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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into this 11th
day of April, 1999, to be effective as of the 13th of April, between Corsaire,
Inc., a Delaware corporation with offices at 0000 Xxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxx, XX 00000 and Xxxxxx X. Xxxxxx ("Executive"), with an address of 0000
Xxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000.
RECITALS
A. The Company desires to be assured of the Executive's association and
services;
B. Executive is willing and desires to be employed by the Company and
the Company is willing to employ Executive as the Chief Technical Officer of
the Company, upon the terms, covenants and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
1. EMPLOYMENT. The Executive shall be employed as the Chief Technical
Officer of the Company, subject to the supervision and direction of the
President and Chief Executive Officer.
2. TERM.
2.1 INITIAL TERM. The initial term of this Agreement shall be for a
period of 2 years ("Initial Term") commencing on the date contemplated above,
unless terminated earlier pursuant to Paragraph 6 below; provided, however, that
Executive's obligations in Paragraph 5 below shall continue in effect after any
such termination of employment under Paragraph 6 or otherwise.
2.2 RENEWAL TERM. Subject to the approval of the Company Board of
Directors, this Agreement shall be eligible for renewal upon expiration of the
initial term for an additional term of one year, upon such terms and conditions
as are negotiated and agreed upon by the parties. Any such (renewal) employment
agreement shall be subject to the final approval of the Company Board of
Directors. The Company shall provide Executive at least 60 days notice of its
intent to renew or not renew this Agreement. If the Company advises that it
wishes to renew this Agreement, then Executive shall provide the Company
president at least 15 days notice of Executive's intent to renew or not renew
this Agreement.
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3. COMPENSATION; REIMBURSEMENT.
3.1 BASE SALARY. For all services rendered by Executive under this
Agreement, the Company shall pay Executive a base salary of One Hundred Twenty
Thousand Dollars ($120,000) per annum, payable monthly in equal installments
(the "Base Salary").
The amount of the Base Salary may be increased at any time and from time to
time by the Board of Directors of the Company, and shall be reviewed annually
by the Company President and Board of Directors (or Board Committee) for annual
adjustments based on job and operating division performance. No such change
shall in any way abrogate, alter, terminate or otherwise affect the other terms
of this Agreement.
3.2 INCENTIVE BONUS. In addition to the Base Salary, Executive shall be
eligible for an incentive bonus ("Incentive Bonus") during the first year in an
amount not less than fifty-percent (50%) of the Base Salary (the "Minimum
Bonus") nor more than one hundred percent (100%) of the Base Salary. The
Incentive Bonus shall be based upon the operating results for that year of the
Company, or the Executive's operating division, as the case may be, and shall
be paid, if earned, within 30 days after such operating results have been
determined by the Company's accountants.
3.3 ADDITIONAL BENEFITS. In addition to Base Salary and any bonuses paid,
Executive shall be entitled to the employment benefits provided to other
executive officers of the Company, as approved by the Company Board of
Directors. These benefits include, but are not limited to those listed on
Exhibit "A" attached hereto.
3.4 REIMBURSEMENT. Executive shall be reimbursed for all reasonable
"out-of-pocket" business expenses for business travel and business
entertainment incurred in connection with the performance of Executive's duties
under this Agreement (1) so long as such expenses constitute business
deductions from taxable income for the Company are excludable from taxable
income to the Executive under the governing laws and regulations of the
Internal Revenue Code (provided, however, that Executive shall be entitled to
full reimbursement in any case where the Internal Revenue Service may, under
Paragraph 274(n) of the Internal Revenue Code, disallow to the Company 20% of
meals and entertainment expenses); and (2) to the extent such expenses do not
exceed the amounts allocable for such expenses in budgets that are approved
from time to time by Company. The reimbursement of Executive's business
expenses shall be upon monthly presentation to and approval by Company of
valid receipts and other appropriate documentation for such expenses.
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4. SCOPE OF DUTIES.
4.1 ASSIGNMENT OF DUTIES. Executive shall have such duties as may be
assigned to Executive from time to time by the Company's president commensurate
with Executive's experience and responsibilities in the position for which he
is employed pursuant to Section 1 above. Such duties shall be exercised subject
to the control and supervision of the Company president.
4.2 GENERAL SPECIFICATION OF DUTIES. Executive's duties shall include,
but not be limited to, the following duties and performance goals:
Being responsible for identifying any and all technologies that may
now or in the future be related to Corsaire's core business or any
business that may be related to Corsaire, their affiliates or
assigns. Furthermore, after said technologies have been identified, it
shall become the Executive's duty to perfect the aforementioned
technology as directed by the President, CEO, or by the majority vote
of the board of directors.
4.3 EXECUTIVE'S DEVOTION OF TIME. During normal business hours and while
on Company premises, Executive hereby agrees to devote Executive's full time,
abilities and energy to the faithful performance of the duties assigned to
Executive and to the promotion and forwarding of the business affairs of the
Company, and not to divert any opportunities within the Company's business
expertise and specialties, which, business includes, but is not limited to
software engineering, design, research, application and development
("Business") from the Company (to include its subsidiaries, joint venturers and
strategic partners, collectively, defined as "Affiliates") to himself or to any
other person or business entity.
4.4 PRIMARY BUSINESS ENDEAVOR. Executive shall not, during the term of
this Agreement, be engaged in any other business activity that competes in the
Company's Business without the prior consent of the Company president and Board
of Directors of Company; provided, however, that this restriction shall not be
construed as preventing Executive from investing Executive's personal assets in
passive investments in business entities not in competition with the Company,
or its Affiliates and licensees, or from pursuing business opportunities as
permitted by Paragraph 4.5.
4.5 BUSINESS OPPORTUNITIES. Executive hereby agrees to promote and
develop all business opportunities that come to Executive's attention relating
to current or anticipated future business of the Company or its Affiliates, if
any, in a manner consistent with the best interests of the Company and with
Executive's duties under this Agreement. Should Executive discover a business
opportunity that does not relate to the current or anticipated future business
of the Company or its Affiliates, if any, Executive shall first offer such
opportunity to Company through the Company president or Chief Executive Officer.
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Should the Company not exercise its right to pursue this business opportunity
within a reasonable period of time, not to exceed sixty (60) days, then
Executive may develop the business opportunity for himself or herself;
provided, however, that such development may in no way conflict or interfere
with the duties owed by Executive to the Company and Company under this
Agreement. Further, Executive may develop such business opportunities only on
Executive's time, and may not use any service, personnel, equipment, supplies,
facility, or trade secrets of the Company or its Affiliates in development of
any such opportunities. As used herein, the term "business opportunity" shall
not include business opportunities involving investment in publicly traded
stocks, bonds or other securities, or other investments of a personal nature.
4.6 NON-COMPETE AGREEMENT. Executive shall enter into a separate
non-compete agreement with Company which shall, according to its terms,
continue and survive for one year after expiration or termination of this
Agreement and shall continue and survive for one year after expiration or
termination of employment, according to its terms, if Executive works for the
Company without any renewal of this Agreement.
5. CONFIDENTIALITY OF TRADE SECRETS AND OTHER MATERIALS.
5.1 TRADE SECRETS. Other than in the performance of Executive's duties
hereunder, Executive agrees not to disclose, either during the term of
Executive's employment by Company or at any time thereafter, to any person,
firm or corporation any information concerning the business affairs, the trade
secrets or the customer lists or similar information of the Company or its
Affiliates. Any technique, method, process, formula, computer software,
algorithm, source code, object code software technology, or other technology
developed, engineered, or used by the Company or its subsidiaries, in the
Company's Business shall be considered a "trade secret" under this Agreement.
5.2 OWNERSHIP OF TRADE SECRETS; ASSIGNMENT OF RIGHTS. Executive hereby
agrees that all know-how, documents, reports, plans, proposals, source codes,
object codes, algorithms, software, marketing and sales plans, client lists,
client files and materials, computer software, and any other information and
data qualifying as trade secrets under Chapter 688 of the Florida Statutes, the
Uniform Trade Secrets Act, other provisions of Florida law, and this Agreement
(collectively, "Trade Secrets") made or developed by Executive, by the Company
or by any Company subsidiaries in the Company's Business or for Company product
research and development are the property of Company and shall not be used by
Executive in any way adverse to the interests of the Company or the Company
Companies.
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Unless so directed in writing by the Company president, Executive shall not
deliver, reproduce or in any way allow such documents or things to be delivered
or used by any third party without specific direction or consent of the Company
president. Executive shall use all reasonable precautions to ensure that the
Trade Secrets and proprietary information of the Company and any Company
subsidiaries is not disclosed to any unauthorized persons or used in an
unauthorized manner or published without the specific direction or consent of
the Company president. Executive hereby assigns to Company any rights which he
may have in any such trade secrets or proprietary information. Executive hereby
assigns to Company any rights which he may have in any such Trade Secrets or
proprietary information.
5.3 EMPLOYMENT INVENTIONS. The Company shall own all inventions,
improvements, patents and patent applications, works of authorship, copyrights,
ideas, software programs, codes, algorithmic applications, technology, and
discoveries (collectively, "Inventions") conceived or developed by Executive
as part of the Company's research, development, introduction, production and/or
sale of software products and applications into the public marketplace or the
government sector.
Executive agrees to disclose all such Inventions to the Company, and Executive
assigns all right, title, and interest in and to the Inventions to the Company.
5.4 MINISTERIAL ACTS. Executive agrees to execute all documents and do
all things necessary to assist the Company, at Company expense, to obtain
worldwide protection for the Inventions, Trade Secrets, and other intellectual
property developed during the Agreement term.
5.5 SECTIONS SURVIVE TERMINATION OF AGREEMENT. Executive's obligations
under this Paragraph 5 shall survive termination of this Agreement for one
year, if this Agreement is terminated for "cause". However, inasmuch as the
Executive relies on his intellectual property for gainful employment, in the
event this Agreement is terminated as a result of mutual consent, Corsair shall
not have rights to future discoveries (of the Executive) commencing from the
mutual agreed upon termination date.
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6. TERMINATION
6.1 BASIS FOR TERMINATION.
(1) Executive's employment may be terminated at any time by mutual
agreement of the parties. In the case of mutually agreed termination, the
decision shall be in written form signed by both parties.
(2) This Agreement shall automatically terminate on the last day of the
month in which Executive dies or becomes permanently incapacitated. "Permanent
Incapacity" as used herein shall mean mental or physical incapacity, or both,
reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company Board of
Directors, either Executive's regularly standing physician or a duly licensed
physician selected by Company Board of Directors, rendering Executive unable to
perform substantially all of Executive's duties hereunder and which appears
reasonably certain to continue for at least six consecutive months without
substantial improvement. Executive shall be deemed to have "become permanently
incapacitated" on the date Company Board of Directors has determined that
Executive is permanently incapacitated and so notifies Executive.
(3) Executive's employment may be terminated by Company "with cause,"
effective upon delivery of written notice to Executive given at any time if any
of the following occurs:
(a) any action by Executive which constitutes willful breach of
duty, habitual neglect of duty, continued breach of duty, fraud upon
the Company, its affiliates, or a customer or any of them, and/or
theft or embezzlement of the property of the Company, or its
Affiliates, or the property of a customer of any of them;
(b) any material breach of Executive's obligations in Paragraph 5
above; or any material acts or events which inhibit Executive from
fully performing Executive's responsibilities to the Company in good
faith, such as (i) a felony criminal conviction; (ii) any other
criminal conviction involving Executive's lack of honesty or
Executive's moral turpitude; or (iii) acts of misconduct, as defined
under Chapter 443, Florida Statutes (Unemployment Compensation) and
court or administrative decisions interpreting that statute.
6.2 DISMISSAL FROM PREMISES. At Company's option, Executive shall
immediately leave the Company's premises on the date that any notice of
termination is given under this paragraph 6. Executive shall be allowed
adequate time to gather his personal belongings and property.
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6.3 SEVERANCE PAYMENT. Executive shall receive two weeks severance pay
for each year worked, determined in accordance with the salary schedule set
forth in Paragraph 3.1, in the event of any termination under this Paragraph 6.
6.4 FAILURE TO PERFORM. The failure of Executive to perform services for
the Company under this Agreement due to temporary or permanent illness,
disability, death, (or any other circumstances set forth in Paragraph 6.1(2))
shall not be deemed to create an event of "cause" described in Paragraphs
6.1(3)(a)-(c).
7. INJUNCTIVE RELIEF. Company and Executive hereby acknowledge and agree
that any default under Paragraph 5 above will cause damage to the Company in an
amount difficult to ascertain. Accordingly, in addition to any other relief to
which the Company may be entitled, the Company shall be entitled to such
injunctive relief as may be ordered by any court of competent jurisdiction
including, but not limited to, an injunction restraining any violation of
Paragraph 5.
8. MISCELLANEOUS.
8.1 TRANSFER AND ASSIGNMENT. This Agreement is personal as to Executive
and shall not be assigned or transferred by Executive without the prior written
consent of the Company president. This Agreement shall be binding upon and
inure to the benefit of all of the parties hereto and their respective
permitted heirs, personal representatives, successors and assigns.
8.2 SEVERABILITY. Nothing contained herein shall be construed to require
the commission of any act contrary to law. Should there be any conflict between
any provisions hereof and any present or future statute, law, ordinance,
regulation, or other pronouncement having the force of law, the latter shall
prevail, but the provision of this Agreement affected thereby shall be
curtailed and limited only to the extent necessary to bring it within the
requirements of the law, and the remaining provisions of this Agreement shall
remain in full force and effect.
8.3 GOVERNING LAW. This Agreement is under and shall be construed
pursuant to the laws of the State of Florida.
8.4 COUNTERPARTS. This Agreement may be executed in several counterparts
and all documents so executed shall constitute one agreement, binding on all of
the parties hereto, notwithstanding that all of the parties did not sign the
original or the same counterparts.
8.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto.
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No representation, promise, inducement, statement or intention has been made by
any party hereto that is not embodied herein, and no party shall be bound by or
liable for any alleged representation, promise, inducement, or statement not so
set forth herein.
8.6 MODIFICATION. This Agreement may be modified, amended, superseded, or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
party or parties to be bound by any such modification, amendment, supersession,
cancellation, or waiver.
8.7 DISPUTE RESOLUTION. Except as provided for in Paragraph 7 of this
Agreement, any dispute, any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in Miami,
Florida in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Each
party shall bear its own costs and expenses of arbitration, including attorney
fees if incurred.
8.8 WAIVER. The waiver by either of the parties, express or implied, of
any right under this Agreement or any failure to perform under this Agreement
by the other party, shall not constitute or be deemed as a waiver of any other
right under this Agreement or of any other failure to perform under this
Agreement by the other party, whether of a similar or dissimilar nature.
8.9 CUMULATIVE REMEDIES. Each and all of the several rights and remedies
provided in this Agreement, or by law or in equity, shall be cumulative, and no
one of them shall be exclusive of any other right or remedy, and the exercise
of any one of such rights or remedies shall not be deemed a waiver of, or an
election to exercise, any other such right or remedy.
8.10 HEADINGS. The section and other headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement. In construing this Agreement, none of the
parties hereto shall have any term or provision construed against such party
solely by reason of such party having drafted the same.
8.11 NOTICES. Any notice under this Agreement must be in writing, sent by
express 24-hour guaranteed courier, hand-delivered, or may be served by
depositing the same in the United States mail, addressed to the party to be
notified, postage-prepaid and registered or certified with a return receipt
requested. The addresses of the parties for the receipt of notice shall be as
follows:
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If to the Company: Corsaire, Inc.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
With Copy to: Xxx Xxxx, Esquire
If to Executive: Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice
by giving notice thereof in the manner provided above.
8.12 SURVIVAL. Any provision of this Agreement which imposes an obligation
after termination or expiration of this Agreement shall survive the termination
or expiration of this Agreement and be binding on Executive and Company.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
IT IS AGREED THAT XXX XXXX, ESQUIRE, SHALL HAVE THE RIGHT TO CLARIFY ANY
STATEMENTS THAT CAN BE CONSTRUED TO BE AMBIGUOUS OR REQUIRE FURTHER
CLARIFICATION TO ACCURATELY DESCRIBE THE INTENT OF THIS DOCUMENT.
Corsaire, Inc. Xxxxxx X. Xxxxxx
a Delaware corporation
By: /s/ Xxxxxxx Xxxxx Xxxxxxxx 4/14/99 /s/ Xxxxxx X. Xxxxxx 4/14/99
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Xxxxxxx Xxxxx Xxxxxxxx, date date
President and Chief Executive Officer
* Will be Board approved on first meeting.
* Xxxxxxx Xxxxxxxx approved.
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