EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is being
entered into as of the 5th day of April 2004 between Xxx Xxxxx, residing at 000
Xxxx Xxxxxxxx, Xxx Xxxx, XX 00000 (the "Employee"), and TTR Technologies, Inc.,
a Delaware corporation located at 0000 00xx Xxxxxx, Xxxxxxxx, XX 00000 (the
"Company");
WHEREAS, the Employee entered into an Amended and Restated Employment
Agreement dated as of May 27, 2002, (the "Original Agreement"), pursuant to
which Employee is employed as the Company's Chief Operating Officer ("COO"); and
WHEREAS, in connection with the re-structuring of the management of the
Company, the Employee and the Company desire to redefine Employee's role in the
Company;
WHEREAS, in connection with the above, the Company and Employee desire
amend and restate the Original Agreement in its entirety as herein provided.
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein, the Employee and the Company hereby agree as follows:
1. RESTATEMENT OF THE ORIGINAL EMPLOYMENT AGREEMENT.
By his signature hereof, Employee hereby waives any rights and privileges
under the Original Employment Agreement and agrees that upon the Start Date (as
defined below), the Original Employment Agreement shall be of no continuing
legal force and effect.
2. EMPLOYMENT
2.1 RESIGNATION OF EXECUTIVE POSITION.
2.1.1 Upon delivery hereof, the Employee shall be deemed to have
resigned from his position as COO, and from any and all other executive offices
he has held at the Company and/or any of its affiliates and subsidiaries.
2.1.2 The parties acknowledge and agree that the Company's signature to
this Agreement shall serve as its acceptance of Employee's resignation from
these capacities, and of its responsibility to provide timely notification of
such resignation to the Board, to the Company's affiliates and subsidiaries, and
to all authorities to whom such resignation must be reported by law. Employee
agrees to execute any reasonably necessary document to facilitate and effect any
notification of his resignation of positions with the Company.
2.1.3 Employee acknowledges and agrees that the Company will issue a
public press release relating to the subject matter of this Agreement and
Employee will be provided an opportunity to review such press release prior to
its public release.
2.2 NEW POSITIONS; TERM; RESPONSIBILITIES
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2.2.1 Upon the delivery hereof, Employee shall assume the position of
Vice President, Internal Operations, a non-executive position and shall carry
out duties commensurate with the position, including without limitation,
overseeing the Company's compliance requirements under applicable securities
laws. In his new position the Employee shall be directly answerable to the Chief
Executive Officer. The start date (the "Start Date") of the position shall be
April 5, 2004.
2.2.2 The term of this Agreement shall commence on the Start Date and
continue through October 5, 2004, provided, that, at the end of such term such
employment shall automatically renew in accordance with the terms hereof on a
month-to-month basis (at will) unless either the Employee or the Company shall
have provided notice to the other at least two weeks prior to the scheduled
expiration of such party's election to not continue this Agreement. Upon
termination or expiration of this agreement, the Company and Employee shall
execute and deliver to one another mutual releases of liability in a form and
substantially satisfactory to each party.
2.2.3 Notwithstanding anything to the contrary contained herein, the
termination of Employee's employment hereunder for any reason shall
automatically be deemed as Employee's resignation from the Board without any
further action, except when the Board shall, in writing, request a continuation
of duty as a Director in its sole discretion.
2.2.4 Employee shall devote twenty (20) hours per week to his employment
during normal business hours. The specific hours of Employee's employment shall
be mutually agreed to by the parties on an on-going ad hoc basis.
2.2.5 Employee shall perform his New Position duties from his home or
from such other place that he shall designate and shall not be required to be
present at the Company's offices.
3. COMPENSATION
3.1 LUMP SUM PAYMENT
In consideration of Employee's entering into this amended and restated
Agreement, on the Start Date the Company shall remit by wire transfer to a bank
account designated in writing by Employee, the sum of seventy-five thousand
dollars ($75,000), less, deductions and withholdings under applicable law
customarily made by the Company and/or required by law, and, by his signature
below, Employee hereby waives any claim to any other payments (other than the
Salary set forth herein) due under any previous agreement with the Company or
its affiliates.
3.2 SALARY
Commencing on the Start Date and while this Agreement continues in
effect, Company will pay to Employee during the term of his employment
hereunder, a monthly gross salary of, Seven Thousand Five Hundred Dollars
($7,500) less required deductions for state and federal withholding tax, social
security and other employee taxes (the " Salary"). Salary shall be payable in
accordance with the Company's normal payroll practices, but no less frequently
than once each month.
3.3 STOCK OPTIONS
Employee's stock options heretofore granted by the Company have already
vested in full, are immediately exercisable and shall continue to be exercisable
for six months following the Employee's last day of employment with the Company
on the terms and
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conditions applicable to such grants, including, without limitation, the
exercise price thereof, in accordance with the Company's 2000 Equity Incentive
Plan and terms of various option agreements entered into between Employee and
Company. The Company confirms that the rights to the aforementioned options
shall inure to the benefit of the Employee's heirs and successors.
3.4 BENEFITS
3.4.1 Through the Term, Employee shall be entitled to continue to
participate in the Company provided health insurance plan at no
cost to Employee.
3.4.2 The Company shall reimburse Employee for one-half of the gross
amount of Employee's mobile phone and internet access expenses.
Employee shall provide the Company an accounting of such expenses
in accordance with Company policy.
3.4.3 The Company hereby transfers to the Employee the notebook computer
that Employee has been using to date as an employee of the
Company. Upon request of the Company at the termination of this
Agreement Employee shall provide to Company a copy of Company
related non personal files saved in the said computer.
4. RIGHTS UPON TERMINATION
4.1 If Employee's employment is terminated by the Company for any
reason other than "cause" or the death or "disability" of the Employee (i) the
Company shall pay to Employee his base salary and benefits accrued and payable
to him through the last day of his actual employment by the Company, (ii)
Employee's base salary and benefits shall continue (in the customary manner in
which Company has paid the base salary and benefits) for the remainder of the
term of this Agreement, and (iii) the Company shall pay Employee for all
outstanding reimbursable expenses.
For the purpose of this paragraph, "disability" shall mean any physical
or mental illness or injury as a result of which Employee remains absent from
work for a period of two (2) successive months.
For the purpose of this paragraph 2, "cause" shall exist if Employee (i)
breaches any of the material terms or conditions of this Agreement; (ii)
substantially fails to perform the Employee's areas of responsibility set forth
herein, (iii) engages in willful misconduct or acts in bad faith with respect to
the Company, in connection with and related to the employment hereunder, (iv) is
convicted of a felony, (v) fails to comply with the lawful instructions of the
Company's Board of Directors in a manner materially detrimental to the Company
5. CONFIDENTIALITY
5.1 The term "Information" as used in this section means any and all
confidential and proprietary information including but not limited to any and
all specifications, formulae, prototypes, software design plans, computer
programs, and any and all records, data, methods, techniques, processes and
projections, plans, marketing information, materials, financial statements,
memoranda, analyses, notes, and other data and information (in whatever form),
as well as improvements and know-how related thereto, relating to the Company or
its products. Information shall not include information that (a) was already
known to or independently developed by the Employee prior to its disclosure as
demonstrated by reasonable and tangible evidence satisfactory to the Company;
(b) shall have appeared in any printed publication or patent or shall have
become part of the public knowledge except as a result of breach of this
Agreement by the Employee or similar agreements by other
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Company employees (c) shall have been received by the Employee from another
person or entity having no obligation of confidentiality to the Company or (d)
is approved in writing by the Company for release by the Employee.
5.2 Subject to the provisions of Section 4.3 below, the Employee
agrees to hold in trust and confidence all Information disclosed to Employee and
further agrees not to exploit or disclose the Information to any other person or
entity or use the Information directly or indirectly for any purpose other than
for Employee's work with the Company, unless otherwise consented to in writing
by the Company.
5.3 The Employee agrees to disclose the Information only to persons
necessary in connection with Employee's work with the Company or who have
undertaken the same confidentiality obligations set forth herein in favor of the
Company. The Employee agrees to assume full responsibility for the
confidentiality of the Information disclosed to Employee and to prevent its
unauthorized disclosure, and shall take appropriate measures to ensure that such
persons acting on his behalf are bound by a like covenant of secrecy.
5.4 The Employee acknowledges and agrees that the Information
furnished hereunder is and shall remain proprietary to the Company. Unless
otherwise required by statute or government rule or regulation, all copies of
the Information, shall be returned to the Company immediately upon request
without retaining copies thereof.
6. NON-COMPETE; POACHING,; DEVELOPMENT RIGHTS
6.1 NON-COMPETE
Unless otherwise expressly consented to in writing by the Company, during
the term of the Employee's employment hereunder, and for a period of twelve (12)
months following the date on which Employee's termination of employment with the
Company becomes effective Employee will not, directly or indirectly, for his own
account or as an employee, officer, director, consultant, joint venturer,
shareholder, investor, or otherwise (except as an investor in a corporation
whose stock is publicly traded and in which the Employee holds less than 5% of
the outstanding shares) interest him/herself or engage, directly or indirectly,
in the design, development, production, sale or distribution of any product or
component that directly or indirectly competes with a product or component (i)
being designed, produced, sold or distributed by the Company or any of its
affiliates (ii) or to which the Company or any of its affiliates shall then have
proprietary rights; provided such affiliates operate in a field directly related
to the business of the Company or involve distribution or promoting of the
Company's products or technology
6.2 HIRING OF COMPANY EMPLOYEES
During the term of the Employee's employment hereunder, and for a period
of twelve (12) months following the date on which Employee's termination of
employment with the Company becomes effective, the Employee shall not, except in
the course of the performance of his duties hereunder or with the prior approval
of the Board, in any way directly or indirectly, with respect to any person who
to the Employee's knowledge was employed by the Company or its affiliates
("Company Employee") at any time during the period commencing 12 months prior to
the date of the hiring of such Company Employee, hire or cause to be hired any
Company Employee, or contract the services of any closely held private
corporation or other entity in which such Company Employee is an officer or
director or holds a 25% or greater equity ownership interest.
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6.3 Employee acknowledges that the restricted period of time specified
under this Section 6 are reasonable, in view of the nature of the business in
which the Company is engaged and Employee's knowledge of the Company's business
and products. If such a period of time or geographical location should be
determined to be unreasonable in any judicial proceeding, then the period of
time and area of restriction shall be reduced so that this Agreement may be
enforced in such an area and during such a period of time as shall be determined
to be reasonable by such judicial proceeding.
6.4 Development Rights.
The Employee agrees and declares that all proprietary information
including but not limited to trade secrets, know-how, patents and other rights
in connection therewith developed by or with the contribution of Employee's
efforts during his employment with the Company shall be the sole property of the
Company. Employee shall keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by
the Company) of all such proprietary information developed by Employee. Employee
shall at Company's request do all things and execute all documents as Company
may reasonably require to vest in Company the rights and protection herein
referred to. It is hereby acknowledged and agreed that the Base Salary payable
under this Agreement also constitutes sufficient consideration for the
Employee's obligation hereunder
7. Miscellaneous
7.1 Governing Law
This Agreement, its validity, construction and effect shall be governed
by and construed under the laws of the State of New York without reference to
its conflict of laws principles. The parties hereby irrevocably consent to the
jurisdiction of the courts of New York County, State of New York or the United
States District Court for the Southern District of New York for all actions,
disputes, controversies, differences or questions arising out of or relating to
this Agreement. Each of the Company and Employee agree that in any litigation
involving the subject matter of this Agreement they waive the right to a trial
by Jury.
7.2 Integration
This Agreement constitutes the entire understanding between the parties
hereto relating to the subject matter hereof, superseding all negotiations,
prior discussions, preliminary agreements and agreements related to the subject
matter hereof made prior to the date hereof.
7.3 Modifications & Amendments
This Agreement may be modified or amended only by an instrument in
writing executed by the parties hereto and approved in writing by the Board of
Directors. Such modification or amendment will not become effective until such
approval has been given.
7.4 Severability
If any of the terms or conditions of this Agreement shall be declared
void or unenforceable by any court or administrative body of competent
jurisdiction, such term or condition shall be deemed severable from the
remainder of this Agreement, and the other terms and conditions of this
Agreement shall continue to be valid and enforceable.
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7.5 Notice
For the purpose of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given as of the date if delivered in person or by telecopy, on the
next business day, if sent by a nationally recognized overnight courier service,
and on the second business day if mailed by registered mail, return receipt
requested, postage prepaid, in each case addressed as follows:
If to the Employee:
Xxxxxx Xxxxx
000 Xxxx Xxxxxxxx
Xxx Xxxx, XX 00000
If to the Company:
TTR Technologies, Inc.
0000 00xx Xxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxxx Xxxxxx
Aboudi and Xxxxxxxxxx
0 Xxxxxx Xx., Xxx. Xxxx Xxxx Xxxx
ISRAEL
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of changes of address shall be
effective upon receipt.
7.6 Waiver
The observation or performance of any condition or obligation imposed
upon Employee hereunder may be waived only upon the written consent of the Board
of Directors. Such waiver shall be limited to the terms thereof and shall not
constitute a waiver of any other condition or obligation of the Employee under
this Agreement.
7.7 Assignment
The rights and obligations of the Company in this Agreement shall inure
to its benefit and be binding upon its successors-in-interest (whether by
merger, consolidation, reorganization, sale of stock or assets or otherwise),
however the Company may not assign this Agreement to any affiliate. This
Agreement, being for the personal services of Employee, shall not be assignable
by Employee.
7.8 Headings
The headings have been inserted for convenience only and are not to be
considered when construing the provisions of this Agreement.
7.9 Counterparts
This Agreement may be executed in one or more counterparts, each of which
counterparts, when taken together, shall constitute but one and the same
agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
TTR TECHNOLOGIES, INC.:
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: CEO
Date: 04/09/2004
EMPLOYEE:
/s/ Xxxxxx Xxxxx
----------------------------
Xxxxxx Xxxxx
Date: 04/08/2004
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