EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made in New York, New York
as of the 18th day of April, 2000, between Atlantic Technology Ventures, Inc. a
Delaware corporation having its offices and principal place of business at 000
Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx (the "Company"), and Xxxxx Xxxxxx, an
individual currently residing at 0000 Xxxxxxxxx Xx, Xxxxxxxxxx, XX 00000
("Employee").
WHEREAS, the Company desires to employ Employee, and Employee
desires to accept such employment on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and
agreements hereinafter set forth, the Company and Employee agree as follows:
1. Term.
The term of this Agreement shall be period commencing on March
__, 2000 and ending on the date Employee's employment is terminated in
accordance with the terms hereof (the "Term").
2. Employment.
(a) Employment by the Company. Employee agrees to be
employed by the Company during the Term upon the terms and subject to the
conditions set forth in this Agreement. Employee shall serve as an employee of
the Company and shall have such duties as may be prescribed by the Company and
shall serve in such other and/or additional position(s) as the Company may
determine from time to time.
(b) Performance of Duties. Throughout the Term, Employee
shall faithfully and diligently perform Employee's duties in conformity with the
directions of the Company and serve the Company to the best of Employee's
ability. Employee shall devote Employee's entire working time to the business
and affairs of the Company, subject to vacations and sick leave in accordance
with Company policy and as otherwise permitted herein. Until otherwise
determined by the Company, Employee shall have the title of Director of
Administration of the Company, and in such capacity shall be responsible for
such duties as may be assigned by the Company and shall report to the President
of the Company.
(c) Place of Performance. Employee shall be based initially
at the Company's offices in New York, New York or such other location(s) in the
greater New York area as the Company may determine. Throughout the Term,
Employee shall maintain Employee's personal residence within reasonable access
to Employee's place of employment.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Employee a
base salary ("Base Salary") at the annual rate of $40,000, payable in equal
installments consistent with the Company's payroll practices.
(b) Signing Bonus. Within thirty days after the execution
of this Agreement, the Company shall pay to Employee a bonus in the amount of
$10,000 (the "Signing Bonus"). Employee shall repay to the Company the Signing
Bonus if Employee is terminated by the Company for Cause (as hereinafter
defined) during the Term or voluntarily resigns her employment hereunder during
the first twelve months of the Term.
(c) Bonus. The Company shall pay to Employee an annual
bonus (the "Bonus") in an amount to be determined by Compensation Committee of
the Board of Directors in its discretion but in no event less than $10,000. In
addition, Employee shall be entitled to participate in any bonus or other
incentive programs as may be established by the Company.
(d) Grant of Options and Terms Thereof. The Company shall
grant to Employee, an option (the "Option"), pursuant to the Company's 1995
Stock Incentive Plan, to purchase twenty thousand (20,000) shares of the
Company's common stock (the "Option Shares"), subject to vesting as set forth
below. The exercise price for each Option Share shall be equal to the market
value of a share of the Company's common stock on the date of the grant of the
Option. The Option Shares shall vest in four equal installments, the first such
installment to vest on the later of the date of the grant of the Option and the
first day of the Term and each subsequent installment to vest, respectively, on
the first, second, and third anniversary of the grant of the Option, provided
that Employee is employed by the Company on each such vesting date. All other
terms (including exercisability) of the Option shall be governed by the
Company's Stock Incentive Plan, as well as the applicable option agreement to be
entered into pursuant to the terms of such plan.
(e) Benefits and Perquisites. Employee shall be entitled to
participate in, to the extent Employee is otherwise eligible under the terms
thereof, the benefit plans and programs, and receive the benefits and
perquisites, generally provided to the Company's employees, including without
limitation family medical insurance and life insurance (subject to applicable
employee contributions). Employee shall be entitled to four weeks of vacation
per year.
(f) Travel and Business Expenses. Upon submission of
itemized expense statements in the manner specified by the Company, Employee
shall be entitled to reimbursement for reasonable travel and other reasonable
business expenses duly incurred by Employee in the performance of Employee's
duties under this Agreement in accordance with the policies and procedures
established by the Company from time to time for employees of the Company.
(g) Relocation Expenses. The Company shall reimburse
Employee for such expenses reasonably incurred by Employee in connection with
the relocation of her residence to New York, New York or its immediate vicinity
upon submission of documentation
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in a form reasonably acceptable to the Company, provided that Employee must
consult with and receive approval from the Company, which approval shall not be
unreasonably withheld, prior to incurring any such expenses. Employee shall be
required to repay to the Company any relocation expenses reimbursed pursuant to
this Section 3(f) if Employee's employment hereunder is terminated (i) by the
Company for Cause or as a result of Employee's voluntary resignation during the
first twelve months of the Term.
(h) No Other Compensation or Benefits; Payment. The
compensation and benefits specified in this Section 3 and in Section 4 of this
Agreement shall be in lieu of any and all other compensation and benefits.
Payment of all compensation and benefits to Employee hereunder shall be made in
accordance with the relevant Company policies in effect from time to time to the
extent the same are consistently applied, including normal payroll practices,
and shall be subject to all applicable employment and withholding taxes and
other withholdings.
(i) Cessation of Employment. In the event Employee shall
cease to be employed by the Company for any reason, then Employee's compensation
and benefits shall cease on the date of such event, except as otherwise provided
herein or in any applicable employee benefit plan or program.
4. Termination of Employment.
(a) Termination. The Company may terminate Employee's
employment for during the first three months of the Term for any reason or no
reason, in which case the provisions of Section 4(b) of this Agreement shall
apply. The Company may terminate Employee's employment for Cause (as defined
below) or for any breach of this Agreement, in which case the provisions of
Section 4(c) of this Agreement shall apply. The Company may also terminate
Employee's employment in the event of Employee's Disability (as defined below),
in which case the provisions of Section 4(d) of this Agreement shall apply. The
Company may also terminate the Employee's employment for any other reason by
written notice to Employee, in which case the provisions of Section 4(e) of this
Agreement shall apply. If Employee's employment is terminated by reason of
Employee's death, retirement or voluntary resignation, the provisions of Section
4(c) of this Agreement shall apply.
(b) Termination by the Company During Initial Period. In
the event that Employee's employment hereunder is terminated by the Company
during the first three months of the Term (such period to be the "Initial
Period") for any reason or no reason, then the Company shall pay to Employee
only the Base Salary through such date of termination and any expenses incurred
by Employee through the date of such termination and properly reimbursable
pursuant to Section 3(g) hereof.
(c) Termination for Cause; Termination by Reason of Death
or Retirement or Voluntary Resignation. In the event that Employee's employment
hereunder is terminated during the Term (x) by the Company for Cause (as defined
below), (y) by reason of Employee's death or retirement or (z) by reason of
Employee's voluntary resignation, then the Company shall pay to Employee only
the Base Salary through such date of termination. For purposes of this
Agreement, "Cause" shall mean (i) conviction of any crime (whether or not
involving the Company) constituting a felony in the jurisdiction involved; (ii)
engaging in any
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substantiated act involving moral turpitude; (iii) engaging in any act which, in
each case, subjects, or if generally known would subject, the Company to public
ridicule or embarrassment; (iv) gross neglect or misconduct in the performance
of Employee's duties hereunder; (v) willful failure or refusal to perform such
duties as may reasonably be delegated to Employee; or (vi) material breach of
any provision of this Agreement by Employee; provided, however, that with
respect to clauses (iv), (v) or (vi), Employee shall have received written
notice from the Company setting forth the alleged act or failure to act
constituting "Cause" hereunder, and Employee shall not have cured such act or
refusal to act within 10 business days of her actual receipt of notice.
(d) Disability. If, as a result of Employee's incapacity
due to physical or mental illness, Employee shall have been absent from
Employee's duties hereunder on a full time basis for either (i) one hundred
twenty (120) days within any three hundred sixty-five (365) day period, or (ii)
ninety (90) consecutive days, the Company may terminate Employee's employment
hereunder for "Disability". In that event, the Company shall pay to Employee
only the Base Salary through such date of termination. During any period that
Employee fails to perform Employee's duties hereunder as a result of incapacity
due to physical or mental illness (a "Disability Period"), Employee shall
continue to receive the compensation and benefits provided by Section 3 of this
Agreement until Employee's employment hereunder is terminated; provided,
however, that the amount of compensation and benefits received by Employee
during the Disability Period shall be reduced by the aggregate amounts, if any,
payable to Employee under disability benefit plans and programs of the Company
or under the Social Security disability insurance program.
(e) Termination By Company For Any Other Reason. In the
event that Employee's employment hereunder is terminated by the Company during
the Term for any reason other than as provided in Section 4(b), 4(c), or 4(d) of
this Agreement, then the Company shall pay to Employee the Base Salary through
such date of termination and, in lieu of any further compensation and benefits
for the balance of the Term, severance pay equal to the Base Salary that
Employee would have otherwise received during the period beginning on such date
of termination and ending one (1) month from the effective date of such
termination, which severance pay shall be paid commencing with such date of
termination at the times and in the amounts such Base Salary would have been
paid. Notwithstanding anything to the contrary contained herein, in the event
that Employee shall breach Section 5 or 6 of this Agreement, in addition to any
other remedies the Company may have in the event Employee breaches this
Agreement, the Company's obligation pursuant to this Section 4(e) to continue
such salary shall cease and Employee's rights thereto shall terminate and shall
be forfeited.
(f) No Further Liability; Release. Payment made and
performance by the Company in accordance with this Section 4 shall operate to
fully discharge and release the Company and its directors, officers, employees,
subsidiaries, affiliates, stockholders, successors, assigns, agents and
representatives from any further obligation or liability with respect to
Employee's employment and termination of employment. Other than paying
Employee's Base Salary through the date of termination of Employee's employment
and making any severance payment pursuant to and in accordance with this Section
4 (as applicable), the Company and its directors, officers, employees,
subsidiaries, affiliates, stockholders, successors, assigns, agents and
representatives shall have no further obligation or liability to Employee or any
other person
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under this Agreement. The Company shall have the right to condition the payment
of any severance pursuant to this Section 4 upon the delivery by Employee to the
Company of a release in form and substance satisfactory to the Company of any
and all claims Employee may have against the Company and its directors,
officers, employees, subsidiaries, affiliates, stockholders, successors,
assigns, agents and representatives arising out of or related to Employee's
employment by the Company and the termination of such employment.
5. Exclusive Employment; Noncompetition.
(a) No Conflict; No Other Employment. During the period of
Employee's employment with the Company, Employee shall not: (i) engage in any
activity which conflicts or interferes with or derogates from the performance of
Employee's duties hereunder nor shall Employee engage in any other business
activity, whether or not such business activity is pursued for gain or profit,
except as approved in advance in writing by the Chief Employee Officer or the
Board of Directors of the Company; provided, however, that Employee shall be
entitled to manage her personal investments and otherwise attend to personal
affairs, including charitable activities, in a manner that does not unreasonably
interfere with her responsibilities hereunder, or (ii) accept any other
employment, whether as an Employee or consultant or in any other capacity, and
whether or not compensated therefor, unless Employee receives the prior approval
of the President of the Company.
(b) No Solicitation of Employment. During the Term and for
a period of one year thereafter, Employee shall not solicit or encourage any
employee of the Company or any Related Entity to leave the Company or such
Related Entity for any reason, nor assist any business in doing so, nor employ
such an employee in a Competing Business or any other business.
6. Confidential Information.
(a) Existence of Confidential Information. The Company and
each Related Entity owns and has developed and compiled, and will develop and
compile, certain proprietary techniques and confidential information which have
great value to its business (referred to in this Agreement, collectively, as
"Confidential Information"). Confidential Information includes not only
information disclosed by the Company or any Related Entity to Employee, but also
information developed or learned by Employee during the course or as a result of
employment with the Company, which information shall be the property of the
Company or the applicable Related Entity. Confidential Information includes all
information that has or could have commercial value or other utility in the
businesses in which the Company or any Related Entity is engaged or contemplates
engaging, and all information of which the unauthorized disclosure could be
detrimental to the interests of the Company or any Related Entity, whether or
not such information is specifically labeled as Confidential Information by such
entity. By way of example and without limitation, Confidential Information
includes any and all information developed, obtained, licensed by or to or owned
by the Company or any Related Entity concerning trade secrets, techniques,
know-how (including designs, plans, procedures, merchandising, marketing,
distribution and warehousing know-how, processes, and research records),
software, computer programs and designs, development tools, all proprietary
property, and any other intellectual property created, used or sold (through a
license or
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otherwise) by the Company or a Related Entity, electronic data information
know-how and processes, innovations, discoveries, improvements, research,
development, test results, reports, specifications, data, formats, marketing
data and plans, business plans, strategies, forecasts, unpublished financial
information, orders, agreements and other forms of documents, price and cost
information, merchandising opportunities, expansion plans, budgets, projections,
customer, supplier, licensee, licensor and subcontractor identities,
characteristics, agreements and operating procedures, and salary, staffing and
employment information.
(b) Protection of Confidential Information. Employee
acknowledges and agrees that in the performance of Employee's duties hereunder
the Company and the Related Entities may disclose to and entrust Employee with
Confidential Information which is the exclusive property of such entities and
which Employee may possess or use only in the performance of Employee's duties
to the Company. Employee also acknowledges that Employee is aware that the
unauthorized disclosure of Confidential Information, among other things, may be
prejudicial to the Company's interests or those of a Related Entity, an invasion
of privacy and an improper disclosure of trade secrets. Employee shall not,
directly or indirectly, use, make available, sell, disclose or otherwise
communicate to any corporation, partnership or other entity, individual or other
third party, other than in the course of Employee's assigned duties and for the
benefit of the Company, any Confidential Information, either during the Term or
thereafter. In the event Employee desires to publish the results of Employee's
work for or experiences with the Company or any Related Entity through
literature, interviews or speeches, Employee will submit requests for such
interviews or such literature or speeches to the Chief Employee Officer of the
Company at least fourteen (14) days before any anticipated dissemination of such
information for a determination of whether such disclosure is in the best
interests of the Company, including whether such disclosure may impair trade
secret status or constitute an invasion of privacy. Employee agrees not to
publish, disclose or otherwise disseminate such information without the prior
written approval of the Chief Employee Officer of the Company.
(c) Delivery of Records, Etc. In the event Employee's
employment with the Company ceases for any reason, Employee will not remove from
the Company's premises without its prior written consent any records (written or
electronic), files, drawings, documents, equipment, materials and writings
received from, created for or belonging to the Company or any Related Entity,
including those which relate to or contain Confidential Information, or any
copies thereof. Upon request or when employment with the Company terminates,
Employee will immediately deliver the same to the Company.
7. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of
and be enforceable by, and may be assigned by the Company to, any purchaser of
all or substantially all of the Company's business or assets, any successor to
the Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise).
(b) Employee. Employee's rights and obligations under this
Agreement shall not be transferable by Employee by assignment or otherwise, and
any purported assignment, transfer or delegation thereof shall be void;
provided, however, that if Employee shall die, all amounts then payable to
Employee hereunder shall be paid in accordance with the
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terms of this Agreement to Employee's devisee, legatee or other designee or, if
there be no such designee, to Employee's estate.
8. Miscellaneous.
(a) Other Obligations. Employee represents and warrants
that neither Employee's employment with the Company nor Employee's performance
of Employee's obligations hereunder will conflict with or violate or otherwise
are inconsistent with any other obligations, legal or otherwise, which Employee
may have. Employee covenants that she shall perform her duties hereunder in a
professional manner and not in conflict or violation, or otherwise inconsistent
with other obligations legal or otherwise, which Employee may have.
(b) Nondisclosure; Other Employers. Employee will not
disclose to the Company, or use, or induce the Company to use, any proprietary
information, trade secrets or confidential business information of others.
Employee represents and warrants that Employee does not possess any property,
proprietary information, trade secrets and confidential business information
belonging to all prior employers.
(c) Cooperation. Following termination of employment with
the Company for any reason, Employee shall cooperate with the Company, as
requested by the Company, to affect a transition of Employee's responsibilities
and to ensure that the Company is aware of all matters being handled by
Employee.
(d) No Duty to Mitigate. Employee shall be under no duty to
mitigate any losses or damage to the Company with respect to any severance or
other amounts payable pursuant to Section 4 of this Agreement.
(e) Protection of Reputation. During the Term and
thereafter, Employee agrees that she will take not action which is intended, or
would reasonably be expected, to harm the Company or its reputation or which
would reasonably be expected to lead to unwanted or unfavorable publicity to the
Company.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to principles of the conflict of laws thereof.
(g) Jurisdiction; Forum. Each party hereto consents and
submits to the jurisdiction of any state or federal court sitting in the State,
City, and County of New York in connection with any dispute arising out of or
relating to this Agreement. Each party hereto waives any objection to the laying
of venue in such courts and any claim that any such action has been brought in
an inconvenient forum. To the extent permitted by law, any judgment in respect
of a dispute arising out of or relating to this Agreement may be enforced in any
other jurisdiction within or outside the United States by suit on the judgment,
a certified copy of such judgment being conclusive evidence of the fact and
amount of such judgment.
(h) Waiver of Jury Trial. Each of the parties hereto
irrevocably waives any and all right to trial by jury with respect to any
action, claim or other proceeding arising out of or relating to this Agreement.
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(i) Entire Agreement. This Agreement (including all
exhibits and schedules hereto) contains the entire agreement and understanding
between the parties hereto in respect of Employee's employment and supersedes,
cancels and annuls any prior or contemporaneous written or oral agreements,
understandings, commitments and practices between them respecting Employee's
employment, including all prior employment agreements, if any, between the
Company and Employee, which agreement(s) hereby are terminated and shall be of
no further force or effect.
(j) Amendment. This Agreement may be amended only by a
writing which makes express reference to this Agreement as the subject of such
amendment and which is signed by Employee and, on behalf of the Company, by its
duly authorized officer.
(k) Severability. If any term, provision, covenant or
condition of this Agreement or part thereof, or the application thereof to any
person, place or circumstance, shall be held to be invalid, unenforceable or
void by a court of competent jurisdiction, the remainder of this Agreement and
such term, provision, covenant or condition shall remain in full force and
effect, and any such invalid, unenforceable or void term, provision, covenant or
condition shall be deemed, without further action on the part of the parties
hereto, modified, amended and limited, and the court shall have the power to
modify, to the extent necessary to render the same and the remainder of this
Agreement valid, enforceable and lawful. In this regard, Employee acknowledges
that the provisions of Sections 5 and 6 of this Agreement are reasonable and
necessary for the protection of the Company.
(l) Construction. The headings and captions of this
Agreement are provided for convenience only and are intended to have no effect
in construing or interpreting this Agreement. The language in all parts of this
Agreement shall be in all cases construed according to its fair meaning and not
strictly for or against the Company or Employee. The use herein of the word
"including," when following any general provision, sentence, clause, statement,
term or matter, shall be deemed to mean "including, without limitation." As used
herein, "Company" shall mean the Company and its subsidiaries and any purchaser
of, successor to or assignee (whether direct or indirect, by purchase, merger,
consolidation or otherwise) of all or substantially all of the Company's
business or assets which is obligated to perform this Agreement by operation of
law, agreement pursuant to Section 7 of this Agreement or otherwise. As used
herein, the words "day" or "days" shall mean a calendar day or days.
(m) Nonwaiver. Neither any course of dealing nor any
failure or neglect of either party hereto in any instance to exercise any right,
power or privilege hereunder or under law shall constitute a waiver of any other
right, power or privilege or of the same right, power or privilege in any other
instance. All waivers by either party hereto must be contained in a written
instrument signed by the party to be charged and, in the case of the Company, by
its duly authorized officer.
(n) Remedies for Breach. The parties hereto agree that
Employee is obligated under this Agreement to render personal services during
the Term of a special, unique, unusual, extraordinary and intellectual
character, thereby giving this Agreement special value, and, in the event of a
breach or threatened breach of any covenant of Employee herein, the injury or
imminent injury to the value and the goodwill of the Company's business could
not be
8
reasonably or adequately compensated in damages in an action at law.
Accordingly, Employee expressly acknowledges that the Company shall be entitled
to specific performance, injunctive relief or any other equitable remedy against
Employee, without the posting of a bond, in the event of any breach or
threatened breach of any provision of this Agreement by Employee (including,
without limitation, Sections 5 and 6). Without limiting the generality of the
foregoing, if Employee breaches or threatens to breach Section 5 or 6 of this
Agreement, such breach or threatened breach will entitle the Company, without
posting of bond, to an injunction prohibiting (i) Employee from disclosing any
Confidential Information to any Competing Business; (ii) such Competing Business
from receiving from Employee or using any such Confidential Information; and
(iii) Employee from, indirectly or directly, owning, managing, operating,
joining, controlling, participating in, investing in or otherwise being
connected or associated with, in any manner, any such Competing Business. The
rights and remedies of the parties hereto are cumulative and shall not be
exclusive, and each such party shall be entitled to pursue all legal and
equitable rights and remedies and to secure performance of the obligations and
duties of the other under this Agreement, and the enforcement of one or more of
such rights and remedies by a party shall in no way preclude such party from
pursuing, at the same time or subsequently, any and all other rights and
remedies available to it.
(o) Notices. Any notice, request, consent or approval
required or permitted to be given under this Agreement or pursuant to law shall
be sufficient if in writing, and if and when sent by certified or registered
mail, return receipt requested, with postage prepaid, to Employee's residence
(as reflected in the Company's records or as otherwise designated by Employee on
thirty (30) days' prior written notice to the Company) or to the Company's
principal Employee office, attention: President, as the case may be. All such
notices, requests, consents and approvals shall be effective upon being
deposited in the United States mail. However, the time period in which a
response thereto must be given shall commence to run from the date of receipt on
the return receipt of the notice, request, consent or approval by the addressee
thereof. Rejection or other refusal to accept, or the inability to deliver
because of changed address of which no notice was given as provided herein,
shall be deemed to be receipt of the notice, request, consent or approval sent.
(p) Assistance in Proceedings, Etc. Employee shall, without
additional compensation, during and after expiration of the Term, upon
reasonable notice, furnish such information and proper assistance to the Company
as may reasonably be required by the Company in connection with any legal or
quasi-legal proceeding, including any external or internal investigation,
involving the Company or any of its affiliates or in which any of them is, or
may become, a party.
(q) Survival. Cessation or termination of Employee's
employment with the Company shall not result in termination of this Agreement.
The respective obligations of Employee and rights and benefits afforded to the
Company as provided in this Agreement shall survive cessation or termination of
Employee's employment hereunder.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed on its behalf by an officer thereunto duly authorized and
Employee has duly executed this Agreement, all as of the date and year first
written above.
ATLANTIC TECHNOLOGY VENTURES, INC. EMPLOYEE:
By: /s/ A. Xxxxxx Xxxxxx /s/ Xxxxx Xxxxxx
----------------------- -------------------------
Name: A. Xxxxxx Xxxxxx Xxxxx Xxxxxx
Title: CEO
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