EMPLOYMENT CONTRACT
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AGREEMENT made as of the 13th day of December 1995 between AMPLIDYNE, INC.,
a Delaware corporation having an office at 000 Xxxxxxx Xxxxx, Xxxxxxxx, X.X.
00000 (hereinafter referred to as the "CORPORATION"), and Xxxxxx Will, residing
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 (hereinafter referred to as
"EMPLOYEE").
IN CONSIDERATION OF the premises and mutual covenants and conditions herein
contained, the CORPORATION and EMPLOYEE hereby agree as follows:
1. EMPLOYMENT. The CORPORATION agrees to employ EMPLOYEE, and EMPLOYEE
agrees to serve the CORPORATION as a Vice President for Investor Relations upon
the terms and conditions hereafter set forth.
2. TERM. The term of this Agreement shall commence immediately, and shall
continue for three (3) year terms subject to provisions of Article 7 herein
provided.
3. COMPENSATION AND OTHER BENEFITS.
(a) For his services to the Company during the TERM, the Company shall
pay EMPLOYEE a salary ("Salary") at the annual rate of Sixty Thousand ($60,000)
Dollars. The EMPLOYEE acknowledges and agrees all salary amounts accrue and
shall only be payable by the Company at such time as the Company receives the
proceeds from its' initial public stock offering.
(b) The Company shall issue to the EMPLOYEE
Warrants to purchase One Hundred Sixty Five (165,000) shares of Common Stock of
Corporation at Two Dollars and Fifty Cents ($2.50) per share, expiring September
30, 1999 under a 701 Employees Option Plan
4. SERVICES. EMPLOYEE agrees to serve the CORPORATION faithfully and to the
best of his ability, and shall devote approximately twenty (20%) percent of his
business time, attention and energies to the business of the CORPORATION during
regular business hours and at any other time during the week as reasonably
requested by the CORPORATION. All services required to be rendered by the
EMPLOYEE may be rendered for the benefit of any of the CORPORATION's affiliates
or subsidiaries, but no liability shall attach to such affiliate or subsidiary
for the payment of any compensation hereunder.
5. EXPENSES. During the period of his employment, EMPLOYEE will be
reimbursed for his reasonable and necessary expenses incurred by him pursuant to
his employment hereunder as authorized in writing upon submission of appropriate
paid bills or vouches therefor. All personal expenses of whatsoever kind or
nature are to be defrayed and borne by the EMPLOYEE, and the EMPLOYEE will not
make any commitments or purchases in behalf of the CORPORATION, nor obligate the
CORPORATION in any manner whatsoever.
6. EMPLOYER'S AUTHORITY. EMPLOYEE agrees to observe and comply with the
rules and regulations of the CORPORATION as adopted by the CORPORATION'S Board
of Directors, either orally or
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in writing, respecting performance of his duties, and to carry out and to
perform orders, directions and policies stated by the CORPORATION to him from
time to time, either orally or in writing.
7. TERMINATION. This Agreement and EMPLOYEE'S employment hereunder shall
be terminated upon the happening of any of the following events:
a. Whenever EMPLOYEE engages in a breach of any of the terms of this
Agreement;
b. Whenever the CORPORATION and EMPLOYEE shall mutually agree to
termination in writing;
c. Upon the death of EMPLOYEE;
d. (1) In the event that an EMPLOYEE incurs a disability through
physical or mental incapacity which renders EMPLOYEE incapable of performing the
customary duties of his employment for a period of six (6) month in any
consecutive one (1) year period.
(2) During a period of disability, the disable EMPLOYEE shall
continue to receive full compensation from the CORPORATION each week for the
term of such disability but not to exceed six (6) months; after the expiration
of said six (6) months period, EMPLOYEE shall receive compensation at the rate
of fifty percent (50%) of his full compensation each week for the remaining
terms of such disability but not to exceed six (6) months; after the expiration
of said one (1) year period, EMPLOYEE shall not be entitled to any additional
compensation until the resumption of the normal duties of his employment;
provided,
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however, that if EMPLOYEE is disabled as defined herein, and thereafter resumes
full time employment hereunder, and thereafter becomes disabled against, any
such resumed period of disability shall, for the purposes of determining the
percentage of full compensation and duration of payment thereof to which
EMPLOYEE is then entitled, be deemed a continuation of the prior period of
disability unless a period of at least six (6) continuous months of active full
time employment elapsed since the conclusion of the prior period of disability.
Any amounts paid hereunder to the disabled EMPLOYEE shall be reduced by any
disability income insurance proceeds under any policies owned by or paid for the
CORPORATION.
(3) Anything herein contained to the contrary notwithstanding, EMPLOYEE
shall be conclusively deemed to be disabled within the meaning of this Agreement
during any period in which he receives disability insurance proceeds from an
insurance carrier, the policies of which were owned or paid for by the
CORPORATION.
e. EMPLOYEE or the CORPORATION gives fourteen (14) days' written notice
to the other of his intention to terminate this Agreement.
f. The EMPLOYEE shall be terminable by the CORPORATION upon either (1)
the termination by the EMPLOYEE of his employment with the CORPORATION,
including by resignation, or (ii) the termination by the CORPORATION of the
EMPLOYEE's employment hereunder for Cause. As used in this Agreement, "cause"
shall
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include, but not limited to:
(1) any breach by the EMPLOYEE of Sections of this Agreement relating to
confidential information, inventions, non-competition, non-solicitation of
clients, and non-solicitation of employees, respectively;
(2) a failure or refusal by the EMPLOYEE to perform his duties set forth
in this Agreement or as reasonably assigned to him (her) in the future by the
CEO or his designee;
(3) any misappropriation of funds or other property of the CORPORATION;
(4) insubordination or dishonesty;
(5) conviction of the EMPLOYEE of a felony involving moral turpitude;
(6) any intentional and willful conduct by EMPLOYEE in his capacity as
an EMPLOYEE of the CORPORATION which is injurious to the CORPORATION; or
(7) the continued inability of the EMPLOYEE to perform his duties by
reason of alcoholism or drug abuse.
8. This Agreement may be terminated immediately in the event of the
CORPORATION'S bankruptcy, insolvency, liquidation, or the cessation of business
or a division thereof.
Upon termination for any of the foregoing causes, EMPLOYEE shall be
entitled to receive only the compensation accrued but unpaid as of the date of
termination, and an additional three month compensation if the termination is
for reason other than
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EMPLOYEE'S breach of contract.
9. TRADE SECRETS AND NON-DISCLOSURE. The Employee hereby acknowledges that
certain trade secrets of the CORPORATION are valuable, special and unique assets
of the CORPORATION'S business. Such trade secrets include but are not limited to
its customer lists and the sources of its materials and products. The EMPLOYEE
hereby covenants that he will not, during or after the term of his employment,
disclose any of the foregoing secrets or any part thereof to any firm, person or
corporation or any entity for any reason or purpose whatsoever. In the event of
a breach or threatened breach by the EMPLOYEE of the provisions of this
Paragraph, the arbitration provisions of this Agreement to the contrary
notwithstanding, the CORPORATION shall be entitled to proceed in any court for
an injunction restraining the EMPLOYEE from disclosing, in whole or in part, any
of the aforesaid trade secrets, or from rendering such service to any person,
firm, corporation, association or any entity to whom such trade secrets, in
whole or in part, have been disclosed, or are threatened to be disclosed.
Nothing herein contained shall be construed as prohibiting the CORPORATION from
pursuing any other remedies for such breach or threatened breach, including the
recovery of damages from the EMPLOYEE and/or from proceeding pursuant to the
arbitration provisions of this Agreement.
10. NOTICES. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered or
certified mail to his residence in the case
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of EMPLOYEE, or to the principal office of the CORPORATION in the case of the
CORPORATION.
11. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties. It may not be changed orally but only by an agreement in writing
signed by the party or parties against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
12. ARBITRATION. Any claim or controversy among or between the parties
hereto arising out of or pertaining to any matter contained in this Agreement,
or any differences as to the interpretation or performance of any of the
provisions of this Agreement shall be settled by arbitration in New York, New
York before three (3) arbitrators of the American Arbitration Association under
its then prevailing rules. The arbitrators sitting in any such controversy shall
not have the authority or power to modify or alter any express condition or
provision of this Agreement, or any modification thereof, or to render any award
which, by its terms, has the effect of altering or modifying any express
condition or provision of this Agreement or modification thereof. No award may
be made which imposes liability contrary to the provisions hereof, or which is
in excess of specified measure of damages limiting claims against the parties
hereto, and any award in violation thereof shall be wholly void and
unenforceable. It shall be a condition precedent to the institution of said
arbitration proceedings that the proceeding be
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commenced within one (1) year from (i) the date the claim or controversy arises;
or (ii) the date of termination of your services or employment, whichever is
first to occur, and the failure to institute arbitration proceedings within such
period shall constitute an absolute bar to the institution of any proceedings
and a waiver of all claims. The award of the arbitrators shall be final and
binding, and judgment may be entered thereon in any court of competent
jurisdiction.
The parties consent to the jurisdiction of the State of New York and the
United States District Court for the Southern District of New York for all
purposes in connection with arbitration, including the entry of judgement on any
award. The parties consent that any process or Notice of Motion or other
application to either of said courts, and any paper in connection with the
arbitration may be served by certified mail, return receipt requested, or by
personal service, or in such other manner as may be permissible under the rules
of the applicable court or arbitration tribunal provided a reasonable time for
appearance is allowed.
13. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the successors and assignees of the CORPORATION, and the heirs,
representatives and beneficiaries fo the EMPLOYEE.
14. PRIOR AGREEMENTS. All prior employment agreements between the parties
hereto are hereby revoked.
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IN WITNESS WHEREOF, the parties hereto have set their respective hands and
seals as of the day and year first above written.
AMPLIDYNE, INC.
By___________________________
XXXXXXXX XXXXXX
BY___________________________
XXXXXX WILL
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