EMPLOYMENT AGREEMENT
AGREEMENT made as of June 29, 1998 between THE PRIMA GROUP
INTERNATIONAL, INC. ("Employer") and GIOVANNI CIAMARONI ("Employee").
WITNESSETH:
WHEREAS, the parties hereto desire to provide for the Employee's
employment by Employer.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. Employment.
Employer agrees to employ the Employee and the Employee agrees to enter
into the employ of Employer on the terms and conditions hereafter set forth.
2. Capacity and Duties.
The Employee shall be employed as Vice President/Business Development
of Employer, responsible for business development, strategic contractual
relations and mergers and acquisitions, and shall perform such other duties and
have such other responsibilities as designated by the President of Employer and
the Bylaws of Employer. The Employee shall perform his responsibilities in
accordance with the direction and supervision of the President or the Board of
Directors of Employer, and he shall devote such time, skill, energies, business
judgment, knowledge and best efforts to the business of Employer and the
performance of such executive, administrative and operational duties on behalf
of Employer and its affiliates, appropriate to the offices he holds or shall
hold hereunder, as the President or the Board of Directors of Employer may
request. The requirement that the Employee devote his time to the business of
Employer shall not preclude him from undertaking other business and personal
activities that do not, singly or in the aggregate, require more than fifty
percent of his time devoted to business or materially impair his ability to
fulfill his responsibilities under this Agreement. Employer specifically
acknowledges that Employee will continue to provide consulting services on a
part-time basis and that, from time to time, this may create a conflict of
interest. Employee agrees to offer Employer the opportunity to take advantage of
any business opportunities which arise from Employee's consulting services.
3. Term.
The term of the Employee's employment hereunder shall be for the a
period of three (3) years, commencing on April 1, 1998. The term of employment
shall be automatically renewed for successive one-year terms, unless written
notice of non-renewal is given by either party not less than ninety (90) days
prior to the end of the initial three-year, or the then current one-year, term.
4. Compensation.
(a) Salary. Employer shall pay or cause to be paid to the Employee a
salary of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000) per year, payable in
equal semi-monthly installments (the "Base Salary"). The Base Salary shall be
increased each year on the anniversary of the effective date of this Agreement
in line with increases in the cost of living for the immediately preceding
twelve (12) months. However, in no event shall such increase be less than the
percentage increase in the "Consumer Price Index - United States Average for the
Urban Wage Earners and Clerical Workers - All Items," as published by the United
States Department of Labor (Bureau of Labor Statistics) for the immediately
preceding twelve (12) months. In addition, Base Salary shall be reviewed prior
to each anniversary date of this Agreement by the Board of Directors of
Employer. Fifty percent (50%) of such compensation to be automatically adjusted
for exchange rate fluctuations between the U.S. dollar and the Euro exceeding
3%.
(b) Non-Competition Payment. As consideration for the covenants of
Employee in section 9 for the initial term of this Agreement, Employer shall pay
to Employee, within five (5) business days of the consummation of Employer's
IPO, the sum of ONE HUNDRED EIGHTY THOUSAND DOLLARS ($180,000). The non-vested
portions of this payment shall be subject to forfeiture if Employee voluntarily
terminates this Agreement prior to the expiration of the initial term. One-third
of the payment will vest on the effectiveness of the term of this Agreement. The
remaining one-third portions of the payment will vest on the first and second
anniversaries of the effectiveness of this Agreement, respectively.
(c) Bonus. Upon the first to occur of the following events, Employer
shall deliver to Employee, at Employee's option, either (i) sixty thousand
shares of Employer's Common Stock together with an amount of cash necessary to
pay Employee's tax liability for the receipt of said shares, or (ii) the cash
value of sixty thousand shares of Employer's Common Stock valued at the IPO
together with an amount of cash necessary to pay Employee's tax liability for
the receipt of said payment:
(i) Nonrenewal of this Employment Agreement by Employer;
(ii) An increase of $20,000,000 in Employer's consolidated net
revenues over its consolidated net revenues for 1997, resulting from a
merger or other acquisition with another company based in the United
States; provided, that such measurement period shall be for a full
fiscal year ending after 1997.
5. Expenses. Employer shall reimburse Employee, to the extent not otherwise paid
for by Employer or one of its affiliates, for reasonable and necessary
out-of-pocket expenses, including,
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without limitation, entertainment, travel and similar expenses incurred by him
in performing the duties set forth in Section 2 hereof. Employee shall present
an itemized account of such expenses, supported by such documentation as is
required under the Internal Revenue Code of 1986, as amended, to support the
deductibility of such expenses for federal income tax purposes.
6. Benefits and Vacations.
(a) Stock Option Plan. Employer shall establish a Stock Incentive Plan
for key employees and directors of Employer and its subsidiaries in the form of
Exhibit "A". Upon the effective date of the IPO, Employee shall receive options
to acquire TWO HUNDRED THOUSAND (200,000) shares of Employer's Common Stock.
Options to purchase 100,000 shares of Employer's Common Stock shall be
exercisable on the first anniversary date of the IPO and shall have an exercise
price of 11502% of the public offering price of the IPO (the "Initial Options").
The options to purchase the remaining 100,000 shares of Employer's Common Stock
(the "Installment Options") shall be exercisable in three (3) installments of
30,000, 30,000 and 40,000 shares on the first, second and third anniversaries of
the effective date of the IPO, respectively. The exercise price for the
installments shall be 120%, 130%, and 140%, respectively of the public offering
price of the IPO. The options shall have a term of ten years (five years if
Employee is a ten percent (10%) shareholder and the option is an incentive stock
option as defined under Section 422 of the Internal Revenue Code) and shall
survive termination or expiration of this Agreement. If this Agreement is
terminated for cause as defined herein, then the Installment Options will be
exercisable for a period of six months after termination, but the Initial
Options shall remain exercisable during their full term. If Employee leaves the
employment by Employer for reasons other than termination for cause, then all
options shall remain exercisable during their full term.
(b) Insurance.
(i) Major Medical, Health and Dental. Employer
shall provide group coverage for Employee, and such dependents as
Employee shall select, with respect to major medical, health and dental
expenses. Employer shall pay one hundred percent (100%) of premiums
with respect to such coverage.
(ii) Disability. Employer shall provide group
disability, accidental death and dismemberment, and life insurance
coverage for Employee, with Employer paying one hundred percent (100%)
of the related premiums.
(iii) Additional Term Insurance. Employee shall be
provided additional term life insurance in the principal amount of
$1,000,000, payable to such beneficiaries as selected by Employee. At
the termination of this Agreement, Employee shall be given the right to
assume the policy and pay the premiums due thereunder.
(c) Automobile Allowance. Employee shall receive an automobile
allowance of $1,500 per month during the term of this Agreement.
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(d) Vacation. The Employee shall be entitled to six (6) weeks annual
paid vacation during each year of this Agreement. Employee shall also be
entitled to the same paid holidays, sick and personal time as are available to
all other employees in accordance with the policies of Employer.
(e) Withholding. The Employee acknowledges that certain payments
provided for herein are subject to withholding and other taxes.
7. Indemnification.
(a) Notwithstanding the termination of Employee's employment under
Section 8 of this Agreement, it is confirmed that, with respect to all periods
during which Employee shall be employed by Employer, (i) Employer shall
indemnify Employee in whatever capacity Employee is serving, including as a
director of Employer, and reimburse expenses to the fullest extent permitted by
the indemnification and reimbursement provisions of Employer's Certificate of
Incorporation and By-Laws in effect as of the date of this Agreement, provided
that such coverage is not prohibited under the provisions of the applicable
General Corporation Law; and (ii) Employer shall use its best efforts to
maintain in effect its Directors' and Officers' Indemnification Insurance
policies (under which Employee shall be deemed an "insured" to the fullest
extent provided in such policy) and to purchase substitute policies in form and
content substantially similar to those presently in force during all periods
under which Employee may remain liable under any applicable statute of
limitations. Upon request, Employer shall promptly provide Employee with copies
of all such policies and any notice of cancellation of them.
(b) In addition to the foregoing, as authorized by the Employer's
Certificate of Incorporation and By-Laws in effect as of the date of this
Agreement, the Employer further agrees, to the extent not prohibited by the
applicable General Corporation Law, to defend Employee by legal counsel
reasonably acceptable to Employee in any threatened or pending action, suit or
proceeding as to which Employee may be entitled to indemnification under this
Agreement. In this regard, payment in advance by the Employer of all expenses
incurred or to be incurred by Employee in defending or investigating each and
every such action, suit or proceeding which has been instituted and is pending
on the date of this Agreement or which shall subsequently be instituted is
authorized by the Board of Directors of the Employer, and Employee agrees to
repay such advanced amounts in the event it is ultimately determined that
Employee is not entitled to be indemnified by the Employer as authorized under
its Certificate of Incorporation and By-Laws, and the applicable General
Corporation Law. As regards any decision to advance expenses as to any action,
suit or proceeding not already referred to in this subparagraph, Employee will
be given the same consideration in the reaching of any such decision as shall be
given to any person who is a director or officer of Employer at the time of such
decision.
(c) Employer further agrees to notify Employee of all threatened or
pending actions, suits, or other proceedings by or against Employer to which
Employee is named a party, and to filed in connection with it, and shall
otherwise keep Employee reasonably informed of the status of such actions and
any offers of settlement.
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(d) Employee agrees to notify Employer of all threatened or pending
actions, suits, or other proceedings against Employee in any capacity as an
employee of Employer.
8. Termination.
Notwithstanding Section 3, the term of the Employee's employment
hereunder shall terminate on the earliest of the (i) termination date provided
for under Section 3 or (ii) under any of the paragraphs of this Section 8.
(a) Death. In the event of the Employee's death, the Employee's
employment shall terminate automatically, effective as of the date of death, and
Employer shall pay to his estate the Base Salary amount in effect for that year
for a period of one year after his death. In addition, Employer shall pay to
Employee's estate any other amounts that otherwise would have been paid to the
Employee pursuant to Section 4 for the year after his death.
(b) Disability. If the Employee, due to physical or mental illness,
shall be disabled to perform the essential functions of his employment
hereunder, with or without reasonable accommodation, (a "disability"), then
either the Employee or Employer may by notice terminate the Employee's
employment under this Agreement effective as of a date 30 days after the date
such notice is given. Employee shall continue to receive all compensation
payable under Section 4 for a period of six (6) months after the date such
notice is given; provided, however, that it shall be reduced by the amount of
any disability or similar benefits to which he is entitled, notwithstanding
anything contained elsewhere in this Agreement to the contrary.
(c) By Employer for Cause. The Employee's employment may be terminated
effective immediately by Employer for "cause" by notice of termination to the
Employee. "Cause" for such termination shall be limited to convictions of a
felony, malfeasance in office or a material breach by the Employee of the
covenants contained in this Agreement (as determined by a majority vote of the
Employers Board of Directors), which breach continues for 30 days following
receipt of written notice given by Employer's Board of Directors specifying the
breach and requesting that the Employee correct the same.
(d) Compensation Upon Termination. Except as provided in Sections 8(a)
and 8(b), Employee shall receive compensation upon termination as follows: in
the event that Employer terminates Employee's Employment under this Agreement
other than for cause as provided in Section 8(c), Employee shall be entitled to
receive the full amount of his salary and benefits provided for in Section 6 for
the remaining term of this Agreement, and any stock options or shares under
stock bonus programs held by Employee shall become and remain exercisable or
vested for the period as set forth in the agreement governing such options or
bonus programs.
(e) Termination by Employee.
(i) If Employee shall voluntarily resign from employment by
Employer prior to the expiration of this Agreement, any compensation
payable to Employee under Section 4 shall be prorated through the date
of termination.
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(ii) If the Board of Directors or any designee thereof
prohibits Employee from issuing press releases, making public filings,
or prosecuting the business plan outlined in the registration statement
on Form S-1 for Employer's IPO that Employee reasonably believes to be
required under federal or state law and if Employee has received advice
of counsel engaged by him confirming his belief, then Employee shall
have the right to terminate this Agreement. Upon such termination,
Employer shall pay to Employee the compensation payable to Employee
under Section 4 and shall provide the Employee the benefits required
under Section 6, for a period one year from the date of termination.
Employer shall pay the amount prescribed in this sub-paragraph (ii) in
cash on the date of termination.
9. Exclusivity. Employee shall devote his best efforts to the performance of his
duties under this Agreement. Employee agrees that all information which he
obtains in the course of his employment is the property of Employer and agrees
that he will not discuss any such information or use any such information for
the benefit of himself or any person or entity other than Employer at any time
during or after his employment. During the period of five (5) years after
termination of employment of Employee hereunder, Employee agrees that he will
not engage in employment or business activities which are reasonably deemed to
be competitive to Employer and its business. The foregoing restriction shall not
apply if Employer elects to terminate this Agreement without cause and Employee
elects not to receive any further cash compensation as provided under the terms
of this Agreement. The parties hereto, recognizing that irreparable injury will
result to Employer, its business and property in the event of a breach of this
Agreement by Employee, and that employment is based primarily upon this
Agreement, it is agreed that in such event Employer shall be entitled, in
addition to any other remedies and damages available, to an injunction to
restrain the violation thereof by Employee, his partners, agents, servants,
employers, and Employees, and all persons acting for or with him. The Employee
represents and admits that in the event of the termination of his employment for
any cause whatsoever, his experiences and capabilities are such that he can
obtain employment in business engaged in other lines and/or of a different
nature, and that the enforcement of a remedy by way of injunction will not
prevent him from earning a livelihood.
10. Representation by the Employee.
The Employee hereby represents and warrants to Employer that the
execution of this Agreement and the performance of his duties and obligations
hereunder will not breach or be in conflict with any other agreement to which he
is a party or by which he is bound and that he is not now subject to any
covenant against competition or similar covenant that would affect the
performance of his duties hereunder.
11. No Assignment.
This Agreement is personal and shall in no way be subject to
assignment, except by Employer incident to the sale of all or substantially all
of its business (whether by asset sale, stock sale or merger). Any attempt by
one party to assign this Agreement in any other circumstances without the prior
written consent of the other party shall be null and void.
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12. Enforceability.
If any portion or provision of this Agreement shall to any extent be
declared illegal or unenforceable by a duly authorized court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
13. Notices.
All notices and other communications required or permitted to be given
hereunder shall be given by delivering the same in hand or by mailing the same
by certified or registered mail, return receipt requested, postage prepaid, as
follows:
if to Employer, to: The PRIMA Group International, Inc.
000 X. Xxxxxx Xxxxx Xxxx, Xxx. 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
if to the Employee, to: Xx. Xxxxxxxx Ciamaroni
Xxxxxxxxxxxx 00x
X-00000 Xxxxxxxxxx
Xxxxxxx
(or to such other address as either party shall have furnished to the other by
like notice).
A notice shall be effective as of the date of such delivery or mailing, as the
case may be.
14. Entire Agreement.
This Agreement constitutes the only agreement and understanding between
Employer and the Employee in relation to the subject of the Employee's
employment by Employer; and there are no promises, representations, conditions,
provisions or terms related thereto other than those set forth herein. This
Agreement supersedes all previous understandings, agreements and
representations, written or oral, between Employer and the Employee regarding
the Employee's employment by Employer.
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15. Governing Law.
This contract shall be construed under and be governed in all respects
by the internal laws, and not the laws pertaining to choice or conflicts of
laws, of the State of North Carolina.
16. Waiver; Amendment.
No waiver in any instance by either party of any provision of this
Agreement shall be deemed a waiver by such party of such provision in any other
instance or a waiver of any other provision hereunder in any instance. This
Agreement cannot be amended, supplemented or otherwise modified except in a
writing signed by Employer, and by the Employee (so long as he shall be employed
by Employer).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
The PRIMA Group International, Inc.
By:
__________________________________
Name:
__________________________________
Title:
__________________________________
(SEAL)
__________________________________
Giovanni Ciamaroni
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