HighLight Networks Inc. Employment Agreement
Exhibit 10.1
HighLight Networks Inc. Employment Agreement
This Employment Agreement (hereinafter referred to as "Agreement"), is entered into as of this 15th of April, 2013, by and between HighLight Networks Inc., (hereinafter referred to as the "Company") and Xxxxx Xxxxxxxxx ("XXXXXXXXX").
WITNESSETH:
WHEREAS, the Company desires to employ XXXXXXXXX and XXXXXXXXX desires to be
employed by the Company as the Executive Vice President (EVP) and Chief Operating Officer (CEO) of EZRecycling, Inc. (EZ) upon the terms and conditions set forth herein; and
WHEREAS, XXXXXXXXX and Company desire to reduce the terms of XXXXXXXXX’x
employment with the Company to a written contract;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and intending to be legally bound hereby, the parties hereto agree as follows:
1. Employment.
Pursuant to the terms of this Agreement, the Company hereby employs XXXXXXXXX as the EVP of Company and as CEO of EZRecycling, Inc.
XXXXXXXXX shall report directly to the Chief Executive Officer of the Company and shall perform such duties as are customarily performed by a person holding the position of EVP and CEO in businesses similar to those engaged in by the Company and its subsidiaries and shall, in addition, render such other reasonable services as may be assigned to him, from time to time, by the Company’s CEO or their designee within XXXXXXXXX'x scope of experience, training and expertise.
XXXXXXXXX hereby agrees to be employed as EVP of the Company and CEO of EZ for the term hereof as set forth below. XXXXXXXXX agrees that he shall at all times faithfully and to the best of his ability, perform all of the duties that may reasonably be requested of him within his scope of experience, training and expertise pursuant to the terms of this Agreement.
The Company represents and warrants to XXXXXXXXX that this Agreement has been duly and validly authorized and executed by and on behalf of the Company and that it constitutes the lawful, valid and binding obligation of the Company.
XXXXXXXXX represents and warrants to the Company that he is free to accept employment hereunder and that he has no prior or existing obligations, commitments or restraints of any kind that would in any way hinder or interfere with his acceptance of, or the full performance of, his employment hereunder . When executed, this Agreement will constitute the lawful, valid and binding obligation of XXXXXXXXX.
During his employment with the Company, XXXXXXXXX shall devote not less than 90% of his working time, to the performance of his responsibilities hereunder in a manner which will faithfully and diligently further the business and interest of the Company. Subject to and consistent with the provisions of Paragraph seven (7) below, XXXXXXXXX, during and while employed by the Company, may not provide any services to or receive any compensation from any competitor or potential competitor of the Company.
2. Term.
Unless earlier terminated in accordance with Paragraph five (5) below, this Agreement shall continue for an initial period of one (1) year from the date on which both parties execute this Agreement.
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Thereafter, this Agreement shall be extended automatically for successive terms of one (1) year unless (i) the Company or XXXXXXXXX gives written notice of termination to the other party hereto at least Sixty (60) days prior to the termination of the initial term of employment hereunder or any renewal term thereof, or (ii) unless earlier terminated as herein provided.
| 3. | Compensation. |
| a) | Salary. |
Company shall pay to MENDELON an annual salary of two hundred thousand dollars (US
$200,000) contingent upon the conditions set forth in this Paragraph. XXXXXXXXX'x salary and other benefits shall be reviewed annually by the Board of Directors of the Company and with XXXXXXXXX. The salary shall be paid in equal periodic installments in accordance with the Company's salary practices. The salary payment shall not in any way limit or reduce any other obligation of the Company hereunder, and no other compensation, benefit or payment hereunder shall in any way limit or reduce the obligation of the Company to pay XXXXXXXXX'x salary hereunder. A portion of XXXXXXXXX'x salary is included as a portion of the Company's SG&A, but shall not be paid in full if capital or revenue is not available to the Company during the term of this Agreement. Such salary will begin once EBITDA has reached two million dollars ($2,000,000) based on a twelve month trailing average beginning April 1, 2013.
| b) | Stock. |
As additional compensation, Company agrees to deliver to XXXXXXXXX one hundred fifty (150,000) thousand shares of Restricted Common Stock in HighLight Networks, Inc., par value $0.001 per share, (hereinafter “HNET shares”) in two certificates of seventy-five thousand (75,000) each as follows:
i. The first certificate will be fully vested upon issue.
ii. The second certificate will be designated to be vested one (1) full year after the execution date of this agreement.
iii. Should XXXXXXXXX leave or be separated from the Company before that time, the second certificate will be cancelled and he will return the certificate to the Company for its records.
| c) | Expenses. |
During the term of XXXXXXXXX'x employment hereunder, XXXXXXXXX shall receive
reimbursement from the Company for all reasonable expenses incurred by XXXXXXXXX in the performance of his duties hereunder, including, by way of example and not limitation, travel and living expenses while away from home on business at the request of or in the service of the Company, provided that such expenses are incurred and accounted for in accordance with the standard policies and procedures established, from time to time, by the Company for reimbursement of expenses.
| d) | Bonus. |
XXXXXXXXX shall be entitled to receive a quarterly performance bonus equal to 1% of net margin, defined as revenues after cost of goods sold and before SG&A, paid quarterly, As long as the net result is that the Company achieves an EDITDA of no less than 10% of revenues.
| e) | Other Benefits. |
XXXXXXXXX shall be entitled to participate in the same manner as other officers of the Company in such life insurance, medical, dental, disability, pension, retirement plans and other programs as may be established by the Company, from time to time, for the benefit of its officers. Except as provided elsewhere herein, nothing herein shall affect the Company's right to amend, modify or terminate any retirement or other benefit plan at any time for any reason.
| f) | Vacation. |
XXXXXXXXX shall be entitled to vacation as mutually approved until such time as the Company adopts a formal vacation policy including all corporate officers.
4. Warranties and Indemnification by the Company. The Company warrants and represents to XXXXXXXXX that:
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a) The Company shall indemnify and save XXXXXXXXX harmless from any and all claims incurred or made against XXXXXXXXX arising directly or indirectly from any negligent or wrongful acts or omissions by the Company, provided that any such negligent or wrongful acts or omissions do not occur as a result of XXXXXXXXX'x own acts or failure to act on behalf of the Company in his role as EVP or as the CEO of EZ. The Company shall use its best efforts to obtain insurance of the kind and amount reasonably necessary to provide adequate protection to XXXXXXXXX.
b) The Company shall provide to XXXXXXXXX any assistance or access to information and facilities reasonably required by XXXXXXXXX to perform his obligations under this Agreement.
| c) | The Company shall provide XXXXXXXXX reasonable assistance in his compliance with the legal requirements existing from time to time so as to allow XXXXXXXXX to perform his duties as the Company's EVP and as CEO of EZ. |
| 5. | Termination of Employment. |
This Agreement and XXXXXXXXX'x employment hereunder may be terminated only under the following circumstances during the term of this Agreement:
| a) | Termination by XXXXXXXXX. |
XXXXXXXXX may terminate his employment with the Company for any reason by giving the
Company not less than 60 days prior notice of his intent to terminate his employment. In the event of the termination of this Agreement by XXXXXXXXX, and at Company's option, Company may immediately terminate XXXXXXXXX’x employment and shall only pay XXXXXXXXX'x salary earned and owed up to the date of such termination and XXXXXXXXX shall not be entitled to the benefits of Paragraph six (6) below.
| b) | Death. |
XXXXXXXXX'x employment hereunder shall terminate upon his death.
| c) | Disability. |
If as a result of XXXXXXXXX'x incapacity due to physical or mental illness, XXXXXXXXX shall have been unable to perform his duties hereunder for a period of two (2) consecutive months during the term hereof, the Company may terminate XXXXXXXXX'x employment hereunder.
| d) | Termination by Employer |
Company may terminate XXXXXXXXX'x employment with the Company for cause. "Cause" for the purposes of this Agreement, shall include the Company's good faith belief that XXXXXXXXX has engaged in any one or more of the following: willful misconduct, fraud, misappropriation , embezzlement, gross negligence, incompetence , self-dealing, dishonesty, misrepresentation , material violation of any Company policy or any provisions of this Agreement (i.e., confidentiality, ethics, harassment/ discrimination, or violence, substance or alcohol abuse) unsatisfactory performance or incompetence. "Cause “also shall include XXXXXXXXX'x inability to perform the essential functions of his job as described to date, for any reason, for a period of time set forth in Paragraph seven (7) above, and any other circumstances which, under applicable law, would give the Company the right to terminate XXXXXXXXX , with such termination being deemed to be for cause.
6. Compensation Upon Termination of Employment.
a) If XXXXXXXXX'x employment is terminated for cause under Paragraph 5(d) above, the Company shall pay XXXXXXXXX his full salary through the termination date, , plus all expense reimbursements outstanding, if any, and the Company shall have no further obligations whatsoever to XXXXXXXXX under this Agreement, except as may be expressly provided elsewhere herein.
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b) The termination of XXXXXXXXX'x employment either by XXXXXXXXX or by the Company, whether with or without Cause, shall not release XXXXXXXXX from XXXXXXXXX'x obligations and restrictions under Paragraph seven (7) of this Agreement.
c) Regardless of the reason for the termination of XXXXXXXXX'x employment, whether by XXXXXXXXX or the Company, whether with or without Cause, whether or not due to XXXXXXXXX'x death, XXXXXXXXX (or his estate) will receive pay for any days actually worked by XXXXXXXXX plus expenses prior to the termination of his employment. If such termination is without cause XXXXXXXXX will also be entitled the pro-rata portion of any bonuses due through the termination date. Regardless of the reason for the termination of XXXXXXXXX 's employment , whether by XXXXXXXXX or the Company, whether with or without Cause, whether or not due to XXXXXXXXX'x death, XXXXXXXXX (or his estate) shall not be eligible for any Company-paid benefits subsequent to the termination of his employment. In particular, and by way of example only, if XXXXXXXXX’x termination is for anything other than no cause his eligibility to continue to participate in Company’s group health plan, if any, pursuant to COBRA shall be at his sole expense effective on the first day of the month following the month to which his employment terminates, subject to COBRA's eligibility requirements and other terms, conditions, restrictions and exclusions as applicable. If the termination is for no cause then the Company shall cover XXXXXXXXX’x health care cost for two years, the period of which shall be at XXXXXXXXX’x election.
| 7. | Restrictions on Competition and Non-Disclosure. |
| a) | Non-Disclosure of information. |
x. XXXXXXXXX shall not, directly or indirectly, disclose to any person or entity for any reason, or use for his own personal benefit, any Confidential Information (as defined below) either during his employment with the Company or following termination of that employment for Cause for a period of three years after termination of this Agreement;
ii. XXXXXXXXX shall, at all times take all precautions necessary to protect from loss or disclosure by him of any and all documents or other information containing, referring to or relating to such Confidential Information. Upon termination of his employment with the Company for any reason, whether voluntary or involuntary, XXXXXXXXX shall promptly return to the Company any and all documents or other tangible property containing, referring to or relating to such Confidential Information, whether prepared by him or others;
iii. Notwithstanding any provision to the contrary in this Paragraph seven (7), this Paragraph shall not apply to information which has become part of the public domain or is otherwise publicly disclosed through no fault or action of XXXXXXXXX.
If XXXXXXXXX has reason to believe that he may be legally required to disclose Confidential Information, he shall give the Company reasonable notice prior to disclosure so that it may seek to protect the confidentiality of such information;
iv. For purposes of this Agreement "Confidential Information" means any information relating in any way to the business of the Company disclosed to or known to XXXXXXXXX as a consequence of, result of, or through XXXXXXXXX'x employment by the Company which consists of technical and non-technical information about the Company's production, processes , programs, concepts, forms, business methods, data, any and all financial and accounting data, marketing, customers, customer lists, and services and information corresponding thereto acquired by XXXXXXXXX during the term of XXXXXXXXX'x employment by the Company. Confidential Information shall not include any of such items which are published or are otherwise part of the public domain or freely available from trade sources or otherwise.
| b) | Disclosure of Works and Inventions/Assignment of Patents. |
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XXXXXXXXX shall maintain such records of his work as the Company may direct from time to time XXXXXXXXX shall promptly disclose to the Company, in writing, any and all copyrightable works, including software, and any and all discoveries, inventions, technological innovations and improvements, whether patentable or not (whether it be a machine, process, apparatus, article, composition, design, software, writing or other thing) conceived or made by XXXXXXXXX, solely or jointly, during the period of his employment with the Company, whether or not authorized, conceived or made during working hours or with the Company's equipment or facilities, which relates in any manner to the existing or contemplated business of the Company. Unless otherwise waived in writing by the Company, all such copyrightable works (including software), discoveries, inventions, technological innovations and improvements shall be the exclusive property of the Company with respect to any and all countries in the world and XXXXXXXXX shall assign and hereby does assign all right, title and interest thereto the Company or its nominee;
x. XXXXXXXXX, both during his employment and thereafter , shall cooperate fully with the Company in taking all actions and measures necessary for the Company to acquire and perfect its ownership of all such property ..Whenever required to do so by the Company, XXXXXXXXX shall execute any and all applications, assignments or other instruments which the Company shall deem necessary to apply for and obtain Letters Patent or copyrights of the United States or any foreign country or to otherwise protect the Company 's interest therein . Such obligations shall continue beyond the termination of employment with respect to works,
inventions, discoveries and improvements authorized, conceived, made or reduced to practice by XXXXXXXXX during the period of employment, and shall be binding upon XXXXXXXXX'x assigns, executors, administrators and other legal representatives. In conformance with Company policy from time to time,
XXXXXXXXX shall be reimbursed by the Company for reasonable expenses incurred by XXXXXXXXX in connection with his obligations under this Paragraph subject to XXXXXXXXX’x furnishing adequate documentary evidence to substantiate such expenses;
iii. XXXXXXXXX agrees that in the event of publication by XXXXXXXXX of written or graphic materials, other than works of fiction or relating to subjects outside of the Company's business , Company will retain and own all rights in said materials, including right of copyright.
| c) | Restrictions on Competition. |
x. XXXXXXXXX agrees that during his employment with the Company he shall not, directly or indirectly, solicit the trade of or trade with, or otherwise do business with, any customer or prospective customer of the Company or any direct or indirect competitor of the Company. Furthermore, for a period of two years following the termination of his employment with the Company, XXXXXXXXX shall not, directly or indirectly, solicit the trade of or trade with, any customer,
prospective customer, supplier or prospective supplier of the Company on behalf
of or for the benefit of any direct or indirect competitor of the Company;
ii. XXXXXXXXX agrees that for a period of two (2) years following the termination of his employment with the Company, XXXXXXXXX shall not shall not own, manage, operate, consult or be employed in a business substantially similar to, or competitive with, the present business of the Company or such other business activity in which the Company substantially engages during the term of XXXXXXXXX'x employment.
iii. XXXXXXXXX agrees that during his employment with the Company and for a period of two (2) years following the termination of XXXXXXXXX'x employment with the Company, XXXXXXXXX shall not, directly or indirectly, solicit or induce, or attempt to solicit or induce, any employee of the Company to leave the Company for any reason whatsoever or hire any employee of the Company;
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iv. During his employment with the Company, XXXXXXXXX shall not take any action which might divert from the Company any opportunity which would be within the scope of any present or contemplated future business of the Company;
v. In the event of the sale or other disposition of all or substantially all of the Company 's assets or capital stock, XXXXXXXXX agrees to use his best efforts, in good faith, to assist the purchaser (at the purchaser's request) during the transition phase for a period of up to 12 months at XXXXXXXXX'x then current compensation level. XXXXXXXXX acknowledges, however, that nothing contained herein shall be binding upon or otherwise require the purchaser of the Company's assets or
capital stock to continue the employment of XXXXXXXXX after such purchase and sale;
vi. The provisions set forth in Paragraph seven (7) of this Agreement shall survive the termination of XXXXXXXXX'x employment with the Company, or the expiration of this Agreement, as the case may be, and shall continue to be binding upon XXXXXXXXX and Employer in accordance with their respective terms;
vii. XXXXXXXXX recognizes and acknowledges that the services to be rendered by him hereunder are of a special and unique character and that the restrictions on XXXXXXXXX'x activities contained in this Agreement are required for the Company 's reasonable protection. XXXXXXXXX agrees that in the event of his breach of any part
of Paragraph seven (7) of this Agreement , the Company will be entitled, if it so
elects, to institute and prosecute proceedings at law or in equity to obtain damages with respect to such breach or to enforce the specific performance of this Agreement by XXXXXXXXX or to enjoin XXXXXXXXX from engaging in any activity in violation hereof. In the event the Company institutes proceedings at law for its protection, Company shall be entitled to receive from XXXXXXXXX, and XXXXXXXXX agrees to pay all legal costs and fees associated with such legal action.
| 8. | Miscellaneous. |
a) Notices. Any notice required hereby shall be in writing, shall be effective upon receipt, may be sent by facsimile transmission, Email or original document by hand delivery , overnight courier or certified mail, return receipt requested, postage prepaid to the address set forth below. The original of any notice sent by facsimile transmission or Email shall be delivered to the addressee by the close of the business day next following the date of the facsimile or Email transmission or in the case of international delivery, the close of the third business day following the date of the facsimile or Email transmission. All notices shall be sent to:
If to the Company:
0000 Xxxxxx Xxxx
Xxxxxxxxx , XX 00000
T: 315.451.4722
If to XXXXXXXXX:
Xxxxx Xxxxxxxxx
0 Xxxxxxx Xx.
Xxxxxx Xxxxx XX 00000
Email: dmendelson,xxx@xxxxx.xxx
T: 410.382.2640
Any party may change its address for notice by giving the other party ten (10) days notice of such change.
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b) Validity. Any term or provisions of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction , be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any term s or provisions thereof.
c) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same Agreement.
d) Modification. This Agreement sets forth the entire agreement and understanding of the parties concerning the subject matter hereof and supersedes all prior agreements and understandings between the parties hereto. This Agreement may not be amended or modified except by written instrument executed by the parties hereto.
e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to conflict of laws provisions and without the aid of any canon, custom or rule of law requiring construction against the drafting person.
| f) | Binding Effect. The terms and provisions of this Agreement shall be binding upon and |
shall inure to the benefit of the parties hereto, their heirs, successors and assigns. In the event Company or substantially all its assets is acquired by another entity, or in the event Company merges with another entity, this Agreement shall remain in full force and effect. Neither party may assign, convey or transfer the rights or obligations contained herein unless such obligations, assignment, conveyance or transfer is consented to by the other, which consent shall not be unreasonably denied, or such assignment, transfer or conveyance is pursuant to a testamentary transfer or otherwise by operation of law.
| g) | Headings. Headings in this Agreement are included herein for convenience only and shall not constitute a part of this Agreement for any other purpose or be given any substance effect. |
h) Authorship. This Agreement shall be conclusively deemed to have been jointly prepared and authored by the parties hereto and their representatives and no ambiguity shall be construed against any party hereto based on such authorship.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| /s/ Xxxxxxx Xxxxx | /s/ Xxxxx Xxxxxxxxx |
| Xxxxxxx Xxxxx | Xxxxx Xxxxxxxxx |
|
Director & President HighLight Networks, Inc |
|
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Exhibit 10.1
HighLight Networks Inc. Employment Agreement
This Employment Agreement (hereinafter referred to as "Agreement"), is entered into as of this 15th of April, 2013, by and between HighLight Networks Inc., (hereinafter referred to as the "Company") and Xxxxx XXXXXX ("XXXXXX").
WITNESSETH:
WHEREAS, the Company desires to employ XXXXXX and XXXXXX desires to be
employed by the Company as the Executive Vice President (EVP) and Chief Operating Officer (CEO) of EZRecycling, Inc. (EZ) upon the terms and conditions set forth herein; and
WHEREAS, XXXXXX and Company desire to reduce the terms of XXXXXX’x
employment with the Company to a written contract;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and intending to be legally bound hereby, the parties hereto agree as follows:
1. Employment.
Pursuant to the terms of this Agreement, the Company hereby employs XXXXXX as the EVP and CO of the Company.
XXXXXX shall report directly to the Chief Executive Officer of the Company and shall perform such duties as are customarily performed by a person holding the position of EVP and COO in businesses similar to those engaged in by the Company and its subsidiaries and shall, in addition, render such other reasonable services as may be assigned to him, from time to time, by the Company’s CEO or their designee within XXXXXX'x scope of experience, training and expertise.
XXXXXX hereby agrees to be employed as EVP of the Company and CEO of the Company for the term hereof as set forth below. XXXXXX agrees that he shall at all times faithfully and to the best of his ability, perform all of the duties that may reasonably be requested of him within his scope of experience, training and expertise pursuant to the terms of this Agreement.
The Company represents and warrants to XXXXXX that this Agreement has been duly and validly authorized and executed by and on behalf of the Company and that it constitutes the lawful, valid and binding obligation of the Company.
XXXXXX represents and warrants to the Company that he is free to accept employment hereunder and that he has no prior or existing obligations, commitments or restraints of any kind that would in any way hinder or interfere with his acceptance of, or the full performance of, his employment hereunder . When executed, this Agreement will constitute the lawful, valid and binding obligation of XXXXXX.
During his employment with the Company, XXXXXX shall devote not less than 90% of his working time, to the performance of his responsibilities hereunder in a manner which will faithfully and diligently further the business and interest of the Company. Subject to and consistent with the provisions of Paragraph seven (7) below, XXXXXX, during and while employed by the Company, may not provide any services to or receive any compensation from any competitor or potential competitor of the Company.
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6. Term.
Unless earlier terminated in accordance with Paragraph five (5) below, this Agreement shall continue for an initial period of one (1) year from the date on which both parties execute this Agreement. Thereafter, this Agreement shall be extended automatically for successive terms of one (1) year unless (i) the Company or XXXXXX gives written notice of termination to the other party hereto at least Sixty (60) days prior to the termination of the initial term of employment hereunder or any renewal term thereof, or (ii) unless earlier terminated as herein provided.
| 7. | Compensation. |
| g) | Salary. |
Company shall pay to XXXXXX an annual salary of two hundred thousand dollars (US
$200,000) contingent upon the conditions set forth in this Paragraph. XXXXXX'x salary and other benefits shall be reviewed annually by the Board of Directors of the Company and with XXXXXX. The salary shall be paid in equal periodic installments in accordance with the Company's salary practices. The salary payment shall not in any way limit or reduce any other obligation of the Company hereunder, and no other compensation, benefit or payment hereunder shall in any way limit or reduce the obligation of the Company to pay XXXXXX'x salary hereunder. A portion of XXXXXX'x salary is included as a portion of the Company's SG&A, but shall not be paid in full if capital or revenue is not available to the Company during the term of this Agreement. Such salary will begin once EBITDA has reached two million dollars ($2,000,000) based on a twelve month trailing average beginning April 1, 2013.
| h) | Stock. |
As additional compensation, Company agrees to deliver to XXXXXX one hundred fifty (150,000) thousand shares of Restricted Common Stock in HighLight Networks, Inc., par value $0.001 per share, (hereinafter “HNET shares”) in two certificates of seventy-five thousand (75,000) each as follows:
i. The first certificate will be fully vested upon issue.
ii. The second certificate will be designated to be vested one (1) full year after the execution date of this agreement.
iii. Should XXXXXX leave or be separated from the Company before that time, the second certificate will be cancelled and he will return the certificate to the Company for its records.
| i) | Expenses. |
During the term of XXXXXX'x employment hereunder, XXXXXX shall receive
reimbursement from the Company for all reasonable expenses incurred by XXXXXX in the performance of his duties hereunder, including, by way of example and not limitation, travel and living expenses while away from home on business at the request of or in the service of the Company, provided that such expenses are incurred and accounted for in accordance with the standard policies and procedures established, from time to time, by the Company for reimbursement of expenses.
| j) | Bonus. |
XXXXXX shall be entitled to receive a quarterly performance bonus equal to 1% of net margin, defined as revenues after cost of goods sold and before SG&A, paid quarterly, As long as the net result is that the Company achieves an EDITDA of no less than 10% of revenues.
| k) | Other Benefits. |
XXXXXX shall be entitled to participate in the same manner as other officers of the Company in such life insurance, medical, dental, disability, pension, retirement plans and other programs as may be established by the Company, from time to time, for the benefit of its officers. Except as provided elsewhere herein, nothing herein shall affect the Company's right to amend, modify or terminate any retirement or other benefit plan at any time for any reason.
| l) | Vacation. |
XXXXXX shall be entitled to vacation as mutually approved until such time as the Company adopts a formal
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vacation policy including all corporate officers.
8. Warranties and Indemnification by the Company. The Company warrants and represents to XXXXXX that:
d) The Company shall indemnify and save XXXXXX harmless from any and all claims incurred or made against XXXXXX arising directly or indirectly from any negligent or wrongful acts or omissions by the Company, provided that any such negligent or wrongful acts or omissions do not occur as a result of XXXXXX'x own acts or failure to act on behalf of the Company in his role as EVP of the Company. The Company shall use its best efforts to obtain insurance of the kind and amount reasonably necessary to provide adequate protection to XXXXXX.
e) The Company shall provide to XXXXXX any assistance or access to information and facilities reasonably required by XXXXXX to perform his obligations under this Agreement.
| f) | The Company shall provide XXXXXX reasonable assistance in his compliance with the legal requirements existing from time to time so as to allow XXXXXX to perform his duties as the Company's EVP and as CEO of EZ. |
| 9. | Termination of Employment. |
This Agreement and XXXXXX'x employment hereunder may be terminated only under the following circumstances during the term of this Agreement:
| e) | Termination by XXXXXX. |
XXXXXX may terminate his employment with the Company for any reason by giving the
Company not less than 60 days prior notice of his intent to terminate his employment. In the event of the termination of this Agreement by XXXXXX, and at Company's option, Company may immediately terminate XXXXXX’x employment and shall only pay XXXXXX'x salary earned and owed up to the date of such termination and XXXXXX shall not be entitled to the benefits of Paragraph six (6) below.
| f) | Death. |
XXXXXX'x employment hereunder shall terminate upon his death.
| g) | Disability. |
If as a result of XXXXXX'x incapacity due to physical or mental illness, XXXXXX shall have been unable to perform his duties hereunder for a period of two (2) consecutive months during the term hereof, the Company may terminate XXXXXX'x employment hereunder.
| h) | Termination by Employer |
Company may terminate XXXXXX'x employment with the Company for cause. "Cause" for the purposes of this Agreement, shall include the Company's good faith belief that XXXXXX has engaged in any one or more of the following: willful misconduct, fraud, misappropriation , embezzlement, gross negligence, incompetence , self-dealing, dishonesty, misrepresentation , material violation of any Company policy or any provisions of this Agreement (i.e., confidentiality, ethics, harassment/ discrimination, or violence, substance or alcohol abuse) unsatisfactory performance or incompetence. "Cause “also shall include XXXXXX'x inability to perform the essential functions of his job as described to date, for any reason, for a period of time set forth in Paragraph seven (7) above, and any other circumstances which, under applicable law, would give the Company the right to terminate XXXXXX , with such termination being deemed to be for cause.
6. Compensation Upon Termination of Employment.
d) If XXXXXX'x employment is terminated for cause under Paragraph 5(d) above, the Company shall pay XXXXXX his full salary through the termination date, plus all expense
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reimbursements outstanding, if any, and the Company shall have no further obligations whatsoever to XXXXXX under this Agreement, except as may be expressly provided elsewhere herein.
e) The termination of XXXXXX'x employment either by XXXXXX or by the Company, whether with or without Cause, shall not release XXXXXX from XXXXXX'x obligations and restrictions under Paragraph seven (7) of this Agreement.
f) Regardless of the reason for the termination of XXXXXX'x employment, whether by XXXXXX or the Company, whether with or without Cause, whether or not due to XXXXXX'x death, XXXXXX (or his estate) will receive pay for any days actually worked by XXXXXX plus expenses prior to the termination of his employment. If such termination is without cause XXXXXX will also be entitled the pro-rata portion of any bonuses due through the termination date. Regardless of the reason for the termination of XXXXXX 's employment , whether by XXXXXX or the Company, whether with or without Cause, whether or not due to XXXXXX'x death, XXXXXX (or his estate) shall not be eligible for any Company-paid benefits subsequent to the termination of his employment. In particular, and by way of example only, if XXXXXX’x termination is for anything other than no cause his eligibility to continue to participate in Company’s group health plan, if any, pursuant to COBRA shall be at his sole expense effective on the first day of the month following the month to which his employment terminates, subject to COBRA's eligibility requirements and other terms, conditions, restrictions and exclusions as applicable. If the termination is for no cause then the Company shall cover XXXXXX’x health care cost for two years, the period of which shall be at XXXXXX’x election.
| 9. | Restrictions on Competition and Non-Disclosure. |
| d) | Non-Disclosure of information. |
x. XXXXXX shall not, directly or indirectly, disclose to any person or entity for any reason, or use for his own personal benefit, any Confidential Information (as defined below) either during his employment with the Company or following termination of that employment for Cause for a period of three years after termination of this Agreement;
ii. XXXXXX shall, at all times take all precautions necessary to protect from loss or disclosure by him of any and all documents or other information containing, referring to or relating to such Confidential Information. Upon termination of his employment with the Company for any reason, whether voluntary or involuntary, XXXXXX shall promptly return to the Company any and all documents or other tangible property containing, referring to or relating to such Confidential Information, whether prepared by him or others;
iii. Notwithstanding any provision to the contrary in this Paragraph seven (7), this Paragraph shall not apply to information which has become part of the public domain or is otherwise publicly disclosed through no fault or action of XXXXXX.
If XXXXXX has reason to believe that he may be legally required to disclose Confidential Information, he shall give the Company reasonable notice prior to disclosure so that it may seek to protect the confidentiality of such information;
iv. For purposes of this Agreement "Confidential Information" means any information relating in any way to the business of the Company disclosed to or known to XXXXXX as a consequence of, result of, or through XXXXXX'x employment by the Company which consists of technical and non-technical information about the Company's production, processes , programs, concepts, forms, business methods, data, any and all financial and accounting data, marketing, customers, customer lists, and services and information corresponding thereto acquired by XXXXXX during the term of XXXXXX'x employment by the Company. Confidential Information shall not include any of such items which are published or are otherwise part of the public domain or freely available from trade sources or otherwise.
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| e) | Disclosure of Works and Inventions/Assignment of Patents. |
XXXXXX shall maintain such records of his work as the Company may direct from time to time XXXXXX shall promptly disclose to the Company, in writing, any and all copyrightable works, including software, and any and all discoveries, inventions, technological innovations and improvements, whether patentable or not (whether it be a machine, process, apparatus, article, composition, design, software, writing or other thing) conceived or made by XXXXXX, solely or jointly, during the period of his employment with the Company, whether or not authorized, conceived or made during working hours or with the Company's equipment or facilities, which relates in any manner to the existing or contemplated business of the Company. Unless otherwise waived in writing by the Company, all such copyrightable works (including software), discoveries, inventions, technological innovations and improvements shall be the exclusive property of the Company with respect to any and all countries in the world and XXXXXX shall assign and hereby does assign all right, title and interest thereto the Company or its nominee;
x. XXXXXX, both during his employment and thereafter , shall cooperate fully with the Company in taking all actions and measures necessary for the Company to acquire and perfect its ownership of all such property ..Whenever required to do so by the Company, XXXXXX shall execute any and all applications, assignments or other instruments which the Company shall deem necessary to apply for and obtain Letters Patent or copyrights of the United States or any foreign country or to otherwise protect the Company 's interest therein . Such obligations shall continue beyond the termination of employment with respect to works,
inventions, discoveries and improvements authorized, conceived, made or reduced to practice by XXXXXX during the period of employment, and shall be binding upon XXXXXX'x assigns, executors, administrators and other legal representatives. In conformance with Company policy from time to time,
XXXXXX shall be reimbursed by the Company for reasonable expenses incurred by XXXXXX in connection with his obligations under this Paragraph subject to XXXXXX’x furnishing adequate documentary evidence to substantiate such expenses;
iii. XXXXXX agrees that in the event of publication by XXXXXX of written or graphic materials, other than works of fiction or relating to subjects outside of the Company's business , Company will retain and own all rights in said materials, including right of copyright.
| f) | Restrictions on Competition. |
x. XXXXXX agrees that during his employment with the Company he shall not, directly or indirectly, solicit the trade of or trade with, or otherwise do business with, any customer or prospective customer of the Company or any direct or indirect competitor of the Company. Furthermore, for a period of two years following the termination of his employment with the Company, XXXXXX shall not, directly or indirectly, solicit the trade of or trade with, any customer,
prospective customer, supplier or prospective supplier of the Company on behalf
of or for the benefit of any direct or indirect competitor of the Company;
ii. XXXXXX agrees that for a period of two (2) years following the termination of his employment with the Company, XXXXXX shall not shall not own, manage, operate, consult or be employed in a business substantially similar to, or competitive with, the present business of the Company or such other business activity in which the Company substantially engages during the term of XXXXXX'x employment.
iii. XXXXXX agrees that during his employment with the Company and for a period of two (2) years following the termination of XXXXXX'x employment with the Company, XXXXXX shall not, directly or indirectly, solicit or induce, or attempt to solicit or induce, any employee of the Company to leave the Company for any reason whatsoever or hire any employee of the Company;
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iv. During his employment with the Company, XXXXXX shall not take any action which might divert from the Company any opportunity which would be within the scope of any present or contemplated future business of the Company;
v. In the event of the sale or other disposition of all or substantially all of the Company 's assets or capital stock, XXXXXX agrees to use his best efforts, in good faith, to assist the purchaser (at the purchaser's request) during the transition phase for a period of up to 12 months at XXXXXX'x then current compensation level. XXXXXX acknowledges, however, that nothing contained herein shall be binding upon or otherwise require the purchaser of the Company's assets or
capital stock to continue the employment of XXXXXX after such purchase and sale;
vi. The provisions set forth in Paragraph seven (7) of this Agreement shall survive the termination of XXXXXX'x employment with the Company, or the expiration of this Agreement, as the case may be, and shall continue to be binding upon XXXXXX and Employer in accordance with their respective terms;
vii. XXXXXX recognizes and acknowledges that the services to be rendered by him hereunder are of a special and unique character and that the restrictions on XXXXXX'x activities contained in this Agreement are required for the Company 's reasonable protection. XXXXXX agrees that in the event of his breach of any part
of Paragraph seven (7) of this Agreement , the Company will be entitled, if it so
elects, to institute and prosecute proceedings at law or in equity to obtain damages with respect to such breach or to enforce the specific performance of this Agreement by XXXXXX or to enjoin XXXXXX from engaging in any activity in violation hereof. In the event the Company institutes proceedings at law for its protection, Company shall be entitled to receive from XXXXXX, and XXXXXX agrees to pay all legal costs and fees associated with such legal action.
| 10. | Miscellaneous. |
i) Notices. Any notice required hereby shall be in writing, shall be effective upon receipt, may be sent by facsimile transmission, Email or original document by hand delivery , overnight courier or certified mail, return receipt requested, postage prepaid to the
address set forth below. The original of any notice sent by facsimile transmission or Email shall be delivered to the addressee by the close of the business day next following the date of the facsimile or Email transmission or in the case of international delivery, the close of the third business day following the date of the facsimile or Email transmission. All notices shall be sent to:
If to the Company:
0000 Xxxxxx Xxxx
Xxxxxxxxx , XX 00000
T: 315.451.4722
If to XXXXXX:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Email: xxxxxxx.xxx@xxxxx.xxx
T: 443.255.9439
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Any party may change its address for notice by giving the other party ten (10) days notice of such change.
j) Validity. Any term or provisions of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction , be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any term s or provisions thereof.
k) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same Agreement.
l) Modification. This Agreement sets forth the entire agreement and understanding of the parties concerning the subject matter hereof and supersedes all prior agreements and understandings between the parties hereto. This Agreement may not be amended or modified except by written instrument executed by the parties hereto.
m) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to conflict of laws provisions and without the aid of any canon, custom or rule of law requiring construction against the drafting person.
| n) | Binding Effect. The terms and provisions of this Agreement shall be binding upon and |
shall inure to the benefit of the parties hereto, their heirs, successors and assigns. In the event Company or substantially all its assets is acquired by another entity, or in the event Company merges with another entity, this Agreement shall remain in full force and effect. Neither party may assign, convey or transfer the rights or obligations contained herein unless such obligations, assignment, conveyance or transfer is consented to by the other, which consent shall not be unreasonably denied, or such assignment, transfer or conveyance is pursuant to a testamentary transfer or otherwise by operation of law.
| o) | Headings. Headings in this Agreement are included herein for convenience only and shall not constitute a part of this Agreement for any other purpose or be given any substance effect. |
p) Authorship. This Agreement shall be conclusively deemed to have been jointly prepared and authored by the parties hereto and their representatives and no ambiguity shall be construed against any party hereto based on such authorship.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| /s/ Xxxxxxx Xxxxx | /s/ Xxxxxxx X. Xxxxxx |
| Xxxxxxx Xxxxx | Xxxxxxx X. Xxxxxx |
|
Director & President HighLight Networks, Inc |
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