EXHIBIT NO. 6.7
EMPLOYMENT AGREEMENT BETWEEN INTEGRATED
SYSTEMS INTERNATIONAL, INC. AND XXXXXXXX X. XXXXXXX
DATED MARCH 12, 2000.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, entered into as of the 12th day of March,
2000, by and between Integrated Systems International, Inc., a Nevada
corporation, with its principal place of business at 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxxxx X. Xxxxxxx, residing
at 00 Xxxxx Xxxxxx, X00, Xxxxxxx, Xxxxxxxxxxx 00000 (the "Employee").
WITNESSETH:
WHEREAS, the Company wishes to employ the Employee upon the terms
and conditions contained herein; and
WHEREAS, the Employee wishes to accept employment with the Company
upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the parties hereto
hereby agree as follows:
1. EMPLOYMENT
The Company hereby employs the Employee and the Employee hereby
accepts employment upon the terms and conditions set forth herein.
2. AT WILL EMPLOYMENT
The employment hereunder shall be "at will" and the Employee will
serve at the will of the Company's Board of Directors and may be terminated
by the Company's Board of Directors at any time for any reason. Nothing in
this Agreement will be interpreted to give the Employee any status other than
that of an "at will" employee. Upon any termination of this Agreement by the
Company, the Company shall pay Employee the sum of $10,000.
3. SERVICES TO BE RENDERED
The Employee shall serve as the Company's President and Chief
Executive Officer and shall perform duties consistent with those of a
President and Chief Executive Officer and such other duties as shall be
designated from time to time by the Board of Directors or Chairman of the
Company. He will report directly to the Chairman of the Board of Directors.
The Employee will be one of the Company's principal operating officers and
will conduct and manage the Company's business in accordance with policies
established by the Company from time to time. The precise services of the
Employee may be extended or curtailed from time to time at the direction and
in the sole discretion of the Company's Board of Directors. Unless prevented
by death or disability, the Employee shall devote his full business time,
allowing for vacations and national holidays, as set forth in Sections 5(d)
and (e) hereof, and illnesses, exclusively to the business and affairs of the
Company, and shall use his best efforts, skill and abilities to promote the
Company's interests. As an officer of the Company,
the Employee shall be entitled to all rights of indemnification as may be
provided to officers by applicable Nevada law. Nothing herein shall be
construed as requiring the Company, or anybody else, to cause the election of
the Employee as a Director of the Company.
4. COMPENSATION
For the services rendered hereunder, the Company shall pay
and the Employee shall accept the following compensation:
(a) From the commencement of the term hereof until
termination, the Employee shall receive a base annual salary of $120,000,
payable monthly, subject to increase pursuant to annual review by the Board
of Directors; except that Employee shall receive full monthly salary for the
month of March, 2000.
(b) The Employee shall receive any bonus or other
compensation as the Board of Directors may determine from time to time.
(c) The Employee's salary shall be payable subject to
such deductions as are then required by law and such further deductions as
may be agreed to by the Employee, in accordance with the Company's prevailing
salary payroll practices.
(d) Upon execution of this Agreement, Employee shall
receive One Million Five Hundred Thousand (1,500,000) shares of the Company's
common stock, subject to forfeiture (in whole or in part as provided herein)
if Employee's employment hereunder is terminated for any reason or no reason
on or before March 1, 2003. As of the date hereof, the entire One Million
Five Hundred Thousand (1,500,000) shares shall be subject to forfeiture.
Commencing on September 1, 2000 and each 6 months thereafter (i.e., each
March 1 and each September 1 occurring while this Agreement remains in
effect) to and including March 1, 2003, provided this Agreement then remains
in effect, the number of shares subject to forfeiture shall be reduced by
250,000. Thus, as an example of the foregoing, on September 1, 2000, provided
this Agreement is then in effect, Two Hundred Fifty Thousand (250,000) shares
shall forever no longer be subject to forfeiture pursuant to this Section.
Certificates for shares subject to forfeiture shall be held in escrow by the
Company's counsel and released to Employee, if as and when (and to the
extent) same are no longer subject to forfeiture.
5. BENEFITS AND EXPENSES
(a) After three (3) months from the date hereof, the
Company shall provide the Employee with health insurance coverage that is
comparable to insurance benefits generally offered in the industry, at the
Company's sole expense.
(b) In the event that the Employee's employment by the
Company is terminated for any reason, the Employee shall have the right to
purchase from the Company any insurance policies on his life owned by the
Company for a price equal to the cash surrender value of the policies
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at the date of such termination, plus prepaid premiums, and to acquire any
disability income insurance policies maintained for him as provided in such
policies. The right to purchase shall be exercised by the Employee by written
notice to the Company not less than thirty (30) days after the date of such
termination, and the purchase price for such policies shall be paid by the
Employee to the Company.
(c) During the term of this Agreement, the Company shall,
upon presentation of proper vouchers, reimburse the Employee for all
reasonable expenses incurred by him directly in connection with his
performance of services as an officer and employee of the Company.
(d) The Employee shall be entitled to four (4) weeks
of paid vacation per calendar year. Vacation entitlements are non-cumulative
except that a total of up to ten (10) unused vacation days per year may be
carried over into the next calendar year. Notwithstanding the foregoing, the
parties agree that for the calendar year ending December 31, 2000, the
Employee will be entitled to two (2) weeks of paid vacation.
(e) The Employee shall receive as paid days off all
national holidays, sick days, and personal days that the Company, pursuant to
established policy, recognizes and observes.
6. COVENANTS AND RESTRICTIONS
(a) The Employee hereby covenants and agrees that the
Employee will not at any time subsequent to the date hereof and continuing
for a period of two (2) years from the termination of the Employee, reveal,
divulge, or make known to any Person any Confidential Information (as
hereinafter defined) made known to the Employee or of which Employee has
become aware, regardless of whether developed, prepared, devised or otherwise
created in whole or in part by the efforts of the Employee and except to the
extent so authorized in writing by the Company in order to carry out the
terms of this Agreement or except as required by law. For purposes of this
Agreement, the term "Confidential Information" shall mean (i) any technical,
scientific or engineering information relating to the Company's products
and/or services, (ii) information relating to any customer of the Company,
including without limitation, the names, addresses, telephone numbers and
sales records of, or pertaining to any such customer, and (iii) price lists,
methods of operation and other information pertaining to the Company and
which the Company, in its sole discretion, regards as confidential and in the
nature of trade secrets. Notwithstanding anything contained herein to the
contrary, Confidential Information as used herein shall not include that
which (i) was in the public domain prior to receipt hereunder in the same
context as the disclosure made hereunder, (ii) the Employee can show was in
his possession and in the same context prior to his receipt, (iii)
subsequently becomes known to the Employee as a result of disclosure by third
parties not in the course of this Agreement and as a matter of right and
without restriction on disclosure, or (iv) subsequently comes into the public
domain in the same context as the disclosure by the Company through no fault
of the Employee.
(b) The Employee further covenants and agrees that the
Employee will retain all of such Confidential Information in trust for the
sole benefit of the Company, and will not divulge or
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deliver or show any of such Confidential Information to any unauthorized
person and will not make use of or in any manner seek to turn to account any
of such Confidential Information in an independent business however unrelated
to the business of the Company. The Employee further agrees that upon the
termination of this Agreement or upon the request of the Company, the
Employee will either supply or return to the Company, in accordance with the
Company's request, all Confidential Information in the Employee's possession,
including, without limitation, all account lists, records and data related to
all customers of the Company.
(c) The Employee acknowledges that his breach or
threatened violation of any of the restrictive covenants contained in this
Section 6 may cause irreparable damage to the Company for which remedies at
law would be inadequate. The Employee further acknowledges that the
restrictive covenants set forth herein are essential terms and conditions of
this Agreement. The Employee therefore agrees that the Company shall be
entitled to a decree or order by any court of competent jurisdiction
enjoining such threatened or actual violation of any of such covenants. Such
decree or order, to the extent appropriate, shall specifically enforce the
full performance of any such covenant by the Employee and the Employee hereby
consents to the jurisdiction of any such court of competent jurisdiction.
This remedy shall be in addition to all other remedies available to the
Company at law or equity. If any portion of this Section 6 is adjudicated to
be invalid or unenforceable, this Section 6 shall be deemed amended to delete
therefrom the portion so adjudicated, such deletion to apply only with
respect to the operation of this Section 6 in the jurisdiction in which such
adjudication is made.
7. PROPRIETARY PROPERTY
(a) The parties hereto hereby agree that Proprietary
Property (as hereinafter defined) shall be the sole and exclusive property of
the Company, except as provided below. For purposes hereof, the term
"Proprietary Property" shall mean inventions, discoveries, improvements and
ideas, whether patentable or not, made solely by the Employee or jointly with
others, which relate to the Company's business, including any of its
products, services, processes, technology, research, product development,
marketing programs, manufacturing operations, or engineering activities.
(b) The Employee shall promptly disclose to the Company
in writing all Proprietary Property, including those in the formative stages,
created during the term hereof, irrespective of whether created during normal
business hours. In addition, the Employee hereby agrees to promptly disclose
to the Company all Proprietary Property created subsequent to the date
of termination hereof, irrespective of the reasons for termination hereof,
which relate to or constitute an improvement on Proprietary Property or
Confidential Information, as defined herein.
(c) The Employee hereby agrees and acknowledges that the
Employee shall have no right, title or interest in or with respect to any
Proprietary Property, except as described below, and will during the term
hereof or at any time subsequent to the termination hereof, at the Company's
request and expense, execute any and all patent applications and assignments
to the Company and
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take any all action as required by the Company to perfect and maintain the
Company's rights and interests in and with respect to the Proprietary
Property.
(d) The Employee hereby agrees to maintain written
records concerning the Proprietary Property and agrees to make those records
available to the Company at all times.
(e) Notwithstanding anything contained herein to the
contrary, Proprietary Property shall not include inventions or discoveries
with respect to which all of the following conditions apply:
(i) no equipment, supplies, facilities or
Confidential Information of the Company was used in
its development;
(ii) it does not relate the Company's business and/or
any proposed or planned products or services of the
Company, including any research and development
activities; and
(iii) it does not result from any work performed by
the Employee for the Company.
(f) During or subsequent to the Employee's employment by
Company, the Employee will not, directly or indirectly, lecture upon, publish
articles concerning, use, disseminate, disclose, sell or offer for sale any
Proprietary Property without the Company's prior written permission.
8. PRIOR AGREEMENTS
The Employee represents that he is not now under any written
agreement, nor has he previously, at any time, entered into any written
agreement with any person, firm or corporation, which would or could in any
manner preclude or prevent him from giving freely and the Company receiving
the exclusive benefit of his services.
9. NON-COMPETE
The Employee recognizes that the Proprietary Property is a special
and unique asset of the Company and needs to be protected from improper
disclosure. In consideration of the disclosure of the Proprietary Property to
the Employee, the Employee agrees and covenants that for a period of one (1)
year following the termination of his employment for any reason whatsoever,
the Employee will not directly or indirectly engage in any business that is
competitive to the Company. This covenant shall apply to the geographical
area that includes the entire world. "Directly or indirectly engaging in any
business that is competitive" includes, but is not limited to: (a) engaging
in a business as an owner, partner or agent, (b) becoming an employee of any
third party that is engaged in such business, (c) becoming interested
directly or indirectly in any such business, or (d) soliciting any
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customer of the Company for the benefit of a third party that is engaged in
such business. The Employee agrees that this non-compete provision will not
adversely affect the Employee's livelihood.
10. MEDIATION AND ARBITRATION.
(a) If any dispute, controversy or claim arises in
connection with the performance or breach of this Agreement between the
parties, a party hereto may, upon written notice to the other parties,
request facilitated negotiations. Such negotiations shall be assisted by a
neutral facilitator acceptable to all parties and shall require the best
efforts of the parties to discuss with each other in good faith their
respective positions and, respecting their different interest, to finally
resolve such dispute.
(b) A party may disclose any facts to the other parties
or to the facilitator which such party believes, in good faith, to be
necessary to resolve the dispute. All such disclosures shall be deemed in
furtherance of settlement efforts and thus confidential. Except as agreed to
by all parties, the facilitator shall keep confidential all information
disclosed during the negotiations. The facilitator shall not act as a witness
for either party in any subsequent arbitration between the parties.
(c) Such facilitated negotiations shall conclude within
sixty (60) days from receipt of the written notice, unless extended by mutual
consent of the parties. The costs incurred by each party in such negotiations
shall be borne by it. Any fees or expenses of the facilitator shall be borne
equally by all parties.
(d) If any dispute, controversy or claim arises in
connection with the performance or breach of this Agreement which cannot be
resolved by facilitated negotiations, then such dispute, controversy or claim
shall be settled by arbitration in accordance with the laws of the State of
New York and the then current Commercial Arbitration Rules of the American
Arbitration Association, except that no pre-hearing discovery will be
permitted unless specifically authorized by the arbitration panel. The
confidentiality provisions applicable to facilitated negotiations shall also
apply to arbitration.
(e) The award issued by the arbitration panel may be
confirmed in a judgment by any federal or state court of competent
jurisdiction. All reasonable costs of both parties, as determined by the
arbitration panel, including (i) the fees and expenses of the American
Arbitration Association and of the arbitration panel, and (ii) the costs,
including reasonable attorneys' fees, incurred to confirm the award in court,
shall be borne entirely by the non-prevailing party (to be designated by the
arbitration panel in the award) and may not be allocated between the parties
by the arbitration panel.
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11. MISCELLANEOUS
(a) This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, and upon the Employee,
his heirs, executors, administrators, legatees and legal representatives.
(b) Should any part of this Agreement, for any reason
whatsoever, be declared invalid, illegal, or incapable of being enforced in
whole or in part, such decision shall not affect the validity of any
remaining portion, which remaining portion shall remain in full force and
effect as if this Agreement had been executed with the invalid portion
thereof eliminated, and it is hereby declared the intention of the parties
hereto that they would have executed the remaining portion of this Agreement
without including therein any portion which may for any reason be declared
invalid.
(c) This Agreement shall be construed and enforced in
accordance with the laws of the State of New York applicable to agreements
made and to be performed in such State without application of the principles
of conflicts of laws of such State.
(d) This Agreement and all rights hereunder are personal
to the Employee and shall not be assignable, and any purported assignment in
violation thereof shall be null and void. Any person, firm or corporation
succeeding to the business of the Company by merger, consolidation, purchase
of assets or otherwise, shall assume by contract or operation of law the
obligations of the Company hereunder; provided, however, that the Company
shall, notwithstanding such assumption and/or assignment, remain liable and
responsible for the fulfillment of the terms and conditions of the Agreement
on the part of the Company.
(e) This Agreement constitutes the entire agreement
between the parties hereto with respect to the terms and conditions of the
Employee's employment by the Company, as distinguished from any other
contractual arrangements between the parties pertaining to or arising out of
their relationship, and this Agreement supersedes and renders null and void
any and all other prior oral or written agreements, understandings, or
commitments pertaining to the Employee's employment by the Company. This
Agreement may only be amended upon the written agreement of both parties
hereto.
(f) Any notice, statement, report, request or demand
required or permitted to be given by this Agreement shall be in writing, and
shall be sufficient if delivered in person or if addressed and sent by
certified mail, return receipt requested, postage prepaid, to the parties at
the addresses set forth above, or at such other place that either party may
designate by notice in the foregoing manner to the other. If mailed as
aforesaid, any such notice shall be deemed given three (3) days after being
so mailed.
(g) The failure of either party to insist upon the strict
performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or
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relinquishment of future compliance therewith, and said terms, conditions and
provisions shall remain in full force and effect. No waiver of any term or
any condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and
signed by such party.
(h) The provisions of Sections 6, 7, 9, 10 and 11 of this
Agreement shall survive any termination of this Agreement.
(i) The headings of the paragraphs herein are inserted
for convenience and shall not affect any interpretation of this Agreement.
(j) Employee warrants and avers that he has not
previously been subject to arrest or otherwise convicted of any crime by a
court of competent jurisdiction within or without the United States of
America and further states that he has not been or is presently the subject
of any criminal investigation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
Employee Integrated Systems International, Inc.
/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxx
----------------------------- -------------------------------------
Xxxxxxxx X. Xxxxxxx Name: Xxxx Xxxxx
Title Chairman
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