AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Agreement (this "Amended Agreement") is
made as of this 22nd day of March 2000, by and between eConnect,
a Nevada corporation (the "Company"), Xxxxxxx X. Xxxxxx (the
"Executive"), and Xxxxxxxx & Xxxxxx, the Executive's law firm.
Recitals
A. Xxxxxxx X. Xxxxxx is a partner of Xxxxxxxx & Xxxxxx, which
was retained by the Company to act as its counsel in connection
with an investigation conducted by the Securities and Exchange
Commission.
B. Effective March 21, 2000, Executive and the Company entered
into an Employment Agreement (the "original Agreement"), which
Original Agreement was approved on that day by the Company's
Board of Directors and executed by Xxx Xxxxxx, on behalf of the
Company, and Executive.
C. Upon executing the Original Agreement, Xxxxxxxx & Xxxxxx was
terminated as counsel for the Company.
X. Xxxxxxxx & Xxxxxx has informed the Company, who has had an
opportunity to consult with outside counsel, that it and Xxxxxxx
X. Xxxxxx have a direct conflict of interest with respect to this
Amended Agreement and do not represent the Company's interests in
this regard. The Company has had other counsel review and
provide it advice on this Amended Agreement and consents, after
full disclosure to enter into this Amended Agreement.
E. The Company desires to change the Executive's position in
the Company, effective immediately, from interim Chief Executive
Officer, under the terms and conditions set forth in the Original
Agreement, to outside counsel, in his capacity as a partner of
Xxxxxxxx & Xxxxxx, for the first three months of this Amended
Agreement, and then General Counsel and Executive Vice President
of the Company starting June 22, 2000, pursuant to the terms and
conditions of this Amended Agreement; and
F. Executive is willing to accept such change in his position,
provided his compensation under the Original Agreement is not
materially altered and otherwise on the terms and conditions set
forth in this Amended Agreement.
Covenants
1. Position and Term of Employment. Effective at noon Pacific
Standard Time on March 22, 2000, Executive shall resign as the
Chief Executive Officer of eConnect. Instead, commencing at the
same moment, the Company shall employ Xxxxxxxx & Xxxxxx for a
period of three months as its outside co-counsel with Xxxxxx,
Xxxxx & Bockius for purposes of the ongoing investigation by the
Securities and Exchange Commission. Neither Executive nor
Xxxxxxxx & Xxxxxx shall be an officer of the Company during this
period. At the end of such three month period, starting June 22,
2000, the Company shall employ Executive individually as its
General Counsel and Executive Vice President. The term of the
Executive's employment as General Counsel and Executive Vice
President shall be three years, commencing on June 22, 2000 and
ending three years later, June 22, 2003, unless terminated sooner
pursuant to Section 3 of this Amended Agreement. During the term
hereof, Xxxxxxxx & Xxxxxx, for the first three months, and
Executive, for the remainder of the term of this Amended
Agreement, shall devote a substantial portion of Executive's
time, skill and attention and Executive's best efforts in
carrying out its or his duties and promoting the best interests
of the Company.
2. Executive Compensation.
2.1 Base Salary. The Company, Executive and Xxxxxxxx & Xxxxxx
agree that the Base Salary of $20,000 per month, which has been
paid to Executive in advance for the first six months pursuant to
the terms of the Original Agreement, shall continue to be the
Base Salary to be paid to Executive under this Amended Agreement
for the entire term of this Amended Agreement. However, for the
three-month period of this Amended Agreement during which
Xxxxxxxx & Xxxxxx shall be employed hereunder, such Base Salary
shall be earned by Xxxxxxxx & Xxxxxx instead of Executive
individually, and thereafter by Executive individually.
2.2 Earned on Receipt Signing Bonus. The Company, Executive and
Xxxxxxxx & Xxxxxx confirm and agree that the signing bonus set
forth in sections 2.2, 2.2.1, 2.2.2 and 2.2.3 of the Original
Agreement (the "Signing Bonus") was earned by Executive at the
moment of the execution of the Original Agreement; to the extent
not yet paid remains due and payable to Executive; and that
nothing herein should be construed to alter or amend Executive's
right to receive such Signing Bonus in full. To the extent any
portion of such Signing Bonus is construed by a Court of
competent jurisdiction not to have been earned on signing the
Original Agreement or otherwise prior to this Amended Agreement,
then as to such portion of the Signing Bonus, the Company and
Executive hereby agree that the Company shall pay Executive all
of such Signing Bonus and transfer all of such securities in
consideration for the compromise reflected in this Amended
Agreement.
2.2.1 In respect of section 2.2.1 of the Original Agreement,
the $100,000 paid to Executive shall be retained by Executive.
2.2.2 In respect of section 2.2.2 of the Original Agreement,
the Company immediately shall cause 400,000 shares of freely
tradable eConnect common stock to be transferred to Executive's
brokerage account, pursuant to Executive's instructions. At the
end of each of the first six months of this Amended Agreement,
the Company shall cause an additional 100,000 shares of freely
tradable eConnect common stock to be transferred to Executive's
brokerage account, pursuant to Executive's instructions.
2.2.3 In respect of section 2.2.3 of the Original Agreement,
the Company immediately shall cause 400,000 of the Company's
warrants, exercisable at $1.00 per share, to be vested in full,
registered, eligible for cashless exercise, and exercisable for a
period of twelve months ending March 21, 2001, to be transferred
to Executive's brokerage account, pursuant to Executive's
instructions. At the end of each of the first six months of this
Amended Agreement, the Company shall cause an additional 100,000
share of the Company's warrants on the same terms to be
transferred to Executive's brokerage account, pursuant to
Executive's instructions.
2.2.4 Although the Original Agreement calls for transfers of
100,000 shares and 100,000 warrants each month for the term of
that Original Agreement, the Company and Executive understand and
agree that such compensation shall be paid only for the first six
months of the term of this Amended Agreement, despite the fact
that the term of this Amended Agreement is thirty nine months,
rather than six months, as provided in the Original Agreement.
2.3 Executive also shall be eligible for such other upper level
management compensation programs as may be in existence at the
Company at the time of his employment and from time to time
thereafter and that the term of his employment for all purposes
shall be calculated as commencing March 21, 2000.
2.4 If Executive resigns voluntarily (exclusive of a voluntary
resignation under section 3.4 of this Amended Agreement), or
ceases to be employed by the Company for any reason described in
Section 3.1 or 3.3 of this Amended Agreement, Executive shall
return the pro-rata portion of his Base Salary that is unearned
as of the date of such termination. All other compensation
provided in this Amended Agreement and in the Original Agreement
shall be treated as having been earned upon the execution of the
Original Agreement or this Amended Agreement, whichever is
earliest as the case may be, and in any event shall not be
returned by Executive under any circumstances contemplated by
this Amended Agreement.
2.5 Expenses. During the term hereof, the Company shall pay or
reimburse Executive and Xxxxxxxx & Xxxxxx for a monthly auto
allowance of $1,000, payment of Executive's life insurance
premium on $2 million term life insurance, and cellular phone
expenses.. Executive shall also be eligible for reimbursement in
accordance with the Company's normal practices, including but not
limited to any travel, hotel and other expenses or disbursements
reasonably incurred or paid by Executive in connection with the
services performed by Executive hereunder.
2.6 Other Benefits. Executive shall be entitled to participate
in life, medical, dental, hospitalization, disability and life
insurance benefit plans made available by the Company to its
salaried employees and shall also be eligible to participate in
existing retirement or pension plans offered by the Company to
its salaried employees.
2.7 Directors and Officers Insurance. Prior to the commencement
of Executive's role as General Counsel and Executive Vice
President on June 22, 2000, the Company shall provide Executive
Directors and Officers Insurance by an insurance company
acceptable to Executive ensuring Executive against liability up
to $20 million per occurrence, effective throughout the term of
this Amended Agreement. If no such insurance is obtained in
advance, then in addition to is obligation to obtain such
insurance forthwith, the Company immediately and before June 22,
2000 shall pay a retainer in the amount of $250,000 to a law firm
of Executive's choice, for the sole benefit of Executive, for the
purpose of providing costs of defense, liability and/or
settlement of any action that may be brought against Executive in
connection with or arising out of the Original Agreement, this
Amended Agreement and/or his employment with the Company, and to
pay such other claims as Executive may have against the Company
under the terms of this Amended Agreement. Such retainer, once
paid, shall be refundable to the Company only upon the written
consent and approval of Executive.
2.8 Indemnification. The Company shall indemnify Executive,
Xxxxxxxx & Xxxxxx and Xxxxx x. Xxxxxxxx, to the maximum extent
permitted by applicable law, against all liabilities, costs,
charges and expenses (including reasonable attorneys' fees and
disbursements) incurred or sustained by it or them in connection
with any action, suit or proceeding to which it, he or they may
be made a party as a result of their services hereunder or under
the Original Agreement on behalf of the Company pursuant to this
Amended Agreement or the Original Agreement, provided that such
liabilities, costs, charges and expenses do not result from the
willful misconduct or gross negligence of such indemnified
parties.
2.9 Fees and Expenses. The Company shall pay all legal fees and
related expenses (including the costs of experts, evidence and
counsel) incurred by the Executive as they become due as a result
of (a) the Executive's termination of employment (including all
such fees and expenses, if any, incurred in contesting or
disputing any such termination of employment), and (b) the
Executive seeking to obtain or enforce any right or benefit
provided by this Amended Agreement, including, but not limited
to, any such fees and expenses incurred in connection with any
dispute regarding the Signing Bonus, whether as a result of any
applicable government proceeding, audit or otherwise.
3. Termination.
3.1 This Amended Agreement shall terminate upon Executive's
death.
3.2 The Company may terminate Executive's and/or Xxxxxxxx &
Xxxxxx' employment hereunder upon fifteen (15) days' written
notice if in the opinion of the Board of Directors, Executive's
physical or mental disability has continued or is expected to
continue for one hundred and eighty (180) consecutive days and as
a result thereof, Executive will be unable to continue the proper
performance of his duties hereunder.
3.3 The Company may terminate Executive's employment hereunder
"for cause" (as hereinafter defined). If Executive's employment
is terminated for cause, Executive's salary and all other rights
not then vested under this Amended Agreement shall terminate upon
written notice of termination being given by Executive. As used
herein, the term "for cause" shall exclusively mean the
occurrence of any of the following:
3.3.1 Executive's disregard of a direct, material order of
the Executive Committee or the Board of Directors of the Company,
the substance of which order is (a) a proper duty of Executive
pursuant to this Amended Agreement; (b) permitted by law and (c)
otherwise permitted by this Amended Agreement, which disregard
continues after fifteen (15) days' opportunity and failure to
cure; or
3.3.2 Executive's conviction of a felony or any crime
involving moral turpitude.
3.4 Executive and Xxxxxxxx & Xxxxxx may terminate this Amended
Agreement at any time if Executive believes, in good faith, that
the Company has violated the securities law or regulations and,
after 15 days written notice of such violations, fails to take
all appropriate measures to cure such violations. In the event
the Company and Executive disagree as to what "appropriate
measures" are necessary to cure such violations, Xxx Xxxxxx of
Xxxxxx, Xxxxx & Xxxxxxx, or such other lawyer assigned by that
firm in its sole and absolute discretion, shall be the sole
arbitrator of such dispute. The Company hereby waives any and
all conflicts of interest related to such decision. In addition,
Executive and Xxxxxxxx & Xxxxxx may terminate this Amended
Agreement at any time if Executive believes, in good faith, that
the Company intends to violate the securities law or regulations
by making a public disclosure containing material errors and
omissions. In the event the Company and Executive disagree as to
whether such public disclosure violates the securities law or
regulations, then Xxx Xxxxxx of Xxxxxx, Xxxxx & Xxxxxxx, or such
other lawyer assigned by that firm in its sole and absolute
discretion, shall be the sole arbitrator of such dispute. The
Company hereby waives any and all conflicts of interest related
to such decision. In the event Executive or Xxxxxxxx & Xxxxxx
terminates this Amended Agreement under this provision, such
termination shall be treated as a termination by the Company
pursuant to section 3.2 above, and Executive and Xxxxxxxx &
Xxxxxx shall be entitled to all compensation provided under
section 2, section 2.1 through 2.9, inclusive, of this Amended
Agreement.
4. Successors and Assigns. This Amended Agreement is intended
to bind and inure to the benefit of and be enforceable by
Executive, Xxxxxxxx & Xxxxxx and the Company and their respective
legal representatives, successors and assigns. Neither this
Amended Agreement nor any of the duties or obligations hereunder
shall be assignable by Executive or Xxxxxxxx & Xxxxxx.
5. Governing Law; Jurisdiction. This Amended Agreement shall
be interpreted and construed in accordance with the laws of the
State of California. Each of the Company and Executive consents
to the jurisdiction of any state or federal court sitting in
California, in any action or proceeding arising out of or
relating to this Amended Agreement.
6. Headings. The paragraph headings used in this Amended
Agreement are for convenience of reference only and shall not
constitute a part of this Amended Agreement for any purpose or in
any way affect the interpretation of this Amended Agreement.
7. Severability. If any provision, paragraph or subparagraph
of this Amended Agreement is adjudged by any court to be void or
unenforceable in whole or in part, this adjudication shall not
affect the validity of the remainder of this Amended Agreement.
8. Complete Agreement. This document and the Original
Agreement embody the complete agreement and understanding among
the parties, written or oral, which may have related to the
subject matter hereof in any way and shall not be amended orally,
but only by the mutual agreement of the parties hereto in
writing, specifically referencing this Amended Agreement.
9. Survivorship. This Amended Agreement, including all
provisions in Section 2, 2.1 through 2.9, inclusive, shall
survive the termination of this Amended Agreement under Section 3
or otherwise.
10. Counterparts. This Amended Agreement may be executed in one
or more separate counterparts, all of which taken together shall
constitute one and the same Agreement. This Amended Agreement
shall be valid and enforceable once signed by a duly authorized
representative of each of the Parties, whether such signature is
transmitted by facsimile, represented by a photocopy or in
original form.
eConnect
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Title: Chairman & CEO
Executive
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Title: Interim Chief Executive Officer
