EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of the 27th day of
March 2000 by and between XxxXxxxx.xxx, Inc. (the "COMPANY") with an address at
0000 X.X. Xxxxxxxx Xxxxxxx, Xxxxx, Xxxxxxx 00000 and Xxxxx X. Xxxxxxxxxx
("XXXXXXXXXX") residing at 00000 Xxxxxxxx Xxxxxxxxx, Xxxx 000, Xxxxx Xxxxx,
Xxxxxxx 00000.
WHEREAS, Rothschild and the Company have agreed that Rothschild shall
render services to the Company in the capacity of Chairman of Board of Directors
of the Company pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein set forth, the parties hereto have agreed and do hereby
mutually agree as follows:
1. EMPLOYMENT TERM: The term of this Agreement shall commence on the
date hereof and shall expire two years thereafter (the "EMPLOYMENT PERIOD")
subject to the provisions of Section 5, however, the Employment Period shall
automatically be extended for an additional year unless, within 30 days prior to
the end or the initial Employment Period and on each anniversary date
thereafter, Rothschild or the Company shall deliver to the other, written notice
of their intent not to renew this Agreement. In the event the term of Xxxxxxx
Xxxx' Employment Agreement dated March 27, 2000 is extended, then this
Employment Agreement shall be extended for the same term.
2. DUTIES OF EXECUTIVE: Rothschild shall serve as Chairman of the
Company and shall be required to perform such duties as may from time to time be
required by the Board of Directors of the Company. Employment shall be on a full
time basis except that Rothschild may act as a consultant to Ambergen, Inc.
Rothschild hereby agrees that, during the term of his
employment hereunder, he shall devote such time as is reasonably necessary to
perform his duties pursuant to the terms of this Agreement. The Company agrees
to indemnify Rothschild as an officer or director of the Company to the fullest
extent permitted by law.
3. COMPENSATION:
(a) As compensation for his services hereunder, the Company
shall pay Rothschild, during the Employment Period, a base salary ("BASE
SALARY") payable as follows:
(i) Three Hundred Thousand Dollars ($300,000.00) for
the first year;
(ii) Three Hundred Fifty Thousand Dollars
($350,000.00) for the second year;
The foregoing compensation shall be payable in
installments according to the Company's regular payroll practices and subject to
such deductions as may be required by law.
(b) Rothschild shall also receive a bonus based upon a bonus
plan to be established for executive officers of the Company, in each fiscal
year during the Employment Period, payable as determined in the bonus plan.
(c) In each fiscal year during the Employment Period, the
Company may contribute to an annuity or pension plan of Rothschild, which
annuity or pension plan shall be designated by Rothschild.
(d) The Company may withhold from payments of Employee's
salary amounts required to be withheld by the Company from time to time from
such salary under applicable Federal, State, and local laws and regulations then
in effect.
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(e) Upon submission of written statements and bills in
accordance with the then regular procedures of the Company, Rothschild shall be
entitled to reimbursement for reasonable out-of-pocket expenses necessarily
incurred in the performance of his duties hereunder, including, but not limited
to, reimbursement for travel and car expenses. A Company credit card will also
be made available to Rothschild. In addition, the Company agrees to lease for
Rothschild a company automobile that it shall pay for in the amount of $750 per
month plus tax, cost of insurance, maintenance and gasoline. (If the car lease
is more than $750.00, Rothschild shall make up the difference on his own.)
4. EMPLOYEE BENEFITS:
(a) Rothschild shall be included to the extent eligible
thereunder (at the expense of the Company, if appropriate) in any and all
existing plans (and any plans which may be adopted in the future) providing
benefits for the Company's employees generally, including, but not limited to,
group life and disability insurance, hospitalization, medical, vacation,
retirement, stock option plans and any and all similar or comparable benefits.
(b) Due to the fact that the Company's success is dependent
upon the activities of Rothschild, the Company will provide keyman insurance on
the life of Xx. Xxxxxxxxxx in the amount of $1,000,000.00 and Rothschild will
cooperate in obtaining and maintaining such policy. This policy shall be a whole
life insurance policy (the "POLICY"). At the termination of this Agreement, for
any reason, the Company shall, at Rothschild's sole option, assign Rothschild
all of its right, title and interest in the Policy. At that time, Rothschild
may, at his expense, cause the Policy to continue in full force and effect and
shall have the option to designate a beneficiary of his choice.
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5. TERMINATION:
(a) The Company may terminate Rothschild's employment
hereunder at any time for cause only by written notice but only after a decision
by the Board of Directors of the Company which is communicated to Rothschild in
writing thirty (30) days prior to the effective date of termination; PROVIDED
HOWEVER, that the Company pays to Rothschild a severance payment equal to the
aggregate Base Salary otherwise owed to him over the remaining term of the
Employment Period, said remaining term not to include any extensions (as
detailed in Section 1, herein) that have not commenced as of the date of
termination, and allow Rothschild to retain any options granted under any option
plan granted to him notwithstanding the fact that such options may not be vested
and/or exercisable at the time of termination under this Section 5(a).
(b) For purposes of this Agreement "For Cause" shall mean:
(i) Deliberate misappropriating any funds or
properties of the Company;
(ii) Gross mismanagement of the Company;
(c) In the event that Rothschild dies or becomes disabled so
as not to be able to perform his duties as set forth herein for a period
exceeding twelve (12) months, this Agreement shall terminate (as permissible
under the Americans with Disabilities Act) and no further compensation shall be
payable to Rothschild, except as may otherwise be provided under any insurance
policy, employee benefit plan, or similar instrument; PROVIDED HOWEVER, that
during any such period of disability, Rothschild shall be entitled to his base
salary as provided under Section 3(a) for a period not to exceed twelve (12)
months.
(d) CHANGE OF CONTROL: In the event Rothschild shall no longer
be a director or Chairman of the Company, then Rothschild may terminate this
Agreement and Rothschild shall
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be entitled to continue to receive his Base Salary as set forth in Section 3(a)
above for the remainder of the Employment Period, said remainder not to include
any extensions (as detailed in Section 1, herein) that have not commenced as of
the date of Rothschild's termination and shall be entitled to retain any options
granted under any option plan notwithstanding the fact that such options may not
be vested and/or exercisable at the time of termination under this Section 5(d).
6. COVENANT NOT TO COMPETE: The parties agree that the Company has a
legitimate business interest, including, but not limited to: (1) trade secrets,
which include but are not limited to, intellectual properties, client lists,
customer lists, vendor lists, and marketing programs developed by and unique to
the Company; (2) valuable confidential business or professional information that
otherwise does not qualify as trade secrets; (3) substantial relationship with
specific prospective or existing clients and vendors or suppliers; (4) client,
vendor and supplier goodwill associated with an ongoing business by way of the
name XxxXxxxx.xxx, Inc. located throughout the United States; (5) extraordinary
or specialized training in the technology and computer science technology field;
and (6) the assets, corporate shares, investments and equity interests of the
Company.
The parties further agree that the Company has a reasonable
legitimate business interest and a protectable interest in the right to prevent
direct and indirect solicitation of existing clients and business relationships
and investment in extraordinary training of its current employees.
In view of the foregoing, Rothschild's employment by the
Company in a very skilled, highly valued position within its highly specialized
organization and the payment of
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compensation listed herein and other valuable consideration, it is further
mutually agreed as follows:
(a) Rothschild recognizes and acknowledges, as aforesaid, that
the Company has made a substantial investment in time and expense in its highly
specialized business and that the very nature of Rothschild's position will
enable Rothschild to obtain and become familiar with certain trade secrets,
confidential information concerning business techniques, methodologies,
marketing efforts, highly specialized employee training, intellectual properties
vendor lists, other lists and client relationships of the Company.
(b) Because of the competitive environment in which the
Company must conduct its business, Rothschild agrees and understands that
material and irreparable injury would be done to the Company if Rothschild
should violate the said legitimate business interest and protectable interest,
or assist competitors, or engage in solicitation of existing clients or business
relationships.
(c) Rothschild will not, during his employment with the
Company or any time thereafter, use, offer, disclose or divulge by any means,
directly or indirectly, any of the trade secrets, confidential information,
vendor lists or client lists of the Company. Rothschild further agrees that
during his employment with the Company and prior to the later of: (i)
termination of his employment with the Company; or (ii) the due date of his
final payment of salary due hereunder, he will not engage in solicitation of
existing client lists and vendor lists of the Company, which are the property of
the Company and which Rothschild acquired knowledge of in the course of and by
virtue of his employment with the Company, to any corporation, firm, person,
partnership, associations or other business entity, or use such information in
any manner contrary to this Agreement.
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The parties agree that the foregoing is reasonable.
Rothschild agrees that, commencing the date hereof and
continuing until the due date of his final payment of salary due hereunder, he
will not, except on behalf of the Company or with the written consent of the
Company: (i) engage in any business activity in the United States, directly or
indirectly, on his own behalf or as a partner, stockholder (except by ownership
of less than ten percent (10%) of the outstanding stock of a publicly-held
corporation), director, trustee, principal, agent, employee, consultant or
otherwise of any person, firm or corporation which then is competitive with an
activity in which the Company or any parent or subsidiary of the Company is then
engaged at the time; (ii) allow the use of his name by or in connection with any
business activity which then is principally competitive with any activity in
which the Company or any of its parents or subsidiaries is then engaged; or
(iii) offer employment to or employ, for himself or on behalf of any then
competitor of the Company or any of its parents or subsidiaries, any persons who
at any time within the prior six (6) months shall have been employed by the
Company or any parent or subsidiary of the Company.
Rothschild recognizes that as an officer and/or director of
the Company, he has a fiduciary duty to reveal to the Company all business
opportunities that he may discover if said opportunities concern technology,
products or business which is related, either directly or indirectly, to the
Company's type of technology, products or business, either at the present or in
the anticipated future. In that event, the Company shall have the first right to
participate in said business opportunity. For the purpose of this section, a
business opportunity shall include but shall not be limited to, the purchase of
any interest in any business entity which is related to the type of technology
products or business of the Company, by either Rothschild, any agent of
Rothschild, or any entity controlled by Rothschild, its officers, directors,
agents, attorneys,
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employees, subsidiaries, parents, affiliates, joint venturers, partners,
division, predecessors, and all other persons acting for, purporting to act for
or subject to the control of Rothschild.
7. DEFAULT - REMEDIES: In the event of proof of breach by Rothschild,
the Company shall be entitled to pursue any remedy at law or equity, and shall
specifically have the right to terminate any further payments of any kind or
nature to be made under this Agreement.
8. CONFIDENTIAL INFORMATION: Except as otherwise required by law,
Rothschild shall not disclose or use at any time, except as part of his
employment by the Company, either during or subsequent to such employment, any
secret or confidential information or knowledge obtained by Rothschild while
employed by the Company. Without limiting the generality of the foregoing,
Rothschild shall not disclose or use any information pertaining to the business
of the Company or any parent or subsidiary of the Company, including, but not
limited to, profit figures, names of or relationships with customers or
advertisers, or the terms of any contracts to which it or they may be a party.
The obligation imposed by this Section 8 shall survive the expiration or other
termination of this Agreement.
9. SURRENDER OF DOCUMENTS: Rothschild shall, at the request of the
Company, promptly surrender to the Company or its nominee, upon any termination
of his employment hereunder, or at any time prior thereto, any document,
memorandum, record, letter, specification or other paper in his possession or
under his control relating to the operations, business, customers, or affairs of
the Company or its affiliates.
10. WAIVER OF BREACH: The waiver by either the Company or Rothschild of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by either the Company or Rothschild.
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11. SEVERABILITY: The invalidity or unenforceability of any provision
of this Agreement, whether in whole or in part, shall not in any way affect the
validity or enforceability of any other part of such provision or of any
provision herein contained, and any invalid or unenforceable provision or part
thereof shall be deemed severable to the extent of any such invalidity or
unenforceability. If such invalidity or unenforceability is due to the
unreasonableness of the time or geographical area covered by the covenants or
restrictions of such provision, such covenants and restrictions shall
nevertheless be effective for such period of time and for such area as may be
determined to be reasonable by a court of competent jurisdiction.
12. INTERPRETATION: No provision of this Agreement is to be interpreted
for or against any party because that party or that party's legal representative
drafted such provision.
13. ASSIGNMENT; BINDING EFFECT: This Agreement is for personal services
of Rothschild and shall not be assignable by the Company. This Agreement shall
not be assignable in whole or in part by Rothschild, except that Rothschild may
assign the Agreement to any successor in interest to the Company's business. The
rights and obligations of the parties shall inure to the benefit of, and be
binding upon, their respective heirs, personal representatives, successors and
assigns.
14. NOTICES:
(a) All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been given if delivered
by hand or mailed within the continental United States by first class, certified
mail, return receipt requested, postage and
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registry fees prepaid, or sent by telecopier (with receipt confirmation), to the
applicable party and addressed as follows:
(i) if to the Company at the address set forth above.
(ii) if to Rothschild at the address set forth above.
(b) Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof. Any notice or other communication sent by telecopier transmission shall
be deemed given at the time of written confirmation of receipt.
15. ENTIRE AGREEMENT OF THE PARTIES: This Agreement expresses the
entire agreement of the parties, and all promises, representations,
understandings, arrangements and prior agreements are merged herein and
superseded hereby. No person, other than pursuant to a resolution of the
Company's Board of Directors, shall have any authority on behalf of the Company
to agree to modify or change this Agreement or anything in reference thereto,
and any such modification or change must be in writing and signed by both
parties hereto.
16. LAWS GOVERNING: This Agreement has been entered into in the State
of Florida and shall be construed, interpreted and governed in accordance with
the laws of the State of Florida without regard to the choice of laws provisions
thereof.
17. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one document.
18. PRIOR AGREEMENTS: The Employment Agreement dated June 3, 1999
between the parties hereto is hereby terminated and superceded by this
Agreement. This Agreement
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supercedes any and all prior agreements, understandings, and negotiations
relating to the subject matter herein and constitutes the entire agreement
between the parties relating to such subject matter.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Rothschild has hereunto set his
hand as of the day and year first above written.
XXXXXXXX.XXX, INC. XXXXX X. XXXXXXXXXX
By: /S/ XXXXXXX X. XXXX /S/ XXXXX X. XXXXXXXXXX
------------------------------------ -----------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice-President
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