AGREEMENT
THIS AGREEMENT (the "Agreement") is being made as of this 11th day of
May, 1998, between NAM Corporation, a Delaware corporation, with offices at
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxx, Xxx Xxxx 00000 (the
"Company"), and Xxxx Xxxxx, an individual residing at 00 Xxxxx Xxxx, Xxxxxxx,
Xxx Xxxx 00000 (the "Employee").
W I T N E S S E T H :
WHEREAS, the Employee has expertise in providing the services sought
by the Company; and
WHEREAS, the Company desires to employ the Employee during the term
of this Agreement, and Employee is willing to be employed subject to the terms
and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and
agreements contained herein, and intending to be legally bound hereby, the
parties agree as follows:
1. Engagement and Duties. During the term of this Agreement, the
Company shall employ Employee and Employee agrees to be employed by the
Company as Vice President of Marketing and to devote her full time and efforts
in performing the services requested by the Company. The Employee shall at all
times serve at the direction of the Chief Executive Officer.
2. Term. This Agreement shall commence on July 20, 1998 and shall
continue until July 20, 2001 (the "Initial Term"). This Agreement shall
automatically renew for an additional one (1) year (the "First Renewal Term")
period unless the Company or the Employee gives notice of termination at least
forty-five (45) days prior to the end of the Initial Term. Thereafter, this
Agreement shall automatically renew for additional one (1) year periods (the
"Successive Renewal Term") unless the Company or Employee gives notice of
termination at least forty-five (45) days prior to the end of the First
Renewal Term or any Successive Renewal Term thereafter.
3. Compensation. As compensation for her services hereunder, the
Company shall pay Employee a base salary of $92,000 per annum ("Base Salary")
which shall be payable in equal bi-weekly installments. In addition, Employee
shall receive from the Company the following:
(a) Employee shall be entitled to receive an annual bonus at the
discretion of the Chief Executive Officer which will be paid in accordance
with the policies of the Company;
(b) The Base Salary shall be increased each year of only the Initial
Term by of 5% beginning in July 1999. Thereafter, all increases to the Base
Salary will be at the discretion of the Chief Executive Officer.
(c) Employee shall receive $400 a month toward the lease and
operation of an automobile.
(d) Upon execution of the Agreement, the Employee shall be granted
options to purchase 20,000 shares of Common Stock (the "Options") with an
exercise price equal to the closing bid price on the date of this Agreement as
reported by the NASDAQ Small Cap Market. The Options shall vest as follows:
(i) 1/3 on July 20, 1999, (ii) 1/3 on July 20, 2000, and (iii) 1/3 on July 20,
2001, as long as the Employee is employed by the Company on each date pursuant
to this Agreement. If the Employee is not employed by the Company on such
dates, then the Employee will have no rights or interests to the non-vested
portions of the Options. The Options shall be for 8 years from the date hereof
and shall be subject to the terms and conditions of the Company's 1996 Stock
Option Plan and memorialized in a stock option certificate to be issued by the
Company. Employee shall also be eligible to receive additional options under
the Plan at the discretion of the Board of Directors.
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4. Benefits/Vacation. Employee shall be entitled to participate in
all benefit programs offered by the Company subject to the terms and
conditions of such programs.
5. Expenses. Employee shall be entitled to reimbursement of
reasonable expenses incurred on behalf of the Company. At the end of each
month, Employee shall submit an itemized expense report with each expense
documented by appropriate receipts. Reimbursement of an expense shall be at
the sole discretion of the Company and Employee shall receive reimbursement in
accordance with Company policy.
6. Employee's Representations. Employee hereby represents and
warrants that she has full power and authority to enter into this contract and
that she has no obligation, contractual or otherwise, (i) to provide services
to any entity or person besides the Company; or (ii) that would conflict with
her obligations to the Company under this Agreement.
7. Inability to Work/Death.
(a) If Employee is mentally or physically unable to perform his
duties under this Agreement for a period of ninety (90) days then the Company
may terminate this Agreement upon ten (10) days notice and the Company shall
be liable to Employee only for the amount of Base Salary owed through the date
of termination as set forth in the notice.
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(b) If Employee dies during the term of this Agreement, this
Agreement shall terminate on the date of her death and the Company shall be
liable to Employee only for the amount of Base Salary owed through such date.
8. Termination.
(a) Notwithstanding anything herein contained, if on or after the
date hereof and prior to the end of the term of this Agreement, Employee is
terminated "For Cause" (as defined below) then the Company shall have the
right to give notice of termination of Employee's services hereunder as of a
date to be specified in such notice, and this Agreement shall terminate on the
date so specified. Termination "For Cause" shall mean Employee shall: (i) be
convicted of a felony crime, (ii) commit any act or omit to take any action in
bad faith and to the detriment of the Company, (iii) commit an act of moral
turpitude, (iv) commit an act of fraud against the Company, or (v) materially
breach any term of this Agreement and fail to correct such breach within five
(5) days after commission thereof. If Employee is terminated pursuant to this
subsection then the Company shall be liable to Employee only for the amount of
Base Salary owed through the date of termination as set forth in the notice.
(b) Notwithstanding anything herein contained, the Employee may be
terminated "Without Cause" upon notice from the Company.
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9. Confidentiality. In order to induce the Company to enter into this
Agreement, Employee hereby agrees that, except with the written consent of the
Company, Employee shall keep confidential and not divulge to any person that
is not affiliated with the Company, during the term of this Agreement or any
time thereafter, any of the Company's confidential information and business
secrets, including, without limitation, confidential information and business
secrets relating to such matters as the Company's finances and operations, the
materials, processes, and procedures used in the Company's operations, the
names of the Company's clients and their requirements, and the names of the
Company's suppliers. All papers, books, and records of every description,
including, without limitation, handbooks, manuals, client lists, computer
software, programs, modules, or source codes, as well as all reproductions
thereof, relating to the business and affairs of the Company, its clients or
suppliers, whether or not prepared by Employee, shall be the sole and
exclusive property of the Company. Employee shall surrender all tangible
evidence of such information to the Company at the termination of this
Agreement or at any time during the term of this Agreement upon request by the
Company.
10. Non-Compete. In consideration of the compensation to be received
by Employee from the Company, Employee shall not: (a) during the period
Employee is employed with the Company, engage in, or otherwise directly or
indirectly be employed by, or act as a consultant or lender to, or be a
director, officer, employee, owner, member or partner of, any business or
organization that is or shall then be competing with the Company; and (b) for
a period of one (1) year after the termination of this Agreement, directly or
indirectly, (i) market or provide any competitive services to, or solicit any
business from, any clients of the Company; or (ii) solicit, contact, or employ
or offer to employ any person who is employed by the Company at the time that
Employee ceases being employed by the Company or any person hired by the
Company after such time. If any restriction contained in this section shall be
deemed invalid, illegal, or unenforceable by reason of the extent, duration,
or geographical scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration,
geographical scope or other provision hereof to the fullest extent allowed by
law, and in its reduced form such restriction shall then be enforceable in the
manner contemplated hereby.
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11. Arbitration. The parties agree that in the event of any dispute
or controversy arising out of or in connection with this Agreement, or any
alleged breach thereof, (a "Dispute"), the parties shall arbitrate the Dispute
before three arbitrators with the arbitration to be held in New York City
under the rules promulgated by NAM Corporation. The Company and the Employee
shall each choose 1 arbitrator and then the 2 arbitrators chosen shall jointly
choose the 3rd arbitrator. The parties shall have 10 business days from
receipt of a demand for arbitration in which to choose an arbitrator. If a
party fails to choose an arbitrator within such time period then the
arbitrator chosen by the non-defaulting party shall choose an arbitrator and
the arbitration shall proceed before only 2 arbitrators. Nothing in this
Agreement shall prevent the Company or the Employee from seeking appropriate
injunctive relief in aid of arbitration to enforce any provision of this
Agreement from a federal or state court located in New York, and the parties
irrevocably and unconditionally consent to the exclusive jurisdiction of such
courts in New York solely for any such injunctive action. The decision of the
arbitrators will be final and binding upon the parties, and the judgment of a
court of competent jurisdiction may be entered thereon. Fees of the arbitrator
and the cost of arbitration shall be borne as determined by the arbitrators.
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12. Modification. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof, supersedes all
existing agreements between them concerning such subject matter, and may be
modified only by a written instrument duly executed by each party.
13. Notices. All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been duly given if
delivered by hand, mailed within the continental United States by first class,
certified mail, return receipt requested, postage and registry fees prepaid,
or sent by Federal Express or any other nationally recognized overnight
courier, or sent by telecopy or facsimile transmission (with receipt
confirmed), to the applicable party and addressed to the addresses set forth
in the preamble. Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof, except for a
notice changing a party's address which shall be deemed given at the time of
receipt thereof. Any notice or other communication given by overnight courier
shall be deemed given one day after delivery to such courier. Any notice or
other communication sent by telecopy or facsimile transmission shall be deemed
given at the time of confirmation of receipt.
14. Waiver. Any waiver by either party of a breach of any provision
of this Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term
of this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
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15. Merger. In the event of a future disposition of the properties
and business of the Company, substantially as an entirety, by merger,
consolidation, sale of assets, sale of stock, or otherwise, then the Company
may elect to assign this Agreement and all of its rights and obligations
hereunder to the acquiring or surviving corporation.
16. Binding Effect. Employee's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to encumbrance or the claims of Employee's creditors, and
any attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of Employee and his
heirs and personal representatives, and shall be binding upon and inure to the
benefit of the Company and its successors and those who are its assigns.
17. Headings. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
18. Miscellaneous.
(a) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(b) It shall be governed by, and construed in accordance with, the
laws of the State of New York, without giving effect to the rules governing
conflicts of laws.
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(c) Employee irrevocably consents to the jurisdiction of the courts
of the State of New York and of all federal courts located in such state in
connection with any action or proceeding arising out of or relating to this
Agreement or the breach thereof. In any such action or proceeding, Employee
waives personal service of any summons, complaint, or other process and agrees
that service thereof may be made in accordance with Section 14 hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
NAM CORPORATION
/s/ Xxxx Xxxxx By: /s/ Roy Israel
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Xxxx Xxxxx Name: Roy Israel
Title: CEO
