EMPLOYMENT AGREEMENT
AGREEMENT made this 29th day of June 2006, by and between Thinkpath,
Inc., an Ohio corporation (hereinafter alternatively called the "company" or
"Employer") and Xxxx X. Xxxxxxx, an individual residing at 000 Xxxxx Xxxx,
Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter called the "Employee").
WITNESSETH
Employer desires to employ Employee and Employee desires to accept such
employment on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the promises and mutual covenants
set forth in this Agreement, there parties hereto agree as follows:
1. EMPLOYMENT
Employer hereby employs Employee, and Employee hereby accepts such
employment, as Vice President of Business Development, and in such capacities
and for such other duties and services as shall from time to time be mutually
agreed upon by Employer and Employee. Specifically, the Employee shall serve as
the Vice President of Business Development of the Company and shall have all
powers and authority incidental thereto, including but not limited to overseeing
business development, sales, and marketing on a corporate level. The Employee
shall be required to report to and shall be subject to the supervision of Xxxxxx
Trick, President and Chief Operating Officer, who has the authority to supervise
or direct Employee in the performance of his duties. In addition, the Employee
shall regularly consult with Mr. Trick with respect to the Company's business
and affairs.
2. FULL TIME OCCUPATION
Employee shall devote Employee's entire business time, attention and
efforts to the performance of Employee's duties under this Agreement, and shall
serve Employer faithfully and diligently and shall not engage in any other
employment while employed by the Employer.
3. COMPENSATION AND OTHER BENEFITS
(A) SALARY. Employer shall pay to Employee, as compensation for the
services rendered by Employee, during Employee's employment under this
Agreement, a salary of $120,000 per annum to be paid bi-weekly or in such other
periodic installments upon which Employer and Employee shall mutually agree;
(B) BONUSES AND COMMISSIONS. Employee shall be entitled to certain
bonuses and commissions as set forth on Exhibit A hereto;
(C) BENEFITS. Employee shall be entitled to all benefits provided by
Employer to employees of the same or similar title as set forth on Exhibit A
hereto;
(D) REIMBURSEMENT OF EXPENSES. The Employee may incur reasonable
expenses furthering the Company's business, including expenses for
entertainment, travel and similar items. The Company shall reimburse Employee
for all business expenses if Employee presents an itemized account of
expenditures, pursuant to Company policy. An extraordinary expense in excess of
$1,000 must receive prior approval in accordance with Company policy;
(E) AUTOMOBILE ALLOWANCE. Employee shall be entitled to a $500.00
monthly automobile allowance inclusive of any lease payments:
(F) PARK AVENUE CLUB. Employer agrees to continues and maintain
membership in the Park Avenue Club for business purposes;
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(G) VACATION. Employee shall be entitled to a yearly vacation of four
(4) weeks with pay. 4. TERMS OF EMPLOYMENT
(A) EMPLOYMENT TERM. The term of Employee's shall commence on June 29,
2006 and shall continue until June 29, 2009 (the "Initial Term") and from year
to year thereafter, unless and until terminated by either party as set forth
below. The term of employment will be automatically extended for an additional
annual period on terms no less favorable than those contained in this Employment
Agreement provided, however, that either party may terminate this Agreement at
the end of its initial term or any subsequent annual term by giving three (3)
months (ninety days) prior written notice of its election to do so.
(B) TERMINATION UNDER CERTAIN CIRCUMSTANCES. Notwithstanding anything
to the contrary herein contained:
(i) Employee's employment shall be automatically terminated, without
notice, effective upon the Employee's death;
(ii) If Employee shall breach or violate any of the provisions of this
Agreement, or fail to perform in a manner reasonably satisfactory to Employer
any of the duties required of the Employee and such breach, violation or failure
shall continue for a period of ten (10) days after the Employer shall have given
Employee written notice specifying the nature thereof in reasonable detail,
Employer may, at its option, upon notice to Employee, terminate Employee's
employment if such termination is approved by a majority of the Employer's Board
of Directors, effective on the date of such an approval.
(C) TERMINATION FOR CAUSE. The Employer shall have the right to
immediately terminate Employee "for cause" as defined as follows:
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(i) an act or acts of personal dishonesty taken by the Employee and
intended to result in substantial personal enrichment of the Employee at the
expense of the Company;
(ii) intentional violation by the Employee of the Employee's material
obligations under this Agreement which are demonstrably willful and deliberate
on the Employee's part and which are not remedied in a reasonable period of time
after receipt of written notice from the company, or
(iii) the conviction of the Employee for a crime of the first or second
degree involving an act of moral turpitude.
(D) COMPENSATION UPON TERMINATION. In the event that Employee is
terminated for any reason other than "for cause", as defined in Paragraph 4(d)
above, or in the event Employer terminates this Agreement at the end of its
initial term or any subsequent annual term in accordance with paragraph 4(a)
above, Employee shall be entitled to a lump sum payment within thirty (30) days
of termination equivalent to 50% of his annual salary. In the event of
termination "for cause", or because of the death of the Employee, then Employee
shall not be entitled to any such compensation. However, Employee shall be
entitled to the reimbursement of any expenses pursuant to Paragraph 3(d) hereof
and unpaid vacation.
5. NON-COMPETITION AND CONFIDENTIAL INFORMATION
(A) NON-COMPETITION IF PAID COMPENSATION UPON TERMINATION. In the event
Employee is paid compensation upon termination in accordance with Paragraph 4(d)
above, Employee agrees as follows: During the term of the Employee's employment
Employer and for the period ending twelve (12) months after the termination of
Employee's employment with Employer, regardless of the reason therefore,
Employee shall not (whether directly or indirectly) canvas, solicit, employ or
retain any client, customer or employee of the Employer regardless of location.
As used herein, customer of Employer shall mean any person, firm or entity that
purchased goods or services from Employer during the period of the Employee's
employment with Employer. However, it is agreed that upon termination of
Employee's employment with Employer, regardless of the reason therefore,
Employee may become employed with, or may otherwise be retained by, any client
or customer of Employer in a capacity which does not compete with Employer.
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(B) NON-COMPETITION IF NOT PAID COMPENSATION UPON TERMINATION. In the
event Employee is not paid compensation upon termination in accordance with
Paragraph 4(d) above, Employee agrees as follows: During the term of Employee's
employment with Employer, Employee shall not (whether directly or indirectly, as
owner, principal, agent, stockholder, director, officer, manager, employee,
partner, participant, or in any other capacity) engage or become financially
interested in any competitive business conducted within the Restricted Territory
or solicit, canvas or accept, or authorize any other person, firm or entity, to
solicit, canvas or accept, from any customers of Employer, any business within
the Restricted Territory for Employee for any other person, firm or entity.
Additionally, for the period ending twelve (12) months after termination of
Employee's employment with Employer, regardless of the reason therefore,
Employee shall not, as part of a business competing with Employer, canvas,
solicit, or entice any client or customer with whom Employer did business during
Employee's employment with Employer and shall not solicit, entice or retain any
other employee of Employer. However, it is agreed that upon the termination of
Employee's employment with Employer, regardless of the reason therefore,
Employee may become employed with, or otherwise retained by, any client or
customer of the Employer in a capacity which does not compete with Employer.
(C) CONFIDENTIAL INFORMATION. Employee shall maintain in strict secrecy
all confidential or trade secret information relating to the business of
Employer (the "Confidential Information") obtained by Employee in the course of
the Employee's employment, and Employee shall not, unless first authorized in
writing by Employer, disclose to, or use for Employee's benefit or for the
benefit of any person, firm or entity at any time either during or subsequent to
the term of the Employees' employment, any Confidential Information, except as
required in the performance of Employee's duties on behalf of Employer. For
purposes hereof, Confidential Information shall include without limitation any
trade secrets, knowledge or information with respect to processes, inventions,
formulae, machinery manufacturing techniques or know-how; any business methods
or forms; any names or addresses of customers or data on customers or suppliers;
and any business policies or other information relating to or dealing with the
purchasing, sales or distribution or practices of Employer.
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(D) RETURN OF BOOKS AND PAPERS. Upon the termination of Employee's
employment with Employer for any reason, Employee shall deliver promptly to
Employer all catalogues, manuals, memoranda, drawings, and specifications; all
cost, pricing and other financial data; all customer information; all other
written or printed materials which are the property of Employer (and any copies
of them); and all other materials which may contain Confidential Information
relating to the business of Employer, which Employee may then have in Employee's
possession whether prepared by Employee or not.
(D) DISCLOSURE OF INFORMATION. Employee shall disclose promptly to
Employer, or its nominee, any and all ideas, designs, processes and improvements
of any kind relating to the business of the Employer, whether patentable or not,
conceived or made by Employee, either alone or jointly with others, during
working hours or otherwise, during the entire period of Employee's employment
with Employer.
(E) ASSIGNMENT. Employee hereby assigns to Employer or its nominee, the
entire right, title and interest in and to all discoveries and improvements,
whether patentable or not, which Employee may conceive or make during Employee's
employment with Employer, and which relate to the business of Employer.
(F) EQUITABLE RELIEF. In the event of the violation of any of the
restrictions contained in this paragraph, Employer shall be entitled to
preliminary and permanent injunctive relief as well as damages and an equitable
accounting of all earnings, profits and other benefits arising from such
violation, which right shall be cumulative and in addition to any other rights
or remedies to which Employer may be entitled. In the event of a violation of
any provision of subparagraph (a), (d) or (e) of this paragraph, the period for
which those provisions would remain in effect shall be extended for a period of
time equal to that period beginning when such violation commenced and ending
when the activities constituting such violation shall have been finally
terminated in good faith.
(G) RESTRICTIONS SEPARABLE. Each and every restriction set forth in
this paragraph is independent and severable from the others, and no such
restriction shall be rendered unenforceable by virtue of the fact that, for any
reason, any other or others of them may be enforceable in whole or in part.
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6. MISCELLANEOUS
(A) NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received when delivered against receipt
or when deposited in the United States mails, first class postage prepaid,
addressed as set forth below:
(i) If to Employer:
c/o Thinkpath, Inc.
0000 Xxxx Xxxxx Xxxx, 0xx Xx.
Xxxxxx, Xxxx 00000
(ii) If to Employee:
Xxxx X. Xxxxxxx
000 Xxxxx Xxxx
Xxxxxxx, XX 00000
Either party may alter the address to which communications or copies
are to be sent by giving notice of such a change of address in conformity with
the provisions of this paragraph for the giving of notice.
(B) INDULGENCES. Neither any failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence.
(C) CONTROLLING LAW. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the State of New Jersey.
(D) BINDING NATURE OF AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns except that no party may assign
or transfer such party's rights or obligations under this Agreement without the
prior written consent of the other party.
(E) EXECUTION IN COUNTERPART. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected herein as the signatories.
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(F) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable in whole or in part.
(G) ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements and conditions, expressed or implied, oral or written, except as
herein contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing.
(H) PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
(I) GENDER. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
(J) NUMBER OF DAYS. In computing the number of days for the purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sundays or holiday, then the final day shall be deemed to be the next
day which is not a Saturday, Sunday or holiday. IN WITNESS THEREOF, the parties
have executed this Agreement as of the date first written above.
THINKPATH, INC.
By: ____________________ By: ____________________
Name: _________________ Name: Xxxx X. Xxxxxxx
Title: __________________ Title: Vice President Business Development
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