Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this 19th day of
June, 1998, is entered into by FurnitureSite, Inc., a Delaware corporation with
its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000
(the "Company"), and Xxxxxx Xxxxxxxxxx, residing at 0 Xxxxxxx Xxxx, Xxxxxxxxx,
XX 00000 (the "Executive").
The Company desires to employ the Executive, and the Executive desires
to be employed by the Company. In consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties agree as follows:
1 TERM OF EMPLOYMENT. The Company hereby agrees to employ the Executive,
and the Executive hereby accepts employment with the Company, upon the terms set
forth in this Agreement, for the period commencing on June 19, 1998 (the
"Commencement Date") and ending on June 19, 2001 (such period, as it may be
extended, the "Employment Period"), unless sooner terminated in accordance with
the provisions of Section 4; PROVIDED, HOWEVER, on June 19 of each year
commencing June 19, 1999, the Employment Period shall be extended so that as of
each June 19, the Employment Period shall be for a full three years.
2 TITLE; CAPACITY. The Executive shall serve as President of the Company.
The Executive shall be based at the Company's headquarters in Worcester,
Massachusetts. The Executive shall, subject to the direction of the Board of
Directors of the Company (the "Board"), have general charge and supervision of
the business of the Company. The Executive shall, in the capacity of President,
perform such other duties and shall have such other powers as the Board may from
time to time prescribe.
The Executive hereby accepts such employment and agrees to undertake
the duties and responsibilities inherent in such position and such other duties
and responsibilities as the Board or its designee shall from time to time
reasonably assign to him. The Executive agrees to devote substantially his
entire business time, attention and energies to the business and interests of
the Company during the Employment Period; it being understood that the Executive
shall be entitled to devote a reasonable amount of time to personal and civic
affairs to the extent that they do not interfere in any material respect with
the Executive's obligations to the Company. The Executive agrees to abide by the
rules, regulations, instructions, personnel practices and policies of the
Company and any changes therein which may be adopted from time to time by the
Company. The Executive acknowledges receipt of copies of all such rules and
policies committed to writing as of the date of this Agreement.
3 COMPENSATION AND BENEFITS.
3.1 SALARY. The Company shall pay the Executive, in equal bi-weekly
installments, an annual base salary of $100,000 for the one-year period
commencing on the Commencement Date. Such salary shall be reviewed annually and
may be increased as determined from time to time by the Board.
3.2 EXECUTIVE BENEFITS. The Executive shall be entitled to
participate in all bonus and benefit programs that the Company establishes and
makes available to its employees, if any, to the extent that Executive's
position, tenure, salary, age, health and other qualifications make him eligible
to participate, including, but not limited to:
(a) HEALTH INSURANCE. Non-contributory health insurance for
the Executive and the Executive's spouse and dependent children; and
(b) LIFE INSURANCE. Life insurance on the life of the
Executive with an Executive-directed beneficiary in the amount at least equal to
$300,000; and
(c) AUTOMOBILE. A stipend of $10,000 per year which may be
used by the Executive for automobile-related expenses.
3.3 VACATION. The Executive shall be entitled to four (4) weeks
paid vacation per year, to be taken at such times as may be approved by the
Board or its designee.
3.4 REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Executive for all reasonable travel, entertainment and other expenses incurred
or paid by the Executive in connection with, or related to, the performance of
his duties, responsibilities or services under this Agreement, upon presentation
by the Executive of documentation, expense statements, vouchers and/or such
other supporting information as the Company may request, PROVIDED, HOWEVER, that
the amount available for such travel, entertainment and other expenses may be
fixed in advance by the Board.
4 EMPLOYMENT TERMINATION. The employment of the Executive by the
Company pursuant to this Agreement shall terminate upon the occurrence of any of
the following:
4.1 Upon 120 days' advance written notice given by either
party; PROVIDED, HOWEVER, that the Company shall be required, as a condition to
the effectiveness of such notice, to pay and provide to such Employee the salary
and benefits the Executive would have otherwise received had he remained an
employee of the Company for the duration of the then Employment Period (without
any additional extension);
4.2 At the election of the Company, for cause, immediately
upon written notice by the Company to the Executive. For the purposes of this
Section 4.2, "cause" for termination shall be deemed to exist upon (a) gross
negligence or willful misconduct of the Executive in the performance of his
assigned duties for the Company (in each case that results in a material
liability to the Company), or (b) the conviction of the Executive of, or the
entry of a pleading of guilty or nolo contendere by the Executive to, any crime
involving moral turpitude or any felony; or
4.3 Thirty days after the death or disability of the
Executive. As used in this Agreement, the term "disability" shall mean the
inability of the Executive, due to a physical or mental disability, for a period
of 90 days, whether or not consecutive, during any 360-day period to perform the
services contemplated under this Agreement. A determination of disability shall
be made by a physician satisfactory to both the Executive and the Company,
PROVIDED THAT if the Executive and the Company do not agree on a physician, the
Executive and the Company shall each select a physician and these two together
shall select a third physician, whose determination as to disability shall be
binding on all parties.
5 EFFECT OF TERMINATION.
5.1 TERMINATION FOR CAUSE. In the event the Executive's
employment is terminated for cause pursuant to Section 4.2, the Company shall
pay to the Executive the compensation and benefits otherwise payable to him
under Section 3 through the last day of his actual employment by the Company.
5.2 TERMINATION FOR DEATH OR DISABILITY OR PURSUANT TO
SECTION 4.1. If the Executive's employment is terminated by death or because
of disability pursuant to Section 4.3, or pursuant to Section 4.1, (i) if the
term of this agreement is in its initial three year Employment Period, the
Company shall pay to the estate of the Executive or to the Executive, as the
case may be, the compensation and benefits which would otherwise be payable
to the Executive during the remaining portion of the Employment Period, when
due under this Agreement pursuant to Section 3.1 PLUS an additional aggregate
amount, payable in six equal monthly installments, equal to six (6) months'
salary at the highest salary rate in effect during the then previous twelve
(12) months and (ii) if the term of this Agreement is outside its initial
three year Employment Period, the Company shall pay to the estate of the
Executive or to the Executive, as the case may be, an aggregate amount,
payable in six equal monthly installments, equal to six (6) months' salary at
the highest salary rate in effect during the then previous twelve (12) months.
Notwithstanding the immediately preceding sentence, the Company shall be
entitled to deduct from each payment due to the Executive under this Section
5.2, an amount equal to the pro rata portion of the annual base salary
received by the Executive, if any, while employed by another company;
PROVIDED, HOWEVER, the amount of any such deduction shall not exceed 50% of
the amount of the related payment then due to the Executive under the
immediately preceding sentence.
5.3 SURVIVAL. The provisions of Sections 6 and 7 shall
survive the termination of this Agreement.
6 NON-COMPETE AND NON-SOLICITATION.
a. During the Employment Period and for a period of one
(1) year after the termination or expiration thereof, the Executive will not
directly or indirectly:
(i) as an individual proprietor, partner, stockholder,
officer, employee, director, joint venturer, investor, lender, consultant or in
any other capacity whatsoever
(other than as the holder of not more than one percent (1%) of the total
outstanding stock of a publicly held company), engage in the business of
marketing or selling furniture by use of the Internet;
(ii) recruit,solicit or induce, or attempt to induce, any
employee or employees of the Company to terminate their employment with, or
otherwise cease their relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to
take away, the business or patronage of any of the clients, customers or
accounts, or prospective clients, customers or accounts, of the Company which
were contacted, solicited or served by the Executive while employed by the
Company.
b. If any restriction set forth in this Section 6 is found
by any court of competent jurisdiction to be unenforceable because it extends
for too long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend only over the maximum
period of time, range of activities or geographic area as to which it may be
enforceable.
c. The restrictions contained in this Section 6 are
necessary for the protection of the business and goodwill of the Company and are
considered by the Executive to be reasonable for such purpose. The Executive
agrees that any breach of this Section 6 will cause the Company substantial and
irrevocable damage and therefore, in the event of any such breach, in addition
to such other remedies which may be available, the Company shall have the right
to seek specific performance and injunctive relief.
7 PROPRIETARY INFORMATION AND DEVELOPMENTS.
7.1 PROPRIETARY INFORMATION.
a. The Executive agrees that all information and know-how,
whether or not in writing, of a private, secret or confidential nature
concerning the Company's business or financial affairs (collectively,
"Proprietary Information") is and shall be the
exclusive property of the Company. By way of illustration, but not limitation,
Proprietary Information may include inventions, products, processes, methods,
techniques, formulas, compositions, compounds, projects, developments, plans,
research data, clinical data, financial data, personnel data, computer programs,
and customer and supplier lists. The Executive will not disclose any Proprietary
Information to others outside the Company or use the same for any unauthorized
purposes without written approval by an officer of the Company, either during or
after his employment, unless and until such Proprietary Information has become
public knowledge without fault by the Executive or has been obtained from a
third-party (who shall not be an employee of the Company) otherwise than in
violation of a confidentiality agreement to which such third-party is bound.
b. The Executive agrees that all files, letters, memoranda,
reports, records, data, sketches, drawings, laboratory notebooks, program
listings, or other written, photographic, or other tangible material containing
Proprietary Information, whether created by the Executive or others, which shall
come into his custody or possession, shall be and are the exclusive property of
the Company to be used by the Executive only in the performance of his duties
for the Company.
c. The Executive agrees that his obligation not to disclose
or use information, know-how and records of the types set forth in paragraphs
(a) and (b) above, also extends to such types of information, know-how, records
and tangible property of customers of the Company or suppliers to the Company or
other third parties who may have disclosed or entrusted the same to the Company
or to the Executive in the course of the Company's business.
7.2 DEVELOPMENTS.
a. The Executive will make full and prompt disclosure to
the Company of all inventions, improvements, discoveries, methods, developments,
software, and works of authorship, whether patentable or not, which are created,
made,
conceived or reduced to practice by the Executive or under his direction or
jointly with others during his employment by the Company, whether or not during
normal working hours or on the premises of the Company (all of which are
collectively referred to in this Agreement as "Developments").
b. The Executive agrees to assign and does hereby assign to
the Company (or any person or entity designated by the Company) all his right,
title and interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this Section 7(b)
shall not apply to Developments which do not relate to the present or planned
business or research and development of the Company and which are made and
conceived by the Executive not during normal working hours, not on the Company's
premises and not using the Company's tools, devices, equipment or Proprietary
Information.
c. The Executive agrees to cooperate fully with the
Company, both during and after his employment with the Company, with respect to
the procurement, maintenance and enforcement of copyrights and patents (both in
the United States and foreign countries) relating to Developments. The Executive
shall sign all papers, including, without limitation, copyright applications,
patent applications, declarations, oaths, formal assignments, assignment of
priority rights, and powers of attorney, which the Company may deem necessary or
desirable in order to protect its rights and interests in any Development.
7.3 OTHER AGREEMENTS. The Executive hereby represents that
he is not bound by the terms of any agreement with any previous employer or
other party to refrain from using or disclosing any trade secret or confidential
or proprietary information in the course of his employment with the Company or
to refrain from competing, directly or indirectly, with the business of such
previous employer or any other party. The Executive further represents that his
performance of all the terms of this Agreement and as an employee of the Company
does not and will not breach any
agreement to keep in confidence proprietary information, knowledge or data
acquired by him in confidence or in trust prior to his employment with the
Company.
8 NOTICES. All notices required or permitted under this Agreement
shall be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate to the other in
accordance with this Section 8.
9 PRONOUNS. Whenever the context may require, any pronouns used
in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
10 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and
understandings, whether written or oral, relating to the subject matter of this
Agreement.
11 AMENDMENT. This Agreement may be amended or modified only
by a written instrument executed by both the Company and the Executive.
12 GOVERNING LAW. This Agreement shall be construed, interpreted
and enforced in accordance with the laws of the Commonwealth of Massachusetts.
13 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Executive are personal and shall not be assigned by him.
14 MISCELLANEOUS.
14.1 No delay or omission by the Company in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by the Company on any one occasion shall be effective
only in that
instance and shall not be construed as a bar or waiver of any right on any other
occasion.
14.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
14.3 In case any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
FURNITURESITE, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Title: Director
EXECUTIVE
/s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
