EMPLOYMENT AGREEMENT
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This Employment Agreement, dated September 15, 2003, ("Effective Date") is
between ION Networks, Inc., a Delaware corporation (the "Company"), and Xxxxxxx
X. Xxxxxxx, an individual residing at 000 Xxxx Xxxx, Xxxxx Xxxxxxx, XX 00000
("Executive").
1. Position and Responsibilities.
1.1 Position. Executive is employed by the Company to render services to
the Company in the position of Chief Financial Officer. Executive shall perform
such duties and responsibilities as are normally related to such position in
accordance with the standards of the industry and any additional duties
consistent with his position now or hereafter assigned to Executive by the Chief
Executive Officer. Executive shall abide by the rules, regulations, and
practices as adopted or modified from time to time in the Company's sole
discretion.
1.2 Other Activities. Executive shall devote his full business time,
attention and skill to perform any assigned duties, services and
responsibilities while employed by the Company, for the furtherance of the
Company's business, in a diligent, loyal and conscientious manner. Except upon
the prior written consent of the Chief Executive Officer, Executive will not,
during the term of this Agreement, (i) accept any other employment, or (ii)
engage, directly or indirectly, in any other business activity (whether or not
pursued for pecuniary advantage) that might interfere with Executive's duties
and responsibilities hereunder or create a conflict of interest with the
Company.
1.3 No Conflict. Executive represents and warrants that Executive's
execution of this Agreement, Executive's employment with the Company, and the
performance of Executive's proposed duties under this Agreement shall not
violate any obligations Executive may have to any other employer, person or
entity, including any obligations with respect to proprietary or confidential
information of any other person or entity.
2. Compensation and Benefits.
2.1 Base Salary. In consideration of the services to be rendered under
this Agreement, the Company shall pay Executive a base salary at an annualized
rate of $120,000 from the Effective Date through December 31, 2003. Beginning
January 1, 2004, the Executive's base salary shall increase to an annualized
rate of no less than $156,000. The Base Salary shall be paid in accordance with
the Company's regularly established payroll practice. Executive's Base Salary
shall be reduced by withholdings required by law. Executive's Base Salary will
be reviewed from time to time in accordance with the established procedures of
the Company for adjusting salaries for similarly situated employees and may be
adjusted in the sole discretion of the Company.
2.2 Stock Options. The Company shall recommend to the Compensation
Committee and to the Board of Directors (the "Board") that Executive be provided
with non-qualified stock options to purchase 600,000 shares of the Common Stock
of the Company on the Effective Date, an additional 400,000 shares of the Common
Stock of the Company on January 1, 2004. This recommendation will be considered
for approval at the Company's next Board meeting. The price per share of any
approved options will be determined at that meeting. Executive's entitlement to
any stock options that may be approved is conditioned upon Executive's signing
of a separate Stock Option Agreement. Stock options to purchase 500,000 shares
of the Common Stock of the Company shall automatically vest upon a Change in
Control (as defined below) which occurs within (6) months after the Effective
Date as long as Executive remains employed by the Company on the date of the
occurrence of a Change in Control and the remainder of the options granted
hereunder shall vest automatically upon a Change in Control which occurs six (6)
months after the Effective Date as long as Executive remains employed by the
Company on such date; provided, however, if the surviving company of such Change
in Control offers Executive continued employment at a level comparable to that
existing immediately prior to the Change in Control, such non-qualified options
shall not vest automatically but shall vest in accordance to the vesting
schedule set forth in the Stock Option Agreement. A Change in Control is defined
as (i) a sale of all or substantially all of the assets or all of the
outstanding equity of the Company or (ii) the merger or consolidation of the
Company with or into another entity or any other corporate reorganization if
persons who were not shareholders of the Company immediately prior to such
merger, consolidation or reorganization own immediately after such merger,
consolidation or other reorganization fifty percent (50%) or more of the voting
powers of the outstanding securities of each of (A) the continuing or surviving
entity and (B) any direct or indirect parent corporation of such continuing or
surviving entity.
2.3 Benefits. Executive shall be eligible to participate in the benefits
made generally available by the Company to similarly-situated employees, in
accordance with the benefit plans established by the Company, and as may be
amended from time to time in the Company's sole discretion.
2.4 Expenses. The Company shall reimburse Executive for reasonable
travel and other business expenses incurred by Executive in the performance of
Executive's duties hereunder in accordance with the Company's expense
reimbursement guidelines, as they may be amended in the Company's sole
discretion.
2.5 Incentive Compensation. Executive will be eligible for incentive
compensation when the Board and the stockholders of the Company (if required by
the securities laws and related rules and regulations) approve a new incentive
compensation plan.
2.6 D&O Insurance. The Company shall provide Executive with the same
level of insurance coverage under the Company's D&O insurance policies as
provided to similarly situated employees and shall reimburse Executive up to an
aggregate amount of $100,000 (which is equal to the deductible amount under such
policies) for any amounts incurred by Executive in connection with any claims,
demands, suits, judgments, losses or expenses covered by the Company's D&O
insurance policies as determined by the insurers.
2.7 Indemnification. To the extent not covered by the D&O insurance
policies set forth in Section 2.6, the Company agrees to indemnify and hold
Executive harmless from and against any claims, demands, suits, judgments,
losses or expenses (including reasonable attorney's fees) incurred by Executive
in connection with Executive's performance of his duties under this Agreement;
provided, however, the Company shall have no obligation to indemnify Executive
under this Section 2.7 if such claims, demands, suits, judgments, losses or
expenses (including reasonable attorney's fees) directly or indirectly arose
from or out of or were the result of (i) a breach of Executive's obligations set
forth in this Agreement, (ii) Executive's failure to follow the reasonable
directions of the Board or (iii) Executive's negligence, misconduct, error or
omission in the performance of his duties hereunder.
3. At-Will Employment.
The employment of Executive shall be "at-will" at all times. The Company
or Executive may terminate Executive's employment with the Company at any time,
without any advance notice, for any reason or no reason at all. The at-will
relationship may not be modified by anything contrary contained in or arising
from any statements, policies or practices of the Company relating to the
employment, discipline or termination of its employees. Upon and after such
termination, all obligations of the Company (except for any vested rights
Executive may have under any Company benefit plan(s) provided under Section 2.3
or his right to continue benefits under COBRA) under this Agreement shall cease.
4. Termination Obligations.
4.1 Return of Property. Executive agrees that all property (including
without limitation all equipment, tangible proprietary information, documents,
records, notes, contracts and computer-generated materials) furnished to or
created or prepared by Executive incident to Executive's employment belongs to
the Company and shall be promptly returned to the Company upon termination of
Executive's employment.
4.2 Resignation and Compensation. Following any termination of
employment, Executive shall cooperate with the Company in the winding up of
pending work on behalf of the Company and the orderly transfer of work to other
employees. Executive shall also cooperate with the Company in the defense of any
action brought by any third party against the Company that relates to
Executive's employment by the Company. Executive shall be compensated on a per
diem basis (based on his Base Salary) and shall be reimbursed for all reasonable
unpaid out-of-pocket expenses for which Executive provides the Company proper
documentation on a timely basis.
5. Inventions and Proprietary Information; Prohibition on Third Party
Information.
5.1 Proprietary Information. The Executive hereby covenants, agrees and
acknowledges as follows:
(a) The Company is engaged in a continuous program of research,
design, development, production, marketing and servicing with respect to its
business.
(b) The Executive's employment hereunder creates a relationship of
confidence and trust between the Executive and the Company with respect to
certain information pertaining to the business of the Company or pertaining to
the business of any customer of the Company which may be made known to the
Executive by the Company or by any customer of the Company or learned by the
Executive during the period of Executive's employment by the Company.
(c) The Company possesses and will continue to possess information
that has been created, discovered or developed by, or otherwise become known to
it (including, without limitation, information created, discovered or developed
by, or made known to, the Executive during the period of Executive's employment
or arising out of Executive's employment) or in which property rights have been
or may be assigned or otherwise conveyed to the Company, which information has
commercial value in the business in which the Company is engaged and is treated
by the Company as confidential.
(d) Any and all inventions, products, discoveries, improvements,
processes, manufacturing, marketing and services methods or techniques,
formulae, designs, styles, specifications, data bases, computer programs
(whether in source code or object code), know-how, strategies and data, whether
or not patentable or registrable under copyright or similar statutes, made,
developed or created by the Executive (whether at the request or suggestion of
the Company or otherwise, whether alone or in conjunction with others, and
whether during regular hours of work or otherwise) during the period of
Executive's employment by the Company which pertains to the Company's actual or
contemplated business, products, intellectual property or processes of the
Company (collectively hereinafter referred to as "Developments"), shall be the
sole property of the Company and will be promptly and fully disclosed by the
Executive to the Board without any additional compensation therefor, including,
without limitation, all papers, drawings, models, data, documents and other
material pertaining to or in any way relating to any Developments made,
developed or created by Executive as aforesaid. The Company shall own all right,
title and interest in and to the Developments and such Developments shall be
considered "works made for hire" for the Company under US Copyright Law. If any
of the Developments are held for any reason not to be "works made for hire" for
the Company or if ownership of all right, title and interest in and to the
Developments has not vested exclusively and immediately in the Company upon
creation, Executive irrevocably assigns, without further consideration, any and
all right, title and interest in and to the Developments to the Company,
including any and all moral rights, and "shop rights" in the Developments
recognized by applicable law. Executive irrevocably agrees to execute any
document requested by the Company to give effect to this Section 5.1 such as
assignment of invention or other general assignments of intellectual property
rights, without additional compensation therefor.
(e) The Executive will keep confidential and will hold for the
Company's sole benefit any Development which is to be the exclusive property of
the Company under this Section 5.1 irrespective of whether any patent,
copyright, trademark or other right or protection is issued in connection
therewith.
(f) The Executive also agrees that the Executive will not, without
the prior approval of the Board use for Executive's benefit or disclose at any
time during Executive's employment by the Company, or thereafter, except to the
extent required by the performance by Executive of Executive's duties, any
information obtained or developed by Executive while in the employ of the
Company with respect to any Developments or with respect to any customers,
clients, suppliers, products, services, prices, executives, financial affairs,
or methods of design, distribution, marketing, service, procurement or
manufacture of the Company or any confidential matter, except information which
at the time is generally known to the public other than as a result of
disclosure by Executive not permitted hereunder. Notwithstanding the foregoing,
the following will not constitute confidential information for purposes of this
Agreement: (i) information which is or becomes publicly available other than as
a result of disclosure by the Executive; (ii) information designated in writing
by the Company as no longer confidential, or (iii) information known by the
Executive as of the Effective Date and identified as such in writing to the
Board. Executive will comply with all intellectual property disclosure policies
established by the Company from time to time with respect to the Company's
confidential information, including without respect to Developments.
5.2 Non-Disclosure of Third Party Information. Executive represents and
warrants and covenants that Executive shall not disclose to the Company, or use,
or induce the Company to use, any proprietary information or trade secrets of
others at any time, including but not limited to any proprietary information or
trade secrets of any former employer, if any; and Executive acknowledges and
agrees that any violation of this provision shall be grounds for Executive's
immediate termination and could subject Executive to substantial civil
liabilities and criminal penalties. Executive further specifically and expressly
acknowledges that no officer or other employee or representative of the Company
has requested or instructed Executive to disclose or use any such third party
proprietary information or trade secrets.
5.3 Injunctive Relief. The Executive acknowledges and agrees that a
remedy at law for any breach or threatened breach of the provisions of this
Section 5 would be inadequate and, therefore, agrees that the Company shall be
entitled to injunctive relief in addition to any other available rights and
remedies in case of any such breach or threatened breach.
6. LIMITED AGREEMENT NOT TO COMPETE OR SOLICIT.
6.1 Non-Competition. During the term of this Agreement, and for six (6)
months after the termination of Executive's employment with the Company (unless
during such six (6) month period, the Company is dissolved, in which such case
such non-compete period shall terminate prior to the end of the six (6) month
period), Executive shall not, directly or indirectly, work as an employee,
consultant, agent, principal, partner, manager, officer, or director for any
person or entity who or which engages in a substantially similar business as the
Company. For purposes of this Agreement the Company is currently engaged in the
business of designing, developing, manufacturing or selling network
infrastructure security solutions.
6.2 Non-Solicitation. Executive shall not, during his or her employment
and for a period of six (6) months immediately after termination of his or her
employment, for any reason, either directly or indirectly: (a) call on, solicit,
or take away any of the Company's customers or potential customers about whom
Executive became aware or with whom Executive had contact as a result of
Executive's employment with the Company, either for benefit of Executive or for
any other person or entity; or (b) solicit, induce, recruit or encourage any of
the Company's employees or contractors to leave the employ of the Company or
cease providing services to the Company on behalf of the Executive or on behalf
of any other person or entity.
6.3 Limitations; Remedies. The Executive further agrees that the
limitations set forth in this Section 6 (including, without limitation, any time
or territorial limitations) are reasonable and properly required for the
adequate protection of the businesses of the Company. If any of the restrictions
contained in Sections 6.1 and 6.2 are deemed by a court or arbitrator to be
unenforceable by reason of the extent, duration or geographic scope thereof, or
otherwise, then the parties agree that such court or arbitrator may modify such
restriction to the extent necessary to render it enforceable and enforce such
restriction in its modified form. The Executive acknowledges and agrees that a
remedy at law for any breach or threatened breach of the provisions of this
Section 6 would be inadequate and, therefore, agrees that the Company shall be
entitled to injunctive relief in addition to any other available rights and
remedies in cases of any such breach or threatened breach.
7. Alternative Dispute Resolution.
The Company and Executive mutually agree that any controversy or claim
arising out of or relating to this Agreement or the breach thereof, or any other
dispute between the parties arising from or related to Executive's employment
with the Company, shall be submitted to mediation before a mutually agreeable
mediator. In the event mediation is unsuccessful in resolving the claim or
controversy, such claim or controversy shall be resolved by arbitration. The
claims covered by this Agreement ("Arbitrable Claims") include, but are not
limited to, claims for wages or other compensation due; claims for breach of any
contract (including this Agreement) or covenant (express or implied); tort
claims; claims for discrimination (including, but not limited to, race, sex,
religion, national origin, age, marital status, medical condition, or
disability); claims for benefits (except where an employee benefit or pension
plan specifies that its claims procedure shall culminate in an arbitration
procedure different from this one); and claims for violation of any federal,
state, or other law, statute, regulation, or ordinance, except claims excluded
in the following paragraph. The parties hereby waive any rights they may have to
trial by jury in regard to Arbitrable Claims.
Claims Executive may have for Workers' Compensation or unemployment
compensation benefits are not covered by this Agreement. Also not covered is
either party's right to obtain provisional remedies or interim relief from a
court of competent jurisdiction.
Arbitration under this Agreement shall be the exclusive remedy for all
Arbitrable Claims. Company and Executive agree that arbitration shall be held in
or near South Plainfield, New Jersey and shall be in accordance with the then
current Employment Dispute Resolution Rules of the American Arbitration
Association, before a single arbitrator licensed to practice. The arbitrator
shall have authority to award or grant legal, equitable, and declaratory relief.
Such arbitration shall be final and binding on the parties. This Agreement to
mediate and arbitrate survives termination of Executive's employment.
8. Amendments; Waivers; Remedies.
This Agreement may not be amended or waived except by a writing signed by
Executive and by a duly authorized representative of the Company. Failure to
exercise any right under this Agreement shall not constitute a waiver of such
right. Any waiver of any breach of this Agreement shall not operate as a waiver
of any subsequent breaches. All rights or remedies specified for a party herein
shall be cumulative and in addition to all other rights and remedies of the
party hereunder or under applicable law.
9. Assignment; Binding Effect.
9.1 Assignment. The performance of Executive is personal hereunder, and
Executive agrees that Executive shall have no right to assign and shall not
assign or purport to assign any rights or obligations under this Agreement. This
Agreement may be assigned or transferred by the Company; and nothing in this
Agreement shall prevent the consolidation, merger or sale of the Company or a
sale of any or all or substantially all of its assets.
9.2 Binding Effect. Subject to the foregoing restriction on assignment
by Executive, this Agreement shall inure to the benefit of and be binding upon
each of the parties; the affiliates, officers, directors, agents, successors and
assigns of the Company; and the heirs, devisees, spouses, legal representatives
and successors of Executive.
10. Severability.
If any provision of this Agreement shall be held by a court or arbitrator to be
invalid, unenforceable, or void, such provision shall be enforced to the fullest
extent permitted by law, and the remainder of this Agreement shall remain in
full force and effect. In the event that the time period or scope of any
provision is declared by a court or arbitrator of competent jurisdiction to
exceed the maximum time period or scope that such court or arbitrator deems
enforceable, then such court or arbitrator shall reduce the time period or scope
to the maximum time period or scope permitted by law.
11. Taxes.
All amounts paid under this Agreement (including without limitation Base Salary)
shall be reduced by all applicable state and federal tax withholdings and any
other withholdings required by any applicable jurisdiction.
12. Governing Law.
The validity, interpretation, enforceability, and performance of this Agreement
shall be governed by and construed in accordance with the laws of the State of
New Jersey, without regard to New Jersey conflict of laws principles.
13. Interpretation.
This Agreement shall be construed as a whole, according to its fair meaning, and
not in favor of or against any party. Sections and section headings contained in
this Agreement are for reference purposes only, and shall not affect in any
manner the meaning or interpretation of this Agreement. Whenever the context
requires, references to the singular shall include the plural and the plural the
singular.
14. Obligations Survive Termination of Employment.
Executive agrees that any and all of Executive's obligations under this
agreement, shall survive the termination of employment and the termination of
this Agreement.
15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original of this Agreement, but all of which together shall
constitute one and the same instrument.
16. Authority.
Each party represents and warrants that such party has the right, power and
authority to enter into and execute this Agreement and to perform and discharge
all of the obligations hereunder; and that this Agreement constitutes the valid
and legally binding agreement and obligation of such party and is enforceable in
accordance with its terms.
17. Entire Agreement.
This Agreement (including the Exhibits attached hereto, which are incorporated
herein by reference) is the final, complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes and merges all
prior or contemporaneous representations, discussions, proposals, negotiations,
conditions, communications and agreements, whether written or oral, between the
parties relating to the subject matter hereof and all past courses of dealing or
industry custom.
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Executive acknowledges Executive has had the opportunity to consult legal
counsel concerning this agreement, that Executive has read and understands the
agreement, that Executive is fully aware of its legal effect, and that Executive
has entered into it freely based on Executive's own judgment and not on any
representations or promises other than those contained in this agreement.
In Witness Whereof, the parties have duly executed this Agreement as of the date
first written above.
ION NETWORKS, INC. EXECUTIVE:
_______________________________ _______________________________
Xxxxxx X. Xxxx Xxxxxxx X. Xxxxxxx
Chief Executive Officer
