Exhibit 10.8
EMPLOYMENT AGREEMENT
AGREEMENT made this 28th day of April, 1999, by and between
XXXXXX.XXX LTD., a New York corporation (the "COMPANY"), and XXXXXX XXXXXXX (the
"EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the Company wishes to continue to employ the
Executive and the Executive wishes to accept such employment upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. EMPLOYMENT
The Company agrees to employ the Executive during the Term
specified in paragraph 2, and the Executive agrees to accept such employment,
upon the terms and conditions hereinafter set forth.
2. TERM
Subject to paragraphs 6 and 7 below and the other terms and
conditions of this Agreement, the Executive's employment by the Company shall be
for a term commencing on the date of this Agreement and expiring on the close of
business on March 31, 2002 (the "INITIAL TERM"); provided, however, the
Executive's employment by the Company shall continue for an indefinite period
thereafter unless and until either party shall give to the other 90 days advance
written notice of termination of the term (a "NOTICE OF TERMINATION") (the
Initial Term and the period, if any, thereafter, during which the Executive's
employment shall continue are collectively referred to as the "TERM"). Any
Notice of Termination given under this paragraph 2(a), shall specify the date of
expiration (which may not be earlier than the close of business on March 31,
2002) and may be given at any time on or after December 31, 2001. The Company
shall have the right at any time during such 90 day notice period, to require
the Executive to resign any directorships and to relieve the Executive of his
offices, duties and responsibilities and to place him on a paid leave-of-absence
status, provided that during such notice period the Executive shall remain a
full-time employee of the Company and shall continue to receive his salary
compensation and other benefits as provided in this Agreement. The effective
date of the termination of the Executive's employment with the Company,
regardless of the reason therefor, is referred to in this Agreement as the "DATE
OF
TERMINATION".
3. DUTIES AND RESPONSIBILITIES
(a) During the Term, the Executive shall have the positions of
President, Europe of the Company, and Managing Director of Online Magic Ltd., a
wholly-owned subsidiary of the Company. The Executive shall report to the Chief
Executive Officer of the Company (the "CEO"), at such times and in such detail
as the CEO shall reasonably require.
(b) The Executive shall perform such executive and managerial
duties and responsibilities customary to his offices and as are reasonably
necessary to the operations of the Company and its subsidiaries and as may be
assigned to him from time to time by or under authority of the CEO, consistent
with his positions as designated in paragraph 3(a) above.
(c) The Executive (i) will use his best reasonable efforts to
ensure that the Company and its subsidiaries comply on a timely basis with all
budgetary and reporting requirements reasonably requested by the CEO and (ii)
will not incur obligations on behalf of the Company or any subsidiary other than
in the ordinary course of business or enter into any transaction on behalf of
the Company or any subsidiary not in the ordinary course of business without the
approval of the CEO.
(d) The Executive's employment by the Company shall be
full-time and exclusive, and during the Term, the Executive agrees that he will
(i) devote all of his business time and attention, his best efforts, and all of
his skill and ability to promote the interests of the Company and its
subsidiaries, (ii) carry out his duties in a competent and professional manner,
and (iii) work with other employees of the Company and its subsidiaries in a
competent and professional manner. Notwithstanding the foregoing, the Executive
shall be permitted to engage in charitable and civic activities, and manage his
personal passive investments, provided that such passive investments are not in
a company which transacts business with the Company or one of its subsidiaries
or engages in business competitive with that conducted by the Company or one of
its subsidiaries (or, if such company does transact business with the Company or
a subsidiary or does engage in a competitive business, it is a publicly held
corporation of which the Executive owns less than 1/4 of 1% of its outstanding
shares); provided, that such activities (individually or collectively) do not
materially interfere with the performance of the Executive's duties and
responsibilities under this Agreement.
(e) During the Term, the Executive's services hereunder shall
be performed at the offices of the Company in London, England, subject to
necessary travel requirements of his position and duties hereunder.
4. COMPENSATION
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(a) As compensation for his services hereunder and in
consideration of his non-solicitation/non-servicing and non-disclosure covenants
as set forth in paragraph 8 below, during the Term the Company shall pay the
Executive in accordance with its normal payroll practices (currently payment
monthly in arrears by direct credit transfer to the Executive's bank account) an
annualized base salary of (pound)93,050. The Executive's base salary may be
increased (but not decreased) by or under the authority of the CEO in accordance
with the then salary review policy of the Company and within the guidelines and
budgetary procedures of the Company.
(b) The Executive shall be eligible to participate in such
management incentive compensation plans and programs that the Company may from
time to time institute.
5. EXPENSES; FRINGE BENEFITS
(a) The Company agrees to pay or to reimburse the Executive
for all reasonable, ordinary and necessary documented business or entertainment
expenses incurred during the Term in the performance of his services hereunder
in accordance with the policy of the Company as from time to time in effect. The
Executive, as a condition precedent to obtaining such payment or reimbursement,
shall provide to the Company any and all statements, bills or receipts
evidencing the travel or out-of-pocket expenses for which the Executive seeks
payment or reimbursement, and any other information or materials, as the Company
may from time to time reasonably require.
(b) During the Term, the Executive and, to the extent
eligible, his dependents, shall be entitled to participate in and receive all
benefits under any welfare benefit plans and programs made available generally
to the Company's senior executives or to its employees (including without
limitation, medical, disability and life insurance programs, accidental death
and dismemberment protection and business travel insurance), subject, however,
to the generally applicable eligibility and other provisions of the various
plans and programs in effect from time to time.
(c) During the Term, the Executive shall be eligible to
participate in all retirement plans and programs (including without limitation
any profit sharing/401(k) plan) and stock option and restricted stock plans made
available generally to the Company's senior executives or to its employees
generally, subject, however, to the generally applicable eligibility and other
provisions of the various plans and programs in effect from time to time. In
addition, during the Term, the Executive shall be entitled to receive fringe
benefits and perquisites in accordance with the plans, practices, programs and
policies of the Company from time to time in effect which are made available
generally to the Company's senior executives or to its employees generally.
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(d) The Executive shall be entitled to four weeks paid
vacation annually (on a non-cumulative basis, except as otherwise provided under
standard Company policy), to be taken at such time(s) as shall not, in the
reasonable judgment of the Board, materially interfere with the Executive's
fulfillment of his duties hereunder, and shall be entitled to as many sick days
and personal days as are in accordance with the Company's policy then in effect
generally for its employees. The Company shall pay statutory sick pay ("SSP") in
accordance with statutory regulations from time to time in force. Any payment by
the Company in respect of any day of absence due to sickness shall be set off
against its liability to pay SSP.
6. TERMINATION
(a) The Company, by direction of the CEO, shall be entitled to
terminate the Term and to discharge the Executive for "SERIOUS MISCONDUCT"
effective upon the giving of written notice. The term "serious misconduct" shall
be limited to the following grounds:
(i) the Executive's repeated failure or refusal to
materially perform his duties and responsibilities as set
forth in paragraph 3 hereof other than by reason of his
disability (as defined in paragraph 7 below), or the failure
of the Executive to devote his attention exclusively to the
business and affairs of the Company and its subsidiaries in
accordance with the terms hereof (other than by reason of his
disability), in each case if such failure or refusal is not
cured within 30 days after written notice thereof to the
Executive by the Company;
(ii) the willful misappropriation of the funds or
property of the Company or any subsidiary;
(iii) use of alcohol or illegal drugs, materially
interfering with the performance of the Executive's
obligations under this Agreement, continuing after written
warning;
(iv) the Executive committing any criminal offense
involving moral turpitude, dishonesty or theft;
(v) the material nonconformance with the Company's
standard business practices and policies, including without
limitation, policies against racial or sexual discrimination
or harassment, made known to the Executive, which
nonconformance is not cured (if curable) within 30 days after
written notice to the Executive by the Company;
(vi) the commission in bad faith by the Executive of
any act which injures or could reasonably be expected to
injure the reputation, business or
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business relationships of the Company or any subsidiary;
(vii) any material breach (not covered by any of the
clauses (i) through (vi) above) of any term, provision or
condition of this Agreement, if such breach is not cured (if
curable) within 30 days after written notice thereof to the
Executive by the Company; and
(viii) a voluntary resignation by the Executive OTHER
THAN pursuant to a Notice of Termination given by the
Executive under paragraph 2 above or a termination by the
Executive for "Good Reason" (as defined in paragraph 6(b)
below).
Any notice required to be given by the Company pursuant to clause (i), (v) or
(vii) above shall specify the specific nature of the claimed breach and the
manner in which the Company requires such breach to be cured (if curable). In
the event that the Executive is purportedly terminated for serious misconduct
and a court determines that "serious misconduct" as defined herein was not
present, then such purported termination for serious misconduct shall be deemed
a termination by the Company "without serious misconduct" pursuant to paragraph
6(d) below and the Executive's rights and remedies will be governed by paragraph
6(d) below, in full satisfaction and in lieu of any and all other or further
remedies the Executive may have.
(b) Provided that the Executive is not then otherwise in
material breach of this Agreement, the Executive shall be entitled to terminate
this Agreement and the Term hereunder for "Good Reason" at any time during the
Term by written notice to the Company. "GOOD REASON" shall be limited to a
breach by the Company of a material term of this Agreement, which breach remains
uncured for a period of 30 days after written notice of such breach from the
Executive to the Company (such notice to specify the specific nature of the
claimed breach and the manner in which the Executive requires such breach to be
cured).
(c) In the event of the termination of the employment of the
Executive with the Company for any reason (including without limitation, a
termination pursuant to a Notice of Termination under paragraph 2 above) OTHER
THAN by virtue of a termination by the Company "without serious misconduct" or a
termination for "Good Reason" by the Executive, the Executive shall be entitled
to the following payments and benefits, subject to any appropriate offsets, as
permitted by applicable law, for debts or money due to the Company or an
affiliate thereof (collectively, "OFFSETS"):
(i) unpaid salary compensation and any unused accrued
vacation only through, and any unpaid reimbursable expenses
outstanding as of, the Date of Termination;
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(ii) all benefits, if any, that had accrued to the
Executive through the Date of Termination under the plans and
programs described in paragraphs 5(b) and (c) above, or any
other applicable plans and programs in which he participated
as an employee of the Company, and all amounts earned, accrued
or owing to the Executive through the Date of Termination
under any incentive compensation plan or program in which he
participated as an employee of the Company, in the manner and
in accordance with the terms of such plans and programs; and
(iii) the right to exercise any vested option and the
vesting of any unvested option shall be determined in
accordance with the terms of the plan under which such option
was granted.
In the event of the termination of the Employee's employment OTHER THAN by
virtue of a termination by the Company "without serious misconduct" or a
termination by the Executive for "Good Reason", except as provided in this
paragraph 6(c), the Company shall have no further liability to the Executive or
the Executive's heirs, beneficiaries or estate for damages, compensation,
benefits, severance, indemnities or other amounts of whatever nature, directly
or indirectly, arising out of or otherwise related to this Agreement and the
Executive's employment or cessation of employment with the Company.
(d) The Company shall have the right at any time during the
Term to terminate the employment of the Executive "without serious misconduct"
by giving written notice to the Executive indicating that the Company has
terminated the Agreement "without serious misconduct" under this paragraph 6(d)
and setting forth the Date of Termination. In the event of a termination by the
Company "without serious misconduct" or a termination by the Executive for "Good
Reason", the Executive shall be entitled to continue to receive from the
Company, subject to any Offsets, the following:
(i) as severance compensation, his then applicable
base salary which would otherwise have been payable through
(x) March 31, 2002 if the Date of Termination occurs on or
prior to December 31, 2001 or (y) 90 days from the Date of
Termination, if such termination occurs after December 31,
2001;
(ii) any unpaid reimbursable expenses outstanding,
and any unused accrued vacation, as of the Date of
Termination;
(iii) all benefits, if any, that had accrued to the
Executive through the Date of Termination under the plans and
programs described in paragraphs 5(b) and (c) above, or any
other applicable benefit plans and programs in which he
participated as an employee of the Company, and all amounts
earned, accrued or owing to the Executive through the Date of
Termination under any
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incentive compensation plan in which he participated as an
employee of the Company, in the manner and in accordance with
the terms of such plans and programs;
(iv) continued participation on the same basis
(including without limitation, cost contributions) as the
other senior executives of the Company in all medical, dental,
disability and life insurance coverage (such benefits
collectively called the "CONTINUED PLANS") in which he was
participating on the Date of Termination (as such Continued
Plans are from time to time in effect at the Company) until
the earlier of (x) the end of the period that he receives
severance compensation payments under clause (i) of this
paragraph 6(d) or (y) the date, or dates, he is entitled to
receive coverage and benefits under the same type of plan of a
subsequent employer; provided, however, if the Executive is
precluded from continuing his participation in any Continued
Plan, the after-tax economic equivalent of the benefits
provided under the Continued Plan in which he is unable to
participate, for the period specified above, it being
understood that the economic equivalent of a benefit foregone
shall be deemed the lowest cost that would be incurred by the
Executive in obtaining such benefit himself on an individual
basis, and payment of such after-tax economic benefit shall be
made quarterly in advance; and
(v) the right to exercise any vested option shall be
determined in accordance with the terms of the plan under
which such option was granted; provided, however, that the
vesting of those options theretofore granted to the Executive
and which would have vested during the period set forth in
Section 6(d)(i) shall be accelerated to precede the Date of
Termination.
In connection with a termination by the Company "without serious misconduct" or
by the Executive for "Good Reason", except as provided in this paragraph 6(d),
(x) the Company shall have no further liability to the Executive or the
Executive's heirs, beneficiaries or estate for damages, compensation, benefits,
severance, indemnities or other amounts of whatever nature, directly or
indirectly, arising out of or otherwise related to this Agreement and the
Executive's employment or cessation of employment with the Company, and (y) the
Executive shall be under no obligation to mitigate his damages or to seek other
employment and if the Executive obtains other employment, any compensation
earned by the Executive therefrom shall not reduce the Company's severance
obligations under clause (i) of this paragraph 6(d). The making of any severance
payments and providing the other benefits as provided in this paragraph 6(d) is
conditioned upon the Executive signing a general release of the Company and its
subsidiaries and affiliates, and its and their respective successors and
assigns, officers directors, employees, agents, attorneys and representatives,
of any claims (including claims of discrimination) relating to the Executive's
employment with the Company or the termination thereof; including any claims
under any United Kingdom statute, except such release shall preserve the
Executive's rights with respect to the payments
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and benefits to be received pursuant to this paragraph 6(d) and the Executive's
rights of indemnification under the Company's organizational documents and any
separate director or officer indemnification agreement with the Company to which
he may be a party. Such release shall be in the form then being used by the
Company in connection with severance arrangements; it being understood, however
that such release shall not increase the Executive's
non-solicitation/non-servicing and protection of confidential information
obligations to the Company beyond that set forth in paragraph 8 of this
Agreement. If the Executive breaches any provisions of such release or the
provisions of paragraph 8 of this Agreement, in addition to any other remedies
at law or in equity available to it, the Company may cease making any further
severance payments and providing the other benefits provided for in this
paragraph 6(d), without affecting its rights under this Agreement or the
release.
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7. DISABILITY; DEATH
In the event the Executive shall be unable to perform his
duties hereunder by virtue of illness or physical or mental incapacity or
disability (from any cause or causes whatsoever) in substantially the manner and
to the extent required hereunder prior to the commencement of such disability
(all such causes being herein referred to as "DISABILITY") and the Executive
shall fail to perform such duties for periods aggregating 270 days, whether or
not continuous, in any continuous period of 360 days, the Company shall have the
right to terminate the Executive's employment hereunder as at the end of any
calendar month during the continuance of such disability upon at least 30 days'
prior written notice to him. In the event of the Executive's death, the Date of
Termination shall be the date of such death.
8. NON-SOLICITATION/NON-SERVICING AGREEMENT AND PROTECTION OF
CONFIDENTIAL INFORMATION
(a) The Executive acknowledges (i) the highly competitive
nature of the Company's business and the industry in which the Company competes;
(ii) that as a key executive of the Company he has participated in and will
continue to participate in the servicing of current clients of the Company
and/or the solicitation of prospective clients of the Company, through which,
among other things, the Executive has obtained and will continue to obtain
knowledge of the "know-how" and business practices of the Company, in which
matters the Company has a substantial proprietary interest; (iii) that his
employment hereunder requires the performance of services which are special,
unique, extraordinary and intellectual in character, and his position with the
Company placed and places him in a position of confidence and trust with the
clients and employees of the Company; and (iv) that his rendering of services to
the clients of the Company necessarily requires the disclosure to the Executive
of confidential information (as defined in paragraph 8(b) below) of the Company.
In the course of the Executive's employment with the Company, the Executive has
and will continue to develop a personal relationship with the clients of the
Company and a knowledge of those clients' affairs and requirements, and that the
relationship of the Company with its established clientele has been and will
continue to be placed in the Executive's hands in confidence and trust. The
Executive consequently agrees that it is reasonable and necessary for the
protection of the confidential information, goodwill and business of the Company
that the Executive make the covenants contained herein and that the Company
would not have entered into this Agreement unless the covenants set forth in
this paragraph 8 were contained in this Agreement. Accordingly, the Executive
agrees that during the period that he is employed by the Company and thereafter
through the later of (x) March 31, 2002 and (y) two years after the Date of
Termination, he shall not, as an individual, consultant, partner, shareholder,
employee or in any other capacity whatsoever, or in association with any other
person, business or enterprise, except on behalf of the Company, directly or
indirectly, and regardless of the reason for his ceasing to be employed by the
Company:
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(i) attempt in any manner to solicit or accept from
any client business of the type performed by the Company or to
persuade any client to cease to do business or to reduce the
amount of business which any such client has customarily done
or is reasonably expected to do with the Company, whether or
not the relationship between the Company and such client was
originally established in whole or in part through his
efforts; or
(ii) employ as an employee or retain as a consultant
any person who is then or at any time during the preceding
twelve months was an employee of or exclusive consultant to
the Company, or persuade or attempt to persuade any employee
of or exclusive consultant to the Company to leave the employ
of the Company or to become employed as an employee or
retained as a consultant by anyone other than the Company
(provided that this clause shall not apply to those employed
in a junior administrative or secretarial position); or
(iii) render to or for any client any services of the
type rendered by the Company.
As used in this paragraph 8, the term "COMPANY" shall mean the Company and each
of its subsidiaries and the term "CLIENT" shall mean (1) anyone who is a client
of the Company on the Date of Termination or, if the Executive's employment
shall not have terminated, at the time of the alleged prohibited conduct (any
such applicable date being called the "DETERMINATION DATE"); (2) anyone who was
a client of the Company at any time during the one year period immediately
preceding the Determination Date; (3) any prospective client to whom the Company
had made a new business presentation (or similar offering of services) at any
time during the one year period immediately preceding the Determination Date;
and (4) any prospective client to whom the Company made a new business
presentation (or similar offering of services) at any time within six months
after the Date of Termination (but only if the initial discussions between the
Company and such prospective client relating to the rendering of services
occurred prior to the Date of Termination, and only if the Executive
participated in or supervised such discussions). For purposes of this clause, it
is agreed that a "new business presentation or similar offering of services" or
a "discussion" does not include general mailings, telephone solicitations,
unsolicited credentials presentations not responding to requests for proposals
or incidental contacts. In addition, if the client is part of a group of
companies which conducts business through more than one entity, division or
operating unit, whether or not separately incorporated (a "CLIENT GROUP"), the
term "CLIENT" as used herein shall include each entity, division and operating
unit of the Client Group where the same management group of the Client Group has
the decision making authority with respect to contracting for services of the
type rendered by the Company, BUT shall not include any part of the Client Group
where the management group is not the same management group that has the
decision making authority or significant influence with respect to contracting
for services of the type rendered by the Company.
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Notwithstanding anything to the contrary contained in this paragraph 8(a), if
the Company defaults in the payment to the Executive of any severance
compensation when due under the provisions of paragraph 6(d)(i) above, which
default is not cured within 30 days after written notice thereof to the Company
by the Executive, the restrictions set forth in this paragraph 8(a) shall
terminate unless the Company pays the Executive all amounts then due to the
Executive as determined by the relevant court, in which case such restrictions
shall remain in full force and effect. During the pendency of any dispute as to
whether the Company is justified in ceasing to make such severance payments as
permitted under the provisions of paragraph 6(d) above, the restrictions set
forth in this paragraph 8(a) shall remain in full force and effect (but only for
the time period set forth herein).
(b) In the course of the Executive's employment with the
Company he will acquire and have access to confidential or proprietary
information about the Company and/or its clients, including but not limited to,
trade secrets, methods, models, passwords, access to computer files, financial
information and records, computer software programs, agreements and/or contracts
between the Company and its clients, client contacts, the marketing and/or
creative policies and ideas, advertising campaigns, media plans and budgets,
practices, concepts, strategies, and methods of operations, financial or
business projections of the Company, and information about or received from
clients and other companies with which the Company does business. The foregoing
shall be collectively referred to as "CONFIDENTIAL INFORMATION". The Executive
is aware that the confidential information is not readily available to the
public and accordingly, the Executive also agrees that he will not at any time
(whether during the Term or after termination of this Agreement), disclose to
anyone any confidential information, or utilize such confidential information
for his own benefit, or for the benefit of third parties. The Executive agrees
that the foregoing restrictions shall apply whether or not any such information
is marked "confidential". The term "confidential information" does not include
information which (i) becomes generally available to the public other than by
breach of this provision or (ii) the Executive learns from a third party who is
not under an obligation of confidence to the Company or a client of the Company.
In the event that the Executive becomes legally required to disclose any
confidential information, he will provide the Company with prompt notice thereof
so that the Company may seek an injunction or other appropriate remedy and/or
waive compliance with the provisions of this paragraph 8(b) to permit a
particular disclosure. In the event that such injunction or other remedy is not
obtained, or that the Company waives compliance with the provisions of this
paragraph 8(b) to permit a particular disclosure, the Executive will furnish
only that portion of the confidential information which he is legally required
to disclose and, at the Company's expense, will cooperate with the efforts of
the Company to obtain an injunction or other reliable assurance that
confidential treatment will be accorded the confidential information. The
Executive further agrees that all memoranda, disks, files, notes, records or
other documents, whether in electronic form or hard copy (collectively, the
"MATERIAL") compiled by him or made available to him during his employment with
the Company (whether or not the material contains confidential information)
shall be the
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property of the Company and shall be delivered to the Company on the termination
of the Executive's employment with the Company or at any other time upon
request. Except in connection with the Executive's employment with the Company,
the Executive agrees that he will not make or retain copies or excerpts of the
material.
(c) It is acknowledged and agreed that any breach or
threatened breach of paragraphs 8(a) or (b) above will cause irreparable injury
to the Company and that money damages will not provide an adequate remedy to the
Company. In addition, the Company may take all such other actions and remedies
available to it under law or in equity and shall be entitled to such damages as
it can show they have sustained by reason of such breach.
(d) The parties acknowledge that (i) the type and periods of
restriction imposed in the provisions of paragraphs 8(a) and (b) above are fair
and reasonable and are reasonably required in order to protect and maintain the
proprietary interests of the Company described above, other legitimate business
interests of the Company and the goodwill associated with the business of the
Company, (ii) that the business of the Company currently extends throughout the
United States and other areas of the world, and that the Executive will engage
in such business pursuant to the terms of this Agreement throughout Europe and
other areas of the world, and (iii) that the time, scope, geographic area and
other provisions of this paragraph 8 have been specifically negotiated by
sophisticated commercial parties. It is further understood and agreed that the
clients of the Company may be serviced from any location and accordingly it is
reasonable that the covenants set forth herein are not limited by narrow
geographic area but generally by the location of such clients and potential
clients. The Executive specifically acknowledges that his being restricted from
soliciting and servicing clients and prospective clients as contemplated by this
Agreement will not prevent him from being employed or earning a livelihood in
the type of business conducted by the Company. If any of the covenants contained
in paragraphs 8(a) or (b), or any part thereof, is held to be unenforceable by
reason of its extending for too great a period of time or over too great a
geographic area or by reason of its being too extensive in any other respect,
the parties agree (x) such covenant shall be interpreted to extend only over the
maximum period of time for which it may be enforceable and/or over the maximum
geographic areas as to which it may be enforceable and/or to the maximum extent
in all other respects as to which it may be enforceable, all as determined by
the court or arbitration panel making such determination and (y) in its reduced
form, such covenant shall then be enforceable, but such reduced form of
agreement shall only apply with respect to the operation of this paragraph 8 in
the particular jurisdiction in which such adjudication is made.
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9. INTELLECTUAL PROPERTY
During the Term, the Executive will disclose to the Company
all ideas, inventions and business plans developed by him during such period
which relate directly or indirectly to the business of the Company and its
subsidiaries, including without limitation, any design, logo, slogan,
advertising campaign or any process, operation, product or improvement which may
be patentable or copyrightable. The Executive agrees that all patents, licenses,
copyrights, tradenames, trademarks, service marks, planning, marketing and/or
creative policies, advertising campaigns, media campaigns, and budgets,
practices, concepts, strategies, and methods of operations, financial or
business projections, designs, logos, slogans and business plans developed or
created by the Executive in the course of his employment hereunder, either
individually or in collaboration with others, will be deemed works for hire and
the sole and absolute property of the Company. The Executive agrees, that at the
Company's request and expense, he will take all steps necessary to secure the
rights thereto to the Company by patent, copyright or otherwise.
10. ENFORCEABILITY
The failure of any party at any time to require performance by
another party of any provision hereunder shall in no way affect the right of
that party thereafter to enforce the same, nor shall it affect any other party's
right to enforce the same, or to enforce any of the other provisions in this
Agreement; nor shall the waiver by any party of the breach of any provision
hereof be taken or held to be a waiver of any subsequent breach of such
provision or as a waiver of the provision itself.
11. ASSIGNMENT
This Agreement is a personal contract and the Executive's
rights and obligations hereunder may not be sold, transferred, assigned, pledged
or hypothecated by the Executive. The rights and obligations of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company.
12. MODIFICATION
This Agreement may not be orally canceled, changed, modified
or amended, and no cancellation, change, modification or amendment shall be
effective or binding, unless in writing and signed by the parties to this
Agreement.
13. SEVERABILITY; SURVIVAL
In the event any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall nevertheless be binding upon
the parties with the same effect as though the
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invalid or unenforceable part had been severed and deleted. The respective
rights and obligations of the parties hereunder shall survive the termination of
the Executive's employment to the extent necessary to the intended preservation
of such rights and obligations.
14. LIFE INSURANCE
The Executive agrees that the Company shall have the right to
obtain life insurance on the Executive's life, at the sole expense of the
Company, as the case may be, and with the Company as the sole beneficiary
thereof. The Executive shall (a) cooperate fully in obtaining such life
insurance, (b) sign any necessary consents, applications and other related forms
or documents and (c) at the Company's expense, take any reasonably required
medical examinations.
15. NOTICE
Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall be
deemed effective (a) upon personal delivery, if delivered by hand, or (b) three
days after the date of deposit in the mails, postage prepaid if mailed by
certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission (if electronically confirmed) or prepaid overnight
courier service, and in each case, addressed as follows:
IF TO THE EXECUTIVE:
Xxxxxx Xxxxxxx
Online Magic, an Xxxxxx.Xxx company
0 Xxxxxx Xxxxxx
Xxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx X0 0XX
Fax: 000-00-000-000-0000
IF TO THE COMPANY:
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Xxxxxx.Xxx Ltd.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx, Esq.
0000 Xxxxxxxxxx Xxxxxxxxx.
Xxxxxxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
16. APPLICABLE LAW
This Agreement shall be governed by and construed in
accordance with the laws of England and the parties submit to the non-exclusive
jurisdiction of the U.K. courts.
17. NO CONFLICT
The Executive represents and warrants that he is not subject
to any agreement, instrument, order, judgment or decree of any kind, or any
other restrictive agreement of any character, which would prevent him from
entering into this Agreement or which would be breached by the Executive upon
his performance of his duties pursuant to this Agreement.
18. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the
Company and the Executive with respect to the subject matter hereof, and all
prior agreements, plans and arrangements relating to the employment of the
Executive by the Company are nullified and superseded hereby .
19. HEADINGS
The headings contained in this Agreement are for reference
purposes only, and shall not affect the meaning or interpretation of this
Agreement.
20. MISCELLANEOUS
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(a) The Company may withhold from any amounts payable under
this Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(b) Following the date hereof and regardless of any dispute
that may arise in the future, the Executive will not disparage the Company; and
the Company will not disparage the Executive.
(c) The particulars of employment required to be given by the
Employment Rights Xxx 0000 are annexed to this Agreement as Schedule 1.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXX.XXX LTD.
BY: /s/ Xxxxxxx Xxxxx
---------------------------------
NAME: Xxxxxxx Xxxxx
TITLE: CFO
/s/ Xxxxxx Xxxxxxx
------------------------------------
XXXXXX XXXXXXX
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SCHEDULE TO EMPLOYMENT AGREEMENT MADE BY XXXXXX.XXX LTD.,
A NEW YORK CORPORATION ("THE COMPANY") AND XXXXXX XXXXXXX ("THE EXECUTIVE")
This Schedule constitutes a statement of particulars of employment provided
pursuant to Section 1 of the Employment Rights Xxx 0000. Insofar as the contents
of this schedule and the employment agreement conflict, the terms of the
employment agreement will prevail.
1. Employer: Xxxxxx.Xxx Limited, 000 Xxxxxxxx, Xxx Xxxx, XX00000.
2. Employee: Xxxxxx Xxxxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxx, X0 0XX.
3. Date of commencement of employment: October 2, 1997
4. Date of commencement of continuous employment: October 2, 1997
5. Salary: (pound)93,050 payable in monthly instalments by direct credit
transfer to the Executive's nominated bank account.
6. Hours of work: the Executive's hours of work shall be normal office
hours of the Company and such other hours as may be required for the
proper performance of the Executive's duties. The Executive confirms
and agrees that the Executive's working time is not measured for the
purposes of the Working Time Regulations 1998.
7. Holiday: the Executive shall be entitled to 20 working days holiday per
annum. On termination, the Executive shall be entitled to payment in
lieu of any days holiday accrued but untaken, calculated on the basis
of base salary only. The Executive shall, in addition, be entitled to
United Kingdom statutory bank or public holidays.
8. Sick pay: the Executive shall be entitled to statutory sick pay in
accordance with the legislation in force at the time of absence. Any
payment of remuneration to the Executive by the Company for a day of
absence due to sickness will be set off against the Company's
obligation to pay statutory sick pay for that day. The Executive may be
required to comply with such reporting procedures as the Company may
from time to time notify to the Executive.
9. Pension: there is no pension plan of which the Executive is presently
entitled to membership. There is no contracting out certificate in
force in respect of the employment of the Executive.
10. Notice period: either party may terminate the employment of the
Executive by giving the other 90 days' advance written notice, provided
that such notice may not expire before 30 March 2002.
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11. Job title: the Executive is employed as President, Europe.
12. Place of work: the Executive's principal place of work shall be the
offices of the Company in London. The Executive may be required to
travel to such place in the world as the Company may require. In the
event that the Executive is required to work outside the United Kingdom
for more than a month, the Executive will be notified separately of any
particular terms and conditions relating to that employment.
13. Collective agreements: there are no collective agreements which
directly affect the terms and conditions of employment of the
Executive.
14. Disciplinary and complaints procedures: the Company will observe good
practice in taking any disciplinary action against the Executive.
However, the Executive acknowledges that, given his seniority and
responsibilities, it may not be appropriate to issue warnings prior to
giving notice of termination. In the event that the Executive has any
grievance in relation to his employment, he should raise this with the
Chief Executive Officer of the Company. The decision of the Chief
Executive Officer shall be final.
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