Employment Agreement - eUniverse Inc. and Martin Hamilton
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
October 25, 1999, by and between eUniverse, Inc., a corporation organized under
the laws of the State of Nevada (the "Company"), and Martin Hamilton of Chicago,
Illinois, an individual (the "Employee").
WHEREAS, the Company desires to employ the Employee, and the Employee
desires to accept such employment, on the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. TERM OF EMPLOYMENT.
Subject to the terms and conditions of this Agreement, the Company
hereby employs the Employee and the Employee hereby accepts employment with the
Company pursuant to this Agreement commencing on October 25, 1999 (the
"Commencement Date"). The Employee's employment by the Company shall be pursuant
to the terms of this Agreement. The Employee shall be an employee-at-will,
without a specified term of employment and his employment may be terminated by
the Company at any time with or without "Cause" (as such term is defined in
Section 11(a) below).
As used herein, the term "Employment Period" shall mean the entire
period of time that the Employee is employed by the Company.
2. POSITION; DUTIES AND PLACE OF EMPLOYMENT.
(a) The Company hereby employs the Employee as a Vice President and its
Chief Technical Officer. The Employee shall report to the Chief Executive
Officer ("CEO") of the Company; provided, however, that the Company, in its sole
discretion, shall have the right to make changes in the Employee's reporting
assignment. The Employee shall render to the Company such services as are
typically associated with the position in which he is employed, including,
without limitation the duties set forth on Exhibit "A" attached hereto, and any
other services that the Company may reasonably require of him.
(b) The Employee shall perform his duties faithfully, diligently and to
the best of his ability in accordance with the reasonable directions and orders
of the person to whom he reports, and the Company's Board of Directors, or their
designees, and shall devote such time, efforts and attention to the business and
affairs of the Company as may reasonably be required to achieve its objectives
and to perform the duties required hereunder. The Employee shall devote
substantially all of his working time, efforts and attention for the benefit of
the Company and to the performance of his duties and responsibilities under this
Agreement.
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(c) The Employee shall not render to others any service of any kind for
compensation without the prior approval of the Chief Executive Officer of the
Company, which approval shall be at his sole discretion to grant or deny. The
Employee will not engage in any activity, including any ownership interest,
which conflicts or interferes with the performance of duties hereunder or usurps
the business interests, existing or potential, of the Company.
(d) The place of employment of the Employee shall be at Wallingford,
Connecticut provided, however, that the Company, in its discretion, shall have
the right to assign the Employee to another location. At any time that the
Company deems it to be appropriate, the Employee shall temporarily work at such
other place or places as may be determined by the Company.
3. COMPENSATION.
(a) The Company shall pay the Employee, as compensation for Employee's services
and his compliance with this Agreement, a salary of $100,000 per annum. On an
annual basis, the Company shall review the Employee's performance and other
relevant factors relating to salary, and at the time of such review, the salary
may be increased as determined in the sole discretion of the Compensation
Committee of the Board of Directors of the Company.
(b) Pursuant to the Company's 1999 Stock Awards Plan, Employee shall be
granted one hundred fifty thousand (150,000) options at a purchase price equal
to the closing price per share of the Company's common stock as reported on the
OTC Electronic Bulletin Board on the date first above written.
4. BENEFITS.
The Employee shall be entitled to take a maximum of four (4) weeks of
vacation days during each calendar year. In, and only in, the first year of
Employee's employment under this Agreement, such vacation days may be taken in
four (4) consecutive weeks beginning in February 2000.
The Company shall provide the Employee with coverage pursuant to a
medical plan, which shall be selected by the Company in its sole discretion. The
Employee shall also be entitled to participate in all other benefit plans
provided by the Company to which Employee is eligible.
5. REIMBURSEMENT OF EXPENSES.
The Company shall reimburse the Employee up to _____ Dollars ($____) for
expenses incurred in leasing a moving van to move his household belongings in
connection with the commencement of his employment hereunder. The Company shall
reimburse the Employee for normal and reasonable business expenses incurred by
him in the course of his employment, including the reasonable costs for
transportation and accommodations when the Employee is required to travel away
from the location at which he is employed. Such reimbursement shall be subject
to the Company's standard procedures with respect to reimbursement, including
such matters as pre-approval requirements, lodging and meal allowances, and
reimbursement rates for automobile travel.
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6. CONFIDENTIALITY.
The Employee acknowledges that in connection with his employment by the
Company, he will have access to trade secrets of the Company and other
information and materials which the Company desires to keep confidential,
including customer lists, supplier lists, financial statements, business records
and data, marketing and business plans, and information and materials relating
to the Company's services, products, methods of operation, key personnel,
proprietary software and other proprietary intellectual property and information
disclosed to the Company of third parties to which the Company owes a duty of
nondisclosure (collectively, the "Confidential Information"); provided, however,
that Confidential Information does not include information which (i) is or
becomes publicly known through the lawful action of any party other than the
Employee; (ii) has been made available by the Company, directly or indirectly,
to a non-affiliated third party without obligation of confidentiality; or (iii)
the Employee is obligated to produce as a result of a court order or pursuant to
governmental action or proceeding, provided that the Employee gives the Company
prompt written notice of such requirement prior to such disclosure and
assistance in obtaining an order protecting such Confidential Information from
public disclosure. The Employee covenants and agrees that, both during and after
the Employment Period, he will keep secret all Confidential Information and will
not disclose, reveal, divulge or otherwise make known any Confidential
Information to any person (other than the Company or its employees or agents in
the course of performing his duties hereunder) or use any Confidential
Information for his own account or for the benefit of any other individual or
entity, except with the prior written consent of the Company.
7. OWNERSHIP OF INTELLECTUAL PROPERTY.
The Employee agrees that all inventions, copyrightable material,
software, formulas, trademarks, trade secrets and the like which are developed
or conceived by the Employee in the course of his employment by the Company or
on the Company's time or property (collectively, the "Intellectual Property")
shall be disclosed promptly to the Company and the Company shall own all right,
title and interest in and to the Intellectual Property. The parties expressly
agree that any and all of the Intellectual Property developed by the Employee
shall be considered works made-for-hire for the Company pursuant to the United
States Copyright Act of 1976, as amended from time to time. In order to ensure
that the Company shall own all right, title and interest in and to the
Intellectual Property in the event that any of the Intellectual Property is not
deemed a work made-for-hire (as defined in the Copyright Act of 1976) and in any
other event, the Employee hereby sells and assigns all right, title and interest
in and to all such Intellectual Property to the Company, and the Employee
covenants and agrees to affix to the Intellectual Property appropriate legends
and copyright notices indicating the Company's ownership of all Intellectual
Property and all underlying documentation to the extent reasonably appropriate,
and will execute such instruments of transfer, assignment, conveyance or
confirmation as the Company considers necessary to transfer, confirm, vest,
perfect, maintain or defend the Company's right, title and interest in and to
the Intellectual Property throughout the world.
8. COVENANT TO DELIVER BUSINESS MATERIALS AND TO REPORT.
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The Employee acknowledges and agrees that all written materials
including, without limitation, all memoranda, notes, records, reports, programs,
algorithms and other documents or codes (and all copies thereof) concerning the
business or affairs of the Company including, without limitation, the
Intellectual Property, which he created or obtained or which otherwise came into
his possession or control while employed with the Company, are property of the
Company, and the Employee shall promptly return all copies thereof to the
Company after the termination of his employment by the Company. In addition, the
Employee agrees to render to the Company such reports as it may request with
respect to the activities undertaken by him or conducted under his direction in
connection with his employment by the Company.
9. NON-COMPETITION AGREEMENT.
The Employee hereby acknowledges and recognizes that prior to the date
hereof and during the Employment Period he has been and will be privy to trade
secrets and other Confidential Information which is critical to the business of
the Company; that his services to the Company will be of special, unique and
intellectual character; and that the Company would find it extremely difficult
to replace the Employee. Accordingly, in the event the employment of the
Employee is terminated for any reason, the Employee agrees that, in
consideration of the covenants and agreements of the Company contained in this
Agreement, the sufficiency of which are hereby acknowledged by the Employee, he
will not, directly or indirectly through another person or entity, on his own
behalf or in the service of or on behalf of others, from the date hereof through
the date which is one year after the last day of the Employee's employment by
the Company (i) engage or participate in, offer, perform or provide any
services, business or products which are competitive with those provided by the
Company or its subsidiaries within the two year period immediately preceding the
date of termination of the Employee's employment by the Company, or (ii)
solicit, or attempt to solicit, persuade or induce any client or customer of the
Company or any of its subsidiaries to terminate or reduce it's business
relationship with the Company or any of its subsidiaries.
The Employee understands that the foregoing restrictions may limit his
ability to earn a livelihood in a business similar to the business of the
Company and its subsidiaries, but he nevertheless believes that he has received
and will receive sufficient consideration and other benefits pursuant to this
Agreement to clearly justify such restrictions. In light of his education,
skills and ability, the Employee believes that the foregoing restrictions will
not prevent him from earning a living.
10. RIGHT OF INJUNCTION.
The Employee acknowledges that the harm and injury to the Company which
would result from the breach or threatened breach of any of the provisions of
Sections 6, 7, 8 or 9 of this Agreement (the "Injunctive Sections") by the
Employee cannot be adequately compensated for in money damages. The Employee
further acknowledges that any breach of any of the provisions of the Injunctive
Sections by him would cause the Company irreparable harm. Therefore, the
Employee agrees that in the event of a breach or threatened breach of any of the
provisions of the Injunctive Sections by him, the Company in a lawsuit seeking
an injunction restraining the Employee from such actual or threatened breach,
shall not be required to prove (i)
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that irreparable harm or injury would result from the breach of said Injunctive
Sections, or (ii) that the Company has no adequate remedy at law.
The Employee shall reimburse the Company for all reasonable costs and
expenses (including, without limitation, reasonable attorney's fees and
expenses) incurred in connection with the enforcement of any of the provisions
of the Injunctive Sections if it is determined that the Company was entitled to
such relief.
Nothing contained herein shall be construed as prohibiting the Company
or the Employee from pursuing any other remedies (including, without limitation,
an action for damages) which may be available for any actual or threatened
breach of any provision this Agreement, and the pursuit of an injunction or any
other particular remedy shall not be deemed to be an election of such remedy to
the exclusion of any other remedy.
11. TERMINATION OF EMPLOYMENT.
(a) Termination by Company for Cause. Notwithstanding anything to the
contrary contained herein, the Company may immediately terminate the employment
of the Employee at any time for Cause (as defined below) upon written notice to
the Employee. As used herein, the term for "Cause" shall be defined as (i) the
Employee shall have committed any material breach of any of the provisions set
forth herein; provided that the Employee shall have been provided written notice
of such breach and shall not have cured or taken steps to cure such breach
within one week after receiving such notice; or (ii) the Employee shall have
committed any act of fraud or willful misconduct in connection with the
performance of his duties or obligations hereunder, or shall have been convicted
of any felony under the laws of the United States or any of its subdivisions (or
pleaded guilty or nolo contendre to any such crime) or any other crime that
relates to the Employee's services to, or employment by, the Company; or (iii)
the Employee shall have committed any material act of misfeasance, malfeasance,
nonfeasance, disloyalty, dishonesty or breach of trust to the detriment of the
Company; or (iv) the Employee shall have willfully failed to follow the
direction of his superiors or the Board of Directors of the Company to the
detriment of the Company; provided that such direction did not require that the
Employee violate any statute, rule or regulation applicable to the Employee;
provided further that the Employee shall have been provided with written notice
of such failure and shall not have cured or taken steps to cure such failure
within such one week period after receiving such notice.
(b) Termination Due to Disability. Notwithstanding anything to the
contrary contained herein, but subject to the provisions of applicable law, the
Company shall have the right to terminate the Employee's employment by the
Company if he becomes Disabled (as hereinafter defined) during the Employment
Period. As used herein, "Disabled" shall mean that the Employee has a physical
or mental condition which prevents him from performing the essential functions
required of him pursuant to this Agreement, with or without accommodation, which
condition has continued for a period of 60 consecutive business days or existed
for a total of at least 90 business days in any twelve month period as
determined in good faith by the Board of Directors of the Company.
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(c) Termination Due to Death. Notwithstanding anything to the contrary
contained herein, the Employee's employment by the Company shall terminate if he
dies during the Employment Period.
12. MISCELLANEOUS PROVISIONS.
(a) Survival of Certain Obligations. The Employee's duties and
obligations under Sections 6, 7, 8 and 9 and the Company's rights under Section
10 of this Agreement and any other provision hereof specifying an obligation or
a right of a party after the termination of Employee's employment or this
Agreement, for any reason whatsoever, shall survive such termination and shall
remain in full force and effect.
(b) Successors and Assigns; Prohibition on Assignment. This Agreement is
binding upon, and shall inure to the benefit of, the Company and its successors
and assigns. With respect to the Employee, this is an agreement for the
performance of personal services. Absent the prior written consent of the
Company, and subject to the terms of the Employee's Will and the laws of descent
and distribution, the Employee shall not assign, transfer, convey, encumber or
otherwise dispose of any of his rights under this Agreement, and likewise, he
shall not assign any of his duties or obligations under this Agreement.
(c) No Conflicts. The Employee represents and warrants to, and covenants
with, the Company that the execution and delivery by him of this Agreement do
not, and his performance of his obligations hereunder will not, constitute a
breach of any agreement, written or oral, to which he is a party or by which he
is bound.
(d) Entire Agreement. This Agreement, together with Exhibit "A",
contains all of the representations, covenants and agreements between the
parties hereto with respect to the subject matter hereof, and constitutes the
entire agreement of the parties with respect to said subject matter. This
Agreement supersedes any and all other prior or contemporaneous agreements,
whether oral or in writing, between the parties with respect to the subject
matter thereof.
(e) Construction in Favor of Validity. It is the desire and intent of
the parties hereto that the provisions of this Agreement be enforced to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any particular
provision of this Agreement shall be adjudicated by a court of competent
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or enforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
(f) Amendment and Waiver. This Agreement may not be amended or modified
except by an instrument in writing signed by the party to be bound thereby.
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No delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power or privilege hereunder. Any failure by either party hereto
to require strict performance by the other party or any waiver by any party
hereto of any term, covenant or agreement herein shall not be construed as a
waiver of any other breach of the same or any other term, covenant or agreement
herein.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut without giving effect to
any principles of conflicts of law.
(h) Notices. Any notice required or permitted to be given hereunder
shall be (a) in writing, (b) effective on the first business day following the
date of receipt, and (c) delivered by one of the following means: (i) by
personal delivery; (ii) by prepaid, overnight package delivery or courier
service; or (iii) by the United States Postal Service, first class, certified
mail, return receipt requested, postage prepaid. All notices given under this
Agreement shall be addressed to the addresses stated below, or to new or
additional addresses as the parties may be advised in writing.
IN WITNESS WHEREOF, this Agreement was executed by the undersigned as of
the date first above written.
eUniverse, Inc.
("Company")
By: /s/
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Its: CEO
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101 North Plains Industrial Road
Wallingford, Connecticut 06492
/s/
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Martin Hamilton
("Employee")
Address:
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EXHIBIT "A"
Subject to the final approval of the CEO, the Employee will be responsible for
the following:
(i) all technical operations within each division of the Company;
(ii) the continued consolidation of technical redundancies;
(iii) the preparation and submission of plans to increase efficiencies and cut
costs within the Company;
(iv) the roll up and housing of all of the technical portions of the
Company's web sites;
(v) making the Company's web sites scalable, dependable and reliable for
current and anticipated future business of the Company;
(vi) the consolidation of people and systems, including the movement or
hosting of divisional web sites.
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