Exhibit 10.10
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of December 3, 1998, between C-PHONE CORPORATION, a
New York corporation having its executive office at 0000 Xxxxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Company"), and XXXXXX X. XXXX residing at
0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Employee").
Prior to the date hereof, the Company has been employing the Employee.
The Company desires to continue to employ the Employee on the terms and
conditions set forth herein, and the Employee desires to accept such employment.
In consideration of the undertakings set forth in this Agreement, and
intending to be legally bound, the parties agree as follows:
1. General Agreement for Services. The Company employs the
Employee and the Employee accepts employment, upon the terms and conditions of
this Agreement.
2. Term of Employment. This Agreement and the employment of
Employee by the Company under this Agreement shall commence on January 1, 1999.
Subject to any provisions of this Agreement governing extension or early
termination of this Agreement, the term of employment under this Agreement shall
be for two years (the "Initial Term"). After the Initial Term, this Agreement
shall continue for successive terms of one year unless terminated be either
party giving notice of its or his intention not to renew this Agreement at least
120 days prior to the end of the Initial Term or the renewal term then in
effect.
3. Duties.
(a) The Employee shall devote all his attention and energies
to the business of the Company and its affiliates, if any, on a full-time basis,
and shall not, during the term of this Agreement, be engaged in any other
business activity, whether or not such business activity is pursued for gain,
profit or other pecuniary advantage; but this shall not be construed as
preventing the Employee from (i) investing the Employee's assets in such manner
as will not require the Employee to expend a material amount of time or effort
in regard thereto or otherwise, in any way, impair his ability to fully meet his
obligations hereunder, (ii) providing technical services which are a
continuation of already incurred obligations of New Potato Technologies, Inc.,
if the rendering of such services will not, in any way, impair the Employee's
ability to fully meet his obligations hereunder, or (iii) engaging in any other
activity which does not compete with the business of the Company or a proposed
business of the Company, if engaging in such activity does not require the
Employee to expend a material amount of time or effort in regard thereto, does
not, in any way, impair his ability to fully meet his obligations hereunder, and
such action by the Employee has been approved by the Board of Directors of the
Company (or the Compensation Committee thereof), which approval shall be
reasonably given so long as such action fulfills the foregoing criteria, as
determined by the Board (or Committee) in good faith.
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(b) The Employee shall serve the Company and its affiliates
faithfully, diligently and in good faith.
(c) The Employee currently serves as Vice President and
Director of Engineering and shall perform such services as may be required of
the Employee by the Company and its affiliates, under and subject to the
instructions, directions and control of the Board of Directors and the senior
executives of the Company, including without limitation the Company's president,
chief executive officer and chief operating officer. The Employee's primary
responsibility shall be to perform those duties reasonably required of, and
related to, the Employee's position and such other duties as may be assigned to
the Employee from time to time which are not inconsistent with those customarily
assigned to senior employees of the Company. The Employee agrees that if he is
promoted to a more senior position within the Company, during the term of this
Agreement, the Employee shall serve in such position without further
remuneration, except as otherwise agreed upon by the Company and Employee. The
Employee has been elected as a director of the Company, and may continue to act
as such during the term of this Agreement. The Employee's resignation as a
director shall not be deemed a breach of this Agreement by the Employee;
likewise, the failure of the Company to reelect or appoint the Employee as a
director shall not be deemed a breach of this Agreement by the Company.
(d) At all times during the term of this Agreement, the
Employee shall adhere to all rules and regulations that have been or that
hereafter may be established by the Company for the conduct of its employees.
(e) The Employee shall be based at the Company's principal
executive office. Travel and temporary work assignments at other locations may
be required, but shall be of a kind and frequency common for the Employee's
position or shall result from periodic assignment to tasks appropriate for the
Employee.
4. Compensation. As and for full and complete compensation to the
Employee for the services the Employee agrees to render pursuant hereto, the
Company agrees to pay to the Employee and the Employee agrees to accept the
following:
(a) The Company shall pay the Employee during the term of this
Agreement a salary at the annual rate of $120,000 (the "Base Salary") payable in
equal bi-weekly installments, or as otherwise may be the practice of the Company
in making salary payments.
(b) The Company, in its sole and absolute discretion, at any
time and from time to time, may increase the compensation to be paid to the
Employee, either permanently of for a limited time, or pay to Employee such
bonus compensation as the Company may determine in its sole discretion.
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(C) All compensation paid to the Employee shall be subject to
withholding and deductions to the extent required by applicable law.
(D) The Employee shall be eligible to participate in and to be
covered by each life insurance, accident insurance, health insurance and
hospitalization, or other plan or benefit, if any, effective generally (and not
only with respect to a specific individual or individuals) with respect to
employees of the Company, if the Employee shall be eligible under the terms of
such plan, without restriction or limitation by reason of this Agreement.
Nothing contained herein, however, shall be construed to require the Company to
establish any plans not in existence on the date hereof, to continue any plans
in existence on the date hereof, or to prevent the Company from modifying and/or
terminating any of the plans in existence on the date hereof, and no such act or
omission shall be deemed to affect this Agreement or any of the provisions
contained herein.
(E) The Employee shall be entitled to a vacation of two weeks
with full compensation for each full year of this Agreement. The Employee also
shall be entitled to all paid holidays given by the Company to its senior
employees. Vacation days not taken shall not accumulate and shall not be
available to the Employee in subsequent years of this Agreement, unless the
Employee is restricted from taking any planned vacation at the written request
of the Company or as otherwise agreed upon from time to time. Vacations shall be
coordinated with the president, chief executive officer or chief operating
officer of the Company, shall be scheduled by the Employee with due regard to
the Employee's activities and responsibilities for the Company and shall not be
for a continuous period of more than two weeks.
(F) The Employee shall be entitled to reimbursement for all
reasonable out-of-pocket expenses incurred in performing the Employee's services
hereunder, within the limits of authority which may be established by the
Company from time to time, provided that the Employee properly accounts for such
expenses in accordance with the Company policy.
5. Confidentiality; Non-Competition.
(a) The Employee shall treat as confidential any proprietary,
confidential or non-public information relating to the business or interests of
the Company or any affiliate of the Company, including, without limitation,
business plans or technical projects of the Company or any affiliate, and any
research datum or result, invention, customer list, process or other work
product developed by or for the Company or any affiliate, whether on the
premises of the Company or elsewhere ("Confidential Information"). The Employee
shall not disclose, utilize or make accessible in any manner or in any form any
Confidential Information other than in connection with performing the services
required of the Employee under this Agreement, without the prior consent of the
Company. Notwithstanding the foregoing, the provisions of this Section 5(a)
shall not apply to any Confidential Information which is, or at some later date
becomes, publicly known under circumstances not involving a breach of any
confidentiality agreement with the Company or which is required to be disclosed
pursuant to order or requirement of a court, administrative agency or other
governmental body, provided that the Company has been given appropriate notice
of such proceeding and an opportunity to contest such disclosure.
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(b) All business and technical records, information relating
to the business of the Company and its affiliates, papers, documents,
correspondence, or studies containing information relating to the Company and
its affiliates, in all cases irrespective of the manner in which such
information is kept or stored ("business records"), made or kept by the Employee
or under the Employee's possession or control shall be and remain the property
of the Company, and shall be surrendered to the Company upon the termination of
the Employee's employment. Upon such termination, the Employee shall not take
with him, publish, or disclose, or otherwise use, without the consent of the
president or chief executive officer of the Company, any business records.
(c) The Employee agrees that, during the period of the
Employee's employment with the Company or any affiliate thereof and for a period
of ONE year following the date upon which such employment shall terminate, the
Employee shall not, in any capacity, compete or attempt to compete with any
business of the Company which existed at any time during the Employee's
employment with the Company, or which was being developed by the Company; and
the Employee acknowledges that a portion of the payments being made to the
Employee hereunder are being made, in part, as consideration for such
non-competition agreement. The Employee represents and agrees that, in the event
of the termination of the Employee's employment with the Company or any
affiliate thereof, the Employee's experiences and capabilities are such that the
Employee should be able to obtain suitable employment, and that the enforcement
of a remedy by way of injunction will not prevent the Employee from earning a
livelihood. The Employee further acknowledges that the covenants contained in
this Section 5(c) are necessary for the protection of the Company's legitimate
business interests and are reasonable in scope and content.
(d) The provisions of this Section 5 on the part of the
Employee shall be construed as an agreement independent of any other provision
contained in this Agreement and shall be enforceable in both law and equity,
including by temporary or permanent restraining order, notwithstanding the
existence of any claim or cause of action of the Employee against the Company or
any affiliate of the Company, whether predicated on this Section 5 or otherwise.
(e) The Employee agrees that all processes, technologies and
inventions, including new contributions, improvements, ideas or discoveries,
whether patentable or not, conceived, developed, invented or made by or under
the supervision of the Employee (collectively, "Inventions" ) during the period
of the Employee's employment by the Company, shall belong to the Company,
provided that the Inventions grow out of the Employee's work with the Company or
are related in any manner to any business (commercial or experimental) of the
Company. The Employee agrees that the Employee shall promptly (i) disclose all
Inventions to the Company, (ii) assign to the Company, without additional
compensation, all patents and other rights to all Inventions for the United
States and all foreign countries, (iii) sign all papers necessary to carry out
the above, and (iv) give testimony (but without expense to the Employee) in
support of the Employee's inventorship. In the event that any Invention which
grew out of the Employee's work with the Company, or is related in any manner to
any business or prospective business of the Company, is described in a patent
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application or is disclosed to third parties by the Employee, directly or
indirectly, within one year after leaving the employ of the Company, it is to be
presumed (which presumption the Employee shall have the right to rebut) that the
Invention was conceived or made during the period of the Employee's employment
by the Company. The Employee agrees that the Company shall be entitled to shop
rights with respect to any Invention conceived or made by the Employee during
the period of the Employee's employment by the Company that is not related in
any manner to any business (commercial or experimental) of the Company but which
was conceived or made on the Company's time or with the use of the Company's
facilities or materials. Attached as an exhibit to this Agreement is a complete
list of the Inventions, patented or unpatented (including a brief description
thereof), if any, which the Employee conceived or made prior to the Employee's
employment by the Company, and which the Employee desires to exclude from this
Agreement. There is no other contract to assign Inventions that is now in
existence between the Employee and any other person, firm or corporation, unless
indicated on the exhibit, if any, attached to this Agreement, and unless a copy
of any such other contract is attached to such exhibit.
6. Termination.
(a) Death. In the event that the Employee shall die during the
term of this Agreement, then, notwithstanding any other provisions hereof, the
Employee's employment herewith shall terminate forthwith. In addition to any
unpaid compensation then accrued, the Employee's Estate shall be entitled to
receive the proceeds of any life insurance on the Employee's life if and to the
extent then maintained by the Company for the Employee's specific benefit.
(b) Disability. If the Employee shall become incapacitated
during the term of this Agreement to such an extent that he shall be unable to
perform his duties hereunder, and such incapacity shall continue for at least
six consecutive weeks or for at least 60 days in any twelve month period, the
Company may, at or at any time thereafter, and during the continuance of such
incapacity, give notice to the Employee of the termination of his employment
hereunder on a date stated in such notice, and, in such event, the Employee's
employment hereunder shall terminate on such date: provided, however, that such
termination shall not affect any disability payments otherwise due hereunder to
the Employee. Irrespective of the foregoing, the Employee also may be terminated
by the Company at such time as the Employee becomes unable to perform any duties
hereunder by reason of disability, as defined in the Employer's disability
insurance coverage, if any, if he is then entitled to disability payments under
such coverage at a rate at least equal to two-thirds of his then Base Salary.
(c) For Cause. If, during the term of this Agreement, the
employment of the Employee by the Company shall terminate by reason of the
Employee's voluntary action, or by the Company for "Cause", then the Company's
obligations for payment or delivery of salary, incentive bonus, if any, and
other entitlements under this Agreement with respect to any future period shall
thereupon terminate. Written notice of termination for Cause shall be given by
the Company to the Employee and shall be effective upon receipt. For purposes of
this Agreement, Cause means (i) the Employee's (A) willful refusal to accept
duties and responsibilities which are lawfully assigned by the Board of
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Directors or the president, chief executive officer or chief operating officer
of the Company, which assignments are consistent with the Employee's status with
the Company, or (B) willful refusal or failure to perform all or a material part
of the Employee's assigned duties or responsibilities, which refusal or failure
in either case under clause (A) or (B) is not remedied promptly, but in no event
later than, fifteen days after notice thereof is provided to the Employee, (ii)
the Employee's commission of an act of fraud, misappropriation or dishonesty to
the Company or any of its affiliates or falsification of a written document
delivered to the Company or any of its affiliates or on the Company's or such
affiliate's behalf, (iii) the Employee's commission of a crime with respect to
which, in the reasonable judgment of the Company, the Employee is likely to be
incarcerated or as a result of which the Company, in its reasonable judgment,
determines it would be inappropriate for the Employee to continue as an employee
of the Company, and (iv) notice by the Employee of his intention to breach any
of the terms or conditions of this Agreement.
(b) Without Cause. If, during the term of this Agreement, the
employment of the Employee shall be terminated by the Company without Cause,
then the Company shall continue to pay the Employee his then base salary for SIX
months, on the normal salary dates. The Employee shall have no duty to attempt
to mitigate such obligation of the Company, and any compensation earned by the
Employee during such period may be retained by the Employee for his own account.
In the event of such termination, all other obligations of the Company to the
Employee under this Agreement arising and accruing after the state of the
Employee's termination shall terminate, except as otherwise specifically
provided to the contrary under this Agreement or by applicable law. The Employee
shall have the right to elect to terminate this Agreement, and treat such
termination as non-voluntary by him and a termination without Cause by the
Company, if the Employee does not receive from the Company any compensation or
other payment due him (pursuant to this Agreement) within ten days after such
compensation or other payment is due; provided, however, that the Company does
not remedy such action within fifteen days after notice thereof by the Employee
to the Company.
7. Indemnity of Employee for Good Faith Acts and Omissions. The
Company agrees to indemnify, defend and hold the Employee harmless of and from
any liability, loss, expense, claim, cost, or other damage whatsoever arising
out of or in connection with any act or omission of the Employee, taken or
omitted in good faith in any capacity in which the Employee is acting for, or at
the request of, the Company, to the extent permitted by applicable law. The
Company presently maintains a Director and Officers Liability Policy covering
corporate officers. Employee shall be entitled to review a copy of any such
policy or policies which are in place from time to time.
8. Miscellaneous Provisions.
(a) Entire Agreement. This Agreement sets forth the entire
agreement and understanding between the parties with respect to the employment
of the Employee by the Company and supersedes all prior agreements, arrangements
and understandings between the parties with respect thereto.
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(b) Modification. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms or covenants hereof may
be waived, only by an instrument executed by the party to be charged, or in the
case of a waiver, by the party waiving compliance.
(c) Waiver. The failure of either party at any time or times
to require performance of any provision of this Agreement in no manner shall
affect the right at a later time to enforce the same. No waiver by either party
of a breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such breach, or a waiver of
any other term or covenant contained in this Agreement.
(d) Notices. All notices, demands, consents, waivers and other
communications ("Communications") given under this Agreement shall be in writing
and shall be given (and shall be deemed to have been duly given) upon the
earlier of actual receipt, one business day after being sent by telegram or
telecopier or three business days after being sent by registered or certified
mail to the parties at the addresses set forth above or to such other address as
either party may hereafter specify by notice to the other party. Simultaneously
with sending a Communication to the Company, a copy of the Communication shall
be sent to Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxxx & Kuh, LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxx, Esq. Irrespective of the
foregoing, notice of change of address shall be effective only upon receipt.
(e) Governing Law. This Agreement and any supplemental
agreements hereto shall be construed in accordance with and governed by the laws
of the State of North Carolina applicable to contracts made and to be performed
wholly within such state and the courts of said state, including the federal
courts therein, shall have sole and exclusive jurisdiction of the parties and of
the subject matter of their respective agreements. Venue for any legal action
shall be in New Hanover County, North Carolina and in any legal action between
the parties, service of process may be accomplished by certified mail.
(f) Attorneys' Fees and Disbursements. In the event that
either party takes legal action to enforce any of the provisions of this
Agreement, the prevailing party shall be entitled to recover all reasonable
expenses incurred in connection therewith.
(g) Assignability. This Agreement, and the Employee's rights
and obligations hereunder, may not be assigned by the Employee. The Company may
assign its rights, together with its obligations hereunder, to a successor by
merger or to a purchaser of substantially all of its assets, and such rights and
obligations shall inure to, and be binding upon, any such successor.
(h) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective legal representatives,
heirs, successors and permitted assigns.
(i) Invalidity. The invalidity of any part of this Agreement
is not intended to render invalid the remainder of this Agreement. If any
provision of this Agreement is so broad as to be unenforceable, such provision
is intended to be interpreted to be only so broad as is enforceable.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
C-PHONE CORPORATION
By: /s/ XXXXXX XXXXX
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Xxxxxx Xxxxx, President
and Chief Executive Officer
EMPLOYEE
/s/ XXXXXX X XXXX
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Xxxxxx X. Xxxx
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