Exhibit 10.23
EMPLOYMENT AGREEMENT
This Agreement executed this 23rd day of July, 1999 by and
between ATM SERVICE, LTD., a New York corporation ("ATM") and XXXXXX XXXXXXXXX
("Employee").
The parties, each intending to be legally bound, hereby agree as
follows:
1. POSITION. ATM 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
ATM.
2. TERM. This Agreement shall commence on the Effective Date, as
defined in the Agreement and Plan of Merger among WorldWide Web NetworX
Corporation ("WWWX"), Intrac Acquisition Corporation, The Intrac Group, a
company in which Employee was a principal shareholder, and the Sellers signatory
thereto, which includes Employee (the "Merger Agreement") and shall except as
provided in paragraph 9, remain in effect for a period of ten (10) years
thereafter. After this ten (10) 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, ATM shall compensate Employee as follows:
(a) Employee shall have an annual salary (the "Base Salary") of
$400,000, that will be paid jointly by ATM and Intrac
Acquisition Corporation, a Delaware corporation ("IAC"). ATM
will pay Employee, on an quarterly basis, the difference
between the amount of the Base Salary and the portion
thereof paid by IAC.
(b) Employee shall be entitled to receive such other benefits as
are contained in Schedule "A".
(c) 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 ATM. Notwithstanding anything
contained herein to the contrary, the Base Salary shall be
increased pro rata to any increase in salary received by
Xxxxxx Xxxxxxxxx. As an example, if Xxxxxx Xxxxxxxxx'x Base
Salary is $75,000 and Employee's Base Salary is $50,000,
Employee shall be entitled to 66.67% of any increase
received by Xxxxxxxxx. Employee's entitlement to any stock
options and bonuses or other additional compensation shall
likewise be pro rata with that of any stock options or
bonuses or other additional compensation granted or awarded
to Xxxxxx Xxxxxxxxx.
4. DUTIES. The duties of Employee are as contained in the attached
Schedule "B". Those duties shall be performed in such manner so as to uphold the
reputation of ATM 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 ATM.
5. TIME AND ATTENTION DEVOTED TO DUTIES. Employee shall devote his
entire time and attention to the business of ATM and Intrac Acquisition
Corporation 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 ATM and/or Intrac Acquisition Corporation, 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 ATM, its parents,
subsidiaries or affiliates (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 ATM 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 ATM 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 "ATM" 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
ATM, or at anytime thereafter, unless terminated by ATM
without cause or by Employee for cause pursuant to
sub-paragraph 9(c), without the written approval of ATM
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 ATM and WWWX upon request or
immediately upon the termination of his employment by ATM,
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 ATM or
WWWX including, but not limited to, any copies of such
information.
(c) Unless Employee's employment hereunder is terminated by ATM
without cause or by Employee for cause, or in the event of a
material breach by any of the WWWX Parties under the Merger
Agreement, Employee will not for a period equal to the later
of the length of employment under this Agreement or
five (5) years after Closing (as defined in the Merger
Agreement) (the time period in this Section 6(c) being the
"Non-Compete Term") compete in any way with ATM or WWWX,
directly or indirectly, 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 or ATM worldwide , it being acknowledged that
the business of WWWX and ATM is global in nature. A business
shall be deemed similar or competitive to WWWX or ATM if it
conducts one or more business activities substantially
similar to that conducted by WWWX or ATM. During the
Non-Compete Term, Employee will not provide services or
products to any individual or entity which competes with ATM
or WWWX.
(d) Nothwithstanding if Employee is terminated without cause and
receives a mutually agreed upon severance package, Employee
shall be bound to all covenants contained herein for the
time periods contained above.
7. RIGHT TO ENGAGE IN EMPLOYEE'S PROFESSION. Paragraph 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 ATM or WWWX in violation of the provisions of this Agreement.
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 ATM and WWWX and, in addition to any other
remedies provided in this Agreement or at law, ATM and WWWX shall have the right
to petition a court of competent jurisdiction to enjoin Employee from violating
such covenants.
9. EARLIER TERMINATION
(a) Notwithstanding the termination provision of paragraph 2,
this Agreement may be terminated at any time by ATM 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 sixty (60) consecutive days
or total disability in excess of ninety (90) days in
any twelve (12) month period.
(ii) Any act of dishonesty or disloyalty by Employee
involving or materially affecting ATM.
(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 ATM, the sale
of substantially all of the assets of ATM or a merger
or consolidation in which ATM is not the surviving
entity.
(b) ATM may further terminate this Agreement in the event of the
failure of Employee to substantially perform the duties
assigned to him by ATM providing ATM shall provide thirty
(30) days written notice to Employee of his failure to
perform his duties with an opportunity to cure within said
thirty (30) day period.
(c) Employee may terminate this Agreement in the event of ATM's
material breach of this Agreement or in the event of a
material breach of the Merger Agreement by any of the WWWX
parties, providing Employee shall provide thirty (30) days
written notice to ATM of its breach with an opportunity to
cure within said thirty (30) day period.
(d) In the event that Employee terminates this Agreement for any
reason other than (1) a material breach by ATM hereunder or
by any of the WWWX Parties under the Merger Agreement or (2)
for reasons contained in sub-paragraph 9(a)(i) above, prior
to the expiration of the first five (5) years of the term,
then for each such month or portion thereof prior to the
expiration of such five-year period, Employee shall pay to
ATM the sum of Eighteen Thousand Seven Hundred Fifty
($18,750.00) Dollars at the date of Termination. As an
example, if this Agreement terminates after thirty-six (36)
months, Employee shall pay to ATM Four Hundred Fifty
Thousand ($450,000.00) Dollars. This sum was determined by
way of calculation of ATM's actual damages, in that Employee
received certain benefits upon the merger of Intrac into
WWWX and those benefits were dependent upon at least five
(5) years of service of Employee at ATM.
10. REPRESENTATIONS OF EMPLOYEES
(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 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) Employee represents and warrants that he is not prohibited
from acting in any capacity for ATM 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
ATM that is contemplated by the parties hereto and by virtue
of his position with ATM described in Section 1 hereof will
not subject ATM to claims or materially impair the license
status of ATM or its affiliates or any entity operated by
ATM or its affiliates.
11. DEFENSE OF CLAIMS. Employee agrees that during the Term, and at all
reasonable times thereafter, he will cooperate with ATM in the defense of any
claim that may be made against ATM or any affiliates, to the extent that such
claims may relate to services performed by Employee for ATM or its affiliates.
In connection with such claim, ATM 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 ATM, 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 ATM to notify any Future Employers about the terms of this Agreement
upon discovery by ATM 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 ATM 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 ATM that:
(a) Employee has received adequate and sufficient consideration
for entering into this Agreement including the
above-referenced compensation;
(b) 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 ATM to provide Confidential
Information
(including trade secrets) to Employee and are necessary to
protect ATM interests in such Confidential Information, as
well as ATM's business good will and other business
interests;
(d) ATM may suffer great loss and irreparable harm if Employee
competes directly or indirectly with ATM;
(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 ATM;
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 ATM 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.
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 YORK JURISDICTION AND LAW. THIS AGREEMENT HAS BEEN MADE AND
EXECUTED IN THE STATE OF NEW YORK AND THE PARTIES CONSENT TO THE JURISDICTION OF
THE NEW YORK COURTS AND THE APPLICATION OF DELAWARE LAW TO ANY CONTROVERSY
HEREUNDER. 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. ACKNOWLEDGMENT. Employee acknowledges that notwithstanding the date
of Employee's execution and delivery of this Agreement, Employee was made aware
of and consented to the covenants, conditions and agreements of this Agreement
that he is receiving additional consideration for the same, including, but not
limited to, the employment arrangement contained in this Agreement.
22. 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:
ATM Services, Ltd.
00 Xxxxxxxxxx Xxxx, Xxxxxxxx 00
Xxxxxx Xxxx, XX 00000
Attn: Chairman
with a copy to: Xxxxx X. Xxxxx, Esq.
If to Employee:
Xxxxxx Xxxxxxxxx
0 Xxxxxxxx Xxxxx, XX 00
Xxxxxx, XX 00000
with a copy to:
Astor, Weiss, Xxxxxx & Xxxxxxxxx, LLP
The Bellevue, Sixth Floor
Broad Street at Walnut
Xxxxxxxxxxxx, XX 00000
Facsimile No.: 000-000-0000
Attn: G. Xxxxx Xxxxxxxxx, Esq.
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.
IN WITNESS WHEREOF, the parties hereto have set their hands.
ATM SERVICE, LTD.
By: //S// Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Authorized representative
//S// Xxx Xxxxxxxxx
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XXXXXX XXXXXXXXX
