EMPLOYMENT AGREEMENT
by and between
PREDICT IT, INC.
and
XXXX XXXXX
THIS EMPLOYMENT AGREEMENT this ("Agreement"), effective as of
June 30, 1999, is entered into by and between Xxxx Xxxxx ("Employee") and
Predict It, Inc., a Delaware corporation (the "Company"). This Employment
Agreement, the Non-Competition Agreement (as defined below), and the
Non-Disclosure and Developments Agreement (as defined below) are herein
collectively referred to as this "Agreement."
WHEREAS, the Company desires to establish its right to the
services of Employee in the capacity described below, on the terms and
conditions, and subject to the rights of termination hereinafter set forth, and
Employee is willing to accept such employment on such terms and conditions;
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and intending to be legally bound hereby, Employee and
the Company have agreed and do hereby agree as follows:
1. Duties. The Company does hereby employ, engage and hire the
Employee as Vice President of Strategic Alliances of the Company and the
Employee does hereby accept and agree to such hiring, engagement and employment.
Employee agrees to perform any and all other duties and to assume any and all
responsibilities that may be reasonably assigned to him from time to time by the
President or the Senior Vice President of Business Development of the Company.
The Employee will devote his full time (at least 40 hours per week) and skill to
the performance of his duties for the Company and for the benefit of the
Company. Furthermore, the Employee will exercise his due diligence and care in
the performance of his duties to the Company under this Agreement.
2. Compensation.
(a) Base Salary. The Company shall pay Employee, and
Employee agrees to accept from the Company, in full payment for his services and
promises to the Company (specifically including the promises set forth in (i)
the Non-Competition Agreement, attached hereto as Exhibit A and by this
reference incorporated herein in its entirety (the "Non-Competition Agreement"),
and (ii) the Non-Disclosure and Developments Agreement, attached hereto as
Exhibit B and by this reference incorporated herein in its entirety (the
"Non-Disclosure and Developments Agreement")) a base salary (the "Base Salary")
at a rate of Seventy-Five Thousand Dollars ($75,000.00) per year, payable in
accordance with the Company's payroll practices, but no less often
than bi-weekly. The Base Salary will be subject to review by management and any
merit increases will be subject to Company policy.
(b) Bonus Compensation. In addition to his Base
Salary, Employee shall also be eligible to receive annual bonus compensation in
the amount of Fifteen Thousand Dollars ($15,000.00). Such bonus shall be deemed
to be earned only if the Employee has been in the continuous employ of the
Company through the end of each 12 month period during the Employment Term (as
such term is defined below) and shall be payable within 10 business days of the
date on which the bonus is earned.
3. Benefits. Employee shall be entitled to participate in any
benefit programs adopted from time to time by the Company for the benefit of its
employees commensurate with Employee's position and Employee shall receive such
other benefits as may be granted to him from time to time by the Company's Board
of Directors.
4. Vacation. Employee is entitled to fifteen (15) days paid
vacation or sick leave per year after six (6) months of employment, with such
vacation to be scheduled and taken in accordance with the Company's standard
vacation policies.
5. Options. Employee shall not be eligible to participate in
any Company employee stock option plan until January 1, 2001. Following such
date, Employee shall be entitled to participate in any such employee stock
option plan at the sole discretion of the Board of Directors or such other
entity charged with the administration and discretion over such plan.
6. Business Expenses. The Company will reimburse Employee for
any and all necessary, customary, and usual out-of-pocket expenses, properly
receipted in accordance with Company policies, incurred by Employee in
performing his duties hereunder.
7. Employment Period. The Company shall employ the Employee
for the duties as set forth in Section 1 for a three (3) year period commencing
as of the date hereof (the "Employment Term"), unless sooner terminated in
accordance with the provisions of this Employment Agreement.
8. Representation and Warranty of Employee. Employee
represents and warrants to the Company that Employee is under no contractual or
other restriction or obligation which is inconsistent with the execution of this
Agreement, the performance of his duties hereunder, or the other rights of the
Company hereunder.
9. Termination of Employment.
(a) Subject to the provisions herein contained, on or
after the date hereof and prior to the end of the Employment Term, the Company
or the Employee, as the case may be, shall have the right to terminate
Employee's services under this Agreement. Termination of
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Employee's employment shall be deemed termination for "cause" if on account of:
(i) Employee's voluntary resignation (other than as a result of Employee's death
or disability, or for the reasons set forth in subparagraphs (x) and (y)); (ii)
the failure by Employee to materially perform his duties and obligations under
this Agreement which is not cured within ten (10) business days from receipt of
written notice of such failure from the Company; (iii) refusal by Employee to
implement, or adhere to, reasonable policies or directives of the Board of
Directors which is not cured within ten (10) business days from receipt of
written notice of such refusal from the Company; (iv) Employee is convicted of
or pleads guilty to a felony crime; (v) conduct by Employee which is in material
violation of Employee's common law duty of loyalty to the Company (as determined
by a majority of the independent directors of the Company (the "Independent
Directors")); (vi) Employee commits any act of fraud against the Company or
Employee engages in fraudulent conduct in connection with the business affairs
of the Company (as determined by a majority of the Independent Directors); (vii)
conduct by Employee which is in material violation of any provision of this
Agreement; (viii) Employee is in breach of a representation or warranty under
this Agreement which breach is not cured within ten (10) business days from
receipt of written notice of such breach from the Company; and (ix) Employee
commits any act or omits to take any action in bad faith and to the detriment of
the Company (as determined by a majority of the Independent Directors).
Cessation of the employment relationship between Employee and the Company by
reason of Employee's death or permanent disability, or Employee's resignation
because of (x) the assignment to him of duties materially inconsistent with
respect to his position as contemplated by this Agreement, or (y) any material
failure by the Company to comply with the provisions of this Agreement, shall be
deemed termination without "cause."
(b) Termination because of Disabilities. Employee
shall be considered to be "disabled" for purposes of this Section 9 if Employee
is unable to perform his customary duties under this Agreement (as determined by
a majority of the Independent Directors), with or without reasonable
accommodation, for a continuous period of sixty (60) days because of physical or
mental impairment, in which event this Agreement shall terminate in accordance
with the provisions of Section 9(d) hereof.
(c) Termination because of Death. In the event that
Employee shall die, then this Agreement shall terminate on the date of
Employee's death, and no further compensation shall be payable to Employee,
except as may otherwise be provided under any insurance policy or similar
instrument.
(d) Effect of Termination Without "Cause". If
Employee's employment is terminated without "cause," he shall be entitled to
thirty (30) days advance written notice of the termination. Employee shall, in
addition to salary earned during the notice period listed in the previous
sentence, be entitled to receive the equivalent of Employee's salary for an
additional six (6) months; provided, that, no bonus shall be earned during the
notice period or on the additional salary payable pursuant to this section.
Employee shall be entitled to any compensation actually earned and vested, but
not paid, before the date of termination. Additional compensation (bonuses)
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shall not be deemed earned until the date when the particular target is reached
or bonus triggering event occurs.
(e) Effect of Termination for "Cause". If Employee's
employment is terminated by the Company for "cause," the Company shall have the
option to terminate Employee with or without notice and the right to give notice
of termination of Employee's services hereunder as of a date to be specified in
such notice and this Agreement shall terminate on the date so specified (the
"Termination Date"). Employee shall be entitled to receive only his Base Salary
at the rate provided in Section 2 to the Termination Date and Employee shall not
be entitled to any other compensation or benefits not already earned and vested
on the Termination Date.
(f) If Employee's employment is terminated by
Employee's voluntary resignation, Employee agrees to provide the Company with
thirty (30) days' advance written notice of such termination.
(g) Nothing contained in this Section 9 shall be
deemed to limit any other right the Company or the Employee may have to
terminate Employee's employment hereunder upon any ground permitted by law.
10. Entire Agreement. This Agreement terminates and supercedes
any and all prior agreements and understandings between the Company and the
Employee (written, oral, or otherwise) with respect to employment or with
respect to the compensation of Employee by the Company. No other
representations, oral or written, have been made regarding the subject matter
hereof, other than those explicitly provided herein. Employee acknowledges that
he has not relied on any oral or written representations not explicitly
contained herein in executing this Agreement.
11. Assignment. This Agreement is personal in its nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder; provided that,
in the event of a merger or consolidation of the Company with any other entity,
this Agreement shall, subject to the provisions hereof, be binding upon and
inure to the benefit of such successor and such successor shall discharge and
perform all the promises, covenants, duties and obligations of the Company
hereunder. In addition, the Company will require any purchaser of all, or
substantially all, of its assets to assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform it if no sale of its assets had taken place.
12. Governing Law. This Agreement shall be governed in all
respects, whether as to validity, construction, capacity, performance, or
otherwise, by the laws of the State of New York, excluding only its conflicts of
laws principles, that would defer to the substantive laws of another
jurisdiction.
13. Amendments and Modifications. This Agreement may be
modified only in writing executed by the Company and Employee.
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14. Waiver. Failure to insist upon strict compliance with any
of the terms, covenants or conditions hereof shall not be deemed a waiver of
such term, covenant or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times.
15. Severability. In the event that a court of competent
jurisdiction determines that any portion of this Agreement is in violation of
any statute or public policy, then only the portions of this Agreement which
violate such statute or public policy shall be stricken. All portions of this
Agreement which do not violate such statute or public policy continue in full
force and effect. Further, any court order striking any portion of this
Agreement shall modify the stricken terms to give as much effect as possible to
the intentions of the parties under this Agreement.
16. Notices. Any notice, consent, or other communication
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been given three (3) days after the date sent if sent by United
States certified mail, return receipt requested, with proper postage thereon,
one (1) day after the date sent if sent by overnight courier of national
recognition, or when transmitted, if sent by facsimile, and shall be addressed
as follows:
(a) If to the Company:
Predict It, Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
(b) If to Employee:
Xxxx Xxxxx
000 Xxxx 00xx Xxxxxx, Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
Phone Number:
-------------------------
Facsimile Number:
---------------------
or at such other address or addresses as the party addressed may from time to
time designate.
17. Headings; Counterparts. The headings in this Agreement are
solely for the convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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EMPLOYEE PREDICT IT, INC.
________________________________ By: _______________________________
Xxxx Xxxxx Name:
Title:
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EXHIBIT A
NON-COMPETITION AGREEMENT
June 30, 1999
Dear Employee:
In consideration and as a condition of your employment by
Predict It, Inc., a Delaware corporation (the "Company"), you hereby covenant
and agree with the Company as follows:
1. The term of this Agreement shall be for a period commencing
on June 30, 1999, the date of your initial employment on behalf of the Company,
and ending twelve (12) months following the date on which your employment with
the Company terminates for any reason, whether voluntarily or involuntarily.
2. During the period of your employment with the Company and
during the term hereof, you will not, without the Company's prior written
consent, directly or indirectly, alone or as a partner, joint venturer, officer,
director, employee, consultant, agent, independent contractor or stockholder of
any company or business, solicit engagements with any business entity in the
business of developing, marketing, distributing, or maintaining products or
services competitive with the products or services being developed, marketed,
distributed, planned, sold or otherwise provided by the Company at such time.
The ownership by you of not more than three percent (3%) of the shares of stock
of any corporation having a class of equity securities actively traded on a
national securities exchange or on the NASDAQ Stock Market shall not be deemed,
in and of itself, to violate the prohibitions of this paragraph.
3. During the term hereof, you will not, without the Company's
prior written consent, directly or indirectly, employ, or knowingly permit, to
the extent possible any other company or business organization which employs you
or is directly or indirectly controlled by you to employ, any person who is
employed by the Company at any time during the term hereof, or in any manner
seek to induce any such person to leave his or her employment with the Company.
4. During the term hereof, you will not, without the Company's
prior written consent, solicit or do business with, directly or indirectly, any
present or past customer of the Company, or any prospective customer of the
Company with whom you have had contact, in connection with any business activity
which would violate any other provision of this Agreement.
5. You hereby represent that, except as attached hereto or as
you have disclosed in writing to the Company, you are not a party to, or bound
by the terms of, any agreement with any previous employer or other party to
refrain from using or disclosing any trade secret or confidential or proprietary
information in the course of your employment with the Company or to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. You further represent that your performance of all the terms
of this Agreement, and as an employee of the Company, does not and will not
breach any agreement to keep in confidence proprietary information, knowledge or
data acquired by you in confidence or in trust prior to your employment with the
Company, and you will not disclose to the Company or induce the Company to use
any confidential or proprietary information or material belonging to any
previous employer, or others.
6. You agree that the breach of this Agreement by you may
cause irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of your obligations hereunder.
7. You understand that this Agreement does not create an
obligation on the Company or any other person or entity to continue your
employment.
8. Any amendment to or modification of this Agreement, and any
waiver of any provision hereof, shall be in writing, executed by both parties.
Any waiver by the Company of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach hereof.
9. You hereby agree that each provision herein shall be
treated as a separate and independent clause, and the unenforceability of any
one clause shall in no way impair the enforceability of any of the other clauses
herein. Moreover, if one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to scope, activity, or
subject so as to be unenforceable at law, such provision or provisions shall be
construed by the appropriate judicial body by limiting and reducing it or them,
so as to be enforceable to the maximum extent compatible with the applicable law
as it shall then appear.
10. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding only its conflicts
of laws principles, that would defer to the substantive laws of another
jurisdiction.
11. The term "Company" shall include Predict It, Inc. and any
of its subsidiaries, subdivisions or affiliates. The Company shall have the
right to assign this Agreement to its successors and assigns, and all covenants
and agreements hereunder shall inure to the benefit of and be enforceable by
said successors or assigns.
12. The provisions of this Agreement will not be deemed to
have been violated in the event you participate in, or become an employee of,
any affiliate of the Company. The provisions of this Agreement will not be
deemed to have been violated as a result of any actions taken by you within the
authorized scope of your involvement with any such affiliate.
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Please indicate your acceptance of the foregoing by signing
and returning one copy to the undersigned.
Very truly yours,
PREDICT IT, INC.
By:
----------------------------
Name:
Title:
AGREED TO AND ACCEPTED as of
the date first above written:
EMPLOYEE
-------------------------------
Xxxx Xxxxx
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EXHIBIT B
NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT
In consideration and as a condition of my employment or
continued employment by Predict It, Inc. (the "Company"), I hereby agree with
the Company as follows:
1. I will not at any time, whether during or after the
termination of my employment, reveal to any person or entity any of the trade
secrets or confidential information concerning the organization, business or
finances of the Company which the Company considers to be proprietary and is
able to be protected as a trade secret or confidential information under
applicable law, or of any third party which the Company is under an obligation
to keep confidential (including, but not limited to, trade secrets or
confidential information respecting inventions, products, designs, methods,
know-how, techniques, systems, processes, software programs, application codes,
works of authorship, formulas, algorithms, customer lists, projects, plans and
proposals), except as may be required in the ordinary course of performing my
duties as an employee of the Company, and I shall keep secret all matters
entrusted to me and shall not use or attempt to use any such information in any
manner which may injure or cause loss or may be calculated to injure or cause
loss whether directly or indirectly to the Company or any third party. The
foregoing will not be deemed to prevent my disclosure of information regarding
the Company to the extent such disclosure is required by law or legal process.
In the event I reasonably determine I have a legal obligation to disclose any
information regarding the Company, I agree to immediately notify the Company in
writing, and in any event notify the Company prior to making any such
disclosure. I further agree to cooperate with the Company, at the Company's
request and expense, to seek a protective order or other arrangement protecting
the confidentiality of any information so disclosed.
Further, I agree that during my employment I shall not make,
use or permit to be used any notes, memoranda, reports, lists, records,
drawings, sketches, specifications, software programs, data, documentation or
other materials of any nature relating to any matter within the scope of the
immediately preceding paragraph otherwise than for the benefit of the Company. I
further agree that I shall not, after the termination of my employment, use or
permit to be used any such notes, memoranda, reports, lists, records, drawings,
sketches, specifications, software programs, data, documentation or other
materials, it being agreed that all of the foregoing shall be and remain the
sole and exclusive property of the Company and that immediately upon the
termination of my employment I shall deliver all of the foregoing, and all
copies thereof, to the Company, at its main office.
2. If at any time or times during my employment, I shall
(either alone or with others) make, conceive, create, discover, invent or reduce
to practice any invention, modification, discovery, design, development,
improvement, process, software program, application code, work of authorship,
documentation, formula, algorithm, data, technique, know-how, trade secret or
intellectual property right whatsoever or any interest therein (whether or not
patentable or registrable under copyright, trademark or similar statutes
(including but not limited to the Semiconductor Chip
Protection Act) or subject to analogous protection) (herein called
"Developments") that (a) relates to the business of the Company or any customer
of or supplier to the Company or any of the products or services being
developed, manufactured or sold by the Company or (b) results from tasks
assigned me by the Company, such Developments and the benefits thereof are and
shall immediately become the sole and exclusive property of the Company and its
assigns, as works made for hire or otherwise, and I shall promptly disclose to
the Company (or any persons designated by it) each such Development and, as may
be necessary to ensure the Company's ownership of such Developments, I hereby
assign any rights (including, but not limited to, any copyrights and trademarks)
I may have or acquire in the Developments and benefits and/or rights resulting
therefrom to the Company and its assigns without further compensation and shall
communicate, without cost or delay, and without disclosing to others the same,
all available information relating thereto (with all necessary plans and models)
to the Company.
I understand and am hereby notified that local law may, if
applicable, limit or render inapplicable the preceding provisions in situations
where the Company is not permitted to require that rights be assigned to it.
I will, during my employment and at any time thereafter, at
the request and cost of the Company, promptly sign, execute, make and do all
such deeds, documents, acts and things as the Company and its duly authorized
agents may reasonably require:
(a) to apply for, obtain, register and vest in the name of the
Company alone (unless the Company otherwise directs) letters
patent, copyrights, trademarks or other analogous protection
relating to a Development in any country throughout the world
and when so obtained or vested to renew and restore the same;
and
(b) to defend any judicial, opposition or other proceedings in
respect of such applications and any judicial, opposition or
other proceedings or petitions or applications for revocation
of such letters patent, copyright, trademark or other
analogous protection.
In the event the Company is unable, after reasonable effort,
to secure my signature on any application for letters patent, copyright or
trademark registration or other documents regarding any legal protection
relating to a Development, whether because of my physical or mental incapacity
or for any other reason whatsoever, I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and
attorney-in-fact, to act for and on my behalf and stead to execute and file any
such application or applications or other documents and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent,
copyright or trademark registrations or any other legal protection thereon with
the same legal force and effect as if executed by me.
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3. I agree that any breach of this Agreement by me may cause
irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of my obligations hereunder.
4. I understand that this Agreement does not create an
obligation on the Company or any other person or entity to continue my
employment.
5. I represent that the Developments identified in the pages,
if any, attached hereto comprise all the unpatented and unregistered
copyrightable Developments which I have made, conceived or created prior to my
employment by the Company, which Developments are excluded from this Agreement.
I understand that it is only necessary to list the title and purpose of such
Developments but not details thereof.
I further represent that my performance of all of the terms of
this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not
entered-into, and I agree I will not enter into, any agreement either written or
oral in conflict herewith.
6. Any waiver by the Company of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach of such provision or any other provision hereof.
7. I hereby agree that each provision herein shall be treated
as a separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad as to scope, activity, subject or
otherwise so as to be unenforceable at law, such provision or provisions shall
be construed by the appropriate judicial body by limiting or reducing it or
them, so as to be enforceable to the maximum extent compatible with the
applicable law as it shall then appear.
8. My obligations under this Agreement shall survive the
termination of my employment regardless of the manner of such termination and
shall be binding upon my heirs, executors, administrators and legal
representatives.
9. The term "Company" means Predict It, Inc. and, for purposes
of Section 1, shall also mean and include any of its subsidiaries, subdivisions
or affiliates. The Company shall have the right to assign this Agreement to its
successors and assigns, and all covenants and agreements hereunder shall inure
to the benefit of and be enforceable by said successors or assigns.
10. I understand that provisions of this Agreement will not be
deemed to have been violated in the event I participate in, or become an
employee of, any affiliate of the Company
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and I am reasonably required in connection with my involvement with such
affiliate to use or disclose trade secrets or confidential information of the
Company protected under this Agreement.
11. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding only its conflicts
of laws principles, that would defer to the substantive laws of another
jurisdiction.
IN WITNESS WHEREOF, the undersigned has executed this
Non-Disclosure and Developments Agreement as of June 30, 1999.
Name: Xxxx Xxxxx
Address:
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Signature
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