Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 29th day of December, 1999, by
and between Xxxxxxx.xxx Inc., a Delaware corporation (the "Company), and Xxx
Xxxxxx (the "Employee").
1. EMPLOYMENT RELATIONSHIP.
Employee is hereby employed in the capacity of Chief Marketing Officer of the
Company until the termination of his employment pursuant to Section 3 hereof.
Employee will faithfully, fully, and to the best of his ability, experience and
talent perform and render such services and perform such duties for the Company
as the Chief Executive Officer shall reasonably direct. Employee will devote his
full business time, attention, knowledge and skill solely to the business of the
Company and will not engage in any other business activities for compensation or
profit.
2. COMPENSATION (US Dollars)
2.1. As compensation for the performance of his duties, Employee will
receive a base salary at an annual rate of $200,000 payable in
accordance with the Company's normal pay practices for a salaried
employee.
2.2. Employee shall be eligible for an incentive performance bonus for each
calendar year of his employment, with such bonus for 2000, if any,
prorated to reflect the number of days Employee is employed during
such year.
2.3. Employee will be entitled to participate in all fringe benefit
programs now or hereafter made available to other salaried employees
of the Company. A summary of benefits currently in effect is attached
or has been previously provided to Employee. Employee shall be
entitled to four (4) weeks of paid vacation per year.
2.4. Company will reimburse Employee for all travel and business expenses
incurred by him which are reasonable and necessary for carrying on the
business of the Company. Expenses will be reimbursed after
presentation by Employee of an itemized account of such expenses in
form and substance satisfactory to the Company, and Company's
determination that such expenditures were reasonable, ordinary and
necessary.
3. TERMINATION OF EMPLOYMENT
3.1. Company may terminate Employee's employment at any time, with or
without Cause (as defined hereunder). If Employee is terminated by
Company without Cause and other than by reason of the Employee's death
or disability, Employee shall be entitled to salary and benefit
continuation as provided in Section 3.6.
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3.2 For purposes of this Agreement, "Cause" shall mean (i) willful and
continued failure by Employee to perform his duties as Chief Marketing
Officer of the Company; (ii) gross misconduct or neglect of Employee
in carrying out his duties hereunder which is injurious to the
Company; (iii) a material breach by the Employee of his obligations
under Section 4 of this Agreement which is reasonably believed by the
Company to have caused, or to be likely to cause, material harm to the
Company, or (iv) conviction of a felony. Each of 3.2 (i) and (ii)
shall be deemed to exist provided the Company has provided written
notice to the Employee setting forth the perceived performance
deficiencies and the steps needed to remedy those deficiencies and the
Employee has failed to take immediate steps to remedy such
deficiencies. If the Employee is terminated for Cause, no further
salary, bonus, incentive performance bonus, or other compensation will
be payable under this Agreement except for any amount of base salary
and bonus which has accrued but not been paid prior to the date of
termination.
3.3 Employee may terminate his employment at any time with or without
"Good Reason" as defined in Section 3.4. If the Employee terminates
other than for Good Reason, no further salary, bonus, incentive
performance bonus, or other compensation will be payable under this
Agreement except for any amount of base salary and bonus which has
accrued but not been paid prior to the date of termination.
3.4 For purposes of this Agreement, termination for "Good Reason" is
defined as (i) assignment to the Employee of demonstrably onerous or
significantly demeaning on-going duties inconsistent with his status
as Chief Marketing Officer; or (ii) a reduction in Employee's total
compensation below the amounts set forth in Sections 2.1 and 2.2. If
the Employee resigns for Good Reason, Employee shall be entitled to
receive salary and benefit continuation as provided in Section 3.6.
3.5 Employee's employment shall be automatically terminated upon the
occurrence of either of the following events: (i) death of the
Employee, and (ii) disability of the Employee, as defined in the long
term disability policy carried by the Company for the Employee, or if
no such policy exists, disability which causes the Employee to be
unable to satisfactorily perform his job duties for a cumulative
period of three months in any period of six consecutive months as
reasonably determined by the Company in its discretion. In such cases,
no further salary, bonus or other compensation will be payable under
this Agreement except for any amount of base salary and bonus which
has accrued but not been paid prior to the date of the termination.
3.6 If the Employee is terminated by the Company other than for Cause or
if the Employee resigns for Good Reason, for the lesser of a period of
twelve (12) months from the date his employment terminates or until he
is gainfully employed (including as a consultant or independent
contractor), the Employee will be entitled to receive continuation of
his annual base salary then in effect, together with continuation of
life and health insurance benefits at the level in effect on the date
of termination or resignation; provided, however, that any benefit
payable
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hereunder shall terminate the date the Employee breaches any covenant
under Section 4 hereof. In the event the Company is unable to continue
the Employee's participation in any such insurance program after the
date of such termination or resignation, the Company shall provide
substantially equivalent insurance benefits or reimburse the Employee
for the cost of acquiring substantially equivalent benefits.
4 COVENANTS BY EMPLOYEE
4.1 Definitions: As used in this Agreement, the following terms shall have
the following meanings:
4.1.1 "Confidential Information" means trade secrets and all other
information disclosed to or known by the Employee as a result of
or through the Employee's employment by the Company, including
information about the Company's processes, projects, services or
products, including all information related to research,
development, inventions, production, purchasing, accounting,
finances, engineering, marketing, merchandising, and customers'
names and accounts but excluding general knowledge in the
industry in which the Company is engaged.
4.1.2 "Inventions" means any discoveries, concepts and ideas,
regardless of patentability, including but not limited to,
processes, methods, computer programs and techniques, and
improvements thereof concerning or relating to any activity of
the Company that the Employee may become acquainted with as a
result of employment by the Company.
4.2 The Employee expressly agrees that, except as required in the
performance of his duties to the Company, Employee will not at any
time, directly or indirectly, use, divulge, disseminate, disclose,
lecture upon, publish articles concerning or communicate or otherwise
make available to any person, firm or entity in any manner whatsoever
any Confidential Information without the prior express written
approval from the Company. The parties hereby stipulate that as
between them, all Confidential Information is important, material and
confidential and that the disclosure of such Confidential Information
materially adversely affects the effective and successful conduct of
business by the Company and its goodwill, and that any breach of the
terms of this paragraph is a material breach of this Agreement. The
Employee agrees to sign any secrecy or nondisclosure agreement
required by a customer of the Company as a condition of doing business
with the Company, and to provide the Company with a signed copy of
said agreement. The Employee agrees that all Confidential Information
is the exclusive property of the Company and upon termination of his
employment the Employee shall return to the Company all documents,
records, notebooks and other repositories containing Confidential
Information, including any and all copies thereof then in the
Employee's possession whether prepared by him or others.
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4.3 The Employee agrees not to assert any rights to, and expressly assigns
to the Company as the Company's exclusive property, all ideas,
innovations, discoveries, improvements, Inventions, trademarks,
computer programs and/or systems and other developments or
improvements conceived by the Employee, alone or with others, during
the term of his employment, whether or not during working hours, that
are within the scope of the Company's business operations or that
relate to any work or projects of the Company. The Employee agrees to
assist the Company, at the Company's expense, to obtain patents or
copyrights on any protectable ideas and Inventions, to obtain
trademarks, to exploit other developments and to execute all documents
necessary to obtain such patents, copyrights, trademarks, or other
developments in the name of the Company.
4.4 The Employee agrees that during the term of this Agreement and for a
period of one year after the expiration of this Agreement or
termination of his employment with the Company (without regard to
whether such termination is by you or the Company), without the prior
written consent of the Company, he will not, directly or indirectly,
engage, own, operate, manage, control, participate in the management
or control of, be employed by, act as a consultant for, provide or
facilitate the provision of financing for, assist, or maintain or
continue any interest whatsoever (other than stock ownership in any
publicly owned company not exceeding five percent (5%) of the
outstanding stock of such company) in (i) any of the Company's
customers, served by him or by any other principal or employee of the
Company during the term of his employment with the Company, or (ii)
any enterprise in the United States or Canada engaged in a business
that is competitive with the Company. Without implied limitation, the
foregoing covenant shall include hiring or engaging or attempting to
hire or engage for his own account or for the account of any person,
firm or entity any officer or employee of the Company, encouraging on
behalf of himself or any competitor, any such officer or employee to
terminate his relationship or employment with the Company, soliciting
for or on behalf of himself or any competitor any person or entity
which was a client of the Company, and diverting to any person or
entity any client or business opportunity which relates to the
business of the Company.
4.5 The Employee expressly agrees that the terms and condition of this
Section 4 (other than Section 4.4) shall remain in full force and
effect during and after termination of this Agreement for a period of
18 months. The parties hereto agree and declare that monetary damages
will be insufficient to fully compensate the Company for its losses in
the event that the Employee breaches the covenants contained in this
Section 4. Therefore, the Company will be entitled to enjoin the
Employee from any threatened or actual violation of any covenant
contained herein, and the Employee will not raise as a defense to any
action or proceeding for an injunction the claim that the Company
would be adequately compensated by monetary damages.
4.6 For purposes of Sections 4.1 through 4.5 hereof, the term "Company"
shall include all direct and indirect subsidiaries of the Company.
5 DISPUTE RESOLUTION
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5.1 Except with respect to matters as to which injunctive relief is being
sought, any dispute arising out of or relating to this Agreement, or
the breach, termination or validity hereof shall be finally settled by
binding arbitration conducted expeditiously in accordance with
J.A.M.S./Endispute Comprehensive Arbitration Rules and Procedures (the
"J.A.M.S. Rules"). The arbitration shall be governed by the United
States Arbitration Act, 9 U.S.C. Section 1-16, and judgement upon the
award rendered by the arbitrators may be entered by any court having
jurisdiction thereof. The place of arbitration shall be New York City,
New York.
5.2 Such proceedings shall be administered by the neutral arbitrator in
accordance with J.A.M.S. Rules as the arbitrator deems appropriate,
however, such proceedings shall be guided by the following agreed upon
procedures:
5.2.1 Mandatory exchange of all relevant documents, to be accomplished
within thirty (30) days of the initiation of the procedure;
5.2.2 no other discovery;
5.2.3 hearings before the neutral arbitrator which shall consist of a
summary presentation by each side of no more than three 3 hours;
such hearings to take place on one or two days at a maximum; and
5.2.4 decision to be rendered not more than ten (10) days following
such hearings.
6 MISCELLANEOUS PROVISIONS
6.1 Employee hereby represents and warrants that he is free to make this
Agreement and the making and performance of this Agreement by him will
not violate the legal and/or equitable rights of any third party.
6.2 This Agreement embodies the entire understanding of the parties and
there are no promises, terms, covenants, conditions or obligations or
other written, expressed or implied agreements other than those
contained herein. No change or modification of the Agreement will be
valid unless the same will be in writing and signed by both parties
hereto.
6.3 The failure of Company to act or exercise its rights under this
Agreement upon the breach of any of the terms or conditions hereof by
the Employee shall not be construed as a waiver of such breach, nor
prevent Company from hereafter enforcing strict compliance with any
and all of the terms and conditions herein set forth. If any provision
of the Agreement is declared void, all of the remaining provisions of
this Agreement shall nevertheless remain in full force and effect, and
no provisions shall be deemed dependent upon any other provision.
6.4
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6.4.1 The employment by Company of Employee is being effected because
of Employee's special capabilities and qualifications and all of
his rights, benefits and duties hereunder are, therefore, not
assignable or transferable in any manner, except to the extent
that any benefit hereunder may be payable to Employee's estate.
6.4.2 The Company may assign this Agreement and the Company's
obligations and duties hereunder shall be binding upon any
successor and shall inure to the benefit of and be enforceable by
any such successor to the Company.
6.5 The validity, construction and performance of this Employment
Agreement will be governed by the laws of the State of New York,
without regard to conflict of law principles.
6.6 Employee certifies that he has read the entire contents of this
Agreement before signing his name hereto, that he was encouraged and
afforded sufficient opportunity by Employer to obtain legal advice
prior to his executing this Agreement and that he fully understands
all of the terms, conditions, and provisions set forth herein.
6.7 If any provision of this Agreement shall be deemed unenforceable,
prohibited, or invalid under applicable law, such provision shall be
ineffective to the extent of such unenforceability, prohibition, or
invalidity, but no other provision of this Agreement shall be
invalidated thereby, and the remainder of this Agreement shall remain
enforceable and in effect.
6.8 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first above written.
XXXXXXX.XXX INC. EMPLOYEE
By: /s/ Xxxxx Xxxxx /s/ Xxx Xxxxxx
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