EXHIBIT 10.21
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
entered into as of June 30, 1997, by and between GALACTICOMM TECHNOLOGIES, INC.
(formerly known as I-View Software, Inc.), a Florida corporation (the
"Company"), and XXXXXXX XXXXXXX (the "Executive").
RECITALS:
A. The Company entered into an Employment Agreement with the Executive on
November 21, 1996 (the "Original Agreement").
B. The Company and the Executive wish to amend and restate the Original
Agreement as set forth herein.
NOW THEREFORE, in consideration of the premise, and the respective
covenants and agreements of each of the Company and the Executive contained in
this Agreement, each of the Company and the Executive agrees as follows:
ARTICLE I
EMPLOYMENT
The Company employs the Executive and the Executive accepts such
employment in accordance with the terms hereof. Subject to the direction of the
Board of Directors of the Company, the Executive shall serve as President of the
Company. The Executive shall have such responsibilities, perform such duties and
exercise such power and authority as are inherent in, or incident to, the office
of President. The Executive shall devote such reasonable time to the performance
of his duties as an officer and employee of the Company as is necessary.
ARTICLE II
SALARY
2.1 SALARY. Commencing as of November 21, 1996 and continuing through
November 20, 1999, the Company shall pay to the Executive a salary of One
Hundred Seventy Five Thousand Dollars ($175,000) per annum (the "Salary") which
salary shall be automatically increased 10% per annum on a cumulative basis
during the term of this agreement on each anniversary date.
2.2 PAYMENT OF SALARY. Payments of Salary shall be made to the Executive,
in installments, from time to time on the same dates payments of salary are
generally made to all senior management employees of the Company.
ARTICLE III
BONUS AND STOCK OPTIONS
3.1 Within 45 days of the end of each of the Company's fiscal years ending
December 31 1997, 1998 and 1999, the Company shall pay the Executive a bonus
equal to five percent (5%) of the Company's pre-tax profits for the fiscal year
then ended, if the following conditions are met:
(a) the Company's pre-tax profits for such fiscal year exceed one
million dollars ($1,000,000); and
(b) the Executive was employed by the Company for at least the first
six (6) months of such fiscal year.
3.2 The Company shall issue the Executive 720,000 options to purchase the
Company's common stock, par value $0.0001 per share, in accordance with the
terms of the Stock Option and Agreement attached hereto as Exhibit "A".
ARTICLE IV
EMPLOYMENT BENEFITS
4.1 GENERALLY. The Executive shall be entitled to receive all such
benefits and to participate in such benefit and incentive plans, programs and
arrangements as are generally provided from time to time by the Company to its
senior management employees.
4.2 AUTOMOBILE ALLOWANCE. The Company shall pay to the Executive a monthly
allowance of Six Hundred Dollars ($600) which shall be utilized by the
Executive, on a non-accountable basis, to pay for the costs and expenses
incurred by him in connection with the ownership or lease, repair, maintenance
and operation (including insurance expenses) of a late model automobile.
4.3 MEDICAL INSURANCE; TERM LIFE INSURANCE. The Company shall provide
group medical insurance coverage to the Executive or reimburse the Executive for
the cost of such coverage. The Company shall also provide $1,000,000 of term
life insurance naming such beneficiary thereof as the Executive may desire.
4.4 BUSINESS, TRAVEL AND ENTERTAINMENT. Upon submission of appropriate
evidence, the Company shall promptly pay or reimburse the Executive for all
reasonable business, travel and entertainment expenses incurred by the Executive
in connection with the performance of his duties and obligations hereunder.
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ARTICLE V
TERM AND TERMINATION OF EMPLOYMENT
5.1 TERM. The term of this Agreement shall be for a period of three years,
commencing as of November 21, 1996 and expiring on November 20, 1999.
5.2 TERMINATION OF EMPLOYMENT.
(a) Notwithstanding the provisions of Section 5.1 above:
(i) the employment of the Executive by the Company shall
automatically terminate upon the death of the Executive;
(ii) if the Executive shall suffer a Disability (as such term is
hereinafter defined), then the employment of the Executive by the Company may be
terminated by the Company;
(iii) the employment of the Executive by the Company may be
terminated at any time by the Company, either with or without Cause (as such
term is hereinafter defined); and
(iv) the employment of the Executive by the Company may be
terminated at any time by the Executive, either with or without Good Reason (as
such term is hereinafter defined).
(b) If the Company shall desire to terminate the Executive's
employment, or if the Executive shall desire to terminate the Executive's
employment by the Company, as contemplated by Section 5.2(a) above, then, in any
such event, the party causing such termination shall provide a Termination
Notice (as such term is hereinafter defined) to the other party.
5.3 PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) If the employment of the Executive by the Company shall be
terminated due to the Executive's death or Disability, then, in any such event,
the Company shall continue to pay to the Executive or his estate, heirs,
personal representatives or legal representatives, as the case may be, his
Salary (subject to applicable payroll and/or other taxes required by law to be
withheld) for a period of six months from and after the date of termination of
the Executive's employment by the Company.
(b) If the employment of the Executive by the Company shall be
terminated for any reason (other than by the Company due to the Executive's
death or Disability or with Cause, or by the Executive without Good Reason),
then, in any such event, the Company shall continue
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to pay to the Executive his Salary (subject to applicable payroll and/or other
taxes required by law to be withheld) for the greater of (A) the entire
remaining term of this Agreement or (B) twelve consecutive months from such
termination.
(c) If the employment of the Executive by the Company shall be
terminated by the Company with Cause or by the Executive without Good Reason,
then, in any such event, the Company shall continue to pay to the Executive his
Salary (subject to applicable payroll and/or other taxes required by law to be
withheld) through the Termination Date (as such term is hereinafter defined).
(d) If the employment of the Executive by the Company shall be
terminated for any reason, or if the term of this Agreement shall expire in
accordance with its terms, then, in any such event, the Company shall promptly
pay to the Executive all accrued but unpaid benefits to which he shall be
entitled on the date of termination of the Executive's employment by the
Company.
5.4 CERTAIN DEFINITIONS. The following terms shall have the following
respective meanings when utilized in this Article V:
(a) "Cause" shall mean any action by the Executive or any inaction
by the Executive which constitutes:
(i) fraud, embezzlement, misappropriation, dishonesty or breach
of trust;
(ii) a felony;
(iii) a material breach or violation of any or all of the
covenants, agreements and obligations of the Executive set forth in this
Agreement, other than as the result of the Executive's death or Disability;
(iv) a willful or knowing failure or refusal by the Executive to
perform any or all of his material duties and responsibilities as an officer of
the Company, other than as the result of the Executive's death or Disability: or
(v) gross negligence by the Executive in the performance of any
or all of his material duties and responsibilities as an officer of the Company,
other than as a result of the Executive's death or Disability;
provided, however, that if the basis for any termination of the Executive's
employment by the Company as set forth in the Termination Notice delivered by
the Company to the Executive is any or all of the definitions of Cause set forth
in Sections 5.4(a)(iii), 5.4(a)(iv) or 5.4(a)(v) of this Agreement, then, in
such event, the Executive shall have thirty (30) days from and after the date of
his receipt of such Termination Notice to present a reasonable plan to cure such
action or inaction specified in the Termination Notice, which plan may require
more than thirty (30)
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days to cure the specified action or inaction, but such plan must be reasonably
satisfactory to the Company and the Executive must proceed diligently to
effectuate such plan.
(b) "Disability" shall mean any mental or physical illness,
condition, disability, or incapacity which prevents the Executive from
reasonably discharging his duties and responsibilities as an officer of the
Company. If any disagreement or dispute shall arise between the Company and the
Executive as to whether the Executive suffers from any Disability, then, in such
event, the Executive shall submit to the physical or mental examination of a
physician licensed under the laws of the State of Florida, who is mutually
agreeable to the Company and the Executive, and such physician shall determine
whether the Executive suffers from any Disability. In the absence of fraud or
bad faith, the determination of such physician shall be final and binding upon
the Company and the Executive. The entire cost of such examination shall be paid
for solely by the Company.
(c) "Good Reason" shall mean:
(i) the assignment by the Board of Directors or the Executive
Committee of the Board of Directors to the Executive, without his express
written consent, of duties and responsibilities which results in the Executive
having significantly less duties and responsibilities or exercising
significantly less power and authority than he had, or duties and
responsibilities or power and authority not comparable to that of the level and
nature which he had, immediately prior to such assignment;
(ii) the removal of the Executive from, or a failure to
reappoint the Executive to, his then current position or positions with the
Company or its subsidiaries or affiliates, except (A) with the Executive's
express written consent or (B) in connection with any termination of the
Executive's employment by the Company as the result of the Executive's death or
Disability or with Cause;
(iii) the reduction of the Executive's Salary or the reduction
of any or all of the Executive's benefits set forth in Article IV above;
(iv) the Company's failure to perform on a timely basis its
obligations under this Agreement;
(v) the Company's requiring the Executive, without his express
written consent, to travel on Company business to an extent substantially
greater than the Executive's business travel obligations immediately prior to
such time;
(vi) the Company's requiring the Executive, without his express
written consent, to change his place of permanent residency to a place outside
of Broward County, Florida; or
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(vii) the Company's moving its executive offices to a place
outside of Broward County, Florida without the Executive's express written
consent.
(d) "Termination Date" shall mean a specific date not less than
forty-five (45) nor more than ninety (90) days from and after the date of any
Termination Notice upon which the Executive's employment by the Company shall be
terminated in accordance with the provisions of this Agreement.
(e) "Termination Notice" shall mean a written notice which sets
forth (i) the specific provision of this Agreement relied upon to terminate the
Executive's employment, (ii) in reasonable detail the facts and circumstances
claimed to provide the basis for the termination of the Executive's employment,
and (iii) a Termination Date.
5.5 SURVIVAL. All of the provisions of this Agreement, other than those
contained in Articles I, III, and IV hereof, shall survive the termination for
any reason of the Executive's employment by the Company or the expiration of the
term of this Agreement. The provisions of Article II of this Agreement shall
survive the termination for any reason of the Executive's employment by the
Company or the expiration of the term of this Agreement only to the extent set
forth in this Article V.
ARTICLE VI
Certain Restrictions on the Executive
6.1 CERTAIN RESTRICTIONS. The Executive covenants and agrees with the
Company as follows:
(a) He shall not at any time, directly or indirectly, for himself or
any other person, firm, corporation, partnership, association or other entity
(collectively, a "Person") which competes in any manner with the Company or any
of its subsidiaries or affiliates in any county or parish of any state of the
United States of America or its territories and possessions in which the Company
as of the date that the Executive's employment by the Company is terminated for
any reason or the term of this Agreement expires in accordance with its terms,
as the case may be, conducts its business directly or indirectly through any of
its subsidiaries or affiliates (collectively, the "Territory"), employ, attempt
to employ or enter into any contractual arrangement for employment with, any
employee or former employee of the Company or any of its subsidiaries or
affiliates, unless such former employee shall not have been employed by the
Company or any of its subsidiaries or affiliates for a period of at least one
year.
(b) He shall not, during the term of his employment by the Company
and for a period of one year and after the date that his employment by the
Company is terminated for any reason or the term of this Agreement expires in
accordance with its terms, as the case may be, directly or indirectly, (i)
acquire or own in any manner any interest in, or loan any amount to, any Person
which competes in any manner with the Company or any of its subsidiaries or
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affiliates in the Territory, (ii) be employed by or serve as an employee, agent,
officer, or director of, or as a consultant to, any Person, other than the
Company and its subsidiaries and affiliates, which competes in any manner with
the Company or its subsidiaries or affiliates in the Territory, or (iii) compete
in any manner with the Company or its subsidiaries or affiliates in the
Territory. The foregoing provisions of this Section 6.1 (b) shall not prevent
the Executive from acquiring and owning not more than five percent (5%) of the
equity securities of any Person whose securities are listed for trading on a
national securities exchange or are regularly traded in the over-the-counter
securities market.
(c) In the course of the Executive's employment by the Company, the
Executive will have access to confidential or proprietary information of the
Company and its subsidiaries and affiliates. The Executive shall not at any time
use any such confidential or proprietary information other than for the benefit
of the Company and its subsidiaries and affiliates. The term "confidential or
proprietary information" shall mean information not generally available to the
public, including without limitation personnel information, financial
information, customer lists, supplier lists, ownership information, marketing
plans and analyses, trade secrets, know-how, computer software, management
agreements and procedures and techniques of operating and managing the business
of the Company and its subsidiaries and affiliates. The Executive acknowledges
and agrees that all confidential or proprietary information is and shall remain
the property of the Company and its subsidiaries and affiliates, and agrees to
maintain all such confidential or proprietary information in confidence.
(d) DEVELOPMENTS. All inventions patentable, copyrightable or
otherwise, trade secrets, discoveries, improvements, ideas and writings
(hereinafter collectively termed "developments"), which Executive, alone or
jointly with others, has conceived, made, enhanced, modified, developed, or
acquired, or may conceive, make, enhance, modify, develop, or acquire during the
period of his employment hereunder or during an additional period of one (1)
year after the termination of such employment and which relate to the Company's
business of developing and marketing computer hardware and software, and all
developments which relate to the work upon which Executive shall have been
engaged while in the Company's employment, which Executive has conceived, made,
enhanced, modified, developed, or acquired, or may conceive, make, enhance,
modify, develop, or acquire during the period of his employment or during a
period of one (1) year after the termination of such employment, to the extent
that such developments are possessed by Executive at any time, shall be the sole
property of the Company. The term "development" shall include developments
conceived, devised, made, developed or perfected during off-duty hours and away
from the Company's premises as well as to those conceived, devised, made,
developed, or perfected in the regular course of employment.
(e) DISCLOSURE AND COOPERATION. Executive shall promptly and fully
disclose in writing all such developments described in subparagraph (d) hereof
to the Company's Chief Executive Officer. Executive shall, at any time upon the
Company's request, whether or not then in the Company's employ, execute,
acknowledge and deliver to the Company all instruments which the Company shall
prepare, give evidence, and do all other things which are necessary or
desirable, to enable the Company to file and prosecute applications for, and to
acquire, maintain and enforce
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all patents, trademarks, copyrights, and any other intellectual property rights
in all countries, covering such developments. The Company agrees to pay to
Executive reasonable expenses incurred by Executive under this subparagraph (e).
6.2 REMEDIES. It is recognized and acknowledged by each of the Company and
the Executive that a breach or violation by the Executive of any or all of his
covenants and agreements contained in Section 6.1 of this Agreement will cause
irreparable harm and damage to the Company and its subsidiaries and affiliates
in a monetary amount which would be virtually impossible to ascertain and,
therefore, will deprive the Company of an adequate remedy at law. Accordingly,
if the Executive shall breach or violate any or all of his covenants and
agreements set forth in Section 6.1 hereof, then the Company and its
subsidiaries and affiliates shall have resort to all equitable remedies,
including without limitation the remedies of specific performance and
injunction, both permanent and temporary, as well as all other remedies which
may be available at law.
6.3 INTENT. It is the intent of the parties that the restrictions set
forth in Section 6.1 hereof shall be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement of
such restrictions may be sought. If any provision contained in Section 6.1
hereof shall be adjudicated by a court of competent jurisdiction to be invalid
or unenforceable because of its duration or geographic scope, then such
provision shall be reduced by such court in duration or geographic scope or both
to such extent as to make it valid and enforceable in the jurisdiction where
such court is located, and in ail other respects shall remain in full force and
effect.
ARTICLE VII
INDEMNIFICATION
The Company shall indemnify auld hold harmless the Executive from and
against the full amount of any and all claims, demands, suits, actions,
judgements, losses, liabilities, costs, interest and expenses, including without
limitation fees and disbursements of trial and appellate counsel, asserted or
brought against the Executive by any Person with respect to any action taken or
omitted to be taken by the Executive in the course of his employment by the
Company or otherwise related to or arising out of his employment by the Company
or acting as a director, officer, employee or agent of the Company or any of its
subsidiaries or affiliates. This right to indemnification shall be in effect to
the fullest extent available pursuant to law, and shall be in addition to any
other right to indemnification the Executive may possess pursuant to law and the
Articles of Incorporation and Bylaws of the Company or any of its subsidiaries
or affiliates.
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ARTICLE VIII
ATTORNEYS' FEES
In the event that any litigation shall arise between the Company and the
Executive based, in whole or in part, upon this Agreement or any or all of the
provisions contained herein, then, in any such event, the prevailing party in
any such litigation shall be entitled to recover from the non-prevailing party,
and shall be awarded by a court of competent jurisdiction, any and all
reasonable fees and disbursements of trial and appellate counsel paid, incurred
or suffered by such prevailing party as the result of, arising from, or in
connection with, any such litigation.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 GOVERNING LAW. This Agreement shall be governed by, and shall be
construed and interpreted in accordance, with the laws of the State of Florida.
9.2 NOTICES. Any and all notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed to have been duly given when delivered by hand, or when delivered by
United States mail, by registered or certified mail, postage prepaid, return
receipt requested, to the respective parties at the following respective
addresses:
If to the Company: Galacticomm Technologies, Inc.
0000 X.X. 00 Xxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
If to the Executive: Xxxxxxx Xxxxxxx
00000 X.X. 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
or to such other address as either party may from time to time give written
notice of to the other in accordance with the provisions of this Section 9.2.
9.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and the Executive with respect to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
arrangements, both oral and written, between the Company and the Executive with
respect to such subject matter.
9.4 AMENDMENTS. This Agreement may not be amended or modified in any
manner, except by a written instrument executed by each of the Company and the
Executive.
9.5 BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit of,
and shall be binding upon, each of the Company and the Executive and their
respective heirs, personal representatives, executors, legal representatives,
successors and assigns.
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9.6 SEVERABILITY. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part hereof,
all of which are inserted conditionally on their being valid in law. Except as
otherwise provided in Section 6.3 above, if any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall be
declared invalid by any court of competent jurisdiction, then, in any such
event, this Agreement shall be construed as if such invalid word or words,
phrase or phrases, sentence or sentences, clause or clauses, or section or
sections had not been inserted.
9.7 NO WAIVERS. The waiver by either party of a breach or violation of any
provision of this Agreement by the other party shall not operate nor be
construed as a waiver of any subsequent breach or violation. The waiver by
either party to exercise any right or remedy it or he may possess shall not
operate nor be construed as a bar to the exercise of such right or remedy by
such party upon the occurrence of any subsequent breach or violation.
9.8 JURISDICTION AND VENUE; SERVICE OF PROCESS. Any claim or dispute
arising out of, connected with, or in any way related to this Agreement which
results in litigation shall be instituted by the complaining party and
adjudicated either in the federal or state courts located in Broward County,
Florida and each of the parties to this Agreement consent to the personal
jurisdiction of and venue in such courts. In no event shall either party to this
Agreement contest the jurisdiction or venue of such courts with respect to any
such litigation. Each of the Company and the Executive agrees that service of
any process, summons, notice or document, by United States registered or
certified mail, to its or his address set forth in or as provided in Section 9.2
above shall be effective service of such process, summons, notice or document
for any action, suit or proceeding brought against it or him by the other party
in the federal or state courts located in Broward County, Florida.
9.9 HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
any or all of the provisions hereof.
9.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the separate parties in separate counterparts, each of which
shall be deemed to constitute an original and all of which shall be deemed to
constitute the one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has executed and delivered
this Agreement as of the date first written above.
GALACTICOMM TECHNOLOGIES, INC.
/s/ XXXXXXX XXXXXXX By: /s/ XXXXX XXXX
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Xxxxxxx Xxxxxxx Name: Xxxxx Xxxx
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Title: CEO
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