Starnet Communications International Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
STARNET COMMUNICATIONS INTERNATIONAL INC.
(<< STARNET >>)
1589 NEWGATE STREET
ST. JOHNS, ANTIGUA, WEST INDIES
and
LIAM GILLEN (THE <<EXECUTIVE>>)
Whereas Starnet wishes to engage the Executive in the position of EXECUTIVE
DIRECTOR, LICENSEE OPERATIONS and the Executive wishes to be employed by
Starnet in that capacity; and
Whereas the Executive recognizes and acknowledges that Starnet and its
Affiliates operate within the Internet Product Development Industry, which
is global in its scope and may require exceptional covenants respecting
confidentiality and competition and which may also require extensive travel
and possibly relocation of the Executive; and
Whereas the Executive and Starnet desire to enter into this Agreement for
purposes of setting forth the terms and conditions of the Executive's
employment with Starnet;
Therefore in consideration of the mutual covenants and payments set out
herein, Starnet and the Executive agree as follows:
1. EMPLOYMENT
1.01 POSITION AND TERM. Starnet hereby agrees to engage the Executive as
EXECUTIVE DIRECTOR, LICENSEE OPERATIONS and Executive agrees to
accept such employment, in accordance with the express terms, duties
and obligations herein set forth. Such employment shall commence on
November 27, 2000 (the << Commencement Date >>) and shall be for a
minimum term of two years unless terminated in accordance with the
provisions of Article 5 (the << Term >>).
1.02 EXTENSION OF TERM. The Term may be extended annually thereafter by
mutual agreement of the parties in writing, to be signed by the
parties at least 60 days prior to the second year anniversary of the
Commencement Date and on such terms as the parties agree.
1.03 LOCATION. Unless otherwise agreed to in writing by the parties, the
position will be based in Starnet's head office in St. John's,
Antigua, and the Executive will work out of the Antigua office and
at other locations as reasonably requested by Starnet.
2. DUTIES
The Executive shall perform such duties and responsibilities for the
Starnet Group as may be assigned to him from time to time by
Starnet, and as are consistent with the general duties and
responsibilities of EXECUTIVE DIRECTOR, LICENSEE OPERATIONS, and
shall have such obligations, duties, authority and power to do all
acts and things as are customarily done by a person holding the same
or equivalent position or performing duties similar to those to be
performed by the Executive in companies of similar size to Starnet
or in the same industry.
3. GENERAL TERMS OF PERFORMANCE
3.01 PLEDGE. The Executive agrees and pledges to perform his duties and
responsibilities to the best of his ability. In conducting his
duties under this Agreement, the Executive shall act consistently
with the directions of the directors and officers of Starnet.
3.02 INTEGRITY. The Executive shall take all necessary precautions to
protect the integrity of Starnet's Confidential Information,
Customer Information, Financial Information, Industrial Designs,
Inventions and Marketing Information without limitations and
complying with all Starnet's policies in this regard.
4. COMPENSATION
4.01 SALARY. For the Executive's services to Starnet hereunder, the
Executive shall be entitled to receive from Starnet a one-time
signing bonus of $5,000.00 monthly salary of USD$8,000.00, subject
to applicable withholdings and deductions. The Executive's salary
may be increased periodically at the discretion of Starnet.
4.02 EXPENSES. The Executive shall be reimbursed by Starnet for any and
all reasonable and documented expenses actually and necessarily
incurred by the Executive in the performance of this Agreement. The
Executive shall provide an itemized account of expenses in such form
and at such times as is reasonably required by Starnet.
4.03 BENEFITS. The Executive shall be entitled to participate in all
rights and benefits under any life insurance, disability, medical,
dental, health and accident plans maintained by Starnet for its
employees generally. In addition, the Executive shall be entitled
to participate in all rights and benefits under other employee plan
or plans as may be implemented by Starnet during the term of this
Agreement. The Executive shall be entitled to other benefits as
provided in Appendix 'A' to this Agreement;
4.04 OPTIONS. The Executive shall be entitled to receive an option to
acquire 50,000 Class A Common shares of Starnet which will become
exercisable as to 25,000 of the original number on December 1, 2000
and an additional 25,000 Optioned Shares will be granted at the
completion of twelve (12) months of employment, subject to the
approval of the Board of Directors and the filing of a S-8.
4.05 VACATION. The Executive shall be entitled to a paid vacation of
four (4) weeks during each calendar year. If this Agreement is
terminated part way through a calendar year, the Executive shall be
compensated for the unused pro-rated vacation time.
5. TERMINATION
5.01 DEEMED TERMINATION. This Agreement, and the Executive's employment
shall be deemed to be terminated immediately upon;
(a) the end of the Term, unless extended in accordance with section
1.02;
(b) an acquisition of more than fifty percent (50%) of the issued
capital (having full voting rights under all circumstances) of
Starnet by another corporation, business entity or person;
(c) the death or inability to perform due to disability of the
Executive; or
(d) for cause, as defined below
5.02 CAUSE. For the purposes of this Agreement, "cause" means: (i) the
Executive breaches his obligations under Article 6 of this
Agreement; or (ii) the existence of cause for termination of
employment at common law resulting from any recognized ground of
termination for cause, including but not limited to fraud,
dishonesty, illegality, material breach of statute or regulation,
conflict of interest, or gross incompetence; or (iii) the Executive
breaches any other obligations
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under this Agreement and fails to rectify such breach upon provision
of written notice to do so by Starnet.
5.03 TERMINATION FOR CAUSE. In the event of a termination for cause, the
Executive shall receive payment of any salary or vacation earned to
the date of termination, and shall be entitled to exercise any stock
options vested prior to the date of termination for a three-month
period following termination. Starnet shall have no other
obligations to the Executive.
5.04 TERMINATION DUE TO A CHANGE OF CONTROL. In the event of a
termination of this Agreement due to a Change of Control, the
Executive will be entitled to receive the following compensation for
termination:
(a) six months' salary; and
(b) housing for a period of no more than six months, or cash
settlement in lieu thereof (as provided in Appendix 'A'); and
(c) medical and dental coverage to a maximum of six months; and
(d) final moving allowance (as provided in Appendix 'A')
5.05 WAIVER OF TERMINATION BY EXECUTIVE. The Executive is entitled to
unilaterally waive his termination by virtue of a Change of Control.
This right does not require the consent of Starnet. Should the
Executive elect to waive his termination by virtue of a Change of
Control he must provide written notice to Starnet within 30 days of
the effective date of the Change of Control.
5.06 WAIVER OF TERMINATION BY EXECUTIVE DOES NOT AFFECT FUTURE RIGHTS.
Should the Executive elect to waive his termination because of a
Change of Control this waiver shall not affect the Executive's
termination as a result of a subsequent Change of Control.
Further, the Executive shall be entitled to waive his termination by
virtue of a Change of Control as many times as the Executive
chooses.
5.07 TERMINATION WITHOUT CAUSE. Starnet may choose to terminate this
Agreement without cause at any time. In such event, the Executive
shall receive the following compensation in lieu of reasonable
notice of termination;
(a) six months' salary; and
(b) housing for a period of no more than six months, or cash
settlement in lieu thereof (as provided in Appendix 'A'); and
(c) medical and dental coverage to a maximum of six months; and
(d) final moving allowance (as provided in Appendix 'A')
5.08 TERMINATION DUE TO DEATH OR DISABILITY. In the event of a
termination of this Agreement due to the death, or inability to
perform due to disability, of the Executive, no pay in lieu of
notice of termination will be provided; however, termination of this
Agreement shall not affect the Executive's entitlements under any
disability or life insurance plans.
5.09 VESTING OF STOCK OPTIONS. In the event of a termination of this
Agreement resulting from the death, or inability to perform due to
disability, of the Executive, a Change of Control, or termination
without cause, any stock options granted to the Executive, if not
vested at the time of the termination, will vest and all vested
options will be exercisable thereafter by the Executive or his
estate for a period of twelve (12) months.
5.10 TERMINATION BY EXECUTIVE. The Executive shall be entitled to
terminate this Agreement and his employment with Starnet, at any
time and for whatever reason, upon providing three months' written
notice to Starnet. In the event of a termination by the Executive,
the Executive shall be entitled to exercise any stock options vested
prior to the date of termination for a three-month period following
termination.
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6. NON-COMPETITION, CONFIDENTIALITY AND OWNERSHIP OF WORKS
6.A DEFINITIONS
In this Agreement, the following words and phrases shall have the
following meanings:
(a) "Affiliates" shall have the meaning ascribed thereto in the
British Columbia Company Act;
(b) "Business and Development Processes" means Starnet's
operational policies and procedures;
(c) "Business Opportunities" includes potential business ventures
of all kinds, including acquisitions, sales, business
arrangements, joint ventures, and other transactions which have
been disclosed to, investigated, studied or considered by
Starnet or by others on behalf of Starnet;
(d) "Company Standards" means software code and design standards
including the quality assurance and testing standards;
(e) "Confidential Information" means any oral or written
information, presently or hereafter existing, relating to the
business and management of Starnet or its Affiliates including,
but not limited to
i. Business Opportunities, Customer Information, Financial
Information, Marketing Information, Research and
Development, Information relating to any proprietary or
trade-secret technology, knowledge, know-how, Works,
Industrial Designs, Inventions, Company Standards,
Business & Development Processes, Software, trade-mark or
trade name used, owned or licensed by Starnet;
ii. any record, report, document, policy, practice,
agreement, account, ledger or other data or information
relating to the business operations of Starnet,
including, but not limited to records of those items
listed in subparagraph (i) above,
to which access is granted or obtained by the Executive,
but does not include any of the foregoing which is or
becomes publicly known or available through no breach of
the terms of this Agreement by the Executive;
(f) "Customer Information" means any information pertaining to
Starnet's customers or Potential Customers, including customer
names, business descriptions, markets, addresses and financial
information and the names and any information pertaining to
employees of customers with whom Starnet is in contact in its
business, including but not limited to information relating to
Starnet's contracts with its customers, including details as
to products, pricing and distribution;
(g) "Financial Information" means any information relating to the
business operations of Starnet and includes any information
pertaining to Starnet's costs, sales, income, profit
profitability, pricing, salaries and wages;
(h) "Industrial Design" means any shape, pattern, configuration,
or ornamentation, computer graphics or animation and any
combination of such features that, in a finished article,
appeal to and are judged solely by the eye;
(i) "Inventions" means any new and useful art, design, process,
machine, method, manufacture or composition of matter, or any
new and useful improvement in any art, process, machine,
method, manufacture or composition of matter, including, but
not limited to, schemes, plans, business methods, programs,
codes, methods, processes, techniques, templates, database
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structures, programming tools, Company Standards, prototypes,
products, samples, equipment and any presentations of same;
(j) "Marketing Information" means information including but not
limited to Starnet's marketing programs, plans, strategies and
proposed future products, services, advertising and promotions;
(k) "Potential Customers" includes individuals, partnerships,
corporations, charitable organizations or governmental
customers that Starnet has identified or targeted as being a
potential customer whether or not they have been approached by
Starnet;
(l) "Public Knowledge" means information that is generally known
in the trade or business in which Starnet is engaged, or is
otherwise easily accessible through lawful non-confidential
sources;
(m) "Research and Development" means information pertaining to any
research, development, investigation, study, analysis,
experiment or test carried on or proposed to be carried on by
Starnet;
(n) "Software" means requirements, system architecture, models,
algorithms, data structures, data code, and other information
used by a computer to process information, in both source code
and object code forms, and shall include, without limitations,
the final version and all preliminary versions of the Software
and all routines and subroutines, as well as all program
material, flowcharts, models, notes, outlines, work papers,
description and other documents created or developed in
connection therewith, the resulting screen formats and other
visual effects of the Software, and any formulae, processes,
ideas, whether or not protected by copyright;
(o) "Works" means an original literary, dramatic, musical or
artistic work, including, but not limited to, designs,
creations, programs, software codes, images, animations,
drawings, sketches, plans, compilations of information,
analyses, data, formula, records of Business Opportunities,
records of Customer Information, records of Marketing
Information, records of Research and Development, and records
of Financial Information, and all parts, elements and
combinations thereof.
6.B NON-COMPETITION
6B.01 NON-SOLICITATION OF CUSTOMERS. The Executive shall not, without
the prior written consent of Starnet, at any time during his
employment with Starnet, and for a period of two (2) years after the
termination thereof, either individually or in partnership with, or
jointly or in conjunction with, or for the benefit of any person,
solicit, endeavor to solicit, canvass or deal with any person who
was or is a customer of Starnet or its Affiliates, for the purpose
of selling or supplying services to that person or any product or
services which are competitive with the products or services sold or
supplied by Starnet or its Affiliates.
6B.02 NON-SOLICITATION OF EMPLOYEES. The Executive shall not, without
the prior written consent of Starnet, at any time during his
employment with Starnet, and for a period of one (1) year
thereafter, induce or attempt to influence, directly or indirectly,
an employee of Starnet or its Affiliates to leave the employ of
Starnet or its Affiliates.
6B.03 NON-COMPETITION. The Executive shall not, without the prior
written consent of Starnet, at any time during his employment with
Starnet, and for a period of six (6) months after the termination
thereof, either individually or in partnership with, or jointly or
in conjunction with any person as principal, agent, consultant
employee, shareholder or in any other manner concerned whatsoever,
carry on or be engaged in or be concerned with or interested in or
advise or provide any consulting services for any person or entity
that produces, markets, sells or otherwise deals in products or
services competitive with the products or services produced, marketed,
sold or
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otherwise dealt in by Starnet or its Affiliates, or with those products
or services that the Executive knew, or ought to have known, that
Starnet or its Affiliates contemplated producing, marketing, licensing
or selling during the term of this Agreement.
6B.04 REASONABLENESS. The Executive confirms that the obligations set
out in the non-competition and non-solicitation provisions above are
fair and reasonable and that, given the Executive's general
knowledge of the information technology industry, and the
Executive's recognition and acknowledgment that the services offered
by Starnet and its Affiliates are specialized services within the
industry, these obligations will not preclude the Executive from
becoming gainfully employed or from otherwise working elsewhere in
the information technology industry following the termination of
this Agreement.
6.C CONFIDENTIALITY
6C.01 ACKNOWLEDGEMENTS. The Executive acknowledges that:
(a) during the course of employment by Starnet the Executive has
been and will be exposed to or otherwise become aware of
Confidential Information;
(b) the Confidential Information is a valuable asset which is the
property of Starnet exclusively, the unauthorized use or
disclosure of which would cause very serious harm to the
economic interest of Starnet; and
(c) it is important in the interests of Starnet that the
Confidential Information remain the exclusive property of
Starnet and that it not be used or disclosed except with the
knowledge and consent of Starnet and in Starnet's best
interests.
6C.02 CONFIDENTIAL INFORMATION. The Executive agrees that at all times
during the period of the Executive's employment by Starnet and at
all times following termination of the Executive's employment;
(a) the Executive shall hold in confidence and keep confidential
all Confidential Information; and
(b) the Executive shall not directly or indirectly use any
Confidential Information except in the course of performing
duties as an Executive of Starnet with the knowledge and
consent of Starnet and in Starnet's best interests.
6C.03 CONFIDENTIAL INFORMATION OF OTHERS. The Executive agrees that at
all times during the period of the Executive's employment by Starnet
that the Executive shall hold in confidence and keep confidential
all Confidential Information, proprietary technologies and trade
secrets of any other entity to whom the Executive owes an obligation
of confidence.
6C.04 DISCLOSURE OF CONFIDENTIAL INFORMATION. Nothing in this Agreement
shall prevent the Executive following termination of employment by
Starnet from making use of or disclosing any Confidential
Information which is or becomes a matter of public knowledge in a
manner which is not itself a violation of this Agreement.
6C.05 DISCLOSURE REQUIRED BY LAW. Nothing in this Agreement shall
prevent the Executive from disclosing Confidential Information if
required to do so by any applicable law or under oath during any
legal proceedings. Should the Executive be compelled to disclose
Confidential Information as a result of the operation of any
applicable law or under oath during any legal proceedings, he shall
give prior written notice to Starnet.
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6.D RETURN OF MATERIALS UPON TERMINATION
Upon termination of the Executive's employment with Starnet, the
Executive shall promptly deliver to Starnet all Works, Inventions,
Industrial Designs, Software, Research and Development and records
of Confidential Information, and copies made thereof, including
without limitation any and all documents, manuals, lists, data,
records, computer programs, codes, materials, prototypes, products,
samples, analyses reports, models, designs, equipment, tools and
devices relating or pertaining to Starnet's business, including any
copies, representations or reproductions of the same.
6.E OWNERSHIP OF WORKS, SOFTWARE AND INVENTIONS
With respect to all Works or Software created or made, or Inventions
conceived of, by the Executive during the course of the Executive's
employment by Starnet, whether at Starnet's place of business or
otherwise, the parties agree that Starnet is the sole owner of the
rights therein and thereto, in perpetuity, throughout the world and
in any and all media and formats, whether known or unknown or
hereafter devised, and the Executive shall have no right, title or
interest therein or thereto.
6.F ASSIGNMENT AND TRANSFER OF RIGHTS
The Executive hereby assigns and transfers to Starnet any and all
other rights, title and interest that the Executive may have in and
to the Works, Software, Inventions, Industrial Designs and in any
patent, trade-mark and any other similar right pertaining to the
Works or Inventions which the Employee may have by virtue of having
created, made, conceived or contributed to any such Works, Software
or Inventions, either solely or with others, in whole or in part, in
the course of employment and while concerned with or involved in the
business carried on by Starnet. The Executive further agrees to
maintain at all times adequate and current records relating to the
creation and development of the Work and Inventions, which records
shall be and shall remain the property of Starnet.
6.G REGISTRATION OF INTELLECTUAL PROPERTY RIGHTS
Starnet alone shall have the right to apply for, prosecute and
obtain patents, copyright, industrial design and trade-mark
registrations and any other registrations or grants of rights
analogous thereto in any and all countries throughout the world in
respect of Works or Software made or created, or Inventions
conceived of, by the Executive during the course of the Executive's
employment by Starnet and the Executive agrees to execute on demand,
whether during or subsequent to Executive's employment, any
applications, transfers, assignments and other documents as Starnet
may consider necessary or desirable from time to time for the
purpose of obtaining, maintaining or vesting in or assigning to
Starnet absolute title to any such patents, copyright, industrial
design or trademark registrations and the Works, Software or
Inventions, or for the purpose of applying for, prosecuting,
obtaining or protecting any such patents, copyright, industrial
design or trademark registrations in any and all countries of the
world; and the Executive further agrees to cooperate and assist in
every way possible in the prosecution and protection of any such
applications and the rights assigned or transferred to Starnet
hereunder.
6.H WAIVER OF MORAL RIGHTS
The Executive hereby irrevocably and expressly waives as against any
person any and all moral rights he may have in relation to any
Works, Software and Inventions or other subject matter, including,
without limitation, the right to attribution of authorship, the
right to restrain or claim damages for any distortion, mutilation,
modification or enhancement of any Works, Software and Inventions
and the right to use or reproduce any Works, Software and Inventions
in any context and in connection with a product, service, cause or
institution, and the Executive agrees that Starnet may use or alter
any such Works, Software and Inventions as Starnet sees fit in its
absolute discretion.
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6.I CHANGE OF EMPLOYMENT
The Executive agrees that prior to commencing employment with any
other entity, following termination of the Executive's employment
with Starnet, the Executive shall disclose to such other entity the
terms of this Agreement.
7. INDEMNIFICATION
Starnet agrees to indemnify and hold harmless the Executive for any
and all actions, causes of action, claims, demands, damages or fines
howsoever arising as a result of the Executive's employment with
Starnet or any of its Affiliates. Starnet also agrees to pay for
any and all legal fees and disbursements (including applicable
taxes) that the Executive shall incur as a result of his employment
with Starnet or any of its Affiliates. Starnet's obligation to
indemnify and hold harmless the Executive shall survive the
termination of this Agreement.
8. GENERAL
8.01 BINDING. This Agreement shall be binding on the Executive and
Starnet during the course of Executive's employment by Starnet and
shall survive the termination of the Executive's employment by
Starnet, regardless of how the Executive's employment is terminated,
whether for cause or otherwise.
8.02 PRIORITY OVER STOCK OPTION PLAN AND AGREEMENT. In the event that
this Agreement is inconsistent with any provisions of Starnet's
stock option plan (the "Plan") or any stock option agreement entered
into between Starnet and the Executive (the "Stock Option
Agreement"), this Agreement shall govern the Executive's rights and
shall supersede both the Plan and the Stock Option Agreement.
8.03 ACKNOWLEDGEMENTS. The Executive acknowledges that:
(a) the Executive has had sufficient time to review this Agreement
thoroughly;
(b) the Executive understands the terms of this Agreement and the
Executive's obligations hereunder; and
(c) the Executive has been given an opportunity to obtain
independent advice concerning the interpretation and effect of
this Agreement.
8.04 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior communications,
representations, understandings and agreements, whether verbal or
written, between the parties with respect to the subject matter
hereof. The parties agree that no prior or subsequent
communications, representations, understandings, agreements or
representations will affect this written agreement or the
Executive's employment with Starnet unless the same are reduced to
writing and signed by both the Executive and Starnet.
8.05 SEVERABILITY. If any provision of this Agreement is determined at
any time by a court, arbitrator or tribunal of competent
jurisdiction to be invalid, illegal or unenforceable, such provision
or part thereof shall be severable from this Agreement and the
remainder of this Agreement will be construed as if such invalid,
illegal or unenforceable provision or part thereof had been deleted
herefrom.
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8.06 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of
which, taken together, shall constitute one and the same instrument.
Any such counterpart may be executed by facsimile signature with
only verbal confirmation, and when so executed and delivered shall
be deemed an original and such counterpart(s) together shall
constitute only one original.
8.07 GOVERNING LAW. This Agreement and all matters arising hereunder
shall be governed by and construed in accordance with the laws of
Antigua, West Indies.
AGREED TO THIS 27TH DAY OF NOVEMBER 2000.
THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT THE TERMS AND CONDITIONS OF THIS
AGREEMENT ARE SUBJECT TO FINAL RATIFICATION BY THE BOARD OF DIRECTORS OF
STARNET COMMUNICATIONS INTERNATIONAL (DE) INC.
_________________________________________
Liam Gillen
_________________________________________
Fred Hazell, Interim President & CEO
Starnet Communications International Inc.
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APPENDIX "A" TO EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN STARNET COMMUNICATIONS INTERNATIONAL INC. AND LIAM GILLEN
COMPENSATION, BENEFITS AND PERQUISITES, TO BE PAID BY STARNET
a) A monthly salary of $8,000.00 less applicable deductions
b) Professional Development expenses will require prior authorization
by Starnet.
c) Annual personal travel allowance in the amount of US$5,000 per
annum. Travel arrangements to be booked through the Starnet Travel
Coordinator.
d) Initial moving allowance in the amount of US$2,500 (to be paid to
the Executive upon the signing of this Agreement by the Executive)
and final moving allowance at the termination of the Agreement in
the amount of US$2,500 (provided that the Executive completes the
Term of the Agreement, except as provided in Section 5 of the
Agreement).
e) Housing allowance in Antigua of USS$3,000 per month.
f) Vehicle allowance in Antigua of US$1,000 per month. Starnet will
also pay the cost of vehicle insurance in Antigua.
g) Comprehensive medical (including emergency air evacuation for
medical reasons), dental and related coverages, with spousal and
dependent benefits as required.
h) Life insurance and accidental death coverage with proceeds payable
to the Executive's estate or specified family members.
i) Starnet will provide the Executive (at the Executive's request) with
a US$25,000 interest-free loan, repayable in 24 equal payments. The
loan is to be used to secure a credit card in Antigua, West Indies.
j) Starnet will furnish and cover any costs associated with providing
the Executive's annual work permits and immigration certificates, as
required.
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