EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of November 24 ,
1999 (the "Effective Date") by and between VIANET TECHNOLOGIES, INC., with
offices at 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company") and XXXXX
XXXXXXXX, an individual residing at 00 Xxx Xxxxx Xxxx, Xx. Xxxxxxxxxx, Xxx Xxxx
00000 (the "Employee").
WHEREAS, the Employee has been offered the position of Chief Operating
Officer of Company and will begin to serve in such capacities on the Effective
Date;
WHEREAS, the Company wishes to assure itself of the services of the
Employee, and the Employee is willing to serve in the employ of the Company upon
the terms and conditions hereinafter provided; and
WHEREAS, the Company's Board of Directors has determined that the best
interests of the Company and its shareholders would be served by providing for
the terms and conditions of the Employee's employment as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and intending to be legally bound hereby, the Company and the Employee
hereby agree as follows:
Section 1. Definitions. As used herein, the following terms shall have
the meanings set forth below.
"Fiscal Year" means any fiscal year of the Company, as applicable.
"Person" means any individual, sole proprietorship, general or limited
partnership, joint venture, trust, unincorporated organization, association,
corporation, institution, entity, party, limited liability company or government
(whether territorial, national, federal, state, provincial, county, city,
municipal or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
Section 2. Employment and Term. The Company hereby employs the Employee
for period of Two Years (2) from the effective date, and the Employee hereby
accepts such employment by the Company, for the purposes and upon the terms and
conditions contained in this Agreement. This Agreement can be terminable at will
by either party upon sixty (60) days written notice to the other party after the
initial Two Year term. The term hereof, until terminated as provided herein, is
referred to herein as the "Employment Period."
Section 3. Employment Capacities and Duties. The Employee shall be
employed throughout the Employment Period as Chief Operating Officer of the
Company. The Employee shall have the duties and responsibilities normally
associated and incumbent with this position.
Section 4. Employee Performance Covenants. The Employee accepts the
employment described in Section 3 herein and agrees to devote his full working
time and efforts to the business and affairs of the Company and the performance
of the aforesaid duties and responsibilities set forth in Section 3 hereof.
Employee further represents and warrants that his entry into this Employment
Agreement does not violate any other agreement to which he is or has been a
party.
Section 5. Salary. The Employee shall be paid a salary (the "Salary")
at an annual rate of Two Hundred Fifty Thousand Dollars ($250,000.00), payable
in equal installments in accordance with the Company's payroll policies, for the
period commencing on November 1, 1999. The Salary shall be pro-rated for any
Fiscal Year hereunder which is less than a full Fiscal Year.
Section 6. Employee Benefits, Vacations. During the Employment Period,
in addition to any and all compensation and benefits required or permitted to be
made by the Company to the Employee hereunder, the Employee shall receive the
benefits and enjoy the perquisites described below:
a) Vacation. The Employee shall be entitled to Four (4)
weeks paid vacation per annum; the Employee will be paid for unused vacation
at his standard salary rate and
b) Participation in Benefit Plans. The Employee shall be
entitled to participate in any group hospitalization, health, life or other
insurance or death benefit plan, travel or accident insurance, restricted or
stock purchase plan, stock option plan, retirement income or pension plan,
401(k) plan, or other present or future group employee benefit plan or program
of the Company for which Employees are or shall become eligible. Nothing
contained in this Agreement shall prevent the Board from amending or otherwise
altering any such plan, program or arrangement during the Employment Period.
c) Bonus. At management discretion.
Section 7. Termination of Employment. Any termination of the Employee's
employment by the Company or the Employee shall be communicated by written
Notice of Termination to the other party hereto. In the event that the Employer
and Employee mutually agree to terminate employment prior to the term of this
contract, the Employee shall be paid through the term of this employment
contract. Any Stock Options that have not vested by the effective date of
termination shall become vested.
Section 8. Stock Options. The Company shall cause Vianet Technologies,
Inc. to provide to the Employee pursuant to the terms and conditions of the
Stock Option Addendum attached hereto options (the "Stock Options") to purchase
One Hundred and Fifty Thousand (150,000) shares of the common stock of Vianet
Technologies, Inc. (the "Common Shares") at an exercise price equal to the
Closing Bid for the Common Shares on the effective date of this contract,
subject to the following vesting schedule:
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Number of Stock Options Vesting Date
----------------------- ------------
100,000 shares 6 Months after the
50,000 shares 12 Months after the Effective
The Stock Options shall be granted under and shall be subject to the
terms and conditions of the Stock Option Addendum. The Stock Options shall be
exercisable for four (4) years from date of grant.
Section 9. Certain Company Protection Provisions. The following
provisions apply for the protection of the Company, and shall survive
indefinitely, beyond the duration of this Agreement:
a) Non-Solicitation. During the Restricted Period (as
hereinafter defined), the Employee shall not directly or indirectly solicit any
customer or known prospective customer who has contracted with the Company to
purchase products or services during the then-preceding twelve month period. As
used herein, the term "Restricted Period" means the Employment Period.
b) Confidentiality. The Employee agrees and acknowledges that,
by reason of the nature of his duties as an officer and employee, he will have
or may have access to and become informed of confidential and secret information
which is a competitive asset of the Company ("Confidential Information"),
including without limitation any lists of customers or subscribers, financial
statistics, research data or any other statistics and plans contained in profit
plans, capital plans, critical issue plans strategic plans or marketing or
operation plans or other trade secrets of the Company and any of the foregoing
which belong to any person or company but to which the Employee has had access
by reason of his employment relationship with the Company. The Employee agrees
faithfully to keep in strict confidence, and not, either directly or indirectly,
to make known, divulge, reveal, furnish, make available or use (except for use
in the regular course of his employment duties) any such Confidential
Information; provided, however, that the Employee will not be deemed to have
violated this provision if he is compelled by valid legal process to disclose
any Confidential Information. The Employee acknowledges that all manuals,
instruction books, price lists, experiment logs or papers, information and
records and other information and aids relating to the Company's business, and
any and all other documents containing Confidential Information furnished to the
Employee by the Company or otherwise acquired or developed by the Employee,
shall at all times be the property of the Company. Upon the Employment
Termination Date, the Employee shall return to the Company any such property or
documents which are in his possession, custody or control, but his obligation of
confidentiality shall survive the Employment Termination Date until and unless
any such Confidential Information shall have become, through no fault of the
Employee, generally known to the public. The obligations of the Employee under
this subsection are in addition to, and not in limitation or preemption of, all
other obligations of confidentiality which the Employee may have to the Company
under general legal or equitable principles.
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c) Remedies. It is expressly agreed by the Employee and the
Company that these provisions are reasonable for purposes of preserving for the
Company its business, goodwill and proprietary information. It is also agreed
that if any provision is found by a court having jurisdiction to be unreasonable
because of scope, area or time, then that provision shall be amended to
correspond in scope, area and time to that considered reasonable by a court and
as amended shall be enforced and the remaining provisions shall remain
effective. In the event of any breach of these provisions by the Employee, the
parties recognize and acknowledge that a remedy at law will be inadequate and
the Company may suffer irreparable injury. The Employee acknowledges that the
services to be rendered by him are of a character giving them peculiar value,
the loss of which cannot be adequately compensated for in damages. Accordingly,
the Employee consents to injunctive and other appropriate equitable relief
without the posting of any type of bond or surety upon the institution of
proceedings therefor by the Company in order to protect the Company's rights.
Such relief shall be in addition to any other relief to which the Company may be
entitled at law or in equity.
Section 10. Successors and Assigns. Except as hereinafter expressly
provided, the agreements, covenants, terms and provisions of this Agreement
shall bind the respective heirs, executors, administrators, successors and
assigns of the parties. This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder, except as provided in this
Section 10. Without limiting the foregoing, the Employee's right to receive
payments hereunder shall not be assignable or transferable, whether by pledge,
creation of a security interest or otherwise, and in the event of any attempted
assignment or transfer in contravention of this Section 10, the Company shall
have no liability to pay to the purported assignee or transferee any amount so
attempted to be assigned or transferred.
Section 11. Notices. All notices and other communications that are
required or may be given under this Agreement shall be in writing and shall be
delivered personally or by certified mail addressed to the party concerned at
the following addresses:
If to the Company: Vianet Technologies, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
If to Employee: Xxxxx Xxxxxxxx
00 Xxx Xxxxx Xx.
Xx. Xxxxxxxxxx, Xxx Xxxx 00000
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All notices shall be effective upon receipt.
Section 12. Waiver: Remedies Cumulative. No waiver of any right or
option hereunder by any party shall operate as a waiver of any other right or
option, or the same right or option as respects any subsequent occasion for its
exercise, or of any legal remedy. No waiver by any party of any breach of this
Agreement or of any agreement or covenant contained herein shall be held to
constitute a waiver of any other breach or a continuation of the same breach.
All remedies provided by this Agreement are in addition to all other remedies
provided under this Agreement or applicable law.
Section 13. Governing Law: Severability. A substantial portion of
negotiations, anticipated performance and execution of this Agreement occurred
or shall occur in New York, New York and the various terms, provisions,
covenants and agreements, and the performance thereof, shall be construed,
interpreted and enforced under and with reference to the substantive laws of the
State of New York. It is the intention of the Company and the Employee to comply
fully with all laws and matters of public policy relating to employment
agreements and restrictive covenants, and this Agreement shall be construed
consistently with such laws and public policy to the extent possible. If and to
the extent any one or more covenants, agreements, terms and provisions of this
Agreement or any portion or portions thereof shall be held invalid or
unenforceable by a court of competent jurisdiction, then such covenants,
agreements, terms and provisions (or portions thereof) shall be deemed separable
from the remaining covenants, agreements, terms and provisions of this Agreement
and such holding shall in no way affect the validity or enforceability of any of
the other covenants, agreements, terms and provisions hereof.
Section 14. Miscellaneous. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be modified, changed or amended except in a writing
signed by each of the parties hereto. This Agreement may be signed in
counterparts, both of which shall be deemed an original hereof. The captions of
the several sections and subsections of this Agreement are not a part of the
context hereof, are inserted only for convenience in locating such subsections
and shall be ignored in construing this Agreement.
Section 15. Jurisdiction and Venue. The parties acknowledge that a
substantial portion of negotiations, anticipated performance and execution of
this Agreement occurred or shall occur in New York, New York and that,
therefore, without limiting the jurisdiction or venue of any other federal or
state courts, each of the parties irrevocably and unconditionally (a) agrees
that any suit, action or legal proceeding must be brought in New York, New York;
(b) consents to the jurisdiction of such court in any suit, action or
proceeding; (c) waives any objection which it may have to the laying of venue of
any such suit, action or proceeding in any of such courts; and (d) agrees that
service of any court paper may be effected on such party by mail, as provided in
this Agreement, or in such other manner as may be provided under applicable laws
or court rules in the State of New York.
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IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement as of the Effective Date.
EMPLOYEE:
Xxxxx Xxxxxxxx
________________________________________
COMPANY:
Vianet Technologies, Inc.
By:_____________________________________
Name: Xxxxx Xxxxxxxx
Title: President
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STOCK OPTION ADDENDUM
to
Employment Agreement
between
Vianet Technologies, Inc.
and
Xxxxx Xxxxxxxx
As of November 24, 1999
A Stock Option (the "Option") is hereby granted by Vianet Technologies,
Inc., a Nevada corporation (the "Company"), to Xxxxx Xxxxxxxx (the "Optionee")
for and with respect to the common stock of the Company, $0.001 par value per
share ("Common Stock"), subject to the following terms and conditions, and the
terms and conditions set forth in the Employment Agreement (the "Employment
Agreement") of even date herewith by and between Vianet Technologies, Inc., and
the Optionee. All capitalized terms that are not defined herein shall have the
meaning ascribed to them in the Employment Agreement.
Name of Optionee: Xxxxx Xxxxxxxx
Number of Shares Subject to Option: 150,000
Option Price Per Share: Closing Bid on November 24, 1999
Date of Grant: First Date of Employment
1. Grant of Option. The Company hereby grants to the Optionee an option
to purchase from the Company the number of shares of Common Stock set forth
above.
2. Term of Option. The term of the Option shall be four (4) years. In
accordance with the terms and conditions of the Employment Agreement.
3. Exercise Schedule. The Option shall become vested and exercisable
according to the following schedule:
Exercise Period
Number of Shares ------------------------------------------------
Subject to Option Vesting Date Expiration Date
----------------- ------------ ---------------
100,000 6 Months after the 4th Anniversary of
50,000 12 Months after the 4th Anniversary of
4. Piggy-back Registration Rights. If the Company at any time proposes
to register any of its securities under the Act or pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), collectively referred to as
the "Securities Acts," whether or not for sale for its own account, it will each
such time give prompt written notice to the Optionee of its intention to do so
(the "Registration Notice"). Upon the written request of the Optionee, made
within fifteen (15) business days after the receipt of the Registration Notice,
the Company shall use its best efforts to effect the registration under the
Securities Acts of such amount of the Option Shares as the Optionee requests, by
inclusion of such Option Shares in the registration statement that relates to
the securities which the Company proposes to register, provided that if, at any
time after giving the Registration Notice and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason either not to register or to delay registration
of such securities, the Company may, at its election, give written notice of
such determination to the Optionee (the "Refusal Notice") and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its obligation
to register the Option Shares in connection with such terminated registration
(but not from its obligation to pay the Registration Expenses (as defined
herein) in connection therewith), and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering the Option Shares,
for the same period as the delay in registering such other securities.
(b) Registration Expenses. The Company shall pay all
Registration Expenses (as defined herein) in connection with each registration
of the Option Shares to this Section 4. For the purposes hereof, the phrase
"Registration Expenses" shall include all expenses incident to the Company's
performance of, or compliance with, this Section 4, including, without
limitation, (i) all registration, filing and NASD fees, (ii) all fees and
expenses of complying with securities or blue sky laws, (iii) all printing
expenses, (iv) the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, (v) the fees and disbursements of any one counsel and any one
accountant retained by the Optionee, (vi) premiums and other costs of policies
of insurance against liabilities arising out of the public offering of the
Option Shares being registered if the Company desires such insurance, and (vii)
any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding underwriting discounts and commissions and
transfer taxes, if any.
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5. Acceptance by the Optionee. The exercise of the Option is
conditioned upon the acceptance by the Optionee of the terms and conditions set
forth herein as evidenced by his execution of this agreement and the return of
an executed copy hereof to the address set forth in Section 5 hereof.
6. Notice of Exercise. Written notice of an election to exercise any
portion of the Option, specifying the portion thereof being exercised, shall be
delivered by personal delivery or by certified mail, return receipt requested,
by the Optionee to:
Vianet Technologies, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
7. Exercise; No Transfer of Option. The Option may be exercised only by
the Optionee during his lifetime and may not be transferred other than by will
or the applicable laws of descent or distribution. The Option shall not
otherwise be transferred, assigned, pledged or hypothecated for any purpose
whatsoever and is not subject, in whole or in part, to execution, attachment or
similar process. Any attempted assignment, transfer, pledge or hypothecation or
other disposition of the Option, other than in accordance with the terms set
forth herein, shall be void and of no effect.
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8. Manner of Exercise. The Option shall be exercised by written notice
to the Company prior to the expiration of the Option. The Option Price Per Share
upon exercise of the Option shall be paid in full in cash by the Optionee or
payment in accordance with a cashless exercise program under which the Option
Shares may be issued directly to the Optionee's broker or dealer upon receipt by
the Company of irrevocable instructions to that effect
9. Effect on Employment. The Option does not confer on the Optionee any
right to employment by the Company, nor does it interfere in any way with (i)
any right which Vianet Labs, Inc. may have to terminate the employment or alter
the duties of the Optionee at any time; or (ii) any right which the Optionee may
have to terminate his employment at any time.
10. Cancellation; Change. In the event the Option shall be exercised in
whole, this agreement shall be surrendered to the Company for cancellation. In
the event the Option shall be exercised in part, or a change in the number of
designation of the Common Stock shall be made, this agreement shall be delivered
by the Optionee to the Company for the purpose of making appropriate notation
thereon, or of otherwise reflecting, in such manner as the Company shall
determine, the partial exercise or the change in the number or designation of
the Common Stock.
11. New York Law Governs. The Option and this agreement shall be
construed, administered and governed in all respects under and by the laws of
the State of New York without regard to its conflicts of law principles.
VIANET TECHNOLOGIES, INC.
By:___________________________
Name: Xxxxx Xxxxxxxx
Title: President and CEO
The undersigned hereby
accepts the foregoing
Option and the terms and
conditions hereof.
______________________________
Xxxxx Xxxxxxxx
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