Exhibit 10.42
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of January 30, 2000 (the "Employment
Agreement"), by and between PeopleMover, Inc. ("PeopleMover" or the "Employer")
and Xxxxxxx X. Xxxxx (the "Employee").
WHEREAS, Opus360 Corporation ("Opus360"), Opus PM Acquisition Corp.
("Opus PM"), PeopleMover and the other parties signatories thereto have entered
into an Agreement and Plan of Merger, dated as of January 30, 2000 (the "Merger
Agreement"), pursuant to which Opus360 is purchasing all of the outstanding
shares of common stock, par value $0.001 per share ("PeopleMover Common Stock")
of PeopleMover by means of a statutory merger (the "Merger") of Opus PM with and
into PeopleMover with PeopleMover remaining as the surviving corporation (the
"Surviving Corporation");
WHEREAS, the execution, delivery and performance of this Employment
Agreement by Employee is an express condition to the Merger Agreement and a
material inducement to Opus360 and Opus PM to enter into the Merger Agreement;
WHEREAS, the execution, delivery and performance of Employee's
Confidentiality and Non-Competition Agreement dated as of January 30, 2000 by
Employee is an express condition to the Merger Agreement and to Employee's
Employment Agreement and a material inducement to Opus360 and Opus PM to enter
into the Merger Agreement and Employee's Employment Agreement; and
WHEREAS, it is the desire of Employer and Employee that Employee be
employed as Vice President, Business Development for the Applications and
Procurement Services Group.
NOW THEREFORE, in consideration of the foregoing and of the mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. Duties; Term.
Employer agrees to employ Employee, and Employee agrees to be so
employed, as Vice President, Business Development for the Applications and
Procurement Services Group, or such other title as may be given to Employee from
time to time, reporting directly to the Senior Vice President, Application and
Procurement Services Group for Employer and indirectly to the Executive Vice
President, Business Development for Opus360. This Employment Agreement shall
commence on the Closing Date (as defined in the Merger Agreement), and shall
expire on the third anniversary of such Closing Date, unless sooner terminated
in accordance with Section 4 hereof (the "Term"). On the third anniversary of
the Closing Date and on each subsequent anniversary thereof, the Term shall be
extended for one (1) additional year, unless, no later than sixty (60) days
before such anniversary, either party shall have given notice to the other that
it does not wish to extend the Term of this Employment Agreement. Without
limiting the foregoing, Employee shall be responsible for providing such duties
as may be assigned by Employee's supervisor and as are appropriate to Employee's
position. Employee agrees to perform Employee's duties to the best of his
abilities and to devote all of his professional time, attention and energy to
the business of Employer; PROVIDED, HOWEVER, that Employee may (i) engage in
activities in connection with charitable or civic activities; (ii) serve as an
executor, trustee or in other similar fiduciary capacity, if in each case, such
activities do not interfere with Employee's services hereunder; and (iii) with
the prior approval of Employer, serve on boards of corporations or business
enterprises so long as such Board activities do not interfere with Employee's
performance of his obligations under this Agreement.
2. Compensation.
(a) Salary. During each year of the Term, Employer shall
pay to Employee a salary of $125,000.00 per annum, less all applicable
federal, state and local withholding taxes payable in accordance with
Employer's standard payroll policies (the "Annual Salary"). The Annual Salary
shall be reviewed at least annually during the Term, and may be increased in
the sole discretion of Employer.
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(b) Options. Pursuant to Sections 2.3 and 5.14 of the Merger
Agreement, any PeopleMover Options (as defined in the Merger Agreement) granted
prior to the Effective Time (as defined in the Merger Agreement) shall be
exchanged for options ("Adjusted Options") to purchase a number of shares of
common stock of Opus360. Employee acknowledges and agrees that the additional
275,000 PeopleMover Options granted to Employee in the period between the
execution of the Merger Agreement and the Effective Time have been granted to
Employee by PeopleMover. Adjusted Options shall be governed by the PeopleMover
Stock Option Plan. For purposes of the vesting of Adjusted Options, the original
date of grant and the original vesting schedule shall govern the terms of such
Adjusted Options. During the Term, Employer, in its sole discretion, may grant
additional options to purchase common stock of Opus360 to Employee ("Opus360
Options" and collectively with the Adjusted Options, the "Options"). All of
Employee's Opus360 Options shall be subject to the terms and conditions of the
Opus360 Stock Option Plan, as may be amended from time to time, and any
agreements evidencing such Opus360 Options.
(c) Waiver. Employee hereby waives, releases and forever
discharges any and all rights to any accelerated vesting and/or exercisability
of any equity-based awards previously granted by PeopleMover, severance
payments, and/or any other payments or sums which may otherwise have been owed
to Employee in connection with any change in control of PeopleMover, including,
without limitation, the offer letter from PeopleMover dated July 27, 1999.
3. Benefits; Expense Reimbursement.
During the Term, Employee shall be eligible to participate in any
generally available group insurance, accident, sickness and hospitalization
insurance, and any other employee benefit plans and compensation programs
maintained by Employer, subject in each case to the generally applicable terms
and conditions of the applicable plan or program. Employee further shall be
entitled to reimbursement by Employer for all direct out-of-pocket expenditures
made by him on Employer's behalf in the performance of his services under this
Employment Agreement, subject to any reasonable recordkeeping, reporting and
other requirements imposed from time to time by Employer. During each year of
the Term, Employee shall be entitled to the greater of two (2) weeks of
vacation, or the vacation benefit afforded to similarly situated employees of
the Employer, including, without limitation, giving credit tenure for
PeopleMover.
4. Employment Termination.
(a) Termination by Employer for Cause. Notwithstanding
anything to the contrary herein contained, Employer may terminate immediately
the employment of Employee without notice and without pay in lieu of notice:
(i) if Employee commits an act of theft, fraud or material
dishonesty or misconduct involving the property or affairs of Employer or the
carrying out of Employee's duties;
(ii) if Employee commits a material breach or material
non-observance of any of the terms or conditions of this Employment Agreement;
PROVIDED, HOWEVER, that, if such breach or non-observance is capable of cure,
Employee is given written notice identifying any such breach or non-observance
with particularity and (A) fails to remedy the same within ten (10) days of
receipt of such notice, or (B) fails to commence such cure within such ten (10)
day period and to continue to effect such cure thereafter provided that any cure
period lasting longer than ten (10) days shall only apply if such breach or
non-observance is capable of cure within a reasonable time of such notice;
(iii) if Employee is convicted of a felony;
(iv) if Employee refuses or fails to follow any lawful
directive related to the Employer's business issued by Employer's Board of
Directors or the person to whom the Employee reports; PROVIDED, HOWEVER, that,
if such refusal or failure is capable of cure, Employee is given written notice
identifying any such refusal or failure with particularity and (A) fails to
remedy the same within ten (10) days of receipt of such notice, or (B) fails to
commence such cure within such ten (10) day period and to continue to effect
such cure thereafter provided that any cure period lasting longer than ten (10)
days shall only apply if such refusal or failure is capable of cure within a
reasonable time of such notice;
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(v) if Employee or any member of his family makes any personal
profit arising out of or in connection with a transaction to which Employer or
any of its subsidiaries or affiliates is a party without making disclosure to
and obtaining prior written consent of Employer;
(vi) if Employee habitually fails to perform or performs his
duties or responsibilities hereunder incompetently in any material respect, or
if Employee is inexcusably or repeatedly absent from work or if Employee is
absent for a prolonged period of time (other than as a result of, or in
connection with, a disability or a legally protected leave) (collectively
"Non-Performance"); PROVIDED, HOWEVER, that, if such Non-Performance is capable
of cure, Employee is given written notice identifying any such breach or
non-observance with particularity and (A) fails to remedy the same within ten
(10) days of receipt of such notice, or (B) fails to commence such cure within
such ten (10) day period and to continue to effect such cure thereafter provided
that any cure period lasting longer than ten (10) days shall only apply if such
Non-Performance is capable of cure within a reasonable time of such notice; or
(vii) if Employee breaches any obligation under the
Confidentiality and Non-Competition Agreement which is being executed by
Employee simultaneously herewith;
PROVIDED, HOWEVER, that with respect to Subsections (a)(ii), (iv) and (vi), the
Employer shall only be required to provide notice and opportunity to cure on one
(1) occasion.
Upon the termination of Employee's employment pursuant to this
Subsection (a), the employment of Employee hereunder shall be wholly terminated.
Upon any such termination, Employee shall have no claim against Employer in
respect of his employment for damages or otherwise except in respect of payment
of Annual Salary earned, due and owing and unused vacation time to the date of
termination. Further, following any termination for Cause, Employee shall
forfeit all of Employee's unvested options.
(b) Termination by Employer Without Cause. Notwithstanding
anything herein to the contrary, Employer may terminate Employee's employment
hereunder at any time, for any reason or no reason, on not less than fifteen
(15) days' prior written notice, or with fifteen (15) days' pay in lieu of such
notice. In the event of termination pursuant to this Subsection (b), Employee
will be entitled to Employee's continued Annual Salary and to all insurance
benefits for a period of one (1) year at the rate in effect on the date of
Employee's termination and to any bonus earned but not yet paid; PROVIDED,
HOWEVER, that Employee's right to receive the salary continuation payments
provided for in this Section 4(b) shall be (i) conditioned upon continued
compliance with Employee's obligations under the Confidentiality and
Non-Competition Agreement upon Employee's, (ii) conditioned upon Employee's good
faith efforts to obtain replacement employment that provided for a comparable
salary, and (iii) reduced by any salary payments that Employee receives from
such replacement employment. If Employee is terminated under this Subsection (b)
prior to the first anniversary of the date of this Employment Agreement,
notwithstanding anything to the contrary contained herein or in the applicable
stock option agreements, then (x) the Employee's Options shall continue to vest
as if Employee's employment hereunder had continued until the second anniversary
of the date of this Employment Agreement, and (y) all Options and other equity
based awards which have vested shall be exercisable by the Employee for their
full remaining terms. If Employee is terminated under this Subsection (b) on or
after the first anniversary of the date of this Employment Agreement but on or
prior to the third anniversary of the date of this Employment Agreement,
notwithstanding anything to the contrary herein or in the applicable stock
option agreement or in any other agreement, then (x) one-half (1/2) of the
unvested Employee's Options that would have vested on or prior to the third
anniversary date of the Closing Date shall continue to vest as if the Employee's
employment hereunder had continued until the third anniversary of this
Employment Agreement, and (y) all Options and other equity based awards which
have vested shall be exercisable by the Employee for their full remaining terms.
If Employee is terminated under this Subsection (b) during any one-year
extension hereof as permitted under Section 1, then one-half (1/2) of the
unvested Employee's Options that would have vested during the remainder of such
one-year extension shall continue to vest as if the Employee's employment
hereunder had continued through the remainder of such one-year extension.
(c) Termination by Employer Due to Death or Disability. The
employment of Employee shall, at the option of Employer, terminate immediately
in the event of his death or permanent disability, in which case notice in
writing from Employer shall be sent to Employee or his legal representative. In
the event of termination under this Subsection (c), in addition to any
disability benefit coverage to which he
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may be entitled under any disability insurance programs maintained by
Employer in which he is a participant, Employee will be paid an amount equal
to the difference between (i) six (6) months salary at Employee's Annual
Salary rate as in effect on the date of the termination under this Subsection
(c) and (ii) the amount of disability benefits for a six-month period payable
to Employee under Employer's long-term disability program in which he is a
participant. Except as provided in the preceding sentence, Employee shall be
entitled to no additional compensation under this Employment Agreement
following the date of termination under this Subsection (c), other than
Annual Salary earned but not paid, and unused vacation time accrued, through
the date of termination. For purposes of this Employment Agreement, a
permanent disability shall mean an illness, disease, mental or physical
disability or other causes beyond Employee's control which makes Employee
incapable of discharging his duties or obligations hereunder, or causes
Employee to fail in the performance of his duties hereunder, for six (6)
consecutive months, as determined in good faith by the Board based on a
report of a physician selected in good faith by the Board. Further, following
any termination under this Subsection (c), Employee shall forfeit all of
Employee's unvested options.
(d) Termination by Employee For Good Reason. Employee may
terminate, without liability, this Employment Agreement for good reason, if (i)
Employer breaches any material term of this Employment Agreement, provided that,
if such breach is capable of cure, such breach continues for a period of fifteen
(15) days after Employer receives written notice of such breach by Employee
identifying such breach with particularity, (ii) there is any reduction in
Employee's Annual Salary, (iii) a material reduction in Employee's duties or
responsibilities without Employee's consent, or (iv) Employer requires employee
to relocate his place of business outside of Los Angeles or Orange Counties
during the first six (6) months of this Employment Agreement. In the event
Employee terminates his employment under this Employment Agreement for Good
Reason, Employee shall be entitled to receive the payments and the vesting
rights set forth in, and as limited by, Section 4(b) above.
5. Successors and Assigns.
This Employment Agreement and all of the rights and obligations
hereunder shall be binding upon Employee and Employer and their respective
successors and assigns. Employer will require any successor (whether by
purchase, merger, consolidation, operation of law or otherwise) expressly to
assume and agree to perform this Employment Agreement in the same manner and to
the same extent that Employer would be required to perform it if no such
succession or assignment had taken place. Effective upon such assumption, and
consummation of the underlying transaction, Employer shall have no further
obligation or liability under or with respect to this Employment Agreement.
6. No Third Party Beneficiary.
This Employment Agreement is not intended and shall not be construed to
confer any rights or remedies hereunder upon any Person, other than the parties
hereto or their permitted assigns. "Person" shall mean an individual,
corporation, partnership, limited liability company, limited liability
partnership, association, trust or other unincorporated organization or entity.
7. Notices.
Unless otherwise provided herein, any notice, exercise of rights or
other communication required or permitted to be given hereunder shall be in
writing and shall be given by overnight delivery service such as Federal
Express, telecopy (or like transmission) or personal delivery against receipt,
or mailed by registered or certified mail (return receipt requested), to the
party to whom it is given at such party's address set forth below such party's
name on the signature page or such other address as such party may hereafter
specify by notice to the other party hereto. Any notice or other communication
shall be deemed to have been given as of the date so personally delivered or
transmitted by telecopy or like transmission or on the next business day when
sent by overnight delivery service.
8. Amendment.
This Employment Agreement may be amended, modified, superseded or
canceled, and the terms and covenants hereof may be waived, only by a written
instrument executed by both of the parties hereto, or in the case of a waiver,
by the party waiving compliance. The failure of either party at any time or
times
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to require performance of any provision hereof shall in no manner affect
the right at a later time to enforce the same.
9. Binding Effect.
This Employment Agreement is not assignable by Employee. None of
Employee's rights under this Employment Agreement shall be subject to any
encumbrances or the claims of Employee's creditors. This Employment Agreement
shall be binding upon and inure to the benefit of Employer and any successor
organization which shall succeed to Employer by merger or consolidation or
operation of law, or by acquisition of all or substantially all of the assets of
Employer (provided that a successor by way of acquisition of assets shall have
undertaken in writing to assume the obligations of Employer hereunder).
10. Governing Law; Consent to Jurisdiction.
This Employment Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without regard
to its conflict of laws provisions. Employee hereby irrevocably submits to the
sole jurisdiction of any New York State or Federal court sitting in the City of
New York in any action or proceeding to enforce the provisions of this
Employment Agreement, and waives the defense of inconvenient forum to the
maintenance of any such action or proceeding.
11. Severability.
If any provision of this Employment Agreement shall for any reason be
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby and such remaining provisions of this Employment Agreement
shall remain in full force and effect. Moreover, if any one or more of the
provisions of this Employment Agreement shall be held to be excessively broad as
to duration, activity or subject, such provisions shall be construed by limiting
and reducing them so as to be enforceable to the maximum extent allowable by
applicable law. To the extent permitted by applicable law, each party hereto
waives any provision of law that renders any provision of this Employment
Agreement invalid, illegal or unenforceable in any way.
12. Execution in Counterparts.
This Employment Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original and all of which shall
constitute one and the same instrument.
13. Entire Agreement.
This Employment Agreement sets forth the entire agreement with respect
to the subject matter hereof, and supersedes all prior agreements and any other
agreement between the parties and understandings, both written and oral, between
the parties with respect to the subject matter hereof. The parties recognize and
agree that Employee will be a party to a Confidentiality and Non-Competition
Agreement and that Employee will be receiving stock options subject to the
Merger Agreement and related documents including, without limitation, a stock
option plan.
14. Titles and Headings.
Titles and headings to Sections herein are for purposes of reference
only, and shall in no way limit, define or otherwise affect the meaning or
interpretation of any of the provisions of this Employment Agreement.
15. Conflicts of Interest; Representations and Warranties.
Employee specifically covenants, warrants and represents to Employer
that he has the full, complete and entire right and authority to enter into this
Employment Agreement, that he has no agreement, duty, commitment or
responsibility or obligation of any kind or nature whatsoever with any
corporation, partnership, firm, company, joint venture or other Person which
would conflict in any manner whatsoever with any of his duties, obligations or
responsibilities to Employer pursuant to this Employment Agreement or which
could interfere with Employee's performance under this Employment Agreement,
that he is not in possession of any document or other tangible property of any
other Person of a confidential or proprietary
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nature which would conflict in any manner whatsoever with any of his duties,
obligations or responsibilities to Employer pursuant to Employee's Employment
Agreement and Employee's performance of his obligations to Employer during
the Term will not breach any agreement by which Employee is bound not to
disclose any proprietary information, and that he is fully ready, willing and
able to perform each and all of his duties, obligations and responsibilities
to Employer pursuant to this Employment Agreement.
* * * * *
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IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the date first written above.
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Address: 0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx XX 00000
Facsimile: 000-000-0000
PEOPLEMOVER, INC.
By: /s/ Xxx Xxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxx
Title: Chief Executive Officer
Address: PeopleMover, Inc.
Attn: Secretary
0000 Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
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