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EXHIBIT 10.42
EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is made and entered into effective the
24th day of May, 1999, by and between Park `N View, Inc., a Delaware corporation
(the "Company") and Xxxxxx Xxxxxx (the "Executive").
WHEREAS, the Company is engaged in the business of developing and
providing telecommunications, data transmission, internet, cable television and
other services to truckstops, truckdrivers and truck fleet owners; and
WHEREAS, Employee desires to work for the Company under the terms of
this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Executive and the Company agree as follows:
1. Term of Agreement. The term of this Agreement shall commence as of
the date and year first above written (the "Effective Date") and shall remain in
effect for the duration of the Executive's employment with the Company
(hereinafter "Term of Agreement"). The Executive's employment with the Company
and the Term of Agreement shall continue until terminated with or without cause
by either party immediately upon giving the other party written notice thereof,
or upon verbal notice confirmed thereafter in writing. Nothing herein shall be
understood as modifying or otherwise altering the Executive's at-will
relationship or in any other way creating a contract of employment with the
Executive for any stated term.
2. Position and Responsibilities. The Executive shall be employed as
Vice President, New Media and E-Business of the Company. While so employed, the
Executive agrees to devote his full working time and attention to carrying out
his duties and responsibilities under this Agreement and shall use his best
efforts, skills and abilities to further the interests of the Company. While
employed by the Company, the Executive may not work for any other entity, in any
capacity, without the prior express written consent of the Company. The
Executive agrees to comply with all policies, standards and regulations of the
Company now existing or hereafter promulgated.
3. Location. The Executive acknowledges that he will work primarily out
of New York and will manage the Company's New York presence with respect to New
Media and E-Business. The Executive further acknowledges that the Company may,
in its discretion, change the location at which the Executive is required to
perform his duties under this Agreement and may require the Executive to change
his residence to live in a location other than his current home in New York. In
the event the Company does require the Executive to change his residence during
the Term of Agreement, the Company shall reimburse the Executive for reasonable
moving expenses.
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4. Compensation and Related Matters.
(a) Salary. During the Term of Agreement, the Company shall
pay to the Executive a salary at a rate of One Hundred Thirty-Five Thousand
Dollars ($135,000.00) per annum in equal installments on the fifteenth and last
day of each month in arrears, which salary may be increased in the sole
discretion of the Compensation Committee of the Board of Directors (the
"Compensation Committee") from time to time based on periodic performance
reviews (the "Base Salary").
(b) Bonus. For each fiscal year during the Term of Agreement,
the Executive shall be eligible for an incentive bonus for such fiscal year (a
"Bonus") upon satisfaction (as determined by the Compensation Committee in its
discretion) of goals and objectives specified by the Chief Executive Officer of
the Company. The Executive's Bonus shall be targeted at forty-five percent (45%)
of Executive then-current Base Salary but may be increased or decreased by the
Compensation Committee based upon Executive's achievements. For the period
beginning on the Effective Date and ending June 30, 1999, the Executive shall be
eligible for such Bonus as may be recommended by the Compensation Committee and
approved by the Board of Directors of the Company (the "Board").
(c) Stock Options. The Company shall grant a nonqualified
stock option to the Executive substantially in the form of the nonqualified
stock option award agreement attached hereto as Exhibit A, which generally
provides that the Company shall grant Executive nonqualified stock options for
80,000 shares of common stock at an exercise price of Five Dollars ($5) per
share. The options will vest subject to Executive's continued employment with
the Company, the terms of the Company's equity compensation plan and the award
agreement evidencing the options at the following schedule: 16,000 shares will
vest on the Effective Date; an additional 16,000 share will vest on the first
anniversary of the Effective Date; an additional 16,000 shares will vest on the
second anniversary of the Effective Date, an additional 16,000 shares will vest
on the third anniversary of the Effective Date; and the last 16,000 shares will
vest on the fourth anniversary of the Effective Date.
(d) Performance-Based Stock Options. The Company shall grant a
nonqualified stock option to the Executive substantially in the form of the
nonqualified stock option award agreement attached hereto as Exhibit B, which
generally provides that the Company shall grant Executive nonqualified stock
options for 25,000 shares of common stock at an exercise price of Five Dollars
($5) per share. The options will vest, subject to Executive's continued
employment with the Company, the terms of the Company's equity compensation plan
and the award agreement evidencing the options at the following schedule: (i)
12,5000 shares will vest upon meeting certain performance achievements and
milestones established by the Chief Executive Officer for the fiscal year ended
June 30, 2000; and (ii) 12,5000 shares will vest upon meeting certain
performance achievements and milestones established by the Chief Executive
Officer for the fiscal year ended June 30, 2001.
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(e) Travel Expenses. The parties acknowledge that the
Executive may continue to maintain his home in New York for some time after the
Executive commences performance under this Agreement. The Company shall
reimburse the Executive for air travel and related expenses by Executive between
the Company's offices in Coral Springs, Florida and the Executive's residence
and/or office in New York.
(f) Business Expenses. During the Term of Agreement, the
Company shall reimburse the Executive for all reasonable business expenses
incurred by the Executive in performing services hereunder, including travel
expenses while away from home on business, provided that such expenses are
incurred and accounted for in accordance with the policies and procedures
established by the Company.
(g) Vacation. In addition to all paid Company holidays, the
Executive shall be entitled to up to twenty (20) business days paid vacation in
each full calendar year and accrued in accordance with Company policy. Any
vacation days accrued, but not used, in any calendar year shall be forfeited
without payment therefor. The Executive shall be entitled to a pro rata portion
of his vacation entitlement for the calendar year 1999.
(h) Other Benefits. The Executive shall be eligible to
participate in the Company's retirement and welfare benefit plans under the
terms and conditions established by the applicable plan documents.
5. Termination.
(a) The Company shall have the right to terminate the
Executive's employment at any time for any reason. If the Company terminates the
employment of the Executive, the Term of Agreement shall terminate immediately
thereafter and the Company shall pay the Executive the portion of his Base
Salary in effect at the time of termination as he may be entitled to receive for
services rendered prior to the date of such termination and for any accrued but
unused vacation. The Executive shall not be entitled to any Bonus, pro rata or
otherwise, upon termination of his employment and the Term of Agreement.
(b) The Executive shall have the right to voluntarily
terminate his employment at any time for any reason. If Executive terminates his
employment, the Term of Agreement shall terminate immediately thereafter and the
Company shall pay the Executive the portion of his Base Salary in effect at the
time of termination as he may be entitled to receive for services rendered prior
to the date of such termination and for any accrued but unused vacation. The
Executive shall not be entitled to any Bonus, pro rata or otherwise, upon
termination of employment and the Term of Agreement.
6. Representations.
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(a) The Executive warrants and represents that the Executive's
performance of all of the terms of this Agreement and as an employee does not
and will not breach any agreement to keep in confidence proprietary information
acquired by the Executive in confidence or in trust prior to the Executive's
employment by the Company. The Executive represents that the Executive has not
entered into, and agrees not to enter into, any agreement either oral or written
in conflict herewith.
(b) The Executive warrants and represents that the Executive
has not brought and will not bring with the Executive to the Company, or use in
the performance of the Executive's responsibilities for the Company, any
materials or documents of a former employer which are not generally available to
the public, unless the Executive has obtained written authorization from the
former employer or other owner for their possession and use and provided the
Company with a copy of such authorization.
(c) The Executive understands that during the Executive's
employment for the Company the Executive is not to breach any obligation of
confidentiality that the Executive has to a former employer or any other person
or entity.
7. Other Agreements. This Agreement supersedes all prior agreements and
understandings, oral or written, between the Company and the Executive with
respect to the subject matter hereof. Notwithstanding the foregoing, Executive
will adhere to and honor all obligations to the Company as described in the
Confidentiality and Assignment of Inventions Agreement attached hereto as
Exhibit C and executed simultaneously herewith.
8. Amendment. No change, modification, termination or attempted waiver
of any of the provisions of this Agreement shall be binding upon any party
hereto unless reduced to writing and signed by the party against whom
enforcement is sought.
9. Assignment. The Company shall have the right to assign this contract
to a successor or surviving entity, and all covenants and agreements hereunder
shall inure to the benefit of and be enforceable by or against its successors
and assigns. The Executive's obligations under this Agreement shall not be
transferable by assignment or otherwise by the Executive and any attempt to do
any of the foregoing shall be null and void.
10. Counterparts. Any number of counterparts of this Agreement may be
signed and delivered, each of which shall be considered an original and all of
which, together, shall constitute one and the same instrument.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without reference to its
conflict of law provisions.
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12. Venue. Any litigation under this Agreement may be brought by the
Company in the State of Florida, notwithstanding that the Executive is not at
that time a resident of the State of Florida and cannot be served process within
that state. The Executive hereby irrevocably consents to the jurisdiction of the
courts of Florida (whether federal or state courts) over his or her person.
13. Binding Effect. The provisions of this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their heirs,
assigns and successors in interest.
14. Withholding of Taxes. The Company may withhold from any payments
made under this Agreement all federal, state, city, or other taxes as shall be
required pursuant to any law, regulation or ruling.
15. Headings. The headings contained in this Agreement are for
reference purposes only and shall not be deemed interpretation of this
Agreement.
16. Representation. The Executive represents and warrants that the
performance of the Executive's duties under this Agreement, and the execution of
this Agreement by him, will not violate any agreement between the Executive and
any other person, firm, partnership, Company or any other organization. The
Executive represents and warrants that he has consulted with and received advice
from his own counsel in electing to enter into this Agreement.
17. Notices. Any notice given to either party hereto shall be in
writing and shall be deemed to have been given when delivered personally or sent
by certified or registered mail, postage prepaid, return receipt requested, duly
and properly addressed to the party concerned at the address indicated below or
to such changed address as party may subsequently give notice of:
If to the Company:
00000 XX 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
If to the Executive:
00 Xxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
to Executive's last known address as shown on the Company's
records.
18. Survival. The Executive and the Company agree that the provisions
of Sections 6-18 herein shall survive the termination of this Agreement and the
termination of the Executive's employment hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
THE EXECUTIVE:
/s/ Xxxxxx Xxxxxx (Seal)
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Xxxxxx Xxxxxx
THE COMPANY:
PARK `N VIEW, INC.
By:/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, President
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