EMPLOYMENT AGREEMENT dated as of
March 13, 2000 (the "Agreement"), between
OPUS360 CORPORATION, a Delaware corporation
(the "Company"), and XXXXXXX XxXXXX (the
"Employee").
Prior to the date hereof, the Employee has been employed by the
Company. The Company and the Employee are entering into this Agreement to set
forth the terms of the Employee's continued employment with the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Employment.
The Company shall employ the Employee, and the Employee accepts
employment with the Company, upon the terms and conditions set forth in this
Agreement.
2. Term.
The Employee's employment hereunder shall be for the period
(including any extensions thereof, the "Employment Period") commencing on the
date of this Agreement (the "Effective Date") and terminating on the earlier of
(i) the 36-month anniversary of the Effective Date or (ii) the early termination
pursuant to Section 5 of the Employee's employment hereunder; provided, however,
the Employment Period shall be extended automatically on each 12-month
anniversary of the Effective Date (each, a "Scheduled Renewal Date"), beginning
with the 36-month anniversary thereof, in each case for an additional period of
12 months, unless the Company or the Employee notifies the other party at least
30 days prior to any such anniversary date of its or his election that the
Employment Period not be so extended. The final date of the actual term of the
Employee's employment with the Company hereunder is referred to as the
"Termination Date."
3. Position, Duties and Responsibilities.
(a) During the Employment Period, the Employee shall serve as Senior
Vice President and Chief Financial Officer of the Company or in such other
position as shall be determined by the Board or the Chief Executive Officer or
President of the Company from time to time.
(b) During the Employment Period, the Employee will devote his full
time and best efforts to the business and affairs of the Company and its
Subsidiaries. The Employee shall use his best efforts to perform his duties and
responsibilities in a diligent, trustworthy and efficient manner.
(c) Notwithstanding anything contained in Section 3(b) to the
contrary, during the Employment Period, the Employee shall not be prohibited
from (i) serving as an officer, director,
trustee or otherwise participating in purely educational, welfare, social,
charitable, religious and civic organizations, or (ii) managing personal and
family investments or serving as an executor or trustee or in a similar
fiduciary capacity, in each case to the extent such activities (A) do not
interfere or conflict in any material respect with the performance of his duties
and responsibilities hereunder and (B) are conducted in accordance with the
limitations of Section 10. Except with the prior written approval of the Board
(excluding the Employee if he should be a member of the Board at the time of
such determination), which the Board may grant or withhold in its sole and
absolute discretion, the Employee, during the Employment Period, will not serve
on the board of directors or similar body of any business entity other than the
Company or any Subsidiary thereof (other than with respect to any directorship
held by the Employee on or prior to the Effective Date, all of which, if any,
have been disclosed in writing by the Employee to the Company).
4. Base Salary, Fringe Benefits and Option.
(a) During the Employment Period, the Employee's base salary shall
be $125,000 per annum or such higher rate as the Board or its designee may
specify from time to time (the "Base Salary"). The Employee's Base Salary will
be payable in equal installments in accordance with the general policies of the
Company regarding compensation of senior executives of the Company. During the
Employment Period, in addition to the Base Salary, the Employee may be entitled
to receive an annual bonus (the "Bonus") as determined by the Board or its
designee (in its sole discretion). In making its determination of the Bonus, the
Board or its designee may rely on the quality and level of the Employee's
performance in excess of the high level of reasonably achievable performance
which the Company requires of all of its employees at substantially the same
employment level as the Employee and the overall profitability and operating
condition of the Company, taking into account to what extent the Company has
achieved its financial and operating targets as specified by the Board in its
annual budgeting process.
(b) During the Employment Period, the Employee shall be eligible to
participate in all Company-sponsored employee benefit plans (the "Employee
Benefit Plans"), including all employee retirement income and welfare benefit,
pension, disability, group life, sickness or accident or health insurance
policies, plans, programs or arrangements, if any, that are generally available
to other employees of the Company at substantially the same employment level as
the Employee for their participation, subject to the terms and conditions of
such plans, as they may be amended from time to time (collectively, the
"Employee Benefits").
(c) During the Employment Period, the Employee shall be entitled to
two weeks of vacation during each 12-month period worked, commencing on the
Effective Date. Such vacation shall be in accordance with the terms generally
applicable to other employees of the Company at substantially the same
employment level as the Employee, as in effect from time to time. The Employee
may take his vacation at such time or times as shall not interfere with the
performance of his duties under this Agreement. The Employee shall be entitled
to paid sick leave and holidays in accordance with the sick leave and holiday
policies as may be generally applicable to senior executives of the Company, as
in effect from time to time.
(d) The Company shall reimburse the Employee for all reasonable
travel and other business expenses incurred by him in the course of performing
his duties under this Agreement in
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accordance with the Company's policies and rules in effect from time to time
relating to the reimbursement of such expenses.
(e) The Employee authorizes the Company to deduct from any amounts
payable to him hereunder such sums as may be required to be deducted or withheld
under the provisions of any federal, state or local law or regulation now in
effect or hereafter put into effect during the term of this Agreement,
including, without limitation, social security and income withholding taxes.
5. Early Termination of Employment.
(a) The early termination of the Employee's employment hereunder
shall result upon the first to occur of (i) the termination of such employment
by the Company, at any time, for Cause, without Cause or by reason of the
Disability of the Employee, (ii) the death of the Employee and (iii) the
resignation of the Employee from such employment, at any time, for Good Reason
or without Good Reason.
(b) For purposes of this Agreement, the term "Cause" means (i) the
gross negligence or willful misconduct by the Employee in the performance of his
duties, (ii) the commission by the Employee of any act of fraud, theft or
financial dishonesty with respect to the Company or any of its Subsidiaries or
if Employee is convicted of a felony, (iii) the material breach by the Employee
of this Agreement (including, but not limited to, any breach or threatened
breach by the Employee of the provisions of Sections 7, 8, 9 or 10), (iv) the
willful disregard of, or failure to follow, written instructions from, the Chief
Executive Officer or President of the Company, the Board or any of their
designees, to perform any legal act relating to the business of the Company or
its Subsidiaries which would be commensurate with the usual and customary
duties, responsibilities and authority of Senior Vice President and Chief
Financial Officer of the Company or such other position held by the Employee as
may be determined by the Board or the Chief Executive Officer or President of
the Company from time to time or otherwise consistent with such position, or (v)
the habitual failure of the Employee to perform his work in any material
respect, the inexcusable or repeated absence from work of the Employee or the
absence of the Employee for a prolonged period of time (other than as a result
of, or in connection with, a disability or a legally protected leave). Before
the Employee's employment with the Company hereunder may be terminated by the
Company for Cause, the Employee shall have 10 days after written notice of such
basis for termination to cure such basis for termination; provided, however, no
such right to cure shall exist if the basis for such termination is incurable or
if otherwise any of the acts referred to in clause (i) of the definition of
"Cause" have been committed by the Employee.
(c) Any determination as to whether the Employee is subject to a
Disability shall first be made by the Board (excluding the Employee if he should
be a member of the Board at the time of such determination) in its good faith
judgment; provided, however, if any such determination is disputed by the
Employee, the matter shall be referred to a licensed physician practicing within
the Borough of New York in the State of New York or a 50-mile radius thereof and
selected by the Board and the Employee, and the determination of Disability made
by such physician shall be final and binding on both the Employee and the
Company. For purposes of this
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Agreement, the term "Disability" means any long-term disability or incapacity
which renders, or would be reasonably expected to render, the Employee unable to
substantially perform his duties and responsibilities hereunder for a cumulative
total of 90 days during any 12-month period.
(d) For purposes of this Agreement, "Good Reason" means (i) a
material reduction in the Base Salary of the Employee as in effect on the
Effective Date, or (ii) a material breach by the Company of this Agreement,
which breach is incurable or otherwise not cured within 10 days after written
notice thereof by the Employee to the Company, in each case without the prior
written consent or waiver of the Employee.
6. Effect of Termination.
(a) Upon the termination (x) pursuant to Section 2 of the Employee's
employment with the Company hereunder based on the election of the Company or
the Employee under Section 2 not to extend the Employment Period or (y) pursuant
to Section 5 of the Employee's employment with the Company hereunder either by
the Company with Cause or by reason of the Employee's resignation without Good
Reason, neither the Employee nor the Employee's Representatives shall have any
further rights under this Agreement or any claims against the Company arising
under this Agreement, except the right to receive, upon the Termination Date:
(i) the unpaid portion of the Base Salary provided for in
Section 4(a), computed on a pro rata basis through the Termination Date;
(ii) reimbursement for any expenses for which the Employee
shall not have theretofore been reimbursed, as provided in Section 4(d);
and
(iii) the unpaid portion of any amounts earned by the Employee
prior to the Termination Date pursuant to any Employee Benefit Plan in
which the Employee participated during the Employment Period (provided,
however, that neither the Employee nor the Employee's Representatives
shall be entitled to receive any benefits under any Employee Benefit Plan
that have accrued during any period if the terms of such Employee Benefit
Plan require that the Employee be employed by the Company or any
Subsidiary thereof as of the end of such period).
(b) Upon the termination pursuant to Section 5 of the Employee's
employment with the Company hereunder either by the Company without Cause or by
reason of the Employee's resignation with Good Reason, neither the Employee nor
the Employee's Representatives shall have any further rights under this
Agreement or any claims against the Company arising under this Agreement, except
the right to receive the amounts described in clauses (i) and (ii) below when
due thereunder and the right to the continued vesting and exercisability of
certain securities as described in clause (iii) below (subject to the additional
agreements set forth therein):
(i) upon the Termination Date, the payments, if any, referred
to in Section 6(a);
(ii) the Base Salary and the Employee Benefits, payable
periodically at the same intervals as if the Employment Period had not
ended and the Base Salary and the
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Employee Benefits otherwise continued to be paid, up to (and including)
the 12-month anniversary of the Termination Date (provided, however, that
(x) neither the Employee nor the Employee's Representatives shall be
entitled to receive any Employee Benefits under any Employee Benefit Plan
at any time after the Termination Date if the terms of such Employee
Benefit Plan require that the Employee be employed by the Company or any
Subsidiary thereof as of such time, (y) the Employee's right to receive
any continuation of the Base Salary pursuant to this clause (ii) shall be
subject to the good faith efforts of the Employee to obtain replacement
employment during such 12-month period at a comparable salary, and (z) any
salary payments received by the Employee from such employment shall offset
and reduce, on a dollar-for-dollar basis, any Base Salary continued to be
paid to the Employee pursuant to this clause (ii)); and
(iii) notwithstanding anything to the contrary contained
herein or in any stock option agreement or other applicable agreement,
between the Company and the Employee, as amended, supplemented or
otherwise modified from time to time and in effect on the Effective Date,
(A) if the Termination Date occurs on or prior to the
12-month anniversary of the Effective Date, then any options for the
purchase of Common Stock issued by the Company to the Employee prior
to the Effective Date (other than the Designated Option) that are
subject to vesting and held by the Employee on the Termination Date
shall continue to vest and become exercisable as if the Employee's
employment hereunder continued until the 24-month anniversary of the
Effective Date (but, in each case, without giving effect to any
provision in any stock option agreement or other applicable
agreement between the Company and the Employee, as in effect on the
Effective Date, for the acceleration of the vesting or
exercisability of such options);
(B) if the Termination Date occurs after the 12-month
anniversary of the Effective Date but on or prior to the 36-month
anniversary of the Effective Date, then one-half (1/2) of any
options for the purchase of Common Stock issued by the Company to
the Employee prior to the Effective Date (other than the Designated
Option) that are subject to vesting and held by the Employee on the
Termination Date that would have become vested and exercisable if
the Employee's employment with the Company hereunder had continued
until the 36-month anniversary of the Effective Date shall continue
to vest and become exercisable as if the Employee's employment
hereunder continued until the 36-month anniversary of the Effective
Date (but, in each case, without giving effect to any provision in
any stock option agreement or other applicable agreement between the
Company and the Employee, as in effect on the Effective Date, for
the acceleration of the vesting or exercisability of such options);
and
(C) if the Termination Date occurs after the 36-month
anniversary of the Effective Date, then one-half (1/2) of any
options for the purchase of Common Stock issued by the Company to
the Employee prior to the Effective Date (other than the Designated
Option) that are subject to vesting and held by the
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Employee on the Termination Date that would have become vested and
become exercisable if the Employee's employment with the Company
hereunder had continued until the next Scheduled Renewal Date shall
continue to vest and become exercisable as if the Employee's
employment hereunder continued until such Scheduled Renewal Date
(but, in each case, without giving effect to any provision in any
stock option agreement or other applicable agreement between the
Company and the Employee, as in effect on the Effective Date, for
the acceleration of the vesting or exercisability of such options).
provided, however, that, each option for the purchase of Common
Stock issued by the Company and held by the Employee on the Termination
Date (i) which is vested and exercisable as to any portion thereof as of
the Termination Date must be exercised within 90 days after such date or
otherwise such portion of the option shall expire and (ii) which becomes
vested and exercisable as to any portion thereof under subsection (A), (B)
or (C) of this clause (iii) must be exercised as to such portion within 90
days after such portion becomes vested and exercisable in accordance with
the applicable vesting schedule or otherwise such portion of the option
shall expire.
(c) Upon the termination pursuant to Section 5 of the Employee's
employment with the Company hereunder either by the Company by reason of the
Disability of the Employee or by reason of the death of the Employee, neither
the Employee nor the Employee's Representatives shall have any further rights
under this Agreement or any claims against the Company arising under this
Agreement, except the right to receive the amounts described in clauses (i) and
(ii) below when due thereunder:
(i) upon the Termination Date, the payments, if any, referred
to in Section 6(a); and
(ii) the Base Salary and the Employee Benefits, payable
periodically at the same intervals as if the Employment Period had not
ended and the Base Salary and the Employee Benefits otherwise continued to
be paid, up to (and including) the 3-month anniversary of the Termination
Date (provided, however, that neither the Employee nor the Employee's
Representatives shall be entitled to receive any Employee Benefits under
any Employee Benefit Plan at any time after the Termination Date if the
terms of such Employee Benefit Plan require that the Employee be employed
by the Company or any Subsidiary thereof as of such time);
(d) Except to the extent requested by the Board, upon the
Termination Date, the Employee shall immediately resign all positions and
directorships with the Company and each Subsidiary thereof.
7. Nondisclosure and Nonuse of Confidential Information.
The Employee shall not, whether during or at any time after the
Employment Period, disclose or use (except to the extent required by an order of
a court having competent jurisdiction or otherwise under subpoena from the
appropriate government agency) any secret or
6
confidential information concerning the business, clients or affairs of the
Company or any of its Subsidiaries, or of any Person which the Company or any of
its Subsidiaries is under an obligation to keep secret or confidential (in each
case, including, but not limited to, trade secrets, customer lists, employment
records, marketing plans and related information, sales plans and related
information, pricing schedules, operating policies and manuals, business plans,
financial records or management methods, know-how or techniques) (the
"Confidential Information"), except to the extent such disclosure or use is
directly related to and required by the Employee's performance in good faith of
his duties as an employee of the Company during the Employment Period pursuant
to the terms and conditions of this Agreement. The Employee shall take all
appropriate steps to safeguard the Confidential information and protect the
Confidential Information against disclosure, misuse, loss and theft.
8. Ownership of Work Product and Business Opportunities.
The Employee acknowledges and agrees that, during the Employment
Period, (i) he may conceive of, discover, invent or create inventions,
improvements, technical information, methods and suggestions relating to the
actual or reasonably anticipated business or existing or future products or
services of the Company or any of its Subsidiaries (collectively, the
"Inventions"), and (ii) various business opportunities relating to the actual or
reasonably anticipated business of the Company or any of its Subsidiaries may be
presented to him by reason of his employment by the Company (collectively, the
"Business Opportunities"). The Employee acknowledges that all such Inventions,
together with all patent, trademark, service xxxx and copyright applications,
patents, trademarks, service marks and copyrights and reissues thereof that may
at any time be granted for or upon any of such Inventions, (collectively, the
"Work Product") and all such Business Opportunities shall be owned by and belong
exclusively to the Company, and he shall have no personal interest therein,
regardless of whether conceived, discovered, invented, created or presented
during usual business hours. The Employee shall (i) promptly disclose to the
Board any such Work Product and Business Opportunities, (ii) assign to the
Company, upon the request of the Company and without additional compensation
(whether during or after the Employment Period), the entire rights to such Work
Product and Business Opportunities, and (iii) perform all actions reasonably
requested by the Company (whether during or after the Employment Period) to
establish, confirm and protect such ownership in the Company (including, but not
limited to, the signing of assignments, consents, powers of attorney,
applications and other instruments and the giving of testimony in support of his
conception, discovery, invention or creation thereof). The Employee agrees he
will not assert any rights to any Work Product or Business Opportunity as having
been conceived, discovered, invented, created or obtained by him before the
Effective Date (whether during his prior period of employment with the Company
or otherwise), except for Work Product or Business Opportunities, if any,
specifically disclosed to and specifically acknowledged by the Company in
writing before his prior period of employment with the Company first began.
9. Delivery of Materials Upon Termination of Employment
The Employee shall deliver to the Company at the termination of the
Employment Period, or upon the request of the Company, at any time, all
memoranda, notes, plans, records, reports, computer tapes and software and other
documents and data (and copies thereof) relating
7
to the Confidential Information, Work Product, Business Opportunities or the
business of the Company or any of its Subsidiaries, which he may then possess or
have under his control, regardless of the location or form of such material and,
if requested by the Company, shall provide the Company with written confirmation
that all such materials have been delivered to the Company.
10. Noncompetition; Nonsolicitation.
(a) The Employee acknowledges he has received Confidential
Information of the Company and its Subsidiaries (including of their respective
predecessors) from time to time prior to the Effective Date in connection with,
among other things, his employment with the Company prior to the Effective Date
and is familiar with such Confidential Information. The Employee also
acknowledges, in the course of his employment with the Company or any of its
Subsidiaries on or after the Effective Date, he shall continue to receive and
become familiar with the Confidential Information (whether now existing or
hereafter existing) of the Company and its Subsidiaries. The Employee
acknowledges that the Confidential Information referred to in this Section 10(a)
has been and shall be of special, unique and extraordinary value to the Company
and its Subsidiaries. In consideration of the compensation and other benefits to
be provided to the Employee hereunder (including, but not limited to, the
employment by the Employee with the Company hereunder, the Base Salary, the
Employee Benefits and the Severance Payments), during the Employment Period and
the Non-Compete Period, the Employee shall not, directly or indirectly, own,
manage, control, participate in, be connected with, consult with, render
services for, give or lend funds to or otherwise finance, be employed by, have a
financial or other interest in, or in any manner engage in or represent any
business which is competing with any business of the Company or any Subsidiary
thereof as such business of the Company or such Subsidiary exists, or is in the
process of being formed or acquired, at any time from the date on which the
Employee's employment with the Company first began (whether on or before the
Effective Date) up to (and including) the Termination Date, within any
Restricted Territory. Nothing herein shall prohibit the Employee from being a
passive owner of not more than 1% of the outstanding stock of any class of a
corporation which is publicly traded, so long as the Employee has no active
participation in the business of such corporation.
(b) During the Employment Period and the Non-Compete Period, the
Employee agrees that he shall not, individually, or as an agent, employee,
partner, principal, consultant, stockholder, director, officer, trustee, advisor
or in any other capacity, directly or indirectly, for himself or for any other
Person, (i) solicit or entice, or attempt to solicit or entice, any employee of,
consultant to, or independent contractor of the Company or any of its
Subsidiaries to terminate his or her employment, engagement or affiliation with
the Company or any of its Subsidiaries, or in any way interfere with the
relationship between the Company or any of its Subsidiaries, on the one hand,
and any employee of, consultant to, or independent contractor of the Company or
any of its Subsidiaries on the other hand (including making any negative
statements or comments about the Company or any of its Subsidiaries), (ii)
employ or retain any such employee, consultant, independent contractor during
his or her employment, engagement or affiliation with the Company or any of its
Subsidiaries or for a period of one year after such individual's employment,
engagement or affiliation with the Company or any of its Subsidiaries has
terminated, or (iii) solicit or entice, or attempt to solicit or entice, any
customer or licensee of
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the Company or any of its Subsidiaries (including any Person that has been
contacted by, solicited by or referred to the Company or any of its Subsidiaries
for purposes of becoming any of the foregoing) to cease doing business with, or
otherwise reduce or terminate its, his or her involvement with, the Company or
any of its Subsidiaries.
(c) The Employee understands that the restrictions set forth in this
Section 10 may limit his ability to earn a livelihood in a business similar to
the business of the Company or any of its Subsidiaries, but the Employee
nevertheless believes that he has received and shall receive sufficient
consideration and other benefits as provided hereunder and pursuant to other
agreements to which he and the Company are parties, which in any event he does
not believe (given his education, skills and ability) would prevent him from
otherwise earning a living.
11. Insurance.
The Company shall have the right to secure, in its own name or
otherwise, its own life, disability, accident or other insurance covering the
Employee, and the Employee shall have no right, title or interest in or to such
insurance. The Employee shall cooperate with the Company and provide such
information or other assistance as the Company may reasonably request in
connection with the Company obtaining and maintaining such policies, including,
but not limited to, submitting to reasonable examinations and signing such
applications and other instruments as may be required by the insurance carriers
to which application is made for any such insurance.
12. Conflicts.
The Employee represents and warrants to the Company that he is not a
party to or bound by any employment contract, consultancy agreement,
non-competition agreement or any other agreement (written or oral) or other
arrangement which contains any restrictions or limitations on the ability of the
Employee to enter into and perform this Agreement or exercise all the powers,
functions, duties and responsibilities contemplated by this Agreement, and the
execution, delivery and performance of this Agreement by the Employee will not
result in a violation of or constitute a default under any contract, agreement
or other arrangement to which the Employee is a party or by which the Employee
is bound.
13. Definitions.
"Board" means the Board of Directors of the Company.
"Business Day" means any day, other than a Saturday, Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Designated Option" means the option for the purchase of up to
10,000 shares of Common Stock issued by the Company to the Employee on February
28, 2000, pursuant to the terms and conditions of the Stock Option Agreement
dated as of February 28, 2000, between the Company and the Employee.
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"Governmental Entity" means any government or political subdivision
or department thereof, any governmental or regulatory body, commission, board,
bureau, agency or instrumentality, or any court or arbitrator or alternative
dispute resolution body, in each case whether federal, state, local or foreign.
"Non-Compete Period" means the period beginning on the Termination
Date and ending on the first anniversary of the Termination Date.
"Person" shall be construed as broadly as possible and shall include
an individual, a corporation, a company, an association, a joint stock company,
a partnership (including a limited liability partnership), a limited liability
company, a joint venture, a trust or an unincorporated organization and a
Governmental Entity.
"Representatives" means, with respect to the Employee, the
Employee's assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as determined from
time to time.
"Restricted Territory" means (i) any county in the State of New York
or Florida, (ii) any county in any other state in the continental United States,
(iii) Alaska and Hawaii, (iv) any other territory or possession of the United
States, (v) any province in Canada, and (vi) any country other than the United
States, Canada or any state, province, territory, possession or political
subdivision thereof.
"Subsidiary" means, as to any Person, any other Person of which more
than 50% of the shares of the voting stock or other voting interests are owned
or controlled, or the ability to select or elect 50% or more of the directors or
similar managers is held, directly or indirectly, by such first Person or one or
more of its Subsidiaries.
14. Post-Termination Assistance.
The Employee agrees that after his employment with the Company has
terminated he will provide, upon reasonable notice, such information and
assistance to the Company as may reasonably be requested by the Company in
connection with any third-party litigation to which the Company or any of its
Subsidiaries is or may become a party.
15. Indemnification.
The Company shall indemnify, defend and hold harmless the Employee
(in his status as an officer, director and employee of the Company) in respect
of acts or omissions occurring on or after the Effective Date to the fullest
extent permitted or provided under the Company's Certificate of Incorporation
and Bylaws as in effect on the Effective Date.
16. Notices.
All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and
shall be deemed to have been given or made when (i) delivered personally to the
recipient, (ii) transmitted by facsimile or electronic mail
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(with hard copy sent to the recipient by reputable overnight courier service
(charges prepaid) that same day and, in the latter case, with receipt
acknowledged by the recipient by return electronic mail) if faxed or e-mailed
before 5:00 p.m. (New York, New York time) on a Business Day, and otherwise on
the next Business Day, (iii) two Business Days after being sent to the recipient
by reputable overnight courier service (charges prepaid), or (iv) five Business
Days after being sent to the recipient by registered or certified mail (postage
prepaid and return receipt requested). Such notices, demands and other
communications shall be sent to the address for such recipient as set forth
below (or to such other address or to the attention of such other person as the
recipient party has specified by like notice):
(i) if to the Company, to
Opus360 Corporation
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary of the Company
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail:
with a copy (which shall not constitute notice) to:
Opus360 Corporation
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail:
(ii) if to the Employee, to
Xxxxxxx XxXxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Telephone:
Facsimile:
E-Mail:
17. General Provisions.
(a) Severability/Enforcement.
(i) It is the desire and intent of the parties hereto that the
provisions of this Agreement be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular
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provision of this Agreement shall be adjudicated by a court of competent
jurisdiction to be invalid, prohibited or unenforceable for any reason,
such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly
drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,
without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction. Without limiting the generality of the preceding sentence,
if at the time of enforcement of Sections 7, 8, 9 or 10 of this Agreement,
a court holds that the restrictions stated therein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances
shall be substituted for the stated period, scope or area.
(ii) The Company and the Employee shall each have and retain
all other rights and remedies existing in their favor at law or equity,
including, without limitation, any actions for specific performance and/or
injunctive or other equitable relief to enforce or prevent any violations
of the provisions of this Agreement. Because the Employee's services are
unique and because the Employee has access to Confidential Information and
Work Product, the parties hereto agree that money damages would be an
inadequate remedy for any breach of this Agreement. Therefore, in the
event of a breach or threatened breach by the Employee of Sections 7, 8, 9
or 10, the Company or its successors or assigns may, in addition to any
other rights and remedies existing in their favor, apply to any court of
competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce, or prevent any violations of, such provisions
(without posting a bond or other security) or require the Employee to
account for and pay over to the Company all compensation, profits, moneys,
accruals and increments derived or received by him as a result of any
transactions constituting a breach of such provisions.
(iii) In addition to the foregoing, and not in any way in
limitation thereof, or in limitation of any right or remedy otherwise
available to the Company, if the Company shall determine that the Employee
is in violation of any provision of Sections 7, 8, 9 or 10 of this
Agreement (such determination being made before any judgment or decision
with respect to such question shall be made by a court of competent
jurisdiction), the Company may withhold any severance payments then or
thereafter due from the Company to the Employee, until there shall be a
final judgment or decision by a court of competent jurisdiction that no
such violation shall have occurred, in which case (A) the Company shall
pay to the Employee, within five (5) Business Days after such judgment or
decision, such amounts of severance under this Agreement previously
withheld from payment by the Company, together with interest on such
amounts withheld at a floating rate per annum equal to the prime rate
announced from time to time by the Wall Street Journal as the prevailing
"prime rate" at U.S. money center banks, and (B) the Company shall
reimburse the Employee for his reasonable attorneys fees and expenses
incurred in connection with the issuance of such judgment or decision
within five (5) Business Days of the receipt by the Company of reasonable
supporting documentation therefor. If the Employee is
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determined by a judgment or decision of a court of competent jurisdiction
to have violated any provision of Sections 7, 8, 9 or 10 of this
Agreement, the Company's obligation to pay and the Employee's right to
receive any severance payments under this Agreement on or after the date
on which such violation shall have first occurred (whether already paid or
otherwise) shall terminate and be of no further force or effect, and,
within five (5) Business Days of any such judgment or decision, the
Employee shall return to the Company any such severance payments already
made by the Company.
(iv) The Employee's obligations under Sections 7, 8, 9 or 10
shall not be limited or affected by, and such provisions shall remain in
full force and effect notwithstanding, the termination of any severance
payments by the Company in accordance with Section 17(a)(iii). The
exercise of by the Company of its right to terminate such payments
pursuant to Section 17(a)(iii) shall not be deemed to be an election of
remedies by the Company and shall not in any manner modify, limit or
preclude the Company from exercising any other rights or seeking any other
remedies available to it at law or in equity.
(b) Complete Agreement. This Agreement constitutes the sole and
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes and preempts all prior or contemporaneous understandings,
agreements or representations by or between the Company and the Employee,
written or oral, which may have related to the subject matter hereof in any way.
(c) Right of Set Off. The Company is authorized, on or after the
termination of the Employment Period by the Company for Cause, to the fullest
extent permitted by law, to set off and apply any and all amounts at any time
payable by the Company to the Employee under this Agreement, against any and all
of the obligations of the Employee to the Company now or hereafter existing
under this Agreement or any other agreement or contract between the Employee on
the one hand and the Company or any of its Subsidiaries on the other hand.
(d) Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the Company, the Employee and each of their respective
successors, assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable;
provided, however, that neither this Agreement nor any rights or obligations
hereunder will be assignable or otherwise subject to hypothecation by the
Employee (except by will or by operation of the laws of intestate succession).
(e) Governing Law; Choice of Jurisdiction and Venue. THE PROVISIONS
OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND FULLY
PERFORMED WITHIN THE STATE OF NEW YORK BY RESIDENTS OF THE STATE OF NEW YORK.
WITH RESPECT TO ANY LAWSUIT OR PROCEEDING BROUGHT WITH RESPECT TO THIS
AGREEMENT, EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK OR FEDERAL COURT OF THE
UNITED STATES OF AMERICA SITTING IN NEW YORK, (II) WAIVES ANY
13
OBJECTION SUCH PARTY MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY
PROCEEDING BROUGHT IN ANY SUCH COURT, (III) WAIVES ANY CLAIM THAT SUCH
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND (IV) FURTHER WAIVES
THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDINGS, THAT SUCH COURT DOES NOT
HAVE JURISDICTION OVER SUCH PARTY.
(f) Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
(g) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company (upon the
written approval of the Board (excluding the Employee if he should be a member
of the Board at the time of such determination)) and the Employee, and no course
of conduct or failure or delay in enforcing the provisions of this Agreement
shall affect the validity, binding effect or enforceability of this Agreement or
any provision hereof.
(h) Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(j) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is not a Business Day, the time period
for giving notice or taking action shall be automatically extended to the
immediately following Business Day.
(k) Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements contained herein shall survive in
perpetuity the consummation of the transactions contemplated hereby.
(l) Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice-versa.
(m) Construction. Where specific language (such as the word
"including") is used to clarify by example a general statement contained herein,
such specific language shall not be deemed to modify, limit or restrict in any
manner the construction of the general statement to which it relates. The
language used in this Agreement shall be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party hereto. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
14
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
* * * *
15
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
OPUS360 CORPORATION
By: /s/ Xxx X. Xxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx XxXxxx
-------------------------------------
Xxxxxxx XxXxxx
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