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EXHIBIT 10.11 EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") made as of
this 2nd day of February 1999 by and between the parties: XXXX XXXXX, an
individual whose address is X.X. Xxx 0000, Xxxx Xxxx, Xxxxxxxxxx 00000
(hereinafter referred to as the "Executive"), and TELESERVICES INTERNATIONAL
GROUP INC., a Florida corporation with its principal executive offices at 000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as the "Company").
W I T N E S S E T H
WHEREAS, the Company desires to retain and employ the
Executive for the purpose of securing to the Company the experience, ability and
services of the Executive; and
WHEREAS, the Executive desires to be employed by the Company;
NOW, THEREFORE, it is mutually agreed by and between the
parties as follows:
ARTICLE I
EMPLOYMENT
The Company hereby employs the Executive as its Chief
Information Officer (CIO) and a Senior Vice President (SrVP) effective the
earlier of April 1, 1999, or the day following the effective date of the
termination of Executive's prior employment, and the Executive hereby accepts
such employment and shall serve on a full-time basis as an executive officer of
the Company, subject to and upon the terms and conditions set forth in this
Agreement.
ARTICLE II
DUTIES
(A) The Executive shall, during the term of his employment with the
Company and subject to the direction and control of the Company's Board of
Directors (the "Board" or the "Board of Directors"), perform such executive
duties and functions as he may be called upon to perform consistent with his
employment hereunder as CIO and SrVP.
(B) The Executive shall devote his full time and best efforts to the
performance of his duties for the Company, including the following:
(i) Develop, implement, and monitor policies and procedures
appropriate to the day-to-day operation of the Company's information
technology functions.
(ii) Confer with Company officials to develop, implement and
supervise an "online services" division.
(iii) Promote the Company's relationships with its employees,
customers, shareholders and others in the business community.
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(iv) Monitor and evaluate performance of staff for compliance
with established policies and objectives of the Company and
contributions in attaining objectives.
(v) Render services to any joint venture, subsidiary or
affiliated business of the Company as requested by the Board of
Directors, provided that indemnification equivalent to that referred to
in Article IV (D) is provided to Executive in connection with those
services.
(vi) Perform such other duties consistent with his position as
CIO and SrVP as may be assigned to him by the Board of Directors.
(C) At the request of the Company, the Executive shall also serve,
without additional compensation, as CIO, SrVP and/or as a director of one or
more of the Company's subsidiaries during the term of this Agreement, provided
that indemnification equivalent to that referred to in Article IV (D) is
provided to Executive in connection with those services.
(D) The Executive represents and warrants that he will not knowingly
use or disclose, in connection with his employment by the Company, any trade
secrets or other proprietary information or intellectual property in which the
Executive or any other person has any right, title or interest and that, to the
best of his knowledge, his employment by the Company as contemplated by this
Agreement will not infringe or violate the rights of any other person. The
Executive represents and warrants to the Company that he has returned all
property and confidential information belonging to his most recent prior
employer.
ARTICLE III
COMPENSATION
(A) The Company shall pay to the Executive for all services to be
rendered pursuant to the terms of this Agreement a base salary at the rate of
$150,000 per year (unless adjusted by the Board of Directors as described
below), payable in accordance with the Company's normal payroll procedures. The
Board may increase Executive's base salary from time to time in its discretion.
(B) The Executive shall be paid a signing bonus of $20,000, payable
upon the commencement of employment hereunder.
(C) The Executive shall be entitled to quarterly cash performance
bonuses equal to three percent (3%) of the gross margin (as determined pursuant
to generally accepted accounting principals) derived from the Company's "online
services" division; provided, however, that payment shall be made no later than
the later of (i) ten (10) business days after the Company collects payment of
amounts included as revenues in determining gross margin, or (ii) one month
following the close of the applicable fiscal quarter. The parties may, by
addendum to this Agreement, establish a precise formula to be used to calculate
"gross margin."
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ARTICLE IV
WORKING CONDITIONS AND BENEFITS
(A) The Executive shall be entitled to paid vacations during each year
of his employment with the Company in accordance with Company practice in that
year, but no less than as described on the attached Exhibit A, which is
incorporated in this Agreement as a part hereof by this reference. The Executive
shall also be entitled to leave for illness or temporary disability, which may
be paid or unpaid, in accordance with the policies of the Company in effect at
that time, but no less favorable to Executive than described on Exhibit A.
(B) The Executive is authorized to incur reasonable and necessary
expenses for promoting the business of the Company, including expenses for
entertainment, travel and similar items. The Company shall reimburse the
Executive on a monthly basis for all such expenses, upon presentation by the
Executive of an itemized account of such expenditures.
(C) The Executive shall not be required to relocate to the Company's
executive offices in St. Petersburg, Florida. The Company will obtain office
space in or around Palo Alto, California for use by the Executive. The Executive
shall travel on the Company's behalf to the extent reasonably necessary.
(D) The Company shall indemnify and defend Executive in any claim,
proceeding or lawsuit, and in connection with any appeal thereof, which may be
threatened, asserted or commenced against the Executive (i) by reason of the
fact that he is or was a director, officer, employee or other agent of the
Company, or (ii) by reason of the fact that he is or was serving at the request
of the Company as a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust, or other enterprise or employee
benefit plan; provided that indemnification shall not be provided in violation
of applicable law. The Company's obligation to indemnify and defend Executive as
described herein shall continue even though the Company terminates its
employment relationship with Executive. The indemnification to be provided to
Executive shall include coverage of him by officer and director insurance no
less favorable to Executive than the policies referred to on Exhibit A and
mandatory advancement of expenses, including reasonable attorney fees and costs
of court-approved settlements, actually and necessarily incurred by Executive in
connection with the defense of the foregoing. The Company shall not be obligated
to advance expenses hereunder unless Executive provides written undertaking to
repay any such amount advanced if he is ultimately found not to be entitled to
indemnification under applicable law.
ARTICLE V
OTHER BENEFITS
(A) Contemporaneously with the execution of this Agreement, the Company
shall grant the Executive options to acquire 750,010 shares of the Company's
restricted common stock at an exercise price per share equal to $0.30. The
options shall vest (and shall become exercisable at the time they vest), subject
to continued employment, as follows: 250,000 options shall vest on the date the
Executive commences employment hereunder; and 14,286 options shall vest on the
first day of each month for 35 consecutive months, commencing April 1, 1999. All
options shall expire five (5) years from the date of grant. The following terms
and conditions apply to the options: (i) both the number of options and the
exercise price are subject to appropriate adjustments in the
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event of any stock split, stock dividend or other change in capital structure
affecting the Company's common stock, (ii) the options and the shares of common
stock issuable upon exercise of the options are subject to restrictions on
transfer, as required by applicable federal and state securities laws; (iii)
options which have not vested on or before the date of termination of
Executive's employment shall terminate on such date, and (iv) all vested options
must be exercised within the earlier of the expiration date of the options or
one year after termination of Executive's employment. The Executive acknowledges
that as long as he remains an executive officer or director of the Company he
shall be deemed an "affiliate" and/or a "control person" for purposes of
reporting and compliance under the rules and regulations of the Securities and
Exchange Commission.
(B) During the term hereof, the Executive shall be entitled to receive
such of the following other benefits of employment that are or may become
available to other members of the Company's senior executive management: health
and life insurance benefits, pension, profit sharing and income protection or
disability plans, in each instance consistent with his position as President and
no less favorable to Executive than any description thereof on Exhibit A.
(C) Stock options in addition to those described above may be granted
from time to time in the discretion of the Board.
ARTICLE VI
TERM
The Company shall continue the Executive's employment, and the
Executive shall remain in employment with the Company, from the commencement
date set forth in Article I until the date when the Executive's employment
terminates pursuant to Article VII.
ARTICLE VII
TERMINATION
(A) The Executive may voluntarily terminate this Agreement at any time
upon written notice to the Company. The Executive shall provide at least two
weeks advance notice to the Company of his election to voluntarily terminate
this Agreement.
(B) The Company may terminate this Agreement for Cause at any time by
giving the Executive written notice thereof specifying with particularity the
grounds for such termination. In such event, this Agreement and the employment
relationship hereunder shall be terminated as of the date of such written notice
and the Executive will be entitled to no further payments from the Company. The
Company shall continue, however, to provide Executive with the indemnification
referred to in Article IV (D), but shall not be required to provide such
indemnification for or in connection with any matter in which a cause of action
is asserted against the Executive for any act which constitutes grounds for
termination for Cause hereunder. For purposes hereof, "Cause" shall mean (i) a
material violation of the terms of this Agreement that has not been cured by
Executive within 10 days of his receipt of notice particularly describing each
such violation; (ii) a breach of trust, including dishonesty, acts of moral
turpitude, theft, embezzlement and self-dealing; (iii) the disclosure of
confidential information prohibited hereunder (except disclosure in the
good-faith belief that the same is for the benefit of the Company) which results
(or can reasonably be expected to result) in material harm to the Company; or
(iv) gross negligence or willful misconduct, either of
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which results (or can reasonably be expected to result) in material harm to the
Company. Notice of termination for Cause shall be forwarded to the Executive by
the Company only upon and after a resolution of the Board authorizing such
notification and shall be effective immediately; provided, however, that the
Executive may be reinstated retroactively, in the discretion of the Board, in
the event that within ten days the Executive establishes to the satisfaction of
the Board that Cause did not exist.
(C) The Company may terminate this Agreement at any time upon at least
two weeks advance notice to the Executive; such notice shall be forwarded to the
Executive by the Company only upon and after a resolution of the Board
authorizing such notification and shall be deemed a termination without Cause.
(D) Subject to Paragraph (C), the Executive's employment with the
Company shall be "at will." Any contrary representations which may have been
made to the Executive shall be superseded by this Agreement. This Agreement
shall constitute the full and complete agreement between the Executive and the
Company on the "at will" nature of the Executive's employment, which may only be
changed in an express written agreement signed by the Executive and a duly
authorized officer of the Company.
ARTICLE VIII
SEVERANCE BENEFITS
(A) Executive shall be entitled to receive the severance benefits
specified below in the event there should occur an Involuntary Termination of
his employment (other than a termination for Cause):
(i) Continued Compensation. Executive shall be paid severance
in an amount equal to six (6) months of his base salary at the time of
termination, less applicable withholdings, payable in a lump sum.
(ii) Health Coverage. Executive shall be provided continued
health coverage, without charge, under the Company's medical plan in
accordance with the requirements of Internal Revenue Code Section 4980B
("COBRA") until the earlier of (i) the expiration of the COBRA
continuation period in effect under COBRA or (ii) the first date that
Executive is covered under another employer's health benefit program.
Such coverage shall be in lieu of any other continued health care
coverage to which the Executive and his eligible dependents would
otherwise be entitled pursuant to COBRA by reason of the termination of
the Executive's employment.
(B) In the event of an Involuntary Termination of Executive's
employment within 18 months following a Change in Control of the Company,
Executive shall be entitled to the following severance benefits in lieu of the
benefits under Paragraph (A) above:
(i) Continued Compensation. Executive shall be paid severance
in an amount equal to one (1) year of his base salary at the time of
termination, less applicable withholdings, payable in a lump sum.
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(ii) Health Coverage. Executive shall be provided continued
health coverage, without charge, under the Company's medical plan in
accordance with the requirements of Internal Revenue Code Section 4980B
("COBRA") until the earlier of (i) the expiration of the COBRA
continuation period in effect under COBRA or (ii) the first date that
Executive is covered under another employer's health benefit program.
Such coverage shall be in lieu of any other continued health care
coverage to which the Executive and his eligible dependents would
otherwise be entitled pursuant to COBRA by reason of the termination of
the Executive's employment.
(C) For purposes of this Article VIII, the following definitions shall
be in effect:
(i) Involuntary Termination means either the involuntary
termination of Executive's employment with the Company or Executive's
voluntary resignation following the Company's failure to perform its
obligations under this Agreement as identified by Executive in a
written notice delivered to the Company's Board of Directors at least
ninety (90) days prior to resignation. Involuntary Termination shall
not include any termination of Executive's employment by reason of
death or permanent disability.
(ii) Termination for Cause shall mean an Involuntary
Termination effected for Cause, as such term is defined in Article VII,
Paragraph (B).
(iii) Change in Control means an acquisition of the Company by
merger, sale of all or substantially all of the Company's assets, or
purchase of 50% or more of the Company's assets, or purchase of 50% or
more of the Company's stock, or any other reorganization or series of
transactions resulting in a change of 50% or more in the ownership of
the Company's stock or assets, but only if such Change in Control is
initiated more than one year after the date of this Agreement.
(D) Should Executive die before he receives the full amount of
compensation continuation payments to which he may become entitled under Article
VIII of this Agreement, then the balance of such payments shall be made, on the
due dates hereunder had Executive survived, to the executors or administrators
of his estate.
ARTICLE IX
CONFIDENTIALITY AND NON-COMPETITION
The Executive and the Company recognize that due to the nature
of the Executive's engagement hereunder, and the relationship of the Executive
to the Company, the Executive will have access to, will acquire, and may assist
in developing confidential proprietary information relating to the business and
operations of the Company and its affiliates, including information with respect
to their present and prospective products, systems, customers, agents, processes
and sales and marketing methods. The Executive acknowledges that such
information has been and will continue to be of central importance to the
business of the Company and its affiliates and that
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disclosure of it or its use by others could cause substantial loss to the
Company. The Executive and the Company also recognize that an important part of
the Executive's duties shall be to develop good will for the Company and its
affiliates through his personal contact with customers, agents and others having
business relationships with the Company and its affiliates, and that there is a
danger that this good will, a proprietary asset of the Company and its
affiliates, may follow the Executive if and when his relationship with the
Company is terminated. Therefore, the Executive hereby agrees as follows:
(A) All Company trade secrets, proprietary information, software,
software codes, advertising, sales, marketing and other materials or articles of
information, including customer and supplier lists, data, reports, customer
sales analyses, invoices, price lists or information, samples, or any other
materials or data of any kind furnished to the Executive by the Company or
developed by the Executive on behalf of the Company or at the Company's
direction or for the Company's use or otherwise in connection with the
Executive's employment hereunder, are and shall remain the sole and confidential
property of the Company; if the Company requests the return of such materials at
any time during or after the termination of the Executive's employment, the
Executive shall use commercially reasonable efforts to promptly deliver the same
to the Company.
(B) During the term of Executive's employment and during any period in
which the Executive is receiving severance pay (or would be receiving severance
pay if he receives a lump sum rather than installments), the Executive shall
not, directly or indirectly, own, manage, operate, join or control, or
participate in the ownership, management, operation or control of, or be a
director, stockholder or an employee of, or a consultant to, any business, firm,
corporation or entity which (i) is conducting any business which competes with
the business, as conducted at any time during the term of employment with the
Company, of the Company or any of its affiliates with which Executive had any
substantial management involvement, or (ii) is or was at any time during the
term of employment with the Company a vendor, supplier, customer or distributor
of the Company or any of its affiliates with which Executive had any substantial
management involvement. During the same period of time specified in the
preceding sentence, the Executive shall not solicit, directly or indirectly, for
his own account or for the account of others, orders for merchandise, products
or services of a kind and nature like or similar to merchandise, products and
services sold or rendered by the Company during his employment with the Company
from any person or entity which was a customer of the Company or which the
Company was actively soliciting to be a customer during the 12 month period
immediately preceding that date upon which his employment relationship with the
Company shall have terminated.
(C) During the term of this Agreement and for a period of one year
thereafter, the Executive shall not at any time, directly or indirectly, urge
any customer, or any person or entity which the Company was actively soliciting
to be a customer during the 12 month period immediately preceding that date upon
which his employment relationship with the Company shall have terminated, to
discontinue, in whole or in part, business, or not to do business with, the
Company; nor shall he directly or indirectly induce or attempt to influence any
employee of the Company to terminate his or her employment with the Company.
(D) During the term of this Agreement and at all times thereafter, the
Executive shall not knowingly use for his personal benefit, or disclose,
communicate or divulge to, or use for the direct or indirect benefit of any
person, firm, association or entity other than the Company, any material
referred to in Paragraph (A) above or any information regarding the business
methods, business
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policies, procedures, techniques, research or development projects or results,
trade secrets, or other knowledge or processes used or developed by the Company
or any names and addresses of customers or clients or any other confidential
information relating to or dealing with the business operations or activities of
the Company, first made known to the Executive or first learned or acquired by
the Executive while in the employ of the Company.
(E) The foregoing provisions of this Article shall not (i) prevent
Executive from owning five percent or less of the outstanding stock of any
publicly traded entity, (ii) apply to information of any type that is publicly
disclosed, or is or becomes publicly available, in each instance without a
violation by Executive of the provisions of this Article, and (iii) be construed
to prevent disclosure by Executive pursuant to legal process, provided in this
event Executive shall endeavor to give reasonable advance notice to the Company
of any such legal process involving him that may result in otherwise prohibited
disclosure.
(F) It is recognized that damages in the event of breach by the
Executive of this Article would be difficult, if not impossible, to ascertain,
and it is, therefore, agreed that the Company shall have the right to an
injunction or other equitable relief in any court of competent jurisdiction,
enjoining any breach, and the Executive hereby waives any and all defenses he
may have on the ground of lack of jurisdiction or competence of the court to
grant such injunction or other equitable relief. The existence of this right
shall not preclude any other rights and remedies at law or in equity which the
Company may have.
ARTICLE X
CONSTRUCTION, ENFORCEABILITY AND SEVERABILITY
(A) The descriptive headings of Articles, or of or in any exhibit, are
inserted for convenience only and are not a part of this Agreement. Unless
otherwise qualified, references in this Agreement to "Article" are to provisions
of this Agreement and a reference thereto includes any subparts. As used herein,
the singular includes the plural, the plural includes the singular, and words in
one gender include the others, the terms "party" and "parties" are references to
the Company and/or the Executive as permitted or required by the context,
"herein", "hereunder", "hereof" and similar references refer to the whole of
this Agreement, "include", "including" and similar terms are not words of
limitation, and any examples are not limiting. The failure of an incorporated
party to affix its corporate seal to this Agreement shall not impair the
validity of the signature of that party but shall, instead, be the adoption by
that party of the phrase "(CORPORATE SEAL)" as the corporate seal of that party
for the purposes of this Agreement. In the event any date specified herein or
determined hereunder shall be on a Saturday, Sunday or nationally declared
holiday, then that date so specified or determined shall be deemed to be the
next business day following such date and compliance by or on that day shall be
deemed to be compliance with the terms of this Agreement.
(B) To the extent any provision or portion of this Agreement shall be
held, found or deemed to be invalid, unreasonable, unlawful or unenforceable,
then the parties expressly covenant and agree that any such provision or portion
shall be modified to the extent necessary in order that any such provision or
portion shall be legally enforceable to the fullest extent permitted by
applicable law and that any court of proper jurisdiction shall, and the parties
do hereby expressly authorize any such court to, enforce any such provision or
portion or to modify any such provision or portion in order that any such
provision or portion shall be enforced by such court to the fullest
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extent permitted by applicable law. If any provision or portion of this
Agreement shall be held invalid or unenforceable, the remainder of this
Agreement shall remain in full force and effect. If any provision or portion of
this Agreement is held invalid or unenforceable with respect to particular
circumstances, it shall remain in full force and effect in all other
circumstances.
(C) The Company represents and warrants to the Executive that, to the
best of its knowledge, it has been duly authorized to execute, deliver and
perform this Agreement and each related agreement, and that execution, delivery
and performance hereof and thereof is not and will not be a breach or violation
of any obligation or commitment, whether contractual or otherwise, to which the
Company is subject or by which it is bound.
ARTICLE XI
ARBITRATION
Any controversy or claim arising out of or relating to this
Agreement or the breach thereof, or the Executive's employment or the
termination thereof, shall be settled by arbitration in Palo Alto, California,
if demanded by the Company, or in St. Petersburg/Tampa Florida if demanded by
the Executive, in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association. The decision of the
arbitrator shall be final and binding on the parties, and judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be empowered to enter an equitable decree
mandating specific enforcement of the terms of this Agreement. The Company and
the Executive shall share equally all fees and expenses of the arbitrator;
provided, however, that the Company or the Executive, as the case may be, shall
bear all fees and expenses of the arbitrator and all of the legal fees and
out-of-pocket expenses of the other party if the arbitrator determines that the
claim or position of the Company or the Executive, as the case may be, was
without reasonable foundation. The Executive and the Company each hereby consent
to personal jurisdiction of the state and federal courts located within the
territorial limits of the above venues, for any action or proceeding arising
from or relating to this Agreement or relating to any arbitration in which the
parties are participants, and waive all venue objections with respect to such
arbitration, actions or proceedings.
ARTICLE XII
NOTICE
Any notice, request, demand or other communication required to
be given under the terms of this Agreement shall be in writing and shall be
deemed to have been duly given if delivered to the addressee in person or mailed
by certified mail, return receipt requested, to the Executive at the last
resident address he has provided to the Company, or in the case of the Company,
at its principal executive offices.
ARTICLE XIII
BENEFIT
This Agreement shall inure to and shall be binding upon the
parties, the successors and assigns of the Company, and the heirs and personal
representatives of the Executive.
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ARTICLE XIV
WAIVER
The waiver by either party of any breach or violation of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
ARTICLE XV
GOVERNING LAW
The law of the State of Florida (except its provisions
governing the choice of law) shall govern the construction, enforcement and
validity of this Agreement.
ARTICLE XVI
ENTIRE AGREEMENT
This Agreement constitutes or refers to the entire
understanding of the Executive and the Company with respect to the subject
matter hereof and supersedes any and all prior understandings written or oral.
This Agreement may not be changed, modified or discharged orally, but only by an
instrument in writing signed by the parties.
ARTICLE XVII
COUNTERPARTS AND FACSIMILE SIGNATURES
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Execution and delivery of
this Agreement by exchange of facsimile copies bearing the facsimile signature
of a party shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute enforceable
original documents.
IN WITNESS WHEREOF, the parties have executed this Agreement
and affixed their hands and seal the day and year first above written.
EXECUTIVE
--------------------------------------------
Xxxx Xxxxx
TELESERVICES INTERNATIONAL GROUP INC.
By:
-----------------------------------------
Xxxxxx X. Xxxxxx, Chairman
(CORPORATE SEAL)
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EXHIBIT A
SENIOR VICE PRESIDENT AND CHIEF INFORMATION OFFICER
Paid Vacation - 3 Weeks per year accrued monthly.
Sick Time - 6 days per year accrued at one half day per month.
Holidays - 8.5 annually
Health Insurance - United HealthCare
Eligible on the first of the month following your first 90 days Family
Coverage Total Premium - $508.83 monthly Company Pays - $168.65 monthly
Employee Pays - $340.18 monthly
Dental Insurance - American Dental Plan
Two Choices
HMO Dental - Family Coverage Total Premium - $26.48 Monthly
Employee pays $15.58 monthly
Indemnity - Family Coverage Total Premium - $44.00 Monthly
Employee pays $26.00 Monthly
Life insurance paid for by the Company for employee only (no add-on's) Coverage
is by salary - SVP/CIO coverage is $50,000
Liability Insurance - Hartford Business Insurance
Commercial Package
Liability and Medical $1,000,000
Personal and Advertising Injury $1,000,000
General Aggregate $2,000,000
Products - Completed Operations $2,000,000
Umbrella $2,000,000
Workers Comp $ 500,000 Each
Current coverage in effect through 5/27/99.
D&O - Agricultural E&S Ins. Co. $2,500,000
Rock River Ins. Co. $2,500,000
TIG Specialty Insurance Company $2,500,000
Admiral Insurance Company $2,500,000
TSIG/HWANG EMPLOYMENT AGREEMENT EXHIBIT A
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INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") made as of this
2nd day of February 1999 by and between the parties: XXXX XXXXX, an individual
whose address is X.X. Xxx 0000, Xxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter
referred to as "Hwang"), and TELESERVICES INTERNATIONAL GROUP INC., a Florida
corporation with its principal executive offices at 000 Xxxxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Company").
WHEREAS, the Company may choose to employ persons who were employees of
Cohesive Technology Solutions, Inc. ("Cohesive") during the term of Hwang's
employment at Cohesive.
WHEREAS, Hwang is a party to an employment agreement with Cohesive
which prohibits Hwang from attempting to hire or solicit, induce, recruit, or
encourage any employee of Cohesive to leave Cohesive.
WHEREAS, the Company has not requested nor accepted, and will not
request nor accept, Hwang's assistance in any efforts to hire such persons.
WHEREAS, Hwang did not and will not act on behalf of the Company to
hire or solicit, induce, recruit, or encourage any employee of Cohesive to leave
Cohesive in favor of employment with the Company.
WHEREAS, Hwang's employment agreement with Cohesive prohibits Hwang
from "competing" with Cohesive for a period of two years following termination
of his employment with Cohesive.
WHEREAS, although both Hwang and the Company are of the opinion that
the business of the Company is substantially different from and not in
competition with the business of Cohesive, both parties acknowledge the
possibility that Cohesive may nonetheless claim that Hwang's employment with the
Company is a breach of the "non-compete" provision of Hwang's employment
agreement with Cohesive.
THEREFORE, the undersigned parties hereby acknowledge and agree as
follows:
The Company agrees to indemnify and defend Hwang in any action, suit or
proceeding and in connection with any appeal thereof, brought against Hwang by
Cohesive, with respect to any claim, liability, obligation, loss, damage,
judgment, action, suit, proceeding, arbitration, demand, cost or expense
(including, without limitation, reasonable attorneys fees and costs, and
expenses reasonably incurred in investigating, preparing, defending against any
of the foregoing), arising out of or in any manner incident, relating or
attributable to 1) the Company's hiring of persons who were employees of
Cohesive during the term of Hwang's employment at Cohesive or 2) the Company's
employment of Hwang which is the basis of a claim that Hwang has breached the
"non-compete" provision of Hwang's employment agreement with Cohesive. The
maximum liability of the Company in connection with indemnification against any
claim based on the "non-compete" provision, as described in the preceding
sentence, shall be limited to $500,000 (inclusive of all costs and attorneys
fees).
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Execution and delivery of
this Agreement by exchange of facsimile copies bearing the facsimile signature
of a party shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute enforceable
original documents.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the day and year first above written.
TELESERVICES INTERNATIONAL GROUP INC.
By:
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Xxxxxx X. Xxxxxx, Chairman
XXXX XXXXX
By:
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