EMPLOYMENT AGREEMENT
AGREEMENT, made as of the 19th day of December, 1997, by and among Global
DirectMail Corp (the "Company" or "Global") and Xxxxxx X. Xxxxxxxxxx (the
"Employee").
RECITALS
The Company wishes to employ the Employee upon the terms and conditions set
forth in this Agreement.
The Employee is willing to make his services available to the Company on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, it is mutually agreed as follows:
1. EMPLOYMENT.
(a) TITLE. The Company hereby agrees to employ the Employee, as Senior Vice
President and Chief Financial Officer of the Company, and the Employee hereby
accepts such employment, effective on the date hereof, on the terms and
conditions set forth herein. In addition to such other duties as may be
determined by the Board of Directors of the Company, consistent with the duties
stated herein, the Employee shall have general responsibility for managing the
financial affairs of the Company, subject to the authority and direction of the
Chief Executive Officer and the Board of Directors. The Employee shall perform
his duties primarily at the Company's offices located in Port Washington, New
York subject to travel and other duties outside of such location consistent with
the Company's business as the Board of Directors shall reasonably determine.
(b) TERM. The term of employment of the Employee by the Company under this
Agreement shall commence on January 5, 1998 and shall continue for a period of
two (2) years (the initial "Employment Period"), unless earlier terminated as
provided in Section 4 hereof. This agreement shall thereafter continue from year
to year unless terminated by either party by written notice to the other party
at least ninety days prior to the end of the then current yearly Employment
Period.
(c) DUTIES. In performing his duties. the Employee shall report to the
Chief Executive Officer and Board of Directors and shall be subject to the
direction of the Chief Executive Officer and Board of Directors of the Company.
The Employee shall devote his full working time. attention and skill to the
business and affairs of the Company and shall use his best efforts to advance
the best interests of the Company.
2. COMPENSATION.
(a) BASE SALARY. For the performance of all duties, responsibilities and
services by the Employee hereunder during the Employment Period, the Company
shall pay to the Employee, and the Employee agrees to accept, a base salary (the
"Base Salary' ) at an annual rate of Three Hundred and Ten Thousand Dollars
($310,000), payable in accordance with the Company's normal payroll practices.
In addition, Employee shall be entitled to receive a bonus during the first year
of the Employment Period in an amount up to Seventy Five Thousand Dollars
($75,000) (the "Bonus") contingent upon the Company achieving certain
performance targets for each year, as mutually agreed upon by the Employee and
the Board of Directors. The Bonus, if earned shall be paid by the Company to
Employee within 75 days following the end of each calendar year during the
Employment Period. The Bonus for the second year of the Employment Period shall
be in an amount and subject to such terms as agreed between the Company and the
Employee.
(b) PARTICIPATION IN BENEFIT PLANS. The Employee shall be entitled to
participate in and receive benefits under all medical plans or other employee
insurance or benefit plans and arrangements that are made available to executive
employees of the Company and on the terms that such plans, insurance and
arrangements are made available to executive employees of the Company. to the
extent Employee is eligible to participate in such plans. To the extent that any
such plan or arrangement generally permits the participation or coverage of
dependents of the employees of the Company, the Employee's dependents may
participate in or be covered under such plan or program. Notwithstanding the
foregoing. the Employee's coverage under the Company's medical and dental plans
shall become effective immediately upon the date hereof.
(c) EXPENSES. During the Employment Period, the Employee shall be entitled
to receive reimbursement for all ordinary and necessary business expenses
reasonably incurred by him in accordance with industry custom in performing
services hereunder, provided that the Employee provides the Company with written
documentation, satisfactory to the Company, evidencing such expenses.
(d) VACATIONS AND HOLIDAYS. The Employee shall be entitled to four (4)
weeks of paid vacation in each twelve (12) month period. At no time. however,
shall Employee take more than two (2) weeks of vacation consecutively. The
Employee shall have the holidays and sick days as determined by the Company's
policies in effect on the date hereof and as amended.
(e) OPTIONS. As soon as practicable after the date hereof, the Company
shall grant to the Employee an option to purchase 75,000 shares of the Company's
common stock exercisable at an exercise price per share equal to the market
value on the date of grant in accordance with the Company's standard stock
option agreement for executive employees as set forth in the Company's 1995 Long
Term Stock Incentive Plan provided, however, that such option shall vest over a
period of five years beginning one year from the date of grant at the rate of
20% per year.
3. TERMINATION
(a) DEATH. The Employee's employment hereunder shall terminate upon his
death.
(b) TERMINATION RESULTING FROM DISABILITY. If the Employee becomes disabled
during his employment hereunder so that he is unable substantially to perform
his services by regularly attending on a daily basis to his duties hereunder (i)
for a period of three (3) consecutive months, or (ii) for an aggregate of ninety
(90) days within any period of six consecutive months, then this Agreement may
be terminated by the Board of Directors within ten (10) days after the
expiration of the applicable time period, by providing Employee with written
notice thereof.
(c) CAUSE. The Company may terminate the Employee's employment hereunder
for "Cause." For the purposes of this Agreement, the Company shall have "Cause"
to terminate the Employee's employment hereunder upon (i) the continued failure
by the Employee, for a period of three days after receipt of notice to comply
with any policies of the Company or any directions of the Board of Directors
consistent with the Employee's duties hereunder (including the Employee's
responsibility to devote his full working time and attention to the business of
the Company), other than any such failure resulting from the Employee's
incapacity due to disability, or (ii) the conviction of the Employee of a felony
(or a plea of nolo contendere with respect thereto) or other conviction or
judgment against the Employee involving the Employee's dishonest or illegal
actions, (iii) the Employee's gross negligence or willful misconduct or breach
of any of the material terms or conditions of this Agreement coupled, in the
case of such breach, with the failure to cure the same within three days after
the receipt of notice thereof, (iv) Employee engaging in an act of theft, fraud
or dishonesty, involving the Company, or (v) the Employee making any false,
disparaging or malicious statement, oral or written, about the Company or its
subsidiaries (collectively the "Global Companies") or any director, officer or
employee of the of the Global Companies which is injurious to the business or
operations of any of the Global Companies, or which may in any material respect
interfere with the goodwill of any of the Global Companies or its relations with
customers or suppliers.
(d) VOLUNTARY RESIGNATION. The Employee may terminate his employment by
providing the Company with ninety (90) days prior written notice.
(e) WITHOUT CAUSE. The Company may terminate the Employee without "Cause"
at any time prior to the expiration of the Employment Period upon three months
prior written notice.
(f) NOTICE OF TERMINATION. If the Employee's employment hereunder is
terminated pursuant to Section 3(b). 3(c) or 3(e) hereof, the Company shall give
the Employee written notice of termination (the "Notice of Termination"). Any
Notice of Termination delivered by the Company pursuant to Section 3(b) or 3(c)
hereof shall indicate the applicable termination provision in this Agreement
relied upon to provide a basis for termination of the Employee's employment. In
the case of any termination pursuant to Section 3(c), the Notice of Termination
shall also set forth the factual basis for the termination.
(g) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Employee's employment is terminated by his death, the date of his death, (ii) if
the Employee's employment is terminated pursuant to Section 3(b) hereof, ten (
10) days after the date the Notice of Termination is given, (iii) if the
Employee's employment is terminated pursuant to Section 3(c) hereof, immediately
following the giving of the Notice of Termination; (iv) if the Employee
voluntarily resigns pursuant to Section 3(d) hereof, on the day following the
ninety (90) day period set forth therein or such earlier day following the
Company's receipt of the notice set forth therein as the Company shall determine
in its sole discretion, and (v) if the Employee's employment is terminated
pursuant to Section 3(e) hereof, three (3) months following the giving of the
Notice of Termination
4. COMPENSATION UPON TERMINATION
(a) DISABILITY. If the Employee's employment is terminated pursuant to
Section 3(b) as a result of the Employee's Disability, the Company shall pay to
the Employee the applicable portion of his Base Salary due through the Date of
Termination at the Rate in effect at the time Notice of Termination is given,
and following such payment have no further obligation (relating to the
Employee's status as an employee) to the Employee under this Agreement:
provided, however, that the foregoing shall have no effect upon any benefits due
the Employee under any disability or medical plan or other employee benefit plan
or arrangement of the Company then in effect and provided further that any stock
option held by the Employee shall continue to be exercisable in accordance with
its terms. In addition, the Company shall pay to the Employee that portion of
the Bonus. on the date set forth herein, that is equal to the number of days the
Employee was employed by the Company, in the year that such Date of Termination
occurred, divided by 365 and multiplying the result thereof by the Bonus
otherwise payable through the end of the year in which such Date of Termination
occurred, as if such termination had not occurred.
(b) DEATH. If the Employee's employment shall be terminated by reason of
his death, the Company shall pay to such person as the Employee shall have
previously designated, in a notice filed with the Company, or, if no such person
shall have been designated, to his estate, the applicable portion of his Base
Salary due through the applicable Date of Termination at the rate in effect on
the date of death and, following such payments, the Company shall have no
further obligations (relating to the Employee's status as an employee) to such
designated person or the Employee's estate, as the case may be, under this
Agreement provided, however, that the foregoing shall have no effect upon any
benefits due the Employee under any disability or medical plan or other employee
benefit plan or arrangement of the Company then in effect and provided further
that any stock option held by the Employee shall continue to be exercisable in
accordance with its terms. In addition, the Company shall pay to such designated
person or the estate that portion of the Bonus. on the date set forth herein,
that is equal to the number of days the Employee was employed by the Company, in
the year that such Date of Termination occurred, divided by 365 and multiplying
the result thereof by the Bonus otherwise payable through the end of the year in
which such Date of Termination occurred, as if such termination had not
occurred.
(c) CAUSE. If the Employee's employment shall be terminated pursuant to
Section 3(c), the Company shall pay the Employee the applicable portion of his
Base Salary due through the applicable Date of Termination at the rate in effect
at the time Notice of Termination is given and, following such payments, the
Company shall have no further obligation (relating to the Employee's status as
an employee) to the Employee under this Agreement provided, however, that the
foregoing shall have no effect upon any benefits due the Employee under any
disability or medical plan or other employee benefit plan or arrangement of the
Company then in effect and provided further that any stock option held by the
Employee shall continue to be exercisable in accordance with its terms.
(d) VOLUNTARY RESIGNATION. If the Employee voluntarily resigns pursuant to
Section 3(d), the Company shall pay Employee the applicable portion of his Base
Salary due through the applicable Date of Termination at the rate in effect at
the time notice is given to the Company and, following such payments, the
Company shall have no further obligation relating to the Employee's status as an
employee to the Employee under this Agreement provided, however, that the
foregoing shall have no effect upon any benefits due the Employee under any
disability or medical plan or other employee benefit plan or arrangement of the
Company then in effect and provided further that any stock option held by the
Employee shall continue to be exercisable in accordance visit its terms.
(e) WITHOUT CAUSE. If the Employee's employment shall be terminated without
"Cause" pursuant to Section 3(e), the Company shall pay the Employee, as
severance pay, the applicable portion of his Base Salary due through six (6)
months (the "Severance Period") following the applicable Date of Termination at
the rate in effect at the time Notice of Termination is given and, following
such payments, the Company shall have no further obligation (relating to the
Employee's status as an employee) to the Employee under this Agreement provided,
however, that the foregoing shall have no effect upon any benefits due the
Employee under any disabilities or medical plan or other employee benefit plan
or arrangement of the Company then in effect and provided further that any stock
option held by the Employee shall continue to be exercisable in accordance with
its terms. In addition, the Company shall pay to the Employee that portion of
the Bonus, on the date set forth herein, that is equal to the sum of the number
of days the Employee was employed by the Company and the number of days
constituting the Severance Period, in the year that such Date of Termination
occurred, divided by 365 and multiplying the result thereof by the Bonus
otherwise payable through the end of the year in which such Date of Termination
occurred, as if such termination had not occurred.
(f) ACCRUED VACATION UPON TERMINATION. Upon termination the Employee shall
be paid for all accrued vacation up to a maximum of four (4) weeks based on the
Base Salary then in effect provided that the Employee shall have been afforded
the opportunity to take the available vacation days during each twelve month
period.
5. SUCCESSORS. This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal or
legal representatives. executors administrators, successors, heirs, distributees
and legatees. This Agreement and all rights and obligations of the Company
hereunder shall inure and be binding on any person, firm or corporation which
shall become the owner of substantially all of the assets or capital stock of
the Company or which shall succeed to the business of the Company or with which
the Company may be consolidated or merged; provided, however that in the absence
of the express written agreement of the Employee, the Company shall not be
released from its obligations to Employee in the event of any such transaction.
and the Company shall be deemed to guaranty the obligations of such person, firm
or corporation to the Employee under this Agreement in the event of such
transaction.
6. CONFIDENTIAL INFORMATION; NON-COMPETITION; INVENTIONS.
(a) CONFIDENTIAL INFORMATION. From and after the date hereof, except for
the carrying out of Employee's duties under this Agreement and except as may be
required by law, the Employee shall not, directly or indirectly, communicate or
make available to anyone other than the Global Companies and their respective
directors, officers, authorized agents or advisors, any trade secret or other
proprietary or confidential information with respect to the Global Companies,
including, but not limited to, any of the products, services, designs or styles.
inventions improvements, know-how, processes, customers, suppliers, methods of
operation, marketing or distribution, systems, procedures, policies or methods
of the Global Companies that constitute trade secrets or other proprietary or
confidential information; provided, however, that "confidential information"
shall not include any information: (I) known generally to the public (other than
as a result of unauthorized disclosure by the Employee), or (II) that is readily
ascertainable by lawful means. Upon request by the Company, the Employee agrees
to deliver promptly to the Company upon termination of his services for the
Company, or at any time thereafter as the Company may request, all Company
memoranda, notes, records, reports, manuals, drawings, designs, computer files
in any media and other documents (and all copies thereof) containing such
confidential information and all property of the Company or any other of the
Global Companies, which he may then possess or have under his control.
(b) COVENANT NOT TO COMPETE. During the period that the Employee is
employed by the Company pursuant to this Agreement and for a period of one ( 1 )
year after the termination of this Agreement pursuant to Section 3(c), 3(d) or
3(e) (the Non-Compete Period"), the Employee hereby covenants and agrees with
the Company that, unless acting as an officer, employee, consultant or
stockholder of the Company, the Employee will not, directly or indirectly,
anywhere in the United States (the "Territory"), (i) compete, directly or
indirectly, as an officer, director, shareholder, partner, investor, agent,
employee or otherwise, with the Company in the business or activities in which
the Company is now engaged; (ii) directly or indirectly, on his own behalf or on
behalf of or as an officer, director, shareholder, partner. investor, agent,
employee or otherwise, of any other person or entity, contact or approach any
person or business, wherever located, for the purpose of competing with the
Company's business, in the Territory; (iii) participate as an officer, director,
shareholder, partner, investor, agent, employee or otherwise, or have any other
direct or indirect financial interest in, any enterprise which engages in the
Company's business in the Territory; provided, however, that the Employee may
own up to two (2%) percent of the capital stock of any corporation (other than
the capital stock of the Company as to which this clause (iii) shall not apply),
required to file reports pursuant to the Securities Exchange Act of 1934; or
(iv) directly or indirectly, hire, solicit or encourage to leave the employment
of the Company, any employee or agent of the Company.
(c) INVENTIONS. The Employee agrees that all processes, technologies and
inventions including new contributions, improvements, formats, packages,
programs. systems, machines, compositions of matter manufactured, developments,
applications and discoveries which are related in any manner to the business
(commercial or experimental of the Company during the term hereof (collectively,
"New Developments"), whether patentable or not, conceived, developed, invented
or made by him or jointly with others during the period of his employment with
the Company, shall belong to the Company and the Company shall be the sole owner
of all the products and proceeds of the Employee's services, including
intellectual or literary property in any form. The Employee shall further: (a)
promptly disclose such New Developments to the Company; (b) assign to the
Company, without additional compensation, all patent or other rights to such New
Developments for the United States and foreign countries; (c) sign all papers
necessary to carry out the foregoing; and (d) give testimony in support of his
inventorship, all at the sole cost and expense of the Company.
(d) REMEDIES. The Employee expressly agrees that upon any breach or
violation of the provisions of this Section 6, the Company shall be entitled, as
a matter of right, in addition to any other rights or remedies it may have, to
temporary and/or permanent injunctive relief in any court of competent
jurisdiction and such damages as are provided at law or in equity. The Employee
hereby acknowledges and agrees that the covenants contained in this Section 7
are reasonable and fully necessary for the protection of the legitimate
interests of the Company and, at the same time are neither harsh nor oppressive
to the rights or interests of the Employee nor will such restrictions prevent
the Employee from earning a livelihood. In the event that any court of competent
jurisdiction determines that the restrictions provided for in this Section 6 are
unreasonable or otherwise unenforceable, the invalidity or unenforceability of
any of such restrictions shall not affect any of the remaining provisions of
this Agreement (including, without limitation, the remaining provisions of this
Section 6 not found to be unreasonable or otherwise unenforceable) and a court
or other trier of fact may make modifications necessary to correct any
unreasonable or unenforceable term and enforce the Companies' intent to the
maximum extenal. The existence of any claim or cause of action against the
Company or its affiliates, whether predicated upon this Agreement or otherwise,
shall not constitute a defense to the enforcement of the restrictions contained
in this Section 6.
7. WITHHOLDING. Anything in this Agreement to the contrary notwithstanding,
all payments required to be made by the Company hereunder to the Employee or his
estate or beneficiaries shall be subject to the withholding of such amounts
relating to taxes as the Company may reasonably determine it should withhold
pursuant to any applicable law or regulation. In lieu of withholding such
amounts, in whole or in part, the Company may. in its sole discretion. accept
other provisions for payment of taxes and withholding as required by law,
provided it is satisfied that all requirements of law affecting its
responsibilities to withhold have been satisfied.
8. NOTICES. Any notice, request, instruction or other document to be given
hereunder by any party hereto to any other party shall be in writing and
delivered personally, sent by registered or certified mail, postage prepaid.
If to the Employee:
Xxxxxx X. Xxxxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
If to the Company:
Xxxxxxx Xxxxx, CEO
Global DirectMail Corp
00 Xxxxxx Xxxx Xxxxx
Xxxx Xxxxxxxxxx, X.X. 00000
or at such other address for a party as shall be specified by like notice. Any
notice which is delivered personally in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party. Any notice which is addressed and mailed in the manner
herein provided shall be conclusively presumed to have been given to the party
to whom it is addressed at the close of business, local time of the recipient
forty-eight hours after the day it is so placed in the mail.
9. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, written or oral, between them as to such subject matter. This
Agreement may not be amended, nor may any provision hereof be modified or
waived, except by an instrument in writing duly signed by the party to be
charged.
10. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York, without regard to the conflicts of law rules thereof.
11. VALIDITY. The invalidity or unenforceability of any provision or
provisions to this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement. which shall remain in full force and
effect.
12. COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts. each of which shall be deemed to be an original but all of which
together will constitute one and the same agreement.
13. WAIVERS. No waiver by either party of any breach or non-performance of
any provision or obligation of this Agreement shall be deemed to be a waiver of
any preceding or succeeding breach of the same or any other provision of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
Global DirectMail Corp
By: /S/ XXXXXXX XXXXX
Xxxxxxx Xxxxx, Chairman
and CEO
/S/XXXXXX X. XXXXXXXXXX
Xxxxxx X. Xxxxxxxxxx
