EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made this 1st day of
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January, 1998, between PROSOFT I-NET SOLUTIONS, INC., a Nevada corporation (the
"Company"), and ▇▇▇▇ ▇. PABRAI ("Employee").
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WHEREAS:
a. The Company is engaged in the provision of internet and intranet
training and other computer training and services;
b. The Company desires to employ Employee as its Executive Vice President
and Chief Technology Officer, and Employee wishes to accept such
employment on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth, the parties do hereby agree and promise as follows:
1. EMPLOYMENT
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1.1 The Company hereby employs Employee and Employee hereby accepts
employment under the terms and conditions set forth below. The Employee's
initial title shall be Executive Vice President and Chief Technology Officer.
2. DUTIES
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2.1 The Employee shall perform such managerial, supervisory,
development or executive duties in connection with the business of the Company
as the board of directors of the Company (the "Board of Directors") and other
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more senior officers of the Company may from time to time assign consistent with
Employee's title of Executive Vice President and Chief Technology Officer.
2.2 Employee will report and be responsible to persons designated by
the Board of Directors.
2.3 Employee agrees to devote his full business time, energy and
skills to such employment subject to absences and customary vacations and for
temporary illnesses.
2.5 Employee will not engage in other gainful occupation during the
term of this Agreement without prior written consent of the Company, provided,
however, that nothing contained herein shall be construed to prevent the
Employee from trading for his own account and benefit in stocks, bonds,
securities, real estate, commodities and other forms of investments.
2.6 Employee will be permitted to maintain his place of employment in
the Chicago, Illinois metropolitan area and will only be required by the Company
to relocate to another location if Employee consents to such relocation.
Notwithstanding the foregoing, Employee shall be required to travel to the
Company's various offices and other locations as part of his employment.
3. TERM
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The term of this Agreement shall begin on January 1, 1998 and shall
continue for a term of three years, unless earlier terminated pursuant to the
provisions hereof.
4. COMPENSATION
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Employee shall receive a base salary of $150,000.00 per year payable
in equal installments on the Company's regular payroll dates ("Base Salary"),
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which base salary the Company shall continue to pay during the term of this
Agreement until the Company is no longer obligated to pay the same pursuant to
the provisions of Section 6 hereof.
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5. TERMINATION
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5.1 The Company may terminate this Agreement for cause by giving the
Employee written notice. "Cause" shall mean gross negligence or willful
misconduct in the performance of Employee's duties hereunder, willful breach or
habitual neglect of duties, defalcation, fraud, conviction of a felony, or
incarceration for not less than 30 consecutive days, all as determined by the
Board of Directors. If the Employee disputes the Company's right to terminate
this Agreement for cause, the dispute shall be resolved in accordance with
Section 10 hereof.
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5.2 The Company may terminate this Agreement if Employee is mentally
or physically disabled and such disability renders him unable to perform his
duties under this Agreement for 90 consecutive days in any 12-month period.
5.3 This Agreement may be terminated voluntarily by the Employee by
providing the Company with written notice specifying the date of such
termination not less than 90 days prior to the effective date of termination.
5.4 This Agreement may be terminated by the Company without cause by
providing Employee with written notice specifying the date of such termination
not less than 30 days prior to the effective date of termination.
6. EFFECT OF TERMINATION
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If Employee's employment hereunder is terminated without Cause
pursuant to Section 5.4, the Company shall pay to Employee the Base Salary for
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the remaining term of this Agreement,
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plus the value of any accrued or unused vacation. If Employee's employment
hereunder is terminated pursuant to Sections 5.1, 5.2 or 5.3, the Company shall
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pay to Employee the Base Salary through the date of such termination, plus the
value of any accrued or unused vacation.
7. WITHHOLDING TAXES AND OTHER DEDUCTIONS
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To the extent required by law, the Company shall withhold from any payments
due Employee under this Agreement any applicable federal, state or local taxes
and such other deductions as are prescribed by law or Company policy.
8. PROPRIETARY INFORMATION
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8.1 Employee understands that the Company possesses and will continue
to possess information that has been created, discovered, developed or otherwise
become known to the Company (including, without limitation, information created,
discovered, developed or made known by Employee during the period of or arising
out of his employment by the Company, whether prior to or after the date hereof)
or in which property rights have been assigned or otherwise conveyed to the
Company, which information has commercial value in the business in which the
Company is engaged. All such information is hereinafter called "Proprietary
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Information." By way of illustration, but not limitation, Proprietary
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Information includes processes, formulas, codes, data, programs, know-how,
improvements, discoveries, developments, designs, inventions, techniques,
marketing plans, strategies, forecasts, new products, unpublished financial
statements, budgets, projections, licenses, prices, costs, contracts and
customer and supplier lists.
8.2 In consideration of the compensation received by the Employee
from the Company and the covenants contained in this Agreement, Employee agrees
as follows:
8.2.1 All Proprietary Information shall be the sole property of
the Company and its assigns, and the Company and its assigns shall be the sole
owner of all patents, copyrights, and other rights in connection therewith.
Employee hereby assigns to the Company rights he may have or acquire in such
Proprietary Information. At all times, both during his employment by the Company
and after its termination, Employee will keep in strictest confidence and trust
all Proprietary Information and will not use or disclose any Proprietary
Information without the written consent of the Company, except as may be
necessary in the ordinary course of performing his duties under this Agreement.
8.2.2 All documents, records, equipment and other physical
property, whether or not pertaining to Proprietary Information, furnished to
Employee by the Company or produced by Employee or others in connection with
Employee's employment with the Company shall be and remain the sole property of
the Company. In the event of the termination of his employment by him or the
Employee for any reason, Employee will deliver to the Company all documents,
notes, drawings, specifications, programs, data, customer lists and other
materials of any nature pertaining
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to his work with the Company and Employee will not take with him or use any of
the foregoing, any reproduction of any of the foregoing, or any Proprietary
Information that is embodied in a tangible medium of expression.
8.3 Employee recognizes that the Company is engaged in a continuous
program of development and marketing respecting its present and future business.
Employee understands that as part of his employment by the Company he has been
and is expected to make new contributions of value to the Company and that his
employment has created a relationship of confidence and trust between him and
the Company with respect to certain information applicable to the business of
the Company or applicable to the business of any customer of the Company, which
has been or may be made known to Employee by the Company or by any customer of
the Company or which may have been or may be learned by Employee during the
period of his employment by the Company.
9. COVENANT NOT TO COMPETE
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9.1 In consideration for the payments to be made under this
Agreement, Employee shall, for the greater of (a) a period of three (3) years or
(b) such period as Employee may be employed by the Company, refrain from, either
alone or in conjunction with any other person, or directly or indirectly through
its present or future affiliates:
(i) employing, engaging or seeking to employ or engage any person
who within the prior twenty four (24) months had been an officer or employee of
the Company;
(ii) causing or attempting to cause (A) any client, customer or
supplier of the Company to terminate or materially reduce its business with the
Company or (B) any officer, employee or consultant of the Company to resign or
sever a relationship with the Company;
(iii) disclosing (unless compelled by judicial or administrative
process) or using any confidential or secret information relating to the Company
or any of their respective clients, customers or suppliers; or
(iv) participating or engaging in (other than through the ownership
of five percent (5%) or less of any class of securities registered under the
Securities Exchange Act of 1934, as amended), or otherwise lending assistance
(financial or otherwise) to any person participating or engaged in, any of the
lines of business in which the Company is participating or engaged on the date
hereof in any jurisdiction in which the Company participates or engages in such
line of business on the date hereof.
9.2 The parties hereto recognize that the laws and public policies of
the various states of the United States may differ as to the validity and
enforceability of covenants similar to those set forth in this Section. It is
the intention of the parties that the provisions of this Section be enforced to
the fullest extent permissible under the laws and policies of each jurisdiction
in which
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enforcement may be sought, and that the unenforceability (or the modification to
conform to such laws or policies) of any provisions of this Section shall not
render unenforceable, or impair, the remainder of the provisions of this
Section. Accordingly, if any provision of this Section shall be determined to be
invalid or unenforceable, such invalidity or unenforceability shall be deemed to
apply only with respect to the operation of such provision in the particular
jurisdiction in which such determination is made and not with respect to any
other provision or jurisdiction.
9.3 The parties hereto acknowledge and agree that any remedy at law
for any breach of the provisions of this Section would be inadequate, and
Employee hereby consents to the granting by any court of an injunction or other
equitable relief, without the necessity of actual monetary loss being proved, in
order that the breach or threatened breach of such provisions may be effectively
restrained.
9.4 The Company and the Employee acknowledge that the foregoing
restrictive covenants in this Section 9 are essential elements of this Agreement
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and that, but for the agreement of the Employee to comply with those covenants,
the Company would not have agreed to enter into this Agreement. The covenants by
the Employee shall be construed as agreements independent of any other provision
in this Agreement.
9.5 The Company and the Employee intend that the covenants contained
in this Section 9 shall be construed as a series of separate covenants, one for
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each county of the State of Texas and one for each State of the United States
other than Texas.
9.6 The Company and the Employee understand and agree that, if any
portion of the restrictive covenants set forth in this Section 9 is held to be
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unreasonable, arbitrary, or against public policy, then that portion of those
covenants shall be considered divisible as to time and geographical area. The
Company and the Employee agree that, if any court of competent jurisdiction
determines that the specified time period or the specified geographical area of
application in any covenant is unreasonable, arbitrary, or against public
policy, then a lesser time period, geographical area, or both, that is
determined to be reasonable, nonarbitrary, and not against public policy may be
enforced against Employee. The Company and the Employee agree and acknowledge
that they are familiar with the present and proposed operations of the Company
and believe that the restrictive covenants set forth in this Section 9 are
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reasonable with respect to their subject matter, duration, and geographical
application.
9.7 The parties acknowledge that the status of the Employee in this
business and industry is unique and the success of the Company in said business
is materially and substantially dependent upon the continued employment of the
Employee, and in the event the employment of the Employee is terminated for any
reason, such business of The Company will be substantially and irrevocably
damaged. In view thereof, the parties acknowledge that monetary damages alone
will not fully compensate The Company in the event the Employee fails or refuses
to comply with the terms of this Section 9 above when applicable, and agree that
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The Company, in addition to all other
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remedies provided in law and in equity, shall have the remedy of injunctive
relief and specific performance to enforce the terms of said Section.
10. ARBITRATION
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Except as otherwise provided herein, any controversies or claims
arising out of, or relating to this Agreement or the breach thereof, shall be
settled by arbitration in Austin, Texas in accordance with the rules of, but not
subject to the jurisdiction of, the American Arbitration Association, which
decision shall be final and binding on the parties, and judgment upon the award
rendered may be entered in any court having jurisdiction thereof. For these
purposes the arbitrator shall be an individual who has demonstrated that such
individual is familiar with and has experience in the legal issues involving
employer-employee relationships and has had no prior prejudicial contacts with
either party. In addition to all other remedies provided in law or in equity,
the arbitrator is hereby authorized to assess costs and attorney's fees against
either party if the arbitrator finds, based on all the facts and circumstances,
that the conduct of or the claims made by such party were unreasonable or
substantially without merit.
11. NOTICE
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All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or mailed (first class postage prepaid) to the
parties at the following addresses or facsimile numbers:
If to Employee, to:
▇▇▇▇ ▇. Pabrai
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.:
If to the Company, to:
Prosoft I-Net Solutions, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and
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(iii) if delivered by mail in the manner described above to the address as
provided in this Section, be deemed given upon receipt (in each case regardless
of whether such notice, request or other communication is received by any other
person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other party hereto.
12. INVALID PROVISION
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The invalidity or unenforceability of any particular provision of this
Agreement in any jurisdiction shall not affect the other provisions hereof or
the validity of that particular provision in any other jurisdiction, and the
Agreement shall be construed in all respects as though such invalid or
unenforceable provisions were omitted only in the jurisdiction in which the same
is held to be invalid or unenforceable.
13. INTERPRETATION
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This Agreement shall be interpreted in accordance with the laws of the
State of Texas.
14. SUCCESSORS
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The rights and duties of Employee hereunder shall not be assignable by
Employee. This Agreement shall be binding upon and shall inure to the benefit of
any successor of the Company and Employee, and any such successor shall be
deemed substituted for the Company or Employee under the terms of this
Agreement. The term successor as used herein shall include any person, firm,
corporation or other business entity which at any time, by merger, purchase or
otherwise, acquires substantially all of the assets or business of the Company.
15. MODIFICATION
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This instrument constitutes the entire agreement between the parties,
and may be changed only by an agreement in writing signed by the parties.
16. HEADINGS
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Sections and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretations of this Agreement.
17. COUNTERPARTS
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This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
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Signatures may be exchanged by telecopy, with original signatures to follow.
Each of the parties hereto agrees that it will be bound by its own telecopied
signature and that it accepts the telecopied signatures of the other parties to
this Agreement. The original signature pages shall be forwarded to the Company
or its counsel and the Company or its counsel will provide all of the parties
hereto with a copy of the entire Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
THE COMPANY: PROSOFT I-NET SOLUTIONS, INC.,
a Nevada corporation
By:____________________________________
Name:
Title:
EMPLOYEE: _______________________________________
▇▇▇▇ ▇. PABRAI
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