EXHIBIT NO. 6.9
EMPLOYMENT AGREEMENT BETWEEN INTEGRATED
SYSTEMS INTERNATIONAL, INC. AND XXXXXX X. ALFRIED
DATED MARCH 14, 2000.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, entered into as of the 14th day of March, 2000,
by and between Integrated Systems International, Inc., a Nevada corporation,
with its principal place of business at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Company"), and Xxxxxx X. Xxxxxx, residing at 000 Xxxxxxx Xxxxxxx,
#0X Xxxxxxxx, Xxx Xxxx 00000 (the "Employee").
W I T N E S S E T H :
WHEREAS, the Company wishes to employ the Employee upon the terms and
conditions contained herein; and
WHEREAS, the Employee wishes to accept employment with the Company upon
the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the parties hereto hereby
agree as follows:
1. EMPLOYMENT
The Company hereby employs the Employee and the Employee hereby accepts
employment upon the terms and conditions set forth herein.
2. AT WILL EMPLOYMENT
The employment hereunder shall be "at will" and the Employee will serve
at the will of the Board of Directors and may be terminated by the Board of
Directors at any time for any reason. Nothing in this Agreement will be
interpreted to give the Employee any status other than that of an "at will"
employee. Upon termination of this Agreement by the Company, the Company shall
pay Employee a sum equal to one month salary.
3. SERVICES TO BE RENDERED
(a) The Employee shall serve as a Vice President of the Company
and shall perform duties consistent with those of a Vice President and such
other duties as shall be designated from time to time by the President, Board of
Directors or Chairman of the Company. He will report directly to the President.
The Employee will be one of the Company's principal operating officers and will
conduct and manage the Company's business in accordance with policies
established by the Company from time to time. The precise services of the
Employee may be extended or curtailed from time to time at the direction and in
the sole discretion of the Company's President. Unless prevented by death or
disability, the Employee shall devote his full business time, allowing for
vacations and national holidays, as set forth in Sections 5(d) and (e) hereof,
and illnesses, exclusively to the business and affairs of the Company, and shall
use his best efforts, skill and abilities to promote the Company's interests. As
an officer of the Company, the Employee shall
be entitled to all rights of indemnification as may be provided to officers by
applicable Nevada law. Nothing herein shall be construed as requiring the
Company, or anybody else, to cause the election of the Employee as a Director of
the Company.
4. COMPENSATION
For the services rendered hereunder, the Company shall pay and the
Employee shall accept the following compensation:
(a) From the commencement of the term hereof until termination,
the Employee shall receive a base annual salary of $60,000, payable monthly,
subject to increase pursuant to annual review by the Board of Directors.
(b) The Employee shall receive any bonus or other compensation as
the Board of Directors may determine from time to time.
(c) The Employee's salary shall be payable subject to such
deductions as are then required by law and such further deductions as may be
agreed to by the Employee, in accordance with the Company's prevailing salary
payroll practices.
(d) Upon Execution of this Agreement, Employee shall receive Three
Hundred Thousand (300,000) shares of the Company's common stock, subject to
forfeiture (in whole or in part as provided herein) if Employee's employment is
terminated for any reason or no reason on or before March 1, 2003. As of the
date hereof, the entire Three Hundred Thousand (300,000) shares shall be
subject to forfeiture. Commencing on September 1, 2000 and each 6 months
thereafter (i.e. each March 1 and each September 1 occurring while this
Agreement remains in effect) to and including April 1, 2003, provided this
Agreement remains in effect, the number of shares subject to forfeiture shall be
reduced by 50,000. Thus, as an example of the foregoing, on September 1, 2000,
provided this Agreement is in effect, Fifty Thousand (50,000) shares shall
forever no longer be subject to forfeiture pursuant to this Section.
Certificates for shares subject to forfeiture shall be held in escrow by the
Company's counsel and released to Employee, if as and when (and to the extent)
same are no longer subject to forfeiture.
5. BENEFITS AND EXPENSES
(a) After three (3) months from the date hereof, the Company shall
provide the Employee with health insurance coverage that is comparable to
insurance benefits generally offered in the industry, at the Company's sole
expense.
(b) In the event that the Employee's employment by the Company is
terminated for any reason, the Employee shall have the right to purchase from
the Company any insurance policies on his life owned by the Company for a price
equal to the cash surrender value of the policies at the date of such
termination, plus prepaid premiums, and to acquire any disability income
insurance policies maintained for him as provided in such policies. The right to
purchase shall be exercised by the Employee by written notice to the Company not
less than thirty (30) days
after the date of such termination, and the Employee shall pay the purchase
price for such policies to the Company.
(c) During the term of this Agreement, the Company shall,
upon presentation of proper vouchers, reimburse the Employee for all reasonable
expenses incurred by him directly in connection with his performance of services
as an officer and employee of the Company.
(d) The Employee shall be entitled to three (3) weeks of
paid vacation per calendar year. Vacation entitlements are non-cumulative except
that a total of up to ten (10) unused vacation days per year may be carried over
into the next calendar year. Notwithstanding the foregoing, the parties agree
that for the calendar year ending December 31, 2000, the Employee will be
entitled to two (2) weeks of paid vacation.
(e) The Employee shall receive as paid days off all
national holidays, sick days, and personal days that the Company, pursuant to
established policy, recognizes and observes.
6. COVENANTS AND RESTRICTIONS
(a) The Employee hereby covenants and agrees that the
Employee will not at any time subsequent to the date hereof and continuing for a
period of two (2) years from the termination of the Employee, reveal, divulge,
or make known to any Person any Confidential Information (as hereinafter
defined) made known to the Employee or of which Employee has become aware,
regardless of whether developed, prepared, devised or otherwise created in whole
or in part by the efforts of the Employee and except to the extent so authorized
in writing by the Company in order to carry out the terms of this Agreement or
except as required by law. For purposes of this Agreement, the term
"Confidential Information" shall mean (i) any technical, scientific or
engineering information relating to the Company's products and/or services, (ii)
information relating to any customer of the Company, including without
limitation, the names, addresses, telephone numbers and sales records of, or
pertaining to any such customer, and (iii) price lists, methods of operation
and other information pertaining to the Company and which the Company, in its
sole discretion, regards as confidential and in the nature of trade secrets.
Notwithstanding anything contained herein to the contrary, Confidential
Information as used herein shall not include that which (i) was in the public
domain prior to receipt hereunder in the same context as the disclosure made
hereunder, (ii) the Employee can show was in his possession and in the same
context prior to his receipt, (iii) subsequently becomes known to the Employee
as a result of disclosure by third parties not in the course of this Agreement
and as a matter of right and without restriction on disclosure, or (iv)
subsequently comes into the public domain in the same context as the disclosure
by the Company through no fault of the Employee.
(b) The Employee further covenants and agrees that the
Employee will retain all of such Confidential Information in trust for the sole
benefit of the Company, and will not divulge or deliver or show any of such
Confidential Information to any unauthorized person and will not make use of or
in any manner seek to turn to account any of such Confidential Information in an
independent business however unrelated to the business of the Company. The
Employee further agrees that upon the termination of this Agreement or upon the
request of the
Company, the Employee will either supply or return to the Company, in accordance
with the Company's request, all Confidential Information in the Employee's
possession, including, without limitation, all account lists, records and data
related to all customers of the Company.
(c) The Employee acknowledges that his breach or
threatened violation of any of the restrictive covenants contained in this
Section 6 may cause irreparable damage to the Company for which remedies at law
would be inadequate. The Employee further acknowledges that the restrictive
covenants set forth herein are essential terms and conditions of this Agreement.
The Employee therefore agrees that the Company shall be entitled to a decree or
order by any court of competent jurisdiction enjoining such threatened or actual
violation of any of such covenants. Such decree or order, to the extent
appropriate, shall specifically enforce the full performance of any such
covenant by the Employee and the Employee hereby consents to the jurisdiction of
any such court of competent jurisdiction. This remedy shall be in addition to
all other remedies available to the Company at law or equity. If any portion of
this Section 6 is adjudicated to be invalid or unenforceable, this Section 6
shall be deemed amended to delete therefrom the portion so adjudicated, such
deletion to apply only with respect to the operation of this Section 6 in the
jurisdiction in which such adjudication is made.
7. PROPRIETARY PROPERTY
(a) The parties hereto hereby agree that Proprietary
Property (as hereinafter defined) shall be the sole and exclusive property of
the Company, except as provided below. For purposes hereof, the term
"Proprietary Property" shall mean inventions, discoveries, improvements and
ideas, whether patentable or not, made solely by the Employee or jointly with
others, which relate to the Company's business, including any of its products,
services, processes, technology, research, product development, marketing
programs, manufacturing operations, or engineering activities.
(b) The Employee shall promptly disclose to the Company
in writing all Proprietary Property, including those in the formative stages,
created during the term hereof, irrespective of whether created during normal
business hours. In addition, the Employee hereby agrees to promptly disclose to
the Company all Proprietary Property created subsequent to the date of
termination hereof, irrespective of the reasons for termination hereof, which
relate to or constitute an improvement on Proprietary Property or Confidential
Information, as defined herein.
(c) The Employee hereby agrees and acknowledges that the
Employee shall have no right, title or interest in or with respect to any
Proprietary Property, except as described below, and will during the term hereof
or at any time subsequent to the termination hereof, at the Company's request
and expense, execute any and all patent applications and assignments to the
Company and take any all action as required by the Company to perfect and
maintain the Company's rights and interests in and with respect to the
Proprietary Property.
(d) The Employee hereby agrees to maintain written
records concerning the Proprietary Property and agrees to make those records
available to the Company at all times.
(e) Notwithstanding anything contained herein to the
contrary, Proprietary Property shall not include inventions or discoveries with
respect to which all of the following conditions apply:
(i) no equipment, supplies, facilities or
Confidential Information of the Company was used in
its development;
(ii) it does not relate the Company's business and/or
any proposed or planned products or services of the
Company, including any research and development
activities; and
(iii) it does not result from any work performed by
the Employee for the Company.
(f) During or subsequent to the Employee's employment by
Company, the Employee will not, directly or indirectly, lecture upon, publish
articles concerning, use, disseminate, disclose, sell or offer for sale any
Proprietary Property without the Company's prior written permission.
8. PRIOR AGREEMENTS
The Employee represents that he is not now under any written agreement,
nor has he previously, at any time, entered into any written agreement with any
person, firm or corporation, which would or could in any manner preclude or
prevent him from giving freely and the Company receiving the exclusive benefit
of his services.
9. NON-COMPETE
The Employee recognizes that the Proprietary Property is a special and
unique asset of the Company and needs to be protected from improper disclosure.
In consideration of the disclosure of the Proprietary Property to the Employee,
the Employee agrees and covenants that for a period of one (1) year following
the termination of his employment for any reason whatsoever, the Employee will
not directly or indirectly engage in any business that is competitive to the
Company. This covenant shall apply to the geographical area that includes the
entire world. "Directly or indirectly engaging in any business that is
competitive" includes, but is not limited to: (a) engaging in a business as an
owner, partner or agent, (b) becoming an employee of any third party that is
engaged in such business, (c) becoming interested directly or indirectly in any
such business, or (d) soliciting any customer of the Company for the benefit of
a third party that is engaged in such business. The Employee agrees that this
non-compete provision will not adversely affect the Employee's livelihood.
10. MEDIATION AND ARBITRATION.
(a) If any dispute, controversy or claim arises in
connection with the performance or breach of this Agreement between the parties,
a party hereto may, upon written notice to the other parties, request
facilitated negotiations. Such negotiations shall be assisted by a neutral
facilitator acceptable to all parties and shall require the best efforts of the
parties to discuss with each other in good faith their respective positions and,
respecting their different interest, to finally resolve such dispute.
(b) A party may disclose any facts to the other parties
or to the facilitator which such party believes, in good faith, to be necessary
to resolve the dispute. All such disclosures shall be deemed in furtherance of
settlement efforts and thus confidential. Except as agreed to by all parties,
the facilitator shall keep confidential all information disclosed during the
negotiations. The facilitator shall not act as a witness for either party in any
subsequent arbitration between the parties.
(c) Such facilitated negotiations shall conclude within
sixty (60) days from receipt of the written notice, unless extended by mutual
consent of the parties. The costs incurred by each party in such negotiations
shall be borne by it. Any fees or expenses of the facilitator shall be borne
equally by all parties.
(d) If any dispute, controversy or claim arises in
connection with the performance or breach of this Agreement which cannot be
resolved by facilitated negotiations, then such dispute, controversy or claim
shall be settled by arbitration in accordance with the laws of the State of New
York and the then current Commercial Arbitration Rules of the American
Arbitration Association, except that no pre-hearing discovery will be permitted
unless specifically authorized by the arbitration panel. The confidentiality
provisions applicable to facilitated negotiations shall also apply to
arbitration.
(e) The award issued by the arbitration panel may be
confirmed in a judgment by any federal or state court of competent jurisdiction.
All reasonable costs of both parties, as determined by the arbitration panel,
including (i) the fees and expenses of the American Arbitration Association and
of the arbitration panel, and (ii) the costs, including reasonable attorneys'
fees, incurred to confirm the award in court, shall be borne entirely by the
non-prevailing party (to be designated by the arbitration panel in the award)
and may not be allocated between the parties by the arbitration panel.
11. MISCELLANEOUS
(a) This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, and upon the Employee, his
heirs, executors, administrators, legatees and legal representatives.
(b) Should any part of this Agreement, for any reason
whatsoever, be declared invalid, illegal, or incapable of being enforced in
whole or in part, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties hereto that they would
have executed the remaining portion of this Agreement without including therein
any portion which may for any reason be declared invalid.
(c) This Agreement shall be construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State without application of the principles of
conflicts of laws of such State.
(d) This Agreement and all rights hereunder are personal
to the Employee and shall not be assignable, and any purported assignment in
violation thereof shall be null and void. Any person, firm or corporation
succeeding to the business of the Company by merger, consolidation, purchase of
assets or otherwise, shall assume by contract or operation of law the
obligations of the Company hereunder; provided, however, that the Company shall,
notwithstanding such assumption and/or assignment, remain liable and responsible
for the fulfillment of the terms and conditions of the Agreement on the part of
the Company.
(e) This Agreement constitutes the entire agreement
between the parties hereto with respect to the terms and conditions of the
Employee's employment by the Company, as distinguished from any other
contractual arrangements between the parties pertaining to or arising out of
their relationship, and this Agreement supersedes and renders null and void any
and all other prior oral or written agreements, understandings, or commitments
pertaining to the Employee's employment by the Company. This Agreement may only
be amended upon the written agreement of both parties hereto.
(f) Any notice, statement, report, request or demand
required or permitted to be given by this Agreement shall be in writing, and
shall be sufficient if delivered in person or if addressed and sent by certified
mail, return receipt requested, postage prepaid, to the parties at the addresses
set forth above, or at such other place that either party may designate by
notice in the foregoing manner to the other. If mailed as aforesaid, any such
notice shall be deemed given three (3) days after being so mailed.
(g) The failure of either party to insist upon the
strict performance of any of the terms, conditions and provisions of this
Agreement shall not be construed as a waiver or relinquishment of future
compliance therewith, and said terms, conditions and provisions shall remain in
full force and effect. No waiver of any term or any condition of this Agreement
on the part of either party shall be effective for any purpose whatsoever
unless such waiver is in writing and signed by such party.
(h) The provisions of Sections 6, 7, 9, 10 and 11 of
this Agreement shall survive any termination of this Agreement.
(i) The headings of the paragraphs herein are inserted
for convenience and shall not affect any interpretation of this Agreement.
(j) Employee warrants and avers that he has not
previously been subject to arrest or otherwise convicted of any crime by a
court of competent jurisdiction within or without the United States of America
and further states that he has not been or is presently the subject of any
criminal investigation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
Employee Integrated Systems International, Inc.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxxx
----------------------- -------------------------------
Xxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: President
