Exhibit 10.34
EMPLOYMENT AGREEMENT
This Agreement executed this 23rd day of September, 1999 by and between
NAI Direct, Inc., a Delaware corporation ("NAI Direct") and Xxxxxxx Xxxx
("Employee").
The parties, each intending to be legally bound, hereby agree as follows:
1. POSITION. NAI Direct employs Employee in the position of Chief Executive
Officer pursuant to the terms of this Agreement. Employee will perform such
services in this capacity as may from time to time be reasonably requested by
NAI Direct.
2. TERM. This Agreement shall commence on the Closing Date, as defined in
the Share Exchange Agreement (the "Exchange Agreement") between WorldWide Web
NetworX Corporation, a Delaware corporation ("WWWX") and New America Network,
Inc., a Delaware corporation ("NAI") and shall except as provided in paragraph
9, remain in effect for a period of 3 years thereafter. After this 3 year term,
the Agreement shall automatically renew from year to year unless either party
gives written notice to the other at least ninety (90) days prior to the
expiration of the then current term that he or it is not renewing.
3. COMPENSATION AND BENEFITS. For all services rendered by Employee under
this Agreement, NAI Direct shall compensate Employee as follows:
(a) NAI Direct shall pay to Employee an annual salary (the "Base
Salary") of $135,000.00, payable in accordance with the payroll
policies of NAI Direct, subject to normal withholdings. The Base
Salary shall be paid at regular intervals as is paid to other NAI
Direct employees.
(b) The Base Salary shall be subject to annual review, and Employee
shall be entitled to such increase as is determined by the Board
of Directors of NAI Direct.
(c) Employee shall be entitled to participate in all employee pension
and welfare benefit plans and programs made available to the
senior-level executives of NAI Direct or to its employees
generally, as such plans or programs may be in effect from time
to time, including, without limitation, pension, profit sharing,
savings and other retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life
insurance plans, accidental death and dismemberment protection,
travel accident insurance, and any other pension or retirement
plans or programs and any other employee welfare benefit plans or
programs that may be sponsored by NAI Direct from time to time,
including any plans that supplement the above-listed types of
plans or programs, whether funded or unfunded.
(d) Employee is authorized to incur reasonable expenses in carrying
out his duties and responsibilities under this Agreement and NAI
Direct shall promptly
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reimburse him for all business expenses incurred in connection
with carrying out the business of NAI Direct.
4. DUTIES. The duties of Employee are as contained in the attached Schedule
"A". Those duties shall be performed in such manner so as to uphold the
reputation of NAI Direct in the business community. Those duties may be
reasonably extended or curtailed from time to time, at the discretion of the
Board of Directors of NAI Direct.
5. TIME AND ATTENTION DEVOTED TO DUTIES. Employee shall devote his entire
time and attention to the business of NAI Direct and NAI. He shall not, during
the term of this Agreement, be engaged in any other business activity which
interferes with his ability to perform the duties assigned to him by NAI Direct,
whether or not such business activity is pursued for gain, profit or other
pecuniary advantage. This shall not be construed as preventing Employee from
investing his assets in such form or manner as will not require any services on
the part of Employee in the operation of the affairs of the companies in which
such investments are made, subject to the qualification that Employee may not
invest in a company which is competitive in any manner whatsoever with NAI
Direct, NAI or WWWX (except for investments constituting less than one percent
(l%) of a publicly owned company).
6. NONDISCLOSURE AND RESTRICTIVE COVENANTS. Employee acknowledges that his
duties will necessarily result in his becoming familiar with the business,
software, patents and copyrights, methods and operations, client and customer
lists, client and customer information, manufacturing processes, product
specifications, vendors, trading patterns, financial goals, and other
proprietary and confidential information of NAI Direct, NAI and WWWX, a publicly
traded corporation (the "Confidential Information"). Therefore, Employee
acknowledges and agrees that the following nondisclosure provisions and
restrictive covenants shall apply to the Confidential Information. The rights
hereunder shall inure to the benefit of NAI Direct, NAI and WWWX, each of whom
shall have the right to enforce the terms of paragraphs 6 through 8 of this
Agreement. For the purposes of paragraphs 6 through 8 of this Agreement, the
term "NAI Direct", "NAI" or "WWWX" shall include each of their affiliated
companies. The terms contained in paragraphs 6 through 8 shall survive the
termination or expiration of this Agreement. Therefore, Employee agrees:
(a) Employee will not, at any time during his employment by NAI
Direct, or at anytime thereafter, unless terminated by NAI
Direct without cause or by Employee for cause pursuant to
sub-paragraph 9(c), without the written approval of NAI
Direct or its duly constituted officers, use for his benefit
or the benefit of third parties reveal, divulge, or make
known to any person, firm or corporation, the Confidential
Information or any portions thereof.
(b) Employee agrees to return to NAI Direct, NAI or WWWX, as
appropriate, upon request or immediately upon the
termination of his employment by NAI Direct, any and all
written information, materials, equipment and software which
constitutes, contains or relates in any way to the
Confidential Information or trade secrets of NAI Direct, NAI
or WWWX including, but
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not limited to, any copies of such information and any
notes, memoranda or other documents, in any media which
include, reflect or incorporate all or any part of the
Confidential Information.
(c) Unless Employee's employment hereunder is terminated by NAI
Direct (i) without cause, (ii) by Employee pursuant to
SUBPARAGRAPH 9(c), (iii) in the event of a material breach
by WWWX under the Exchange Agreement, (iv) pursuant to
SECTION 9 (a) (v), or (v) pursuant to SECTION 9 (d),
Employee will not for a period ending 2 years after the
termination of employment pursuant to this Agreement (the
time period in this SECTION 6(c) being the "NON-COMPETE
TERM") compete directly with NAI Direct, NAI or WWWX,
whether as an employee, officer, director, agent, security
holder, creditor, consultant or otherwise. During the
Non-Compete Term, Employee will not consult with or have an
interest in any business, firm, person, partnership,
corporation or other entity which engages in the same or
substantially similar business to that of WWWX, NAI or NAI
Direct worldwide, it being acknowledged that the business of
WWWX, NAI and NAI Direct is global in nature. For the
purpose of this paragraph, a business shall be deemed
similar or competitive to WWWX, NAI or NAI Direct if it
conducts an internet-based commercial real estate business.
During the Non-Compete Term, Employee will not provide
services or products to any individual or entity which
competes with NAI Direct, NAI or WWWX.
(d) REASONABLENESS OF RESTRICTIONS. Employee and NAI Direct
recognize that, as a result of the globalization of
e-commerce markets through advances in telecommunications
and the internet, NAI Direct's market is not susceptible to
geographic definitions. Consequently, and given the nature
of the position Employee will hold with NAI Direct, the
nature of NAI Direct's and the business and their commitment
to expanding and leveraging of their business activities and
Employee's involvement in these activities, Employee and NAI
Direct agree that the restrictions contained in this SECTION
6 upon the activities of Employee are geographically
unlimited and reasonable as such.
7. RIGHT TO ENGAGE IN EMPLOYEE'S PROFESSION. SECTION 6 is not intended to
restrict Employee in the exercise of his training and skills, provided that the
exercise of such training and skills does not involve competing with NAI Direct
or WWWX in violation of the provisions of this Agreement. In particular, it is
recognized that Employee is an officer and employee of NAI and will continue in
that position. Nothing contained in this Agreement is intended to prevent
Employee from fully performing his role as an employee of NAI.
8. REMEDIES IN ADDITION TO ANY OTHER REMEDIES PROVIDED BY LAW. Employee
agrees that the breach of any of the covenants contained in paragraph 6 may
result in irreparable damage to NAI Direct, NAI and WWWX and, in addition to any
other remedies provided in this Agreement or at law, NAI Direct, NAI and WWWX
shall have the right to petition a court of competent jurisdiction to enjoin
Employee from violating such covenants.
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9. EARLIER TERMINATION.
(a) Notwithstanding the termination provision of paragraph 2, this
Agreement may be terminated at any time by NAI Direct upon the
occurrence of any of the following:
(i) Employee's inability to perform substantially all of
the duties assigned, through death or total disability
in excess of 60 consecutive days or total disability
in excess of 90 days in any 12 month period.
(ii) Any act of dishonesty or disloyalty by Employee
involving or materially affecting NAI Direct.
(iii) Employee's material breach of the confidentiality
provisions of this Agreement.
(iv) Any other material breach of this Agreement by
Employee.
(v) The termination of the business of NAI Direct, the
sale of substantially all of the assets of NAI Direct
or a merger or consolidation in which NAI Direct is
not the surviving entity.
(b) NAI Direct may further terminate this Agreement in the event of
the failure of Employee to substantially perform the duties
assigned to him by NAI Direct providing NAI Direct shall provide
30 days written notice to Employee of his failure to perform his
duties with an opportunity to cure within said 30 day period.
(c) Employee may terminate Employee's employment hereunder for Good
Reason (as defined below), and if the Agreement is so terminated,
then NAI Direct shall pay to Employee, within thirty (30) days of
the date of such termination, the Base Salary through such date
of termination and, in lieu of any further compensation and
benefits for the balance of the Agreement's term, severance pay
in a lump sum amount equal to the greater of (1) 50% of the then
current Base Salary or (2) the remaining Base Salary for the
remainder of the Agreement's term.
(i) For purposes of this Agreement, "Good Reason" shall
mean the occurrence, without Employee's express written
consent, of any of the following circumstances, unless,
in the case of clauses (2), (5) or (6), such
circumstances are fully corrected prior to the date of
termination specified in a notice of termination given
by Employee to NAI Direct in respect thereof (which
date of termination shall be specified in such notice
and shall not be less than thirty (30) nor more than
sixty (60)
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days following delivery of such notice):
(1) Employee's removal from his position as Chief
Executive Officer, or a significant diminution
in the nature or status of Employee's
responsibilities;
(2) Employee being assigned to any duties
inconsistent with Employee's status as an
executive of NAI Direct holding the position
of Chief Executive Officer;
(3) A reduction by NAI Direct in Employee's Base
Salary;
(4) The relocation of Employee's office in which
Employee was located to a location more than
50 miles therefrom or NAI Direct requiring
Employee to be based anywhere other than the
executive office in which Employee was
located, except for required travel on NAI
Direct business to an extent substantially
consistent with Employee's present business
travel obligations;
(5) The failure by NAI Direct to continue in
effect any option, equity or bonus plan in
which Employee participated, unless an
equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made
in such plan, or the failure by NAI Direct to
continue Employee's participation therein on
the same basis, both in terms of the amount of
benefits provided and the level of Employee'
participation relative to other participants;
or
(6) The taking of any action by NAI Direct which
would directly or indirectly materially reduce
or deprive Employee of any material fringe
benefit enjoyed by Employee under NAI Direct's
employee benefit and welfare plans, including
the pension, life insurance, medical, health
and accident, disability, deferred
compensation and savings plans in which
Employee participated.
(d) In the event that the Real Quest, Inc. Shareholders' Agreement
among NAI, WWWX and Real Quest, Inc. is terminated, either party
may terminate this Agreement.
10. REPRESENTATIONS OF EMPLOYEE
(a) Employee represents that to the best of his knowledge he is not
the subject of any pending or threatened claim which involves any
criminal or governmental
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proceedings, or allegations of misfeasance, and that he has not
been charged nor threatened to be charged by any governmental or
administrative body with violation of law except for minor
traffic violations and similar charges.
(b) Except with respect to NAI, Employee represents and warrants that
he is not prohibited from acting in any capacity for NAI Direct
by virtue of the operation of any non-competition or similar
agreement with any prior employer, or by any applicable statutes,
regulations or ordinances or any other applicable law or by the
rules and regulations of the US Securities and Exchange
Commission or any national securities exchange, and that his
acting in the capacity for NAI Direct that is contemplated by the
parties hereto and by virtue of his position with NAI Direct
described in Section 1 hereof will not subject NAI Direct to
claims or materially impair the license status of NAI Direct or
its affiliates or any entity operated by NAI Direct or its
affiliates.
11. DEFENSE OF CLAIMS. Employee agrees that during the Term, and at all
reasonable times thereafter, he will cooperate with NAI Direct in the defense of
any claim that may be made against NAI Direct or any affiliates, to the extent
that such claims may relate to services performed by Employee for NAI Direct or
its affiliates. In connection with such claim, NAI Direct will reimburse
Employee for all of his reasonable out-of-pocket expenses associated and, to the
extent reasonably practicable, to provide Employee with notice at least ten (10)
days prior to the date on which any travel is required, and (ii) if Employee is
no longer employed by NAI Direct, to compensate Employee at a reasonable rate
for his time.
12. NOTIFICATION OF AGREEMENT. Employee shall notify any future or
prospective employers, partners or persons with a similar business relationship
to Employee ("Future Employers") about the terms of this Agreement for any
period for which the covenants contained above pertains. Employee does hereby
authorize NAI Direct to notify any Future Employers about the terms of this
Agreement upon discovery by NAI Direct that Employee is being considered for
employment, partnership or similar business relationship (or has entered into
such a relationship) with a Future Employer in order to ensure Employee's
observance and compliance herewith.
13. INJUNCTION AND OTHER RELIEF. Both parties hereto recognize that the
services to be rendered under this Agreement by Employee are special, unique and
of extraordinary character, and that in the event of the breach by Employee of
any of the terms and conditions of this Agreement to be performed by him, or in
the event Employee performs services for any person, firm or corporation in
violation of Sections 6-8, or if Employee shall breach the provisions of this
Agreement with respect to Confidential Information, then NAI Direct shall be
entitled, if it so elects, in addition to all other remedies available to it
under this Agreement or at law or in equity, to affirmative injunctive or other
equitable relief.
14. STIPULATION. Employee hereby specifically acknowledges, agrees,
stipulates and represents to NAI Direct that:
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(a) Employee has received adequate and sufficient consideration for
entering into this Agreement including the above-referenced
compensation;
(b) except with respect to NAI, the execution and delivery of this
Agreement and the performance hereunder do not and shall not
constitute a violation of any covenants of non-competition, trade
secrecy, or confidentiality to which Employee is a party;
(c) the covenants of Employee contained in this Agreement are in
consideration of the promise of NAI Direct to provide
Confidential Information (including trade secrets) to Employee
and are necessary to protect NAI Direct interests in such
Confidential Information, as well as NAI Direct's business good
will and other business interests;
(d) NAI Direct may suffer great loss and irreparable harm if Employee
competes directly or indirectly with NAI Direct;
(e) the temporal, geographic and other restrictions contained in this
Agreement are in all respects reasonable and necessary to protect
the business good will, Confidential Information, trade secrets,
prospects and other business interest of NAI Direct; and
(f) the enforcement of this Agreement will not work an undue or
unfair hardship on Employee or otherwise be oppressive to him.
15. SEVERABILITY. In the event that any of the provisions of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such invalidity or unenforceability shall not affect the remainder of this
Agreement and same shall be construed as if such invalid or unenforceable
provisions had never been a part hereof. If a court of competent jurisdiction
determines that the length of time, geographical restrictions or any other
restriction, or portion thereof, set forth in this Agreement is overly
restrictive and unenforceable, the parties agree that the court shall reduce or
modify such restrictions to those which it deems reasonable and enforceable
under the circumstances, and as so reduced or modified, the parties hereto agree
that the restrictions of this Agreement shall remain in full force and effect.
16. ENTIRE AGREEMENT. This document constitutes the entire agreement
between NAI Direct and Employee regarding the subject matter hereof and there
are no oral agreements or undertakings affecting this instrument; any future
modifications, in order to be binding upon the parties, must be reduced to
writing and executed by both parties to this Agreement.
17. NO WAIVER. Either party's failure to strictly enforce any provision of
this Agreement shall not be construed as a waiver or as excusing either party
from future performance.
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18. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of the heirs, executors, administrators, successors and assigns of the
respective parties, but in no event may Employee assign to any other party
Employee's duties or obligations under this Agreement.
19. NEW JERSEY LAW. THIS AGREEMENT SHALL BE CONSTRUED UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW JERSEY. THE PARTIES AGREE TO WAIVE A JURY
TRIAL IN ANY PROCEEDING BROUGHT TO ENFORCE ANY OF THE TERMS OF THIS AGREEMENT.
20. HEADINGS. Paragraph headings herein shall have absolutely no legal
significance and are used solely for convenience of reference.
21. NOTICES. All notices which either party is required or may desire to
give to the other under or in conjunction with is Agreement shall be in writing
and shall be given by addressing the same to such other party at the address set
forth below, and by depositing the same so addressed, certified mail, postage
prepaid, return receipt requested, or by overnight mail or by reputable courier
service, or by delivering the same personally to such other party.
IF TO EMPLOYER:
NAI Direct
P. O. Xxx 000
000 XX Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: GENERAL COUNSEL
IF TO EMPLOYEE:
Xxxxxxx Xxxx
X.X. Xxx 000
000 XX Xxxxx 000
Xxxxxxxxxx, XX 00000
Any notice mailed should be deemed to have been given three (3) United
States Post Office delivery days following the date of mailing. Overnight mail
or courier services shall be deemed to have been given on the next business day
following the date of mailing. Any notice delivered in person shall be deemed
effective upon delivery. Either party may change the address for the service of
notice upon it by written notice given to the other in the manner herein
provided for the giving of notice.
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IN WITNESS WHEREOF, the parties hereto have set their hands.
NAI DIRECT, INC.
By: //S// XXXXXX X. XXXX
---------------------
Name:
Title:
//S// XXXXXXX XXXX
-------------------
Xxxxxxx Xxxx
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SCHEDULE A
POSITION RESPONSIBILITIES
As President and Chief Operating Officer of NAI Direct, Employee will have
the following duties and responsibilities:
- Exercising the executive powers of NAI Direct, subject to
the direction of the Chief Executive Officer
- Hiring and firing of employees
- In consultation with the Chief Executive Officer, setting
compensation for all employees
- Attending and participating in meetings of the Executive
Committee of NAI Direct
- Implementing NAI Direct's policies as adopted by the Board
of Directors
- Representing NAI Direct in dealings with third parties, as
directed by the Board of Directors
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