Exhibit 10.44
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of April 17,
2000 by NET VALUE HOLDINGS, INC., a Delaware corporation (the "Employer"), and
XXXXXXX X. XXXXX, an individual resident in the State of New Jersey (the
"Executive").
RECITALS
WHEREAS, the Employer considers it essential and in the best interests
of its stockholders to xxxxxx the employment of key management personnel and
desires to engage the services of the Executive on the terms and conditions
hereinafter set forth; and
WHEREAS, Executive desires to render services to the Employer on the
terms and conditions provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have
the meanings specified or referred to in this Section 1:
"Agreement" means this Employment Agreement, as amended from
time to time.
"Benefits" is defined in Section 3.1(b).
"Board of Directors" means the board of directors of Employer.
"Change of Control" shall mean the occurrence of any one of
the following events: (a) any "person" as such term is used in Section 3(a)(9)
and 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") other than a subsidiary or other affiliate of Employer), becomes a
"beneficial owner," as such term is used in Rule 13d3 promulgated under the
Exchange Act, of 50% or more of any class of Employer's issued and outstanding
common or preferred stock, which interest in such stock comprises 50% or more of
all issued and outstanding voting shares; (b) the majority of Employer's board
of directors consists of individuals other than Incumbent Directors, which term
means the members of Employer's Board of Directors on the Effective Date of this
Agreement; provided, that any person becoming a director subsequent to such date
whose election or nomination for election was supported by at least one-half of
the directors who then comprised the Incumbent Directors shall be considered to
be an Incumbent Director; or (c) the occurrence of any event which would be
required to be reported by Employer pursuant to Items 1 or 2 of Form 8K under
the Exchange Act, which shall be determined without regard to whether Employer
is actually required file a Form 8K in relation to such transaction or event.
"Disability" is defined in Section 6.2.
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"Effective Date" means April 17, 2000.
"Employment Period" means the term of the Executive's
employment under this Agreement as defined in Section 2.2.
"for cause" is defined in Section 6.3.
"person" means any individual, corporation (including any
nonprofit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, or
governmental body.
"Salary" is defined in Section 3.1(a).
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
Effective on the Effective Date, Employer hereby
employs the Executive, and the Executive hereby accepts employment by the
Employer, upon the terms and conditions set forth in this Agreement.
2.2 TERM
Subject to the provisions of Section 6, the
Employment Period for the Executive's employment under this Agreement will be
three years, beginning on the Effective Date, and shall be automatically renewed
for consecutive one year renewal terms thereafter, unless, not less than sixty
(60) days prior to the end of the original term or any renewal term, either
party gives the other party written notice of termination of employment which
termination shall be effective as of the end of such original term or renewal
term.
2.3 DUTIES
The Executive will have such duties as are assigned
or delegated to the Executive by the Board of Directors, and will initially
serve as the Vice-President and General Counsel of Employer. The Executive
agrees to perform in good faith and to the best of his ability all services
which may be required of him hereunder and will devote his best efforts and such
business time, skill, attention and energies as are reasonably necessary to
perform his duties and responsibilities under this Agreement and to promote the
success of the Employer's business. The Executive shall be employed on a
full-time basis by Employer and shall be located at Employer's office within the
metropolitan Philadelphia area, however, acknowledges that he will be required
to travel periodically to other Employer locations and in connection with his
job functions hereunder, generally not to exceed fifty percent 50% of reasonable
business hours. Executive may continue to engage in the following activities:
(a) attending board of directors' or like meetings of other companies in which
Executive or an affiliate has invested or in which Executive has been elected to
serve, and (b) managing his personal investments, provided that such activities
set forth
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in (a) and (b) (individually or collectively) do not materially and adversely
interfere or conflict with the performance of Executive's duties or
responsibilities under this Agreement.
3. COMPENSATION
3.1 BASIC COMPENSATION
(a) Salary. The Executive will be paid an annual
salary of $150,000, subject to adjustment as provided below (the "Salary"),
which will be payable in equal periodic installments according to the Employer's
customary payroll practices, but no less frequently than monthly. The
Executive's Salary will be reviewed by Employer's Board of Directors not less
frequently than annually, and may be adjusted upward or downward by Employer,
but in no event will the Salary be less than $150,000 per year.
(b) Benefits. The Executive will, during the
Employment Period, be permitted to participate in such pension, profit sharing,
bonus (subject to the provisions of Section 3.2), life insurance,
hospitalization, major medical, and other employee benefit plans of the Employer
that may be in effect from time to time, to the extent the Executive is eligible
under the terms of those plans (collectively, the "Benefits").
(c) Options. Employer shall grant Executive options
to purchase 300,000 shares at an exercise price, subject to adjustment, of $6.75
per share (the "Options"). Options to purchase 50,000 shares of Employer's
common stock shall vest immediately; Options to purchase 62,500 shares of
Employer's common stock shall vest immediately after the first year of
employment; and the remaining 187,500 Options shall vest pro rata on a monthly
basis (i.e., 5,208.33 per month) throughout the following three (3) year period
so that upon the end of the fourth year of employment, all of the Options shall
have vested in full. The Options will be subject to the terms and conditions of
a stock option plan to be adopted by the Employer covering options of other
executives of the Employer; however, any such plan shall contain standard and
customary protections against dilution (such as stock splits, stock dividends,
recapitalizations, reorganizations and the like), and shall permit cashless
exercise upon standard and customary terms. If after the expiration of the
initial term of employment, Employer elects not to extend the term of employment
for an additional one year for other than "for cause", then, and in that event,
Executive shall vest fully in all of his Options at the end of his initial term
of employment as if Executive had remained employed by Employer for a full term
of four years.
The Options shall be covered by a Registration
Statement on Form S-8 to be filed with the Securities and Exchange Commission as
promptly following the Effective Date as is practicable.
Executive shall be entitled to registration rights
with respect to the shares of Employer's common stock issuable upon exercise of
the Options in the following manner: (i) Employer shall be obligated at its sole
cost and expense to include resale of the shares issuable upon exercise of the
Options in any registration statement filed with the Securities and Exchange
Commission following the date hereof to the extent that the registration
statement includes the resale
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of shares of common stock on behalf of any other executive officer of Employer;
and (ii) in the event registration pursuant to subparagraph (i) has not occurred
on or before the second anniversary of the Effective Date, the Employer shall be
obligated to include resale of the shares issuable upon the exercise of the
Options in a registration statement to be filed with the Securities and Exchange
Commission and declared effective by no later than the second anniversary of the
Effective Date at the Employer's sole cost and expense.
(d) Interim Loan. Employer agrees to provide
Executive with a loan of $100,000 at the beginning of each of his first two (2)
years of employment (the "Loan"). The Loan shall be due together with simple
interest at the rate of eight percent (8%) per annum on April 17, 2004 (the
"Maturity Date"), or on such earlier date that Executive shall have received
aggregate proceeds of $5,000,000 from the sale of his Options or shares
underlying the Options; provided, however, that the Executive shall not be
required to repay the Loan if by the Maturity Date the sum of the proceeds
received by Executive from the sale of his Options or underlying shares through
the Maturity Date plus the remaining equity in the Options as of the Maturity
Date, shall not equal or exceed $5,000,000.
3.2 BONUS COMPENSATION
Executive shall be eligible to receive annual bonus
compensation at the discretion of Employer's Board of Directors and in
accordance with Employer's executive bonus or incentive compensation plan that
may be in effect from time to time.
4. EXPENSE REIMBURSEMENT
The Employer will pay the Executive's dues in such trade and
professional organizations as Employer deems appropriate, and will pay on behalf
of the Executive (or reimburse the Executive for) reasonable expenses incurred
by the Executive at the request of, or on behalf of, the Employer in the
performance of the Executive's duties pursuant to this Agreement, and in
accordance with the Employer's employment policies, including without limitation
reasonable expenses incurred by the Executive in attending conventions,
seminars, other business meetings and for promotional expenses, provided that
any such activities must be related to Employer's business and all individual
expenses (or those aggregated for a single convention, seminar or other business
trip) greater than $5,000 must be approved by Employer's board of directors. The
Executive must file expense reports with respect to such expenses in accordance
with the Employer's policies.
5. VACATIONS AND HOLIDAYS
The Executive will be entitled to three (3) weeks' paid
vacation each calendar year in accordance with the vacation policies of the
Employer in effect for its executive officers from time to time. The Executive
will also be entitled to the paid holidays and other paid leave set forth in the
Employer's policies. Vacation days during any calendar year that are not used by
the Executive during such calendar year may be used in any subsequent calendar
year; provided, however, that no more than six weeks' paid vacation may be
accrued or carried forward.
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6. TERMINATION
6.1 EVENTS OF TERMINATION
The Executive's employment pursuant to this Agreement
may be terminated by Employer only on the following grounds:
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined
in Section 6.2) immediately upon notice from either party to the other; and
(c) for cause (as defined in Section 6.3),
immediately upon notice from the Employer to the Executive, or at such later
time as such notice may specify.
The Executive may terminate his employment only on the
following grounds:
(d) without any cause whatsoever, provided that
Executive gives Employer at least sixty (60) days' prior written notice of his
termination of employment;
(e) for any material breach of this Agreement by
Employer, which is not cured within ten (10) days after written notice to
Employer; or
(f) the occurrence of a Change in Control, provided
that Executive gives Employer at least sixty (60) days' prior written notice of
his termination of employment.
6.2 DEFINITION OF DISABILITY
For purposes of Section 6.1, the Executive will be
deemed to have a "Disability" if, for physical or mental reasons, the Executive
is unable to perform the essential functions of the Executive's duties with
reasonable accommodation under this Agreement for 120 consecutive days, or 120
days during any twelvemonth period, as determined in accordance with this
Section 6.2. The Disability of the Executive will be determined by a medical
doctor selected by written agreement of the Employer and the Executive upon the
request of either party by notice to the other. If the Employer and the
Executive cannot agree on the selection of a medical doctor, each of them will
select a medical doctor and the two medical doctors will select a third medical
doctor who will determine whether the Executive has a Disability. The
determination of the medical doctor selected under this Section 6.2 will be
binding on both parties. The Executive must submit to a reasonable number of
examinations by the medical doctor making the determination of disability under
this Section 6.2, and the Executive hereby authorizes the disclosure and release
to the Employer of such determination and all supporting medical records. If the
Executive is not legally competent, the Executive's legal guardian or duly
authorized attorney-in-fact will act in the Executive's stead, under this
Section 6.2, for the purposes of submitting the Executive to the examinations,
and providing the authorization of disclosure, required under this Section 6.2.
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6.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 6.1, the phrase "for cause"
means: (a) the Executive's material breach of this Agreement, which is not cured
within ten (10) days after written notice to Executive; (b) theft, fraud, or
misappropriation (or attempted misappropriation) of any of the Employer's funds
or property; or (c) a conviction or entry of a guilty plea or plea of no contest
with respect to a felony or other crime involving moral turpitude for which
imprisonment is a possible punishment.
6.4 TERMINATION PAY
Effective upon the termination of this Agreement, the
Employer will be obligated to pay the Executive (or, in the event of his death,
his designated beneficiary as defined below) the compensation provided in this
Section 6.4:
(a) Termination by the Employer for Cause or
Termination by Executive Without Cause. If the Employer terminates this
Agreement for cause or Executive terminates his employment without cause, the
Executive will be entitled to receive his Salary only through the date such
termination is effective, but will not be entitled to any bonus compensation for
the calendar year during which such termination occurs.
(b) Termination upon Disability. If this
Agreement is terminated by either party as a result of the Executive's
Disability, as determined under Section 6.2, the Employer will pay the Executive
his Salary through the remainder of the calendar month during which such
termination is effective and for the lesser of (i) three consecutive months
thereafter, or (ii) the period until disability insurance benefits commence
under the disability insurance coverage furnished by the Employer to the
Executive. Executive shall also be entitled to receive that part of the
Executive's bonus compensation, if any, for the calendar year during which his
Disability occurs, prorated through the end of the calendar month during which
his termination is effective.
(c) Termination upon Death. If this
Agreement is terminated because of the Executive's death, the Executive will be
entitled to receive his Salary through the end of the calendar month in which
his death occurs, and that part of the Executive's bonus compensation, if any,
for the calendar year during which his death occurs, prorated through the end of
the calendar month during which his death occurs.
(d) Termination by Executive Due to Breach
by Employer or Termination by Employer Without Cause. If this Agreement is
terminated by Executive due to a breach of this Agreement by Employer, or if
this Agreement is terminated by Employer for other than "for cause" then (i)
Employer shall continue to pay to Executive his monthly Salary and bonus, based
upon the average annual bonus paid previously to Executive prior to termination
of this Agreement, for the lesser of one (1) year from the date of termination
or the remaining term under this Employment Agreement; and (ii) the Options plus
all other stock, options or other equity rights in Employer which Executive
received in connection with his employment by Employer shall become immediately
vested to the extent such Options or other securities would have become vested
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had Executive remained employed by Employer for the earlier of one (1) year from
the date of termination or the remaining term under this Employment Agreement.
(e) Termination by Executive Due to a Change
of Control. If this Agreement is terminated by Executive due to a Change of
Control that occurs after September 21, 2000, then (i) Employer shall continue
to pay to Executive his monthly Salary and bonus, based upon the average annual
bonus paid previously to Executive prior to termination of this Agreement, for
the greater of one year from the date of termination or the remaining original
three year Employment Period; and (ii) all Options plus all other stock, options
or other equity rights in Employer which Executive received in connection with
his employment by Employer shall become immediately vested and Employer shall
promptly deliver to Executive stock certificates therefor, if applicable.
(f) Benefits. The Executive's accrual of, or
participation in plans providing for, the Benefits will cease at the effective
date of the termination of this Agreement, and the Executive will be entitled to
accrued Benefits pursuant to such plans only as provided in such plans.
7. NONDISCLOSURE COVENANT
Employer and the Executive acknowledge that the services to be
performed by the Executive under this Agreement are unique and valuable and
that, as a result of the Executive's employment, the Executive will be in a
relationship of confidence and trust with Employer and will come into possession
of "Confidential Information" (i) owned or controlled by Employer and its
subsidiaries and affiliates; (ii) in the possession of Employer and its
subsidiaries and affiliates and belonging to third parties; or (iii) conceived,
originated, discovered or developed, in whole or in part, by the Executive. As
used herein "Confidential Information" means trade secrets and other
confidential or proprietary business, technical, personnel or financial
information of Employer, whether or not the Executive's work product, in
written, graphic, oral or other tangible or intangible forms, including but not
limited to specifications, samples, records, data, computer programs, drawings,
diagrams, models, consumer names, ID's or email addresses, business or marketing
plans, studies, analyses, projections and reports, communications by or to
attorneys (including attorney-client privileged communications), memos and
other materials prepared by attorneys or under their direction (including
attorney work product), and software systems and processes that are not readily
available to the public, even it is not specifically marked as a trade secret or
confidential, unless Employer advises the Executive otherwise in writing or
unless the information has been shared by Employer with entities not bound by
nondisclosure agreements. In consideration of the compensation and benefits to
be paid or provided to the Executive by the Employer under this Agreement, the
Executive agrees not to directly or indirectly use or disclose to anyone, either
during the Employment Period or after the termination of this Agreement, except
in the performance of his duties of his employment with Employer or with
Employer's prior written consent, any Confidential Information of Employer. This
nondisclosure covenant does not apply to information that is disclosed or
becomes public through another source; which Executive is required to disclose
pursuant to court order, subpoena or applicable law (provided that Executive
will use reasonable efforts to provide Employer with prompt notice of any such
requests or requirement so that
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Employer may seek an appropriate protective order); or which is disclosed in any
proceeding to enforce or interpret this Agreement. The Executive agrees that in
the event of the termination of the Executive's employment for any reason, the
Executive will deliver to Employer, upon request, all property belonging to
Employer, including all documents and materials of any nature pertaining to the
Executive's work with Employer and will not take with him any documents or
materials of any description, or any reproduction thereof of any description,
containing or pertaining to any Confidential Information.
8. NONCOMPETITION
During the term of this Agreement and for a one year period
after termination of this Agreement by Employer for cause or by Executive
without any cause whatsoever (i.e., not as a result of termination by Executive
under Sections 6.1(e), or 6.1(f)), as set forth in Sections 6.1(c) and (d), the
Executive agrees that he shall not (a) work for or be interested in any business
which serves as a holding company primarily for the purpose of acquiring
entities whose products and services are delivered to consumers over the
Internet ("Internet Entities"), (b) engage or be interested in or receive any
compensation from any business in which the services to be rendered by the
Executive to such business directly relates to services or products which are
directly competitive with "primary" services or products offered by the Employer
or a subsidiary or affiliate of Employer at the Executive's termination date; or
(c) induce or attempt to induce any employee, agent or customer of Employer or
any of its subsidiaries or affiliates to terminate or reduce the scope of his,
her or its relationship with Employer. A product or service shall be deemed
"primary" only if such service or product constitutes a primary component of the
core business of Employer or its majority owned subsidiaries and affiliates on
Executive's termination date. For the purposes of this Agreement, the term "work
for or be interested in any business" means that the Executive is a stockholder,
director, officer, employee, partner, individual proprietor, lender or
consultant with that business, but not if (i) his interest is limited solely to
the passive ownership of five percent (5%) or less of any class of the equity or
debt securities of a corporation whose shares are listed for trading on a
national securities exchange or traded in the over-the-counter market, or (ii)
he is interested in a company listed on Schedule 8 hereto, or after termination
hereof, works for such company; provided however, that so long as this
noncompetition agreement is in effect, Executive shall not work for a company
listed on Schedule 8 if such company serves as a holding company primarily for
the purpose of acquiring Internet Entities. In the event that any part of this
Section 8 is adjudged invalid or unenforceable by any court of record, board of
arbitration or judicial or quasi judicial entity having jurisdiction thereof by
reason of length of time, geographical coverage, activities covered, or for any
other reason, then the invalid or unenforceable provisions of this covenant
shall be deemed reformed and amended to the maximum extent permissible under
applicable law and shall be enforced and enforceable as so amended in accordance
with the intention of the parties as expressed herein.
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9. GENERAL PROVISIONS
9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Executive acknowledges that the injury that would
be suffered by the Employer as a result of a breach of the provisions of any
provision of Sections 7 and 8 of this Agreement would be irreparable and that an
award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently Employer will have the right, in addition to any
other rights it may have, to obtain injunctive relief to restrain any breach or
threatened breach or otherwise to specifically enforce any provisions of
Sections 7 and 8 of this Agreement, and the Employer will not be obligated to
post bond or other security in seeking such relief.
9.2 WAIVER
The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by either party in exercising any right, power, or privilege under this
Agreement will operate as a waiver of such right, power, or privilege, and no
single or partial exercise of any such right, power, or privilege will preclude
any other or further exercise of such right, power, or privilege or the exercise
of any other right, power, or privilege.
9.3 NOTICES
All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand, (b) sent by facsimile (with
written confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested, or (c) when received by the addressee, if sent
by a nationally recognized overnight delivery service (receipt requested), in
each case to the appropriate addresses and facsimile numbers set forth below (or
to such other addresses and facsimile numbers as a party may designate by notice
to the other parties):
If to Employer: Net Value Holdings, Inc.
Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Facsimile No.: (000) 0000000
With a copy to: Klehr, Harrison, Xxxxxx, Xxxxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000 0000
If to Executive: Xxxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
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9.4 ENTIRE AGREEMENT; AMENDMENTS
This Agreement and the documents referenced herein,
contain the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, oral or
written, between the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended orally, but only by an agreement in writing
signed by the parties hereto.
9.5 GOVERNING LAW
This Agreement will be governed by the laws of the
State of Delaware without regard to conflicts of laws principles.
9.6 JURISDICTION
Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement may be
brought against either of the parties in the courts of the State of Delaware,
or, if it has or can acquire jurisdiction, in the United States District Court
for the District of Delaware, and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on either party anywhere in the world.
9.7 ASSIGNABILITY, BINDING NATURE
This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors, heirs (in the case of
the Executive) and assigns. No rights or obligations of the Executive under this
Agreement may be assigned or transferred by the Executive other than his rights
to compensation and benefits, which may be transferred only by will or operation
of law.
9.8 SURVIVAL
The respective rights and obligations of the parties
hereunder shall survive any termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and obligations.
9.9 PRIOR AGREEMENTS
The Executive represents and warrants to Employer
that his execution and performance of this Agreement shall not constitute a
breach of any contract, agreement or understanding, whether oral or written, to
which he is a party or by which he is bound.
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9.10 ACKNOWLEDGMENT
The Executive hereby acknowledges and certifies that
he has read the terms of this Agreement, that he has been informed by Employer
that he should discuss it with an attorney of his choice, and that he
understands its terms and effects. The Executive further acknowledges that based
on his training and experience, he has the capacity to earn a livelihood by
performing services as an employee or otherwise in a business that does not
violate the provisions of Section 8. Employer acknowledges that the terms of
this Agreement have been reviewed and approved by its Board of Directors.
9.11 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are
provided for convenience only and will not affect its construction or
interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement unless otherwise specified.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
9.12 SEVERABILITY
If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
9.13 COUNTERPARTS
This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement. This Agreement (and all other agreements, documents,
instruments and certificates executed and/or delivered in connection herewith)
may be executed by facsimile signatures, each of which shall be deemed an
original copy of this Agreement (or other such agreement, document, instrument
and certificate).
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IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date first written above.
EMPLOYER:
NET VALUE HOLDINGS, INC.
By:_____________________________________
Xxxxxx Xxxxx, Chief Executive Officer
and Chairman of the Board of Directors
EMPLOYEE:
---------------------------
Xxxxxxx X. Xxxxx
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