CO-FOUNDER CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of the 22nd day of May, 2000, by and between ONE WORLD ONLINE.COM, INC., a
Nevada corporation (the "Company"), and David R. Nemelka, a co-founder and
individual ("Consultant").
WITNESSETH:
WHemployEREAS, the Company desires to retain the services of the
Consultant, and the Consultant desires to consult the Company, on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Company and Consultant, intending
to be legally bound, hereby agree as follows:
1. Consulting. The Company hereby engages Consultant. Consultant
accepts such engagement and agrees to perform services for the Company, subject
always to such resolutions as are established from time to time by the Board of
Directors of the Company, for the period and upon the other terms and conditions
set forth in this Agreement.
2. Term. The term of Consultant's engagement hereunder shall commence
as of the date of this Agreement, and shall continue until this Agreement is
terminated by either party, for any reason whatsoever. Sections 5 and 10 of this
Agreement shall govern the amount of any compensation and severance to be paid
to Consultant upon termination of this Agreement.
3. Position and Duties.
3.1 Service with the Company. During the term of this
Agreement, Consultant agrees to perform such consulting duties as the Company's
Board of Directors, to whom Consultant shall report, shall assign from time to
time.
4. Compensation.
4.1 Bonuses.
(a) Beginning on the date hereof, Consultant shall be
entitled to a quarterly bonus equal to (i) One and One-Half percent (1.5%) of
Shared Revenue as that term is defined in the Company's IMC Compensation Plan,
plus (ii) Two Percent (2%) of all funds received by the Company as payment for
community account membership renewal fees. Any bonus to which Consultant is
entitled under this Subsection 4.1(a) shall be (y) reduced by the amount of the
consulting fees to which the Consultant was entitled during the quarterly period
in question and (z) payable only to the extent that during the quarterly period
in question the Company has positive cash flow from operating activities both
before and after the payment of the bonus.
(b) It is expected that, in addition to the
Consultant, at least two other Company employees will be entitled to a quarterly
bonus calculated in substantially the same manner as the bonus described in
Subsection 4.1(a) (collectively, a "Bonus"). To the extent that the Bonus is
limited as a result of the Company's cash flow from operating activities, then
the amount of the such Bonus payable to all employees and/or consultants
entitled to a Bonus shall be reduced in proportion, as nearly as practicable, to
the respective amount of Bonus to which each employee/consultant is entitled
during the quarterly period in question. In the event any amount of Bonus is
reduced by reason of this Section 4.1, no amount of Bonus shall accrue to any
future quarterly or other period.
4.2 Consulting Fees. As compensation for consulting services
to be rendered by Consultant under this Agreement, the Company shall pay to
Consultant a monthly consulting fee of Twelve Thousand Dollars ($12,000.00),
less required withholdings, which shall be paid on a regular basis in accordance
with the Company's normal procedures and policies.
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5. Compensation Upon the Termination of Consultant 's Engagement by the
Company.
5.1 Compensation upon Disability. In the event that Consultant
engagement is terminated pursuant to Section 8.1, then Consultant shall be
entitled to receive Consultant 's Bonus Compensation due pursuant to Section 4.1
until the death of the Consultant.
5.2 Compensation upon Termination for Cause. In the event that
Consultant 's engagement is terminated pursuant to Section 8.3 or 8.4, then
Consultant shall be entitled to receive no compensation of any kind or amount.
5.3 Compensation upon Termination without Cause. In the event
Consultant is terminated by the Company pursuant to Section 8.5, the Company
shall pay to Consultant, as a severance allowance the Bonus Compensation due
pursuant to Section 4.1 until the death of the Consultant.
All payments required to be made by the Company to Consultant pursuant to this
Section 5 shall be paid in the manner and at the times specified in Section 4.1
hereof.
6. Confidential Information. Except as permitted or directed by the
Company's Board, Consultant shall not during the term of his engagement under
this Agreement or at any time thereafter divulge, furnish, disclose or make
accessible (other than in the ordinary course of the business of the Company) to
anyone for use in any way any confidential or secret knowledge or information of
the Company, or any predecessor or successor of the Company which Consultant has
acquired or becomes acquainted with or will acquire or become acquainted with
prior to the termination of the period of his engagement by the Company, whether
developed by Consultant or by others, concerning any trade secrets, confidential
or secret designs, processes, formulae, software or computer programs, plans,
devices or material (whether or not patented or patentable, copyrighted or
copyrightable) directly or indirectly useful in any aspect of the business of
the Company, any confidential customer or supplier lists of the Company, any
strategic or financial plans, any confidential or secret development or research
work of the Company, or any other confidential, secret or nonpublic aspects of
the business of the Company. Consultant acknowledges that the above-described
knowledge or information constitutes a unique and valuable asset of the Company
acquired at great time and expense by the Company, and that any disclosure or
other use of such knowledge or information other than for the sole benefit of
the Company would be wrongful and would cause irreparable harm to the Company
both during and after the term of this Agreement, Consultant will refrain from
any acts or omissions that would reduce the value of the use of such knowledge
or information to the Company. The foregoing obligations of confidentiality,
however, shall not apply to any knowledge or information which is now published
or which subsequently becomes generally publicly known, other than as a direct
or indirect result of the breach of this Agreement by Consultant. For purposes
of this Agreement in discussing Consultant's obligations, "Company" shall
include any subsidiaries of the Company.
7. Non-Competition; Solicitation of Customers and Solicitation of
Consultant.
7.1 Non-Competition.
(a) Consultant agrees that, during the period of his
engagement hereunder and for a period of eighteen (18) months following the
termination of his engagement with the Company for any reason, he shall not,
directly or indirectly, engage in competition with the Company within any state
in the United States, or any country, in which the Company is then conducting
its business (the "Territory") in any manner or capacity (e.g., as a management
consultant, principal, partner, officer, director, stockholder or employee) in
any phase of the Company's business as then being conducted.
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(b) Consultant further agrees that, during the term
of this Agreement and for eighteen (18) months after its termination, he will
not, directly or indirectly, assist or encourage any other person in carrying
out, directly or indirectly, any activity that would be prohibited by the above
provisions of this Section 7 if such activity were carried out by Consultant,
either directly or indirectly, and in particular Consultant agrees that he will
not, directly or indirectly, induce any employee of the Company to carry out,
directly or indirectly, any such activity.
7.2 Agreement Not to Solicit Customers. Consultant agrees that
during his engagement by the Company hereunder and for the period in which a
covenant not to compete is in effect hereunder as to Consultant, he will not,
either directly or indirectly, on his own behalf or in the service or on behalf
of others, solicit, divert or appropriate, or attempt to solicit, divert or
appropriate, to any competing business (i) any person or entity whose account
with the Company was sold or serviced by or under the supervision of Consultant
during the year preceding the termination of such engagement, or (ii) any person
or entity whose account with the Company has been directly solicited at least
twice by the Company within the eighteen (18) month period prior to the date of
termination of engagement.
7.3 Agreement Not to Solicit Employees. Consultant agrees that
during his engagement by the Company hereunder and for the eighteen (18) month
period following the termination of such engagement for any reason, he will not,
either directly or indirectly, on his own behalf or in the service or on behalf
of others solicit, divert or hire away, or attempt to solicit, divert or hire
away any person then employed by the Company or then serving as a sales
representative of the Company.
8. Termination.
8.1 Disability. Consultant 's engagement shall terminate upon
Consultant 's becoming totally or permanently disabled for a period of six (6)
months or more. For purposes of this Agreement, the term "totally or permanently
disabled" or "total or permanent disability" means Consultant 's inability on
account of sickness or accident, whether or not job-related, to engage in
regularly or to perform adequately his assigned duties under this Agreement. A
reasonable determination by the Board of Directors of the existence of a
disability shall be conclusive for all purposes hereunder. In making such
determination of disability, the Board of Directors may utilize such advice and
consultation as the Board of Directors deems appropriate, but there is no
requirement of procedure or formality associated with the making of a
determination of disability.
8.2 Death of Consultant. Consultant 's engagement shall
terminate immediately upon the death of Consultant.
8.3 Termination for Cause. The Company may terminate
Consultant 's engagement at any time for "Cause" (as hereinafter defined)
immediately upon written notice to Consultant. Such written notice shall set
forth with reasonable specificity the Company's basis for such termination. As
used herein, the term "Cause" shall mean that Consultant shall have committed a
criminal act or embezzlement.
8.4 Resignation. Consultant 's engagement shall be terminated
on the earlier of the date that is three (3) months following the written
submission of Consultant 's resignation to the Board or the earlier date such
resignation is accepted by the Board.
8.5 Termination Without Cause. The Company may terminate
Consultant 's engagement without cause upon written notice to Consultant.
Termination "without cause" shall mean termination of engagement on any basis
other than termination of Consultant 's engagement hereunder pursuant to
Sections 8.1, 8.2, 8.3 or 8.4.
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8.6 Surrender of Records and Property. Upon termination of his
engagement with the Company, Consultant shall deliver promptly to the Company
all records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof, which are the
property of the Company and which relate in any way to the business, products,
practices or techniques of the Company, and all other property, trade secrets
and confidential information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession or
under his control.
9. Assignment. This Agreement shall be assignable, in whole or in part,
by either party with the written consent of the other party, except that the
Company may, without the consent of Consultant, assign its rights and
obligations under this Agreement to any corporation, firm or other business
entity (i) with or into which the Company may merge or consolidate, or (ii) to
which the Company may sell or transfer all or substantially all of its assets or
of which 50% or more of the equity investment and of the voting control is
owned, directly or indirectly, by, or is under common ownership with, the
Company. Upon such assignment by the Company, the Company shall obtain the
assignees' written agreement enforceable by Consultant to assume and perform,
from and after the date of such assignment, the terms, conditions, and
provisions imposed by this Agreement upon the Company.
10. Injunctive Relief. Consultant agrees that it would be difficult to
compensate the Company fully for damages for any violation of the provisions of
this Agreement, including without limitation the provisions of Sections 6, 7,
8.6. Accordingly, Consultant specifically agrees that the Company shall be
entitled to temporary and permanent injunctive relief to enforce the provisions
of this Agreement. This provision with respect to injunctive relief shall not,
however, diminish the right of the Company or Consultant to claim and recover
damages in addition to injunctive relief.
11. Miscellaneous.
11.1 Governing Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of Utah.
11.2 Prior Agreements. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understanding with respect to such subject matter, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
11.3 Withholding Taxes. The Company may withhold from any
benefits payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
11.4 Amendments. No amendment or modification of this
Agreement shall be deemed effective unless made in writing signed by the parties
hereto.
11.5 No Waiver. No term or condition of this Agreement shall
be deemed to have been waived nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
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11.6 Severability. To the extent any provision of this
Agreement shall be invalid or unenforceable, it shall be considered deleted here
from and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect. In furtherance and not
in limitation of the foregoing, should the duration or geographical extent of,
or business activities covered by any provision of this Agreement be in excess
of that which is valid and enforceable under applicable law, then such provision
shall be construed to cover only that duration, extent or activities which may
validly and enforceably be covered. Consultant acknowledges the uncertainty of
the law in this respect and expressly stipulates that this Agreement shall be
given the construction which renders its provisions valid and enforceable to the
maximum extent (not exceeding its express terms) possible under applicable law.
11.7 Survival. Sections 6, 7, 8, 9 and 10.6 shall survive
termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed and sealed this Agreement
as of the day and year set forth above.
ONE WORLD ONLINE.COM, INC.
By /s/ David N. Nemelka
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David N. Nemelka
Its CEO
/s/ David R. Nemelka
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David R. Nemelka
"Consultant"
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