EXHIBIT 6.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of the 1ST DAY OF JUNE, 1999 (the "Effective Date"), between Circle Group
Internet, Inc., an Illinois corporation, whose principal place of business is
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 and any of its successors or
affiliated companies (collectively, the "Company") and XXXXXXX XXXXXXXXX, an
individual whose address is 00000 X. Xxx Xxx., Xxxxxxxxx, XX 00000 (the
"Employee").
RECITALS
WHEREAS, the Company is principally engaged in the business of Internet
Investment banking and multimedia (the "Business").
WHEREAS, the Company desires to employ the Employee and the Employee
desires to enter into the employ of the Company.
WHEREAS, the Company has established a valuable reputation and goodwill
in its business, with expertise in all aspects of the Business.
WHEREAS, the Employee, by virtue of the Employee's employment with the
Company, will become familiar with and possessed with the manner, methods, trade
secrets and other confidential information pertaining to the Company's Business,
including the Company's client base.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Employee do hereby agree as follows:
1. RECITALS. The above recitals are true, correct, and are herein
incorporated by reference.
2. EMPLOYMENT. The Company hereby employs the Employee, and the
Employee hereby accepts employment, upon the terms and conditions hereinafter
set forth.
3. AUTHORITY AND POWER DURING EMPLOYMENT PERIOD.
a. DUTIES AND RESPONSIBILITIES. During the Term of this Agreement,
the Employee shall serve as Chief Operating Officer of the Company and
shall have such responsibilities and duties as are customarily
undertaken by individuals in similar positions.
b. TIME DEVOTED. Throughout the Term of the Agreement, the Employee
shall devote substantially all of the Employee's business time and
attention to the business and affairs of the Company consistent with
the Employee's position with the Company, except for reasonable
vacations, illness or incapacity.
4. TERM. The Term of employment hereunder will commence on the
Effective Date as set forth above and end three (3) years from the Effective
Date, unless this Agreement shall have been earlier terminated pursuant to
Section 6 of this Agreement.
5. COMPENSATION AND BENEFITS.
a. SALARY. The Employee shall be paid a base salary, payable in
accordance with the Company's policies from time to time for salaried
employees, at the rate of sixty-eight thousand Dollars ($68,000) per
annum.
b. OPTIONS. The Employee shall be granted 10,000 options (the
"Options") to purchase shares of the Company's Common Stock at an
exercise price of $20.00 per share, being the Fair Market Value (as
determined by the Company's Board of Directors) of the Company's Common
Stock on the day immediately preceding the date of this Agreement. Such
Options are granted [under the Company' s 1999 Stock Option Plan and]
pursuant to the form of Option attached hereto as Exhibit A and
incorporated herein by such reference. The Options shall be exercisable
for a five (5) year period from the date of vesting and shall vest,
subject to continued employment of the Employee, [(A) 10,000 Options on
May 31, 1999.]
c. STOCK SIGNING BONUS. The Company shall register for the employee
5,000 shares of rule 144 stock upon the signing of this agreement.
d. EMPLOYEE BENEFITS. The Employee shall be entitled to participate
in all benefit programs of the Company currently existing or hereafter
made available to employees including, but not limited to, stock option
plans, pension and other retirement plans, group life insurance,
hospitalization, surgical and major medical coverage, sick leave,
salary continuation, vacation and holidays, long-term disability, and
other fringe benefits.
e. VACATION. During each fiscal year of the Company, the Employee
shall be entitled to such amount of vacation as determined by the
President of the Company consistent with the Employee's position and
length of service to the Company.
6. CONSEQUENCES OF TERMINATION OF EMPLOYMENT.
a. DISABILITY. In the event of the Employee's disability, the
Employee shall be entitled to compensation in accordance with the
Company's disability compensation practice for its salaried employees.
"Disability," for the purposes of this Agreement, shall be deemed to
have occurred in the event (A) the Employee is unable by reason of
sickness or accident, to perform his duties under this Agreement for an
aggregate of 90 days in any 12-month period or 45 consecutive days, or
(B) the Employee has a guardian of his person or estate appointed by a
court of competent jurisdiction. Termination due to disability shall be
deemed to have occurred upon the first day of the month following the
determination of disability as defined in the preceding sentence.
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b. TERMINATION BY THE COMPANY FOR CAUSE.
(i) Nothing herein shall prevent the Company from terminating the
Employee for "Cause," as hereinafter defined. The Employee shall
continue to receive salary only for the period ending with the date
of such termination as provided in this Section 6(b). Any rights and
benefits the Employee may have in respect of any other compensation
shall be determined in accordance with the terms of such other
compensation arrangements or such plans or programs.
(ii) "Cause" shall mean (A) committing or participating in an
injurious act of fraud, gross neglect, misrepresentation,
embezzlement or dishonesty against the Company; (B) committing or
participating in any other injurious act or omission wantonly,
willfully, recklessly or in a manner which was grossly negligent
against the Company, monetarily or otherwise; (C) engaging in a
criminal enterprise involving moral turpitude; (D) an act or acts
(1) constituting a felony under the laws of the United States or any
state thereof; or (2) if applicable, loss of any state or federal
license required for the Employee to perform the Employee's material
duties or responsibilities for the Company; or (E) any assignment of
this Agreement by the Employee in violation of Section 13 of this
Agreement.
(iii) Notwithstanding anything else contained in this Agreement,
this Agreement will not be deemed to have been terminated for Cause
unless and until there shall have been delivered to the Employee a
notice of termination stating that the Employee committed one of the
types of conduct, notwithstanding anything contained herein to the
contrary, this Agreement may be terminated (i) at any time upon the
mutual written consent of the Company and the Employee; or (ii) by
the Company giving 30 days' prior written notice to Employee. During
such 30 day period, only the Employee shall continue to perform the
Employee' s duties pursuant to this Agreement, and the Company shall
continue to compensate the Employee in accordance with this
Agreement.
c. DEATH. In the event of the death of the Employee during the Term
of the Agreement, compensation shall be paid to the Employee's
designated beneficiary, or, in the absence of such designation, to the
estate or other legal representative of the Employee for a period of
onehundred eighty (180) days from and after the date of death. Other
death benefits will be determined in accordance with the terms of the
Company's benefit programs and plans.
7. COVENANT NOT TO COMPETE AND NON-DISCLOSURE OF INFORMATION.
a. COVENANT NOT TO COMPETE. The Employee acknowledges and recognizes
the highly competitive nature of the Company's Business and the
goodwill, continued patronage, and specifically the names and addresses
of the Company's Clients (as hereinafter defined) constitute a
substantial asset of the Company having been acquired through
considerable time, money and effort. Accordingly, in consideration of
the execution of this Agreement, the Employee agrees to the following:
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(i) That during the Restricted Period (as hereinafter defined)
and within the Restricted Area (as hereinafter defined), the
Employee will not, individually or in conjunction with others,
directly or indirectly, engage in any Business Activities (as
hereinafter defined), whether as an officer, director, proprietor,
employer, partner, independent contractor, investor (other than as a
holder solely as an investment of less than one percent (1%) of the
outstanding capital stock of a publicly traded corporation),
consultant, advisor, agent or otherwise.
(ii) That during the Restricted Period and within the Restricted
Area, the Employee will not, directly or indirectly, compete with
the Company by soliciting, inducing or influencing any of the
Company's Clients which have a business relationship with the
Company at the time during the Restricted Period to discontinue or
reduce the extent of such relationship with the Company.
(iii) That during the Restricted Period and within the Restricted
Area, the Employee will not (A) directly or indirectly recruit,
solicit or otherwise influence any employee or agent of the Company
to discontinue such employment or agency relationship with the
Company, or (B) employ or seek to employ, or cause or permit any
business which competes directly or indirectly with the Business
Activities of the Company (the "Competitive Business") to employ or
seek to employ for any Competitive Business employs or seeks to
employ such person) employed by the Company.
(iv) That during the Restricted Period the Employee will not
interfere with, or disrupt or attempt to disrupt any past, present
or prospective relationship, contractual or otherwise, between the
Company and any supplier, customer, employee or agent of the
Company.
b. NON-DISCLOSURE OF INFORMATION. The Employee acknowledges that the
Company's trade secrets, private or secret processes, methods and
ideas, as they exist from time to time, customer lists and information
concerning the Company's products, services, training methods,
development, technical information, marketing activities and
procedures, credit and financial data concerning the Company and/or the
Company's Clients (the "Proprietary Information") are valuable, special
and unique assets of the Company, access to and knowledge of which are
essential to the performance of the Employee hereunder. In light of the
highly competitive nature of the industry in which the Company's
Business is conducted, the Employee agrees that all Proprietary
Information, heretofore or in the future obtained by the Employee as a
result of the Employee's association with the Company shall be
considered confidential.
In recognition of this fact, the Employee agrees that the Employee,
during the Restricted Period, will not use or disclose any of such Proprietary
Information for the Employee's own purposes or for the benefit of any person or
other entity or organization (except the Company) under any circumstances unless
such Proprietary Information has been publicly disclosed generally or, unless
upon written advice of legal counsel reasonably satisfactory to the Company, the
Employee is legally required to disclose such Proprietary Information. Documents
(as
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hereinafter defined) prepared by the Employee or that come into the Employee's
possession during the Employee's association with the Company are and remain the
property of the Company, and when this Agreement terminates, such Documents
shall be returned to the Company at the Company's principal place of business,
as provided in the Notices provision (Section 9) of this Agreement.
c. DOCUMENTS. "Documents" shall mean all original,. written,
recorded, or graphic matters whatsoever, and any and all copies
thereof, including, but not limited to: papers; email; books; records;
tangible things; correspondence; communications; telex messages;
memoranda; workpapers; reports; affidavits; statements; summaries;
analyses; evaluations; client records and information; agreements;
agendas; advertisements; instructions; charges; manuals; brochures;
publications; directories; industry lists; schedules; price lists;
client lists; statistical records; training manuals; computer
printouts; books of account, records and invoices reflecting business
operations; all things similar to any of the foregoing however
denominated. In all cases where originals are not available, the term
"Documents" shall also mean identical copies of original documents or
non-identical copies thereof.
d. COMPANY'S CLIENTS. The "Company's Clients" shall be deemed to be
any persons, partnerships, corporations, professional associations or
other organizations for whom the Company has performed Business
Activities.
e. RESTRICTIVE PERIOD. The "Restrictive Period" shall be deemed to
be six (6) months following termination of this Agreement.
f. RESTRICTED AREA. The Restricted Area shall be deemed to mean
within any other county of any state in which the Company is providing
service at the time of termination.
g. BUSINESS ACTIVITIES. "Business Activities" shall be deemed to
include the Business and any additional activities which the Company or
any of its affiliates may engage in during the term of this Agreement.
h. COVENANTS AS ESSENTIAL ELEMENTS OF THIS AGREEMENT. It is
understood by and between the parties hereto that the foregoing
covenants contained in Sections 7(a) and 7(b) are essential elements of
this Agreement, and that but for the agreement by the Employee to
comply with such covenants, the Company would not have agreed to enter
into this Agreement. Such covenants by the Employee shall be construed
to be agreements independent of any other provisions of this Agreement.
The existence of any other claim or cause of action, whether predicated
on any other provision in this Agreement, or otherwise, as a result of
the relationship between the parties shall not constitute a defense to
the enforcement of such covenants against the Employee.
i. SURVIVAL AFTER TERMINATION OF AGREEMENT. Notwithstanding anything
to the contrary contained in this Agreement, the covenants in Sections
7(a) and 7(b) shall survive the termination of this Agreement and the
Employee's employment with the Company.
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j. REMEDIES.
(i) The Employee acknowledges and agrees that the Company's remedy
at law for a breach or threatened breach of any of the provisions of
Section 7(a) or 7(b) herein would be inadequate and the breach shall be
per se deemed as causing irreparable harm to the Company. In
recognition of this fact, in the event of a breach or threatened breach
by the Employee of any of the provisions of Section 7(a) or 7(b), the
Employee agrees that, in addition to any remedy at law available to the
Company, including, but not limited to monetary damages, all rights of
the Employee to payment or otherwise under this Agreement and all
amounts then or thereafter due to the Employee from the Company under
this Agreement may be terminated and the Company, without posting any
bond, shall be entitled to obtain, and the Employee agrees not to
oppose the Company's request for equitable relief in the form of
specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be
available to the Company.
(ii) The Employee acknowledges that the granting of a temporary
injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an adequate
remedy upon breach or threatened breach of Section 7(a) or 7(b) and
consequently agrees, upon proof of tiny such breach, to the granting of
injunctive relief prohibiting any form of competition with the Company.
Nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such
breach or threatened breach.
8. WITHHOLDING. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Employee or the Employee's
estate or beneficiaries shall be subject to the withholding of such amounts, if
any, relating to tax and other payroll deductions as thing such amounts, the
Company may accept other arrangements pursuant to which it is satisfied that
such tax and other payroll obligations will be satisfied in a manner complying
with applicable law or regulation.
9. NOTICES. Any notice required or permitted to be given under the terms
of this Agreement shall be sufficient if in writing and if sent postage prepaid
by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Employee to
the Employee's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the first paragraph of this Agreement, or at such other place as it may
designate.
10. WAIVER. Unless agreed in writing, the failure of either party, at any
time, to require performance by the other of any provisions hereunder shall not
affect its right thereafter to enforce the same, nor shall a waiver by either
party of any breach of any provision hereof be taken or held to be a waiver of
any other preceding or succeeding breach of any term or provision of this
Agreement. No extension of time for the performance of any obligation or act
shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
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11. COMPLETENESS AND MODIFICATION. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the Employment Agreement. This Agreement may be amended, modified, superseded or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties or, in the case of a waiver, by the party to be charged.
12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
13. BINDING EFFECT/ASSIGNMENT. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Employee but shall be assignable by the
Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliates controlled by or under common
control with the Company.
14. GOVERNING LAW. This Agreement shall become valid when executed and
accepted by Company. The parties agree that it shall be deemed made and entered
into in the State of Illinois and shall be governed and construed under and in
accordance with the laws of the State of Illinois. Anything in this Agreement to
the contrary notwithstanding, the Employee shall conduct the Employee's business
in a lawful manner and faithfully comply with applicable laws or regulations of
the state, city or other political subdivision in which the Employee is located.
15. FURTHER ASSURANCES. All parties hereto shall execute and deliver such
other instruments and do such other acts as may be necessary to carry out the
intent and purposes of this Agreement.
16. HEADINGS. The headings of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
17. SURVIVAL. Any termination of this Agreement shall not, however, affect
the ongoing provisions of this Agreement which shall survive such termination in
accordance with their terms.
18. SEVERABILITY. The invalidity or unenforceability, in whole or in part,
of any covenant, promise or undertaking, or any section, subsection, paragraph,
sentence, clause, phrase or word or of any provision of this Agreement shall not
affect the validity or enforceability of the remaining portions thereof.
19. ENFORCEMENT. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs.
20. VENUE. Company and Employee acknowledge and agree that the U.S.
District for the Nineteenth District of Illinois, or if such court lacks
jurisdiction, the Judicial Circuit (or its successor) in and for Lake County,
Illinois, shall be the venue and exclusive proper forum in
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which to adjudicate any case or controversy arising either, directly or
indirectly, under or in connection with this Agreement and the parties further
agree that, in the event of litigation arising out of or in connection with this
Agreement in these courts, they will not contest or challenge the jurisdiction
or venue of these courts.
21. CONSTRUCTION. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
22. INDEPENDENT LEGAL COUNSEL. The parties have either (i) been
represented by independent legal counsel in connection with the negotiation and
execution of this Agreement, or (ii) each has had the opportunity to obtain
independent legal counsel, has been advised that it is in their best interests
to do so, and by execution of this Agreement has waived such right.
IN WITNESS WHEREOF, the parties have executed this Agreement as of date
set forth in the first paragraph of this Agreement.
THE COMPANY:
CIRCLE GROUP INTERNET, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
THE EMPLOYEE:
By: /s/ Xxxxxxx Xxxxxxxxx
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