EXHIBIT 10.29
January 31, 2000
PRIVATE AND CONFIDENTIAL
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Xx. Xxxxxxx X. Xxxxxx, Xx.
0 Xxxxxxxxx Xxxxx, #00-X
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxx:
This letter (the "Agreement") will confirm the agreement between PartMiner,
Inc., a New York corporation (the "Company"), and you relating to your
employment by the Company.
1. EMPLOYMENT. The Company hereby employs you, and you hereby agree to serve,
as the Chief Financial Officer of the Company during the Term of Employment (as
defined in Section 2 hereof). In such capacity, you shall be responsible for
performing those duties consistent and commensurate with your position and as
may from time to time be reasonably directed by the Chief Executive Officer of
the Company, to whom you shall directly report, and the Company's Board of
Directors. Any changes to be made by the Company in the foregoing reporting
arrangements will be discussed with you prior to implementation. You agree to
use your best efforts to promote the interests of the Company and to devote all
of your working time, efforts and energies to the business and affairs of the
Company during the Term of Employment. Subject to Section 4 hereof, you may be
associated with or invest in other companies; provided, however, you will not
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allow such activities to interfere with your duties or services to the Company.
2. TERM OF EMPLOYMENT. The Term of Employment hereunder shall be for the
period commencing on January 31, 2000 and shall end on January 30, 2002 (the
"Term of Employment"), unless earlier terminated pursuant to the provisions of
Section 5 hereof.
3. COMPENSATION; EXPENSES; BENEFITS.
(a) Base Salary. As full compensation for the services rendered hereunder
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during the Term of Employment, the Company shall pay you a base salary of
$200,000 per annum ("Base Salary"). The Base Salary shall be payable in semi-
monthly installments to conform with the regular payroll dates for salaried
personnel of the Company and will be considered for increases annually, in
accordance with the then existing Company policy, based, among other things, on
the Company's evaluation of your performance for the preceding fiscal year.
(b) Benefits. During the Term of Employment, you will receive the benefits
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that the Company shall provide its senior executives generally, including
employee health insurance benefits, disability and participation in bonus, stock
option and other incentive compensation
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programs, if any. Your vacation will begin to accrue as of the date hereof, in
accordance with existing Company policy, up to a maximum of four (4) weeks per
year. All vacation must be used by December 31 of each year of the Term of
Employment at which time any unused vacation will expire and you will no longer
be entitled to such unused vacation time. No compensation shall be payable in
respect of any unused vacation days.
(c) Expenses. During the Term of Employment, you shall be entitled to be
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reimbursed for all reasonable expenses incurred by you in performing services
hereunder in accordance with, and subject to, the policies and procedures
established by the Company from time to time.
(d) Stock Options. The Company shall grant or cause to be granted to you
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options (the "Options") to purchase an aggregate of 570,000 shares of the common
stock of the Company pursuant to the PartMiner, Inc. 1999 Stock Plan (the
"Plan"), subject to the terms and conditions of the Plan and a nonqualified
stock option agreement to be entered into between you and the Company (the
"Stock Option Agreement") concurrently herewith.
4. COVENANT NOT TO COMPETE; INTELLECTUAL PROPERTY; CONFIDENTIALITY;
ENFORCEABILITY; BREACH.
(a) Covenant Not to Compete and Not To Solicit. You hereby acknowledge
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that you are expected to play a very important role in the on-going development
of the Company, that you will have detailed knowledge of the Company's business
and its plans for the future, that you will have fiduciary duties owing to the
Company and its shareholders, and that you will receive substantial compensation
and other benefits under this Agreement. Accordingly, you agree that for the
period of two (2) years from the date that your employment with the Company
terminates (or the term thereof expires), except in the event that the Company
terminates your employment without Cause (as defined in Section 5(c) below) or
you terminate your employment for Good Reason (as defined in Section 5(d)
below), in which case, you agree that for a period of one (1) year from the date
of termination, you shall not, directly or indirectly,
(i) own, manage, operate, join, control or participate in the
ownership, management, operation or control of, or be employed or retained by,
render services to, provide financing or advice to, or otherwise be connected
with a Competing Business (a "Relationship"). For purposes of this Agreement,
the term "Competing Business" shall mean (A) any business that develops or sells
products or services that are directly competitive with the Company's CAPSXpert
database, (B) any business that develops or sells software for component and
supplier management so long as the Company remains in such business; (C) any
business whose primary business involves the sale or distribution of electronic
components; or (D) any business that provides an e-commerce web site which
aggregates pricing and availability data for electronic components.
Notwithstanding the foregoing, following the termination of your employment, (X)
nothing shall prevent you from having a Relationship with an investment banking
firm or rendering services as an investment banker, and/or (Y) nothing shall
prevent you from having a Relationship with a Competing Business; provided that,
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the work you perform for such Competing Business does not directly involve the
businesses defined in Sections 4(a)(i)(A), (B), (C) and (D) above; and/or (Z) a
Competing Business shall not include electronic
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components manufacturers ("ECMs"); provided, that, such ECMs do not engage in
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the distribution of electronic components.
(ii) hire, offer to hire, divert, entice away, solicit or in any
other manner persuade or attempt to persuade (a "Solicitation") any person who
is, or was, at any time within the twelve (12) months prior to such
Solicitation, an officer, director, or employee of the Company or any of its
affiliates to discontinue, cease or alter his, her or its relationship
therewith; or
(iii) divert, entice away, solicit or in any other manner interfere
with, disrupt or attempt to disrupt, any present or prospective relationship,
contractual or otherwise, between the Company or any of its affiliates, on the
one hand, and any of its agents, customers, suppliers, licensors, licensees or
employees, on the other hand.
Nothing in this Section 4(a) shall prohibit you from acquiring up to
three (3%) percent of any class of outstanding equity securities of any
corporation whose equity securities are regularly traded on a national
securities exchange or in the "over-the-counter market."
(b) Intellectual Property. You hereby acknowledge and agree that during
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the Term of Employment, any and all United States and/or foreign patents, patent
applications, service marks, inventions, discoveries, innovations, improvements,
trade secrets and secret processes, whether or not patentable, which you may
have conceived, developed or made, or may conceive, develop or make, either
alone or in conjunction with others and which are related or in any way
connected with the business of the Company (collectively, "Intellectual
Property"), have been and shall be fully disclosed to the Company, and are and
shall be the sole and exclusive property of the Company whether or not disclosed
as against you and you hereby unconditionally and irrevocably assign to the
Company any and all right, title and interest in and to such Intellectual
Property and hereby and irrevocably and unconditionally waive any right to the
foregoing.
(c) Confidentiality. You agree that you will not divulge to anyone (other
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than the Company or any persons employed or designated by the Company) any
knowledge or information of any type whatsoever of a confidential nature
relating to the business of the Company, including, without limitation, any and
all types of ideas, inventions, trade secrets, proprietary information,
marketing plans, business plans, software, software codes, customer and supplier
lists, data processing reports, customer sales analyses, invoices, price lists
or information, and processes, operations, products or improvements that may be
patentable or copyrightable ("Confidential Information"). You further agree not
to disclose, publish or make use of any Confidential Information without the
prior written consent of the Company. The term "Confidential Information" does
not include any information that (i) at the time of disclosure or thereafter is
generally available to and known in the public domain (such information not
being deemed to be in the public domain merely because it is embraced by more
general information that is in the public domain), other than as a result of
disclosure directly or indirectly by you, (ii) was available to you on a non-
confidential basis from a source other than the Company or its representatives
and advisors, provided that such source is not in breach of any obligations of
confidentiality to the Company, or (iii) has been independently acquired or
developed by you without violating any of your obligations pursuant to this
Agreement.
Xxxxxxx X. Xxxxxx, Xx. 0 Xxxxxxx 00, 0000
(x) No conflicts. You hereby represent and warrant to the Company that you
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are not subject to any restrictions, contractual or otherwise, which
prohibit or otherwise restrict you from entering into this Agreement.
(e) Enforceability. You acknowledge and agree that the limitations placed
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on you by this Section 4 are reasonable and are required for the protection of
the Company. You agree that if any such limitation is determined in arbitration
or by a court of competent jurisdiction to be unenforceable, you agree and
submit to the reduction of such limitation as the court or arbitrator(s) deem
reasonable. The limitations placed on you by this Section 4 are of the essence
of this Agreement and they may be construed and enforced independently. You
acknowledge and agree that the provisions set forth in this Section 4 shall
survive the termination or cancellation of this Agreement.
(f) Breach. You acknowledge and agree that: (i) the Company will be
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irreparably injured in the event of a breach by you of any of your obligations
under this Section 4; (ii) monetary damages will not be an adequate remedy for
any such breach; (iii) the Company will be entitled to injunctive relief, in
addition to any other remedy which it may have, in the event of any such breach;
and (iv) the Company shall be entitled to obtain damages for any breach of this
Section 4, in addition to any injunctive or equitable relief otherwise available
to the Company.
5. TERMINATION.
(a) General. The Term of Employment shall be for the period provided in
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Section 2 hereof, unless it is earlier terminated in accordance with the
provisions of this Section 5.
(b) Death and Disability. Your employment under this Agreement shall
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terminate upon (i) your death, or (ii) in the event you become disabled, at the
option of the Company, thirty (30) calendar days after the date on which the
Company shall have provided you with written notice of termination because of
your physical or mental incapacity on a permanent basis ("Incapacitated"). You
shall be deemed to be Incapacitated if you are unable, by reason of any physical
or mental incapacity, for a period of ninety (90) substantially consecutive
calendar days or the shorter periods aggregating one hundred twenty (120)
calendar days or more during any twelve (12) month period, to perform your
duties pursuant to this Agreement in a reasonably satisfactory manner. In the
event of any disagreement between you and the Company as to whether you are
Incapacitated, the question of such permanent incapacity shall be submitted for
decision to an impartial and reputable physician in New York County, New York
(the "Deciding Doctor") chosen by mutual agreement of the Company and you or,
failing such agreement, the Deciding Doctor shall be jointly chosen by two
physicians from New York County, New York (one of whom shall be selected by the
Company and the other by you). The decision of the Deciding Doctor regarding
whether you are Incapacitated shall be final and binding on the Company and you.
You shall submit to any medical examinations reasonably necessary to enable the
Deciding Doctor to make a decision regarding whether you are Incapacitated. In
the event that your employment is terminated pursuant to this Section 5(b), all
compensation and rights to benefits from the Company pursuant to this Agreement
shall cease on the date of such termination; provided, that, you shall be
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entitled to all compensation and benefits (including
Xxxxxxx X. Xxxxxx, Xx. 5 January 31, 2000
reimbursement of expenses) as may have already accrued as of such date or as
expressly provided herein or in plans in which you were participating at such
date or by law.
(c) Termination by the Company for "Cause". The Company may terminate your
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employment at any time during the Term of Employment hereunder for "Cause";
provided, however, that the Company shall provide you with written notice
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specifying in reasonable detail the basis therefor, and up to ten (10) days
after receipt of such notice in which to cure such "Cause," if it is reasonably
capable of being cured. For the purposes of this Agreement, "Cause" shall mean:
(i) knowingly or recklessly causing material injury to the Company's business,
condition or reputation; (ii) willful misconduct in the performance of, or a
willful failure to perform, your duties; (iii) commission of dishonest or
fraudulent conduct whether or not in connection with your employment; (iv)
unlawful behavior involving moral turpitude whether or not in connection with
your employment; and/or (v) a material breach or violation of the provisions of
Section 4 hereof.
(d) Termination By You For Good Reason. You may terminate your employment
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hereunder at any time during the Term of Employment for "Good Reason" by
providing the Company with prior written notice specifying the reasons therefor
and following the Company's failure to cure the same within ten calendar (10)
days of its receiving such notice. Your employment shall terminate at the end
of such ten calendar (10) day period. For purposes of this Agreement, "Good
Reason" shall mean the occurrence of any of the following: (i) the Company
requiring you to engage in any illegal act; (ii) a material breach by the
Company of this Agreement (including, without limitation, a change in your
status, title, position, or responsibilities (including reporting
responsibilities) which represents a demotion from your status, title, position
or responsibilities as in effect immediately prior thereto); (iii) the Company
requiring you to work permanently at a location outside the metropolitan area
(including without limitation, Connecticut; Long Island, New York; New Jersey;
New York, New York; or Westchester, New York), without your prior consent, and
(iv) a change in control of the Company, which for purposes of this Agreement
shall mean an event or series of events after the date hereof by which (i) any
"person" or "group" (as such terms, are used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Act")) becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Act), directly or indirectly, of more
than fifty percent (50%) of the aggregate voting power of all the capital stock
of the Company normally entitled to vote in the election of directors, (ii)
during any period of two consecutive calendar years individuals who at the
beginning of each period constituted the Board (together with any new directors
whose election by the Board or whose nomination for election by the Company's
stockholders was approved by a vote of at least a majority of the directors then
still in office who either were directors at the beginning of such period or
whose election or nomination was previously so approved) cease for any reason to
constitute a majority of the directors then in office, or (iii) the consummation
of a plan or transaction to merge or consolidate the Company with or into
another corporation, or to sell, or otherwise dispose of, all or substantially
all of the Company's property and assets, or to liquidate the Company ("Change
in Control").
(e) Termination of Employment by the Company Other Than For "Cause" or By
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You For "Good Reason". In the event that your employment is terminated by the
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Company other than for Cause, or by you for Good Reason (pursuant to Section
5(d) hereof), the Company shall pay
Xxxxxxx X. Xxxxxx, Xx. 6 January 31, 2000
to you in a lump sum payment within thirty (30) days of such termination
("Payment Period"), an amount equal to the net present value of your Base Salary
for the unexpired term of this Agreement calculated using a discount rate of
LIBOR plus one percent (1%) (the "Payment"); provided that, the Company has the
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cash reasonably available to make such payment within the Payment Period;
provided further that, in the event that the Company does not have the cash
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reasonably available to make such Payment, the Company shall pay you continuing
payments of Base Salary and continuing benefits pursuant to Sections 3(a) and
3(b), respectively, in accordance with the Company's regular payroll practice
until the Company is reasonably capable of making the balance of the Payment;
provided, further, however, that you have complied and will continue to comply
with Section 4 hereof.
(f) Termination of Employment By The Company For "Cause" or By You Other
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Than For "Good Reason". In the event that your employment is terminated by the
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Company for Cause (pursuant to Section 5(c) above), or by you voluntarily other
than for Good Reason (pursuant to Section 5(d) above), all compensation and
rights to benefits from the Company (including stock plans) pursuant to this
Agreement shall cease on the date of such termination; provided, that, you shall
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be entitled to all compensation and benefits (including reimbursement of
expenses) as may have already accrued as of such date or as expressly provided
in plans in which you were participating at such date or by law.
(g) Duties Upon Termination. Upon termination of your employment with the
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Company for any reason, or upon expiration of the Term of Employment, those
duties and obligations set forth in Section 4 hereof shall continue and bind you
in accordance with the terms thereof.
6. ASSIGNMENT. This Agreement is a personal contract, and except as
specifically set forth herein, your rights, obligations and interests herein may
not be sold, delegated, transferred or assigned. The Company may freely assign
this Agreement and any of its rights, obligations and interests hereunder,
subject to the provisions herein with respect to a Change in Control. This
Agreement shall be binding upon and inure to the benefit of each party's
successors, legal beneficiaries and permitted assigns.
7. ENTIRE AGREEMENT; GOVERNING LAW; HEADINGS. This Agreement contains the
entire agreement between the parties with respect to your employment by the
Company, and the validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New York applicable to
contracts entered into and to be performed wholly within said State. Subject to
Section 9 below, you hereby consent to the jurisdiction of the Federal and State
courts located in New York County and waive any objections to such courts based
on venue, including but not limited to, forum non conveniens, in connection with
any claim or dispute arising under this Agreement. Each of the parties hereto
irrevocably waives any and all right to a jury trial in any legal proceedings
arising out of or relating to this Agreement. You hereby agree that any
agreement or arrangement existing prior to the date hereof regarding your
employment by the Company is hereby terminated and superseded by this Agreement.
This Agreement may not be changed orally, but only by agreement in writing
signed by the party against whom enforcement of any waiver, change, modification
or discharge is
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sought. Section and paragraph headings contained herein are for convenience of
reference only and shall not be considered a part of this Agreement.
8. NOTICES. Any notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given (a) on the same day if
given by hand, (b) on the third business day after mailing if given by
registered or certified mail, return receipt requested, postage prepaid, (c) on
the next business day after it was deposited with the courier service if sent by
reputable overnight courier, or (d) when sent if given by facsimile with
confirmation, addressed to you at 0 Xxxxxxxxx Xxxxx, #00-X, Xxx Xxxx, Xxx Xxxx
00000 with a copy to: Winston & Xxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx X. Xxxxxxxx, Esq. (fax no. 000-000-0000), or to the
Company at its offices at 000 Xxxx Xxxxxx Xxxxx, 00/xx/ Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel (fax no. 000-000-0000), with a copy
to: Xxxxxxxxxxx & Xxxxxxxx LLP, 1251 Avenue of the Americas, 00/xx/ Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Esq. (fax no. 000-000-0000)
or such other address as shall have been specified in writing by either party to
the other.
9. ARBITRATION. Except as provided by Section 4(f) of this Agreement, any
dispute or controversy under or in connection with this Agreement shall be
settled exclusively by arbitration in New York, New York by one arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered upon the arbitrator's award in any court having
competent jurisdiction. The costs and expenses (including reasonable attorneys'
fees and disbursements) of the prevailing party in any such dispute or
controversy shall be reimbursed by the other party.
10. RIGHT TO WITHHOLD. The Company shall have the right to make all
appropriate withholdings from your salary and other compensation under federal,
state and local tax laws.
11. SEVERABILITY. If any term or provision hereof is determined to be invalid
or unenforceable, (a) the remaining terms and provisions hereof shall be
unimpaired, (b) any such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction, and (c) the invalid or unenforceable term or provision shall be
deemed replaced by a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision.
12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement (and all signatures need not appear on any
one counterpart), and this Agreement shall become effective when one or more
counterparts has been signed by each of the parties hereto and delivered to each
of the other parties hereto.
13. WAIVER, ETC. The failure of either of the parties hereto to at any time
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
this Agreement or any provision hereof or the right of either of the parties
hereto to thereafter enforce each and every provision of this Agreement.
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14. LEGAL FEES. The Company agrees to reimburse you for up to $5,000 in legal
fees incurred by you in connection with the negotiations of this Agreement and
any other agreements referred to herein.
If the foregoing accurately reflects the agreement between us, please
confirm your acceptance and agreement by signing the attached copy of this
Agreement and return the same to me.
Sincerely,
PARTMINER, INC.
/s/ Xxxxxx Xxxxxxxxx
By:__________________________
Name: Xxxxxx Xxxxxxxxx
Title: President and Chief
Executive Officer
ACCEPTED AND AGREED:
/s/ Xxxxxxx X. Xxxxxx, Xx.
_________________________
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