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EXHIBIT 10.9
EMPLOYMENT RESIGNATION AND SEPARATION AGREEMENT
THIS EMPLOYMENT RESIGNATION AND SEPARATION AGREEMENT ("Agreement") dated June
18, 1999, between NET COMMAND TECH, INC., (f/k/a Corsaire, Inc.) a Delaware
corporation ("Company"), c/o 00 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 Ft.
Lauderdale, FL and Xxxxxxx X. Xxxxxxxx ("Executive"), with an address of 0000
Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000.
RECITALS
A. For all purposes of this Agreement, the reference to "Company" shall
include CORSAIRE, INC., the former name of Net Command Tech, Inc., and all
majority-owned and wholly owned subsidiaries of NCT (first tier and second
tier), including, but not limited to Satellite Access Systems, Inc., a Delaware
corporation, Modern Telnet Limited (a British corporation), and Baraka
IntraCom, Inc., a Delaware corporation;
B. The parties have agreed that Executive's voluntary resignation serves
the best interest of the Company and Xxxxxxxx; and
C. The parties have agreed to formalize Executive's voluntary
resignation by execution of resignation documents, this Agreement, a
Non-Competition Agreement, and mutual releases.
1. TERMINATION AND CANCELLATION OF EMPLOYMENT AGREEMENTS. All employment
agreements and addenda, written and oral, between Executive and the Company are
hereby canceled, except for those portions of the attached Employment Agreement
and Addendum ("Employment Agreement") of March 1, 1999 between Executive and
the Company that expressly describe and/or require: (1) separation pay and
benefit provisions in the event of termination without cause; and (2) survival
after termination of employment. Executive hereby resigns from all executive
officer and board positions, effective June 18, 1999, and the parties shall
have no further obligations to each other, past or present, under the
Employment Agreement, save for the obligations described in items (1) and (2)
above.
2. SEPARATION PACKAGE. Upon execution of this Agreement and for twelve months
thereafter, Executive shall receive, and the Company shall provide, the
compensation and benefits described in the Employment Agreement as entitlements
for Executive's termination without cause, to include retention of the two
million shares Executive received upon execution of the Employment Agreement.
Upon the Company's appointment of outside directors, Executive may petition the
Company Board of Directors for a review of his separation package.
3. RETURN OF COMPANY PROPERTY. Upon execution of this Agreement, you have
agreed to return, and will return, to the Company, certain items of Company
property to be specified later on, customer and contact lists, and any and all
other files, records, and any other Company property associated with your
employment with the Company, to include business cards and stationary bearing
the Company logo and name. The parties acknowledge that Executive and the
Company have exchanged personal computers, namely Executive's laptop for the
Company's Dell desktop computers.
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4. CONFIDENTIALITY AND OTHER OBLIGATIONS.
In return for the above-described package, the following covenants and
conditions, (which include protections and safeguards granted to the Company
under the laws of Florida and Delaware):
(a) CONFIDENTIALITY. The following information ("Confidential Information")
relating to the Company are valuable, special and unique assets and trade
secrets of the Company: (1) the technology, algorithms, source codes, object
codes, GUI, and know-how that comprise the Company's data compression,
streaming, and transmission technology and products (video and still image), to
include, but not limited to, vector technology and the Magic Modules software
technology and copyright, MPEG 4 imaging, streaming and compression (2) the
identity, location, and records/files, manual and computerized, relating to the
Company's present and anticipated domestic and foreign licensors, technicians
and software and chip suppliers, designers, manufacturers, and customers; (3)
pending and existing intellectual property matters, to include patenting,
trademarking, brand naming, service marking, and copyrighting of the Company's
products, product lines, technologies and inventions; (4) the sources,
pricing, and costs of the software, GUI, chips, and hardware/equipment
components that comprise the technology, products, product lines, and services
that the Company will, or plans to, introduce into commerce, to include but not
limited to, technological strategic partnering, direct product sales, joint
ventures, and technology licenses; (5) financial, business, tax, and
investment/investor data and records; (6) marketing, sales, and advertising
data and information related to the Company's existing, planned, and proposed
products, product lines, technologies delivered and to be delivered into
commerce (including, but not limited, to those under, or scheduled for,
development); (7) securities transactions being contemplated; (8) acquisitions,
joint venture, strategic partnering, and licensing arrangements being
contemplated; (9) areas potentially subject to licensing; (10) ongoing
negotiations; and (11) future plans and operations, to include, but not limited
to, the products, technologies, and market research and development done in
support of such future plans and operations. As part of your execution of this
termination letter agreement, you hereby represent that you do not have any
copies or samples of the Company's Confidential Information.
(b) RESTRICTIONS. Confidential Information can be in printed, oral, automated,
or audiovisual form. In consideration for the sum indicated above, you agree
not to copy any of the Company's manual or computerized records/files and not
to disclose any of the Company's Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever,
unless Executive has been given prior written permission by the Company Chief
Executive Officer to disclose specific the Company Confidential Information to
a third party specifically approved in writing beforehand by the Company Chief
Executive Officer. In such event, Executive shall only disclose that Company
Confidential Information specifically approved in writing by the Company Chief
Executive Officer. The notice provisions and data in the Employment Agreement
shall apply.
If a duly constituted administrative or government agency compels Executive
to disclose Company Confidential Information for any reason, Executive shall
immediately contact the Company to allow the Company to discuss the disclosure
with the subject agency.
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This confidentiality covenant has no time or geographical limitation, however,
it will not apply to any Company Confidential Information that is or becomes
part of the public domain.
5. FUTURE RELATIONSHIPS. Nothing in this Agreement or the Non-Competition
Agreement shall prevent the parties from entering into arms-length VAR and
licensing agreements for the Company's technology and products at a later date.
The parties will then enter into appropriate confidentiality and non-disclosure
agreements in connection with such arms length agreements.
6. ARBITRATION; GOVERNING LAW. Any disputes connected to, or arising under
this Agreement or the Employment Agreement shall be settled by arbitration
conducted by the American Arbitration Association ("AAA") under the AAA rules
for Employment Disputes. The arbitration venue shall be in Tampa, Florida. This
Agreement shall be governed by the internal laws of the State of Florida.
7. COUNTERPARTS. This Agreement may be executed in several counterparts and
all documents so executed shall constitute one agreement, binding on all of the
parties hereto, notwithstanding that all of the parties did not sign the
original or the same counterparts.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged
representation, promise, inducement, or statement not so set forth herein.
9. MODIFICATION. This Agreement may only be modified, amended, superseded, or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may only be waived, by a written instrument executed by the
party or parties to be bound by any such modification, amendment, supersession,
cancellation, or waiver.
10. WAIVER. The waiver by either of the parties, express or implied, of any
right under this Agreement or any failure to perform under this Agreement by
the other party, shall not constitute or be deemed as a waiver of any other
right under this Agreement or of any other failure to perform under this
Agreement by the other party, whether of a similar or dissimilar nature.
11. CUMULATIVE REMEDIES. Each and all of the several rights and remedies
provided in this Agreement, or by law or in equity, shall be cumulative, and no
one of them shall be exclusive of any other right or remedy, and the exercise
of any one of such rights or remedies shall not be deemed a waiver of, or an
election to exercise, any other such right or remedy.
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12. HEADINGS. The section and other headings contained in this Agreement are
for reference purposes only and shall not affect the meaning and interpretation
of this Agreement. In construing this Agreement, none of the parties shall have
any term or provision construed against such party solely by reason of such
party having drafted the same.
12. SURVIVAL. Any provision of this Agreement which imposes an obligation
after termination or expiration of this Agreement shall survive the termination
or expiration of this Agreement and be binding on Executive and Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
Net Command Tech, Inc.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx
President
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