Employment Agreement
EXHIBIT
10.1
This Employment Agreement (the
“Agreement”) will be effective as of March 15,
2007 (the “Effective
Date”) by and between
Accelerize New Media, Inc., a Delaware corporation with headquarters at
0000 XXX 00 Xxxxx, Xxxxx
000, Xxxxxxxxx, XX 00000
(the “Company”), and Xxxx XxXxxxxx, an individual
(“Employee”). Company and
Employee may hereinafter be collectively referred to as the (“Parties”), each a
(“Party”).
1. Term and
Termination. Employee’s employment shall be “at will”, meaning
that notwithstanding anything to the contrary herein, Parties shall have the
right to terminate Employee’s employment under this Agreement at any time
without cause by giving notice of such termination to the other
Party. Section 7 of this Agreement shall continue in full force and
effect during any period of employment and shall survive the termination of
employment.
2. Duties. Employee
shall be employed in the position of President of Lead Generation for the
Company. Employee shall (a) be responsible, subject to the board of
directors of the Company (the “Board”) and the
President of the Company, for participating in the management and direction of
the Company, (b) perform all duties incident to such offices and (c) perform
such other tasks, consistent with Employee’s position with the Company, as may
from time to time be assigned to Employee by the Board or other officers of the
Company. Employee shall devote all of Employee’s business time,
labor, skill, and best ability to the performance of Employee’s duties hereunder
in a manner which will faithfully and diligently further the business and
interests of the Company. During the term of employment, Employee
shall not directly or indirectly pursue any other business activity which
unreasonably interferes with the performance of Employee’s duties and
responsibilities hereunder; provided, however, that
Employee may serve on civic or other charitable boards or committees and manage
personal investments, so long as such activities do not interfere in any
material respect with the performance of Employee’s duties and responsibilities
hereunder.
3. Compensation. During the Term Employee
shall receive an annual base salary (the “Annual Base Salary”)
of One Hundred Fifty Thousand Dollars ($150,000). The Annual Base
Salary shall be payable in accordance with the Company’s payroll practices as in
effect from time to time, subject to applicable withholding and other
taxes.
4. Additional
Benefits.
(a) Business
Expenses. The Company shall reimburse Employee for reasonable
and properly documented business expenses incurred by Employee in connection
with Employee’s employment by the Company.
(b) Benefit Plans and
Programs. During Employee’s employment, the Company will pay Employee’s health insurance
premiums.
(c) Stock Option
Plan. Employee shall, to the extent Employee is otherwise
eligible, be entitled to participate in the Company’s stock option plan;
provided that any grant of options shall be subject to vesting and other terms
and conditions as may be determined by the Board of Directors of the
Company. Upon execution of this agreement, Employee shall be granted
a non-qualified stock option (an “NSO”) to purchase
shares of the Company’s common stock subject to the terms and conditions of the
option agreement between the Company and Employee relating to such option of
even date herewith (the “NSO
Agreement”).
5. Illness or
Disability. If, because of Employee’s illness or other
disability for a continuous period of more than 45 days, Employee is unable to render the
services required by the Company as provided herein, the Company may terminate
Employee’s employment hereunder. Upon such termination, if any,
Employee shall not be entitled to any further payments of any nature, except for
payment of (a) any earned but unpaid Annual Base Salary
and (b) unreimbursed business expenses
(collectively, “Payable Amounts”). All Payable Amounts shall become due and
payable on the date of such termination.
6. Death. In
the event of Employee’s death, the Term shall end and the obligation of the
Company to make any payments whatsoever under this Agreement shall cease, except
that Employee’s executors, administrators, or other legal representatives, shall
be entitled to receive any Payable
Amounts.
7. Restrictions. Employee
acknowledges that the business in which the Company is engaged is highly
competitive, and that Employee is a key executive of the
Company. Employee further acknowledges that Employee will acquire
extensive confidential information and knowledge of the business of the Company,
and will develop relationships with, and/or knowledge of, customers, clients,
employees, sales agents, middlemen and suppliers of the Company and its
subsidiaries and affiliates. In light of the foregoing, Employee
agrees as follows:
(a) Non-Solicitation. While
Employee is employed by the Company and for a period of eighteen (18) months
thereafter, Employee agrees that Employee will not, either directly or
indirectly, (i) attempt to recruit, solicit or take away any employee or
consultant of Company; make known to any person, firm or corporation the names
or addresses of, or any information pertaining to any employee or consultant of
Company or (ii) attempt to call on, solicit or take away any customer or
collaborating partner of Company or any prospective customer or collaborating
partner of Company.
(b) Non-Competition (Financial
Portals). While Employee is employed by the Company and for a period of
eighteen (18) months thereafter, (i) Employee will not directly or indirectly be
interested in, as an owner, partner, member or shareholder of any entity, which
engages in activities related to financial website portals or any other activity
that is specific to the business of the Company and its affiliates from time to
time (“Proscribed
Activity”) provided, however, that
Employee and members of Employees family may acquire (or hold) solely for
investment purposes up to 5% of the outstanding equity interests in any
publicly-traded company; and (ii) Employee will not, directly or indirectly as
an employee, officer, director, partner, joint venturer, consultant or otherwise
engage in any Proscribed Activity or participate, consult with, render services
to or permit Employee’s name to be used or any other manner or capacity engage
in any business or enterprise which engages in Proscribed Activity.
(c) (Same as Section
A)
(d) Confidentiality.
(i) Employee agrees at all
times during Employee’s employment with the Company and thereafter to hold in
strictest confidence, and not to use, except for the benefit of the Company and
within the scope of Employee’s employment, or to disclose (except as required by
law) to any person or entity, any Confidential Information of the
Company. Employee understands that “Confidential
Information” means (i) any and all information, in whatever form, whether
reduced to writing, maintained on any form of electronic media, or maintained in
mind or memory, received by Employee or generated by Employee on behalf of the
Company at any time before or after the date of this Agreement relating to the
current or prospective business, research and development activities, products,
technology, strategy, organization and/or finances of the Company, or of third
parties (including affiliates, vendors, suppliers and customers) with which the
Company has a business relationship and (ii) any other information, in whatever
form, designated by the Company as confidential, in either of cases (i) or (ii),
above, whether disclosed to, or obtained by Employee prior or subsequent to the
date of execution of this Agreement. Confidential Information shall
include without limitation customer lists, database information, samples,
demonstration models or materials and other embodiments of products or
prospective products, software and other technology, projections, existing and
proposed projects or experiments, processes and methodologies and trade secrets
and all Developments, as defined below, but excluding (A) information that the
Company deliberately and voluntarily makes publicly available and (B)
information disclosed by Employee to comply with a court, or other lawful
compulsory, order compelling Employee to do so, provided Employee give the
Company prompt notice of the receipt of such order and disclosure is limited
only to disclosure necessary for such purpose. Employee specifically acknowledge
that the Confidential Information derives independent economic value from not
being readily known to, or ascertainable by proper means by others; that the
Company has expended considerable sums and efforts to develop such Confidential
Information; reasonable efforts have been made by the Company to maintain the
secrecy of such information; that such information is the sole property of the
Company or its affiliates, vendors, suppliers, or customers and that any
retention, use or disclosure of such Confidential Information by Employee during
the Term (except in the course of performing Employee’s duties under this
Agreement) or any time after termination thereof for any reason, shall
constitute a violation of this Agreement and the misappropriation of the trade
secrets and Confidential Information of the Company or its affiliates, vendors,
suppliers, or customers.
(ii) Employee recognizes
that the Company has received and in the future will receive Confidential
Information of and from other companies subject to a duty on the Company’s part
to maintain the confidentiality of such information and to use it only for
certain limited purposes. Employee agrees to hold all such
confidential or proprietary information in the strictest confidence and not to
disclose it to any person or entity or to use it except as necessary in
performing Employee’s duties under this Agreement.
(iii) Employee agrees that
all Confidential Information, in any form, shall be and remain the sole and
exclusive property of the Company and that immediately upon the termination of
Employee’s employment, or at any other time that the Company may request,
Employee shall deliver all Confidential Information in Employee’s control to the
Company or, if instructed to do so by the Company, Employee will delete or
destroy all Confidential Information in Employee’s control.
(e) Assignment of Work
Product.
(i) If at any time during Employee’s
employment with the Company, Employee has or shall (either alone or with others,
and whether before or after the date of this Agreement) make, conceive, create,
discover, invent or reduce to practice any invention, design, development,
improvement, process, software program, work of authorship, or technique, in
whole or in part, or which results from any work which Employee may do for or at
the request of the Company, whether or not conceived by Employee while on
holiday, on vacation, or off the premises of the Company, including such of the
foregoing items conceived during the course of employment which are developed or
perfected after Employee’s termination, whether or not patentable or registrable
under copyright or similar statutes (herein called “Developments”) that
(a) relates to the business of the Company or any of the products or services
being developed, manufactured or sold by the Company, or (b) results directly or
indirectly from tasks assigned to Employee by the Company or (c) results from
the use of premises or property (whether tangible or intangible) owned, leased
or contracted for by the Company, such Developments and all rights and interests
therein and all records relating to such Developments shall be the sole and
absolute property of the Company. Employee shall promptly disclose to
the Company each such Development and Employee shall deliver to the Company all
records relating to each such Development. Employee hereby assigns
any rights (including, but not limited to, any rights under patent law and
copyright law or other similar laws) Employee may have or acquire in the
Developments to the Company, without further compensation. Where
applicable, all Developments which are copyrightable works shall be works made
for hire. To the extent any such work of authorship may not be deemed
to be a work made for hire, Employee agrees to, and do hereby, irrevocably,
perpetually and unconditionally transfer and assign to the Company all right,
title, and interest including copyright in and to such work without further
compensation.
(ii) Employee
will, during Employee’s employment with the Company and at any time thereafter,
at the request and cost of the Company, promptly sign all such assignments,
applications and other documents, and take such other actions, as the Company
and its duly authorized agents may reasonably require: (A) to evidence the
Company’s ownership of any Development and to apply for, obtain, register and
vest in the name of the Company, or renew, patents, copyrights, trademarks or
other similar protection for any Development in any country throughout the world
and (B) to initiate or defend any judicial, administrative or other proceedings
in respect of such patents, copyrights, trademarks or other similar
rights.
(iii) In
the event the Company is unable, after reasonable effort, to secure Employee’s
signature for such purposes for any reason whatsoever, Employee hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as Employee’s agents and attorneys-in-fact, to act for and in
Employee’s name, behalf and stead, to execute and file any such assignments,
applications or other documents and to do all other lawfully permitted acts to
further the obtaining and protection of such patents, copyright or trademark
registrations or other rights with the same legal force and effect as if
executed by Employee.
(iv) Employee
represents and warrants that (A) Employee does not have any pre-existing
inventions that relate to the business of the Company and all inventions that
Employee has made and own the intellectual property rights to as of the
Effective Date that relate to the business of the Company shall be considered
Developments and are subject to the terms of Section 8(d) and (B) all
Developments that Employee has developed or with respect to which Employee has
been associated while employed by the Company are the sole property of the
Company and that there are no other claims or ownership rights in such property
with respect to any other party.
(f) Return of
Property. Upon the termination of the Employee’s employment or
at any other time upon written request by the Company, Employee shall promptly
deliver to the Company all records, files, memoranda, designs, data, reports,
drawings, plans, computer programs, software and other documents (and all copies
or reproductions for such materials in Employee’s possession or control)
belonging to the Company, including, without limitation, and Developments and/or
Confidential Information and anything relating thereto.
(g) For
the purposes of this Section 7, “Company” shall mean
the Company and its subsidiaries and controlled affiliates.
8. Warranties and
Representations. Employee warrants and represents that
Employee has not violated, and covenants that he will not violate, the terms of
any prior Employment Agreements. The foregoing shall include but is
not limited to any non-solicitation provisions contained in such Employment
Agreements. In any cause of action for a breach of any such
Employment Agreements, Employee shall indemnify and hold harmless Company for
any losses of any kind incurred.
9. General.
(a) Cooperation. During
Employee’s employment and thereafter, Employee agrees to fully cooperate with
the Company or its counsel in connection with any matter, investigation,
proceeding or litigation regarding any matter in which Employee was involved
during Employee’s employment with the Company or to which Employee had knowledge
based on Employee’s employment with the Company.
(b) Notices. Any
notice or any other communication required or permitted to be given hereunder
shall be in writing and shall be sufficiently given (i) when delivered by
personal delivery; or (ii) two days after sending by registered mail, postage
prepaid, return receipt requested, to the party entitled thereto at the address
stated below.
|
(A)
|
To
Company:
|
0000 XXX
00 Xxxxx
Xxxxx
000
Xxxxxxxxx,
XX 00000
Attn: Xxxxx
Xxxx
|
(B)
|
To
Xxxx XxXxxxxx:
|
0000 Xxxx
Xxxxxxx #000
Xxxxxxx Xxxxx,
XX 00000
(c) No
Conflict. Employee represents that Employee’s performance of
all of the terms of this Agreement does not and will not conflict with or breach
any agreement Employee has with any other party.
(d) Waivers. Any
waiver by the Company of any provision of this Agreement shall not operate or be
construed as a waiver of this Agreement or of any subsequent breach of such
provision or any other provision.
(e) Survival of
Terms. Employee’s obligations under Sections 8 and 10 of this
Agreement shall survive the termination of this Agreement for any reason
whatsoever regardless of the manner of such termination and shall be binding
upon Employee’s heirs, executors, administrators and legal
representatives.
(f) Successors and
Assigns. This Agreement shall inure to the benefit of and be
enforceable by the Company’s successors or assigns. The Company shall
have the right to assign this Agreement.
(g) Scope of
Restrictions. Employee agrees that the unenforceability of any
one clause of this Agreement shall in no way impair the enforceability of any of
the other clauses. If any of the provisions of this Agreement shall
for any reason be held to be excessively broad as to scope, activity, subject or
otherwise, the parties hereto agree that such provisions shall be construed by
the appropriate judicial body by limiting or reducing them, so as to be
enforceable to the maximum extent legally permissible.
(h) Remedies. Employee
agrees that a any breach or threatened breach of Section 8 of this agreement
would result in irreparable harm to the Company; therefore, in addition to its
other remedies at law or in equity, the Company shall be entitled to injunctive
or other equitable relief in order to enforce or prevent any violations of the
provisions of Section 8, without the posting of any bond.
(i) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to its
conflict of law provisions.
(j) Dispute
Resolution. If any dispute arises under this Agreement, the
Parties agree to first try to resolve the dispute with the help of a mutually
agreed upon mediator in the following location: Los Angeles,
California. Any costs and fees other than attorney’s fees associated
with the mediation shall be shared equally by the parties. If it
proves impossible to arrive at a mutually satisfactory solution through
mediation, the parties agree to submit the dispute to binding arbitration in the
following location: Los Angeles, California. The parties agree that
the binding arbitration will be conducted under the rules of the American
Arbitration Association. Judgment upon the award rendered by the
arbitrator may be entered in any court with proper jurisdiction.
(k) Entire Agreement;
Amendment. This Agreement constitutes the entire agreement
between the Company and Employee with respect to the subject matter hereof
(except with respect to the NSO), and supersedes all prior discussions,
promises, negotiations and agreements (whether written or oral). The
parties agree that the NSO Agreement governs the terms of the NSO and if any
provision of this Agreement conflict with the terms of the NSO Agreement, the
terms of the NSO Agreement shall govern. This Agreement may be
amended or modified only by a written agreement executed by the Company and
Employee.
(l) Tax
Withholding. The Company may withhold from any amounts payable
under this Agreement or otherwise all federal, state, city, or other taxes as
may be required pursuant to any law or governmental regulation or
ruling.
[SIGNATURE
PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto
have executed or caused to be executed this Agreement as of the date first above
written.
EMPLOYEE:
/s/ Xxxx
XxXxxxxx
Xxxx
XxXxxxxx
ACCELERIZE
NEW MEDIA, INC.
BY: /s/ Xxxxx
Xxxx
Xxxxx
Xxxx
Title:
CEO
