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EXHIBIT 10.44
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of August 13, 1999,
by and between Xxxxxxx Xxxx ("Employee"), 00000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxx, XX
00000, and Xxxxxxxxx.xxx, Inc., a Delaware business corporation with its
principal place of business at 0000X Xxxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
("CROSSWALK"), each a "party" and collectively the "parties." In consideration
of the Plan of Reorganization and Agreement, entered into on or about the date
hereof by and among CROSSWALK, Xxxx Associates, Inc. and Employee, and the
employment of Employee by CROSSWALK, CROSSWALK and Employee hereby agree as
follows:
1. Employment, Complete Agreement, and Modification. CROSSWALK agrees to employ
Employee and Employee agrees to be employed by CROSSWALK on the terms and
conditions set forth herein. This Agreement supersedes all previous
representations, either written or oral, between the parties. No provision of
this Agreement may be modified except by a writing signed by both parties.
2. Position. Subject to the Bylaws of CROSSWALK and to the direction of the CEO
and President of CROSSWALK, Employee shall serve as Editor-in-Chief for
Xxxxxxxxx.xxx, performing such duties and carrying out such responsibilities
related to management of content provided on Xxxxxxxxx.xxx and other CROSSWALK
owned and operated Web sites, along with oversight of the Ministry Values for
Growing Churches (MVGC) mail packet business, and other tasks as may be assigned
from time to time by the CEO and President. As a bona fide occupational
qualification for this position, Employee will subscribe to the Statement of
Faith as stated in Article XIII, Section 2 of the Bylaws of CROSSWALK. The Board
shall either vote, or recommend to the shareholders of CROSSWALK, as
appropriate, that during the Term of this Agreement, Employee be nominated for
election as a director at each meeting of shareholders held for the election of
directors.
3. Compensation. During the Term of this Agreement, CROSSWALK shall pay to
Employee for all his services a base salary in periodic installments in
accordance with CROSSWALK's usual practice for its similarly situated employees,
at an annual rate of $180,000.
4. Incentive Compensation. In addition to the compensation provided in Section
3, Employee shall be entitled to receive payments under a CROSSWALK incentive
compensation plan, the terms of which will be mutually agreed upon within 90
days of the date of this Agreement. It is understood that this plan will provide
for an opportunity to generate an additional $50,000 in annualized compensation,
to be retroactively effective to the date of this Agreement. Any incentive
compensation which is not deductible, in the opinion of CROSSWALK's counsel,
under Section 162(m) of the Internal Revenue Code shall be deferred and paid,
without interest, in the first year or years when and to the extent such payment
may be deducted.
5. Benefits. During the Term of this Agreement:
5.1.Employee shall be entitled to four (4) weeks of paid vacation time per
year, to be taken at times mutually acceptable to Employee and CROSSWALK.
5.2.CROSSWALK shall provide paid accident and health insurance for Employee
and his family comparable to that which CROSSWALK provides for other
CROSSWALK employees and their families.
5.3.CROSSWALK shall obtain at its expense (subject to Employee's
insurability) an insurance policy on the life of Employee, adjusted at
policy anniversary date, subject to the last sentence of this Section 5.3,
in the minimum face amount of Employee's current annual base salary.
Employee shall have the exclusive right to designate the beneficiaries of
such policy and change such beneficiaries
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from time to time. Such policy and the proceeds and cash value thereof
shall be the sole property of Employee and CROSSWALK shall not retain any
benefit therein.
5.4.Employee shall be entitled to sick leave benefits in accordance with
the customary policies of CROSSWALK for its executive officers, but in no
event less than one (1) week per year. In the event of Employee's
Disability, CROSSWALK shall provide disability insurance that shall provide
for the payment of Employee's annualized salary at the time of the
Disability, for a period of not less than one (1) year from the date of
Disability. For purposes of this Agreement, "Disability" shall mean a
written determination by a physician mutually agreeable to CROSSWALK and
Employee (or, in the event of Employee's total physical or mental
disability, Employee's legal representative) that Employee is physically or
mentally unable to perform his duties of Editor-in-Chief under this
Agreement and that such disability has continued for ninety (90) days and
can reasonably be expected to continue for a period of six (6) consecutive
months or for shorter periods aggregating one hundred and eighty (180) days
in any twelve (12) month period.
0.0.Xx addition to the vacation provided pursuant to Section 5.1 hereof,
Employee shall be entitled to not less than ten (10) paid holidays (other
than weekends) per year, generally on such days consistent with CROSSWALK's
employment policies.
5.6.Employee shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him (in accordance with the policies and
procedures established by CROSSWALK or the Board for similarly situated
employees of CROSSWALK) in performing services hereunder.
5.7.Employee shall be eligible to participate in benefits not inconsistent
or duplicative of those set forth in this Section 5 as CROSSWALK shall
establish or maintain for its employees or executives generally. Employee
shall be solely responsible for any applicable income taxes relating to
benefits provided under this Section 5.
6. Term and Termination. The Term of this Agreement shall begin on the date of
execution stated above and shall continue until this Agreement is terminated by
either party as provided herein. Either party may terminate this Agreement and
Employee's employment hereunder at any time, with or without cause, upon thirty
(30) days prior written notice of termination to the other party. CROSSWALK may
terminate this Agreement without notice if it determines, in its sole but
reasonable discretion, that employee has engaged in substantial misconduct
including, but not limited to, willfully disregarding CROSSWALK's interests,
violating employee rules, or disregarding standards of behavior, i.e., for
"cause."
7. Severance. Upon termination of his employment by CROSSWALK without cause, as
defined in Section 6 above, and execution of a termination agreement, Employee
shall continue to receive as severance his current base salary and such benefits
as are provided under Sections 5.2 and 5.3 for an additional six (6) months.
8. Protective Covenant. During the period of his employment by CROSSWALK,
Employee shall: (8.1) to the best of his ability, devote his full professional
and business time and best efforts to the performance of his duties for
CROSSWALK and its subsidiaries and affiliates; and (8.2) not acquire, assume, or
participate in, directly or indirectly, any position, investment, action or
interest adverse or antagonistic to CROSSWALK, its business or prospects,
financial or otherwise.
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9. Conciliation. The parties agree that any claim or dispute arising from or
related to this Agreement shall be settled by biblically based mediation and, if
necessary, legally binding arbitration in accordance with the Rules of Procedure
for Christian Conciliation of the Institute for Christian Conciliation, 0000
Xxxxxx X, Xxxxx 000, Xxxxxxxx, XX 00000. Judgment upon an arbitration decision
may be entered in any court otherwise having jurisdiction. These methods shall
be the sole remedy for any controversy or claim arising out of this Agreement
and the parties expressly waive their respective right to file a lawsuit in any
civil court against one another for such disputes, except to enforce an
arbitration decision. The parties agree that any claim or dispute hereunder
shall expire if not brought within one (1) year of arising. Any claim or dispute
arising from or related to Section 10 hereof, Noncompetition and Proprietary
Information Agreement, between CROSSWALK and Employee, or any subsequent
noncompetition, nonsolicitation, confidentiality, and/or proprietary information
agreement or covenant between CROSSWALK and Employee, shall not be subject to
this Section 9.
10. Noncompetition and Proprietary Information Agreement.
10.1 Except with the prior written consent of the Board of Directors of
CROSSWALK (the "Board"), for a period of five (5) years from the date of
the closing on the Plan and Reorganization Agreement referred to above,
Employee shall not participate, directly or indirectly, as an employee,
owner, stockholder, joint venturer, subcontractor, supplier, manager,
partner, agent, consultant, representative or otherwise, in any business,
firm or corporation that manufactures, produces, sells, leases or otherwise
provides any products or services similar to, or directly or indirectly
competitive with, the products and services of the Acquired Business or
attempt to solicit business or customers from the Acquired Business (as
that term is defined in the Plan and Reorganization Agreement). This
Section 10.1 shall terminate, however, if CROSSWALK, its successors and
assigns, shall cease to do business in any form.
10.2 All ideas, concepts, information, and written material disclosed by
CROSSWALK to Employee, or acquired from a customer or prospective customer
of CROSSWALK, are and shall remain, during employment with CROSSWALK and
for a period of five (5) years from the date of the closing on the Plan of
Reorganization and Agreement, the sole and exclusive property and
proprietary information of CROSSWALK or such customers, and are disclosed
in confidence by CROSSWALK or permitted to be acquired from such customers
in reliance on Employee's agreement to maintain them in confidence and not
to use or disclose them to any other person except in furtherance of
CROSSWALK's business.
10.3 Employee agrees to hold as CROSSWALK's property all trade secrets,
processes, proprietary information, know-how, memoranda, books, papers,
letters, customer lists, processes, computer software, records, financial
information, policy and procedure manuals, training and recruiting
procedures, and other data, and all copies thereof and therefrom, in any
way relating to CROSSWALK's business and affairs, whether made by him or
otherwise coming into his possession ("Confidential Information") and on
termination of his employment, or demand of CROSSWALK at any time, to
deliver to CROSSWALK all tangible copies of Confidential Information.
Employee recognizes and acknowledges that CROSSWALK's Confidential
Information are valuable, special, and unique assets of CROSSWALK's
business, access to and knowledge of which are essential to the performance
of the Employee's duties under the Employment Agreement with CROSSWALK.
Employee will not, during or after the term of his employment by CROSSWALK,
in whole or in part,
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disclose such Confidential Information to any person or entity for any
reason or purpose whatsoever, nor shall Employee make use of any such
Confidential Information for his own purposes or for the benefit of any
person or entity (except CROSSWALK) under any circumstances during or after
the term of his employment, provided that after the term of his employment
these restrictions shall not apply to such Confidential Information that
are then in the public domain (provided that Employee was not directly
responsible for such Confidential Information entering the public domain
without CROSSWALK's consent). Employee shall have no obligation hereunder
to keep confidential any Confidential Information if and to the extent
disclosure thereof is specifically required by law; provided, however, that
in the event disclosure is required by applicable law, Employee shall
provide CROSSWALK with prompt notice of such requirement, prior to making
any disclosure, so that CROSSWALK may seek an appropriate protective order.
Employee shall use his best efforts to cause all persons or entities to
whom any Confidential Information shall be disclosed by him hereunder to
observe the terms and conditions set forth herein as through each such
person or entity were bound hereby.
10.4 Any and all inventions, discoveries, improvements, processes,
apparatus, methods, designs, records, files, drawings, documents,
equipment, or other scientific, literary or artistic creations
(collectively "Creations") that Employee has invented, discovered,
conceived, originated, or made, or may invent, discover, conceive,
originate, or make, by himself or in conjunction with any other person or
entity, during the period of his employment by CROSSWALK in any way,
directly or indirectly, connected with CROSSWALK's business shall be the
sole and exclusive property of CROSSWALK. Employee agrees that all
copyrightable works created by Employee or under CROSSWALK's direction in
connection with CROSSWALK's business are "works made for hire" and shall be
the sole and complete property of CROSSWALK, and that any and all
copyrights to such works belong to CROSSWALK. To the extent such works are
not deemed to be "works made for hire," Employee hereby assigns all
proprietary rights, including copyright, in these works to CROSSWALK
without further compensation. Employee agrees to disclose to CROSSWALK
every patent application, notice of copyright, or other action taken by
Employee or any assignee or affiliate to protect intellectual property
during the twelve (12) months following termination of Employee's
employment with CROSSWALK, for whatever reason, so that CROSSWALK may
determine whether to assert a claim under this section or any other
provisions of hereof.
11. Governing Law. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Virginia without regard to principles
of conflict of laws.
12. Severability. Should any provision or clause of this Agreement be held to be
void, invalid, or unenforceable, the remaining provisions of this Agreement
shall not be affected and shall continue in effect and the invalid provision
shall be deemed modified to the least degree necessary to remedy such
invalidity.
13. Assignment. This Agreement and the rights and obligations of the parties
shall bind and inure to the benefit of each of the parties hereto and shall also
bind and inure to the benefit of any successor or successors of CROSSWALK, but,
except as to any such successor of CROSSWALK, neither this Agreement nor any
rights or benefits hereunder may be assigned by either party without the prior
written consent of the other party.
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14. Notice. Any notice required or permitted to be given hereunder shall be
effective when received and shall be sufficient if in writing and if personally
delivered or send by prepaid express delivery service, to the party to receive
such notice at its address set forth at the beginning of this Agreement or at
such other address as a party may be notice specify to the other.
15. No Conflicting Obligations. Each party represents and warrants that it is
under no obligation or restriction, nor will it assume any such obligation or
restriction, that does or would in any way violate, interfere, or conflict with
the performance to be rendered under this Agreement.
16. Agreement Read, Understood, and Fair. Employee has carefully read and
considered all provisions of this Agreement and agrees that all of the
restrictions set forth are fair and reasonable and are reasonably required for
the protection of the interests of CROSSWALK.
17. Severability; No Waiver. Should any provision or clause of this Agreement be
held to be void, invalid, or unenforceable, the remaining provisions of this
Agreement shall not be affected and shall continue in effect and the invalid
provision shall be deemed modified to the least degree necessary to remedy such
invalidity. If any tribunal of competent jurisdiction construes any provision or
clause of this Agreement, or any portion thereof, to be illegal, void, or
unenforceable because of the duration of such provision or the area or matter
covered thereby, such tribunal shall reduce the duration, area, or matter of
such provision, and, in its reduced form, such provision shall then be
enforceable and shall be enforced. The failure of either party to partially or
fully exercise any right or the waiver by either party of any breach, shall not
prevent a subsequent exercise of such right or be deemed a waiver of any
subsequent breach of the same or any other term of this Agreement.
18. Assignment. This Agreement and the rights and obligations of the parties
shall bind and inure to the benefit of each of the parties hereto and shall also
bind and inure to the benefit of any successor or successors of CROSSWALK, but,
except as to any such successor of CROSSWALK, neither this Agreement nor any
rights or benefits hereunder may be assigned by either party without the prior
written consent of the other party.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE DULY EXECUTED THIS AGREEMENT AS OF
THE DATE FIRST WRITTEN ABOVE.
XXXXXXX XXXX XXXXXXXXX.XXX, INC.
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Xxxxxxx Xxxx Xxxxxxx X. Xxxxxx
("Employee") Chief Financial Officer and President
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