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EXHIBIT 99.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as the "Agreement") is
made this 13th day of November, 2000, by and between NORSTAR GROUP, INC.
(hereinafter referred to as the "Corporation"), a Utah corporation, and Xxxxxx
X. Xxxx (hereinafter referred to as the "Employee").
1. EMPLOYMENT. The Corporation hereby employs the Employee and the
Employee hereby accepts employment with the Corporation upon the terms and
conditions hereinafter set forth.
2. TERM. Subject to the provisions respecting the termination of this
Agreement as set forth in Sections 8 and 9 hereof, the term of this Agreement
shall be for the period beginning the date hereof and extending until and
through November 13, 2001, and may be extended for one or more additional
periods of one (1) year each as may be agreed in writing by the parties hereto.
3. DUTIES. The Corporation is engaged in the business of providing
on-line Internet services (the "Business of the Corporation"). The Employee is
engaged as President of the Corporation and his duties shall be those related to
all phases of the Business of the Corporation, and such other duties consistent
with the duties of an executive officer as may from time to time be determined
by the Board of Directors of the Corporation.
4. COMPENSATION. As the entire compensation to the Employee for his
services to the Corporation under and during the term of this Agreement, in
whatever capacity rendered, the Corporation shall pay to the Employee a salary
of fifty thousand ($50,000) Dollars per annum payable in a manner in
accordance with the Corporation's normal payroll policy; provided, however, that
the Corporation shall pay to the Employee such additional cash bonus, if any, as
shall be decided by the Board of Directors of the Corporation in its sole
discretion.
As additional compensation for the Employee's services, the Corporation,
simultaneously with the execution of this Agreement, shall issue to the Employee
one hundred thousand (100,000) shares of the Corporation's Common Stock (the
"Shares").
5. EXTENT OF SERVICE. The employee shall devote his full working time,
attention and energies to the performance of his duties under this Agreement and
shall utilize his best efforts in furtherance of the business of the
Corporation.
6. EXPENSES. The Employee is authorized to incur reasonable expenses for
promoting the business of the Corporation, including expenses for entertainment,
travel and other similar items in accordance with policies established by the
Board of Directors from time to time. The Corporation shall reimburse the
Employee for all such expenses upon the presentation by the Employee, from time
to time, of an itemized accounting for such expenditures.
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7. AGREEMENTS BY CORPORATION. The compensation which is provided for in
this Employment Agreement shall be in addition to any health, retirement, profit
sharing, stock option, life insurance, and accident insurance, or similar
benefit program of the Corporation in which the Employee is entitled to
participate, if any, in accordance with the terms of such benefits, whether such
benefits are now in effect or are hereafter instituted. The Corporation is not
obligated to provide any other benefit which is now or may hereafter be put into
effect. However, if the Corporation provides any of such benefits to other
senior executives of the Corporation, the Corporation shall provide such
benefits to the Employee.
8. TERMINATION UPON LIQUIDATION. Anything herein contained to the
contrary notwithstanding, upon thirty (30) days' prior written notice to the
Employee, the Corporation, at any time subsequent to the adoption of a
resolution by the Board of Directors of the Corporation to the substantial
effect that the Board of Directors deems it advisable that the business of the
Corporation be terminated and its assets liquidated, may terminate this
Agreement and all of the rights, obligations and duties of the parties
hereunder.
9. DISCHARGE FOR CAUSE. The Corporation may discharge the Employee for
cause at any time upon thirty (30) days' prior written notice, and upon the
occurrence of such discharge for cause, this Agreement shall terminate except
that the restrictions and provisions imposed on the Employee as set forth in
Sections 10, 11 and 12 hereof shall remain in effect. For purposes of this
Agreement, the term "cause" shall mean (i) conduct by the Employee that amounts
to fraud, dishonesty, gross negligence or willful misconduct in the performance
of his duties hereunder; (ii) failure by the Employee to perform his duties
hereunder in the manner and to the extent required under this Agreement or
breach by the Employee of any other obligation owed by the Employee to the
Corporation including, without limitation, the obligation to refrain from
engaging in the activities prohibited by Sections 10, 11 and 12 hereof; and
(iii) the conviction of the Employee of a felony.
10. RESTRICTIVE COVENANTS.
(a) Agreement Not to Solicit Customers. During the term of the
Employee's employment by the Corporation and for a period of two (2) years
following the termination of such employment for any reason whatsoever, the
Employee shall not (except on behalf of or with the prior written consent of the
Corporation), either directly or indirectly, on the Employee's own behalf or on
behalf of others, (1) solicit, divert, appropriate to [or accept] on behalf of
any Competing Business, or (2) attempt to solicit, divert, appropriate to [or
accept] on behalf of a Competing Business, any business from any customer or
actively sought prospective customer of the Corporation with whom the Employee
has had regular contact, whose contacts with the Corporation have been
supervised by the Employee or about whom the Employee has acquired Proprietary
Information (as defined hereinafter) in the course of his or her employment.
(b) Agreement Not to Solicit Employees. During the term of the
Employee's employment by the Corporation and for a period of two (2) years
following the termination of such employment for any reason whatsoever, the
Employee shall not, either directly or indirectly, on the Employee's own behalf
or on behalf of others, solicit, divert or hire, or attempt to solicit, divert
or hire, any person employed by the Corporation at any facility where the
Employee performed
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services for the Corporation or any person with whom the Employee had regular
contact in the course of his employment by the Corporation, whether or not the
employment of any such person is pursuant to a written agreement, for a
determined period or at will.
(c) Agreement Not to Compete. During the term of the Employee's
employment by the Corporation and for a period of two (2) years following the
termination of such employment for any reason whatsoever, the Employee shall not
(except on behalf of or with the prior written consent of the Corporation),
within the Area, either directly or indirectly, on his own behalf or in the
service or on behalf of others, as a manager, supervisor, administrator,
consultant, producer, instructor, salesman or in any other capacity which
involves duties and responsibilities similar to those undertaken for the
company, engage in any business which is the same as or essentially the same as
the Business of the Corporation. It is the express intent of the parties that
the Area, as that term is defined herein, is the area where the Employee
performs or performed services on behalf of the Corporation under this Agreement
as of, or within a reasonable time prior to, the termination of the Employee's
employment hereunder.
(d) "Area" means the area circumscribed by a line drawn at a
radius of thirty (30) miles from the headquarters of the Corporation.
(e) "Competing Business" means any business organization of
whatever form directly engaged in any business or enterprise which is the same
as, or substantially the same as, the business of the Corporation.
11. PROPRIETARY INFORMATION.
(a) "Proprietary Information" means information related to the
Corporation or its affiliates (1) which derives economic value, actual or
potential, from not being generally known to or readily ascertainable by other
persons who can obtain economic value from its disclosure or use; and (2) which
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy. Assuming the foregoing criteria are met, Proprietary
Information includes, but is not limited to, technical and nontechnical data
related to the formulas, patterns, designs, compilations, programs, methods,
techniques, drawings, processes, finances, actual or potential customers and
suppliers, existing and future products, and employees of the Corporation or its
affiliates. Proprietary Information also includes information which has been
disclosed to the Corporation or its affiliates by a third party and which the
Corporation or its affiliates are obligated to treat as confidential.
(b) All Proprietary Information and all physical embodiments
thereof received or developed by the Employee while employed by the Corporation
are confidential to and are and will remain the sole and exclusive property of
the Corporation. Except to the extent necessary to perform the duties assigned
to him or her by the Corporation, the Employee will hold such Proprietary
Information in trust and strictest confidence, and will not use, reproduce,
distribute, disclose or otherwise disseminate the Proprietary Information or any
physical embodiments thereof and may in no event take any action causing or fail
to take the action necessary in order to prevent, any Proprietary Information
disclosed to or developed by the Employee to lose its character or cease to
qualify as Proprietary Information.
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(c) Upon request by the Corporation, and in any event upon
termination of the employment of the Employee with the Corporation for any
reason, the Employee will promptly deliver to the Corporation all property
belonging to the Corporation, including, without limitation, all Proprietary
Information (and all physical embodiments thereof) then in his or her custody,
control or possession.
12. REMEDIES. The Employee agrees that the covenants contained in
Sections 10 and 11 of this Agreement are of the essence of this Agreement; that
each of such covenants is reasonable and necessary to protect and preserve the
interests and properties of the Corporation and the Business of the Corporation;
and that irreparable loss and damage will be suffered by the Corporation should
the Employee breach any of such covenants. Therefore, the Employee agrees and
consents that, in addition to all the remedies provided at law or in equity, the
Corporation shall be entitled to a temporary restraining order and temporary and
permanent injunctions to prevent a breach or contemplated breach of any of the
covenants. The existence of any claim, demand, action or cause of action of the
Employee against the Corporation shall not constitute a defense to the
enforcement by the Corporation of any of the covenants or agreements herein.
13. REIMBURSEMENT OF DISALLOWED EXPENSES. In the event that any expenses
paid by the Corporation for the Employee or any reimbursement of expenses by the
Corporation to the Employee shall, upon audit or other examination of the income
tax returns of the Corporation, be determined not to be allowable deductions
from the gross income of the Corporation and such determination shall be acceded
to by the Corporation or such determination shall be made final by the
appropriate state or federal taxing authority or a final judgment of a court of
competent jurisdiction and no appeal shall be taken therefrom, or the applicable
period for filing a notice of appeal shall have expired, then in such event, the
Employee shall rebate to the Corporation the dollar amount of such disallowed
expenses. Such repayment may not be waived by the Corporation.
14. BENEFIT. This Agreement shall inure to the benefit of and be binding
upon (a) the Corporation, its successors and assigns, including, but not
limited, to (i) any corporation which may acquire all or substantially all of
the Corporation's assets and business, (ii) any corporation with or into which
the Corporation may be consolidated or merged, or (iii) any corporation that is
the successor corporation in an exchange of stock, and (b) the Employee, his
heirs, guardians, and personal and legal representatives.
15. SEVERABILITY. The Employee agrees that the covenants and agreements
contained in Sections 10 and 11 of this Agreement are of the essence of this
Agreement and that each of such covenants is reasonable and necessary to protect
and preserve the interests and business of the Corporation. Employee further
agrees that each of such covenants is separate, distinct and severable not only
from the other of such covenants but also from the remaining provisions of this
Agreement and that the unenforceability of any such covenant or agreement shall
not affect the validity or enforceability of any other such covenant or
agreements or any other provision or provisions of this Agreement.
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16. TOLLING. In the event that Employee shall breach any or all of the
covenants set forth in Sections 10 and 11 hereof, the running of the
restrictions set forth in such Section or Sections breached shall be tolled
during the continuation(s) of any such breach or breaches by Employee, and the
running of the period of such restrictions shall commence or commence again only
upon compliance by the Employee with the terms of the applicable Section
breached.
17. WAIVER. The waiver by the Corporation of any breach of this Agreement
by the Employee shall not be effective unless in writing, and no such waiver
shall operate or be construed as the waiver of the same or another breach on a
subsequent occasion.
18. NOTICES. All notices and communications hereunder shall be in writing
and shall be deemed given when sent by registered or certified United States
mail, postage prepaid, and, if intended for the Corporation, shall be addressed
to it, to the attention of its President, at 0000 XX 0xx Xxx, Xxxxx 000, Xx.
Xxxxxxxxxx, Xxxxxxx 00000, with a copy to Xxxxxxx X. Xxxxx, Esq., Xxxxx &
Schloss LLP, 6 E. 43rd Street, New York, New York, or at such other address of
which the Corporation shall have given notice to the Employee in the manner
herein provided, and if intended for the Employee, shall be addressed to him at
0000 XX 0xx Xxx, Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000 or at such other
address of which the Employee shall have given notice to the Corporation in the
manner herein provided.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
20. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties, and may be amended, changed, modified, extended or rescinded only by a
writing signed by the party against whom any such amendment, change,
modification, extension and/or rescission is sought.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
NORSTAR GROUP, INC.
By: /s/ Xxxxx XxXxxxxxxxx
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Xxxxx XxXxxxxxxxx, President
EMPLOYEE
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
