EXHIBIT 10.43
RAVISENT TECHNOLOGIES INC.
Employment Agreement
THIS EMPLOYMENT AGREEMENT (the "Agreement") is dated as of the 2nd day
of January, 2002, and is by and between RAVISENT Technologies Inc. and its
wholly owned subsidiaries to which this agreement may be assigned, a Delaware
corporation with its principle office located at 00 Xxxxxx Xxxxxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (hereinafter "Company") and Xxxx XxXxxx with an address at
000 Xxxx Xxxxx Xxxxxxx Xxxxxx, XX 00000 (hereinafter "Employee").
W I T N E S S E T H
WHEREAS:
A. Company wishes to retain the services of Employee to render
services for and on behalf of Company, in accordance with the following terms,
conditions and provisions; and
B. Employee wishes to perform such services for and on behalf
of Company, in accordance with the following terms, conditions and provisions.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained the parties hereto intending to be legally bound
hereby agree as follows:
I. EMPLOYMENT. Company hereby employs Employee and Employee accepts
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such employment and shall perform his duties and the responsibilities provided
for herein accordance with the terms and conditions of this Agreement.
II. EMPLOYMENT STATUS. Employee shall at all times be Company's
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employee subject to the terms and conditions of this Agreement.
III. TITLE AND DUTIES. Company agrees to employ Employee and Employee
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accepts such employment as a full time employee and agrees as per the terms and
conditions of this agreement to serve as and have the title of Vice President
Human Resources and perform diligently, faithfully, and to the best of his/her
ability, duties as reasonably assigned and instructions given by the
President/CEO of Company or other Company officer as authorized by Company's
Board of Directors.
IV. TERM OF SERVICES. The initial term of this Agreement is for a
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period commencing on January 2, 2002 and ending on December 31, 2004, subject to
the termination section of this agreement, with the parties agreeing to confirm
any subsequent extension of this initial term in a signed written agreement
setting forth any amended or supplemental conditions.
V. BASE COMPENSATION. Employee's base salary for rendered services
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for the initial term of this agreement shall be one hundred fifty thousand
dollars ($150,000), an annual amount payable in accordance with Company's
payroll procedures and policies as implemented during the term of this
agreement. All reference to payments in this Agreement is in U.S. dollars.
VI. ADDITIONAL COMPENSATION. The Company and its Board of Directors
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shall complete discretion to grant Employee a bonus, or any other specific
additional compensation packages proposed for payment or for vesting to
Employee, during the term of this Agreement.
VII. EMPLOYER PERQUISITES. Employee shall be entitled to and shall
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receive all employer perquisites as would normally be granted to employees of
Company. Such perquisites to include the following:
1. Health insurance under terms and conditions as provided to
other employees of Company;
2. Vacation pursuant to Company's stated policy;
3. You are eligible for an end of year bonus of 25% based on
meeting mutually agreed to goals and objectives;
4. 30,000 stock options (effective upon Board approval) under
RAVISENT's 1999 Stock Option Plan, subject to RAVISENT's
standard vesting schedule. Such options will be Incentive
Stock Options, to the extent permissible by law and
RAVISENT's 1999 Stock Option Plan (grant effective upon date
of hire and approval by the Board of Directors);
5. 10,000 non-qualified stock options with a strike price of
one-cent ($0.01), vesting at 1/24 per month (grant effective
upon date of hire and approval by the Board of Directors);
6. Paid holidays pursuant to Company's stated policy;
7. $600 monthly car allowance and
8. Such benefits, as the Company generally makes available to
its employees at the same level.
VIII. EXTENT OF SERVICES. Employee shall devote his entire business
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time, attention, and energies to the business of Company, but this shall not be
construed as preventing Employee from investing his assets in the future as a
passive investor in such form or manner as he sees fit as long as the
investments will not require any personal service from Employee. However,
Employee agrees not to knowingly invest in any entities that compete directly
with Company or affiliated or related companies.
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IX. TERMINATION.
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1. A termination for "Cause" shall mean a termination for any
of the following reasons: (i) Employee's material failure to perform
satisfactorily the duties of his position after receipt of a written warning to
perform satisfactorily; (ii) Employee engaged in misconduct; (iii) Employee is
convicted of a felony; (iv) Employee commits an act of fraud against, or
misappropriates property belonging to, Company; or (v) Employee commits a
material breach of this Agreement or any confidentiality or proprietary
information agreement between Employee and Company. Company will provide written
notice of the reason for termination in the case of any termination for Cause. A
termination of Employee's employment for any reason other than the foregoing
shall be a termination "without Cause".
2. In the event Company terminates Employee's employment
hereunder without Cause, Employee will continue to be paid his salary and
benefits by Company for a period of six months after such notice of termination
is given or until Employee shall commence employment of a comparable nature and
salary with another entity, whichever shall first occur. In this regard, it is
understood and agreed that Employee shall use his best efforts in attempting to
locate such other employment and Company agrees to cooperate in helping Employee
in the pursuit of any such position and Company agrees to provide the requisite
references and if such employment is of a lesser salary than his then current
salary at Company, Company agrees to reimburse Employee for the difference
between such salaries for the six month period specified above. It is agreed
that any stock options awarded Employee will continue to vest and be exercisable
during this six-month period.
3. It is understood and agreed that this is a personal services
contract, and that Company shall have the right to terminate this agreement on
10 days notice to Employee, if appropriate, in the event of the disability or
death of Employee which would otherwise prevent him from performing his or her
duties. For purpose of this provision, "disability" shall be defined in
accordance with the definition of "disability" as contained in Company's
disability insurance policy, In the event of Employee's death, any guaranteed
monies due under this agreement would be paid directly to Employee estate as
probated.
X. CONFIDENTIAL INFORMATION.
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1. The nature of the work performed and any information
belonging to Company with which Employee may or have become familiar will be
treated as confidential and may not be disclosed to third parties without the
written consent of Company, whether or not this Agreement is in effect. If any
portion of the work performed under this Agreement is of a classified or
confidential nature, or develops into such, Employee agrees to preserve the
security of such work in compliance with all applicable laws and regulations of
the United States.
2. Employee agrees that Employee shall keep in strictest
confidence all information relating to the products, methods of manufacture,
marketing and sales plans, financial information, customer and supplier
information, pricing information, software, trade secrets or secret processes
(except information in the public domain) or the business or affairs of Company
which may be acquired in connection with or as a result of his employment or
otherwise. During the term of this Agreement and at any time thereafter, without
the prior
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written consent of Company, Employee will not publish, communicate, divulge,
disclose or use any of such information which has been designated as secret,
confidential, proprietary and/or trade secret, or which from the surrounding
circumstances in good conscience ought to be treated as secret or confidential.
Upon termination of this Agreement Employee will return to Company all
documents, graphic materials, or other materials containing or comprising such
confidential information.
3. Employee agrees and understands that Company does not desire
to receive the proprietary rights or trade secrets of third patties if not so
authorized, and Employee agrees not to disclose any such proprietary rights or
trade secrets to Company.
XI. NON-COMPETITION.
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1. Employee acknowledges and agrees that by entering into this
Agreement with Company and engaging in the employment relationship contemplated
hereby, Employee will be performing significant duties on behalf of Company, and
Employee will be exposed to certain valuable know-how and information relating
to a highly competitive industry. Employee also acknowledges and agrees that the
covenants set forth in this section are a material part of the consideration
bargained for by Company, and without Employee's agreement to be bound by such
covenants, Company would not have agreed to enter into this Agreement or to
engage Employee's services.
2. Employee agrees that during the term of this Agreement, and:
(a) for two (2) years after any termination of this Agreement for Cause; or (b)
for one (1) year after any termination of this Agreement without Cause, Employee
will not, directly or indirectly, (i) solicit, divert, recruit, induce,
encourage or attempt to influence any client, customer, employee, consultant,
independent contractor, salesman or supplier of Company, to cease to do
business, decrease the level of business, or terminate his or her employment or
otherwise cease his, her or its relationship with Company, as the case may be,
or (ii) engage in (as a principal, agent, owner, consultant, partner, director,
officer, employee, stockholder, investor, lender or otherwise), alone or in
association with any person or entity, or be financially interested in or
otherwise connected with any business in any activity similar to or in
connection with the specific activities of Company, and which such business
activity is to produce, manufacture, import, market or distribute in the United
States or Europe or Asia any product or service (A) which was produced,
manufactured, imported, marketed or distributed by or for Company at any time or
(B) which Company as of the date of termination had plans to produce,
manufacture, import, market or distribute during the term of this section;
provided, however, that nothing contained in this Agreement shall prevent
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Employee from holding for investment up to 5% of any class of equity securities
of a company whose securities are publicly traded (other than Company as to
which there shall be no such limitation).
XII. REMEDIES. Employee acknowledges and agrees that: (a) the
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covenants set forth in sections X and XI of this Agreement are reasonable and
are essential to the business interests and operations of Company; (b) Company
will not have any adequate remedy at law if Employee violates the terms hereof
or fails to perform any of Employee's obligations hereunder; and (c) Company
shall have the right, in addition to any other rights it may have under
applicable law, to obtain from any court of competent jurisdiction preliminary
and permanent injunctive
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relief to restrain any breach or threatened breach of or otherwise to
specifically enforce any such covenant or any other of Employee's obligations
under this Agreement, as well as to obtain damages and an equitable accounting
of all earnings, profits and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which Company may be entitled.
XIV. NO CONFLICT. Employee represents and warrants to Company that
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he is not a party to or otherwise bound by any other employment or services that
may, in any way, restrict his right or ability to enter into this agreement or
otherwise be employed by Company.
XV. NOTICES. Any written notice required to be given pursuant to
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this agreement shall be hand delivered or sent via fax or E-mail, or delivered
by a national overnight express service such as Federal Express.
XVI. JURISDICTION AND DISPUTES. This agreement shall be governed by
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the laws of the Commonwealth of Massachusetts. All disputes hereunder shall be
resolved in the applicable state or federal courts of Massachusetts. The parties
consent to the exclusive jurisdiction of such courts, agree to accept service or
process by mail, and waive any jurisdictional or venue defenses otherwise
available. The parties reserve the right to mutually agree to binding
arbitration in accordance with the policies of the American Arbitration
Association.
XVII. AGREEMENT BINDING ON SUCCESSORS. This agreement shall be
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binding on and shall inure to the benefit of the parties hereto, and their
heirs, administrators, and permitted successors and assigns.
XVIII. WAIVER. No waiver by either party of any default shall be
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deemed as a waiver of any prior or subsequent default of the same or other
provisions of this agreement.
XIX. SEVERABILITY. If any provision hereof is held invalid or
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unenforceable by court of competent jurisdiction, such invalidity shall not
affect the validity or operation of any other provision, and such invalid
provision shall be deemed to be severed from the agreement.
XX. ASSIGNABILITY. This agreement and the rights and obligations
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thereunder are personal with respect to Employee and may not be assigned by any
action of Employee or by operation of law. Company shall, however, have the
right to assign this agreement to a successor in interest to the business or
assets of Company or to any affiliate of Company.
XXI. INTEGRATION. This agreement constitutes the entire
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understanding of the parties and is intended as a final expression of their
agreement. It shall not be modified or amended except in writing signed by the
parties thereto and specifically referring to this agreement. This agreement
shall take precedence over any other documents that may be in conflict
therewith.
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IN WITNESS WHEREOF, Company and Employee confirm the foregoing
accurately sets forth the parties' respective rights and obligations and agrees
to be bound by having the evidenced signature affixed thereto.
RAVISENT TECHNOLOGIES INC.
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxx XxXxxx
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Name: Xxxxxx X. Xxxxxxx Xx. Xxxx XxXxxx
Title: CEO and Chairman of the Board
Date: 1/19/01 Date: 1/19/01
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