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Exhibit 6.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT was entered into the 28th day of May 1999,
by and between MIRACOM CORPORATION (hereinafter, the "Employer") and Xxxxxx
Xxxxxxx hereinafter, the "Employee").
In consideration of the Employee's employment and possibility for
promotion, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Employee hereby agrees as
follows:
1. PURPOSE. The purpose of this Agreement is to set forth the terms
and conditions of Employee's employment and to define the obligations between
Employee and Employer regarding trade secrets, as defined in Florida Statutes
Section 688.002(4). including, without limitation, Confidential Information (as
defined herein) belonging to the Employer, inventions and intellectual property
created, in whole or in part, by the Employee, communication with the
Employer's customers and retention of the employees of the Employer. Employee
recognizes that the business of Employer and the nature of Employee's
employment will permit Employee to have access to trade secrets and
Confidential Information of Employer and to its Clients, and that such trade
secrets and Confidential Information are the exclusive property of Employer,
disclosure of which would be prejudicial to Employer's business interests and
cause the Employer irreparable harm. Notwithstanding any other provision of
this Agreement, the Employer and Employee agree that Employee is not prohibited
from owning, operating or performing services for the unrelated business(es) in
which he is currently involved and which are specifically identified on
Schedule (1) hereto.
2. DEFINITIONS.
(a) "EMPLOYER" shall mean MIRACOM CORPORATION and all of its
divisions, subsidiaries, affiliates and any successors or
assigns.
(b) "CLIENT" shall mean any person or entity with whom Employer
conducts business or from whom Employer or Employee obtains
information concerning the business and industry in which
Employer operates, including, but not limited to, customers,
consultants, advisors and suppliers of the Employer.
(c) "TRADE SECRET" shall have the meaning set forth in Florida
Statutes Section 688.002(4), and shall include, without
limitation, ideas, information, compilations, computer programs
and related data bases which are not described in any literature
published and distributed publicly by Employer and which are not
readily ascertainable from inspection of commercially available
sources, including, but not limited to, computer programs written
by and for the Employer, dam bases, generated reports, related
proprietary information and marketing studies.
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(d) "CONFIDENTIAL INFORMATION," shall mean all information pertaining
to the business of Employer or Clients which is of value to
Employer, is not generally known to Employer's competitors or to
the public, and is treated as confidential by Employer and
Clients, including, but not limited to, (i) information
pertaining to product research and development-. (ii) existing
and future business and marketing plans; (iii) financial,
accounting, sales and purchasing data; (iv) customer and supplier
identity; (v) personnel matters; (vi) techniques, policies and
procedures related to the operation of Employer and Clients;
(vii) terms of relationships with Clients; (viii) identity of
prospective Clients; (ix) identity of business opportunities
available to Employer; and (x) inventions and intellectual
property of the Employer.
(e) "INVENTION" shall mean any discovery, idea, improvement or
contribution, whether or not patentable, including, but not
limited to, any computer program, process, method, formula or
technique, as well as improvements thereto, which is new or which
Employer reasonably believes may be new.
(f) "WORK" shall mean any written, typed or printed material
prepared, in whole or in part, by Employee during the term of his
employment hereunder including, but not limited to, technical
descriptions of products, computer software, user guides,
illustrations, advertising materials, training manuals, contracts
and any contributions to any such material.
3. TRADE SECRETS. During and at any time subsequent to termination of
his employment by Employer, Employee will not disclose (except as required in
connection with his bona fide employment duties with Employer) or otherwise
misappropriate any Trade Secret of the Employer for his own use or for the use
of any person, corporation, partnership, or other entity.
4. CONFIDENTIAL INFORMATION. During his employment, and for a two (2)
year period following termination of employment, Employee will not disclose
(except as required in connection with his bona fide employment duties with
Employer) or misappropriate any Confidential Information for his own use or for
the use of any person, corporation, partnership, firm or other entity. Except
as required in connection with Ids bona fide employment duties with Employer,
employee shall not remove any writings containing Confidential Information from
the premises or possession of Employer or its Clients, or make copies or
memoranda thereof. Furthermore, Employee will deliver promptly to Employer, at
termination of his employment, or at any time Employer may so request, all
copies and originals of any writings containing, Confidential Information which
Employee may possess or have or have had under his control.
5. NON-SOLICITATION. During his employment, and for a two (2) year
period following termination of employment, Employee will not, either directly
or indirectly, consult, call upon, solicit. divert or take away or attempt to
solicit, divert or take away, any actual or targeted prospective Client of
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Employer who has been a Client or targeted prospective Client of Employer at
any time during the 12-month period preceding termination of Employee's
employment.
6. NON-SOLICITATION OF EMPLOYEES. During his employment, and for a
two (2) year period following termination of employment. Employee will not
hire, attempt to hire or employ, directly or indirectly, any employee of
Employer. During such period, Employee will not encourage or induce any
employee of Employer to leave the employment of Employer.
7. ASSIGNMENT OF RIGHTS.
(a) INVENTIONS. The Employee agrees that if he conceives of an
Invention or reduces an Invention to practice during his
employment, Employee will promptly provide a written description
of the Invention ("Invention Summary") to an officer of the
Employer (other than Employee). The Employee shall request that
such officer acknowledge in writing the receipt of such Invention
Summary, a copy of which both Employee and Employer shall retain
in their records. The Employer shall have thirty (30) days to
provide written notice to Employee whether or not it wishes to
claim an interest in the Invention. If timely notice is given to
Employee that Employer claims an interest in the Invention,
Employee agrees that such Invention, and all patent rights to
such Invention, shall become the exclusive property of Employer,
and the Employee hereby irrevocably assigns to Employer any and
all of Employee's rights to such Invention. Employee agrees that
should Employer elect to file an application for patent
protection, either in the United States or in a foreign country,
Employee will execute all necessary papers, including formal
assignments to Employer relating to such patent applications. The
Employee further agrees that he will cooperate with any attorney
or other person, will explain the nature of the Invention, as
required, will review applications and other papers and will
provide any other cooperation reasonably required for the orderly
filing and/or prosecution of such patent applications.
(b) WORK. The Employee agrees that any Work created by Employee in
the course of performing Employee's duties hereunder and on
behalf of Employer are deemed "work for hire" within the meaning
of Title 17 of the United States Code. Accordingly, all right,
title and interest to the-intellectual property rights for any
and all such Work, which have been or will be prepared by
Employee, shall be the property of Employer. Employee further
agrees to assign to Employer any and all right, title and
interest to any copyrights which Employee may have in any such
Work.
8. EMPLOYMENT AND TERM. The Employer agrees to employ and Employee
agrees to be employed by Employer for the period stated herein and upon the
terms and conditions provided in this Agreement. The term of full-time
employment shall be for a period of three years, commencing on April 12th, 1999
(the " Commencement Date"), and terminating on the third anniversary thereof,
provided that on each anniversary of the Commencement Date, the term shall be
extended for an additional one (1) year, so that on each anniversary date, the
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remaining term is three (3)) years, unless otherwise terminated in accordance
with Section 19 or Section 20, or as mutually agreed between the parties.
9. COMPENSATION. The Employer shall pay the Employee for all services
contemplated under this Agreement as follows:
(a) A base salary of $84,000.00 per year, paid on a weekly basis (the
"Base Salary"). The Base Salary shall be increased, but shall not
be decreased, on each April 12th (the "Anniversary Date") by a
percentage which is no less than the sum of three percent (3%)
plus the increase in the Consumer Price Index, for the Orlando,
Florida area. published by the United States Government (the
"Index"), for the immediately preceding calendar year exceeds
such Index for the next preceding calendar year. If publication
of the Index is discontinued, the parties hereto shall accept
comparable statistics on the cost of living for the Orlando,
Florida area as computed and published by an agency of the United
States government, or if no such agency computes and publishes
such statistics by any regularly published national financial
periodical that does compute and publish such statistics;
(b) Such other benefits that the Employer may offer to other senior
level management of the Employer from time to time, which
benefits may but do not necessarily include stock options in
addition to those contemplated by Section 17 and performance
bonuses;
(c) Intentionally Deleted;
(d) A minimum of sixty percent (60%) of the cost of Employee's
medical insurance coverage provided by Employer's medical plan.
The Employer shall be entitled to deduct and withhold amounts legally required
to be withheld for items-such as income taxes, FICA, FUTA, etc.
10. DUTIES. The Employee is bringing unique experience, contacts and a
database to the Employer, which the Employee agrees to use to the- benefit of
the Employer in the development of its commercial operations. The Employee is
engaged to act as the Executive Vice President and Manager of Q/A to include
such additional responsibilities as the President may determine to be in the
best interest of the Employer, and which are appropriate for Executive Vice
President and Manager of Q/A of an organization of the type and size of the
Employer. Employee shall report directly to the President and Executive Vice
President of Research and Development. The Employee agrees to serve capacities,
without further compensation, unless the Employee's duties and responsibilities
substantially change or increase, or unless mutually agreed otherwise. Employee
will use his best efforts to promote the interests of the Employer. The
Employee will not be required to travel on behalf of the Employer (outside of
travel to & from the corporate offices) for more than (36) days of the calendar
year.
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11. EXTENT OF SERVICES. The Employee shall not be required to devote
his entire time and attention to the Employer's business; provided, however,
that Employee agrees to provide a minimum of forty (40) hours per week for
services on behalf of Employer (such forty (40) hours shall include time which
the Employee spends traveling from one destination to another destination on
behalf of the Employer but, other than travel time. shall not include time when
the Employee is not actually performing services on behalf of the Employer even
though the Employee may be away from home). Notwithstanding anything herein to
the contrary, the Employee will be called upon from time to time as an element
of his employment to develop business projects which will include the interests
of the Employee and the Employer or its Agreement and form an integral part of
the Employee's employment.
12. WORKING FACILITIES. The Employee shall have a private and adequate
office, back-up staff, including secretarial assistance in all of the offices
of the Employer in which Employee will be expected to perform his services, and
other adequate services and facilities necessary in order for the Employee to
fulfill the activities contemplated under this Agreement. During the first
calendar year, the Employee must perform his job duties in one of the corporate
offices. For subsequent years, the Employee may, at his option work outside of
the corporate offices provided he performs his duties as Employee in an
acceptable manner and has the consent of the Board of Directors. Such consent
may not be unreasonably withheld. The Employee will also have the use of
Employer-provided lodging and vehicles and an expense account in order to
fulfill his obligations and responsibilities under this Agreement and for the
development and the commercialization of the Employer's services.
13. DISCLOSURE OF INFORMATION. The Employee and Employer acknowledge
that Employee is coming to his position with unique data, contacts and
experience, distinct from those possessed Generally by the Employer. These
contacts, data and information of the Employee are unique to the Employee and
will always be so considered. However, the Employee shall not, during the term
of his employment, disclose or use all or any part of the Employee's unique
knowledge, services or skills that are conceived or reduced to practice during
the term of Employee's employment, to any person, firm, corporation,
association or other entity except as noted on Exhibit (I) for any reason or
purpose, unless mutually agreed upon in advance and in writing by the parties
to this Agreement. All new projects and information which are developed by the
Employee during his employment with the Employer shall be considered the
Employer's unique knowledge, services or skills and shall not be taken,
disclosed or developed for a project with any third parties by the Employee,
unless agreed upon in advance and in writing by the Employer upon termination
of the Employee's employment.
14. EXPENSES. The Employee may incur reasonable expenses for the
commercialization of the Employer's services and products, including reasonable
expenses for entertainment, travel and similar items. The Employer shall
reimburse the Employee for all such reasonable expenses, which have been
approved by Employer, within thirty (30) days of the Employee's presentation of
an itemized accounting of such expenditures. In the event Employee incurs
expenses on behalf of the Employer, or Employer pays for expenses of Employee
which are not reimbursable hereunder, Employee agrees to immediately reimburse
Employer for such expenses. As soon as reasonably practicable, Employer shall
secure a corporate charge card for
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Employee to use for reimbursable expenses hereunder. The parties hereto
acknowledge that if Employee has loaned funds to the Employer prior to the
execution hereof, the Employer shall repay Employee such loans within ninety
(90) days of the date hereof.
15. VACATIONS. The Employee shall be entitled each year to a vacation,
which period of time and date of scheduling will be mutually agreed upon by the
Employer and Employee; provided, however, the Employee, in any case, shall be
entitled to not less than two (2) weeks vacation time per year, and cumulative
compensation for such vacation time shall be paid each year to the Employee if
such vacation is not taken that Employee shall be entitled to carry over one
(1) week of unused vacation from the preceding calendar year to the current
calendar year. Employee shall be paid the pro rata portion of his regular Base
Salary and all other benefits as specified in Section 9, hereunder, during any
vacation period. In the event vacation is not taken or vacation is rolled over
to the next year, compensation for such unused vacation, up to a maximum of two
weeks per calendar year, shall be paid on or before the end of the calendar
year if the Employee so desires and so requests in writing on or before March
30 of that calendar year; provided, however, that in the event Employee has
rolled over one (1) week's vacation from the preceding calendar year, the
Employee may be compensated for his unused vacation for the then current
calendar year (subject to the two week maximum per calendar year) plus the one
(1) week rolled over from the preceding calendar year and not used in the then
current calendar year.
16. INTENTIONALLY DELETED.
17. STOCK OPTIONS. Employer shall establish a stock option plan for
its employees, and/or officers (the "Stock Option Plan") and Employee shall be
entitled to participate in such Stock Option Plan.
18. DISABILITY. If the Employee is or becomes, by reason of illness or
incapacity, unable to perform the essential functions of his employment
hereunder, with or without reasonable accommodation, for a period of more than
four (4) weeks (a "Disability"), the compensation thereafter payable to him
during the continued period of such illness or incapacity shall be reduced
initially by twenty-five percent (25 %) for the period beginning four (4) weeks
and ending six (6) months after such illness or incapacity begins and then by
fifty percent (50%) if the incapacity or illness continues during the period
beginning six (6) months and one (1) day and ending one (1) year after such
illness or incapacity begins. If the Employee should be absent from his
employment for a period of more than one (1) year, the Employer will have the
option to terminate this Agreement for impossibility of execution but the
Employer may nonetheless decide to continue this Agreement with compensation
after one (1) year of incapacity. In the event the Employer secures a
disability insurance policy mutually acceptable to Employee and Employer, then
Employer's financial obligations under this Section 18 shall terminate provided
that the disability benefits under such policy equal or exceed the Employer's
financial obligations under this Section 18. In addition to the foregoing
disability payments, Employee shall retain the right to retain any stock
options that are exercisable on the date of termination of employment.
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19. TERMINATION OF EMPLOYMENT.
(a) By Employer For Cause. During the term of this Agreement, the
Employer may terminate this Employee's employment for "Cause"
(defined below) upon thirty (30) days' written notice; provided,
however, no such termination shall occur if, within such period,
Employee cures the bases for the For Cause termination. In the
event that Employee's employment with the Employer is properly
terminated with for Cause, the Employee shall receive only (A)
his Base Salary and benefits earned but unpaid up to the date of
termination of employment, (B) the prorated portion of any
bonuses earned but unpaid up to the date of termination of
employment, calculated based upon a closing of the books of
Employer as of the last day of the month in which termination
occurs and a proration of the annual goals, if any were
established for such year, based upon the portion of the year
that has expired prior to that date, and (C) reimbursement for
any expenses to which Employee is due reimbursement under Section
14.
For purposes of this Section 19(a), the term "Cause" shall mean
any of the following:
(1) the Employee's willful or negligent failure or refusal to
comply with the written rules and regulations of Employer,
from time to time established by the Board, that shall have
been previously delivered to Employee, after receiving
written notice of any such failure or refusal to do so
(provided that such written rules and regulations shall not
be inconsistent with the terms or conditions of this
Agreement; or
(2) the final (non-appealable or foreclosed from appeal)
conviction of Employee of any felony materially and
adversely affecting the property, reputation or goodwill of
Employer or its successors; or
(3) the Employee's willful failure or refusal to perform or
Employee's performance in a grossly negligent manner a
material part of his duties pursuant to the provisions of
this Agreement and Employee shall not have cured such
failure or refusal within 36 days following receipt of
written notice from Employer of such failure or refusal; or
(4) Employee's violation of the terms of Sections 3, 4, 5, 6, 7
or 13 of this Agreement.
(b) By Employer Without Cause. In the event Employer terminates the
Employee's employment without Cause then, in addition to clauses
A through C in Section 19(a), above, (X) the Employer shall be
obligated to pay to the Employee Employee's annual Base Salary
(at the time of termination), on a weekly basis or consistent
with the Employer's payroll practices at the time, for a period
of three (3) years from and after the date of termination (the
"Severance Amount"); (Y)
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Employee shall have the right to retain any stock options that were granted to
Employee prior to the date of termination of employment; and (Z) the Employer
shall, at its sole cost (except for Employee dependency coverage contributions,
if any, in effect prior to Employee ceasing to be employed by the Employer
hereunder) maintain in Ml force and effect from the date Employee ceases to be
employed by the Employer hereunder and for six (6) months thereafter, all
medical, health and accident, and disability plans, programs. or arrangements
in which Employee is entitled to participate immediately prior to Employee
ceasing to be employed by the Employer hereunder, provided that Employee's
continued participation is possible under the general terms and provisions of
such plans and programs. In the event that Employee's participation in any such
plan or program is barred (other than as a result of a misrepresentation or
misconduct of Employee), the Employer shall arrange at its sole expense to
provide him with benefits substantially similar to those which he is entitled
to receive under such plans and programs for the six-month term, including,
without limitation, reimbursement of COBRA premium payments. To the extent that
Employee mitigates his damages through the accrual or receipt of a salary, or
the provision of health or other benefits referenced hereinabove, through
self-employment or employment with another entity, the Severance Amount and/or
applicable benefits referenced hereinabove shall be adjusted by off-set of
amounts or benefits received by Employee in mitigation. Upon written request by
Employer, Employee shall provide to Employer information as to such mitigation
within ten (10) days of receipt of such request. If Employee's employment is
terminated without Cause, Employee shall be deemed released from the
non-competition provisions of Section 22 of this Agreement upon such
termination; provided, however, Employee shall not be deemed released from his
obligations under Sections 3, 4, 5, 6, 7 or 13 of this Agreement.
(c) Voluntarily By Employee. Employee may, at his option, terminate
his employment under this Agreement anytime after the second
anniversary of the effective date herein upon ninety (90) days
prior written notice to Employer. If Employee voluntarily
terminates employment with Employer, then Employee shall receive
only (i) his Base Salary and benefits earned but unpaid up to the
date of termination of employment, (ii) two weeks salary,
calculated based on Employee's salary then in effect at the time
of termination of employment, (iii) the prorated portion of any
bonuses earned but unpaid at the time of termination of
employment, calculated in accordance with subsection (a)(ii)
above; and, if Employee voluntarily terminates his employment
pursuant to Section 20, Employee shall also be entitled to retain
any exercisable stock options.
(d) If Employee is terminated for Cause or if Employee voluntarily
terminates his employment (except in the event of a Change of
Control (defined below), any stock options granted to Employee
under a Stock Option Plan or otherwise shall terminate
immediately upon termination of employment.
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(e) Employee's employment with the Company may not be terminated for
Cause under Section 19(a), above, or without Cause under Section
19(b), above, without the approval of a majority of the members
of the Board of Directors then `in office.
20. TERMINATION BY EMPLOYEE UPON CHANGE OF CONTROL. The Employee may
terminate Employee's employment at any time by giving ten (10) days prior
written notice to tile Employer upon a Change of Control. A "Change of Control"
means the occurrence of any of the following events after the date of this
Agreement:
(a) a change in control of the Employer occurring after the date of
this Agreement of a nature that would be required to be reported
in response to Item I of the Current Report on Form 8-K (or in
response to any similar item on any similar schedule or form)
promulgated under the Securities Exchange Act of 1934 (the
"Act"), whether or not the Employer is then subject to such
reporting requirement;
(b) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Act), directly or indirectly, of securities of
the Employer representing twenty-five percent (25%) or more of
the combined voting power of the Employer's then outstanding
securities without the prior approval of at least two-thirds of
the members of the Board in office immediately prior to such
person attaining such percentage (excluding for this purpose, any
acquisitions by (X) the Employer or its subsidiaries, (Y) any
person, entity or "group" that as of the date of this Agreement
owns beneficial ownership, as defined in Rule 13d-3 of the Act,
or (Z) any employee benefit plan of the Employer or its
subsidiaries;
(c) the Employer is a party to a merger, consolidation, sale of
assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board in office immediately
prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter; or
(d) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board (including for
this purpose any new director whose election or nomination for
election by the Employer's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who
were directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board.
21. DEATH DURING EMPLOYMENT. Upon the death of Employee during the
term of employment, the Employer shall pay to Employee's estate the
compensation that would otherwise be payable to the Employee through the end of
the month of his death. In addition, three months further compensation shall be
paid in one (1) lump sum to his surviving spouse or, if there is no surviving
spouse, to the surviving children of the Employee, or to his estate if there
are no surviving children.
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22. NON-COMPETITION.
(a) During his employment, and for a period of two (2) years after
the expiration or termination of such employment (the
"Noncompetition Period"), Employee specifically agrees that
Employee shall not (except on the behalf of Employer or any of
its affiliated entities while Employee is employed by Employer),
and except those businesses disclosed on Exhibit (1), either
directly or indirectly, as a stockholder of any corporation or
partner of any partnership or as an employee, owner, principal or
agent, or in any other manner, engage in any business within a
radius of 100 miles from any location of Employer's business (the
"Geographic Area"), which competes with, in any manner, any
business conducted by Employer at the time of termination of this
Agreement. Employee agrees that so long as Employee is working
for Employer, Employee shall not undertake the planning or
organizing of any business activity competitive with the business
of Employer. Employee agrees not to directly or indirectly
solicit any of Employer's employees to work for Employee or for
any business which is competitive with any business conducted by
Employer prior to the date on which Employee's employment with
Employer is terminated with Employer within the Geographic Area
and during the Noncompetition Period.
(b) The periods of time during which Employee is prohibited from
engaging in such business practices pursuant to this Section 22
shall be extended by any length of time during which Employee is
in breach of any of such covenants. The restrictive covenants
contained within this Section 22 are essential elements of this
Agreement, and that, but for the agreement of Employee to comply
with such covenants, Employer would not have entered into this
Agreement. If any portion of the covenants set forth in this
Section 22 are held by a court of competent jurisdiction to be
unreasonable, arbitrary or against public policy, then such
portion of such covenants shall be considered divisible both as
to time and geographical area. Employer and Employee agree that,
if any court of competent jurisdiction determines that the
Noncompetition Period or the Geographic Area applicable to this
Agreement is unreasonable, arbitrary and/or against public
policy, then a lesser time period or geographical area which is
determined to be reasonable, non-arbitrary and not against public
policy may be enforced against Employee.
(c) Intentionally Omitted.
(d) Employee acknowledges that any violation of this Section 22 will
result in irreparable injury to Employer for which there is no
adequate remedy at law.
Employee agrees that, in the event he breaches or threatens to
breach this Section 22, Employer, without posting a bond, shall
be entitled to injunctive relief, both
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preliminary and permanent. in addition to any other remedies at
law or in equity available to Employer.
(e) If Employee's employment with Employer is terminated without
Cause, Employee shall be deemed released from his obligations
under this Section upon such termination.
23. DISPUTES: ATTORNEYS' FEES. Except in the case of Employer's right
to seek injunctive relief under Section 22(d) and Section 24(b) of this
Agreement, the parties mutually agree to submit any controversy or claim
arising out of or proceeding forth from or relating to this Agreement or its
breach to be sealed by arbitration (which may be binding if the parties
mutually agree at the time). Such arbitration shall be held in the County of
Seminole, State of Florida, utilizing the procedure and arbitrators acquainted
with the American Arbitration Association rules and procedure for arbitration.
If binding arbitration, judgment upon award rendered may be entered and
enforced in any court of competent jurisdiction. In the event any dispute
arises under the terms hereof, Employer shall continue to pay Employee the Base
Salary and benefits to which he is entitled hereunder until such time that a
final determination is made by an arbitrator hereunder; provided, however,
however, that if it is determined that the termination of Employee's employment
was justified, the Employee hereby undertakes and agrees to repay to the
Employer the amount of Base Salary that was paid by Employer during the
arbitration procedure. The non-prevailing party shall be responsible for the
prevailing party's reasonable legal fees and costs (including post-judgment
collection fees and costs).
24. ENFORCEMENT.
(a) Whenever there is any conflict between any provision of this
Agreement and any law, statute, governmental rule, ordinance or
regulation, the latter shall prevail. In such event, the affected
provisions of this Agreement will be cur-tailed and restricted
only to the extent necessary to bring them within the legal
requirements, and the remainder of this Agreement shall not be
affected. Should it be determined that any provision of this
Agreement is unenforceable, the Employee specifically requests
that the court or arbitrator making such determination modify and
reform the provision found to be unenforceable, and in its
modified form, specifically enforce the Agreement.
(b) Employee acknowledges that any violation of Sections 4, 5, 6, 7,
I') or 22 of this Agreement (referred to individually and
collectively in this subsection (b) as "Sections") will result in
irreparable injury to Employee for which there is no adequate
remedy at law. Employee agrees that, in the event he breaches or
threatens to breach any of such Sections, Employer, without
posting a bond. shall be entitled to injunctive relief, both
preliminary and permanent, in addition to any other remedies at
law or in equity available to Employer.
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25. INDEMNIFICATION. Employee shall be indemnified in accordance with
the terms and provisions of that certain Indemnification Agreement, dated as of
the date her eof, between Employer and Employee.
26. CHOICE OF LAW. This Agreement and the performance hereunder and
all suits and special proceedings hereunder shall be construed in accordance
with the laws of the State of Florida. In any action, special proceeding or
other proceeding that may be brought arising out of, in connection with, or by
reason of this Agreement, the laws of the State of Florida shall be applicable
and shall govern to the exclusion of the law of any other forum, without regard
to the jurisdiction in which the action or special proceeding may be
instituted. All actions under this Agreement, if not resolved by arbitration,
shall be taken in a court of competent jurisdiction within Seminole County,
Florida and Employee hereby waives and agrees that he shall not assert that
such forum is inconvenient.
27. NOTICES. Any notice required or desired to be given under this
Agreement shall be deemed given if in writing and sent by certified U.S. mail,
or by Federal Express or other overnight delivery service to the Employee's
residence, or to the Employer's principal office, as the case may be.
28. WAIVER OF BREACH. Employer shall waive a breach by the Employee of
any provision of this Agreement only if such waiver is executed in writing by a
duly authorized officer of the Employer. Employee shall waive a breach by the
Employer of any provision of this Agreement only if such waiver is executed in
writing by Employee.
29. ASSIGNMENT. Both parties acknowledge that the services of the
Employee and the Employer are unique to this Agreement and neither party mav
assign the rights or delegate the duties of this Agreement to another.
Notwithstanding anything herein to the contrary, the Employee ma perform his
unique services under this Agreement for any of the subsidiaries, affiliates or
joint ventures of the Employer.
30. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties and may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
31. HEADINGS. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe the provisions hereof.
32. COUNTERPARTS. This Agreement mav be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
33. WAIVER OF CONFLICT OF INTEREST. The parties acknowledge that,
notwithstanding Employee's use of Employer's attorneys for personal legal
matters unrelated to this Agreement, the Employer may continue to use the legal
counsel of its choice in connection with the
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13
resolution of any disputes between the parties hereto without such
representation constituting an improper or ethical conflict of interest.
34. FURTHER ACTIONS. Each parry to this Agreement shall take such
further actions to execute, file, record, publish and deliver such additional
certificates, instruments, agreements and other documents as the other party
may, from time to time, reasonably request, in order to accomplish the purposes
of this Agreement.
35. INTENTIONALLY DELETED.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the date and year indicated above.
EMPLOYEE: /s/ XXXXXX XXXXXXX
------------------
XXXXXX XXXXXXX
EMPLOYER: MIRACOM CORPORATION
By: /s/ XXXXX XXXXXXX
------------------------
Name: XXXXX XXXXXXX
Title: PRESIDENT
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14
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement ("Amendment") was entered into
effective November 8, 1999, by and between MIRACOM CORPORATION (hereinafter,
the "Employer") and XXXXXX XXXXXXX) (hereinafter, the "Employee").
RECITALS
A. WHEREAS, on April 12, 1999, Employer and Employee entered into an
employment agreement (the "Employment Agreement"); and
B. WHEREAS, Employer and Employee desire to make certain modifications
to the Employment Agreement as hereinafter set forth.
NOW THEREFORE, in consideration of Employee's employment and
possibility of promotion, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, it is hereby agreed
that the Employment Agreement is amended in the following particulars:
36. Section 9 (Compensation). Subsection 9(a) of the Employment
Agreement is hereby amended to change Employee's the Base Salary to $72,000 per
year, effective November 8, 1999, payable bi-weekly or otherwise in accordance
with Employer's standard payroll practices. Further amended and in accordance
with Employer's current standard payroll practice at the time, the employee
shall receive a base salary of $42,000 for the period April 12, 1999 through
October 10, 1999 and shall defer payment of the difference between the original
Base Salary ($84,000) and the newly adjusted amount ($42,000) for that same
time period. All other provisions of subsection 9(a) not amended hereby shall
remain the same. All other provisions of subsection 9(a) not amended hereby
shall remain the same.
37. Section 10 (Duties). Section 10 is hereby amended in its entirety
as follows:
"The Employee is engaged to act as the Director of Operations and
as such shall be responsible for supervising quality and
assurance, with such additional responsibilities as the Employer
may determine to be in the best interest of the Employer, and
which are appropriate for a similar position in organizations of
the type and size of Employer. Employee agrees to serve in such
capacity, unless the Employee's duties and responsibilities
substantially change or increase, or unless mutually agreed
otherwise. Employee shall report directly to the President and the
Senior Vice President of Software Development. Employee will use
his best efforts to promote the interests of the Employer.
Employee will not be required to travel on behalf of the Employer
(outside of travel to and from Employer's corporate offices) for
more than thirty-six (36) days per calendar year."
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15
38. Section 15 (Vacations). Section 15 is hereby amended in its
entirety as follows:
"(a) Employee shall be entitled each year to a vacation, which
period of time and date of scheduling will be mutually agreed upon
by Employer and Employee; provided, however, the Employee, in any
case, shall be entitled to not less than two weeks vacation time
per year, and cumulative compensation for such vacation time shall
be paid each year to the Employee if such vacation is not taken in
the applicable year or if not carried forward to the next calendar
year in accordance with this Section 15. Employee shall be
entitled to carry over one (1) week of unused vacation to the next
succeeding calendar year.
(b) Employee shall be paid the pro rata portion of his regular
Base Salary and provided all other benefits as specified in
Section 9 during any vacation period taken. Any payments made to
Employee in respect of vacation not taken or rolled over to the
next calendar year shall be paid to Employee in the last pay
period of the calendar year in which such vacation was not taken.
The maximum compensation payable to Employee in any calendar year
for unused vacation shall be two weeks of unused vacation in such
calendar year plus one week of unused vacation, if any, that was
rolled over as unused vacation from the previous calendar year."
39. All other provisions of the Employment Agreement not herein
amended remain in full force and effect.
IN WITNESS WHEREOF, the parties hereby have executed this Amendment to
Employment Agreement as of September 30, 1999 to be effective November 8, 1999.
EMPLOYEE: /s/ XXXXXX XXXXXXX
------------------
XXXXXX XXXXXXX
EMPLOYER: MIRACOM CORPORATION
By: /s/ XXXXX XXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Co-Chief Executive Officer
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