Exhibit 10.3
EMPLOYMENT AGREEMENT
This Agreement is entered into by Xxxxxxxx Consulting Group, Inc., a Delaware
corporation, ("Employer", or Company") and Xxx Xxxxxxxx, 0 Xxxxxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx, 00000, ("Employee") as of this 20 of August 2004.
1. Employment. Employer agrees to employ Employee and Employee agrees to
accept employment upon the terms and conditions set forth in this
Agreement.
2. Duties and Services. During the term of this Agreement, Employee shall be
employed in the business of the Employer as its President and Chief
Executive Officer to supervise Employer's business. In the performance of
these duties, Employee shall report to and be subject to the direction of
the Employer's Board of Directors, and Employee agrees to comply with the
policies, standards and regulations of Employer. Employee shall devote
such amount of his working time to the performance of his duties under
this Agreement as Employer and Employee shall determine is necessary for
the performance of his duties hereunder, provided however that, he may not
engage in any activity which is competitive with the business of the
Company, as provided in Section 10 hereof.
3. Term. The term of this Agreement shall commence on the date hereof
("Effective Date") and continue for thirty-six (36) months (the "Initial
Term") unless terminated earlier or extended as herein provided (the
"Term"). This Agreement shall be extended from year-to-year after the
Initial Term unless either Employer or Employee provides written notice to
the other of its or his intention not to extend this Agreement not later
than ninety (90) days prior to the expiration of the then current Term.
4. Compensation. Employee shall not be entitled to any cash compensation from
the Company for his services hereafter until Employer's annualized
revenues exceeds $500,000 on a quarterly basis. At such time Employee
shall be entitled to receive a salary of $50,000 subject to adjustment as
shall be approved by a majority of the members of Employer's Board (other
than Employee) or if no such members exists by a majority of the
shareholders of Employer (not including Employee or any affiliate of
Employee).
5. Expenses. Employee shall be entitled to prompt reimbursement for all
reasonable travel and other out-of-pocket business expenses necessarily
incurred in the performance of his duties hereunder. Employee's claims for
reimbursement and Employer's payments thereof shall be in accordance with
Employer's then current business expense reimbursement policies and
procedures.
6. Termination. Subject to the provisions of this Section 6, Employer shall
have the right to terminate Employee's employment, and Employee shall have
the right to resign from his employment with Employer, at any time during
the Term of this Agreement. Employer may only terminate Employee's
employment for "Cause". Termination for "Cause" shall mean termination of
Employee's employment by the Employer because of (i) any act or omission
which constitutes a material breach by Employee of his obligations or
agreements under this Agreement after written notification by the Employer
specifying and describing any such breach and the actions required to cure
them, and failure of Employee to cure each such breach in the manner
specified in the notice or in a manner otherwise acceptable to the
Employer within thirty (30) days of receipt thereof, (ii) the conviction
of Employee for any crime of moral tupitude or any felony or (iii) any act
or omission by Employee which, constitutes a breach of Employee's
fiduciary duty to Employer. If, prior to the expiration of the Term,
Employee's employment is terminated by Employer for any reason or if
Employee resigns from his employment hereunder Employee shall be entitled
to payment of the pro rata portion of the Employee's then salary, if any,
hereof through and including the date of termination or resignation.
7. Termination Due to Death or Disability.
Xxxxx.Xx the event of Employee's death, Employer shall be entitled to
terminate his employment and the provisions of Section 6 shall apply.
Disability. In the event Employee is unable to perform the services
contemplated hereunder by reason of disability ("Disability" shall mean
any physical illness or incapacity, other than death, which renders
Employee unable to perform the duties required under this Agreement for
more than 60 days in any 90 day consecutive period), Employer shall be
entitled to terminate Employee's employment and the provisions of Section
6 shall apply.
8. Expiration of Term. Upon the expiration of the Term of this Agreement,
whether by non-extension or non-renewal by the Employer or Employee, all
rights and obligations of both the Employer and Employee shall expire
except (i) as provided in Sections 9, 10, 11, and 16 herein, and (ii) for
any unpaid compensation due Employee which may have been accrued as of the
expiration of the Term of this Agreement.
9. Confidential Information. Employee acknowledges that during the course of
his recruitment and employment hereunder Employee has and will become
acquainted with confidential information regarding Employer's business.
From the date hereof and until the end of the Term (the "Non-Competition
Period") Employee will not, without the prior written consent of the
Employer, disclose or make use of any such confidential information except
as may be required in the course of his employment hereunder.
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10. Non-Competition. Employee hereby represents, warrants and agrees that,
during the Non-Competition Period, Employee will not compete with the
business of the Employer within Nwe York or New Jersey (the "Prohibited
Territory") as employee, consultant, principal, agent, trustee or through
the agency of any corporation, partnership, association, agent or agency,
or other enterprise, engaged in any business that during the
Non-Competition Period is in competition with the business of the Employer
as such business existed at any time during the Term (the "Prohibited
Activity"). It is expressly agreed that if any restrictions set forth in
this Section 10 are found by any Court having jurisdiction to be
unreasonable because they are too broad in any respect, then and in each
such case, the remaining restrictions herein contained shall,
nevertheless, remain effective, and this Agreement, or any portion
thereof, shall be considered to be amended so as to be considered
reasonable and enforceable by such Court, and the Court shall specifically
have the right to restrict the business or geographical scope of such
restrictions to any portion of the business or geographic areas described
above to the extent the Court deems such restriction to be necessary to
cause the covenants to be enforceable, and in such event, the covenants
shall be enforced to the extent so permitted.
11. Non-Solicitation. Employee covenants and agrees, during the
Non-Competition Period, that Employee will not canvass or solicit any
person or entity who is a customer or business partner of Employer about
whom Employee obtained significant business information during the Term of
his employment, for the purpose of directly or indirectly furnishing
services competitive with Employer and will not solicit for employment or
employ any employee of Employer. The parties agree that the geographic
scope of this non-solicitation covenant is not limited to the Prohibited
Territory.
12. Representations, Warranties and Covenants. Employee represents and
warrants to Employer that (i) Employee is under no contractual or other
restriction or obligation which is inconsistent with his execution of this
Agreement or performance of his duties hereunder, (ii) Employee has no
physical or mental disability that would hinder his performance of his
duties under this Agreement, and (iii) he has had the opportunity to
consult with an attorney of his choosing in connection with the
negotiation of this Agreement.
13. Notices. Any notice required or permitted to be given under this Agreement
shall be in writing and shall be sent by certified mail, by personal
delivery or by overnight courier to the Employee at his residence (as set
forth in Employer's corporate records) or to the Employer at its principal
office.
14. Waiver of Breach. The waiver of either the Employer or Employee of a
breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by the Employer or
Employee.
15. Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of both Employer and Employee and heir respective successors,
heirs or legal representatives, but neither this Agreement nor any rights
hereunder may be assigned by either Employer or Employee without the
written consent of the other party.
16. Governing Law. This Agreement shall be governed by the laws of the State
of New York without regard to the principles of the conflict of laws. The
parties hereto hereby unconditionally and irrevocably consent to the
exclusive jurisdiction of the federal and state courts located in New
York, New York or Nassau County, New York in connection with any lawsuit,
claim or other proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
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17. Entire Contract: Counterparts. This instrument contains the entire
agreement of the parties. It may not be changed orally but only by an
agreement approved in writing by the Employer and approved in writing by
the party against whom enforcement of any waiver, change, modification,
extension or discharge is sought. This Agreement may be executed in one or
more counterparts, each of which shall be considered one and the same
instrument.
18. No Third Party Beneficiaries. This Agreement does not create, and shall
not be construed as creating, any rights enforceable by any person not a
party to this Agreement.
19. Headings. The headings in this Agreement are solely for convenience and
shall not be given any effect in the construction or interpretation of
this Agreement.
Dated: August 20, 2004
EMPLOYEE:
-------------------------
XXX XXXXXXXX
EMPLOYER:
XXXXXXXX CONSULTING GROUP, INC.
By: ______________________
Xxx Xxxxxxxx
President
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