Exhibit 10.2
EMPLOYMENT AGREEMENT
AGREEMENT, made and entered into as of January 1, 2000 between
Inter-Con/PC, Inc. a Minnesota Corporation ( the "Company") and Xxxxxxx X.
Xxxxxxxx ("Employee").
A. The Company is primarily engaged in the busines of developing,
manufacturing and marketing Internet/Set Top Box Technology and
Internet service development and marketing.
B. The Company desires to employ Employee in the capacity of Chief
Executive Officer,
C. Employee desires to be employed by the company as the Chief
Executive Officer,
D. During his employment, Employee will have acces o and learn the
Company's valuable and confidential information.
In consideration of the following, of the mutual promises herein
contained, and of other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS
1.01 The following terms shall have the meanings shown when used in this
Agreement:
(a) "Confidential Information" means any informatio that is not
generally known of publicly disclosed by the Company relating
to the Company's existing of reasonably foreseeable business,
such as information relating to business methods, personnel
data, products and services, suppliers, customers, marketing
and merchandising proposals and techniques, billing and
pricing procedures, financial information, trade secrets,
processes, discoveries, ideas, compilations, inventions, and
other information and improvements related to the Company's
business.
(b) "Conflicting Products" means any product, process or service
of any person or organization at any time in existence or
under development which is the same as or similar to or
competes (separately or as a component of a competing product)
with a product, process, or service which the company markets
or is developing to market, or about which the Employee has
acquired Confidential Information. The Company acknowledges
and agrees that the products and services provided by MPF,
Inc. or any of its successors or assigns, are not Conflicting
Products.
(c) "Conflicting Organization" means any person (including
Employee) or organization which at any time now or in the
future is engaged in, or about to become engaged in, the
development, marketing, advertising, or selling of Conflicting
Products or which otherwise engages in activities similar to
those activities in which the Company was engaged or preparing
to engage during Employee's employment. The Company
acknowledges and agrees that MPF, Inc. or any of its
successors or assigns is not a "Conflicting Organization."
(d) "Company" means the Company, its present or future subsidiary
or affiliated companies, or their successors and assigns.
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(e) "Inventions" means discoveries, improvements an ideas (whether
or not shown or described in writing or reduced to practice),
and works of authorship (including but not limited to
documents, drawings, manuscripts, text, art work, photographs,
motion pictures, video programs, computer software, mask
works, sound recordings, and similar property and works),
whether or not patentable, registerable, or copyrightable.
2. EMPLOYMENT
2.01 During the Employment Term the Company hereby employs Employee as the
Chief Executive Officer of the Company, with the duties,
responsibilities, and powers associated with said title as commonly
understood in the Minnesota business community.
2.02 Employee covenants and agrees that, at all times during the term of
this Agreement, Employee, except as provided below, shall devote all of
his efforts to his duties as an employee of the Company. Employee
further covenants and agrees that he will not, directly or indirectly,
engage or participate in any activities at any time during the term of
this agreement in conflict with this Agreement in conflict with the
best interests of the Company. Notwithstanding the foregoing, Employee
warrants and Company acknowledges, that Employee is currently the sole
owner of MPF, Inc. (which offers the products and services described in
the attached Exhibit A) and agrees that Employee may continue to
consult with MPF, Inc. or any of its successors, assigns, and
affiliates, in these matters, provided that such consulting duties and
responsibilities do not materially detract from his duties as an
employee of the Company, and provided further that such consulting
duties will be only to facilitate the network feasibility for the
company. The Company also acknowledges and agrees that the foregoing
activities are not "in conflict" with the best interests of the
company.
3.0 COMPENSATION AND BENEFITS
3.01 Employee shall be paid a base salary at an annual rate o one hundred
ten thousand dollars ($100,000.00) ("Base Salary"). The Base Salary is
payable in convenient installments but not less frequently than
semi-monthly. The Employee's Base salary may be increased, but not
decreased from time to time by the Board of Directors of the Company in
its sole discretion, and the Company, in determining whether or not to
adjust the Base Salary, shall be entitled (but not obligated) to
consider among other things, (i) whether Employee's Base Salary is
consistent with salaries of similarly situated employees and third
parties, and (ii) the recommendation of any professional compensation
consultants who may be hired by the Company.
3.02 In addition to the Base Salary, Employee may receive suc discretionary
bonuses, as the Company shall determine form time to time.
3.03 Employee shall be entitled to participate in such benefi plans as may
be provided by the company form time to time, including but not limited
to health and dental insurance, 401K plan, and key person life
insurance, and to such holidays and vacations as are consistent with
company policies.
3.04 The Company shall reimburse Employee in arrears on vouchers for out of
pocket expenses incurred by Employee in connection with the business of
the Company, including travel and entertainment, consistent with the
policies established by the Company from time to time.
3.05 Employee shall receive, each month during the Employment Term (i)
reimbursement for business mileage charges at the rate approved from
time to time by the Internal Revenue Service (IRS); and (ii) a mobile
(cellular or PCS) phone allowance equal to the monthly access charge
and reimbursement for business calls made thereon by Employee.
4.0 TERM: TERMINATION
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4.01 Subject to the terms and conditions herein, Employee's employment with
the Company shall be for a term (the "Employment Term") commencing on
January 1, 2000 and terminating on December 31, 2005.
4.02 Subject to compliance with section 4.02(e) and the notic provisions
contained in Sections 4.02(a) and 4.02(d), the Company may only
terminate Employee's employment prior to the end of the Employment Term
for "cause." Termination for "cause" shall be immediate. As used
herein, the term "cause" shall mean:
(a) Employee's refusal or failure to perform any material duties
of employment and the continuation of such refusal or failure
for a period of fifteen (15) business days after written
notice from the company specifying such refusal or failure; or
(b) Any gross misconduct dishonesty, misappropriation of the
Company's property, theft, conviction of a crime or unethical
business conduct by Employee; or
(c) Any act of malfeasance or wrongdoing (including acts of
disloyalty) committed by Employee affecting the Company or any
of its Subsidiaries: or
(d) Any material breach by Employee of any material provision of
this Agreement, including, but not limited to, the Disclosure
of Information and Post Employment restrictions contained in
Sections 5 and 6 herein (other than unintentional breaches
which result in no harm or potential harm to the company, and
which are cured in full within thirty (30) days following
Employee's receipt of written notice by the Company of such
breach).
(e) Not withstanding the foregoing, Employee shall not be deemed
to have been terminated for "cause" unless and until there
shall have been delivered to Employee a copy of a resolution
duly adopted by the affirmative vote of not less than a
majority of the entire membership of the Board at a meeting of
the Board called and held for the purpose (after reasonable
notice of not less than five (5) business days to the Employee
and an opportunity for the Employee, together with the
employee's counsel, to be heard before the Board), finding
that in the good faith opinion of the Board, Employee was
guilty of conduct set forth above in the second sentence of
this Section 4.02 and specifying the particulars thereof in
detail.
4.03 The parties may also terminate Employee's employment under this
agreement prior to the end of the Employment Term by mutual written
agreement between the Company and Employee to terminate Employee's
employment.
4.04 Employee's employment under this Agreement shall terminate prior to the
end of the Employment Term upon the death of Employee. In the event of
a termination pursuant to this Section 4.04, the Company shall continue
to pay to such a person as may be designated from time to time by
Employee (and if no designation has been made, the Employee's estate)
the semi- monthly payments against Employee's Base Salary as in effect
at the time of his death, as set forth in Section 3.01 herein, for a
period of three months following the death of Employee.
4.05 Employee's employment under this Agreement shall terminate prior to the
end of the Employment Term upon any disability of Employee caused by
injury or illness as a result of which Employee is unable to render the
services required by this Agreement for a period of at least ninety
(90) successive business days, during which the Employee shall continue
to be paid his Base Salary. In the event of a termination pursuant to
this Section 4.05, the Company shall continue to pay Employee the
semi-monthly payments against Employee's Base Salary, as in effect at
the time of his disability, for a period of three (3) months following
the date of Employee's termination from the Company on account of
disability.
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4.06 In the event of a termination of Employee's employment pursuant to
Section 4.02 herein prior to the end of the scheduled expiration of the
Employment Term, Employee shall be entitled to receive, in addition to
any unpaid amounts for completed months prior to such termination of
this Agreement, an amount equal to the amount by which (i) the Base
Salary for the month in which such termination occurs, as set forth in
Section 3.01 herein, multiplied by a fraction, the numerator of which
is the number of days in such month which occurred prior to the date of
termination and the denominator of which is the total number of days in
such month, exceeds (ii) the aggregate Base Salary previously paid to
Employee pursuant to said Section 3.01 with respect to services
performed during such month. Employee shall also be entitled to receive
payment for any vacation time which employee has accrued and not used,
as well as any other amounts owing to Employee pursuant to this
Agreement or any Company policies. All amounts payable pursuant to this
Section 4.06 shall be paid at such time as Employee has generally
received payments of Base Salary (but in no event later than thirty
(30) days after the effective date of such termination.
4.07 In the event of a termination of Employee's employment b the Company
prior to the end of the scheduled expiration of the Employment Term
(except for a termination pursuant to Sections 4.02 through 4.05 of
this Agreement), Employee shall be entitled to receive, in addition to
the amounts otherwise set forth hereunder, an amount (the "Termination
Pay") equal to the remaining amount of Base Salary and health and
dental insurance for the Employment Term that would otherwise have been
due hereunder. The Termination Pay may be paid, at the option of the
Employee (i) in semi-monthly amounts at times such semi-monthly amounts
would otherwise have been due hereunder or (ii) the value of the
Termination Pay paid as a lump sum.
4.08 In the event of any termination of Employee's employment and assuming
the payments contemplated by Sections 4.04 through 4.07 are made, no
further payments shall be required to be made by the Company to
Employee under this Agreement, except (i) to the extent required by any
other Agreement between the Company and Employee or any pension, profit
sharing, 401K or any other type of qualified or nonqualified retirement
or compensation (deferred or otherwise) plan established by the
Company.
5.0 DISCLOSURE OF INFORMATION: INVENTIONS
5.1 Employee shall not, either during or after his employmen with the
Company, directly or indirectly use or disclose to any person any
Confidential Information except as properly required in the course of
the Company's business or as expressly authorized in writing by the
Company. Employee will also refrain from any act or omission that is
reasonably likely to reduce the value of any Confidential Information
to the Company.
5.2 All records, files, documents, lists and other items containing
Confidential Information which Employee prepares, uses or comes in
contact with during the term of his employment shall be the Company's
property and shall not be removed from the Company's premises except as
properly required in the Company's business or as expressly authorized
in writing by the Company. All such materials and any other Company
property shall be returned to the Company by Employee upon any
termination of employment.
5.3 With respect to Inventions made, authored, conceived, or created by
Employee, either solely or jointly with others, whether during normal
hours of Employee's employment or on Employee's own time, during
Employee's employment with the Company and for one year after
termination of Employee's employment, Employee shall:
(a) Keep accurate, complete, and timely records of such
Inventions, which records shall be property of the Company and
be retained on the Company's premises.
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(b) Promptly and fully disclose and describe such Inventions in
writing to the Company.
(c) Assign (and Employee does hereby assign) to the Company all of
its rights to such Inventions, and to applications for letters
patent, copyright registrations, and/or mask work
registrations in all countries and letters patent, copyright
registrations and/or mask work registrations granted upon such
Inventions in all countries.
(d) Acknowledge and deliver promptly to th Company (without charge
to the Company but at the expense of the Company) such written
instruments and to do such other acts as may be necessary in
the opinion of the Company to preserve property rights against
forfeiture, abandonment or loss, and to obtain, defend and
maintain letters, patent, copyright registrations and/or mask
work registrations and to vest the entire right and title
thereto in the Company.
This Section 5.03 does not apply to an Invention for which no
equipment, supplies, facility, or Confidential Information was used and which
was developed entirely on Employee's own time, and (1) which does not relate (a)
directly to the business of the Company or (b) to the Company's actual or
demonstrably anticipated research or development, or (2) which does not result
from any work performed by Employee for the Company.
6.0 POST EMPLOYMENT RESTRICTIONS
6.01 During the Employment Term and for a period of 18 months following the
termination of his employment with the Company for any reason or under
any circumstance, provided that Employee has been paid any payment due
under Section 4 above, Employee shall not, directly o indirectly, for
himself or through, on behalf of, or in conjunction with any person,
persons or entity:
(a) Solicit or do business with any actual or potential clients,
customers or suppliers of the Company with respect to the
sales of Set Top Boxes (other than for sales of Set Top Boxes
with respect to Minneapolis Internet hub); attempt to induce
such clients or customers, or any suppliers of the Company to
discontinue doing business with the Company; hire or attempt
to hire any employee of the Company (except Xxxxxx X. Xxxx);
or solicit or induce any employees of the Company (except
Xxxxxx X. Xxxx) to discontinue his or her employment or
compete with the Company for himself or for others.
(b) Own any interest in, manage, operate, join, control, lend
money, or render services or financial or other assistance to
or participate in or be connected with (whether as an officer,
employee, partner, shareholder, consultant, contractor or
otherwise) any Conflicting Organization; engage in the
manufacture, marketing, advertising, or sale of any
Conflicting Products; or engage in any competition with the
Company in any business, that is similar to any activity in
which the Company was engaged or was preparing to engage
during Employee's employment with the Company. The Company
acknowledges and agrees, however, that the products and
services described in the attached Exhibit A of MPF, Inc. or
any successor, assign or affiliate of MPF, Inc. do not compete
with and are not similar or related to any activity in which
the Company was engaged or was preparing to engage during
Employee's employment with the Company.
6.01.1 Notwithstanding the foregoing, in the event of a termination of this
agreement pursuant to Section 4.07, the covenants and agreements
contained in paragraph 6.01 shall extend for only the period of time
during which the Termination Pay set forth in Section 4.07 is paid to
Employee in the form of monthly payment of Base Salary or deemed to be
paid, if a lump sum is paid.
7. MISCELLANEOUS
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7.01 Employee acknowledges that he is familiar with the Company an its
business and that the restrictions contained in sections 5 and 6 hereof
are reasonably required for the protection of the Company's legitimate
business interests, and the restrictions do not impose undue hardship
on the Employee or operate as a bar to his sole means of support.
7.02 Upon any breach or threatened breach of the restrictions contained in
Sections 5 and 6 hereof, the parties recognize that damages or other
remedies at law would be inadequate to protect the legitimate business
interests of the Company and would cause the Company irreparable harm.
Therefore, any court of competent jurisdiction may grant equitable
relief such as restraining orders and preliminary or permanent
injunctions o specifically enforce the provisions of this Agreement and
to protect the Company against any breach or threatened breach. If the
Company is required by applicable law to furnish a bond or other surety
as a condition of the entry of an injunction or restraining order,
Employee agrees that such bond or surety shall be in the minimum amount
required by law. This provision concerning injunctive relief shall not,
however, diminish the right of the Company to claim and recover damages
including an accounting for profits earned by Employee as a result of
breach, in addition to injunctive relief. If the Company prevails in
any litigation relating to this Agreement, the Company shall also be
entitled to recover its reasonable costs and attorney's fees.
7.03 Each of the Company's rights under this Agreement is separate and in
addition to all other rights under applicable law. The Company may
exercise and enforce one or more of those rights, as well as any other
rights under the law, one at a time or all at once. Neither the waiver
by the Company of any right in a specific instance, nor any delay or
failure to act shall operate as a waiver of any right under this
Agreement or prevent the future exercise or enforcement of the right.
7.04 The law of the State of Minnesota shall govern this Agreement in all
respects. If any term of the Agreement conflicts with applicable law,
all other terms of this Agreement shall remain in effect and
enforceable. Further, if any provision is held to be over broad as
written, such provisions shall be construed to narrow its application
to the extent necessary to make the provisions enforceable according to
applicable law, and shall be enforced as so amended. Employee
acknowledges the uncertainty of the law in this respect and expressly
stipulates that this Agreement be given the construction, which renders
its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law. Any Court
is also authorized to extent the duration of any restriction under
Section 6 for the period that any violation of Section 6 exists.
7.05 Any notice or communication required or permitted under this Agreement
shall be deemed given if in writing and delivered personally or mailed
by U.S. certified or registered mail, return receipt requested, postage
prepaid, addressed to the party notified at the address stated below,
or at such address as a party hereafter designates by notice.
7.06 The provisions of Sections 5,6,and 7 hereof shall surviv any
termination of Employee's employment or this Agreement.
7.07 This Agreement contains the entire Agreement and all material
representations between the parties relating to the subject matter
hereof, supersedes all prior agreements and understandings, and may e
modified or amended only in a writing signed by all parties. All
captions titles and masculine pronouns are for convenience only and may
not be used to interpret or to define the terms of this Agreement.
7.08 This Agreement shall be binding upon Employee's heirs, personal
representatives, and assigns, and may be transferred by the Company to
its successors and assigns.
By signing this Agreement, the parties agree to the above terms.
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Inter-Con/PC, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: Chairman and CEO
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0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxx, Employee
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