Exhibit 10.22
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of this 22nd day
of May, 1999, by and between, XxxxxxxXxxxxx.xxx, Inc., a Delaware corporation
(the "Company") and Xxxxxxx Xxxxx, an individual with a mailing address at 00
Xxxxxxxxx Xxxx, Xxxxxx, XX 00000 ("Employee").
INTRODUCTION
The Company is in the business of acquiring Internet service provider
businesses. Employee possesses skills and knowledge advantageous to the Company.
The Company desires to employ Employee and Employee desires to accept such
employment on the terms and conditions set forth herein.
AGREEMENT
In consideration of the premises and mutual promises herein below set forth, the
parties hereby agree as follows:
1. EMPLOYMENT; DUTIES. Subject to the terms and conditions set forth herein,
the Company hereby employs Employee during the Employment Period (as
defined below), and Employee hereby accepts such employment. Employee
agrees to be a full-time employee of the Company and devote his full and
exclusive time, energy, skill and best efforts to the business of the
Company and to the fulfillment of Employee's duties hereunder. Employee's
duties include, but are not limited to, (i) serving as Vice President of
Operations of the Company; (ii) assisting in the internal growth of the
Company's business; and (iii) other duties assigned to Employee by the CEO
of the Company from time to time consistent with Employee's position.
2. EMPLOYMENT PERIOD. Subject to earlier termination pursuable to SECTION 4
and SECTION 5 below, this Agreement shall commence on the date hereof and
continue for a one (1) year period (the "Employment Period"). Thereafter,
this Agreement shall automatically renew for additional one (1) year
periods unless the Company gives the Employee ninety (90) days written
notice of its intention not to renew prior to the end of the then current
one (1) year term.
3. COMPENSATION AND BENEFITS.
3.1. SALARY. During the Employment Period, the Company agrees to pay
Employee at the rate of $85,000 per annum ("Base Salary").
Employee's salary shall be subject to customary withholdings and be
payable to Employee on the regularly occurring pay period
established time to time by the Company.
3.2. HEALTH BENEFITS. During the Employment Period, the Company shall
provide Employee with family health care coverage, as provided by
health care provider(s) selected by the Company from time to time.
3.3. BONUS. During the Employment Period, Employee shall be eligible
for discretionary bonuses based upon realization of specific growth
objectives determined by the Company including.
3.4. RETIREMENT PLAN. During the Employment Period, Employee shall be
entitled to participate in any 401(k) or similar benefit/profit
sharing plan adopted by the Company for the benefit of its
employees. The Company reserves the right to modify, terminate or
withdraw any such plan (if so adopted) at any time in its sole
discretion.
3.5. STOCK OPTIONS. Employee shall receive an initial grant of incentive
stock options for 30,000 shares of common stock of the Company with
a three (3) year vesting plan (i.e. 10,000 per year) provided any
options not vested upon termination of employment shall terminate.
The Company shall provide a customary option agreement to Employee.
3.6. VACATION. Employee may take up to three (3) weeks paid vacation in
each calendar year during the Employment Period.
3.7. RELOCATION: MOVING EXPENSES. The Company shall reimburse Employee
for any temporary hotel/travel expenses prior to permanent
relocation and for moving expenses for home furnishings.
4. TERMINATION BY THE COMPANY FOR CAUSE. Upon written notice to Employee, the
Company may terminate this Agreement for cause if any of the following
events shall occur: (i) any breach of this Agreement by Employee; (ii) the
commission of a felony by Employee; or (iii) the commission of an act by
Employee involving fraud, theft or dishonesty. In the event of a
termination pursuant to this SECTION 4, all obligations of the Company
under this Agreement shall cease and any stock options, which have not
vested, shall terminate.
5. TERMINATION WITHOUT CAUSE.
5.1. BY EMPLOYER. The Company may terminate this Agreement at any time
without cause upon thirty (30) days written notice to Employee. In
such event, the Company shall, for the greater of six (6) months or
the remainder of the initial one-year term pay Employee during
regular payroll periods (less customary withholding taxes) the Base
Salary and (ii) provide the health benefits described in SECTION
3.2. Provided, however, in either case the Company's severance
obligations hereunder will end on the date Employee secures new
employment.
5.2. BY EMPLOYEE. Employee may terminate this Agreement at any time upon
one hundred and twenty (120) days prior written notice to the
Company. In such case, Employee shall not be eligible for any
severance payments or other benefits after the date of termination.
5.3. TERMINATION OF STOCK OPTIONS. In the event of a termination pursuant
to this SECTION 5, any stock options, which have not vested, shall
terminate.
6. CONFIDENTIALITY AND NON-DISCLOSURE. Employee recognizes and acknowledges
that during the Employment Period he will have access to certain
confidential information relating to the Company and its affiliates,
including, but not limited to, operational policies, financial
information, marketing information, personnel information, trade secrets,
customer information (including customer lists), and pricing and cost
policies, that are valuable, special and unique assets of the Company
(collectively, "Confidential Information"). Employee agrees that he will
not use or disclose such Confidential Information to any person, firm,
corporation, association or other entity for any purpose or reason
whatsoever, except as is required in the course of performing his duties
hereunder unless (i) such information becomes known to the public
generally through no breach by Employee of this covenant or (ii)
disclosure is required by law or any governmental authority or is required
in connection with the defense of a lawsuit against the disclosing party,
provided, that prior to disclosing any information pursuant to this clause
(ii), Employee shall give prior written notice thereof to the Company and
provide the Company with the opportunity to contest such disclosure.
Employee agrees that, both during the Employment Period and for a period
of twenty-four (24) months after the
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termination of this Agreement, Employee will hold in a fiduciary capacity
for the benefit of the Company, and shall not directly or indirectly use
or disclose, except as authorized by the Company in connection with the
performance of Employee's duties, any Confidential Information, that
Employee may have or may acquire (whether or not developed or compiled by
Employee and whether or not Employee has been authorized to have access to
such Confidential Information) during the term of this Agreement. The
covenants contained in this SECTION 6 shall survive for the Employment
Period and for a period of twenty-four (24) months thereafter; provided,
however, that with respect to those items of Confidential Information
which constitute trade secrets under applicable law, Employee's
obligations of confidentiality and non-disclosure as set forth in this
SECTION 6 shall continue to survive after the applicable period above to
the greatest extent permitted by applicable law. These rights of the
Company are in addition to those rights the Company has under the common
law or applicable statutes for the protection of trade secrets.
7. NON-COMPETITION. Employee expressly covenants and agrees that for the
Employment Period and for a period of twenty four (24) months thereafter,
he shall not, directly or indirectly, seek, obtain or accept a
"Competitive Position" in the "Restricted Territory" with a "Competitor"
of the Company (as such terms are hereafter defined). For purposes of this
Agreement, a "Competitor" of the Company means any business, individual,
partnership, joint venture, association, firm, corporation or other entity
engaged, wholly or partly, in the business of selling internet access
service or in any related business which the Company and/or its affiliates
may engage in from time to time during the term of this covenant; the
"Restricted Territory" means each state of the United States of America in
which the Company and/or its affiliates transacts business during the term
of this covenant; a "Competitive Position" means any employment with any
Competitor of the Company whereby Employee will use or is likely to use
any Confidential Information, or whereby Employee has duties for such
Competitor that are the same or substantially similar to those actually
performed by Employee pursuant to the terms hereof. Nothing contained in
this SECTION 7 is intended to prevent Employee from investing in stock or
other securities listed on a national securities exchange or actively
traded on the over the counter market or any corporation engaged, wholly
or partly, in the sale of telecommunications products or services;
provided, however, that Employee and members of his immediate family shall
not, directly or indirectly, hold more than a total of two percent (2%) of
all issued and outstanding stock or other securities of any such
corporation.
8. NON-SOLICITATION.
8.1. NON-SOLICITATION OF CUSTOMERS. Employee agrees that he will not take
any customer lists of the Company after leaving his employ and that
he will, for the Employment Period and for a period of twenty-four
(24) months thereafter, refrain from soliciting or attempting to
solicit directly or by assisting others, any business from any of
the Company's customers, including actively sought prospective
customers, with whom Employee had "material contact" during the
employment for purposes of providing products or services.
8.2. NON-SOLICITATION OF EMPLOYEES. Employee agrees that he will, for the
Employment Period and for a period of twenty-four (24) months
thereafter, refrain from recruiting or hiring, or attempting to
recruit or hire, directly or by assisting others, any other employee
of the Company who is employed by the Company or any successor or
affiliate of the Company.
9. TOLLING OF PERIOD OF RESTRAINT. Employee hereby expressly acknowledges and
agrees that in the event the enforceability of any of the terms of this
Agreement shall be challenged in court and Employee is not enjoined from
breaching any of the restraints set forth in SECTION 6 through SECTION 8,
then if a court of competent jurisdiction finds that the challenged
restraint is
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enforceable, the time period of the restraint shall be deemed tolled upon
the filing of the lawsuit challenging the enforceability of the restraint
until the dispute is finally resolved and all periods of appeal have
expired.
10. ACKNOWLEDGEMENTS. Employee hereby acknowledges and agrees that the
restrictions contained in SECTION 6 through SECTION 9 are fair and
reasonable and necessary for the protection of the legitimate business
interests of the Company. Employee acknowledges that in the event
Employee's employment with the Company terminates for any reason, Employee
will be able to earn a livelihood without violating the restrictions
contained in SECTION 6 through SECTION 9 and that Employee's ability to
earn a livelihood without violating such restrictions is a material
condition to Employee's employment and continued employment with the
Company. Employee expressly agrees that the character, duration and
geographical scope of the covenants contained in this SECTION 6 through
SECTION 9 are reasonable in light of the circumstances as they exist at
the date upon which this Agreement has been executed. However, should a
determination nonetheless be made by a court of competent jurisdiction at
a later date that the character, duration or geographical scope of the
covenants contained herein are unreasonable in light of the circumstances
as they then exist, then it is the intention of both Employee and the
Company that these covenants shall be construed by the court in such a
manner as to impose only those restrictions on the conduct of Employee
which are reasonable in light of the circumstances as they then exist and
necessary to assure the Company of the intended benefit of these
covenants.
11. RIGHTS TO MATERIALS; WORK FOR HIRE. All records, files, memoranda,
reports, price lists, customer lists, drawings, plans, sketches, documents
and the like (together with all copies thereof) relating to the business
of the Company, which Employee shall use or prepare or come in contact
with in the course of, or as a result of, his employment shall, as between
the parties hereto, remain the sole property of the Company. Upon the
termination of Employment or upon the prior demand of the Company,
Employee shall immediately return all such materials and shall not
thereafter cause removal thereof from the premises of the Company.
Employee agrees to disclose and assign to the Company as its exclusive
property, all ideas, writings, inventions, discoveries, improvements and
technical or business innovations made or conceived by Employee, whether
or not patentable or copyrightable, either solely or jointly with others
during the Employment Period and for a period of two (2) years thereafter
whether or not made or conceived during regular hours of work or
otherwise, which are along the lines of the business, work or
investigations of the Company or its affiliates. Employee agrees to
execute any and all documents hereafter requested by the Company necessary
to further effectuate the foregoing.
12. REMEDIES. Without limiting the Company's right to claim damages, Employee
acknowledges that the Company will be irreparably harmed by a breach of
any provision of this Agreement and Employee agrees that the Company shall
be entitled to injunctive relief in the event of such breach.
13. GOVERNING LAW; ARBITRATION; JURISDICTION; VENUE; ATTORNEY'S FEES. This
Agreement is made and entered into in and shall be governed by and
interpreted in accordance with the laws of, the State of New Jersey. The
Company and Employee agree that any dispute regarding this Agreement shall
be submitted to arbitration to and shall be resolved in accordance with
the rules of the JAMS/Endispute for expedited cases then in effect. The
parties shall mutually select the arbitrator(s) or in the event the
parties cannot mutually agree, then appointed by JAMS/Endispute. Any
arbitration shall be held within a forty-five (45) mile radius of Wall,
New Jersey and the arbitrator(s) shall apply New Jersey law. Judgment upon
any award rendered by the arbitrator(s) shall be final and may be entered
in any court of competent jurisdiction. Notwithstanding the foregoing, the
Company shall have the absolute right to obtain equitable remedies in any
state court of competent
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jurisdiction in the State of New Jersey or in the United States District
Court in the state of New Jersey. By his execution and delivery of this
agreement, Employee irrevocably submits to and accepts the exclusive
jurisdiction of each of such courts and waives any objection (including
any objection to venue or any objection based upon the grounds of forum
non convenient) which might be asserted against the bringing of any such
action, suit or other legal proceeding in such courts. The court and/or
arbitrator(s) shall award costs and expenses (including reasonable
attorney's fees) to the prevailing party in any litigation or arbitration.
14. MISCELLANEOUS.
14.1. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof
and supersedes any and all previous agreements, written and oral,
regarding the subject matter hereof between the parties hereto. This
Agreement shall not be changed, altered, modified or amended, except
by a written agreement signed by both parties hereto.
14.2. NOTICES. All notices, requests, demands and other communications
required or permitted to be given or made under this Agreement shall
be in writing and shall be deemed to have been given if delivered by
hand, sent by generally recognized overnight courier service, telex
or telecopy, or mail,
(a) To the Company: With a copy to:
XxxxxxxXxxxxx.xxx Xxxxx & Xxxxxxx, LLP
0000 Xxxxx Xxxxxx 000 Xxxxx Xxxx Xxxxxxxx
Xxxxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, CEO Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
(b) To the Employee at:
Xxxxxxx Xxxxx
00 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
14.3. ASSIGNMENT. The Company may assign this Agreement to any entity
controlling, controlled by or under common control with the Company
or (ii) to any purchaser of the Company's assets provided that such
purchaser agrees to assume the Company's obligations hereunder.
14.4. SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or under any circumstance, shall
to any extent be invalid or unenforceable, the remainder of this
Agreement, or the application of such terms to the persons or under
circumstances other than those as to which it is invalid or
unenforceable, shall be considered severable and shall not be
affected thereby, and each term of this Agreement shall be valid and
enforceable to the fullest extent permitted by law. The invalid or
unenforceable provisions shall, to the extent permitted by law, be
deemed amended and given such interpretation as to achieve the
economic intent of this Agreement.
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14.5. WAIVER. The failure of any party to insist in any one instance or more
upon strict performance of any of the terms and conditions hereof, or to
exercise any right or privilege herein conferred, shall not be construed
as a waiver of such terms, conditions, rights or privileges, but same
shall continue to remain in full force and effect. Any waiver by any party
of any violation of, breach of or default under any provision of this
Agreement by the other party shall not be construed as, or constitute, a
continuing waiver of such provision, or waiver of any other violation of,
breach of or default under any other provision of this Agreement.
14.6. TITLES;GENDER. Section and subsection titles are for convenience of
reference only and are not to be considered in the interpretation or
construction of any of the provisions hereof. All pronouns or any
variations thereof contained in this Agreement refer to the masculine,
feminine or neuter as the identity of the person may require.
14.7. SURVIVAL. SECTION 6 through SECTION 14 hereof shall survive any
termination of this Agreement.
14.8. EXECUTION IN COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of, which shall
constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
COMPANY:
ATTEST: XxxxxxxXxxxxx.xxx, Inc.
/s/ Xxxx X. Xxxxx
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By: Xxxx X. Xxxxx
WITNESS: EMPLOYEE:
________________________________ /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
