EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into this 29th day of December, 1999, by and
between Xxxxxxx.xxx Inc., a Delaware corporation with its primary offices at Xxx
Xxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx Xxxxxxx X0X 0X0 (the "Company), and
Xxxxx Xxxxxx, an individual residing at 00 Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxx, X0X
0X0 (the "Employee").
1. EMPLOYMENT RELATIONSHIP.
Employee is hereby employed in the capacity of Chief Operating Officer until the
termination of her employment pursuant to Section 3 hereof. Employee will
faithfully, fully, and to the best of her ability, experience and talent perform
and render such services and perform such duties for the Company as Chief
Operating Officer as the CEO shall direct. Employee will devote her full
business time, attention, knowledge and skill solely to the business of the
Company and will not engage in any other business activities for compensation or
profit. Upon the closing of the transaction described in Exhibit A, Employee
shall be duly elected to the Board of Directors of the Company.
2. COMPENSATION (US Dollars)
2.1. As compensation for the performance of her duties, Employee will
receive a salary at an annual rate of $170,000 payable in
accordance with the Company's normal pay practices for a salaried
employee.
2.2. Employee shall receive an annual guaranteed bonus of $30,000,
payable at the rate of $2,500 per month. Such amount shall be
payable monthly on the Company's first normal pay date of each
month, the first month of employment, and shall continue so long
as the Employee remains employed hereunder.
2.3. Employee shall be eligible for an incentive performance bonus for
each calendar year of her employment, with such bonus for 1999,
if any, prorated to reflect the number of days Employee is
employed during such year.
2.4. Employee will be entitled to participate in all fringe benefit
programs now or hereafter made available to other salaried
employees of the Company. A summary of benefits currently in
effect is attached or has been previously provided to Employee.
Employee shall be entitled to up to four (4) weeks of paid
vacation per year.
2.5. Company will reimburse Employee for all travel and business
expenses incurred by her which are reasonable and necessary for
carrying on the business of the Company. Expenses will be
reimbursed after presentation by Employee of an itemized account
of such expenses in form and substance satisfactory to the
Company, and Company's determination that such expenditures were
reasonable, ordinary and necessary.
3. TERMINATION BY COMPANY OR BY EMPLOYEE
3.1. Company may terminate Employee's employment at any time, with or
without Cause (as defined hereunder). If Employee is terminated
by Company other than
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for Cause, she shall be entitled to receive salary continuously
for the lesser of twelve (12) months or until she is gainfully
employed.
3.2. For purposes of this Agreement, termination for Cause is defined
as (i) willful and continued failure by Employee to perform her
duties as Chief Operating Officer of the Company; (ii) gross
misconduct of Employee which is injurious to the Company; (iii) a
material breach by the Employee of her obligations under Section
4 of this Agreement which is reasonably believed by the Company
to have caused, or to be likely to cause, material harm to the
Company, or (iv) conviction of a felony. Each of 3.2 (i) and (ii)
shall be deemed to exist provided the Company has provided
written notice to the Employee setting forth the perceived
performance deficiencies and the steps needed to remedy those
deficiencies and the Employee has failed to take immediate steps
to remedy such deficiencies. If the Employee is terminated for
Cause, no further salary, bonus, incentive performance bonus, or
other compensation will be payable under this Agreement except
for any amount of base salary and bonus which has accrued but not
been paid prior to the date of termination.
3.3. Employee may terminate her employment at any time with or without
"Good Reason" as defined in Section 3.4. If the Employee
terminates other than for Good Reason, no further salary, bonus,
incentive performance bonus, or other compensation will be
payable under this Agreement except for any amount of base salary
and bonus which has accrued but not been paid prior to the date
of termination.
3.4. For purposes of this Agreement, termination for "Good Reason" is
defined as (i) assignment to the Employee of demonstrably onerous
or significantly demeaning on-going duties inconsistent with her
status as Chief Operating Officer; (ii) reduction in her total
compensation below the amounts required by Section 2.1 and 2.2;
or (iii) failure to elect to or removal of the Employee from the
Board of Directors. If the Employee resigns for Good Reason, she
shall be entitled to receive salary continuation as provided in
Section 3.6.
3.5. The Employee's employment shall be automatically terminated upon
the occurrence of either of the following events: (i) death of
the Employee, and (ii) disability of the Employee, as defined in
the long term disability policy carried by the Company for the
Employee, or if no such policy exists, disability which causes
the Employee to be unable to satisfactorily perform her job
duties for a period of twelve (12) consecutive months as
reasonably determined by the Company in its discretion. In such
cases, no further salary, bonus or other compensation will be
payable under this Agreement except for any amount of base salary
and bonus which has accrued but not been paid prior to the date
of the termination.
3.6. If the Employee is terminated by the Company other than for Cause
or if the Employee resigns for Good Reason, for the lesser of a
period of twelve (12) months from the date her employment
terminates or until she is gainfully employed, the Employee will
be entitled to receive continuation of her annual base salary
then in effect, together with continuation of life and health
insurance benefits at the level in effect on the date of
termination or resignation; provided, however, that any benefit
payable hereunder shall terminate the date the Employee violates
her covenants under Section 4 hereof. In the event the Company is
unable to continue the Employee's participation in any such
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insurance program after the date of such termination or
resignation, the Company shall provide substantially equivalent
insurance benefits or reimburse the Employee for the cost of
acquiring substantially equivalent benefits.
4. COVENANTS BY EMPLOYEE
4.1. Definitions: As used in this Agreement, the following terms shall
have the following meanings:
4.1.1. "Confidential Information" includes trade secrets and all
other information disclosed to or known by the Employee as
a result of or through the Employee's employment by the
Company, including information about the Company's
processes, services or products, including all information
related to research, development, inventions, production,
purchasing, accounting, finances, engineering, marketing,
merchandising, and customers' names and accounts but
excluding general knowledge in the industry in which the
Company is engaged.
4.1.2. "Inventions" includes any discoveries concepts and ideas
regardless of patentability, including but not limited to
processes, methods, computer programs and techniques, as
well as improvements thereof, concerning any activity of the
Company that the Employee may become acquainted with as a
result of employment by the Company.
4.2. Other than as stipulated in Exhibit A, the Employee expressly
agrees that, except as required in her duty to the Company, she
will not at any time, in any fashion, either directly or
indirectly, use, divulge, disseminate, disclose, lecture upon,
publish articles concerning or communicate to any person, firm or
corporation in any manner whatsoever any Confidential
Information, without the prior express approval from the Company.
The parties hereby stipulate that as between them, all
Confidential Information is important, material and confidential
and that the disclosure of such Confidential Information
materially adversely affects the effective and successful conduct
of business by the Company and its goodwill, and that any breach
of the terms of this paragraph is a material breach thereof. The
Employee agrees to sign any secrecy or nondisclosure agreement
required by a customer of the Company as a condition of doing
business with the Company, and to provide the Company with a
signed copy of said agreement. Upon termination of her employment
with the Company, the Employee shall leave with the Company all
documents, records, notebooks and other repositories containing
Confidential Information, including any and all copies thereof
then in the Employee's possession whether prepared by him or
others.
4.3. Other than as stipulated in Exhibit A, the Employee agrees not to
assert any rights to, and expressly assigns to the Company as the
Company's exclusive property, all ideas, innovations,
discoveries, improvements, Inventions, trademarks, computer
programs and/or systems and other developments or improvements
conceived by the Employee, alone or with others, during the term
of her employment, whether or not during working hours, that are
within the scope of the Company's business operations or that
relate to any work or projects of the Company. The Employee
agrees to assist the Company, at the Company's expense, to obtain
patents or copyrights on any protectable ideas and Inventions, to
obtain trademarks, to exploit other developments and to execute
all documents
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necessary to obtain such patents, copyrights, trademarks, or
other developments in the name of the Company.
4.4. The Employee agrees that during the term of this Agreement and
for a period of one (1) year after the expiration of this
Agreement or termination of her employment with the Company,
without the prior written consent of the Company (which consent
will not be unreasonably withheld), she will not directly or
indirectly own, operate, manage, control, participate in the
management or control of, be employed by act as a consultant for,
provide or facilitate the provision of financing for, assist, or
maintain or continue any interest whatsoever (other than stock
ownership in any publicly owned company not exceeding five
percent (5%) of the outstanding stock of such company) in any of
the Company's customers, served by her or by any other principal
or employee of the Company during the term of her employment with
the Company, or in any enterprise in the United States or Canada
engaged in a business that is directly competitive with the
Company. Without implied limitation, the foregoing covenant shall
include hiring or engaging or attempting to hire or engage for or
on behalf of herself or any competitor any officer or employee of
the Company or any of its subsidiaries, encouraging for on behalf
of herself or any competitor, any such officer or employee to
terminate her or her relationship or employment with the Company
or any of its subsidiaries, soliciting for or on behalf of
herself or any competitor any person or entity which was a client
of the Company or any of its subsidiaries, soliciting for or on
behalf of herself or any competitor any person or entity which
was a client of her employment with the Company, and diverting to
any person or entity any client or business opportunity which
relates to the business of the Company or any of its direct
subsidiaries.
4.5. The Employee expressly agrees that the terms and condition
of this Section 4 shall remain in full force and effect during
and after termination of this Agreement for a period of 18
months. The parties hereto agree and declare that monetary
damages will be insufficient to fully compensate the Company
for its losses in the event that the Employee breaches the
covenants contained in this Section 4. Therefore, the Company
will be entitled to enjoin the Employee from any threatened or
actual violation of any covenant contained herein, and the
Employee will not raise as a defense to any action or proceeding
for an injunction the claim that the Company would be adequately
compensated by monetary damages.
5. DISPUTE RESOLUTION
5.1. Except with respect to matters as to which injunctive relief is
being sought, any dispute arising out of or relating to this
Agreement, or the breach, termination or validity hereof shall be
finally settled by binding arbitration conducted expeditiously in
accordance with J.A.M.S./Endispute Comprehensive Arbitration
Rules and Procedures (the "J.A.M.S. Rules"). The arbitration
shall be governed by the United States Arbitration Act, 9 U.S.C.
Section 1-16, and judgement upon the award rendered by the
arbitrators may be entered by any court having jurisdiction
thereof. The place of arbitration shall be New York City, New
York.
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5.2. Such proceedings shall be administered by the neutral arbitrator
in accordance with J.A.M.S. Rules as the arbitrator deems
appropriate, however, such proceedings shall be guided by the
following agreed upon procedures:
5.2.1. Mandatory exchange of all relevant documents, to be
accomplished within thirty (30) days of the initiation of
the procedure;
5.2.2. no other discovery;
5.2.3. hearings before the neutral arbitrator which shall consist
of a summary presentation by each side of no more than three
3 hours; such hearings to take place on one or two days at a
maximum; and
5.2.4. decision to be rendered not more than ten (10) days
following such hearings.
6. MISCELLANEOUS PROVISIONS
6.1. Employee hereby represents and warrants that she is free to make
this Agreement and the making hereof and/or performance hereunder
by her will not violate the legal and/or equitable rights of any
third party.
6.2. This Agreement embodies the entire understanding of the parties
and there are no promises, terms, covenants, conditions or
obligations or other written, expressed or implied agreements
other than those contained herein. No change or modification of
the Agreement will be valid unless the same will be in writing
and signed by both parties hereto.
6.3. The failure of Company to act or exercise its rights under this
Agreement upon the breach of any of the terms or conditions
hereof by the Employee, shall not be construed as a waiver of
such breach, nor prevent Company from hereafter enforcing strict
compliance with any and all of the terms and conditions herein
set forth. If any provision of the Agreement is declared void,
all of the remaining provisions of this Agreement shall
nevertheless remain in full force and effect, and no provisions
shall be deemed dependent upon any other provision.
6.4.
6.4.1. The employment by Company of Employee is being effected
because of Employee's special capabilities and
qualifications and all of her rights, benefits and duties
hereunder are, therefore, not assignable or transferable in
any manner, except to the extent that any benefit hereunder
may be payable to her estate.
6.4.2. The Company's obligations and duties under this Agreement
shall be binding upon any successor, and this Agreement
shall inure to the benefit of and be enforceable by any such
successor to the Company.
6.5. This Employment Agreement will be construed and enforced in
accordance with the laws of the State of New York.
6.6. Employee certifies that she has read the entire contents of this
Agreement before signing her name hereto, that she was encouraged
and afforded sufficient opportunity by Employer to obtain legal
advice prior to her executing this Agreement and that she fully
understands all of the terms, conditions, and provisions set
forth herein.
6.7. If any provision of this Agreement shall be deemed unenforceable,
prohibited, or invalid under applicable law, such provision shall
be ineffective to the extent of such unenforceability,
prohibition, or invalidity, but no other provision of this
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Agreement shall be invalidate thereby, and the remainder of this
Agreement shall remain enforceable and in effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first above written.
XXXXXXX.XXX INC. EMPLOYEE
By: /s/ Xxxxx Xxxxx /s/ Xxxxx Xxxxxx
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Xxxxx X. Xxxxxx
