EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of March 1, 1999
is entered into by and between eSYNCH CORPORATION, a Delaware corporation
having its principal office at 0000 Xxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000
(the "Company"), and Xxx Xxxxxxxxx, an individual (the "Executive").
WlTNESSETH
WHEREAS, the Executive and the Company desire to enter this Agreement
to confirm the terms and conditions on which the Company will employ
the Executive;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the Company and the Executive
agree as follows:
1. Employment. The Company hereby employs the Executive, and the Executive
hereby accepts employment with the Company, for the term set forth in Section
2 below, in the position and with the duties and responsibilities set forth
in Section 3 below, and upon the other terms and conditions hereinafter
stated.
2. Term. The term of employment shall commence as of the date hereof and
shall end when terminated pursuant to Section 6 below. The period described
above shall be hereinafter referred to as the "Term of Employment."
3. Position, Duties, Responsibilities and Authority.
(a) During the Term of Employment, the Executive shall serve as Chief
Executive Officer of the Company, and shall report and be responsible
to the Board of Directors of the Company. During the Term of
Employment, the Executive shall have the duties, responsibilities
and authority as shall be determined from time to time by the Board of
Directors of the Company.
(b) Throughout the Term of Employment, the Executive shall devote his full
business time and attention to the business of the Company.
4. Base Compensation. During the Term of Employment, the Executive shall
receive base compensation at an annual rate of not less than
One Hundred Fifty Thousand Dollars ($150,000), to be paid in accordance
with the Company's normal procedure for compensation of its senior
executives, but not less frequently than monthly. At the end of each
calendar year during the Term of Employment, the Executive's
base compensation shall be reviewed by the Board of Directors of the
Company, on the basis of the performance of the Executive and the
profitability of the Company.
5. Employee Benefits, Perquisites and Expenses. During the Term of Employment,
the Executive shall be entitled to participate in all benefit plans,
programs or practices maintained by the Company for senior executives
or other employees of the Company on the date hereof and any other such
benefit plans, programs or practices from time to time in effect, subject
to the terms thereof. Without limiting the generality of the foregoing, the
Executive shall be entitled to the following:
(a) The company hereby grants the executive (250,000) shares of eSYNCH
company options that are immediately vested at a exercise price
of $1.00 per share as of 1/10/99
(b) Three (3) weeks of paid vacation in each calendar year during
the Term of Employment subject to the accrual policies of the Company
currently in effect or hereafter approved by the Company's Board of
Directors; plus such holidays, sick leave and other time off as are
established by the policies of the Company currently in effect or
hereafter approved by the Company's Board of Directors;
(c) Reimbursement for all reasonable and documented expenses incurred by
the Executive in connection with the performance of his duties
hereunder, all in accordance with the Company's polily with
respect to such reimbursement;
(d) Medical, dental and other supplemental health benefits, life
insurance benefits for the Executive and his dependents, accidental
death and dismemberment benefits for the Executive, and long-term
disability benefits, at least as favorable to the Executive as those
currently in effect;
(e) Participation in the Company's 401(k) plan, and related matching
program as currently in effect;
(f) Payment of personal tax planning and preparation expenses up to a
maximum of Fifteen Hundred Dollars ($1,500) per year;
(g) A reasonable car allowance or a company car of the make and
type approved by the Board of Directors of the Company but not less
than $500 a month.
6. Termination of Employment. The Term of Employment shall terminate upon
the occurrence of any of the following events:
(a) The Executive may terminate his employment upon giving the
Company written notice thirty (30) days in advance of the
proposed date of termination.
(b) The Executive's employment shall terminate automatically
upon the death of Executive.
(c) The Company may terminate the Executive's employment at any
time for cause by delivering to the Executive a certified
copy of a resolution of the Board of Directors of the Company
finding that the Executive committed an act or omission
constituting cause hereunder. As used herein, the term
"cause" shall mean:
(i) Misappropriation of any material funds or property of
the Company, or any act or acts of intentional dishonesty
relating to the executive's employment resulting or
intended to result in direct or Indirect personal gain or
enrichment at the expense of the Company;
(ii) Acting in a manner which is substantially detrimental
or substantially damaging to the Company's reputation,
business operations, prospects or relations with its employees,
suppliers or customers, after receipt of written notice
thereof from the Board of Directors of the Company and a
reasonable opportunity to so remedy such acts; or
(iii) Refusing to perform in material respects his duties
hereunder (other than as a result of any temporary or permanent
mental or physical impairment as certified by a physician
reasonably acceptable to the Company), after receipt of written
notice thereof from the Board of Directors of the Company and a
reasonable opportunity to so perform such duties.
(d) However, notwithstanding any of the above, the Company may
terminate the Executive's employment without cause at any
time and for any reason by giving the Executive written notice (in
accordance with the notice provisions contained in Section 9)
from the Board of Directors of the Company at least thirty (30)
days in advance of the date on which the termination is to
become effective.
7. Obligations and Payments Upon Termination.
(a) Upon any termination of employment pursuant to Section 6, the E
wxecutive and the Company shall have no further obligation to the
other under this Agreement except with respect to the provisions
of this Section 7.
(b) Upon any termination of employment under Sections 6(a), 6(b) or
6(c), the Company shall pay the Executive in a lump sum within ten
(10) days following such termination (or such earlier date required
by law) an amount equal to the pro-rata amount of the base
compensation owed to the Executive as of the effective date
of the termination (as well as any accrued but unpaid vacation)
as he may be entitled to receive up to the date of termination.
(c) Upon any termination of employment under Section 6(d), the Company
shall make payment to the Executive in the amounts and at the times
set forth in Section 7(b); and, in addition:
(i) the Company shall pay the Executive in a lump sum within ten
(10) days following such termination an additional amount
equal to twelve (12) months of his base compensation;
(ii) the Company shall continue to provide to the Executive the
employee benefits, perquisites and expenses identified
in Section 5(c) through 5(f) hereof for the twelve (12)
month period following the date of termination;
(iii) the Company shall repay all loans and other obligations
payable to the Executive in cash within ten (10) days
following such termination; and
(iv) the Company shall repurchase from the Executive all shares of
capital stock, options and warrants of the Company held by
him or his affiliates at the current 30 day average market
trading price prior to the date of delivery notice of the
Executives termination in a lump sum in cash within ten (10)
days following the effective date of termination.
(d) Provided that the Company repurchases all shares of capital
stock, options and warrants of the Company held by the
Executive or his affiliates pursuant to the this agreement
(whether such repurchase occurs as a result of termination
without cause or termination for any other reason) and, to
the extent applicable, in accordance with Section 7(c)(iv) of
this Agreement, the Executive hereby agrees that, from and
after the date on which the closing of such repurchase occurs
and continuing for a period of two (2) years thereafter, he
will not, directly or indirectly, engage in any business,
or have any interest in, any corporation, partnership,
proprietorship, firm, Association or business, which
engages in any activities competitive with the products
being licensed or sold by the Company or solicit and/or
recruit the company's customers, suppliers, or personnel
at the time of such repurchase. This covenant shall
apply in each jurisdiction in which the Company licenses or
sells any products at the time of such repurchase
Notwithstanding the foregoing, this covenant shall not restrict the ability
of the Executive to own up to 5% of the shares of capital stock of any public
company.
8. AMENDMENT OR MODIFICATION; WAIVER. No provision of this Agreement may
be amended, modified or waived unless such amendment, modification or
waiver is authorized by the Board of Directors of the Company and is
agreed to in writing, signed by the Executive and by an officer of the
Company (other than the Executive) thereunto duly authorized. Except as
otherwise specifically provided in this Agreement, no waiver by any party
hereto of any breach by any other party hereto of any condition or
provision of this Agreement to be performed by such other party shall
be deemed a waiver of a subsequent breach of such condition or provision
or a waiver of a similar or dissimilar provision or condition at the same
or at any prior or subsequent time; nor shall the receipt or acceptance of
compensation or other benefits following any termination of the Executive's
employment be deemed a waiver of any condition or provision thereof.
9. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this agreement shall nevertheless remain
in full force and effect. If any provision is held invalid or
unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
10. CHOICE OF LAW. The formation, construction and performance of this
agreement shall be construed in accordance with the laws of California.
11. INTEGRATION. This Agreement contains the entire agreement between the
parties and supercedes all prior oral and written agreements,
understandings, commitments and practices between them, including all prior
employment agreements, whether or not fully performed by Executive before
the date of this Agreement. No oral modifications, express or implied, may
alter or vary the terms of this Agreement.
12. VENUE. Any action brought to enforce the terms of this agreement shall
be commenced, prosecuted and defended exclusively in the State or Federal
court of the State of California located in Orange County, California.
13. ATTORNEY'S FEES. In the event of any legal action (including any appeal
of a judgement) in connection with the Agreement, the prevailing party
shall be entitled to reimbursement of reasonable attorneys' fees and
costs and expenses (including court costs) incurred in connection there
with.
IN WITNESS WHEREOF, the Executive and the Company, by a duly authorized
officer of the Company, have executed this Employment Agreement as of
the first day of March, 1999
COMPANY
eSYNCH CORPORATION (Board of Directors)
By
________________________________________
By
________________________________________
By
________________________________________
By
________________________________________
EXECUTIVE
___________________________________
Xxx Xxxxxxxxx, an individual
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of March 1, 1999
is entered into by and between eSYNCH CORPORATION, a Delaware
corporation having its principal office at 0000 Xxxxxx Xxxxx, Xxxxxxx
Xxxxx, XX 00000
(the "Company"), and Xxxxxx X. Xxxxxxx, an individual (the "Executive").
WlTNESSETH
WHEREAS, the Executive and the Company desire to enter this Agreement
to confirm the terms and conditions on which the Company will employ
the Executive;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt
and sufficiency of which hereby are acknowledged, the Company and the
Executive agree as follows:
1. Employment. The Company hereby employs the Executive, and
the Executive hereby accepts employment with the Company, for the term
set forth in Section 2 below, in the position and with the duties and
responsibilities set forth in Section 3 below, and upon the other terms
and conditions hereinafter stated.
2. Term. The term of employment shall commence as of the date hereof
and shall end when terminated pursuant to Section 6 below. The period
described above shall be hereinafter referred to as the "Term of
Employment."
3. Position, Duties, Responsibilities and Authority.
(a) During the Term of Employment, the Executive shall serve as
President and Chief Operating Officer of the Company, and shall report
and be responsible to the Chief Executive Officer and the Board of
Directors of the Company. During the Term of Employment, the Executive
shall have the duties, responsibilities and authority as shall be
determined from time to time by the Chief Executive Officer and the
Board of Directors of the Company.
(b) Throughout the Term of Employment, the Executive shall
devote his full business time and attention to the business of the
Company.
4. Base Compensation. During the Term of Employment, the Executive
shall receive base compensation at an annual rate of not less than One
Hundred Fifty Thousand Dollars ($150,000), to be paid in accordance
with the Company's normal procedure for compensation of its senior
executives, but not less frequently than monthly. At the end of each
calendar year during the Term of Employment, the Executive's base
compensation shall be reviewed by the Board of Directors of the
Company, on the basis of the performance of the Executive and the
profitability of the Company.
5. Employee Benefits, Perquisites and Expenses. During the Term of
Employment, the Executive shall be entitled to participate in all
benefit plans, programs or practices maintained by the Company for
senior executives or other employees of the Company on the date hereof
and any other such benefit plans, programs or practices from time to
time in effect, subject to the terms thereof. Without limiting the
generality of the foregoing, the Executive shall be entitled to the
following:
(a) The company hereby grants the executive (400,000) four-hundred
thousand shares of eSYNCH stock at a purchase price of (5)
five cents per share and (250,000) shares of eSYNCH company
options that are immediately vested at a exercise price of $1.00 per
share as of 1/10/99.
(b) Three (3) weeks of paid vacation in each calendar year during the
Term of Employment subject to the accrual policies of the Company
currently in effect or hereafter approved by the Company's Board of
Directors; plus such holidays, sick leave and other time off as are
established by the policies of the Company currently in effect or
hereafter approved by the Company's Board of Directors;
(c) Reimbursement for all reasonable and documented expenses incurred
by the Executive in connection with the performance of his duties
hereunder, all in accordance with the Company's policy with respect
to such reimbursement;
(d) Medical, dental and other supplemental health benefits, life
insurance benefits for the Executive and his dependents, accidental
death and dismemberment benefits for the Executive, and long-term
disability benefits, at least as favorable to the Executive as
those currently in effect;
(e) Participation in the Company's 401(k) plan, and related matching
program as currently in effect;
(f) Payment of personal tax planning and preparation expenses up to a
maximum of Fifteen Hundred Dollars ($1,500) per year;
(g) A reasonable car allowance or a company car of the make and
type approved by the Board of Directors of the Company but not
less than $500 a month.
6. Termination of Employment. The Term of Employment shall terminate
upon the occurrence of any of the following events:
(a) The Executive may terminate his employment upon giving the
Company written notice thirty (30) days in advance of the proposed
date of termination.
(b) The Executive's employment shall terminate automatically
upon the death of Executive.
(c) The Company may terminate the Executive's employment at any
time for cause by delivering to the Executive a certified copy
of a resolution of the Board of Directors of the Company finding
that the Executive committed an act or omission constituting
cause hereunder. As used herein, the term "cause" shall mean:
(i) Misappropriation of any material funds or property of
the Company, or any act or acts of intentional dishonesty
relating to the Executive's employment resulting or intended to
result in direct or indirect personal gain or enrichment at the
expense of the Company;
(ii) Acting in a manner which is substantially detrimental
or substantially damaging to the Company's reputation, business
operations, prospects or relations with its employees, suppliers
or customers, after receipt of written notice thereof from the
Board of Directors of the Company and a reasonable opportunity to
so remedy such acts; or
(iii) Refusing to perform in material respects his duties
hereunder (other than as a result of any temporary or permanent
mental or physical impairment as certified by a physician
reasonably acceptable to the Company), after receipt of written
notice thereof from the Board of Directors of the Company and a
reasonable opportunity to so perform such duties.
(d) However, notwithstanding any of the above, the Company may
terminate the Executive's employment without cause at any time
and for any reason by giving the Executive written notice (in
accordance with the notice provisions contained in Section 9)
from the Board of Directors of the Company at least thirty (30)
days in advance of the date on which the termination is to become
effective.
7. Obligations and Payments Upon Termination.
(a) Upon any termination of employment pursuant to Section 6,
the Executive and the Company shall have no further obligation
to the other under this Agreement except with respect to the
provisions of this Section 7.
(b) Upon any termination of employment under Sections 6(a), 6(b)
or 6(c), the Company shall pay the Executive in a lump sum
within ten (10) days following such termination (or such
earlier date required by law) an amount equal to the pro-rata
amount of the base compensation owed to the Executive as of
the effective date of the termination (as well as
any accrued but unpaid vacation) as he may be entitled to
receive up to the date of termination.
(c) Upon any termination of employment under Section 6(d), the
Company shall make payment to the Executive in the amounts and
at the times set forth in Section 7(b); and, in addition:
(i) the Company shall pay the Executive in a lump sum
within ten (10) days following such termination an additional
amount equal to twelve (12) months of his base compensation;
(ii) the Company shall continue to provide to the Executive
the employee benefits, perquisites and expenses identified in
Section 5(c) through 5(f) hereof for the twelve (12) month
period following the date of termination;
(iii) the Company shall repay all loans and other obligations
payable to the Executive in cash within ten (10) days following
such termination; and
(iv) the Company shall repurchase from the Executive all shares
of capital stock, options and warrants of the Company held by
him or his affiliates at the current 30 day average market
trading price prior to the date of delivery notice of the
Executives termination in a lump sum in cash within ten
(10) days following the effective date of termination.
(d) Provided that the Company repurchases all shares of capital
stock, options and warrants of the Company held by the Executive
or his affiliates pursuant to the this agreement (whether such
repurchase occurs as a result of termination without cause or
termination for any other reason) and, to the extent applicable,
in accordance with Section 7(c)(iv) of this Agreement, the
Executive hereby agrees that, from and after the date on which
the closing of such repurchase occurs and continuing for a period
of two (2) years thereafter, he will not, directly or indirectly,
engage in any business, or have any interest in, any corporation,
partnership, proprietorship, firm, Association or business, which
engages in any activities competitive with the products being
licensed or sold by the Company or solicit and/or recruit the
company's customers, suppliers, or personnel at the time of such
repurchase. This covenant shall apply in each jurisdiction in
which the Company licenses or sells any products at the time of
such repurchase. Notwithstanding the foregoing, this covenant
shall not restrict the ability of the Executive to own up to 5%
of the shares of capital stock of any public company.
8. AMENDMENT OR MODIFICATION; WAIVER. No provision of this
Agreement may be amended, modified or waived unless such
amendment, modification or waiver is authorized by the Board of
Directors of the Company and is agreed to in writing, signed by
the Executive and by an officer of the Company (other than the
Executive) thereunto duly authorized. Except as otherwise
specifically provided in this Agreement, no waiver by any party
hereto of any breach by any other party hereto of any condition or
provision of this Agreement to be performed by such other party
shall be deemed a waiver of a subsequent breach of such condition
or provision or a waiver of a similar or dissimilar provision or
condition at the same or at any prior or subsequent time; nor
shall the receipt or acceptance of compensation or other benefits
following any termination of the Executive's employment be deemed
a waiver of any condition or provision hereof.
9. SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable, the remainder of this agreement shall
nevertheless remain in full force and effect. If any provision is
held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and
effect in all other circumstances.
10. CHOICE OF LAW. The formation, construction and performance
of this agreement shall be construed in accordance with the laws
of California.
11. INTEGRATION. This Agreement contains the entire agreement
between the parties and supercedes all prior oral and written
agreements, understandings, commitments and practices between
them, including all prior employment agreements, whether or not
fully performed by Executive before the date of this Agreement.
No oral modifications, express or implied, may alter or vary the
terms of this Agreement.
12. VENUE. Any action brought to enforce the terms of this
agreement shall be commenced, prosecuted and defended exclusively
in the State or Federal court of the State of California located
in Orange County, California.
13. ATTORNEY'S FEES. In the event of any legal action
(including any appeal of a judgement) in connection with the
Agreement, the prevailing party shall be entitled to
reimbursement of reasonable attorneys' fees and costs and
expenses (including court costs) incurred in connection there with.
IN WITNESS WHEREOF, the Executive and the Company, by a duly authorized
officer of the Company, have executed this Employment Agreement as of
the first day of March, 1999
COMPANY
eSYNCH CORPORATION (Board of Directors)
By
_______________________________________
By
_______________________________________
By
_______________________________________
EXECUTIVE
___________________________________
Xxxxxx X Xxxxxxx, an individual
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of April 1, 1999
is entered into by and between eSYNCH CORPORATION, a Delaware
corporation having its principal office at 0000 Xxxxxx Xxxxx, Xxxxxxx
Xxxxx, XX 00000
(the "Company"), and Xxxx Xxxx, an individual (the "Executive").
WlTNESSETH
WHEREAS, the Executive and the and the Company desire to enter this
Agreement to confirm the terms and conditions on which the Company will
employ the Executive;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt
and sufficiency of which hereby are acknowledged, the Company and the
Executive agree as follows:
1. Employment. The Company hereby employs the Executive, and
the Executive hereby accepts employment with the Company, for the term
set forth in Section 2 below, in the position and with the duties and
responsibilities set forth in Section 3 below, and upon the other terms
and conditions hereinafter stated.
2. Term. The term of employment shall commence as of the date hereof
and shall end when terminated pursuant to Section 6 below. The period
described above shall be hereinafter referred to as the "Term of
Employment."
3. Position, Duties, Responsibilities and Authority.
(a) During the Term of Employment, the Executive shall serve as
Vice-President and Corporate Secretary of the Company, and shall
report and be responsible to the Chief Executive Officer of the
Company. During the Term of Employment, the Executive shall have
the duties, responsibilities and authority as shall be determined
from time to time by the Chief Executive Officer of the Company.
(b) Throughout the Term of Employment, the Executive shall
devote his full business time and attention to the business of the
Company.
4. Base Compensation. During the Term of Employment, the Executive
shall receive base compensation at an annual rate of not less than One
Hundred Ten Thousand Dollars ($110,000), to be paid in accordance with
the Company's normal procedure for compensation of its senior
executives, but not less frequently than monthly. At the end of each
calendar year during the Term of Employment, the Executive's base
compensation shall be reviewed by the Board of Directors of the
Company, on the basis of the performance of the Executive and the
profitability of the Company.
5. Employee Benefits, Perquisites and Expenses. During the Term of
Employment, the Executive shall be entitled to participate in all
benefit plans, programs or practices maintained by the Company for
senior executives or other employees of the Company on the date hereof
and any other such benefit plans, programs or practices from time to
time in effect, subject to the terms thereof. Without limiting the
generality of the foregoing, the Executive shall be entitled to the
following:
(a) Options in conjunction with former option agreement.
(b) Two (2) weeks of paid vacation in each calendar year during the
Term of Employment subject to the accrual policies of the Company
currently in effect or hereafter approved by the Company's Board of
Directors; plus such holidays, sick leave and other time off as are
established by the policies of the Company currently in effect or
hereafter approved by the Company's Board of Directors;
(c) Reimbursement for all reasonable and documented expenses incurred
by the Executive in connection with the performance of his duties
hereunder, all in accordance with the Company's policy with respect
to such reimbursement;
(d) Medical, dental and other supplemental health benefits, life
insurance benefits for the Executive and his dependents, accidental
death and dismemberment benefits for the Executive, and long-term
disability benefits, at least as favorable to the Executive as
those currently in effect;
(e) Participation in the Company's 401(k) plan, and related matching
program as currently in effect;
6. Termination of Employment. The Term of Employment shall terminate
upon the occurrence of any of the following events:
(a) The Executive may terminate his employment upon giving the
Company written notice thirty (30) days in advance of the
proposed date of termination.
(b) The Executive's employment shall terminate automatically
upon the death of Executive.
(c) The Company may terminate the Executive's employment at any
time for cause by delivering to the Executive a letter finding
that the Executive committed an act or omission constituting
cause hereunder. As used herein, the term "cause" shall mean:
(i) Misappropriation of any material funds or property of
the Company, or any act or acts of intentional dishonesty
relating to the Executive's employment resulting or
intended to result in direct or indirect personal gain or
enrichment at the expense of the Company;
(ii) Acting in a manner which is substantially detrimental
or substantially damaging to the Company's reputation,
business operations, prospects or relations with its
employees, suppliers or customers, after receipt of
written notice thereof from the President/COO and a
reasonable opportunity to so remedy such acts; or
(iii) Willfully refusing to perform in material respects his
duties hereunder (other than as a result of any temporary
or permanent mental or physical impairment as certified
by a physician reasonably acceptable to the Company),
after receipt of written notice thereof from the
President/COO of the Company and a reasonable opportunity
to so perform such duties.
(d) The Company may terminate the Executive's employment without
cause at any time and for any reason by giving the Executive
written notice from the President/COO of the Company at least
thirty (30) days in advance of the date on which the termination
is to become effective.
7. Obligations and Payments Upon Termination.
(a) Upon any termination of employment pursuant to Section 6,
the Executive and the Company shall have no further obligation
to the other under this Agreement except with respect to the
provisions of this Section 7.
(b) Upon any termination of employment under Sections 6(a), 6(b)
or 6(c), the Company shall pay the Executive in a lump sum within
ten (10) days following such termination (or such earlier date
required by law) an amount equal to the base compensation provided
under section 4 hereof (as well as any accrued but unpaid vacation)
as he may be entitled to receive up to the date of termination.
(c) Upon any termination of employment under Section 6(d), the
Company shall make payment to the Executive in the amounts and
at the times set forth in Section 7(b); and, in addition:
(i) The Company shall pay the Executive in a lump sum
within ten (10) days following such termination an additional
amount equal to three (3) months of his base compensation;
(ii) The Company shall continue to provide to the Executive
the employee benefits, perquisites and expenses identified in
Section 5(c) through 5(f) hereof for the three (3) month period
following the date of termination;
(iii) The Company shall repay all loans and other obligations
payable to the Executive in cash within ten (10) days following
such termination; and
(iv) The Company shall immediately vest all shares of stock
options and warrants of the Company held by the executive and the
company has the right at the companies option to buy back from
the executive any shares of stock, options and warrants held by
the executive at the current 30 day average market trading price
prior to the date of delivery of the Executive's termination.
(v) The executive has three (3) months from the termination date
in which to exercise these options and/or warrants or they expire.
(d) Provided that the Company repurchases all shares of capital
stock, options and warrants of the Company held by the Executive
or his affiliates pursuant to the this agreement (whether such
repurchase occurs as a result of termination without cause or
termination for any other reason) and, to the extent applicable,
in accordance with Section 7(c)(iv) of this Agreement, the
Executive hereby agrees that, from and after the date on which
the closing of such repurchase occurs and continuing for a period
of two (2) years thereafter, he will not, directly or indirectly,
engage in any business, or have any interest in, any corporation,
partnership, proprietorship, firm, Association or business, which
engages in any activities competitive with the products being
licensed or sold by the Company or solicit and/or recruit the
company's customers, suppliers, or personnel at the time of such
repurchase. This covenant shall apply in each jurisdiction in
which the Company licenses or sells any products at the time of
such repurchase. Notwithstanding the foregoing, this covenant
shall not restrict the ability of the Executive to own up to 5%
of the shares of capital stock of any public company.
8. AMENDMENT OR MODIFICATION; Waiver. No provision of this Agreement
may be amended, modified or waived unless such amendment, modification
or waiver is authorized by the Board of Directors of the Company and is
agreed to in writing, signed by the Executive and by an officer of the
Company (other than the Executive) thereunto duly authorized. Except as
otherwise specifically provided in this Agreement, no waiver by any
party hereto of any breach by any other party hereto of any condition
or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a subsequent breach of such condition or
provision or a waiver of a similar or dissimilar provision or condition
at the same or at any prior or subsequent time; nor shall the receipt
or acceptance of compensation or other benefits following any
termination of the Executive's employment be deemed a waiver of any
condition or provision hereof.
9. SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable, the remainder of this agreement shall
nevertheless remain in full force and effect. If any provision is
held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and
effect in all other circumstances.
10. CHOICE OF LAW. The formation, construction and performance
of this agreement shall be construed in accordance with the laws
of California.
11. INTEGRATION. This Agreement contains the entire agreement
between the parties and supercedes all prior oral and written
agreements, understandings, commitments and practices between
them, including all prior employment agreements, whether or not
fully performed by Executive before the date of this Agreement.
No oral modifications, express or implied, may alter or vary the
terms of this Agreement.
12. VENUE. Any action brought to enforce the terms of this
agreement shall be commenced, prosecuted and defended exclusively
in the State or Federal court of the State of California located
in Orange County, California.
13. ATTORNEY'S FEES. In the event of any legal action
(including any appeal of a judgement) in connection with the
Agreement, the prevailing party shall be entitled to
reimbursement of reasonable attorneys' fees and costs and
expenses (including court costs) incurred in connection there with.
IN WITNESS WHEREOF, the Executive and the Company, by a duly authorized
officer of the Company, have executed this Employment Agreement as of
the first day of April 1999
COMPANY
eSYNCH CORPORATION (Board of Directors)
By
_______________________________________
By
_______________________________________
By
_______________________________________
EXECUTIVE
___________________________________
Xxxx Xxxx, an individual
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of April 1, 1999
is entered into by and between eSYNCH CORPORATION, a Delaware
corporation having its principal office at 0000 Xxxxxx Xxxxx, Xxxxxxx
Xxxxx, XX 00000
(the "Company"), and Xxx Xxxx, an individual (the "Executive").
WlTNESSETH
WHEREAS, the Executive and the and the Company desire to enter this
Agreement to confirm the terms and conditions on which the Company will
employ the Executive;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt
and sufficiency of which hereby are acknowledged, the Company and the
Executive agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive, and
the Executive hereby accepts employment with the Company, for the term
set forth in Section 2 below, in the position and with the duties and
responsibilities set forth in Section 3 below, and upon the other terms
and conditions hereinafter stated.
2. TERM. The term of employment shall commence as of the date hereof
and shall end when terminated pursuant to Section 6 below. The period
described above shall be hereinafter referred to as the "Term of
Employment."
3. POSITION, DUTIES, RESPONSIBILITIES AND AUTHORITY.
(a) During the Term of Employment, the Executive shall serve as
Vice-President and shall report and be responsible to the President and
COO of the Company. During the Term of Employment, the Executive shall
have the duties, responsibilities and authority as shall be determined
from time to time by the President and COO of the Company.
(b) Throughout the Term of Employment, the Executive shall
devote his full business time and attention to the business of the
Company.
4. BASE COMPENSATION. During the Term of Employment, the Executive
shall receive base compensation at an annual rate of not less than One
Hundred Ten Thousand Dollars ($110,000), to be paid in accordance with
the Company's normal procedure for compensation of its senior
executives, but not less frequently than monthly. At the end of each
calendar year during the Term of Employment, the Executive's base
compensation shall be reviewed by the Board of Directors of the
Company, on the basis of the performance of the Executive and the
profitability of the Company.
5. EMPLOYEE BENEFITS, PERQUISITES AND EQPENSES. During the Term of
Employment, the Executive shall be entitled to participate in all
benefit plans, programs or practices maintained by the Company for
senior executives or other employees of the Company on the date hereof
and any other such benefit plans, programs or practices from time to
time in effect, subject to the terms thereof. Without limiting the
generality of the foregoing, the Executive shall be entitled to the
following:
(a) Options in conjunction with former option agreement.
(b) Two (2) weeks of paid vacation in each calendar year during the
Term of Employment subject to the accrual policies of the Company
currently in effect or hereafter approved by the Company's Board of
Directors; plus such holidays, sick leave and other time off as are
established by the policies of the Company currently in effect or
hereafter approved by the Company's Board of Directors;
(c) Reimbursement for all reasonable and documented expenses incurred
by the Executive in connection with the performance of his duties
hereunder, all in accordance with the Company's policy with respect
to such reimbursement;
(d) Medical, dental and other supplemental health benefits, life
insurance benefits for the Executive and his dependents, accidental
death and dismemberment benefits for the Executive, and long-term
disability benefits, at least as favorable to the Executive as
those currently in effect;
(e) Participation in the Company's 401(k) plan, and related matching
program as currently in effect;
6. TERMINATION OF EMPLOYMNET. The Term of Employment shall terminate
upon the occurrence of any of the following events:
(a) The Executive may terminate his employment upon giving the
Company written notice thirty (30) days in advance of the
proposed date of termination.
(b) The Executive's employment shall terminate automatically
upon the death of Executive.
(c) The Company may terminate the Executive's employment at any
time for cause by delivering to the Executive a letter finding
that the Executive committed an act or omission constituting cause
hereunder. As used herein, the term "cause" shall mean:
(i) Misappropriation of any material funds or property of
the Company, or any act or acts of intentional dishonesty
relating to the Executive's employment resulting or intended to
result in direct or indirect personal gain or enrichment at the
expense of the Company;
(ii) Acting in a manner which is substantially detrimental
or substantially damaging to the Company's reputation, business
operations, prospects or relations with its employees, suppliers
or customers, after receipt of written notice thereof from the
President/COO and a reasonable opportunity to so remedy such
acts; or
(iii) Willfully refusing to perform in material respects his
duties hereunder (other than as a result of any temporary or
permanent mental or physical impairment as certified by a
physician reasonably acceptable to the Company), after receipt of
written notice thereof from the President/COO of the Company and
a reasonable opportunity to so perform such duties.
(d) The Company may terminate the Executive's employment without
cause at any time and for any reason by giving the Executive
written notice from the President/COO of the Company at least
thirty (30) days in advance of the date on which the termination
is to become effective.
7. OBLIGATIONS AND PAYMENTS UPON TERMINATION
(a) Upon any termination of employment pursuant to Section 6,
the Executive and the Company shall have no further obligation
to the other under this Agreement except with respect to the
provisions of this Section 7.
(b) Upon any termination of employment under Sections 6(a), 6(b)
or 6(c), the Company shall pay the Executive in a lump sum within
ten (10) days following such termination (or such earlier date
required by law) an amount equal to the base compensation provided
under section 4 hereof(as well as any accrued but unpaid vacation)
as he may be entitled to receive up to the date of termination.
(c) Upon any termination of employment under Section 6(d), the
Company shall make payment to the Executive in the amounts and at
the times set forth in Section 7(b); and, in addition:
(i) The Company shall pay the Executive in a lump sum
within ten (10) days following such termination an additional
amount equal to three (3) months of his base compensation;
(ii) The Company shall continue to provide to the Executive
the employee benefits, perquisites and expenses identified in
Section 5(c) through 5(f) hereof for the three (3) month period
following the date of termination;
(iii) The Company shall repay all loans and other obligations
payable to the Executive in cash within ten (10) days following
such termination; and
(iv) The Company shall immediately vest all shares of stock
options and warrants of the Company held by the executive and the
company has the right at the companies option to buy back from
the executive any shares of stock, options and warrants held by
the executive at the current 30 day average market trading price
prior to the date of delivery of the Executive's termination.
(v) The executive has three (3) months from the termination
date in which to exercise these options and/or warrants or they
expire.
(d) Provided that the Company repurchases all shares of capital
stock, options and warrants of the Company held by the Executive
or his affiliates pursuant to the this agreement (whether such
repurchase occurs as a result of termination without cause or
termination for any other reason) and, to the extent applicable,
in accordance with Section 7(c)(iv) of this Agreement, the
Executive hereby agrees that, from and after the date on which
the closing of such repurchase occurs and continuing for a period
of two (2) years thereafter, he will not, directly or indirectly,
engage in any business, or have any interest in, any corporation,
partnership, proprietorship, firm, Association or business, which
engages in any activities competitive with the products being
licensed or sold by the Company or solicit and/or recruit the
company's customers, suppliers, or personnel at the time of such
repurchase. This covenant shall apply in each jurisdiction in
which the Company licenses or sells any products at the time of
such repurchase. Notwithstanding the foregoing, this covenant
shall not restrict the ability of the Executive to own up to 5%
of the shares of capital stock of any public company.
8. AMENDMENT OR MODIFICATION; WAIVER. No provision of this Agreement
may be amended, modified or waived unless such amendment,
modification or waiver is authorized by the Board of Directors of
the Company and is agreed to in writing, signed by the Executive
and by an officer of the Company (other than the Executive) thereunto
duly authorized. Except as otherwise specifically provided in this
Agreement, no waiver by any party hereto of any breach by any other
party hereto of any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of a
subsequent breach of such condition or provision or a waiver of a
similar or dissimilar provision or condition at the same or at any
prior or subsequent time; nor shall the receipt or acceptance of
compensation or other benefits following any termination of the
Executive's employment be deemed a waiver of any condition or
provision hereof.
9. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this agreement shall nevertheless remain
in full force and effect. If any provision is held invalid or unenforceable
with respect to particular circumstances, it shall nevertheless remain
in full force and effect in all other circumstances.
10. CHOICE OF LAW. The formation, construction and performance of this
agreement shall be construed in accordance with the laws of California.
11. INTEGRATION. This Agreement contains the entire agreement between the
parties and supercedes all prior oral and written agreements,
understandings, commitments and practices between them, including all
prior employment agreements, whether or not fully performed by Executive
before the date of this Agreement. No oral modifications, express or
implied, may alter or vary the terms of this Agreement.
12. VENUE. Any action brought to enforce the terms of this agreement shall
be commenced, prosecuted and defended exclusively in the State or Federal
court of the State of California located in Orange County, California.
13. ATTORNEY'S FEES. In the event of any legal action (including any appeal
of a judgement) in connection with the Agreement, the prevailing party
shall be entitled to Reimbursement of reasonable attorneys' fees and costs
and expenses (including court costs) incurred in connection there with.
IN WITNESS WHEREOF, the Executive and the Company, by a duly authorized
officer of the Company, have executed this Employment Agreement as of
the first day of April 1999
COMPANY
eSYNCH CORPORATION (Board of Directors)
By
_______________________________________
By
_______________________________________
By
_________________________________________
EXECUTIVE
___________________________________
Xxx Xxxx, an individual
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of April 1, 1999
is entered into by and between eSYNCH CORPORATION, a Delaware
corporation having its principal office at 0000 Xxxxxx Xxxxx, Xxxxxxx
Xxxxx, XX 00000
(the "Company"), and Xxxxxx Xxx, an individual (the "Executive").
WlTNESSETH
WHEREAS, the Executive and the and the Company desire to enter this
Agreement to confirm the terms and conditions on which the Company will
employ the Executive;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt
and sufficiency of which hereby are acknowledged, the Company and the
Executive agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive, and
the Executive hereby accepts employment with the Company, for the term
set forth in Section 2 below, in the position and with the duties and
responsibilities set forth in Section 3 below, and upon the other terms
and conditions hereinafter stated.
2. TERM. The term of employment shall commence as of the date hereof
and shall end when terminated pursuant to Section 6 below. The period
described above shall be hereinafter referred to as the "Term of
Employment."
3. POSITION, DUTIES, RESPONSIBILITIES AND AUTHORITY
(a) During the Term of Employment, the Executive shall serve as
Vice-President and General Manager of the Company, and shall report and
be responsible to the President and Chief Operating Officer of the
Company. During the Term of Employment, the Executive shall have the
duties, responsibilities and authority as shall be determined from time
to time by the President and Chief Operating Officer of the Company.
(b) Throughout the Term of Employment, the Executive shall
devote his full business time and attention to the business of the
Company.
4. BASE COMPENSATION. During the Term of Employment, the Executive
shall receive base compensation at an annual rate of not less than One
Hundred Ten Thousand Dollars ($110,000), to be paid in accordance with
the Company's normal procedure for compensation of its senior
executives, but not less frequently than monthly. At the end of each
calendar year during the Term of Employment, the Executive's base
compensation shall be reviewed by the Board of Directors of the
Company, on the basis of the performance of the Executive and the
profitability of the Company.
5. EMPLOYEE BENEFITS, PEREQUSITIES AND EXPENSES During the Term of
Employment, the Executive shall be entitled to participate in all
benefit plans, programs or practices maintained by the Company for
senior executives or other employees of the Company on the date hereof
and any other such benefit plans, programs or practices from time to
time in effect, subject to the terms thereof. Without limiting the
generality of the foregoing, the Executive shall be entitled to the
following:
(a) The company hereby grants the executive(110,000) one hundred ten
thousand shares of eSYNCH options that are vested over three years
at a exercise price of $1.00 per share as of 1/10/99
(b) Three (3) weeks of paid vacation in each calendar year during the
Term of Employment subject to the accrual policies of the Company
currently in effect or hereafter approved by the Company's Board of
Directors; plus such holidays, sick leave and other time off as are
established by the policies of the Company currently in effect or
hereafter approved by the Company's Board of Directors;
(c) Reimbursement for all reasonable and documented expenses incurred
by the Executive in connection with the performance of his duties
hereunder, all in accordance with the Company's policy with respect
to such reimbursement;
(d) Medical, dental and other supplemental health benefits, life
insurance benefits for the Executive and his dependents, accidental
death and dismemberment benefits for the Executive, and long-term
disability Benefits, at least as favorable to the Executive as
those currently in effect;
(e) Participation in the Company's 401(k) plan, and related matching
program as currently in effect;
6. Termination of Employment. The Term of Employment shall terminate
upon the occurrence of any of the following events:
(a) The Executive may terminate his employment upon giving the
Company written notice thirty (30) days in advance of the
proposed date of termination.
(b) The Executive's employment shall terminate automatically
upon the death of Executive.
(c) The Company may terminate the Executive's employment at any
time for cause by delivering to the Executive a letter finding
that the executive committed an act or omission constituting
cause hereunder. As used herein, the term "cause" shall mean:
(i) Misappropriation of any material funds or property of
the Company, or any act or acts of intentional dishonesty
relating to the Executive's employment resulting or intended to
result in direct or indirect personal gain or enrichment at the
expense of the Company;
(ii) Acting in a manner which is substantially detrimental
or substantially damaging to the Company's reputation, business
operations, prospects or relations with its employees, suppliers
or customers, after receipt of written notice thereof from the
President/COO and a reasonable opportunity to so remedy such
acts; or
(iii) Willfully refusing to perform in material respects his
duties hereunder (other than as a result of any temporary or
permanent mental or physical impairment as certified by a
physician reasonably acceptable to the Company), after receipt of
written notice thereof from the President/COO of the Company and
a reasonable opportunity to so perform such duties.
(d) The Company may terminate the Executive's employment without
cause at any time and for any reason by giving the Executive
written notice from the President/COO of the Company at least
thirty (30) days in advance of the date on which the termination
is to become effective.
7. OBLIGATIONS AND PAYMENTS UPON TERMINATION.
(a) Upon any termination of employment pursuant to Section 6,
the Executive and the Company shall have no further obligation
to the other under this Agreement except with respect to the
provisions of this Section 7.
(b) Upon any termination of employment under Sections 6(a), 6(b)
or 6(c), the Company shall pay the Executive in a lump sum within
ten (10) days following such termination (or such earlier date
required by law) an amount equal to the base compensation provided
under section 4 hereof(as well as any accrued but unpaid vacation)
as he may be Entitled to receive up to the date of termination.
(c) Upon any termination of employment under Section 6(d), the
Company shall make payment to the Executive in the amounts and
at the times set forth in Section 7(b); and, in addition:
(i) The Company shall pay the Executive in a lump sum
within ten (10) days following such termination an additional
amount equal to three (3) months of his base compensation;
(ii) The Company shall continue to provide to the Executive
the employee benefits, perquisites and expenses identified in
Section 5(c) through 5(f) hereof for the three (3) month
period following the date of termination;
(iii) The Company shall repay all loans and other obligations
payable to the Executive in cash within ten (10) days
following such termination; and
(iv) The Company shall immediately vest all shares of stock
options and warrants of the Company held by the executive
and the company has the right at the companies option to buy
back from the executive any shares of stock, options and
warrants held by the executive at the current 30 day average
market trading price prior to the date of delivery of the
Executive's termination.
(v) The executive has three (3) months from the
termination date in which to exercise these options and/or
warrants or they expire.
(d) Provided that the Company repurchases all shares of capital
stock, options and warrants of the Company held by the Executive
pursuant to the this agreement (whether such repurchase occurs as
a result of termination without cause or termination for any
other reason) and, to the extent applicable, in accordance with
Section 7(c)(iv) of this Agreement, the Executive hereby agrees
that, from and after the date on which the closing of such
repurchase occurs and continuing for a period of two years
thereafter, he will not, directly or indirectly, engage in any
business, or have any interest in, any corporation, partnership,
proprietorship, firm, Association or business, which engages in
any activities competitive with the products being licensed or
sold by the Company at the time of such repurchase.
This covenant shall apply in each jurisdiction in which the Company
licenses or sells any products at the time of such repurchase.
Notwithstanding the foregoing, this covenant shall not restrict
the ability of the Executive to own up to 5% of the shares of
capital stock of any public company.
8. AMENDMENT OR MODIFICATION; WAIVER. No provision of this Agreement
may be amended, modified or waived unless such amendment, modification
or waiver is authorized by the Board of Directors of the Company and is
agreed to in writing, signed by the Executive and by an officer of the
Company (other than the Executive) thereunto duly authorized. Except as
otherwise specifically provided in this Agreement, no waiver by any
party hereto of any breach by any other party hereto of any condition
or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a subsequent breach of such condition or
provision or a waiver of a similar or dissimilar provision or condition
at the same or at any prior or subsequent time; nor shall the receipt
or acceptance of compensation or other benefits following any
termination of the Executive's employment be deemed a waiver of any
condition or provision hereof.
9. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this agreement shall nevertheless
remain in full force and effect. If any provision is held invalid or
unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
10. CHOICE OF LAW. The formation, construction and performance of this
agreement shall be construed in accordance with the laws of California.
11. INTEGRATION. This Agreement contains the entire agreement between the
parties and supercedes all prior oral and written agreements,
understandings, commitments and practices between them, including all
prior employment agreements, whether or not fully performed by Executive
before the date of this Agreement. No oral modifications, express or
implied, may alter or vary the terms of this Agreement.
12. VENUE. Any action brought to enforce the terms of this agreement shall
be commenced, prosecuted and defended exclusively in the State or Federal
court of the State of California located in Orange County, California.
13. ATTORNEY'S FEES. In the event of any legal action (including any appeal
of a judgement) in connection with the Agreement, the prevailing party
shall be entitled to reimbursement of reasonable attorneys' fees and costs
and expenses (including court costs) incurred in connection there with.
IN WITNESS WHEREOF, the Executive and the Company, by a duly authorized
officer of the Company, have executed this Employment Agreement as of
the first day of April 1999
COMPANY
eSYNCH CORPORATION (Board of Directors)
By
_______________________________________
By
_______________________________________
By
_______________________________________
EXECUTIVE
___________________________________
Xxxxxx Xxx, an individual
