Exhibit 10(mm)
MEDCROSS, INC.
EMPLOYMENT AGREEMENT
(Xxxx Xxxxxx)
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and between
MEDCROSS, INC., a Florida corporation with its principal place of business at
00000 Xxxxx Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 (the
"Company"), and XXXX XXXXXX ("Employee"), effective this 2nd day of September,
1997;
RECITALS
WHEREAS, the Company is in the business of developing, marketing and
providing telephony and communications technology, products and services; and
WHEREAS, Employee has acknowledged skills and experience in the development
of telephony and communications technology, products and services; and
WHEREAS, the Company desires to obtain the benefit of Employee's knowledge,
skills, and experience and assure itself of the ongoing right to Employee's
services from and after the date hereof, and is willing to do so on the terms
and conditions set forth in this Agreement; and
WHEREAS, Employee is willing and able to render services to the Company,
from and after the date hereof, on the terms and conditions set forth in this
Agreement; and
WHEREAS, this Employment Agreement is entered into contemporaneously with
the sale by Employee to the Company of all of Employee's stock in MiBridge, Inc.
(which will be held and operated as a subsidiary of the Company);
A G R E E M E N T S
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
provisions, and covenants contained in this Agreement, the Company and Employee
hereby agree as follows:
1. Employment.
(a) Title and Duties of Employee. Subject to all of the terms and
conditions herein provided, the Company hereby employs Employee in the position
of Vice President of Emerging Technologies, and Employee hereby accepts such
employment with the Company. Employee's duties shall consist of those generally
associated with his title, as well as those duties assigned to him from time-to-
time by the Company, consistent with Employee's position and qualifications and
the best interests of the Company. Specifically, Employee shall be employed to
manage the operations of MiBridge, Inc., subsequent to the acquisition of
MiBridge, Inc., by the Company. Employee shall at
all times be subject to and shall observe and carry out such reasonable rules,
regulations, policies, directions, and restrictions as may be established from
time-to-time by the Company. Employee agrees that the Company shall be entitled,
at its option and cost, to obtain "key man" life insurance on Employee, and that
Employee will submit to such reasonable physical examinations as may be required
to obtain such insurance.
(b) Performance. Throughout the Employment Term, Employee shall
devote his full business time, attention, knowledge, and skills, faithfully
diligently, and to the best of his ability, to the active performance of his
duties and responsibilities hereunder, and do such traveling as may reasonably
be required in connection with the performance of such duties and
responsibilities.
2. Term of Employment. Unless terminated as provided in Section 5
hereof, the term of this Agreement shall be for a period of two (2) years,
commencing on the date hereof and continuing through and including the day
immediately preceding the second anniversary of the date hereof (the "Initial
Period"), and thereafter shall automatically continue on a year-to-year basis
(including the Initial Period, the "Employment Term") unless either party shall
deliver written notice to the other party not more than sixty (60), nor less
than thirty (30), days preceding the expiration of the Initial Period or any
one-year extension thereof of its intention not to extend the term of this
Agreement.
3. Compensation and Benefits.
(a) Salary. For services rendered by Employee to the Company and upon
the conditions that Employee fully and faithfully performs all of his duties and
obligations owed during the Employment Term under this Agreement, the Company
shall pay Employee an annual base salary equal to $100,000, payable in equal
semi-monthly installments, less income tax withholdings and other normal
employee deductions. This base salary set forth herein shall be reviewed
annually by the Company at the end of each fiscal year of the Company (hereafter
"Fiscal Year") (with the first such review to occur after the Fiscal Year ending
December 31, 1997, with respect to base salary for the Fiscal Year ending
December 31, 1998), or at such other times as deemed appropriate by the Company,
and may at the sole discretion of the Company, be adjusted by an amount which it
deems appropriate, provided that said base salary shall not be less than
$100,000. Employee shall be entitled to receive bonuses during the term of this
Agreement to the extent bonuses are declared by the Company's board of
directors.
(b) Benefits. During the Employment Term, Employee shall Be eligible
to participate in and receive coverage and benefits under all group insurance,
pension, profit-sharing, bonus, stock option, stock ownership, and other
employee benefit plans, programs, and arrangements of the Company/Medcross which
are now or hereafter adopted by the Company/Medcross for the benefit of its
employees (or the employees of any subsidiary or affiliate of the Company),
subject to and on a basis consistent with the terms, conditions, and overall
administration of such plans, programs, and arrangements. Notwithstanding the
foregoing, it is acknowledged by Nahumi that any grant of stock options to
Nahumi shall be at the sole discretion of the Company's board of directors.
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(c) Expense Reimbursement. The Company shall reimburse Employee for
the business expenses reasonably incurred by Employee within the scope of his
employment, pursuant to standard employee expense reimbursement policy and
procedure as established by the Company.
4. Compensation Upon Termination or During Disability.
(a) Compensation Upon Termination. If Employee's employment hereunder
is terminated under Section 5 hereof, the Company shall have no further
liability under this Agreement except (i) to pay Employee within ten days of the
Date of Termination any accrued salary or other compensation due under this
Agreement on the Date of Termination (or in the event of Employee's subsequent
death, to his estate or devisee, legatee, or other designee, as applicable), and
(ii) provide Employee, or his estate, or devisee, legatee, or other designee,
with any benefits payable (including any death benefit, if applicable) under all
employee benefit plans, programs, or arrangements of the Company in which
Employee is a participant on the Date of Termination.
(b) Compensation Upon Disability. During any period that Employee
fails to perform his duties hereunder as a result of incapacity due to a
"disabled condition," as such term is defined in Section 5(c) hereof (the
"disability period"), Employee shall continue to receive his full base salary at
the rate then in effect for the disability period until Employee's employment
hereunder is terminated pursuant to Section 5(c) hereof; provided, however, that
such salary payments so made to Employee during the first 120 days of the
disability period shall be reduced by the sum of the amounts, if any, actually
received by Employee prior to or during this period, as the result of such
incapacity, under any disability benefit plan of the Company in which Employee
participates.
5. Termination.
(a) Cause. This Agreement may be terminated at any time by either the
Company or the Employee for cause. As used herein, the term "cause" shall mean
and be limited to with respect to Employee (i) any felony conviction of
Employee; (ii) Employee's willful misconduct or failure to reasonably perform in
connection with the performance of Employee's duties, responsibilities,
agreements, and covenants hereunder, or Employee's refusal to comply with the
reasonable rules, regulations, policies, directions, and restrictions as may be
established from time-to-time by the Company, which misconduct, non-performance,
or refusal to so comply shall continue after written notice from the Company,
such notice to specify the respects in which Employee is in violation; (iii)
Employee's breach of the provisions of Sections 6 and 8 hereof; (iv) any
illegal use by Employee of narcotics or other controlled substances; or (v)
Employee's inability to perform his duties and responsibilities hereunder due to
the issuance of an injunction or restraining order, which is not rescinded
within 45 days of issuance; and with respect to the Company, any material breach
of the terms of this Agreement which shall continue after written notice from
the Employee, such notice to specify the respects in which the Company is in
breach.
(b) Death. This Agreement shall terminate automatically upon the
death of Employee.
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(c) Disability. In the event Employee becomes mentally or physically
disabled during the Employment Term, Employee's employment hereunder shall
terminate as of the date such disability is "established." As used in this
Subsection, the term "disabled" means suffering from any mental or physical
condition, other than that resulting from the use of alcohol or illegal use of
narcotics or other controlled substances, which renders Employee unable to
substantially perform all of his duties and services under this Agreement in a
satisfactory manner substantially similar to his previous performance (a
"disabled condition") for a period of one hundred twenty (120) consecutive days
or for more than one hundred twenty (120) days in any 12-month period. For
purposes of this Subsection, the date that Employee's disability is
"established" shall be, in the case of a disabled condition which exists for a
period of 120 consecutive days, the 121st day on which such disabled condition
exists, and, in the case of a disabled condition existing for more than 120 days
in any 12-month period, the 121st day on which such disabled condition exists.
(d) Impaired Health. Employee may terminate his employment hereunder
if his health should become impaired to an extent that makes his continued
performance of his duties and obligations hereunder hazardous to his physical or
mental health or his life ("impaired health"), provided that Employee shall have
furnished the Company with a written statement from a qualified doctor to such
effect and, provided further, that, at the Company's request, Employee shall
submit to an examination by a doctor selected by the Company and such doctor
shall have concurred in the conclusion of Employee's doctor.
(e) Reassignment, Relocation. This Agreement may be terminated by
Employee in the event of any of the following (i) without Employee's express
written consent, the assignment to Employee of any duties or the significant
reduction of Employee's duties, authority, or responsibilities, which is
inconsistent with Employee's duties, authority, or responsibilities in effect
immediately prior to such assignment, or the removal of Employee from such
duties, authority, or responsibilities; or (ii) without Employee's express
written consent, the relocation of Employee to a facility or a location more
than forty-five (45) miles from Employee's then-present location.
(f) Notice of Termination. Any termination of Employee's employment
hereunder by the Company or by Employee (other than termination pursuant to
Section 5(b) (death)) shall be communicated by written Notice of Termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Employee's employment hereunder under the Section and Subsection so indicated.
(g) Date of Termination. "Date of Termination" shall mean the
following: if Employee's employment hereunder is terminated by (i) Sections
5(a) (cause), 5(c) (disability), or 5(d) (impaired health), the date specified
in the Notice of Termination; (ii) 5(b) (death), the date of Employee's death;
and (iii) Section 5(e) (Reassignment, Relocation) 30 days after delivery of the
Notice of Termination; and (iv) for any other reason, the date on which the
Notice of Termination is given.
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6. Confidential Information.
(a) Disclosure and Use. Employee shall not disclose or use at any
time, either during or subsequent to the Employment Term, any trade secrets or
other confidential information, whether or not patentable or otherwise
protectable, of the Company or any other direct or indirect parent or subsidiary
of the Company (collectively referred to herein as the "Company"), including but
not limited to, information and lists relating to customers, suppliers,
compensation of employees or independent sales representatives, products and
product pricing, technical or non-technical data, programs, devices, methods,
techniques, drawings, processes, or financial data, of which Employee is or
becomes informed or aware during the Employment Term, whether or not developed
by Employee, except (i) as may be required for Employee to perform Employee's
employment duties with the Company, (ii) to the extent such information becomes
generally available to the public through no wrongful act of Employee, (iii)
information which must be disclosed as a result of a subpoena or other legal
process, after the Company has had the opportunity to request a suitable
protective order for such information, or (iv) unless Employee shall first
secure the Company's prior written authorization. This covenant shall survive
the termination of Employee's employment hereunder, and shall remain in effect
and be enforceable against Employee for so long as any such Company secret or
confidential information retains economic value, whether actual or potential,
from not being generally known to other persons who can obtain economic value
from its disclosure or use. Employee shall execute such reasonable further
agreements and/or confirmations of Employee's obligations to the Company
concerning non-disclosure of Company trade secrets and confidential information
as the Company may reasonably require from time-to-time.
(b) Return of Materials. Upon termination of Employee's employment
hereunder, Employee shall promptly deliver to the Company all customers lists,
specifications, drawings, listings, documentation, manuals, letters, notes,
notebooks, reports, computer programs, computer files, and copies thereof, and
all other materials of a secret or confidential nature relating to the Company's
business, which are in the possession or under the control of Employee.
7. Inventions and Discoveries.
(a) Disclosure of Employment Invention. Employee agrees for himself
and his heirs, executors, and administrators that Employee will, without further
consideration, disclose immediately to a person designated by the Company as its
agent to receive such disclosures each and every discovery, invention, part
thereof or improvement thereon, or works of authorship, as defined below
("Employment Invention") which Employee may conceive, develop, reduce to
practice, or create, either solely or jointly with others, which is:
(i) conceived, developed, reduced to practice or created (a)
within the scope of Employee's employment, or (b) on the Company's time, or
(c) with the aid, assistance, or use of any of the Company's property,
equipment, facilities, supplies, resources, or intellectual property; or
(ii) the result of any work, services, or duties performed by
Employee for the Company; or
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(iii) related to the current or demonstrably anticipated business,
research, or development of the Company.
(b) Assignment of Employee Invention. Employee hereby irrevocably
assigns to the Company all of Employee's entire rights, title, interest, and
Intellectual Property in and to the Employment Inventions referred to in Section
7(a), and will upon request and without further consideration do everything
reasonably necessary or required to vest in the Company Employee's entire right,
title, interest, and Intellectual Property in and to such Employment Inventions
including executing all instruments and documents and performing all acts
reasonably necessary or required for making, filing, or presenting any
applicable for the benefit of the Company for Letters Patent or Copyrights in
the United States or throughout the world for such Employment Inventions and
executing assignments of such patents or applications thereof for the Company.
(c) Definitions. As used herein, "Intellectual Property" means any
and all patents, trade secrets, know-how, technology, confidential information,
ideas, copyrights, trademarks, and service marks and any and all rights,
applications, and registrations relating to them. "Works of authorship" mean
any original work of authorship within the purview of the copyright laws of the
United States, and both parties agree that all works of authorship created by
Employee under Section 7(a) shall be works for hire within the meaning and
purview of such copyright laws.
(d) Exclusions. The foregoing provisions of Sections 7(a) and 8(b) do
not apply to any invention not included in Section 7(a) as an Employment
Invention and created by Employee entirely on his own time and with his own
resources.
(e) Recordkeeping. Employee agrees to keep and maintain, or assist in
keeping and maintaining, such records (such as laboratory notebooks properly and
periodically witnessed and understood) as will show the conception, reduction to
practice and operation of all Employment Inventions, as well as such other
records as the Company may request, which records shall be and remain the
property of and available to, the Company.
8. Restrictive Covenant.
(a) Restriction on Competition During Employment Term. So long as
Employee is employed by the Company, Employee shall not, without the prior
written authorization of the Company, directly or indirectly render services of
a business, professional or commercial nature (whether for compensation or
otherwise) to any person or entity engaged in any business which competes either
directly or indirectly with the Company (a "Competitive Business") during the
Employment Term, or engage in any activity whether alone, as a partner, or as an
officer, director, employee, consultant independent contractor, or stockholder
in any Competitive Business. Notwithstanding the foregoing, this section shall
not prevent Employee from purchasing an equity interest in any Competitive
Business as a strictly passive investment and which does not comprise more than
Five Percent (5%) of such Competitive Business's then-outstanding stock.
(b) Restriction on Competition Following Termination. During the one-
year period following the applicable Date of Termination (the "Non-Compete
Period"), Employee shall not:
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(i) engage in business as, or own an interest in, directly or
indirectly, any individual proprietorship, partnership, corporation,
limited liability company, joint venture, trust, or any other form of
business entity, whether as an individual proprietor, partner, shareholder,
joint venturer, officer, director, consultant, finder, broker, employee,
trustee, or in any other manner whatsoever if such entity, within any
state, province, country or other jurisdiction in which the Company markets
and sells and/or licenses its technologies, products and services, markets
products and/or services performing substantially the same functions as the
Company's technologies, products and/or services, or any other
technologies, products and/or services that are being developed, designed,
manufactured, or sold by the Company as of the commencement of the Non-
Compete Period; or
(ii) attempt in any manner to solicit from any customer business
of the type performed by the Company or to persuade any customer of the
Company to cease doing business or to reduce the amount of business which
any such customer has customarily done or contemplates doing with the
Company, whether or not the relationship between the Company and such
customer was originally established in whole or in part through Employee's
efforts; or
(iii) employ or attempt to employ or assist anyone else to employ
any person who is at such time, or at any time during the preceding six
months was, an employee or consultant to the Company, provided that this
clause shall not restrict Employee from employing a third-party vendor who
supplies generic services to the industry.
As used in this Section 8, the verb "employ" shall include its variations, for
example, retain, engage, or conduct business with; the term the "Company" shall
include subsidiaries, a parent, or affiliates, if any, of the Company; and the
term "customer" shall mean anyone who is a customer of the Company as of the
date immediately prior to or at any time during the Non-Compete Period. The
term "solicit" shall not be deemed to include general solicitations not
specifically directed toward customers of the Company. Notwithstanding the
foregoing, nothing in this Section 8 shall limit Employee's ability during the
Non-Compete Period to seek employment by a Competitive Business if Employee
refrains from providing services of any kind to said Competitive Business until
the expiration of the Non-Compete Period, at all times subject to the duty of
confidentiality set forth in Section 6 above.
(c) Acknowledgment. The parties acknowledge that the time, scope,
geographic area, and other provisions of this Agreement have been specifically
negotiated by the parties and agree that all such provisions are reasonable
under the circumstances and are given as an integral and essential part of
Employee's employment hereunder. In the event that any covenant contained in
this Agreement shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a period of time or over
too great a geographical area or by reason of its being too extensive in any
other respect, it shall be interpreted to extend only over a maximum period of
time for which it may be enforceable and/or over the maximum geographical area
as to which it may be enforceable and/or to the maximum intent in all other
respects as to which it may be enforceable, all as determined by such court in
such action.
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9. Severability. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require, and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be. Should this Agreement, or any one or more of its
provisions hereof, be held to be invalid, illegal, or unenforceable within any
governmental jurisdiction or subdivision thereof, the Agreement or any such
provision or provisions shall not as a consequence thereof be deemed to be
invalid, illegal, or unenforceable in any other governmental jurisdiction or
subdivision thereof.
10. Enforcement. Except for the injunctive relief provided for
immediately below, any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration, conducted
before a panel of three arbitrators sitting in a location selected by the party
bringing the claim, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrators' award in
any court having jurisdiction. Notwithstanding the foregoing, Employee hereby
acknowledges that the Company would suffer irreparable injury if the provisions
of Sections 6 through 8 above, which shall survive the termination of the
Agreement, were breached and that the Company's remedies at law would be
inadequate in the event of such breach. Accordingly, Employee hereby agrees that
any such breach or threatened breach may, in addition to any and all other
available remedies, be preliminarily enjoined by the Company.
11. Legal Fees and Expenses. In the event of litigation under this
Agreement, each of the Company and Employee shall pay its own attorneys' fees
and expenses.
12. Non-Assignability. In light of the unique personal services to be
performed by Employee hereunder, it is acknowledged and agreed that any
purported or attempted assignment or transfer by either party of this Agreement
or any of Employee's duties, responsibilities, or obligations hereunder shall be
void, and if purported or attempted by Employer other than pursuant to Section
14(e) below, shall be considered a termination without cause by Employer under
Paragraph 5(e).
13. Notices. Any notice, request, demand, or other communication required
or permitted under this Agreement shall be in writing and shall be deemed to
have been given when delivered personally or when mailed by certified mail,
return-receipt requested, addressed as follows:
To the Company: I-Link Worldwide, L.L.C.
13751 So. Xxxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Xx., CFO
With copy to: Xxxxx X. Xxxxx, Esq.
Hardy & Xxxxx
00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
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To Employee: Xxxx Xxxxxx
0 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
or to such other address or addresses as may be specified from time-to-time by
notice; provided, however, that any notice of change of address shall not be
effective until its receipt by the party to be charged therewith.
14. General.
(a) Amendments. neither this Agreement nor any of the terms or
conditions hereof may be waived, amended, or modified except by means of a
written instrument duly executed by the party to be charged therewith.
(b) Captions and Headings. The captions and paragraph headings used
in this Agreement are for convenience of reference only, and shall not affect
the construction or interpretation of this Agreement or any of the provisions
hereof.
(c) Successors and Assigns. This Agreement and Employee's duties and
rights hereunder shall not be assignable by Employee. This Agreement and the
Company's duties and rights hereunder shall not be assignable except in the
event of a merger, acquisition, sale of substantially all of the assets of the
Company, or other bona fide business reorganization to which the Company is a
party. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
personal representatives, successors, and permitted assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original hereof, but all of
which together shall constitute one and the same instrument.
(e) Entire Agreement. Except as otherwise set forth or referred to in
this Agreement, this Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior discussions, agreements, and understandings of every kind
and nature between them as to such subject matter.
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(f) Reliance by Third Parties. This Agreement is intended for the
sole and exclusive benefit of the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors, and permitted
assigns, and no other person or entity shall have any right to rely on this
Agreement or to claim or derive any benefit therefrom absent the express written
consent of the party to be charged with such reliance or benefit.
(g) Governing Law. This Agreement shall be construed in accordance
with governed by the laws of the State of Utah.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the date first set forth above.
MEDCROSS, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxx, President
/s/ Xxxx Xxxxxx
---------------------------------------------
XXXX XXXXXX
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