EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (The "AGREEMENT") is entered into as of the 3rd
day of November, 1999, by and between FUSION NETWORKS, INC., a Delaware
corporation (the "COMPANY") and XXXX XXXXXXX (the "EMPLOYEE").
PRELIMINARY STATEMENTS
WHEREAS, the COMPANY and the EMPLOYEE desire to enter into an employment
relationship and believe it is in their mutual interest to set forth in writing
the terms and conditions thereof; and
WHEREAS, this AGREEMENT governs the employment relationship between the
parties from and after the date hereof, and supersedes all previous agreements
between them, either written or oral, heretofore made:
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements and promises hereinafter set forth, the parties hereto hereby agree
as follows:
AGREEMENT
ARTICLE I
EMPLOYMENT
The COMPANY hereby employs the EMPLOYEE and the EMPLOYEE accepts employment
upon the terms and conditions of this AGREEMENT. The EMPLOYEE shall render, on
behalf of the COMPANY, the services described on SCHEDULE A, attached hereto and
made a part hereof, to COMPANY, as the COMPANY shall direct.
ARTICLE II
TERM
The term of this AGREEMENT shall begin on the date first written above and
shall end on the third anniversary of said date. The AGREEMENT may be extended
by mutual agreement of the parties.
ARTICLE III
DUTIES
Section 3.1. Duty to Provide Services. During the term of this AGREEMENT,
the EMPLOYEE shall serve as Vice President of Marketing and Sales for the
COMPANY.
Section 3.2. Location of Employment. In connection with EMPLOYEE's
employment, EMPLOYEE will be based at the offices of the COMPANY in the Borough
of Manhattan, New York City, unless the COMPANY and EMPLOYEE mutually agree
otherwise and except for travel reasonably required in connection with the
COMPANY's business.
Section 3.3. Full Time and Attention. The EMPLOYEE shall exclusively devote
her "full professional time" and attention to the COMPANY'S business. THIS MEANS
THAT NO OUTSIDE WORK WILL BE PERMITTED. EMPLOYEE further agrees that in the
rendition of such services and in all aspects of her employment, she will comply
with all policies, standards and regulations of COMPANY from time to time
established as are currently in effect and as may be amended. Written copies of
all such policies, regulations and schedules shall be provided to the EMPLOYEE.
ARTICLE IV
COMPENSATION
Section 4.1. Salary. COMPANY shall pay EMPLOYEE, from and after the
effective date of this AGREEMENT, a salary in the amounts indicated on SCHEDULE
B, attached hereto and made part hereof, which salary shall be payable in
twenty-four (24) equal semi-monthly payments.
Section 4.2 Expense Reimbursement. The COMPANY shall reimburse EMPLOYEE for
all reasonable travel, entertainment and other expenses related to her
employment by or promotion of the COMPANY. EMPLOYEE shall provide a written
accounting and explanation of all expenses for which reimbursement is sought on
a monthly basis and the COMPANY shall reimburse all such expenses within ten
(10) days following receipt of each written accounting.
Section 4.3 Bonuses. The EMPLOYEE shall be entitled to receive such bonuses
as the Board shall determine from time to time in accordance with COMPANY policy
and at the sole discretion of the Board.
Section 4.4 Plan Participation. The EMPLOYEE shall be entitled to
participate in any and all stock option, stock bonus, pension, profit sharing,
retirement or other similar plans adopted by the COMPANY and shall receive an
option grant for the number of shares and on the terms set forth on SCHEDULE B.
Section 4.5 Other Benefits. The EMPLOYEE shall be entitled to such fringe
benefits as the COMPANY shall establish for its employees generally which shall
include with respect to the EMPLOYEE at least two weeks paid vacation annually,
group medical insurance and such other benefits as the COMPANY shall adopt,
subject to the discretion of the COMPANY to add or delete such standard benefits
as the Board deems appropriate, from time to time.
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ARTICLE V
DISABILITY; TERMINATION
Section 5.1. Disability. In the event EMPLOYEE shall suffer a Disability
(as hereafter defined), she shall be entitled to continue to receive her full
salary for one (1) month upon such Disability, and one-half (1/2) of her full
salary for the following one (1) month of such Disability. In the event that the
EMPLOYEE becomes subject to a total Disability for more than(2) months, the
EMPLOYEE shall be deemed to have suffered a "Permanent Disability" for the
purposes of this AGREEMENT. The term "Disability" used herein shall mean the
inability of the EMPLOYEE to substantially perform her regular employment
obligations under this AGREEMENT due to mental or physical illness or accident
as determined by a physician selected by the COMPANY, and agreed to by the
EMPLOYEE, and the term "full salary" shall mean the regular gross monthly salary
being paid to EMPLOYEE immediately prior to the onset of the Disability. All
periods of time for which the EMPLOYEE is disabled shall be aggregated.
Section 5.2. Automatic Termination Due to Death or Permanent Disability. In
the event that at any time during the term of this AGREEMENT, the EMPLOYEE shall
die or suffer any "Permanent Disability" (as such term is defined in Section
5.1.) then, in any such event, her employment by the COMPANY pursuant to this
AGREEMENT shall automatically terminate on the date of her death or Permanent
Disability, as the case may be, and neither the EMPLOYEE nor her estate shall
have any further rights hereunder.
Section 5.3. Termination by the Company for "Good Cause". The COMPANY shall
have the right immediately to terminate the employment of the EMPLOYEE pursuant
to this AGREEMENT for "Good Cause". In the event the COMPANY shall have no
further obligation to provide the EMPLOYEE with any compensation, hereunder.
Section 5.4. Definition of "Good Cause". For the purposes of this
AGREEMENT, a termination of the EMPLOYEE by the COMPANY for "Good Cause" shall
mean a termination due to only the following events:
(i) the permanent loss by the EMPLOYEE of her physical ability to provide
services to the COMPANY.
(ii) The willful or knowing failure or refusal of the EMPLOYEE to perform
her duties hereunder or to follow the reasonable directions of the Board of
Directors of the COMPANY, unless such failure or refusal is cured within five
(5) days of written notice by the Board of Directors or its agent:
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(iii) performance by EMPLOYEE of her duties hereunder in a manner which in
the reasonable opinion of the Board of Directors of the COMPANY is
unsatisfactory, which performance is not corrected by the EMPLOYEE within thirty
(30) days from the date of a written notice from the COMPANY to the EMPLOYEE to
correct and cure such unsatisfactory performance;
(iv) actions of the EMPLOYEE that constitute dishonesty, embezzlement,
theft, misappropriation of funds or a continuing violation of governmental
regulations; or
(v) any material breach or default by the EMPLOYEE of any of the terms or
provisions of this AGREEMENT, unless such breach or default is cured by the
Employee within thirty (30) days of her receipt of the COMPANY'S written
objection to such breach or default.
Section 5.5. Termination by the Employee for "Good Cause". The EMPLOYEE
shall have the right to terminate her employment with the COMPANY pursuant to
this AGREEMENT for "Good Cause", upon thirty (30) days prior written notice to
the COMPANY. For the purposes of this Section 5.5., a termination by the
EMPLOYEE for "Good Cause" shall mean any termination due to the material breach
of or default under this AGREEMENT by the COMPANY, which default or breach is
not cured by the COMPANY within fifteen (15) days of its receipt of the
EMPLOYEE'S written objection to such breach or default. In the event of the
EMPLOYEE's termination of employment pursuant to this AGREEMENT for "Good
Cause", (i) all stock options held by the EMPLOYEE shall be fully vested and
immediately exercisable, (ii) the non-compete provisions of Section 6.2 shall be
void and non-enforceable, and (iii) the EMPLOYEE shall be entitled to receive
payment of the salary in the amounts and at the times provided for in Section
4.1, less any amounts received from other employment, for the balance of the
term of this AGREEMENT. Following the EMPLOYEE'S termination of employment
pursuant to this AGREEMENT for "Good Cause", the EMPLOYEE shall be required to
mitigate his damages by seeking comparable employment.
ARTICLE VI
CONFIDENTIALITY; NON-COMPETE
Section 6.1. Confidentiality. The EMPLOYEE acknowledges that during the
course of her employment by the COMPANY, the EMPLOYEE may be given access to or
may become acquainted with Confidential Information and Trade Secrets of the
COMPANY. As used in this Section 6.1., Confidential Information and Trade
Secrets of the COMPANY means all lists of the COMPANY'S clients and other
information relating thereto, records and case histories, financial data and
future plans, practices, plans, price lists, supplier lists, marketing plans,
financial information, contracts or agreements with any person or entity,
including, but not limited to, compilations of information which relate to the
business of the COMPANY, it predecessors, officers, directors, or shareholders,
or any subsidiary, affiliate, customer or supplier of the COMPANY, and which
have not been disclosed by the COMPANY to the public. The EMPLOYEE agrees that,
during the course of her employment by the COMPANY or at any time thereafter,
she shall not publish, disseminate, use or disclose (directly or indirectly) in
any manner any Confidential Information and Trade Secrets except as required in
the course of hers employment with the COMPANY or as otherwise may be required
by law. All documents relating to the business of the COMPANY, including all
Confidential information and Trade Secrets, whether prepared by the EMPLOYEE or
otherwise coming into the EMPLOYEE'S possession, are the exclusive property of
the COMPANY, and must not be removed form the premises of the COMPANY except as
required in the course of employment with the COMPANY. The EMPLOYEE shall return
all such documents (including any copies thereof) to the COMPANY when EMPLOYEE
ceases to be employed by the COMPANY or upon the earlier request of the COMPANY.
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Section 6.2. Non-Compete. (i) EMPLOYEE covenants and agrees that she will
not, during the period of this AGREEMENT or of her employment by or with the
COMPANY, whichever period is longer, and for a period of twelve (12) months
immediately following the termination of this AGREEMENT or her employment,
whichever is longer, for any reason whatsoever, directly or indirectly, for
herself or on behalf of or in conjunction with any other person, persons,
company, partnership, corporation or business of whatever nature (i) call upon
any customer of the COMPANY (including, but not limited to, any customer
obtained for the COMPANY by EMPLOYEE) for the purpose of soliciting or selling
any products or services in competition with those of the COMPANY or its
affiliates; (ii) call upon any employee of the COMPANY or any of its affiliates
for the purpose or with the intent of enticing them away from or out of the
employ of the COMPANY for any reason whatever; (iii) establish, enter it, be
employed by or advise, consult with or become a part of, any company,
partnership, corporation or other business entity or venture, or in any way
engage in business for herself or for others, in competition with the COMPANY or
its affiliates within one hundred (100) miles of the home office of the COMPANY
and/or any affiliated company location, such location having a permanent and
known facility wherein the EMPLOYEE has served in any capacity and wherever
EMPLOYEE has performed duties or had management responsibility on behalf of the
COMPANY or its affiliates; or (iv) during or after the term of her employment
with the COMPANY, disclose the COMPANY'S customers or any other trade secrets of
the COMPANY whether in existence or proposed, to any person, firm, partnership,
corporation or business for any reason or purpose whatsoever.
(ii) Because of the difficulty of measuring economic losses to the COMPANY
and its affiliates as a result of her breach of the foregoing covenant and
because of the immediate and irreparable damage that would be caused to the
COMPANY and its affiliates for which it would have no other adequate remedy,
EMPLOYEE agrees that the foregoing covenant may be enforced by the COMPANY and
its affiliates in the event of breach by her by injunctions and restraining
orders.
(iii) It is agreed by the parties that the foregoing covenants in this
Section 6.2 are necessary to protect the goodwill and business interests of the
COMPANY and its affiliates and impose a reasonable restraint on EMPLOYEE in
light of the activities and business of the COMPANY and its affiliates on the
date of the execution of this AGREEMENT and the future plans of the COMPANY; but
it is also the intent of the COMPANY and EMPLOYEE that such covenants be
construed and enforced in accordance with the activities and business of the
COMPANY and its affiliates on the date of the termination of the employment of
EMPLOYEE.
(iv) The covenants in this Section 6.2 are severable and separate and the
unenforceability of any specific covenant shall not affect the provisions of any
other covenant. Moreover, in the event any court of competent jurisdiction shall
determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable and the
AGREEMENT shall thereby be reformed.
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(v) All of the covenants in this Section 6.2 shall be construed as an
agreement independent of any other provision in this AGREEMENT and the existence
of any claim or cause of action of EMPLOYEE against the COMPANY or its
affiliates, whether predicated on this AGREEMENT or otherwise, shall not
constitute a defense to the enforcement by the COMPANY of such covenants. It is
specifically agreed that the period of twelve (12) months stated at the
beginning of this Section 6.2, during which the agreements and covenants of
EMPLOYEE made in this Section 6.2 shall be effective, shall be computed by
excluding from such computation any time during which EMPLOYEE is in violation
of any provision of this Section 6.2 and any time during which there is pending
in any court of competent jurisdiction any action (including any appeal from any
final judgment) brought by any person, whether or not a party to this AGREEMENT,
in which action the COMPANY or its affiliates seeks to enforce the agreements
and covenants of EMPLOYEE or in which any person contests the validity of such
agreements and covenants or their unenforceability or seeks to avoid their
performance or enforcement.
ARTICLE VII
EQUITABLE RELIEF
The EMPLOYEE acknowledges that the services to be rendered under the
provisions of this AGREEMENT are of a special, unique and extraordinary
character and it would be difficult or impossible to replace such services and
that by reason thereof, the EMPLOYEE agrees and consents that if he violates the
provisions of this AGREEMENT (including, without limitation, ARTICLE VI of this
AGREEMENT), the COMPANY, in addition to any other rights and remedies available
under this AGREEMENT or otherwise, shall be entitled to an injunction, without
bond, to be issued by any tribunal of competent jurisdiction restricting the
EMPLOYEE from committing or continuing any violation of this AGREEMENT. If a
court construing this AGREEMENT should hold that the duration or scope
(geographic or otherwise) of the covenants contained herein are unreasonable,
then, to the extent permitted by law, the Court may describe a duration or scope
(geographic or otherwise) that is reasonable, and the parties agree to accept
such determination, subject to their rights of appeal. Nothing herein stated
shall be construed as prohibiting the COMPANY or any third party from pursuing
any other remedies available to it for such breach or threatened breach,
including recovery of damages from the EMPLOYEE.
ARTICLE VIII
REPRESENTATIONS OF EMPLOYEE
EMPLOYEE has represented and hereby represents and warrants to the Company
that she is not subject to any restriction or non-competition covenant in favor
of a former employer or any other person or entity and that the execution of
this AGREEMENT by EMPLOYEE and her employment by the COMPANY or its affiliates
and the performance of her duties hereunder will not violate or be a breach of
any agreement with a former employer or any other person or entity. Further,
EMPLOYEE agrees to indemnify the COMPANY and its affiliates for any claim,
including, but not limited to, attorney's fees and expenses of investigation, by
any such third party that such third party may now have or may hereafter come to
have against the COMPANY or its affiliates based upon or arising out of any
non-competition agreement or invention and secrecy agreement between EMPLOYEE
and such third party.
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ARTICLE IX
MISCELLANEOUS
Section 9.1. Survival. The provisions of ARTICLES VI, VII and VIII hereof
shall survive the termination of this AGREEMENT and the EMPLOYEE'S employment by
the COMPANY hereunder, regardless of the cause of such termination.
Section 9.2. Entire Agreement.This agreement between the parties hereto
with respect to the subject matter hereof and thereof and supersedes all prior
agreements and understandings, both oral and written, between the parties hereto
with respect to such subject matter.
Section 9.3. Amendment. This AGREEMENT may not be amended or modified in
any respect, except by the mutual written agreement of the parties hereto.
Section 9.4. Waivers and Remedies. The wavier by any of the parties hereto
of any other party's prompt and complete performance, or breach or violation of
any provision of this AGREEMENT shall not operate as, nor be construed to be, a
waiver of any prior or subsequent breach or violation, and the wavier by any of
the parties hereto to exercise any right or remedy which it may possess
hereunder shall not operate as, nor be construed as a bar to the exercise of
such right or remedy by such party or parties upon the occurrence of any
subsequent breach or violation.
Section 9.5. Severability. In case any provision of this AGREEMENT shall be
held to be invalid, illegal or unenforceable, in whole or in part, neither the
validity of the remaining part of such provision nor the validity of any other
provisions of this AGREEMENT shall in any way be affected.
Section 9.6. Descriptive Headings. Descriptive headings contained in this
AGREEMENT are for convenience purposes only and shall not control or affect in
any way the meaning or construction of any or all of the provisions of this
AGREEMENT.
Section 9.7. Counterparts. This AGREEMENT may be executed in any number of
counterparts and by the separate parties hereto in separate counterparts, all of
which shall be deemed to be an original and one and the same instrument.
Section 9.8. Notices. All notices under this AGREEMENT shall be in writing
and shall be given by personal delivery, by telegram, or by registered or
certified mail, postage prepaid, return receipt requested, to the parties at the
addresses as set forth below (or at such other address as any of the EMPLOYEE or
COMPANY may hereafter specify in writing from time to time). Notices, if
personally delivered, shall be deemed to have been received on the date of
delivery; if by telegram, on the day sent; and if given by registered or
certified mail, on the third business day after mailing.
If to the COMPANY, addressed to: FUSION NETWORKS, INC.,
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx Xxxxxxx, President
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If the EMPLOYEE, addressed to: XXXX XXXXXXX
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Section 9.9. Assignment. This AGREEMENT is personal as to the EMPLOYEE and
neither this AGREEMENT nor any rights, interest or benefits of the EMPLOYEE
hereunder may be assigned by the EMPLOYEE without the prior written consent of
the COMPANY. This AGREEMENT may be assigned by the COMPANY, with the prior
written consent of the EMPLOYEE.
Section 9.10. Applicable Law; Arbitration of Disputes. This AGREEMENT shall
be governed by and construed and enforced in accordance with the laws of the
State of New York (without giving effect to any of such State's principles
regarding conflict of laws). Subject to Article VII hereof, any dispute or
controversy arising under or in connection with this Agreement will be settled
exclusively by arbitration, conducted before a panel of three arbitrators in New
York, New York, or such other location as the COMPANY and EMPLOYEE shall
mutually agree, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction; provided that, during the pendency of any dispute
or controversy arising under or in connection with this Agreement, the EMPLOYEE
will be entitled to seek specific performance of her right to be paid until the
date of termination of her employment. The expense of such arbitration will be
borne equally by the COMPANY and the EMPLOYEE.
Section 9.11. Binding Effect and Agreement. This AGREEMENT shall be binding
upon the parties hereto, their heirs, personal representatives, successors and
assigns.
Section 9.12. Attorney's Fees. If any legal action is brought for the
enforcement of any of the provisions of this AGREEMENT, the prevailing party
shall be entitled to recover, upon final judgment on the merits, reasonable
attorneys' fees (including attorneys' fees for any appeal) incurred in bringing
such action.
Section 9.13. Indemnification. The COMPANY shall indemnify EMPLOYEE against
any losses, costs, claims or damages arising from EMPLOYEE's employment by the
COMPANY to the full extent permitted by the COMPANY's Certificate of
Incorporation and Bylaws.
Section 9.14. Administration. The COMPANY shall make all determinations as
to rights and benefits under this AGREEMENT. Any decision by the COMPANY denying
a claim for benefits under this AGREEMENT shall be stated in writing and
delivered or mailed to the EMPLOYEE and COMPANY both mutually agree that they
shall execute any instruments and perform any and all acts which may be
necessary or proper to carry out the purposes of this AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have placed their hands as of the
day and year first above
written.
COMPANY:
FUSION NETWORKS, INC.,
BY: /s/
NAME:
TITLE:
EMPLOYEE:
BY: /s/
XXXX XXXXXXX
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