Exhibit 10.15
AGREEMENT REGARDING EMPLOYMENT AND IN LIEU OF SEVERANCE
This Agreement is made as of the 1/st/ day of January, 2001, between Panja
Corporation, a Texas corporation, with offices at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxx 00000 (the "Company"), and Xxx Xxxx, an individual residing
in Rockwall, Texas (the "Employee").
RECITALS
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The Employee has served in an executive capacity for the Company and the
Company desires to amend and supersede all prior agreements regarding Employee's
employment with the company with a view to continuing Employee's employment for
a limited time and in lieu of any other severance payments to employ the
Employee and the Employee desires to provide such services upon the terms and
conditions hereinafter set forth.
WITNESSETH:
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment. The Employee has been employed in various executive
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capacities with the Company and now the Employee and the Company desire for
Employee to devote his energies to general external research and analysis of
market opportunities for the Company and the Employee accepts such employment
for the term of employment specified in Section 3 below (the "Employment Term").
During the Employment Term, the Employee shall have the obligation to review and
research market opportunities for the Company in such manner, and with such time
commitment, as Employee deems reasonable in the exercise of his good faith
business judgment, it being understood that employee will be free to devote his
attention to other interests; provided, that Employee's pursuit of other
interests does not violate any other provisions of this Agreement.
2. Performance. The Employee agrees to devote his best efforts and such
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of his business time as may be requested by the President as being necessary for
the performance of his duties hereunder during the Employment Term; provided,
however, that the Employee shall be entitled to pursue other business interests
so long as the pursuit of such interests does not unreasonably interfere with
the performance by the Employee of his responsibilities hereunder or violate any
of the other provisions of this Agreement.
3. Employment Term. The Employment Term shall begin on the date of this
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Agreement and continue until April 30, 2001.
4. Compensation.
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(a) Salary. During the Employment Term, the Company shall pay the
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Employee a base salary, payable in accordance with normal payroll practice,
subject to withholding and other applicable taxes, of an aggregate amount of
$82,500.
(b) Discretionary Bonus. The Employee shall not be eligible for any
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bonus compensation.
(c) Additional Benefits. In addition to the other compensation
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payable to the Employee hereunder, during the Employment Term, the Employee
shall be eligible as a full-time employee to participate in any and all group
life insurance plans and medical and dental health benefit plans maintained by
or on behalf of the Company on the same basis as other employees.
5. Expenses. The Employee shall be reimbursed by the Company for all
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reasonable expenses incurred by him in connection with the performance of his
duties hereunder.
6. Agreement Not to Compete.
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(a) The Employee agrees that during the Non-Competition Period (defined
below) he will not in any capacity, either separately, jointly, or in
association with others, directly or indirectly, as an officer, director,
consultant, agent, employee, owner, partner, distributor, dealer,
representative, shareholder, equityholder, or otherwise, engage or have a
financial interest in any business located anywhere in the Restricted Area (as
herein defined) which competes with the Company or with any affiliate of the
Company (excepting only the ownership of not more than 5.0% of the outstanding
securities of any class listed on an exchange or regularly traded in the over-
the-counter market). "Restricted Area" means the entire world.
(b) An entity or individual shall be deemed to compete with the Company
or one of the Company's affiliates as of a particular time if the entity or
individual then manufactures, produces, markets, distributes or sells any
product or service which is directly competitive with, or which may be purchased
in replacement or substitution of, any product or service which was being
manufactured, produced, marketed, distributed, sold or actively developed by the
Company or such affiliate during the Employment Term, and which is then still
being manufactured, produced, marketed, distributed, sold or actively developed
by the Company or such affiliate. A product or service shall be deemed to be
under active development by the Company or its affiliate as of a particular date
only if the Company or such affiliate has devoted significant resources to the
development thereof and intends to market, distribute or sell such product or
service within the next 18 months of such date. The "Non-Competition Period" is
(a) the period during which the Employee is employed hereunder plus (b) a period
of two years thereafter.
(c) The Employee further agrees that during the Non-Competition Period
he will not in any capacity, either separately, jointly or in association with
others, directly or indirectly, solicit or otherwise contact any of the
Company's or its affiliates' customers, distributors, dealers or representatives
as shown by the Company's or its affiliates' records, that were customers,
distributors, dealers or representatives of the Company or its affiliates at any
time during the two years immediately preceding the date of termination of the
Employee's employment hereunder if such solicitation or contact is for the
specific purpose of selling products or services that compete with any products
or services that the Company or its affiliates had available for sale to its
customers, distributors, dealers, representatives, or prospects during the two
years immediately preceding the end of the Non-Competition Period. If a court
determines that the foregoing restrictions are too broad or otherwise
unreasonable under applicable law, including with respect to time or space, the
court is hereby requested and authorized by the parties hereto to revise the
foregoing restrictions to include the maximum restrictions allowed under the
applicable law.
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(d) The Employee expressly agrees that breach of the foregoing would
result in irreparable injuries to the Company and its affiliates, that the
remedy at law for any such breach will be inadequate and that upon breach of
this section, the Company and its affiliates, in addition to all other available
remedies, shall be entitled as a matter of right to injunctive relief in any
court of competent jurisdiction without the necessity of proving the actual
damage to the Company or its affiliates.
7. Secret Processes and Confidential Information. For the Employment Term
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and thereafter, (a) the Employee will not divulge, directly or indirectly, other
than in the regular and proper course of business of the Company or its
affiliates or as required by law, any confidential knowledge or information with
respect to the operation or finances of the Company or its affiliates or with
respect to confidential or secret processes, techniques, machinery, customers,
plans and products manufactured or sold by the Company or its affiliates
(collectively, "Confidential Information") and (b) the Employee will not use,
directly or indirectly, any Confidential Information for the benefit of anyone
other than the Company or its affiliates; provided, however, that the Employee
has no obligation, express or implied, to refrain from using or disclosing to
others any such knowledge or information which is or hereafter shall become
available to the public other than through disclosure by the Employee.
Notwithstanding the foregoing, if the Employee is required to disclose or
divulge Confidential Information pursuant to any subpoena or other judicial
process he will promptly so notify the Company, and if so requested by the
Company or its affiliates, will assist the Company or its affiliates in seeking
a protective order with respect thereto. If the Company cannot or chooses not
to obtain such a protective order, the Employee will divulge only such
Confidential Information as he is advised by his counsel is required to be
disclosed, and will use his best efforts to ensure that the balance of such
Confidential Information will be kept confidential.
8. Nonsolicitation of Employees. For the Employment Term and two (2) years
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thereafter, the Employee will not, either directly or indirectly, solicit for
employment or employ or assist any entity to employ any person employed by the
Company, or any affiliates thereof, at any time during the twenty-four (24)
month period immediately preceding such solicitation or employment.
9. Termination.
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(a) Termination at End of Term. The employment of the Employee
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hereunder shall terminate at the end of the Employment Term. Employee expressly
waives any right to any severance or other payment at the end of the Employment
Term.
(b) Termination by the Company With Cause. The Company shall have the
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right at any time to terminate the Employee's employment hereunder immediately
upon written notice following the occurrence of any of the following (any such
termination being referred to as a termination for "Cause"):
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(i) the commission by the Employee of any deliberate and premeditated
act that materially and adversely affects the business, financial
condition or results of operations of the Company;
(ii) Employee's habitual drunkenness, use of illegal substances or
drugs or the use, possession, distribution or being under the influence
of alcohol or illegal substances or drugs in the workplace (the only
exception is that Employee may consume alcohol reasonably and
responsibly, if he so chooses, at legitimate business events and
functions where alcohol is legally available);
(iii) the conviction by the Employee of a felony;
(iv) the willful failure or refusal of the Employee to perform his
duties hereunder, which failure or refusal continues for 45 days after
written notice thereof from the Company to the Employee; or
(v) the breach by the Employee of any terms of this Agreement, which
breach continues for 45 days subsequent to written notice from the
Company to the Employee of the breach.
(c) Termination by Company for Death or Disability. The Company shall
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have the right at any time to terminate the Employee's employment hereunder by
30 days' written notice upon the Employee's inability to perform his duties
hereunder by reason of any mental, physical or other disability which has
existed for a period of at least six consecutive months (for purposes hereof,
"disability" has the same meaning, as is defined for such term in the Company's
disability policy), as determined by an independent physician. The Employee's
employment hereunder shall also terminate upon the death of the Employee.
(d) Termination by Company without Cause. The Company shall have the
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right at any time, upon vote of a majority of the Board of Directors, by 30
days' written notice to Employee to terminate the Employee's employment for any
other reason without Cause.
(e) Termination by Employee for Good Reason. The Employee shall have
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the right, upon written notice to the Company, at any time to terminate his
employment at any time, with or without cause.
10. Effect of Termination of Employment.
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(a) With Cause or Voluntary Termination. If the Employee's
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employment is terminated with Cause or if the Employee voluntarily terminates
his employment, all benefits shall cease at the time of such termination;
provided, however, that the Employee shall be entitled to continue to
participate in the Company's medical benefit plans, at his own expense, to the
extent required by law.
(b) Death or Disability. If the Employee's employment is terminated
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by the death or disability of the Employee (pursuant to Section 9(c)), the
Employee's compensation provided in Section 4 shall be paid to the Employee or,
in the event of the death of the Employee, the Employee's estate, as follows:
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(i) the Employee's base salary specified in Section 4(a) shall
continue to be paid in monthly installments through the end of the
Employment Term; and
(ii) the Employee's additional benefits specified in Section 4(c) shall
terminate at the time of such termination; provided, however, that in
the event of disability the Employee shall be entitled to continue
receiving such benefits so long as he receives salary from the Company.
(c) Without Cause or For Good Reason. If the Employee's employment is
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terminated by the Company without Cause (pursuant to Section 8(d)), or the
Employee terminates his employment for Good Reason (pursuant to Section 8(e)),
then the Employee shall be entitled to the following benefits in complete
discharge of the Company's obligations hereunder:
(i) the Employee's salary specified in Section 4(a) shall continue to
be paid in monthly installments through the end of the Employment Term.
11. Notice. Any notices required or permitted hereunder shall be in
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writing and shall be deemed to have been given when personally delivered or when
mailed, certified or registered mail, postage prepaid, to the addresses set
forth above or to such other addresses as the parties may hereafter give notice
provided herein.
12. General.
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(a) Prior Agreements. This Agreement supersedes and replaces all prior
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agreements between the Company and the Employee, written or oral, relating to
the terms of the Employee's employment by the Company; provided, however, the
Employee Non-Disclosure Agreement executed by Employee as of March 10, 1997
shall continue in full force and effect.
(b) Governing Law. The terms of this Agreement shall be governed by
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the laws of the State of Texas.
(c) Assignability. The Employee may not assign his interest in or
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delegate his duties under this Agreement. The covenants and obligations of the
Employee hereunder shall redound to the benefit of the Company's successors and
assigns.
(d) Binding Effect. This Agreement shall be binding upon and inure to
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the benefit of the Company, its successors and assigns.
(e) Entire Agreement; Modification. This Agreement constitutes the
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entire agreement of the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any way except in writing by the parties
hereto.
(f) Duration. Notwithstanding the term of employment hereunder, this
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Agreement shall continue for so long as any obligations remain under this
Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto executed this agreement the day and year first above written.
PANJA INC.
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: President & CEO
EMPLOYEE
/s/ Xxxxxx X. Xxxx
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Xxx Xxxx
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