EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), entered into as of October 1,
1998, between Educational Video Conferencing, Inc., a Delaware corporation
("EVC"), and Xxxxx X. Xxxxxxxx ("Employee").
In consideration of the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Employment; Duties.
EVC hereby employs Employee as its Vice President of
Operations. Employee agrees to perform and discharge such duties and
responsibilities as are prescribed from time-to-time by EVC's Chief Executive
Officer or President and as are appropriate for a vice-president of operation of
corporations with the financial, personnel and other resources that are similar
to that of EVC. Employee shall devote his full business time to, and shall use
his best efforts in, the performance of such duties and responsibilities.
2. Compensation.
For his services pursuant to this Agreement, EVC will pay
Employee a salary at the annual rate of $120,000 ("Salary").
3. Employment Term. The term of Employee's employment (the
"Employment Term") will commence as of the date first written above and, unless
sooner terminated as provided in Section 5, will end on December 31, 2001.
4. Benefits, Payments and Withholding.
4.1 Employee will be entitled to vacation, holidays and sick
days in accordance with EVC's policy, during which Employee will be entitled to
the full compensation and Benefits (as defined in Section 4.2) otherwise payable
hereunder.
4.2 Employee may participate, on the same basis and subject to
the same qualifications as other personnel of EVC, in any pension, profit
sharing, life insurance, health insurance, hospitalization, dental, drug
prescription, disability, accidental death or dismemberment and other benefit
plans and policies EVC provides with respect to its personnel generally
(collectively, the "Benefits").
4.3 EVC will pay or promptly reimburse Employee, in accordance
with EVC's normal policies and procedures for its personnel, for all allowances
and expenses provided for
hereunder and for all reasonable out-of-pocket business, entertainment and
travel expenses incurred by Employee in the performance of his duties hereunder.
4.4 EVC will pay the Salary at the semimonthly rate of $5,000
and may withhold from the Salary, the Benefits and any other compensation
provided to Employee hereunder, all Federal, state and local income, employment
and other taxes, as and in such amounts as may be required to be withheld under
applicable law.
5. Termination.
5.1 Termination by EVC and Resignation by Employee. EVC's
Chief Executive Officer or President may terminate Employee's employment with
EVC, with or without cause. Termination with cause shall be effective
immediately and termination without cause shall be effective upon 30 days prior
written notice to Employee. Employee may voluntarily resign his employment with
EVC upon 30 days prior written notice to EVC.
5.2 Compensation Upon Termination. If EVC's Chief Executive
Officer or President terminates Employee's employment hereunder for any reason
or if Employee voluntarily resigns his employment with EVC (the effective date
of the first to occur of such termination or his resignation being the
"Termination Date"), then (a) Employee shall be entitled to receive (i) the
Salary and Benefits accrued prior to the Termination Date and (ii) payment or
reimbursement of any expenses, provided for under Section 4.3, that were
incurred by Employee prior to the Termination Date.
6. Covenants Not to Compete.
6.1 Employee agrees that for 12 months following termination
of his employment with EVC he will not, without its prior written approval,
engage in any business activities in any jurisdiction with any business entity
or governmental body from or to which EVC is delivering courses or programs or
where EVC is conducting any other business activities that are competitive
with any of the business activities then being conducted by EVC.
6.2 During the 18 months following termination of his
employment with EVC, Employee shall not, directly or indirectly, hire any
employee of EVC, or solicit or induce, or authorize any other person, to solicit
or induce, any employee of EVC to leave such employ during the period of such
employee's employment with EVC or within six-months following such employee's
termination of employment with EVC.
7. Covenant Regarding Confidentiality. All confidential
information about the business and affairs of EVC (including, without
limitation, its secrets and information about its services, methods, business
plans, technology and advertising programs and plans) constitutes "EVC
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Confidential Information." Employee acknowledges that he will have access to,
and knowledge of, EVC Confidential Information, and that improper use or
disclosure of EVC Confidential Information by Employee, whether during or after
the termination of his employment by EVC, could cause serious injury to the
business of EVC. Accordingly, Employee agrees that he will forever keep secret
and inviolate all EVC Confidential Information which has or shall come into his
possession, and that he will not use the same for his own private benefit or
directly or indirectly for the benefit of others, and that he will not discuss
EVC Confidential Information with any other person or organization, all for so
long as EVC Confidential Information is not generally known by, or accessible
to, the public.
8. General.
8.1 This Agreement will be construed, interpreted and governed
by the laws of the State of New York, without regard to the conflicts of law
rules thereof.
8.2 The provisions set forth in Sections 6 and 7 shall survive
termination of this Agreement. All reference to EVC in Sections 6 and 7 include
EVC's subsidiaries and other affiliates, if any.
8.3 This Agreement will extend to and be binding upon
Employee, his legal representatives, heirs and distributees, and upon EVC, its
successors and assigns regardless of any change in the business structure of
EVC, be it through spinoffs merger, sale of stock, sale of assets or any other
transaction. However, this Agreement is a personal services contract and, as
such, Employee may not assign any of his duties or obligations hereunder.
8.4 This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof. No waiver, modification or
change of any of the provisions of this Agreement will be valid unless in
writing and signed by both parties. Any and all prior agreements between the
parties written or oral relating to Employee's employment by EVC are of no
further force or effect.
8.5 The waiver of any breach of any duty, term or condition of
this Agreement shall not be deemed to constitute a waiver of any preceding or
succeeding breach of the same or any other duty, term or condition of this
Agreement. If any provision of this Agreement is unenforceable in any
jurisdiction in accordance with its terms, the provision shall be enforceable to
the fullest extent permitted in that jurisdiction and shall continue to be
enforceable in accordance with its terms in any other jurisdiction.
8.6 All notices pursuant to this Agreement shall be in writing
and delivered personally receipt acknowledged (which shall include Federal
Express, Express Mail or similar service) or sent by certified mail, return
receipt requested, addressed to the parties hereto and shall be deemed given
upon receipt, if delivered personally, and three days after mailing, if mailed,
unless received earlier. Notices shall be addressed and sent to EVC at its
principal executive office and to Employee at his home address as it appears
in EVC's personnel records.
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8.7 The parties agree that, in the event of any breach or
violation of this Agreement, such breach of violation will result in immediate
and irreparable injury and harm to the innocent party, who shall be entitled to
the remedies of injunction and specific performance or either of such remedies,
if available, as well as all other legal or equitable remedies, if available,
plus reasonable attorneys fees and costs incurred in obtaining any such relief.
8.8 The Section headings contained in this Agreement are for
convenience of reference only and shall not be used in construing this
Agreement.
8.9 This Agreement may be executed in counterparts, each of
which will be deemed an original but all of which will together constitute one
and the same agreement.
IN WITNESS HEREOF, the parties have executed this Agreement as of the
date first above written.
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
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