Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of this 24th day of
February, 2000 (the "Effective Date"), is by and between Xxxxxxxx X. Xxxxxxx,
III, (the "Executive") and OneSoft Corporation, a Delaware corporation with its
principal offices at 0000 Xxxx Xxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000 (the
"Company").
WHEREAS the Company desires to employ Executive as the Chief Financial Officer
of the Company for the period and upon the terms and conditions hereinafter set
forth; and
WHEREAS Executive desires to serve in such capacities upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the Company and Executive hereby agree as follows:
1. Employment.
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a) The Company will employ the Executive and Executive agrees to be employed
by the Company, as the Company's Chief Financial Officer. Executive will have
the responsibilities, duties and authority commensurate with his position as the
Chief Financial Officer including, without limitation, responsibility for
directing the Company's Financial Affairs ("Responsibilities"). Executive will
also have such other responsibilities, duties and authority as may from time to
time be assigned to him by the President or the Board of Directors of the
Company.
b) The Executive will be required to devote (i) substantially his entire time
during Company business hours as defined in then current Company policies, plus
any other reasonable time required to complete the obligations of his
Responsibilities (reasonable sick leave, holidays, vacation time and other time
and efforts not defined in this section of the Employment Agreement exempt) and
(ii) his best efforts to faithfully and satisfactorily fulfill the obligations
of his Responsibilities to further the Company's best interests.
2. Concurrent Agreements.
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a) As used in this Agreement, the following terms shall have the following
respective meanings:
"Option Agreement" shall mean that certain stock option agreement dated
the 27th day of June, 1997 by and among Xxxxxxx X. Xxxxxxxxx, OneSoft Corp.
and the Executive, including any amendments to the agreement or assignments of
rights granted thereof.
"Optioned Shares" shall mean the Company's common stock subject to the
Option Agreement, in part or in whole.
"Incentive Stock Option Agreement" shall mean that written agreement by
and between the Company and Executive whereby the Executive will receive
qualified incentive stock options for 300,000 of the Company's common shares,
vesting quarterly in even increments over first three years following the
Commencement Date.
"Assignment of Inventions, Nondisclosure and Noncompetition Agreement"
shall mean that agreement in the form attached hereto as Exhibit A.
b) In addition to the terms of this Employment Agreement, the Company and
Executive agree to negotiate or affirm and to be bound by the terms of the
following agreements as defined herein; (i) the Option Agreement, (ii) the
Assignment of Inventions, Nondisclosure and Noncompetition Agreement, and (iii)
the Incentive Stock Option Agreement.
c) The Company and the Executive shall enter into the Assignment of
Inventions, Nondisclosure and Noncompetition Agreement in the form attached
hereto as Exhibit A.
3. Term of Employment. Executive's employment hereunder shall commence on
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the date (the "Commencement Date") as agreed upon by the parties, and continue
until the first anniversary thereof, unless terminated earlier in accordance
with the terms hereof. The term of the Executive's employment hereunder shall
renew automatically for additional successive one-year periods, unless either
party hereto provides written notice of its intention not to renew the Agreement
at least ninety (90) days prior to the applicable expiration date.
4. Compensation. In consideration for Executive's services under this
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Agreement, Executive will be (i) paid salary at an annual rate of $140,000,
subject to increases by the Board (the "Annual Salary") and (ii) an annual
bonus, which as a percent of Annual Salary, is commensurate with annual bonuses
of other senior executives (with the execuption of the Chief Executive Officer)
of the Company. Executive's Annual Salary shall be paid in periodic installments
at such times as salaries are generally paid to other executives of the Company
and all compensation under this agreement shall be subject to required
withholdings and deductions.
5. Vacation, Benefits and Reimbursement of Expenses.
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(a) Vacation. Executive shall be entitled to vacation commensurate with other
senior executives of the Company.
(b) Employee Benefit Plans and Other Benefits. Executive shall also be
entitled to participate in any employee benefit plans which the Company provides
or may establish for the benefit of its executives including, without
limitation, life, medical, dental and other insurance, 401(k), stock option, and
similar plans.
(c) Reimbursement of Expenses. Executive shall be entitled to reimbursement
for all ordinary and reasonable out-of-pocket business expenses which are
reasonably incurred by him in furtherance of the Company's business in
accordance with policies adopted from time to time by the Company.
6. Termination by the Executive. Executive's employment may be terminated by
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him, by giving a written notice of at least ninety (90) days to the Company. In
the event of such a notice, the Company may elect to waive the ninety (90) day
period or any portion thereof, in which event Executive's employment shall end
as of such earlier date. For purposes of this Paragraph 6, the Termination Date
shall be such date as Executive's employment ends.
7. Termination by the Company. Executive's employment may be terminated at
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any time by the Company (a) with Cause, by a written notice to Executive,
effective immediately unless otherwise stated in such notice, which date shall
be the Termination Date therefor, (b) without Cause at any time, by a written
notice to Executive, effective ninety (90) days after the date given, except as
Executive and the Company may otherwise agree in writing, which date of
effectiveness shall be the Termination Date therefor, or (c) for death or total
and permanent disability in accordance with Paragraph 7.
For purposes of this Agreement, the term "Cause" means (i) the willful and
continued failure by Executive to substantially perform his duties hereunder, or
(ii) the willful engaging by Executive in misconduct which is materially
injurious to the Company, monetarily or otherwise, or (iii) a felony conviction
by a court of competent jurisdiction or (iv) confirmed and continuing
intoxication by alcohol or other controlled substances.
8. Termination upon Death or Disability.
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(a) Executive's employment by the Company shall terminate upon his death, or
upon the Company's written notice if, by virtue of total and permanent
disability, Executive is unable to perform his duties hereunder.
(b) Executive shall be considered to be totally and permanently disabled
hereunder if for reasons involving mental or physical illness or physical injury
Executive is unable to or fails to perform his duties hereunder for a period of
ninety (90) consecutive calendar days or for any periods aggregating ninety (90)
days or more in any twelve (12) consecutive month period. The determination
that, by virtue of total and permanent disability, Executive is unable to
perform his duties hereunder shall be made by a physician chosen by the Company
and reasonably satisfactory to Executive (or his legal representative). The cost
of such examination shall be borne by the Company. In the event of total and
permanent disability, the Termination Date shall be the date of the Company's
written notice.
9. Payments of Compensation Upon Termination.
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(a) In the event Executive's employment hereunder shall be terminated by the
Executive other than for Good Reason (as herein after defined), by the Company
for Cause or as a result of death or total and permanent disability, Executive
shall be entitled as of the
Termination Date to no compensation under this Agreement, except as provided in
Section 10.
(b) In the event Executive's employment is terminated by Executive for Good
Reason, by the Company without Cause or by reason of the Company's election of
non-renewal of the term under Section 3 such that Executive will not have been
employed hereunder for at least three years from the Commencement Date, then in
any of such events the Company shall pay to Executive an amount equal one-half
his then-current annualized salary plus one-half of his annual bonus as provided
for in Section 4, which salary-based amount shall be paid, commencing with the
first day of the month next following the month during which such termination
occurs, in six equal monthly installments at the times and in the manner in
which his salary had been paid during his employment and which bonus-based
amount shall be paid not later than the time of the last of such monthly salary-
based payments.
(c) During such six-month period after termination of his employment, as the
case may be, the Company shall continue to pay or provide all of the fringe
benefits which it had been making available to Executive prior to such
termination or, if the provision thereof is not possible, the economic
equivalent thereof.
(d) For purposes of this Agreement, the term "Good Reason" shall mean a
diminution in the authority, compensation level (annual salary or annual bonus),
working conditions or support which Executive had or was entitled to have as of
the Commencement Date, or the promotion date if the Executive accepts a
promotion, including but not limited to any curtailment by the Company's
President, or as appropriate the Board of Directors, of the power of the
Executive to act within his role as Chief Financial Officer or other role as
defined by any accepted promotion, any change in his title or position not
accepted by the Executive as a promotion such that he is no longer in name or in
fact the Chief Financial Officer of the Company, any hiring of another executive
subsequent to the Commencement Date to whom Executive is required to report or
who does not report to Executive, the Company President or to another executive
who directly or indirectly reports to Executive or Company President, or any
requirement that Executive serve as an executive of the Company or any
subsidiary or other affiliate of the Company in any location other than the
Washington, D.C. -Metroplex area or Greater New York City.
10. Accrued Compensation. In the event of any termination of Executive's
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employment for any reason, Executive (or his estate) shall be paid such portion
of Executive's Base Salary as has accrued by virtue of his employment during the
period prior to termination and has not yet been paid, together with any amounts
for expense reimbursement which have been properly incurred in accordance with
the provisions hereof prior to termination and have not yet been paid. Such
amounts shall be paid within fifteen (15) days of the Termination Date.
11. General.
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(a) Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth above or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by
telecopy, (iii) sent by overnight courier, or (iv) sent by registered or
certified
mail, return receipt requested, postage prepaid. All notices, requests, consents
and other communications hereunder shall be deemed to have been given either (i)
if by hand, at the time of the delivery thereof to the receiving party at the
address of such party set forth above, (ii) if made by telecopy, at the time
that receipt thereof has been acknowledged by electronic confirmation or
otherwise, (iii) if sent by overnight courier, on the next business day
following the day such notice is delivered to the courier service, or (iv) if
sent by registered or certified mail, on the fifth business day following the
day such mailing is made.
(b) Entire Agreement. This Agreement, agreements to which this Agreement
refers and the Exhibits hereto embody the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersede all prior oral or written agreements and understandings relating to
the subject matter hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in this Agreement or the Exhibits
hereto shall affect, or be used to interpret, change or restrict, the express
terms and provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this Agreement
may be modified or amended only by written agreement executed by the parties
hereto.
(d) Waivers and Consents. The terms and provisions of this Agreement may be
waived, or consent for the departure therefrom granted, only by written document
executed by the party entitled to the benefits of such terms or provisions. No
such waiver or consent shall be deemed to be or shall constitute a waiver or
consent with respect to any other terms or provisions of this Agreement, whether
or not similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
(e) Parties. This Agreement is personal and shall in no way be subject to
assignment by Executive except as contemplated hereby. This Agreement shall be
binding upon and shall inure to the benefit of the Company and its successors
and assigns.
(f) Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the law
of The Commonwealth of Virginia, without giving effect to the conflict of law
principles thereof.
(g) Severability. The parties intend this Agreement to be enforced as written.
However, if any portion or provision of this Agreement shall to any extent be
declared illegal or unenforceable by a duly authorized court having
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(h) Headings and Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify, or affect the meaning or construction of any of the terms or
provisions hereof.
(i) No Waiver of Rights, Powers and Remedies. No failure or delay by a party
hereto in exercising any right, power or remedy under this Agreement, and no
course of dealing between the parties hereto, shall operate as a waiver of any
such right, power or remedy of the party. No single or partial exercise of any
right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
(j) Counterparts. This Agreement may be executed in one or more counterparts,
and by different parties hereto on separate counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of
the day and year first above written.
OneSoft Corporation.
By: /s/ Xxxxx X. XxxXxxxxx, XX
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Xxxxx X. XxxXxxxxx, XX,
Chairman & CEO
/s/ Xxxxxxxxx X. Xxxxxxx, III
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Xxxxxxxx X. Xxxxxxx, III
