EXHIBIT 99.7
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EMPLOYMENT AGREEMENT
This Agreement is dated as of the 15th day of January, 2003, by and between Xxx
Xxxxxxx (hereinafter "Executive"), a resident of the County, City and State of
New York, United States of America, and, HOM Corporation, a Corporation
organized under the laws of the State of Georgia with its principal place of
business at 0000 Xxxxxxxx Xxxx, Xxxxx 00-X, Xxxxxxxx, Xxxxxxx, 00000-0000
(hereinafter "Company").
WHEREAS, the Company is desirous to employ the Executive, and Executive is
desirous to accept employment with the Company, subject to terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth hereinafter, the Company and Executive agree as follows:
1. PERIOD OF EMPLOYMENT. The Company shall employ Executive, and Executive shall
serve the Company during the period commencing on January 15, 2003, and
continuing through and including January 14, 2004 (the "Term").
2. DUTIES AND RESPONSIBILITIES.
(A) During the Term, Executive shall be employed by the Company as
Secretary/Treasurer. As such, Executive shall attend to any and all duties
commensurate with this position and such other duties and responsibilities as
may from time to time be assigned to or vested in Executive by Company's Board
of Directors or by any officer of the Company superior to Executive. Executive
acknowledges and agrees that Executive may be required, without additional
compensation, to perform services for any business entity controlling,
controlled by, or under common control with the Company by virtue of direct or
indirect beneficial ownership of voting securities of or voting interest in the
controlled entity (such business entities hereinafter individually and
collectively "Affiliates") and to accept such office or position with any
Affiliate as the Board of Directors may require, including, but not limited to,
service as an officer or director of the Company or any Affiliate. Executive
shall comply with all applicable policies of the Company and Affiliates.
(B) Executive's employment with the Company shall be full-time. During the Term,
Executive shall, except during periods of vacation, sick leave, or other
authorized leave of absence, devote Executive's time, attention, skill, and
ability during the usual business hours (and outside those hours when reasonably
necessary to Executive's duties hereunder) to the faithful and diligent
performance of the duties and responsibilities described herein.
(C) During the Term, it shall not be a violation of this Agreement for Executive
to serve as an officer or director of a cooperative apartment, or civic or
charitable organization or committee, to perform speaking engagements, or to
manage personal passive investments, so long as such activities (individually or
in the aggregate) do not conflict or materially interfere with the performance
of Executive's duties hereunder.
(D) Executive's services shall be performed in New York and Georgia as well as
at such other locations and subject to such travel requirements as reasonably
necessary to the performance of Executive's duties hereunder.
3. COMPENSATION.
(A) As compensation for services rendered hereunder and in consideration of this
Agreement, the Company shall pay Executive one-million, five-hundred thousand
(1,500,000) common shares of the Company at the commencement of this agreement
and such further compensation as the Company may from time to time in its sole
discretion determine.
(B) During the Term, as additional compensation, Executive shall be entitled to
participate in and receive all benefits under any welfare benefit plan or
program (including, without limitation, medical, dental, disability, group life
(including accidental death and dismemberment) and business travel insurance
plans and programs), any retirement savings plan or program (including, without
limitation, 401(k) and pension plans), and such other perquisites, paid vacation
and holidays) as the Company may, from time to time and in its sole discretion,
make available generally to executive employees of the Company. Such
participation shall be subject to the terms and conditions of such plans or
programs, including, but not limited to, such generally applicable eligibility
provisions as may be in effect from time to time.
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(C) The Company shall reimburse Executive for all reasonable, ordinary, and
necessary business expenses incurred in the performance of Executive's duties
hereunder in accordance with and subject to the terms and conditions of the
Company's then-prevailing expense policy. As a condition precedent to obtaining
such reimbursement, Executive shall provide to the Company any and all
statements, bills or receipts evidencing such expenses for which the Executive
seeks reimbursement, and such other related information or materials as the
Company may from time to time reasonably require.
4. TERMINATION. Unless Executive's employment is terminated pursuant to this
paragraph four (4), the Company shall continue to employ Executive and Executive
shall continue to serve the Company throughout the Term. Upon expiration of the
Term, Executive's employment with the Company shall be terminated without
further action by Executive or the Company.
(A) This Agreement shall terminate automatically upon Executive's death;
(B) Upon Executive's "Disability", the payment of benefits under the Company's
short-term and long-term disability insurance programs, if any, shall satisfy
the Company's remaining obligations under the foregoing paragraph 3(A), if any.
For purposes of this Agreement, Executive shall be deemed to be under a
Disability if Executive shall be unable, by virtue of illness or physical or
mental incapacity or disability (from any cause or causes whatsoever), to
perform the Executive's essential job functions hereunder, whether with or
without reasonable accommodation, in substantially the manner and to the extent
required hereunder prior to the commencement of such disability, for a period
exceeding thirty (30) days. In light of the unique nature of Executive's
services, and the undue burden on the Company that would result from Executive's
long-term absence, the Company shall have the right to terminate Executive's
employment hereunder in the event that Executive shall remain under a Disability
for a period exceeding ninety (90) days, such termination to occur at the end of
any calendar month during the continuance of such disability, upon at least ten
(10) days prior written notice to Executive.
(C) The Company shall have the right to terminate Executive's employment for
"Cause" at any time without prior written notice. For purposes of this
Agreement, Cause shall include: (i) material default or any other material
breach by Executive of Executive's obligations hereunder, (ii) failure by
Executive to perform diligently and competently Executive's duties hereunder; or
(iii) misconduct, dishonesty, insubordination, or other act by Executive
detrimental to the Company or its good will or damaging its relationships with
its customer, suppliers, or employees, including, without limitation, (a) use of
alcohol or illicit drugs such as to interfere with the performance of
Executive's duties hereunder, (b) conviction of or plea of guilty or no contest
to a felony or crime involving dishonest, moral turpitude or theft, and (c)
material failure by Executive to comply with any and all applicable laws or
governmental regulations with respect to the Company's operations or the
performance of Executive's duties.
(D) The Company may terminate Executive's employment without Cause at any time
and without prior notice. In the event of such termination, the Company shall
pay to Executive Executive's salary for the remainder of the Term.
(E) In the event of termination of this Agreement for any reason, the payments
(if any) required to be provided to Executive pursuant to this paragraph 4 shall
be in full and complete satisfaction of any and all obligations owing to
Executive pursuant to this Agreement.
5. CONFIDENTIAL INFORMATION. Both during and after the Term, Executive shall
not, directly or indirectly, divulge, publish, communicate, or make available to
any person, corporation, governmental agency, or other entity ( except in
performing Executive's duties hereunder), or use for Executive's own or any
other person's benefit, any trade secret, confidential business information, or
any other information, know how, designs, specifications, techniques, methods,
concepts, inventions, developments, discoveries, improvements, knowledge or data
of the Company or any Affiliate which is not generally known to the public
(separately and collectively ("Information"), including, but not limited to,
Information relating to research, product/service development or design,
manufacturing or manufacturing processes, maintenance or repair processes,
purchasing, product or material costs, sales or sales strategies or prospects,
pricing or pricing strategies, advertising or promotional programs, product
information or mailing or customer lists, finances (including prices, costs or
revenues), and other business arrangements, plans, procedures and strategies and
shall use Executive's best efforts to prevent the publication of or disclosure
by any other person or entity of any such Information. The Company shall be
under no obligation to identify specifically by any notice or other action any
Information to which this paragraph shall apply. While Executive is employed by
the Company, all documents and Information compiled, received, held, or used by
Executive in connection with the business of the Company or any Affiliate shall
remain the property of the Company or such Affiliate as the case may be,, and
shall be delivered by Executive to the Company or such Affiliate, respectively,
upon termination of Executive's employment, for whatever reason, or at any
earlier time requested by the Company.
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6. UNFAIR COMPETITION.
(A) As a condition of employment with the Company, and as a material inducement
to the Company to employ Executive hereunder, Executive agrees that, while
Executive is employed by the Company, and during the period, if any, during
which the Company is making payments to Executive pursuant to paragraph 4(d) ,
above, Executive shall not, directly or indirectly, whether or not for
compensation, and whether or not as an employee, be engaged or have a financial
interest in any other business, continue or assume any other corporate
affiliations, or pursue other commercial activities, duties or pursuits
whatsoever without the prior written consent of the Company.
(B) As a condition of employment with the Company, and as a further material
inducement to the Company to employ Executive hereunder, Executive agrees that
while the Executive is employed by the Company, and during the period, if any,
during which the Company is making payments to Executive pursuant to paragraph
4(d), above, and for a period of one (1) year thereafter, Executive shall not,
directly or indirectly, whether or not for compensation, and whether or nt as an
employee, be engaged in or have any financial interest in any business competing
with the business of the Company (or with any business of any Affiliate for
which the Executive performed services hereunder) within any state, region or
locality in which the Company or such Affiliate is then doing business or
marketing its products or services, as the business of the Company or such
Affiliates may then be constituted.
(C) For purposes of this Agreement, Executive shall be deemed to be engaged in
or have a financial interest in a business if Executive is an employee, officer,
director, consultant, independent contractor, proprietor or partner of any
person, partnership, corporation, trust or other entity which is engaged in such
business, or if Executive directly or indirectly performs services for such
entity or if Executive or any member of Executive's immediate family
beneficially owns an equity interest, or interest convertible into equity, in
any such entity; provided, however, that the foregoing shall not prohibit
Executive or member of Executive's immediate family from owning, for the purpose
of passive investment, less than two-percent (2%) of any class of securities of
any publicly held corporation.
(D) Executive agrees and acknowledges that, by virtue of Executive's employment
and position with the Company, Executive shall have access to and maintain an
intimate knowledge of the Company's activities and affairs, including trade
secrets, confidential business information, and other confidential matters. As a
result of such access and knowledge, and because of the special, unique and
extraordinary services that Executive is capable of performing for the Company
or any one of its competitors, Executive acknowledges that the services to be
rendered by Executive pursuant to this Agreement are of a character giving them
a particular value, the loss of which cannot adequately or reasonably be
compensated by money damages. Consequently, Executive agrees that any breach or
threatened breach by Executive of Executive's obligations under this paragraph
6, or of paragraphs 5 or 7 of this Agreement, would cause irreparable injury to
the Company, and that the Company shall be entitled to (i) preliminary and
permanent injunctions enjoining Executive from violating such provisions, and,
(ii) money damages in the amount of fees, compensation, benefits, profits or
other remuneration earned by Executive or any other competitor as a result of
any such breach, together with interest, costs and attorney's fees expended to
collect such damages or secure such injunctions. Nothing in this Agreement,
however, shall be construed to prohibit the Company from pursuing any other
remedy, the Company and Executive having agreed that all such remedies shall be
cumulative.
(E) Executive acknowledges that the limitations set forth in this paragraph 6
and in paragraphs 5 and 7 of this Agreement shall not prevent Executive from
earning a livelihood after Executive leaves the Company's employ, but merely
prevent unfair competition against the Company for a limited period.
7. SOLICITATION OF EMPLOYEES. As a condition of employment with the Company, and
as a further material inducement to the Company to employ the Executive
hereunder, Executive agrees that, while Executive is employed by the Company,
and during the period, if any, during which the Company is making payments to
Executive pursuant to paragraph 4(d), above, and for a period of one (1) year
thereafter, Executive shall not, directly or indirectly, solicit, hire, or
induce the termination from employment with the Company of any person who was or
is employed by the Company or any Affiliate, or induce such person to accept
employment other than with the Company or any Affiliate.
8. INVENTIONS. Executive hereby agrees that any and all improvements,
inventions, discoveries, developments, creations, formulae, processes, methods
or designs, and any documents, things, or information related thereto, whether
patentable, copyrightable or not or not (individually and collectively, "Work
Product") within the scope of or pertinent to any field of business or research
in which the Company or any Affiliate is engaged or (if such is known to or
ascertainable by Executive) considering engaging, which Executive may conceive
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or make, or may have conceived or made during Executive's employment with the
Company, whether alone or with others, at any time within or without normal
business hours, shall be and remain the exclusive property of the Company.
Company shall have the full right to use, assign, license or transfer all rights
to or relating to Work Product. Executive shall, whenever requested to do so by
the Company (whether during Executive's employment or thereafter), at the
Company's expense, execute any and all applications, assignments or other
instruments, and do all other things (including giving testimony in any legal
proceeding) which the Company deems necessary or appropriate in order to (a)
apply for, obtain, maintain, enforce, or defend letters patent or copyright
registrations of the United States of America or any other country for any Work
Product, or (b) assign, transfer, convey or otherwise make available to the
Company any right, title or interest in which Executive might otherwise have in
any work product. Executive shall promptly communicate, disclose, and upon
request, report upon and deliver all Work Product to the Company, and shall not
use or permit any Work Product to be used for any purpose other than on the
behalf of the Company, whether during the Executive's employment or thereafter.
9. ARBITRATION. Any dispute arising under this agreement shall be arbitrated in
accordance with the rules and protocols of the American Arbitration Association
and venued in the County of New York, City and State of New York, judgment
thereupon to be entered in any court of competent jurisdiction. Notwithstanding
the above, the Company shall not be required to arbitrate any dispute arising
under the foregoing paragraphs 5, 6, 7, or 8 but shall have the right to
institute judicial proceedings in a court of competent jurisdiction within the
State of New York with respect to such dispute or claim. Executive and Company
hereby consent to, and waive any objection to, the personal jurisdiction and
venue of the aforesaid Courts, and waive any claim that the aforesaid courts
constitute an inconvenient forum. If such judicial proceedings are instituted,
the parties agree that such proceedings shall not be stayed pending the outcome
of any arbitration proceeding hereunder.
10. ADDITIONAL OBLIGATIONS. Both during and after the Term, Executive shall,
upon reasonable notice, furnish the Company with such information as may be in
Executive's possession, and cooperate with the Company, as may be reasonably
requested by the Company (and, after the Term, with due consideration for
Executive's obligations with respect to any new employment or business activity)
in connection with any litigation arbitration or other proceeding in which the
Company or any Affiliate is involved or as to which there is a material
possibility that the Company or an Affiliate maby be involved. The Company shall
reimburse Executive for all reasonable expenses incurred by Executive in
fulfilling Executive's obligations under this paragraph 10.
11. NOTICE. Any notice or other communication required or permitted under this
Agreement by either party hereto to the other shall be in writing, and shall be
deemed effective upon (a) personal delivery, if delivered by hand, (b) three
days after date of deposit in the United States mails, postage prepaid, if
mailed by certified or registered mail, or (c) the next business day, if sent by
a prepaid overnight courier service, and in each case addressed as follows:
IF TO EXECUTIVE: IF TO THE COMPANY: WITH A COPY TO:
Xxx Xxxxxxx 0000 Xxxxxxxx Xxxx Xxxxxx X. Xxxxxxx, Esq.
0000 Xxxxxxxx #00X Xxxxx 00-X 00 Xxxxx Xxxxx Xxxx, Xxxxx 0
Xxx Xxxx, XX 00000 Xxxxxxxx, Georgia 30907-0401 Xxxx Xxxx, Xxx Xxxx 00000
Either party may change the address or addresses to which notices are to be sent
by giving notice of such change of address in the manner provided by this
paragraph 11.
12. ENTIRE AGREEMENT. This Agreement represents the entire agreement between the
Company and Executive with respect to Executive's employment with the Company,
and supersedes and is in full substitution for any and all prior agreements or
understandings, whether oral or written, relating to Executive's employment.
13. AMENDMENT. This Agreement may not be canceled, changed, modified or amended
orally, and no cancellation, change, modification, or amendment hereof shall be
effective or binding unless in a written instrument duly executed by the Company
and the Executive. No provision of this Agreement may be waived, similarly,
without the express written consent of both parties.
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14. NO WAIVER. The failure at any time either of the Company or the Executive to
require the performance by the other of any provision of this Agreement shall in
no way affect the full right of such party to require such performance at any
time thereafter, nor shall the waiver by either the Company or the Executive of
any breach of any provision of this agreement be taken or held to constitute the
waiver of any succeeding breach of such or any other provision of this
Agreement.
15. ASSIGNMENT. This Agreement is binding upon and for the benefit of the
Company and Executive and their respective heirs, successors, executors,
administrators, and other legal representatives. Neither this Agreement nor any
right or obligation hereunder may be sold, transferred, assigned, or pledged by
the Company (except to an Affiliate) or by Executive without the prior consent
of the other. However, nothing contained in this Agreement shall preclude the
Company from consolidating or merging into or with, or transferring all or
substantially all of its assets to, another entity which assumes this Agreement
and all obligations and undertakings of the Company hereunder.
16. INTERPRETATION. If any court of competent jurisdiction shall hold any of the
restrictions set forth in paragraph 6 above to be unreasonable as to time,
geographical area, or otherwise, said restrictions shall be deemed reduced to
the extent necessary in the opinion of such court to make their application
reasonable
17. NO CONFLICT. Executive represents and warrants that Executive is not subject
to any agreement, order, judgment or decree of any kind which would prevent
Executive from entering into this Agreement or performing fully Executive's
obligations hereunder.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
by residents of such state, and fully to be performed in such state or choice of
law provisions.
19. EXECUTION. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
20. SURVIVAL. Executive's obligations as set forth in paragraphs 5, 6, 7, 8, and
9, above, represent independent covenants by which Executive is and shall remain
bound notwithstanding any breach or claim of breach by the Company, and shall
survive the termination or expiration of this Agreement.
21. HEADINGS. The headings contained in this Agreement are for reference
purposes only, and shall not affect the meaning or interpretation of this
Agreement.
22. INDEMNIFICATION. The Company agrees to indemnify and hold harmless the
Executive against any liability, claims, damages, judgments and expenses to
which Executive may become subject arising out of Executive's performance of
this Agreement; provided, however, that the Company will not be liable if any
such liability, claims, damages, judgments or expenses arise out of Executive's
willful neglect or illegal conduct.
IN WITNESS WHEREOF, the Company and Executive have executed this Agreement as of
the date first written above.
HOM Corporation
By: /s/ Xxxx Xxxxxxx /s/ Xxx Xxxxxxx
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Xxxx Xxxxxxx, Director Xxx Xxxxxxx, Individually
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