EXHIBIT 10.15
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, made as of the 1st day of
January, 2004 between ▇▇▇▇ ▇▇▇▇▇▇▇▇ (hereinafter referred to as the "Employee")
and SearchHelp, Inc., a Delaware corporation having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as
the "Employer").
W I T N E S S E T H:
WHEREAS, the Employee is employed by the Employer under the Employment
Agreement dated March 1, 2003 between Employer and Employee (the "Original
Employment Agreement"); and
WHEREAS, the Employer and the Employee desire to amend the terms of
the Original Employment Agreement; and
WHEREAS, the Employee and Employer desire to have their rights,
obligations and duties specified herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. EMPLOYMENT AND COMPENSATION. The Employer hereby employs the
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Employee and the Employee accepts such employment as Chief Executive Officer,
Chief Financial Officer, Treasurer, Vice President and Chairman of the Board of
Directors. The Employee shall have such duties as set forth by the Employer and
shall report directly to the Board of Directors of Employer.
A. Base Compensation. The Employee shall be entitled to a
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salary as set forth on SCHEDULE A of this Agreement during the term of this
Agreement, and any extensions thereof, payable in installments in accordance
with the Employers regular practice of compensating executive personnel.
B. Bonus. Employee shall be entitled to a bonus at the
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conclusion of each year of this Agreement, and any extensions thereof. At the
end of each year, the Compensation Committee of the Board of Directors shall
determine the amount and type (cash, stock, options, etc.) of such bonus payable
to Employee, if any.
2. TERM. This Agreement shall commence as of the date hereof,
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and shall continue for a period of three (3) years from the date thereof. This
Agreement shall be automatically extended by one-year periods at the conclusion
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of each year, thus renewing the three (3) year term, unless notice is received
by either the Employee or the Employer not to extend this Agreement at least
ninety (90) days prior to the expiration of such year.
3. DUTIES AND RESPONSIBILITIES.
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A. As Chief Executive Officer, Chief Financial Officer,
Treasurer, Vice President and Chairman of the Board Of Directors, employee shall
diligently, conscientiously and faithfully devote all necessary time and energy
to the business of the Employer during the term, including any renewals, and
shall actively manage, and have responsibility for and supervision over, the
business activities and affairs of the Company and its subsidiaries, and he
shall, manage, supervise and direct its and their officers, employees and
agents, and all other duties as from time to time reasonably requested by the
Board of Directors.
B. During the term hereof and any renewal, the Employee
shall not, without the written consent of the Employer, such consent not to be
unreasonably withheld, engage in any activity that competes with the interest of
the Employer, whether the Employee is acting by himself or as an officer,
director, employee, shareholder, partner, or fiduciary.
4. VACATIONS AND EDUCATIONAL COURSES.
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A. The Employee shall be entitled to a vacation of four
(4) weeks duration during the term of this Agreement. The compensation of the
Employee shall be paid to him during the time of his vacation. Attendance with
the Employer's approval at professional meetings, conventions, and educational
courses up to two weeks shall not constitute part of said vacation.
B. Vacation may be taken at one time or from time to time,
the exact time to be subject to approval by the Employer.
5. HEALTH INSURANCE; EMPLOYEE BENEFIT PLANS. In accordance with
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their terms, the Employee shall be entitled to participate in any medical,
dental, life, disability insurance or other employee benefit or welfare plans
maintained by the Employer for its professional employees generally. The
insurance obligations of the Employer set forth herein are contingent upon the
insurability of Employee. The medical and dental coverage maintained by the
Employer for the benefit of the Employee shall include medical insurance
coverage covering the Employee and his family. At the option of the Employee,
the Employee may choose not to be covered under the Employer's medical and
dental plans, but may choose instead to be covered under a family plan
maintained by such Employee's spouse. In such event, the Employee shall be
reimbursed in an amount equal to the difference in additional cost to such
spouse of individual and family coverage. Any such reimbursement shall not be
deemed compensation to Employee.
6. EXPENSES. During the period of his employment, the Employee
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will be reimbursed for his reasonable expenses for the benefit of the Employer
in accordance with the general policy of the Employer as adopted by the Employer
from time to time. With respect to any expenses which are reimbursed by the
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Employer to the Employee, the Employee agrees to account to the Employer in
detail sufficient to entitle the Employer to an income tax deduction for such
paid item if such item is deductible.
7. TERMINATION.
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A. This Agreement shall automatically terminate:
(i) upon the death of Employee; or
(ii) if the Employee has been disabled or incapacitated
so that he is not capable of performing his duties
hereunder for any period of one-hundred twenty
(120) consecutive days, unless Employer shall
elect to have this Agreement continue in effect.
B. Employer may terminate this Agreement:
(i) immediately for "cause" as determined by the
Employer;
(ii) upon a material breach by Employee of any term or
condition of this Agreement; or
(iii)if at any time during the term of this Agreement,
any of the continuing representations, covenants
or agreements of Employee contained herein shall
be inaccurate in any material respect.
C. Employee may terminate this Agreement at any time:
(i) upon a material breach by Employer of any term or
condition of this Agreement; or
(ii) at any time at the election of Employee upon
ninety (90) days notice to Employer.
8. PROTECTION OF CONFIDENTIAL INFORMATION. Employee
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acknowledges that his employment by the Employer will bring him into close
contact with many confidential affairs of the Employer, including information
and data regarding costs, profits, markets, sales, products, key personnel,
pricing policies, operational methods, technical processes, computer programs or
systems developed or improved by the Employer, the identity of the Employer's
Customers, Customer representatives and contacts, the nature of the services
required by the Employer's actual and Prospective Customers, the services
performed by the Employer for its Customers, the identities of the Employer's
actual and prospective employees and other business affairs and methods, plans
for future developments and other information not readily available to the
public, all of which are highly confidential and proprietary and all of which
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will have been developed by the Employer at great effort and expense. Employee
further acknowledges that the services to be performed by him under this
Agreement are of a special, unique, unusual, extraordinary and intellectual
character, and that the business of the Employer is contemplated to be conducted
throughout the United States and ultimately, the rest of the world. In
recognition of the foregoing, Employee covenants and agrees:
A. That he will keep secret all confidential matters of
the Employer and not disclose them to anyone outside of the Employer, either
during or after the term of this Agreement, except with the Employer's prior
written consent;
B. That he will not make use of any of such confidential
matters for his own purposes or the benefit of anyone other than the Employer;
and
C. That he will deliver promptly to the Employer on
termination of this Agreement, or at any time the Employer may so request, all
confidential memoranda, notes, records, reports and other confidential documents
(and all copies thereof) relating to the business of the Employer which he may
then possess or have under this control.
9. COVENANT NOT TO SOLICIT.
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A. Employee agrees that if the Employee's employment is
terminated for any reason whatsoever, other than pursuant to a dissolution of
Employer or a material breach of the terms of this Agreement by Employer, then
for a period of one (1) year after such termination or expiration, Employee
shall not (i) solicit, directly or indirectly, business of the type conducted by
the Employer from any person, firm or entity which was a Customer or Prospective
Customer of the Employer at any time within one year preceding the termination
of Employee's employment, (ii) induce or attempt to induce any such Customer or
Prospective Customer to reduce its business with the Employer, (iii) solicit or
attempt to solicit any employees or consultants of Employer to leave the employ
or engagement of Employer, or (iv) offer or cause to be offered employment or
consultant opportunities to any person who was employed or engaged by Employer
at any time during the one year prior to the termination of Employee's
employment with Employer.
B. For purposes of this Section, the term "Customer"
includes any affiliates, customers, and clients of Employer's Customers to whom
Employee has been introduced or whom Employee has received information through
Employer or through any Customer for which Employee has performed services in
any capacity on behalf of Employer.
C. For purposes of this Section, a "Prospective Customer'
shall mean potential Customers which Employer has solicited or with which
Employer has had active discussions concerning potential business at any time
during the one year preceding the end of the Employee's employment by Employer,
and with whom the Employee shall have participated in such solicitation or
discussions.
10. NON-COMPETITION.
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A. Since the services of Employee to the Employer are
likely to be unique an extraordinary and he has had and will have access to
information pertaining to the business of the Employer which may be secret and
confidential, Employee agrees that if the Employee's employment is terminated
for any reason whatsoever, other than pursuant to a dissolution of Employer or a
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material breach of the terms of this Agreement by Employer, then for a period of
one (1) year after such termination or expiration, Employee will not, without
express approval in each case of the Employer, directly or indirectly, (i) own,
manage, operate, control, be employed by, participate in or be connected in any
manner with the ownership, management, operation or control of any business
engaged in the development or marketing of any products that compete with the
products of Employer.
B. The Employee further acknowledges that a business
competitive with that of Employer or of any of its subsidiaries or affiliated
corporations may be carried on anywhere within the United States or in any
foreign country. Therefore, the Employee acknowledges that the unrestricted
geographical application of this Section is reasonable under the circumstances.
If any of the rights or restrictions contained or provided for herein shall be
deemed to be unenforceable by reason of the extent, duration or geographical
scope, or other provisions hereof, or any other provisions of this Agreement,
the parties hereto contemplate that the court shall reduce such extent,
duration, geographical scope or other provisions and enforce this Section in its
reduced form for all purposes in the manner contemplated hereby.
C. The Employee acknowledges that (i) in the event his
employment with Employer terminates for any reason, Employee will be able to
earn a livelihood without violating the foregoing restrictions, and (ii)
Employee's ability to earn a livelihood without violating such restrictions is a
material condition of his employment with Employer. Employer may, in writing,
waive any or all of the provisions of this Section. If the Employee is in good
faith and after diligent effort unable to obtain employment consistent with his
training solely because of the covenants set forth in this Section, and so
advises Employer in writing, then the prohibitions in this Section shall bind
the Employee only so long as Employer pays him monthly, upon demand, a sum equal
to the Employee's monthly base pay at termination, as defined below, for each
month of such unemployment during the remained of the term of covenants set
forth in this Section.
D. The term "monthly base pay" means the Employee's
monthly salary, in all cases excluding commissions in excess of base pay, bonus
or other extra compensation or benefits, and is subject to regular deductions
for taxes, social security payments, etc. For each month of unemployment in
which the Employee claims payment, he will aggressively seek employment and will
accept a reasonable offer of employment and, upon request by Employer, will
account to Employer in detail for his efforts to obtain employment. The Employee
further agrees that Employer may make such investigations and inquiries as it
shall deem necessary or appropriate to determine whether the covenants and
conditions of this Section have been satisfied before making any payment
otherwise payable to the Employee hereunder.
11. PROPRIETARY RIGHTS.
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A. Employee shall disclose fully and promptly to Employer,
and upon Employer's instructions also to the Customer for which the Employee is
then working, any and all inventions, processes, innovations, discoveries,
designs, techniques, formula, improvements, computer programs and other
technical materials relating to business of Employer or Employer's Customer
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which Employee shall discover, conceive, make, generate or reduce to practice,
alone or jointly with others, during his/her term of employment with Employer,
and resulting from such employment, whether or not they are patentable or
copyrightable.
B. Employee agrees to assign to Employer his/her rights
and interests in any inventions, processes, innovations, discoveries and other
similar materials, including copyrights to all copyrightable material and all
patent rights to all patentable material unless specifically directed otherwise
in writing by Employer to assign it to Customer. No rights shall be reserved to
Employee.
C. Employee agrees to execute and transfer at any time,
upon Employer's request, any certification, affidavit or other document
confirming the Employer's ownership rights under this Section.
D. Upon request, at any time during or after the term of
this Agreement, and at the expense of Employer or its Customer for whom the work
in question was performed, Employee agrees to assist Employer or Customer,
including its attorneys, in preparing and prosecuting applications for patents
or copyrights relating to such inventions, processes and other materials named
in this Section. Assistance in preparing and prosecuting such applications shall
include assistance regarding litigation and upon Employer's request, the
execution of all papers and performance of all tasks that may reasonably be
necessary to protect the rights of Employer or Customer and to vest in it or its
assigns ownership of the inventions, applications, copyrights and patents herein
contemplated.
12. NON-DEFAMATION. The Employee covenants and agrees that
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during the course of his employment by the Employer and for any time thereafter,
the Employee shall not, directly or indirectly, in public or private, deprecate,
impugn or otherwise make any remarks that would tend to or be construed to tend
to defame the Employer, its employees or products or its reputation, nor shall
Employee assist any person, firm or company in doing so, except as required by
subpoena, court order or other legal process.
13. NO WAIVER. This Agreement shall not be modified or amended
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except by a further written document signed by the Employee and the Employer. No
provision hereof may be waived except by an agreement in writing signed by the
waiving party. A waiver of any term or provision shall not be construed as a
waiver of any other term provision.
14. BENEFIT. This Agreement shall bind the Employee and shall
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bind and benefit the Employer and its successors and assigns. This Agreement
shall not be assignable by the Employee.
15. HEADINGS. The headings of Sections herein are included
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solely for convenience or reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
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16. ENFORCEMENT OF COVENANTS; SURVIVAL. The Employee
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acknowledges that his skills and position in the technology industry in which
Employer competes or intends to compete are unique, and, therefore, that the
breach or threatened breach by Employee of the provisions of Sections 8 - 12
shall cause irreparable harm to Employer, which harm cannot be fully redressed
by the payment of damages to Employer. Accordingly, Employer shall be entitled,
in addition to any other right or remedy it may have, at law or in equity, to an
injunction, without the posting of any bond or other security, enjoining or
restraining the Employee from any violations or threatened violation of Sections
8 - 12, and Employee hereby consents to the issuance of such injunction. Nothing
contained herein shall be construed as prohibiting the Employer from pursuing
any other remedies available to the Employer for breach or threatened breach,
including the recovery of additional damages from the Employee. The provisions
of Sections 8 - 12 shall remain enforceable by Employer against Employee even
after the termination of this Agreement.
17. DISPUTES. The parties hereto agree that any dispute arising
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as to the meaning or interpretation of any provision, or enforcement, of this
Agreement, shall be determined by arbitration in accordance with the rules of
the American Arbitration Association then obtaining before a single arbitrator
at the Nassau County Office, and the Commercial Rules of such Association as are
then in effect. The determination or award rendered therein shall be binding and
conclusive upon the parties, and judgement may be entered hereon in accordance
with applicable law in any court having jurisdiction thereof.
18. NOTICE. Any notice required or permitted to be given under
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this Agreement shall be sufficient if in writing, and if sent by registered mail
to his residence in the case of the Employee, or to its principal office in the
case of the Employer. Copies of any notices directed to the Employer hereunder
shall be simultaneously sent to: Tannenbaum, Helpern, Syracuse & Hirschtritt, at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
19. SEVERABILITY. Each provision of this Agreement shall be
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considered severable to the extent that if any one provision or clause conflicts
with existing or future applicable law, or is not given full force and effect
because of such law, such conflict or unenforceability shall not affect any
other provision of this Agreement which, consistent with such law, shall remain
in full force and effect. All such conflicting provisions shall be modified or
reformed only to the extent required for compliance with any applicable laws.
All surviving clauses shall be construed so as to effectuate the purpose and
intent of the parties.
20. GOVERNING LAW. This Agreement shall be governed by the laws
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of the State of New York and shall be construed in accordance therewith.
21. COUNTERPARTS. This Agreement may be executed by either of
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the parties hereto in counterparts, each of which shall be deemed to be an
original but all such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first above written
SEARCHHELP, INC. EMPLOYER
By:
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
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SCHEDULE A
Salary
5. Employee's salary shall be $80,000 per annum.
6. With the consent of the Board of Directors, employee's salary shall be
increased to $150,000 per annum upon the Company's successful
completion of future rounds of financing, which together with the first
round of financing, cumulatively totals at least $2,400,000.
7. An incentive bonus to be determined prior to commencement of each year.
8. The agreement also provides for a minimum annual increase in the base
salary of 5%.
5. Stock options to purchase up to $200,000 worth of the Company's common
stock which are to be granted from the Company's (to be created) stock
option plan at the exercise price equal to the mid point between bid
and ask price of the Company's common stock on the date of grant.
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