EMPLOYMENT AGREEMENT
This Employment Agreement, effective as of July 1, 2002, by and between Xxxxxx Corporation, (hereinafter “Xxxxxx”) and Xxxxx X. Xxxxxxxxx (hereinafter “Xxxxxxxxx”).
WITNESSETH:
WHEREAS, Xxxxxx is a well established operator of games and entertainment web sites:
WHEREAS, Xxxxxxxxx has significant management and business development experience; and
WHEREAS, Xxxxxx desires to employ Xxxxxxxxx, and Xxxxxxxxx desires to accept such employment, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties agree as follows:
1.
Employment and Term. Xxxxxx hereby employs Xxxxxxxxx as Executive Vice President and COO, and Xxxxxxxxx hereby accepts said employment by Xxxxxx, for a period of three years from the date of this Contract. Xxxxxxxxx agrees to devote her time, attention, skill, and best efforts to the performance of her duties as Executive Vice President and COO of Xxxxxx.
2.
Compensation.
a.
For all services rendered and to be rendered by Xxxxxxxxx in her capacity hereunder, Xxxxxx agrees to pay Xxxxxxxxx an annual salary of $150,000 per year.
x.
Xxxxxxxxx shall be provided the use of an automobile leased by
Xxxxxx. Xxxxxx shall reimburse Xxxxxxxxx for any gas mileage resulting from Xxxxxxxxx’x performance of work for Xxxxxx at the applicable rate then allowed by the Internal Revenue Service. Xxxxxx will also be responsible for any maintenance performed on the automobile. In the event this Agreement is terminated, for any reason, or by any part, Xxxxxxxxx shall immediately return possession of the automobile to Xxxxxx. In such event, Xxxxxxxxx will be responsible for any damage to the automobile to Xxxxxx. In such event, Xxxxxxxxx will be responsible for any damage to the automobile, reasonable wear and tear excepted.
x.
Xxxxxxxxx shall be eligible to participate in all medical and dental
insurance benefit plans maintained by Xxxxxx.
x.
Xxxxxxxxx shall be eligible to participate in Xxxxxx’x Long Term
Disability Plan.
x.
Xxxxxx shall provide Xxxxxxxxx with Long Term Retirement Care
Insurance.
x.
Xxxxxxxxx shall be eligible to receive a bonus, up to a maximum of
50% of the base salary provided for in paragraph 2(a) above, upon meeting goals and objectives established by Xxxxxx’x Board of Directors.
3.
Duties.
As part of her employment, Xxxxxxxxx agrees to perform any and all duties reasonably requested and delegated to her by Xxxxxx, the President of Xxxxxx or the Board of Directors. Xxxxxxxxx shall perform generally all of the duties incident to the office of Executive Vice President and COO as required or authorized by law.
4.
Termination.
a.
This Agreement and Xxxxxxxxx’x employment hereunder may be
terminated by the Xxxxxx at any time with Cause (as hereinafter defined) on 30 days prior written notice.
b.
This Agreement and Xxxxxxxxx’x employment hereunder may be
terminated by Xxxxxxxxx on 30 days prior written notice upon the occurrence of any one of the following events: (1) the failure of Xxxxxx to elect or reelect or to appoint or reappoint Xxxxxxxxx to the office of Executive Vice President and COO; (2) a material change by Xxxxxx in Xxxxxxxxx’x functions, duties, or responsibilities which change would cause Xxxxxxxxx’x position with Xxxxxx to become of less dignity, responsibility or scope from the position and responsibilities described in Section 3 hereof; (3) the liquidation or dissolution, or consolidation, merger or other business combination (including assumption of control by a shareholder or consortium of shareholders) of Xxxxxx, or transfer of all or substantially all of its assets, unless any such consolidation, merger or other business combination does not adversely affect Xxxxxxxxx’x position or the dignity or responsibilities of Xxxxxxxxx, in Xxxxxxxxx’x judgment; and (4) any material breach of this Agreement by Xxxxxx.
c.
Effect of Termination. Upon termination of this Agreement
neither party shall have any further obligation to the other party, except as provided in Section 4(d) below and under the provisions of any outstanding stock options held by Xxxxxxxxx at the time of termination, and except that the provisions of Section 5, if applicable, shall survive termination of the Agreement.
d.
Payments to Xxxxxxxxx on Termination.
(i)
In the event that this Agreement is terminated by Xxxxxx without Cause or Xxxxxxxxx terminates this Agreement pursuant to Section 4(b), Xxxxxx shall pay in a lump sum on the date of termination severance compensation to Xxxxxxxxx in the amount derived by multiplying the factor 2.99 by the sum of Xxxxxxxxx’x salary and bonus paid in the 12 month period ending on the date of such termination.
(ii)
In the event this Agreement expires and Xxxxxxxxx
is not rehired in the same position under the terms and conditions of a new executive employment agreement acceptable to Xxxxxxxxx and Xxxxxx superseding this Agreement, Xxxxxx shall pay in a lump sum on the date of termination severance compensation to Xxxxxxxxx in an amount equal to the sum of Xxxxxxxxx’x salary and bonus paid in the 12 month period ending on the date of such termination.
(iii)
In the event Xxxxxxxxx dies or becomes disabled (as
hreinafter defined) during the term hereof, Xxxxxx shall pay severance compensation to Xxxxxxxxx, or her estate, as the case may be, in the amount derived by multiplying the factor 2.99 by the sum of Xxxxxxxxx’x salary and bonus paid in the year prior to the year in which the death or disability occurs, reduced to a lesser amount determined by multiplying said amount by a fraction, the numerator of which is the number of whole or partial months remaining from the date of death or disability, as the case may be, to June 30, 2005, and the denominator is 36; provided, however, that such severance compensation shall in no event be less that Xxxxxxxxx’x salary and bonus paid in the year prior to the year in which Xxxxxxxxx dies or becomes disabled. Such severance compensation shall be paid in a lump sum as soon as practicable following the date of death or disability.
(iv)
In addition to the severance payment provided in
Subparagraphs (i), (ii), or (iii) above, Xxxxxxxxx’x participation in Xxxxxx-sponsored medical and dental insurance benefit plans shall be continued at Xxxxxx expense for a maximum period of eighteen months so long as Xxxxxxxxx is alive and is not elsewhere earlier employed.
e.
Definitions. For the purposes of this Agreement:
(i)
Cause shall mean acts of moral turpitude, and the
willful repeated or habitual neglect of Xxxxxxxxx’x obligations under this Agreement, the misuse of corporate funds, the failure to manage the business of Xxxxxx in accordance with normal business practices, or the material breach of this Agreement.
(ii)
Disabled shall mean the physical or mental inability
of Xxxxxxxxx to perform her duties hereunder for a period of three consecutive months as determined by an independent physician chosen by Xxxxxx and approved by Xxxxxxxxx.
5.
Non-Compete Clause. For a period of twelve (12) months from the termination of Xxxxxxxxx’x employment (whether such termination be with or without cause or by voluntary quit), Xxxxxxxxx shall not, either for herself or on behalf of any person, firm or corporation, directly or indirectly, own, manage, engage in, operate joint control, be employed by, participate in the ownership, management, operation or control of, or be connected in any manner whatsoever with any business which is competitive with the business of Xxxxxx within any of the territory or with respect to any of the accounts with which Xxxxxx has done business during the twelve (12) months prior to Xxxxxxxxx’x termination of her employment with Xxxxxx. This covenant on the part of Xxxxxxxxx shall be construed as an agreement independent of any other provision in this Employment Agreement, and the existence of any claim or cause of action of Xxxxxxxxx against Xxxxxx, whether predicted on this Employment Agreement or otherwise, shall not constitute a defense to the enforcement by Xxxxxx of this covenant.
6.
Equitable Relief. It is agreed that money damages do not provide adequate relief for Xxxxxxxxx’x violations hereunder and that, therefore, Xxxxxx shall have the right, in addition to other cumulative remedies that may be lawfully available, to an immediate injunction or restraining order, within the discretion of the court, to halt violations hereunder.
7.
Vacation. Xxxxxxxxx shall be entitled to four weeks of paid vacation per calendar year.
8.
Applicable Law. This Agreement, having been executed in the State of Ohio, shall be governed in all respects by the laws of the State of Ohio, and shall be binding upon each party’s successors, assigns, heirs and legal representatives and shall inure to the benefit of each party, its successors, assigns, heirs and legal representatives.
9.
Miscellaneous.
a.
This Employment Agreement supersedes and completely replaces
any and all previous agreements or understandings between the parties.
b.
No amendment or modification of this Employment Agreement
shall be deemed effective, unless and until executed in writing by the parties hereto with the same formality attending the execution of this Employment Agreement.
c.
The invalidity or unenforceability of any particular provision of
this Employment Agreement shall not affect the other provisions hereof, and this Employment Agreement shall be construed in all respects, as if such invalid or unenforceable provision was omitted.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date above mentions.
WITNESSES:
XXXXXX CORPORATION:
/s/ Xxxxx Xxxxxx
By: /s/ Xxxxx X. Ach, II
Xxxxx X. Ach, II, President
/s/ Xxxxxx Xxxx
/s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
