1
EXHIBIT 6.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT was entered into the 12th day of February
1999, by and between MIRACOM CORPORATION (hereinafter, the "Employer") and
XXXXXXX X. XXXXX (hereinafter, the "Employee").
In consideration of the Employee's employment and possibility for
promotion, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Employee hereby agrees as
follows:
1. PURPOSE. The purpose of this Agreement is to set forth the terms and
conditions of Employee's employment and to define the obligations between
Employee and Employer regarding trade secrets, as defined in Florida Statutes
Section 688.002(4), including, without limitation, Confidential Information (as
defined herein) belonging to the Employer, inventions and intellectual property
created, in whole or in part, by the Employee, communication with the Employer's
customers and retention of the employees of the Employer. Employee recognizes
that the business of Employer and the nature of Employee's employment will
permit Employee to have access to trade secrets and Confidential Information of
Employer and to its Clients, and that such trade secrets and Confidential
Information are the exclusive property of Employer, disclosure of which would be
prejudicial to Employer's business interests and cause the Employer irreparable
harm. Notwithstanding any other provision of this Agreement, the Employer and
Employee agree that Employee is not prohibited from owning, operating or
performing services for the unrelated business(es) in which he is currently
involved and which are specifically identified on SCHEDULE 1 hereto.
2. DEFINITIONS
(a) "EMPLOYER" shall mean MIRACOM CORPORATION and all of its
divisions, subsidiaries, affiliates and any successors or
assigns.
(b) "CLIENT" shall mean any person or entity with whom Employer
conducts business or from whom Employer or Employee obtains
information concerning the business and industry in which
Employer operates, including, but not limited to, customers,
consultants, advisors and suppliers of the Employer.
(c) "TRADE SECRET" shall have the meaning set forth in Florida
Statutes Section 688.002(4), and shall include, without
limitation, ideas, information, compilations, computer
programs and related data bases which are not described in any
literature published and distributed publicly by Employer and
which are not readily ascertainable from inspection of
commercially available sources, including, but not limited to,
computer programs written by and for the Employer, data bases,
generated reports, related proprietary information
2
and marketing studies.
(d) "CONFIDENTIAL INFORMATION" shall mean all information
pertaining to the business of Employer or Clients which is of
value to Employer, is not generally known to Employer's
competitors or to the public, and is treated as confidential
by Employer and Clients, including, but not limited to, (i)
information pertaining to product research and development;
(ii) existing and future business and marketing plans; (iii)
financial, accounting, sales and purchasing data; (iv)
customer and supplier identity; (v) personnel matters; (vi)
techniques, policies and procedures related to the operation
of Employer and Clients; (vii) terms of relationships with
Clients; (viii) identity of prospective Clients; (ix) identity
of business opportunities available to Employer; and (x)
inventions and intellectual property of the Employer.
(e) "INVENTION" shall mean any discovery, idea, improvement or
contribution, whether or not patentable, including, but not
limited to, any computer program, process, method, formula or
technique, as well as improvements thereto, which is new or
which Employer reasonably believes may be new.
(f) "WORK" shall mean any written, typed or printed material
prepared, in whole or in part, by Employee during the term of
his employment hereunder including, but not limited to,
technical descriptions of products, computer software, user
guides, illustrations, advertising materials, training
manuals, contracts and any contributions to any such material.
3. TRADE SECRETS. During and at any time subsequent to termination of
his employment by Employer, Employee will not disclose or otherwise
misappropriate any Trade Secret of the Employer for his own use or for the use
of any person, corporation, partnership, firm or other entity.
4. CONFIDENTIAL INFORMATION. During his employment, and for a two (2)
year period following termination of employment, Employee will not disclose or
misappropriate any Confidential Information for his own use or for the use of
any person, corporation, partnership, firm or other entity. Employee shall not
remove any writings containing Confidential Information from the premises or
possession of Employer or its Clients, or make copies or memoranda thereof.
Furthermore, Employee will deliver promptly to Employer, at termination of his
employment, or at any time Employer may so request, all copies and originals of
any writings containing Confidential Information which Employee may possess or
have or have had under his control.
5. NON-SOLICITATION. During his employment, and for a two (2) year
period following termination of employment, Employee will not, either directly
or indirectly, consult, call upon, solicit, divert or take away or attempt to
solicit, divert or take away, any actual or targeted prospective Client of
Employer who has been a Client or targeted prospective Client of Employer at any
time during the 12-month period preceding termination of Employee's
2
3
employment.
6. NON-SOLICITATION OF EMPLOYEES. During his employment, and for a two
(2) year period following termination of employment, Employee will not hire,
attempt to hire or employ, directly or indirectly, any employee of Employer.
During such period, Employee will not encourage or induce any employee of
Employer to leave the employment of Employer.
7. ASSIGNMENT OF RIGHTS.
(a) INVENTIONS. The Employee agrees that if he conceives of an
Invention or reduces an Invention to practice during his
employment, Employee will promptly provide a written
description of the Invention ("Invention Summary") to an
officer of the Employer (other than Employee). The Employee
shall request that such officer acknowledge in writing the
receipt of such Invention Summary, a copy of which both
Employee and Employer shall retain in their records. The
Employer shall have thirty (30) days to provide written notice
to Employee whether or not it wishes to claim an interest in
the Invention. If timely notice is given to Employee that
Employer claims an interest in the Invention, Employee agrees
that such Invention, and all patent rights to such Invention,
shall become the exclusive property of Employer, and the
Employee hereby irrevocably assigns to Employer any and all of
Employee's rights to such Invention. Employee agrees that
should Employer elect to file an application for patent
protection, either in the United States or in a foreign
country, Employee will execute all necessary papers, including
formal assignments to Employer relating to such patent
applications. The Employee further agrees that he will
cooperate with any attorney or other person, will explain the
nature of the Invention, as required, will review applications
and other papers and will provide any other cooperation
reasonably required for the orderly filing and/or prosecution
of such patent applications.
(b) WORK. The Employee agrees that any Work created by Employee in
the course of performing Employee's duties hereunder and on
behalf of Employer are deemed "work for hire" within the
meaning of Title 17 of the United States Code. Accordingly,
all right, title and interest to the intellectual property
rights for any and all such Work, which have been or will be
prepared by Employee, shall be the property of Employer.
Employee further agrees to assign to Employer any and all
right, title and interest to any copyrights which Employee may
have in any such Work.
8. EMPLOYMENT AND TERM. The Employer agrees to employ and Employee
agrees to be employed by Employer for the period stated herein and upon the
terms and conditions provided in this Agreement. The term of full-time
employment shall be for a period of three (3) years, commencing on October 1,
1998 (the "Commencement Date"), and terminating on the third anniversary
thereof; PROVIDED THAT on each anniversary of the
3
4
Commencement Date, the term shall be extended for an additional one (1) year, so
that on each anniversary date, the remaining term is three (3) years, unless
otherwise terminated in accordance with Section 19 or Section 20, or as mutually
agreed between the parties.
9. COMPENSATION. The Employer shall pay the Employee for all services
contemplated under this Agreement as follows:
(a) A base salary of $124,800 per year, paid on a weekly basis
(the "Base Salary"). The Base Salary shall be increased, but
shall not be decreased, on each October 1st (the "Anniversary
Date") by a percentage which equals the sum of three percent
(3%) plus that percentage by which the Consumer Price Index,
for the Orlando, Florida area, published by the United States
government (the "INDEX"), for the immediately preceding
calendar year exceeds such Index for the next preceding
calendar year. If publication of the Index is discontinued,
the parties hereto shall accept comparable statistics on the
cost of living for the Orlando, Florida area as computed and
published by an agency of the United States government, or if
no such agency computes and publishes such statistics by any
regularly published national financial periodical that does
compute and publish such statistics;
(b) Such other benefits that the Employer may offer to other
senior level management of the Employer and/or members of the
board of directors of the Employer (the "Board of Directors"
or the "Board") from time to time, which benefits may but do
not necessarily include stock options in addition to those
contemplated by Section 17 and performance bonuses;
(c) When a 401(k) plan is established by Employer, a matching
contribution to Employee's 401(k) account equal to a minimum
of twenty-five percent (25%) of Employee's contribution to
such plan, subject to the dollar limitations as provided in
the Internal Revenue Code of 1986, as amended from time to
time; and
(d) A minimum of sixty percent (60%) of the cost of Employee's
medical insurance coverage provided by Employer's medical
plan.
The Employer shall be entitled to deduct and withhold amounts legally required
to be withheld for items such as income taxes, FICA, FUTA, etc.
10. DUTIES. The Employee is bringing unique experience, contacts and a
database to the Employer, which the Employee agrees to use to the benefit of the
Employer in the development of its commercial operations. The Employee is
engaged to act as the Senior Executive Vice President of Sales and Marketing of
the Employer and shall be responsible for the supervision of the Employer's
sales and marketing departments, with such additional responsibilities as the
President may determine to be in the best interest of the Employer, and which
are appropriate for an Senior Executive Vice President of Sales and Marketing of
an
4
5
organization of the type and size of the Employer. Employee shall report
directly to the President. The Employee agrees to serve capacities, without
further compensation, unless the Employee's duties and responsibilities
substantially change or increase, or unless mutually agreed otherwise. Employee
will use his best efforts to promote the interests of the Employer.
11. EXTENT OF SERVICES. The Employee shall not be required to devote
his entire time and attention to the Employer's business; PROVIDED, HOWEVER,
that Employee agrees to provide a minimum of forty (40) hours per week for
services on behalf of Employer (such forty (40) hours shall include time which
the Employee spends traveling from one destination to another destination on
behalf of the Employer but, other than travel time, shall not include time when
the Employee is not actually performing services on behalf of the Employer even
though the Employee may be away from home). Notwithstanding anything herein to
the contrary, the Employee will be called upon from time to time as an element
of his employment to develop business projects which will include the interests
of the Employee and the Employer or its subsidiaries, affiliates or joint
venture interests. Such activities are contemplated in this Agreement and form
an integral part of the Employee's employment.
12. WORKING FACILITIES. The Employee shall have a private and adequate
office, back-up staff, including secretarial assistance in all of the offices of
the Employer in which Employee will be expected to perform his services, and
other adequate services and facilities necessary in order for the Employee to
fulfill the activities contemplated under this Agreement. The Employee will also
have the use of Employer-provided lodging and vehicles and an expense account in
order to fulfill his obligations and responsibilities under this Agreement and
for the development and the commercialization of the Employer's services.
13. DISCLOSURE OF INFORMATION. The Employee and Employer acknowledge
that Employee is coming to his position with unique data, contacts and
experience, distinct from those possessed generally by the Employer. These
contacts, data and information of the Employee are unique to the Employee and
will always be so considered. However, the Employee shall not, during the term
of his employment, disclose or use all or any part of the Employee's unique
knowledge, services or skills that are conceived or reduced to practice during
the term of Employee's employment, to any person, firm, corporation, association
or other entity for any reason or purpose, unless mutually agreed upon in
advance and in writing by the parties to this Agreement. All new projects and
information which are developed by the Employee during his employment with the
Employer shall be considered the Employer's unique knowledge, services or skills
and shall not be taken, disclosed or developed for a project with any third
parties by the Employee, unless agreed upon in advance and in writing by the
Employer upon termination of the Employee's employment.
14. EXPENSES. The Employee may incur reasonable expenses for the
commercialization of the Employer's services and products, including reasonable
expenses for entertainment, travel and similar items. The Employer shall
reimburse the Employee for all such reasonable expenses, which have been
approved by Employer, within thirty (30) days of the Employee's presentation of
an itemized accounting of such expenditures. In the event Employee incurs
expenses on behalf of the Employer, or Employer pays for expenses of
5
6
Employee which are not reimbursable hereunder, Employee agrees to immediately
reimburse Employer for such expenses. As soon as reasonably practicable,
Employer shall secure a corporate charge card for Employee to use for
reimbursable expenses hereunder. The parties hereto acknowledge that if Employee
has loaned funds to the Employer prior to the execution hereof, the Employer
shall repay Employee such loans within ninety (90) days of the date hereof.
15. VACATIONS. The Employee shall be entitled each year to a vacation,
which period of time and date of scheduling will be mutually agreed upon by the
Employer and Employee; PROVIDED, HOWEVER, the Employee, in any case, shall be
entitled to not less than two (2) weeks vacation time per year, and cumulative
compensation for such vacation time shall be paid each year to the Employee if
such vacation is not taken; PROVIDED, FURTHER, that Employee shall be entitled
to carry over one (1) week of unused vacation from the preceding calendar year
to the current calendar year. Employee shall be paid the pro rata portion of his
regular Base Salary and all other benefits as specified in Section 9, hereunder,
during any vacation period. In the event vacation is not taken or vacation is
rolled over to the next year, compensation for such unused vacation, up to a
maximum of two weeks per calendar year, shall be paid on or before the end of
the calendar year if the Employee so desires and so requests in writing on or
before November 30 of that calendar year; PROVIDED; HOWEVER, that in the event
Employee has rolled over one (1) week's vacation from the preceding calendar
year, the Employee may be compensated for his unused vacation for the then
current calendar year (subject to the two week maximum per calendar year) plus
the one (1) week rolled over from the preceding calendar year and not used in
the then current calendar year.
16. OTHER BENEFITS. Employee shall be entitled to such other benefits
that the Employer may offer to its employees and its Board of Directors from
time to time, including, but not limited to, stock options, medical insurance
and disability insurance. The Employer agrees to pay Employee ten thousand
dollars ($10,000) per year as compensation for the performance of his services
as a member of the Board of Directors, which shall be paid on a pro rata basis
by the fifth (5th) day of the month following the month of board service. Such
compensation shall be in addition to the compensation to which Employee is
entitled under Section 9 hereof.
17. STOCK OPTIONS. Employer shall establish a stock option plan for its
employees, and/or officers (the "Stock Option Plan") and Employee shall be
entitled to participate in such Stock Option Plan.
18. DISABILITY. If the Employee is or becomes, by reason of illness or
incapacity, unable to perform the essential functions of his employment
hereunder, with or without reasonable accommodation, for a period of more than
four (4) weeks (a "Disability"), the compensation thereafter payable to him
during the continued period of such illness or incapacity shall be reduced
initially by twenty-five percent (25%) for the period beginning four (4) weeks
and ending six (6) months after such illness or incapacity begins and then by
fifty percent (50%) if the incapacity or illness continues during the period
beginning six (6) months and one (1) day and ending one (1) year after such
illness or incapacity begins. If the
6
7
Employee should be absent from his employment for a period of more than one (1)
year, the Employer will have the option to terminate this Agreement for
impossibility of execution but the Employer may nonetheless decide to continue
this Agreement with compensation after one (1) year of incapacity. In the event
the Employer secures a disability insurance policy mutually acceptable to
Employee and Employer, then Employer's financial obligations under this Section
18 shall terminate provided that the disability benefits under such policy equal
or exceed the Employer's financial obligations under this Section 18. In
addition to the foregoing disability payments, Employee shall retain the right
to retain any stock options that are exercisable on the date of termination of
employment.
19. TERMINATION OF EMPLOYMENT.
(a) BY EMPLOYER FOR CAUSE. During the term of this Agreement, the
Employer may terminate this Employee's employment for "Cause"
(defined below) upon thirty (30) days' written notice. In the
event that Employee's employment with the Employer is
terminated with Cause, the Employee shall receive only (A) his
Base Salary and benefits earned but unpaid up to the date of
termination of employment, (B) the prorated portion of any
bonuses earned but unpaid up to the date of termination of
employment, calculated based upon a closing of the books of
Employer as of the last day of the month in which termination
occurs and a proration of the annual goals, if any were
established for such year, based upon the portion of the year
that has expired prior to that date, and (C) reimbursement for
any expenses to which Employee is due reimbursement under
Section 14.
For purposes of this Section 19(a), the term "Cause"
shall mean any of the following:
(1) the Employee's willful or negligent
failure or refusal to comply with the written rules
and regulations of Employer from time to time
established by the Board that shall have been
previously delivered to Employee, and that shall not
be inconsistent with the terms or conditions of this
Agreement, and Employee shall not have cured such
failure or refusal within 30 days following receipt
of written notice from Employer of such failure or
refusal; PROVIDED, HOWEVER, that if such failure or
refusal is of such a nature that it cannot be cured
within such 30-day period, then, so long as Employee
shall have commenced such cure within such 30-day
period and shall have thereafter in good faith
continued such cure, Employee shall be deemed to have
cured such failure or refusal; or
(2) the final (non-appealable or foreclosed
from appeal) conviction of Employee of any felony
materially and adversely affecting the property,
reputation or goodwill of Employer or its successors;
or
7
8
(3) the Employee's willful failure or
refusal to perform or Employee's performance in a
grossly negligent manner a material part of his
duties pursuant to the provisions of this Agreement
and Employee shall not have cured such failure or
refusal within 30 days following receipt of written
notice from Employer of such failure or refusal;
PROVIDED, HOWEVER, that if such failure or refusal is
of such a nature that it cannot be cured within such
30-day period, then, so long as Employee shall have
commenced such cure within such 30-day period and
shall have thereafter in good faith continued such
cure, Employee shall be deemed to have cured such
failure or refusal; or
(4) Employee's violation of the terms of
Sections 3, 4, 5, 6, 7 or 13 of this Agreement.
(b) BY EMPLOYER WITHOUT CAUSE. In the event Employer
terminates the Employee's employment without Cause then, in
addition to clauses A through C in Section 19(a), above, (X)
the Employer shall be obligated to pay to the Employee
Employee's annual Base Salary (at the time of termination), on
a weekly basis or consistent with the Employer's payroll
practices at the time, for a period of three (3) years from
and after the date of termination (the "Severance Amount");
(Y) Employee shall have the right to retain any stock options
that were granted to Employee prior to the date of termination
of employment; and (Z) the Employer shall, at its sole cost
(except for Employee dependency coverage contributions, if
any, in effect prior to Employee ceasing to be employed by the
Employer hereunder) maintain in full force and effect from the
date Employee ceases to be employed by the Employer hereunder
and for six (6) months thereafter, all medical, health and
accident, and disability plans, programs, or arrangements in
which Employee is entitled to participate immediately prior to
Employee ceasing to be employed by the Employer hereunder,
provided that Employee's continued participation is possible
under the general terms and provisions of such plans and
programs. In the event that Employee's participation in any
such plan or program is barred (other than as a result of a
misrepresentation or misconduct of Employee), the Employer
shall arrange at its sole expense to provide him with benefits
substantially similar to those which he is entitled to receive
under such plans and programs for the six-month term,
including, without limitation, reimbursement of COBRA premium
payments. To the extent that Employee mitigates his damages
through the accrual or receipt of a salary, or the provision
of health or other benefits referenced hereinabove, through
self-employment or employment with another entity, the
Severance Amount and/or applicable benefits referenced
hereinabove shall be adjusted by off-set of amounts or
benefits received by Employee in mitigation. Upon written
request by Employer, Employee shall provide to Employer
information as to such mitigation within ten (10) days of
receipt of such request. If Employee's employment is
terminated without Cause, Employee shall be deemed released
from the non-competition provisions of
8
9
Section 22 of this Agreement upon such termination; PROVIDED,
HOWEVER, Employee shall not be deemed released from his
obligations under Sections 3, 4, 5, 6, 7 or 13 of this
Agreement.
(c) VOLUNTARILY BY EMPLOYEE. Employee may, at his option,
terminate his employment under this Agreement at any time upon
ninety (90) days prior written notice to Employer. If Employee
voluntarily terminates employment with Employer, then Employee
shall receive only (i) his Base Salary and benefits earned but
unpaid up to the date of termination of employment, (ii) two
weeks salary, calculated based on Employee's salary then in
effect at the time of termination of employment, (iii) the
prorated portion of any bonuses earned but unpaid at the time
of termination of employment, calculated in accordance with
subsection (a)(ii) above; and, if Employee voluntarily
terminates his employment pursuant to Section 20, Employee
shall also be entitled to retain any exercisable stock
options.
(d) If Employee is terminated for Cause, or if Employee
voluntarily terminates his employment (except in the event of
a Change of Control (defined below), any stock options granted
to Employee under a Stock Option Plan or otherwise shall
terminate immediately upon termination of employment.
(e) Employee's employment with the Company may not be
terminated for Cause under Section 19(a), above, or without
Cause under Section 19(b), above, without the approval of a
majority of the members of the Board of Directors then in
office.
20. TERMINATION BY EMPLOYEE UPON CHANGE OF CONTROL. The Employee may
terminate Employee's employment at any time by giving ten (10) days prior
written notice to the Employer upon a Change of Control. A "Change of Control"
means the occurrence of any of the following events after the date of this
Agreement:
(a) a change in control of the Employer occurring after the
date of this Agreement of a nature that would be required to be reported in
response to Item 1 of the Current Report on Form 8-K (or in response to any
similar item on any similar schedule or form) promulgated under the Securities
Exchange Act of 1934 (the "Act"), whether or not the Employer is then subject to
such reporting requirement;
(b) any "person" (as such term is used in Sections 13(d) and
14(d) of the Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Employer
representing twenty-five percent (25%) or more of the combined voting power of
the Employer's then outstanding securities without the prior approval of at
least two-thirds of the members of the Board in office immediately prior to such
person attaining such percentage (excluding for this purpose, any acquisitions
by (X) the Employer or its subsidiaries, (Y) any person, entity or "group" that
as of the date of this Agreement owns beneficial ownership, as defined in Rule
13d-3 of the Act, or (Z) any
9
10
employee benefit plan of the Employer or its subsidiaries;
(c) the Employer is a party to a merger, consolidation, sale
of assets or other reorganization, or a proxy contest, as a consequence of which
members of the Board in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter; or
(d) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board (including for this
purpose any new director whose election or nomination for election by the
Employer's stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the Board.
21. DEATH DURING EMPLOYMENT. Upon the death of Employee during the term
of employment, the Employer shall pay to Employee's estate the compensation that
would otherwise be payable to the Employee through the end of the month of his
death. In addition, three (3) months further compensation shall be paid in one
(1) lump sum to his surviving spouse or, if there is no surviving spouse, to the
surviving children of the Employee, or to his estate if there are no surviving
children.
22. NON-COMPETITION.
(a) During his employment, and for a period of two (2) years after
the expiration or termination of such employment (the
"Noncompetition Period"), Employee specifically agrees that
Employee shall not (except on the behalf of Employer or any of
its affiliated entities while Employee is employed by
Employer), either directly or indirectly, as a stockholder of
any corporation or partner of any partnership or as an
employee, owner, principal or agent, or in any other manner,
engage in any business within a radius of 100 miles from any
location of Employer's business (the "Geographic Area"), which
competes with, in any manner, any business conducted by
Employer at the time of termination of this Agreement.
Employee agrees that so long as Employee is working for
Employer, Employee shall not undertake the planning or
organizing of any business activity competitive with the
business of Employer. Employee agrees not to directly or
indirectly solicit any of Employer's employees to work for
Employee or for any business which is competitive with any
business conducted by Employer prior to the date on which
Employee's employment with Employer is terminated with
Employer within the Geographic Area and during the
Noncompetition Period.
(b) The periods of time during which Employee is prohibited from
engaging in such business practices pursuant to this Section
22 shall be extended by any length of time during which
Employee is in breach of any of such covenants. The
restrictive covenants contained within this Section 22 are
essential elements of
10
11
this Agreement, and that, but for the agreement of Employee to
comply with such covenants, Employer would not have entered
into this Agreement. If any portion of the covenants set forth
in this Section 22 are held by a court of competent
jurisdiction to be unreasonable, arbitrary or against public
policy, then such portion of such covenants shall be
considered divisible both as to time and geographical area.
Employer and Employee agree that, if any court of competent
jurisdiction determines that the Noncompetition Period or the
Geographic Area applicable to this Agreement is unreasonable,
arbitrary and/or against public policy, then a lesser time
period or geographical area which is determined to be
reasonable, non-arbitrary and not against public policy may be
enforced against Employee.
(c) Intentionally Omitted.
(d) Employee acknowledges that any violation of this Section 22
will result in irreparable injury to Employer for which there
is no adequate remedy at law. Employee agrees that, in the
event he breaches or threatens to breach this Section 22,
Employer, without posting a bond, shall be entitled to
injunctive relief, both preliminary and permanent, in addition
to any other remedies at law or in equity available to
Employer.
(e) If Employee's employment with Employer is terminated without
Cause, Employee shall be deemed released from his obligations
under this Section 22 upon such termination.
23. DISPUTES; ATTORNEYS' FEES. Except in the case of Employer's right
to seek injunctive relief under Section 22(d) and Section 24(b) of this
Agreement, the parties mutually agree to submit any controversy or claim arising
out of or proceeding forth from or relating to this Agreement or its breach to
be settled by arbitration (which may be binding if the parties mutually agree at
the time). Such arbitration shall be held in the County of Seminole, State of
Florida, utilizing the procedure and arbitrators acquainted with the American
Arbitration Association rules and procedure for arbitration. If binding
arbitration, judgment upon award rendered may be entered and enforced in any
court of competent jurisdiction. In the event any dispute arises under the terms
hereof, Employer shall continue to pay Employee the Base Salary and benefits to
which he is entitled hereunder until such time that a final determination is
made by an arbitrator hereunder; PROVIDED, HOWEVER, that if it is determined
that the termination of Employee's employment was justified, the Employee hereby
undertakes and agrees to repay to the Employer the amount of Base Salary that
was paid by Employer during the arbitration procedure. The non-prevailing party
shall be responsible for the prevailing party's reasonable legal fees and costs
(including post-judgment collection fees and costs).
24. ENFORCEMENT.
(a) Whenever there is any conflict between any provision
of this Agreement and any law, statute, governmental
rule, ordinance or
11
12
regulation, the latter shall prevail. In such event,
the affected provisions of this Agreement will be
curtailed and restricted only to the extent necessary
to bring them within the legal requirements, and the
remainder of this Agreement shall not be affected.
Should it be determined that any provision of this
Agreement is unenforceable, the Employee specifically
requests that the court or arbitrator making such
determination modify and reform the provision found
to be unenforceable, and in its modified form,
specifically enforce the Agreement.
(b) Employee acknowledges that any violation of Sections
3, 4, 5, 6, 7, 13 or 22 of this Agreement (referred
to individually and collectively in this subsection
(b) as "Sections") will result in irreparable injury
to Employer for which there is no adequate remedy at
law. Employee agrees that, in the event he breaches
or threatens to breach any of such Sections,
Employer, without posting a bond, shall be entitled
to injunctive relief, both preliminary and permanent,
in addition to any other remedies at law or in equity
available to Employer.
25. INDEMNIFICATION. Employee shall be indemnified in accordance with
the terms and provisions of that certain Indemnification Agreement, dated as of
the date hereof, between Employer and Employee.
26. CHOICE OF LAW. This Agreement and the performance hereunder and all
suits and special proceedings hereunder shall be construed in accordance with
the laws of the State of Florida. In any action, special proceeding or other
proceeding that may be brought arising out of, in connection with, or by reason
of this Agreement, the laws of the State of Florida shall be applicable and
shall govern to the exclusion of the law of any other forum, without regard to
the jurisdiction in which the action or special proceeding may be instituted.
All actions under this Agreement, if not resolved by arbitration, shall be taken
in a court of competent jurisdiction within Seminole County, Florida and
Employee hereby waives and agrees that he shall not assert that such forum is
inconvenient.
27. NOTICES. Any notice required or desired to be given under this
Agreement shall be deemed given if in writing and sent by certified U.S. mail,
or by Federal Express or other overnight delivery service to the Employee's
residence, or to the Employer's principal office, as the case may be.
28. WAIVER OF BREACH. Employer shall waive a breach by the Employee of
any provision of this Agreement only if such waiver is executed in writing by a
duly authorized officer of the Employer. Employee shall waive a breach by the
Employer of any provision of this Agreement only if such waiver is executed in
writing by Employee.
29. ASSIGNMENT. Both parties acknowledge that the services of the
Employee and the Employer are unique to this Agreement and neither party may
assign the rights or delegate
12
13
the duties of this Agreement to another. Notwithstanding anything herein to the
contrary, the Employee may perform his unique services under this Agreement for
any of the subsidiaries, affiliates or joint ventures of the Employer.
30. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties and may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
31. HEADINGS. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe the provisions hereof.
32. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
33. WAIVER OF CONFLICT OF INTEREST. The parties acknowledge that,
notwithstanding Employee's use of Employer's attorneys for personal legal
matters unrelated to this Agreement, the Employer may continue to use the legal
counsel of its choice in connection with the resolution of any disputes between
the parties hereto without such representation constituting an improper or
ethical conflict of interest.
34. FURTHER ACTIONS. Each party to this Agreement shall take such
further actions to execute, file, record, publish and deliver such additional
certificates, instruments, agreements and other documents as the other party
may, from time to time, reasonably request, in order to accomplish the purposes
of this Agreement.
13
14
35. APPOINTMENT TO BOARD OF DIRECTORS. Employee was appointed to the
Board of Directors in September 1998 and is entitled to receive the prorated
portion of the $10,000 annual director compensation.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the date and year indicated above.
EMPLOYEE: /s/ XXXXXXX X XXXXX
---------------------------------
XXXXXXX X. XXXXX
EMPLOYER: MIRACOM CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Co-chief Executive Officer
14
15
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement ("Amendment") was entered into
effective November 8, 1999, by and between MIRACOM CORPORATION (hereinafter, the
"Employer") and XXXXXXX X. XXXXX (hereinafter, the "Employee").
RECITALS
A. WHEREAS, on February 12, 1999, Employer and Employee entered into an
employment agreement (the "Employment Agreement"); and
B. WHEREAS, Employer and Employee desire to make certain modifications
to the Employment Agreement as hereinafter set forth.
NOW THEREFORE, in consideration of Employee's employment and
possibility of promotion, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, it is hereby agreed
that the Employment Agreement is amended in the following particulars:
1. Section 9 (COMPENSATION). Subsection 9(a) of the Employment
Agreement is hereby amended to change Employee's the Base Salary to $72,000 per
year, effective November 8, 1999, payable bi-weekly or otherwise in accordance
with Employer's standard payroll practices. Further amended and in accordance
with Employer's current standard payroll practice at the time, the employee
shall receive a base salary of $89,000 for the period August 30, 1999 through
October 24, 1999 and shall defer payment of the difference between the original
Base Salary ($124,800) and the newly adjusted amount ($89,000) for that same
time period. All other provisions of subsection 9(a) not amended hereby shall
remain the same.
2. Section 10 (DUTIES). Section 10 is hereby amended in its entirety as
follows:
"The Employee is engaged to act as the National Sales Manager
of Employer and as such shall be responsible for the
supervision of the Employer's sales and marketing departments,
with such additional responsibilities as the Employer may
determine to be in the best interest of the Employer, and
which are appropriate for a National Sales Manager of an
organization of the type and size of Employer. Employee agrees
to serve in such capacity, without further compensation,
unless the Employee's duties and responsibilities
substantially change or increase, or unless mutually agreed
otherwise. Employee shall report directly to the President.
Employee will use his best efforts to promote the interests of
the Employer."
3. Section 15 (VACATIONS). Section 15 is hereby amended in its entirety
as follows:
"(a) Employee shall be entitled each year to a vacation, which
period of time and
15
16
date of scheduling will be mutually agreed upon by Employer
and Employee; PROVIDED, HOWEVER, the Employee, in any case,
shall be entitled to not less than two weeks vacation time per
year, and cumulative compensation for such vacation time shall
be paid each year to the Employee if such vacation is not
taken in the applicable year or if not carried forward to the
next calendar year in accordance with this Section 15.
Employee shall be entitled to carry over one (1) week of
unused vacation to the next succeeding calendar year.
(b) Employee shall be paid the pro rata portion of his regular
Base Salary and provided all other benefits as specified in
Section 9 during any vacation period taken. Any payments made
to Employee in respect of vacation not taken or rolled over to
the next calendar year shall be paid to Employee in the last
pay period of the calendar year in which such vacation was not
taken. The maximum compensation payable to Employee in any
calendar year for unused vacation shall be two weeks of unused
vacation in such calendar year plus one week of unused
vacation, if any, that was rolled over as unused vacation from
the previous calendar year."
4. Section 16 (OTHER BENEFITS). Section 16 of the Employment Agreement
is hereby amended to eliminate the $10,000 fee for Employee's service on the
Board of Directors, such fees having terminated effective June 1, 1999. Employee
shall serve on the Board of Directors without additional compensation, except
for reimbursement of expenses incurred in attending meetings of the Board of
Directors and its committees. However, nothing in this Section 16, as amended,
is intended to prevent Employee's participation in any stock option plan as an
employee or as a director of Employer.
5. All other provisions of the Employment Agreement not herein amended
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereby have executed this Amendment to
Employment Agreement as of September 30, 1999 to be effective November 8, 1999.
EMPLOYEE: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
XXXXXXX X. XXXXX
EMPLOYER: MIRACOM CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Co-Chief Executive Officer
16
