EMPLOYMENT AGREEMENT
Employment Agreement, dated as of the ___ day of June, 1999, by and
between Xxxxxxxxxxx.xxx (US) Ltd., a Delaware corporation (the "Corporation"),
and Xxxxxx Xxxxxxxx, an individual residing in New Providence, New Jersey (the
"Employee").
W I T N E S S E T H:
The parent corporation of the Corporation is a party to that certain
Merger Agreement and Plan of Reorganization, dated June __, 1999, among
Cyber-Tech, Inc., a New Jersey corporation ("Cyber-Tech"), its shareholders,
MCNS Merger Subsidiary II, Inc., and Xxxxxxxxxxx.xxx, Inc., a Delaware
corporation ("Parent") (the "Merger Agreement"). As a condition to the Closing
of the Merger Agreement, the Corporation and Employee are to enter in to an
agreement upon the terms outlined herein under which Employee will provide
employment services in connection with the operation of its business and that of
Subsidiary as the surviving corporation to Cyber-Tech. In consideration of the
mutual covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties hereto,
the parties hereto hereby agree as follows:
1. Employment. The Corporation hereby agrees to employ the Employee in an
employee capacity, and the Employee hereby accepts and agrees to such
employment, commencing as of the date hereof, upon the terms and conditions
hereinafter set forth.
2. Term. The term of the Employee's employment under this Agreement shall
commence as of the date hereof and shall continue until the close of business on
June 30, 2000, unless sooner terminated pursuant to the terms hereof. This
Agreement shall be renewable by the mutual written consent of the parties, which
consent shall specify the renewal period and any additional or different terms
of employment.
3. Duties and Services.
(a) The Employee agrees to initially serve the Corporation in the
position and holding the title "Manager Cardiovascular", and shall also serve
Cyber-Tech and such other of its subsidiaries and affiliated companies as may be
designated by the Corporation, faithfully, diligently and to the best of her
ability, subject to and under the direction and control of the appointed manager
of the Corporation, devoting her entire business time, energy and skill to such
employment. The Corporation and the Employee acknowledge that Employee's
employment hereunder is intended to be a "half-time" employment relationship.
Employee shall, during the course of her employment by the Corporation, not
engage in business employment for any other employer. Employee's duties shall be
to oversee the lay person cardiovascular articles posted on the Cyber-Tech (or
any successor entity) web-site and to edit lay person cardiovascular articles
prior to submitting them to professional advisors for comment, and such other
duties as are reasonably necessary to fulfill the position of Manager,
Cardiovascular.
(b) The principal place of employment of the Employee shall be in
New Providence, New Jersey, or Parsippany, New Jersey, or such other offices of
the Corporation as shall
be determined by the Board of Directors which shall be located within a one-hour
drive of New Providence, New Jersey. Employee shall not be required to relocate
from New Providence, New Jersey.
4. Compensation. From the Closing Date until June 30, 2000, the
Corporation agrees to pay to the Employee, and the Employee agrees to accept a
basic salary for all Employee's services hereunder (the Salary") at the rate of
$ 45,000 per annum, payable in accordance with the Corporation's standard
payroll policies and subject to normal deductions and withholdings.
5. Employee Benefits.
(a) Business. The Corporation shall reimburse the Employee for the
reasonable business expenses incurred by her for or on behalf of the Corporation
in furtherance of the performance of her duties hereunder. Such reimbursement
shall be subject to receipt by the Corporation from the Employee of such an
expense statements and such vouchers and other reasonable verifications as the
Corporation shall require to satisfactorily evidence such expenses, and shall
also be subject to such policies as the Corporation shall establish from time to
time.
(b) Benefit Programs. The Employee shall be entitled to participate,
in accordance with the terms thereof, in employee benefit plans and programs
maintained for similarly situated half-time employees of the Corporation,
including, without limitation, any health, hospitalization and medical insurance
programs and in any pension or retirement or other similar plans or programs.
The foregoing shall not be construed to require the Corporation to establish any
such plans or programs, or to prevent the Corporation from modifying or
terminating any such plans or programs once established, provided that in no
case shall the Corporation terminate any such plan or benefit unless such
termination is part of a general termination of such benefits.
(c) Vacation. The Employee shall be entitled to four (4) weeks of
vacation each employment year during the term of this Agreement, taken
consecutively or in segments. Vacation not taken during any such year cannot be
rolled over to the following or any subsequent year.
(d) Leave of Absence. Employee shall be entitled to a six (6) week
leave of absence, without pay, to be taken from approximately August 1, 1999,
through September 15, 1999. During such period, Employee shall take such steps
as may be necessary to see that the Corporation receives the services she would
otherwise have provided at no additional cost to the Corporation other than the
Salary she would otherwise have received.
6. Termination of Benefits.
(a) Termination. Notwithstanding anything to the contrary contained
herein, the Employee's employment with the Corporation, as well as the
Employee's right to any compensation which thereafter otherwise would accrue to
her hereunder or in connection therewith, shall terminate upon the earliest to
occur of the following events:
(i) the death or disability (as defined below) of the
Employee,
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(ii) the expiration of the term of this Agreement,
(iii) the Employee's voluntary termination of such employment,
or
(iv) upon delivery of written notice, with or without "cause"
(as defined below), to the Employee from the Corporation of such
termination.
(b) Certain Definitions. For the purpose of this Section 6, (i) the
term "cause" is defined as (A) the commission by the Employee of a felony or an
offense involving moral turpitude, the Employee's engaging in theft,
embezzlement, fraud, obtaining funds or property under false pretenses, or
similar acts of misconduct with respect to the property of the Corporation or
its employees, stockholders, affiliates, customers, licensees, licensers or
suppliers, (B) the repeated failure by the Employee to (i) perform her material
duties hereunder, or (ii) to comply with reasonable written policies or
directives of the Board of Directors of the Corporation, (C) material
misfeasance or malfeasance, or (D) the breach of this Agreement by the Employee
in any material respect, which breach is not cured within thirty (30) days after
Employee's receipt of written notice of the breach (or if a breach is a
repetition of a previous breach occurring within the previous twelve (12)
months, no cure right shall be given), and (ii) the Employee shall be deemed
"disabled" if, at the Corporation's option, it gives notice to the Employee or
her representative that due to a disabling mental or physical condition, she has
been prevented, for a continuous period of 90 days during the term hereof or for
an aggregate of 120 days during any six month period during the term hereof,
from substantially performing those duties which she was required to perform
pursuant to the provisions of this Agreement prior to incurring such disability,
subject to any applicable requirements of federal or state law under a family
and medical leave act. Any notice of termination shall outline the reason or
reasons for such termination.
(c) Severance; Release. In the event of and upon the termination by
the Corporation of the employment of the Employee under this Agreement without
"cause", in addition to the Salary and other compensation (including accrued
vacation, cash bonuses, incentive and performance compensation) earned hereunder
and unpaid or not delivered through the date of termination and any benefits
referred to in Section 5(b) hereof in which the Employee has a vested right
under the terms and conditions of the plan or program pursuant to which such
benefits were granted (without regard to such termination), the Corporation
shall pay the Employee a cash payment (the "Severance Payment") equal in the
aggregate to the sum of six (6) weeks salary. In the event of termination of
this Agreement by the Corporation by reason of the death or disability of the
Employee or for "cause", or in the event of the voluntary termination of this
Agreement by Employee, the Corporation shall not be obligated to make the
Severance Payment to the Employee. The Severance Payment shall be paid to the
Employee in consecutive, equal monthly installments, on the fifteenth day of
each calendar month commencing during the month next following the first to
occur of (1) the month in which the Employee is no longer employed by the
Corporation and (2) the effective date of a general release from the Employee in
customary form for such circumstances. The Severance Payment shall be in lieu of
any other claim for compensation under this Agreement, any wage continuation law
or at common law, or any claim to severance or similar payments or benefits
which the Employee may otherwise have or make. Without limiting any other rights
or remedies which the Corporation may have, it is understood that the
Corporation shall be under no
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further obligation to make any such severance payments and shall be entitled to
be reimbursed therefor by the Employee or her estate if the Employee violates
any of the covenants set forth in this Agreement. In the event that the
Severance Payment shall become payable to the Employee, the Employee shall not
be required, either in mitigation of damages or by the terms of any provisions
of this Agreement or otherwise, to seek or accept other employment, and if the
Employee does accept other employment, any benefits or payments under this
Agreement shall not be reduced by any compensation earned or other benefits
received as a result of such employment. Further, in the event that the
Severance Payment shall become payable to the Employee, the Corporation shall
continue to provide during such period coverage to Employee under the
Corporation's health, hospitalization and medical programs, to the same extent
and at the same cost to the Employee as provided during the term of Employee's
employment with the Corporation, so long as its programs permit such coverage.
7. Confidentiality.
(a) The Employee agrees to the following to and for the benefit of
the Corporation:
(i) Confidentiality. The Employee understands and agrees that
the Employee's employment creates a relationship of confidence and
trust between the Employee and the Corporation with respect to all
Confidential Information. At all times, both during the Employee's
employment with the Corporation and after her termination, the
Employee will keep in confidence and trust all such Confidential
Information, and will not use or disclose any such Confidential
Information without the written consent of the Corporation, except
as may be necessary in the ordinary course of performing the
Employee's duties to the Corporation.
(ii) Confidential Information. As used in this Agreement,
"Confidential Information" means information belonging to the
Corporation which is of value to the Corporation in the course of
conducting its business and the disclosure of which is reasonably
likely to result in a competitive or other disadvantage to the
Corporation. Confidential Information includes, without limitation,
financial information, reports, and forecasts; inventions,
improvements and other intellectual property; trade secrets;
know-how; designs, processes or formulae, software; market or sales
information or plans; customer lists; and business plans, prospects
and opportunities (such as possible acquisitions or dispositions of
businesses or facilities) which have been discussed or considered by
the management of the Corporation. Confidential Information includes
information developed by the Employee in the course of the
Employee's employment by the Corporation or Cyber-Tech in the three
(3) previous years, as well as other information to which the
Employee may have access in connection with the Employee's
employment pertaining to the same or similar lines of business as
may be engaged in, or proposed to be engaged in, by the Corporation
during the term of this Agreement. Confidential Information also
includes the confidential information of others with which the
Corporation has a business relationship. Notwithstanding the
foregoing, Confidential Information does
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not include information in the public domain, unless due to breach
of the Employee's duties under this Section 7 or information known
to the Employee prior to her employment by the Corporation or
Cyber-Tech in the three (3) previous years.
(iii) Inventions. The Employee recognizes that the Corporation
possesses a proprietary interest in all of the Confidential
Information and has the exclusive right and privilege to use,
protect by copyright, patent or trademark, or otherwise exploit the
processes, ideas and concepts described therein to the exclusion of
the Employee, except as otherwise agreed between the Corporation and
the Employee in writing. The Employee expressly agrees that any
products, inventions, discoveries or improvements made by the
Employee or her agents in the course of the Employee's employment or
during any period that the Employee has heretofore been a consultant
to the Corporation or Cyber-Tech, including any of the foregoing
which is based on or arises out of the Confidential Information,
shall be the property of and inure to the exclusive benefit of the
Corporation. The Employee further agrees that any and all products,
inventions, discoveries or improvements developed by the Employee
(whether or not able to be protected by copyright, patent or
trademark) during the course of her employment or during any period
that the Employee has heretofore been a consultant to the
Corporation or Cyber-Tech, or involving the use of the time,
materials or other resources of the Corporation or any of its
subsidiaries or affiliates or Cyber-Tech, shall be promptly
disclosed to the Corporation and shall become the exclusive property
of the Corporation and the Employee shall execute and deliver any
and all documents necessary or appropriate to implement the
foregoing.
(iv) Business Opportunities. The Employee agrees, while she is
employed by the Corporation, to offer or otherwise make known or
available to it, as directed by the Board of Directors of the
Corporation and without additional compensation or consideration,
any business prospects, contracts or other business opportunities
that she may discover, find, develop or otherwise have available to
her in the same or similar lines of business as the Corporation's,
and further agrees that any such prospects, contacts or other
business opportunities shall be the property of the Corporation.
(v) Documents, Records, etc. All documents, records, data,
apparatus, equipment and other physical property, whether or not
pertaining to Confidential Information, which are furnished to the
Employee by the Corporation or Cyber-Tech or are produced by the
Employee in connection with the Employee's employment will be and
remain the sole property of the Corporation. The Employee will
return to the Corporation all such materials and property as and
when requested by the Corporation. In any event, the Employee will
return all such materials and property immediately upon termination
of the Employee's employment for any reason. The Employee will not
retain with the Employee any such material property or any copies
thereof after such termination.
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(vi) Third-Party Agreements and Rights. The Employee hereby
confirms that the Employee is not bound by the terms of any
agreement with any previous employer (other than Cyber-Tech) or
other party which restricts in any way the Employee's use or
disclosure of information reasonably likely to be useful or
necessary to the performance by the Employee of her services
hereunder, or the Employee's engagement in any business. The
Employee represents to the Corporation that the Employee's execution
of this Agreement, the Employee's employment with the Corporation
and the performance of the Employee's proposed duties for the
Corporation will not violate any obligations the Employee may have
to any such previous employer or other party. In the Employee's work
for the Corporation, the Employee will not disclose or make use of
any information in violation of any agreements with or right of any
such previous employer or other party, and the Employee will not
bring to the premises of the Corporation any copies or other
tangible embodiments of non-public information belonging to or
obtained from any such previous employment or other party.
(vii) Litigation and Regulatory Cooperation. During and after
the Employee's employment, the Employee shall cooperate fully with
the Corporation in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future
against or on behalf of the Corporation or its subsidiaries or
affiliates which relate to events or occurrences that transpired
while the Employee was employed by the Corporation or Cyber-Tech.
The Employee's full cooperation in connection with such claims or
actions shall include, but not be limited to, being available to
meet with counsel to prepare for discovery or trial and to act as a
witness on behalf of the Corporation at mutually convenient times.
During and after the Employee's employment, the Employee also shall
cooperate fully with the Corporation in connection with any such
investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or
occurrences that transpired while the Employee was employed by the
Corporation or Cyber-Tech. The Corporation shall reimburse the
Employee for any reasonable out-of-pocket expenses incurred in
connection with the Employee's performance of obligations pursuant
to this subsection (vii). The performance by the Employee under this
subsection (vii) after the termination of the Employee's employment
with the Corporation shall be subject to her other confidentiality
obligations hereunder.
(b) The provisions of this Section 7 shall survive the termination
or expiration of this Agreement, irrespective of the reason therefor, including
under circumstances in which the Employee continues thereafter in the employ of
the Corporation.
8. Insurance. The Employee agrees that the Corporation may from time to
time and for the Corporation's own benefit apply for and take out life insurance
covering the Employee, either independently or together with others, in any
amount and form which the Corporation may deem to be in its best interests. The
Corporation shall own all rights in such insurance and in the cash values and
proceeds thereof and the Employee shall not have any right, title or interest
therein. The Employee agrees to assist the Corporation, at the Corporation's
expense, in obtaining any such
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insurance by, among things, submitting to customary examinations and correctly
preparing, signing and delivering such applications and other documents as
reasonably may be required. Nothing contained in this Section 8 shall be
construed as a limitation on the Employee's right to procure any life insurance
for her own personal needs.
9. Notices. All notices shall be in writing and shall be deemed to have
been duly given to a party hereto on the date of such delivery, if delivered
personally, or on the third day after being deposited in the mail if mailed via
registered or certified mail, return receipt requested, postage prepaid, or on
the next business day after being sent by recognized national overnight courier
service, in the case of the Employee at her current address as set forth in the
Corporation's records, and in the case of the Corporation, at it address set
forth above.
10. Assignability and Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the heirs, executors, administrators,
successors and legal representatives of the Employee, and shall inure to the
benefit of and be binding upon the Corporation and its successors and assigns,
provided that such entity has the financial capability to carry out the
Corporation's obligations to Employee hereunder. This Agreement may be assigned
by the Corporation to any subsidiary, affiliate or successor to its business.
The Employee may not assign, transfer, pledge, encumber, hypothecate or
otherwise dispose of this Agreement, or any of her rights or obligations
hereunder, and any such attempted delegation or disposition shall be null and
void and without effect.
11. Severability. In the event that any provisions of this Agreement would
be held to be invalid, prohibited or unenforceable in any jurisdiction for any
reason (including, but not limited to, any provisions which would be held to be
unenforceable because of the scope, duration or area of its applicability),
unless narrowed by construction, this Agreement shall, as to such jurisdiction
only, be construed as if such invalid, prohibited or unenforceable provision had
been more narrowly drawn so as not to be invalid, prohibited or unenforceable
(or if such language cannot be drawn narrowly enough, the court making any such
determination shall have the power to modify such scope, duration or area or all
of them, but only to the extent necessary to make such provision or provisions
enforceable in such jurisdiction, and such provision shall then be applicable in
such modified form). If, notwithstanding the foregoing, any provision of this
Agreement would be held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision shall be ineffective to the extent of such
invalidity, prohibition or unenforceability, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New Jersey, without regard to
principles of conflict of laws and regardless of where actually executed,
delivered or performed.
13. Complete Understanding; Counterparts. This Agreement constitutes the
complete understanding and supersedes any and all prior agreements and
understandings between the parties with respect to its subject matter, and no
statement, representation, warranty or covenant has been made by either party
with respect thereto except as expressly set forth herein. This Agreement shall
not be altered, modified, amended or terminated except by written instrument
signed by each of the
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parties hereto. The Section and paragraph headings contained herein are for
convenience only, and are not part of and are not intended to define or limit
the contents of said Sections and paragraphs. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one and the same agreement.
(Remainder of page intentionally left blank)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXXXXXXX.XXX (US) LTD.
By:_________________________________
Name:_______________________________
Title:______________________________
____________________________________
Xxxxxx Xxxxxxxx
