Exhibit 10.2
EMPLOYMENT AGREEMENT
Employment Agreement, dated as of March 1, 2003, (this "Agreement"),
between Xxxxxxx XxXxxxxxxxx ("Employee") and Dialog Group, Inc., a Delaware
corporation (the "Company").
In consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment; Term.
The Company will employ Employee and use best efforts to cause Employee
to be elected to the Board of Directors, and Employee will work for Company as
its Chief Operating Officer for a term commencing as of the date set forth above
and, unless sooner terminated in accordance with the provisions of Section 11,
terminating on December 31, 2004 (the "Initial Term"). The Initial Term shall be
extended for successive one-year periods (the "Additional Terms") unless
terminated at the end of the Initial Term or any Additional Term by either party
upon ninety (90) days' prior written notice given to the other party (the
Initial Term and any Additional Terms shall be referred to as the "Employment
Period").
2. Duties.
During the Employment Period, Employee shall serve as a member of the
Board of Directors and Chief Operating Officer, and perform such duties as are
consistent with Employee's position which shall, from time to time, be
reasonably delegated or assigned to Employee by the Company, [including
participation on the Board of Directors Compensation Committee]. Employee shall:
(i) expend substantially all of Employee's working time for the Company; (ii)
devote Employee's best efforts, energy and skill to the services of the Company
and the promotion of its interests; and (iii) not take part in activities which
would be known by Employee to be detrimental to the best interests of the
Company and/or any affiliate thereof.
3. Compensation.
3.1. In consideration for the services to be performed by Employee for
the Company during the Employment Period, the Company shall compensate Employee
at a minimum annual base salary of $150,000 ("Base Salary"), payable in
accordance with the Company's standard payroll practices but no less frequently
than twice per month. If for any reason Employee is not paid Employee's Base
Salary for the year, the difference between the Base Salary and the amount paid
shall be paid to Employee prior to the payment of any year-end bonuses to any
other employee. Annual increases, as of the first of each year, shall be at
least the percentage of the prior year's C.P.I.
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3.2. At the end of each of 2003 and 2004 calendar years, respectively,
the Company shall pay Employee a target bonus (the "Bonus") of 25% of the Base
Salary if Employee meets Employee's individual goals established by the
Compensation Committee of the Board of Directors for such year. Such goals are
subject to Employee's approval.
3.3. Employee shall be eligible to participate in all bonus plans of
the Company generally available from time to time to employees at Employee's
level.
4. Benefits and Reimbursement of Expenses.
4.1. Employee shall receive all benefits and fringes made available
from time to time to other employees and officers of the Company to the full
extent of Employee's eligibility, including medical, dental, life insurance and
disability insurance benefits and pension and other similar plans. Employee and
Employee's spouse shall receive these benefits fully paid by the Company so long
as the Company or its successors exist.
4.2. The Company shall have in place and pay for medical insurance for
Employee and Employee's family on substantially the same terms as Employee is
receiving through Healthcare Dialog, Inc. Employee shall select the
beneficiaries of such policies. Such medical insurance shall be provided by
Company to Employee on substantially the same terms for a period ending upon the
death of Employee, or Employee's spouse, whichever occurs later. This provision
shall survive the termination of this Agreement.
4.3. The Company shall have in place and pay for a life insurance
policy at a cost of no less than $1,000 per month. Employee shall select the
beneficiaries of any such policies. In addition, the Company shall pay for both
long-term and short-term disability insurance polices for Employee similar to
the coverage to which Employee was entitled at Healthcare Dialog, Inc.
4.4. Employee shall have a health club membership at a club selected by
Employee and paid for by the Company at the rates paid by Healthcare Dialog,
Inc., subject to increases from time to time.
4.5. The Company shall reimburse Employee, no less than twice each
month, for all reasonable and necessary expenses and disbursements which have
been authorized by the C.O.O. and incurred by Employee for and on behalf of the
Company in the performance of Employee's duties under this Agreement. For such
purposes, Employee shall submit to the Company itemized reports of such expenses
in accordance with the Company's policies in effect.
4.6. Employee shall be entitled to paid vacations during the Employment
Period in accordance with the Company's then applicable policy for executive
employees, provided that Employee shall not be entitled to less than five (5)
weeks paid vacation in each full calendar year, which amount shall be prorated
for any partial year. Employee shall accrue earned and unused vacation. Employee
shall, upon termination of the Employment Period, receive Base Pay on a pro-rata
basis for any earned and unused vacation.
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4.7. Employee shall receive an automobile allowance of $1,500 per
month. The Employee shall have the option in lieu of the $1,500 to use the
current company car, a 1998 Mercedes Benz E320, for the balance of the lease.
4.8. The Company shall maintain, on substantially the same terms as
currently maintained by Healthcare Dialog, Inc., the lease and any renewals,
including any rent increases, for the corporate apartments at 0 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx. If for any reason this space is or becomes
unobtainable, the Company shall pay for a comparable space.
4.9. Employee shall be eligible to participate in the Company's 401K
plan, which shall offer Employee substantially the same terms as the 401K plan
offered by Healthcare Dialog, Inc.
5. Inventions and Patents.
5.1. Employee will promptly and fully disclose to the Company, or any
of its designees, any and all improvements, designs, ideas, works of authorship,
copyrightable works, discoveries, trademarks, copyrights, trade secrets,
formulae, processes, techniques, know-how, and data, whether or not patentable,
made or conceived or reduced to practice or learned by Employee during the
Employment Period, either alone or jointly with others, in connection with
Employee's employment with the Company that are related to or useful in the
actual or anticipated business of the Company or any of its subsidiaries, or
result from tasks assigned Employee by the Company or its subsidiaries
(Employee's interest in all said improvements, designs, ideas, works of
authorship, copyrightable works, discoveries, trademarks, copyrights, trade
secrets, formulae, processes, techniques, know-how, data, and patent
applications, continuation applications, continuation in-part applications, file
wrapper continuation applications and divisional applications related thereto
shall be collectively hereinafter called "Inventions"). All such Inventions
shall be the sole property of the Company, its successors, assigns and nominees,
and Employee hereby assigns to the Company, without further compensation, all of
Employee's rights, title and interest in and to such Inventions and any and all
related patents, patent applications, copyrights, copyright applications,
trademarks and trade names in the United States and elsewhere.
5.2. Employee will keep and maintain adequate and current written
records of all Inventions (in the form of notes, sketches, drawings, diskettes
and as may be specified by the Company), which records shall be available to,
and remain the sole property of, the Company at all times.
5.3. Employee will assist the Company with its reasonable requests and
at the Company's expense in obtaining and enforcing patents, copyrights and
other forms of legal protection of such Inventions in any country. Upon request,
Employee will execute all applications, assignments, instruments and papers and
perform all acts reasonable necessary or desired by the Company to assign all of
Employee's interest in such Inventions fully and completely to the Company and
to enable the Company, its successors, assigns and nominees, to secure and enjoy
the full and exclusive benefits and advantages of Employee's interest therein.
If, in exercising its rights under this Section 5.3, the Company is unable,
after reasonable effort, to secure Employee's signature on any patent, copyright
or other analogous protection relating to an Invention, whether because of
Employee's physical or mental incapacity or for any other reason whatsoever,
Employee hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as Employee's agent and attorney-in-fact, to act
for on Employee's behalf and stead to execute and file any such application or
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent, copyright or other analogous
protection thereon with respect to Employee's interest in the Invention with the
same legal force and effect as if executed by Employee.
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5.4. Employee acknowledges that all original works of authorship which
are made during the Employment Period by Employee (solely or jointly with
others) within the scope of Employee's employment, and which are protectable by
copyright, are "works made for hire," as that term is defined in the United
States Copyright Act (17 USCA, Section 101). If such laws are inapplicable or in
the event that such works, or any part thereof, are determined by a court of
competent jurisdiction not to be a work made for hire under the United States
copyright laws, this Agreement shall operate as an irrevocable and unconditional
assignment by Employee to the Company of all of Employee's right, title and
interest (including, without limitation all rights in and to the copyrights
throughout the world, including the right to prepare derivative works and the
right to all renewals and extensions) in the works in perpetuity.
5.5. Employee understands that certain obligations under this Section 5
will continue after the termination of Employee's employment with the Company
and that during the Employment Period Employee will perform Employee's
obligations under this Section 5 without further payment of any kind, except for
prompt reimbursement of reasonable expenses incurred by Employee in connection
with the performance of such obligations. Employee further understands that if
he is not employed by the Company as an employee at the time he is requested to
perform any obligations under this Section 5, he shall promptly receive
reimbursement of reasonable expenses incurred and compensation by him and
compensation due him in connection with the performance of such obligations.
6. Proprietary Information.
6.1. Employee recognizes that Employee's relationship with the Company
is one of high trust and confidence by reason of Employee's access to and
contact with the trade secrets and confidential and proprietary information of
the Company and any subsidiaries of the Company. Except as may be otherwise
required by law, Employee will not at any time, either during the Employment
Period or thereafter, disclose to others, or use for Employee's own benefit or
the benefit of others, any Inventions or any confidential, proprietary or secret
information owned, possessed or used by the Company and any subsidiaries of the
Company (collectively, "Proprietary Information"). By way of illustration, but
not limitation, Proprietary Information includes trade secrets, processes, data,
know-how, marketing plans, forecasts, unpublished financial statements, budgets,
licenses, prices, costs and employee, customer and supplier lists.
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6.2. Employee's undertakings and obligations under this Section 6 will
not apply, however, to any Proprietary Information which: (i) is or becomes
public domain through no action on Employee's part, (ii) is approved for release
by written authorization of the Board of Directors, (iii) after disclosure to
Employee, is lawfully received by Employee on a non-confidential basis, or (iv)
is independently developed by Employee.
6.3. Upon termination of employment with the Company or at any other
time upon request, Employee will promptly destroy or deliver to the Company at
Company's expense all notes, memoranda, notebooks, drawings, records, reports,
diskettes, files and other documents (and all copies or reproductions of such
materials) in Employee's possession or under Employee's control, whether
prepared by Employee or others, which contain Proprietary Information whether
handwritten, typed or in electronic digital format. Employee acknowledges that
this material is the sole property of the Company.
6.4. This term of this Section 6 is limited to a period ending one year
after the expiration of the Employment Period.
7. Absence of Restrictions Upon Disclosure and Competition.
7.1. Employee represents that, except as has been disclosed in writing
to the Company, Employee is not bound by the terms of any agreement with any
previous employers or other party to refrain from using or disclosing any trade
secret or confidential or proprietary information in the course of Employee's
employment with the Company or to refrain from such competing, directly or
indirectly, with the business of such previous employer or any other party.
7.2. Employee further represents that Employee's performance of all the
terms of this Agreement does not and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by Employee in
confidence or in trust prior to Employee's employment with the Company, and
Employee will not disclose to the Company or induce the Company to use any
confidential or proprietary information or material belonging to any previous
employer.
8. Covenant Not to Compete.
8.1. Other than as set forth in Section 11.3, unless otherwise approved
by the Board of Directors in writing, during the period specified in Section
8.2, Employee shall not directly engage (whether for compensation or without
compensation) in any like business activity, either as an individual proprietor,
partner, stockholder, officer, employee, director, consultant or in any other
capacity whatsoever (otherwise than as the holder of not more than five percent
(5%) of the total outstanding stock of a publicly held company), which competes
directly with the business conducted by the Company, as detailed in the business
plan of the Company or any of its subsidiaries in effect at the expiration of
the Employment Period, unless otherwise agreed to in writing by the Company and
Employee.
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8.2. The restrictions specified in Section 8.1 shall be applicable
during the Employment Period and for a period of one (1) year thereafter. These
restrictions shall not be applicable with respect to a particular business if
the Company has ceased to be actively engaged in such business or never engaged
in the business within the time contemplated by the plan or one year after the
date of the plan.
8.3. The restrictions set forth in this Section 8 are considered by the
parties to be reasonable for the purposes of protecting the business of the
Company. However, if any such restriction is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period of time, range of
activities or geographic areas as to which it may be enforceable.
8.4. It shall not be considered a competitive activity within the
meaning of Section 8.1 for Employee to be a member of the faculty or staff of a
university, college or other educational or charitable institution, and to
undertake all activities, which are normally associated with such positions.
9. Covenant Not to Solicit Employees.
Unless otherwise approved by the Board of Directors in writing,
Employee shall not at any time, during or for a period ending one year after
expiration of the Employment Period, recruit or otherwise solicit or induce any
employee of the Company or any of its subsidiaries to terminate their employment
with the Company or any of its subsidiaries.
10. Injunctive Relief.
Employee acknowledges and agrees that, in the event Employee shall
violate any provisions of Sections 6, 8 or 9, the Company will be without an
adequate remedy at law and, accordingly, will be entitled to enforce such
restrictions by temporary or permanent injunctive or mandatory relief obtained
in any action or proceeding instituted in any court of competent jurisdiction
without the necessity of proving damages and without prejudice to any other
remedies which it may have at law or in equity.
11. Termination.
11.1. Employee's employment shall automatically be terminated upon the
death of Employee or Employee's voluntarily leaving the employ of the Company
and, in addition, Employee's employment may be terminated, at the sole
discretion of the Company, and without recourse by Employee, upon the occurrence
of either of the following events:
(1) in the event of Employee's disability as set forth in
Section 11.2, but only upon fourteen (14) days' prior written notice
from the Company to Employee;
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(2) in the event that the Board of Directors determines in
writing that there is cause for immediate termination, which shall mean
that the Board of Directors reasonably determines either (i) Employee
has willfully failed to perform material duties as an employee and
officer of the Company following receipt of a written notice from the
Board of Directors, which identifies the manner in which Employee has
willfully failed to perform such duties, and Employee fails to cure
such failure within 15 business days of such notice; (ii) Employee has
willfully failed to follow any reasonable policies or directives of the
Board of Directors after having received written notice from the Board
of Directors that Employee is not following such policies or
directions, and Employee fails to cure such failure within 15 business
days of such notice; (iii) Employee has engaged in willful, malicious
or bad faith conduct materially detrimental to the Company; (iv)
Employee has been convicted of any felony or crime involving financial
misconduct or moral turpitude; or (v) Employee has materially breached
this Agreement.
11.2. Employee shall be deemed disabled if, in the reasonable opinion
of the Board of Directors of the Company, as confirmed by competent medical
advice, Employee becomes physically or mentally unable to perform Employee's
duties for the Company and such incapacity shall have continued for any period
of ninety (90) consecutive days or for a period of one hundred twenty days (120)
within any consecutive six (6) month period.
11.3. In the event the Company terminates Employee's employment for any
reason other than in accordance with Section 11.1 or in the event of a
non-renewal of the Employment Period by the Company pursuant to Section 3 ("No
Cause Termination"), then the Company shall pay to Employee all amounts earned
by Employee pursuant to Section 3, together with any reimbursable amount
incurred by Employee pursuant to Section 4, plus, severance pay equal to the
amount of Base Salary for twelve (12) months (less any advance commissions
previously paid to Employee but not earned, plus any bonus due Employee). Such
severance shall be paid in twelve (12) monthly installments, subject to any
required withholding, commencing on the first day of the month immediately
following termination of the Employment Period; provided, however, that on such
date Employee is in compliance with and thereafter continues to comply with any
and all material provisions that survive the termination of this Agreement.
Except as may be specifically provided by any option agreement between Employee
and the Company (or any affiliate) or by any benefit or incentive plan of the
Company, or as stated in this Agreement, the Company and its affiliated entities
shall have no other obligations to Employee. In the event of a No Cause
Termination, the restrictions set forth in Section 8 shall no longer apply to
Employee, provided that Employee is in compliance with any and all material
provisions that survive the termination of this Agreement.
11.4. For purposes of Section 11, in the event Employee shall resign
from Employee's employment with the Company subsequent to any materially adverse
change in Employee's title, nature of duties, powers or responsibilities or
employee benefits or a relocation of Employee's primary place of employment from
the New York Metropolitan area or other material breach of this Agreement by the
Company, such resignation shall be deemed to be a termination of employment by
the Company other than in accordance with Section 11.1.
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11.5. Employee shall be under no obligation to mitigate the amount of
any payment provided for under this Section 11 by seeking other employment or
other sources of income, nor shall such amount be offset by any compensation
which Employee may receive from future employment or other sources of income.
12. Stock Options.
The Company shall have in place within 90 days an Employee Stock Option
Plan as allowed by law. The plan and number of options offered to Employee shall
be reasonable for an individual in Employee's executive position and agreeable
to Employee.
13. Assignment.
This Agreement, as it relates to the employment of Employee, is a
personal contract and the rights and interests of Employee hereunder may not be
sold, transferred, assigned, pledged or hypothecated. This Agreement shall inure
to the benefit of and be binding upon the Company and its successors and
assigns, including without limitation, any corporation or other entity into
which the Company is merged, irrespective of whether or not the Company is the
surviving entity of such merger, or which acquires all of the outstanding shares
of the Company's capital stock, or all or substantially all of the assets of the
Company, provided, however, any such assignment shall be valid only so long as
Company or its successor is not relieved of any obligation hereunder and so long
as the assignee assumes the Company's obligations hereunder. To the extent
permitted by law, Employee shall not have any power of anticipation, alienation
or assignment of payments contemplated hereunder, and all rights and benefits of
Employee shall be for the sole personal benefit of Employee, and no other person
shall acquire any right, title or interest hereunder by reason of any sale,
assignment, transfer, claim or judgment or bankruptcy proceedings against
Employee.
14. Notices.
Any notice required or permitted to be given pursuant to this Agreement
shall be deemed given three (3) business days after such notice is mailed by
certified mail, return receipt requested, addressed as follows: (i) if to
Employee, at 000 Xxxx 0xx Xxxxxx, Xxx Xxxx, XX 00000; and (ii) if to the
Company, at 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxx XxXxxxxxxxx, CEO.
15. Governing Law.
This Agreement shall be governed by, and enforced in accordance with,
the laws of the State of New York. Any dispute or controversy with respect to
this Agreement, other than injunctive relief under Section 10, shall be
submitted to arbitration, in New York City, with the American Arbitration
Association. The decision of the arbitrators shall be final and binding upon the
parties hereto and may be entered in any court having jurisdiction. Each party
in such arbitration proceeding shall pay its own fees, costs and expenses
incurred therein.
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16. Waiver.
If the waiver by either party of a breach of any provision of this
Agreement shall be held to be invalid or unenforceable, such invalidity or
unenforceability shall attach only to such provision and not in any way affect
or render invalid or unenforceable any other provisions of this Agreement, and
this Agreement shall be carried out as if such invalid or unenforceable
provision were not part of this Agreement.
17. Indemnification.
The Company shall indemnify, defend and hold harmless Employee as an
officer, director, employee, agent or fiduciary of the Company or its affiliated
entities to the fullest extent permitted by applicable law.
18. Entire Agreement.
This Agreement constitutes the entire agreement between the parties
with respect to Employee's employment by the Company, and there are no
representations, warranties or commitments except as set forth herein. This
Agreement supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether written or oral, of the parties hereto
relating to the transactions contemplated by this Agreement.
19. Lock-Up Agreement(s).
With respect to any future sale of securities of the Company, Employee
will execute such lock-up agreement(s) as may be reasonably required by an
underwriter, or as may be required by the NASD, the Securities and Exchange
Commission and any state "blue sky" regulators provided, however, that the terms
and conditions of such lock-up agreement(s) must be substantially the same in
all material respects with any lock-up agreement(s) signed by other officers,
directors, and stockholders of the Company.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
DIALOG GROUP, INC.
By: /s/ Xxxxx X. XxXxxxxxxxx
-------------------------------------
Xxxxx X. XxXxxxxxxxx, President
EMPLOYEE
By: /s/ Xxxxxxx XxXxxxxxxxx
-------------------------------------
Xxxxxxx XxXxxxxxxxx
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