EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Agreement"), dated as of the 12th day of May, 2000, by and between
XxxXxxxx.xxx, Inc. (the "Company") with an address at Xxx Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xx. Xxxxxxxxxx, Xx. 33301 and Xxxx X. Xxxxxxx ("Xxxxxxx")
residing at 00000 Xxxx Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000. WHEREAS, Xxxxxxx
and the Company have agreed that Xxxxxxx shall continue to render services to
the Company in the capacity of President and Chief Executive Officer pursuant to
the terms of that certain Employment Agreement, dated as of the 24th day of
March 2000; and
WHEREAS, the Board of Directors of the Company amended the
terms of that certain Employment Agreement, as of the 4th day of April 2000; and
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein set forth, the parties hereto have agreed and do hereby
mutually agree as follows:
1. EMPLOYMENT TERM: The term of this Agreement shall commence
on the date hereof and shall expire two years thereafter (the "Employment
Period"), subject to the provisions
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of Section 5;however, the employment term shall automatically be extended for an
additional year on each anniversary date unless Xxxxxxx or the Company delivers
written notice of their intent not to renew the Employment Agreement . Xxxxxxx
or the Company shall deliver to the other written notice of their intent not to
renew the Employment Agreement within 30 days prior to the end of each one year
term.
2. DUTIES OF EXECUTIVE: Xxxxxxx shall serve as President and
Chief Executive Officer of the Company and shall be required to perform such
duties as may from time to time be required by the Board of Directors of the
Company. Xxxxxxx shall also serve on the Board of Directors of the Company, if
so elected, at no additional compensation. Xxxxxxx hereby agrees that, during
the term of his employment hereunder, he shall devote such time as is reasonably
necessary to perform his duties pursuant to the terms of this Agreement.
3. COMPENSATION:
(a) As compensation for his services hereunder, the Company
shall pay Xxxxxxx, during the Employment Period, a base salary ("Base Salary")
payable as follows:
(i) Four Hundred Thousand Dollars ($400,000.00) for the
first year;
(ii) Four Hundred Fifty Thousand Dollars ($450,000.00)
for the second year;
The foregoing compensation shall be payable in installments according
to the Company's regular payroll practices and subject to such deductions as may
be required by law.
(b) Xxxxxxx shall also receive a bonus based upon a bonus plan
to be established
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for executive officers of the Company, in each fiscal year during the Employment
Period, payable as determined in the bonus plan.
(c) In each fiscal year during the Employment Period, the
Company may contribute to an annuity or pension plan of Xxxxxxx, which annuity
or pension plan shall be designated by Xxxxxxx.
(d) The Company may withhold from payments of Xxxxxxx salary
amounts required to be withheld by the Company from time to time such salary
under applicable Federal, State, and local laws and regulations then in effect.
(e) Upon submission of written statements and bills in
accordance with the then regular procedures of the Company, Xxxxxxx shall be
entitled to reimbursement for reasonable out-of-pocket expenses necessarily
incurred in the performance of his duties hereunder, including, but not limited
to, reimbursement for travel and car expenses. A Company credit card will also
be made available to Xxxxxxx. In addition, Xxxxxxx shall also be entitled to a
monthly car allowance of $750.00, plus cost of insurance and maintenance.
4. EMPLOYEE BENEFITS:
(a) Xxxxxxx shall be included to the extent eligible there
under (at the expense of the Company, if appropriate) in any and all existing
plans (and any plans which may be adopted in the future) providing benefits for
the Company's employees generally, including, but not limited to, group life and
disability insurance, hospitalization, medical, vacation, retirement,
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stock option plans and any and all similar or comparable benefits.
(b) Due to the fact that the Company's success is dependent
upon the activities of Xxxxxxx, the Company will provide keyman insurance on the
life of Xx. Xxxxxxx in the amount of $1,000,000.00 and Xxxxxxx will cooperate in
obtaining and maintaining such policy.
(c) Xxxxxxx shall be awarded options to purchase 300,000
shares of the Company Common Stock, exercisable at $12.75 per share. Such
options shall be for a five year term and shall vest as follows: (i) 100,000
shares after the first year of employment; and (ii) 100,000 shares after the
second year of employment; and (iii) 100,000 shares after the third year of
employment if Xxxxxxx is still employed by the Company.
5. TERMINATION:
(a) The Company may terminate Xxxxxxx'x employment hereunder
at any time for cause only by written notice but only after a decision by the
Board of Directors of the Company which is communicated to Xxxxxxx in writing
thirty (30) days prior to the effective date of termination; PROVIDED HOWEVER,
that the Company pays to Xxxxxxx a xxxxxxxxx payment equal to the aggregate Base
Salary otherwise owed to him over the remaining term of the Employment Period
and allow Xxxxxxx to retain any options granted under any option plan granted to
him notwithstanding the fact that such options may not be vested and/or
exercisable at the time of termination under this Section 5(a).
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(b) For purposes of this Agreement "For Cause" shall mean:
(i) Deliberate misappropriating any funds or
properties of the Company;
(ii) Gross mismanagement of the Company;
(iii) Material fraud or willful and material misconduct
with respect to performance of his duties under
this Agreement; or
(iv) Material breach of any material fiduciary duty to
the Company; or material breach of his
obligations under this Agreement; or chronic
neglect of his duties or chronic failure to act
with respect to his duties as determined by the
Board of Directors.
(c) In the event Xxxxxxx is not nominated or re-elected to
serve as a member of the Board of Directors during the Employment Period, either
party may terminate this Agreement and Xxxxxxx shall be entitled to continue to
receive his Base Salary as set forth in Section 3(a) above for the remainder of
the Employment Period and retain any options granted under any option plan
notwithstanding the fact that such options may not be vested and/or exercisable
at the time of termination under this Section 5(c).
(d) In the event that Xxxxxxx dies or becomes disabled so as
not to be able to perform his duties as set forth herein for a period exceeding
twelve (12) months, this Agreement shall terminate (as permissible under the
Americans with Disabilities Act) and no further compensation shall be payable to
Xxxxxxx, except as may otherwise be provided under any insurance policy,
employee benefit plan, or similar instrument; PROVIDED HOWEVER, that during any
such period of disability, Xxxxxxx shall be entitled to his base salary as
provided
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under Section 3(a) for a period not to exceed twelve (12) months.
6. COVENANT NOT TO COMPETE: Xxxxxxx represents himself as
having non Non-Compete Agreement(s) or restrictive covenant(s) with any current
or former employer(s) and no conflict(s) of interest, which would preclude
Xxxxxxx from entering into this Agreement with the Company.
The parties agree that the Company has a legitimate business
interest, including, but not limited to: (1) trade secrets, which include but
are not limited to, intellectual properties, client lists, customer lists,
vendor lists, and marketing programs developed by and unique to the Company; (2)
valuable confidential business or professional information that otherwise does
not qualify as trade secrets: (3) substantial relationship with specific
prospective or existing clients and vendors or suppliers; (4) client, vendor and
supplier goodwill associated with an ongoing business by way of the name
XxxXxxxx.xxx, Inc. located throughout the United States, five (5) extraordinary
or specialized training in the technology, computer technical science field, and
(6) the assets, corporate shares, investments and equity interests of the
Company.
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The parties further agree that the Company has a reasonable
legitimate business interest and a protectable interest in the right to prevent
direct and indirect solicitation of existing clients and business relationships
and investment in extraordinary training of its current employees.
In view of the foregoing, Xxxxxxx'x employment by the Company in a very
skilled highly valued position within its highly specialized organization and
the payment of compensation listed herein and other valuable consideration, it
is further mutually agreed as follows:
(a) Xxxxxxx recognizes and acknowledges, as aforesaid, that
the Company has made a substantial investment in time and expense in its highly
specialized business and that the very nature of Xxxxxxx'x position will enable
Xxxxxxx to obtain and become familiar with certain trade secrets, confidential
information concerning business techniques, methodologies, marketing efforts,
highly specialized employee training, intellectual properties vendor lists other
lists and client relationships of the Company.
(b) Because of the competitive environment in which the
Company must conduct its business, Xxxxxxx agrees and understands that material
and irreparable injury would be done
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to the Company if Xxxxxxx should violate the said legitimate business interest
and protectable interest, or assist competitors, or engage in solicitation of
existing clients or business relationships.
(c) Xxxxxxx will not, during his employment with the Company
or any time thereafter, use, offer, disclose or divulge by any means, directly
or indirectly, any of the trade secrets, confidential information, vendor lists
or client lists of the Company. Xxxxxxx further agrees that during his
employment with the Company or prior to the later of: (i) termination of his
employment with the Company; or (ii) the due date of his final payment of salary
due hereunder, he will not engage in solicitation of existing client lists and
vendor lists of the Company, which are the property of the Company and which
Xxxxxxx acquired knowledge of in the course of and by virtue of his employment
with the Company, to any corporation, firm, person, partnership, associations or
other business entity, or use such information in any manner contrary to this
Agreement.
The parties agree that the foregoing is reasonable.
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(d) Xxxxxxx agrees that, commencing the date hereof and
continuing until the later of: (i) one year after the termination of his
employment with the Company; or (ii) the due date of his final payment of salary
due hereunder, he will not, except on behalf of the Company or with the written
consent of the Company (i) engage in any business activity in the United States,
directly or indirectly, on his own behalf or as partner, stockholder (except by
ownership of less than ten percent (10%) of the outstanding stock of a
publicly-held corporation), director, trustee, principal, agent, employee,
consultant or otherwise of any person, firm or corporation which then is
competitive with an activity in which the Company or any parent or subsidiary of
the Company is then engaged at the time; (ii) allow the use of his name by or in
connection with any business activity which then is principally competitive with
any activity in which the Company or any of its parents or subsidiaries is then
engaged; or (iii) offer employment to or employ, for himself or on behalf of any
then competitor of the Company or any of its parents or subsidiaries, any
persons who at any time within the prior six (6) months shall have been employed
by the Company or any parent or subsidiary of the Company.
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(e) Xxxxxxx agrees that he shall offer in writing to the
Company all business deals that concern computer science and/or internet
technology and shall not participate in those deals personally or through any
agent, trust, family member, or other vehicle without the express written
permission of the Company with the understanding that the Company shall have the
right to participate.
7. DEFAULT - REMEDIES: In the event of proof of breach by
Xxxxxxx, of any provisions of this Agreement or any duty Xxxxxxx may owe to the
Company, the Company shall be entitled to pursue any remedy at law or equity,
and shall specifically at any time have the right to terminate any further
payments of any kind or nature to be made under this Agreement.
Xxxxxxx acknowledges and agrees that, in the event of his
breach of any of the provisions of this Agreement, the Company will be
irreparably injured and that damages will be difficult if not impossible to
measure and, accordingly, the Company shall be entitled to injunctive relief and
to any other remedies available in equity or law, including court costs and
expenses, taxable or otherwise, reasonably necessary in preparing for, seeking
or obtaining abatement of or an injunction against such action or proceeding, or
in enforcing this Agreement,
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or in establishing or maintaining the applicability
of, or validity of, this Agreement, or any provision thereof, and in prosecuting
any counterclaim or cross-complaint based thereon, or any other matter as
ordered by a court of competent jurisdiction to enforce the provisions of this
Agreement.
8. CONFIDENTIAL INFORMATION: Except as otherwise required by
law, Xxxxxxx shall not disclose or use at any time, except as part of his
employment by the Company, either during or subsequent to such employment, any
secret or confidential information or knowledge obtained by Xxxxxxx while
employed by the Company. Without limiting the generality of the foregoing,
Xxxxxxx shall not disclose or use any information pertaining to the business of
the Company or any parent or subsidiary of the Company, including, but not
limited to, profit figures, names of or relationships with customers or
advertisers, or the terms of any contracts to which it or they may be a party.
The obligation imposed by this Section 8 shall survive the expiration or other
termination of this Agreement.
9. SURRENDER OF DOCUMENTS: If Xxxxxxx voluntarily resigns or
is terminated
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with or without cause or due to the sale of the Company, or at any
time prior thereto, Xxxxxxx agrees that he will cooperate fully with the Company
on any or all of the following matters:
(a) promptly return and surrender to the Company or its
nominee, all books, records, documents, or other
property belonging to the Company and/or its
affiliates;
(b) promptly return and surrender to the Company or its
nominee, any document, memorandum, record, letter,
specification or other paper in his possession or
under his control relating to the operations,
business, customers, or affairs of the Company or its
affiliates; and
(c) provide the Company with all necessary information
related to the completion and/or orderly transfer of
work in progress.
10. WAIVER OF BREACH: This Agreement supersedes any and all
prior agreements, understandings, and negotiations relating to the subject
matter herein and constitutes the entire agreement between the parties relating
to such subject matter. No term or condition of this Agreement may be waived,
changed, modified, extended or discharged unless in writing and signed by all
parties to this Agreement. The waiver by either the Company or Xxxxxxx of any
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by either the Company or Xxxxxxx.
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11. SEVERABILITY: The invalidity or unenforceability of any
provision of this Agreement, whether in whole or in part, shall not in any way
affect the validity or enforceability of any other part of such provision or of
any provision herein contained, and any invalid or unenforceable provision or
part thereof shall be deemed severable to the extent of any such invalidity or
unenforceability. If such invalidity or unenforceability is due to the
unreasonableness of the time or geographical area covered by the covenants or
restrictions of such provision, such covenants and restrictions shall
nevertheless be effective for such period of time and for such area as may be
determined to be reasonable by a court of competent jurisdiction.
12. INTERPRETATION: No provision of this Agreement is to be
interpreted for or against any party because that party or that party's legal
representative drafted such provision.
13. ASSIGNMENT; BINDING EFFECT: This Agreement is for personal
services of Xxxxxxx and shall not be assignable by the Company. This Agreement
shall not be assignable in whole or in part by Xxxxxxx, except that Xxxxxxx may
assign the Agreement to any successor in interest to the Company's business. The
rights and obligations of the parties shall inure to the
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benefit of, and be binding upon, their respective heirs, personal
representatives, successors and assigns.
14. NOTICES:
(a) All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been given if delivered
by hand or mailed within the continental United States by first class, certified
mail, return receipt requested, postage and registry fees prepaid, or sent by
telecopier (with receipt confirmation), to the applicable party and addressed as
follows:
(i) if to the Company at the address set forth above.
(ii) if to Xxxxxxx at the address set forth above.
(b) Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof. Any notice or other communication sent by telecopier transmission shall
be deemed given at the time of written confirmation of receipt.
15. BACKGROUND INVESTIGATION. This Agreement shall become
effective immediately but is subject to a thorough and timely background
investigation on Xxxxxxx. Timely shall mean that said background check shall be
completed within 15 business days from the date of execution of Agreement. In
the event that the background check reveals anything
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materially adverse about Xxxxxxx, the company shall have the right to deem the
Agreement as null and void.
16. CHANGE OF CONTROL. In the event the Company enters into a
"change of control" agreement with its senior executives, Xxxxxxx shall be
included in said "change of control" agreement.
17. ENTIRE AGREEMENT OF THE PARTIES: This Agreement expresses
the entire agreement of the parties, and all promises, representations,
understandings, arrangements and prior agreements are merged herein and
superseded hereby. No person, other than pursuant to a resolution of the Board,
shall have any authority on behalf of the Company to agree to modify or change
this Agreement or anything in reference thereto, and any such modification or
change must be in writing and signed by both parties hereto.
18. LAWS GOVERNING: This Agreement has been entered into in
the State of Florida and shall be construed, interpreted and governed in
accordance with the laws of the State
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of Florida without regard to the choice of laws provisions thereof.
19. COUNTERPARTS: This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one document.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Xxxxxxx has hereunto set his hand
as of the day and year first above written.
XxxXxxxx.xxx, Inc.
By: /S/ XXXXX X. XXXXXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman
Date:
Accepted and Agreed
By: /S/ XXXX X. XXXXXXX
-------------------
Name: Xxxx X. Xxxxxxx
Date:
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