EXHIBIT (10.2)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of the 18th day of March 2004
between Xxxx Xxxxx (hereinafter referred to as the "Employee") and SearchHelp,
Inc., a Delaware corporation having its principal place of business at the
Hi-Tech Incubator, 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (hereinafter referred
to as the "Employer").
W I T N E S S E T H:
WHEREAS, the Employer desires to employ the Employee under the terms of
this Agreement, and
WHEREAS, the Employee and Employer desire to have their rights,
obligations and duties specified herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. EMPLOYMENT AND COMPENSATION. The Employer hereby employs
the Employee and the Employee accepts such employment as Chief Technical Officer
(CTO). The Employee shall have such duties as set forth by the Employer and
shall report directly to the President of the Company.
A. Base Compensation. The Employee shall be entitled
to a salary as set forth on
Schedule A of this Agreement during the term of this Agreement, and any
extensions thereof, payable in installments in accordance with the Employer's
regular practice of compensating executive personnel.
B. Bonus. Employee may be entitled to a bonus at the
conclusion of each year of this
Agreement, and any extensions thereof. At the end of each year, the Compensation
Committee of the Board of Directors shall determine the amount and type (cash,
stock, options, etc.) of such bonus payable to Employee, if any.
C. Options. The Employee shall receive such number of
options to purchase shares of the
Company's stock, with such restrictions and vesting, as set forth in Schedule B
attached hereto.
2. TERM. This Agreement shall commence as of the date hereof,
and shall continue for a period of one (1) years from the date thereof. This
Agreement shall be automatically extended by one-year periods at the conclusion
of each year, thus renewing the one (1) year term, unless notice is received by
either the Employee or the Employer not to extend this Agreement at least ninety
(90) days prior to the expiration of such year.
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3. DUTIES AND RESPONSIBILITIES.
A. As Chief Technical Officer, the employee shall
diligently, conscientiously and faithfully devote all necessary time and energy
to the business of the Employer during the term, including any renewals, and
shall actively manage, and have responsibility for and supervision over, the
technical business activities and affairs of the Company and its subsidiaries,
and he shall, manage, supervise and direct its employees and agents, and all
other duties as from time to time reasonably requested by the President of the
Company.
B. During the term hereof and any renewal, the
Employee shall not, without the written consent of the Employer, such consent
not to be unreasonably withheld, engage in any activity that competes with the
interest of the Employer, whether the Employee is acting by himself or as an
officer, employee, shareholder, or fiduciary.
4. VACATIONS AND EDUCATIONAL COURSES.
A. The Employee shall be entitled to a vacation of
three (3) weeks duration during the term of this Agreement. This may be taken
after six months of employment of the Employee. The compensation of the Employee
shall be paid to him during the time of his vacation. Attendance with the
Employer's approval at professional meetings, conventions, and educational
courses up to two weeks shall not constitute part of said vacation.
B. Vacation may be taken at one time or from time to
time, the exact time to be subject to approval by the Employer.
5. HEALTH INSURANCE; EMPLOYEE BENEFIT PLANS. In accordance
with their terms, the Employee shall be entitled to participate in any medical,
dental, life, disability insurance or other employee benefit or welfare plans
maintained by the Employer for its professional employees generally. The
insurance obligations of the Employer set forth herein are contingent upon the
insurability of Employee. The medical and dental coverage maintained by the
Employer for the benefit of the Employee shall include medical insurance
coverage covering the Employee.
6. EXPENSES. During the period of his employment, the Employee
will be reimbursed for his reasonable expenses for the benefit of the Employer
in accordance with the general policy of the Employer as adopted by the Employer
from time to time. With respect to any expenses which are reimbursed by the
Employer to the Employee, the Employee agrees to account to the Employer in
detail sufficient to entitle the Employer to an income tax deduction for such
paid item if such item is deductible.
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7. TERMINATION.
A. This Agreement shall automatically
terminate:
(i) upon the death of Employee; or
(ii) if the Employee has been disabled or
incapacitated so that he is not capable of
performing his duties hereunder for any
period of one-hundred twenty (120)
consecutive days, unless Employer shall
elect to have this Agreement continue in
effect.
B. Employer may terminate this Agreement:
(i) immediately for "cause" as determined by the
Employer;
(ii) upon a material breach by Employee of any
term or condition of this Agreement; or
(iii) if at any time during the term of this
Agreement, any of the continuing
representations, covenants or agreements of
Employee contained herein shall be
inaccurate in any material respect.
C. Employee may terminate this Agreement at any time:
(i) upon a material breach by Employer of any term or
condition of this Agreement; or
(ii) at any time at the election of Employee upon
ninety (90) days notice to Employer.
8. PROTECTION OF CONFIDENTIAL INFORMATION. Employee acknowledges that
his employment by the Employer will bring him into close contact with many
confidential affairs of the Employer, including information and data regarding
costs, profits, markets, sales, products, key personnel, pricing policies,
operational methods, technical processes, computer programs or systems developed
or improved by the Employer, the identity of the Employer's Customers, Customer
representatives and contacts, the nature of the services required by the
Employer's actual and Prospective Customers, the services performed by the
Employer for its Customers, the identities of the Employer's actual and
prospective employees and other business affairs and methods, plans for future
developments and other information not readily available to the public, all of
which are highly confidential and proprietary and all of which will have been
developed by the Employer at great effort and expense. Employee further
acknowledges that the services to be performed by him under this Agreement are
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of a special, unique, unusual, extraordinary and intellectual character, and
that the business of the Employer is contemplated to be conducted throughout the
United States and ultimately, the rest of the world. In recognition of the
foregoing, Employee covenants and agrees:
A. That he will keep secret all confidential matters of the
Employer and not disclose them to anyone outside of the Employer, either during
or after the term of this Agreement, except with the Employer's prior written
consent;
B. That he will not make use of any of such confidential
matters for his own purposes or the benefit of anyone other than the Employer;
and
C. That he will deliver promptly to the Employer on
termination of this Agreement, or at any time the Employer may so request, all
confidential memoranda, notes, records, reports and other confidential documents
(and all copies thereof) relating to the business of the Employer which he may
then possess or have under this control.
9. COVENANT NOT TO SOLICIT.
A. Employee agrees that if the Employee's employment is
terminated for any reason whatsoever, other than pursuant to a dissolution of
Employer or a material breach of the terms of this Agreement by Employer, then
for a period of one (1) year after such termination or expiration, Employee
shall not (i) solicit, directly or indirectly, business of the type conducted by
the Employer from any person, firm or entity which was a Customer or Prospective
Customer of the Employer at any time within one year preceding the termination
of Employee's employment, (ii) induce or attempt to induce any such Customer or
Prospective Customer to reduce its business with the Employer, (iii) solicit or
attempt to solicit any employees or consultants of Employer to leave the employ
or engagement of Employer, or (iv) offer or cause to be offered employment or
consultant opportunities to any person who was employed or engaged by Employer
at any time during the one year prior to the termination of Employee's
employment with Employer.
B. For purposes of this Section, the term "Customer" includes
any affiliates, customers, and clients of Employer's Customers to whom Employee
has been introduced or whom Employee has received information through Employer
or through any Customer for which Employee has performed services in any
capacity on behalf of Employer.
C. For purposes of this Section, a "Prospective Customer'
shall mean potential Customers which Employer has solicited or with which
Employer has had active discussions concerning potential business at any time
during the one year preceding the end of the Employee's employment by Employer,
and with whom the Employee shall have participated in such solicitation or
discussions.
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10. NON-COMPETITION.
A. Since the services of Employee to the Employer are likely
to be unique an extraordinary and he has had and will have access to information
pertaining to the business of the Employer which may be secret and confidential,
Employee agrees that if the Employee's employment is terminated for any reason
whatsoever, other than pursuant to a dissolution of Employer or a material
breach of the terms of this Agreement by Employer, then for a period of one (1)
year after such termination or expiration, Employee will not, without express
approval in each case of the Employer, directly or indirectly, (i) own, manage,
operate, control, be employed by, participate in or be connected in any manner
with the ownership, management, operation or control of any business engaged in
the development or marketing of any products that directly compete with the
products of Employer.
B. The Employee further acknowledges that a business
competitive with that of Employer or of any of its subsidiaries or affiliated
corporations may be carried on anywhere within the United States or in any
foreign country. Therefore, the Employee acknowledges that the unrestricted
geographical application of this Section is reasonable under the circumstances.
If any of the rights or restrictions contained or provided for herein shall be
deemed to be unenforceable by reason of the extent, duration or geographical
scope, or other provisions hereof, or any other provisions of this Agreement,
the parties hereto contemplate that the court shall reduce such extent,
duration, geographical scope or other provisions and enforce this Section in its
reduced form for all purposes in the manner contemplated hereby.
C. The Employee acknowledges that (i) in the event his
employment with Employer terminates for any reason, Employee will be able to
earn a livelihood without violating the foregoing restrictions, and (ii)
Employee's ability to earn a livelihood without violating such restrictions is a
material condition of his employment with Employer. Employer may, in writing,
waive any or all of the provisions of this Section. If the Employee is in good
faith and after diligent effort unable to obtain employment consistent with his
training solely because of the covenants set forth in this Section, and so
advises Employer in writing, then the prohibitions in this Section shall bind
the Employee only so long as Employer pays him monthly, upon demand, a sum equal
to the Employee's monthly base pay at termination, as defined below, for each
month of such unemployment during the remained of the term of covenants set
forth in this Section, including retroactive payments back to the date of
unemployment.
D. The term "monthly base pay" means the Employee's monthly
salary, in all cases excluding commissions in excess of base pay, bonus or other
extra compensation or benefits, and is subject to regular deductions for taxes,
social security payments, etc. For each month of unemployment in which the
Employee claims payment, he will aggressively seek employment and will accept a
reasonable offer of employment and, upon request by Employer, will account to
Employer in detail for his efforts to obtain employment. The Employee further
agrees that Employer may make such investigations and inquiries as it shall deem
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necessary or appropriate to determine whether the covenants and conditions of
this Section have been satisfied before making any payment otherwise payable to
the Employee hereunder.
11. PROPRIETARY RIGHTS.
A. Employee shall disclose fully and promptly to Employer, and
upon Employer's instructions also to the Customer for which the Employee is then
working, any and all inventions, processes, innovations, discoveries, designs,
techniques, formula, improvements, computer programs and other technical
materials relating to business of Employer or Employer's Customer which Employee
shall discover, conceive, make, generate or reduce to practice, alone or jointly
with others, during his/her term of employment with Employer, and resulting from
such employment, whether or not they are patentable or copyrightable.
B. Employee agrees to assign to Employer his rights and
interests in any inventions, processes, innovations, discoveries and other
similar materials, including copyrights to all copyrightable material and all
patent rights to all patentable material unless specifically directed otherwise
in writing by Employer to assign it to Customer. No rights shall be reserved to
Employee.
C. Employee agrees to execute and transfer at any time, upon
Employer's request, any certification, affidavit or other document confirming
the Employer's ownership rights under this Section.
D. Upon request, at any time during or after the term of this
Agreement, and at the expense of Employer or its Customer for whom the work in
question was performed, Employee agrees to assist Employer or Customer,
including its attorneys, in preparing and prosecuting applications for patents
or copyrights relating to such inventions, processes and other materials named
in this Section. Assistance in preparing and prosecuting such applications shall
include assistance regarding litigation and upon Employer's request, the
execution of all papers and performance of all tasks that may reasonably be
necessary to protect the rights of Employer or Customer and to vest in it or its
assigns ownership of the inventions, applications, copyrights and patents herein
contemplated.
12. NON-DEFAMATION. The Employee covenants and agrees that during the
course of his employment by the Employer and for any time thereafter, the
Employee shall not, directly or indirectly, in public or private, deprecate,
impugn or otherwise make any remarks that would tend to or be construed to tend
to defame the Employer, its employees or products or its reputation, nor shall
Employee assist any person, firm or company in doing so, except as required by
subpoena, court order or other legal process.
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13. NO WAIVER. This Agreement shall not be modified or amended except
by a further written document signed by the Employee and the Employer. No
provision hereof may be waived except by an agreement in writing signed by the
waiving party. A waiver of any term or provision shall not be construed as a
waiver of any other term provision.
14. BENEFIT. This Agreement shall bind the Employee and shall bind and
benefit the Employer and its successors and assigns. This Agreement shall not be
assignable by the Employee.
15. HEADINGS. The headings of Sections herein are included solely for
convenience or reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
16. ENFORCEMENT OF COVENANTS; SURVIVAL. The Employee acknowledges that
his skills and position in the technology industry in which Employer competes or
intends to compete are unique, and, therefore, that the breach or threatened
breach by Employee of the provisions of Sections 8 - 12 shall cause irreparable
harm to Employer, which harm cannot be fully redressed by the payment of damages
to Employer. Accordingly, Employer shall be entitled, in addition to any other
right or remedy it may have, at law or in equity, to an injunction, without the
posting of any bond or other security, enjoining or restraining the Employee
from any violations or threatened violation of Sections 8 - 12, and Employee
hereby consents to the issuance of such injunction. Nothing contained herein
shall be construed as prohibiting the Employer from pursuing any other remedies
available to the Employer for breach or threatened breach, including the
recovery of additional damages from the Employee. The provisions of Sections 8 -
12 shall remain enforceable by Employer against Employee even after the
termination of this Agreement.
17. NOTICE. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by registered mail to
his residence in the case of the Employee, or to its principal office in the
case of the Employer.
18. SEVERABILITY. Each provision of this Agreement shall be considered
severable to the extent that if any one provision or clause conflicts with
existing or future applicable law, or is not given full force and effect because
of such law, such conflict or unenforceability shall not affect any other
provision of this Agreement which, consistent with such law, shall remain in
full force and effect. All such conflicting provisions shall be modified or
reformed only to the extent required for compliance with any applicable laws.
All surviving clauses shall be construed so as to effectuate the purpose and
intent of the parties.
19. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York and shall be construed in accordance therewith, and any action
or proceeding arising out of or relating to this Agreement shall be heard and
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determined in any state or federal court sitting in Nassau County, State of New
York, and each of the parties submits to the jurisdiction of such court.
20. RELEASE. The Employee hereby releases and discharges the Employer
for reimbursement of any and all services, but not expenses, rendered prior to
the date hereof.
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, including facsimile signatures, each of which shall be deemed an
original but all of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first above written
SEARCHHELP, INC. EMPLOYEE
By: By:
--------------------------------- ------------------------------------
Xxxxxx Xxxxxx, President Xxxx Xxxxx
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SCHEDULE A
Salary
3. Employee's salary shall be $100,000 per annum. Although the employee
shall commence employment as of the date hereof, employee's salary
shall not commence until on April 1, 2004.
4. The Employee is guaranteed employment for at least six (6) months.
SCHEDULE B
Options
5. The Employee will be issued 150,000 stock options to purchase the
Company's common stock which are to be granted from the Company Stock
Option Plan at the exercise price equal to the mid point between the
bid price and ask price of the Company's common stock on the date of
grant. The following is the vesting schedule for the options:
-------------- ----------- ----------- ----------- ------------
Xxxxx Xxxx # of Vest Grant
-------------- ----------- ----------- ----------- ------------
Date % Shares Days Date
-------------- ----------- ----------- ----------- ------------
3/18/2004 25% 37,500 0 3/18/2004
-------------- ----------- ----------- ----------- ------------
25% 37,500 90 6/16/2004
-------------- ----------- ----------- ----------- ------------
50% 75,000 180 9/14/2004
-------------- ----------- ----------- ----------- ------------
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