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EXHIBIT 6.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") dated as of August 16, 1999 between
MIRACOM CORPORATION, a Nevada corporation (the "Company"), having its principal
place of business located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, and
Xxx Xxxx, residing at 000 Xxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive has experience in accounting and financial
reporting for publicly held companies; and
WHEREAS, in light of the foregoing, the Company desires to employ the
Executive as its Chief Financial Officer and the Executive desires to accept
such employment.
NOW, THEREFORE, the parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive and
the Executive hereby agrees to serve the Company on the terms and conditions set
forth herein.
2. TERM.
2.1 Initial Term. The initial Term of Employment under this
Agreement, and the employment of the Executive hereunder, shall commence on
October 4, 1999 (the "Commencement Date") and shall expire on December 31, 2000
unless sooner terminated in accordance with Section 6 hereof (the "Initial
Term").
2.2 Renewal Terms. At the end of the Initial Term, the Term of
Employment automatically shall renew for successive one year terms (subject to
earlier termination as provided in Section 5 hereof), unless the Company or the
Executive delivers written notice to the other at least ninety (90) days prior
to the Expiration Date of its or his election not to renew the Term of
Employment.
2.3 Term of Employment and Expiration Date. The period during
which the Executive shall be employed by the Company pursuant to the terms of
this Agreement is sometimes referred to in this Agreement as the "Term of
Employment," and the date on which the Term of Employment shall expire
(including the date on which any renewal term shall expire), is sometimes
referred to in this Agreement as the "Expiration Date."
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3. COMPENSATION.
3.1 Base Salary. The Executive shall receive a base salary at
the annual rate of One Hundred Thousand Dollars ($100,000) (the "Base Salary")
during the Term of Employment, with such Base Salary payable in installments
consistent with the Company's normal payroll schedule, subject to applicable
withholding and other taxes. The Base Salary shall be reviewed, at least
annually, for merit increases and, by action and in the discretion of the Board
of Directors of the Company (the "Board"), may be increased at any time or from
time to time.
3.2 Bonuses or Incentive Compensation. The Executive shall
receive such bonuses or incentive compensation, if any, as the Board may in its
sole and absolute discretion determine or pursuant to any bonus or incentive
compensation plan adopted by the Board. Any bonuses or incentive compensation
payable pursuant to this Subsection 3.2 are sometimes hereinafter referred to as
"Incentive Compensation."
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 Reimbursement of Expenses. Upon the submission of proper
substantiation by the Executive, and subject to such rules and guidelines as the
Company may from time to time adopt, the Company shall reimburse the Executive
for all reasonable expenses actually paid or incurred by the Executive during
the Term of Employment in the course of and pursuant to the business of the
Company. The Executive shall account to the Company in writing for all expenses
for which reimbursement is sought and shall supply to the Company copies of all
relevant invoices, receipts or other evidence reasonably requested by the
Company.
4.2 Participation in Benefit Programs. The Executive shall be
entitled to participate in or receive benefits under all of the Company's
benefit plans in effect on the date hereof or made available in the future to
employees and key management personnel of the Company, including without
limitation, major medical, dental, life and disability insurance, profit
sharing, stock option and deferred compensation plans, subject to the general
eligibility and participation provisions set forth in such plans. The
commencement of inclusion of Executive as a participant in the Company's
employee benefit plans shall be consistent with the waiting periods, if any, for
the Company's executives generally. With respect to health insurance coverage
for Executive's immediate family (defined as Executive's spouse and children),
if such coverage is provided by the Company for its other executive officers,
such coverage shall be provided on the same basis as it is provided to other
executive officers of the Company.
4.3 Restricted Stock and Stock Option. Upon Executive's
commencement of employment with the Company, the Executive shall be granted ten
thousand (10,000) shares of restricted (Rule 144) stock (the "Restricted
Stock"), which shall be subject to a Restricted Stock Agreement, the form of
which is attached hereto as Schedule A. The Restricted Stock shall be forfeited
to the Company should Executive voluntarily terminate his employment hereunder
prior to April 4, 2000 or be discharged for Cause prior to April 4, 2000.
Further, Executive shall be granted stock options for the purchase of one
hundred twenty thousand (120,000) shares of
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common stock (the "Stock Option") at an exercise price of $1.75 per share, which
Stock Option shall be subject to a separate stock option agreement to be entered
into concurrently herewith. The Stock Option shall become exercisable 33-1/3%
six months from the Commencement Date, 33-1/3% twelve months from the
Commencement Date and 33-1/3% eighteen months from the Commencement Date.
4.4 Other Benefits. The Executive shall be entitled to three
(3) weeks of vacation each calendar year during the Term of Employment, to be
taken at such times as the Executive and the Company shall mutually determine
and provided that no vacation time shall interfere with the duties required to
be rendered by the Executive hereunder. Any vacation time not taken by the
Executive during any calendar year may not be carried forward into any
succeeding calendar year. The Executive shall receive such additional benefits,
if any, as the Board of the Company shall from time to time determine.
5. DUTIES OF EXECUTIVE. During the Term of Employment under this
Agreement, the Executive shall serve as the Chief Financial Officer of the
Company, shall diligently perform all services as may be assigned to him by the
Board, and shall exercise such power and authority as may from time to time be
delegated to him by the Board. The Executive shall devote his full time and
attention to the business and affairs of the Company, render such services to
the best of his ability, and use his best efforts to promote the interests of
the Company. It shall not be a violation of this Agreement for the Executive to
(i) serve on corporate, civic or charitable boards or committees, (ii) deliver
lectures, fulfill speaking engagements or teach at educational institutions, or
(iii) manage personal investments, so long as such activities do not interfere
with the performance of the Executive's responsibilities to the Company in
accordance with this Agreement.
6. TERMINATION.
6.1 Termination for Cause Defined. Notwithstanding any other
provision herein, this Agreement shall terminate without any liability to or
upon the Company other than to pay Base Salary for services rendered prior to
the date of termination if Executive's employment is terminated for "Cause." The
following shall constitute grounds for termination of Executive's employment for
Cause: (i) willful or gross neglect by Executive of his duties which continues
for ten (10) days after written notice of such neglect is provided to Executive
by the Company; (ii) conviction of Executive of any felony; (iii) any breach of
Executive's obligations under Section 8 of this Agreement; or (iv) willful
misconduct by Executive in connection with the performance of his duties.
6.2 Death. In the event of the death of the Executive, this
Agreement shall terminate without any liability to or upon the Company other
than to pay Base Salary for services rendered prior to the date of the
Executive's death, and the pro-rata portion of the Incentive Compensation which
Executive has earned through the date of such termination.
6.3 Disability. The Company shall at all times have the right
to terminate the Term of Employment, if the Executive shall become disabled as
the term "Disability" is defined
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below. For purposes of this Agreement, the term "Disability" shall be deemed to
have occurred if Executive becomes entitled to benefits under the Company's
disability insurance plan as then in effect and cannot substantially perform his
duties, or, if the Executive shall as the result of mental or physical
incapacity, illness or disability, become unable to perform his obligations
hereunder for a an aggregate of 90 days in any consecutive 12-month period, or
for a period of sixty (60) consecutive days. The date of the Disability shall be
the on hundred twentieth (90th) or the sixtieth (60th) day, as the case may be.
The Company shall have the sole discretion based upon competent medical advice
to determine whether the Executive continues to be disabled. In the event
Executive's employment is terminated because of a Disability, Executive shall be
entitled to receive Executive's Base Salary for services rendered prior to the
date of termination plus (a) only that compensation which is payable through the
disability policy held by the Company or, if no such policy is in effect, then a
severance equal to three (3) months Base Salary, payable in accordance with the
Company's payroll practices, less withholding and other applicable federal and
state deductions, and (b) the pro-rata portion of the Incentive Compensation
which Executive has earned through the date of such termination.
6.4 Termination without Cause by Company. In the event that
Executive's employment is terminated without Cause by Company, the Company will
continue to pay Executive his Base Salary, and will continue Executive's health
insurance benefits (and life insurance benefits, if any) as described in Section
4.2 of this Agreement for the greater of the balance of the Term of Employment
or eight (8) months. The pro-rata portion of the Incentive Compensation which
Executive has earned through the date of termination of employment shall be
payable in a lump sum on the termination date. Relocation expenses of Seven
Thousand Five Hundred Dollars ($7,500) shall be payable in a lump sum on the
termination date. The Company may terminate Executive's employment under this
Subsection 6.4 upon providing to the Executive at least sixty (60) days prior
notice to that effect.
6.5 Voluntary Termination by Executive. If Executive
voluntarily terminates employment with the Company during the Term of Employment
and the Company has not breached this Agreement, or if the Executive is
discharged for Cause, then Executive will not be eligible to receive, and the
Company shall not be obligated to pay Executive any compensation (including any
Incentive Compensation) or provide any benefits which might otherwise be due
Executive hereunder for the remainder of the Term of Employment following such
date of voluntary termination or discharge.
6.6 Resignation. Upon any termination of employment pursuant
to this Section 6, the Executive shall be deemed to have resigned as an officer,
and if he was then serving as a director of the Company, as a director, and if
required by the Board, the Executive hereby agrees to immediately execute a
resignation letter to the Board.
7. TERMINATION BY EXECUTIVE. Executive may, at his option, terminate
this Agreement at any time, prior to the expiration of the Term, upon giving
ninety (90) days prior written notice to that effect to the Company.
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8. RESTRICTIVE COVENANTS.
8.1 Confidential Information. The Executive hereby
acknowledges and agrees that in the course of his employment he will acquire
knowledge and will have access to information, whether in written, typed or
other form, regarding the business operations of the Company. Specifically, the
following types of information are deemed confidential ("Confidential
Information") and shall not be disclosed or used by the Executive except as
required and authorized in furtherance of the Company's business: specific
prospective customers of the Company; specific existing customers of the
Company; other individuals and businesses with whom the Company does business;
proprietary information; trade secrets, as defined in Section 688.002(4),
Florida Statute's; financial or corporate records; operational, sales,
promotional, and marketing methods and techniques; computer programs, including
source codes and/or object codes; and/or any other proprietary, competition
sensitive, or technical information or secrets developed with or without the
help of the Executive.
8.2 Non-disclosure. The Executive shall not, during the term
of his employment, or at any time thereafter, either directly or indirectly,
communicate, publish, disclose, divulge, or use, or authorize anyone else to
communicate, publish, disclose, divulge, or use, for the benefit of himself or
any other person, persons, partnership, association, corporation, or other
entity, any Confidential Information which may be communicated to the Executive
or of which the Executive may be apprised by virtue of his employment with the
Company. Any and all information, knowledge, know-how, and techniques which the
Company designates as confidential shall be deemed confidential for purposes of
this Agreement, except information which the Executive can demonstrate came to
his attention prior to disclosure thereof by the Company; or which, at or after
the time of disclosure by the Company to the Executive, lawfully had become a
part of the public domain through lawful publication or communication by others.
8.3 Non-competition. The Executive covenants that, except as
otherwise approved in writing by the Company, the Executive shall not, during
the term of this Agreement, and for a continuous uninterrupted period of
twenty-four (24) months commencing upon the expiration or termination of the
Executive's employment relationship with the Company, regardless of the cause
for termination, other than by the Company without Cause (as defined in
Subsection 6.1 hereof), individually, or jointly with others, either directly or
indirectly, for himself, or through, on behalf of, or in conjunction with any
person, persons, partnership, association, corporation, or other entity, own,
maintain, operate, engage in, or have any interest in any business enterprise
which is the same as, similar to or competitive with the Company's Business
(defined below), regardless of the geographical location of such other business
enterprise, and shall not directly or indirectly act as an officer, director,
employee, partner, contractor, consultant, advisor, principal, agent, or
proprietor, or in any other capacity for, nor lend any assistance (financial,
managerial, consulting or otherwise) to or cooperate with, any such business
enterprise; provided, however, that such provision shall not apply to the
Executive's ownership of Common Stock of the Company or the acquisition by the
Executive, solely as an investment, of securities of any issuer that is
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended, and that are listed or admitted for trading on any United States
national securities exchange or that are quoted on the National Association
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of Securities Dealers Automated Quotations System, or any similar system or
automated dissemination of quotations of securities prices in common use, so
long as the Executive does not control, acquire a controlling interest in or
become a member of a group which exercises direct or indirect control of more
than five (5%) percent of any class of capital stock of such corporation. For
purposes of this Subsection 8.3, "Business" shall mean the (i) development and
operation of e-commerce/Internet portals for the automotive parts industry,
including but not limited to the sale of automotive parts to consumers and
automotive parts retailers and wholesalers, and (ii) real time marketing
research utilizing at client sites computerized interactive devices for the
gathering of consumer information.
8.4 Non-solicitation of Employees and Clients. The Executive
specifically acknowledges that he will have access to Confidential Information,
including, without limitation, prospective and existing customers or customer
lists of the Company. The Executive covenants and agrees that during the term of
this Agreement, and for a continuous uninterrupted period of twenty-four (24)
months, commencing upon the expiration or termination of the Executive's
relationship with the Company, except as otherwise approved in writing by the
Company, the Executive shall not, either directly or indirectly, for himself, or
through, on behalf of, or in conjunction with any person, persons, partnership,
association, corporation, or entity:
(a) Divert or attempt to divert or solicit any
prospective or existing customer of the Company to any competitor by direct or
indirect inducement or otherwise; or
(b) Employ or seek to employ any person who is at
that time employed by the Company, any affiliate of the Company, or otherwise
directly or indirectly induce or solicit such person to leave his or her
employment.
8.5 Ownership of Developments. All copyrights, patents, trade
secrets, or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship developed or
created by the Executive during the course of performing work for the Company or
its clients (collectively, the "Work Product") shall belong exclusively to the
Company and shall, to the extent possible, be considered a work made by the
Executive for hire for the Company within the meaning of Title 17 of the United
States Code. To the extent the Work Product may not be considered work made by
the Executive for hire for the Company, the Executive agrees to assign, and
automatically does assign at the time of creation of the Work Product, without
any requirement of further consideration, any right, title, or interest the
Executive may have in such Work Product. Upon the request of the Company, the
Executive shall take such further actions, including execution and delivery of
instruments of conveyance, as may be appropriate to give full and proper effect
to such assignment.
8.6 Reasonably Necessary. The Company and the Executive agree
that the Confidential Information set forth in Subsection 8.1 and the
substantial relationships with the Company's specific prospective and existing
customers and vendors: (i) are valuable, special, and a unique asset of the
Company; (ii) have provided and will hereafter provide the Company with a
substantial competitive advantage in the operation of its business; and (iii)
are a legitimate business interest of the Company. The Company and the Executive
also agree that the existence
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of these legitimate business interests justifies the need for the restrictive
covenants set forth in this Section 8, and the restrictive covenants are
reasonably necessary to protect the Company's legitimate business interests.
8.7 Reasonable Restrictions. The Executive agrees and
acknowledges; (a) that the geographical and time limitations contained in this
Agreement are reasonable and properly required for the adequate protection of
the business interests of the Company; and (b) the restrictions contained in
this Section 8 (including without limitation the length of the term of the
provisions of this Section 8) are not overbroad, overlong, or unfair and are not
the result of overreaching, duress or coercion of any kind. The Executive
further acknowledges and confirms that his full, uninhibited and faithful
observance of each of the covenants contained in this Section 8 will not cause
him any undue hardship, financial or otherwise, and that enforcement of each of
the covenants contained herein will not impair his ability to obtain employment
commensurate with his abilities and on terms fully acceptable to him or
otherwise to obtain income required for the comfortable support of him and his
family and the satisfaction of the needs of his creditors. The Executive
acknowledges and confirms that his special knowledge of the business of the
Company is such as would cause the Company serious injury or loss if he were to
use such ability and knowledge to the benefit of a competitor or were to compete
with the Company in violation of the terms of this Section 8. It is agreed by
the Executive that if any portion of the restrictions contained in this
Agreement are held to be unreasonable, arbitrary, or against public policy, then
the restriction shall be considered divisible, both as to the time and to the
geographical area, with each month of the specified period being deemed a
separate period of time, and each country or portion thereof of the specified
area being deemed a separate geographical area, so that the lesser period of
time or geographical area shall remain effective, so long as the same is not
unreasonable, arbitrary, or against public policy. The parties hereto agree that
in the event any court of competent jurisdiction determines the specified period
or the specified geographical area of the restricted territory to be
unreasonable, arbitrary, or against public policy, a lesser time period or
geographical area which is determined to be reasonable, non-arbitrary, and not
against public policy may be enforced against the Company.
8.8 Continuity of Restrictions. If the Executive shall violate
any of the terms or covenants contained herein, and if any court action is
instituted by the Company to prevent or enjoin such violation, then the period
of time during which the terms or covenants of this Agreement shall apply, as
provided in this Agreement, shall be lengthened by a period of time equal to the
period between the date of the initial breach of the terms or covenants
contained in this Agreement, whether or not the Company had knowledge of the
breach, and the date on which the decree of the court disposing of the issues
upon the merits shall become final and not subject to further appeal.
8.9 Books and Records. All notes, data, reference material,
sketches, drawings, memoranda, files, documents, specifications and any records
in any way relating to any of the Confidential Information or to the Company's
business, whether prepared by the Executive or otherwise coming into the
Executive's possession, shall remain the exclusive property of the Company and
shall not be removed from the premises of the Company under any circumstances
whatsoever without the prior written consent of the Company. Upon the request
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of the Company, or absent such request, upon the termination of the Executive's
employment with the Company for any reason, the Executive shall immediately
return the Company all such property, materials and any and all copies thereof
in the Executive's possession.
8.10 Definition of Company. Solely for purposes of this
Section 8, the term "Company" also shall include any existing or future
subsidiaries of the Company that are operating during the time periods described
herein and any other entities that directly or indirectly, through one or more
intermediaries, control, are controlled by or are under common control with the
Company during the periods described herein.
8.11 Survival. The provisions of this Section 8 shall survive
the termination of this Agreement, as applicable.
9. INJUNCTION. The Executive agrees that a violation or a breach of the
terms, covenants, or provisions contained in Section 8 of this Agreement would
cause irreparable injury to the Company, and that the remedy at law for any
violation or breach would be inadequate and would be difficult to ascertain, and
therefore, in the event of the violation or breach, or threatened violation or
breach of any such terms, covenants, or provisions contained in this Agreement,
the Company shall have the independent right to enjoin the Executive from any
threatened or actual activities in violation thereof. The Executive hereby
consents and agrees that temporary and permanent injunctive relief may be
granted in any proceedings which might be brought to enforce any such terms,
covenants, or provisions without the necessity of the Company providing proof of
actual damages or the posting of a bond. In the event the Company does apply for
such an injunction, the Executive shall not raise as a defense thereto that the
Company has an adequate remedy at law. Such right to injunction shall be
cumulative and in addition to whatever other remedies the Company may have at
law or in equity.
10. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Orange County, Florida, in accordance with the Rules of the American Arbitration
Association then in effect (except to the extent that the procedures outlined
below differ from such rules). Within thirty (30) days after written notice by
either party has been given that a dispute exists and that arbitration is
required, each party must select an arbitrator and those two arbitrators shall
promptly, but in no event later than thirty (30) days after their selection,
select a third arbitrator. The parties agree to act as expeditiously as possible
to select arbitrators and conclude the dispute. The selected arbitrators must
render their decision in writing. The cost and expenses of the arbitration and
of enforcement of any award in any court shall be borne by the non-prevailing
party. If advances are required, each party will advance one-half of the
estimated fees and expenses of the arbitrators. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. Although arbitration is
contemplated to resolve disputes hereunder, either party may proceed to court to
obtain an injunction to protect its rights hereunder, the parties agreeing that
either could suffer irreparable harm by reason of any breach of this Agreement.
Pursuit of an injunction shall not impair arbitration on all remaining issues.
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11. RELOCATION; LOCATION OF PERFORMANCES.
(a) The parties acknowledge that the Executive is required to
change his place of residence from California to the Orlando, Florida
metropolitan area to perform hereunder. The Company shall pay all the costs and
expenses of the Executive and his family connected with such relocation,
including reasonable moving and travel expenses and reasonable temporary
dwelling costs (for a period not to exceed 60 days), all such expenses not to
exceed $7,500 for moving expenses and $4,500 for temporary dwelling costs.
(b) The Executive's services will be performed in the Seminole
County, Florida area. The Executive's performance hereunder shall be within such
area or its environs. The parties acknowledge, however, that the Executive may
be required to travel in connection with the performance of his duties
hereunder.
12. ASSIGNMENT. This Agreement may not be assigned by any party hereto;
provided that the Company may assign this Agreement: (a) to an affiliate so long
as such affiliate assumes the Company's obligations hereunder; provided that no
such assignment shall discharge the Company of its obligations herein, or (b) in
connection with a merger or consolidation involving the Company or a sale of
substantially all its assets to the surviving corporation or purchaser as the
case may be, so long as such assignee assumes the Company's obligations
thereunder.
13. SEVERABILITY. If all or any portion of a covenant or provision in
this Agreement is held invalid, unreasonable or unenforceable by a court or
agency having valid jurisdiction in an unappealed final decision to which the
Company is a party, the remaining covenants and provisions shall remain valid
and enforceable. The Executive expressly agrees to be bound by any lesser
covenant or provision subsumed within the terms of such covenant or provision
that imposes the maximum duty permitted by law, as if the resulting covenant or
provision were separately stated in, and made a part of this Agreement.
14. DAMAGES; ATTORNEYS' FEES. Nothing contained herein shall be
construed to prevent the Company or the Executive from seeking and recovering
from the other damages sustained by either or both of them as a result of its or
his breach of any term or provision of this Agreement. In the event that either
party hereto brings suit for the collection of any damages resulting from, or
the injunction of any action constituting, a breach of any of the terms or
provisions of this Agreement, then the prevailing party shall pay all reasonable
court costs and attorneys' fees of the other.
15. GOVERNING LAW. The validity, interpretation and enforcement of this
Agreement shall be governed by and construed in accordance with the local laws
of the State of Florida (without giving effect to its conflicts of laws
provisions), and to the exclusion of the law of any other forum, without regard
to the jurisdiction in which any action or special proceeding may be instituted.
16. ENTIRE AGREEMENT. This Agreement contains and represents the entire
and complete understanding and agreement concerning and in reference to the
employment
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arrangement between the parties hereto. The parties hereto agree that no prior
statements, representations, promises, agreements, instructions, or
understandings, written or oral, pertaining to this Agreement, other than those
specifically set forth and stated herein, shall be of any force or effect. This
Agreement may be changed only by an agreement in writing signed by a party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
17. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be personally delivered by courier, sent by
registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as evidenced
by the return receipt thereof, or three (3) days after deposit in the U.S. mail.
Notice shall be sent: (a) if to the Company, addressed to 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000, Attention: President, or at such subsequent address of
the headquarters of the Company; and (b) if to the Executive, to his address as
reflected on the payroll records of the Company, or to such other address as
either party hereto may from time to time give notice of to the other.
18. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where applicable,
assigns, including, without limitation, any successor to the Company, whether by
merger, consolidation, sale of stock, sale of assets or otherwise.
19. WAIVERS. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate nor be construed as
a waiver of any subsequent breach or violation.
20. SECTION HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
21. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
22. INDEMNIFICATION.
(a) Subject to limitations imposed by law, the Company shall
indemnify and hold harmless the Executive to the fullest extent permitted by law
from and against any and all claims, damages, expenses (including attorneys'
fees), judgments, penalties, fines, settlements, and all other liabilities
incurred or paid by him in connection with the investigation, defense,
prosecution, settlement or appeal of any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and to which the Executive was or is a party or is threatened to
be made a party by reason of the fact that the Executive is or
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was an officer, employee or agent of the Company, or by reason of anything done
or not done by the Executive in any such capacity or capacities, provided that
the Executive acted in good faith, in a manner that was not grossly negligent or
constituted willful misconduct and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The Company also shall pay any and all expenses (including
attorney's fees) incurred by the Executive as a result of the Executive being
called as a witness in connection with any matter involving the Company and/or
any of its officers or directors.
(b) The Company shall pay any expenses (including attorneys'
fees), judgments, penalties, fines, settlements, and other liabilities incurred
by the Executive in investigating, defending, settling or appealing any action,
suit or proceeding described in this Section 22 in advance of the final
disposition of such action, suit or proceeding. The Company shall promptly pay
the amount of such expenses to the Executive, but in no event later than ten
(10) days following the Executive's delivery to the Company of a written request
for an advance pursuant to this Section 22, together with a reasonable
accounting of such expenses.
(c) The Executive hereby undertakes and agrees to repay to the
Company any advances made pursuant to this Section 22 if and to the extent that
it shall ultimately be found that the Executive is not entitled to be
indemnified by the Company for such amounts.
(d) The Company shall make the advances contemplated by this
Section 22 regardless of the Executive's financial ability to make repayment,
and regardless whether indemnification of the Executive by the Company will
ultimately be required. Any advances and undertakings to repay pursuant to this
Section 22 shall be unsecured and interest-free.
(e) The provisions of this Section 22 shall survive the
termination of this Agreement.
23. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in multiple counterparts, each of which shall be deemed and original and all of
which together shall constitute one and the same instrument. Facsimile
signatures hereon shall have the same legal force and effect as original
signatures.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the date first above written.
COMPANY:
MIRACOM CORPORATION., a Nevada corporation
By: /s/ Xxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxx
Chairman/Co-CEO/President
EXECUTIVE:
/s/ Xxx Xxxx
--------------------------------------
Name: Xxx Xxxx
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SCHEDULE A
MIRACOM CORPORATION
FORM OF
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") is made September ___, 1999,
by and between Miracom Corporation, a Nevada corporation (the "Company"), and
Xxx Xxxx (the "Employee").
AGREEMENT
1. Award of Restricted Stock. The Board hereby grants, as of September
___, 1999 (the "Date of Grant"), to Employee Ten Thousand (10,000) shares of the
Company's Common Stock, par value $.001 per share (the "Shares"), such Shares
being issued to the Employee under this Agreement are subject to the
restrictions provided under this Agreement and are referred to in this Agreement
as "Restricted Stock." The Shares specified in this Section 1 and (i) all shares
of the Company's capital stock received as a dividend or other distribution upon
such Shares, and (ii) all shares of capital stock or other securities of the
Company into which such Shares may be changed or for which such shares shall be
exchanged, whether through reorganization, recapitalization, stock split-ups or
the like, shall be subject to the provisions of this Agreement.
2. Vesting of Restricted Stock.
(a) Except as otherwise provided in Section 4 hereof, the Restricted
Stock shall become vested after the first to occur of the following:
(i) March 20, 2000;
(ii) on termination of the Employee's employment with the
Company by reason of the Employee's death or
Disability;
(iii) the Company's termination of Employee's employment
with the Company without Cause;
(iv) the sale of substantially all of the assets of the
Company; or
(v) the closing of an initial public offering of
securities by the Company.
(b) Notwithstanding any other provisions of this Agreement, the Board
shall be authorized in its discretion, based upon its review and evaluation of
the performance of the Employee and of the Company, to accelerate the vesting of
any Restricted Stock under this Agreement, at such times and upon such terms and
conditions as the Board shall deem advisable.
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(c) The Shares of Restricted Stock with respect to which the Employee
shall have become vested pursuant to this Section 2 are sometimes referred to as
the "Vested Shares", and any Shares of Restricted Stock with respect to which
the Employee shall not have become vested pursuant to this Section 2 are
sometimes referred to as the "Non-Vested Shares".
(d) Except as provided in Section 6 hereof, the Employee shall not
Transfer any Shares of Restricted Stock unless, until and only to the extent
that the Shares have become Vested Shares, and any attempt to effect a Transfer
of any Non-Vested Shares shall be void ab initio.
3. Delivery of Restricted Stock.
(a) One or more stock certificates evidencing the Restricted
Stock shall be issued in the name of the Employee but shall be held and retained
by the Company until the Shares become Vested Shares. All such stock
certificates shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR STATE SECURITIES LAWS OR, IN THE
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER,
PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS AS SET FORTH IN THE RESTRICTED STOCK
AGREEMENT, DATED AUGUST ____, 1999, BETWEEN THE COMPANY AND
THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE
OBTAINED AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH
RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES.
(b) The Employee shall deposit with the Company stock powers
or other instruments of transfer or assignment, duly endorsed in blank with
signature guaranteed, corresponding to each certificate for all Shares of
Restricted Stock until such Shares become Vested Shares. If the Employee shall
fail to provide the Company with any such stock power or other instrument of
transfer or assignment, the Employee hereby irrevocably appoints the President
of the Company as his attorney-in-fact to execute and deliver any such power or
other instrument which may be necessary to effectuate the transfer of the
Restricted Stock (or assignment of distributions thereon) on the books and
records of the Company.
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4. Forfeiture. If the Employee's employment with the Company is
terminated by the Company for Cause or voluntarily by the Employee, any
Non-Vested Shares that do not become Vested Shares by reason of such termination
pursuant to Section 2 hereof shall be returned to the Company and shall be
deemed to have been forfeited by the Employee. The Board shall have the power
and authority to enforce on behalf of the Company any rights of the Company
under this Agreement in the event of the Employee's forfeiture of Non-Vested
Shares pursuant to this Section 4.
5. Rights with Respect to Restricted Shares.
(a) Except as otherwise provided in this Agreement, the
Employee shall have, with respect to all Restricted Shares, all the rights of a
shareholder of the Company, including the right to vote such Shares and receive
cash dividends, if any, as may be declared on the Restricted Shares from time to
time. Any shares issued to the Employee as a dividend with respect to the
Restricted Shares shall have the same status and bear the same legends as the
Restricted Shares and shall be held by the Company, of the Restricted Shares are
being so held unless otherwise determined by the Board.
(b) In the event that the Restricted Shares, as a result of a
stock split or stock dividend or combination of shares or any other change or
exchange for other securities, by reclassification, reorganization or otherwise,
is increased or decreased or changed into or exchanged for a different number or
kind of shares of stock or other securities of the Company or of another
corporation, the number of Restricted Shares shall be appropriately adjusted to
reflect such change. If any such adjustment shall result in a fractional share,
such fraction shall be disregarded.
6. Taxes.
(a) If the Employee properly elects, within thirty (30) days
of the Date of Grant, to include in gross income for federal income tax purposes
an amount equal to the fair market value (as of the Date of Grant) of the
Restricted Stock pursuant to Section 83(b) of the Internal Revenue Code of 1986,
as amended (the "Code"), the Employee shall make arrangements satisfactory to
the Board to pay to the Company any federal, state or local income taxes
required to be withheld with respect to the Restricted Stock. If the Employee
shall fail to make such tax payments as are required, the Company shall, to the
extent permitted by law, have the right to deduct from any payment of any kind
otherwise due to the Employee any federal, state or local taxes of any kind
required by law to be withheld with respect to the Restricted Stock.
(b) If the Employee does not make the election described in
Subsection 6(a) above, the Employee shall, no later than the date as of which
the Restrictions referred to in this Agreement hereof shall lapse, pay to the
Company, or make arrangements satisfactory to the Board for payment of, any
federal, state or local taxes of any kind required by law to be withheld with
respect to the Restricted Stock, and the Company shall, to the extent permitted
by law, have the right to deduct from any payment of any kind otherwise due to
Employee any federal, state, or local taxes of any kind required by law to be
withheld with respect to the Restricted Stock.
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7. Amendment, Modification and Assignment. No provision of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing signed by the Employee and the Chairman or
other duly authorized member of the Board. No waiver by either party of any
breach by the other party hereto of any condition or provision of this Agreement
shall be deemed a waiver of any other conditions or provisions of this
Agreement. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. This Agreement shall
not be assigned by the Employee in whole or in part. The rights and obligations
created hereunder shall be binding on the Employee and his heirs and legal
representatives and on the successors and assigns of the Company.
8. Employee's Representations. The Employee shall, if required by the
Company, concurrently with the execution of this Agreement, deliver to the
Company his Investment Representation Statement in the form attached to this
Agreement as Exhibit A or in such other form as the Company may request.
9. Adjustment of Shares. Subject to any required action by the
shareholders of the Company, the number of Shares covered by this Agreement
shall be proportionately adjusted for any increase or decrease in the number of
issued and outstanding shares of Common Stock of this Company resulting from a
stock dividend or through any recapitalization, reclassification, stock
split-up, combination or Company exchange of shares (other than any such
exchange or issuance of shares through which capital stock is issued to effect
an acquisition of another business or entity). Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number of Shares
subject to this Agreement. If any such adjustment shall result in a fractional
share, such fraction shall be disregarded.
10. Transactions by the Company. Notwithstanding any term or provision
of this Agreement to the contrary, the existence of this Agreement, or of any
outstanding Shares awarded hereunder, shall not affect in any manner the right,
power or authority of the Company to make, authorize or consummate: (i) any or
all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger, share exchange or
consolidation by or of the Company; (iii) any issue by the Company of debt
securities, or preferred or preference stock, that would rank prior to or on
parity with the Shares; (iv) the dissolution or liquidation of the Company; (v)
any sale, transfer or assignment of all or any part of the stock, assets or
business of the Company; or (vi) any other corporate transaction, act or
proceeding (whether of a similar character or otherwise).
11. Definitions. Unless otherwise defined herein, these terms shall
have the following definitions:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Cause" shall have the same meaning as in the employment
agreement between the Company and Employee, dated of even date herewith (the
"Employment Agreement").
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(c) "Disability" shall have the same meaning as in the
Employment Agreement.
12. Miscellaneous.
(a) No Right to Employment. The grant of the Restricted Shares
shall not be construed as giving the Employee the right to be retained in the
employ of the Company.
(b) No Limit on Other Compensation Arrangements. Nothing
contained in this Agreement shall preclude the Company from adopting or
continuing in effect other or additional compensation arrangements, and such
arrangements may be either generally applicable or applicable only in specific
cases.
(c) Severability. If any provision of this Agreement is or
becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction
or would disqualify this Agreement or the grant under any applicable law, such
provision shall be construed or deemed amended to conform to applicable law (or
if such provision cannot be so construed or deemed amended without materially
altering the purpose or intent of this Agreement and the grant, such provision
shall be stricken as to such jurisdiction and the remainder of this Agreement
and the grant shall remain in full force and effect).
(d) No Trust or Fund Created. Neither this Agreement nor the
grant of Restricted Shares shall create or be construed to create a trust or
separate fund of any kind or a fiduciary relationship between the Company and
the Employee or any other person. To the extent that the Employee or any other
person acquires a right to receive payments from the Company pursuant to this
Agreement, such right shall be no greater than the right of any unsecured
general creditor of the Company.
(e) Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
Florida.
(f) Headings. Headings are given to the Paragraphs and
Subparagraphs of this Agreement solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or relevant to the
construction or interpretation of this Agreement or any provision thereof.
13. Complete Agreement; Binding Agreement. This Agreement and those
agreements and documents expressly referred to herein embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
The terms of this Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of Employee.
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14. Notices. Any notice under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered personally or when
deposited in the United States mail, registered, postage prepaid, and addressed,
in the case of the Company, to the Company's offices at 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000, or if the Company should move its principal office, to
such principal office, and, in the case of the Employee, to the Employee's last
permanent address as shown on the Company's records, subject to the right of
either party to designate some other address at any time hereafter in a notice
satisfying the requirements of this Section.
15. Termination of Agreement. Restricted Stock, to the extent not
previously vested, shall become Vested Shares upon the closing of an initial
public offering of common stock by the Company and, in such instance, this
Agreement shall terminate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
MIRACOM CORPORATION
By:
Xxxxx Xxxxx
President
XXX XXXX, Employee
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EXHIBIT A
INVESTMENT REPRESENTATION STATEMENT
EMPLOYEE : Xxx Xxxx
COMPANY : Miracom Corporation
SECURITY : Restricted Common Stock
AMOUNT : 10,000 Shares (the "Securities")
DATE : September ____, 1999
In connection with the grant of the above-referenced Securities, I, the
Employee, represent to the Company the following:
(a) Employee either:
(i) has a pre-existing personal or business relationship with
the Company or one or more of its officers, directors or controlling persons, or
(ii) by reason of the Employee's business or financial
experience or the business or financial experience of Employee's professional
advisors who are unaffiliated with and who are not compensated by the Company or
any affiliate or selling agent of the Company, directly or indirectly, could be
reasonably assumed to have the capacity to protect Employee's own interests in
connection with the acquisition of the Securities.
(b) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities. I am receiving
the Securities for my own account for investment purposes only and not with a
view to, or for the resale in connection with, any "distribution" thereof for
purposes of the Securities Act of 1933, as amended (the "Securities Act").
(c) I understand that the Company's issuance of the Securities has not
been registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of my investment intent as expressed herein. In this connection, I
understand that, in the view of the Securities and Exchange Commission (the
"SEC"), the statutory basis for such exemption may be unavailable if my
representation was predicated solely upon a present intention to hold these
Securities for the minimum capital gains period specified under tax statutes,
for a deferred sale, for or until an increase or decrease in the market price of
the Securities, or for a period of one year or any other fixed period in the
future.
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(d) I further understand that the Securities must be held indefinitely
unless the transfer is subsequently registered under the Securities Act or
unless an exemption from registration is otherwise available. Moreover, I
understand that the Company is under no obligation to register any transfer of
the Securities. In addition, I understand that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless registered or such registration is not required in the opinion
of counsel for the Company.
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Dated: _______________, 1999 XXX XXXX
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