EXHIBIT 10.35
EMPLOYMENT AGREEMENT
This Agreement executed this 23rd day of September, 1999 by
and between NAI Direct, Inc., a Delaware corporation ("NAI Direct") and Xxxxxx
X. Xxxx ("Employee").
The parties, each intending to be legally bound, hereby agree as
follows:
1. POSITION. NAI Direct employs Employee in the position of Chief
Executive Officer pursuant to the terms of this Agreement. Employee will perform
such services in this capacity as may from time to time be reasonably requested
by NAI Direct.
2. TERM. This Agreement shall commence on the Closing Date, as defined
in the Share Exchange Agreement (the "Exchange Agreement") between WorldWide Web
NetworX Corporation, a Delaware corporation ("WWWX") and New America Network,
Inc., a Delaware corporation ("NAI") and shall except as provided in paragraph
9, remain in effect for a period of 3 years thereafter. After this 3 year term,
the Agreement shall automatically renew from year to year unless either party
gives written notice to the other at least ninety (90) days prior to the
expiration of the then current term that he or it is not renewing.
3. COMPENSATION AND BENEFITS. For all services rendered by Employee
under this Agreement, NAI Direct shall compensate Employee as follows:
(a) NAI Direct shall pay to Employee an annual salary (the "Base
Salary") of $150,000.00, payable in accordance with the
payroll policies of NAI Direct, subject to normal
withholdings. The Base Salary shall be paid at regular
intervals as is paid to other NAI Direct employees.
(b) The Base Salary shall be subject to annual review, and
Employee shall be entitled to such increase as is determined
by the Board of Directors of NAI Direct.
(c) Employee shall be entitled to participate in all employee
pension and welfare benefit plans and programs made available
to the senior-level executives of NAI Direct or to its
employees generally, as such plans or programs may be in
effect from time to time, including, without limitation,
pension, profit sharing, savings and other retirement plans or
programs, medical, dental, hospitalization, short-term and
long-term disability and life insurance plans, accidental
death and dismemberment protection, travel accident insurance,
and any other pension or retirement plans or programs and any
other employee welfare benefit plans or programs that may be
sponsored by NAI Direct from time to time, including any plans
that supplement the above-listed types of plans or programs,
whether funded or unfunded.
(d) Employee is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this
Agreement and NAI Direct shall promptly
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reimburse him for all business expenses incurred in connection
with carrying out the business of NAI Direct.
4. DUTIES. The duties of Employee are as contained in the attached
Schedule "A". Those duties shall be performed in such manner so as to uphold the
reputation of NAI Direct in the business community. Those duties may be
reasonably extended or curtailed from time to time, at the discretion of the
Board of Directors of NAI Direct.
5. TIME AND ATTENTION DEVOTED TO DUTIES. Employee shall devote his
entire time and attention to the business of NAI Direct and NAI. He shall not,
during the term of this Agreement, be engaged in any other business activity
which interferes with his ability to perform the duties assigned to him by NAI
Direct, whether or not such business activity is pursued for gain, profit or
other pecuniary advantage. This shall not be construed as preventing Employee
from investing his assets in such form or manner as will not require any
services on the part of Employee in the operation of the affairs of the
companies in which such investments are made, subject to the qualification that
Employee may not invest in a company which is competitive in any manner
whatsoever with NAI Direct, NAI or WWWX (except for investments constituting
less than one percent (l%) of a publicly owned company).
6. NONDISCLOSURE AND RESTRICTIVE COVENANTS. Employee acknowledges that
his duties will necessarily result in his becoming familiar with the business,
software, patents and copyrights, methods and operations, client and customer
lists, client and customer information, manufacturing processes, product
specifications, vendors, trading patterns, financial goals, and other
proprietary and confidential information of NAI Direct, NAI and WWWX, a publicly
traded corporation (the "Confidential Information"). Therefore, Employee
acknowledges and agrees that the following nondisclosure provisions and
restrictive covenants shall apply to the Confidential Information. The rights
hereunder shall inure to the benefit of NAI Direct, NAI and WWWX, each of whom
shall have the right to enforce the terms of paragraphs 6 through 8 of this
Agreement. For the purposes of paragraphs 6 through 8 of this Agreement, the
term "NAI Direct", "NAI" or "WWWX" shall include each of their affiliated
companies. The terms contained in paragraphs 6 through 8 shall survive the
termination or expiration of this Agreement. Therefore, Employee agrees:
(a) Employee will not, at any time during his employment by NAI
Direct, or at anytime thereafter, unless terminated by NAI
Direct without cause or by Employee for cause pursuant to
sub-paragraph 9(c), without the written approval of NAI Direct
or its duly constituted officers, use for his benefit or the
benefit of third parties reveal, divulge, or make known to any
person, firm or corporation, the Confidential Information or
any portions thereof.
(b) Employee agrees to return to NAI Direct, NAI or WWWX, as
appropriate, upon request or immediately upon the termination
of his employment by NAI Direct, any and all written
information, materials, equipment and software which
constitutes, contains or relates in any way to the
Confidential Information or trade secrets of NAI Direct, NAI
or WWWX including, but
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not limited to, any copies of such information and any notes,
memoranda or other documents, in any media which include,
reflect or incorporate all or any part of the Confidential
Information.
(c) Unless Employee's employment hereunder is terminated by NAI
Direct (i) without cause, (ii) by Employee pursuant to
SUBPARAGRAPH 9(C), (iii) in the event of a material breach by
WWWX under the Exchange Agreement, (iv) pursuant to SECTION 9
(A) (V), or (v) pursuant to SECTION 9 (D), Employee will not
for a period ending 2 years after the termination of
employment pursuant to this Agreement (the time period in this
SECTION 6(C) being the "NON-COMPETE TERM") compete directly
with NAI Direct, NAI or WWWX, whether as an employee, officer,
director, agent, security holder, creditor, consultant or
otherwise. During the Non-Compete Term, Employee will not
consult with or have an interest in any business, firm,
person, partnership, corporation or other entity which engages
in the same or substantially similar business to that of WWWX,
NAI or NAI Direct worldwide, it being acknowledged that the
business of WWWX, NAI and NAI Direct is global in nature. For
the purpose of this paragraph, a business shall be deemed
similar or competitive to WWWX, NAI or NAI Direct if it
conducts an internet-based commercial real estate business.
During the Non-Compete Term, Employee will not provide
services or products to any individual or entity which
competes with NAI Direct, NAI or WWWX.
(D) REASONABLENESS OF RESTRICTIONS. Employee and NAI Direct
recognize that, as a result of the globalization of e-commerce
markets through advances in telecommunicatins and the
internet, NAI Direct's market is not susceptible to geographic
definitions. Consequently, and given the nature of the
position Employee will hold with NAI Direct, the nature of NAI
Direct's and the business and their commitment to expanding
and leveraging of their business activities and Employee's
involvement in these activities, Employee and NAI Direct agree
that the restrictions contained in this SECTION 6 upon the
activities of Employee are geographically unlimited and
reasonable as such.
7. RIGHT TO ENGAGE IN EMPLOYEE'S PROFESSION. SECTION 6 is not intended
to restrict Employee in the exercise of his training and skills, provided that
the exercise of such training and skills does not involve competing with NAI
Direct or WWWX in violation of the provisions of this Agreement. In particular,
it is recognized that Employee is an officer and employee of NAI and will
continue in that position. Nothing contained in this Agreement is intended to
prevent Employee from fully performing his role as an employee of NAI.
8. REMEDIES IN ADDITION TO ANY OTHER REMEDIES PROVIDED BY LAW. Employee
agrees that the breach of any of the covenants contained in paragraph 6 may
result in irreparable damage to NAI Direct, NAI and WWWX and, in addition to any
other remedies provided in this Agreement or at law, NAI Direct, NAI and WWWX
shall have the right to petition a court of competent jurisdiction to enjoin
Employee from violating such covenants.
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9. EARLIER TERMINATION.
(a) Notwithstanding the termination provision of paragraph 2, this
Agreement may be terminated at any time by NAI Direct upon the
occurrence of any of the following:
(i) Employee's inability to perform substantially all of
the duties assigned, through death or total
disability in excess of 60 consecutive days or total
disability in excess of 90 days in any 12 month
period.
(ii) Any act of dishonesty or disloyalty by Employee
involving or materially affecting NAI Direct.
(iii) Employee's material breach of the confidentiality
provisions of this Agreement.
(iv) Any other material breach of this Agreement by
Employee.
(v) The termination of the business of NAI Direct, the
sale of substantially all of the assets of NAI Direct
or a merger or consolidation in which NAI Direct is
not the surviving entity.
(b) NAI Direct may further terminate this Agreement in the event
of the failure of Employee to substantially perform the duties
assigned to him by NAI Direct providing NAI Direct shall
provide 30 days written notice to Employee of his failure to
perform his duties with an opportunity to cure within said 30
day period.
(c) Employee may terminate Employee's employment hereunder for
Good Reason (as defined below), and if the Agreement is so
terminated, then NAI Direct shall pay to Employee, within
thirty (30) days of the date of such termination, the Base
Salary through such date of termination and, in lieu of any
further compensation and benefits for the balance of the
Agreement's term, severance pay in a lump sum amount equal to
the greater of (1) 50% of the then current Base Salary or (2)
the remaining Base Salary for the remainder of the Agreement's
term.
(i) For purposes of this Agreement, "Good Reason" shall
mean the occurrence, without Employee's express
written consent, of any of the following
circumstances, unless, in the case of clauses (2),
(5) or (6), such circumstances are fully corrected
prior to the date of termination specified in a
notice of termination given by Employee to NAI Direct
in respect thereof (which date of termination shall
be specified in such notice and shall not be less
than thirty (30) nor more than sixty (60)
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days following delivery of such notice):
(1) Employee's removal from his position as
Chief Executive Officer, or a significant
diminution in the nature or status of
Employee's responsibilities;
(2) Employee being assigned to any duties
inconsistent with Employee's status as an
executive of NAI Direct holding the position
of Chief Executive Officer;
(3) A reduction by NAI Direct in Employee's Base
Salary;
(4) The relocation of Employee's office in which
Employee was located to a location more than
50 miles therefrom or NAI Direct requiring
Employee to be based anywhere other than the
executive office in which Employee was
located, except for required travel on NAI
Direct business to an extent substantially
consistent with Employee's present business
travel obligations;
(5) The failure by NAI Direct to continue in
effect any option, equity or bonus plan in
which Employee participated, unless an
equitable arrangement (embodied in an
ongoing substitute or alternative plan) has
been made in such plan, or the failure by
NAI Direct to continue Employee's
participation therein on the same basis,
both in terms of the amount of benefits
provided and the level of Employee's
participation relative to other
participants; or
(6) The taking of any action by NAI Direct which
would directly or indirectly materially
reduce or deprive Employee of any material
fringe benefit enjoyed by Employee under NAI
Direct's employee benefit and welfare plans,
including the pension, life insurance,
medical, health and accident, disability,
deferred compensation and savings plans in
which Employee participated.
(d) In the event that the Real Quest, Inc. Shareholders'
Agreement among NAI, WWWX and Real Quest, Inc. is
terminated, either party may terminate this
Agreement.
10. REPRESENTATIONS OF EMPLOYEE
(a) Employee represents that to the best of his knowledge
he is not the subject of any pending or threatened
claim which involves any criminal or governmental
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proceedings, or allegations of misfeasance, and that
he has not been charged nor threatened to be charged
by any governmental or administrative body with
violation of law except for minor traffic violations
and similar charges.
(b) Except with respect to NAI, Employee represents and
warrants that he is not prohibited from acting in any
capacity for NAI Direct by virtue of the operation of
any non-competition or similar agreement with any
prior employer, or by any applicable statutes,
regulations or ordinances or any other applicable law
or by the rules and regulations of the US Securities
and Exchange Commission or any national securities
exchange, and that his acting in the capacity for NAI
Direct that is contemplated by the parties hereto and
by virtue of his position with NAI Direct described
in Section 1 hereof will not subject NAI Direct to
claims or materially impair the license status of NAI
Direct or its affiliates or any entity operated by
NAI Direct or its affiliates.
11. DEFENSE OF CLAIMS. Employee agrees that during the Term, and at all
reasonable times thereafter, he will cooperate with NAI Direct in the defense of
any claim that may be made against NAI Direct or any affiliates, to the extent
that such claims may relate to services performed by Employee for NAI Direct or
its affiliates. In connection with such claim, NAI Direct will reimburse
Employee for all of his reasonable out-of-pocket expenses associated and, to the
extent reasonably practicable, to provide Employee with notice at least ten (10)
days prior to the date on which any travel is required, and (ii) if Employee is
no longer employed by NAI Direct, to compensate Employee at a reasonable rate
for his time.
12. NOTIFICATION OF AGREEMENT. Employee shall notify any future or
prospective employers, partners or persons with a similar business relationship
to Employee ("Future Employers") about the terms of this Agreement for any
period for which the covenants contained above pertains. Employee does hereby
authorize NAI Direct to notify any Future Employers about the terms of this
Agreement upon discovery by NAI Direct that Employee is being considered for
employment, partnership or similar business relationship (or has entered into
such a relationship) with a Future Employer in order to ensure Employee's
observance and compliance herewith.
13. INJUNCTION AND OTHER RELIEF. Both parties hereto recognize that the
services to be rendered under this Agreement by Employee are special, unique and
of extraordinary character, and that in the event of the breach by Employee of
any of the terms and conditions of this Agreement to be performed by him, or in
the event Employee performs services for any person, firm or corporation in
violation of Sections 6-8, or if Employee shall breach the provisions of this
Agreement with respect to Confidential Information, then NAI Direct shall be
entitled, if it so elects, in addition to all other remedies available to it
under this Agreement or at law or in equity, to affirmative injunctive or other
equitable relief.
14. STIPULATION. Employee hereby specifically acknowledges, agrees,
stipulates and represents to NAI Direct that:
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(a) Employee has received adequate and sufficient
consideration for entering into this Agreement
including the above-referenced compensation;
(b) except with respect to NAI, the execution and
delivery of this Agreement and the performance
hereunder do not and shall not constitute a violation
of any covenants of non-competition, trade secrecy,
or confidentiality to which Employee is a party;
(c) the covenants of Employee contained in this Agreement
are in consideration of the promise of NAI Direct to
provide Confidential Information (including trade
secrets) to Employee and are necessary to protect NAI
Direct interests in such Confidential Information, as
well as NAI Direct's business good will and other
business interests;
(d) NAI Direct may suffer great loss and irreparable harm
if Employee competes directly or indirectly with NAI
Direct;
(e) the temporal, geographic and other restrictions
contained in this Agreement are in all respects
reasonable and necessary to protect the business good
will, Confidential Information, trade secrets,
prospects and other business interest of NAI Direct;
and
(f) the enforcement of this Agreement will not work an
undue or unfair hardship on Employee or otherwise be
oppressive to him.
15. SEVERABILITY. In the event that any of the provisions of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such invalidity or unenforceability shall not affect the remainder
of this Agreement and same shall be construed as if such invalid or
unenforceable provisions had never been a part hereof. If a court of competent
jurisdiction determines that the length of time, geographical restrictions or
any other restriction, or portion thereof, set forth in this Agreement is overly
restrictive and unenforceable, the parties agree that the court shall reduce or
modify such restrictions to those which it deems reasonable and enforceable
under the circumstances, and as so reduced or modified, the parties hereto agree
that the restrictions of this Agreement shall remain in full force and effect.
16. ENTIRE AGREEMENT. This document constitutes the entire agreement
between NAI Direct and Employee regarding the subject matter hereof and there
are no oral agreements or undertakings affecting this instrument; any future
modifications, in order to be binding upon the parties, must be reduced to
writing and executed by both parties to this Agreement.
17. NO WAIVER. Either party's failure to strictly enforce any provision
of this Agreement shall not be construed as a waiver or as excusing either party
from future performance.
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18. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of the heirs, executors, administrators, successors and assigns of the
respective parties, but in no event may Employee assign to any other party
Employee's duties or obligations under this Agreement.
19. NEW JERSEY LAW. THIS AGREEMENT SHALL BE CONSTRUED UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW JERSEY. THE PARTIES AGREE TO
WAIVE A JURY TRIAL IN ANY PROCEEDING BROUGHT TO ENFORCE ANY OF THE TERMS OF THIS
AGREEMENT.
20. HEADINGS. Paragraph headings herein shall have absolutely no legal
significance and are used solely for convenience of reference.
21. NOTICES. All notices which either party is required or may desire
to give to the other under or in conjunction with is Agreement shall be in
writing and shall be given by addressing the same to such other party at the
address set forth below, and by depositing the same so addressed, certified
mail, postage prepaid, return receipt requested, or by overnight mail or by
reputable courier service, or by delivering the same personally to such other
party.
IF TO EMPLOYER:
NAI Direct
P. O. Xxx 000
000 XX Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: GENERAL COUNSEL
IF TO EMPLOYEE:
Xxxxxx X. Xxxx
X.X. Xxx 000
000 XX Xxxxx 000
Xxxxxxxxxx, XX 00000
Any notice mailed should be deemed to have been given three (3) United
States Post Office delivery days following the date of mailing. Overnight mail
or courier services shall be deemed to have been given on the next business day
following the date of mailing. Any notice delivered in person shall be deemed
effective upon delivery. Either party may change the address for the service of
notice upon it by written notice given to the other in the manner herein
provided for the giving of notice.
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IN WITNESS WHEREOF, the parties hereto have set their hands.
NAI DIRECT, INC.
By: //S// XXXXXXX X. XXXX
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: President & COO
//S// XXXXXX X. XXXX
-------------------------------
Xxxxxx X. Xxxx
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SCHEDULE A
POSITION RESPONSIBILITIES
As Chief Executive Officer of NAI Direct, Employee will have the
following duties and responsibilities:
o Exercising the executive powers of NAI Direct
o Hiring and firing of all employees
o Setting compensation for all employees
o Presiding over meetings of the Executive Committee of NAI
Direct
o Implementing NAI Direct's policies as adopted by the Board of
Directors
o Serving as an ex-officio member of the Board of Directors
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