AllMicro, Inc.
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective the
date indicated on the signature page hereto (the "Effective Date"),
is entered into by and between AllMicro, Inc., a Florida
corporation ("AllMicro") and Xxxxxxx Xxxxxx, an individual residing
in Florida (the "Employee").
W I T N E S S E T H:
WHEREAS, Employee is presently employed by AllMicro in
the capacity specified in Exhibit A;
WHEREAS, effective upon the consummation of the merger
(the "Merger") of AllMicro Acquisition Corporation with and into
AllMicro, AllMicro will become a wholly owned subsidiary of The
ForeFront Group, Inc., a Delaware corporation ("ForeFront");
WHEREAS, following the Merger AllMicro wishes to employ
the Employee to perform certain duties on its behalf on the terms
and conditions, and for the consideration, hereafter set forth, and
the Employee wishes to accept such employment and perform such
duties on such terms and conditions and for such consideration;
NOW, THEREFORE, in consideration of the mutual promises,
covenants and obligations contained herein, the Employee and
AllMicro do hereby agree as follows:
1. EMPLOYMENT, DUTIES and TERMINATION. Employee is
hereby employed by AllMicro for the initial period indicated on
Exhibit A hereto, effective upon the closing of the Merger. After
the expiration of the initial period indicated on Exhibit A, the
Employee's employment hereunder shall continue but either party may
terminate this Agreement, with or without cause, on two (2) weeks'
notice delivered to the other (except upon a termination "for cause"
as set out below, which shall require only the notification as
hereafter indicated). Employee shall be employed initially for the
position, and generally to perform such duties, as are set forth on
Exhibit A hereto, which may change at the direction of AllMicro in
its sole determination. While employed by AllMicro, Employee
agrees to devote Employee's full productive efforts to the business
of AllMicro. Employee may have no other sources of active
employment while employed by AllMicro. Employee shall initially
report to the person indicated on Exhibit A. Employee's employment
may be terminated by AllMicro at any time if the Employee: (i) is
convicted of or pleads nolo contendere to a felony offense or a
crime of moral turpitude; (ii) materially breaches this Agreement
and fails to cure such breach within thirty (30) days of notice of
such breach by AllMicro; (iii) engages in willful misconduct, gross
neglect of Employee's duties, or an activity which constitutes a
material conflict of interest with Employee's job; or (iv) has
materially misrepresented Employee's skills,
-1-
past employment, education, or any other matter discussed between
AllMicro and Employee prior to commencement of employment
hereunder, including without limitation, information supplied to
AllMicro by the Employee in Employee's employment application. In
such cases, Employee will receive only Employee's compensation to
date of termination. Employee understands and agrees that this
Agreement and Employee's status as an employee of AllMicro creates
a fiduciary duty which the Employee owes to AllMicro, which duty
the Employee promises to fulfill.
2. COMPENSATION.
2.1 Salary. In consideration of the performance of
duties hereunder, AllMicro agrees to (i) pay the Employee a monthly
salary as indicated on Exhibit A, and (ii) grant Employee a non-
qualified stock option for the number of shares as is set out on
Exhibit A hereto, exercisable at a per share price equal to $12.375
and which vest and are exercisable at a rate equal to 1/24 of the
total amount thereof for each month that Employee performs services
to Forefront after the date hereof. Notwithstanding the above, in
the event that Employee is terminated without cause by ForeFront or
AllMicro prior to the expiration of the initial term, vesting of
options shall continue after the Effective Date. AllMicro may
withhold from any amounts payable under this Agreement, all
federal, state, city or other taxes as may be required pursuant to
any law or governmental regulation or ruling or AllMicro's policy.
2.2 Benefits. The Employee will also receive other
benefits from time to time normally provided to employees of
AllMicro, although there shall be no obligation to commence any
benefit plan, or to continue any plan once commenced.
2.3 Reimbursement. While employed hereunder, AllMicro
agrees to reimburse the Employee for all reasonable and necessary
business expenses in accordance with AllMicro's expense
reimbursement policy, which expenses have been approved in advance.
3. PROPRIETARY RELATIONSHIP.
3.1 Disclosure of Confidential Information. No
Confidential Information or anything directly related to it shall
be used by the Employee for the benefit of the Employee or any
third party, nor shall such Confidential Information be disclosed
to a third party, without the prior written consent of AllMicro,
except as may be necessary in the ordinary cause of performing the
Employee's duties for AllMicro and only for the benefit of
AllMicro. "Confidential Information" shall mean all of: (a)
information pertaining to the design and development of all
commercial products of AllMicro that is not generally known within
the industry in which AllMicro or any of its affiliates is engaged
and that is disclosed to, learned by or developed by the Employee
in the performance of his duties during Employee's employment by
AllMicro; (b) AllMicro's customer lists, sales data, pricing
formulas, marketing strategies, and other proprietary information
acquired by Employee in the performance of employment duties
hereunder; and (c) anything which would be considered "confidential"
under Florida law.
-2-
3.2 Exemption. Confidential Information shall not
include information that:
(a) at the time of its disclosure, is publicly
available through no fault of the Employee;
(b) at the time of its disclosure, is, without
fault of the receiving party, part of the public
domain;
(c) subsequent to its disclosure hereunder, is
obtained by the Employee from a third party not
subject to a contractual or fiduciary obligation
for confidentiality to the disclosing party; or
(d) is required to be disclosed under court or
governmental order, rule or regulation.
3.3 Return of Data. In the event of the termination of
employment of the Employee for any reason, the Employee will
deliver to AllMicro all documents, notebooks, designs,
specifications, customer lists, drawings, software, manuals,
reports, plans and other data of any nature containing Confidential
Information or relating to the business of AllMicro, and the
Employee will not deliver to anyone else any of such documents or
data or any reproduction of such documents or data containing
Confidential Information or relating to the business of AllMicro.
3.4 Disclosure and Assignment of Inventions. The
Employee agrees to make prompt and complete disclosure to AllMicro
of every Invention. "Inventions" shall mean all improvements,
discoveries, inventions, whether patentable or not, copyrightable
works, copyrights, trade secrets, formulae, processes, techniques,
and other developments and advances which are related to or useful
in the actual or anticipated business of AllMicro and that are
developed, conceived or reduced to practice or learned by the
Employee, either alone or jointly with others, during Employee's
employment by AllMicro or result from tasks assigned to the
Employee by AllMicro or result from use of premises or equipment
owned, leased, or contracted for by AllMicro. The Employee agrees
that AllMicro shall have sole ownership rights to all Inventions
and agrees to cooperate fully, at no expense to the Employee, with
AllMicro to secure and defend AllMicro's said ownership rights.
The Employee hereby assigns to AllMicro any rights the Employee may
acquire in any such Inventions.
3.5 No Conflict. The Employee represents and warrants
that: (a) as a matter of record, the Employee has identified on
Exhibit B attached hereto all inventions or improvements relevant
to the subject matter of Employee's employment by AllMicro which
have been made or conceived or first reduced to practice by the
Employee alone or jointly with others prior to Employee's
engagement by AllMicro, which the Employee desires to remove from
the operation of this Agreement; and the employee covenants that
such list is complete. If there is no such list on Exhibit B, the
Employee represents that the Employee has made no such inventions
and improvements at the time of signing this Agreement;
-3-
(b) performance of all the terms of this Agreement
by the Employee and as an employee of AllMicro does not and,
to the best of the Employee's present knowledge and belief,
will not breach any agreement or duty to keep in confidence
proprietary information acquired by the Employee in confidence
or in trust prior to the Employee's employment by AllMicro.
The Employee has not entered into, and will not enter into,
any agreement either written or oral in conflict herewith.
The Employee is not at the present time restricted from being
employed by AllMicro or entering into this Agreement;
(c) as part of the consideration for the offer of
employment extended to the Employee by AllMicro and of the
Employee's employment or continued employment by AllMicro, the
Employee has not brought and will not bring with the Employee
to AllMicro or use in the performance of the Employee's
responsibilities at AllMicro any materials or documents of a
former employer which are not generally available to the
public, unless the Employee has obtained written authorization
from the former employer for their possession and use; and
(d) in the Employee's employment with AllMicro, the
Employee is not to breach any obligation of confidentiality or
duty that the Employee has to former employers and the
Employee agrees that all such obligations during the
Employee's employment with AllMicro shall be fulfilled.
4. NON-SOLICITATION.
4.1 Non-Solicitation. In consideration of employment
or continued employment as the case may be, and the compensation
received by the Employee from AllMicro while employed by AllMicro,
the Employee hereby further agrees that Employee will not, during
the period Employee is employed by AllMicro, and until the
expiration of the earlier to occur of the third anniversary of the
Closing of the Reorganization Agreement and 12 months after the
termination of the Employee's employment with ForeFront or
AllMicro, (i) solicit, for himself or others, any person or entity
that is or was a customer of AllMicro while Employee was employed
by AllMicro, for any purpose or activity that is directly
competitive with the business of AllMicro, or solicit the
employment or services of any person who is employed full-time by
AllMicro or (ii) solicit, recruit or hire, or assist any person,
firm, corporation, association or other entity in the solicitation,
recruitment or hiring of, any person then engaged by AllMicro as an
employee, officer, director or consultant, or so engaged by
AllMicro within the then prior six (6) months.
4.2 Severability of Provisions. The Employee hereby
acknowledges and agrees that the scope of the foregoing covenants
are reasonable and necessary to protect the interests of AllMicro.
While the restrictions set forth in this Article 4 are considered
by the parties to be reasonable in all circumstances, it is
recognized that restrictions of the nature in question may fail for
technical reasons unforeseen, and accordingly it is hereby agreed
that if any of such restrictions shall be adjudged to be void as
going beyond what is reasonable in all the circumstances for the
-4-
protection of AllMicro or for any other reason but would be valid
if part of the wording thereof were deleted or the periods (if any)
thereof reduced or the range of activities or area dealt with
thereby reduced in scope, such restrictions shall apply with such
modifications as may be necessary to make them valid and effective
and such provisions shall be modified accordingly.
5. MISCELLANEOUS.
5.1 Notice. For purposes of this Agreement, notices and
all other communications provided for or permitted herein shall be
in writing and shall be deemed to have been duly given when
personally delivered or when mailed by United States registered or
certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to AllMicro:
AllMicro, Inc.
c/o The ForeFront Group, Inc.
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: The President
If to the Employee, at the address identified on the
signature page hereof, or to such other address as either
party may furnish to the other in writing in accordance
herewith, except that notices of changes of address shall be
effective only upon receipt.
5.2 Applicable Law. This Agreement shall be construed
and enforced in accordance with the laws of the State of Florida.
AllMicro and the Employee agree that personal jurisdiction and
venue shall be proper with the state or federal courts situated in
Pinellas County, Florida, to hear disputes arising under this
Agreement.
5.3 No Waiver. No failure by either party hereto at any
time to give notice of any breach by the other party of, or to
require compliance with, any condition or provision of this
Agreement shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent
time.
5.4 Severability. If a court of competent jurisdiction
determines that any provision of this Agreement is invalid or
unenforceable, then the invalidity or unenforceability of that
provision shall not affect the validity or enforceability of any
other provision of this Agreement, and all other provisions shall
remain in full force and effect. Further, such provisions shall be
reformed and construed to the extent permitted by law so that it
would be valid, legal and enforceable to the maximum extent
possible.
-5-
5.5 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but
both of which together will constitute one and the same Agreement.
5.6 Headings. The article and section headings have
been inserted for purposes of convenience and shall not be used for
interpretive purposes.
5.7 Entire Agreement. This Agreement constitutes the
entire agreement of the parties with regard to the subject matter
hereof, and contains all the covenants, promises, representations,
warranties and agreements between the parties with respect to the
subject matter hereof. Each party to this Agreement acknowledges
that no representation, inducement, promise or agreement, oral or
written, has been made by either party, or by anyone acting on
behalf of either party, that is not embodied herein, and that no
agreement, statement or promise relating to the subject matter
hereof that is not contained in this Agreement hereto shall be
valid or binding. All of the foregoing notwithstanding, any and
all information contained in Employee's employment application, or
represented to AllMicro by Employee either verbally or in writing,
concerning Employee, including without limitation Employee's past
or present employment, skills, education, and other such matters,
are deemed to be material representations to AllMicro, and are
incorporated herein by reference and made a part hereof for all
purposes.
5.8 Amendments. No amendment or modification to this
Agreement will be effective unless it is in writing and signed by
duly authorized representatives of both parties.
5.9 Further Assurances. The parties agree to execute
such further instruments and to take such further action as may
reasonably be necessary to carry out the intent of this Agreement.
5.10 Survival. The provisions of Articles 3 and 4 herein
shall survive any termination of this Agreement.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed effective as of July 22, 1996 (the
"Effective Date").
AllMicro, Inc. Employee:
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Title: Chairman Address: X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
-6-
EXHIBIT A
Employee: Xxxxxxx Xxxxxx
Position: President, AllMicro, Inc.
Reports to: Xxxxx Xxxxxx
Duties: Direct Sales Management
Initial period of Employment: 2 years
Gross Monthly Salary: $ 20,833
Options: shares
-7-
Exhibit B
1. The following is a complete list of all inventions
or improvements relevant to the subject matter of my employment by
AllMicro, Inc. (the "Company") which have been made or conceived or
first conceived or first reduced to practice by me alone or jointly
with others prior to my engagement by the Company:
-------- No inventions or improvements
-------- See below
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------- Additional sheets attached
2. I propose to bring to my employment the following
materials and documents of a former employer which are not
generally available to the public, which materials and documents
may be used in my employment:
-------- No materials
-------- See below
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------- Additional sheets attached
The signature below confirms that my continued possession
and use of these materials is authorized.
/s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
-8-
