Registration of Securities of a Small-Business Issuer — Form 10-SB
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10SB12G Registration of Securities of a Small-Business 84 323K
Issuer
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, 21 66K
Liquidation or Succession
3: EX-3.1 Articles of Incorporation/Organization or By-Laws 5 21K
4: EX-3.2 Articles of Incorporation/Organization or By-Laws 3 16K
5: EX-3.3 Articles of Incorporation/Organization or By-Laws 12 39K
6: EX-4.1 Instrument Defining the Rights of Security Holders 2 14K
7: EX-10.1 Material Contract 10 52K
16: EX-10.10 Material Contract 6 28K
17: EX-10.11 Material Contract 23 78K
18: EX-10.12 Material Contract 53 150K
19: EX-10.13 Material Contract 19 58K
20: EX-10.14 Material Contract 2 17K
21: EX-10.15 Material Contract 20 55K
22: EX-10.16 Material Contract 1 12K
23: EX-10.17 Material Contract 7 48K
24: EX-10.18 Material Contract 2 15K
25: EX-10.19 Material Contract 15 62K
8: EX-10.2 Material Contract 17 53K
26: EX-10.20 Material Contract 8± 42K
27: EX-10.21 Material Contract 10 35K
28: EX-10.22 Material Contract 5 32K
29: EX-10.23 Material Contract 5 33K
30: EX-10.24 Material Contract 5 34K
31: EX-10.25 Material Contract 5 20K
32: EX-10.26 Material Contract 3 21K
33: EX-10.27 Material Contract 17± 78K
34: EX-10.28 Material Contract 3 23K
35: EX-10.29 Material Contract 8 41K
9: EX-10.3 Material Contract 8 30K
36: EX-10.30 Material Contract 4 27K
37: EX-10.31 Material Contract 16 76K
10: EX-10.4 Material Contract 4 23K
11: EX-10.5 Material Contract 6± 33K
12: EX-10.6 Material Contract 10 40K
13: EX-10.7 Material Contract 13 51K
14: EX-10.8 Material Contract 8 24K
15: EX-10.9 Material Contract 2 17K
38: EX-21.1 Subsidiaries of the Registrant 1 10K
39: EX-27.1 Financial Data Schedule (Pre-XBRL) 1 14K
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") effective as of the 26th day of February
1999, between photoLoft.com , a Nevada corporation having its principal place of
business at 300 Orchard City Drive, Suite 142, Campbell, California 98005
("Employer") , and Jack Marshall ("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee upon the terms and subject to the
conditions hereinafter set forth, and Employee desires to accept such
employment:
NOW, THEREFORE, for and in consideration of the premises, the mutual promises,
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows.
1. EMPLOYMENT. Subject to the terms and conditions of this Agreement,
Employer shall employ Employee and Employee hereby accepts such employment.
2. TERM. The term of this Agreement shall be for the period from March 1,
1999 through December 31, 2001 (the "Initial Term"), thereafter to continue on a
year to year basis, unless or until terminated pursuant to the terms of this
agreement.
3. POSITION AND DUTIES.
A. POSITION. Employee shall serve as CEO, President and Treasurer and shall
perform the duties and exercise the powers in connection with such position and
which may from time to time be reasonably assigned to or vested in him or her by
the board of Directors or similar governing body of Employer (the "Board") or
the duly authorized committee or designee thereof.
B. FULL TIME EFFORTS. Employee shall perform and discharge faithfully,
diligently and to the best of his or her ability such duties and
responsibilities and shall devote his or her full-time efforts to the business
and affairs of Employer.
C. NO INTERFERENCE WITH DUTIES. Employee shall not devote time ot other
activities such as would inhibit or otherwise interfere with the proper
performance of his or her duties.
4. WORK STANDARD. Employee hereby agrees that he or she will at all times
comply with abide by all terms and conditions set forth in this Agreement, and
all applicable work policies, procedures and rules as may be issued by Employer.
5. COMPENSATION.
A. BASE SALARY. Subject to the terms and conditions set forth in this
Agreement, Employer shall pay Employee, and Employee shall accept, a salary
("Base Salary") at the annual rate of $120,000 for all services rendered during
the term of this Agreement. Base Salary shall be reviewed no less frequently
than annually. The Base Salary is not to be considered in any way to limit
Employee's opportunity to receive appropriate increases in Base Salary during
the term of this Agreement. The Base Salary shall be apid in accordance with
Employer's normal payroll procedures.
B. INCENTIVE BONUS. Subject to the terms and conditions set forth in this
Agreement, Employer shall pay Employee, and Employee shall accept, an annual
bonus ("Incentive Bonus") to be no less than 50% of Employee's Base Salary as
defined by this Agreement if the following criteria are met: 1) the company
begins trading on the NASD Bulletin Board during calendar year 1999, 2) the
company achieves a minimum of $100,000 via e-commerce in 1999, 3) there are an
average of 500,000 hits to the site for a one month period. The Incentive Bonus
is not to be considered in any way to limit Employee's opportunity to receive
additional cash bonus compensation as deemed appropriate by the Employer. This
incentive Bonus shall be paid no later than February 15 of the year following
the year the incentive bonus was earned.
C. STOCK OPTIONS. Employer will grant to Employee: 250,000 shares of
PhotoLoft.com common stock exercisable at current market value on the day of the
grant when traffic to the site averages 500,000 hits during a one month period;
500,000 shares of photoLoft.com common stock exercisable at current market value
on the day of the grant when traffic to the site averages 750,000 hits during a
one month period; and 750,000 shares of PhotoLoft.com common stock exercisable
at current market value on the day of the grant when traffic to the
PhotoLoft.com web site averages 1,000,000 hits per day for a one month period.
D. WITHHOLDING. All compensation payable to Employee pursuant to this
Agreement shall be subject to, and Employer will deduct and withhold, all
applicable federal, state and local withholding, employment, social security,
and other similar taxes.
6. FRINGE BENEFITS. During the term of Employee's employment under this
Agreement, Em0ployee shall receive the fringe benefits described below:
A. MEDICAL, DENTAL, VISION, LIFE AND DISABILITY INSURANCE. Employer shall
provide Employee and eligible dependents ("spouse and children under 21 years of
age") with medical, dental and vision insurance coverage. Life and disability
insurance coverage will be provided by Employer to Employee.
B. VACATION. Employee is eligible for vacation as outlined in the standard
corporate vacation plan.
C. CAR ALLOWANCE. Employee is eligible for a monthly car allowance of $500.
D. OUT OF POCKET EXPENSES. Employer will reimburse Employee for out of
pocket expenses ("out of pocket expenses") as incurred by the Employee in the
normal course of business, including, but not limited to corporate
entertainment, non-capital purchases and corporate travel.
7. LAWS, REGULATIONS, AND PUBLIC ORDINANCES. Employee shall comply with all
federal, state, and local statutes, regulations and public ordinances governing
the work.
8. CONFIDENTIAL INFORMATION; INVENTIONS; CONFLICTING EMPLOYMENT; RETURNING
COMPANY DOCUMENTS; SOLICITATION OF EMPLOYEES; NON-COMPETE.
A. COMPANY INFORMATION: I agree at all times during the term of my
employment and thereafter, to hold in strictest confidence, and not use, except
for the benefit of the Employer, or to disclose to any person, firm or
corporation without written authorization of the board of Directors of the
Company, any Confidential Information of the Company. I understand that
Confidential Information means any company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customer lists and customers (including, but
not limited to, customers of the company on whom I called or with whom I became
acquainted during the term of my employment), markets, software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, finances, or other business
information disclosed to me by the company either directly or indirectly in
writing, orally or by drawings or inspection of parts or equipment. I further
understand that Confidential Information does not include any of the foregoing
items which has become publicly known and made generally available through no
wrongful act of mine.
B. FORMER EMPLOYER INFORMATION. I agree that I will not, during my
employment with the company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity with which I have an agreement or duty to keep in confidence,
information acquired by me in confidence, if any, and that I will not bring onto
the premises of the Company any unpublished document or proprietary information
belonging to any such employer, person or entity unless consented to in writing
by such employer, person or entity.
C. THIRD PARTY INFORMATION. I recognize that the company has received and
in the future will receive from third parties their confidential or proprietary
information subject to a duty on certain limited purposes. I agree to hold all
such confidential or proprietary information in the strictest confidence and not
to disclose it to any person, firm or corporation or to use it except as
necessary in carrying out my work for the company consistent with the company's
agreement with such third party.
D. INVENTIONS RETAINED AND LICENSED: I have attached hereto as Exhibit A, a
list describing all inventions, original works of authorship, developments,
improvements and trade secrets which were made by me prior to my employment with
the company (collectively referred to as Prior inventions), which belong to me,
which relate to the company's purposed business, products or hereunder; or, if
not such list is attached, I represent that there are no such prior inventions.
If in the course of my employment wit the company, I incorporate into a company
product, process or machine a prior invention owned by me or in which I have an
interest, the Company is hereby granted and shall have a non-exclusive,
royalty-free, irrevocable, perpetual, worldwide license to make, have made,
modify, use and sell such prior invention as part of or in connection with such
product, process or machine.
E. ASSIGNMENT OF INVENTIONS; I agree that I will promptly make full written
disclosure to the company, will hold in trust for the sole right and benefit of
the company and hereby assign to the company, or its designee, all my right,
title, and interest in and to any and all inventions, original works of
authorship, developments, concepts, improvements or trade secrets, whither or
not patentable or registrable under copyright or similar laws, which I may
solely or jointly conceive or develop or reduce to practice, during the period
of time I am in the employee of the company (collectively referred to as
"Inventions"), except as provided in Section i below. I further acknowledge
that all original works of authorship which are made by me (solely or jointly
with others) within the scope of my employment and which are protectable by
copyright are "works made for hire," as that term is defined in the United
States Copyright Act.
F. MAINTENANCE OF RECORDS: I agree to keep and maintain adequate and current
written records of all inventions made by me (solely or jointly with others)
during the term of my employment with the company. The records will be in the
form of notes, sketches, drawings and any other format that may be specified by
the company. The records will be available to and remain the sole property of
the company at all times.
G. PATENT AND COPYRIGHT REGISTRATION: I agree to assist the company, or its
designee, at the company's expense, in every proper way to secure the company's
rights in the inventions and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto in any and all countries,
including the disclosure to the company of all pertinent information and data
with respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which the company shall deem necessary in
order to apply for and obtain such rights and in order to assign and convey to
the comp0any, its successors, assigns and nominees the sole and exclusive
rights, title and interest in and to such inventions, and any copyrights,
patents, mask work rights, or other intellectual property rights relating
thereto. I further agree that my obligation to execute or cause to be executed,
when it is in my power to do so, any such instrument or papers shall continue
after the termination of this Agreement. If the company is unable because of my
mental or physical incapacity or for any other reason to secure my signature to
apply for or to pursue any application for any United States or foreign patents
or copyrights registrations covering inventions or original works of authorship
assigned to the company as above, then I hereby irrevocably designate and
appoint company and its duly authorized officers and agents as my agent and
attorney in fact, to act for and in my behalf and stead to execute and file any
such applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent or copyright registrations thereon
with the same legal force and effect as if executed by me.
H. EXCEPTIONS TO ASSIGNMENTS. I understand that the provisions of this
Agreement requiring assignment of inventions to company do not apply to any
invention which qualifies fully under the provisions of California Labor Code
Section 2870. I will advise the company promptly in writing of any inventions
that I believe meet the criteria in California Labor Code Section 2870 and not
otherwise disclosed on Exhibit A.
I. CONFLICTING EMPLOYMENT. I agree that, during the term of my employment
with the company, I will not engage in any other employment, occupation,
consulting or other business activity directly related to the business in which
the company is now involved or become involved during the terms of my
employment, nor will I engage in any other activities that conflict with my
obligations to company.
J. RETURNING COMPANY DOCUMENTS. I agree that, at the time of leaving the
employ of the company I will deliver to the company (and will not keep in my
possession or deliver to anyone else) any and all devices, records, data, notes,
reports, proposals, lists, correspondence, specifications, drawings, blueprints,
sketches, materials, equipment, others documents, or property, or reproductions
of any aforementioned items developed by me pursuant to my employment with the
company or otherwise belonging to the company, its successors or assigns.
K. SOLICITATION OF EMPLOYEES. I agree that I shall not, for a period of one
year immediately following the termination of my relationship with the company
for any reason, whether with or without cause, either directly or indirectly, on
my own behalf or in the service or on behalf of other, solicit, recruit or
attempt to persuade any person to terminate such person's employment with the
company, whether or not such person is a full-time employee or whether or not
such employment is pursuant to a written agreement or is at-will.
L. NON-COMPETE. I agree that I shall not, for a period of one year
immediately following the termination of my relationship with the company for
any reason, whether with or without cause, either directly or indirectly engage
in any activity that competes with PhotoLoft.com
9. TERMINATION FOR CAUSE. This Agreement may be terminated at any time by
Employer without prior notice thereof to Employee and without any liability
owning to Employee under this Agreement under the following conditions, each of
which shall constitute "Cause";
A. FAILURE TO DISCHARGE DUTIES. Employee willfully neglects or refuses to
discharge his duties hereunder or refuses to comply with any lawful and
reasonable instructions given to him by Employer without reasonable excuse;
B. BREACH. Employee shall have committed any material breack, or repeated
or continued after written notice of any breach, whether material or not, of his
obligations hereunder;
C. GROSS MISCONDUCT. Employee is guilty of gross misconduct. For the
purposes of this Agreement the following acts shall constitute gross misconduct:
I) Any act involving fraud or dishonesty or breach of applicable regulations
of competent authorities in relation to trading or dealing with stocks,
securities, investments and the like;
II) The carrying out of any activity or the making of any statement which
would prejudice or impair the good name or standing of Employer or would bring
Employer into contempt, riducule or would reasonable shock or offend any
community in which Employer is located;
III) Attendance at work in a state of intoxication or otherwise being found
in possession at his place of work any prohibited drug or substance, possession
of which would amount to a criminal offense;
IV) Assault or other act of violence against any employee of Employer or
other person during the course of his or her employment;
V) Harassment of disparagement of others based on their age, disability,
color, national origin, race, religion, sex or veteran status, including acts of
sexual harassment or,
VI) Conviction of any felony or misdemeanor involving moral turpitude.
10. TERMINATION BY EMPLOYER FOR REASONS OTHER THAN CAUSE. Notwithstanding
anything herein to the contrary, and subject to the survival provisions of
Paragraph 13.G hereof, Employer may terminate this Agreement at any time with
thirty (30) days prior notice thereof to Employee. In such an event, Employer
shall pay to Employee in accordance with Employer's normal practices; 1) the
Base Salary; 2) Incentive Bonus as applicable, 3) vested Stock Options, 4)
Medical, Dental, Vision, Life and Disability Insurance, 5) car Allowance, 6) and
any unused Vacation - all through December 31, 2001.
11. TERMINATION BY EMPLOYEE.
A. VOLUNTARY TERMINATION. Employee may terminate his employment under this
Agreement at any time with thirty (30) days prior written notice thereof to
Employer. Upon such termination, Employee shall be entitled to his pro-rata
Base Salary and Incentive Bonus through the date of such termination.
B. RESIGNATION FOR GOOD CAUSE. The termination of his employment under this
Agreement by Employee following a substantial reduction in Employee's position
or duties or material breach of this Agreement by Employer shall be deemed a
termination by employee for reasons other than cause as set forth in paragraph
10 hereof.
C. TERMINATION UPON DEATH. This Agreement shall terminate immediately upon
Employee's death. Employee's estate shall be entitled to Employee's Base Salary
up to twelve (12) months after the Employee's death, Incentive Bonus based upon
the average of the previous two annual Incentive Bonuses received by Employee or
the previous Incentive Bonus is only one such bonus was received, and earned
Stock Options. Medical, Dental and Vision Insurance payments shall continue for
six (6) months from date of Employee's death.
GENERAL PROVISIONS.
A. AMENDMENT. This Agreement may be amended or modified only by a writing
signed by both of the parties hereto.
B. BINDING AGREEMENT. This Agreement shall inure to the benefit of and be
binding upon Employee, his or her heirs and personal representatives, and
Employer, its successors and assigns.
C. WAIVER. The waiver by either party of a breach of any provision
contained in this Agreement shall not be construed as or operate as a waiver of
any subsequent breach.
D. NOTICES
I) All notices and all other communication provided for herein shall be in
writing and delivered personally to the other designated party, or mailed by
certified or registered mail, return receipt requested or delivered by a
recognized national overnight courier service, or sent by facsimile as follows:
If to Employer to: Mr. Patrick Dane
Director
If to Employee to: Mr. Jack Marshall
CEO, President, Treasurer
If Employee has provided notice to Employer that he is represented by counsel,
Employer shall copy Employee's counsel at the address specified. Employee
agrees and understands that any legal fees or expenses incurred by him in
connection with this Agreement are his sole responsibility and Employer shall
not reimburse Employee for any portion of such fees or expenses.
II) All notices sent under this Paragraph 13 shall be deemed given
twenty-four (24) hours after sent by facsimile or courier and seventy-two (72)
hours after sent by certified or registered mail.
III) Either party hereto may change the address to which notice is to be
sent hereunder by written notice to the other party in accordance with the
provisions of this Paragraph.
E. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to
principles of conflicts of laws.
F. ENTIRE AGREEMENT. This Agreement contains the full and complete
understanding of the parties hereto with respect to the subject matter contained
herein and this Agreement supersedes and replaces any prior agreement , either
oral or written, which Employee may have with Employer that relates generally to
the same subject matter.
G. SURVIVAL. Notwithstanding any expiration or termination of this
Agreement, the provisions of this agreement shall survive and remain in full
force and effect, as shall any other provision hereof that, by its terms or
reasonable interpretation thereof, sets forth obligations that extend beyond the
termination of this Agreement.
H. ASSIGNMENT. This Agreement may not be assigned by Employee without the
prior written consent of Employer, and any attempted assignment not in
accordance herewith shall be null and void and of no force or effect. Employer
can assign this Agreement to any Affiliate with Employee's written consent.
Thereafter, any such assignee shall be considered to be the Employer for all
purposes under this Agreement; provided however, that references to previous
incentive bonuses shall be deemed to include incentive bonuses paid by any
assignor.
I. SEVERABILITY. I any one or more of the terms, provisions, covenants or
restrictions of this Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable, then the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect, and to that end the provisions hereof shall be deemed
severable.
J. PARAGRAPH HEADING. The section headings set forth herein are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement whatsoever.
K. VOLUNTARY AGREEMENT. Employee and Employer represent and agree that each
has reviewed all aspects of this Agreement, has carefully read and fully
understands all provisions of this Agreement, and is voluntarily entering into
this Agreement. Each party represents and agrees that such party has had the
opportunity to review any and all aspects of this Agreement with legal, tax or
other advisers(s) of such party's choice before executing this Agreement.
10. REMEDIES.
ARBITRATION OF DISAGREEMENTS. Any dispute, controversy or claim arising out of
or relating to the obligations under this Agreement shall be settled by final
and binding arbitration in accordance with the American Arbitration Association
Employment Dispute Resolution Rules. The arbitrator shall be selected by mutual
agreement of the parties, if possible. If the parties fail to reach agreement
upon appointment of an arbitrator within 30 days following receipt by one party
of the other party's notice of desire to arbitrate, the arbitrator shall be
selected from a panel or panels of persons submitted by the American Arbitration
Association (the "AAA"). The selection process shall be that which is set forth
in the AAA Employment Dispute Resolution Rules, except that, if the parties fail
to select an arbitrator from one or more panels, AAA shall not have the power to
make an appointment but shall continue to submit additional panels until an
arbitrator has been selected.
All fees and expenses of the arbitration, including a transcript if requested,
will be borne by the Employer. Any action to enforce or vacate the arbitrator's
award shall be governed by the Federal Arbitration Act, if applicable, and
otherwise by California state law.
IN WTINESS WHEREOF, the parties hereto have executed, or caused their duly
authorized representative to execute, this Agreement as of the date first above
written.
EMPLOYER
Patrick Dane Jack Marshall
BY:
Dates Referenced Herein and Documents Incorporated by Reference
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