THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of March 1, 1999 is
entered into by and between eSYNCH CORPORATION, a Delaware corporation having
its principal office at 0000 Xxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000 (the
"Company"), and Xxxxxx X. Xxxxxxx, an individual (the "Executive").
WITNESSETH
WHEREAS, the Executive and the Company desire to enter this Agreement to
confirm the terms and conditions on which the Company will employ the
Executive;
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
for other good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, the Company and the Executive agree as follows:
1. Employment. The Company hereby employs the Executive, and the Executive
hereby accepts employment with the Company, for the term set forth in
Section 2 below, in the position and with the duties and
responsibilities set forth in Section 3 below, and upon the other terms
and conditions hereinafter stated.
2. Term. The term of employment shall commence as of the date hereof and
shall end when terminated pursuant to Section 6 below. The period
described above shall be hereinafter referred to as the "Term of
Employment."
3. Position, Duties, Responsibilities and Authority.
(a) During the Term of Employment, the Executive shall serve as
President and Chief Operating Officer of the Company, and shall report
and be responsible to the Chief Executive Officer and the Board of
Directors of the Company. During the Term of Employment, the Executive
shall have the duties, responsibilities and authority as shall be
determined from time to time by the Chief Executive Officer and the
Board of Directors of the Company.
(b) Throughout the Term of Employment, the Executive shall devote his
full business time and attention to the business of the
Company.
4. Base Compensation. During the Term of Employment, the Executive shall
receive base compensation at an annual rate of not less than One Hundred
Fifty Thousand Dollars ($150,000), to be paid in accordance with the
Company's normal procedure for compensation of its senior executives,
but not less frequently than monthly. At the end of each calendar year
during the Term of Employment, the Executive's base compensation shall
be reviewed by the Board of Directors of the Company, on the basis of
the performance of the Executive and the profitability of the Company.
5. Employee Benefits, Perquisites and Expenses. During the Term of
Employment, the Executive shall be entitled to participate in all
benefit plans, programs or practices maintained by the Company for
senior executives or other employees of the Company on the date hereof
and any other such benefit plans, programs or practices from time to
time in effect, subject to the terms thereof. Without limiting the
generality of the foregoing, the Executive shall be entitled to the
following:
(a) The company hereby grants the executive (450,000) four-hundred and
fifty thousand shares of eSYNCH stock at a purchase price of
($0.50) fifty cents per share and (250,000) shares of eSYNCH
company options that are immediately vested at a exercise price of
$1.00 per share as of 1/10/99.
(b) Three (3) weeks of paid vacation in each calendar year during the
Term of Employment subject to the accrual policies of the Company
currently in effect or hereafter approved by the Company's Board
of Directors; plus such holidays, sick leave and other time off as
are established by the policies of the Company currently in effect
or hereafter approved by the Company's Board of Directors;
(c) Reimbursement for all reasonable and documented expenses incurred
by the Executive in connection with the performance of his duties
hereunder, all in accordance with the Company's policy with
respect to such reimbursement;
(d) Medical, dental and other supplemental health benefits, life
insurance benefits for the Executive and his dependents,
accidental death and dismemberment benefits for the Executive, and
long-term disability benefits, at least as favorable to the
Executive as those currently in effect;
(e) Participation in the Company's 401(k) plan, and related matching
program as currently in effect;
(f) Payment of personal tax planning and preparation expenses up to a
maximum of Fifteen Hundred Dollars ($1,500) per year;
(g) A reasonable car allowance or a company car of the make and type
approved by the Board of Directors of the Company but not less
than $500 a month.
6. Termination of Employment. The Term of Employment shall terminate upon
the occurrence of any of the following events:
(a) The Executive may terminate his employment upon giving the Company
written notice thirty (30) days in advance of the proposed date of
termination.
(b) The Executive's employment shall terminate automatically upon the
death of Executive.
(c) The Company may terminate the Executive's employment at any time
for cause by delivering to the Executive a certified copy of a
resolution of the Board of Directors of the Company finding that
the Executive committed an act or omission constituting cause
hereunder. As used herein, the term "cause" shall mean:
(i) Misappropriation of any material funds or property of the
Company, or any act or acts of intentional dishonesty relating to
the Executive's employment resulting or intended to result in
direct or indirect personal gain or enrichment at the expense of
the Company;
(ii) Acting in a manner which is substantially detrimental or
substantially damaging to the Company's reputation, business
operations, prospects or relations with its employees, suppliers
or customers, after receipt of written notice thereof from the
Board of Directors of the Company and a reasonable opportunity to
so remedy such acts; or
(iii) Refusing to perform in material respects his duties
hereunder (other than as a result of any temporary or permanent
mental or physical impairment as certified by a physician
reasonably acceptable to the Company), after receipt of written
notice thereof from the Board of Directors of the Company and a
reasonable opportunity to so perform such duties.
(d) However, notwithstanding any of the above, the Company may
terminate the Executive's employment without cause at any time and
for any reason by giving the Executive written notice (in
accordance with the notice provisions contained in Section 9) from
the Board of Directors of the Company at least thirty (30) days in
advance of the date on which the termination is to become
effective.
7. Obligations and Payments Upon Termination.
(a) Upon any termination of employment pursuant to Section 6, the
Executive and the Company shall have no further obligation to the
other under this Agreement except with respect to the provisions
of this Section 7.
(b) Upon any termination of employment under Sections 6(a), 6(b) or
6(c), the Company shall pay the Executive in a lump sum within ten
(10) days following such termination (or such earlier date
required by law) an amount equal to the pro-rata amount of the
base compensation owed to the Executive as of the effective date
of the termination (as well as any accrued but unpaid vacation) as
he may be entitled to receive up to the date of termination.
(c) Upon any termination of employment under Section 6(d), the Company
shall make payment to the Executive in the amounts and at the
times set forth in Section 7(b); and, in addition:
(i) the Company shall pay the Executive in a lump sum within ten
(10) days following such termination an additional amount
equal to twelve (12) months of his base compensation;
(ii) the Company shall continue to provide to the Executive the
employee benefits, perquisites and expenses identified in
Section 5(c) through 5(f) hereof for the twelve (12) month
period following the date of termination;
(iii) the Company shall repay all loans and other obligations
payable to the Executive in cash within ten (10) days
following such termination; and
(iv) the Company shall repurchase from the Executive all shares of
capital stock, options and warrants of the Company held by
him or his affiliates at the current 30 day average market
trading price prior to the date of delivery notice of the
Executives termination in a lump sum in cash within ten (10)
days following the effective date of termination.
(d) Provided that the Company repurchases all shares of capital stock,
options and warrants of the Company held by the Executive or his
affiliates pursuant to the this agreement (whether such repurchase
occurs as a result of termination without cause or termination for
any other reason) and, to the extent applicable, in accordance
with Section 7(c)(iv) of this Agreement, the Executive hereby
agrees that, from and after the date on which the closing of such
repurchase occurs and continuing for a period of two (2) years
thereafter, he will not, directly or indirectly, engage in any
business, or have any interest in, any corporation, partnership,
proprietorship, firm, Association or business, which engages in
any activities competitive with the products being licensed or
sold by the Company or solicit and/or recruit the company's
customers, suppliers, or personnel at the time of such repurchase.
This covenant shall apply in each jurisdiction in which the
Company licenses or sells any products at the time of such
repurchase. Notwithstanding the foregoing, this covenant shall not
restrict the ability of the Executive to own up to 5% of the
shares of capital stock of any public company.
8. AMENDMENT OR MODIFICATION; WAIVER. No provision of this Agreement may be
amended, modified or waived unless such amendment, modification or
waiver is authorized by the Board of Directors of the Company and is
agreed to in writing, signed by the Executive and by an officer of the
Company (other than the Executive) thereunto duly authorized. Except as
otherwise specifically provided in this Agreement, no waiver by any
party hereto of any breach by any other party hereto of any condition or
provision of this Agreement to be performed by such other party shall be
deemed a waiver of a subsequent breach of such condition or provision or
a waiver of a similar or dissimilar provision or
condition at the same or at any prior or subsequent time; nor shall the
receipt or acceptance of compensation or other benefits following any
termination of the Executive's employment be deemed a waiver of any
condition or provision hereof.
9. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this agreement shall nevertheless remain
in full force and effect. If any provision is held invalid or
unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
10. CHOICE OF LAW. The formation, construction and performance of this
agreement shall be construed in accordance with the laws of California.
11. INTEGRATION. This Agreement contains the entire agreement between the
parties and supercedes all prior oral and written agreements,
understandings, commitments and practices between them, including all
prior employment agreements, whether or not fully performed by Executive
before the date of this Agreement. No oral modifications, express or
implied, may alter or vary the terms of this Agreement.
12. VENUE. Any action brought to enforce the terms of this agreement shall
be commenced, prosecuted and defended exclusively in the State or
Federal court of the State of California located in Orange County,
California.
13. ATTORNEY'S FEES. In the event of any legal action (including any appeal
of a judgement) in connection with the Agreement, the prevailing party
shall be entitled to reimbursement of reasonable attorneys' fees and
costs and expenses (including court costs) incurred in connection there
with.
IN WITNESS WHEREOF, the Executive and the Company, by a duly authorized
officer of the Company, have executed this Employment Agreement as of the
first day of March, 1999
COMPANY
eSYNCH CORPORATION (Board of Directors)
By
---------------------------------------
By
---------------------------------------
By
---------------------------------------
EXECUTIVE
---------------------------------------
Xxxxxx X Xxxxxxx, an individual
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of April 1, 1999
is entered into by and between eSYNCH CORPORATION, a Delaware
corporation having its principal office at 0000 Xxxxxx Xxxxx, Xxxxxxx
Xxxxx, XX 00000 (the "Company"), and Xxxx Xxxx, an individual (the
"Executive").
WITNESSETH
WHEREAS, the Executive and the and the Company desire to enter this
Agreement to confirm the terms and conditions on which the Company will
employ the Executive;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the Company and the
Executive agree as follows:
1. Employment. The Company hereby employs the Executive, and the Executive
hereby accepts employment with the Company, for the term set forth in
Section 2 below, in the position and with the duties and
responsibilities set forth in Section 3 below, and upon the other terms
and conditions hereinafter stated.
2. Term. The term of employment shall commence as of the date hereof and
shall end when terminated pursuant to Section 6 below. The period
described above shall be hereinafter referred to as the "Term of
Employment."
3. Position, Duties, Responsibilities and Authority.
(a) During the Term of Employment, the Executive shall serve as
Vice-President and Corporate Secretary of the Company, and shall
report and be responsible to the Chief Executive Officer of the
Company. During the Term of Employment, the Executive shall have the
duties, responsibilities and authority as shall be determined from
time to time by the Chief Executive Officer of the Company.
(b) Throughout the Term of Employment, the Executive shall devote his
full business time and attention to the business of the Company.
4. Base Compensation. During the Term of Employment, the Executive shall
receive base compensation at an annual rate of not less than One Hundred
thirty Thousand Dollars ($130,000), to be paid in accordance with the
Company's normal procedure for compensation of its senior executives,
but not less frequently than monthly. At the end of each calendar year
during the Term of Employment, the Executive's base compensation shall
be reviewed by the Board of Directors of the Company, on the basis of
the performance of the Executive and the profitability of the Company.
5. Employee Benefits, Perquisites and Expenses. During the Term of
Employment, the Executive shall be entitled to participate in all
benefit plans, programs or practices maintained by the Company for
senior executives or other employees of the Company on the date hereof
and any other such benefit plans, programs or practices from time to
time in effect, subject to the terms thereof. Without limiting the
generality of the foregoing, the Executive shall be entitled to the
following:
(a) Options in conjunction with former option agreement.
(b) Two (2) weeks of paid vacation in each calendar year during the
Term of Employment subject to the accrual policies of the Company
currently in effect or hereafter approved by the Company's Board
of Directors; plus such holidays, sick leave and other time off as
are established by the policies of the Company currently in effect
or hereafter approved by the Company's Board of Directors;
(c) Reimbursement for all reasonable and documented expenses incurred
by the Executive in connection with the performance of his duties
hereunder, all in accordance with the Company's policy with
respect to such reimbursement;
(d) Medical, dental and other supplemental health benefits, life
insurance benefits for the Executive and his dependents,
accidental death and dismemberment benefits for the Executive, and
long-term disability benefits, at least as favorable to the
Executive as those currently in effect;
(e) Participation in the Company's 401(k) plan, and related matching
program as currently in effect;
6. Termination of Employment. The Term of Employment shall terminate upon the
occurrence of any of the following events:
(a) The Executive may terminate his employment upon giving the Company
written notice thirty (30) days in advance of the proposed date of
termination.
(b) The Executive's employment shall terminate automatically upon the
death of Executive.
(c) The Company may terminate the Executive's employment at any time
for cause by delivering to the Executive a letter finding that the
Executive committed an act or omission constituting
cause hereunder. As used herein, the term "cause" shall mean:
(i) Misappropriation of any material funds or property of the
Company, or any act or acts of intentional dishonesty
relating to the Executive's employment resulting or intended
to result in direct or indirect personal gain or enrichment
at the expense of the Company;
(ii) Acting in a manner which is substantially detrimental or
substantially damaging to the Company's reputation, business
operations, prospects or relations with its employees,
suppliers or customers, after receipt of written notice
thereof from the President/COO and a reasonable opportunity
to so remedy such acts; or
(iii) Willfully refusing to perform in material respects his duties
hereunder (other than as a result of any temporary or
permanent mental or physical impairment as certified by a
physician reasonably acceptable to the Company), after
receipt of written notice thereof from the President/COO of
the Company and a reasonable opportunity to so perform such
duties.
(d) The Company may terminate the Executive's employment without cause
at any time and for any reason by giving the Executive written
notice from the President/COO of the Company at least thirty (30)
days in advance of the date on which the termination is to become
effective.
7. Obligations and Payments Upon Termination.
(a) Upon any termination of employment pursuant to Section 6, the
Executive and the Company shall have no further obligation to the
other under this Agreement except with respect to the provisions
of this Section 7.
(b) Upon any termination of employment under Sections 6(a), 6(b) or
6(c), the Company shall pay the Executive in a lump sum within ten
(10) days following such termination (or such earlier date
required by law) an amount equal to the base compensation provided
under section 4 hereof (as well as any accrued but unpaid
vacation) as he may be entitled to receive up to the date of
termination.
(c) Upon any termination of employment under Section 6(d), the Company
shall make payment to the Executive in the amounts and at the
times set forth in Section 7(b); and, in addition:
(i) The Company shall pay the Executive in a lump sum within ten
(10) days following such termination an additional amount equal to
three (3) months of his base compensation;
(ii) The Company shall continue to provide to the Executive the
employee benefits, perquisites and expenses identified in Section
5(c) through 5(f) hereof for the three (3) month period following
the date of termination;
(iii) The Company shall repay all loans and other obligations
payable to the Executive in cash within ten (10) days following
such termination; and
(iv) The Company shall immediately vest all shares of stock
options and warrants of the Company held by the executive and the
company has the right at the companies option to buy back from the
executive any shares of stock, options and warrants held by the
executive at the current 30 day average market trading price prior
to the date of delivery of the Executive's termination.
(v) The executive has three (3) months from the termination date
in which to exercise these options and/or warrants or they expire.
(d) Provided that the Company repurchases all shares of capital stock,
options and warrants of the Company held by the Executive or his
affiliates pursuant to the this agreement (whether such repurchase
occurs as a result of termination without cause or termination for
any other reason) and, to the extent applicable, in accordance
with Section 7(c)(iv) of this Agreement, the Executive hereby
agrees that, from and after the date on which the closing of such
repurchase occurs and continuing for a period of two (2) years
thereafter, he will not, directly or indirectly, engage in any
business, or have any interest in, any corporation, partnership,
proprietorship, firm, Association or business, which engages in
any activities competitive with the products being licensed or
sold by the Company or solicit and/or recruit the company's
customers, suppliers, or personnel at the time of such repurchase.
This covenant shall apply in each jurisdiction in which the
Company licenses or sells any products at the time of such
repurchase. Notwithstanding the foregoing, this covenant shall not
restrict the ability of the Executive to own up to 5% of the
shares of capital stock of any public company.
8. AMENDMENT OR MODIFICATION; Waiver. No provision of this Agreement may be
amended, modified or waived unless such amendment, modification or
waiver is authorized by the Board of Directors of the Company and is
agreed to in writing, signed by the Executive and by an officer of the
Company (other than the Executive) thereunto duly authorized. Except as
otherwise specifically provided in this Agreement, no waiver by any
party hereto of any breach by any other party hereto of any condition or
provision of this Agreement to be performed by such other party shall be
deemed a waiver of a subsequent breach of such condition or provision or
a waiver of a similar or dissimilar provision or condition at the same
or at any prior or subsequent time; nor shall the receipt or acceptance
of compensation or other benefits following any termination of the
Executive's employment be deemed a waiver of any condition or provision
hereof.
9. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this agreement shall nevertheless remain
in full force and effect. If any provision is held invalid or
unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
10. CHOICE OF LAW. The formation, construction and performance of this
agreement shall be construed in accordance with the laws of California.
11. INTEGRATION. This Agreement contains the entire agreement between the
parties and supercedes all prior oral and written agreements,
understandings, commitments and practices between them, including all
prior employment agreements, whether or not fully performed by Executive
before the date of this Agreement. No oral modifications, express or
implied, may alter or vary the terms of this Agreement.
12. VENUE. Any action brought to enforce the terms of this agreement shall
be commenced, prosecuted and defended exclusively in the State or
Federal court of the State of California located in Orange County,
California.
13. ATTORNEY'S FEES. In the event of any legal action (including any appeal
of a judgement) in connection with the Agreement, the prevailing party
shall be entitled to reimbursement of reasonable attorneys' fees and
costs and expenses (including court costs) incurred in connection there
with.
IN WITNESS WHEREOF, the Executive and the Company, by a duly authorized
officer of the Company, have executed this Employment Agreement as of the
first day of April 1999
COMPANY
eSYNCH CORPORATION (Board of Directors)
By
---------------------------------------
By
---------------------------------------
By
---------------------------------------
EXECUTIVE
---------------------------------------
Xxxx Xxxx, an individual
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of April 1, 1999
is entered into by and between eSYNCH CORPORATION, a Delaware
corporation having its principal office at 0000 Xxxxxx Xxxxx, Xxxxxxx
Xxxxx, XX 00000 (the "Company"), and Xxx Xxxx, an individual (the
"Executive").
WlTNESSETH
WHEREAS, the Executive and the and the Company desire to enter this
Agreement to confirm the terms and conditions on which the Company will
employ the Executive;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the Company and the
Executive agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive, and the Executive
hereby accepts employment with the Company, for the term set forth in
Section 2 below, in the position and with the duties and
responsibilities set forth in Section 3 below, and upon the other terms
and conditions hereinafter stated.
2. TERM. The term of employment shall commence as of the date hereof and
shall end when terminated pursuant to Section 6 below. The period
described above shall be hereinafter referred to as the "Term of
Employment."
3. POSITION, DUTIES, RESPONSIBILITIES AND AUTHORITY.
(a) During the Term of Employment, the Executive shall serve as
Vice-President and shall report and be responsible to the President and
COO of the Company. During the Term of Employment, the Executive shall
have the duties, responsibilities and authority as shall be determined
from time to time by the President and COO of the Company.
(b) Throughout the Term of Employment, the Executive shall devote his
full business time and attention to the business of the Company.
4. BASE COMPENSATION. During the Term of Employment, the Executive shall
receive base compensation at an annual rate of not less than One Hundred
Thirty Thousand Dollars ($130,000), to be paid in accordance with
the Company's normal procedure for compensation of its senior
executives, but not less frequently than monthly. At the end of each
calendar year during the Term of Employment, the Executive's base
compensation shall be reviewed by the Board of Directors of the Company,
on the basis of the performance of the Executive and the profitability
of the Company.
5. EMPLOYEE BENEFITS, PERQUISITES AND EQPENSES. During the Term of
Employment, the Executive shall be entitled to participate in all
benefit plans, programs or practices maintained by the Company for
senior executives or other employees of the Company on the date hereof
and any other such benefit plans, programs or practices from time to
time in effect, subject to the terms thereof. Without limiting the
generality of the foregoing, the Executive shall be entitled to the
following:
(a) Options in conjunction with former option agreement.
(b) Two (2) weeks of paid vacation in each calendar year during the
Term of Employment subject to the accrual policies of the Company
currently in effect or hereafter approved by the Company's Board
of Directors; plus such holidays, sick leave and other time off as
are established by the policies of the Company currently in effect
or hereafter approved by the Company's Board of Directors;
(c) Reimbursement for all reasonable and documented expenses incurred
by the Executive in connection with the performance of his duties
hereunder, all in accordance with the Company's policy with
respect to such reimbursement;
(d) Medical, dental and other supplemental health benefits, life
insurance benefits for the Executive and his dependents,
accidental death and dismemberment benefits for the Executive, and
long-term disability benefits, at least as favorable to the
Executive as those currently in effect;
(e) Participation in the Company's 401(k) plan, and related matching
program as currently in effect;
6. TERMINATION OF EMPLOYMNET. The Term of Employment shall terminate upon
the occurrence of any of the following events:
(a) The Executive may terminate his employment upon giving the Company
written notice thirty (30) days in advance of the proposed date of
termination.
(b) The Executive's employment shall terminate automatically upon the
death of Executive.
(c) The Company may terminate the Executive's employment at any time
for cause by delivering to the Executive a letter finding that the
Executive committed an act or omission constituting cause
hereunder. As used herein, the term "cause" shall mean:
(i) Misappropriation of any material funds or property of the
Company, or any act or acts of intentional dishonesty
relating to the Executive's employment resulting or intended to
result in direct or indirect personal gain or enrichment at the
expense of the Company;
(ii) Acting in a manner which is substantially detrimental or
substantially damaging to the Company's reputation, business
operations, prospects or relations with its employees, suppliers
or customers, after receipt of written notice thereof from the
President/COO and a reasonable opportunity to so remedy such acts;
or
(iii) Willfully refusing to perform in material respects his
duties hereunder (other than as a result of any temporary or
permanent mental or physical impairment as certified by a
physician reasonably acceptable to the Company), after receipt of
written notice thereof from the President/COO of the Company and a
reasonable opportunity to so perform such duties.
(d) The Company may terminate the Executive's employment without cause
at any time and for any reason by giving the Executive written
notice from the President/COO of the Company at least thirty (30)
days in advance of the date on which the termination is to become
effective.
7. OBLIGATIONS AND PAYMENTS UPON TERMINATION
(a) Upon any termination of employment pursuant to Section 6, the
Executive and the Company shall have no further obligation to the
other under this Agreement except with respect to the provisions
of this Section 7.
(b) Upon any termination of employment under Sections 6(a), 6(b) or
6(c), the Company shall pay the Executive in a lump sum within ten
(10) days following such termination (or such earlier date
required by law) an amount equal to the base compensation provided
under section 4 hereof(as well as any accrued but unpaid vacation)
as he may be entitled to receive up to the date of termination.
(c) Upon any termination of employment under Section 6(d), the
Company shall make payment to the Executive in the amounts and at
the times set forth in Section 7(b); and, in addition:
(i) The Company shall pay the Executive in a lump sum within ten
(10) days following such termination an additional amount equal to
three (3) months of his base compensation;
(ii) The Company shall continue to provide to the Executive the
employee benefits, perquisites and expenses identified in Section
5(c) through 5(f) hereof for the three (3) month period following
the date of termination;
(iii) The Company shall repay all loans and other obligations
payable to the Executive in cash within ten (10) days following
such termination; and
(iv) The Company shall immediately vest all shares of stock
options and warrants of the Company held by the executive and the
company has the right at the companies option to buy back from the
executive any shares of stock, options and warrants held by the
executive at the current 30 day average market trading price prior
to the date of delivery of the Executive's termination.
(v) The executive has three (3) months from the termination date
in which to exercise these options and/or warrants or they expire.
(d) Provided that the Company repurchases all shares of capital stock,
options and warrants of the Company held by the Executive or his
affiliates pursuant to the this agreement (whether such repurchase
occurs as a result of termination without cause or termination for
any other reason) and, to the extent applicable, in accordance
with Section 7(c)(iv) of this Agreement, the Executive hereby
agrees that, from and after the date on which the closing of such
repurchase occurs and continuing for a period of two (2) years
thereafter, he will not, directly or indirectly, engage in any
business, or have any interest in, any corporation, partnership,
proprietorship, firm, Association or business, which engages in
any activities competitive with the products being licensed or
sold by the Company or solicit and/or recruit the company's
customers, suppliers, or personnel at the time of such repurchase.
This covenant shall apply in each jurisdiction in which the
Company licenses or sells any products at the time of such
repurchase. Notwithstanding the foregoing, this covenant shall not
restrict the ability of the Executive to own up to 5% of the
shares of capital stock of any public company.
8. AMENDMENT OR MODIFICATION; WAIVER. No provision of this Agreement may
be amended, modified or waived unless such amendment, modification or
waiver is authorized by the Board of Directors of the Company and is
agreed to in writing, signed by the Executive and by an officer of the
Company (other than the Executive) thereunto duly authorized. Except as
otherwise specifically provided in this Agreement, no waiver by any
party hereto of any breach by any other party hereto of any condition or
provision of this Agreement to be performed by such other party shall be
deemed a waiver of a subsequent breach of such condition or provision or
a waiver of a similar or dissimilar provision or condition at the same
or at any prior or subsequent time; nor shall the receipt or acceptance
of compensation or other benefits following any termination of the
Executive's employment be deemed a waiver of any condition or provision
hereof.
9. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this agreement shall nevertheless remain
in full force and effect. If any provision is held invalid or
unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
10. CHOICE OF LAW. The formation, construction and performance of this
agreement shall be construed in accordance with the laws of California.
11. INTEGRATION. This Agreement contains the entire agreement between the
parties and supercedes all prior oral and written agreements,
understandings, commitments and practices between them, including all
prior employment agreements, whether or not fully performed by Executive
before the date of this Agreement. No oral modifications, express or
implied, may alter or vary the terms of this Agreement.
12. VENUE. Any action brought to enforce the terms of this agreement shall
be commenced, prosecuted and defended exclusively in the State or
Federal court of the State of California located in Orange County,
California.
13. ATTORNEY'S FEES. In the event of any legal action (including any appeal
of a judgement) in connection with the Agreement, the prevailing party
shall be entitled to Reimbursement of reasonable attorneys' fees and
costs and expenses (including court costs) incurred in connection there
with.
IN WITNESS WHEREOF, the Executive and the Company, by a duly authorized
officer of the Company, have executed this Employment Agreement as of
the first day of April 1999
COMPANY
eSYNCH CORPORATION (Board of Directors)
By
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By
---------------------------------------
By
-----------------------------------------
EXECUTIVE
-----------------------------------------
Xxx Xxxx, an individual
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of April 1, 1999
is entered into by and between eSYNCH CORPORATION, a Delaware
corporation having its principal office at 0000 Xxxxxx Xxxxx, Xxxxxxx
Xxxxx, XX 00000 (the "Company"), and Xxxxxx Xxx, an individual (the
"Executive").
WITNESSETH
WHEREAS, the Executive and the and the Company desire to enter this
Agreement to confirm the terms and conditions on which the Company will
employ the Executive;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the Company and the
Executive agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive, and the Executive
hereby accepts employment with the Company, for the term set forth in
Section 2 below, in the position and with the duties and responsibilities
set forth in Section 3 below, and upon the other terms and conditions
hereinafter stated.
2. TERM. The term of employment shall commence as of the date hereof and
shall end when terminated pursuant to Section 6 below. The period
described above shall be hereinafter referred to as the "Term of
Employment."
3. POSITION, DUTIES, RESPONSIBILITIES AND AUTHORITY
(a) During the Term of Employment, the Executive shall serve as
Vice-President and General Manager of the Company, and shall report and
be responsible to the President and Chief Operating Officer of the
Company. During the Term of Employment, the Executive shall have the
duties, responsibilities and authority as shall be determined from time
to time by the President and Chief Operating Officer of the Company.
(b) Throughout the Term of Employment, the Executive shall devote his
full business time and attention to the business of the Company.
4. BASE COMPENSATION. During the Term of Employment, the Executive shall
receive base compensation at an annual rate of not less than One
Hundred Ten Thousand Dollars ($110,000), to be paid in accordance with
the Company's normal procedure for compensation of its senior
executives, but not less frequently than monthly. At the end of each
calendar year during the Term of Employment, the Executive's base
compensation shall be reviewed by the Board of Directors of the Company,
on the basis of the performance of the Executive and the profitability
of the Company.
5. EMPLOYEE BENEFITS, PEREQUSITIES AND EXPENSES During the Term of
Employment, the Executive shall be entitled to participate in all
benefit plans, programs or practices maintained by the Company for
senior executives or other employees of the Company on the date hereof
and any other such benefit plans, programs or practices from time to
time in effect, subject to the terms thereof. Without limiting the
generality of the foregoing, the Executive shall be entitled to the
following:
(a) The company hereby grants the executive(250,000) Two Hundred and
Fifty thousand shares of eSYNCH options that are immediately
vested at a exercise price of $1.00 per share as of 1/10/99
(b) Three (3) weeks of paid vacation in each calendar year during the
Term of Employment subject to the accrual policies of the Company
currently in effect or hereafter approved by the Company's Board
of Directors; plus such holidays, sick leave and other time off as
are established by the policies of the Company currently in effect
or hereafter approved by the Company's Board of Directors;
(c) Reimbursement for all reasonable and documented expenses incurred
by the Executive in connection with the performance of his duties
hereunder, all in accordance with the Company's policy with
respect to such reimbursement;
(d) Medical, dental and other supplemental health benefits, life
insurance benefits for the Executive and his dependents,
accidental death and dismemberment benefits for the Executive, and
long-term disability Benefits, at least as favorable to the
Executive as those currently in effect;
(e) Participation in the Company's 401(k) plan, and related matching
program as currently in effect;
6. Termination of Employment. The Term of Employment shall terminate upon the
occurrence of any of the following events:
(a) The Executive may terminate his employment upon giving the Company
written notice thirty (30) days in advance of the proposed date of
termination.
(b) The Executive's employment shall terminate automatically upon the
death of Executive.
(c) The Company may terminate the Executive's employment at any time
for cause by delivering to the Executive a letter finding that the
executive committed an act or omission constituting cause
hereunder. As used herein, the term "cause" shall mean:
(i) Misappropriation of any material funds or property of the
Company, or any act or acts of intentional dishonesty relating to
the Executive's employment resulting or intended to result in
direct or indirect personal gain or enrichment at the expense of
the Company;
(ii) Acting in a manner which is substantially detrimental or
substantially damaging to the Company's reputation, business
operations, prospects or relations with its employees, suppliers
or customers, after receipt of written notice thereof from the
President/COO and a reasonable opportunity to so remedy such acts;
or
(iii) Willfully refusing to perform in material respects his
duties hereunder (other than as a result of any temporary or
permanent mental or physical impairment as certified by a
physician reasonably acceptable to the Company), after receipt of
written notice thereof from the President/COO of the Company and a
reasonable opportunity to so perform such duties.
(d) The Company may terminate the Executive's employment without cause
at any time and for any reason by giving the Executive written
notice from the President/COO of the Company at least thirty (30)
days in advance of the date on which the termination is to become
effective.
7. OBLIGATIONS AND PAYMENTS UPON TERMINATION.
(a) Upon any termination of employment pursuant to Section 6, the
Executive and the Company shall have no further obligation to the
other under this Agreement except with respect to the provisions
of this Section 7.
(b) Upon any termination of employment under Sections 6(a), 6(b) or
6(c), the Company shall pay the Executive in a lump sum within ten
(10) days following such termination (or such earlier date
required by law) an amount equal to the base compensation provided
under section 4 hereof(as well as any accrued but unpaid vacation)
as he may be Entitled to receive up to the date of termination.
(c) Upon any termination of employment under Section 6(d), the Company
shall make payment to the Executive in the amounts and at the
times set forth in Section 7(b); and, in addition:
(i) The Company shall pay the Executive in a lump sum within ten
(10) days following such termination an additional amount
equal to three (3) months of his base compensation;
(ii) The Company shall continue to provide to the Executive the
employee benefits, perquisites and expenses identified in
Section 5(c) through 5(f) hereof for the three (3) month
period following the date of termination;
(iii) The Company shall repay all loans and other obligations
payable to the Executive in cash within ten (10) days
following such termination; and
(iv) The Company shall immediately vest all shares of stock
options and warrants of the Company held by the executive and
the company has the right at the companies option to buy back
from the executive any shares of stock, options and warrants
held by the executive at the current 30 day average market
trading price prior to the date of delivery of the
Executive's termination.
(v) The executive has three (3) months from the termination date
in which to exercise these options and/or warrants or they
expire.
(d) Provided that the Company repurchases all shares of capital stock,
options and warrants of the Company held by the Executive pursuant
to the this agreement (whether such repurchase occurs as a result
of termination without cause or termination for any other reason)
and, to the extent applicable, in accordance with Section 7(c)(iv)
of this Agreement, the Executive hereby agrees that, from and
after the date on which the closing of such repurchase occurs and
continuing for a period of two years thereafter, he will not,
directly or indirectly, engage in any business, or have any
interest in, any corporation, partnership, proprietorship, firm,
Association or business, which engages in any activities
competitive with the products being licensed or sold by the
Company at the time of such repurchase. This covenant shall apply
in each jurisdiction in which the Company licenses or sells any
products at the time of such repurchase. Notwithstanding the
foregoing, this covenant shall not restrict the ability of the
Executive to own up to 5% of the shares of capital stock of any
public company.
8. AMENDMENT OR MODIFICATION; WAIVER. No provision of this Agreement
may be amended, modified or waived unless such amendment, modification
or waiver is authorized by the Board of Directors of the Company and is
agreed to in writing, signed by the Executive and by an officer of the
Company (other than the Executive) thereunto duly authorized. Except as
otherwise specifically provided in this Agreement, no waiver by any
party hereto of any breach by any other party hereto of any condition
or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a subsequent breach of such condition or
provision or a waiver of a similar or dissimilar provision or condition
at the same or at any prior or subsequent time; nor shall the receipt
or acceptance of compensation or other benefits following any
termination of the Executive's employment be deemed a waiver of any
condition or provision hereof.
9. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this agreement shall nevertheless remain
in full force and effect. If any provision is held invalid or
unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
10. CHOICE OF LAW. The formation, construction and performance of this
agreement shall be construed in accordance with the laws of California.
11. INTEGRATION. This Agreement contains the entire agreement between the
parties and supercedes all prior oral and written agreements,
understandings, commitments and practices between them, including all
prior employment agreements, whether or not fully performed by Executive
before the date of this Agreement. No oral modifications, express or
implied, may alter or vary the terms of this Agreement.
12. VENUE. Any action brought to enforce the terms of this agreement shall be
commenced, prosecuted and defended exclusively in the State or Federal
court of the State of California located in Orange County, California.
13. ATTORNEY'S FEES. In the event of any legal action (including any appeal
of a judgement) in connection with the Agreement, the prevailing party
shall be entitled to reimbursement of reasonable attorneys' fees and
costs and expenses (including court costs) incurred in connection there
with.
IN WITNESS WHEREOF, the Executive and the Company, by a duly authorized
officer of the Company, have executed this Employment Agreement as of
the first day of April 1999
COMPANY
eSYNCH CORPORATION (Board of Directors)
By
---------------------------------------
By
---------------------------------------
By
---------------------------------------
EXECUTIVE
---------------------------------------
Xxxxxx Xxx, an individual
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of September 8, 1999
is entered into by and between eSYNCH CORPORATION, a Delaware corporation
having its principal office at 15502 Xxxxxx, Tustin, CA (the "Company"), and
Xxxxx X. Xxxxx an individual (the "Executive").
WITNESSETH
WHEREAS, the Executive and the Company desire to enter this Agreement to
confirm the terms and conditions on which the Company will employ the
Executive;
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
for other good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, the Company and the Executive agree as follows:
1. Employment. The Company hereby employs the Executive, and the Executive
hereby accepts employment with the Company, for the term set forth in
Section 2 below, in the position and with the duties and
responsibilities set forth in Section 3 below, and upon the other terms
and conditions hereinafter stated.
2. Term. The term of employment shall commence as of the date hereof and
shall end when terminated pursuant to Section 6 below. The period
described above shall be hereinafter referred to as the "Term of
Employment."
3. Position, Duties, Responsibilities and Authority.
(a) During the Term of Employment, the Executive shall serve as Chief
Financial Officer of the Company, and shall report and be responsible to
the Chief Executive Officer and the Board of Directors of the Company.
During the Term of Employment, the Executive shall have the duties,
responsibilities and authority as shall be determined from time to time
by the Chief Executive Officer and the Board of Directors of the Company.
(b) Throughout the Term of Employment, the Executive shall devote his
full business time and attention to the business of the Company.
4. Base Compensation. During the Term of Employment, the Executive shall
receive base compensation at an annual rate of not less than One
Hundred Fifty Thousand Dollars ($150,000), to be paid in accordance with
the Company's normal procedure for compensation of its senior
executives, but not less frequently than monthly. At the end of each
calendar year during the Term of Employment, the Executive's base
compensation shall be reviewed by the Board of Directors of the Company,
on the basis of the performance of the Executive and the profitability
of the Company.
5. Employee Benefits, Perquisites and Expenses. During the Term of
Employment, the Executive shall be entitled to participate in all
benefit plans, programs or practices maintained by the Company for
senior executives or other employees of the Company on the date hereof
and any other such benefit plans, programs or practices from time to
time in effect, subject to the terms thereof. Without limiting the
generality of the foregoing, the Executive shall be entitled to the
following:
(a) The company hereby grants the executive (250,000) two hundred and
fifty thousand shares of eSYNCH stock at a purchase price of
($1.00) one dollar per share and (250,000) shares of eSYNCH
company options that are vested quarterly in the amount of 31,250
per quarter at a exercise price of $1.00 per share as of 9/08/99.
(b) Three (3) weeks of paid vacation in each calendar year during the
Term of Employment subject to the accrual policies of the Company
currently in effect or hereafter approved by the Company's Board
of Directors; plus such holidays, sick leave and other time off as
are established by the policies of the Company currently in effect
or hereafter approved by the Company's Board of Directors;
(c) Reimbursement for all reasonable and documented expenses incurred
by the Executive in connection with the performance of his duties
hereunder, all in accordance with the Company's policy with
respect to such reimbursement;
(d) Medical, dental and other supplemental health benefits, life
insurance benefits for the Executive and his dependents,
accidental death and dismemberment benefits for the Executive, and
long-term disability benefits, at least as favorable to the
Executive as those currently in effect;
(e) Participation in the Company's 401(k) plan, and related matching
program as currently in effect;
(f) Payment of personal tax planning and preparation expenses up to a
maximum of Fifteen Hundred Dollars ($1,000) per year;
(g) A reasonable car allowance or a company car of the make and type
approved by the Board of Directors of the Company but not less
than $500 a month.
6. Termination of Employment. The Term of Employment shall terminate upon
the occurrence of any of the following events:
(a) The Executive may terminate his employment upon giving the Company
written notice thirty (30) days in advance of the proposed
date of termination.
(b) The Executive's employment shall terminate automatically upon the
death of Executive.
(c) The Company may terminate the Executive's employment at any time
for cause by delivering to the Executive a certified copy of a
resolution of the Board of Directors of the Company finding that
the Executive committed an act or omission constituting cause
hereunder. As used herein, the term "cause" shall mean:
(i) Misappropriation of any material funds or property of the
Company, or any act or acts of intentional dishonesty relating to
the Executive's employment resulting or intended to result in
direct or indirect personal gain or enrichment at the expense of
the Company;
(ii) Acting in a manner which is substantially detrimental or
substantially damaging to the Company's reputation, business
operations, prospects or relations with its employees, suppliers
or customers, after receipt of written notice thereof from the
Board of Directors of the Company and a reasonable opportunity to
so remedy such acts; or
(iii) Refusing to perform in material respects his duties
hereunder (other than as a result of any temporary or permanent
mental or physical impairment as certified by a physician
reasonably acceptable to the Company), after receipt of written
notice thereof from the Board of Directors of the Company and a
reasonable opportunity to so perform such duties.
(d) However, notwithstanding any of the above, the Company may
terminate the Executive's employment without cause at any time and
for any reason by giving the Executive written notice (in
accordance with the notice provisions contained in Section 9) from
the Board of Directors of the Company at least thirty (30) days in
advance of the date on which the termination is to become
effective.
7. Obligations and Payments Upon Termination.
(a) Upon any termination of employment pursuant to Section 6, the
Executive and the Company shall have no further obligation to the
other under this Agreement except with respect to the provisions
of this Section 7.
(b) Upon any termination of employment under Sections 6(a), 6(b) 6(c)
or 6 (d), the Company shall pay the Executive in a lump sum within
ten (10) days following such termination (or such earlier date
required by law) an amount equal to the pro-rata amount of the
base compensation owed to the Executive as of the effective date
of the termination (as well as any accrued but unpaid vacation) as
he may be entitled to receive up to the date of termination.
(c) Upon any termination of employment under Section 6(d), the Company
shall make payment to the Executive in the amounts and
at the times set forth in Section 7(b); and, in addition:
(i) the Company shall pay the Executive in a lump sum within ten
(10) days following such termination an additional amount
equal to six (6) months of his base compensation;
(ii) the Company shall continue to provide to the Executive the
employee benefits, perquisites and expenses identified in
Section 5(c) through 5(f) hereof for the six (6) month period
following the date of termination;
(iii) the Company shall repay all loans and other obligations
payable to the Executive in cash within ten (10) days
following such termination.
8. AMENDMENT OR MODIFICATION; WAIVER. No provision of this Agreement may be
amended, modified or waived unless such amendment, modification or
waiver is authorized by the Board of Directors of the Company and is
agreed to in writing, signed by the Executive and by an officer of the
Company (other than the Executive) thereunto duly authorized. Except as
otherwise specifically provided in this Agreement, no waiver by any
party hereto of any breach by any other party hereto of any condition or
provision of this Agreement to be performed by such other party shall be
deemed a waiver of a subsequent breach of such condition or provision or
a waiver of a similar or dissimilar provision or condition at the same
or at any prior or subsequent time; nor shall the receipt or acceptance
of compensation or other benefits following any termination of the
Executive's employment be deemed a waiver of any condition or provision
hereof.
9. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this agreement shall nevertheless remain
in full force and effect. If any provision is held invalid or
unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
10. CHOICE OF LAW. The formation, construction and performance of this
agreement shall be construed in accordance with the laws of California.
11. INTEGRATION. This Agreement contains the entire agreement between the
parties and supercedes all prior oral and written agreements,
understandings, commitments and practices between them, including all
prior employment agreements, whether or not fully performed by Executive
before the date of this Agreement. No oral modifications, express or
implied, may alter or vary the terms of this Agreement.
12. VENUE. Any action brought to enforce the terms of this agreement shall
be commenced, prosecuted and defended exclusively in the State or
Federal court of the State of California located in Orange County,
California.
13. ATTORNEY'S FEES. In the event of any legal action (including any appeal
of a judgement) in connection with the Agreement, the prevailing party
shall be entitled to reimbursement of reasonable attorneys' fees and
costs and expenses (including court costs) incurred in connection there
with.
IN WITNESS WHEREOF, the Executive and the Company, by a duly authorized
officer of the Company, have executed this Employment Agreement as of the
first day of March, 1999
COMPANY
eSYNCH CORPORATION (Board of Directors)
By
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By
---------------------------------------
By
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EXECUTIVE
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Xxxxx X. Xxxxx, an individual
