EXHIBIT 6.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of the 2ND DAY OF JANUARY, 1999. (the "Effective Date"), between
Circle Group Internet, Inc., an Illinois corporation, whose principal place of
business is 000 X. Xxxxxxx Xx., Xxxxxxxxx, Xxxxxxxx 00000 and any of its
successors or affiliated companies (collectively, the "Company") and, Xxxx X.
Xxxxxx, an individual whose address is 000 Xxx XxXxxxx Xx., Xxxxxxxx Xxxxx, XX
00000 (the "Employee").
RECITALS
WHEREAS, the Company is principally engaged in the business of
Internet web content, service delivery, software design, fund-raising,
acquisitions, and development (the "Business").
WHEREAS, the Company desires to employ the Employee and the
Employee desires to enter into the employ of the Company.
WHEREAS, the Company has established a valuable reputation and
goodwill in its business, with expertise in all aspects of the Business.
WHEREAS, the Employee, by virtue of the Employee's employment
with the Company, will become familiar with and possessed with the manner,
methods, trade secrets and other confidential information pertaining to the
Company's Business, including the Company's client base.
NOW, THEREFORE, in consideration of the mutual agreements
herein made, the Company and the Employee do hereby agree as follows:
1. Recitals. The above recitals are true, correct, and are
herein incorporated by reference.
2. Employment. The Company hereby employs the Employee, and
the Employee hereby accepts employment, upon the terms and conditions
hereinafter set forth.
3. Authority and Power During Employment Period.
a. Duties and Responsibilities. During the Term of
this Agreement, the Employee shall serve as Vice President of Sales & Marketing
of the Company and shall have such responsibilities and duties as are
customarily undertaken by individuals in similar positions.
b. Time Devoted. Throughout the Term of the
Agreement, the Employee shall devote substantially all of the Employee's
business time and attention to the business and affairs of the Company
consistent with the Employee's position with the Company, except for reasonable
vacations, illness or incapacity.
4. Term. The Term of employment hereunder will commence on the
Effective Date as set forth above and end three (3) years from the Effective
Date, unless this Agreement shall have been earlier terminated pursuant to
Section 6 of this Agreement.
5. Compensation and Benefits.
a. Salary. The Employee shall be paid a base
salary, payable in accordance with the Company's policies from time to time for
salaried employees, at the rate of Sixty Thousand Dollars ($60,000) per annum.
b. Options. The Employee shall be granted 12,000
options
(the "Options") to purchase shares of the Company's Common Stock at an exercise
price of $5.00 per share, being the Fair Market Value (as determined by the
Company's Board of Directors) of the Company's Common Stock on the day
immediately preceding the date of this Agreement. Such Options are granted
[under the Company's 1999 Stock Option Plan and] pursuant to the form of Option
attached hereto as Exhibit A and incorporated herein by such reference. The
Options shall be exercisable for a four (4) year period from the date of vesting
and shall vest, subject to continued employment of the Employee, [(A) 12,000
Options on January 2nd, 1998.]
c. Employee Benefits. The Employee shall be
entitled to participate in all benefit programs of the Company currently
existing or hereafter made available to employees including, but not limited to,
stock option plans, pension and other retirement plans, group life insurance,
hospitalization, surgical and major medical coverage, sick leave, salary
continuation, vacation and holidays, long-term disability, and other fringe
benefits.
d. Vacation. During each fiscal year of the
Company, the Employee shall be entitled to such amount of vacation as determined
by the President of the Company consistent with the Employee's position and
length of service to the Company.
6. Consequences of Termination of Employment.
a. Disability. In the event of the Employee's
disability, the Employee shall be entitled to compensation in accordance with
the Company's disability compensation practice for its salaried employees.
"Disability," for the purposes of this Agreement, shall be deemed to have
occurred in the event (A) the Employee is unable by reason of sickness or
accident, to perform his duties under this Agreement for an aggregate of 90 days
in any 12-month period or 45 consecutive days, or (B) the Employee has a
guardian of his person or estate appointed by a court of competent jurisdiction.
Termination due to disability shall be deemed to have occurred upon the first
day of the month following the determination of disability as defined in the
preceding sentence.
b. Termination by the Company for Cause.
i. Nothing herein shall prevent the Company
from terminating the Employee for "Cause," as hereinafter defined. The Employee
shall continue to receive salary only for the period ending with the date of
such termination as provided in this Section 6(b). Any rights and benefits the
Employee may have in respect of any other compensation shall be determined in
accordance with the terms of such other compensation arrangements or such plans
or programs.
ii. "Cause" shall mean (A) committing or
participating in an injurious act of fraud, gross neglect, misrepresentation,
embezzlement or dishonesty against the Company; (B) committing or participating
in any other injurious act or omission wantonly, willfully, recklessly or in a
manner which was grossly negligent against the Company, monetarily or otherwise;
(C) engaging in a criminal enterprise involving moral turpitude: (D) an act or
acts (1) constituting a felony under the laws of the United States or any state
thereof; or (2) if applicable, loss of any state or federal license required for
the employee to perform the Employee's material duties or responsibilities for
the Company; or (E) any assignment of this Agreement by the Employee in
violation of Section 13 of this Agreement.
iii. Notwithstanding anything else contained
in this Agreement, this Agreement will not be deemed to have been terminated for
Cause unless and until there shall have been delivered to the Employee a notice
of termination stating that the Employee committed one of the types of conduct
no withstanding anything
contained herein to the contrary, this Agreement may be terminated (i) at any
time upon the mutual written consent of the Company and the Employee: or (ii) by
the Company giving 30 days' prior written notice to Employee. During such 30 day
period, only the Employee shall continue to perform the Employee's duties
pursuant to this Agreement, and the Company shall continue to compensate the
Employee in accordance with this Agreement.
d. Death. In the event of the death of the Employee
during the Term of the Agreement, compensation shall be paid to the Employee's
designated beneficiary, or, in the absence of such designation, to the estate or
other legal representative of the Employee for a period of one-hundred eighty
(180) days from and after the date of death. Other death benefits will be
determined in accordance with the terms of the Company's benefit programs and
plans.
7. Covenant Not to Compete and Non-Disclosure of Information.
a. Covenant Not to Compete. The Employee
acknowledges and recognizes the highly competitive nature of the Company's
Business and the goodwill, continued patronage, and specifically the names and
addresses of the Company's Clients (as hereinafter defined) constitute a
substantial asset of the Company having been acquired through considerable time,
money and effort. Accordingly, in consideration of the execution of this
Agreement, the Employee agrees to the following:
i. That during the Restricted Period (as
hereinafter defined) and within the Restricted Area (as hereinafter defined),
the Employee will not, individually or in conjunction with others, directly or
indirectly, engage in any Business Activities (as hereinafter defined), whether
as an officer, director, proprietor, employer, partner, independent contractor,
investor (other than as a holder solely as an investment of less than one
percent (1%) of the outstanding capital stock of a publicly traded corporation),
consultant, advisor, agent or otherwise.
ii. That during the Restricted Period and
within the Restricted Area, the Employee will not, directly or indirectly,
compete with the Company by soliciting, inducing or influencing any of the
Company's Clients which have a business relationship with the Company at the
time during the Restricted Period to discontinue or reduce the extent of such
relationship with the Company.
iii. That during the Restricted Period and
within the Restricted Area, the Employee will not (A) directly or indirectly
recruit, solicit or otherwise influence any employee or agent of the Company to
discontinue such employment or agency relationship with the Company, or (B)
employ or seek to employ, or cause or permit any business which competes
directly or indirectly with the Business Activities of the Company (the
"Competitive Business") to employ or seek to employ for any Competitive Business
employs or seeks to employ such person) employed by the Company.
iv. That during the Restricted Period the
Employee will not interfere with, or disrupt or attempt to disrupt any past,
present or prospective relationship, contractual or otherwise, between the
Company and any supplier, customer, employee or agent of the Company.
b. Non-Disclosure of Information. The Employee
acknowledges that the Company's trade secrets, private or secret processes,
methods and ideas, as they exist from time to time, customer lists and
information concerning the Company's products, services, training methods,
development, technical information, marketing activities and procedures, credit
and financial data concerning the Company and/or the Company's Clients (the
"Proprietary
Information") are valuable, special and unique assets of the Company, access to
and knowledge of which are essential to the performance of the Employee
hereunder. In light of the highly competitive nature of the industry in which
the Company's Business is conducted, the Employee agrees that all Proprietary
Information, heretofore or in the future obtained by the Employee as a result of
the Employee's association with the Company shall be considered confidential.
In recognition of this fact, the Employee agrees that the
Employee, during the Restricted Period, will not use or disclose any of such
Proprietary Information for the Employee's own purposes or for the benefit of
any person or other entity or organization (except the Company) under any
circumstances unless such Proprietary Information has been publicly disclosed
generally or, unless upon written advice of legal counsel reasonably
satisfactory to the Company, the Employee is legally required to disclose such
Proprietary Information. Documents (as hereinafter defined) prepared by the
Employee or that come into the Employee's possession during the Employee's
association with the Company are and remain the property of the Company, and
when this Agreement terminates, such Documents shall be returned to the Company
at the Company's principal place of business, as provided in the Notices
provision (Section 9) of this Agreement.
c. Documents. "Documents" shall mean all original
written, recorded, or graphic matters whatsoever, and any and all copies
thereof, including, but not limited to: papers; email; books; records; tangible
things; correspondence; communications; telex messages; memoranda: work-papers;
reports; affidavits; statements; summaries; analyses; evaluations; client
records and information; agreements; agendas; advertisements; instructions;
charges; manuals; brochures; publications; directories; industry lists;
schedules; price lists; client lists; statistical records; training manuals;
computer printouts; books of account, records and invoices reflecting business
operations; all things similar to any of the foregoing however denominated. In
all cases where originals are not available, the term "Documents" shall also
mean identical copies of original documents or non-identical copies thereof.
d. Company's Clients. The "Company's Clients" shall
be deemed to be any persons, partnerships, corporations, professional
associations or other organizations for whom the Company has performed Business
Activities.
e. Restrictive Period. The "Restrictive Period"
shall be deemed to be five (5) years following termination of this Agreement.
f. Restricted Area. The Restricted Area shall be
deemed to mean worldwide and within any other county of any state in which the
Company is providing service at the time of termination.
g. Business Activities. "Business Activities" shall
be deemed to include the Business and any additional activities which the
Company or any of its affiliates may engage in during the term of this
Agreement.
h. Covenants as Essential Elements of this
Agreement. It is understood by and between the parties hereto that the foregoing
covenants contained in Sections 7(a) and (b) are essential elements of this
Agreement, and that but for the agreement by the Employee to comply with such
covenants, the Company would not have agreed to enter into this Agreement. Such
covenants by the Employee shall be construed to be agreements independent of any
other provisions of this Agreement. The existence of any other claim or cause of
action, whether predicated on any other provision in this Agreement, or
otherwise, as a result of the relationship between the parties shall not
constitute a defense to the enforcement of such covenants against the Employee.
i. Survival After Termination of Agreement.
Notwithstanding anything to the contrary contained in this Agreement, the
covenants in Sections 7(a) and 7(b) shall survive the termination of this
Agreement and the Employee's employment with the Company.
j. Remedies.
i. The Employee acknowledges and agrees that
the Company's remedy at law for a breach or threatened breach of any of the
provisions of Section 7(a) or 7(b) herein would be inadequate and the breach
shall be per se deemed as causing irreparable harm to the Company. In
recognition of this fact, in the event of a breach or threatened breach by the
Employee of any of the provisions of Section 7(a) or 7(b), the Employee agrees
that, in addition to any remedy at law available to the Company, including, but
not limited to monetary damages, all rights of the Employee to payment or
otherwise under this Agreement and all amounts then or thereafter due to the
Employee from the Company under this Agreement may be terminated and the
Company, without posting any bond, shall be entitled to obtain, and the Employee
agrees not to oppose the Company's request for equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be available to the
Company.
ii. The Employee acknowledges that the
granting of a temporary injunction, temporary restraining order or permanent
injunction merely prohibiting the use of Proprietary Information would not be an
adequate remedy upon breach or threatened breach of Section 7(a) or 7(b) and
consequently agrees, upon proof of any such breach, to the granting of
injunctive relief prohibiting any form of competition with the Company. Nothing
herein contained shall be construed as prohibiting the Company from pursuing any
other remedies available to it for such breach or threatened breach.
8. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or the
Employee's estate or beneficiaries shall be subject to the withholding of such
amounts, if any, relating to tax and other payroll deductions as thing such
amounts, the Company may accept other arrangements pursuant to which it is
satisfied that such tax and other payroll obligations will be satisfied in a
manner complying with applicable law or regulation.
9. Notices. Any notice required or permitted to be given under
the terms of this Agreement shall be sufficient if in writing and if sent
postage prepaid by registered or certified mail, return receipt requested; by
overnight delivery; by courier or by confirmed telecopy, in the case of the
Employee to the Employee's last place of business or residence as shown on the
records of the Company, or in the case of the Company to its principal office as
set forth in the first paragraph of this Agreement, or at such other place as it
may designate.
10. Waiver. Unless agreed in writing, the failure of either
party, at any time, to require performance by the other of any provisions
hereunder shall not affect its right thereafter to enforce the same, nor shall a
waiver by either party of any breach of any provision hereof be taken or held to
be a waiver of any other preceding or succeeding breach of any term or provision
of this Agreement. No extension of time for the performance of any obligation or
act shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
11. Completeness and Modification. This Agreement constitutes
the entire understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the Employment
Agreement. This Agreement may be amended, modified, superseded or canceled, and
any of the terms, covenants, representations, warranties or conditions hereof
may be waived, only by a written instrument executed by the parties or, in the
case of a waiver, by the party to be charged.
12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute but one agreement.
13. Binding Effect/Assignment. This Agreement shall be binding
upon the parties hereto, their heirs, legal representatives, successors and
assigns. This Agreement shall not be assignable by the Employee but shall be
assignable by the Company in connection with the sale, transfer or other
disposition of its business or to any of the Company's affiliates controlled by
or under common control with the Company.
14. Governing Law. This Agreement shall become valid when
executed and accepted by Company. The parties agree that it shall be deemed made
and entered into in the State of Illinois and shall be governed and construed
under and in accordance with the laws of the State of Illinois. Anything in this
Agreement to the contrary notwithstanding, the Employee shall conduct the
Employee's business in a lawful mariner and faithfully comply with applicable
laws or regulations of the state, city or other political subdivision in which
the Employee is located.
15. Further Assurances. All parties hereto shall execute and
deliver such other instruments and do such other acts as may be necessary to
carry out the intent and purposes of this Agreement.
16. Headings. The headings of the sections are for convenience
only and shall not control or affect the meaning or construction or limit the
scope or intent of any of the provisions of this Agreement.
17. Survival. Any termination of this Agreement shall not,
however, affect the ongoing provisions of this Agreement which shall survive
such termination in accordance with their terms.
18. Severability. The invalidity or unenforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
19. Enforcement. Should it become necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs.
20. Venue. Company and Employee acknowledge and agree that the
U.S. District for the 19th District of Illinois, or if such court lacks
jurisdiction, the 19th Judicial Circuit (or its successor) in and for Lake
County, Illinois, shall be the venue and exclusive proper forum in which to
adjudicate any case or controversy arising either, directly or indirectly, under
or in connection with this Agreement and the parties further agree that, in the
event of litigation arising out of or in connection with this Agreement in these
courts, they will not contest or challenge the jurisdiction or venue of these
courts.
21. Construction. This Agreement shall be construed within the
fair meaning of each of its terms and not against the party drafting the
document.
22. Independent Legal Counsel. The parties have either
(i) been represented by independent legal counsel in connection with the
negotiation and execution of this Agreement, or (ii) each has had the
opportunity to obtain independent legal counsel, has been advised that it is in
their best interests to do so, and by execution of this Agreement has waived
such right.
THE EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS READ ALL OF THE TERMS OF THIS
AGREEMENT, UNDERSTANDS THE AGREEMENT, AND AGREES TO ABIDE BY ITS TERMS AND
CONDITIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of date set
forth in the first paragraph of this Agreement.
THE COMPANY:
Witness:
CIRCLE GROUP INTERNET, INC.
/s/ Xxxxx Xxxxx By: /s/ Xxxx Xxxxxxx
----------------------------------- Xxxx Xxxxxxx, President
THE EMPLOYEE:
/s/ Xxxx Xxxxx By: /s/ Xxxx X. Xxxxxx
----------------------------------- Xxxx X. Xxxxxx
Vice President Sales
