(EXHIBIT 10.1)
EMPLOYMENT AGREEMENT
AGREEMENT, made as of the 18th day of March 2004, between Xxxx Xxxxxxx
(hereinafter referred to as the "Employee") and SearchHelp, Inc., a Delaware
corporation having its principal place of business at the Hi-Tech Incubator,
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (hereinafter referred to as the
"Employer").
W I T N E S S E T H:
WHEREAS, the Employer desires to employ the Employee under the terms of
this Agreement, and
WHEREAS, the Employee and Employer desire to have their rights,
obligations and duties specified herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. EMPLOYMENT AND COMPENSATION. The Employer hereby employs the
Employee and the Employee accepts such employment as Chief Financial Officer,
(CFO). The Employee shall have such duties as are commensurate with the position
and as set forth by the Employer, and shall report directly to the Chief
Executive Officer and the President of the Company.
A. Base Compensation. The Employee shall be entitled to a
salary as set forth on Schedule A of this Agreement during the term of this
Agreement, and any extensions thereof, payable in installments in accordance
with the Employer's regular practice of compensating executive personnel.
B. Bonus. Employee may be entitled to a bonus at the
conclusion of each year of this Agreement, and any extensions thereof. At the
end of each year, the Compensation Committee of the Board of Directors shall
determine the amount and type (cash, stock, options, etc.) of such bonus payable
to Employee, if any.
C. Options. The Employee shall receive such number of options
to purchase shares of the Company's stock, with such restrictions and vesting,
as set forth in Schedule B attached hereto.
2. TERM. This Agreement shall commence as of the date hereof, and shall
continue for a period of one (1) year from the date thereof. This Agreement
shall be automatically extended by one-year periods at the conclusion of each
year, thus renewing the one (1) year term, unless notice is received by either
the Employee or the Employer not to extend this Agreement at least ninety (90)
days prior to the expiration of such year.
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3. HEALTH INSURANCE; EMPLOYEE BENEFIT PLANS. In accordance with their
terms, the Employee shall be entitled to participate in any medical, dental,
life, disability insurance or other employee benefit or welfare plans maintained
by the Employer for its professional employees generally. The insurance
obligations of the Employer set forth herein are contingent upon the
insurability of Employee. The medical and dental coverage maintained by the
Employer for the benefit of the Employee shall include medical insurance
coverage covering the Employee.
4. EXPENSES. During the period of his employment, the Employee will be
reimbursed for his reasonable expenses for the benefit of the Employer in
accordance with the general policy of the Employer as adopted by the Employer
from time to time. With respect to any expenses which are reimbursed by the
Employer to the Employee, the Employee agrees to account to the Employer in
detail sufficient to entitle the Employer to an income tax deduction for such
paid item if such item is deductible.
5. TERMINATION.
A. This Agreement shall automatically terminate:
(i) upon the death of Employee; or
(ii) if the Employee has been disabled or
incapacitated so that he is not capable of
performing his duties hereunder for any
period of one-hundred twenty (120)
consecutive days, unless Employer shall
elect to have this Agreement continue in
effect.
B. Employer may terminate this Agreement:
(i) immediately for "cause" as determined by the
Employer;
(ii) upon a material breach by Employee of any
term or condition of this Agreement; or
(iii) if at any time during the term of this
Agreement, any of the continuing
representations, covenants or agreements of
Employee contained herein shall be
inaccurate in any material respect.
C. Employee may terminate this Agreement at any time:
(i) upon a material breach by Employer of any term or
condition of this Agreement; or
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(ii) at any time at the election of Employee upon
sixty (60) days notice to Employer.
6. PROTECTION OF CONFIDENTIAL INFORMATION. Employee acknowledges that
his employment by the Employer will bring him into close contact with many
confidential affairs of the Employer, including information and data regarding
costs, profits, markets, sales, products, key personnel, pricing policies,
operational methods, technical processes, computer programs or systems developed
or improved by the Employer, the identity of the Employer's Customers, Customer
representatives and contacts, the nature of the services required by the
Employer's actual and Prospective Customers, the services performed by the
Employer for its Customers, the identities of the Employer's actual and
prospective employees and other business affairs and methods, plans for future
developments and other information not readily available to the public, all of
which are highly confidential and proprietary and all of which will have been
developed by the Employer at great effort and expense. Employee further
acknowledges that the services to be performed by him under this Agreement are
of a special, unique, unusual, extraordinary and intellectual character, and
that the business of the Employer is contemplated to be conducted throughout the
United States and ultimately, the rest of the world. In recognition of the
foregoing, Employee covenants and agrees:
A. That he will keep secret all confidential matters of the
Employer and not disclose them to anyone outside of the Employer, either during
or after the term of this Agreement, except with the Employer's prior written
consent;
B. That he will not make use of any of such confidential
matters for his own purposes or the benefit of anyone other than the Employer;
and
C. That he will deliver promptly to the Employer on
termination of this Agreement, or at any time the Employer may so request, all
confidential memoranda, notes, records, reports and other confidential documents
(and all copies thereof) relating to the business of the Employer which he may
then possess or have under this control.
7. COVENANT NOT TO SOLICIT.
A. Employee agrees that if the Employee's employment is
terminated for any reason whatsoever, other than pursuant to a dissolution of
Employer or a material breach of the terms of this Agreement by Employer, then
for a period of one (1) year after such termination or expiration, Employee
shall not (i) solicit, directly or indirectly, business of the type conducted by
the Employer from any person, firm or entity which was a Customer or Prospective
Customer of the Employer at any time within one year preceding the termination
of Employee's employment, (ii) induce or attempt to induce any such Customer or
Prospective Customer to reduce its business with the Employer, (iii) solicit or
attempt to solicit any employees or consultants of Employer to leave the employ
or engagement of Employer, or (iv) offer or cause to be offered employment or
consultant opportunities to any person who was employed or engaged by Employer
at any time during the one year prior to the termination of Employee's
employment with Employer.
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B. For purposes of this Section, the term "Customer" includes
any affiliates, customers, and clients of Employer's Customers to whom Employee
has been introduced or whom Employee has received information through Employer
or through any Customer for which Employee has performed services in any
capacity on behalf of Employer.
C. For purposes of this Section, a "Prospective Customer'
shall mean potential Customers which Employer has solicited or with which
Employer has had active discussions concerning potential business at any time
during the one year preceding the end of the Employee's employment by Employer,
and with whom the Employee shall have participated in such solicitation or
discussions.
8. NON-COMPETITION.
A. Since the services of Employee to the Employer are likely
to be unique an extraordinary and he has had and will have access to information
pertaining to the business of the Employer which may be secret and confidential,
Employee agrees that if the Employee's employment is terminated for any reason
whatsoever, other than pursuant to a dissolution of Employer or a material
breach of the terms of this Agreement by Employer, then for a period of one (1)
year after such termination or expiration, Employee will not, without express
approval in each case of the Employer, directly or indirectly, (i) own, manage,
operate, control, be employed by, participate in or be connected in any manner
with the ownership, management, operation or control of any business engaged in
the development or marketing of any products that compete with the products of
Employer.
B. The Employee further acknowledges that a business
competitive with that of Employer or of any of its subsidiaries or affiliated
corporations may be carried on anywhere within the United States or in any
foreign country. Therefore, the Employee acknowledges that the unrestricted
geographical application of this Section is reasonable under the circumstances.
If any of the rights or restrictions contained or provided for herein shall be
deemed to be unenforceable by reason of the extent, duration or geographical
scope, or other provisions hereof, or any other provisions of this Agreement,
the parties hereto contemplate that the court shall reduce such extent,
duration, geographical scope or other provisions and enforce this Section in its
reduced form for all purposes in the manner contemplated hereby.
C. The Employee acknowledges that (i) in the event his
employment with Employer terminates for any reason, Employee will be able to
earn a livelihood without violating the foregoing restrictions, and (ii)
Employee's ability to earn a livelihood without violating such restrictions is a
material condition of his employment with Employer. Employer may, in writing,
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waive any or all of the provisions of this Section. If the Employee is in good
faith and after diligent effort unable to obtain employment consistent with his
training solely because of the covenants set forth in this Section, and so
advises Employer in writing, then the prohibitions in this Section shall bind
the Employee only so long as Employer pays him monthly, upon demand, a sum equal
to the Employee's monthly base pay at termination, as defined below, for each
month of such unemployment during the remained of the term of covenants set
forth in this Section.
D. The term "monthly base pay" means the Employee's monthly
salary, in all cases excluding commissions in excess of base pay, bonus or other
extra compensation or benefits, and is subject to regular deductions for taxes,
social security payments, etc. For each month of unemployment in which the
Employee claims payment, he will aggressively seek employment and will accept a
reasonable offer of employment and, upon request by Employer, will account to
Employer in detail for his efforts to obtain employment. The Employee further
agrees that Employer may make such investigations and inquiries as it shall deem
necessary or appropriate to determine whether the covenants and conditions of
this Section have been satisfied before making any payment otherwise payable to
the Employee hereunder.
9. PROPRIETARY RIGHTS.
A. Employee shall disclose fully and promptly to Employer, and
upon Employer's instructions also to the Customer for which the Employee is then
working, any and all inventions, processes, innovations, discoveries, designs,
techniques, formula, improvements, computer programs and other technical
materials relating to business of Employer or Employer's Customer which Employee
shall discover, conceive, make, generate or reduce to practice, alone or jointly
with others, during his/her term of employment with Employer, and resulting from
such employment, whether or not they are patentable or copyrightable.
B. Employee agrees to assign to Employer his rights and
interests in any inventions, processes, innovations, discoveries and other
similar materials, including copyrights to all copyrightable material and all
patent rights to all patentable material unless specifically directed otherwise
in writing by Employer to assign it to Customer. No rights shall be reserved to
Employee.
C. Employee agrees to execute and transfer at any time, upon
Employer's request, any certification, affidavit or other document confirming
the Employer's ownership rights under this Section.
D. Upon request, at any time during or after the term of this
Agreement, and at the expense of Employer or its Customer for whom the work in
question was performed, Employee agrees to assist Employer or Customer,
including its attorneys, in preparing and prosecuting applications for patents
or copyrights relating to such inventions, processes and other materials named
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in this Section. Assistance in preparing and prosecuting such applications shall
include assistance regarding litigation and upon Employer's request, the
execution of all papers and performance of all tasks that may reasonably be
necessary to protect the rights of Employer or Customer and to vest in it or its
assigns ownership of the inventions, applications, copyrights and patents herein
contemplated.
10. NON-DEFAMATION. The Employee covenants and agrees that during the
course of his employment by the Employer and for any time thereafter, the
Employee shall not, directly or indirectly, in public or private, deprecate,
impugn or otherwise make any remarks that would tend to or be construed to tend
to defame the Employer, its employees or products or its reputation, nor shall
Employee assist any person, firm or company in doing so, except as required by
subpoena, court order or other legal process.
11. NO WAIVER. This Agreement shall not be modified or amended except
by a further written document signed by the Employee and the Employer. No
provision hereof may be waived except by an agreement in writing signed by the
waiving party. A waiver of any term or provision shall not be construed as a
waiver of any other term provision.
12. BENEFIT. This Agreement shall bind the Employee and shall bind and
benefit the Employer and its successors and assigns. This Agreement shall not be
assignable by the Employee.
13. HEADINGS. The headings of Sections herein are included solely for
convenience or reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
14. ENFORCEMENT OF COVENANTS; SURVIVAL. The Employee acknowledges that
his skills and position in the legal and financial industries in which Employer
competes or intends to compete are unique, and, therefore, that the breach or
threatened breach by Employee of the provisions of Sections 8 - 12 shall cause
irreparable harm to Employer, which harm cannot be fully redressed by the
payment of damages to Employer. Accordingly, Employer shall be entitled, in
addition to any other right or remedy it may have, at law or in equity, to an
injunction, without the posting of any bond or other security, enjoining or
restraining the Employee from any violations or threatened violation of Sections
6 - 10, and Employee hereby consents to the issuance of such injunction. Nothing
contained herein shall be construed as prohibiting the Employer from pursuing
any other remedies available to the Employer for breach or threatened breach,
including the recovery of additional damages from the Employee. The provisions
of Sections 6 - 10 shall remain enforceable by Employer against Employee even
after the termination of this Agreement.
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15. NOTICE. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by registered mail to
his residence in the case of the Employee, or to its principal office in the
case of the Employer.
16. SEVERABILITY. Each provision of this Agreement shall be considered
severable to the extent that if any one provision or clause conflicts with
existing or future applicable law, or is not given full force and effect because
of such law, such conflict or unenforceability shall not affect any other
provision of this Agreement which, consistent with such law, shall remain in
full force and effect. All such conflicting provisions shall be modified or
reformed only to the extent required for compliance with any applicable laws.
All surviving clauses shall be construed so as to effectuate the purpose and
intent of the parties.
17. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York and shall be construed in accordance therewith, and any action
or proceeding arising out of or relating to this Agreement shall be heard and
determined in any state or federal court sitting in Nassau County, State of New
York, and each of the parties submits to the jurisdiction of such court.
18. RELEASE. The Employee hereby releases and discharges the Employer
for reimbursement of any and all services, but not expenses, rendered prior to
the date hereof.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, including facsimile signatures, each of which shall be deemed an
original but all of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first above written
SEARCHHELP, INC. EMPLOYEE
By: By:
--------------------------------- -----------------------------------
Xxxxxx Xxxxxx Xxxx X. Xxxxxxx, Esq.
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SCHEDULE A
Salary
1. Employee's salary shall be $24,000 per annum, of which $1,000 will be
paid monthly to the employee and the remaining $1,000 will be accrued
until the earlier of one (1) year, or the date that the Company has
sufficient funds to pay the employee. Although the employee shall
commence employment as of the date hereof, employee's salary shall not
commence until on April 1, 2004.
2. The Employee will be issued 70,000 shares of the Company's common stock
which are to be granted from the Company's stock option plan as of the
date hereof. The following is the vesting schedule for the Employee's
options:
--------------- ---------- ----------- ---------------
Xxxxx Xxxx # of Vest
--------------- ---------- ----------- ---------------
Date % Shares Date
--------------- ---------- ----------- ---------------
3/18/2004 25% 17,500 3/18/2004
--------------- ---------- ----------- ---------------
25% 17,500 3/18/2005
--------------- ---------- ----------- ---------------
25% 17,500 3/18/2006
--------------- ---------- ----------- ---------------
25% 17,500 3/18/2007
--------------- ---------- ----------- ---------------
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