AGREEMENT
THIS AGREEMENT (the "Agreement") is being made as of this 16th
day of January, 1997, between NAM Corporation, a Delaware corporation, with
offices at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxx, Xxx Xxxx 00000 (the
"Company"), and Xxxxxxxx Xxxxxxxx-Xxxxxxx, an individual residing at 00 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Employee").
W I T N E S S E T H :
WHEREAS, the Employee has expertise in providing the services
sought by the Company; and
WHEREAS, the Company desires to employ the Employee during the
term of this Agreement, and Employee is willing to be employed subject to the
terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and
agreements contained herein, and intending to be legally bound hereby, the
parties agree as follows:
1. Engagement and Duties. During the term of this Agreement,
the Company shall employ Employee and Employee agrees to be employed by the
Company as Vice President, Treasurer and Chief Financial Officer and to devote
her full time and efforts in performing the services requested by the Company.
The Employee shall at all times serve at the direction of the Chief Executive
Officer.
2. Term. This Agreement shall commence on February 3, 1997 and
shall continue until December 31, 1999 (the "Initial Term"). This Agreement
shall automatically renew for an additional one (1) year (the "First Renewal
Term") period unless the Company or the Employee gives notice of termination at
least forty-five (45) days prior to the end of the Initial Term. Thereafter,
this Agreement shall automatically renew for additional one (1) year periods
(the "Successive Renewal Term") unless the Company or Employee gives notice of
termination at least forty-five (45) days prior to the end of the First Renewal
Term or any Successive Renewal Term thereafter.
3. Compensation. As compensation for her services hereunder,
the Company shall pay Employee a base salary of $116,000 per annum ("Base
Salary") which shall be payable in equal bi-weekly installments. In addition,
Employee shall receive from the Company the following:
(a) Employee shall be entitled to receive an annual bonus at
the discretion of the Chief Executive Officer which will be paid in accordance
with the policies of the Company;
(b) The Base Salary shall be increased each year of only the
Initial Term by a minimum of 5% beginning in January 1998. Thereafter, all
increases to the Base Salary will be at the discretion of the Board of
Directors.
(c) Employee shall receive a signing bonus of $5,000 which
shall be paid as part of the first payment of salary received by the Employee.
(d) Employee shall receive $400 a month toward the lease and
operation of an automobile.
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(e) Upon execution of the Agreement, the Employee shall be
granted options to purchase 40,000 shares of Common Stock (the "Options") with
an exercise price equal to the closing bid price on the date of this Agreement
as reported by the NASDAQ Small Cap Market. The Options shall vest as follows:
(i) 1/3 on December 31, 1997, (ii) 1/3 on December 31, 1998, and (iii) 1/3 on
December 31, 1999, as long as the Employee is employed by the Company on each
date pursuant to this Agreement. If the Employee is not employed by the Company
on such dates, then the Employee will have no rights or interests to the
non-vested portions of the Options. The Options shall be for 6 years from the
date hereof and shall be subject to the terms and conditions of the Company's
1996 Stock Option Plan and memorialized in a stock option certificate to be
issued by the Company. Employee shall also be eligible to receive additional
options under the Plan at the discretion of the Board of Directors.
4. Benefits/Vacation. Employee shall be entitled to
participate in all benefit programs offered by the Company subject to the terms
and conditions of such programs. In addition, Employee shall receive a life
insurance policy of $250,000 and shall not contribute toward her full family
health insurance coverage. The Employee shall also be eligible to take 10 days
of paid vacation time per year beginning June 1, 1997 in accordance with
Company's policy.
5. Expenses. Employee shall be entitled to reimbursement of
reasonable expenses incurred on behalf of the Company. At the end of each month,
Employee shall submit an itemized expense report with each expense documented by
appropriate receipts.
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Reimbursement of an expense shall be at the sole discretion of the Company and
Employee shall receive reimbursement in accordance with Company policy.
6. Employee's Representations. Employee hereby represents and
warrants that she has full power and authority to enter into this contract and
that she has no obligation, contractual or otherwise, (i) to provide services to
any entity or person besides the Company; or (ii) that would conflict with her
obligations to the Company under this Agreement.
7. Inability to Work/Death.
(a) If Employee is mentally or physically unable to perform
his duties under this Agreement for a period of ninety (90) days then the
Company may terminate this Agreement upon ten (10) days notice and the Company
shall be liable to Employee only for the amount of Base Salary owed through the
date of termination as set forth in the notice.
(b) If Employee dies during the term of this Agreement, this
Agreement shall terminate on the date of her death and the Company shall be
liable to Employee only for the amount of Base Salary owed through such date.
8. Termination.
(a) Notwithstanding anything herein contained, if on or after
the date hereof and prior to the end of the term of this Agreement, Employee is
terminated "For Cause" (as defined below) then the Company shall have the right
to give notice of termination of Employee's services hereunder as of a date to
be specified in such notice, and this Agreement shall terminate on the date so
specified. Termination "For Cause" shall mean Employee shall: (i) be convicted
of a felony crime, (ii) commit any act or omit to take any action in bad faith
and to the
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detriment of the Company, (iii) commit an act of moral turpitude, (iv) commit an
act of fraud against the Company, or (v) materially breach any term of this
Agreement and fail to correct such breach within five (5) days after commission
thereof. If Employee is terminated pursuant to this subsection then the Company
shall be liable to Employee only for the amount of Base Salary owed through the
date of termination as set forth in the notice.
(b) Notwithstanding anything herein contained, the Employee
may be terminated "Without Cause" upon notice from the Company. If Employee is
terminated "Without Cause" during the first year of this Agreement, Employee
shall receive as severance a payment equal to three months of the Base Salary in
effect at the time of termination which shall be paid in equal bi-weekly
installments over the three month period following the date of termination as
set forth in the notice. If Employee is terminated "Without Cause" after the
first year, Employee shall receive as severance a payment equal to six months of
the Base Salary in effect at the time of termination which shall be paid in
equal bi-weekly installments over the six month period following the date of
termination as set forth in the notice.
9. Confidentiality. In order to induce the Company to enter
into this Agreement, Employee hereby agrees that, except with the written
consent of the Company, Employee shall keep confidential and not divulge to any
person that is not affiliated with the Company, during the term of this
Agreement or any time thereafter, any of the Company's confidential information
and business secrets, including, without limitation, confidential information
and business secrets relating to such matters as the Company's finances and
operations, the materials, processes, and procedures used in the Company's
operations, the names of the Company's clients and their requirements, and the
names of the Company's suppliers. All papers, books,
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and records of every description, including, without limitation, handbooks,
manuals, client lists, computer software, programs, modules, or source codes, as
well as all reproductions thereof, relating to the business and affairs of the
Company, its clients or suppliers, whether or not prepared by Employee, shall be
the sole and exclusive property of the Company. Employee shall surrender all
tangible evidence of such information to the Company at the termination of this
Agreement or at any time during the term of this Agreement upon request by the
Company.
10. Non-Compete. In consideration of the compensation to be
received by Employee from the Company, Employee shall not: (a) during the period
Employee is employed with the Company, engage in, or otherwise directly or
indirectly be employed by, or act as a consultant or lender to, or be a
director, officer, employee, owner, member or partner of, any business or
organization that is or shall then be competing with the Company; and (b) for a
period of one (1) year after the termination of this Agreement, directly or
indirectly, (i) market or provide any competitive services to, or solicit any
business from, any clients of the Company; or (ii) solicit, contact, or employ
or offer to employ any person who is employed by the Company at the time that
Employee ceases being employed by the Company or any person hired by the Company
after such time. If any restriction contained in this section shall be deemed
invalid, illegal, or unenforceable by reason of the extent, duration, or
geographical scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration, geographical
scope or other provision hereof to the fullest extent allowed by law, and in its
reduced form such restriction shall then be enforceable in the manner
contemplated hereby.
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11. Arbitration. The parties agree that in the event of any
dispute or controversy arising out of or in connection with this Agreement, or
any alleged breach thereof, (a "Dispute"), the parties shall arbitrate the
Dispute before three arbitrators with the arbitration to be held in New York
City under the rules promulgated by National Arbitration and Mediation. The
Company and the Employee shall each choose 1 arbitrator and then the 2
arbitrators chosen shall jointly choose the 3rd arbitrator. The parties shall
have 10 business days from receipt of a demand for arbitration in which to
choose an arbitrator. If a party fails to choose an arbitrator within such time
period then the arbitrator chosen by the non-defaulting party shall choose an
arbitrator and the arbitration shall proceed before only 2 arbitrators. Nothing
in this Agreement shall prevent the Company or the Employee from seeking
appropriate injunctive relief in aid of arbitration to enforce any provision of
this Agreement from a federal or state court located in New York, and the
parties irrevocably and unconditionally consent to the exclusive jurisdiction of
such courts in New York solely for any such injunctive action. The decision of
the arbitrators will be final and binding upon the parties, and the judgment of
a court of competent jurisdiction may be entered thereon. Fees of the arbitrator
and the cost of arbitration shall be borne as determined by the arbitrators.
12. Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
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13. Notices. All notices, requests, demands, and other
communications hereunder must be in writing and shall be deemed to have been
duly given if delivered by hand, mailed within the continental United States by
first class, certified mail, return receipt requested, postage and registry fees
prepaid, or sent by Federal Express or any other nationally recognized overnight
courier, or sent by telecopy or facsimile transmission (with receipt confirmed),
to the applicable party and addressed to the addresses set forth in the
preamble. Any notice or other communication given by certified mail shall be
deemed given at the time of certification thereof, except for a notice changing
a party's address which shall be deemed given at the time of receipt thereof.
Any notice or other communication given by overnight courier shall be deemed
given one day after delivery to such courier. Any notice or other communication
sent by telecopy or facsimile transmission shall be deemed given at the time of
confirmation of receipt.
14. Waiver. Any waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
15. Merger. In the event of a future disposition of the
properties and business of the Company, substantially as an entirety, by merger,
consolidation, sale of assets, sale of stock, or otherwise, then the Company may
elect to assign this Agreement and all of its rights and obligations hereunder
to the acquiring or surviving corporation.
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16. Binding Effect. Employee's rights and obligations under
this Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to encumbrance or the claims of Employee's creditors, and
any attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of Employee and his
heirs and personal representatives, and shall be binding upon and inure to the
benefit of the Company and its successors and those who are its assigns.
17. Headings. The headings in this Agreement are solely for
the convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
18. Miscellaneous.
(a) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(b) It shall be governed by, and construed in accordance with,
the laws of the State of New York, without giving effect to the rules governing
conflicts of laws.
(c) Employee irrevocably consents to the jurisdiction of the
courts of the State of New York and of all federal courts located in such state
in connection with any action or proceeding arising out of or relating to this
Agreement or the breach thereof. In any such action or proceeding, Employee
waives personal service of any summons, complaint, or other process and agrees
that service thereof may be made in accordance with Section 14 hereof.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first written above.
NAM CORPORATION
/s/ Xxxxxxxx Xxxxxxxx-Xxxxxxx By:/s/ Roy Israel
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Xxxxxxxx Xxxxxxxx-Xxxxxxx Name: Roy Israel
Title: CEO
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