EXHIBIT 10.17
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the ____ day of _________, 2000, between
Global e Tutor.com, Inc., a corporation (the "Company"), and ___________________
(the "Executive").
INTRODUCTION
The Company and the Executive desire to enter into an employment
agreement embodying the terms and conditions of the Executive's employment. This
agreement will replace any prior employment agreement between the Company and
the Executive.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS
(a) "AFFILIATE" means any person, firm, corporation, partnership,
association or entity that, directly or indirectly or through one or more
intermediaries, controls, is controlled by or is under common control with the
Company, as determined by the Company.
(b) "AREA" means the State of Georgia.
(c) "BOARD OF DIRECTORS" means the Board of Directors of the Company.
(d) "BUSINESS OF THE COMPANY" means the business of providing an
Internet-based educational services community including web-based, interactive
tutoring services for K-12 students.
(e) "CAUSE" means the occurrence of any of the following events:
(1) willful and continued failure (other than such failure
resulting from his incapacity during physical or mental illness) by the
Executive to substantially perform his duties with the Company or an
Affiliate;
(2) conduct by the Executive that amounts to willful
misconduct or gross negligence;
(3) any act by the Executive of fraud, misappropriation,
dishonesty, embezzlement or similar conduct against the Company or an
Affiliate;
(4) commission by the Executive of a felony or any other act
involving dishonesty or moral turpitude;
(5) illegal drug use; or
(6) material breach of the Agreement by the Executive.
(f) "COMMENCEMENT DATE" is defined in Section 4(a).
(g) "COMPETING BUSINESS" means any person, firm, corporation, joint
venture or other business entity which is engaged in the Business of the Company
(or any aspect thereof) within the Area.
(h) "DISABILITY" means the inability of the Executive to perform any of
his duties hereunder due to a physical, mental, or emotional impairment, as
determined by an independent qualified physician (who may be engaged by the
Company) for a ninety (90) consecutive day period or for an aggregate of one
hundred eighty (180) days during any three hundred sixty-five (365) day period.
(i) "PROPRIETARY INFORMATION" means confidential information and trade
secrets related to the business of the Company or its Affiliates, or to third
parties who have entrusted the information to the Company.
(j) "TERM" is defined in Section 4(a).
(k) "TERMINATION DATE" means the date that corresponds to the first to
occur of
(i) the death or Disability of the Executive;
(ii) the last day of the Term as provided in Section 4(a)
below or
(iii) the date set forth in a notice given pursuant to Section
4(b) below.
2. TERMS AND CONDITIONS OF EMPLOYMENT.
(a) EMPLOYMENT. The Company hereby employs the Executive as its
_____________________________ . The Executive accepts such employment with
the Company in such capacity. The Executive shall report to _________________
and shall have such authority and responsibilities and perform such duties as
shall reasonably be assigned to the Executive from time to time by the
Company.
(b) EXCLUSIVITY. Throughout the Executive's employment hereunder, the
Executive shall devote substantially all the Executive's time, energy and skill
during regular business hours to the performance of the duties of the
Executive's employment (vacations and reasonable absences due to illness
excepted), shall faithfully and industriously perform such duties, and shall
diligently follow and implement all management policies and decisions of the
Company. The Company recognizes and accepts that Executive has other business
ownership interests outside of the Company, which interests he may pursue
without violating this Agreement.
3. COMPENSATION.
(a) BASE SALARY. In consideration for the Executive's services
hereunder, the Company shall pay to the Executive an annual base salary in the
amount of $___________ initially. The Company may increase the Executive's
annual base salary from time to time. The Company shall pay annual base salary
in accordance with the normal payroll payment practices of the Company and
subject to such deductions and withholdings as law or policies of the Company
require.
(b) BONUS. In addition to the annual base salary payable under Section
3(a) hereof, the Executive shall be entitled to participate in all bonus
programs generally available to all executive officers of the Company
(c) STOCK-BASED COMPENSATION. Stock options or other stock-based
compensation will be awarded to the Executive at the discretion of the Board of
Directors, or a committee thereof, pursuant to the Company's stock incentive
plan.
(d) VACATION AND SICK LEAVE. The Executive shall be entitled to
vacation and sick leave in accordance with Company policy.
(e) EXPENSES. The Executive shall be entitled to be reimbursed in
accordance with the policies of the Company, as adopted and amended from time to
time, for all reasonable and necessary expenses incurred by the Executive in
connection with the performance of the Executive's duties of employment
hereunder; provided, however, the Executive shall, as a condition of such
reimbursement, submit verification of the nature and amount of such expenses in
accordance with the reimbursement policies adopted by the Company from time to
time.
(f) BENEFITS. In addition to the benefits payable to the Executive
specifically described herein, the Executive shall be entitled to such benefits
as generally may be made available to all other employees of the Company from
time to time; provided, however, that nothing contained herein shall require the
establishment or continuation of any particular plan or program.
4. TERM, TERMINATION AND TERMINATION PAYMENTS.
(a) TERM. The term of this Agreement (the "Term") shall commence as of
the date of this Agreement (the "Commencement Date") and shall expire on the
third anniversary of the Commencement Date. Ninety (90) days before the end of
the Term and ninety (90) days before the end of each year thereafter, the
Agreement is automatically extended for an additional one-year period unless
either party gives prior notice of nonrenewal. In the event prior notice of
nonrenewal is given, this Agreement shall terminate at the end of the remaining
Term then in effect.
(b) TERMINATION. This Agreement and the Executive's employment by the
Company hereunder may only be terminated before expiration of the Term:
(1) by mutual agreement of the Executive and the Company;
(2) by the Company without Cause;
(3) by the Company for Cause; and
(4) by the Company or the Executive due to the Disability of
the Executive.
This Agreement shall also terminate immediately upon the death of the Executive.
Notice of termination by either the Company or the Executive shall be given in
writing and shall specify the basis for termination and the effective date of
termination; provided, however, that if the Company does not specify an
effective date, termination shall be immediate.
(c) EFFECT OF TERMINATION. Upon termination of this Agreement and the
Executive's employment hereunder, the Company shall have no further obligation
to the Executive or the Executive's estate with respect to this Agreement,
except for payment of salary and bonus amounts, if any, accrued pursuant to
Section 3(a) or 3(b) hereof and unpaid at the Termination Date, and payments, if
any, set forth in Section 4(d), or 4(e) hereof, as applicable, subject to the
provisions of Section 8 hereof. Nothing contained herein shall limit or impinge
any other rights or remedies of the Company or the Executive under any other
agreement or plan to which the Executive is a party or of which the Executive is
a beneficiary. If
this Agreement terminates because of the expiration of the Term, Executive will
not be entitled to any severance.
(d) TERMINATION WITHOUT CAUSE. Except as set forth in Section 4(b)(i)
hereof, upon termination of the Executive's employment by the Company without
Cause, the Company shall be obligated to continue to pay the Executive his
annual base salary at the time of termination of employment for two (2) weeks
provided that the Executive continues to provide services to the Company during
the two (2) week period. If the Executive ceases to provide services without the
consent of the Company, the Executive shall only be due such salary accrued
through the date that the Executive ceases to provide services.
(e) TERMINATION WITH CAUSE. If the Company terminates the Executive
with Cause, the Executive will be entitled to no compensation other than that
accrued pursuant to Section 3(a) or 3(b).
(f) PAYMENT UPON A DISABILITY. If the Executive's employment under this
Agreement is terminated because of the Disability of the Executive, the Company
shall be obligated to continue to pay the Executive his annual base salary to
the extent that the Executive has any unpaid sick leave.
5. PROPRIETARY INFORMATION.
(a) All Proprietary Information and all physical embodiments thereof
are confidential to the Company. All Proprietary Information, and all physical
embodiments thereof, are and will remain the sole and exclusive property of the
Company and Executive hereby assigns to the Company any right, title or interest
Executive may have in such Proprietary Information. Except to the extent
necessary to perform the Business Services, Executive may not reproduce, use,
distribute, disclose or otherwise disseminate the Proprietary Information or any
physical embodiments thereof and may in no event take any action causing, or
fail to take the action necessary in order to prevent, any Proprietary
Information disclosed to or developed by Executive to lose its character or
cease to qualify as Proprietary Information. Each reproduction of any of the
Proprietary Information must prominently contain a legend identifying its
confidential or proprietary nature.
(b) Executive represents and warrants that any information disclosed by
Executive to the Company is not confidential or proprietary to Executive or to
any third party. Accordingly, no obligation of any kind is assumed by or to be
implied against the Company by virtue of any information received (in whatever
form or whenever received) from Executive relating to the subject matter hereof,
and the Company is free to reproduce, use and disclose to others such
information without limitation.
(c) Upon request by the Company, and in any event upon termination of
the engagement of Executive with the Company for any reason, Executive will
promptly deliver to the Company all property belonging to the Company, including
without limitation all Proprietary Information (and all physical embodiments
thereof) then in its custody, control or possession.
6. RESTRICTIVE COVENANTS.
(a) Executive agrees that during the term of Executive's employment
under this Agreement and for a period of two (2) years following termination of
such employment for any reason, Executive will not, either directly or
indirectly, on Executive's own behalf or in the service of or on behalf of any
other individual or entity, divert or solicit, or attempt to divert or solicit
any person employed by the Company,
whether or not such employee is a full-time or temporary employee of the Company
and whether or not such employment is pursuant to a written agreement, for a
determined period or at will.
(b) Executive agrees that during the term of Executive's employment
under this Agreement and for a period of one (1) year following termination of
such employment for any reason, Executive will not, either directly or
indirectly, on Executive's own behalf or in the service of or on behalf of any
other individual or entity, divert or solicit, or attempt to divert or solicit,
to a Competing Business any individual or entity who is a customer or actively
sought prospective customer of the Company at any time during the two (2) year
period prior to the termination of Executive's employment with the Company with
whom Executive had contact during his or her employment under this Agreement or
regarding whom Executive has Proprietary Information.
(c) Executive agrees that during the term of Executive's employment
under this Agreement and for a period of one (1) year following termination of
such employment for any reason, Executive will not, either directly or
indirectly, on Executive's own behalf or in the service of or on behalf of any
other individual or entity, engage in a Competing Business in the Territory in
the same or similar capacity in which Executive was engaged by the Company, or
own, individually or collectively, a controlling beneficial interest in a
Competing Business in the Territory.
7. CONTRACTS OR OTHER AGREEMENTS WITH FORMER EMPLOYER OR BUSINESS.
The Executive hereby represents and warrants that he is not subject to
any employment agreement or similar document, except as previously disclosed and
delivered to the Company, with a former employer or any business with which the
Executive has been associated for which Executive's employment by the Company
and provision of services in the capacity contemplated would be a breach. For
that reason, Executive hereby represents and warrants that he is not subject to
any Agreement which on its face prohibits the Executive during a period of time
which extends through the Commencement Date from any of the following:
(i) providing services for the Company in the capacity
contemplated by this Agreement;
(ii) competing with, or in any way participating in a business
which competes with the Executive's former employer or business;
(iii) soliciting personnel of such former employer or business
to leave such former employer's employment or to leave such business;
or
(iv) soliciting customers of such former employer or business
on behalf of another business.
Executive represents and warrants to the Company that complying with
the terms of this Agreement will not violate or in any way infringe upon the
rights of third parties, (including without limitation contractual, employment,
proprietary information and nondisclosure rights) or be in violation of any
applicable law, rule or regulation.
8. REMEDIES.
(a) The Executive agrees that the covenants and agreements contained in
Sections 5 and 6 hereof are of the essence of this Agreement; that each of such
covenants is reasonable and necessary to protect and preserve the interests and
properties of the Company and the Business of the Company; that the Company is
engaged in and throughout the Area in the Business of the Company; that
irreparable loss and damage will be suffered by the Company should the Executive
breach any of such covenants and agreements; that each of such covenants and
agreements is separate, distinct and severable not only from the other of such
covenants and agreements but also from the other and remaining provisions of
this Agreement; that the unenforceability of any such covenant or agreement
shall not affect the validity or enforceability of any other such covenant or
agreements or any other provision or provisions of this Agreement; and that, in
addition to other remedies available to it, the Company shall be entitled to
specific performance of this Agreement and to both temporary and permanent
injunctions to prevent a breach or contemplated breach by the Executive of any
of such covenants or agreements.
(b) In addition to any other rights the Company may have pursuant to
this Agreement, if Executive breaches any of his obligations under Sections 5 or
6, Executive will forfeit any amounts owed to Executive under Section 4(d) or
4(e), as applicable, which have not been paid to Executive by the Company and
Executive shall immediately repay to the Company all amounts previously paid to
Executive pursuant to Section 4(d) or 4(e), as applicable.
(c) By virtue of the duties, responsibilities and special knowledge of
the affairs and operations of the Company that Executive will have as a result
of its relationship with the Company under this Agreement, great loss and
irreparable damage would be suffered by the Company if Executive should breach
or violate any of the covenants and agreements set forth in Section 5 or 6
hereof. The parties agree that each such covenant and agreement is reasonably
necessary to protect and preserve the interests of the Company, and that,
therefore, in addition to all of the remedies provided at law or in equity, the
Company will be entitled to a temporary restraining order and a permanent
injunction to prevent a breach of any of such covenants or agreements. The
Company will have the right to set off against any sums due from the Company to
Executive for damages incurred or suffered by the Company as a result of any
breach of this Agreement and any application as a set-off of any such sums will
not be considered in full satisfaction of or as liquidated damages for any such
breach. The existence of any claim, demand, or cause of action of Executive
against the Company, whether predicated upon this Agreement or otherwise, will
not constitute a defense to the enforcement by the Company of any of the
covenants or agreements herein.
8. PROHIBITION ON INSIDER TRADING.
The Executive acknowledges that, in the course of his employment, he
may receive material non-public information regarding the Company or the
Company's business partners. The Executive understands that the United States
securities laws prohibit any person who has material non-public information
about a company from purchasing or selling the securities of the company and
further prohibit any person with material non-public information from
transmitting that information to any other person under circumstances in which
it is reasonably foreseeable that such other person is likely to purchase or
sell securities. The Executive agrees not to purchase or sell securities of the
Company or the Company's business partners based on material non-public
information and further agrees not to transmit any material non-public
information to other persons under circumstances in which it is reasonably
foreseeable that such other person is likely to purchase or sell securities.
9. NO SET-OFF.
The existence of any claim, demand, action or cause of action by the
Executive against the Company, or any Affiliate of the Company, whether
predicated upon this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Company of any of its rights hereunder. The existence of
any claim, demand, action or cause of action by the Company against the
Executive, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Executive of any of his rights
hereunder.
10. NOTICE.
All notices, requests, demands and other communications required
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or if mailed, by United States certified or registered mail, prepaid
to the party to which the same is directed at the following addresses (or at
such other addresses as shall be given in writing by the parties to one
another):
If to the Company: President
Global e Tutor.com, Inc.
3340 Peachtree Road, Suite 1800
Atlanta, Georgia 30326
If to the Executive: ______________________
______________________
______________________
Notices delivered in person shall be effective on the date of delivery. Notices
delivered by mail as aforesaid shall be effective upon the third calendar day
subsequent to the postmark date hereof.
11. MISCELLANEOUS.
(a) ASSIGNMENT. Except for assignment of this Agreement to an
Affiliate, neither this Agreement nor any right of the parties hereunder may be
assigned or delegated by any party hereto without the prior written consent of
the other party.
(b) MODIFICATION AND WAIVER. Any term or condition of this Agreement
may be waived in writing at any time by the party hereto which is entitled to
the benefit of such term or condition. Any waiver on one occasion shall not be
deemed to be a waiver of the same or of any other breach on any future occasion.
This Agreement may be modified or amended only by a writing signed by all of the
parties hereto.
(c) SURVIVAL. Executive's obligations under Section 6(a)-(c) shall
survive termination of this Agreement according to their respective terms.
Executive's obligations with respect to Proprietary Information under Section 5
shall survive termination of this Agreement for a period of three (3) years,
and, with respect to Proprietary Information that constitutes trade secrets
under applicable law, shall continue to survive thereafter for so long as such
trade secrets remain entitled to protection under applicable law.
(d) APPLICABLE LAW. This Agreement shall be construed and enforced
under and in accordance with the laws of the State of Georgia.
(e) VENUE. Any action, suit or proceeding arising out of or in
connection with this Agreement (collectively "Proceeding") shall be brought
exclusively in the U.S. District court for the Northern District of Georgia or a
state court of competent jurisdiction in Fulton County, Georgia. Each party
hereto irrevocably waives, to the fullest extent permitted by law, any object in
which such party may have to the laying of venue for any Proceeding in any such
court.
(f) ENTIRE AGREEMENT. Except as to the terms of stock options, which
shall be governed by a separate stock option agreement, this Agreement, when
executed, embodies the entire agreement of the parties on the subject matter
thereof. No amendment or modification of this Agreement will be valid or binding
upon the Company or Executive unless made in writing and signed by the parties.
Notwithstanding the foregoing terms of any stock option granted pursuant to this
Agreement shall be governed by the terms of a separate stock option agreement.
(g) AMENDMENT. This Agreement may not be modified, amended,
supplemented or terminated except by a written instrument executed by the
parties hereto.
(h) SEVERABILITY. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any provision of this Agreement, or the
application thereof to any person or particular circumstance, shall, for any
reason and to any extent, be invalid or unenforceable, it is the intention of
the parties to this Agreement that the remainder of this Agreement and the
application of such provisions to other persons or particular circumstances
shall not be affected thereby, but rather shall be enforced to the greatest
extent permitted by law.
(i) CAPTIONS AND SECTION HEADINGS. Except as set forth in Section 1
hereof, captions and section headings used herein are for convenience only and
are not a part of this Agreement and shall not be used in construing it.
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IN WITNESS WHEREOF, the Company and the Executive have each executed
and delivered this Agreement as of the date first shown above.
THE COMPANY:
By:________________________
Title:_____________________
ATTEST:
________________________________
Title:__________________________
[CORPORATE SEAL]
EXECUTIVE:
___________________________________________
Schedule of Employee Agreements
Date of Signed By Attested to
Name and Address Agreement Position Salary Report to and Title and Title
- ---------------- --------- -------- ------ --------- --------- ---------
Thomas E. McMurrain 1/21/00 CEO, President, $60,000 Board of Lara Stegman Deborah Ward
3340 Peachtree Road and Co-Chairman Directors Secretary Notary Public
Suite 1800
Atlanta, GA 30326
Claes Nobel 1/31/00 Co-Chairman and $150,000 Board of Tom McMurrain Lara Stegman
Senior Vice President Directors CEO/President Secretary
Leslie Ennis 1/31/00 Vice President $60,000 Tom McMurrain Tom McMurrain Shawn Cartmill
1700 Ranch Valley Dr. CEO/President Dir Accounting
Roswell, GA 30075
Shawn Cartmill 1/31/00 Treasurer and $24,000 Tom McMurrain Tom McMurrain Lara Stegman
P.O. Box 450523 Director of Accounting CEO/President Secretary
Atlanta, GA 31145
Robert Willison 1/21/00 Investor Relations $24,000 Tom McMurrain Tom McMurrain Lara Stegman
1599 Bayhill Drive CEO/President Secretary
Duluth, GA 30097
Lara Stegman 1/31/00 Secretary and $24,000 Jerry Barton Tom McMurrain Deborah Ward
P.O. Box 550616 Director of Operations CEO/President Notary Public
Atlanta, GA 30355