EXHIBIT (10)(c)(i)
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (The "EMPLOYMENT AGREEMENT") is made
and entered into as of March 1, 1999, by and between NeuroCorp, Ltd., a Nevada
corporation ("Employer") and Xxxxxx X. Xxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as its President and Chief
Executive Officer for a term of employment as herein provided and Employee
desires to become an employee of Employer as herein provided; and
WHEREAS, the parties to establish by contract the terms and conditions
of the employment of Employee by Employer;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties agree as follows:
1. TERM OF EMPLOYMENT. The term of this employment under this Agreement shall
commence on March 1, 1999, and terminate on December 31, 2000 unless terminated
earlier as provided herein (the "Term").
2. TITLE AND DUTIES OF EMPLOYEE. Employee shall serve as President and
Chief Executive Officer of Employer. Employee agrees to his employment by
Employer and to devote substantially his entire business time to the business of
Employer throughout the period of his employment, provided that Employee may
make personal passive investments and be involved in charitable activities
provided they do not interfere with his activities hereunder (see Exhibit B
attached hereto). Employee is employed as the President and Chief Executive
Officer of Employer with an emphasis on Employer's operations, finances and
management information systems. Employer shall have the right at any time to
change or modify the work or duties to be performed by Employee, PROVIDED that
such work or duties as so changed or modified shall include the general powers
and duties usually vested in the office of President and Chief Executive Officer
of a company of Employer's size and shall be commensurate with such position.
Subject to the prior sentence, Employer shall have the exclusive power and
authority to determine the matters to be assigned to Employee and the specific
duties to be performed by him. Employee shall report to only the Board of
Directors.
3. SALARY. For all services rendered by him during the Term, Employee
shall be paid a base salary at the rate of $175,000 Dollars per annum in the
first year and $225,000 in the second year ("salary"), payable bi-monthly,
subject to standard deductions for all applicable state and federal taxes and
other reasonable bona fide deductions.
4. ADDITIONAL BENEFITS. During the Term, Employee shall be entitled to the
following other benefits, in addition to his Salary or as otherwise described in
this Employment Agreement:
A. REIMBURSEMENT FOR TRAVEL, ENTERTAINMENT AND OTHER Expenses.
During the Term, Employer shall reimburse Employee for any
reasonable travel, entertainment or other necessary expenses
incurred in the performance of his duties under this Employment
Agreement, consistent with the policies of Employer at the time of
such
reimbursement with respect to such expenses, as such policy may
be modified from time to time.
B. ALL BENEFIT PLANS. During the Term, Employee shall be eligible
to participate in all benefit plans generally available to
Employer's officers, excluding any bonus plans other than as
described in paragraph 4.C. below and shall at a minimum be provided
with a health plan, long term disability benefits (based upon
Employee's inability to do his job for a consecutive period of 6
months) and life insurance coverage pursuant to Employer's benefit
plan in existence at the time hereof as such plan may be enhanced
but not diminished during the term hereof.
C. BONUS PLAN. During the first (1st) year of the Term, Employee
shall be eligible for quarterly incentive compensation of $15,000
per quarter upon achieving certain reasonable financial and other
goals to be agreed to by Employer and Employee. During the second
(2nd) year of the term, Employee shall be eligible for annual
incentive compensation with a target benefit of $100,000 and a
maximum of $200,000 upon achieving certain reasonable financial and
other goals to be agreed to by Employer and Employee. These
objectives will be designed and agreed upon within the first 60 days
of each year.
D. STOCK OPTIONS. Upon commencing employment, Employee shall
be granted nonqualified stock options on the terms set forth on
Exhibit A attached hereto.
E. CAR ALLOWANCE. Employer shall either provide Employee a
company-owned vehicle or provide a car allowance of $1000 per
month.
5. RESIGNATION. If for any reason other than for Good Reason, as
hereinafter defined, Employee voluntarily resigns his employment prior to the
expiration of the Term, Employee shall forfeit any right to receive any further
payments of benefits, including severance benefits, pursuant to this
Employment Agreement and Employer shall be released and discharged from any
liability, obligation or duty arising in connection with this Employment
Agreement or in connection with his employment, except for amounts accrued
prior to such termination, a bonus pursuant to Section 4.C., if any is
earned, and any right of indemnification hereunder or under the provisions of
Employer's Bylaws and Articles of Incorporation (the "Indemnity Obligation").
Nevertheless, Employer and Employee shall continue to be bound and obligated
by any provision of this Employment Agreement which is intended to by its
terms to survive and continue beyond the resignation of Employee, including,
but not limited to, the provisions of Section 7. Employee may terminate his
employment hereunder for such Good Reason, upon written notice to Employer
setting forth the nature of such Good Reason in reasonable detail. "Good
Reason" shall mean (i) the failure of Employer to provide Employee the
salary, incentive and bonus compensation and benefits in accordance with the
terms hereof; (ii) the failure of Employer to continue Employee in the
position of President and Chief Executive Officer, (iii) the material
diminution in the nature or scope of the Employee's responsibilities, duties
or authority, or (iv) any other material breach of this Agreement by
Employer. Upon Employer's receipt of written notice of Employee's termination
for Good Reason hereunder such termination shall be effective thirty (30)
days after receipt of such notice if a cure for such event has not been
effected.
6. TERMINATION EARLIER THAN BY EXPIRATION OF TERM. Although the parties
expressly intend that employment under this Agreement shall continue until
December 31, 2000 unless sooner terminated pursuant to the provisions of Section
5, the parties mutually agree that employment under this Agreement, and the
provision hereof (except for any provision intended by its terms to survive and
continue, including, but not limited to, the provisions of Section 7), in
additional shall be terminated in advance of the expiration of the Term upon the
occurrence of any one of the following events:
A. DEATH. The death of Employee;
B. DISABILITY. The physical or mental disability of Employee that
has prevented him from performing effectively the duties of his
employment for a time period greater than six (6) consecutive
months;
C. TERMINATION FOR CAUSE. Employer also reserves the right at its
election to terminate the employment of Employee if at any time
Employee (i) has engaged in intentional material misconduct with
regard to the Employer, or any intentional material
misrepresentative or intentional material act of dishonesty (other
than good faith expense account disputes), or (ii) has violated in
any material respect any material covenant, term or condition
contained in this Employment Agreement, or (iii) has willfully
violated any applicable provision of the Company's Code of Conduct
to be developed by March 31, 1999. Upon the occurrence of any event
described in clause (i) of this Section 6.C., regardless of whether
such event is also described in clause (ii) or (iii) of this Section
6.C., notice of termination for cause of the employment of Employee
may be given in writing by Employer to Employee and such termination
shall be effective immediately upon the delivery of such notice.
Upon the occurrence of any event described in clause (ii) and (iii)
of this Section 6.C., notice of termination for cause of the
employment of Employee setting forth the grounds for such
termination shall be given to Employee by Employer in writing within
sixty (60) days of receiving actual knowledge of such default by the
Board of Directors of the Company and such termination shall be
effective thirty (30) days thereafter if a cure for such event has
not been effected. The giving of such notice shall also effect a
termination of the obligations under this Employment Agreement
except as to any provision of this Employment Agreement which is
intended by its terms to survive and continue, including, but not
limited to, the provision of Section 7.
D. TERMINATION BY THE EMPLOYER WITHOUT CAUSE. If Employer
terminates this Agreement without cause, for any reason, Employee
shall be paid immediately for any and all monies, bonuses, or other
compensation due, and salary shall continue to be paid bi-monthly
until Employee secures other employment. All stock options will
immediately become vested and Employee will have up to ninety (90)
days to exercise said stock options. Employer will also be
responsible for continuing all benefit coverages as described in
4.B. for the duration of the Term.
E. TERMINATION BY THE EMPLOYEE FOR GOOD REASON. If Employee
terminates this Agreement for Good Reason, Employee shall be paid
immediately for any and all monies, bonuses, or other compensation
expected during the remainder of this Term. All stock options will
immediately become vested and Employee will have up to ninety (90)
days to exercise said stock options. Employer will also be
responsible for continuing all benefit coverages as described in
4.B. for the duration of the Term.
7. RECORDS; CONFIDENTIAL INFORMATION; NON-COMPETITION AGREEMENT;
TANGIBLE PROPERTIES.
A. OWNERSHIP. All business records, data and information
("Records") are and shall remain the exclusive property of Employer.
Employee shall not under any
circumstances whatsoever permanently remove any Records from the
premises of Employer without prior written consent of Employer.
B. RETURN OF RECORDS. Upon request, Employee shall
immediately return to Employer all Records and copies thereof in
Employee's possession.
C. CONFIDENTIAL AND PROPRIETARY INFORMATION. To the extent not
otherwise provided for in this Employment Agreement, except as
reasonably desirable in Employee's performance of his duties
hereunder, Employee agrees to maintain the confidentiality of all
confidential and proprietary information relating to the business or
internal operation of Employer both during and after his employment
by Employer, PROVIDED that if Employee becomes legally compelled to
disclose any of such information, Employee will promptly notify
Employer so that Employer may seek a protective order of other
appropriate remedy and/or waive compliance under this Section 7.C.
If such protective order or other remedy is not timely obtained, or
if Employer waives compliance with the provisions of this Section
7.C., Employee will furnish only that portion of such information
that is legally required. Employee understands and agrees that this
Section 7 is a material part of this Employment Agreement, his
acceptance of which is an inducement to Employer to enter into this
Employment Agreement.
D. NON-COMPETITION AGREEMENT. Employee covenants and agrees that
for the period beginning the date of Employee's termination of his
employment with Employer and ending on the first (1st) anniversary
of said date (the "Restricted Period"), Employee will not, directly
or indirectly, on his own behalf or as a partner, officer,
consultant, principal, agent, stockholder (except by ownership of
five percent (5%) or less of the outstanding stock of any publicly
held corporation) or in any other capacity, invest or engage in, or
devote any endeavor or effort to the business of providing contract
clinical research and data analysis to health agencies, research
organizations and pharmaceutical companies as well as providing
education and consultation services to individuals who suffer from
memory complaints (the "Business") within a 200 mile radius of where
Employer is doing business at the time of the termination of this
Agreement (the "Territory"). During the Restricted Period in the
event Employee is employed by or consults with a business
organization and such organization's primary business is not the
Business, as long as Employee is not directly or indirectly involved
in employment with or consulting in the Business, then in such
event, that employment is not prohibited from employment by such
Organization; however, Employee shall be prohibited from being
involved directly or indirectly with the Business. Employee shall be
prohibited from working for an Organization whose primary business
is the Business.
E. NON-SOLICITATION AGREEMENT. During the Restricted Period,
Employee shall not, whether for his own account or for the account
of any other individual, partnership, firm, corporation or other
business organization, intentionally solicit, endeavor to entice
away from Employer or any entity controlled by or under common
control with Employer, or otherwise interfere in a material fashion
with the relationship with, any person who is employed by or
otherwise engaged to perform services for Employer or any person or
entity who is as of the Termination Date, or within the then most
recent 12-month period, a customer or client of Employer. The giving
of references shall not be deemed a violation of this Section.
F. REFORMATION. Each of the parties hereto recognizes that the
time limitations and territorial restrictions contained in this
Section 7 are properly required for the adequate protection of the
Business and that in the event any covenant or other provision
contained herein shall be deemed to be illegal, unenforceable, or
unreasonable by a court or other tribunal of competent jurisdiction
with respect to any part of the Territory, such covenant or
provisions shall not be affected with respect to any other party of
the Territory, and each of the parties hereto agrees and submits to
the reduction of said time limitations and territorial restriction
to such an area as said court shall deem reasonable.
G. DOCUMENTS, WRITTEN MATERIAL AND TANGIBLE PROPERTIES. To the
extent not otherwise provided for in this Employment Agreement,
Employee agrees that all documents, written materials and other
tangible property, including copies thereof, relating in any way to
the business of Employer, shall be and remain the exclusive property
of Employer and shall be returned to Employer by Employee
immediately upon termination of his employment by Employer or at the
request of Employer.
H. INJUNCTIVE RELIEF. Employee hereby acknowledges and agrees
that Employer could not be fully compensated for damages resulting
from a continuing and material breach of any of the provisions of
this Section 7 and, accordingly, that Employer shall be entitled to
temporary or permanent injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent
injunctions, to prevent a breach or threatened breach of this
Section or to enforce the terms of this provision. This right of
Employer with respect to the obtaining of injunctive relief shall
not, however, diminish any right of Employer to claim and recover
monetary damages or to obtain any other remedy.
I. SURVIVAL. The provisions of this Section 7 shall continue in
effect notwithstanding the termination of, or resignation from, the
employment of Employee by Employer.
8. WAIVER OF BREACH. A waiver by a party of a breach of any provision
of this Employment Agreement shall not operate or be construed as a waiver of
any subsequent breach by the other party of the same or any other provision of
this Employment Agreement.
9. NOTICES. Any notice required to be given under this Employment
Agreement shall be deemed sufficient, if in writing, and sent by certified mail,
return receipt requested, or hand delivered, or via overnight delivery service
to the other party at the address shown below:
For Employer: NeuroCorp, Ltd.
000 Xxxxx Xxxxxx Xx.
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxx, Director
With a copy to:
For Employee: Xx. Xxxxxx X. Xxxxx
NeuroCorp, Ltd.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Either party may change its or his address for notices under this section by
giving notice of the change to the other pursuant to this section.
10. GOVERNING LAW; FORUM. This Employment Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
regard to the conflicts of laws rules thereof and is made and entered into in
Tarrytown, New York. Any and all controversies between the Employer and Employee
shall be settled by arbitration, in accordance with the Commercial Arbitration
rules, then obtaining, of the American Arbitration Association. Arbitration
shall take place in New York, NY. Any arbitration hereunder shall be before one
arbitrator associated with the American Arbitration Rules of the American
Arbitration Association. The award of the arbitrator shall be final, and
judgment upon the award rendered may be entered in New York, New York. The
arbitrator may award attorneys' fees and costs to the prevailing party pursuant
to the terms of this Agreement.
11. SEVERABILITY. If any of the provisions of this Employment Agreement
are determined to be invalid or unenforceable in part, the remaining provisions,
and the enforceable portions of any partially unenforceable provisions, shall
nevertheless be binding and enforceable.
12. BINDING EFFECT: EFFECTIVE DATE; ENTIRE AGREEMENT. Subject to Section
13 below, this Employment Agreement shall inure to the benefit of and shall be
binding upon Employer and its successors and assigns, and upon Employee and his
heirs, legatees, executors, administrators, successors and beneficiaries. This
Employment Agreement shall be effective as of the date hereof. This Employment
Agreement contains the entire agreement between the parties and supersedes any
prior agreements, term sheets or discussions between the parties. This
Employment Agreement may not be amended except by a written agreement signed by
the parties.
13. ASSIGNMENT. This Employment Agreement shall not be assignable by
Employee without the prior written consent of Employer. This Employment
Agreement may only be assigned by Employer in connection with a sale of all or
substantially all of the assets of the Employer. In such event a written
assumption agreement shall be promptly delivered to Employee by the buyer of
such assets.
14. CAPTIONS. Captions of Sections are inserted only as a matter of
convenience and reference and in no way define, limit or describe the substance
or scope of this Employment Agreement or the intent of any of its provisions.
15. RULES OF CONSTRUCTION. This Employment Agreement has been negotiated
by the parties and is to be interpreted according to its fair meaning as if the
parties had prepared it together and not strictly for or against any party. All
references in this Employment Agreement to "parties" refer to parties in this
Employment Agreement unless expressly indicated otherwise. References in this
Employment Agreement to sections are to sections of this Employment Agreement
unless expressly indicated otherwise. References in this Employment Agreement to
"provisions" of this Employment Agreement refer to the terms, conditions and
promises contained in this Employment Agreement. At each place in this
Employment Agreement where the context so requires, the masculine, feminine or
neuter gender includes the others and the singular or plural number includes the
other. Forms of the verb "including" mean "including without limitation." The
word "or" is inclusive and includes "and".
16. INDEMNITY. Employer and Employee will enter into a contractual
indemnity agreement contemporaneously with or promptly after the execution
hereof, which indemnity will provide that the Employer will provide, subject to
a customary limits and exclusions, for the payment of legal fees and expenses
related to the defense of Employee of an action brought against Employee for
which he is entitled to be indemnified hereunder. The Employer will have the
obligation to maintain and continue in
full force and effect the officers and directors insurance coverage currently in
place, at no increase in premium and provided that such insurance coverage is
available to the Company.
IN WITNESS WHEREOF, the parties hereto have executed
this Employment Agreement as of the date first above written.
NEUROCORP, LTD.
By: _______________________
Name: XXXX X. ITIL
Title: EXECUTIVE VICE PRESIDENT
------------------------
XXXXXX X. XXXXX 8/16/99
EXHIBIT A.
STOCK OPTION PLAN
Employer agrees to the following stock option plan for Employee;
At signing 300,000 shares of NeuroCorp (NURC) stock will be granted. Price of
the options will be based on the fair market value at the date of signing of
this Agreement.
Vesting will be according to the following schedule, provided the Employee is
employed by the Company on the applicable date:
1. 50,000 options vested upon the signing of this Agreement.
2. 50,000 options vested December 31, 1999, if Employee has achieved
certain reasonable, agreed upon goals.
3. 50,000 options vested January 1, 2000.
4. 50,000 options vested December 31, 2000 if Employee has achieved
certain reasonable, agreed upon goals.
5. 100,000 options to be vested in the event that PVALP no longer has
an investment interest in NeuroCorp or no longer has board members
of NeuroCorp. Also in the event that PVALP no longer has an
investment interest in NeuroCorp or no longer has board members of
NeuroCorp all 300,000 options will be immediately vested.
6. Employer agrees that this 300,000 option commitment will supercede
any and all limitations in any other investor agreement, joint
venture partner agreements, venture capital contracts, or any other
agreement that might otherwise limit the number of shares or options
that an Employee of NeuroCorp may hold and has properly obtained
permission or exceptions that might be necessary in order to fulfill
its commitment to grant these 300,000 options.
EXHIBIT B.
The following represents outside business interests of Xxxxxx Xxxxx.
1) 50% ownership of Advanced Communication Solutions, a communication
equipment and software vendor marketing products and services to
hotels and clubs in the greater New York, New Jersey, Connecticut
market. There is currently zero hours per week that is spent
with this business, ownership is absentee only. If a time
commitment becomes necessary, full notice will be given to the
Company.
