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EMPLOYMENT AGREEMENT DATED OF JULY 12, 1999
EXHIBIT 10.16
EMPLOYMENT AGREEMENT
This Agreement is by and between ADVANCED SYSTEMS INTERNATIONAL, a
Michigan corporation, hereinafter referred to as "EMPLOYER", and Xxxx Xxxxxxx,
hereinafter called "EMPLOYEE" and is effective as of the 12th day of July, 1999.
WITNESSETH:
WHEREAS, EMPLOYER is in the business of development, design,
manufacture, documentation, distribution and sales of computer hardware,
computer software and associated equipment relating to time and attendance (the
"Business");
WHEREAS, EMPLOYEE has experience in the Business; and
WHEREAS, EMPLOYER and EMPLOYEE desire to enter into an employment
agreement setting forth their mutual obligations.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and other good and valuable consideration, receipt and
sufficiency whereof are hereby acknowledged, it is mutually covenanted and
agreed by and between the parties hereto as follows:
1. Duties of EMPLOYEE. EMPLOYEE shall serve VP of Ecom Products
Division. EMPLOYEE shall devote substantially all of his time to the performance
of his/her duties in such capacity.
2. At Will Employment. EMPLOYEE'S employment will be under an "at will"
arrangement pursuant to which EMPLOYEE'S employment can be terminated at any
time, at the option of either EMPLOYER or EMPLOYEE, with or without cause, for
any reason or for no reason, with or without prior notice. Notwithstanding the
foregoing, the provisions contained in Sections 4, 5 and 6 of this Agreement
shall survive any termination of this Agreement.
3. Compensation. For services performed pursuant to the terms contained
in this Agreement, EMPLOYER shall pay cash compensation to EMPLOYEE as outlined
in the attached offer letter.
4. Developments. EMPLOYEE agrees to promptly inform EMPLOYER of the
full details of any and all of EMPLOYEE'S inventions, discoveries, concepts, and
ideas (collectively called, "Developments"), whether patentable or not,
including but not limited to: hardware and apparatus, processes and methods,
formulae, computer programs and techniques, as well as any improvements and
related knowledge, which EMPLOYEE conceives, completes, or reduces to practice
(whether alone or with others) while EMPLOYEE is employed by Employer and (a)
which relate to the present or prospective Business, work, or investigations of
EMPLOYER, or (b) which result from any work EMPLOYEE does using any equipment,
facilities, materials, or personnel of EMPLOYER, or (c) which result from or are
suggested by any work which EMPLOYEE may do for EMPLOYER
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EMPLOYEE further agrees to assign, and does hereby assign, to EMPLOYER
or EMPLOYER'S designee, EMPLOYEE'S entire right, title and interest in the
following items, which EMPLOYEE conceives or makes (whether alone or with
others) while employed by EMPLOYER or within one year of the end of EMPLOYEE'S
employment (if conceived as a result of such employment): (a) all Developments;
(b) all trademarks, copyrights, -.,id mask work rights in Developments; and (c)
all patent applications filed and patents granted on any Developments, including
those in foreign countries.
Both while employed by EMPLOYER and afterwards, EMPLOYEE agrees to
execute any documents that EMPLOYER may consider necessary or helpful to obtain
or maintain patents or other registration(s) of proprietary right, whether
during the prosecution of patent applications or during the conduct of an
interference, litigation, Other matter (all related expenses to be borne by
EMPLOYER).
5. Proprietary Information. EMPLOYER shall provide access to
confidential and proprietary information regarding EMPLOYER'S Business products
and services being marketed, recognizing that EMPLOYEE, by virtue of EMPLOYEE'S
role with EMPLOYER will have full access to any and all of such information, and
that the disclosure of any and all such confidential and proprietary information
to third parties may cause irreparable harm to EMPLOYER and its competitive
position in the marketplace, EMPLOYEE agrees not to disclose any confidential
and proprietary information obtained by virtue of employment with EMPLOYER to
any entity, individual, corporation, partnership, sole proprietorship, or
customer of EMPLOYER except as the same may be reasonably utilized in the
ordinary course of marketing EMPLOYER'S products and services to such customer.
Therefore, during the term of employment by EMPLOYER, or thereafter, EMPLOYEE
will not disclose other than to an employee of EMPLOYER any confidential and
proprietary information, including any information relating to EMPLOYER'S
procedures, administrative policies, customer lists, financial data,
bookkeeping, product and service information, or similar proprietary secrets or
know-how, without prior written consent from EMPLOYER. On termination of
employment for any reason, EMPLOYEE shall return any documents, files, papers,
letters, product or process descriptions or copies thereof, or other
confidential and proprietary information, of any type or description. For
purposes of this Agreement, "confidential and proprietary information" includes:
(a) information or materials which relate to EMPLOYER'S inventions,
technological developments, "know-how," purchasing, accounting, merchandising,
or licensing;
(b) trade secrets as defined in the Restatement of Torts, which
EMPLOYEE accepts as an appropriate statement of law;
(c) software in various stages of development (source code, object
code, documentation, diagrams, flow charts), designs, drawings, specifications,
models, data, and customer information; and
(d) any information of the type described above which EMPLOYER
obtained from another party and which EMPLOYER treats as proprietary or
designates as confidential, whether or not owned or developed by EMPLOYER and
which is not generally available to or used by others, or the utility or value
of which is not generally known or recognized as standard practice, whether or
not the underlying details are in the public domain.
6. NON-COMPETITION
(a) EMPLOYEE covenants and agrees that at no time during the term of
this employment, and for a period of two (2) years following the termination of
employment, for any reason whatsoever will EMPLOYEE, individually, or on behalf
of any other person, persons, firm, partnership, corporation or company, engage
in any Business enterprise within a radius of 500 miles surrounding Southfield,
Michigan that is identical or similar to the Business of EMPLOYER as it is now
or as it may further expand or develop or engage in or contribute EMPLOYEE'S
knowledge to any work which is competitive with or similar to a product,
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process, apparatus, or service upon which EMPLOYEE worked during the two (2)
year period immediately preceding the termination of EMPLOYEE'S employment
hereunder. EMPLOYEE will not, directly or indirectly, for or on behalf of, or in
conjunction with any other person, persons, firm, partnership, corporation or
company (i) solicit or attempt to solicit the business or perform such other
incidental business and service as is now or in the course of EMPLOYEE'S
employment performed by EMPLOYER or (ii) solicit, attempt to solicit or hire any
other employee of EMPLOYER.
(b) EMPLOYEE agrees that the geographic area established herein is
divisible in such a manner that if this provision is held to be invalid by a
court of competent jurisdiction, that portion of the geographic area is
severable and this clause remains in effect for the remaining included
geographic area in which the clause is valid. EMPLOYEE acknowledges that any
breach of these provisions may cause irreparable harm to EMPLOYER and therefore
EMPLOYER may seek injunctive relief to enjoin any violation hereof by EMPLOYEE
without necessity of posting bond in addition to any other remedy available.
7. Assignment. EMPLOYEE agrees that this Agreement and the rights,
interests and benefits hereunder shall not be assigned, transferred, pledged or
hypothecated in any way by EMPLOYEE or other person claiming under EMPLOYEE by
virtue of this Agreement, and shall not be subject to execution, attachment or
similar process. Any attempt to assign, transfer, pledge, hypothecate or
otherwise dispose of this Agreement or of such rights, interests and benefits
contrary to the foregoing provisions, or upon the levy of any attachment or
similar process thereupon shall be null and void and without effect, and shall
relieve EMPLOYER of any and all liability hereunder.
8. General Terms.
(a) Arbitration. In the event any controversy or claim arising out
of or relating to this Agreement whether or not a breach thereof, shall be
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. Following delivery of the arbitrator's
decision the prevailing party may enter the decision as a judgment in a court of
competent jurisdiction in Oakland County, Michigan.
(b) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the respective parties, their heirs, personal representatives,
legal representatives, successors and assigns.
(c) Confidentiality. Both parties shall protect the terms of this
Agreement as confidential information. Neither party shall disclose the terms of
this Agreement to any third party without the prior written consent of the
non-disclosing party.
(d) Entire Agreement. This Agreement constitutes the entire
agreement between the parties and contains all of the Agreements among the
parties with respect to the subject matter hereof.
(e) Injunctive Relief. In the event of violation of any term
contained in this Agreement, the non-violating party shall be entitled to pursue
injunctive relief, in addition to any other remedies available at law or in
equity, without the necessity of posting bond as a condition of obtaining such
relief.
(f) Jurisdiction and Venue. Any cause of action related to this
Agreement shall be heard in a court of competent jurisdiction in Oakland County,
Michigan.
(g) Laws to govern. The laws of the State of Michigan shall govern
interpretation and enforcement of the terms contained in this Agreement.
(h) Modification of Agreement. No change or modification of this
Agreement shall be binding upon the parties unless the same is in writing and
signed by both parties. No waiver of any provision of this Agreement shall be
valid unless made in writing and signed by the person or party against whom the
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same may be charged.
(i) Notice. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for herein shall be given in
writing by personal service, registered or certified mail, return receipt
requested, which shall be addressed as follows:
EMPLOYER:
Advanced Systems International
00000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
EMPLOYEE:
Xxxx Xxxxxxx
0000 Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
(j) Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
(k) EMPLOYEE acknowledges and agrees that any action or suit against
EMPLOYER, or any of its employees, arising out of this Agreement, including but
not limited to, claims arising under state or federal civil rights statutes or
for breach of this Agreement, must be brought within one hundred eighty (180)
days of the event giving rise to the claims or be forever barred, and EMPLOYEE
waives any limitation periods to the contrary. EMPLOYEE further agrees that if
he/she should bring any action or claim arising out of this Agreement in which
EMPLOYER prevails, EMPLOYEE will pay to EMPLOYER any and all costs incurred in
defense of said claims or action, including attorneys' fees. EMPLOYEE further
acknowledges that Michigan law requires employers to make accommodations to
handicapped applicants and employees where the accommodation does not pose an
undue hardship on the employer. EMPLOYEE acknowledges that handicapped employees
and applicants may request an accommodation of their handicap by notifying
EMPLOYER in writing of the need for accommodation within one hundred eighty-two
(182) days of the date the handicapped knows, or should know, that an
accommodation is needed and that failure to properly notify the Company within
one hundred eighty-two (182) days will preclude any claim that the Company
failed to accommodate the handicapped.
IN WITNESS WHEREOF, EMPLOYER has caused this Agreement to be signed by
its duly authorized officer, and EMPLOYEE has hereunto set his hand and seal on
the day written above.
EMPLOYER: EMPLOYEE:
ADVANCED SYSTEMS INTERNATIONAL
By: Xxxxxx X. Xxxxx By: Xxxxxxx Xxxxxxx
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Name: Xxxxxx X. Xxxxx Name: Xxxx Xxxxxxx
President & CEO VP of Ecom Products Division
Date: July 29, 1999
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[ADVANCED SYSTEMS LETTERHEAD]
July 7, 1999
Xxxxxxx Xxxxxxx
0000 Xxxxx Xxxxx
Xxxxx, XX
00000
Dear Xxxx,
It is with great personal pleasure that I can extend this offer to you to join
ASI as the Vice President of the Ecom Products Division.
In this position, you will be responsible for all sales activities and programs
in this unit. You will also be responsible for the strategic directions going
forward.
Your compensation will be as follows:
Monthly Salary: $12,500 paid monthly.
Appropriate business expenses will be provided
according to our Company policy.
ASI benefit plan will be available to you once your current
plan expires.
Performance Bonus: Bonus, if any will be paid only if you are employed at the
End of the year. For the remainder of 1999, your bonus plan
Will be as follows:
For $3.0 Million of new ATLink revenue: $10,000 bonus
For $3.5 Million of new ATLink revenue: $15,000 bonus
For $4.0 Million of new ATLink revenue: $20,000 bonus
Share Options 200,000 options granted under the Advanced Systems Employee
Option Plan will be awarded at the date of hire. These options
will be granted at market bid value and approved by the Board
of Directors. Your options will vest one-third annually over
three years. If there is a change of ownership, your stock will
vest at that time.
Vacation/Time Off:
Company policy provides for two weeks of vacation
annually, growing to three weeks after five years, in
addition to statutory and corporately recognize
holidays, as outlined in the Employee Handbook.
Your compensation and responsibilities will be reviewed in six months during the
beginning of January 2000 and revised as appropriate in the discretion of the
company. If you are released from A.S.I. for any reason other than cause, A.S.I.
will pay you a separation cost equal to 12 months of current salary and prorated
bonus.
Xxxx, I am looking forward to working with you to build this important segment
of our business.
Yours Truly,
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
President & CEO
