Exhibit 10.7
EXECUTIVE EMPLOYMENT AGREEMENT
This employment agreement between The Pathways Group, Inc. (hereinafter
the "Company") and Xxxxx X. Xxxx XX, its President, Chief Executive Officer and
Chairman of the Board of Directors of the Corporation (hereinafter "Xxxx"),
effective as of November 1, 1999, is made for good and sufficient consideration,
as reflected in the mutual promises, covenants, obligations, undertakings and
conditions set forth below:
1. POSITION AND DUTIES:
(a) RESPONSIBILITIES AND AUTHORITY:
The Company shall employ Executive as President, Chief Executive
Officer and Chairman of the Board. Xxxx shall have the full responsibilities,
duties and authorities of the Company's President, Chief Executive Officer and
Chairman of the Board.
(b) RIGHT TO APPOINT EXECUTIVES:
In the event of a Change of Control of the Company, and as a condition
of agreeing to remain as President and Chief Executive Officer, Xxxx shall have
the exclusive right to appoint executive officers of the Company. "Change of
Control" means any of the events described in subparagraphs (i) through (iv)
below:
(i) The acquisition, after the effective date of this Agreement, by any
Person of Beneficial Ownership of 20 % or more of the Stock or the
Voting Power of the Company, but excluding for this purpose any
acquisition by the Company (or an Affiliate) or by an employee
benefit plan sponsored by the Company (or an Affiliate). When two or
more persons act in concert for the purpose of acquiring Stock or
Voting Power of the Company, such Persons shall be deemed to be a
single Person;
(ii) Individuals who are Incumbent Directors cease to constitute at least
a majority of the Board of Directors of the Company;
(iii) Approval by the shareholders of the Company of a reorganization,
merger or consolidation, if after such transaction, the Persons who
had Beneficial Ownership of the Stock and Voting Power of the Company
before such transaction will not have Beneficial Ownership of at
least 30% of the Stock and Voting Power of the corporation resulting
from such transaction; or
(iv) The sale or other disposition by the Company of 50% or more of the
Stock of the Company, or any other transaction pursuant to which the
Company ceases to control the Company.
2. TERM OF EMPLOYMENT:
Subject to earlier termination as provided in this agreement, Xxxx
shall be employed for a term of three (3) years, which shall be automatically
extended for additional one (1) year periods
(such initial term and all extended terms being required to collectively herein
as the "employment term") unless either party gives notice in writing to the
other not less than ninety (90) days before the end of the initial term or
extended term that the employment contract shall not be extended.
3. COMPENSATION:
(a) BASE SALARY: Company shall pay a basic salary to Xxxx at the rate
of Three Hundred Twenty Five Thousand Dollars ($325,000.00) per year, payable
semi-monthly, in twenty-four (24) equal installments, subject to all
withholdings and deductions required for federal, state and local taxes and
charges and any other withholdings or deductions authorized by Xxxx. In addition
to the base salary established above, Xxxx will receive a bonus, payable in
increments as directed by Xxxx, in the amount of Three Hundred Thousand Dollars
($300,000.00).
(b) AUTOMOBILE ALLOWANCE: The Company shall pay to Xxxx an annual
Automobile Allowance in the annual amount of Seven Thousand Eight Hundred
Dollars ($7,800.00), payable semi-monthly in twenty-four equal installments,
subject to all withholdings and deductions required for federal, state and local
taxes and charges and any other withholdings authorized by Xxxx.
(c) STOCK OPTION: In addition to the options awarded under the previous
contract, which options expire on November 1, 2001, The Company shall issue to
Xxxx options to purchase Two Hundred Thousand (200,000) shares of the Company's
common stock, which options shall vest equally over three (3) years, at an
exercise price of $3.00 per share, pursuant to a stockholders plan intended to
be qualified under Section 422 of the Internal Revenue Code of 1986 and the
regulations promulgated in relation thereto. The plan will expire November 1,
2004. Unexercised options awarded to Xxxx hereunder shall be subject to
forfeiture as provided in Paragraphs 6 and 7 of this agreement.
4. EMPLOYMENT BENEFITS:
Throughout the employment term, Xxxx shall be entitled to receive the
employment benefits generally offered to all other executive employees,
including, but not limited to, medical, dental, optical, prescription drugs and
life insurance for Xxxx and his family, at Company expense, and:
(a) EXECUTIVE COMPENSATION PACKAGE: Enrollment in Executive
Compensation Package.
(b) VACATION: The Company waives its policy on vacations, to allow
for four weeks per year.
(c) LIFE INSURANCE: The Company shall provide and pay for life
insurance on the life of Xxxx in the amount of three (3) times
his annual salary provided for in this agreement. The
beneficiary shall be Xxxx'x estate, unless otherwise directed
by Xxxx in writing at any time prior to his death.
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(d) STOCK ISSUANCE: The Company and Xxxx may agree from time to
time, with the approval of the Board of Directors, to issue to
Xxxx Common Stock of the Company in consideration of such
services or contributions of property as may be deemed
appropriate, and at a value determined by the Board of
Directors in good faith and in compliance with applicable law.
Any such issuance of stock may, at the request of Xxxx, and
subject to the approval of the Company which may not be
unreasonably withheld, be issued by the Company to such party
or entity, including without limitation, an irrevocable trust
or similar entity, as Xxxx may at the time of issuance direct.
(e) DISABILITY COMPENSATION:
(1) If Xxxx becomes disabled at any time, and for any
number of times, due to any cause so that he is
physically unable to perform his ordinary duties and
responsibilities under this agreement, then Xxxx
shall be entitled to receive, in lieu of salary, an
amount equal to his salary, payable at the same time
and in the same manner as Xxxx'x salary is paid,
provided however, that this benefit shall be limited
to not more than a total of twelve (12) months during
the term of the agreement.
(2) Xxxx'x entitlement to disability income pursuant to
this subparagraph shall begin and end as determined
by a certificate issued by a qualified M.D. or D.O.
licensed by the State of California. The certificate
shall state in substance that, " Xxxx was determined
to be disabled and unable to perform the ordinary and
usual duties as President, Chief Executive Officer
and Chairman of the Board of Pathways, beginning
[DATE] and Xxxx'x disability continues as of this
[DATE] . Such a certificate shall be submitted every
three (3) months beginning with the date of
disability and continuing thereafter until Xxxx'x
disability ends and he is able to return to work full
time or his disability compensation benefit has been
fully used, whichever occurs first.
5. EXPENSE REIMBURSEMENT:
During the employment term, the Company shall reimburse Xxxx for
reasonable out-of-pocket expenses incurred in connection with the Company's
business, including travel expenses, food, and lodging when away from home,
subject to such policies as the Company may from time to time reasonably
establish for its employees.
6. LIMITATION ON OUTSIDE ACTIVITIES:
During his employment, Xxxx shall devote his full occupational time,
energies, abilities, knowledge and experience to the performance of his duties
under this agreement and shall not render to others services of any kind for
compensation or engage in any other business activity without the Company's
prior written consent. Xxxx shall not, directly or indirectly, whether as a
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partner, employee, creditor, shareholder or otherwise, promote, participate or
engage in any business activity competitive with the Company or its
subsidiaries, affiliates, co-venturers, customers or assigns. Xxxx shall not
take any action to establish, form, assist or become employed by any such
competing business on termination of Xxxx'x employment. Xxxx'x breach of any of
the provisions of this paragraph shall give the Company the right, in addition
to all other remedies the Company may have, to terminate the employment and to
cancel and/or terminate any and all compensation and benefits to which Xxxx
might otherwise be entitled under this agreement. Pathways hereby expressly
gives permission for Xxxx to remain as President, Chief Executive and Chairman
of the Board of the following companies:
Pathways International. Ltd.
Sprinticket, Inc.
Pathways Systems, Inc.
The Pathways Group, Inc. (Hawaii)
Nothing in this provision shall prevent Xxxx from doing software design
and/or software programming for his own use. Such software design or software
programming by Xxxx for his own use shall not be made available for a commercial
use or a business use by license or sale by other corporations unless it has
first been offered at a fair and reasonable price to this Employer unless and
until this Agreement is terminated as provided in Paragraph 7 of the Agreement.
7. TERMINATION OF EMPLOYMENT:
The employment created by this agreement may be terminated during the
employment term in accordance with the following provisions of this paragraph:
(a) TERMINATION WITHOUT CAUSE BY THE COMPANY: The employment
maybe terminated without cause in the sole and absolute discretion of
the Company upon written notice by the Company to Xxxx; provided,
however, that if this agreement is terminated pursuant to this
subparagraph, Xxxx shall receive from Company all salary and benefits
provided under this agreement for six (6) months after the effective
date of the termination. Such salary and benefits shall constitute the
complete and exclusive obligation of the Company for termination of the
employment and for any and all claims of Xxxx arising out of or in
connection with Xxxx'x employment or the termination thereof.
(b) TERMINATION WITHOUT CAUSE BY XXXX: The employment may be
terminated without cause in the sole and absolute discretion of XXXX
upon six (6) months' written notice by XXXX to the Company, provided,
however, that if this agreement is terminated pursuant to this
subparagraph, XXXX shall forfeit any unexercised, vested stock options
under this agreement.
(c) TERMINATION FOR CAUSE BY THE COMPANY: The Company may
terminate the employment at any time upon written notice to XXXX if the
Company ceases a substantial portion of its business operation, in the
event of the sale or change of ownership of the
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Company or a substantial portion of its assets, or it in the sole and
absolute determination of the Company:
(1) Its business circumstances change so materially that
it is impracticable for the Company to continue using
XXXX'X employment services; or Xxxx'x continued
employment would not confer to the Company the
substantial benefit intended to be gained by the
employment; or
(2) XXXX breaches his duty of loyalty to the Company or
any material term, promise, covenant, condition,
obligation, undertaking or commitment set out in this
agreement or the Company's operational policies or
procedures, personnel policies or procedures or work
rules; commits any material act of dishonesty or
illegality; commits any act or omission creating an
unreasonable risk of civil or criminal legal action
against the Company; discloses any trade secret or
confidential or proprietary information of the
Company, its subsidiaries, affiliates, co-venturers,
customers or assigns; is guilty of carelessness,
misconduct, neglect of duty or unsatisfactory work
performance; or acts in any way that significantly
impedes or creates a risk of significant detriment to
the Company's operations, profits, reputation or
other business interests.
Such termination shall be effective immediately upon written notice of
termination.
(d) TERMINATION FOR CAUSE BY XXXX: XXXX may terminate the
employment at any time upon written notice to Company, if, in the sole
and absolute determination of Xxxx, the Company breaches any material
term, promise, covenant, condition, obligation, undertaking or
commitment set out in this agreement; commits any material act of
dishonesty or illegality; commits any act or omission creating an
unreasonable risk of civil or criminal legal action against Xxxx;
improperly discloses any personal or private information of Xxxx
protected by any Constitutional or statutory right to privacy; acts in
a manner constituting constructive discharge of Xxxx; or the Company's
actions or business circumstances or Xxxx'x personal or family
circumstances make it impossible or impracticable for Xxxx to continue
performing employment services to the Company. Such termination shall
be effective immediately upon written notice of termination.
(e) TERMINATION IN THE EVENT OF DISABILITY: If Xxxx is unable,
due to mental or physical illness or injury, to substantially perform
his duties under this agreement in a satisfactory manner for a period
of twelve (12) months, the employment shall terminate at the end of
such period.
(f) RELEASE OF CORPORATE OBLIGATIONS GUARANTEED BY XXXX: If
Xxxx'x employment with the Company is terminated for any reason,
including acquisition of the Company by outside interests, the Company
shall provide complete and unconditional releases by any and all
creditors of the Company, and its affiliates and subsidiaries, from any
and all personal guarantees executed by Xxxx and/or his wife, Xxxx X.
Xxxx. Said releases shall
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include, but are not limited to, releases of any all property, real or
personal, tangible or intangible, from any form of deed of trust,
security agreement, pledge or other encumbrance of any kind given to
secure payment of or performance of any obligations of the Company, its
affiliates and subsidiaries.
8. CONFIDENTIALITY, PROPERTY RIGHTS AND NO SOLICITATION:
(a) CONFIDENTIAL INFORMATION: In the course of his employment
by the Company, Xxxx will have access to trade secrets and confidential
and proprietary information of the Company, its subsidiaries,
affiliates, co-venturers and customers, including, but not limited to,
personnel, products (developed and under development), proposals,
services, operations, procedures, customers, customer lists, customer
needs, customer contacts, customer relations, customer data and
information, marketing areas, marketing proposals, marketing methods
and plans, business development plans and techniques, business methods
and plans, sales methods and plans, sales figures, sales projections,
price lists, pricing formulae and information, inventions, discoveries,
formulae, patents, trademarks, copyrights, films, scripts, ideas,
creations, concepts, theories, technologies, technology applications,
data, product research, prototypes, models, designs, system design
documents, specifications and requirements, schematics, software,
codes, program components and documentation, processes, techniques,
tools, devices, know-how, estimates, accounting records, and accounting
procedures (collectively referred to as "Confidential Information").
Except as required in the course of his employment by Company, Xxxx
will not, without Company's prior consent, either during his employment
by Company or after termination of the employment, directly or
indirectly disclose to any third person any Confidential Information.
Xxxx acknowledges and agrees that all such Confidential Information,
regardless of who discovered, created or developed it, is the property
of the Company, solely and exclusively, and is valuable proprietary
information of the Company. Upon termination of the employment, whether
with or without cause, Xxxx shall immediately return and deliver to the
Company.
(b) NO SOLICITATION OF EMPLOYEES: Xxxx agrees that, during his
employment and for two (2) years thereafter, he will not solicit any of
the Company's employees for a competing business and will not induce or
attempt to induce any of the Company's employees to leave their
employment with the Company.
(c) INTELLECTUAL PROPERTY RIGHTS: All rights, title and
interest of every kind and nature whatsoever in and to any intellectual
property, including, but not limited to, any inventions, patents,
trademarks, copyrights, films, scripts, ideas, creations, concepts,
theories, technologies, technology applications, products (developed
and under development), product research, prototypes and models,
whether or not invented, created, written, developed, furnished,
produced or disclosed by Xxxx in the course of rendering his services
to the Company under this Agreement shall, as between the parties
hereto, be and remain the sole and exclusive property of the Company
for any and all purposes and uses whatsoever, and Xxxx shall have no
right, title or interest of any kind or nature therein or thereto, or
in and to any results and proceeds therefrom.
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(d) RETURN OF ALL OF THE COMPANY'S PROPERTY: Whenever
requested by the Company during the employment, and without request
upon termination of the employment, whether termination is with or
without cause, Xxxx shall immediately return and deliver to the Company
all of the Company's property, including all items used by Xxxx in
rendering services hereunder and all originals and copies of the
Company's documents and data, including, but not limited to, all
Confidential Information.
(e) PROTECTION OF OTHER COMPANIES' TRADE SECRETS AND
CONFIDENTIAL INFORMATION: Xxxx understands that state and federal laws
provide severe penalties for misappropriation and unauthorized
disclosure of trade secrets and confidential, proprietary business
information belonging to Employee's previous employers or to any other
company. Xxxx agrees and warrants that, in connection with his/her
employment by Pathways, he/she will not misappropriate, use or disclose
any trade secret or confidential, proprietary information belonging to
any previous employer or any other company. Xxxx agrees and warrants
that, if he/she has any question or uncertainty about whether
particular information might be a trade secret or confidential,
propriety business information of a previous employer or another
company, Xxxx will immediately contact Pathways' General Counsel.
9. NON-COMPETITION AFTER TERMINATION OF EMPLOYMENT:
Xxxx and the Company recognize and acknowledge that in his employment,
he will become familiar with all of the Company's sales methods and plans,
marketing, marketing and development, technologies, applications of
technologies, products (developed and under development), product research,
business methods and plans, data, processes, techniques, inventions,
discoveries, formulae, patterns, devices, know-how, services, products, and
other customer information (collectively referred to as "Confidential
Information"), in all of the geographic areas throughout the world in which the
Company already has made marketing efforts and/or sales of products and
services, and he will become knowledgeable about present and future marketing
proposals and plans for those products and services. Xxxx agrees, as part of the
consideration for this Employment Agreement, that Xxxx will not engage, directly
or indirectly, nor solicit employees of the Company to engage in the
development, distribution, manufacture or sale of any products or services which
compete with the products or services provided by the Company or its related
companies, for a period of two (2) years. The parties agree that the phrase
"engage, directly or indirectly, nor solicit employees of the Company to engage
in the development distribution, manufacture or sale of any products or services
which compete with the products or services provided by the Company or its
related companies" shall include any situation or circumstance in which Xxxx
shall be owner, partner, officer, director or shareholder of a corporation, or
an agent, employee or consultant of any business entity engaged, or about to
become engaged, in competition with the Company.
10. INJUNCTIVE RELIEF:
Xxxx acknowledges and agrees that any breach of the terms of Paragraphs
8 or 9 above would irreparably injure the Company and that it would be
impossible to measure in money the
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resulting injury to the Company, and, in any action to enforce this the terms of
Paragraphs 8 or 9 or to enjoin any breach of those paragraphs, Xxxx waives any
claim or defense that the Company has an adequate remedy at law or that the
Company would not be irreparably injured by breach of the terms of Paragraphs 8
or 9, and Xxxx acknowledges and agrees that the Company will be entitled to
temporary, preliminary and permanent injunctive relief and restraining orders,
without any delay whatsoever, in connection with any breach, or threatened or
impending breach, of any of the terms of those paragraphs. In any action to
enforce the Company's rights under Paragraphs 8 through 10 of this agreement,
the party prevailing in such action shall be entitled to recover as damages
reasonable attorneys' fees and all other reasonable expenses incurred in the
action and in any efforts prior to or during the action to secure compliance
with the terms of this agreement.
11. ARBITRATION:
Except for claims, disputes and causes of action arising out of or in
connection with Paragraphs 8 through 10 above, the Company and Xxxx agree to
arbitrate any and all disputes and claims, including discrimination claims,
arising out of or in connection with the employment or the termination thereof,
if the amount in controversy is more than $5,000.00. This arbitration agreement
applies to all disputes between the parties and any and all claims by Xxxx
against the Company and any officer, director, employee, agent or representative
of the Company, against any corporate parent or subsidiary of the Company,
and/or against any person or company affiliated with the employer (e.g., a
person or company involved in a joint venture, partnership or other similar
business relationship with the employer or one having an owner, partner or
parent or subsidiary corporation in common with the employer). The arbitration
award shall be final and binding on all parties to the arbitration proceeding.
The arbitration shall be conducted in Santa Rosa, California, pursuant to the
California Arbitration Act and the terms of this agreement. Arbitration may not
be initiated after expiration of any statute of limitation for the commencement
of any civil or administration proceeding on the claim or dispute. Arbitration
shall be initiated by written notice by one party to the other, specifying the
nature of each claim or dispute at issue and the amount and manner of
calculation of each item of damages. The parties shall each appoint one
arbitrator, and the parties' arbitrators shall together select a third neutral
arbitrator. lf the three arbitrators determine that the claims or disputes
specified in the notice collectively involve an amount in controversy more than
$5,000.00, they shall hear and determine the dispute(s) or claim(s) according to
applicable laws, this arbitration agreement and the Company's work rules and
policies in effect at the time of the events which gave rise to the arbitration.
The three arbitrators shall issue a written decision determining each dispute,
claim and item of damages submitted to the arbitrators. Determination of each
dispute, claim and item of damages shall require the concurrence of at least two
arbitrators, but it is not necessary that the same two arbitrators concur on
every dispute, claim or item of damages. THE ARBITRATION DECISION SHALL ATTEST
THAT THE REQUISITE CONCURRENCE EXISTED AS TO EACH DISPUTE, CLAIM AND ITEM OF
DAMAGES. THE COMPANY AND XXXX UNDERSTAND AND EXPRESSLY AGREE THAT, BY ENTERING
INTO THIS ARBITRATION AGREEMENT, THEY ARE GIVING UP THE RIGHT TO BRING IN ANY
COURT ANY CLAIM, CAUSE OF ACTION OR DISPUTE ARISING OUT OF OR IN CONNECTION WITH
THE EMPLOYMENT OR THE TERMINATION THEREOF, INCLUDING THE RIGHT TO A JURY TRIAL.
The arbitration award may be confirmed by any court having jurisdiction of the
matter, and judgment may be entered on the confirmed award. Charges and expenses
of the neutral arbitrator shall be borne by the parties
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equally, and the parties shall deposit their respective shares of the neutral
arbitrator's estimated charges prior to the arbitration hearing. The parties
shall each bear their own costs, expenses and attorneys' fees in connection with
the arbitration, unless a statute or contract applicable to the claim or dispute
expressly provides for recovery of attorneys' fees by the prevailing party.
12. INCORPORATION AND INTEGRATION:
XXXX shall comply with and enforce all of the Company's operational
policies and procedures, personnel policies and procedures and work rules, as
they may be promulgated and announced from time to time. Except for such
operational policies and procedures, personnel policies and procedures and work
rules, this written agreement contains the entire agreement between the parties
and supersedes all prior oral, written and/or implied agreements, promises,
covenants, obligations, undertakings, commitments, representations and
understandings by or between the parties, including all prior employment
agreements, whether or not fully performed by XXXX before the date of this
agreement. The Company and XXXX acknowledge and agree that there are no terms,
conditions, covenants, obligations or promises, express or implied, applicable
to the employment except those set out in this agreement. There shall be no
amendment, modification, change or enlargement of this agreement except by a
writing signed by the party to be charged with performance of the amendment,
modification, change or enlargement. In the event of any conflict or difference
between this agreement and Company's current or future operational policies and
procedures, personnel policies and procedures and work rules, the provisions of
this agreement shall control.
13. SURVIVAL, GOVERNING LAW, VENUE AND SEVERABILITY:
The representations, warranties, covenants, promises and restrictions
set out in this agreement shall operate continuously and shall survive
termination of the employment created by the agreement. The agreement shall
inure to the benefit of and be binding upon Xxxx, his heirs, estate, executors,
administrators and all others claiming through or on behalf of Xxxx, and upon
Company, its subsidiaries, affiliates, successors and assigns. The agreement
shall be construed and governed in accordance with the laws of the State of
California. All actions, arbitrations and proceedings arising from or in
connection with the agreement or the employment it creates shall be commenced
and maintained in Sonoma County, State of California. If any term, covenant,
condition, clause or provision of this agreement is held to be invalid or
unenforceable, then such clause or provision shall be severed herefrom, and such
invalidity or unenforceability shall not affect any other provision of this
agreement, the balance of which shall remain in full force and effect; provided,
however, that if any such term, covenant, condition, clause or provision may be
modified so as to be valid or enforceable as a matter of law, then such term,
covenant, condition, clause or provision shall be deemed modified so as to be
enforceable to the maximum extent permitted by law.
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14. NOTICES:
Any notices to be given hereunder by any party to another party shall
be in writing and delivered in person or mailed registered or certified mail,
postage prepaid with return receipt requested.
The Pathways Group, Inc.
By
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Xxxxx X. Xxxx XX Xxxxx X. Xxxx XX
President & CEO
By
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Xxxxx Xxxxxx, Director acting
authority of the Board of Directors
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