Employment Agreement - Authentidate.com Inc. and Robert Van Naarden
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 5th day of July, 2000 by and between ROBERT
VAN NAARDEN, residing at 514 Long Lane, Huntingdon Valley, Pennsylvania 19006
(hereinafter referred to as the "Employee") and AUTHENTIDATE.COM, INC., a
Delaware corporation with principal offices located at 2165 Technology Drive,
Schenectady, New York 12308 (hereinafter referred to as the "Company").
W I T N E S S E T H :
WHEREAS, the Company is engaged in the business of providing a service
accessible through the World Wide Web allowing users to verify the date, time,
content and authorship of documents, digital files and other images; and
WHEREAS, the Company desires to employ Employee for the purpose of
securing for the Company the experience, ability and services of Employee; and
WHEREAS, Employee desires to be employed with the Company, pursuant to
the terms and conditions herein set forth, superseding all prior agreements
between the Company, its subsidiaries and/or predecessors and Employee;
NOW, THEREFORE, it is mutually agreed by and between the parties hereto
as follows:
ARTICLE I
EMPLOYMENT
1.1 Subject to and upon the terms and conditions of this Agreement, the
Company hereby employs Employee, and Employee hereby accepts such employment in
the capacity of Chief Executive Officer of the Company.
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1.2 The Company agrees to nominate Employee for election to the Board
of Directors of the Company and to the Board of Directors of Bitwise Designs,
Inc., during the term of his employment with the Company.
ARTICLE II
DUTIES
2.1 Employee shall, during the term of his employment with the Company,
and subject to the direction and control of the Company's Board of Directors,
perform such duties and functions as he may be called upon to perform by the
Company's Board of Directors during the term of this Agreement.
2.2 Employee agrees to devote full business time and his best efforts
in the performance of his duties for the Company and any subsidiary corporation
of the Company.
2.3 Employee shall perform, in conjunction with the Company's Executive
Management, to the best of his ability the following services and duties for the
Company and its subsidiary corporations (by way of example, and not by way of
limitation):
(i) Those duties attendant to the position with the Company
for which he is hired;
(ii) Establish and implement current and long range
objectives, plans, and policies, subject to the approval of the Board of
Directors;
(iii) Financial planning including the development of, liaison
with, financing sources and investment bankers;
(iv) Managerial oversight of the Company's business;
(v) Shareholder's relations;
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(vi) Ensure that all Company activities and operations are
carried out in compliance with local, state and federal regulations and laws
governing business operations.
(vii) Business expansion of the Company including
acquisitions, joint ventures, and other opportunities; and
(viii) Promotion of the relationships of the Company and its
subsidiaries with their respective employees, customers, suppliers and others in
the business community.
2.4 Employee shall be based in the New York City, New York area, and
shall undertake such occasional travel, within or without the United States as
is or may be reasonably necessary in the interests of the Company.
ARTICLE III
COMPENSATION
3.1 Commencing the date hereof and during the term hereof, Employee
shall be compensated initially at the rate of $250,000 per annum, subject to
such increases, if any, determined by the Board of Directors in its discretion,
on each 12-month anniversary of this Agreement (the "Base Salary"). The Base
Salary shall be paid to Employee in accordance with the Company's regular
payroll periods.
3.2 Employee shall be entitled to receive an annual bonus (the "Bonus")
of up to $200,000 based on the achievement of certain performance targets to be
determined at the commencement of each year of employment by the Board of
Directors; provided, however, for the initial year of his employment, Employee
shall be entitled to be paid as a Bonus a minimum of $80,000, to be paid to
Employee in equal payments on each of the Company's regular payroll dates during
the first year of this Agreement.
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3.3 The Company shall deduct from Employee's compensation all federal,
state, and local taxes which it may now or may hereafter be required to deduct.
3.4 Employee may receive such other additional compensation as may be
determined from time to time by the Board of Directors. Nothing herein shall be
deemed or construed to require the Board to award any bonus or additional
compensation.
ARTICLE IV
BENEFITS
4.1 During the term hereof, the Company shall provide Employee with
group health care and insurance benefits as generally made available to the
Company's senior management; provide such other insurance benefits obtained by
the Company and made generally available to the Company's senior management; and
reimburse Employee, upon presentation of appropriate vouchers, for all
reasonable business expenses incurred by Employee on behalf of the Company upon
presentation of suitable documentation, in accordance with Company policy.
4.2 In the event the Company wishes to obtain Key Man life insurance on
the life of Employee, Employee agrees to cooperate with the Company in
completing any applications necessary to obtain such insurance and promptly
submit to such physical examinations and furnish such information as any
proposed insurance carrier may request.
4.3 All benefits shall be consistent with the Company's Employee
Manual.
4.4 For each year of the term hereof, Employee shall be entitled to
four (4) weeks paid vacation.
4.5 Employee shall be entitled to sick leave in accordance with the
Company's policy which is currently as follows:
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Each Employee is entitled to five (5) days sick leave per calendar year
(pro rata for the initial year). Unused sick time is accrued for catastrophic
illness up to a maximum of 30 days. Under no circumstances is an employee
entitled to cash compensation for unused sick leave.
ARTICLE V
NON-DISCLOSURE
5.1 Employee shall not, at any time during or after the termination of
his employment, except when acting on behalf of and with the authorization of
the Company, make use of or disclose to any person, corporation, or other
entity, for any purpose whatsoever, any trade secret or other confidential
information concerning the Company's business, finances, marketing, technology
and other assets of the Company which if disclosed would be detrimental to the
Company, including information relating to any customer of the Company or any
other nonpublic business information of the Company learned as a consequence of
Employee's employment with the Company (collectively referred to as the
"Proprietary Information"). For the purposes of this Agreement, trade secrets
and confidential information shall mean information disclosed to Employee or
known by him as a consequence of his employment by the Company, whether or not
pursuant to this Agreement, and not generally known in the industry. Employee
acknowledges that trade secrets and other items of confidential information, as
they may exist from time to time, are valuable and unique assets of the Company,
and that disclosure of any such information would cause substantial injury to
the Company. As used in the Article V, Proprietary Information shall mean
information of any nature and in any form, except for information which Employee
can demonstrate:
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(i) was at the time of disclosure to Employee generally part
of the public domain or thereafter becomes part of the public domain through no
act or omission by Employee; or
(ii) was lawfully in Employee's possession as shown in written
records prior to disclosure by the Company and without obligation of
confidentiality; or
(iii) was lawfully received by Employee after disclosure from
a third party without obligation of confidentiality and without violation by
said third party of an obligation of confidentiality to another; or
(iv) was required to be disclosed by law or court order.
ARTICLE VI
RESTRICTIVE COVENANT
6.1 In the event of the voluntary termination of employment with the
Company prior to the expiration of the term hereof, or Employee's discharge in
accordance with Article VIII, or the expiration of the term hereof without
renewal, Employee agrees that he will not, for a period of one (1) year
following such termination (or expiration, as the case may be) directly or
indirectly enter into or become associated with or engage in any other business
(whether as a partner, officer, director, shareholder, employee, consultant, or
otherwise) which is involved in the business of providing Internet based
authentication services, or is otherwise engaged in the same or similar business
as the Company shall be engaged and is in direct competition with the Company,
or which the Company is in the process of developing, during the tenure of
Employee's employment by the Company. Notwithstanding the foregoing, the
ownership by Employee of less than five percent of the shares of any publicly
held corporation shall not violate the provisions of this Article VI.
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6.2 In furtherance of the foregoing, Employee shall not during the
aforesaid period of non-competition, directly or indirectly, in connection with
any business similar to the business in which the Company was engaged, or in the
process of developing during Employee's tenure with the Company, solicit any
customer or employee of the Company who was a customer or employee of the
Company during the tenure of his employment.
6.3 Except as otherwise may be agreed by the Company in writing, in
consideration of the employment of Employee by the Company, and free of any
additional obligations of the Company to make additional payment to Employee,
Employee agrees to irrevocably assign to the Company any and all inventions,
software, manuscripts, documentation, improvements or other intellectual
property whether or not protectible by any state or federal laws relating to the
protection of intellectual property, relating to the present or future business
of the Company that are developed by Employee prior to the termination of
his/her employment with the Company, either alone or jointly with others, and
whether or not developed during normal business hours or arising within the
scope of his/her duties of employment. Employee agrees that all such inventions,
software, manuscripts, documentation, improvement or other intellectual property
shall be and remain the sole and exclusive property of the Company and shall be
deemed the product of work for hire. Employee hereby agrees to execute such
assignments and other documents as the Company may consider appropriate to vest
all right, title and interest therein to the Company and hereby appoints the
Company Employee's attorney-in-fact with full powers to execute such document
itself in the event employee fails or is unable to provide the Company with such
signed documents. This provision does not apply to an invention for which no
equipment, supplies, facility, or trade secret information of the Company was
used and which was developed entirely
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on Employee's own time, unless (a) the invention relates (i) to the business of
the Company, or (ii) to the Company's actual or demonstrably anticipated
research or development, or (b) the invention results from any work performed by
Employee for the Company.
6.4 Employee agrees to indemnify and hold harmless the Company, against
any claim, suit or proceeding brought against the Company based on a claim that
the employment of Employee by the Company is in violation of any restrictive
covenant contained in any agreement between (1) the Company and Employee's
former employer or (2) Employee and his former employer.
6.5 If any court shall hold that the duration of non-competition or any
other restriction contained in this Article is unenforceable, it is our
intention that same shall not thereby be terminated but shall be deemed amended
to delete therefrom such provision or portion adjudicated to be invalid or
unenforceable or, in the alternative, such judicially substituted term may be
substituted therefor.
ARTICLE VII
TERM
7.1 This Agreement shall be for a term of three (3) years commencing
July 5, 2000 and terminating on July 5, 2003 unless sooner terminated as
provided for herein (the "Expiration Date").
7.2 If the Company elects not to renew this Agreement, or if the
Company fails to reach agreement with Employee as to the terms of renewal, upon
the termination of Employee's employment with the Company for any reason after
the Expiration Date, the Company shall pay to Employee, in addition to any other
payments due hereunder, a severance payment equal to
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twelve months of Employee's Base Salary ("Severance Payments") payable in
accordance with the Company's regular payroll periods, commencing on the first
day of the first payroll period following the date of such termination.
ARTICLE VIII
DISABILITY DURING TERM
8.1 In the event Employee becomes totally disabled so that he is unable
or prevented from performing any one or all of his usual duties hereunder for a
period of two (2) consecutive months, and the Company elects to terminate this
agreement in accordance with Article IX, paragraph (B) then, and in that event,
Employee shall receive his Base Salary as provided under Article III of this
Agreement for a period of twelve (12) months commencing from the date of such
total disability or the balance of the original term of this agreement,
whichever is greater and payable in accordance with the Company's regular
payroll periods. The obligation of the Company to make the aforesaid payments
shall be modified and reduced and the Company shall receive a credit for all
disability insurance payments which Employee may receive from insurance policies
provided by the Company.
ARTICLE IX
TERMINATION
9.1 The Company may terminate this Agreement:
a. Upon the death of Employee during the term hereof, except
that Employee's legal representatives, successors, assigns, and heirs shall have
those rights and interests as otherwise provided in this Agreement, including
the right to receive accrued but unpaid incentive compensation and special bonus
compensation on a pro rata basis.
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b. Subject to the terms of Article VIII, upon written notice
from the Company to Employee, if Employee becomes totally disabled and as a
result of such total disability, has been prevented from and unable to perform
all of his duties hereunder for a consecutive period of any two (2) months in a
twelve month period.
c. Upon written notice from the Company to Employee, at any
time for "Cause." For purposes of this Agreement, "Cause" shall be defined as:
(i) willful disobedience by Employee of a material and lawful instruction of the
Board of Directors of the Company; (ii) conviction of Employee of any
misdemeanor involving fraud or embezzlement or similar crime, or any felony;
(iii) breach by Employee of any material provision of this Agreement; (iv)
conduct amounting to fraud, dishonesty, negligence, willful misconduct or
recurring insubordination; (v) inattention to or unsatisfactory performance of
duties which adversely affects operations of the Company; or (vi) excessive
absences from work.
9.2 In the event the Company terminates this Agreement without cause,
Employee shall be entitled to a severance payment equal to twelve (12) months of
Employee's Base Salary, payable in accordance with the Company's regular payroll
periods, commencing on the first day of the first payroll period following the
date of termination.
ARTICLE X
TERMINATION OF PRIOR AGREEMENTS
10.1 This Agreement sets forth the entire agreement between the parties
and supersedes all prior agreements between the parties, whether oral or written
prior to the effective date of this Agreement.
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ARTICLE XI
STOCK OPTIONS
11.1 As an inducement to Employee to enter into this Agreement the
Company hereby grants to Employee shares of the Company's Common Stock, $.001
par value, as follows:
Subject to the terms and conditions of the Company's Employee
Stock Option Plan (the "Plan"), and the terms and conditions set forth in the
Stock Rights Certificate which are incorporated herein by reference, Employee is
granted such number of shares of the Company's Common Stock as shall equal 5% of
the shares of the Company's Common Stock outstanding as of the date of this
Agreement. The shares granted hereunder shall vest in equal amounts over a
four-year period commencing one year from the date hereof. The Stock Rights are
not transferable by Employee and shall be exercised only by Employee, or by his
legal representative or executor, as provided in the Plan. Such Stock Rights
shall terminate as provided in the Plan.
11.2 Subject to the terms and conditions of Employee Stock Option Plan
(the "Bitwise Plan") of Bitwise Designs, Inc., and the terms and conditions set
forth in the Stock Option Certificate which are incorporated herein by
reference, Employee is hereby granted options to purchase 200,000 shares of the
Common Stock of Bitwise Designs, Inc., which shall vest in equal amounts over a
four-year period commencing on the date hereof. The exercise price of the option
shall be the market price of the Common Stock on the date hereof as determined
by the Bitwise Plan and shall contain such other terms and conditions as set
forth in the stock option agreement. The foregoing options shall be qualified as
incentive stock options to the maximum as allowed by law. The Options provided
for herein are not transferable by Employee and shall be exercised
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only by Employee, or by his legal representative or executor, as provided in the
Plan. Such Option shall terminate as provided in the Plan.
ARTICLE XII
ARBITRATION AND INDEMNIFICATION
12.1 Any dispute arising out of the interpretation, application, and/or
performance of this Agreement with the sole exception of any claim, breach, or
violation arising under Articles V or VI hereof shall be settled through final
and binding arbitration before a single arbitrator in the State of New York in
accordance with the Rules of the American Arbitration Association. The
arbitrator shall be selected by the Association and shall be an attorney-at-law
experienced in the field of corporate law. Any judgment upon any arbitration
award may be entered in any court, federal or state, having competent
jurisdiction of the parties.
12.2 The Company hereby agrees to indemnify, defend, and hold harmless
Employee for any and all claims arising from or related to his employment by the
Company at any time asserted, at any place asserted, and to the fullest extent
permitted by law. The Company shall maintain such insurance as is necessary and
reasonable to protect Employee from any and all claims arising from or in
connection with his employment by the Company, provided such insurance can be
obtained without unreasonable effort and expense.
ARTICLE XIII
SEVERABILITY
If any provision of this Agreement shall be held invalid and
unenforceable, the remainder of this Agreement shall remain in full force and
effect. If any provision is held invalid or
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unenforceable with respect to particular circumstances, it shall remain in full
force and effect in all other circumstances.
ARTICLE XIV
NOTICE
All notices required to be given under the terms of this Agreement
shall be in writing and shall be deemed to have been duly given only if
delivered to the addressee in person, with written acknowledgment received, or
mailed by certified mail, return receipt requested, as follows:
IF TO THE COMPANY: AUTHENTIDATE.COM, INC.
2165 Technology Drive
Schenectady, NY 12308
IF TO EMPLOYEE: ROBERT VAN NAARDEN
514 Long Lane
Huntingdon Valley, PA 19006
or to any such other address as the party to receive the notice shall advise by
due notice given in accordance with this paragraph. Notice shall be effective
three (3) days after delivery or mailing.
ARTICLE XV
BENEFIT
This Agreement shall inure to, and shall be binding upon, the parties
hereto, the successors and assigns of the Company, and the heirs and personal
representatives of Employee.
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ARTICLE XVI
WAIVER
The waiver by either party of any breach or violation of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of construction and validity.
ARTICLE XVII
GOVERNING LAW
This Agreement has been negotiated and executed in the State of New
York shall govern its construction and validity.
ARTICLE XVIII
JURISDICTION
Any or all actions or proceedings which may be brought by the Company
or Employee under this Agreement shall be brought in courts having a situs
within the State of New York, and Employee and the Company each hereby consent
to the jurisdiction of any local, state, or federal court located within the
State of New York.
ARTICLE XIX
ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties
hereto. No change, addition, or amendment shall be made hereto, except by
written agreement signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
affixed their hands and seals the day and year first above written.
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(Corporate Seal) AUTHENTIDATE.COM, INC.
By:___________________________________
Name:
Title:
______________________________________
ROBERT VAN NAARDEN
Employee
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