EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into this 29th day of December, 1999, by and
between ▇▇▇▇▇▇▇.▇▇▇., Inc. a Delaware corporation with its primary offices at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Company), and
▇▇▇▇ ▇▇▇▇▇▇▇, an individual residing in Ontario, Canada (the "Employee").
1. EMPLOYMENT RELATIONSHIP.
Employee is hereby employed in the capacity of Chief Technology Officer until
the termination of his employment pursuant to Section 3 hereof. Employee will
faithfully, fully, and to the best of his ability, experience and talent perform
and render such services and perform such duties for Company as Chief Technology
Officer as the Chief Executive Officer of the Company shall direct. Employee
will devote his full business time, attention, knowledge and skill solely to the
business of the Company and will not engage in any other business activities for
compensation or profit.
2. COMPENSATION (US Dollars)
2.1. As compensation for the performance of his duties, Employee will
receive a salary at an annual rate of $170,000 payable in accordance
with the Company's normal pay practices for a salaried employee.
2.2. Employee shall receive an annual guaranteed bonus of $30,000, payable
at the rate of $2,500 per month. Such amount shall be payable monthly
on the Company's first normal pay date of each month, the first month
of employment, and shall continue so long as the Employee remains
employed hereunder.
2.3. Employee shall be eligible for an incentive performance bonus for each
calendar year of his employment, with such bonus for 1999, if any,
prorated to reflect the number of days Employee is employed during
such year.
2.4. Employee will be entitled to participate in all fringe benefit
programs now or hereafter made available to other salaried employees
of the Company. A summary of benefits currently in effect is attached
or has been previously provided to Employee. Employee shall be
entitled to up to four (4) weeks of paid vacation per year.
2.5. Company will reimburse Employee for all travel and business expenses
incurred by him which are reasonable and necessary for carrying on the
business of the Company. Expenses will be reimbursed after
presentation by Employee of an itemized account of such expenses in
form and substance satisfactory to the Company, and Company's
determination that such expenditures were reasonable, ordinary and
necessary.
3. TERMINATION BY COMPANY OR BY EMPLOYEE
3.1. Company may terminate Employee's employment at any time, with or
without cause. If Employee is terminated by Company other than for
"Cause" (as
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defined hereinafter), he shall be entitled to receive salary
continuously for the lesser of twelve (12) months or until he is
gainfully employed.
3.2. For purposes of this Agreement, termination for "Cause" (as defined
hereinafter) is defined as (i) willful and continued failure by
Employee to perform his duties as Chief Technology Officer of the
Company; (ii) gross misconduct of Employee which is injurious to the
Company; (iii) a material breach by the Employee of his obligations
under Section 4 of this Agreement which is reasonably believed by the
Company to have caused, or to be likely to cause, material harm to the
Company, or (iv) conviction of felony. Each of 3.2 (i) and (ii) shall
be deemed to exist provided the Company has provided written notice to
the Employee setting forth the perceived performance deficiencies and
the steps needed to remedy those deficiencies and the Employee has
failed to take immediate steps to remedy such deficiencies. If the
Employee is terminated for Cause, no further salary, bonus, incentive
performance bonus, or other compensation will be payable under this
Agreement except for any amount of base salary and bonus which has
accrued but not been paid prior to the date of termination. 3.3.
Employee may terminate his employment at any time with or without
"Good Reason" as defined in Section 3.4. If the Employee terminates
other than for "Good Reason," no further salary, bonus, incentive
performance bonus, or other compensation will be payable under this
Agreement except for any amount of base salary and bonus which has
accrued but not been paid prior to the date of termination.
3.4. For purposes of this Agreement, termination for "Good Reason" is
defined as (i) assignment to the Employee of demonstrably onerous or
significantly demeaning on-going duties inconsistent with his status
as Chief Technology Officer; or (ii) reduction in his total
compensation below the amounts required by Section 2.1 and 2.2. If the
Employee resigns for Good Reason, he shall be entitled to receive
salary continuation as provided in Section 3.6.
3.5. The Employee's employment shall be automatically terminated upon the
occurrence of either of the following events: (i) death of the
Employee, and (ii) disability of the Employee, as defined in the long
term disability policy carried by the Company for the Employee, or if
no such policy exists, disability which causes the Employee to be
unable to satisfactorily perform his job duties for a period of twelve
(12) consecutive months as reasonably determined by the Company in its
discretion. In such cases, no further salary, bonus or other
compensation will be payable under this Agreement except for any
amount of base salary and bonus which has accrued but not been paid
prior to the date of the termination.
3.6. If the Employee is terminated by the Company other than for Cause or
if the Employee resigns for Good Reason for the lesser of a period of
twelve (12) months from the date his employment terminates or until he
is gainfully employed, the Employee shall receive continuation of his
annual base salary then in effect, together with the continuation of
life and health insurance benefits then in effect; provided, however,
that any benefit payable hereunder shall terminate on the date the
Employee violates any of the covenants under Section 4 hereof. In the
event the Company is unable to continue the Employee's participation
in any such insurance program after the date of such termination or
resignation, the
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Company shall provide substantially equivalent insurance benefits or
reimburse the Employee for the cost of acquiring substantially
equivalent benefits.
4. COVENANTS BY EMPLOYEE
4.1. Definitions: As used in this Agreement, the following terms shall have
the following meanings:
4.1.1. "Confidential Information" includes trade secrets and all other
information disclosed to or known by the Employee as a result of
or through the Employee's employment by the Company, including
information about the Company's processes, services or products,
including all information related to research, development,
inventions, production, purchasing, accounting, finances,
engineering, marketing, merchandising, and customers' names and
accounts but excluding general knowledge in the industry in which
the Company is engaged.
4.1.2. "Inventions" includes any discoveries concepts and ideas
regardless of patentability, including but not limited to
processes, methods, computer programs and techniques, as well as
improvements thereof, concerning any activity of the Company that
the Employee may become acquainted with as a result of employment
by the Company.
4.2. Other than as stipulated in Exhibit A, the Employee expressly agrees
that, except as required in his duty to the Company, he will not at
any time, in any fashion, either directly or indirectly, use, divulge,
disseminate, disclose, lecture upon, publish articles concerning or
communicate to any person, firm or corporation in any manner
whatsoever any Confidential Information, without the prior express
approval from the Company. The parties hereby stipulate that as
between them, all Confidential Information is important, material and
confidential and the disclosure of such Confidential Information
materially adversely affects the effective and successful conduct of
business by the Company and its goodwill, and that any breach of the
terms of this paragraph is a material breach thereof. The Employee
agrees to sign any secrecy or nondisclosure agreement required by a
customer of the Company as a condition of doing business with the
Company, and to provide the Company with a signed copy of said
agreement. Upon termination of his employment with the Company, the
Employee shall leave with the Company all documents, records,
notebooks and other repositories containing Confidential Information,
including any and all copies thereof then in the Employee's possession
whether prepared by him or others.
4.3. Other than as stipulated in Exhibit A, the Employee agrees not to
assert any rights to, and expressly assigns to the Company as the
Company's exclusive property, all ideas, innovations, discoveries,
improvements, Inventions, trademarks, computer programs and/or systems
and other developments or improvements conceived by the Employee,
alone or with others, during the term of his employment, whether or
not during working hours, that are within the scope of the Company's
business operations or that relate to any work or projects of the
Company. The Employee agrees to assist the Company, at the Company's
expense, to obtain patents or copyrights on any protectable ideas and
Inventions, to obtain trademarks, to exploit other developments and to
execute all documents
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necessary to obtain such patents, copyrights, trademarks, or other
developments in the name of the Company.
4.4. The Employee agrees that during the term of this Agreement and for a
period of one (1) year after the expiration of this Agreement or
termination of his employment with the Company, without the prior
written consent of the Company (which consent will not be unreasonably
withheld), he will not directly or indirectly own, operate, manage,
control, participate in the management or control of, be employed by
act, as a consultant for, provide or facilitate the provision of
financing for, assist, or maintain or continue any interest whatsoever
(other than stock ownership in any publicly owned company not
exceeding five percent (5%) of the outstanding stock of such company)
in any of the Company's customers, served by him or by any other
principal or employee of the Company during the term of his employment
with the Company, or in any enterprise in the United States or Canada
engaged in a business that is directly competitive with the Company.
Without implied limitation, the foregoing covenant shall include
hiring or engaging or attempting to hire or engage for or on behalf of
himself or any competitor any officer or employee of the Company or
any of its subsidiaries, encouraging for on behalf of himself or any
competitor, any such officer or employee to terminate his or his
relationship or employment with the Company or any of its
subsidiaries, soliciting for or on behalf of himself or any competitor
any person or entity which was a client of the Company or any of its
subsidiaries, soliciting for or on behalf of himself or any competitor
any person or entity which was a client of his during his employment
with the Company, and diverting to any person or entity any client or
business opportunity which relates to the business of the Company or
any of its subsidiaries.
4.5. The Employee expressly agrees that the terms and condition of this
Section 4 shall remain in full force and effect during and after
termination of this Agreement for a period of 12 months. The parties
hereto agree and declare that monetary damages will be insufficient to
fully compensate the Company for its losses in the event that the
Employee breaches the covenants contained in this Section 4.
Therefore, the Company will be entitled to enjoin the Employee from
any threatened or actual violation of any covenant contained herein,
and the Employee will not raise as a defense to any action or
proceeding for an injunction the claim that the Company would be
adequately compensated by monetary damages.
5. DISPUTE RESOLUTION
5.1. Except with respect to matters as to which injunctive relief is being
sought, any dispute arising out of or relating to this Agreement, or
the breach, termination or validity hereof shall be finally settled by
binding arbitration conducted expeditiously in accordance with
J.A.M.S./Endispute Comprehensive Arbitration Rules and Procedures (the
"J.A.M.S. Rules"). The arbitration shall be governed by the United
States Arbitration Act, 9 U.S.C. Section 1-16, and judgement upon the
award rendered by the arbitrators may be entered by any court having
jurisdiction thereof. The place of arbitration shall be New York City,
New York.
5.2. Such proceedings shall be administered by the neutral arbitrator in
accordance with J.A.M.S. Rules as the arbitrator deems appropriate,
however, such proceedings shall be guided by the following agreed upon
procedures:
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5.2.1. Mandatory exchange of all relevant documents, to be
accomplished within thirty (30) days of the initiation of the
procedure;
5.2.2. no other discovery;
5.2.3. hearings before the neutral arbitrator which shall consist of a
summary presentation by each side of no more than three 3 hours;
such hearings to take place on one or two days at a maximum; and
5.2.4. decision to be rendered not more than ten (10) days following
such hearings.
6. MISCELLANEOUS PROVISIONS
6.1. Employee hereby represents and warrants that he is free to make this
Agreement and the making hereof and/or performance hereunder by him
will not violate the legal and/or equitable rights of any third party.
6.2. This Agreement embodies the entire understanding of the parties and
there are no promises, terms, covenants, conditions or obligations or
other written, expressed or implied agreements other than those
contained herein. No change or modification of the Agreement will be
valid unless the same will be in writing and signed by both parties
hereto.
6.3. The failure of Company to act or exercise its rights under this
Agreement upon the breach of any of the terms or conditions hereof by
the Employee shall not be construed as a waiver of such breach, nor
prevent Company from hereafter enforcing strict compliance with any
and all of the terms and conditions herein set forth. If any provision
of the Agreement is declared void, all of the remaining provisions of
this Agreement shall nevertheless remain in full force and effect, and
no provisions shall be deemed dependent upon any other provision.
6.4.
6.4.1. The employment by Company of Employee is being effected because
of Employee's special capabilities and qualifications and all of
his rights, benefits and duties hereunder are, therefore, not
assignable or transferable in any manner, except to the extent
that any benefit hereunder may be payable to his estate.
6.4.2. The Company's obligations and duties under this Agreement shall
be binding upon any successor, and this Agreement shall inure to
the benefit of and be enforceable by any such successor to the
Company.
6.5. This Employment Agreement will be construed and enforced in accordance
with the laws of the State of New York.
6.6. Employee certifies that he has read the entire contents of this
Agreement before signing his name hereto, that he was encouraged and
afforded sufficient opportunity by Employer to obtain legal advice
prior to executing this Agreement and that he fully understands all of
the terms, conditions, and provisions set forth herein.
6.7. If any provision of this Agreement shall be deemed unenforceable,
prohibited, or invalid under applicable law, such provision shall be
ineffective to the extent of such unenforceability, prohibition, or
invalidity, but no other provision of this Agreement shall be
invalidated thereby, and the remainder of this Agreement shall remain
enforceable and in effect.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first above written.
▇▇▇▇▇▇▇.▇▇▇ INC. EMPLOYEE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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