Exhibit 10.4
0xxxxxxxx.xxx, Inc.
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), dated as of August 1, 2000, is
entered into between 0xxxxxxxx.xxx, Inc. (the "Company" or "4networld"), located
at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, and XXXXXX XXXX
residing at 00 Xxxxxx Xxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000 ("Employee").
W I T N E S S E T H :
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WHEREAS, the Company desires to employ the Employee and to be assured of
his services on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on such terms
and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, the Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the Employee as Vice President of
the Company, and the Employee accepts such employment, upon the terms and
subject to the conditions set forth in this Agreement.
2. Term. The term of this Agreement shall commence on the date hereof and
terminate on April 23, 2002 (the "Term"), subject to earlier termination
pursuant to the provisions of Section 10 hereof.
3. Duties. During the term of this Agreement, the Employee shall serve as
the Vice President of the Company and shall perform all duties commensurate with
his position (including, but not limited to, those heretofore performed by the
Employee) and as may be assigned to him by the Board of Directors of the Company
or the Chief Executive Officer of the Company and subject to the control of the
Board of Directors and the Chief Executive Officer of the Company. The Employee
shall devote his full business time and energies to the business and affairs of
the Company and shall use his best efforts, skills and abilities to promote the
interests of the Company and to diligently and competently perform the duties of
his position.
4. Compensation, Benefits, Options and Incentive Bonus.
4.1 Base Salary. During the term of this Agreement, as compensation for the
proper and satisfactory performance of all duties to be performed by Employee
hereunder, the Company shall pay to Employee a base salary of $60,000.00 per
annum for the first year of this Employment Agreement, payable in equal
bi-weekly installments of $2,307.70 each, payable on the first and fifteenth day
of each month, less required deductions for state and federal withholding tax,
Social Security, and
other employee taxes. For the second year of this Employment Agreement Xxxxxx
Xxxx shall receive a raise in his annual salary, exclusive of bonus and/or
participation in 4networld's stock incentive plan;
4.2 Bonus Compensation. Employee shall be entitled to earn and receive
bonus compensation provided that certain performance goals are achieved by the
Company. Bonuses shall be granted in accordance with a bonus plan to be adopted
by the Company, the terms and conditions of which shall be determined by the
Board of Directors of 4networld.
4.3 Participation in Stock Incentive Plan. Employee shall be entitled to
participate in 4networld's 2000 Stock Incentive Plan.
4.4 Vacation and Sick Leave. Employee shall be entitled to an aggregate of
two (2) weeks of paid vacation per year, and five (5) days of paid sick leave
per year, during the term hereof, prorated for any portion of a year to the date
of termination. The timing and duration of any vacation shall be subject to the
prior written approval of the Company, in its discretion.
4.5 Employee Benefit Plans. At all times during the term of this Agreement
the Employee shall be provided the opportunity to participate in all health,
pension and welfare plans, programs and benefits (the "Plans") offered generally
to all employees of 4networld.
4.6 No Accumulation. The fringe benefits described in this paragraph accrue
on an annual basis, and Employee shall not be entitled to accumulate unused
vacation, sick leave, or other fringe benefits from year to year, without the
prior written consent of the Company. Further, employee shall not be entitled to
receive payments in lieu of any compensation or payment for or in lieu of said
fringe benefits prorated to the date of termination of this Agreement.
5. Reimbursement of Business Expenses. During the term of this Agreement,
upon submission of proper invoices, receipts or other supporting documentation
satisfactory to the Company and in specific accordance with such guidelines as
may be established from time to time by the Company's Board of Directors, the
Employee shall be reimbursed by the Company for all reasonable business expenses
actually and necessarily incurred by the Employee on behalf of the Company in
connection with the performance of services under this Agreement.
6. Representations.
6.1 Employability. The Employee represents and warrants that he is not
party to, or bound by, any agreement or commitment, or subject to any
restriction, including, but not limited to agreements related to previous
employment containing confidentiality or non-compete covenants, which in the
future may have a possibility of adversely affecting the business of the Company
or the performance by the Employee of his duties under this Agreement.
6.2 Awareness of Certain Employment Regulations. The Employee represents
and warrants that he is aware that there are laws and regulations that prohibit
discrimination in the workplace based upon, among other things, race, religion,
gender, and national origin such as Title VII of the Civil Rights Act of 1964,
42 U.S.C. Section 2000e et. seq., and similar laws adopted by the states (the
"Discrimination Laws"). Employee represents and warrants that he will abide by
the Discrimination Laws in the performance of his duties under this Agreement.
The Employee, further, represents and warrants that if he becomes aware of any
violation or potential violation of the Discrimination Laws that he will
immediately notify the Company, in writing, of any such violation or potential
violation of the Discrimination Laws.
7. Confidentiality. For purposes of this Section 7, all references to the
Company shall be deemed to include 4networld and all of the Company's and
4networld's affiliates and subsidiaries.
(a) Confidential Information. The Employee acknowledges that as a result of
his employment with the Company, the Employee has and will continue to have
knowledge of, and access to, proprietary and confidential information of the
Company, including, without limitation, designs, software, computer code,
copyrighted materials, intellectual property, inventions, trade secrets,
technical information, know-how, plans, specifications, methods of operations,
financial and marketing information and the identity of customers and suppliers
(collectively, the "Confidential Information"), and that such information, even
though it may be contributed, developed or acquired by the Employee, constitutes
valuable, special and unique assets of the Company developed at great expense
which are the exclusive property of the Company. Accordingly, the Employee shall
not, at any time, either during or subsequent to the term of this Agreement,
use, reveal, report, publish, transfer or otherwise disclose to any person,
corporation or other entity, any of the Confidential Information without the
prior written consent of the Company, except to responsible officers and
employees of the Company and other responsible persons who are in a contractual
or fiduciary relationship with the Company and who have a need for such
information for purposes in the best interests of the Company, and except for
such information which is or becomes of general public knowledge from authorized
sources other than the Employee. The Employee acknowledges that the Company
would not enter into this Agreement without the assurance that all such
Confidential Information will be used for the exclusive benefit of the Company.
(b) Return of Confidential Information. Upon the termination of Employee's
employment with the Company, the Employee shall promptly deliver to the Company
all CD ROMS, floppy disks, hard drives or other computer storage devices,
computers, drawings, manuals, letters, notes, notebooks, reports and copies
thereof and all other materials relating to the Company's business, including
without limitation any materials incorporating Confidential Information, which
are in the Employee's possession or control.
(c) Work for Hire. The Employee will promptly disclose to the Company all
designs, software, computer code, processes, inventions, improvements,
discoveries and other information related in any way to the business of the
Company (collectively "developments") conceived, developed or acquired by him
alone or with others during the term of this Employment Agreement, whether or
not conceived during regular working hours, through the use of Company time,
material or facilities or otherwise. All such developments shall be considered
work for hire and the Company shall be the sole and exclusive owner os such
developments. Upon request the Employee shall deliver to the Company all CD
ROMS, floppy disks, hard drives or other computer storage devices, computers,
drawings, models or other data and records relating to such developments. In the
event any such developments shall be deemed by the Company to be patentable or
copyrightable, the Employee shall, at
the expense of the Company, assist the Company in obtaining any patents or
copyrights thereon and execute all documents and do all other things necessary
or proper to obtain letters patent and copyrights and to vest the Company with
full title thereto.
8. Non-competition. For purposes of this Section 8, all references to the
Company shall be deemed to include 4networld and all of the Company's and
4networld's affiliates and subsidiaries. The Employee will not utilize his
special knowledge of the business of the Company and his relationships with
customers, suppliers of the Company and others to compete with the Company.
During the Term of this Agreement and for a period of two (2) years after the
expiration or termination of this Agreement (provided, however, that in the
event that this Agreement is terminated prior to the expiration of the Term, the
Employee shall be bound by the provisions of this Section 8 during the time
period that would have remained under the Term, plus a period of two (2) years
thereafter), the Employee shall not engage, directly or indirectly or have an
interest, directly or indirectly, in any geographic area where the Company at
that point in time does business or in which its products or services are
marketed, alone or in association with others, as principal, officer, agent,
employee, director, partner or stockholder (except with respect to his
employment by the Company), or through the investment of capital, lending of
money or property, rendering of services or otherwise, in any business
competitive with or substantially similar to that engaged in by the Company (it
being understood hereby, that the ownership by the Employee of two percent (2%)
or less of the stock of any company listed on a national securities exchange
shall not be deemed a violation of this Section 8). During the same period, the
Employee shall not, and shall not permit any of his employees, agents or others
under his control to, directly or indirectly, on behalf of himself or any other
person, (i) call upon, accept business from, or solicit the business of any
person who is, or who had been at any time during the preceding two (2) years, a
customer of the Company or any successor to the business of the Company, or
otherwise divert or attempt to divert any business from the Company or any such
successor, or (ii) directly or indirectly recruit or otherwise solicit or induce
any person who is an employee of, or otherwise engaged by, the Company or any
successor to the business of the Company to terminate his or her employment or
other relationship with the Company or such successor, or hire any person who
has left the employ of the Company or any such successor during the preceding
two (2) years. The Employee shall not at any time, directly or indirectly, use
or purport to authorize any person to use any name, xxxx, logo, trade dress or
other identifying words or images which are the same as or similar to those used
at any time by the Company in connection with any product or service, whether or
not such use would be in a business competitive with that of the Company.
9. Remedies. The restrictions set forth in Sections 7 and 8 are considered
by the parties to be fair and reasonable. The Employee acknowledges that the
restrictions contained in Section 7 and 8 will not prevent him from earning a
livelihood. The Employee further acknowledges that the Company would be
irreparably harmed and that monetary damages would not provide an adequate
remedy in the event of a breach of the provisions of Sections 7 or 8.
Accordingly, the Employee agrees that, in addition to any other remedies
available to the Company, the Company (i) shall be entitled to specific
performance, injunction, and other equitable relief to secure the enforcement of
such provisions, (ii) shall not be required to post bond in connection with
seeking any such equitable remedies, and (iii) shall be entitled to receive
reimbursement from the Employee for all attorneys' fees and expenses incurred by
the Company in enforcing such provisions. If any provisions of Sections 7, 8, or
9 relating to the time period, scope of activities or geographic area of
restrictions is declared by a court of competent jurisdiction to exceed the
maximum permissible time period, scope of activities or geographic area, the
maximum time period, scope of activities or geographic area, as the case may be,
shall be reduced to the maximum which such court deems enforceable. If any
provisions of Sections 7, 8, or 9 other than those described in the preceding
sentence are adjudicated to be invalid or unenforceable, the invalid or
unenforceable provisions shall be deemed amended (with respect only to the
jurisdiction in which adjudication is made) in such manner as to render them
enforceable and to effectuate as nearly as possible the original intentions and
agreement of the parties.
10. Termination. This Agreement may be terminated prior to the expiration
of the Term set forth in Section 2 upon the occurrence of any of the events set
forth in, and subject to the terms of, this Section 10.
(a) Death. This Agreement will terminate immediately and automatically upon
the death of the Employee.
(b) Disability. This Agreement may be terminated at the Company's option,
immediately upon notice to the Employee, if the Employee shall suffer a
permanent disability. For the purposes of this Agreement, the term "permanent
disability" shall mean the Employee's inability to perform his duties under this
Agreement for a period of ninety (90) consecutive days due to illness, accident
or any other physical or mental incapacity, as determined by the Board of
Directors of the Company. In the event that a dispute arises with respect to the
disability of the Employee, the parties shall each select a duly licensed
medical doctor to make such a determination. If the two doctors so selected
cannot agree on a determination, they will mutually select a third duly licensed
medical doctor and the decision of the majority of the three doctors will be
binding.
(c) Cause. This Agreement may be terminated at the Company's option,
immediately upon notice to the Employee, upon: (1) breach by the Employee of any
material provision of this Agreement; (2) breach by the Employee of any
fiduciary duty to the Company, or any of its affiliates or subsidiaries; (3)
gross negligence or willful misconduct of the Employee in connection with the
performance of his duties under this Agreement; (4) Employee's failure to
perform (i) any of his duties or responsibilities required pursuant to this
Agreement, or (ii) any reasonable directive of the Chief Executive Officer or
Board of Directors of the Company; (5) fraud, criminal conduct, dishonesty or
embezzlement by the Employee; or (6) Employee's misappropriation for personal
use of any assets (having in excess of nominal value) or business opportunities
of the Company; provided that in any such case with respect to any such breach
that is capable of being cured, the Employee is afforded a ten (10)-day cure
period for such monetary breaches and a thirty (30)-day cure period for such
non-monetary breaches.
(d) Termination by Employee. This Agreement may be terminated by Employee
prior to the expiration of the Term set forth in Section 2 upon three (3) months
written notice to the Company, which notice may not be given prior to nine (9)
months following the date hereof.
(e) Effect of Termination. Upon the termination of this Agreement pursuant
to this Section 10, the Employee shall be entitled to his Compensation to the
date of termination as set forth in this Section 10, and after such date shall
not be entitled to any Compensation, benefits or other rights granted herein to
the Employee.
11. Miscellaneous.
(a) Survival. The provisions of Sections 7, 8, and 9 shall survive the
termination of this Agreement.
(b) Entire Agreement. This Agreement sets forth the entire understanding of
the parties and merges and supersedes any prior or contemporaneous agreements
between the parties pertaining to the subject matter hereof.
(c) Modification. This Agreement may not be modified or terminated orally,
and no modification, termination or attempted waiver of any of the provisions
hereof shall be binding unless in writing and signed by the party against whom
the same is sought to be enforced.
(d) Waiver. Failure of a party to enforce one or more of the provisions of
this Agreement or to require at any time performance of any of the obligations
hereof shall not be construed to be a waiver of such provisions by such party
nor to in any way affect the validity of this Agreement or such party's right
thereafter to enforce any provision of this Agreement, nor to preclude such
party from taking any other action at any time which it would legally be
entitled to take.
(e) Successors and Assigns. Neither party shall have the right to assign
this Agreement, or any rights or obligations hereunder, without the consent of
the other party; provided, however, that upon the sale of all or substantially
all of the assets, business and goodwill of the Company to another company, or
upon the merger or consolidation of the Company with another company, this
Agreement shall inure to the benefit of, and be binding upon, both Employee and
the company purchasing such assets, business and goodwill, or surviving such
merger or consolidation, as the case may be, in the same manner and to the same
extent as though such other company were the Company; and provided, further,
that the Company shall have the right to assign this Agreement to any affiliate
or subsidiary of the Company or 4networld. Subject to the foregoing, this
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their legal representatives, heirs, successors and assigns.
(f) Communications. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been given
at the time personally delivered or when mailed in any United States post office
enclosed in a registered or certified postage prepaid envelope and addressed to
the addresses set forth below, or to such other address as any party may specify
by notice to the other party; provided, however, that any notice of change of
address shall be effective only upon receipt.
To the Company: 0xxxxxxxx.xxx, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx X. Xxxxxxx
To the Employee: Mr. Xxxxxx Xxxx
00 Xxxxxx Xxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
(g) Severability. If any provision of this Agreement is held to be invalid
or unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall not affect the validity and enforceability of the other
provisions of this Agreement and the provision held to be invalid or
unenforceable shall be enforced as nearly as possible according to its original
terms and intent to eliminate such invalidity or unenforceability.
(h) Jurisdiction; Venue. This Agreement shall be subject to the exclusive
jurisdiction of the courts of New York County, New York. Any breach of any
provisions of this Agreement shall be deemed to be a breach occurring in the
State of New York by virtue of a failure to perform an act required to be
performed in the State of New York, and the parties irrevocably and expressly
agree to submit to the jurisdiction of the courts of New York County, New York
for the purpose of resolving any disputes among them relating to this Agreement
or the transactions contemplated by this Agreement.
(i) Governing Law. This Agreement is made and executed and shall be
governed by the laws of the State of New York, without regard to the conflicts
of law principles thereof.
(j) No Third-Party Beneficiaries. Each of the provisions of this Agreement
is for the sole and exclusive benefit of the parties hereto and shall not be
deemed for the benefit of any other person or entity.
IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Agreement as of the date set forth above. 0xxxxxxxx.xxx, Inc.
0xxxxxxxx.xxx, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Title: President
EMPLOYEE
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
