EXHIBIT 1O.22
June 18, 1999
PERSONAL AND CONFIDENTIAL
Xx. Xxx Xxxxxx
00000 Xxxxxxx Xxxxxxx
Xxx Xxxx Xxxxxxxxxx, XX 00000
Dear Xx.Xxxxxx:
This letter (the "Agreement") will confirm the agreement between PartMiner,
Inc., a New York corporation (the "Company"), and you relating to your
employment by the Company.
1. EMPLOYMENT. The Company hereby employs you, and you hereby agree to serve
as the Vice President of Strategic Alliances of the Company during the Term of
Employment (as hereinafter defined). In such capacity, you shall be responsible
for (i) the recruitment, hiring, training and managing of personnel that expand
the customer base of the Company and ensure active usage of the PartMiner web-
based products; (ii) the recruitment, hiring, training and managing of a team of
marketing directors that set and implement strategies with strategic partners of
the Company; and (iii) developing a marketing strategy for Prima International
("Prima"), including, but not limited to, obtaining new franchise agreements for
Prima and obtaining agreements with a direct marketing group for Prima. You
shall report directly to Xxxxx Zucht, Executive Vice President of Business
Development of the Company. In the event that any changes in your
responsibilities are made by the Company, such changes will be commensurate with
your demonstrated abilities. Any changes made by the Company in the foregoing
reporting arrangements will be discussed with you prior to implementing such
changes. You agree also to perform such senior executive services customary to
such position as shall from time to time be assigned to you and, in the absence
of such assignment, such senior executive services customary to such position as
are necessary to the operations of the Company. You agree to use your best
efforts to promote the interests of the Company and to devote all of your
working time and energies to the business and affairs of the Company during the
Term of Employment (as hereinafter defined). Although you may be associated with
or invest in other companies, you will not allow such activities to interfere
with your services to the Company.
2. TERM OF EMPLOYMENT. The term of employment hereunder shall be for the
period commencing on June 14, 1999 and shall end on June 14, 2001 (the "Term of
Employment"), unless earlier terminated pursuant to the provisions of Section 5
hereof.
3. COMPENSATION; EXPENSES; BENEFITS.
(a) Base Salary. As compensation for the services hereunder during the
Term of Employment, the Company shall pay you a base salary of $140,000 per
annum. Such salary shall be payable in appropriate bi-weekly installments to
conform with the regular payroll dates
for salaried personnel of the Company and will be considered for adjustment
annually, in accordance with the Company policy, based on the Company's
evaluation of your performance for the preceding fiscal year.
(b) Benefits. You will receive the benefits that the Company provides its
senior executives generally, including employee health insurance benefits. Your
vacation will begin to accrue as of the date hereof, in accordance with the
Company's existing policy, up to a maximum of three (3) weeks per year.
(c) Expenses. During the Term of Employment, you shall be entitled to be
reimbursed for all reasonable expenses incurred by you in performing services
hereunder in accordance with the policies and procedures established by the
Company from time to time.
(d) Incentive Compensation. You will have the opportunity to receive
annually up to $25,000 in incentive compensation; provided that, certain
management by objective ("MBO") targets are met. Such MBOs shall be agreed upon
between you and the Company and shall be payable quarterly.
(e) Stock Options. The Company shall grant or cause to be granted to you
options to purchase approximately 800 shares of common stock of the Company. The
exercise price of these options shall be determined based on a valuation of the
Company of $50,000,000. The options shall be granted pursuant to the 1999 Stock
Plan of the Company and will be subject to the terms and conditions of the Plan
and of a nonqualified stock option agreement to be entered into between you and
the Company. Subject to the foregoing, the total number of shares covered by
these options shall vest as follows: (i) one third of such options shall vest on
the date of the executed nonqualified stock option agreement (the "Grant Date"),
(ii) one third of such options shall vest on the first anniversary of the Grant
Date, and (iii) one third of such options shall vest on the second anniversary
of the Grant Date.
COVENANT NOT TO COMPETE; INTELLECTUAL PROPERTY; CONFIDENTIALITY; ENFORCEABILITY;
BREACH.
(a) Covenant Not To Compete. You acknowledge that you are expected to play
a very important role in the on-going development of the Company, that you will
have detailed knowledge of the Company's business and its plans for the future,
that you will have a fiduciary relationship with the Company, and you will be
receiving substantial compensation and other benefits under this Agreement.
During the Term of Employment, you shall not, directly or indirectly, advise,
manage, control, operate, be employed by or participate in the ownership,
management, operation or control of, or be connected in any manner with any
business which competes with any business of the Company. The decision of the
Board of Directors of the Company as to what constitutes a competing business
shall be final and binding upon you. For these purposes, your ownership of one
percent (1%) or less of any class of securities of a public company shall not be
considered to be competition with the Company. Notwithstanding anything
contained herein to the contrary, in the event that following the Term of
Employment, you directly or indirectly advise, manage, control, operate, become
employed by or participate in
the ownership, management, operation or control of, or become connected in any
manner with any business which competes with any business of the Company, any
and all options granted to you hereunder shall terminate whether or not
exercisable.
(b) Intellectual Property. You agree that all ideas, inventions, trade
secrets, marketing plans and business plans developed by you during the Term of
Employment which relate directly or indirectly to the business of the Company,
including without limitation, any process, operation, product or improvement
which may be patentable or copyrightable, will be the property of the Company
and that you will at the Company's request and cost do whatever is necessary to
secure the rights thereto by patent, copyright or otherwise to the Company.
(c) Confidentiality. You agree that you will not divulge to anyone (other
than the Company or any persons employed or designated by the Company) any
knowledge or information of any type whatsoever of a confidential nature
relating to the business of the Company, including, without limitation, any and
all types of ideas, inventions, trade secrets, marketing plans, business plans,
and processes, operations, products or improvements which may be patentable or
copyrightable ("Confidential Information"). You further agree not to disclose,
publish or make use of any such Confidential Information without the prior
written consent of the Company. The term "Confidential Information" does not
include any information which (i) at the time of disclosure or thereafter is
generally available to and known to the public (other than as a result of
disclosure directly or indirectly by you), (ii) was available to you on a non-
confidential basis from a source other than the Company or its representatives
and advisors, provided that such source is not in breach of any obligations of
confidentiality to the Company, or (iii) has been independently acquired or
developed by you without violating any of your obligations pursuant to this
Agreement. The provisions set forth in this section shall survive the
termination or cancellation of this Agreement.
(d) Enforceability. You recognize and agree that the limitations placed on
you by this Section 4 are reasonable and are required for the protection of the
Company. You agree that if any such limitation is determined in arbitration or
by a court of competent jurisdiction to be unenforceable, you agree and submit
to the reduction of such limitation as the court or arbitrator(s) deem
reasonable. The limitations placed on you by this Section 4 are of the essence
of this Agreement and they shall be construed and enforced independently. The
existence of any claim or cause of action against the Company by you shall not
constitute a defense against the enforcement of these limitations on you.
(e) Breach. You acknowledge and agree that money damages would not
adequately compensate the Company in the event of breach by you of any provision
of this Section 4. Consequently, you agree that the Company shall be entitled,
without the necessity of proving actual damages, to obtain damages for any
breach of this Section 4, to enforce specific performance by you of any
provision of this Section 4, or to obtain temporary and permanent injunctive
relief from any court of competent jurisdiction for enforcement of the
provisions of this Section 4.
5. TERMINATION.
(a) General. Your employment hereunder shall terminate as provided in Section 2
hereof and may be earlier terminated in accordance with the provisions of this
Section 5. Unless earlier terminated in accordance with the provisions of this
Section 5, the Company shall provide you with at least thirty (30) days notice
prior to the termination of your employment as provided in Section 2 if the
Company does not intend to renew this Agreement.
(b) Death and Disability. Your employment under this Agreement shall terminate
upon (i) your death; or (ii) in the event you become disabled, at the option of
the Company, thirty (30) days after the date on which the Company shall have
given you written notice of the termination of your employment because of your
physical or mental incapacity on a permanent basis. You shall be deemed to be
physically or mentally incapacitated on a permanent basis if you are unable, by
reason of any physical or mental incapacity, for a period of ninety (90)
substantially consecutive days or for shorter periods aggregating one hundred
twenty (120) days or more during any twelve (12) month period, to perform your
duties as Vice President of Strategic Alliances of the Company in a reasonably
satisfactory manner. In the event of any disagreement between you and the
Company as to whether you are physically or mentally incapacitated on a
permanent basis so as to permit the Company to terminate your employment
pursuant to this subparagraph (b), the question of such permanent incapacity
shall be submitted for decision to an impartial and reputable physician in New
York County, New York (the "Deciding Doctor") chosen by mutual agreement of the
Company and you or, failing such agreement, the Deciding Doctor shall be chosen
by two physicians from New York County, New York (one of whom shall be selected
by the Company and the other by you). The decision of the Deciding Doctor
regarding your capacity or incapacity shall be final and binding on the Company
and you. You shall submit to any medical examinations reasonably necessary to
enable the Deciding Doctor to make a decision regarding your capacity or
incapacity. If your employment is terminated under this Section 5(b), all
compensation and rights to benefits from the Company shall cease on the date of
your death or the date specified in the notice of termination for disability
(other than as may have already accrued as of the date of termination or as
expressly provided in plans in which you participated at the date of
termination).
(c) Termination by the Company for "Cause". The Company may terminate your
employment for "cause"; provided, however, the Company shall have given you
written notice specifying in reasonable detail the reason therefor, and ten (10)
days after receipt of such notice in which to cure such "cause", if capable of
cure. For the purposes of this Agreement, an event or occurrence constituting
"cause" shall mean knowingly or recklessly causing material injury to the
Company; willful misconduct in the performance of, or a willful failure to
perform, your duties; commission of dishonest or fraudulent conduct whether or
not in connection with your employment, or unlawful behavior involving moral
turpitude whether or not in connection with your employment; or breach or
violation of this Agreement. If your employment is terminated under this Section
5(c), all compensation and rights to benefits from the Company shall cease on
the date of termination (other than as may have already accrued as of the date
of termination or as expressly provided in plans in which you participated at
the date of termination); provided,
however, that the restrictions on your activities contained in Section 4 hereof
shall continue in effect as provided therein.
6. ASSIGNMENT. This Agreement is a personal contract, and except as
specifically set forth herein, your rights, obligations and interests herein may
not be sold, transferred or assigned. The Company may freely assign this
Agreement and any of its rights, obligations and interests hereunder. This
Agreement shall be binding upon and inure to the benefit of each party's
successors and permitted assigns.
7. ENTIRE AGREEMENT; GOVERNING LAW; CAPTIONS. This Agreement contains the
entire agreement between the parties with respect to your employment by the
Company, and the validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New York. You hereby
agree that any agreement or arrangement existing prior to the date hereof
regarding your employment by the Company is hereby terminated and superseded by
this Agreement. This Agreement may not be changed orally, but only by agreement
in writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought. Section and paragraph headings are for
convenience of reference only and shall not be considered a part of this
Agreement.
8. NOTICES. Any notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given (a) on the same day if
given by hand, (b) on the third business day after mailing if given by
registered or certified mail, return receipt requested, postage prepaid, (c) on
the next business day after it was deposited with the courier service if sent by
reputable overnight courier, or (d) when sent if given by facsimile with
confirmation, addressed to you at 00000 Xxxxxxx Xxxxxxx, Xxx Xxxx Xxxxxxxxxx, XX
00000, or to the Company at its offices at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: General Counsel (fax no. 000-000-0000), with a copy to:
Xxxxx & Xxxxxx LLP, One Chase Xxxxxxxxx Xxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. Xxxxx, Esq. (fax no.: 000-000-0000) or such other
address as shall have been specified in writing by either party to the other.
9. ARBITRATION. Except as provided by Section 4(e) of this Agreement, any
dispute or controversy under or in connection with this Agreement shall be
settled exclusively by arbitration in New York, New York by one arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered upon the arbitrator's award in any court having
jurisdiction. The costs and expenses (including reasonable attorneys' fees and
disbursements) of the prevailing party in any such dispute or controversy shall
be reimbursed by the other party.
10. RIGHT TO WITHHOLD. The Company shall have the right to make all appropriate
withholdings from your salary and other compensation under federal, state and
local tax laws.
If the foregoing accurately reflects the agreement between us, please confirm
your acceptance and agreement by signing the attached copy of this Agreement and
return the same to me.
5
Sincerely,
PartMiner, Inc.
/s/ Xxxxxx Xxxxxxxxx
By:_________________________ Name: Xxxxxx Xxxxxxxxx
Title: President
ACCEPTED AND AGREED:
/s/ Xxx Xxxxxx
____________________________
Xxx Xxxxxx
