EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of January 1, 2000, by and between XXXXXXX
GLOBAL CORORATION, a Delaware corporation, with its offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxxxxx Xxxxxxxxxx, an
individual residing at ______________________________________ (the "Executive").
W I T N E S S E T H
WHEREAS, the Company desires to secure the services of the Executive upon
the terms and conditions hereinafter set forth; and
WHEREAS, the Executive desires to render services to the Company upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties mutually agree as follows:
Section 1. Employment. The Company hereby employs Executive and the
Executive hereby accepts such employment, as Chairman of the Board of Directors
and Chief Executive Officer of the Company, subject to the terms and conditions
set forth in this Agreement.
Section 2. Duties. The Executive shall serve as Chairman of the Board of
Directors and Chief Executive Officer and shall properly perform such duties as
may be assigned to him from time to time by the Board of Directors of the
Company. If requested by the Company, the Executive shall serve on any committee
thereof without additional compensation. During the term of this Agreement, the
Executive is not required to devote all of his business time to the performance
of his duties and may pursue other activities which do not conflict with his
obligations to the Company under this Agreement.
Section 3. Term of Employment. The term of the Executive's employment shall
be for a period of one (1) year commencing on the date hereof (the "Term"),
subject to earlier termination by the parties pursuant to Section 6 hereof.
Section 4. Compensation of Executive.
4.1 Salary. The Company shall pay to the Executive an annual salary equal
to one hundred eighty five thousand dollars ($185,000) per annum for the
period from January 1, 2000 through December 31, 2000 (the "Base Salary")
less such deductions as shall be required to be withheld by applicable law
and regulations. All salaries payable to the Executive shall be paid at
such regular weekly, biweekly or semi-monthly time or times as the Company
makes payment of its regular payroll in the regular course of business.
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4.2 Bonus. In addition to Base Salary, the Company shall pay an annual
bonus to the executive as the compensation committee of the Board of
Directors may determine based upon the performance and achievement of the
Company (the "Bonus"). If, by March 30, 2000, no bonus plan has been
implemented, and the Company's net income for the year ending December 31,
2000 shall equal or exceed that earned by the Company for the year ended
December 31, 1999, then the Executive will be entitled to a bonus of no
less than 50% of the bonus he will receive for the prior year.
4.3 Other Compensation. In addition to the Base Salary and Bonus, the
Company shall pay to the Executive a commission of 40% of all gross
commissions generated from his customer accounts with any subsidiary of the
Company.
4.4 Expenses. During the employment period, the Company shall reimburse the
Executive for all reasonable and necessary travel expenses and other
disbursements incurred by the Executive on behalf of the Company, in
performance of the Executive's duties hereunder.
Section 5. Disability of the Executive. If the Executive is incapacitated
or disabled by accident, sickness or otherwise so as to render the Executive
mentally or physically incapable of performing the services required to be
performed under this Agreement for a period of sixty (60) consecutive days or
longer or for any ninety (90) days in any period of one hundred eighty (180)
consecutive days (a "Disability"), the Company may, at the time or any time
thereafter, at its option, terminate the employment of the Executive under this
Agreement immediately upon giving the Executive notice to that effect.
Section 6. Termination. The Company may terminate the employment of the
Executive and all of the Company's obligations under this Agreement at any time
for Cause (as hereinafter defined) by giving the Executive notice of such
termination, with reasonable specificity of the details thereof. "Cause" shall
mean (i) the Executive's misconduct could reasonably be expected to have a
material adverse effect on the business and affairs of the Company, (ii) the
Executive's disregard of lawful instructions of the Company's Board of Directors
consistent with the Executive's position relating to the business of the Company
or neglect of duties or failure to act, which, in each case, could reasonably be
expected to have a material adverse effect on the business and affairs of the
Company, (iii) the commission by the Executive of an act constituting common law
fraud, or a felony, or criminal act against the Company or any affiliate thereof
or any of the assets of any of them, (iv) the Executive's material breach of any
of the agreements contained herein or (v) the Executive's resignation hereunder.
A termination pursuant to Section 6(i), (ii) or (iv) shall take effect 30 days
after the giving of the notice contemplated hereby unless the Executive shall,
during such 30-day period, remedy to the satisfaction of the Board of Directors
of the Company the misconduct, disregard, abuse or breach specified in such
notice; provided, however, that such termination shall take effect immediately
upon the giving of such notice if the Board of Directors of the Company shall
have determined that such misconduct, disregard, abuse or breach is not
remediable (which determination shall be stated in such notice). A termination
pursuant to Section 6(iii) or (v) shall take effect immediately upon the giving
of the notice contemplated hereby.
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Section 7. Effect of Termination of Employment. Upon the termination of the
Executive's employment for a Disability neither the Executive nor the
Executive's beneficiaries or estate shall have any further rights under this
Agreement or any claims against the Company arising out of this Agreement.
Section 8. Disclosure of Confidential Information. Executive recognizes
that he has had and will continue to have access to secret and confidential
information regarding the Company, including but not limited to its customer
list, products, know-how, and business plans. Executive acknowledges that such
information is of great value to the Company, is the sole property of the
Company, and has been and will be acquired by him in confidence. In
consideration of the obligations undertaken by the Company herein, Executive
will not, at any time, during or after his employment hereunder, reveal, divulge
or make known to any person, any information acquired by Executive during the
course of his employment, which is treated as confidential by the Company,
including but not limited to its customer list, and not otherwise in the public
domain. The provisions of this Section 8 shall survive Executive's employment
hereunder.
Section 9. Covenant Not To Compete.
(a) Executive recognizes that the services to be performed by him hereunder
are special, unique and extraordinary. The parties confirm that it is reasonably
necessary for the protection of the Company that Executive agrees, and
accordingly, Executive does hereby agree, that he shall not, directly or
indirectly, at any time during the term of the Agreement:
(i) except as provided in Subsection (c) below, engage in the sale,
distribution or manufacture of any products or provide technical
assistance, advice or counseling on any products or services competitive to
the Company's products or services in any state in the United States or in
any foreign country in which the Company or any affiliate thereof is
engaged in business, either on his own behalf or as an officer, director,
stockholder, partner, consultant, associate, executive, owner, agent,
creditor, independent contractor, or coventurer of any third party; or
(ii) employ or engage, or cause or authorize, directly or indirectly,
to be employed or engaged, for or on behalf of himself or any third party,
any executive or agent of the Company or any affiliate thereof.
(b) Executive hereby agrees that he will not, directly or indirectly, for
or on behalf of himself or any third party, at any time during the term of the
Agreement solicit any customers of the Company or any affiliate thereof.
(c) If any of the restrictions contained in this Section 9 shall be deemed
to be unenforceable by reason of the extent, duration or geographical scope
thereof, or otherwise, then the court making such determination shall have the
right to reduce such extent, duration, geographical scope, or other provisions
hereof, and in its reduced form this Section shall then be enforceable in the
manner contemplated hereby.
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Section 10. Miscellaneous.
10.1 Injunctive Relief Executive acknowledges that the services to be
rendered under the provisions of this Agreement are of a special,
unique and extraordinary character and that it would be difficult or
impossible to replace such services. Accordingly, Executive agrees
that any breach or threatened breach by him of Sections 8 or 9 of this
Agreement shall entitle the Company, in addition to all other legal
remedies available to it, to apply to any court of competent
jurisdiction to seek to enjoin such breach or threatened breach. The
parties understand and intend that each restriction agreed to by the
Executive herein above shall be construed as separable and divisible
from every other restriction, that the unenforceability of any
restriction shall not limit the enforceability, in whole or in part,
of any other restriction, and that one or more or all of such
restrictions may be enforced in whole or in part as the circumstances
warrant. In the event that any restriction in this Agreement is more
restrictive than permitted by law in the jurisdiction in which the
Company seeks enforcement thereof, such restriction shall be limited
to the extent permitted by law.
10.2 Assignments. Neither Executive nor the Company may assign or delegate
any of their rights or duties under this Agreement without the express
written consent of the other.
10.3 Entire Agreement. This Agreement constitutes and embodies the full and
complete understanding and agreement of the parties with respect to
the Executive's employment by the Company, supersedes all prior
understandings and agreements, whether oral or written, between the
Executive and the Company and shall not be amended, modified or
changed except by an instrument in writing executed by the party to be
charged. The invalidity or partial invalidity of one or more
provisions of this Agreement shall not invalidate any other provision
of this Agreement. No waiver by either party of any provision or
condition to be performed shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or any prior or
subsequent time.
10.4 Binding Effect. This Agreement shall inure to the benefit of, be
binding upon and enforceable against, the parties hereto and their
respective successors, heirs, beneficiaries and permitted assigns.
10.5 Headings. The headings contained in this Agreement are for convenience
of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
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10.6 Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given when personally delivered,
sent by registered or certified mail, return receipt requested,
postage prepaid, or by private overnight mail service (e.g. Federal
Express) to the party at the address set forth above or to such other
address as either party may hereafter give notice of in accordance
with the provisions hereof. Notices shall be deemed given on the
sooner of the date actually received or the third business day after
sending.
10.7 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 such State's conflicts of laws provisions and each of the
parties hereto irrevocably consents to the jurisdiction and venue of
the federal and state courts located in the State of New York, County
of New York.
10.8 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one of the same instrument.
10.9 Arbitration. Any dispute which the parties hereto are unable amicably
to resolve shall be submitted to binding arbitration in New York in
accordance with the Rules and Constitution of the American Arbitration
Association. Either party hereto may request that any decision of the
arbitrators set forth the findings of fact and conclusions of law upon
which their award is based be entered as a judgement. Judgment upon
any such arbitration award may be entered in any court of competent
jurisdiction, and Executive submits to the jurisdiction of any such
court.
In the event any suit or other action is commenced with respect to the
interpretation or enforcement of any provision of this agreement, the prevailing
party shall be entitled, in addition to any other sums to which such party may
be entitled, to recover from the other party the reasonable fees and
disbursements of counsel retained to investigate and pursue such matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
Company: XXXXXXX GLOBAL CORPORATION
By:_____________________________
Name:
Title:
Executive: ________________________________
Xxxxxxxxx Xxxxxxxxxx
