EXHIBIT 10.62
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated February 14, 2000 between WORLDWIDE WEB
NETWORX CORPORATION, a Delaware corporation (the "COMPANY"), and G. XXXXX
XXXXXXXXX (the "EXECUTIVE"), an individual residing at 000 Xxxxxxx Xxxx,
Xxxxxxxxx, XX 00000.
RECITAL:
The parties hereto desire to enter into this Agreement to provide for the
employment of the Executive by the Company and for certain other matters in
connection with such employment, all as set forth more fully in this Agreement.
NOW, THEREFORE, in consideration of the premises and covenants set forth
herein, and intending to be legally bound hereby, the parties to this Agreement
hereby agree as follows:
1. DUTIES. The Company agrees that, subject to the approval of the
Board of Directors of ATM Service, Ltd. ("ATM") and The Intrac Group, Ltd.
("Intrac"), the Executive shall be employed by the Company as Vice President and
General Counsel of each of ATM and Intrac, and the Executive agrees to be so
employed, to devote his best efforts and substantially all of his business time
to advance the interests of each of ATM and Intrac and to perform such
executive, managerial, administrative and other duties as are from time to time
assigned to him by each of the Chairman or President of ATM and the Chairman or
President of Intrac or the board of directors of the Company (the "Board") and
are consistent with his position as a senior executive and general counsel of
each of ATM and Intrac. For the first year of the term of this Agreement, the
Executive shall, if feasible in the sole discretion of the Chairman and
President of ATM and Intrac, work out of his Philadelphia office at least one
day a week.
2. TERM. Subject to SECTIONS 4 AND 5, the initial term of the
Executive's employment hereunder shall commence on or before March 6, 2000, and
shall continue for a term of five (5) years (the "EXPIRATION DATE"). If either
party elects not to renew this Agreement following the Expiration Date, or if
the parties are otherwise unable to agree to mutually acceptable terms for a
renewal period within 180 days prior to the Expiration Date, then (subject to
the provisions of SECTION 16) this Agreement shall terminate effective as of the
Expiration Date.
3. COMPENSATION.
(a) SALARY. During the term of his employment under this Agreement,
the Executive shall be paid an annual salary at the initial rate of not less
than $225,000.00 (the "BASE SALARY"). The Base Salary may be increased from time
to time by the Board in its sole and absolute discretion; PROVIDED, HOWEVER,
that the Base Salary shall be
increased by at least $25,000.00 on January 1, 2001. The Board shall review the
Base Salary at least annually at the end of each fiscal year of the Company. The
Base Salary shall be paid in accordance with the Company's regular payroll
practices.
(b) BONUSES. Executive shall receive a signing bonus in the amount
of $50,000.00, less applicable payroll deductions, payable at the time of the
execution and delivery of this Agreement. At the end of each fiscal year of the
Company that ends during the term of this Agreement and at such other times as
the Board determines, the Board shall consider the award of a performance bonus
("Annual Performance Bonus") to the Executive for such fiscal year in an amount
equal to up to 50% of the Base Salary. The award of any Annual Performance Bonus
shall be in the sole discretion of the Board, PROVIDED, HOWEVER, that Executive
shall be entitled to receive an Annual Performance Bonus of at least $35,000.00
in each calendar year during the term of this Agreement.
(c) FRINGE BENEFITS. The Executive shall receive an automobile
allowance in the amount of $1,000.00 per month, which shall cover the costs of
the lease for an automobile selected by the Executive, insurance, gasoline,
maintenance and repairs. The Company shall also provide the Executive with
family health insurance, long-term disability insurance and life insurance
coverage, in the maximum amounts available under the Company's plans, and the
Executive shall be entitled to participate in such other insurance, vacation and
employee benefit programs of the Company to the extent and on the same terms and
conditions as are accorded to other officers or key executives of the Company
from time to time
(d) REIMBURSEMENT OF EXPENSES. The Executive shall be reimbursed for
all normal items of travel, entertainment and miscellaneous business expenses
reasonably incurred by him on behalf of ATM or the Company, provided that such
expenses are documented and submitted in accordance with the reimbursement
policies of the Company as in effect from time to time. In addition, for the
first year of the term of this Agreement, the Company shall pay for the
overnight lodging expenses incurred by the Executive in the Tarrytown, New York
area. Further, in the event that the Executive relocates to the Tarrytown, New
York area during the term of this Agreement, the Company shall reimburse the
Executive for relocation expenses, including real estate commissions, transfer
taxes and moving expenses, in an amount up to $25,000.00.
(e) STOCK OPTIONS. The Executive and the Company shall enter into a
Stock Option Grant Agreement, pursuant to which the Executive shall be granted
options to purchase 200,000 shares of the Common Stock of the Company (the
"Options"), on the terms and subject to the conditions set forth therein, which
includes a vesting schedule; PROVIDED, HOWEVER, that notwithstanding the vesting
schedule contained in the Stock Option Grant Agreement, should a Change in
Control (as defined below) occur, any options to purchase securities of the
Company that were not previously vested will immediately and fully vest.
(f) OTHER. The Company shall provide the Executive with a cell phone
and cell phone account, desk top computer (with printer and scanner) and fax
machine for the Executive's office and a lap top computer for the Executive's
use outside of the office.
(g) ENTIRE COMPENSATION. The compensation provided for in this
Agreement shall constitute full payment for the services to be rendered by
the Executive hereunder.
4. DEATH OR TOTAL DISABILITY OF THE EXECUTIVE.
(a) DEATH. In the event of the death of the Executive during the
term of this Agreement, this Agreement shall terminate effective as of the date
of the Executive's death, and the Company shall not have any further obligation
or liability under this Agreement except that the Company shall: (i) pay to the
Executive's estate any portion of the Executive's Base Salary for the period up
to the Executive's date of death that has been earned but remains unpaid; (ii)
pay to the Executive's estate any benefits that have accrued to the Executive
under the terms of the benefit plans of the Company in which he is a
participant, which benefits shall be paid in accordance with the terms of those
plans; and (iii) vest any options to purchase securities of the Company that
were not previously vested pursuant to the schedule in SECTION 5(b).
(b) TOTAL DISABILITY. In the event of the Total Disability (as that
term is hereinafter defined) of the Executive, for (i) a period of 180
consecutive days or (ii) for any 180 days within a period of 360 consecutive
days, at any time during the term of this Agreement, the Company shall have the
right to terminate the Executive's employment hereunder by giving the Executive
30 days' written notice thereof, and, upon expiration of such 30-day period, the
Company shall not have any further obligation or liability under this Agreement
except that the Company shall: (i) pay to the Executive any portion of the
Executive's Base Salary for the period up to the date of termination that has
been earned but remains unpaid; (ii) pay to the Executive any benefits that have
accrued to the Executive under the terms of the benefit plans of the Company in
which he is a participant, which benefits shall be paid in accordance with the
terms of those plans; and (iii) vest any options to purchase securities of the
Company that were not previously vested pursuant to the schedule in SECTION
5(b). The term "TOTAL DISABILITY," when used herein, shall mean a mental or
physical condition that in the reasonable opinion of the Board renders the
Executive unable or incompetent to carry out the essential functions of the job
responsibilities he held or the tasks that he was assigned at the time the
disability was incurred.
5. TERMINATION.
(a) TERMINATION BY THE COMPANY FOR CAUSE. The Company may discharge
the Executive and thereby terminate his employment hereunder upon written notice
to the Executive for any of the following reasons: (i) material violation of any
policy regarding substance abuse as may be promulgated by the Company from time
to time; (ii) the willful failure to substantially perform the duties or
responsibilities of his position as those may be delegated or assigned to the
Executive by the President or
Chairman of ATM or the President or Chairman of Intrac or by the Board; (iii)
any material breach of any covenant or agreement contained in SECTIONS 6 OR 7 of
this Agreement; (iv) engaging in intentional conduct that causes material damage
to ATM, Intrac or the Company, or the business reputation of ATM, Intrac or the
Company; (v) conviction (by trial or guilty plea) or a plea of non-contest, NOLO
CONTENDERE or similar plea to a felony (or misdemeanor which the Company
determines to have or could have a material adverse effect on ATM, Intrac or the
Company or the reputation of ATM, Intrac or the Company) which has become
non-appealable; (vi) adjudication as an incompetent; or (vii) misappropriation
of any funds or property of ATM, Intrac or the Company materially affecting ATM,
Intrac or the Company, theft, embezzlement or fraud; provided, however, that
with respect only to subsections (i) and (ii) above, the Company shall not
discharge the Executive for cause unless the Executive fails, refuses or for any
reason does not cure such violation to the reasonable satisfaction of the
Company within 30 days following written notice from the Company that there
exists a reason for discharge for cause. In the event that the Company shall
discharge the Executive pursuant to this SECTION 5(a), the Company shall not
have any further obligation or liability under this Agreement, except that the
Company shall pay to the Executive: (i) any portion of the Executive's Base
Salary for the period up to the date of termination that has been earned but
remains unpaid; and (ii) any benefits that have accrued to the Executive under
the terms of the benefit plans of the Company in which he is a participant,
which benefits shall be paid in accordance with the terms of those plans.
(b) OTHER TERMINATION BY THE COMPANY. The Company may discharge the
Executive and thereby terminate his employment hereunder at any time upon 30
days' prior written notice for any reason other than one specified in SECTION
5(a). If the Company shall terminate the employment of the Executive for any
reason other than one specified in SECTION 5(a), the Executive shall be entitled
to: (i) be paid any portion of the Executive's Base Salary for the period up to
the date of termination that has been earned but remains unpaid; (ii) be paid a
severance payment equal to the Executive's Base Salary for a period of 12
months; (iii) be paid any benefits that have accrued to the Executive under the
terms of any benefit plans of the Company in which he is a participant, which
benefits shall be paid in accordance with the terms of those plans; and (iv)
have any options to purchase securities of the Company that were not previously
vested vest pursuant to the following schedule:
LENGTH EMPLOYED % OF OPTIONS VESTING
0-3 months 0
3-9 months 40%
9-15 months 60%
15-21 months 80%
more than 21 months 100%
(the sum of options vesting may not exceed 100% of options granted)
(c) TERMINATION BY THE EXECUTIVE. The Executive may terminate his
employment hereunder at any time upon written notice for Good Reason (as defined
below). If the Agreement is so terminated, the Executive shall be entitled to:
(i) be paid any portion of the Executive's Base Salary for the period up to the
date of termination that has been earned but remains unpaid; (ii) be paid a
severance payment in an amount equal to the Executive's Base Salary for a period
of 12 months; (iii) be paid any benefits that have accrued to the Executive
under the terms of any benefit plans of the Company in which he is a
participant, which benefits shall be paid in accordance with the terms of those
plans; and (iv) have any options to purchase securities of the Company that were
not previously vested vest pursuant to the schedule in SECTION 5(b) except in
the case of (D) below, which shall be governed by SECTION 3(e). For purposes of
this Agreement, "GOOD REASON" means, without the Executive's express written
consent, any of the following circumstances:
(A) Executive's removal from his position as Vice President
and General Counsel of ATM and Intrac, or a significant diminution in the nature
or status of Executive's responsibilities;
(B) Executive being assigned to any duties inconsistent with
Executive's status as an executive of ATM and Intrac holding the position of
Vice President and General Counsel;
(C) A reduction by the Company in Executive's Base Salary
or benefits;
(D) A Change in Control occurs; for purposes of this SECTION
5(c)(D), a "CHANGE IN CONTROL" means any one of the following: (i) an
acquisition of 50% or more of the combined voting power of all of the Company's
securities, (ii) a merger where, following the transaction, the Company's
stockholders own 50% or less of the voting securities of the surviving or
resulting entity, (iii) the liquidation or sale of substantially all of the
assets of the Company, or (iv) the individuals who currently form a majority of
the Board cease to be a majority of the Board, unless the new directors are
nominated for election by the current Board or their nominated successors.
6. NON-DISCLOSURE AND NON-COMPETITION.
(a) NON-DISCLOSURE. The Executive acknowledges that in the course
of performing services for the Company, the Executive may have had access to
confidential and proprietary information and records, data and other trade
secrets of ATM, Intrac or the Company ("CONFIDENTIAL INFORMATION"). Confidential
Information shall include, without limitation, the following types of
information or material, both existing and contemplated, regarding ATM, Intrac
or the Company, or its subsidiary or affiliated companies: corporate
information, including plans, strategies, policies, resolutions, and any
litigation or negotiations; marketing information, including strategies,
methods, customers, prospects, or market research data; financial information,
including cost and performance data, debt arrangement, equity structure,
investors, and holdings; operational and scientific information, including trade
secrets and technical information; and personnel information, including
personnel lists, resumes, personnel data, organizational structure, compensation
structure, and performance evaluations. The Executive agrees that, during his
employment by the Company hereunder and after the termination or expiration of
the Executive's employment hereunder, to keep the Confidential Information
secret and confidential; not to publish, disclose or divulge the Confidential
Information to any other party; not to use any of the Confidential Information
for the Executive's own benefit or to the detriment of ATM or the Company
without the prior written consent of ATM, Intrac or the Company, whether or not
such Confidential Information was discovered or developed by the Executive. The
Executive also agrees not to divulge, publish or use any proprietary and/or
confidential information of others that ATM, Intrac or the Company is obligated
to maintain in confidence for the relevant time period of ATM, Intrac or the
Company's obligation. Notwithstanding the foregoing, the provisions of this
SECTION 6(a) will not apply when the Confidential Information (i) is publicly
disclosed other than by the Executive or (ii) is the subject of a valid order of
a court or administrative agency.
(b) NON-COMPETITION. The Executive agrees that, during his
employment by the Company hereunder and for an additional period of 1 year after
the termination or expiration of the Executive's employment hereunder, neither
the Executive nor any corporation or other entity in which the Executive may be
interested as a partner, trustee, director, officer, executive, employee, agent,
shareholder, lender of money or guarantor, or for which he performs services in
any capacity (including as a consultant or independent contractor) shall at any
time during such period (i) be engaged, directly or indirectly, in any
Competitive Business (as that term is hereinafter defined) or (ii) solicit,
hire, contract for services or otherwise employ, directly or indirectly, any of
the executives of ATM, Intrac or the Company. Nothing herein contained shall be
deemed to prevent the Executive from investing in or acquiring one per cent or
less of any class of securities of any company if such class of securities is
listed on a national securities exchange or is quoted on the NASDAQ Stock
Market. For purposes of this SECTION 6(b), the term "COMPETITIVE BUSINESS" shall
mean any business that engages in the development of businesses that conduct
business-to-business transactions via an electronic commerce system, or which
engages in any other activities that are competitive with the business of ATM,
Intrac or the Company at the time of termination or expiration of this
Agreement. If the Executive violates any provision of this SECTION 6(b), the 1
year restrictive period set forth herein shall be extended for the duration of
any such violation, so that the Company enjoys the full term of such restrictive
period. Notwithstanding the foregoing, the Company acknowledges and agrees that
the provisions of this SECTION 6(b) shall not apply if the Executive's
employment is terminated under the provisions of SECTIONS 5(b) or 5(c).
7. ATM, INTRAC OR COMPANY DOCUMENTATION. The Executive shall hold in a
fiduciary capacity for the benefit of ATM, Intrac or the Company all
documentation, disks, programs, data, records, drawings, manuals, reports,
sketches, blueprints, letters, notes, notebooks and all other writings,
electronic data, graphics and tangible information and materials of a secret,
confidential or proprietary information nature relating to ATM,
Intrac or the Company or the business of ATM, Intrac or the Company that are in
the possession or under the control of the Executive.
8. INJUNCTIVE RELIEF. The Executive acknowledges that his compliance
with the agreements in SECTIONS 6 AND 7 is necessary to protect the good will
and other proprietary interests of ATM, Intrac and the Company and that he is
one of the principal executives of ATM and Intrac and conversant with its
affairs, its trade secrets and other proprietary information. The Executive
acknowledges that a breach of any of his agreements in SECTIONS 6 AND 7 hereof
will result in irreparable and continuing damage to the Company and/or ATM for
which there will be no adequate remedy at law; and the Executive agrees that in
the event of any breach of the aforesaid agreements, the Company, Intrac and/or
ATM, and their respective successors and assigns shall be entitled to injunctive
relief and to such other and further relief as may be proper.
9. SUPERSEDES OTHER AGREEMENTS. This Agreement supersedes and is in
lieu of any and all other employment arrangements between the Executive and ATM,
Intrac or the Company.
10. AMENDMENTS. Any amendment to this Agreement shall be made in writing
and signed by the parties hereto.
11. ENFORCEABILITY. If any provision of this Agreement shall be invalid
or unenforceable, in whole or in part, then such provision shall be deemed to be
modified or restricted to the extent and in the manner necessary to render the
same valid and enforceable, or shall be deemed excised from this Agreement, as
the case may require, and this Agreement shall be construed and enforced to the
maximum extent permitted by law as if such provision had been originally
incorporated herein as so modified or restricted or as if such provision had not
been originally incorporated herein, as the case may be.
12. CONSTRUCTION. This Agreement shall be construed and interpreted in
accordance with the internal laws of the State of New York.
13. ASSIGNMENT.
(a) BY THE COMPANY. The rights and obligations of the Company
under this Agreement shall inure to the benefit of, and shall be binding upon,
the successors and assigns of the Company. The Company shall require each and
every successor (whether direct or indirect, by asset or stock purchase, share
exchange, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "the Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as provided above that executes and
delivers the agreement provided for in this SECTION 13(a) or that otherwise
becomes
bound by all the terms and provisions of this Agreement by operation of law.
Notwithstanding the provisions of this Section 13(a), if the Company and the
Executive agree to the employment of the Executive by an affiliate or subsidiary
of the Company, then this Agreement may be assigned by the Company to such
affiliate or subsidiary.
(b) BY THE EXECUTIVE. This Agreement and the obligations created
hereunder may not be assigned by the Executive, but all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by his heirs,
devisees, legatees, executors, administrators and personal representatives.
14. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed to have been given when mailed by
certified mail, return receipt requested, or delivered by a national overnight
delivery service addressed to the intended recipient as follows:
If to the Company:
WorldWide Web NetworX Corporation
000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: President and CEO
Fax: 000-000-0000
with a copy to:
ATM Service, Ltd.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President and CEO
Fax: 000-000-0000
If to the Executive:
G. Xxxxx Xxxxxxxxx
000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Any party may from time to time change its address for the purpose
of notices to that party by a similar notice specifying a new address, but no
such change shall be deemed to have been given until it is actually received by
the party sought to be charged with its contents.
15. WAIVERS. No claim or right arising out of a breach or default under
this Agreement shall be discharged in whole or in part by a waiver of that claim
or right unless the waiver is supported by consideration and is in writing and
executed by the aggrieved party hereto or his or its duly authorized agent. A
waiver by any party hereto of a breach or default by the other party hereto of
any provision of this Agreement shall not be deemed a waiver of future
compliance therewith, and such provisions shall remain in full force and effect.
16. SURVIVAL OF COVENANTS. The provisions of Sections 6, 7 and 8 hereof
shall survive any termination or expiration of this Agreement. Furthermore, any
provision of this Agreement which provides a benefit to the Executive and which
by the express terms hereof does not terminate upon the termination of the
Executive's employment shall remain binding upon the Company until such time as
such benefits are paid in full to the Executive or his successors.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
as of the date first above written.
WORLDWIDE WEB NETWORX CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President and CEO
/s/ G. Xxxxx Xxxxxxxxx
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G. XXXXX XXXXXXXXX
