EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is between DME
Interactive Holdings, Inc. ("DME" or "Company") and Xxxxx X. XxXxx ("Employee").
In consideration of the promises and covenants set forth in this
Agreement, DME and Employee hereby agree as follows:
1. EMPLOYMENT
Company hereby employs Employee and Employee hereby accepts
employment, to render professional services to Company as Executive Vice
President, Finance, in accordance with the terms and conditions set forth
herein. All of Employee's services and duties hereunder shall be performed when
Company may require and, except as specifically limited herein, subject to
Company's direction and control.
2. TERM
Subject to the provisions for termination as hereinafter provided in
Section 7 of this Agreement, the Term of this Agreement shall begin on August 1,
1999 and shall continue for a period of two (2) years. When used herein, "Term"
shall refer to the entire period of engagement of Employee, whether for the
period provided above or whether terminated earlier as hereinafter provided.
3. DUTIES
In Employee's capacity as Executive Vice President, Finance,
Employee duties shall include such duties and responsibilities as assigned from
time to time by the Chief Executive Officer of the Company or its board of
directors. Employee agrees and acknowledges that Company retains sole discretion
to change the scope and extent of Employee's duties at any time, subject only to
the terms of this Agreement.
4. COMPENSATION
(a) Conditioned upon full performance by Employee of all of
Employee's material obligations hereunder, Company agrees to pay Employee, as
full and complete compensation for all of the services to be rendered by
Employee, for all rights granted to Company, and for all representations,
warranties and agreements made by Employee hereunder, the annual compensation of
$125,000.00 for Year 1, payable on a semi-monthly basis. Employee's complete
compensation for Year 2 will be based on annual review by the Chief Executive
Officer, provided, however, Employee's annual compensation will be no less than
$125,000.00 during the Term of this Agreement.
(b) Pursuant to the terms and conditions set forth in the
Stock Option Agreement attached hereto, Company grants to Employee an option to
purchase up to 250,000 shares of the Company's common stock during the Term of
this Agreement at a per share exercise price of $0.625
(c) Employee will be eligible for a bonus based upon his
satisfactory performance under this Agreement at the discretion of the Company
and subject to the Company's overall performance.
5. BENEFITS
(a) Benefits. Employee shall be entitled to participate in any
Company benefit plans now existing or hereafter adopted for which he may be
eligible pursuant to established Company policy, subject to the provisions of
such plans as the same may be in effect from time to time. Employee agrees that
nothing contained in this Agreement shall prevent Company from terminating or
modifying any such benefit plan in whole or in part at any time.
(b) Vacation. Employee shall be entitled to two (2) week(s)
per contract year as hereinafter defined, of fully paid vacation time, and
holidays in accordance with current Company policy during the term of this
Agreement subject to Company's absolute approval of the dates when such vacation
may be taken. For purposes of this Agreement, the term "Contract Year" shall
mean the period commencing August 1, and ending July 31. Notwithstanding the
above, such vacation rights shall not vest until Employee has worked for Company
for at least six (6) months. Vacation rights shall not be cumulative from
Contract Year to Contract Year, nor shall Employee be paid for more than
fifty-two (52) weeks of employment in each Contract Year irrespective of whether
or not vacation rights are exercised.
(c) Sick/Personal Days. Employees shall be entitled to six (6)
days per Contract Year of fully paid sick/personal days in accordance with
current Company policy during the term of this Agreement. Notwithstanding the
above, such sick/personal day rights shall not vest until Employee has worked
for Company for at least three (3) months. Sick/Personal Day rights shall not be
cumulative from Contract Year to Contract Year, nor shall Employee be paid for
more than fifty-two (52) weeks of employment in each Contract Year irrespective
of whether or not sick/personal days are exercised.
6. EMPLOYEE COVENANTS
6.1. Notice of Creation. Employee shall both during and after
the Term of this Agreement promptly and fully disclose to the Company any and
all inventions, discoveries, improvements, ideas, devices, designs, models,
prototypes, processes, compositions, know-how, information, works (including
computer programs and written and graphics materials), mask works and data,
whether of a business, technical or other nature and whether or not protectable
under U.S. or foreign patent, copyright, trade secret or other law
(collectively, "Works"), that concern or relate to or are useful to the Company
in connection with its business activities ("Company Business") and that are
first conceived, reduced to practice, fixed in a tangible medium of expression
or are otherwise made by Employee solely or jointly with others during the Term
of this Agreement, whether during regular business hours or otherwise (the
"Intellectual Property").
6.2. Ownership of Intellectual Property. Upon its respective
conception, reduction to practice or fixation in a tangible medium of expression
or other making, an item of Intellectual Property and all worldwide right, title
and interest in and to that Intellectual Property, including all common law,
statutory, treaty and convention rights, including the right to xxx for all
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past, present and future infringement, shall immediately become and forever
remain the property of Company without any further act or deed being required
and without any additional consideration from Company to Employee, and Employee
hereby irrevocably assigns to Company, and Company hereby accepts, all such
Intellectual Property and all such worldwide right, title and interest. The
Employee hereby waives and agrees not to assert any moral rights or similar
rights under the laws of any jurisdiction with respect to any Intellectual
Property.
6.3. Further Assurances. Employee will from time to time, both
during and after the Term of this Agreement, upon the request and at the expense
of the Company, but without further consideration from the Company, (a) make
application through the attorneys for the Company for Letters Patent, utility
models, copyright registrations and other forms of intellectual property
protection for and on the Intellectual Property in the United States and in
countries foreign thereto, (b) cooperate with the attorneys in the prosecution,
maintenance, reissue, renewal, extension and defense of, and suit upon, all such
applications and resulting Letters Patent, utility models, copyright
registrations and other forms of intellectual property protection, and (c) do
and perform all acts, including executing documents, believed by the attorneys
to be necessary or desirable in furtherance of the foregoing and for assigning
and perfecting all right, title and interest in and to the Intellectual Property
in the Company or its successors or assigns, including executing applications
and assignment documents. All decisions concerning such applications and
resulting Letters Patent, utility models, copyright registrations and other
forms of intellectual property protection, including all decisions concerning
their filing, prosecution, maintenance, reissue, renewal, extension, defense and
suits upon them, shall be solely those of the Company, and Employee shall have
no claim or cause of action against the Company arising out of or concerning any
such decisions of the Company or the results of those decisions.
6.4. Non-Competition. Employee hereby expressly covenants and
agrees that he shall not, without the express written consent of the Company,
for his own account or jointly with any other person, during the Term of this
Agreement and for a period of one year thereafter, for any reason, directly or
indirectly, (i) establish or manage any business, or enter into the employ of,
or render any services to, any person, firm or corporation engaged in any
business competitive with Employer and its Affiliates in such state or states as
Employer conducts business during the Employment Term (the "Territory"); (ii)
own, manage, operate, join, control, loan money to, invest in, or otherwise
participate in, or be connected with, or become or act as an officer, employee,
consultant, representative or agent of any business, individual, partnership,
firm or corporation (other than the Company) which is a customer of the Company
or was at any time during the Term of this Agreement a customer of the Company
("Competitive Activities"); or (iii) intervene in or interfere with any
relationships between the Company and its vendors or customers (including
potential customers identified by the Company during the Term of this Agreement)
or disrupt its customer markets, anywhere in the world in which the Company
conducts Company business. Notwithstanding the foregoing, the Employee may at
any time own, solely as an inactive investor, securities of any entity, whether
or not in competition with the Company, if (i) such securities are publicly
traded on a nationally-recognized stock exchange or on NASDAQ, and (ii) the
aggregate holdings of such securities by the Employee and his immediate family
do not exceed two percent (2%) of the voting power or two percent (2%) of the
capital stock of such entity.
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6.5. Reasonableness of Restrictions. The Employee acknowledges
and agrees that the covenants contained herein with respect to non-competition
are reasonable in scope, geographic application and duration, in view of the
economic bargain contained herein. The Employee represents and warrants to the
Company that his experience, background and skills are such that he is able to
obtain employment on reasonable terms and conditions without violation of the
restrictive covenant contained herein with respect to non-competition; and that
such covenant does not and will not pose any undue hardship to the Employee.
6.6. Tangible Things. Employee covenants and agrees that (i)
all tangible things, including confidential memoranda, notes, notebooks,
drawings, lists (including, without limitation, mailing and customer lists),
records and other confidential documents (and all copies thereof), made or
compiled by Employee or made available to Employee concerning the Company
Business shall be the property of the Company, and (ii) if such tangible things
or copies thereof are in the possession or control of Employee, Employee shall
deliver them to the Company promptly following the Term of this Agreement or at
any other time upon request of the Company.
6.7. No Improper Disclosure. Employee represents and warrants
that Employee has not disclosed, and will not disclose, to the Company any
information, whether confidential, proprietary or otherwise, that the Employee
possesses and that Employee is not legally free to disclose.
6.8. No Employee Solicitation. The Employee hereby agrees that
during the Term of this Agreement and for a period of one (1) years thereafter,
he shall not, directly or indirectly, for his own account or jointly with
another, or for or on behalf of any entity, as principal, agent or otherwise,
solicit or induce or in any manner attempt to solicit or induce any person
employed by the Company or any of its affiliates to leave such employment,
whether or not such employment is pursuant to a written contract with the
Company or otherwise.
6.9. Non-Disclosure. Employee acknowledges that Employee's
work for the Company is expected to bring Employee into close contact with
various confidential technical and research data, confidential business data and
other information of the Company not readily available to the public. The
Employee expressly covenants and agrees that he will not at any time, whether
during or after the Term of this Agreement, directly or indirectly, on any basis
for any reason, use or permit third parties within his control or authority or
under his supervision the use of any trade secrets, confidential information or
proprietary information of, or relating to, the Company, or any affiliate of the
Company (including, without limitation, data and other information relating to
any of the Company's processes, apparatus, products, software, packages,
programs, trends in research, product development techniques or plans, research
and development programs and plans or any works and all secrets, customer lists,
lists of employees, sales representatives and their territories, mailing lists,
details of consultant contracts, pricing policies, operational methods,
marketing plans or strategies, business acquisition plans, new personnel
acquisition plans, designs and design projects and other confidential business
affairs concerning the Company and the Company Business), in connection with any
activity or business, whether for his own account or otherwise, and will not
divulge such trade secrets, confidential information or proprietary information
to any person, firm, corporation or other entity whatsoever. The Employee shall
not be prohibited from divulging information deemed to be trade secret or
confidential or proprietary information of the Company: (i) if and to the extent
that disclosure of any such
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information is pursuant to appropriate safeguards on confidentiality and (a)
necessary and appropriate in connection with the submission of bids by the
Company in the ordinary course of business or (b) required pursuant to the
Company's marketing efforts directed to specific clients or bona fide
prospective clients or the provision of services to existing clients in the
ordinary course of business, (ii) if the specific item of information becomes
generally available to the public without violation of this Agreement or any
other confidentiality agreement between the Employee and the Company or any
other confidentiality agreement to which the Employee is a party, or (iii) if
such disclosure is compelled by law, in which event the Employee agrees to give
the Company prior written notice of any disclosure to be made pursuant to this
Subsection (iii), and the Employee, at the Company's expense, shall cooperate
fully with the Company to obtain protective orders, confidential treatment or
other such protective action as may be available to preserve the confidentiality
of the information required to be disclosed.
6.10. Remedies. It is expressly understood and agreed that the
services to be rendered hereunder by the Employee are special, unique and of
extraordinary character, and in the event of the breach by the Employee of any
of the terms and conditions of this Agreement on his part to be performed
hereunder, or in the event of the breach or threatened breach by the Employee of
the terms and provisions of this Section 6 of this Agreement, then the Company
shall be entitled, if it so elects, to institute and prosecute any proceedings
in any court of competent jurisdiction, either in law or equity, for such relief
as it deems appropriate, including without limiting the generality of the
foregoing, any proceedings to obtain damages for any breach of this Agreement or
to enforce the specific performance thereof by the Employee or to enjoin the
Employee from performing services which are prohibited by this Agreement for any
other person, firm or corporation.
6.11. Enforcement. It is hereby expressly agreed by the
Company and the Employee that if any portion of the restrictive covenants and
provisions set forth in this Section 6 is held to be unreasonable, arbitrary,
against public policy or otherwise unenforceable for any reason, then each such
covenant or provision shall be considered divisible as to scope, time and
geographical area, with each month of a specified period being deemed a separate
period of time and each county within any geographical area being deemed a
separate geographic area. The parties hereto expressly agree that
notwithstanding their mutual expectation that the covenants and restrictions
contained herein will be enforceable and enforced, a lesser scope, period of
time or geographic area shall be enforced to the extent that the covenants
contained herein may be unenforceable as written. The existence of any claim or
cause of action by the Employee against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of the restrictive covenants contained in this Section 6.
6.12. Covenants Non-Exclusive. The Employee acknowledges and
agrees that the covenants contained in this Section 6 shall not be deemed
exclusive of any common law rights of the Company in connection with the
relationships contemplated hereby; and that the Company shall have any and all
rights as may be provided by law in connection with the relationships
contemplated hereby.
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7. TERMINATION
The Employee's employment hereunder shall terminate under the
following circumstances:
(a) Termination For Cause. Company may terminate the
employment of Employee for cause at any time upon written notice to Employee
specifying the cause for termination. For purposes of this Section, "for cause"
shall include discharge resulting from a determination by Company that the
Employee has: (i) been convicted of a criminal offense involving dishonesty,
fraud, theft, embezzlement, breach of trust or moral turpitude; (ii) performed
an act or failed to act, which, if he were prosecuted and convicted, would
constitute a crime or offense involving money or property of Company; or (iii)
willfully refused to perform the duties reasonably assigned to Employee and
consistent with his status as a Senior Vice President of Company; or (iv)
violates any non-competition or non-disclosure agreement of the Company.
In the event of Employee's termination under this Section
7(a), Company shall have no further obligation to Employee except for any
amounts earned by, or accrued for, Employee under any employee benefit plans in
which the Employee is then a participant, earned and unpaid salary, accrued and
unused vacation pay, and any rights of Employee under any bonus or stock option
agreement, which right has been earned by Employee at the time of such
termination pursuant to the terms of such plan or agreement. Employee shall not
be entitled to any further Base Salary, Incentive Compensation, severance pay,
fringe benefits, additional stock options, or any other compensation or
benefits, except as otherwise provided herein.
(b) Termination Without Cause. Employee or Company may
terminate this Agreement at any time upon thirty (30 days) prior written notice
to the other party. In the event of such termination, Company shall have no
further obligations to Employee under this Agreement except for any amounts
earned by, or accrued for, Employee under any employee benefit plans in which
Employee is then a participant, earned and unpaid salary and accrued and unused
vacation pay and any rights of Employee under any bonus or stock option
agreement, which right has been earned by Employee at the time of such
termination pursuant to the terms of such plan or agreement. After termination,
Employee shall not be entitled to Base Salary, Bonus Compensation, severance
pay, fringe benefits, additional stock options, or any other compensation or
benefits. Company may, in its sole discretion, accept Employee's resignation and
terminate Employee's employment prior to the expiration of the thirty (30) day
notice period and pay Employee's compensation for the notice period (or
remaining term thereof).
(c) Employee's employment hereunder shall also terminate
automatically, and without any further action by the Employee or the Company,
upon the earlier to occur of (i) the death of the Employee; (ii) the adjudicated
incompetency of the Employee; or (iii) the disability of the Employee to perform
a material portion of his duties for 180 consecutive days, or for 100 business
days, which need not be consecutive, during any twelve-month period.
(d) In Employee's capacity as Executive Vice President,
Finance, Employee has made certain personal guarantees to computer equipment
vendors as set forth in Schedule 7(d). The Company and Employee agree that, in
the event Employee's employment is
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terminated, all such obligations secured by a personal guarantee from Employee
as identified in Schedule 7(d) shall be paid by the Company within ten (10)
days after Employee's termination.
8. ARBITRATION
(a) Exclusive Remedy. If Employee and the Company cannot
resolve a dispute, arising under any legal theory or based on federal, state, or
local statute, or common law (including any claims of discrimination), that in
any way arises out of, relates to, or is connected with the employment
relationship established in this Agreement or the termination thereof (a
"Dispute") then it shall be settled by final and binding arbitration, except
that this Paragraph does not apply to any legal action by the Company or
Employee for injunctive or other equitable relief (including, but not limited
to, any claim for breach or enforcement of the provisions of Paragraph 7 or any
claim for unfair competition or unauthorized use or disclosure of trade secrets
or other confidential information). Arbitration shall be the exclusive remedy
for any Dispute either party may bring against the other, or against any
employee, officer, director or agent of the other.
(b) Procedure. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association and shall be
conducted in New York, N.Y. Any Dispute submitted to arbitration shall be
decided by a single, neutral arbitrator (the "Arbitrator"). The parties to the
arbitration shall mutually select the Arbitrator not later than forty-five (45)
days after service of the demand for arbitration. If the parties for any reason
do not mutually select the Arbitrator within the forty-five (45) day period,
then either party may apply to any court of competent jurisdiction to appoint an
Arbitrator, chosen in accordance with the rules of the American Arbitration
Association.
9. GENERAL
9.1. No Brokers. Each of the parties to this Agreement
represents and warrants, each to the other, that it has not utilized the
services of any finder, broker or agent. Each of the parties agrees to indemnify
the other party against and hold it harmless from any and all liabilities to any
person, firm or corporation claiming any broker's or finder's fee or commission
of any kind on account of services rendered on behalf of such party in
connection with the transactions contemplated by this Agreement.
9.2. Applicable Law. This Agreement shall, in all respects, be
governed by the laws of the State of New York.
9.3. Venue; Process. The parties to this Agreement agree that
jurisdiction and venue shall properly lie only in any New York state court
located in New York County or the City of New York or in the United States
District Court for the Southern District of New York, with respect to any legal
proceedings arising from this Agreement. The parties agree that they will not
object that any action commenced in the foregoing jurisdictions is commenced in
a forum non conveniens. The parties further agree that the mailing by certified
or registered mail, return receipt requested, of any process required by any
such court shall constitute valid and lawful service of process against them,
without the necessity for service by any other means provided by statute or rule
of court. Notwithstanding the foregoing, however, nothing contained in this
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Subsection 8.3 shall be deemed to limit or waive any right of the parties to
remove any dispute to federal court in New York which might otherwise properly
be removed to such court.
9.4. Survival. The parties hereto agree that the covenants
contained in Section 6 hereof shall survive any termination of employment by the
Employee and any termination of this Agreement.
9.5. Notices. Any and all notices required or desired to be
given hereunder by any party shall be in writing and shall be validly given or
made to another party if delivered either personally, by telex, facsimile
transmission, same day delivery service, overnight delivery service, or if
deposited in the United States mail, certified or registered, postage prepaid,
return receipt requested. If notice is served personally, notice shall be deemed
effective upon receipt. If notice is served by telex or by facsimile
transmission, notice shall be deemed effective upon transmission, provided that
such notice is confirmed in writing by the sender within one day after
transmission. If notice is served by same day delivery service or overnight
expedited delivery service, notice shall be deemed effective the day after it is
sent, and if notice is given by mail, notice shall be deemed effective five days
after it is sent. In all instances, notice shall be sent to the parties at the
respective addresses set forth above. Any party may change its address for the
purpose of receiving notices by a written notice given to the other party.
9.6. Modifications or Amendments. No amendment, change or
modification of this document shall be valid unless in writing and signed by all
of the parties hereto.
9.7. Waiver. Failure of either party to exercise in any
respect any right provided for herein shall not be deemed a waiver of any right
hereunder.
9.8. Successors and Assigns. All of the terms and provisions
contained herein shall inure to the benefit of and shall be binding upon the
parties hereto and their respective heirs, personal representatives, successors
and assigns, but Employee's rights and obligations hereunder are personal to
Employee and shall not be subject to voluntary or involuntary alienation,
assignment or transfer.
9.9. Separate Counterparts. This document may be executed in
one or more separate counterparts, each of which, when so executed, shall be
deemed to be an original. Such counterparts shall, together, constitute and
shall be one and the same instrument.
9.10. Specific Performance. It is agreed that the rights
granted to the parties hereunder are of a special and unique kind and character
and that, if there is a breach by any party of any material provision of this
document, the other party would not have any adequate remedy at law. It is
expressly agreed, therefore, that the rights of the parties hereunder may be
enforced by an action for specific performance and other equitable relief.
9.11. Further Assurances. Each of the parties hereto shall
execute and deliver any and all additional papers, documents and other
assurances, and shall do any and all acts and things reasonably necessary in
connection with the performance of their obligations hereunder and to carry out
the intent of the parties hereto.
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9.12. Legal Fees and Costs. Each party in any action,
proceeding, arbitration or similar legal proceeding arising under this Agreement
shall be responsible for such party's own attorneys' fees and costs.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY
CERTIFYING THAT EMPLOYEE (A) RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND
STUDY BEFORE EXECUTING IT; (B) READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT;
(C) HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY QUESTIONS
EMPLOYEE HAD ABOUT THE AGREEMENT AND RECEIVED SATISFACTORY ANSWERS TO ALL SUCH
QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE'S RIGHTS AND OBLIGATIONS UNDER THE
AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
DME INTERACTIVE HOLDINGS, INC. XXXXX X. XXXXX
By: /s/ Darien Dash /s/ Xxxxx X. Xxxxx
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Title: Chief Executive Officer
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