Exhibit 10 b)
EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement") dated as of December 1,
1998 by and between, Xxxx Solutions, Inc. a Delaware Corporation (the
"Company"), and Xxxxxxx Xxxxxxxxx, residing at 00 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000 the ("Executive").
W I T N E S E T H
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NOW THEREFORE, and in consideration of the promises and
covenants herein contained and intending to be legally bound hereby, the parties
agree as follows:
1. Employment
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(a) The Company hereby employs the Executive as Executive Vice
President of Sales and Marketing of the Company for and during the
term hereof, subject to the supervision and control of the
Company's Board of Directors. The Executive hereby accepts
employment.
(b) The Executive shall have such duties as may be reasonably assigned
to him from time to time by the Board of Directors consistent with
his status as Executive Vice President of Sales and Marketing of
the Company.
(c) The Executive agrees to devote his full business time and services
to the faithful performance of the duties, responsibilities, and
authorities which may be reasonably assigned to him and which are
consistent with his executive status under this Agreement. During
the term of his employment, Executive shall engage in no other
business activities whatsoever, except for the passive supervision
of his investments.
2. Term
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(a) The term of this Agreement shall commence effective on this date
and shall terminate on the third anniversary of this date.
3. Compensation and Benefits
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(a) Executive shall be paid a salary at the rate of $125,000 per year
(the "Base Salary"), subject to withholding taxes, which Base
Salary shall be payable at least monthly in periodic payroll
installments. This amount shall be increased at each anniversary
date by $25,000.
(b) The Executive shall be entitled to participate in all bonus and
benefit programs that the Company establishes and makes available
to its management level employees, if any.
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(c) The Executive shall receive paid vacation each year during the
term of this Agreement, which vacation may be taken or accrued by
the Executive in accordance with the written business policies of
the Company.
(d) The Company shall directly pay or shall immediately reimburse the
Executive for all reasonable travel, entertainment and other
expenses incurred or paid by the Executive in connection with, or
related to, the performance of his duties, responsibilities or
services under this Agreement, inclusive of the use of a company
vehicle.
(e) The Executive shall receive three-year options to purchase 150,000
shares of the Company's Common Stock at $1.00 per share (the
"Options"). The Options shall be exercisable as follows: 50,000
shares of Common Stock on the date of this agreement, an
additional 50,000 shares of Common Stock on October 1, 1999 and an
additional 50,000 shares of Common Stock on October 1, 2000;
provided, however, the Options hall become immediately exercisable
as to all 150,000 shares of Common stock for a period of sixty(60)
days after the effective date of a termination of the Executive's
employment by the company other than for "cause" as defined in
Section 4(c). In the event the Executive resigns or is terminated
for "cause"; the Options shall immediately expire on the effective
date of the resignation or termination.
If the employee is terminated for cause, all options are immediately
terminated.
4. Termination. Notwithstanding any other provisions in this Agreement:
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(a) If the Executive dies during the term of this Agreement and while
in the employ of the Company, this Agreement shall automatically
terminate, effective thirty (30) days after the date of the
Executive's death; and the Company shall pay the Executive's
estate his full compensation for the month during which the
Executive died, but shall have no further compensation under this
Agreement, other than accrued vacation.
(b) If, during the term of this Agreement, the Executive is unable to
perform his duties hereunder as a result of any physical or mental
disability which continues (i) for 90 consecutive days or (ii) for
180 days in any 365 day period, then the Company, may terminate
this Agreement upon written notice to the Executive.
(c) At any time during the term of this Agreement, the Company may
discharge the Executive for cause and terminate this Agreement
without any further liability hereunder to the Executive or his
estate, provided that the Company shall first be required to
deliver written notice to the Executive of the event or acts or
omissions which constitute "cause" and the Executive shall have
had thirty (30) days to cure such event, act or omission. For
purposes of this Agreement, "cause" shall mean one or more of the
following events:
i. Conviction by a court of competent jurisdiction in the United
States for fraud, misappropriation or embezzlement by the
Executive in connection with the Company; or
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ii. Gross neglect of duties which has a detrimental effect on the
Company; or
iii.Conviction by a court of competent jurisdiction in the United
States of a felony or a crime involving moral turpitude; or
iv. Willful and unauthorized disclosure of confidential or
proprietary trade secret information of the Company; or
v. The Executive's breach of any material term or provision of
this Agreement, after notice to the Executive of the
particular details thereof.
vi. In the event of termination of the employment for cause,
Executive shall only be entitled to receive any Base Salary,
bonus compensation and other benefits accruing prior to such
termination and shall not be entitled to any other payments
or compensation. In the event of termination without
cause, Executive shall be entitled to receive any Base
Salary, bonus compensation and other benefits accruing
prior to such termination plus an amount equal to Executive's
base salary for a period of 12 months.
5. Covenants
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(a) Executive covenants that, while he is an employee of the Company
and for 12 months thereafter neither he nor any of his affiliates
will, directly or indirectly (whether as an investor, shareholder,
employee or otherwise), anywhere in the world:
i. Engage in or participate in any business, which is in
competition with any aspect of any business now or
hereafter conducted by Company.
ii. Employ or retain any person who was employed or
retained by the Company at any time during the six
months prior to the termination of the Executive's
employment.
(b) Executive recognizes that his position with the Company is one of
the highest trust and confidence by reason of Executive's access
to and contact with trade secrets and confidential and proprietary
information of the Company, if any. Executive shall use his best
efforts and exercise utmost diligence to protect and safeguard and
keep confidential the trade secrets and confidential and
proprietary information of the Company to the extent that the same
exists.
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(c) Executive covenants that while he is an employee of the Company
and thereafter, he will not disclose disseminate or distribute to
another, nor induce any other person to disclose, disseminate, or
distribute, any trade secret or proprietary or confidential
information of the Company to the extent that the same exists,
directly or indirectly, either for Executive's own benefit or for
the benefit of another, whether or not acquired, learned, obtained
or developed by Executive, or use of or cause to be used, any
trade secret, proprietary or confidential information in any way
except as is required in the course of his employment with the
Company.
(d) All trade secrets and confidential and proprietary information
relating to the business of the Company whether prepared by
Executive or otherwise coming into his possession, shall remain
the exclusive property of the Company and shall not, except in the
furtherance of the business of the Company, be removed from the
premises of the Company under any circumstances whatsoever without
the prior written consent of the Company.
(e) In the event of breach or threatened breach by Executive of any
provision of this Section, the Company shall be entitled to apply
for relief by temporary restraining order, temporary injunction,
or permanent injunction and to all other relief to which it may be
entitled, including any and all monetary damages which the Company
may incur as a result of said breach, violation or threatened
breach or violation. The Company shall not be obligated to post
bond or other security. The Company may pursue any remedy
available to it concurrently or consecutively in any order as to
any breach, violation, and the pursuit of one of such remedies at
any time will not be deemed an election of remedies or waiver of
the right to pursue any other of such remedies as to such breach,
violation, or as to any other breach, violation, or threatened
breach or violation.
(f) The Executive acknowledges that the scope of the restrictions set
forth in this Section 5 is reasonably required to protect the
Company's business interests for which the Executive is being
compensated under this Agreement, and if any such restriction is
nevertheless determined to be too broad for enforcement in
accordance with its terms, the Executive agrees that such
restriction shall be enforced to the maximum extent permitted by
law.
6. Miscellaneous
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(a) All notices, requests, service of process, consents, and other
communications under this Agreement shall be in writing and shall
be deemed to have been delivered (i) on the date personally
delivered or (ii) two (2) days after the date deposited in a
receptacle maintained by the United States Postal Service for
such purpose, postage prepaid, by certified mail, return receipt
requested, addressed as set forth below or (iii) one(1) day after
properly sent by Federal Express, addressed to the respective
parties at their address set forth above. Either party hereto may
designate a different address by providing written notice of such
new address to the other party hereto as provided above.
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(b) If any provision contained in this Agreement is determined to be
void, illegal or unenforceable, in whole or in part, then the
other provisions contained herein shall remain in full force and
effect as if the provision which was determined to void,
illegal, or unenforceable had not been contained herein.
(c) The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of
any subsequent breach of any party. This instrument and the
documents referred to herein contain the entire agreement of the
parties concerning employment and supersede any and all other
agreements, either oral or in writing, between the parties hereto
with respect to the employment of the Executive by the Company and
contain all of the covenants and agreements between the parties
with respect to such employment in any manner whatsoever.
This Agreement may not be modified, altered or amended except by
written agreement of all the parties hereto.
(d) This Agreement is a contract for personal services and shall not
be assigned, delegated or transferred in whole or in part by
Executive. This Agreement shall be binding and effective upon the
Company and its successors and permitted assigns, and upon the
Executive, his heirs and representatives.
(e) This Agreement shall be governed by the laws of the State of New
Jersey.
(f) All disputes arising under the Agreement shall be resolved
through arbitration in the State of New Jersey in accordance with
the rules of the American Arbitration Association then in effect.
The award and decision rendered by such arbitration shall be final
and binding upon the parties and a judgement upon the award and
decision may be entered into any court of competent jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
Xxxx Solutions, Inc.
By: __________________________
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(Print Name and Title)
And
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Executive
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