Exhibit 10.22
EMPLOYMENT AGREEMENT
dated as of February 29, 2000 (the
"AGREEMENT"), between OPUS360
CORPORATION, a Delaware corporation
(the "COMPANY"), and XXXXX XXXXXX
(the "EMPLOYEE").
Prior to the date hereof, the Employee has been employed by
the Company. The Company and the Employee are entering into this Agreement to
set forth the terms of the Employee's continued employment with the Company.
In consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT.
The Company shall employ the Employee, and the Employee
accepts employment with the Company, upon the terms and conditions set forth in
this Agreement.
2. TERM.
The Employee's employment hereunder shall be for the period
(including any extensions thereof, the "EMPLOYMENT PERIOD") commencing on the
date of this Agreement (the "EFFECTIVE DATE") and terminating on the earlier of
(i) the 36-month anniversary of the Effective Date or (ii) the early termination
pursuant to SECTION 5 of the Employee's employment hereunder; PROVIDED, HOWEVER,
the Employment Period shall be extended automatically on each 12-month
anniversary of the Effective Date, beginning with the 36-month anniversary
thereof, in each case for an additional period of 12 months, unless the Company
or the Employee notifies the other party at least 30 days prior to any such
anniversary date of its or his election that the Employment Period not be so
extended. The final date of the actual term of the Employee's employment with
the Company hereunder is referred to as the "TERMINATION DATE."
3. POSITION, DUTIES AND RESPONSIBILITIES.
(a) During the Employment Period, the Employee shall serve as Senior
Vice President, Chief Marketing Office of the Company or in such other position
as shall be determined by the Board or the Chief Executive Officer or President
of the Company from time to time.
(b) During the Employment Period, the Employee will devote his full
time and best efforts to the business and affairs of the Company and its
Subsidiaries. The Employee shall use his best efforts to perform his duties and
responsibilities in a diligent, trustworthy and efficient manner.
(c) Notwithstanding anything contained in SECTION 3(b) to the
contrary, during the Employment Period, the Employee shall not be prohibited
from (i) serving as an officer, director, trustee or otherwise participating in
purely educational, welfare, social, charitable, religious and civic
organizations, or (ii) managing personal and family investments or serving as an
executor
or trustee or in a similar fiduciary capacity, in each case to the extent such
activities (A) do not interfere or conflict in any material respect with the
performance of his duties and responsibilities hereunder and (B) are conducted
in accordance with the limitations of SECTION 10. Except with the prior written
approval of the Board (excluding the Employee if he should be a member of the
Board at the time of such determination), which the Board may grant or withhold
in its sole and absolute discretion, the Employee, during the Employment Period,
will not serve on the board of directors or similar body of any business entity
other than the Company or any Subsidiary thereof (other than with respect to any
directorship held by the Employee on or prior to the Effective Date, all of
which, if any, have been disclosed in writing by the Employee to the Company).
4. BASE SALARY, FRINGE BENEFITS AND OPTION.
(a) During the Employment Period, the Employee's base salary shall be
$150,000 per annum or such higher rate as the Board or its designee may specify
from time to time (the "BASE SALARY"). The Employee's Base Salary will be
payable in equal installments in accordance with the general policies of the
Company regarding compensation of senior executives of the Company. During the
Employment Period, in addition to the Base Salary, the Employee shall be
entitled to receive an annual bonus (the "BONUS") as determined by the Board or
its designee (in its sole discretion). In making its determination of the Bonus,
the Board or its designee may rely on the quality and level of the Employee's
performance in excess of the high level of reasonably achievable performance
which the Company requires of all of its employees at substantially the same
employment level as the Employee and the overall profitability and operating
condition of the Company, taking into account to what extent the Company has
achieved its financial and operating targets as specified by the Board in its
annual budgeting process.
(b) During the Employment Period, the Employee shall be eligible to
participate in all Company-sponsored employee benefit plans (the "EMPLOYEE
BENEFIT PLANS"), including all employee retirement income and welfare benefit,
pension, disability, group life, sickness or accident or health insurance
policies, plans, programs or arrangements, if any, that are generally available
to other employees of the Company at substantially the same employment level as
the Employee for their participation, subject to the terms and conditions of
such plans, as they may be amended from time to time (collectively, the
"EMPLOYEE BENEFITS").
(c) During the Employment Period, the Employee shall be entitled to
two weeks of vacation during each 12-month period worked, commencing on the
Effective Date. Such vacation shall be in accordance with the terms generally
applicable to other employees of the Company at substantially the same
employment level as the Employee, as in effect from time to time. The Employee
may take his vacation at such time or times as shall not interfere with the
performance of his duties under this Agreement. The Employee shall be entitled
to paid sick leave and holidays in accordance with the sick leave and holiday
policies as may be generally applicable to senior executives of the Company, as
in effect from time to time.
(d) The Company shall reimburse the Employee for all reasonable travel
and other business expenses incurred by him in the course of performing his
duties under this Agreement in accordance with the Company's policies and rules
in effect from time to time relating to the reimbursement of such expenses.
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(e) The Employee authorizes the Company to deduct from any amounts
payable to him hereunder such sums as may be required to be deducted or withheld
under the provisions of any federal, state or local law or regulation now in
effect or hereafter put into effect during the term of this Agreement,
including, without limitation, social security and income withholding taxes.
5. EARLY TERMINATION OF EMPLOYMENT.
(a) The early termination of the Employee's employment hereunder shall
result upon the first to occur of (i) the termination of such employment by the
Company, at any time, for Cause, without Cause or by reason of the Disability of
the Employee, (ii) the death of the Employee and (iii) the resignation of the
Employee from such employment, at any time, for Good Reason or without Good
Reason.
(b) For purposes of this Agreement, the term "CAUSE" means (i) the
gross negligence or willful misconduct by the Employee in the performance of his
duties, (ii) the commission by the Employee of any act of fraud, theft or
financial dishonesty with respect to the Company or any of its Subsidiaries or
if Employee is convicted of a felony, (iii) the material breach by the Employee
of this Agreement (including, but not limited to, any breach or threatened
breach by the Employee of the provisions of SECTIONS 7, 8, 9 or 10), (iv) the
willful disregard, or failure to follow written instructions from, the
President, Chief Operating Officer of the Company, the Board or any of their
designees, to perform any legal act relating to the business of the Company or
its Subsidiaries which would be commensurate with the usual and customary
duties, responsibilities and authority of Senior Vice President, Chief Marketing
Officer of the Company or such other position held by the Employee as may be
determined by the Board or the Chief Executive Officer or President of the
Company from time to time or otherwise consistent with such position, or (v) the
habitual failure of the Employee to perform his work in any material respect or
(vi) the repeated inexcusable absence from work of the Employee or the absence
of the Employee for a prolonged period of time (other than as a result of, or in
connection with, a disability or a legally protected leave). Before the
Employee's employment with the Company hereunder may be terminated by the
Company for Cause, the Employee shall have 10 days after written notice of such
basis for termination to cure such basis for termination; PROVIDED, HOWEVER, no
such right to cure shall exist if the basis for such termination is incurable or
if otherwise any of the acts referred to in CLAUSE (i) of the definition of
"CAUSE" have been committed by the Employee.
(c) Any determination as to whether the Employee is subject to a
Disability shall first be made by the Board (excluding the Employee if he should
be a member of the Board at the time of such determination) in its good faith
judgment; PROVIDED, HOWEVER, if any such determination is disputed by the
Employee, the matter shall be referred to a licensed physician practicing within
the Borough of New York in the State of New York or a 50-mile radius thereof and
selected by the Board and the Employee, and the determination of Disability made
by such physician shall be final and binding on both the Employee and the
Company. For purposes of this Agreement, the term "DISABILITY" means any
long-term disability or incapacity which renders, or would be reasonably
expected to render, the Employee unable to substantially perform his duties and
responsibilities hereunder for a cumulative total of 90 days during any 12-month
period.
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(d) For purposes of this Agreement, "GOOD REASON" means (i) a material
reduction in the Base Salary of the Employee as in effect on the Effective Date
or (ii) a material breach by the Company of this Agreement, which breach is
incurable or otherwise not cured within 10 days after written notice thereof by
the Employee to the Company, in each case without the prior written consent or
waiver of the Employee.
6. EFFECT OF TERMINATION.
(a) Upon the termination (x) pursuant to SECTION 2 of the Employee's
employment with the Company hereunder based on the election of the Company or
the Employee under SECTION 2 not to extend the Employment Period or (y) pursuant
to SECTION 5 of the Employee's employment with the Company hereunder either by
the Company with Cause or by reason of the Employee's resignation without Good
Reason, neither the Employee nor the Employee's Representatives shall have any
further rights under this Agreement or any claims against the Company arising
under this Agreement, except the right to receive, upon the Termination Date:
(i) the unpaid portion of the Base Salary provided for in SECTION
4(a), computed on a PRO RATA basis through the Termination Date;
(ii) reimbursement for any expenses for which the Employee shall
not have theretofore been reimbursed, as provided in SECTION 4(d); and
(iii) the unpaid portion of any amounts earned by the Employee
prior to the Termination Date pursuant to any Employee Benefit Plan in
which the Employee participated during the Employment Period
(PROVIDED, HOWEVER, that neither the Employee nor the Employee's
Representatives shall be entitled to receive any benefits under any
Employee Benefit Plan that have accrued during any period if the terms
of such Employee Benefit Plan require that the Employee be employed by
the Company or any Subsidiary thereof as of the end of such period).
(b) Upon the termination pursuant to SECTION 5 of the Employee's
employment with the Company hereunder either by the Company without Cause or by
reason of the Employee's resignation with Good Reason, neither the Employee nor
the Employee's Representatives shall have any further rights under this
Agreement or any claims against the Company arising under this Agreement, except
the right to receive the amounts described in CLAUSES (i) and (ii) below when
due thereunder and the right to the continued vesting and exercisability of
certain securities as described in CLAUSE (iii) below (subject to the additional
agreements set forth therein):
(i) upon the Termination Date, the payments, if any, referred to
in SECTION 6(a);
(ii) the Base Salary and the Employee Benefits, payable
periodically at the same intervals as if the Employment Period had not
ended and the Base Salary and the Employee Benefits otherwise
continued to be paid, up to (and including) the first one-year
anniversary of the Termination Date; PROVIDED, HOWEVER, that neither
the Employee nor the Employee's Representatives shall not be entitled
to receive any Employee Benefits under any Employee Benefit Plan at
any time after the Termination Date if the
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terms of such Employee Benefit Plan require that the Employee be
employed by the Company or any Subsidiary thereof as of such time; and
PROVIDED, FURTHER, HOWEVER, that (x) the Employee's right to continue
to receive the Base Salary and the Employee Benefits as specified in
this SECTION 6(b)(ii) shall be subject (1) to the Employee's continued
compliance with the provisions of SECTIONS 7, 8, 9 and 10 and (2) the
good faith efforts of the Employee to obtain replacement employment
during such 12-month period at a comparable salary, and (y) any salary
payments received by Employee from such replacement employment during
such 12-month period shall reduce, dollar for dollar, the amount of
the continued payments of the Base Salary.
(iii) notwithstanding anything to the contrary contained herein
or in any stock option agreement or other applicable agreement,
between the Company and the Employee, as amended, supplemented or
otherwise modified from time to time and in effect on the Termination
Date, that number of options for the purchase of Common Stock issued
by the Company that are subject to vesting and held by the Employee on
the Termination Date (but before giving effect to any applicable
forfeiture, repurchase or other similar rights arising on such date in
favor of the Company or any other Person) shall become vested and
exercisable as would have become vested and exercisable if the
Employee's employment continued until the first anniversary of the
Termination Date; PROVIDED, HOWEVER, that each option that becomes
exercisable as a result of this Section 6(b)(iii) or has previously
vested must be exercised within 90 days after the Termination Date or
otherwise expire.
(c) Upon the termination pursuant to SECTION 5 of the Employee's
employment with the Company hereunder either by the Company by reason of the
Disability of the Employee or by reason of the death of the Employee, neither
the Employee nor the Employee's Representatives shall have any further rights
under this Agreement or any claims against the Company arising under this
Agreement, except the right to receive the amounts described in CLAUSES (i) and
(ii) below when due thereunder:
(i) upon the Termination Date, the payments, if any, referred to
in SECTION 6(a); and
(ii) the Base Salary and the Employee Benefits, payable
periodically at the same intervals as if the Employment Period had not
ended and the Base Salary and the Employee Benefits otherwise
continued to be paid, up to (and including) the 3-month anniversary of
the Termination Date; PROVIDED, HOWEVER, that neither the Employee nor
the Employee's Representatives shall not be entitled to receive any
Employee Benefits under any Employee Benefit Plan at any time after
the Termination Date if the terms of such Employee Benefit Plan
require that the Employee be employed by the Company or any Subsidiary
thereof as of such time.
(d) Except to the extent requested by the Board, upon the Termination
Date, the Employee shall immediately resign all positions and directorships with
the Company and each Subsidiary thereof.
7. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION.
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The Employee shall not, whether during or at any time after
the Employment Period, disclose or use (except to the extent required by an
order of a court having competent jurisdiction or otherwise under subpoena from
the appropriate government agency) any secret or confidential information
concerning the business, clients or affairs of the Company or any of its
Subsidiaries, or of any Person which the Company or any of its Subsidiaries is
under an obligation to keep secret or confidential (in each case, including, but
not limited to, trade secrets, customer lists, employment records, marketing
plans and related information, sales plans and related information, pricing
schedules, operating policies and manuals, business plans, financial records or
management methods, know-how or techniques) (the "CONFIDENTIAL INFORMATION"),
except to the extent such disclosure or use is directly related to and required
by the Employee's performance in good faith of his duties as an employee of the
Company during the Employment Period pursuant to the terms and conditions of
this Agreement. The Employee shall take all appropriate steps to safeguard the
Confidential information and protect the Confidential Information against
disclosure, misuse, loss and theft.
8. OWNERSHIP OF WORK PRODUCT AND BUSINESS OPPORTUNITIES.
The Employee acknowledges and agrees that, during the
Employment Period, (i) he may conceive of, discover, invent or create
inventions, improvements, technical information, methods and suggestions
relating to the actual or anticipated business or existing or future products or
services of the Company or any of its Subsidiaries (collectively, the
"INVENTIONS"), and (ii) various business opportunities relating to the actual or
anticipated business of the Company or any of its Subsidiaries may be presented
to him by reason of his employment by the Company (collectively, the "BUSINESS
OPPORTUNITIES"). The Employee acknowledges that all such Inventions, together
with all patent, trademark, service xxxx and copyright applications, patents,
trademarks, service marks and copyrights and reissues thereof that may at any
time be granted for or upon any of such Inventions, (collectively, the "WORK
PRODUCT") and all such Business Opportunities shall be owned by and belong
exclusively to the Company, and he shall have no personal interest therein,
regardless of whether conceived, discovered, invented, created or presented
during usual business hours or alone or in conjunction with any other Person.
The Employee shall (i) promptly disclose to the Board any such Work Product and
Business Opportunities, (ii) assign to the Company, upon the request of the
Company and without additional compensation (whether during or after the
Employment Period), the entire rights to such Work Product and Business
Opportunities, and (iii) perform all actions reasonably requested by the Company
(whether during or after the Employment Period) to establish, confirm and
protect such ownership in the Company (including, but not limited to, the
signing of assignments, consents, powers of attorney, applications and other
instruments and the giving of testimony in support of his conception, discovery,
invention or creation thereof). The Employee agrees he will not assert any
rights to any Work Product or Business Opportunity as having been conceived,
discovered, invented, created or obtained by him before the Effective Date
(whether during his prior period of employment with the Company or otherwise),
except for Work Product or Business Opportunities, if any, specifically
disclosed to and specifically acknowledged by the Company in writing before his
prior period of employment with the Company first began.
9. DELIVERY OF MATERIALS UPON TERMINATION OF EMPLOYMENT
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The Employee shall deliver to the Company at the termination
of the Employment Period, or upon the request of the Company, at any time, all
memoranda, notes, plans, records, reports, computer tapes and software and other
documents and data (and copies thereof) relating to the Confidential
Information, Work Product, Business Opportunities or the business of the Company
or any of its Subsidiaries, which he may then possess or have under his control,
regardless of the location or form of such material and, if requested by the
Company, shall provide the Company with written confirmation that all such
materials have been delivered to the Company.
10. NONCOMPETITION; NONSOLICITATION.
(a) The Employee acknowledges he has received Confidential Information
of the Company and its Subsidiaries (including of their respective predecessors)
from time to time prior to the Effective Date in connection with, among other
things, his employment with the Company prior to the Effective Date and is
familiar with such Confidential Information. The Employee also acknowledges, in
the course of his employment with the Company or any of its Subsidiaries on or
after the Effective Date, he shall continue to receive and become familiar with
the Confidential Information (whether now existing or hereafter existing) of the
Company and its Subsidiaries. The Employee acknowledges that the Confidential
Information referred to in this SECTION 10(a) has been and shall be of special,
unique and extraordinary value to the Company and its Subsidiaries. In
consideration of the compensation and other benefits to be provided to the
Employee hereunder (including, but not limited to, the employment by the
Employee with the Company hereunder, the Base Salary, the Employee Benefits and
the Severance Payments), during the Employment Period and the Non-Compete
Period, the Employee shall not, directly or indirectly, own, manage, control,
participate in, be connected with, consult with, render services for, give or
lend funds to or otherwise finance, be employed by, have a financial or other
interest in, or in any manner engage in or represent any business which is
competing with any business of the Company or any Subsidiary thereof as such
business of the Company or such Subsidiary exists, or is in the process of being
formed or acquired, at any time from the date on which the Employee's employment
with the Company first began (whether on or before the Effective Date) up to
(and including) the Termination Date, within any Restricted Territory. Nothing
herein shall prohibit the Employee from being a passive owner of not more than
1% of the outstanding stock of any class of a corporation which is publicly
traded, so long as the Employee has no active participation in the business of
such corporation.
(b) During the Employment Period and the Non-Compete Period, the
Employee agrees that he shall not, individually, or as an agent, employee,
partner, principal, consultant, stockholder, director, officer, trustee, advisor
or in any other capacity, directly or indirectly, for himself or for any other
Person, (i) solicit or entice, or attempt to solicit or entice, any employee of,
consultant to, or independent contractor of the Company or any of its
Subsidiaries to terminate his or her employment, engagement or affiliation with
the Company or any of its Subsidiaries, or in any way interfere with the
relationship between the Company or any of its Subsidiaries, on the one hand,
and any employee of, consultant to, or independent contractor of the Company or
any of its Subsidiaries on the other hand (including making any negative
statements or comments about the Company or any of its Subsidiaries), (ii)
employ or retain any such employee, consultant, independent contractor during
his or her employment, engagement or affiliation with the Company or any of its
Subsidiaries or for a period of one year after such
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individual's employment, engagement or affiliation with the Company or any of
its Subsidiaries has terminated, or (iii) solicit or entice, or attempt to
solicit or entice, any customer or licensee of the Company or any of its
Subsidiaries (including any Person that has been contacted by, solicited by or
referred to the Company or any of its Subsidiaries for purposes of becoming any
of the foregoing) to cease doing business with, or otherwise reduce or terminate
its, his or her involvement with, the Company or any of its Subsidiaries.
(c) The Employee understands that the restrictions set forth in this
SECTION 10 may limit his ability to earn a livelihood in a business similar to
the business of the Company or any of its Subsidiaries, but the Employee
nevertheless believes that he has received and shall receive sufficient
consideration and other benefits as provided hereunder and pursuant to other
agreements to which he and the Company are parties, which in any event he does
not believe (given his education, skills and ability) would prevent him from
otherwise earning a living.
11. INSURANCE.
The Company shall have the right to secure, in its own name or
otherwise, its own life, disability, accident or other insurance covering the
Employee, and the Employee shall have no right, title or interest in or to such
insurance. The Employee shall cooperate with the Company and provide such
information or other assistance as the Company may reasonably request in
connection with the Company obtaining and maintaining such policies, including,
but not limited to, submitting to reasonable examinations and signing such
applications and other instruments as may be required by the insurance carriers
to which application is made for any such insurance.
12. CONFLICTS.
The Employee represents and warrants to the Company that he is
not a party to or bound by any employment contract, consultancy agreement,
non-competition agreement or any other agreement (written or oral) or other
arrangement which contains any restrictions or limitations on the ability of the
Employee to enter into and perform this Agreement or exercise all the powers,
functions, duties and responsibilities contemplated by this Agreement, and the
execution, delivery and performance of this Agreement by the Employee will not
result in a violation of or constitute a default under any contract, agreement
or other arrangement to which the Employee is a party or by which the Employee
is bound.
13. DEFINITIONS.
"BOARD" means the Board of Directors of the Company.
"BUSINESS DAY" means any day, other than a Saturday, Sunday or
a day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"GOVERNMENTAL ENTITY" means any government or political
subdivision or department thereof, any governmental or regulatory body,
commission, board, bureau, agency or instrumentality, or any court or arbitrator
or alternative dispute resolution body, in each case whether federal, state,
local or foreign.
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"NON-COMPETE PERIOD" means the period beginning on the
Termination Date and ending on the first anniversary of the Termination Date.
"PERSON" shall be construed as broadly as possible and shall
include an individual, a corporation, a company, an association, a joint stock
company, a partnership (including a limited liability partnership), a limited
liability company, a joint venture, a trust or an unincorporated organization
and a Governmental Entity.
"REPRESENTATIVES" means, with respect to the Employee, the
Employee's assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as determined from
time to time.
"RESTRICTED TERRITORY" means (i) any county in the State of
New York or Florida, (ii) any county in any other state in the continental
United States, (iii) Alaska and Hawaii, (iv) any other territory or possession
of the United States, (v) any province in Canada, and (vi) any country other
than the United States, Canada or any state, province, territory, possession or
political subdivision thereof.
"SUBSIDIARY" means, as to any Person, any other Person of
which more than 50% of the shares of the voting stock or other voting interests
are owned or controlled, or the ability to select or elect 50% or more of the
directors or similar managers is held, directly or indirectly, by such first
Person or one or more of its Subsidiaries.
14. POST-TERMINATION ASSISTANCE.
The Employee agrees that after his employment with the Company
has terminated he will provide, upon reasonable notice, such information and
assistance to the Company as may reasonably be requested by the Company in
connection with any third-party litigation to which the Company or any of its
Subsidiaries is or may become a party.
15. INDEMNIFICATION.
The Company shall indemnify, defend and hold harmless the
Employee (in his status as an officer, director and employee of the Company) in
respect of acts or omissions occurring on or after the Effective Date to the
fullest extent permitted or provided under the Company's Certificate of
Incorporation and Bylaws as in effect on the Effective Date.
16. NOTICES.
All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and
shall be deemed to have been given or made when (i) delivered personally to the
recipient, (ii) transmitted by facsimile or electronic mail (with hard copy sent
to the recipient by reputable overnight courier service (charges prepaid) that
same day and, in the latter case, with receipt acknowledged by the recipient by
return electronic mail) if faxed or e-mailed before 5:00 p.m. (New York, New
York time) on a Business Day, and otherwise on the next Business Day, (iii) two
Business Days after being sent to the recipient by reputable overnight courier
service (charges prepaid), or (iv) five Business Days after being sent to the
recipient by registered or certified mail (postage prepaid
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and return receipt requested). Such notices, demands and other communications
shall be sent to the address for such recipient as set forth below (or to such
other address or to the attention of such other person as the recipient party
has specified by like notice):
(i) if to the Company, to
Opus360 Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary of the Company
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail:
with a copy (which shall not constitute notice) to:
Opus360 Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail:
(ii) if to the Employee, to
Xxxxx Xxxxxx
00 Xxxxxxxx Xxxx, X.X. Xxx 000, Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-Mail: xxxxxxx000@xxx.xxx
17. GENERAL PROVISIONS.
(a) SEVERABILITY/ENFORCEMENT.
(i) It is the desire and intent of the parties hereto that the
provisions of this Agreement be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to
such jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not to be invalid, prohibited
or unenforceable in such jurisdiction, it shall, as to such jurisdiction,
be so narrowly drawn, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction.
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Without limiting the generality of the preceding sentence, if at the time
of enforcement of SECTIONS 7, 8, 9 or 10 of this Agreement, a court holds
that the restrictions stated therein are unreasonable under circumstances
then existing, the parties hereto agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted
for the stated period, scope or area.
(ii) The Company and the Employee shall each have and retain all other
rights and remedies existing in their favor at law or equity, including,
without limitation, any actions for specific performance and/or injunctive
or other equitable relief to enforce or prevent any violations of the
provisions of this Agreement. Because the Employee's services are unique
and because the Employee has access to Confidential Information and Work
Product, the parties hereto agree that money damages would be an inadequate
remedy for any breach of this Agreement. Therefore, in the event of a
breach or threatened breach by the Employee of SECTIONS 7, 8, 9 or 10, the
Company or its successors or assigns may, in addition to any other rights
and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in
order to enforce, or prevent any violations of, such provisions (without
posting a bond or other security) or require the Employee to account for
and pay over to the Company all compensation, profits, moneys, accruals and
increments derived or received by him as a result of any transactions
constituting a breach of such provisions.
(iii) In addition to the foregoing, and not in any way in limitation
thereof, or in limitation of any right or remedy otherwise available to the
Company, if the Company shall determine that the Employee is in violation
of any provision of SECTIONS 7, 8, 9 or 10 of this Agreement (such
determination being made before any judgment or decision with respect to
such question shall be made by a court of competent jurisdiction), the
Company may withhold any severance payments then or thereafter due from the
Company to the Employee, until there shall be a final judgment or decision
by a court of competent jurisdiction that no such violation shall have
occurred, in which case (A) the Company shall pay to the Employee, within
five (5) Business Days after such judgment or decision, such amounts of
severance under this Agreement previously withheld from payment by the
Company, together with interest on such amounts withheld at a floating rate
per annum equal to the prime rate announced from time to time by the Wall
Street Journal as the prevailing "PRIME RATE" at U.S. money center banks,
and (B) the Company shall reimburse the Employee for his reasonable
attorneys fees and expenses incurred in connection with the issuance of
such judgment or decision within five (5) Business Days of the receipt by
the Company of reasonable supporting documentation therefor. If the
Employee is determined by a judgment or decision of a court of competent
jurisdiction to have violated any provision of SECTIONS 7, 8, 9 or 10 of
this Agreement, the Company's obligation to pay and the Employee's right to
receive any severance payments under this Agreement on or after the date on
which such violation shall have first occurred (whether already paid or
otherwise) shall terminate and be of no further force or effect, and,
within five (5) Business Days of any such judgment or decision, the
Employee shall return to the Company any such severance payments already
made by the Company.
(iv) The Employee's obligations under SECTIONS 7, 8, 9 or 10 shall not
be limited or affected by, and such provisions shall remain in full force
and effect
11
notwithstanding, the termination of any severance payments by the Company
in accordance with SECTION 17(a)(iii). The exercise of by the Company of
its right to terminate such payments pursuant to SECTION 17(a)(iii) shall
not be deemed to be an election of remedies by the Company and shall not in
any manner modify, limit or preclude the Company from exercising any other
rights or seeking any other remedies available to it at law or in equity.
(b) COMPLETE AGREEMENT. This Agreement constitutes the sole and entire
agreement between the parties hereto with respect to the subject matter hereof
and thereof and supersede and preempt all prior or contemporaneous
understandings, agreements or representations by or between the Company and the
Employee, written or oral, which may have related to the subject matter hereof
or thereof in any way.
(c) RIGHT OF SET OFF. The Company is authorized, on or after the
termination of the Employment Period by the Company for Cause, to the fullest
extent permitted by law, to set off and apply any and all amounts at any time
payable by the Company to the Employee under this Agreement, against any and all
of the obligations of the Employee to the Company now or hereafter existing
under this Agreement or any other agreement or contract between the Employee on
the one hand and the Company or any of its Subsidiaries on the other hand.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the Company, the Employee and each of their respective
successors, assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable;
PROVIDED, HOWEVER, that neither this Agreement nor any rights or obligations
hereunder will be assignable or otherwise subject to hypothecation by the
Employee (except by will or by operation of the laws of intestate succession).
(e) GOVERNING LAW; CHOICE OF JURISDICTION AND VENUE. THE PROVISIONS OF
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND FULLY PERFORMED
WITHIN THE STATE OF NEW YORK BY RESIDENTS OF THE STATE OF NEW YORK. WITH RESPECT
TO ANY LAWSUIT OR PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT, EACH OF THE
PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK OR FEDERAL COURT OF THE UNITED STATES OF AMERICA
SITTING IN NEW YORK, (II) WAIVES ANY OBJECTION IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT, (III) WAIVES ANY
CLAIM THAT SUCH PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND (IV)
FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDINGS, THAT SUCH
COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY.
(f) WAIVER OF JURY TRIAL. Each of the parties hereto hereby
irrevocably waives all right to trial by jury in any action proceeding or
counterclaim arising out of or relating to this Agreement.
12
(g) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company (upon the
written approval of the Board (excluding the Employee if he should be a member
of the Board at the time of such determination)) and the Employee, and no course
of conduct or failure or delay in enforcing the provisions of this Agreement
shall affect the validity, binding effect or enforceability of this Agreement or
any provision hereof.
(h) HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
(j) BUSINESS DAYS. If any time period for giving notice or taking
action hereunder expires on a day which is not a Business Day, the time period
for giving notice or taking action shall be automatically extended to the
immediately following Business Day.
(k) SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements contained herein shall survive in
perpetuity the consummation of the transactions contemplated hereby.
(l) NOUNS AND PRONOUNS. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and
vice-versa.
CONSTRUCTION. Where specific language (such as the word
"INCLUDING") is used to clarify by example a general statement contained herein,
such specific language shall not be deemed to modify, limit or restrict in any
manner the construction of the general statement to which it relates. The
language used in this Agreement shall be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party hereto. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
* * * *
13
IN WITNESS WHEREOF, the parties hereto have executed this
Employment Agreement as of the date first written above.
OPUS360 CORPORATION
By: /s/ XXX XXXXXXXX
-------------------------------
Name: Xxx Xxxxxxxx
Title:
/s/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx
