EXHIBIT 10(w)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of the 18th day of March 2004 between
Xxxx Xxxxx (hereinafter referred to as the "Employee") and SearchHelp, Inc., a
Delaware corporation having its principal place of business at the Hi-Tech
Incubator, 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (hereinafter referred to as
the "Employer").
W I T N E S S E T H:
WHEREAS, the Employer desires to employ the Employee under the terms of
this Agreement, and
WHEREAS, the Employee and Employer desire to have their rights, obligations
and duties specified herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. EMPLOYMENT AND COMPENSATION. The Employer hereby employs the Employee
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and the Employee accepts such employment as Chief Technical Officer (CTO). The
Employee shall have such duties as set forth by the Employer and shall report
directly to the President of the Company.
A. Base Compensation. The Employee shall be entitled to a salary as
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set forth on Schedule A of this Agreement during the term of this Agreement, and
any extensions thereof, payable in installments in accordance with the
Employer's regular practice of compensating executive personnel.
B. Bonus. Employee may be entitled to a bonus at the conclusion of
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each year of this Agreement, and any extensions thereof. At the end of each
year, the Compensation Committee of the Board of Directors shall determine the
amount and type (cash, stock, options, etc.) of such bonus payable to Employee,
if any.
C. Options. The Employee shall receive such number of options to
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purchase shares of the Company's stock, with such restrictions and vesting, as
set forth in Schedule B attached hereto.
2. TERM. This Agreement shall commence as of the date hereof, and shall
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continue for a period of one (1) years from the date thereof. This Agreement
shall be automatically extended by one-year periods at the conclusion of each
year, thus renewing the one (1) year term, unless notice is received by either
the Employee or the Employer not to extend this Agreement at least ninety (90)
days prior to the expiration of such year.
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3. DUTIES AND RESPONSIBILITIES.
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A. As Chief Technical Officer, the employee shall diligently,
conscientiously and faithfully devote all necessary time and energy to the
business of the Employer during the term, including any renewals, and shall
actively manage, and have responsibility for and supervision over, the technical
business activities and affairs of the Company and its subsidiaries, and he
shall, manage, supervise and direct its employees and agents, and all other
duties as from time to time reasonably requested by the President of the
Company.
B. During the term hereof and any renewal, the Employee shall not,
without the written consent of the Employer, such consent not to be unreasonably
withheld, engage in any activity that competes with the interest of the
Employer, whether the Employee is acting by himself or as an officer, employee,
shareholder, or fiduciary.
4. VACATIONS AND EDUCATIONAL COURSES.
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A. The Employee shall be entitled to a vacation of three (3) weeks
duration during the term of this Agreement. This may be taken after six months
of employment of the Employee. The compensation of the Employee shall be paid to
him during the time of his vacation. Attendance with the Employer's approval at
professional meetings, conventions, and educational courses up to two weeks
shall not constitute part of said vacation.
B. Vacation may be taken at one time or from time to time, the exact
time to be subject to approval by the Employer.
5. HEALTH INSURANCE; EMPLOYEE BENEFIT PLANS. In accordance with their
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terms, the Employee shall be entitled to participate in any medical, dental,
life, disability insurance or other employee benefit or welfare plans maintained
by the Employer for its professional employees generally. The insurance
obligations of the Employer set forth herein are contingent upon the
insurability of Employee. The medical and dental coverage maintained by the
Employer for the benefit of the Employee shall include medical insurance
coverage covering the Employee.
6. EXPENSES. During the period of his employment, the Employee will be
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reimbursed for his reasonable expenses for the benefit of the Employer in
accordance with the general policy of the Employer as adopted by the Employer
from time to time. With respect to any expenses which are reimbursed by the
Employer to the Employee, the Employee agrees to account to the Employer in
detail sufficient to entitle the Employer to an income tax deduction for such
paid item if such item is deductible.
7. TERMINATION.
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A. This Agreement shall automatically terminate:
(i) upon the death of Employee; or
(ii) if the Employee has been disabled or incapacitated so that he
is not capable of performing his duties hereunder for any
period of one-hundred twenty (120) consecutive days, unless
Employer shall elect to have this Agreement continue in
effect.
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B. Employer may terminate this Agreement:
(i) immediately for "cause" as determined by the Employer;
(ii) upon a material breach by Employee of any term or condition of
this Agreement; or
(iii) if at any time during the term of this Agreement, any of the
continuing representations, covenants or agreements of
Employee contained herein shall be inaccurate in any material
respect.
C. Employee may terminate this Agreement at any time:
(i) upon a material breach by Employer of any term or condition of
this Agreement; or
(ii) at any time at the election of Employee upon ninety (90) days
notice to Employer.
8. PROTECTION OF CONFIDENTIAL INFORMATION. Employee acknowledges that his
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employment by the Employer will bring him into close contact with many
confidential affairs of the Employer, including information and data regarding
costs, profits, markets, sales, products, key personnel, pricing policies,
operational methods, technical processes, computer programs or systems developed
or improved by the Employer, the identity of the Employer's Customers, Customer
representatives and contacts, the nature of the services required by the
Employer's actual and Prospective Customers, the services performed by the
Employer for its Customers, the identities of the Employer's actual and
prospective employees and other business affairs and methods, plans for future
developments and other information not readily available to the public, all of
which are highly confidential and proprietary and all of which will have been
developed by the Employer at great effort and expense. Employee further
acknowledges that the services to be performed by him under this Agreement are
of a special, unique, unusual, extraordinary and intellectual character, and
that the business of the Employer is contemplated to be conducted throughout the
United States and ultimately, the rest of the world. In recognition of the
foregoing, Employee covenants and agrees:
A. That he will keep secret all confidential matters of the Employer
and not disclose them to anyone outside of the Employer, either during or after
the term of this Agreement, except with the Employer's prior written consent;
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B. That he will not make use of any of such confidential matters for
his own purposes or the benefit of anyone other than the Employer; and
C. That he will deliver promptly to the Employer on termination of
this Agreement, or at any time the Employer may so request, all confidential
memoranda, notes, records, reports and other confidential documents (and all
copies thereof) relating to the business of the Employer which he may then
possess or have under this control.
9. COVENANT NOT TO SOLICIT.
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A. Employee agrees that if the Employee's employment is terminated for
any reason whatsoever, other than pursuant to a dissolution of Employer or a
material breach of the terms of this Agreement by Employer, then for a period of
one (1) year after such termination or expiration, Employee shall not (i)
solicit, directly or indirectly, business of the type conducted by the Employer
from any person, firm or entity which was a Customer or Prospective Customer of
the Employer at any time within one year preceding the termination of Employee's
employment, (ii) induce or attempt to induce any such Customer or Prospective
Customer to reduce its business with the Employer, (iii) solicit or attempt to
solicit any employees or consultants of Employer to leave the employ or
engagement of Employer, or (iv) offer or cause to be offered employment or
consultant opportunities to any person who was employed or engaged by Employer
at any time during the one year prior to the termination of Employee's
employment with Employer.
B. For purposes of this Section, the term "Customer" includes any
affiliates, customers, and clients of Employer's Customers to whom Employee has
been introduced or whom Employee has received information through Employer or
through any Customer for which Employee has performed services in any capacity
on behalf of Employer.
C. For purposes of this Section, a "Prospective Customer' shall mean
potential Customers which Employer has solicited or with which Employer has had
active discussions concerning potential business at any time during the one year
preceding the end of the Employee's employment by Employer, and with whom the
Employee shall have participated in such solicitation or discussions.
10. NON-COMPETITION.
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A. Since the services of Employee to the Employer are likely to be
unique an extraordinary and he has had and will have access to information
pertaining to the business of the Employer which may be secret and confidential,
Employee agrees that if the Employee's employment is terminated for any reason
whatsoever, other than pursuant to a dissolution of Employer or a material
breach of the terms of this Agreement by Employer, then for a period of one (1)
year after such termination or expiration, Employee will not, without express
approval in each case of the Employer, directly or indirectly, (i) own, manage,
operate, control, be employed by, participate in or be connected in any manner
with the ownership, management, operation or control of any business engaged in
the development or marketing of any products that directly compete with the
products of Employer.
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B. The Employee further acknowledges that a business competitive with
that of Employer or of any of its subsidiaries or affiliated corporations may be
carried on anywhere within the United States or in any foreign country.
Therefore, the Employee acknowledges that the unrestricted geographical
application of this Section is reasonable under the circumstances. If any of the
rights or restrictions contained or provided for herein shall be deemed to be
unenforceable by reason of the extent, duration or geographical scope, or other
provisions hereof, or any other provisions of this Agreement, the parties hereto
contemplate that the court shall reduce such extent, duration, geographical
scope or other provisions and enforce this Section in its reduced form for all
purposes in the manner contemplated hereby.
C. The Employee acknowledges that (i) in the event his employment with
Employer terminates for any reason, Employee will be able to earn a livelihood
without violating the foregoing restrictions, and (ii) Employee's ability to
earn a livelihood without violating such restrictions is a material condition of
his employment with Employer. Employer may, in writing, waive any or all of the
provisions of this Section. If the Employee is in good faith and after diligent
effort unable to obtain employment consistent with his training solely because
of the covenants set forth in this Section, and so advises Employer in writing,
then the prohibitions in this Section shall bind the Employee only so long as
Employer pays him monthly, upon demand, a sum equal to the Employee's monthly
base pay at termination, as defined below, for each month of such unemployment
during the remained of the term of covenants set forth in this Section,
including retroactive payments back to the date of unemployment.
D. The term "monthly base pay" means the Employee's monthly salary, in
all cases excluding commissions in excess of base pay, bonus or other extra
compensation or benefits, and is subject to regular deductions for taxes, social
security payments, etc. For each month of unemployment in which the Employee
claims payment, he will aggressively seek employment and will accept a
reasonable offer of employment and, upon request by Employer, will account to
Employer in detail for his efforts to obtain employment. The Employee further
agrees that Employer may make such investigations and inquiries as it shall deem
necessary or appropriate to determine whether the covenants and conditions of
this Section have been satisfied before making any payment otherwise payable to
the Employee hereunder.
11. PROPRIETARY RIGHTS.
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A. Employee shall disclose fully and promptly to Employer, and upon
Employer's instructions also to the Customer for which the Employee is then
working, any and all inventions, processes, innovations, discoveries, designs,
techniques, formula, improvements, computer programs and other technical
materials relating to business of Employer or Employer's Customer which Employee
shall discover, conceive, make, generate or reduce to practice, alone or jointly
with others, during his/her term of employment with Employer, and resulting from
such employment, whether or not they are patentable or copyrightable.
B. Employee agrees to assign to Employer his rights and interests in
any inventions, processes, innovations, discoveries and other similar materials,
including copyrights to all copyrightable material and all patent rights to all
patentable material unless specifically directed otherwise in writing by
Employer to assign it to Customer. No rights shall be reserved to Employee.
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C. Employee agrees to execute and transfer at any time, upon
Employer's request, any certification, affidavit or other document confirming
the Employer's ownership rights under this Section.
D. Upon request, at any time during or after the term of this
Agreement, and at the expense of Employer or its Customer for whom the work in
question was performed, Employee agrees to assist Employer or Customer,
including its attorneys, in preparing and prosecuting applications for patents
or copyrights relating to such inventions, processes and other materials named
in this Section. Assistance in preparing and prosecuting such applications shall
include assistance regarding litigation and upon Employer's request, the
execution of all papers and performance of all tasks that may reasonably be
necessary to protect the rights of Employer or Customer and to vest in it or its
assigns ownership of the inventions, applications, copyrights and patents herein
contemplated.
12. NON-DEFAMATION. The Employee covenants and agrees that during the
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course of his employment by the Employer and for any time thereafter, the
Employee shall not, directly or indirectly, in public or private, deprecate,
impugn or otherwise make any remarks that would tend to or be construed to tend
to defame the Employer, its employees or products or its reputation, nor shall
Employee assist any person, firm or company in doing so, except as required by
subpoena, court order or other legal process.
13. NO WAIVER. This Agreement shall not be modified or amended except by a
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further written document signed by the Employee and the Employer. No provision
hereof may be waived except by an agreement in writing signed by the waiving
party. A waiver of any term or provision shall not be construed as a waiver of
any other term provision.
14. BENEFIT. This Agreement shall bind the Employee and shall bind and
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benefit the Employer and its successors and assigns. This Agreement shall not be
assignable by the Employee.
15. HEADINGS. The headings of Sections herein are included solely for
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convenience or reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
16. ENFORCEMENT OF COVENANTS; SURVIVAL. The Employee acknowledges that his
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skills and position in the technology industry in which Employer competes or
intends to compete are unique, and, therefore, that the breach or threatened
breach by Employee of the provisions of Sections 8 - 12 shall cause irreparable
harm to Employer, which harm cannot be fully redressed by the payment of damages
to Employer. Accordingly, Employer shall be entitled, in addition to any other
right or remedy it may have, at law or in equity, to an injunction, without the
posting of any bond or other security, enjoining or restraining the Employee
from any violations or threatened violation of Sections 8 - 12, and Employee
hereby consents to the issuance of such injunction. Nothing contained herein
shall be construed as prohibiting the Employer from pursuing any other remedies
available to the Employer for breach or threatened breach, including the
recovery of additional damages from the Employee. The provisions of Sections 8 -
12 shall remain enforceable by Employer against Employee even after the
termination of this Agreement.
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17. NOTICE. Any notice required or permitted to be given under this
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Agreement shall be sufficient if in writing, and if sent by registered mail to
his residence in the case of the Employee, or to its principal office in the
case of the Employer.
18. SEVERABILITY. Each provision of this Agreement shall be considered
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severable to the extent that if any one provision or clause conflicts with
existing or future applicable law, or is not given full force and effect because
of such law, such conflict or unenforceability shall not affect any other
provision of this Agreement which, consistent with such law, shall remain in
full force and effect. All such conflicting provisions shall be modified or
reformed only to the extent required for compliance with any applicable laws.
All surviving clauses shall be construed so as to effectuate the purpose and
intent of the parties.
19. GOVERNING LAW. This Agreement shall be governed by the laws of the
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State of New York and shall be construed in accordance therewith, and any action
or proceeding arising out of or relating to this Agreement shall be heard and
determined in any state or federal court sitting in Nassau County, State of New
York, and each of the parties submits to the jurisdiction of such court.
20. RELEASE. The Employee hereby releases and discharges the Employer for
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reimbursement of any and all services, but not expenses, rendered prior to the
date hereof.
21. COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, including facsimile signatures, each of which shall be deemed an
original but all of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day first above written
SEARCHHELP, INC. EMPLOYEE
By: By:
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Xxxxxx Xxxxxx, President Xxxx Xxxxx
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SCHEDULE A
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Salary
3. Employee's salary shall be $100,000 per annum. Although the employee shall
commence employment as of the date hereof, employee's salary shall not
commence until on April 1, 2004.
4. The Employee is guaranteed employment for at least six (6) months.
SCHEDULE B
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Options
5. The Employee will be issued 150,000 stock options to purchase the Company's
common stock which are to be granted from the Company Stock Option Plan at
the exercise price equal to the mid point between the bid price and ask
price of the Company's common stock on the date of grant. The following is
the vesting schedule for the options:
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Xxxxx Xxxx # of # of Vest
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Date % Shares Days Date
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3/18/2004 25% 37,500 90 6/162004
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25% 37,500 180 9/14/2004
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50% 75,000 365 3/18/2005
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