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EXHIBIT 10.52
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of February 9th, 2000, by and between Xxxxx Xxxxx (the "Employee") and
Xxxxxxx.xxx, Inc. (the "Company").
RECITALS
A. XX.xxx Incorporated, a Delaware corporation ("XX.xxx"), the Company
and certain other parties are entering into an Agreement and Plan of
Reorganization dated as of February 9, 2000, which provides for the merger (the
"Merger") of a newly formed, wholly-owned subsidiary of the Company with and
into IZ-com.
B. The Company desires to retain the services of the Employee and the
Employee desires to be employed by the Company from and after the Merger, on the
terms and subject to the conditions set forth in this Agreement.
AGREEMENT
In consideration of the mutual covenants herein contained, the
continuing employment of the Employee by the Company, and other good and
Valuable consideration, the receipt and sufficiency of which arc hereby
acknowledged, the parties agree as follows:
1. Duties and Scope of Employment. The Company shall employ the
Employee in the position of Chief Operating Officer, with such duties,
responsibilities and compensation as in effect as of the Effective Date. Only
the Board of Directors of the Company in consultation with the Chief Executive
Officer (the "Board") shall have the tight to revise such responsibilities from
time to time as the Board may deem necessary or appropriate.
2. At-Will Employment; Severance. The Company and the Employee
acknowledge that the Employee's employment is and shall continue to be at-will,
as defined under applicable law. If the Employee's employment terminates for any
reason, Employee shall not be entitled to any payments, benefits, damages,
awards or compensation other than as follows: If the Employee's employment is
terminated by the Company without cause within two years after commencement of
his employment with the Company, the Employee will be entitled to a one-time
severance payment equal to six months of the Employee's base salary as of the
termination date. The Employee's stock option agreement(s) will also provide
that in such an event, all shares will vest which would otherwise have vested
through the date of termination and during the following six months as if the
options had vested on a monthly basis beginning on the Employee's employment
commencement date. The foregoing benefits are contingent on the Employee
entering into a severance agreement in such form as the Company reasonably
requests, which will include a waiver of any additional claims against the
Company. For purposes of the foregoing, "cause" means one or more of the
following: (i) material breach of any confidentiality, invention assignment or
other agreement with the Company which breach is not cured within ten (10) days
of receipt of written notice from the Company; (ii) negligence in the
performance of duties or nonperformance or misperformance of such duties that in
the good faith judgment of
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the Company adversely affects the operations or reputation of the Company; (iii)
refusal to abide by or comply with the good faith directives of the Board of
Directors or the Company's standard policies and procedures, which actions
continue for a period of at least ten (10) days after written notice from the
Company; (iv) any willful dishonesty, fraud, or misappropriation of funds with
respect to the business or affairs of the Company; (v) conviction by, or entry
of a plea of guilty or nolo contendre in, a court of competent and final
jurisdiction for any crime which constitutes a felony in the jurisdiction
involved; or (vi) abuse of alcohol or drugs (legal or illegal) that, in the
Company's judgment, materially impairs your ability to perform your duties.
3. Compensation and Benefits.
(a) Base Compensation. The Company shall pay the Employee as
compensation for the Employee's services an annual base salary of $250,000. Such
salary shall be subject to applicable tax withholding and shall be paid
periodically in accordance with normal Company payroll practices. Such salary
shall be subject to review on an annual basis, but shall not be subject to
reduction during the term of Employee's employment.
(b) Performance Bonus. The Employee shall be eligible for an
annual performance bonus, to be determined by the Company, in accordance with
the Company's customary practices for officer compensation.
(c) Benefits. The Employee shall be eligible to participate in
the employee benefit plans which are available or which become available to
other employees of the Company, with the adoption or maintenance of such plans
to be in the discretion of the Company, subject in each case to the generally
applicable terms and conditions of the plan or program in question and to the
determination of any committee administering such plan or program.
(d) Termination of Employment. In the event the Employee's
employment with the Company terminates (i) the Company shall pay the Employee
any unpaid base salary due for periods prior to the date of termination of
employment ("Termination Date"); (ii) the Company shall pay the Employee all of
the Employee's accrued and unused vacation through the Termination Date; and
(iii) following submission of proper expense reports by the Employee, the
Company shall reimburse the Employee for all expenses reasonably and necessarily
incurred by the Employee in connection with the business of the Company prior to
termination. These payments shall be made promptly upon termination and within
the period of time mandated by applicable law. In addition, in the event the
Employee's employment with the Company terminates, the Employee shall be
entitled to any benefits due to him under the agreements, plans and practices
referred to in Sections 2 and 3(c) hereof.
4. No Impediment to Agreement. The Employee hereby represents to the
Company that the Employee is not, as of the date hereof, and will not be during
the Employee's employment with the Company, employed under contract, oral or
written, by any other person, firm or entity in a manner that conflicts in any
material respect with the Employee's ability to
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perform his duties under this Agreement, and is not and will not be bound by the
provisions of any restrictive covenant or confidentiality agreement which would
constitute an impediment to, or restriction upon, the Employee's ability to
enter this Agreement and perform the duties of Employee's employment.
5. Successors; Personal Services. The services and duties to be
performed by the Employee hereunder are personal and may not be assigned or
delegated. This Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns, and the Employee, the Employee's heirs and
representatives.
6. Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to Employee at the home address, which Employee most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its CEO.
7. Miscellaneous Provisions.
(a) Waiver. No provision of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Employee and by an authorized officer of the
Company (other than the Employee). No waiver by either party of any breach of,
or of compliance with, any condition or provision of this Agreement by the other
party shall be considered a waiver of any other condition or provision or of the
same condition or provision at another time.
(b) Entire Agreement. This Agreement and the other agreements,
plans and practices referred to herein shall supersede and replace all prior
agreements or understandings relating to the subject matter hereof, and no
agreement, representations or understandings (whether oral or written or whether
express or implied) which are not expressly set forth or referred to in this
Agreement have been made or entered into by either party with respect to the
relevant matter hereof.
(c) Choice of Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the internal substantive
laws of the State of Delaware without reference to any choice of law rules.
(d) Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
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(e) No Assignment of Benefits. The rights of any person to
payments or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's proct ss, and any action in violation of this subsection shall be
void.
(f) Employment Taxes. All payments made pursuant to this
Agreement will be subject to withholding of all applicable income, health
insurance and employment taxes.
(g) Assignment by Company. The Company may assign its rights
under this Agreement to an affiliate, and an affiliate may assign its rights
under this Agreement to another affiliate of the Company or to the Company. In
the case of any such assignment, the term "Company" when used in a section of
this Agreement shall mean the corporation that actually employs the Employee.
(h) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
(i) Effective Date. This Agreement shall become effective on
the date (the "Effective Date") on which the Merger is consummated.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
COMPANY: XXXXXXX.XXX, INC.
By /s/ Xxxxxxx Xxxx
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Title C.E.O.
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Employee: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
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