EXHIBIT 10.13
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of the 27th day of
March, 2000, by and between ▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "COMPANY") with an address
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇") residing at ▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, Sass and the Company have agreed that Sass shall render
services to the Company in the capacity of Executive Vice-President pursuant to
the terms of this Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein set forth, the parties hereto have agreed and do hereby
mutually agree as follows:
1. EMPLOYMENT TERM: The term of this Agreement shall commence on the
date hereof and shall expire two years thereafter (the "EMPLOYMENT PERIOD")
subject to the provisions of Section 5, however, the Employment Period shall
automatically be extended for an additional year unless, within 30 days prior to
the end or the initial Employment Period and on each anniversary date
thereafter, Sass or the Company shall deliver to the other, written notice of
their intent not to renew this Agreement. In the event ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇'▇
Employment Agreement dated March 27, 2000 is extended, then this Agreement shall
be extended for the same term.
2. DUTIES OF EXECUTIVE: Sass shall serve as Executive Vice-President of
the Company and shall be required to perform such duties as may from time to
time be required by the Board of Directors of the Company. Sass hereby agrees
that, during the term of his employment hereunder, he shall devote such time as
is reasonably necessary to perform his
duties pursuant to the terms of this Agreement. The Company agrees to indemnify
Sass as an officer of the Company to the fullest extent permitted by law.
3. COMPENSATION:
(a) As compensation for his services hereunder, the Company shall
pay Sass, during the Employment Period, a base salary ("BASE SALARY") payable as
follows:
(i) Two Hundred Fifty Thousand Dollars ($250,000.00) for
the first year;
(ii) Three Hundred Thousand Dollars ($300,000.00) for the
second year;
The foregoing compensation shall be payable in installments
according to the Company's regular payroll practices and subject to such
deductions as may be required by law.
(b) The Company may withhold from payments of Employee's salary
amounts required to be withheld by the Company from time to time from such
salary under applicable Federal, State, and local laws and regulations then in
effect.
(c) Sass shall also receive a bonus based upon a bonus plan to be
established for executive officers of the Company, in each fiscal year during
the Employment Period, payable as determined in the bonus plan.
(d) In each fiscal year during the Employment Period, the Company
may contribute to an annuity or pension plan of Sass, which annuity or pension
plan shall be designated by Sass.
(e) Upon submission of written statements and bills in accordance
with the then regular procedures of the Company, Sass shall be entitled to
reimbursement for reasonable out-of-pocket expenses necessarily incurred in the
performance of his duties hereunder,
2
including, but not limited to, reimbursement for travel and car expenses. A
Company credit card will also be made available to Sass. In addition, Sass shall
also be entitled to a car allowance of $750 per month, plus cost of insurance
and maintenance.
(f) During the term of his employment, no other employee of equal or
lesser position/title shall receive greater compensation than Sass, not
including performance based commissions to sales staff.
4. EMPLOYEE BENEFITS:
(a) Sass shall be included to the extent eligible thereunder (at the
expense of the Company, if appropriate) in any and all existing plans (and any
plans which may be adopted in the future) providing benefits for the Company's
employees generally, including, but not limited to, group life and disability
insurance, hospitalization, medical, vacation, retirement, stock option plans
and any and all similar or comparable benefits. Any hospitalization or medical
insurance coverage shall be for Sass and his spouse and children.
(b) Due to the fact that the Company's success is dependent upon the
activities of Sass, the Company will provide keyman insurance on the life of ▇▇.
▇▇▇▇ in the amount of $1,000,000.00 and Sass will cooperate in obtaining and
maintaining such policy. This policy shall be a whole life insurance policy (the
"POLICY"). At the termination of this Agreement, for any reason, the Company
shall, at Sass' sole option, assign Sass all of its right, title and interest in
the Policy. At that time, Sass may, at his expense, cause the Policy to continue
in full force and effect and shall have the option to designate a beneficiary of
his choice.
5. TERMINATION:
(a) The Company may terminate Sass's employment hereunder at any
time for cause only by written notice but only after a decision by the Board of
Directors of the Company
3
which is communicated to Sass in writing thirty (30) days prior to the effective
date of termination; PROVIDED HOWEVER, that the Company pays to Sass a severance
payment equal to the aggregate Base Salary otherwise owed to him over the
remaining term of the Employment Period, said remaining term not to include any
extensions (as detailed in Section 1, herein) that have not commenced as of the
date of termination, and allow Sass to retain any options granted under any
option plan granted to him notwithstanding the fact that such options may not be
vested and/or exercisable at the time of termination under this Section 5(a).
(b) For purposes of this Agreement "For Cause" shall mean:
(i) Deliberate misappropriating any funds or properties
of the Company;
(ii) Gross mismanagement of the Company;
(c) In the event Sass dies or becomes disabled so as not to be able
to perform his duties as set forth herein for a period exceeding twelve (12)
moths, this Agreement shall terminate (as permissible under the Americans with
Disabilities Act) and no further compensation shall be payable to Sass, except
as may otherwise be provided under any insurance policy, employee benefit plan,
or similar instrument; PROVIDED HOWEVER , that during any such period of
disability, Sass shall be entitled to his base salary as provided under Section
3(a) for a period not to exceed twelve (12) months.
(d) CHANGE OF CONTROL: In the event Sass shall no longer be a
director or Executive Vice President of the Company, then Sass may terminate
this Agreement and Sass shall be entitled to continue to receive his Base Salary
as set forth in Section 3(a) above for the remainder of the Employment Period,
said remainder not to include any extensions (as detailed in Section 1, herein)
that have not commenced as of the date of Sass's termination and shall be
4
entitled to retain any options granted under any option plan notwithstanding the
fact that such options may not be vested and/or exercisable at the time of
termination under this Section 5(d).
6. COVENANT NOT TO COMPETE: The parties agree that the Company has a
legitimate business interest, including, but not limited to: (1) trade secrets,
which include but are not limited to, intellectual properties, client lists,
customer lists, vendor lists, and marketing programs developed by and unique to
the Company; (2) valuable confidential business or professional information that
otherwise does not qualify as trade secrets; (3) substantial relationship with
specific prospective or existing clients and vendors or suppliers; (4) client,
vendor and supplier goodwill associated with an ongoing business by way of the
name ▇▇▇▇▇▇▇▇.▇▇▇, Inc. located throughout the United States; (5) extraordinary
or specialized training in the technology and computer science technology field;
and (6) the assets, corporate shares, investments and equity interests of the
Company.
The parties further agree that the Company has a reasonable
legitimate business interest and a protectable interest in the right to prevent
direct and indirect solicitation of existing clients and business relationships
and investment in extraordinary training of its current employees.
In view of the foregoing, Sass's employment by the Company in a very
skilled, highly valued position within its highly specialized organization and
the payment of compensation listed herein and other valuable consideration, it
is further mutually agreed as follows:
(a) Sass recognizes and acknowledges, as aforesaid, that the Company
has made a substantial investment in time and expense in its highly specialized
business and that the very nature of Sass's position will enable Sass to obtain
and become familiar with certain trade
5
secrets, confidential information concerning business techniques, methodologies,
marketing efforts, highly specialized employee training, intellectual properties
vendor lists, other lists and client relationships of the Company.
(b) Because of the competitive environment in which the Company must
conduct its business, Sass agrees and understands that material and irreparable
injury would be done to the Company if Sass should violate the said legitimate
business interest and protectable interest, or assist competitors, or engage in
solicitation of existing clients or business relationships.
(c) Sass will not, during his employment with the Company or any
time thereafter, use, offer, disclose or divulge by any means, directly or
indirectly, any of the trade secrets, confidential information, vendor lists or
client lists of the Company. Sass further agrees that during his employment with
the Company and prior to the later of: (i) termination of his employment with
the Company; or (ii) the due date of his final payment of salary due hereunder,
he will not engage in solicitation of existing client lists and vendor lists of
the Company, which are the property of the Company and which Sass acquired
knowledge of in the course of and by virtue of his employment with the Company,
to any corporation, firm, person, partnership, associations or other business
entity, or use such information in any manner contrary to this Agreement.
The parties agree that the foregoing is reasonable.
Sass agrees that, commencing the date hereof and continuing until
the due date of his final payment of salary due hereunder, he will not, except
on behalf of the Company or with the written consent of the Company: (i) engage
in any business activity in the United States, directly or indirectly, on his
own behalf or as a partner, stockholder (except by ownership of less
6
than ten percent (10%) of the outstanding stock of a publicly-held corporation),
director, trustee, principal, agent, employee, consultant or otherwise of any
person, firm or corporation which then is competitive with an activity in which
the Company or any parent or subsidiary of the Company is then engaged at the
time; (ii) allow the use of his name by or in connection with any business
activity which then is principally competitive with any activity in which the
Company or any of its parents or subsidiaries is then engaged; or (iii) offer
employment to or employ, for himself or on behalf of any then competitor of the
Company or any of its parents or subsidiaries, any persons who at any time
within the prior six (6) months shall have been employed by the Company or any
parent or subsidiary of the Company.
Sass recognizes that as an officer and/or director of the Company,
he has a fiduciary duty to reveal to the Company all business opportunities that
he may discover if said opportunities concern technology, products or business
which is related, either directly or indirectly, to the Company's type of
technology, products or business, either at the present or in the anticipated
future. In that event, the Company shall have the first right to participate in
said business opportunity. For the purpose of this section, "business
opportunity" shall include but shall not be limited to, the purchase of any
interest in any business entity which is related to the type of technology
products or business of the Company, by either Sass, any agent of Sass, or any
entity controlled by Sass, its officers, directors, agents, attorneys,
employees, subsidiaries, parents, affiliates, joint venturers, partners,
division, predecessors, and all other persons acting for, purporting to act for,
or subject to, the control of Sass.
7. DEFAULT - REMEDIES: In the event of proof of breach by Sass, the
Company shall be entitled to pursue any remedy at law or equity, and shall
specifically have the right to terminate any further payments of any kind or
nature to be made under this Agreement.
7
8. CONFIDENTIAL INFORMATION: Except as otherwise required by law, Sass
shall not disclose or use at any time, except as part of his employment by the
Company, either during or subsequent to such employment, any secret or
confidential information or knowledge obtained by Sass while employed by the
Company. Without limiting the generality of the foregoing, Sass shall not
disclose or use any information pertaining to the business of the Company or any
parent or subsidiary of the Company, including, but not limited to, profit
figures, names of or relationships with customers or advertisers, or the terms
of any contracts to which it or they may be a party. The obligation imposed by
this Section 8 shall survive the expiration or other termination of this
Agreement.
9. SURRENDER OF DOCUMENTS: Sass shall, at the request of the Company,
promptly surrender to the Company or its nominee, upon any termination of his
employment hereunder, or at any time prior thereto, any document, memorandum,
record, letter, specification or other paper in his possession or under his
control relating to the operations, business, customers, or affairs of the
Company or its affiliates.
10. WAIVER OF BREACH: The waiver by either the Company or Sass of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either the Company or Sass.
11. SEVERABILITY: The invalidity or unenforceability of any provision
of this Agreement, whether in whole or in part, shall not in any way affect the
validity or enforceability of any other part of such provision or of any
provision herein contained, and any invalid or unenforceable provision or part
thereof shall be deemed severable to the extent of any such invalidity or
unenforceability. If such invalidity or unenforceability is due to the
unreasonableness of the time or geographical area covered by the covenants or
restrictions of
8
such provision, such covenants and restrictions shall nevertheless be effective
for such period of time and for such area as may be determined to be reasonable
by a court of competent jurisdiction.
12. INTERPRETATION: No provision of this Agreement is to be interpreted
for or against any party because that party or that party's legal representative
drafted such provision.
13. ASSIGNMENT; BINDING EFFECT: This Agreement is for personal services
of Rothschild and shall not be assignable by the Company. The obligations of
Sass hereunder may not be assigned or delegated without the prior written
consent of the Company. This Agreement shall not be assignable in whole or in
part by Sass, except that Sass may assign the Agreement to any successor in
interest to the Company's business. The rights and obligations of the parties
shall inure to the benefit of, and be binding upon, their respective heirs,
personal representatives, successors and assigns.
14. NOTICES:
(a) All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been given if delivered
by hand or mailed within the continental United States by first class, certified
mail, return receipt requested, postage and registry fees prepaid, or sent by
telecopier (with receipt confirmation), to the applicable party and addressed as
follows:
(i) if to the Company at the address set forth above.
(ii) if to Sass at the address set forth above.
9
(b) Any notice or other communication given by certified mail shall
be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof. Any notice or other communication sent by telecopier transmission shall
be deemed given at the time of written confirmation of receipt.
15. ENTIRE AGREEMENT OF THE PARTIES: This Agreement expresses the
entire agreement of the parties, and all promises, representations,
understandings, arrangements and prior agreements are merged herein and
superseded hereby. No person, other than pursuant to a resolution of the
Company's Board of Directors, shall have any authority on behalf of the Company
to agree to modify or change this Agreement or anything in reference thereto,
and any such modification or change must be in writing and signed by both
parties hereto.
16. LAWS GOVERNING: This Agreement has been entered into in the State
of Florida and shall be construed, interpreted and governed in accordance with
the laws of the State of Florida without regard to the choice of laws provisions
thereof.
17. COUNTERPARTS: 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 but one document.
18. PRIOR AGREEMENTS: The Employment Agreement dated June 3, 1999
between the parties hereto is hereby terminated and superceded by this
agreement. This Agreement supercedes any and all prior agreements,
understandings, and negotiations relating to the subject
10
matter herein and constitutes the entire agreement between the parties relating
to such subject matter.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Sass has hereunto set his hand as
of the day and year first above written.
▇▇▇▇▇▇▇▇.▇▇▇, INC. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Chairman of Board of Directors
11