Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT dated as of March 6, 2000 (the
"AGREEMENT"), between OPUS360
CORPORATION, a Delaware corporation (the
"COMPANY"), and XXXXXX X. XXXXXXX (the
"EMPLOYEE").
The Company and the Employee are parties to the Existing Employment
Agreement (as defined herein), pursuant to which the Employee is presently
employed by the Company. In order to set forth the terms of the Employee's
continued employment with the Company, the Company and the Employee desire to
amend and restate the Existing Employment Agreement in its entirety as and
pursuant to this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained in this Agreement, the parties hereto agree that the
Existing Employment Agreement shall be amended and restated in its entirety to
read as follows:
1. EMPLOYMENT.
The Company shall employ the Employee, and the Employee accepts
employment with the Company, upon the terms and conditions set forth in this
Agreement.
2. TERM.
The Employee's employment hereunder shall be for the period (including
any extensions thereof, the "EMPLOYMENT PERIOD") commencing on the date of this
Agreement (the "EFFECTIVE DATE") and terminating on the earlier of (i) the
36-month anniversary of the Effective Date or (ii) the early termination
pursuant to SECTION 5 of the Employee's employment hereunder; PROVIDED, HOWEVER,
the Employment Period shall be extended automatically on each 12-month
anniversary of the Effective Date, beginning with the 36-month anniversary
thereof, in each case for an additional period of 12 months, unless the Company
or the Employee notifies the other party at least 30 days prior to any such
anniversary date of its or his election that the Employment Period not be so
extended. The final date of the actual term of the Employee's employment with
the Company hereunder is referred to as the "TERMINATION DATE."
3. POSITION, DUTIES AND RESPONSIBILITIES.
(a) During the Employment Period, the Employee shall serve as the Chief
Technology Officer of the Company or in such other position as shall be
determined by the Board or the Chief Executive Officer or President of the
Company.
(b) During the Employment Period, the Employee shall devote all of his
business and professional time, attention, energy, loyalty and skill to the
business of the Company and its Subsidiaries as may be reasonably necessary to
carry on the business of the Company and its Subsidiaries and to perform his
duties under this Agreement.
(c) Notwithstanding anything contained in SECTION 3(b) to the contrary,
during the Employment Period, the Employee shall not be prohibited from (i)
serving as an officer, director,
trustee or otherwise participating in purely educational, welfare, social,
charitable, religious and civic organizations, or (ii) managing personal and
family investments or serving as an executor or trustee or in a similar
fiduciary capacity, in each case to the extent such activities (A) do not
interfere or conflict in any material respect with the performance of his duties
and responsibilities hereunder and (B) are conducted in accordance with the
limitations of SECTION 10. During the Employment Period, subject to the
limitations of SECTION 10, the Employee may serve on the board of directors or
similar body of any business entity or make passive investments in any business
entities (the exercise by the Employee of his voting rights as a member of the
board of directors or similar governing body of any such entity or the
Employee's acting as an informal advisor to any such entity from time to time
being understood to not, on such basis alone, preclude any such investment from
being deemed passive in nature), but only if, in each such case, such service or
investment does not unreasonably conflict or interfere with the performance of
the Employee's duties and responsibilities hereunder. The Employee has notified
the Board of all directorships or similar positions held by him on the Effective
Date and shall promptly notify the Board of his election or appointment to any
other directorships or similar positions after the Effective Date.
4. BASE SALARY, FRINGE BENEFITS AND OPTION.
(a) During the Employment Period, the Employee's base salary shall be
$125,000 per annum or such higher rate as the Board or its designee may specify
from time to time (the "BASE SALARY"). The Employee's Base Salary will be
payable in equal installments in accordance with the general policies of the
Company regarding compensation of senior executives of the Company. During the
Employment Period, in addition to the Base Salary, the Employee shall be
entitled to receive an annual bonus (the "BONUS") as determined by the Board or
its designee (in its sole discretion), taking into account, among other things,
the performance of the Employee and the financial and operational performance of
the Company.
(b) During the Employment Period, the Employee shall be eligible to
participate in all Company-sponsored employee benefit plans (the "EMPLOYEE
BENEFIT PLANS"), including all employee retirement income and welfare benefit,
pension, disability, group life, sickness or accident or health insurance
policies, plans, programs or arrangements, if any, that are generally available
to other employees of the Company at substantially the same employment level as
the Employee for their participation, subject to the terms and conditions of
such plans, as they may be amended from time to time (collectively, the
"EMPLOYEE BENEFITS").
(c) During the Employment Period, the Employee shall be entitled to
three weeks of vacation during each 12-month period worked, commencing on the
Effective Date. Such vacation shall be in accordance with the terms generally
applicable to other employees of the Company at substantially the same
employment level as the Employee, as in effect from time to time. The Employee
may take his vacation at such time or times as shall not interfere with the
performance of his duties under this Agreement. The Employee shall be entitled
to paid sick leave and holidays in accordance with the sick leave and holiday
policies as may be generally applicable to senior executives of the Company, as
in effect from time to time.
(d) The Company shall reimburse the Employee for all reasonable travel,
entertainment and other business expenses incurred by him in the course of
performing his duties
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under this Agreement in accordance with the Company's policies and rules in
effect from time to time relating to the reimbursement of such expenses. Any
determination of the reasonableness of such expenses shall take into account the
position and level of responsibility of the Employee within the Company.
(e) The Employee authorizes the Company to deduct from any amounts
payable to him hereunder such sums as may be required to be deducted or withheld
under the provisions of any federal, state or local law or regulation now in
effect or hereafter put into effect during the term of this Agreement,
including, without limitation, social security and income withholding taxes.
5. EARLY TERMINATION OF EMPLOYMENT.
(a) The early termination of the Employee's employment hereunder shall
result upon the first to occur of (i) the termination of such employment by the
Company, at any time, for Cause, without Cause or by reason of the Disability of
the Employee, (ii) the death of the Employee and (iii) the resignation of the
Employee from such employment, at any time, for Good Reason or without Good
Reason.
(b) For purposes of this Agreement, the term "CAUSE" means (i) the
gross negligence or willful misconduct by the Employee in the performance of his
duties, (ii) the commission by the Employee of any act of fraud, theft or
financial dishonesty with respect to the Company or any of its Subsidiaries or
if Employee is convicted of a felony, (iii) the material breach by the Employee
of this Agreement (including, but not limited to, any breach or threatened
breach by the Employee of the provisions of SECTIONS 7, 8, 9 or 10), or (iv) the
willful disregard, or failure to follow written instructions from, the President
of the Company, the Board or any of their designees, to perform any legal act
relating to the business of the Company or its Subsidiaries which would be
commensurate with the usual and customary duties, responsibilities and authority
of the Chief Technology Officer of the Company or such other position held by
the Employee as may be determined by the Board or the Chief Executive Officer or
President of the Company or otherwise consistent with such position. Before the
Employee's employment with the Company hereunder may be terminated by the
Company for Cause, the Employee shall have 10 days after written notice of such
basis for termination to cure such basis for termination; PROVIDED, HOWEVER, no
such right to cure shall exist if the basis for such termination is incurable or
if otherwise any of the acts referred to in CLAUSE (i) of the definition of
"CAUSE" have been committed by the Employee.
(c) Any determination as to whether the Employee is subject to a
Disability shall first be made by the Board (excluding the Employee if he should
be a member of the Board at the time of such determination) in its good faith
judgment; PROVIDED, HOWEVER, if any such determination is disputed by the
Employee, the matter shall be referred to a licensed physician practicing within
the Borough of New York in the State of New York or a 50-mile radius thereof and
selected by the Board and the Employee, and the determination of Disability made
by such physician shall be final and binding on both the Employee and the
Company. For purposes of this Agreement, the term "DISABILITY" means any
long-term disability or incapacity which renders, or would be reasonably
expected to render, the Employee unable to substantially
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perform his duties and responsibilities hereunder for a cumulative total of 90
days during any 12-month period.
(d) For purposes of this Agreement, "GOOD REASON" means (i) a reduction
of the Base Salary of the Employee as in effect on the Effective Date by more
than ten percent (10%), where such reduction is not cured within 30 days after
written notice thereof by the Employee to the Company, (ii) the removal by the
Company of the Employee from the position of Chief Technology Officer of the
Company, without any election or appointment of the Employee to a position of
comparable or greater seniority with the Company, where such removal is not
rescinded, or such election or appointment does not occur, within 10 days after
written notice thereof by the Employee to the Company, or (iii) a material
breach by the Company of this Agreement, which breach is incurable or otherwise
not cured within 10 days after written notice thereof by the Employee to the
Company, in each case without the prior written consent or waiver of the
Employee.
6. EFFECT OF TERMINATION.
(a) Upon the termination (x) pursuant to SECTION 2 of the Employee's
employment with the Company hereunder based on the election of the Company or
the Employee under SECTION 2 not to extend the Employment Period or (y) pursuant
to SECTION 5 of the Employee's employment with the Company hereunder either by
the Company with Cause or by reason of the Employee's resignation without Good
Reason, neither the Employee nor the Employee's Representatives shall have any
further rights under this Agreement or any claims against the Company arising
under this Agreement, except the right to receive, upon the Termination Date:
(i) the unpaid portion of the Base Salary provided for in
SECTION 4(a), computed on a PRO RATA basis through the Termination
Date;
(ii) reimbursement for any expenses for which the Employee
shall not have theretofore been reimbursed, as provided in SECTION
4(d); and
(iii) the unpaid portion of any amounts earned by the Employee
prior to the Termination Date pursuant to any Employee Benefit Plan in
which the Employee participated during the Employment Period (PROVIDED,
HOWEVER, that neither the Employee nor the Employee's Representatives
shall be entitled to receive any benefits under any Employee Benefit
Plan that have accrued during any period if the terms of such Employee
Benefit Plan require that the Employee be employed by the Company or
any Subsidiary thereof as of the end of such period).
(b) Upon the termination pursuant to SECTION 5 of the Employee's
employment with the Company hereunder either by the Company without Cause or by
reason of the Employee's resignation with Good Reason, neither the Employee nor
the Employee's Representatives shall have any further rights under this
Agreement or any claims against the Company arising under this Agreement, except
the right to receive the amounts described in CLAUSES (i) and (ii) below when
due thereunder and the right to the lapse of any share repurchase restrictions
as described in CLAUSE (iii) below:
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(i) upon the Termination Date, the payments, if any, referred
to in SECTION 6(a);
(ii) the Base Salary and the Employee Benefits, payable
periodically at the same intervals as if the Employment Period had not
ended and the Base Salary and the Employee Benefits otherwise continued
to be paid, up to (and including) the first one-year anniversary of the
Termination Date (PROVIDED, HOWEVER, that neither the Employee nor the
Employee's Representatives shall not be entitled to receive any
Employee Benefits under any Employee Benefit Plan at any time after the
Termination Date if the terms of such Employee Benefit Plan require
that the Employee be employed by the Company or any Subsidiary thereof
as of such time); and
(iii) notwithstanding anything to the contrary contained
herein or in any other agreement, between the Company and the Employee,
as amended, supplemented or otherwise modified from time to time and in
effect on the Effective Date, all shares of Common Stock that are
subject to vesting and held by the Employee or his transferees on the
Termination Date shall become vested on such date and all forfeiture,
repurchase or similar rights in favor of the Company with respect to
such shares of Common Stock (including such rights of the Company as
are set forth in the Repurchase Agreement) shall lapse in their
entirety and cease to have any force or effect whatsoever.
(c) Upon the termination pursuant to SECTION 5 of the Employee's
employment with the Company hereunder either by the Company by reason of the
Disability of the Employee or by reason of the death of the Employee, neither
the Employee nor the Employee's Representatives shall have any further rights
under this Agreement or any claims against the Company arising under this
Agreement, except the right to receive the amounts described in CLAUSES (i) and
(ii) below when due thereunder and the right to the lapse of any share
repurchase restrictions as described in CLAUSE (iii) below:
(i) upon the Termination Date, the payments, if any, referred
to in SECTION 6(a);
(ii) the Base Salary and the Employee Benefits, payable
periodically at the same intervals as if the Employment Period had not
ended and the Base Salary and the Employee Benefits otherwise continued
to be paid, up to (and including) the 3-month anniversary of the
Termination Date (PROVIDED, HOWEVER, that neither the Employee nor the
Employee's Representatives shall not be entitled to receive any
Employee Benefits under any Employee Benefit Plan at any time after the
Termination Date if the terms of such Employee Benefit Plan require
that the Employee be employed by the Company or any Subsidiary thereof
as of such time); and
(iii) notwithstanding anything to the contrary contained
herein or in any other agreement, between the Company and the Employee,
as amended, supplemented or otherwise modified from time to time and in
effect on the Effective Date, all shares of Common Stock that are
subject to vesting and held by the Employee or his transferees on the
Termination Date shall become vested on such date and all forfeiture,
repurchase or similar rights in favor of the Company with respect to
such shares of Common Stock
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(including such rights of the Company as are set forth in the
Repurchase Agreement) shall lapse in their entirety and cease to have
any force or effect whatsoever.
(d) Except to the extent requested by the Board, upon the Termination
Date, the Employee shall immediately resign all positions and directorships with
the Company and each Subsidiary thereof.
7. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION.
The Employee shall not, whether during or at any time after the
Employment Period, disclose or use (except to the extent required by an order of
a court having competent jurisdiction or otherwise under subpoena from the
appropriate government agency) any secret or confidential information concerning
the business, clients or affairs of the Company or any of its Subsidiaries, or
of any Person which the Company or any of its Subsidiaries is under an
obligation to keep secret or confidential (in each case, including, but not
limited to, trade secrets, customer lists, employment records, marketing plans
and related information, sales plans and related information, pricing schedules,
operating policies and manuals, business plans, financial records or management
methods, know-how or techniques) (the "CONFIDENTIAL INFORMATION"), except to the
extent such disclosure or use is directly related to and required by the
Employee's performance in good faith of his duties as an employee of the Company
during the Employment Period pursuant to the terms and conditions of this
Agreement. The Employee shall take all appropriate steps to safeguard the
Confidential information and protect the Confidential Information against
disclosure, misuse, loss and theft.
8. OWNERSHIP OF WORK PRODUCT AND BUSINESS OPPORTUNITIES.
The Employee acknowledges and agrees that, during the Employment
Period, (i) he may conceive of, discover, invent or create inventions,
improvements, technical information, methods and suggestions relating to the
actual or reasonably anticipated business or existing or future products or
services of the Company or any of its Subsidiaries (collectively, the
"INVENTIONS"), and (ii) various business opportunities relating to the actual or
reasonably anticipated business of the Company or any of its Subsidiaries may be
presented to him by reason of his employment by the Company (collectively, the
"BUSINESS OPPORTUNITIES"). The Employee acknowledges that all such Inventions,
together with all patent, trademark, service xxxx and copyright applications,
patents, trademarks, service marks and copyrights and reissues thereof that may
at any time be granted for or upon any of such Inventions, (collectively, the
"WORK PRODUCT") and all such Business Opportunities shall be owned by and belong
exclusively to the Company, and he shall have no personal interest therein,
regardless of whether conceived, discovered, invented, created or presented
during usual business hours. The Employee shall (i) promptly disclose to the
Board any such Work Product and Business Opportunities, (ii) assign to the
Company, upon the request of the Company and without additional compensation
(whether during or after the Employment Period), the entire rights to such Work
Product and Business Opportunities, and (iii) perform all actions reasonably
requested by the Company (whether during or after the Employment Period) to
establish, confirm and protect such ownership in the Company (including, but not
limited to, the signing of assignments, consents, powers of attorney,
applications and other instruments and the giving of testimony in support of his
conception, discovery, invention or creation thereof). The Employee agrees he
will not assert any rights to
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any Work Product or Business Opportunity as having been conceived, discovered,
invented, created or obtained by him before the Effective Date (whether during
his prior period of employment with the Company or otherwise), except for Work
Product or Business Opportunities, if any, specifically disclosed to and
specifically acknowledged by the Company in writing before his prior period of
employment with the Company first began.
9. DELIVERY OF MATERIALS UPON TERMINATION OF EMPLOYMENT
The Employee shall deliver to the Company at the termination of the
Employment Period, or upon the request of the Company, at any time, all
memoranda, notes, plans, records, reports, computer tapes and software and other
documents and data (and copies thereof) relating to the Confidential
Information, Work Product, Business Opportunities or the business of the Company
or any of its Subsidiaries, which he may then possess or have under his control,
regardless of the location or form of such material and, if requested by the
Company, shall provide the Company with written confirmation that all such
materials have been delivered to the Company.
10. NONCOMPETITION; NONSOLICITATION.
(a) The Employee acknowledges he has received Confidential Information
of the Company and its Subsidiaries (including of their respective predecessors)
from time to time prior to the Effective Date in connection with, among other
things, his employment with the Company prior to the Effective Date and is
familiar with such Confidential Information. The Employee also acknowledges, in
the course of his employment with the Company or any of its Subsidiaries on or
after the Effective Date, he shall continue to receive and become familiar with
the Confidential Information (whether now existing or hereafter existing) of the
Company and its Subsidiaries. The Employee acknowledges that the Confidential
Information referred to in this SECTION 10(a) has been and shall be of special,
unique and extraordinary value to the Company and its Subsidiaries. In
consideration of the compensation and other benefits to be provided to the
Employee hereunder (including, but not limited to, the employment by the
Employee with the Company hereunder, the Base Salary, the Employee Benefits and
the Severance Payments), during the Employment Period and the Non-Compete
Period, the Employee shall not, directly or indirectly, own, manage, control,
participate in, be connected with, consult with, render services for, give or
lend funds to or otherwise finance, be employed by, have a financial or other
interest in, or in any manner engage in or represent any business which is
competing with any business of the Company or any Subsidiary thereof as such
business of the Company or such Subsidiary exists, or is in the process of being
formed or acquired, at any time from the date on which the Employee's employment
with the Company first began (whether on or before the Effective Date) up to
(and including) the Termination Date, within any Restricted Territory.
(b) During the Employment Period and the Non-Compete Period, the
Employee agrees that he shall not, individually, or as an agent, employee,
partner, principal, consultant, stockholder, director, officer, trustee, advisor
or in any other capacity, directly or indirectly, for himself or for any other
Person, (i) solicit or entice, or attempt to solicit or entice, any employee of,
consultant to, or independent contractor of the Company or any of its
Subsidiaries to terminate his or her employment, engagement or affiliation with
the Company or any of its Subsidiaries, or in any way interfere with the
relationship between the Company or any of its
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Subsidiaries, on the one hand, and any employee of, consultant to, or
independent contractor of the Company or any of its Subsidiaries on the other
hand (including making any negative statements or comments about the Company or
any of its Subsidiaries), (ii) employ or retain any such employee, consultant,
independent contractor during his or her employment, engagement or affiliation
with the Company or any of its Subsidiaries or for a period of one year after
such individual's employment, engagement or affiliation with the Company or any
of its Subsidiaries has terminated, or (iii) solicit or entice, or attempt to
solicit or entice, any customer or licensee of the Company or any of its
Subsidiaries (including any Person that has been contacted by, solicited by or
referred to the Company or any of its Subsidiaries for purposes of becoming any
of the foregoing) to cease doing business with, or otherwise reduce or terminate
its, his or her involvement with, the Company or any of its Subsidiaries.
(c) The Employee understands that the restrictions set forth in this
SECTION 10 may limit his ability to earn a livelihood in a business similar to
the business of the Company or any of its Subsidiaries, but the Employee
nevertheless believes that he has received and shall receive sufficient
consideration and other benefits as provided hereunder and pursuant to other
agreements to which he and the Company are parties, which in any event he does
not believe (given his education, skills and ability) would prevent him from
otherwise earning a living.
11. INSURANCE.
The Company shall have the right to secure, in its own name or
otherwise, its own life, disability, accident or other insurance covering the
Employee, and the Employee shall have no right, title or interest in or to such
insurance. The Employee shall cooperate with the Company and provide such
information or other assistance as the Company may reasonably request in
connection with the Company obtaining and maintaining such policies, including,
but not limited to, submitting to reasonable examinations and signing such
applications and other instruments as may be required by the insurance carriers
to which application is made for any such insurance.
12. CONFLICTS.
The Employee represents and warrants to the Company that he is not a
party to or bound by any employment contract, consultancy agreement,
non-competition agreement or any other agreement (written or oral) or other
arrangement which contains any restrictions or limitations on the ability of the
Employee to enter into and perform this Agreement or exercise all the powers,
functions, duties and responsibilities contemplated by this Agreement, and the
execution, delivery and performance of this Agreement by the Employee will not
result in a violation of or constitute a default under any contract, agreement
or other arrangement to which the Employee is a party or by which the Employee
is bound.
13. DEFINITIONS.
"BOARD" means the Board of Directors of the Company.
"BUSINESS DAY" means any day, other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
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"EXISTING EMPLOYMENT AGREEMENT" means the Employment Agreement dated as
of February 16, 1999, between the Company and the Employee, as amended,
supplemented or otherwise modified from time to time and as in effect of the
date hereof.
"GOVERNMENTAL ENTITY" means any government or political subdivision or
department thereof, any governmental or regulatory body, commission, board,
bureau, agency or instrumentality, or any court or arbitrator or alternative
dispute resolution body, in each case whether federal, state, local or foreign.
"NON-COMPETE PERIOD" means the period beginning on the Termination Date
and ending on the first anniversary of the Termination Date.
"PERSON" shall be construed as broadly as possible and shall include an
individual, a corporation, a company, an association, a joint stock company, a
partnership (including a limited liability partnership), a limited liability
company, a joint venture, a trust or an unincorporated organization and a
Governmental Entity.
"REPRESENTATIVES" means, with respect to the Employee, the Employee's
assigns, personal and legal representatives, executors, administrators, heirs,
distributees, devisees, and legatees, as determined from time to time.
"REPURCHASE AGREEMENT" means the Share Repurchase Agreement dated as of
the date hereof, among the Company, the Employee and Xxx Xxxxxxxx, as amended,
supplemented or otherwise modified from time to time.
"RESTRICTED TERRITORY" means (i) any county in the State of New York or
Florida, (ii) any county in any other state in the continental United States,
(iii) Alaska and Hawaii, (iv) any other territory or possession of the United
States, (v) any province in Canada, and (vi) any country other than the United
States, Canada or any state, province, territory, possession or political
subdivision thereof.
"SUBSIDIARY" means, as to any Person, any other Person of which more
than 50% of the shares of the voting stock or other voting interests are owned
or controlled, or the ability to select or elect 50% or more of the directors or
similar managers is held, directly or indirectly, by such first Person or one or
more of its Subsidiaries.
14. POST-TERMINATION ASSISTANCE.
The Employee agrees that after his employment with the Company has
terminated he will provide, upon reasonable notice, such information and
assistance to the Company as may reasonably be requested by the Company in
connection with any third-party litigation to which the Company or any of its
Subsidiaries is or may become a party, provided that the timing and extent of
such requested assistance does not unreasonably interfere with the business time
requirements of any third-party services the Employee is then obligated to
perform (whether as an employee, consultant or otherwise).
15. INDEMNIFICATION.
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The Company shall indemnify, defend and hold harmless the Employee (in
his status as an officer, director and employee of the Company) in respect of
acts or omissions occurring on or after the Effective Date to the fullest extent
permitted or provided under the Company's Certificate of Incorporation and
Bylaws as in effect on the Effective Date.
16. NOTICES.
All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and
shall be deemed to have been given or made when (i) delivered personally to the
recipient, (ii) transmitted by facsimile or electronic mail (with hard copy sent
to the recipient by reputable overnight courier service (charges prepaid) that
same day and, in the latter case, with receipt acknowledged by the recipient by
return electronic mail) if faxed or e-mailed before 5:00 p.m. (New York, New
York time) on a Business Day, and otherwise on the next Business Day, (iii) two
Business Days after being sent to the recipient by reputable overnight courier
service (charges prepaid), or (iv) five Business Days after being sent to the
recipient by registered or certified mail (postage prepaid and return receipt
requested). Such notices, demands and other communications shall be sent to the
address for such recipient as set forth below (or to such other address or to
the attention of such other person as the recipient party has specified by like
notice):
(i) if to the Company, to
Opus360 Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary of the Company
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail:
with a copy (which shall not constitute notice) to:
Opus360 Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail:
(ii) if to the Employee, to
Xxxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
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Facsimile:
E-Mail:
with a copy (which shall not constitute notice) to:
Xxxxxxx X. Xxxxxx, Esq.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail:
17. GENERAL PROVISIONS.
(a) SEVERABILITY/ENFORCEMENT.
(i) It is the desire and intent of the parties hereto that the
provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any
particular provision of this Agreement shall be adjudicated by a court
of competent jurisdiction to be invalid, prohibited or unenforceable
for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of this Agreement
or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision
could be more narrowly drawn so as not to be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such jurisdiction,
be so narrowly drawn, without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Without limiting the generality of
the preceding sentence, if at the time of enforcement of SECTIONS 7, 8,
9 or 10 of this Agreement, a court holds that the restrictions stated
therein are unreasonable under circumstances then existing, the parties
hereto agree that the maximum period, scope or geographical area
reasonable under such circumstances shall be substituted for the
stated period, scope or area.
(ii) The Company and the Employee shall each have and retain
all other rights and remedies existing in their favor at law or equity,
including, without limitation, any actions for specific performance
and/or injunctive or other equitable relief to enforce or prevent any
violations of the provisions of this Agreement. Because the Employee's
services are unique and because the Employee has access to Confidential
Information and Work Product, the parties hereto agree that money
damages would be an inadequate remedy for any breach of this Agreement.
Therefore, in the event of a breach or threatened breach by the
Employee of SECTIONS 7, 8, 9 or 10, the Company or its successors or
assigns may, in addition to any other rights and remedies existing in
their favor, apply to any court of competent jurisdiction for specific
performance and/or injunctive or other relief in order to enforce, or
prevent any violations of, such provisions (without posting a bond or
other security) or require the Employee to account for and pay
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over to the Company all compensation, profits, moneys, accruals and
increments derived or received by him as a result of any transactions
constituting a breach of such provisions.
(iii) In addition to the foregoing, and not in any way in
limitation thereof, or in limitation of any right or remedy otherwise
available to the Company, if the Company shall determine that the
Employee is in violation of any provision of SECTIONS 7, 8, 9 or 10 of
this Agreement (such determination being made before any judgment or
decision with respect to such question shall be made by a court of
competent jurisdiction), the Company may withhold any severance
payments then or thereafter due from the Company to the Employee, until
there shall be a final judgment or decision by a court of competent
jurisdiction that no such violation shall have occurred, in which case
(A) the Company shall pay to the Employee, within five (5) Business
Days after such judgment or decision, such amounts of severance under
this Agreement previously withheld from payment by the Company,
together with interest on such amounts withheld at a floating rate per
annum equal to the prime rate announced from time to time by the Wall
Street Journal as the prevailing "PRIME RATE" at U.S. money center
banks, and (B) the Company shall reimburse the Employee for his
reasonable attorneys fees and expenses incurred in connection with the
issuance of such judgment or decision within five (5) Business Days of
the receipt by the Company of reasonable supporting documentation
therefor. If the Employee is determined by a judgment or decision of a
court of competent jurisdiction to have violated any provision of
SECTIONS 7, 8, 9 or 10 of this Agreement, the Company's obligation to
pay and the Employee's right to receive any severance payments under
this Agreement on or after the date on which such violation shall have
first occurred (whether already paid or otherwise) shall terminate and
be of no further force or effect, and, within five (5) Business Days of
any such judgment or decision, the Employee shall return to the Company
any such severance payments already made by the Company.
(iv) The Employee's obligations under SECTIONS 7, 8, 9 or 10
shall not be limited or affected by, and such provisions shall remain
in full force and effect notwithstanding, the termination of any
severance payments by the Company in accordance with SECTION
17(a)(iii). The exercise of by the Company of its right to terminate
such payments pursuant to SECTION 17(a)(iii) shall not be deemed to be
an election of remedies by the Company and shall not in any manner
modify, limit or preclude the Company from exercising any other rights
or seeking any other remedies available to it at law or in equity.
(b) COMPLETE AGREEMENT. This Agreement amends and restates the Existing
Employment Agreement in its entirety, and this Agreement, together the
Repurchase Agreement, constitutes the sole and entire agreement between the
parties hereto with respect to the subject matter hereof and thereof and
supersedes all prior or contemporaneous arrangements or understandings with
respect hereto or thereto, including the Existing Employment Agreement, and the
parties hereto hereby forever release, waive and disclaim any and all rights
under the Existing Employment Agreement.
(c) RIGHT OF SET OFF. The Company is authorized, on or after the
termination of the Employment Period by the Company for Cause, to the fullest
extent permitted by law, to set off and apply any and all amounts at any time
payable by the Company to the Employee under
12
this Agreement, against any and all of the obligations of the Employee to the
Company now or hereafter existing under this Agreement or any other agreement or
contract between the Employee on the one hand and the Company or any of its
Subsidiaries on the other hand.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the Company, the Employee and each of their respective
successors, assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable;
PROVIDED, HOWEVER, that neither this Agreement nor any rights or obligations
hereunder will be assignable or otherwise subject to hypothecation by the
Employee (except by will or by operation of the laws of intestate succession).
(e) GOVERNING LAW; CHOICE OF JURISDICTION AND VENUE. THE PROVISIONS OF
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND FULLY PERFORMED
WITHIN THE STATE OF NEW YORK BY RESIDENTS OF THE STATE OF NEW YORK. WITH RESPECT
TO ANY LAWSUIT OR PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT, EACH OF THE
PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK OR FEDERAL COURT OF THE UNITED STATES OF AMERICA
SITTING IN NEW YORK, (II) WAIVES ANY OBJECTION IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT, (III) WAIVES ANY
CLAIM THAT SUCH PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND (IV)
FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDINGS, THAT SUCH
COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY.
(f) WAIVER OF JURY TRIAL. Each of the parties hereto hereby irrevocably
waives all right to trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement.
(g) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company (upon the
written approval of the Board (excluding the Employee if he should be a member
of the Board at the time of such determination)) and the Employee, and no course
of conduct or failure or delay in enforcing the provisions of this Agreement
shall affect the validity, binding effect or enforceability of this Agreement or
any provision hereof.
(h) HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
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(j) BUSINESS DAYS. If any time period for giving notice or taking
action hereunder expires on a day which is not a Business Day, the time period
for giving notice or taking action shall be automatically extended to the
immediately following Business Day.
(k) SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements contained herein shall survive in
perpetuity the consummation of the transactions contemplated hereby.
(l) NOUNS AND PRONOUNS. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and
vice-versa.
(m) CONSTRUCTION. Where specific language (such as the word
"INCLUDING") is used to clarify by example a general statement contained herein,
such specific language shall not be deemed to modify, limit or restrict in any
manner the construction of the general statement to which it relates. The
language used in this Agreement shall be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party hereto. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Employment Agreement as of the date first written above.
OPUS360 CORPORATION
By: /S/ XXX X. XXXXXXXX
----------------------------------
Name: Xxx X. Xxxxxxxx
Title: Chief Executive Officer
/S/ XXXXXX X. XXXXXXX
---------------------------------------
XXXXXX X. XXXXXXX
