EXHIBIT 10.15
THE LEAP GROUP, INC.
EMPLOYMENT AGREEMENT DATED MARCH 12, 1999
BY AND BETWEEN
THE COMPANY AND XXXXXXXXX XXXXX
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 12th of March,
1999, by and between THE LEAP GROUP, INC. ("Leap"), a Delaware Corporation, and
Xxxxxxxxx Xxxxx ("Executive").
Witnesseth:
WHEREAS, the Company desires to have Executive continue serving as Chairman and
Chief Executive Officer of the Company and Executive desires to continue serving
as the Company's Chairman and Chief Executive Officer in accordance with the
terms and conditions herein.
NOW THEREFORE, is consideration of the foregoing and the mutual promises and
agreements hereinafter contained, the parties agree as follows:
1. Employment. The Company hereby employs Executive and Executive
hereby accepts employment by the Company on a full-time basis upon
the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions for termination hereinafter
provided, the term of this Agreement shall be for a period of two
(2) years commencing on March 12, 1999 and terminating on March
11, 2001 (the "Term").
a) Early Termination by Company. Notwithstanding the foregoing,
the Company, in its sole discretion, may terminate the
Agreement prior to March 11, 2001. If the Company so elects to
terminate this Agreement, then Company shall give Executive
ninety (90) days prior written notice. The termination date
shall be on the close of business on the 90th day after notice
is given as described in paragraph 13 hereof.
b) Early Termination by Executive. Notwithstanding the foregoing,
the Executive may at any time on and after July 1, 1999
terminate the Agreement prior to March 11, 2001. If the
Executive so elects to terminate this Agreement, then
Executive shall give Company two hundred seventy (270) days
prior written notice. The termination date shall be on the
close of business on the 270th day after notice is given as
described in paragraph 13 hereof.
3. Duties. Effective upon execution of this Agreement, Executive
agrees that during the Term of his employment by the Company, he
shall be employed as Chairman and Chief Executive Officer of the
Company and in such capacity shall be responsible for all acts
consistent with his position as Chairman and Chief Executive
Officer of the Company as may be delegated to him for time to time
by the Board of Directors of the Company or in accordance with the
By-laws of the Company. Effective as of March 12, 1999, and so
long as the Executive is Chairman and Chief Executive Officer of
the Company, the Executive shall be a member of the Board of
Directors of the Company.
4. Extent of Services. Executive shall devote his entire working time
during normal working hours, attention, and energies to the best
of his ability to the business of the Company and shall not,
during the Term of this Agreement, be engaged in any other
business activity, whether or not such business activity is
pursued for gain, profit or other pecuniary advantages, but this
restriction shall not be
construed preventing Executive from investing his personal assets
in businesses which do not compete with the Company or the
Company's clients and will not require any services on his part in
the operation of the affairs of the companies in which such
investments are made, and in which his participation is solely
that of an investor.
5. Compensation.
a) For the period of the Term, the Company shall pay an annual
salary to Executive of two hundred thousand ($200,000.00),
payable in accordance with the Company's normal practices for
similarly situated executives, or at such other intervals as
may be mutually agreed upon by the Company and Executive. The
annual salary to Executive may be increased from time to time
at the discretion of the Board of Directors.
b) The Company shall also reimburse the Executive for travel,
administrative and other expenses incurred by Executive in the
course of performing his duties pursuant to this agreement.
Such amount shall be payable to Executive in accordance with
the Company's normal practices for similarly situated
employees, or at such other intervals as may be mutually
agreed upon by the Company and Executive.
6. Executive Benefits. Executive shall be entitled to participate, if
eligible in accordance with the terms of the program in which he
desires to participate, in all executive benefit programs of the
Company (including pension and profit sharing plans, group life
and medical insurance programs and medical expense reimbursement
plans), which the Company shall for time to time have for the
benefit of employees of like status.
7. Vacation Time. Executive shall be entitled to four (4) weeks
annual paid vacation in accordance with the Company's normal
practices.
8. Termination of Employment. This Agreement may be terminated by the
Company at any time after the occurrence of any of the following
events:
(i) Executive is unable to perform his duties for a period of
one hundred twenty (120) days or is otherwise permanently,
mentally or physically disabled.
(ii) The death of Executive.
(iii) The decision by the Company to terminate this Agreement
for cause. "Cause" shall consist of the following:
Executive's conviction on a felony charge or Executive's
commission of any crime involving moral turpitude;
Executive's dishonesty or fraud resulting in damage to the
business of the Company; Executive's embezzlement or theft
of assets of the Company; in the sole discretion of the
Company, Executive's course of personal conduct or illegal
or unethical nature which tends to place the Company in
disrepute, or otherwise negatively affects the ability of
Company to conduct its business; Executive's substantial
and continuous insubordination or violation of his duties
or responsibilities; Executive's competition with the
Company or aid to a competitor of the Company to the
detriment of the Company; or a breach of this Agreement by
Executive, including failure to perform duties and
services to the Company as required pursuant to paragraphs
3 and 4 hereof. In the event Executive is arrested for any
of the types of matters above, the Company may place
Executive on suspension without pay until such matter is
dismissed or Executive is convicted and this Agreement is
terminated.
9. Confidential Information and Non-competition.
a) In the course of Executive's employment by the Company it will
be necessary for Executive to acquire information which could
include information concerning the Company's clients and
prospective clients, the identity of key advertising personnel
in the employ of clients, the Company's or the Company's
clients' computer programs or software, the actual or proposed
advertising ideas, plans, programs or campaigns of the Company
or its clients, information supplied to the Company by its
clients, including marketing plans, demographic information,
sales results or projections and like information, plans of
the Company to expand areas of its business, or other
confidential or proprietary information belonging to the
Company or relating to the Company's affairs (collectively,
the "Confidential Information"). Executive understands that it
is essential to the protection of the Company's good will and
to the maintenance of the Company's competitive position that
the Confidential Information be kept secret. Executive agrees
to hold and safeguard the Confidential Information in trust
for the Company and agrees that Executive will not, without
the prior written consent of the Company, misappropriate or
disclose or make available to anyone for use outside the
Company's organization at any time, either during Executive's
employment with the Company or following termination of
Executive's employment, for any reason whatsoever, any of the
Confidential Information, except as required in the
performance of Executive's duties with the Company. Upon
termination of Executive's employment, Executive will deliver
to the Company all records, correspondence or other documents
deemed necessary to effectuate the purposes of this paragraph.
b) Executive acknowledges and agrees that to the extent Executive
creates any protectible property during the Term of this
Agreement, regardless of whether said property is created
during the course of his employment, including, without
limitation, any plans, methods, slogans, product names, ideas,
or copyrightable or patentable subject matter, Company shall
own all right, title and interest therein, including the
copyright, as work for hire as defined in the applicable
federal statutes and Executive will have no right, title or
interest therein.
c) Except as otherwise provided in this paragraph, Executive
agrees that for one (1) year immediately following the
termination of Executive's employment with the Company, for
any reason whatsoever, Executive will not, directly or
indirectly, including as owner (of a 10% or more equity
interest), executive, consultant or other contractor of any
person, corporation or other entity, make any proposals to or
solicit the business of any clients of the Company. Reference
in this paragraph to "clients of the Company" shall mean any
persons or entities that are clients of the Company as of the
date of Executive's termination or that have been clients of
the Company at any time with one (1) year prior thereto or any
prospective client solicited by the Company within three
months prior to the Executive's termination. If a client of
the Company was not a client a the time of Executive's
termination, but was a client of the Company within one (1)
year prior thereto, then the restrictions upon Executive for
any such client, as stated in this paragraph, shall be one (1)
year from the date the customer was no longer a client of the
Company.
d) Executive agrees that, during Executive's employment with the
Company and for one (1) year immediately following termination
of Executive's employment, for any reason whatsoever,
Executive will not, directly or indirectly, solicit, induce or
recommend any employee of the Company to leave the employ of
the Company or hire any employee of the Company.
10. Remedies. Executive agrees that the period of time provided for in
paragraph 9 above is the minimum period of time necessary and that
the other provisions and restrictions set forth in paragraph 9
above are necessary to protect the Company and the Company's
clients and their respective successors and assigns in the use and
employment of the goodwill of the business conducted by the
Company and the Company's clients. Executive agrees that the
services to be performed by him for the Company are special and
unique, that damages cannot compensate in the event of a violation
of the above covenants and agreements and that injunction relief
shall be essential for the protection of the Company and its
successors and assigns. Accordingly, Executive agrees and consents
that, in the event he shall violate or breach any of said
restrictive covenants, the Company shall be entitled to obtain
(and he hereby consents hereto) injunctive relief against him,
without bond, but upon due notice, in addition to such further or
other relief as may be appropriate at equity or law. Obtainment of
such an injunction by the Company shall not be considered an
election of remedies or a waiver of any right by the Company to
assert any other remedies the Company has at law or in equity. No
waiver of any breach or violation hereof shall be implied from the
forbearance or failure by the Company to take action hereon.
Executive agrees that if any provisions hereof shall be
adjudicated to be invalid or unenforceable, such adjudication is
to apply only with respect to the operation of such provision in
the particular jurisdiction in which such adjudication is made:
provided, further, to the extent of provision hereof is deemed
unenforceable by virtue of its scope in terms of area or length of
time, but may be made enforceable by limitations thereon,
Executive agrees that the same shall be enforceable to the fullest
extent permissible under the laws and public policies applied in
such jurisdiction in which enforcement is sought.
11. Independent Covenants. The covenants and agreements of Executive
contained in paragraphs 9 and 10 above shall be construed as an
agreement which is independent of any other provision of this
Agreement or any other understanding or agreement between the
parties and supported by good, sufficient and valid consideration
and the existence of any claim or cause of action of Executive
against the Company, of whatsoever nature, shall not constitute a
defense to the enforcement by the Company of the covenants
contained herein.
12. Indemnification. Each of the parties agrees to indemnify and hold
the other harmless of and from any and all loss, cost, damage and
expense (including attorney's fees and court costs) which he or it
shall suffer, sustain or incur as a result of, in connection with
or arising from the indemnifying party's breach of any of the
provisions of this Agreement, or the efforts of either party to
enforce the terms hereof, including, but not limited to, the
restrictive covenants contained herein.
13. Notices. If any notice be required hereunder, it shall be in
writing and shall be delivered personally or sent by registered or
certified mail, return requested, overnight delivery (e.g.,
Federal Express) or by facsimile, to:
If to the Executive, at:
Xxxxxxxxx Xxxxx
If to the Company at:
The Leap Group, Inc.
Attention: Xxxxxx X. Xxxxxxxxx
00 X Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Notices shall be deemed given on the date actually received or
three (3) days after being sent, whichever is earlier.
14. Assignment and Delegation. This Agreement shall inure to the
benefit of and be binding upon the Company, its successors and
assigns. The duties of Executive under this Agreement are personal
to him and shall not be subject to voluntary or involuntary
alienation, assignment, delegation or transfer. However, the
rights and benefits of Executive under this Agreement shall inure
to the benefit of Executive's heirs, legatees, executors and
administrators except as otherwise provided.
15. Severability. If any provision of this Agreement is adjudicated to
be partially or completely invalid or unenforceable, such
adjudication is to apply only with respect to the operation of
such provision in the particular jurisdiction in which such
adjudication is made. All provisions of this Agreement are
severable, and this Agreement shall be interpreted and enforced as
if all completely invalid or unenforceable provisions were not
contained herein and partially valid and enforceable provisions
shall be enforceable to the extent valid and enforceable.
16. Entire Agreement. This Agreement contains the entire agreement
between the parties. All prior discussions, compensation
understandings, negotiations and agreements are merged herein.
This Agreement may not be orally changed or canceled, but may only
be changed or canceled by an agreement to such effect in writing
signed by the party against whom enforcement of same is sought.
17. Governing Law. The validity, construction and enforceability of
this Agreement shall be governed by the internal laws, and not the
laws of conflicts, of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to
be duly executed on the date and year first above written.
EXECUTIVE THE LEAP GROUP, INC.
/s/ Xxxxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxxxxx Xxxxx Xxxxxx X. Xxxxxxxxx
Chief Legal Officer
