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EXHIBIT 10.39
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT entered into as of the
15th day of June, 1999, by and among XXXXXXX.XXX, INC., a Nevada corporation
(the "Company") and XXXXXXX X. XXXXXXXX ("Xxxxxxxx").
RECITALS
A. The Company and Xxxxxxxx entered into an Employment Agreement dated
November 1, 1998, an Amendment of Employment Agreement dated January 21, 1999, a
Second Amendment of Employment Agreement dated March 9, 1999 and an Amended and
Restated Employment Agreement dated April 23, 1999 (collectively, the
"Employment Agreement").
B. The Company is contemplating an initial public offering of its
common stock and the Company and Xxxxxxxx desire to amend and restate the
Employment Agreement in connection therewith.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree that the Employment Agreement is hereby amended and restated as follows:
1. EMPLOYMENT. The Company hereby employs Xxxxxxxx and Xxxxxxxx hereby
accepts employment with the Company as its President upon the terms and
conditions hereinafter set forth. Xxxxxxxx'x employment shall not be deemed an
"at will" employment.
2. DUTIES. Xxxxxxxx will serve the Company as its President and will
faithfully and diligently perform the services and functions relating to such
office and position or otherwise reasonably incident to such office and
position, provided that all such services and functions will be reasonable and
within Xxxxxxxx'x areas of expertise. Xxxxxxxx'x specific duties shall include
those related to (i) oversight of all phases of the Company's operations, (ii)
coordination of the Company's strategic planning and (iii) such other duties as
the Company may reasonably direct. Xxxxxxxx will, during the term of this
Agreement (or any extension thereof), devote his time, attention and skills and
best efforts as a full time employee to the promotion of the business of the
Company.
3. TERM. This Agreement and Xxxxxxxx'x employment shall commence on the
first day of November, 1998 (the "Effective Date"), and shall continue for a
term of four years ("Initial Term") unless terminated earlier in accordance with
this Agreement. The term of this Agreement may be extended by agreement among
the Company and Xxxxxxxx.
4. COMPENSATION. As compensation for the services rendered to the
Company under this Agreement commencing on the Effective Date, Xxxxxxxx will be
paid a base salary of $150,000 per year payable in accordance with the then
current payroll policies of the Company or as otherwise agreed to by the parties
(the "Salary"). At any time and from time to time, the Salary may be increased
if so determined by the Board of Directors of the Company (the "Board") after a
review of Xxxxxxxx'x performance of this duties hereunder.
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5. TERMINATION. This Agreement will terminate upon the occurrence of
any of the following events:
a. The death of Xxxxxxxx;
b. The "Total Disability" (as hereinafter defined) of Xxxxxxxx;
c. Written notice to Xxxxxxxx from the Company of termination for
"Cause" (as hereinafter defined);
d. The voluntary termination of this Agreement by Xxxxxxxx upon 30 days
prior written notice;
e. The later of four years from the Effective Date of this Agreement or
the date to which this Agreement is extended in accordance with
Section 3 above; or
"Total Disability" means physical or mental disability, or both,
determined to be (or reasonably expected to be, based upon then available
medical information) of not less than twelve months duration or more where
Xxxxxxxx is unable to reasonably perform the duties he was performing for the
Company immediately prior to such disability. The determination shall rest upon
the opinion of the physician regularly attending Xxxxxxxx. If the Company
disagrees with said physician's opinion, the Company may engage at their own
expense a physician to examine the Xxxxxxxx, and Xxxxxxxx hereby consents to
such examination and to waive, if applicable any privilege between the physician
and Xxxxxxxx that may arise as a result of said examination. If after
conferring, the two physicians cannot concur on a final opinion, they shall
choose a third consulting physician whose opinion shall control. The expense of
the third consulting physician shall be borne equally by the Xxxxxxxx and the
Company.
"Cause" means (i) Xxxxxxxx has failed to substantially perform his
duties as reasonably determined by the Board, (ii) Xxxxxxxx engages in poor
performance that is not cured within thirty days after counseling by the
Company, (iii) Xxxxxxxx has failed to comply with the reasonable directives and
policies of the Board, or (iv) Xxxxxxxx breaches his fiduciary duty to the
Company or commits any dishonest, unethical, fraudulent, or felonious act in
respect to Xxxxxxxx'x duties to the Company.
6. STOCK OPTIONS. Xxxxxxxx shall be granted options to purchase up to
1,750,000 shares of the Company's common stock (the "Options") pursuant to the
Company's 1998 Stock Option Plan to be vested and exercisable in accordance with
the terms of the 1998 Stock Option Plan, except that 50,000 Options shall be
exercisable at $1.50 per share and vest immediately on the Effective Date,
1,500,000 Options shall be exercisable at $8.00 per share and vest immediately
on the Effective Date and 200,000 Options shall be exercisable at $12.00 and
vest on April 25, 2000. The exercise of all Options hereunder shall not be
contingent upon Xxxxxxxx being employed by the Company. Further, the Company
agrees to register the Options and the underlying shares on Form S-8 within 180
days of the effective date of any initial public offering of the Company's
securities.
7. LOAN. The Company will loan to Xxxxxxxx $100,000 (the "Loan") on the
Effective Date. The Loan shall be evidenced by a promissory note (the "Note")
with interest payable at 10% per annum and with all principal and accrued but
unpaid interest due one year from the Effective Date, if not sooner paid. The
Company agrees that if Xxxxxxxx has been employed by the Company for six
continuous months from
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the Effective Date, 100% of the principal balance and accrued but unpaid
interest shall be forgiven by the Company and the Note evidencing the Loan shall
be canceled and deemed paid in full.
8. TERMINATION PAYMENT. It is agreed that (i) if Xxxxxxxx'x employment
by the Company is terminated without "Cause" or (ii) if his duties and
responsibilities are materially changed by the Company and Xxxxxxxx voluntarily
terminates his employment due to such change in duties or responsibilities, the
Company shall pay Xxxxxxxx xxxxxxxxx of $500,000 immediately upon the occurrence
of either 8(i) or 8(ii) above, together with the amount due for the remaining
portion of the term of this Agreement. Alternatively, if Xxxxxxxx'x employment
terminates due to "Total Disability," the Company will be obligated to pay
Xxxxxxxx the sum of $150,000.
9. BENEFITS. Xxxxxxxx shall be entitled to receive any benefits,
including health insurance, life insurance, automobile allowance, vacation time,
etc., which are offered to other Company executives.
10. EXPENSES. Xxxxxxxx is authorized to incur reasonable expenses for
promoting the business of the Company, including expenses for entertainment,
travel and similar items. The Company shall reimburse Xxxxxxxx for all such
expenses on the presentation by Xxxxxxxx of itemized accounts of such
expenditures in accordance with guidelines set forth by the Company and the
Internal Revenue Service.
11. NON-COMPETITION AND CONFIDENTIALITY.
a. Non-Competition. The Company and Xxxxxxxx acknowledge and agree
that Xxxxxxxx'x services are of a special and unusual character which have a
unique value to the Company, the loss of which cannot be adequately compensated
by damages in an action at law and if used in competition with the Company,
could cause serious harm to the Company. Accordingly, Xxxxxxxx agrees that
during the term of this Agreement and for a period of two years after the
termination of this employment by the Company, irrespective of the reason for
such termination, Xxxxxxxx will not (1) enter into any agreement with or
directly or indirectly solicit or attempt to solicit any employee or other
representatives of the Company for the purpose of causing them to leave the
Company to take employment with any other business entity, or (2) compete,
directly or indirectly, with the Company in any way and that Xxxxxxxx will not
act as an officer, director, employee, consultant, shareholder, lender or agent
of any entity engaged in any business of the same nature as, or in competition
with, the business in which the Company is now engaged, was engaged during
Xxxxxxxx'x employment or is engaged at the time of Xxxxxxxx'x termination of
employment, except for the ownership of less than 5% of the outstanding capital
stock of a publicly traded company.
b. Confidentiality.
(1) Xxxxxxxx acknowledges that in Xxxxxxxx'x employment
hereunder, Xxxxxxxx will be making use of, acquiring and adding to the Company's
trade secrets and its confidential and proprietary information of a special and
unique nature and value relating to such matters as, but not limited to, the
Company's business operations, internal structure, financial affairs, programs,
software systems, procedures, manuals, confidential reports, lists of clients
and prospective clients and sales and marketing methods, as well as the amount,
nature and type of services, equipment and methods used and preferred by the
Company's clients and the fees paid by such clients, all of which shall be
deemed to be confidential information. Xxxxxxxx acknowledges that such
confidential information has been and will continue to be of central importance
to the business of the Company and that disclosure of it to or its use by others
could cause substantial loss to the Company. In consideration of employment by
the Company, Xxxxxxxx agrees that
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during the Initial Term and any renewal term of this Agreement and upon and
after leaving the employ of the Company for any reason whatsoever, Xxxxxxxx
shall not, for any purpose whatsoever, directly or indirectly, divulge or
disclose to any person or entity any of such confidential information which was
obtained by Xxxxxxxx as a result of the Xxxxxxxx'x employment with the Company
or any trade secrets of the Company, but shall hold all of the same confidential
and inviolate.
(2) All contracts, agreements, financial books, records,
instruments and documents; client lists; memoranda; data; reports; programs;
software, tapes; Rolodexes; telephone and address books; letters; research; card
decks; listings; programming; and any other instruments, records or documents
relating or pertaining to clients serviced by the Company or Xxxxxxxx, the
services rendered by Xxxxxxxx, or the business of the Company (collectively, the
"Records") shall at all times be and remain the property of the Company. Upon
termination of this Agreement and Xxxxxxxx'x employment under this Agreement for
any reason whatsoever, Xxxxxxxx shall return to the Company all Records (whether
furnished by the Company or prepared by Xxxxxxxx), and Xxxxxxxx shall neither
make nor retain any copies of any of such Records after such termination.
(3) All inventions and other creations, whether or not patentable
or copyrightable, and all ideas, reports and other creative works, including,
without limitation, computer programs, manuals and related materials, made or
conceived in whole or in part by Xxxxxxxx while employed by the Company and
within one year thereafter, which relate in any manner whatsoever to the
business, existing or proposed, of the Company or any other business or research
or development effort in which the Company or any of its subsidiaries or
affiliates engages during Xxxxxxxx'x employment by the Company will be disclosed
promptly by Xxxxxxxx to the Company and shall be the sole and exclusive property
of the Company. All copyrightable works created by Xxxxxxxx and covered by this
Section 11b(3) shall be deemed to be works for hire. Xxxxxxxx shall cooperate
with the Company in patenting or copyrighting all such inventions, ideas,
reports and other creative works, shall execute, acknowledge, seal and deliver
all documents tendered by the Company to evidence its ownership thereof through
the world, and shall cooperate with the Company obtaining, defending and
enforcing its rights therein.
c. Enforceability. In the event of the breach of the covenants
contained in this Section 11, it is understood that damages will be difficult to
ascertain and the Company may petition a court of law or equity for injunctive
relief in addition to any other relief which the Company may have under the law,
this Agreement or any other agreement executed in connection herewith. In
connection with the bringing of any legal or equitable action for the
enforcement of this Agreement, the Company shall be entitled to recover, whether
the Company seeks equitable relief, and regardless of what relief is afforded,
such reasonable attorneys' fees and expenses as the Company may incur in
prosecution of the Company's claim for breach hereof.
It is hereby agreed that the provisions of this Section 11 are separate
and independent from the other provisions of this Agreement, that these
provisions are specifically enforceable by the Company notwithstanding any claim
by Xxxxxxxx that the Company has violated or breached this Agreement or any
claim that Xxxxxxxx is entitled to any offset or compensation.
To induce the Company to enter into this Agreement, Xxxxxxxx represents
and warrants to the Company that Section 11 of this Agreement is enforceable by
the Company in accordance with its terms.
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The parties hereto agree that to the extent that any provision or
portion of Section 11 of this Agreement shall be held, found or deemed to be
unreasonable, unlawful or unenforceable by a court of competent jurisdiction,
then any such provision or portion thereof shall be deemed to be modified to the
extent necessary in order that any such provision or portion thereof shall be
legally enforceable to the fullest extent permitted by applicable law; and the
parties hereto do further agree that any court of competent jurisdiction shall,
and the parties hereto do hereby expressly authorize, request and empower any
court of competent jurisdiction to, enforce any such provision or portion
thereof or to modify any such provision or portion thereof in order that any
such provision or portion thereof shall be enforced by such court to the fullest
extent permitted by applicable law.
12. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
13. NOTICES. Any notices, consents, demands, request, approvals and
other communications to be given under this Agreement by either party to the
other will be deemed to have been duly given if given in writing and personally
delivered, faxed or if sent by mail, registered or certified, postage prepaid
with return receipt requested, as follows:
If to the Company: xxxxxxx.xxx, inc.
One Arizona Center
000 X. Xxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
If to Xxxxxxxx: Xxxxxxx X. Xxxxxxxx
One Arizona Center
000 X. Xxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
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Notices delivered personally will be deemed communicated as of actual
receipt, notices by fax shall be deemed delivered when such notices are faxed to
recipient's fax number and notices by mail shall be deemed delivered when
mailed.
14. ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understanding, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
15. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
this Agreement, such provision will be fully severable and this Agreement will
be construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions hereof will remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there will be added
automatically, as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
16. GOVERNING LAW. To the extent permitted by applicable law, this
Agreement and the rights and obligations of the parties will be governed by and
construed and enforced exclusively in accordance with the substantive laws (but
not the rules governing conflicts of laws) of the State of Arizona and the State
of Arizona shall have exclusive jurisdiction regarding any legal actions
relating to this Agreement.
17. CAPTIONS. The captions in this Agreement are for convenience of
reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
18. GENDER AND NUMBER. When the context requires, the gender of all
words used herein will include the masculine, feminine and neuter, and the
number of all words will include the singular and plural.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE COMPANY:
xxxxxxx.xxx, inc., a Nevada corporation
By:
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Xxxx X. Xxxxxxxx, Chief Executive Officer
XXXXXXXX:
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