EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 9th day of August , 1999 between
XxxxXXX.xxx, Inc., a Delaware corporation (the "Corporation"), and Xxx X. XxXxxx
(the "Employee").
WHEREAS, the Corporation is engaged as the leading Internet portal for
telecommunications e-commerce business (the "Business"); and
WHEREAS, the Corporation desires to employ the Employee upon the terms
and conditions hereinafter set forth, and the Employee desires to accept such
employment;
NOW, THEREFORE, it is agreed as follows:
1) EMPLOYMENT. The Corporation hereby employs the Employee, and the Employee
accepts employment with the Corporation, as Vice President, Customer Service
2) SCOPE OF DUTIES. The Employee shall perform all duties required hereunder
fully, professionally and to the best of the Employee's ability. The duties
of the Employee under this Agreement shall include, within the context of
available funds, but not be limited to, the following:
a. Organize and manage the customer service function for the
company with the objective of having one day response to
e-mails consistently by December 1, same day response by
January 1 and two hour response for 35% of e-mails by March
31, 2000 for e-mails received by 3PM.
b. Staff up to provide 24/7 coverage no later than May 1, 2000.
c. Develop procedures and training manuals by September 1 for
new customer service associates
d. Evaluate and recommend a new e-mail system by January 1,
2000, and have it installed by April 1 with the objective of
making the handling of e-mails more automated, more
efficient, and more manageable.
e. In conjunction with Hernan, John, a new hire or a consultant
develop a data warehousing approach to track and identify
customer usage and billing amounts and changes (March 31,
2000); characteristics of customers useful for our promotion,
and for use in targeted advertising
f. Set up an outbound calling/e-mail function to promote our
service to our current customers, answer questions, develop a
better understanding our customers and how we can increase
calls and revenues in total and by customer.
g. Contribute to the overall management of the company
h. Other tasks that will be mutually agreed upon.
3) COMPENSATION. As the Employee's entire compensation for all services
rendered to the Corporation hereunder, the Employee shall receive such
compensation as
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specified below:
a. Base Salary: The Corporation shall pay the Employee a base
yearly salary $120,000
b. Annual Bonus: The Employee will be eligible for an annual
bonus of up to 20% of base salary split between a 6 month
date and 1year date.
c. Option Plan: Employee shall receive an options to purchase
33,000 shares of the Corporation's stock at $2.75 a share
pursuant to the Corporation's Stock Option Plan. The first
11,000 shares will be available to be purchased 12 months
after the date of this agreement. Additionally, on the
expiration date of the first and second renewal Terms of this
Agreement, Employee shall receive in each instance an
additional option to purchase 11,000 shares of stock at $2.75
a share (collectively, all options are referred to herein as
the "Options"). Unless exercised, the Options shall expire on
the earlier of termination of the Employee's employment with
the Corporation or ten (10) years from the date hereof. The
parties agree that the granting of Options herein do not
impact the Employees status as an employee of the
Corporation.
4) EXCLUSIVE SERVICE. During the term of this Agreement, the Employee shall
not, either directly or indirectly, be engaged by any person or entity other
than the Corporation, or otherwise make any commitments or engage in any
activities which may conflict with the performance of the Employee's
services hereunder.
5) COPYRIGHT. The Employee hereby acknowledges and agrees that all services
rendered hereunder shall be rendered as an "employee for hire" of the
Corporation as such term is defined in the Copyright Act of the United
States, and that all results and proceeds of the Employee's services
hereunder shall be and at all times remain the sole and exclusive property
of the Corporation, forever free and clear of any claims of the Employee,
the Employee's heirs, successors, representatives or assigns. The Employee
hereby sells and assigns to the Corporation such results and proceeds,
including the copyright therein for its full term and any extensions and
renewals thereof, to the extent such results and proceeds are not "works for
hire" within the meaning of said Copyright Act.
6) BUSINESS STANDARDS. The Employee shall perform all duties under this
Agreement in accordance with the highest standards of industry practice as
may from time to time be applicable during the term hereof.
7) BENEFITS. The Employee shall have the option to participate in and
contribute to the Corporations health insurance and disability plan, as
these may be provided by Management.
8) VACATIONS. The Employee shall be entitled to three (3) weeks paid vacation
at such reasonable times as shall be approved by Management.
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9) COVENANT OF EMPLOYEE. The Employee acknowledges that the Employee's work
will give the Employee access to the confidential affairs and proprietary
information of the Corporation. Therefore, the agreements and covenants of
the Employee contained in this Section 9 are essential to the business and
goodwill of the Corporation and the Corporation would not have entered into
this Agreement but for the covenants and agreements set forth in this
Section 9. Accordingly, the Employee covenants and agrees that:
a. By and in consideration for the compensation and benefits to
be provided by the Corporation hereunder, the Employee agrees
that, during a period commencing on the date hereof and
ending three (3) years following the date upon which the
Employee shall cease to be an employee of the Corporation and
its affiliates (the "Restricted Period"), the Employee shall
not , directly or indirectly, (1) engage in any elements of
the Business, or otherwise compete with the Corporation, for
the Employees own account, and (2) render any services to any
person, corporation, partnership or other entity engaged in
an element of the Business;
b. During and after the Restricted Period, the Employee shall
keep secret and retain in strictest confidence, and shall not
use for Employee's benefit or the benefit of others, except
in connection with the business and affairs of the
Corporation, all confidential matters relating to the
Company's Business, including without limitation information
relating to customers, clients, suppliers, proprietary
technology, sources of supply, customer list, rates,
commissions paid, or other data and information about the
Corporation or its Business, except with the Corporations
prior written consent.
c. During the Restrictive Period, Employee shall not make
duplicate copies of the Corporation's office keys or provide
access to any of the Corporation's information to a third
party (particularly database information) without the prior
written consent of the Corporation.
d. The Employee also covenants that she will deliver promptly to
the Company on termination of employment with the Corporation
for any reason, all memoranda, manuals, notes, records, data,
databases, reports and other documents in any form
whatsoever, related to the Corporation's Business, which the
Employee obtained while employed and which Employee may have
under her control.
e. The Employee acknowledges and agrees that any breach by her
of any of the provisions of Section 9 would result in
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irreparable injury and damage for which money damages would
not provide adequate remedy. Therefore, if the Employee
beaches, or threatens to commit a breach of, any of the
provisions of Section 9, the Corporation shall have the
following rights and remedies: the rights and remedy to have
the specified covenants specifically enforced by any court
having equity jurisdiction and the right and remedy to
require the Employee to account for any pay over to the
Corporation all compensation, profits, monies, accruals,
increments or other benefits derived or received by her as
the result of any transactions constituting a breach of the
restrictive covenants.
10) ILLNESS; COMPENSATION CONTINUATION. The Employee is authorized to take up-to
six (6) good faith sick days during the Term of this Agreement. The
Corporation shall have the right to terminate this Agreement in the event
the Employee is unable, because of any illness or physical incapacity, to
perform the duties set forth herein for a period of time in excess of the
allowable sick days and vacation days.
11) TERM AND TERMINATION.
a. The term of this Agreement shall commence on the date hereof
and shall expire on the last day of the twelfth month, (the
"Term") and shall thereafter be automatically renewed from
year to year unless terminated by mutual agreement of the
parties in writing or by either party giving not less than
sixty (60) days written notice to the other party specifying
the date of termination.
b. Notwithstanding the termination of this Agreement, the
parties shall be required to carry out any provisions hereof
which contemplate performance by them subsequent to such
termination, and such termination shall not affect any
liability or other obligation which shall have accrued prior
to such termination, including, without limitation, any
liability for loss or damage on account of default.
c. Upon the termination of the Employee's employment hereunder
for any reason whatsoever other than unlawful conduct, the
Corporation nevertheless may pay to the Employee or, in the
event of the Employee's death or mental incompetence, to the
Employee's personal representative, compensation in respect
of services rendered during the term of this Agreement, in
such amounts as shall be determined by the Board of
Directors.
12) ASSIGNMENT PROHIBITED. The services called for by the agreement are personal
in nature and may not be assigned or delegated by the Employee. Any
purported assignment contrary to the foregoing is and shall be null and
void.
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13) MISCELLANEOUS.
a. This Agreement sets forth the entire understanding of the
parties with respect to the Employee's engagement, and
supersedes any and all prior agreements, whether oral or
written.
b. No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties, except as
herein may otherwise be provided.
c. Neither party hereto shall be deemed to waive any rights
arising by virtue of this Agreement unless such waiver is in
writing, and no such waiver shall be deemed to be a
continuing waiver of the right(s) referred to in such writing
or to waive any other rights hereunder.
d. The paragraph headings used in this Agreement are included
solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
e. If any portion of this Agreement is found to be invalid or
unenforceable, the parties agree that such provisions be
enforced to the greatest extent permitted by law and the
remaining portions shall remain in effect.
f. This Agreement, its interpretation, performance or any breach
thereof, shall be construed in accordance with, and all
questions with respect thereto shall be determined by, the
laws of the State of New York applicable to contracts entered
into and wholly to be performed within said state. Any
controversy or claim arising out of or relating to this
Agreement or the breach thereof shall be settled by
arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and by judgment
upon the award rendered by the arbitrator(s) may be entered
into any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
XxxxXXX.xxx, Inc. ("Corporation")
By: s/ Xxxxx Xxxxxxxx
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Title: COO
Xxx X. XxXxxx
By: s/ Xxx XxXxxx
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