Employment Agreement - ZixIt Corp. and David P. Cook
Execution Version
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of December 26, 2000, by and between ZixIt Corporation, a Texas
corporation (the "Company"), and David P. Cook ("Employee").
RECITALS
A. The Company desires to provide for the continued employment of
Employee.
B. Employee is willing to continue to serve the Company on the terms
and conditions provided in this Agreement.
THEREFORE, in consideration of the covenants and agreements contained
in this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
agree as follows:
1. Employment. The Company shall employ Employee, and Employee accepts
such employment, on the terms and conditions set forth in this Agreement.
2. Term. Subject to Section 8 and the other terms and conditions in
this Agreement, the employment of Employee by ---- the Company as provided in
Section 1 will be for a term commencing the date hereof and expiring the close
of business on December 31, 2003.
3. Position and Duties. Employee shall serve in such executive officer
positions with the Company with such duties as may be assigned to him from
time-to-time by the Board of Directors (the "Board") of the Company; provided,
however, Employee shall not be assigned any duty or position which will
necessitate a change in the location of his home (presently in Dallas, Texas).
Employee is currently the Company's President and Chief Executive Officer.
Employee shall devote substantially all his working time and efforts to the
business and affairs of the Company. Notwithstanding the foregoing, Employee may
spend reasonable amounts of time on personal, civic, and charitable activities
that do not interfere with the performance of his duties and responsibilities to
the Company. In addition, Employee may, subject to prior approval by the Board,
spend reasonable amounts of time serving on boards of directors for other
companies, provided that such service does not constitute or create a conflict
of interest.
4. Compensation. As compensation for Employee's employment under this
Agreement, beginning January 1, 2001, during the term of Employee's employment
under this Agreement the Company agrees to pay Employee a salary of $41,666.67
per month, payable
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semi-monthly. As additional compensation, the Company is also granting to
Employee an option to purchase 500,000 shares of the common stock of the
Company, at an option exercise price of $6.0625 per share; with vesting to occur
pro-rata and annually over a three year period, subject to accelerated vesting
under the circumstances specified in the option agreement (the "Option
Agreement:") being entered into between the parties contemporaneous with this
Agreement.
5. Expenses and Services. During the term of Employee's employment
under this Agreement, Employee shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by Employee by reason of his employment,
provided that such expenses are incurred and accounted for in accordance with
reasonable policies and procedures established by the Company and in effect when
the expenses are incurred. The Company shall furnish Employee with office space,
secretarial assistance, office supplies, office equipment, and such other
facilities and services as are suitable to Employee's position and adequate for
the performance of his duties.
6. Confidential Information. Employee recognizes and acknowledges that
Employee will have access to confidential information of the Company and its
Affiliates (as defined in the Option Agreement), including, without limitation,
customer information, lists of suppliers and costs, information concerning the
business and operations of the Company and its Affiliates, and proprietary data,
information, concepts and ideas (whether or not patentable or copyrightable)
relating to the business of the Company and its Affiliates, as applicable.
Employee agrees not to disclose such confidential information, except as may be
necessary in the performance of Employee's duties, to any person, nor use such
confidential information in any way, unless Employee has received the written
consent of the Company or unless such confidential information becomes public
knowledge through no wrongful act of Employee. Upon termination of Employee's
employment for any reason, Employee shall promptly deliver to the Company all
drawings, manuals, letters, notebooks, customer lists, documents, records,
equipment, files, computer disks or tapes, reports or any other materials
relating to the business of the Company and its Affiliates, and all copies, that
are in Employee's possession or under Employee's control. Confidential
Information shall not include information that constitutes general skills,
knowledge, and experience acquired by Employee before and/or during his
employment with the Company. The parties agree that the ownership of
intellectual property that is created, conceived, developed, and the like by
Employee during the term of Employee's employment with the Company will be
governed by applicable law. Employee will render to the Company such assistance
as may be reasonably necessary to evidence and protect the ownership of its
intellectual property. If such assistance is required after Employee's
separation from employment with the Company, reasonable compensation will be
paid to Employee for such assistance. The term "Affiliate" shall have the
meaning given it in the Option Agreement.
7. Rights under Certain Plans. During the term of Employee's employment
under this Agreement, Employee will be entitled to participate in the insurance
and employee benefit plans and programs maintained by the Company and its
Affiliates applicable to officer employees on the same basis as other officer
employees of the Company or its Affiliates, as applicable, subject only to the
possible substitution by or on behalf of the Company or its Affiliates of other
plans or programs providing substantially similar or increased benefits for
Employee. Employee
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will also be entitled to reasonable vacation time (not to exceed six weeks),
with no reduction in compensation, in keeping with Employee's duties and
responsibilities to the Company.
8. Early Termination. Either Employee or Company may terminate
Employee's employment under this Agreement with or without cause upon ten days'
written notice to the other.
9. Certain Effects of Termination. At any such time when Employee shall
no longer be in the employ of the Company, any successor in interest to the
Company or any of their respective Affiliates, Employee shall, within the period
prescribed by applicable law, subject to the terms and conditions of any
applicable insurance or employee benefit plan, receive payments in satisfaction
of any and all other wages, benefits, pensions, or other remunerations which
shall then be payable to, or vested on behalf of, Employee.
10. Non-competition. Employee agrees and covenants that Employee will
not, during the term hereof and for a period of 18 months after Employee ceases
to be employed by the Company:
(A) compete, directly or indirectly, with any business or
businesses conducted by the Company during the term hereof. For
purposes of this Agreement, "Competition" shall include, without
limitation, engaging in any business, whether as proprietor, partner,
joint venturer, employee, agent, officer, or holder of more than five
percent (5%) of any class of equity ownership of a business enterprise,
that is competitive with any business or businesses conducted by the
Company for the period or at the time the employee ceases employment.
This non-competition provision is not intended to preclude Employee
from participating in computer, software, or Internet-based businesses
generally, provided that such participation is not otherwise in
violation of this provision.
(B) solicit to do, or do, competing business with any
then-current customer of the Company or any person that has been a
customer within the six months preceding the date of Employee's
separation from employment with the Company.
(C) solicit to hire, or hire, any then-current key employee of
the Company, except by way of general advertising.
Although the Company and Employee have, in good faith, used their best
efforts to make the non-competition covenants reasonable in all pertinent
respects, and it is not anticipated, nor is it intended, by either party to this
Agreement that any arbitrator or court will find it necessary to reform any
non-competition covenant to make it reasonable in all pertinent respects, the
Company and Employee understand and agree that if an arbitrator or court
determines it necessary to reform any non-competition covenant in order to make
it reasonable in all pertinent respects, damages, if any, for a breach of the
non-competition covenant, as so reformed, will be deemed to accrue to the
Company as and from the date of such a breach only and so far as the damages for
such breach related to an action which accrued within the scope of the
non-competition covenant as so reformed.
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11. Waiver. No waiver of any provision of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a waiver of any continuing or
succeeding breach of such provision, a waiver of the provision itself, or a
waiver of any right under this Agreement. No waiver shall be binding unless
executed in writing by the party making the waiver.
12. Limitation of Rights. Nothing in this Agreement, except as
specifically stated in this Agreement, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
parties to it and their respective permitted successors and assigns and other
legal representatives, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over or against any party to this Agreement.
13. Remedies. Employee hereby agrees that a violation of the provisions
of Section 6 or 10 hereof would cause irreparable injury to the Company for
which it would have no adequate remedy at law. Accordingly, in the event of any
such violation, the Company shall be entitled to preliminary and other
injunctive relief. Any such injunctive relief shall be in addition to any other
remedies to which the Company may be entitled at law or in equity, or otherwise.
14. Notice. Any consent, notice, demand, or other communication
regarding any payment required or permitted hereby must be in writing to be
effective and shall be deemed to have been received on the date delivered, if
personally delivered, or the date received, if delivered otherwise, addressed to
the applicable party at the address for such party set forth below or at such
other address as such party may designate by like notice:
The Company:
ZixIt Corporation
2711 North Haskell Avenue
Suite 2850, LB 36
Dallas, Texas 75204-2911, Attn: General Counsel
Employee:
David P. Cook
2711 North Haskell Avenue
Suite 2850, LB 36
Dallas, Texas 75204-2911
15. Inconsistent Obligations. Employee represents and warrants that
Employee has not previously assumed any obligations inconsistent with those of
this Agreement.
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16. Entirety and Amendments. This Agreement and the Option Agreement
embody the entire agreement between the parties and supersede all prior
agreements and understandings relating to the subject matter hereof, including
the Employment Agreement, effective as of April 29, 1998, by and between Amtech
Corporation d/b/a AMTC Corporation, a Texas corporation (the "Company"), and
Employee, and may be amended only by an instrument in writing executed by the
parties.
17. Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the parties to this Agreement and any successors in
interest to the Company following a Change of Control (as defined in the Option
Agreement), but otherwise, neither this Agreement nor any rights or obligations
under this Agreement may be assigned by Employee (except in the case of the
death of Employee) or (b) by the Company.
18. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Texas (excluding its
conflict of laws rules) and applicable federal law.
19. Cumulative Remedies. No remedy in this Agreement conferred upon any
party is intended to be exclusive of any other benefit or remedy, and each and
every such remedy shall be cumulative and shall be in addition to every other
benefit or remedy given under this Agreement or now or hereafter existing at law
or in equity or by statute or otherwise. No single or partial exercise by any
party of any right, power, or remedy under this Agreement shall preclude any
other or further exercise thereof.
20. Disputes. During the pendency of any disputes under this Agreement
and unless specifically enjoined by a court of competent jurisdiction or an
arbitrator, the Company will continue to make all payments to Employee and
provide all benefits to Employee that are described in this Agreement until such
dispute is finally resolved without right of appeal.
21. Multiple Counterparts. This Agreement may be executed in a number
of identical counterparts, each of which constitute collectively, one agreement;
but in making proof of this Agreement, it shall not be necessary to produce or
account for more than one counterpart.
23. Descriptive Headings. The headings, captions, and arrangements used
in this Agreement are for convenience only and shall not be deemed to limit,
amplify, or modify the terms of this Agreement, nor affect the meaning hereof.
23. Arbitration. The Company and the Employee agree to the resolution
by binding arbitration of all claims, demands, causes of action, disputes,
controversies, or other matters in question ("Claims") arising out of this
Agreement or the Employee's employment (or its termination), whether sounding in
contract, tort, or otherwise and whether provided by statute or common law, that
the Company may have against the Employee or that the Employee may have against
the Company or any Affiliate or any benefit plans of the Company or any
Affiliate or any fiduciaries, administrators, and affiliates of any of such
benefit plans, or their respective officers, directors, employees, or agents in
their capacity as such. This agreement to arbitrate shall not
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limit the Company's or the Employee's right to seek equitable relief, including,
but not limited to, injunctive relief and specific performance in a court of
competent jurisdiction. Claims covered by this agreement to arbitrate include,
but are not limited to, claims by the Employee for breach of this Agreement,
wrongful termination, discrimination (based on age, race, sex, disability,
national origin, or other factor), and retaliation. The only Claims otherwise
within the definition of Claims that are not covered by this Section 23 are: (1)
any administrative actions that the Employee is permitted to pursue under
applicable law that are not precluded by virtue of the Employee having entered
into this Section 23; (2) any Claim by the Employee for workers' compensation
benefits or unemployment compensation benefits; or (3) any Claim by the Employee
for benefits under a Company or Affiliate pension or benefit plan that provides
its own non-judicial dispute resolution procedure.
Claims shall be submitted to arbitration and finally settled under the
Employment Dispute Resolution Rules of the American Arbitration Association
("AAA") in effect at the time the written notice of the Claim is received. An
arbitrator shall be selected in the manner provided for in the Employment
Dispute Resolution Rules of the AAA, except that the parties agree that the
arbitrator shall be an attorney licensed in the state where the arbitration is
being conducted. If any party refuses to honor its obligations under this
agreement to arbitrate, the other party may compel arbitration in either federal
or state court. The arbitrator will have exclusive authority to resolve any
dispute relating to the interpretation, applicability, enforceability, or
formation of this agreement to arbitrate, including, but not limited to, any
claim that all or part of this Agreement is void or voidable and any claim that
an issue is not subject to arbitration. The arbitration will be held in Dallas
County, Texas. The arbitrator shall issue a written decision that identifies the
factual findings and principles of law upon which any award is based. The award
and findings of such arbitrator shall be conclusive and binding upon the
parties. Any and all of the arbitrator's orders, decisions, and awards may be
enforceable in, and judgment upon any award rendered by the arbitrator may be
confirmed and entered by, any federal or state court having jurisdiction. The
Company shall pay all costs and expenses of its advisors and expert witnesses,
and Employee shall pay all costs and expenses of his advisors and expert
witnesses. The costs and expenses of the arbitration proceedings will be paid by
the non-prevailing party or as the arbitrator otherwise determines. Discovery
will be permitted to the extent directed by the arbitrator. EMPLOYEE UNDERSTANDS
THAT BY AGREEING TO SUBMIT CLAIMS TO ARBITRATION, HE GIVES UP THE RIGHT TO SEEK
A TRIAL BY COURT OR JURY AND THE RIGHT TO APPEAL A COURT OR JURY DECISION AND
FORGOES ANY AND ALL RELATED RIGHTS HE MAY OTHERWISE HAVE UNDER FEDERAL AND STATE
LAWS.
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Signatures
To evidence the binding effect of the covenants and agreements
described above, the parties to this Agreement have executed this Agreement on
the dates set forth below, to be effective as of the date first above written.
THE COMPANY:
ZIXIT CORPORATION
/s/ Ronald A. Woessner
------------------------------------------
Ronald A. Woessner
Senior Vice President
Date: 1/12/01
-------------------------------------
EMPLOYEE:
/s/ David P. Cook
------------------------------------------
David P. Cook
Date: 1/15/2001
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