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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into effective
as of March 19, 1999 (the "EFFECTIVE DATE") by and between Enterprise Profit
Solutions Corporation, a Delaware corporation (the "COMPANY") and Xxxxx X.
Xxxxxx ("EMPLOYEE").
The Company desires to retain the services of Employee, and Employee
desires to render such services, on the terms set forth herein.
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereto agree as follows:
1. EMPLOYMENT. Employee's employment with the Company will be at-will,
which means that either Employee or the Company may terminate Employee's
employment at any time for any reason or no reason without payment, penalty or
further obligation except as set forth in Section 8, provided, however, that
Employee's employment with the Company shall not be terminated without Cause
without Required Approval. For these purposes, "REQUIRED APPROVAL" means
approval by at least three members, including the member representing the
President's Council, of an executive management committee of EPS Solutions
Corporation, the parent corporation of the Company ("EPS SOLUTIONS"), which
committee shall consist of four (4) members of the senior management of EPS
Solutions and one (1) representative of the President's Council of EPS
Solutions.
2. DUTIES. (a) Electronic Media Division. Employee shall initially serve
as Chief Executive Officer of the Company's Electronic Media Division (the
"EMD"), which will be formed by the Company to develop, produce, market, sell
and deliver training service through electronic media. In that capacity,
Employee shall have authority and be responsible to manage the operations of the
EMD consistent with the EMD's annual business plan. The EMD's annual business
plan will be formulated by Employee and approved by the appropriate Service Line
Leader of the Company, and will, among other things, set forth guidelines
related to budgeting, capital expenditures, hiring and strategic initiatives.
During the Option Period, as defined in that certain Agreement re eFox by and
among the Company, EPS Solutions, eFox, LLC, a Delaware limited liability
company ("eFOX"), and the members of eFox dated March 19, 1999 (the "eFOX
AGREEMENT"), and as long as the eFox Agreement has not been knowingly or
willfully or recklessly breached in a material respect by eFox or the members of
eFox (or any such breach has been cured and any material adverse effects of such
breach have been ameliorated in all material respects within 15 days of notice
of such breach), the Company will commit the Leased Employees (as defined in the
eFox Agreement) to work in the EMD under the day-to-day supervision of Xxxxx X.
Xxxxxx or his successor as the Chief Executive Officer of the EMD, provided
however, that the Company and its affiliates will only be obligated to provide
to the EMD employees, assets, or other resources or support, the full cost of
which is paid or promptly recovered through profit generated by the EMD,
including without limitation leasing to eFox or any other third party of the
employees assigned to the EMD. Employee will formulate the business plan and
manage the EMD with the primary goal of enhancing stockholder value for the
Company by maximizing revenues and profitability of the EMD. Employee will have
authority to bind the Company to contracts that are consistent with Employee's
duties and responsibilities
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hereunder and the business plan. Employee shall perform such related duties and
services as the Company's board of directors (the "BOARD") and/or its Chief
Executive Officer may from time to time assign, provided however, that if
Employee remains employed by the Company, Employee's responsibility and
authority within the Company will not be materially diminished without
Employee's written consent as long as shares of restricted stock purchased by
Employee pursuant to the Restricted Stock Purchase Agreement described in
Section 4 are subject to Restrictions (as defined in such Restricted Stock
Purchase Agreement) (the "RESTRICTED PERIOD"). Except as set forth herein,
Employee's position and duties may be changed at any time and from time to time
by the Board or Chief Executive Officer of the Company. Such duties shall be
rendered at such place or places as the Company shall require based upon the
interest, need, business and/or opportunities of the EMD, provided however, that
for the Restricted Period, the principal place at which Employee renders such
duties shall not be relocated more than twenty-five (25) miles from the location
of such place on the date hereof without Employee's written consent.
(b) eFox Corporation. As long as Employee remains employed by the
Company in connection with the EMD and the Company provides employees and/or
management services to eFox, and subject to the discretion of the members of
eFox, Employee shall have authority and be responsible to manage the operations
of eFox in his capacity as an employee of the Company assigned to eFox.
Employee's authority and responsibility in managing eFox shall be exercised in
the same manner as described in Section 2(a) for the EMD. Further, Employee
shall cause eFox to perform its obligations under the eFox Agreement, and shall
use his best efforts to cause eFox to achieve the goals set forth from time to
time in the Business Plan described in the eFox Agreement.
3. TIME AND EFFORTS.
(a) General. While employed by the Company (the "EMPLOYMENT
PERIOD"), Employee shall use his best efforts and devote his time and attention
to the business of the EMD and any other subsidiaries or divisions of EPS to
which Employee may also be assigned on a full-time basis and shall at all times
faithfully and industriously and to the best of his or her ability, experience
and talent, perform all of the duties that may be required of him or her
pursuant to the terms hereof. During the Employment Period, Employee shall not
engage in any other employment or consulting activities other than for the
benefit of other subsidiaries or divisions of EPS to which Employee may also be
assigned without the express written consent of the Company. The foregoing shall
not preclude Employee from engaging in civic, charitable and/or religious
activities, directing his own investments, serving on boards of directors of
other entities, or writing books and articles in each case consistent with past
practices, including fiction books, so long as such activities do not materially
interfere or conflict with Employee's duties hereunder.
(b) Writing. Employee shall own the copyright associated with, and
all royalties and other income derived from, all of Employee's writings (whether
completed before or after the date of this Agreement), provided however, that
(i) the Company shall have an exclusive, perpetual, fully paid license to copy
and use for the Company's own business purposes any of Employee's writings that
relate to the business of the EMD and that are not the subject of a license to
the Company or any of its affiliates pursuant to some other agreement, provided
that the Company may not sell Employee's writings other than as course materials
sold as part of
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training services or curricula provided by the Company and provided further that
the Company's license shall not violate that certain agreement dated as of
December 16, 1988 by and among Xxx Xxxxxx, the Company and Xxxx Wiley & Sons,
Inc. or that certain agreement dated as of May 28, 1998 by and between FoxPaw,
Inc. and Xxxx Xxxxx & Sons, Inc., and (ii) during the Employment Period,
writings of Employee related to the business of the EMD will not be inconsistent
with the Business Plan or the best interests of the EMD. Employee will not enter
into any publishing or other agreement after the date hereof that is
inconsistent with this Agreement. This Section 3(b) applies to FoxPaw, Inc. and
any other entity through which Employee may engage in writing or publishing.
This Section 3(b) will continue in effect notwithstanding any termination of
Employee's employment with the Company for any reason.
(c) Other Subsidiaries and Divisions. While concurrently assigned
to or employed by any subsidiary or division of EPS other than the Company,
Employee may divide his time between the EMD and such other subsidiary or
division in such manner as Employee, in the reasonable exercise of his
discretion, sees fit, provided that Employee's allocation of his time and
efforts between the EMD and such other subsidiary or division will be consistent
with the business plans of both the EMD and such other subsidiary or division
and with efforts to maximize the profitability of both the EMD and such other
subsidiary or division.
4. COMPENSATION. During the Employment Period, the Company shall pay
Employee at the annual rate of Eighty-Five Thousand ($85,000) (as such pay may
be increased by the Company from time to time in its discretion, the "ANNUAL
SALARY") for all services rendered to the EMD (but not other subsidiaries or
divisions of the Company) by Employee, payable in accordance with the Company's
regular payroll policies, subject, however, to withholding deductions, including
without limitation social security taxes and applicable federal, state and local
income and other employment taxes. Employee's Annual Salary will be reviewed no
less frequently than annually, and shall not be decreased at any time. In
addition, in connection with employment by the Company and services performed by
Employee for the Company, Employee is acquiring concurrently herewith restricted
stock of EPS Solutions pursuant to a Restricted Stock Purchase Agreements
imposing restrictions based on the performance of the EMD. The Company may, but
shall not be obligated to, pay bonuses from time to time to Employee in
accordance with such plans or standards as the Company may develop. Employee has
no right to any specific compensation or benefits other than as set forth herein
or required pursuant to applicable law.
5. VACATION. Employee shall be entitled to 28 days of personal time off
("PTO") per year, consistent with the Company's policies as in effect from time
to time. PTO may be used, subject to approval by the Company consistent with
business needs, as it is earned. Employee may not accrue more than 28 days of
unused PTO. If Employee at any time has 28 days of accrued unused PTO, no
further PTO shall accrue until Employee again has fewer than 28 days of unused
PTO. The Company shall pay Employee for accrued unused PTO only in connection
with termination of employment. Such payment shall be made on the basis of
Employee's Annual Salary at the time of payment, pro-rated for the number of
accrued unused PTO days at the time of termination. In addition to the PTO
described above, Employee will have up to ten days of paid leave annually that
may be taken for vacation if Employee's absence during that time will not, in
the reasonable judgment of the Chief Executive Officer of EPS, adversely affect
the Company, provided that this paid leave (i) may be taken only if Employee
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has no available PTO and (ii) will not accrue or entitle Employee to cash
payment in respect thereof, upon termination of employment or otherwise. PTO and
paid leave under this Agreement will not be duplicative of PTO and paid leave
under any other agreement between Employee and the Company or any of its
affiliates, and Employee will not be entitled to be paid for accrued unused PTO
under this Agreement if, at the time of termination of employment with the
Company, Employee remains employed by any of its affiliates pursuant to any
arrangement under which, upon termination of that employment, Employee will be
entitled to be paid for accrued unused PTO.
6. BENEFITS. In addition to the compensation described in Section 4, the
Company shall provide Employee with benefits consistent with the Company's
employment policies as in effect from time to time, provided that benefits under
this Agreement or in connection with employment by the Company will not be
duplicative of benefits under any other agreement between Employee and the
Company or any of its affiliates.
7. CERTAIN DEFINITIONS.
(a) Cause. For purposes hereof, the term "CAUSE" has the meaning
set forth in Schedule 1 hereto. Any termination by the Company of Employee's
employment within 90 days after the Company's becoming aware of the occurrence
of an event or circumstance constituting "Cause" will constitute termination for
Cause.
(b) Good Reason. If the Company (1) breaches this Agreement in any
material respect and does not cure such breach within 15 days of receipt from
Employee of notice of such breach and demand for cure; (2) assigns Employee
duties materially inconsistent with Employee's status or adversely alters
Employee's responsibilities; (3) notifies Employee that Employee's principal
place of employment will be relocated in a manner inconsistent with the last
sentence of Section 2(a); (4) fails to pay any compensation due Employee within
fifteen (15) days of Employee's notice to the company that payment is overdue;
or (5) materially deviates from the EMD's annual business plan unless Employee
causes or agrees to such deviation, and if Employee terminates Employee's
employment with the Company within 90 days of any of the foregoing, such
termination by Employee will be termination with "GOOD REASON" for purposes
hereof.
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8. CERTAIN PAYMENTS.
(a) Termination by Employee with Good Reason or the Company
Without Cause. Subject to Section 8(c), if Employee's employment under this
Agreement is terminated by Employee with Good Reason or by the Company without
Cause, then contingent upon execution and delivery by Employee to the Company of
an unconditional release in form satisfactory to the Company of all claims
against EPS Solutions, the Company or any of their officers, directors or
affiliates arising from or in connection with this Agreement or Employee's
employment with the Company or the termination of that employment, Employee
shall be entitled to continue to receive regular monthly installments of his
Annual Salary in accordance with the Company's normal payroll schedule (the
"SEVERANCE PAYMENT") for the duration of the Severance Period. For purposes
hereof, the "SEVERANCE PERIOD" means 90 days following termination of
employment. Notwithstanding the foregoing, however, Employee will not be
entitled to receive any severance benefits of any kind from the Company in
connection with or following termination of Employee's employment with the
Company for any reason if at the time of such termination, Employee is employed
by any affiliate of the Company pursuant to a written employment agreement
providing for payment to Employee upon termination of employment with such
affiliate that is at least as favorable to Employee as the severance provisions
of this Agreement, including without limitation in terms of the actual amount of
severance payable.
(b) No Other Benefits. Except as set forth in Section 8(a) or
Section 5 or as may be required by applicable law or separate written agreement
entered into after the date hereof between EPS Solutions, or the Company and
Employee, the Company shall have no obligation to pay any salary, bonus, accrued
vacation, severance payment, benefits, or other amounts in connection with any
termination of Employee's employment (including without limitation by death, or
by Employee without Good Reason, or by the Company for Cause or disability), or
attributable to the period after termination of Employee's employment.
(c) Post-Termination Cause. If any of the events or circumstances
constituting Cause listed in items A or B of Schedule 1 occurs during the
Severance Period, then (i) the Company will have no further obligation to
provide to Employee the Severance Payment, and (ii) the Company will be entitled
to recover from Employee any Severance Payment amounts paid to Employee or
Employee's successors and assigns, together with the costs of effecting such
recovery.
9. CONFIDENTIALITY. Employee shall execute the Confidential Information
and Employee Invention Agreement attached hereto as Exhibit A (the
"CONFIDENTIALITY AGREEMENT"), which will survive termination or expiration of
this Agreement.
10. REPRESENTATIONS AND WARRANTIES. Employee represents and warrants to
the Company that (a) he or she is under no contractual restriction or other
restrictions or obligations that are inconsistent with the execution of this
Agreement, the performance of his or her duties and the covenants hereunder, and
(b) he or she is under no physical or mental disability that would interfere
with his or her keeping and performing all of the agreements, covenants and
conditions to be kept or performed hereunder.
11. MISCELLANEOUS.
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(a) Governing Law. This Agreement shall be interpreted under and
governed by the laws of the State of California, excluding its rules on
conflicts of law.
(b) Arbitration. Any dispute regarding the application,
interpretation or breach of this Agreement shall be resolved by final and
binding arbitration before the American Arbitration Association ("AAA") in
accordance with AAA's National Rules for the Resolution of Employment Disputes.
Reasonable attorney's fees, costs and damages (where appropriate) shall be
awarded to the prevailing party in any dispute, and any resolution, opinion or
order of AAA may be entered as a judgment in a court of competent jurisdiction.
(c) Modification and Waiver. No waiver or modification of this
Agreement or any term hereof shall be binding unless it is in writing signed by
the parties hereto. No failure to insist upon compliance with any term,
provision or condition to this Agreement, whether by conduct or otherwise, in
any one or more instances, shall be deemed to be or construed as a waiver of any
such term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
(d) Entire Agreement. This Agreement and the Confidentiality
Agreement constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede and replace all prior employment
agreements, if any, between the parties. No oral statements or prior written
agreements with respect to the subject matter hereof which are not specifically
incorporated herein or in the Confidentiality Agreement shall be of any force or
effect.
(e) Severability. If any provisions hereof shall be held or
construed to be illegal or invalid for any reason, such illegality or invalidity
shall not affect the remaining provisions of this Agreement, but the same shall
be construed and enforced just as though the illegal or invalid provisions had
not been included herein.
(f) Notices. Any notice, demand or other communication required,
permitted or desired to be given hereunder shall be in writing and shall be
deemed effectively given upon personal delivery, facsimile transmission (with
confirmation of receipt), delivery by reputable overnight delivery service or
five (5) days following deposit in the United States mail (if sent by certified
or registered mail, postage prepaid, return receipt requested), in each case
duly addressed to the Company at its headquarters or to Employee at his or her
address of record listed with the Company.
(g) Assignment. Employee's rights, duties and obligations under
this Agreement may not be assigned by Employee. The Company may assign its
rights, duties and obligations under this Agreement to any affiliate of the
Company.
(h) Headings. The section headings herein are intended for
reference and shall not affect in any way the construction or interpretation of
this Agreement.
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(i) Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original but all of which shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date set forth above.
EMPLOYEE ENTERPRISE PROFIT SOLUTIONS CORPORATION
Signature: /s/ XXXXX X. XXXXXX BY: /s/ XXXX X. XXXXXXX
------------------------- ---------------------------------
Xxxxx X. Xxxxxx
NAME: Xxxx X. Xxxxxxx
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TITLE: SVP
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SCHEDULE 1 TO
EMPLOYMENT AGREEMENT
"CAUSE" means the occurrence of any one or more of the following events
or circumstances, provided however, that if any such event or circumstance is
susceptible to cure by Employee, such event or circumstance will not constitute
Cause unless Employee has failed to cure such event or circumstance within 15
days after receipt by Employee of written notice thereof: (i) Employee engages
in any wrongful conduct that results in material damage to the Company or any
parent corporation of the Company, any subsidiary corporation of the Company or
any entity controlling, controlled by, or under common control with the Company
(an "AFFILIATED ENTITY"); (ii) any willful misconduct or gross negligence by
Employee in the responsibilities assigned to Employee hereunder or any willful
and material failure to perform Employee's duties hereunder or to follow
instructions from the Board or Chief Executive Officer of EPS that are not
inconsistent with this Agreement; (iii) Employee engages in any criminal conduct
(other than misdemeanors that do not meet the criteria described in item (i)
above) or actions involving moral turpitude; or (iv) Employee does any of the
things described in paragraphs (A) and (B) below. No act or failure to act on
Employee's part shall be deemed "willful" unless it is done, or omitted to be
done, by Employee not in good faith, and a reasonable person would not have
believed that the act, or failure to act, was in the best interests of the
Company.
(A) Employee renders services for any organization or engages directly
or indirectly in any business that (x) during Employee's employment with the
Company or any Affiliated Entity, is or becomes competitive with the Company or
any Affiliated Entity, or which organization or business, or the rendering of
services to such organization or business, is or becomes otherwise prejudicial
to or in conflict with the business or interests of the Company or any
Affiliated Entity, or (y) after termination of Employee's employment with the
Company or any Affiliated Entity, is or becomes competitive with the business
units of the Company or any Affiliated Entity to which Employee devoted
significant time and attention within the scope of Employee's employment
hereunder (the "BUSINESS UNITS"), or which organization or business, or the
rendering of services to such organization or business, is or becomes otherwise
prejudicial to or in conflict with the business or interests of the Business
Units.
(B) Employee fails to comply with the Confidentiality Agreement.
