Exhibit 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
this 1st day of November, 1997, by and between ALLIN COMMUNICATIONS CORPORATION
("Employer"), and XXXX X. XXXXXXXX ("Employee"), a resident of Pennsylvania.
WITNESSETH:
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WHEREAS, Employer desires to employ Employee on a full-time and exclusive
basis and Employee is willing to serve on a full-time and exclusive basis, all
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein
contained and intending to be legally bound hereby, the parties do agree as
follows:
Section 1. Employment. Subject to the terms and conditions of this
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Agreement, Employer agrees to employ Employee as Vice President of Finance of
Employer, and Employee accepts such employment. Employee will diligently and
faithfully and in conformity with the directions of the President and/or the
Board of Directors of Employer perform the duties of his employment hereunder,
and he will devote his best efforts and attention on a full-time basis to the
performance of said duties.
Section 2. Employment Period.
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(a) Term. The term of Employee's employment hereunder
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Shall commence on November 1, 1997 and shall continue through October 31, 2000
unless sooner terminated in accordance with the terms of Section 2 ("Employment
Period").
(b) The Employment period shall terminate upon (i)
Employee's death or, unless waived by Employer, his disability, either physical
or mental (as determined by Employer's physician) which may reasonably be
anticipated to render him unable, for a period of at least six (6) months,
effectively to perform the obligations, duties and responsibilities of
Employee's employment with Employer (provided that if Employee is terminated due
to a disability, any long-term disability insurance provided to Employee shall
continue in effect post-termination); or (ii) the termination of Employee's
employment by the President or the Board of Directors with cause (as hereinafter
defined); or (iii) the passage of fourteen (14) days from the date of delivery
by either party to the other of his or its election to terminate this Agreement.
As used herein, "cause" shall mean (i) dishonest, fraudulent or illegal conduct;
(ii) misappropriation of Employer funds; (iii) conviction of a felony; (iv)
excessive use of alcohol; (v) use of controlled substances or other addictive
behavior; (vi) unethical business conduct; (vii) breach of any statutory or
common law duty of loyalty to Employer; and (viii) action by Employee which is
prejudicial or injurious to the business or goodwill of Employer or a material
breach of this Agreement.
Section 3. Employment Compensation and Other Benefits.
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(a) Base Salary. For services performed by Employee during
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the Employment Period, Employer will pay to Employee a base salary of Ninety
Four Thousand Dollars ($94,000) per annum, payable in equal semi-monthly
installments of $3,916.67, prorated for any partial period of employment.
(b) Benefits. During the term of his employment hereunder,
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Employee will be entitled to the following:
Page Exh. 10.19-A
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(i) payment by Employer of the premiums for medical
and dental insurance coverage for himself and his family consistent with
programs from time to time in effect for the employees of Employer; provided,
however that if Employer adopts a policy of requiring all of its employees to
pay a portion of such premiums, Employee will be responsible for paying for his
applicable portion, which portion shall be deducted from the salary otherwise
payable to Employee.
(ii) three weeks of paid vacation each year of
employment; and
(iii) such other benefits as are available to other
employees of Employer generally, including any 401(k) plan, profit-sharing plan,
or retirement plan.
(c) Business Expenses. Employer will reimburse Employee
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for reasonable out-of-pocket expenses incurred by him, in accordance with
Employer's policies as in effect from time to time, for entertainment, travel,
lodging and similar items in connection with the business of Employer, provided
that Employee properly accounts for and promptly submits appropriate supporting
documentation with respect to all such expenses.
(d) Discretionary Bonus. The Board of Directors of Employer
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may, in its sole and absolute discretion, award an annual bonus to Employee.
Such bonus shall be determined based on Employee's performance and the
performance of Employer for the respective twelve (12) month periods ending at
fiscal year end 12/31/97, 12/31/98 and 12/31/99. The decision to award a bonus
is within the sole discretion of the Board of Directors of Employer, and
Employer has absolutely no obligation to award a bonus to Employee.
Furthermore, the decision to award a bonus to Employee in any particular year
shall in no way obligate Employer to award a bonus to Employee in any other
year.
(e) Stock Options. Employee acknowledges receipt of options
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to purchase 5,000 shares of Allin Communications Corporation common stock at
$15.00 per share. These options are governed by the "1996 Stock Plan of Allin
Communications Corporation" dated November 1, 1996. In addition, Employee
acknowledges receipt of options to purchase 2,000 shares of Allin Communications
common stock at $4.50 per share and 7,500 shares at $7.50 per share. These
options are governed by the "1997 Stock Plan of Allin Communications
Corporation" dated May 8, 1997. The options vest ratably at 20% per year on the
anniversary of issuance, however all options that have not previously expired or
been terminated will become fully vested on the date on which (i) the Company
sells all or substantially all of its assets, (ii) the Company merges with
another entity in a transaction in which the Company is not the surviving
corporation, or (iii) any person or group of affiliated persons other than the
shareholders of Allin Communications Corporation as of the date of this
Agreement owns or controls 40% or more of the Company. At the sole discretion
of Employer's management and Board of Directors, additional options may be
issued to Employee, however Employer's management and Board of Directors are
under no obligation to issue Employee additional options.
(f) Annual Merit Review. Annually, on or before November 1
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of each year, Employer will conduct an annual review of Employee's performance
under this Agreement and, if deemed appropriate, implement adjustments to this
Section 3 for such year.
(g) Severance Pay. If Employee's employment is terminated
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By Employer, during the Employment Period, (a) without cause, or (b)
contemporaneously with the occurrence of a Change in Control, Employee shall
receive semi-monthly severance payments equal to the semi-monthly base salary
payment which Employee was receiving immediately prior to the termination, until
the earlier of (i) the one year anniversary of the date of termination, or (ii)
the date on which Employee obtains other full-time employment. The expiration
of the Employment Period shall not entitle Employee to receive severance pay;
provided, however, that if any severance payments would otherwise have been
payable had this Agreement not expired, the expiration of this Agreement shall
not affect the payments called for by this Section 3(g).
(h) Liability as an Officer. Employee will be covered by any
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directors and officers insurance policy procured by Employer. Employee shall
also be entitled to the indemnification set forth in Employer's Bylaws with
respect to actions taken by officers and directors of Employer.
Page Exh. 10.19-B
Section 4. Conditions of Employment. As conditions of his employment
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and in consideration of his employment, Employee covenants and agrees as
follows:
(a) that, during the period during which Employee is employed
by Employer, he will devote his full time, services and attention and best
efforts to the performance of his duties and to the promotion of the business
and interests of Employer;
(b) that, during the period during which Employee is employed
by Employer, and for a period of eighteen (18) months thereafter, he will not,
without the prior written consent of the Board of Directors of Employer,
directly or indirectly, as a stockholder (except as a stockholder owning
beneficially or of record less than five percent (5%) of the outstanding shares
of any class of publicly traded stock of any issuer), or as an officer,
director, manager, member, employee, partner, joint venturer, proprietor or
otherwise, engage in, become interested in, consult with, lend to or borrow
from, advise or negotiate for or on behalf of, any business which is of the type
in which Employer or any affiliate or subsidiary of Employer engages during the
period during which Employee is employed by Employer and which Employer has not
permanently ceased to be engaged in at the time of termination of this
Agreement; provided that the prohibition contained in this subsection 4(b) shall
not apply to any business which Employer was engaged during the Employment
Period if, during the eighteen (18) month period thereafter, Employer
permanently ceases to be engaged in such business;
(c) that, during the period during which Employee is employed
by Employer, and for a period eighteen (18) months thereafter, he will not
solicit any customer of Employer or any customer of any affiliate or subsidiary
of Employer, directly or indirectly, for the purpose of enticing such customers
to do business with anyone other than Employer;
(d) that, during the period which Employee is employed by
Employer, and for a period of eighteen (18) months thereafter, he will not
solicit (or employ or cause to be employed other than by Employer) other
employees of Employer or any affiliate or subsidiary of Employer, directly or
indirectly, for the purpose of enticing them to leave their employment with
Employer or any affiliate or subsidiary of Employer;
(e) that, during the period during which Employee is employed
by Employer, and for a period of eighteen (18) months thereafter, he will make
full and complete disclosure of the existence of this Agreement and the content
of this Section 4 to all prospective employers with whom he may discuss possible
employment;
(f) that, he will refrain from directly or indirectly disclosing,
making available or using or causing to be used in any manner whatsoever, any
information of Employer of a proprietary or confidential nature (including
without limitation, information regarding inventions, processes, formulas,
systems, plans, programs, studies, techniques, "know-how," trade secrets, income
or earnings, tax data, customer lists and contracts to which Employer is a
party, but excluding any such information which may be in the public domain
through proper means) and, upon termination of his employment, such information,
to the extent that it has been reduced to writing (including any and all copies
thereof), together with all copies of all forms, documents and materials of
every kind, whether confidential or otherwise, shall forthwith be returned to
the Employer and shall not be retained by Employee or furnished to any third
party, either by sample, facsimile or by verbal communication(g) that, he will
refrain from any disparagement, direct or indirect, through innuendo or
otherwise, of Employer or any of its employees, agents, officers, directors,
shareholders or affiliates;
Page Exh. 10.19-C
(h) that, during the period during which Employee is employed
by Employer, he will not, without the prior written consent in each case of the
Board of Directors of Employer: (i) participate actively in any other business
interests or investments which would conflict with his responsibilities under
this Agreement, or (ii) borrow money from, or lend to, customers (except those
commercial institutions whose business it is to lend money) or individuals or
firms from which Employer or any affiliate or subsidiary of Employer buys
services, materials, equipment or supplies, or with whom Employer or any
affiliate or subsidiary of Employer does business;
that, during the Employment Period, he will not, without
the prior written consent in each case of the President or the Board of
Directors of Employer (i) exchange goods, products or services of Employer in
return for goods, products or services of any individual or firm or (ii) accept
gifts or favors from any outside organization or agency which, individually or
collectively, may cause undue influence in his selection of goods, products or
services for Employer;
(j) that, after the termination of his employment, he will not
secure, or attempt to secure, from any employee or former employee of Employer
or any affiliate or subsidiary of Employer, any information relating to Employer
or any affiliate or subsidiary of Employer or their business operations; and
(k) that he will promptly and voluntarily advise the Board of
Directors of Employer of any activities which might result in a conflict of
interest with his duties to Employer hereunder, and, further, will make such
other and further disclosures as Employer may reasonably request from time to
time.
Employee represents and warrants to Employer that, notwithstanding the
operation of the covenants contained in this Section 4, upon the termination of
his employment hereunder, Employee will be able to obtain employment for the
purpose of earning a livelihood.
Section 5. Injunctive Relief. Because the services to be performed
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by Employee hereunder are of a special, unique, unusual, confidential
extraordinary and intellectual character which character renders such services
unique and because Employee will acquire by reason of his employment and
association with Employer an extensive knowledge of Employer's trade secrets,
customers, procedures, and other confidential information, the parties hereto
recognize and acknowledge that, in the event of a breach or threat of breach by
Employee of any of the terms and provisions contained in Section 4 or Section 7
of this Agreement, monetary damages alone to Employer would not be an adequate
remedy for a breach of any of such terms and provisions. Therefore, it is
agreed that in the event of a breach or threat of a breach of any of the
provisions of Section 4 or Section 7 of this Agreement by Employee, Employer
shall be entitled to an immediate injunction from any court of competent
jurisdiction restraining Employee, as well as any third parties including
successor employers of Employee whose joinder may be necessary to effect full
and complete relief, from committing or continuing to commit a breach of such
provisions without the showing or proving of actual damages. Any preliminary
injunction or restraining order shall continue in full force and effect until
any and all disputes between the parties to such injunction or order regarding
this Agreement have been finally resolved. Employee hereby agrees to pay all
costs of suit incurred by Employer, including but not limited to reasonable
attorneys' fees, in obtaining any such injunction or order. Employee hereby
waives any right he may have to require Employer to post a bond or other
security with respect to obtaining or continuing any such injunction or
temporary restraining order and, further, hereby releases Employer, its
officers, directors, employees and agents from and waives any claim for damages
against them which he might have with respect to Employer obtaining in good
faith any injunction or restraining order pursuant to this Agreement.
Section 6. Absence of Restrictions. Employee hereby represents and
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warrants that he has full power, authority and legal right to enter into this
Agreement and to carry out his obligations and duties hereunder and that the
execution, delivery and performance by Employee of this Agreement will not
violate or conflict with, or constitute a default under, any agreements or other
understanding to which Employee is a party or by which he may be bound or
affected, including but not limited to, any order, judgment or decree of any
court or governmental agency.
Page Exh. 10.19-D
Section 7. Patents and Inventions. Employee will promptly submit to
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Employer written disclosures of all inventions, improvements, discoveries and
new ideas, relating to Employer's business, whether or not patentable
(hereinafter called "Inventions"), which are made or conceived by Employee,
alone or jointly with others, during the period during which Employee is
employed by Employer. Title to all such Inventions that shall be within the
existing or contemplated scope of Employer's business at the time such
Inventions are made or conceived or which result from or are suggested by any
work Employee or others may do for or on behalf of Employer, together with such
patent, patents or other legal protection as may be obtained thereon in the
United States of America and all foreign countries, shall belong to Employer.
Employee will assign any rights or interest in such title to Employer, and upon
the request of Employer, will at any time during the period during which
Employee is employed by Employer and after termination of Employee's employment
for any reason, execute all proper papers for use in applying for, obtaining,
maintaining and enforcing such patents or other legal protection as Employer may
desire and will execute and deliver all proper assignments thereof, when so
requested, without remuneration but at the expense of Employer.
Section 8. General.
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(a) Interpretation. If the provisions of subsections 4(b), 4(c) or
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4(d) of this Agreement should be held to be invalid, illegal or unenforceable by
a court of competent jurisdiction because of time limitation or geographical
area therein provided, such provisions shall nevertheless be effective and
enforceable for such period of time and/or such geographical area as may be held
to be reasonable by such court. Any provision of this Agreement that is
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without invalidating or rendering unenforceable the remaining
provisions of this Agreement, any such invalidity, illegality or
unenforceability shall not, of itself, affect the validity, legality or
enforceability of such provision in any other jurisdiction.
(b) Notices. In any case where any notice or other
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communications is to be given or made pursuant to any provision of this
Agreement, such notice or communication shall be deemed to be delivered when
actually received on the date specified in the return receipt for a notice or
communication mailed by registered or certified mail, postage prepaid, addressed
as follows:
If to Employer:
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Allin Communications Corporation
000 Xxxxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
with copies to:
Xxxxx X. Xxxxxxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
If to Employee:
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Xx. Xxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
or such other address or addresses as any party may specify by notice to the
other party given as herein provided.
Page Exh. 10.19-E
(c) Headings. The headings in this Agreement are inserted for
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convenience and identification and in no way describe, interpret, define or
limit the scope, extent or intent of this Agreement or any provision hereof.
(d) No Presumption on Interpretation. Nothing herein shall be
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construed more strongly against or more favorably toward either party by reason
of either party having drafted this Agreement or any portion hereof.
(e) Binding Effect. This Agreement shall be binding upon, and
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inure to the benefit of, the parties hereto and their respective heirs,
beneficiaries, executors, administrators, personal representatives, successors
and permissible assigns.
(f) Integration. This Agreement constitutes and contains the
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entire Agreement and understanding between the parties with respect to the
subject matter hereof and supersedes any and all prior agreements, if any,
understandings and negotiations relating thereto. No promise, understanding,
representation, inducement, condition or warranty not set forth herein has been
made or relied upon by any party hereto.
(g) Waivers; Modification. This Agreement, or any provision
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hereof, may be amended, supplemented or modified only by a writing signed by
both parties and may be waived only by a writing signed by the party to be bound
thereby. A written waiver of any provision shall be valid only in the instance
for which given and shall not be deemed to be a continuing waiver or construed
as a waiver of any other provisions.
(h) Governing Law. This Agreement shall be construed in
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accordance with and governed in all respects by the laws of the Commonwealth of
Pennsylvania (without giving effect to the conflicts of laws provisions
thereof).
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
ALLIN COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Chairman
WITNESS:
/s/ Xxxxxx Xxxxx /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Page Exh. 10.19-F
