mean and include any recording or recordings made (whether before, during
or after a broadcast transmission) by tape, wire, film, disc, electronic
recording, computer file or any other similar or dissimilar method of recording
aural and/or visual portions of television and radio programs, whether now known
or hereafter developed, including, without limitation, the photography of such
programs on film in a manner similar to that used in the production of motion
pictures. Employer shall also have the right to assign Employee to provide
services in connection with: (i) programs produced by Employer solely for
distribution to other media outlets, including, without limitation, any
television or radio network; and (ii) any distribution outlet in Employer's
market now owned or hereafter acquired by Employer or any of its subsidiaries or
affiliates. Employer shall not be liable for payment of additional compensation
to Employee for such
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additional assignment or use and the compensation contained in Paragraph 3 of
this Agreement will constitute full consideration for all such assignments and
uses.
(b) DEVELOPMENT. All Materials created or developed by Employee
pursuant to Employee's employment hereunder (whether alone or in conjunction
with any other person), or which Employee may disclose to Employer during the
term hereof and any names, other than Employee's own, which Employer may use to
identify Employee, shall, as between Employer and Employee, be the sole and
absolute property of Employer for any and all purposes whatsoever, and Employee
agrees that Employee does not have, and will not claim to have, either under
this Agreement or otherwise, any right, title or interest of any kind or nature
whatsoever in or to such Materials or names.
12. GENERAL PROVISIONS.
(a) WAIVER. A waiver by either party of any term or condition of
this Agreement in any instance shall not be deemed or construed as a waiver of
such term or condition for the future, or of any subsequent breach thereof. All
remedies, rights, undertakings, obligations and agreements contained in this
Agreement shall be cumulative, and none of them shall be in limitation of any
other remedy, right, undertaking, obligation or agreement of either party.
(b) NOTICE. Except as otherwise specifically provided herein, all
notices hereunder shall be in writing and shall be given by personal delivery,
registered or certified mail or nationally recognized overnight courier service
(prepaid), at the respective addresses hereinabove set forth, or such other
address or addresses as may be designated by either party. Such notices shall be
deemed given when mailed or delivered to or picked up by courier, except that
notice of change of address shall be effective only from the date of its
receipt.
(c) GOVERNING LAW. The validity, interpretation and legal effect of
this Agreement shall be governed by the laws of the State of Colorado applicable
to contracts entered into and performed entirely within the State of Colorado,
with respect to the determination of any claim, dispute or disagreement, which
may arise out of the interpretation, performance or breach of this Agreement.
(d) ENFORCEABILITY. The invalidity or unenforceability of any
provision of this Agreement shall in no way affect the validity or
enforceability of any other provision of this Agreement.
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(e) ASSIGNMENT. Neither Employee nor Employer may assign this
Agreement without the prior written consent of the other, except that Employer
may assign this Agreement and any and all rights herein to any party acquiring
Employer, or to any corporation or entity owned or controlled by CBS
Corporation.
(f) ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto relating to the subject matter hereof,
superseding any previous oral or written agreements and cannot be changed or
terminated orally.
(g) HEADINGS. Paragraph titles are for convenience only and
shall not affect the interpretation of any paragraph of this Agreement.
(h) CONSTRUCTION. Each party has had an opportunity to negotiate
fully the terms of this Agreement and to consult with counsel with respect
thereto. Accordingly, any rule of construction seeking to resolve any
ambiguities against the drafting party shall not be applicable in the
interpretation of this Agreement.
(i) SEVERABILITY. Should any valid federal or state law or final
determination of any administrative agency or court of competent jurisdiction
affect any provision of this Agreement, the provision or provisions so affected
shall, to the fullest extent possible, be automatically deemed amended to give
the fullest effect possible to the original intent of the affected provision
(and if not capable of being so amended, only the provisions so affected shall
be automatically void) and this Agreement, as so amended, shall continue in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
DYNAMIC I-T
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Director
Dated: December 13, 1999
ACCEPTED AND AGREED:
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Dated: December 13, 1999
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