NAM CORPORATION
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxx Xxxx 00000
August 17, 1999
Mr. Xxxxxx Xxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Re: Offer of Employment
Dear Xxxxxx:
NAM Corporation, a Delaware corporation, (the "Company"), and
its wholly-owned subsidiaries, extend to you an offer of employment on the
following terms and conditions:
1. Title and Responsibilities. (a) The Company agrees to
employ you and you agree to serve, subject to the provisions of this Agreement,
as an officer of the Company and as Executive Vice President of
xxxxxXxxxxxx.xxx, LLC, a wholly-owned subsidiary of the Company. You agree to
perform any and all duties and to assume any and all responsibilities that the
Company may assign to you from time to time. You will report to the Chief
Executive Officer or to someone that he or she designates. You further agree to
devote your full time, energy and skill to the performance of your duties to the
Company and for the benefit of the Company, and to exercise due diligence and
care in the performance of your duties to the Company. The principal location of
the performance of your duties hereunder shall be in Great Neck, New York,
provided, however, you will be required to travel on business as needed.
(b) In the course of your employment you may have
access to proprietary and confidential information and may engage in work which
would entail access to or creation of trade secret, or other valuable,
information. Accordingly, your employment is contingent upon your execution of
(i) the Non-Competition Agreement, attached hereto as Exhibit A, and by this
reference incorporated herein in its entirety, and (ii) the Non-Disclosure and
Developments Agreement, attached hereto as Exhibit B, and by this reference
incorporated herein in its entirety.
(c) You represent to the Company that the execution
and performance by you of this Agreement and your employment hereunder will not
breach or constitute a default under any other agreement to which you are a
party or by which you are bound, that you have no obligation, contractual or
otherwise, to provide services to any entity or person besides the Company or
that would conflict with your obligations to the Company under this Agreement.
2. Term of Employment. (a) The Company shall employ you for a
period commencing as of September 13, 1999 (the "Commencement Date"), and ending
on September 12, 2000 (the "Initial Employment Term"), unless terminated earlier
pursuant to paragraph 6.
(b) This Agreement will continue to govern the
employment relationship of the parties after the Initial Employment Period
expires, with such subsequent period to be referred to as the "Subsequent
Employment Period," except that, during the Subsequent Employment Period, you
will be employed on an at-will basis, and can be terminated with or without
cause, for any reason or no reason, and with or without notice. If the Company
terminates your employment during the Subsequent Employment Period, the Company
shall be liable only for the amount of any accrued but unpaid Base Salary (as
defined herein) and any business expenses otherwise due you. Paragraph 6 of this
Agreement will cease to have effect after the expiration of the Initial
Employment Period, but you will continue to be bound by the remaining provisions
of this Agreement.
3. Compensation. (a) The Company shall pay you $ 100,000 per
annum ("Base Salary"), which shall be payable in appropriate installments to
conform with the regular payroll dates for salaried personnel at the Company.
Such payments shall be subject to withholding of all taxes payable with respect
thereto and deductions for insurance contributions and the like. All increases
to the Base Salary will be at the discretion of the Board of Directors.
(b) You shall receive a signing bonus of $22,000
which shall be paid as part of the first payment of salary received by you. The
Company, in its absolute and sole discretion, may elect to pay you additional
bonuses from time to time. You must remain in the employ of the Company at the
time the bonus is paid to be eligible to receive said discretionary bonus, and
you shall not be entitled to any pro rata bonus for the time you were employed
at the Company prior to your departure.
(c) You shall receive reimbursement for the Summer
1999 tuition payment of $23,430 made to Duke University's Executive MBA program.
Such payment will be adjusted for a tax gross up, if necessary.
(d) You shall receive $400 a month toward the lease
and operation of an automobile.
(e) Upon execution of the Agreement, you shall be
granted options to purchase 75,000 shares of NAM Corporation Common Stock (the
"Options") with an exercise price equal to the closing bid price on the date of
this Agreement as reported by the NASDAQ Small Cap Market. The Options shall
vest as follows: (i) 1/3 on September 12, 2000, (ii) 1/3 on September 12, 2001,
and (iii) 1/3 on September 12, 2002, as long as you are employed by the Company
on each date pursuant to this Agreement. If you are not employed by the Company
on such dates, then you will have no rights or interests to the non-vested
portions of the Options. The Options shall be for 8 years from the date hereof
and shall be subject to the terms and conditions of the Company's 1996 Stock
Option Plan and memorialized in a stock option grant certificate to be issued by
the Company. You shall be eligible to receive additional options under the plan
at the absolute and sole discretion of the Board of Directors or such other
entity charged with the administration and discretion over such plan, subject to
all of the terms and conditions of the then-existing stock option plan including
the Company's right to amend, modify or terminate said plan.
4. Benefits/Vacation. You are entitled to participate in any
vacation and benefit programs adopted from time to time by the Company for the
benefit of its employees commensurate with your position, subject to the
Company's right to amend, modify or terminate any such benefit programs. In the
event that you do not use your vacation, or any portion thereof, the vacation
days may not accumulate from year to year and you are not entitled to payment
for unused vacation days at the end of each year or upon termination.
5. Business Expenses. The Company will reimburse you for any
and all necessary, customary and usual expenses, properly receipted in
accordance with the Company policies, incurred by you in performing your duties
hereunder.
6. Termination. During the Initial Employment Term:
(a) The Company may terminate you "for cause," as
defined herein, in which case you will be entitled only to the payment of any
earned but unpaid Base Salary and any business expenses otherwise due you, and
timely presented, and all other benefits shall cease immediately upon the
termination of your employment (except as required by law, including COBRA). For
the purposes of this Agreement, "cause" shall mean the occurrence of any of the
following:
(i) Willful or negligent misconduct which is
injurious to the interest, business or reputation of the Company;
(ii) Indictment for the commission of a
felony;
(iii) Failure to follow a reasonable
instruction of the Board of Directors or any other officer senior to you;
(iv) Willful breach of any material term of
this Agreement, provided that, if the grounds constituting cause in this
subsection are curable, the Company has given you 5 days' notice and you have
not reasonably cured the alleged grounds for cause within such 5 day period.
(v) Mental or physical incapacity to perform
your duties, with or without reasonable accommodation, under this Agreement for
a period of ninety (90) days in any one-hundred and twenty (120) days period,
provided that the Company provide you with ten (10) days notice;
(vi) Your death during the term of this
Agreement.
(b) Notwithstanding anything herein contained, during
the Initial Employment Term, the Employee may be terminated "without cause" upon
ten (10) days notice. In the event your employment with the Company is
terminated by the Company "without cause" during the Initial Employment Term,
the Company agrees to provide, and you agree to accept, as the sole and
exclusive remedy for the termination without cause of your employment, the
following severance benefits and arrangements: you shall receive the Base
Salary, at the rate applicable as of the notice of the termination of your
employment, from the date of receipt of notice for a period of two (2) weeks
(the "Severance"). In exchange for your execution of a General Release and
Agreement substantially in the form attached hereto as Exhibit C, the Company
will provide you with an additional severance of one (1) month's Base Salary, at
the rate applicable as of the notice of the termination of your employment, or
your Base Salary through the remainder of the Initial Employment Term, whichever
is greater, (the "Additional Severance"), payable in appropriate installments to
conform with the regular payroll dates for salaried personnel at the Company.
Such payments shall be subject to withholding of all taxes payable with respect
thereto and deductions for insurance contributions and the like. You must notify
the Company in the event that you become employed (including self-employment)
while receiving severance payments hereunder, and any further severance payments
will be offset on a dollar for dollar basis by the amount of salary and other
compensation that you receive from such other employment. You are not entitled
to any Severance if you are terminated, with or without cause, during the
Subsequent Employment Period.
(c) You understand and agree that no change in your
title, position, reporting relationship or responsibilities shall be deemed a
termination of employment within the meaning of this paragraph 6(b). You further
understand and agree that, in the event you receive the Severance under this
paragraph 6(b), you shall not be entitled to any other compensation or benefits
under this Agreement and no such compensation or benefits shall accrue during
the period in which you receive said Severance or for any period thereafter. You
further understand and agree that, as a condition to receiving said Severance
benefits, you are required to execute a General Release and Agreement, to make
no other claim against the Company, and its subsidiaries, and their respective
officers, directors, employees, or agents, and to comply with the provisions of
paragraph 7 hereof and the Non-Disclosure and Developments Agreement and the
Non-Competition Agreement.
7. Obligations Upon Termination. Upon the termination of your
employment for any reason or no reason, whether in the Initial Employment Period
or the Subsequent Employment Period, you agree to the following:
(a) You will continue to abide by the provisions of
the Non-Disclosure and Developments Agreement and the Non-Competition Agreement;
(b) You will not make any public announcement
concerning your departure prior to your termination date without the consent of
the Company;
(c) You will not make any statements or comments of a
defamatory or disparaging nature to a third party regarding the Company, its
officers, directors and employees and the business of the Company. This
subparagraph shall not preclude you from providing truthful testimony or
information pursuant to a lawful subpoena or where otherwise required by law.
8. Resignation. If you voluntarily resign from the Company
during the Initial Employment Period, you will not be entitled to any Severance
and the Company shall be liable to you only for the amount of Base Salary owed
through your resignation date. In such event, you will be required to repay the
Company for the entire amount of tuition reimbursed pursuant to paragraph 3(c)
within three (3) months of the termination date
9. Arbitration. (a) Any dispute or controversy between the
Company and Employee relating to the Agreement (except any dispute relating to
the Non-Competition Agreement and the Non-Disclosure and Developments Agreement)
or relating to or arising out of Employee's employment with the Company,
including but not limited to any claims of discrimination prohibited by federal,
state or local law or regulation and specifically the Age Discrimination in
Employment Act of 1967, as amended, and the Older Worker Benefits Protection
Act, shall be settled by binding arbitration before a single arbitrator in New
York, New York pursuant to the then-existing arbitration rules of NAM
Corporation. Each party shall bear its own, costs, expenses and fees, including,
without limitation, attorney's fees and expert's fees with respect to any such
arbitration; except that the arbitrator may in its sole discretion award such
fees, costs and expenses to the prevailing party solely where expressly provided
by law. Judgment upon any resulting arbitration award may be entered in any
court of competent jurisdiction and shall be binding upon the parties hereto.
The parties consent to service of any papers in the arbitration in the manner
provided in paragraph 18, or as otherwise permitted by the then-existing
arbitration rules.
(b) The Company shall not be required to arbitrate
any dispute arising between it and Employee relating to the Non-Disclosure and
Developments Agreement and the Non-Competition Agreement, but shall have the
right to institute judicial proceedings in a court of competent jurisdiction
with respect to such claim or dispute. Employee hereby irrevocably consents to,
and waives any objection to, the personal jurisdiction and venue of the courts
of the State of New York (including the United States District Court for the
Southern or Eastern Districts of New York) in any proceedings relating to the
Non-Disclosure and Developments Agreement and the Non-Competition Agreement.
Employee hereby waives any claim that the aforesaid courts lack personal
jurisdiction or constitutes an inconvenient forum or an improper venue. Employee
further agrees not to interpose any defense that the Company has an adequate
remedy at law or that the Company has not suffered an irreparable injury. If
such judicial proceedings are instituted, the parties agree that such
proceedings shall not be stayed pending the outcome of any arbitration
hereunder. The parties agree that service of process may be effected in the
manner provided in paragraph 18, or as otherwise provided by law.
10. Survival. You understand and agree that the covenants set
forth in Exhibits A and B and paragraphs 6(b), (c) and 7 hereof shall survive
the termination of your employment or the expiration of this Agreement, and
shall remain in full force and effect for the periods set forth herein.
11. Entire Agreement. This offer letter terminates and
supersedes any and all prior agreements and understandings between you and the
Company (written, oral, or otherwise) with respect to employment or with respect
to your compensation by the Company. You acknowledge that no other
representations, oral or written, have been made regarding the subject matter
hereof, other than those explicitly provided herein and in the Exhibits A, B, C
and D attached hereto. You further acknowledge that you have not relied on any
oral or written representations not explicitly contained herein in executing
this offer letter.
12. Assignment. (a) Your employment by the Company is personal
in its nature and neither of the parties hereto shall, without the consent of
the other, assign or transfer this Agreement or any rights or obligations
hereunder; provided that, in the event of a merger or consolidation of the
Company with any other entity, the Company may elect to assign this Agreement,
without your consent, and all of its rights and obligations hereunder to the
acquiring or surviving corporation and this Agreement shall, subject to the
provisions hereof, be binding upon and inure to the benefit of such successor
and such successor shall discharge and perform all the promises, covenants,
duties and obligations of the Company hereunder.
(b) This Agreement shall be binding upon and inure to
the benefit of the parties hereto, the successors and assigns of the Company and
your heirs, executors, administrators and assigns.
13. Governing Law. This Agreement shall be governed in all
respects, whether as to validity, construction, capacity, performance, or
otherwise, by the laws of the State of New York, excluding only its conflicts of
laws principles.
14. Amendments and Modifications. This Agreement may be
modified only in writing executed by the parties hereto, except that the Company
reserves the right in its sole and absolute discretion to make changes at any
time to the other documents, plans or programs referenced in this Agreement.
15. Severability. In the event that any portion of this offer
letter is in violation of any statute or public policy, then only the portions
of this offer letter which violate such statute or public policy shall be
stricken and all other portions of this offer letter shall continue in full
force and effect.
16. Headings. Headings of particular paragraphs of this
Agreement are inserted for convenience only and are in no way to be construed as
part of this Agreement or a limitation of the scope of the particular paragraph
to which the headings refer.
17. Anti-Harassment and Anti-Discrimination Policy. You
acknowledge receipt of, and agree to be bound by, the Company's anti-harassment
and anti-discrimination policy, attached hereto as Exhibit D, and by this
reference incorporated herein in its entirety.
18. Notices: All notices, requests, demands or other
communications hereunder must be in writing and shall be deemed to have been
duly given if delivered by hand, mailed within the continental United States by
certified or registered mail, postage prepaid, return receipt requested,
addressed to the party to whom the notice is directed at the "Notice Address" of
such party, or by a reputable overnight courier such as Federal Express, all
charges prepaid and addressed to the party to whom the notice is addressed at
the Notice Address of the party. The Notice Address of each party is:
If to Xxxxxx Xxxx: Xxxxxx Xxxx
to be determined
If to the Company: NAM Corporation
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxxxx-Xxxxxxx
with a copy to: Xxxxx Xxxxxxxxx & Xxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-4315
Attention: Xxxxxx X. Xxxxxx, Esq.
The addresses to which notices and demands shall be delivered
or sent may be changed from time to time by notice served, as hereinbefore
provided, by either party upon the other party. Unless otherwise provided for
herein, notice shall be deemed to have been given at the earlier of the date
received or the date that receipt is refused, as evidenced by the records of the
United States Postal Service or the overnight courier.
19. Waiver: Any waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right to insist upon strict adherence to that term
or any other term of this Agreement. Any waiver must be in writing.
20. Acknowledgment. You acknowledge that you have read this
Agreement in its entirety, including all the exhibits hereto, fully understand
the terms of the Agreement and its exhibits and are signing the Agreement
voluntarily and with full knowledge of its significance. You further acknowledge
that you have had the opportunity to consult with an attorney, if you so chose,
prior to executing this Agreement.
If the foregoing is agreeable to you, please sign both copies
of this offer letter, and the attached exhibits. Please return one copy to my
attention and retain the other copy for your records.
Very truly yours,
NAM CORPORATION
By:/s/ Xxx Xxxxxx
-----------------------------------------
Name: Xxx Xxxxxx
Title: Chief Executive Officer and President
AGREED TO AND ACCEPTED as of the date first written above:
/s/Xxxxxx Xxxx
----------------------
XXXXXX XXXX
EXHIBIT A
NON-COMPETITION AGREEMENT
In consideration and as a condition of my employment or continued
employment by NAM Corporation, a Delaware corporation, and/or its wholly-owned
subsidiaries (collectively, the "Company"), I hereby agree with the Company as
follows:
1. The term of this Non-Competition Agreement shall be for a period
commencing on the date of my initial employment on behalf of the Company, and
ending twelve (12) months following the date on which my employment with the
Company terminates for any reason, whether voluntarily or involuntarily.
2. During the period of my employment with the Company and during the
term hereof, I will not, without the Company's prior written consent, directly
or indirectly, alone or as a partner, joint venturer, officer, director,
employee, consultant, agent, independent contractor or stockholder of any
company or business, engage in or provide services to any business or entity
which is in the business of developing, marketing, distributing, maintaining or
providing products or services relating to the arbitration and/or mediation of
disputes, anywhere in the continental United States. You acknowledge that the
geographical limitation used herein is reasonable and necessary because the
Company provides its services and products on a nationwide basis. The ownership
by me of not more than three percent (3%) of the shares of stock of any
corporation having a class of equity securities actively traded on a national
securities exchange or on the NASDAQ Stock Market shall not be deemed, in and of
itself, to violate the prohibitions of this paragraph.
3. During the term hereof, I will not, without the Company's prior
written consent, directly or indirectly, employ, or knowingly permit, to the
extent possible any other company or business organization which employs me or
is directly or indirectly controlled by me, to offer to employ any person who is
employed by the Company at any time during the term hereof, or in any manner
seek to induce any such person to leave his or her employment with the Company.
4. During the term hereof, I will not, without the Company's prior
written consent, solicit or do business with, directly or indirectly, any
present or past customer of the Company, or any prospective customer of the
Company with whom I have had contact during my employment with the Company in
connection with any business activity, or prospective business activity, of the
Company's.
5. I hereby represent that, except as attached hereto or as I have
disclosed in writing to the Company, I am not a party to, or bound by the terms
of, any agreement with any previous employer or other party to refrain from
using or disclosing any trade secret or confidential or proprietary information
in the course of my employment with the Company or to refrain from competing,
directly or indirectly, with the business of such previous employer or any other
party. I further represent that my performance of all the terms of this
Agreement, and as an employee of the Company, does not and will not breach any
agreement to keep in confidence proprietary information, knowledge or data
acquired by me in confidence or in trust prior to my employment with the
Company, and I will not disclose to the Company or induce the Company to use any
confidential or proprietary information or material belonging to any previous
employer, or others.
6. I agree that my skills and position are unique and, therefore, that
the breach, or threatened breach, of this Agreement by me will cause irreparable
harm to the Company, which harm cannot be fully redressed by the payment of
damages to the Company. Accordingly, in the event of such breach, or threatened
breach, the Company shall be entitled, and you consent to the Company having, in
addition to any other right or remedy it might have, at law or in equity, to
such equitable and injunctive relief as may be available to restrain you and any
firm, partnership, individual, corporation, entity or other business
organization participating in such breach or threatened breach from the
violation of the provisions hereof, including a temporary restraining order,
permanent or preliminary injunction, specific performance or other equitable
relief, without the posting of a bond or other security, enjoining or
restraining you from any such violation or threatened violation of this
Agreement.
7. I understand that this Agreement does not create an obligation on
the Company or any other person or entity to continue my employment, and that my
employment remains as stated in the Agreement.
8. Any amendment to or modification of this Agreement, and any waiver
of any provision hereof, shall be in writing, executed by both parties. Any
waiver by the Company of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach hereof.
9. I hereby agree that each provision herein shall be treated as a
separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad as to scope, activity, or subject so
as to be unenforceable at law, such provision or provisions shall be construed
by the appropriate judicial body by limiting and reducing it or them, so as to
be enforceable to the maximum extent compatible with the applicable law as it
shall then appear.
10. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, excluding only its conflicts of laws
principles.
11. The term "Company" shall include NAM Corporation and any of its
subsidiaries, subdivisions or affiliates. The Company shall have the right to
assign this Agreement to its successors and assigns, and all covenants and
agreements hereunder shall inure to the benefit of and be enforceable by said
successors or assigns.
12. The provisions of this Agreement will not be deemed to have been
violated in the event I participate in, or become an employee of, any affiliate
of the Company. The provisions of this Agreement will not be deemed to have been
violated as a result of any actions taken by me within the authorized scope of
my involvement with any such affiliate.
IN WITNESS WHEREOF, the undersigned has executed this Non-Competition
Agreement as of August 18, 1999.
/s/ Xxxxxx Xxxx
------------------------
XXXXXX XXXX
EXHIBIT B
NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT
In consideration and as a condition of my employment or continued
employment by NAM Corporation and/or its wholly-owned subsidiaries (the
"Company"), I hereby agree with the Company as follows:
1. I will not at any time, whether during or after the termination of
my employment, reveal to any person or entity any of the trade secrets or
confidential information concerning the organization, business or finances of
the Company which the Company considers to be proprietary and is able to be
protected as a trade secret or confidential information under applicable law, or
of any third party which the Company is under an obligation to keep confidential
(including, but not limited to, trade secrets or confidential information
respecting inventions, products, designs, methods, know-how, techniques,
systems, processes, software programs, application codes, works of authorship,
formulas, algorithms, customer lists, projects, plans and proposals), except as
may be required in the ordinary course of performing my duties as an employee of
the Company, and I shall keep secret all matters entrusted to me and shall not
use or attempt to use any such information in any manner which may injure or
cause loss or may be calculated to injure or cause loss whether directly or
indirectly to the Company or any third party. The foregoing will not be deemed
to prevent my disclosure of information regarding the Company to the extent such
disclosure is required by law or legal process. In the event I reasonably
determine I have a legal obligation to disclose any information regarding the
Company, I agree to immediately notify the Company in writing, and in any event
notify the Company prior to making any such disclosure. I further agree to
cooperate with the Company, at the Company's request and expense, to seek a
protective order or other arrangement protecting the confidentiality of any
information so disclosed.
Further, I agree that during my employment I shall not make, use or
permit to be used any notes, memoranda, reports, lists, records, drawings,
sketches, specifications, software programs, data, documentation or other
materials of any nature relating to any matter within the scope of the
immediately preceding paragraph otherwise than for the benefit of the Company. I
further agree that I shall not, after the termination of my employment, use or
permit to be used any such notes, memoranda, reports, lists, records, drawings,
sketches, specifications, software programs, data, documentation or other
materials, it being agreed that all of the foregoing shall be and remain the
sole and exclusive property of the Company and that immediately upon the
termination of my employment I shall deliver all of the foregoing, and all
copies thereof, to the Company, at its main office.
2. If at any time or times during my employment, I shall (either alone
or with others) make, conceive, create, discover, invent or reduce to practice
any invention, modification, discovery, design, development, improvement,
process, software program, application code, work of authorship, documentation,
formula, algorithm, data, technique, know-how, trade secret or intellectual
property right whatsoever or any interest therein (whether or not patentable or
registrable under copyright, trademark or similar statutes (including but not
limited to the Semiconductor Chip Protection Act) or subject to analogous
protection) (herein called "Developments") that (a) relates to the business of
the Company or any customer of or supplier to the Company or any of the products
or services being developed, manufactured or sold by the Company or (b) results
from tasks assigned me by the Company, such Developments and the benefits
thereof are and shall immediately become the sole and exclusive property of the
Company and its assigns, as works made for hire or otherwise, and I shall
promptly disclose to the Company (or any persons designated by it) each such
Development and, as may be necessary to ensure the Company's ownership of such
Developments, I hereby assign any rights (including, but not limited to, any
copyrights and trademarks) I may have or acquire in the Developments and
benefits and/or rights resulting therefrom to the Company and its assigns
without further compensation and shall communicate, without cost or delay, and
without disclosing to others the same, all available information relating
thereto (with all necessary plans and models) to the Company.
I understand and am hereby notified that local law may, if applicable,
limit or render inapplicable the preceding provisions in situations where the
Company is not permitted to require that rights be assigned to it.
I will, during my employment and at any time thereafter, at the request
and cost of the Company, promptly sign, execute, make and do all such deeds,
documents, acts and things as the Company and its duly authorized agents may
reasonably require:
(a) to apply for, obtain, register and vest in the name of the Company
alone (unless the Company otherwise directs) letters patent,
copyrights, trademarks or other analogous protection relating to a
Development in any country throughout the world and when so obtained or
vested to renew and restore the same; and
(b) to defend any judicial, opposition or other proceedings in respect
of such applications and any judicial, opposition or other proceedings
or petitions or applications for revocation of such letters patent,
copyright, trademark or other analogous protection.
In the event the Company is unable, after reasonable effort, to secure
my signature on any application for letters patent, copyright or trademark
registration or other documents regarding any legal protection relating to a
Development, whether because of my physical or mental incapacity or for any
other reason whatsoever, I hereby irrevocably designate and appoint the Company
and its duly authorized officers and agents as my agent and attorney-in-fact, to
act for and on my behalf and stead to execute and file any such application or
applications or other documents and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or trademark
registrations or any other legal protection thereon with the same legal force
and effect as if executed by me.
3. I agree that any breach of this Agreement by me may cause
irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of my obligations hereunder.
4. I understand that this Agreement does not create an obligation on
the Company or any other person or entity to continue my employment.
5. I represent that the Developments identified in the pages, if any,
attached hereto comprise all the unpatented and unregistered copyrightable
Developments which I have made, conceived or created prior to my employment by
the Company, which Developments are excluded from this Agreement. I understand
that it is only necessary to list the title and purpose of such Developments but
not details thereof.
I further represent that my performance of all of the terms of this
Agreement and as an employee of the Company does not and will not breach any
agreement that I may have entered into with any other employer, business or
entity to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree that I will not enter into, any agreement either written or
oral in conflict herewith.
6. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of such provision or any other provision hereof.
7. I hereby agree that each provision herein shall be treated as a
separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad as to scope, activity, subject or
otherwise so as to be unenforceable at law, such provision or provisions shall
be construed by the appropriate judicial body by limiting or reducing it or
them, so as to be enforceable to the maximum extent compatible with the
applicable law as it shall then appear.
8. My obligations under this Agreement shall survive the termination of
my employment regardless of the manner of such termination and shall be binding
upon my heirs, executors, administrators and legal representatives.
9. The term "Company" means NAM Corporation and shall also mean and
include any of its subsidiaries, subdivisions or affiliates. The Company shall
have the right to assign this Agreement to its successors and assigns, and all
covenants and agreements hereunder shall inure to the benefit of and be
enforceable by said successors or assigns.
10. I understand that provisions of this Agreement will not be deemed
to have been violated in the event I participate in, or become an employee of,
any affiliate of the Company and I am reasonably required in connection with my
involvement with such affiliate to use or disclose trade secrets or confidential
information of the Company protected under this Agreement.
11. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, excluding only its conflicts of laws
principles, that would defer to the substantive laws of another jurisdiction.
IN WITNESS WHEREOF, the undersigned has executed this Non-Disclosure
and Developments Agreement as of August 18, 1999.
/s/ Xxxxxx Xxxx
-----------------------------
XXXXXX XXXX
EXHIBIT C
GENERAL RELEASE AND AGREEMENT
This General Release and Agreement (the "Agreement") is entered into by
and between Xxxxxx Xxxx ("Employee") and NAM Corporation, (the "Company"), dated
as of _________________. This Agreement is intended to set forth the parties'
agreement with respect to (i) the termination of the Employee's employment at
the Company, and (ii) the Employee's release of the Company, its subsidiaries,
and their respective officers, directors, employees, and agents (all of the
foregoing collectively known as the "Releasees"). The Agreement only applies to
a termination "without cause" prior to September __, 2000 (defined in the
Employee's employment agreement as the "Initial Employment Term").
NOW THEREFORE, in consideration of the mutual promises and covenants
herein contained, it is hereby agreed as follows:
1. Employee shall cease to be an employee of the Company as of
____________ (the "Termination Date") and shall be paid Employee's salary
through the Termination Date.
(a) In consideration of the Employee's acceptance of this
Agreement, the Company agrees to pay you six (6) weeks' Base Salary, at the rate
applicable as of the notice of the termination of your employment, or your Base
Salary through September __, 2000, whichever is greater, as severance, less
applicable taxes required to be withheld and any authorized deductions, to be
paid in appropriate installments to conform with the regular payroll dates for
salaried personnel at the Company. Said payments shall commence on the first
payroll date after the eighth (8th) day following the execution of this
Agreement by the Employee. Employee acknowledges that this constitutes good and
valuable consideration for the release contained in the General Release and
Agreement.
(b) Except as otherwise specifically set forth in this
Agreement, Employee is not entitled to any further compensation or any monies
from the Company or any of its affiliates or to receive any of the benefits made
available to Employee during his employment with the Company. You acknowledge
that you are not entitled to any severance pay, unused vacation time, or any
other form of compensation or benefits, and that you have no rights or benefits
pursuant to any stock option plan maintained by or on behalf of the Company.
Employee also acknowledges that no other compensation, benefits or options shall
vest or accrue after the Termination Date, regardless of the method of payment
of severance.
(c) Regardless of whether Employee executes this Agreement,
Employee is entitled to exercise his rights under COBRA to continue to
participate in the Company's group medical benefits plan, provided that Employee
pays the applicable rates for such coverage in accordance with COBRA.
(d) Employee acknowledges that he has received all of his
possessions and effects, whether personal or business-related, that he stored at
the Company.
2. (a) As used in subparagraphs (b) through (e) below, the term
"Claims" shall include any and all claims, covenants, warranties, promises,
undertakings, actions, suits, causes of action, obligations, debts, accounts,
judgments, damages, losses and liabilities, of whatsoever kind or nature, in
law, equity or otherwise.
(b) For and in consideration of good and valuable
consideration, receipt of which is hereby acknowledged, Employee, for and on
behalf of himself and his heirs, administrators, executors and assigns,
effective the date hereof, do fully and forever, release, remise and discharge
each of the Releasees of and from any and all Claims which he had, may have had,
or now has against any of the Releasees, for or by reason of any matter, cause
or thing whatsoever.
(c) Employee hereby releases and discharges each of the
Releasees from any Claim as of the date hereof arising out of or attributable to
Employee's employment or the termination of his employment with the Company,
including, but not limited to, claims of breach of contract, wrongful
termination, unjust dismissal, defamation, libel and slander and under any
federal, state or local law dealing with discrimination, harassment or
retaliation based on age, race, sex, national origin, handicap, religion, sexual
preference or disability. Employee also specifically releases and discharges
each of the Releasees from all claims Employee now has, or may have had, under
[if applicable, the Age Discrimination in Employment Act, as amended,] Title VII
of the Civil Rights Act of 1964, as amended, the Americans with Disabilities
Act, and the Rehabilitation Act of 1978, 42 U.S.C. xx.xx. 1981, 1983, 1985, the
Family Medical Leave Act, the Equal Pay Act, the New York Human Rights Law (N.Y.
Executive Law ss. 292 et seq.), the New York City Administrative Code (N.Y.C.
Admin. Code xx.xx. 8-107 and 8-502), the New York Labor Law, and any other
federal, state or local law, regulation or executive order which prohibits
discrimination on the basis of age, race, sex, national origin, religion, sexual
preference or disability.
(d) Employee further agrees that he will not file or institute
any civil actions, arbitration demands, complaints, charges or other proceedings
of any nature or description against the Company or any Releasee before any
judicial, administrative or other forum based upon or arising out of any Claims,
whether asserted or unasserted, that you may have against the Company or any
Releasee as of the date hereof. In the event Employee breaches this clause,
Employee shall forfeit the right to all consideration which may have been agreed
to solely because of this Agreement and agree to repay same to the Company. The
Company may also present this Agreement as a complete defense to any such
action, demand, complaint, charge or proceeding brought by Employee. Employee
agrees that in the event he breaches this paragraph, he will return all
consideration paid pursuant to this Agreement and to be responsible for paying
all legal fees and costs incurred by the Releasees, or any of them, in defending
such action, regardless of whether such action is successful.
3 Employee further agrees that he shall, upon reasonable notice, and
upon reimbursement for reasonable expenses (including attorneys' fees), fully
cooperate with the Releasees, or any of them (including testifying and appearing
for depositions and trial preparation) regarding any dispute, claim litigation,
or inquiry, investigation or proceeding by any governmental agency or otherwise,
concerning any matter with which he was involved while working for the Releasees
or any of them.
4 Employee acknowledges that he continues to be bound by the terms and
conditions of the Company's Non-Competition and Non-Disclosure and Developments
Agreements. Employee also agrees that all confidential and proprietary
information which he now possesses relating to the business of the Company or of
any employee, customer, or supplier of the Company shall not be published,
knowingly disclosed, or knowingly made accessible by you to any other person,
firm, or corporation during your employment or any time thereafter without the
prior written consent of the Company. Employee shall return all such
confidential and proprietary information, no matter how recorded or stored,
including computer files, disks, and data storage of every description to the
Company prior to or at the termination of his employment. Any failure to comply
with this paragraph shall relieve the Company and the Releasees of any of its
obligations pursuant to this Agreement, in addition to any other remedies it may
have at law or in equity.
5 Employee further agrees to keep this Agreement and the substance
hereof strictly confidential and not to divulge it to any other person (other
than your immediate family, counsel and/or financial advisor or to any necessary
taxing authorities) or entity, unless the Company makes the Agreement public or
if disclosure is required by judicial process. This Agreement may not be
referred to or introduced as evidence in any proceeding, other than a proceeding
to enforce this Agreement. It shall not be a violation of this provision for
Employee to state that Employee cannot discuss the matter, that the matter "has
been resolved" or that the matter has been "settled."
6 Employee agrees that he will not now or at any time in the future
make any disparaging statements relating to the Releasees, the business or
clients of the Releasees, the actions of the Releasees, or in any other manner.
7 Employee acknowledges that damages and remedies at law for any breach
of paragraph 4 of this Agreement will be inadequate and that the Company shall
be entitled to specific performance and other equitable remedies (including
injunctive relief) and such other relief as a court or tribunal may deem
appropriate in addition to any other remedies the Company may have, without the
requirement of posting a bond or other security. Employee consents to the
personal jurisdiction of the courts of the State of New York (including the
United States District Courts for the Southern or Eastern District of New York)
in any proceedings for injunctive relief. Employee further agrees not to
interpose any objection or defense based on lack of personal jurisdiction or
improper venue in any such proceeding or interpose any defense that the Company
has an adequate remedy at law or that the injury suffered by the Company is not
irreparable.
8 Employee agrees and represents that he has returned to the Company
all Company property in Employee's possession or control including, but not
limited to, any keys, files, security access codes, any and all documents
relating or referring to the actions and business of the Company, and other
materials described in paragraph 4 above. Employee further agrees and
acknowledges that this Agreement is conditioned upon the return to the Company
of all Company property in Employee's possession or control including, but not
limited to, any keys, files, security access codes, any and all documents
relating or referring to the actions and business of the Company, and other
materials described in paragraph 4 above.
9 This Agreement shall be binding upon and inure to the benefit of the
parties hereto, the successors and assigns of the Releasees and Employee's
heirs, executors, administrators and assigns.
10 This Agreement sets forth the entire understanding of the parties
with respect to the subject matter hereof, supersedes any and all prior
employment and/or compensation agreements between Employee and the Company or
any of the Releasees, and any such prior agreements are merged herein and
succeeded hereby except as specifically set forth in this Agreement. Employee
acknowledges that no representations, oral or written, other than those
expressly contained herein have been made to Employee regarding the subject
matter hereof, and that Employee has not relied on any oral or written
representations other than those expressly contained herein in executing this
Agreement.
11 This Agreement may be modified only by a written instrument duly
executed by each party, and no handwritten changes to this Release Agreement are
binding unless duly initialed by each party.
12 The parties hereto participated jointly in the negotiation and
preparation of this Agreement and, accordingly, no rule of construction shall
apply against any one party in favor of another party.
13 Nothing contained herein shall be construed as an admission by any
party of fault or liability with respect to the other party or as an admission
by any party of any allegation made by the other party with respect to
Employee's employment, and the termination thereof.
14 Any and all disputes arising from, or in connection with this
Agreement, including its meaning, applicability, interpretation, performance or
breach, shall be settled by arbitration pursuant to the rules of NAM
Corporation. This paragraph notwithstanding, the provisions of paragraph 4 may
be enforced by judicial action for injunctive relief as provided in paragraph 7
hereof. In any such arbitration proceeding, each side shall be responsible for
its own attorneys' fees and costs, with other costs to be borne equally by the
parties. Judgment upon any resulting arbitration award may be entered in any
court of competent jurisdiction and shall be binding upon the parties hereto.
15 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflicts of laws
provisions, except insofar as the Federal Arbitration Act applies.
16 The invalidity or unenforceability of any particular provision or
provisions of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions had been omitted.
17 This Agreement may be executed in counterparts, each of which shall
be an original, and all of which shall constitute one agreement; only one
counterpart need be produced in making proof of the same.
18 Employee acknowledges that he has read this Agreement in its
entirety, fully understand its terms and are signing it voluntarily and of his
own free will with full knowledge of its significance. Employee further
acknowledges that (i) he has been informed that he should consult with an
attorney; and (ii) has had the opportunity to consult with an attorney, if he so
chose, prior to executing this Agreement.
NAM CORPORATION
By: _________________________
Name: _______________________
Title: ______________________
AGREED TO AND ACCEPTED:
_____________________________
XXXXXX XXXX
Date:________________________
STATE OF NEW YORK
COUNTY OF ___________
On the day of _______________, before me personally came
XXXXXX XXXX, to me known, and known to me to be the individual described herein,
and who executed the foregoing General Release and Agreement, and duly
acknowledged to me that he executed the same.
____________________
Notary Public
EXHIBIT D
ANTI-HARASSMENT AND
ANTI-DISCRIMINATION POLICY
POLICY STATEMENT:
NAM Corporation, and its wholly-owned subsidiaries (including but not
limited to xxxxxXxxxxxx.xxx, Inc.), (collectively the "Company") are committed
to providing a work environment that is free of physical or verbal harassment
and discrimination and therefore, the Company maintains a strict policy
prohibiting such harassment and discrimination.
The Company will not tolerate or condone any form of harassment by
employees, co-workers, supervisors, or by someone not directly connected to the
Company (e.g., outside vendors, consultants or clients), and is prepared to take
prompt, corrective action, up to and including termination of the harasser. The
Company will not retaliate and also will not tolerate or condone any retaliatory
action based upon such harassment or discrimination. Such harassment,
discrimination and retaliation is also unlawful. Persons contributing to a
harassing or discriminatory environment may be held personally liable.
It is the responsibility of all employees to insure that these
prohibited activities do not occur, and if they do occur, to report these
activities immediately to the appropriate person for prompt investigation and
resolution regardless of whether anyone complains.
DEFINITION:
Harassment or discrimination under this policy may consist of ethnic or
racial slurs and other verbal or physical conduct relating to a person's race,
color, sex, religion, national origin, age, physical or mental disability,
sexual orientation, marital status or any other category protected under any
applicable federal, state or local law or regulation which unreasonably
interferes with a person's work performance or otherwise creates an
intimidating, hostile or offensive work environment. A person's race, color,
sex, religion, national origin, age, disability, sexual orientation, marital
status or any other protected categories also cannot be used as the basis for
employment decisions or work assignments (except pursuant to any affirmative
action plan adopted or implemented by the Company).
Sexual harassment under this policy may consist of (i) unwelcome sexual
advances, requests for sexual favors, the display of derogatory jokes, posters,
cartoons or drawings, or other physical or verbal conduct of a sexual nature or
(ii) similar conduct based upon one's gender or perceived gender
characteristics. Sexual harassment can occur between persons of opposite sex, as
well as between persons of the same sex (e.g., male-on-male or female-on-female
harassment will violate the Company's policy). Sexual harassment exists when:
(a) submission to such conduct is made an explicit or implicit term or
condition of an individual's employment (including hiring, compensation or
benefits, promotion or retention);
(b) submission to or rejection of such conduct by an individual is used
as the basis for employment decisions affecting such individual; or
(c) such conduct has the purpose or effect of unreasonably interfering
with an individual's work performance or creating an intimidating, hostile or
offensive working environment.
A violation of the Company's policy can occur as a result of a single
incident or a pattern of behavior by which the purpose or effect is to create a
hostile, offensive or intimidating work environment. A violation of the policy
can occur in the office or outside the office at work-related events, such as
business meetings, business trips or business-related social events.
The Company's anti-harassment and anti-discrimination policy may not be
used as a basis for excluding or separating individuals of a particular gender,
race, or any other protected category, from participating in business or
work-related social activities or discussions in order to avoid allegations of
harassment or discrimination. The law and the Company's policies prohibit
disparate treatment on the basis of any protected category, with regard to
terms, conditions, and privileges of employment. The Company's anti-harassment
and anti-discrimination policy is intended to complement and further these
policies, not to form the basis of an exception to them.
PROCEDURE:
Employees, including applicants for employment, who in good faith
believe they have been subjected to, witnessed or heard about harassment,
discrimination or retaliation prohibited by this policy are strongly encouraged
to report any occurrence(s) to either:
o Xxxxxxxx Xxxxxxxx-Xxxxxxx, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxx,
Xxx Xxxx, 516-829-4343 ext. 143; or
o Xxxx Xxxxxx, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxx Xxxx 00000,
516-829-4343 ext. 164
If the harassment involves either of the above persons, then the employee may go
to any supervisor to report the harassment.
It is the responsibility of all employees to insure that these
prohibited activities do not occur, and if they do occur, to report these
activities to the appropriate person for prompt investigation and resolution.
The Company strongly encourages the prompt reporting of complaints or concerns
regarding this policy. Early reporting and intervention is the most effective
method of resolving actual or perceived incidents of harassment.
All complaints or reports of harassment, discrimination or retaliation
will be taken seriously and will be investigated in a lawful, prompt and
impartial manner. Any investigation will be conducted in as confidential a
manner as is compatible with a thorough investigation of the complaint. Although
confidentiality cannot be guaranteed, all investigations will be designed to
protect the privacy and reputation of all individuals concerned and information
will be shared only on a need-to-know basis.
All employees must cooperate fully with any investigative procedure.
Any employee who fails to address properly violations of this policy or
otherwise fails to cooperate with the investigation will be subject to
corrective action, which may include termination of employment.
RETALIATION:
The Company will not retaliate or allow retaliation in any manner
against any individual who in good faith complains about or reports or otherwise
assists in the investigation of harassment or discrimination. The Company will
take immediate action against any person who engages in any retaliatory action.
RESPONSIVE ACTION:
Violations of this policy will result in immediate, corrective action,
up to and including termination of employment where appropriate. The Company
will also seek to take immediate, corrective action to the extent possible
against any persons not directly connected to the Company found to have violated
this policy.
If you have any questions about this policy, please contact Xxxxxxxx
Xxxxxxxx-Xxxxxxx, (516) 829-4343 ext. 143, or Xxxx Xxxxxx, (000) 000-0000 xxx.
164.
