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EXHIBIT 6.22
EMPLOYMENT AGREEMENT
(XXXXX X. XXXXXXXXX)
This Employment Agreement (the "Agreement") is executed as of this 2nd
day of March, 2000, by and between Xxxxx.xxx, Inc., a Florida corporation
("Employer"), and Xxxxx X. Xxxxxxxxx ("Employee").
1. Employment. Employer hereby employs Employee, and Employee hereby
agrees to said employment in accordance with the other terms and conditions set
forth herein.
2. Term. Employment shall commence as of the date hereof and continue
through approximately three (3) years until December 31, 2003, unless otherwise
terminated pursuant to the terms hereof. At the end of the term, the employment
relationship shall automatically terminate without notice.
3. Duties. Employee shall serve as Executive Chairman of the Board of
Directors and Chief Executive Officer of Employer and shall be subject to the
control of the Board of Directors. Employee shall devote substantially all of
his time and effort to the business of Employer in that capacity. Employment
hereunder shall constitute Employee's exclusive employment relationship during
the term of this Agreement.
4. Compensation.
(a) Base Salary Compensation. Employee shall receive a base salary
of $250,000.00 per year.
(b) Bonus Compensation. Employee shall be eligible to receive
annually an incentive bonus ("Bonus") of up to 50% of his base salary upon
achieving certain business and performance goals as set forth and agreed to by
the Employee and the Board of Directors. The Bonus shall be determined by the
Board of Directors based on its review of all relevant information, including
the Employee's performance.
(c) Payment. Salary and Bonus payments shall be made pursuant to
Employer's standard payroll practices unless otherwise agreed by the parties.
All compensation paid to Employee under this Agreement shall be subject to the
usual and customary federal and state tax withholding and other employment taxes
as legally required with respect to compensation paid by Employer to its
salaried personnel generally. Such Bonus shall be paid by Employer to Employee
within sixty (60) days of the accountant's completion of the Company's annual
financial statements or receipt of end-of-the-year results, whichever the
Employer determines as appropriate as the case may be.
(d) Stock Options. Employee shall be eligible to participate in
Employer's Stock Option Plan whereby you will be granted stock options to
purchase 660,000 shares for the option price of $1.25 per share, with options
for 330,000 shares vesting on the date of this Agreement and
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the balance vesting in equal amounts (110,000) over the next three (3) years on
the anniversary date of this Agreement, or a change of control of the Employer,
whichever occurs first. For purposes of this provision, "change of control"
shall mean (i) the acquisition of more than 50% of the outstanding voting stock
of Employer by any person or group (other than stockholders of the Employer on
the date of this Agreement) which is accompanied by a change in the composition
of the Board (as constituted on the day immediately preceding such acquisition)
as to a majority of its members within thirty (30) days following the occurrence
of such acquisition or (ii) a transaction in which substantially all of the
consolidated assets of the Company are sold. In addition to these options,
Employee shall be eligible for other incentive-based awards, and it is
anticipated that options comprising ten percent (10%) of the Company shall be
set aside for senior management and employees.
5. Benefits. Employee shall receive benefits currently enjoyed by other
senior executives employed by Employer as outlined on Exhibit A hereto.
6. Employee Representations. Employee hereby represents and warrants to
Employer that:
(a) the execution, delivery and performance of this Agreement by
Employee do not and will not conflict with, breach, violate or cause a default
under any contract, agreement, instrument, order, judgment or decree to which
Employee is a party or is presently bound; and
(b) Employee is not a party to or bound by any employment agreement,
non-competition agreement or confidentiality agreement with any other person or
entity, which shall adversely affect either his ability to perform his duties
under this Agreement or to implement his proposed business plan for Employer.
7. Business Expenses. Employer shall reimburse Employee for all
reasonable business expenses incurred by Employee in connection with his
employment in accordance with Employer's policy after receipt of vouchers,
receipts or other appropriate documentation. Employee shall be expected to
perform his duties without the benefit of a company credit card. Employee shall
be provided with a laptop computer and mobile telephone and other such mobile
business equipment as is reasonably necessary to carry out his duties. Employee
shall also be provided on a non-exclusive basis with office space in the
Washington, D.C. area, which space shall be used only for Employer's business.
8. Vacation. Employee shall be entitled to an annual vacation of not
more than four (4) weeks. Scheduling of each vacation shall be with the consent
of Employer, which shall not be unreasonably withheld. For the first year,
Employee shall be permitted to carry over four (4) full weeks of vacation into
the following year. Thereafter, Employee shall be required to take all of his
vacation each year or forfeit such time.
9. Term of Employment. The term of the Employee's employment shall
commence on the date of this Agreement and shall continue for the period set
forth in Paragraph 2 above unless sooner terminated as hereunder provided:
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(a) "For Cause", as that term is defined below, upon thirty (30)
days' written notice to Employee.
(b) Upon the death of Employee.
(c) If Employee shall become disabled, upon ten (10) days' written
notice. Employee shall be deemed disabled within the meaning of this Agreement
if as a result of sickness (including mental or related illness), accident or
injury, Employee is substantially unable or it is reasonably foreseeable that
Employee will be substantially unable to perform his duties to Employer for a
period of six (6) consecutive months.
As used herein, the term "For Cause" shall mean: i) the conviction of a felony
or any crime involving moral turpitude, or commission of any other act of
dishonesty, disloyalty or fraud with respect to Employer; ii) substantial and
repeated failure to perform duties as reasonably directed by Employer within the
scope of this Agreement, which failure is not cured within five (5) business
days of written notice thereof to Employee; and iii) gross negligence,
intentional or willful misconduct or insubordination with respect to Employee's
performance hereunder or for any other breach of this Agreement by Employee
which is not cured within thirty (30) days after written notice thereof to
Employee.
10. Termination of Compensation. If Employee's employment terminates
For Cause, Employee shall not be entitled to any compensation hereunder after
such termination. Notwithstanding the termination of Employee's employment or
the term of this Agreement, the parties shall be required to carry out any
provisions hereof which contemplate performance by them subsequent to such
termination, including:
(a) the payment of any amounts of compensation under this Agreement
then accrued but unpaid;
(b) covenants not to compete or solicit under this Agreement; and
(c) non-disclosure of Confidential Information (as hereinafter
defined) under this Agreement. In addition, termination of this Agreement shall
not affect any liability or other obligation which shall have accrued prior to
termination; including, but not limited to, any liability for loss or damage on
account of default under this Agreement.
If Employee's employment is terminated by Employer without cause prior to
December 31, 2003, Employee shall be entitled to the following compensation upon
execution of a termination of employment agreement and release: Employee shall
receive an amount equal to one (1) year's base salary plus any unpaid earned
bonus for the previous year, payable in one lump sum or monthly as determined by
Employer in its sole discretion, plus continuation of benefits for one (1) year.
If Employee resigns prior to the expiration of the term of this Agreement, then
unless otherwise agreed by the parties, Employee will receive salary and any
earned bonus and benefits up until the date of resignation.
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11. Confidential Information. Employee acknowledges that the
proprietary information, observations and data [including, without limitation,
business plans, technical information, contracts, customer information and
client lists ("Customer Lists")] obtained by Employee while employed by
Employer, concerning the business or affairs of Employer, or any other affiliate
or subsidiary is confidential and proprietary (collectively, "Confidential
Information"). Therefore, Employee agrees not to disclose to any unauthorized
person or use for the Employee's account, whether during the term of this
Agreement or after its termination, any Confidential Information without the
prior written consent of Employer, unless and to the extent that the
aforementioned matters become generally known to and available for use by the
public other than as a result of Employee's acts or omissions or other wrongful
acts or omissions. Upon request, Employee shall deliver to Employer at the
termination of this Agreement, or at any other time Employer may request, all
memoranda, notes, plans, records, reports, customer and client lists and other
documents (and all copies thereof) relating to the Confidential Information or
the business of Employer or any affiliate or any subsidiary thereof. This
provision shall not apply to information deemed to be known by Employee at the
time of the execution of this Agreement, including information gained by virtue
of his experience and know-how.
12. Work Product. Employee agrees that all methods, analyses, reports,
plans, customer and client lists and all similar or related information which
(i) relate to Employer or any of its affiliates or subsidiaries and which (ii)
(a) are conceived, developed or made by Employee in the course of his employment
by Employer or (b) are the Customer Lists or any lists developed as a result of
leads arising directly or indirectly from the Customer Lists (all of the above
being collectively referred to as "Work Product") belong to Employer or its
affiliates or subsidiaries. Employee will perform all actions reasonably
requested by Employer to establish and confirm such ownership by Employer.
13. Non-Compete. For one (1) year following termination of employment
under the terms of this Agreement, Employee covenants and agrees with Employer
that Employee will not, directly or indirectly, whether acting on behalf of
himself or through a corporation, partnership, joint venture or some other
entity, engage in any activities or business that can reasonably be construed as
directly competitive with the activities and business of the Employer, which can
be described as the provision of enhanced Internet-based communication services,
including but not limited to voice over Internet Protocol ("IP"), fax over IP,
unified messaging and other contemplated services.
14. Covenants Not to Solicit. For one (1) year following termination of
employment under the terms of this Agreement, Employee covenants and agrees with
Employer that Employee will not, directly or indirectly, whether acting on
behalf of himself or through a corporation, partnership, joint venture or some
other entity:
(a) solicit any business from any client of Employer or any
potential clients of Employer to which Employer or Employee made a presentation
within the twelve (12) months preceding Employee's termination;
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(b) induce or attempt to induce any employee of Employer or any of
its affiliates or subsidiaries to leave the employ of Employer or any of its
affiliates or subsidiaries, or in any way interfere with the relationship
between Employer or any of its affiliates and subsidiaries and any employee
thereof; and/or
(c) hire directly or through another entity under the control of
Employee, any person who was an employee of Employer or any of its affiliates or
subsidiaries at any time during the twelve (12) months preceding Employee's
termination.
15. Board of Directors. Employer agrees that Employee shall be
nominated to a seat on the Board of Directors upon beginning his employment.
16. Miscellaneous. This Agreement expresses the entire agreement and
understanding of the parties relating to the subject matter hereof, cancels and
supersedes any prior negotiations, promises, agreements, representations,
warranties, or understanding relating to the same subject matter, and except as
specifically provided herein, shall be subject to subsequent modification only
by another mutually signed written instrument which by its terms evidences an
intention to modify or amend the provisions hereof. This Agreement shall be
construed in accordance with the internal laws of the State of Illinois. In the
event that any provision hereof is determined to be illegal or unenforceable,
such determination shall not affect the validity or enforceability of the
remaining provisions hereof, all of which shall remain in full force and effect.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument. All masculine terms shall include the feminine counterpart and
all singular terms shall include plural and vice versa, as necessary to
interpret and enforce the intent of this Agreement. All captions are included
only for reference and will not constitute substantive provisions hereof. Any
dispute or controversy arising out of this Agreement shall be settled
exclusively by binding arbitration conducted by JAMS/Endispute, Inc. in Chicago,
Illinois, in accordance with its procedures. A decision by the arbitrator shall
be final and binding, and judgment may be entered the arbitrator's award in any
court of competent jurisdiction. The parties shall pay their own legal fees and
shall equally share the costs and fees of JAMS/Endispute, Inc.
INTENDING TO BE LEGALLY BOUND BY THIS AGREEMENT, the parties hereto
have executed and delivered this Agreement as of the date first written above.
XXXXX.XXX, INC.
By
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Xxxxxxx X. Xxxxxx, III
Senior Chairman
ACCEPTED:
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Xxxxx X. Xxxxxxxxx
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SCHEDULE A TO EMPLOYMENT AGREEMENT
(BENEFITS)
