EMPLOYMENT AGREEMENT
AGREEMENT made and entered into as of the 8th day of September, 1995,
between GIRGENTI, HUGHES, XXXXXX & XxXXXXXX, INC., a New York corporation, with
offices at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"),
and XXXXXXX XXXXXX, residing at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Employee").
WITNESSETH:
WHEREAS, entering into this Agreement is a condition of closing under
a certain Stock Purchase Agreement dated the date hereof ("Purchase Agreement").
WHEREAS, the Employee was employed by the Company and the Company
wishes to ensure the continued employment of Employee and the Employee wishes to
accept such employment, subject to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, the parties hereto, in consideration of the premises
and mutual promises contained herein and for other good and valuable
consideration, receipt of which is hereby acknowledged, agree as follows:
1. Scope of Employment.
A. During the term of this Agreement, the Employee shall have the
position of Secretary and Creative Director of the Company.
B. The Employee shall have all of the powers, duties and
responsibilities as are assigned to him from time-to-time by the President of
the Company and/or the Company's Board of Directors. The Employee shall report
to the Board of Directors of the Company and the Chief Executive Officer or
President at such time and in such details as they shall reasonably require. If
requested, Employee shall serve on behalf of one or more subsidiaries or
affiliates of the Company without additional compensation.
C. The Employee shall serve the Company and devote his best efforts
and all his skill and ability in the performance of his duties hereunder.
Employee shall carry out his duties in a competent and professional manner,
shall work with other employees of the Company and its affiliates and generally
promote the best interests of the Company and its clients. The Employee shall
work a total of six out of twelve months per calendar year in accordance with
a schedule
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approved in advance by the Company. During the term of this Agreement, the
Employee shall not engage in any capacity or activity which is, or may be,
contrary to the welfare, interest or benefit of the business now or hereafter
conducted by the Company.
2. Term of Agreement.
This Agreement shall commence on the date hereof and shall continue
for a period of three (3) years from such date unless sooner terminated pursuant
to paragraph 4 (the "Term"). Subject to Employee's compliance with and
satisfaction of all the terms and conditions of this Agreement, the Term may be
extended by Employee, in his sole discretion, for two (2) additional one year
periods upon written notice to the Company delivered at least thirty (30) days
prior to the expiration of the Term (or, as the case may be, of the first
one-year extension). The terms and conditions of this Agreement shall continue
to govern Employee's employment by the Company during any extension of the Term.
3. Compensation.
A. The Employee shall be paid base compensation at the rate of Two
Hundred and Twenty Five Thousand ($225,000) Dollars per annum, payable in
accordance with the Company's normal payroll practices ("Base Salary").
B. In addition to his Base Salary, the Employee shall be entitled to
participate in an incentive compensation plan to be adopted by the Company. The
determination of any payment to Employee pursuant to such incentive compensation
plan shall be in the sole discretion of the Company's Board of Directors.
C. Employee shall be entitled to compensation for holidays on the
same basis as available to other employees of the Company.
4. Termination for Cause; Death of the Employee.
A. (i) The Company may terminate this Agreement with the Employee for
"cause", immediately upon notice to the Employee. For purposes of this
Agreement, "cause" shall be limited to the occurrence of any of the following by
or concerning the Employee:
1. An act of dishonesty.
2. Commission of a felony.
3. Material breach of any term of this
Ageeement.
4. Continuing, repeated wilful failure or
refusal to substantially perform his
responsibilities on behalf of the Company.
5. An act of moral turpitude.
6. An act or omission that is materially
adverse to the business or reputation of
the Company.
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7. A determination by a physician licensed in
the State of New York that the Employee is
a chronic alcoholic or a narcotics addict
(as such term is defined under the New York
Mental Hygiene Law, as amended).
8. The death or "disability" (as defined below)
of the Employee.
9. The willful misappropriation of the funds
or property of the Company.
(ii) Upon termination of the employment of Employee with the
Company, subject to appropriate offsets, Employee shall be entitled
to his Base Salary through the date of termination. Except as
provided in this paragraph, in connection with the Employee's
termination by the Company for "cause", the Company shall have no
further liability to the Employee or to the Employee's heirs,
beneficiaries, or estate for damages, compensation, benefits,
indemnities or other amounts.
(iii) The term "disability", as used in this paragraph 4,
shall mean the inability of the Employee by reason of physical or
mental sickness, injury or illness to perform the same or similar
duties for the Company as he performed prior to such sickness, injury
or illness. Such disability must be for a continuous period of twelve
(12) months, or for an aggregate period of eighteen (18) months out
of any continuous twenty-four (24) month period. The determination of
disability shall be made by a duly licensed physician acceptable to
the Employee and the Company. If no physician is acceptable to both
the Employee and Company, the determination shall be made by two duly
licensed physicians, one of whom shall be selected by the Employee
and the other by the Company. If said two physicians cannot agree,
the determination shall be made by a third duly licensed physician
selected by the aforementioned two physicians.
5. Covenant Not to Compete.
A. The Employee agrees that his services to the Company are of a
special, unique, extraordinary and intellectual character, and his position
with the Company places him in a position of confidence and trust with the
clients and employees of the Company. The Employee "further acknowledges that
the rendering of services to the clients of the Company necessarily requires
the disclosure of confidential information and trade secrets of the Company
(such as, without limitation, marketing plans, budgets, designs and client
preferences and policies). The Employee and the Company agree that in the
course of employment with the Company, the Employee has and will continue to
develop a personal acquaintanceship and relationship with the clients of the
Company and a knowledge of those clients' affairs and requirements. The
Employee acknowledges that the relationships of the Company with its clientele
may be placed in the Employee's hands in confidence and trust and the Employee
consequently agrees that it is reasonable and necessary for the protection of
the goodwill and business of the Company that
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the Employee make the covenants contained herein. Accordingly, during the Term
and for five (5) years thereafter, the Employee agrees not to do any of the
following:
(i) engage, directly or indirectly, in any business which
competes with the business now or hereafter conducted by the Company,
or any affiliate, thereof within the continental United States.
(ii) attempt in any manner, direct or indirect, to solicit
from any client of the Company, or any affiliate, or to persuade any
client of the Company or any affiliate to cease to do business or
reduce the amount of business which any such client has customarily
done or contemplates doing with the Company, or any affiliate,
whether or not the relationship between the Company (or such
affiliate) was originally established in whole or in pan through
Employee's efforts;
(iii) engage, directly or indirectly, in any business which
uses as its corporate or trade name any distinctive part of the
Company's name, or any affiliate thereof, or any other name then
used by the Company, its parents, divisions, subsidiaries or
affiliates;
(iv) interfere in any way, directly or indirectly, whether for
his own benefit or for the benefit of any other person or any firm,
corporation or other business organization, with the Company's, or
any affiliate's, relationship with, or endeavor to entice away from
the Company, or any affiliate, or solicit any person, firm,
corporation or other entity who or which was or is an employee,
consultant, distributor, independent contractor, supplier, source
of material and/or product of, or in the habit of dealing with, the
Company or any affiliate thereof.
(v) render to or for any client of the Company, or any
affiliate, any services of the type rendered by the Company or any
affiliate.
B. For purposes of this paragraph 5, the Employee shall be deemed
directly or indirect]y engaged in a business or activity if he participates in
such business or activity himself, or as proprietor, partner, joint venturer,
stockholder, director, officer, manager, employee, consultant, advisor or agent
of an entity engaged in such business or entity, or if he otherwise controls
such entity. Notwithstanding the above, the Employee shall not be deemed engaged
in such business or activity merely by reason of holding less than five (5%)
percent of the outstanding equity of any publicly owned corporation, provided
that the Employee shall not be in a control position with regard to such
corporation.
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6. Confidential Information.
A. The Employee shall not at any time during the Term or thereafter
use for his own benefit and/or reveal, divulge or publish or make known,
directly or indirectly, to any person, firm or corporation, any of the Company's
or any affiliate's confidential information or trade secrets, whether written or
oral, that the Employee has acquired during the Term (hereinafter referred to as
"Confidential Information"). Notwithstanding the above, the term "Confidential
Information" shall not include any information which is in the public domain and
could readily be known or determined without being employed by the Company or
which enters the public domain through no breach of the Employee's obligations
hereunder.
B. The Employee shall hold in trust and confidence for the benefit of
the Company all Confidential Information and the Employee shall not disclose
such Confidential Information to any person, firm or corporation, or use such
Confidential Information for any purpose other than on behalf of the Company in
accordance with his duties under this Agreement. The Employee shall not make any
copies of Confidential Information without the express prior written consent of
the Company. It is hereby expressly understood that by disclosing said
Confidential Information to the Employee, the Company does not grant any
express, implied or other license or right of any nature to the Employee with
respect to the Confidential Information.
C. Upon termination of the Term or termination of the Employee's
services for the Company irrespective of the time, manner or cause of same, the
Employee shall surrender to the Company all customer lists, books, records and
documents provided by, belonging to, relating to or used in connection with the
Company's business and/or all other property belonging to the Company or to the
Company's customers.
D. The Company does not wish to receive any confidential information
from the Employee. Any and all information disclosed by the Employee to the
Company shall not be deemed confidential, and the Company shall be under no
obligation to retain any such information in confidence.
7. Enforcement of Restrictive Covenants.
The parties acknowledge that the type and periods of restriction
imposed in the provisions of Sections 5 and 6 above are fair and reasonable and
are reasonably required for the protection of the Company; and that the time,
scope, geographic area and other provisions of such sections have been
specifically negotiated by sophisticated commercial parties and are given as an
integral part of the transactions contemplated by the Purchase Agreement, it
being understood that the clients of the Company may be serviced from any
location and accordingly it is reasonable that the restrictive covenants set
forth herein are not limited by narrow geographic area but generally by the
location of such clients and potential clients. The Employee specifically
acknowledges that his being restricted from servicing clients and prospective
clients as contemplated by this Agreement will not prevent him from being
employed
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or earning a livelihood in the type of business conducted by the Company. If any
of the covenants in Sections 5 or 6 above, or any part thereof, is hereafter
construed to be invalid or unenforceable, it is the intention of the parties
that the same shall not affect the remainder of the covenant or covenants, which
shall be given full effect without regard to the invalid portions. If any of the
covenants contained in Sections 5 or 6, or any part thereof, is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination should
reduce the duration and/or areas of such provision such that, in its reduced
form, said provision shall then be enforceable. The parties hereto intend to
and hereby confer jurisdiction to enforce the covenants contained in Sections
5 or 6 above upon the courts of any jurisdiction within the geographical scope
of such covenants. In the event that the courts of any one or more of such
jurisdictions shall hold such covenants wholly unenforceable by reason of the
breadth of such scope or otherwise, it is the intention of the parties hereto
that such determination not bar or in any way affect the Company's right to
the relief provided above in the courts of any other jurisdiction within the
geographical scope of such covenants, as to breaches of such covenants in such
other respective jurisdictions, the above covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
8. Intellectual Property.
During the Term, the Employee will disclose to the Company all ideas,
inventions, advertising campaigns, designs, logos, slogans and business plans
developed by him during such period, either individually or in collaboration
with others, which relate to the business of the Company or any affiliate,
including without limitation, any process, operation, product or improvement
which may be patentable or copyrightable. The Employee agrees that such will be
the sole property of the Company and that he will at the Company's request and
cost do whatever is reasonably necessary to secure the rights thereto by patent,
copyright or otherwise to the Company.
9. Equitable Relief.
The parties hereto recognize that irreparable harm will result to the
Company and its business and properties if the Employee fails or refuses to
perform his obligations under this Agreement, and that the remedy at law for any
such failure or refusal will be inadequate. Accordingly, in addition to any
other remedies and damages available, the Company shall be entitled to
injunctive relief, specific performance and any other appropriate equitable
relief. Such relief may be taken against any employee, consultant or
representative of the Employee, or any corporation in which the Employee is a
shareholder or has a management position, or any partnership in which the
Employee is a partner or has a management position. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies in
addition to equitable relief, including the recovery of damages.
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10. Invalidity and Severability.
If any provisions of this Agreement are held invalid or unenforceable
by a court of competent jurisdiction, such invalidity or unenforceability shall
not affect the other provisions of this Agreement, and, to that extent, the
provisions of this Agreement are intended to be and shall be deemed severable.
11. Notices.
Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and if personally delivered, sent via
facsimile or overnight courier, or sent by registered or certified mail, return
receipt requested, as follows:
As to the Employee: Xxxxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
As to the Company: Girgenti, Hughes, Xxxxxx &
XxXxxxxx, Inc.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With copies to: Todtman, Young, Tunick, Nachamie,
Xxxxxxx & Spizz, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Xxx: Xxxxxx Xxxxxxx, Esq.
or to such other address as any such party or attorney may designate by notice
to the others in accordance with this Agreement. Notices shall be deemed given
on the date personally delivered or sent via facsimile, the day after being sent
via overnight courier, or five (5) days after being sent by registered or
certified mail (return receipt requested).
12. Assignment.
A. This Agreement and the rights and obligations of the parties
hereto shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, heirs, beneficiaries and personal
representatives.
B. The parties acknowledge that the services to be provided by the
Employee hereunder are unique to the Employee. Accordingly, the Employee may not
assign any obligation hereunder without the prior written consent of the
Company, which may be withheld for any or no reason. The Company may assign its
rights and obligations under this Agreement upon the submission of a 10 day
written notice to the Employee.
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13. No Conflict.
Employee represents and warrants that he is not subject to any
agreement, instrument, order, judgment or decree of any kind, or any other
restrictive agreement of any character, which would prevent him from entering
into this Agreement or which would be breached by Employee upon the performance
of his duties pursuant to this Agreement.
14. Waiver of Breach.
Waiver by either party of a breach of any provision of this Agreement
by the other shall not operate or be construed as a waiver of any subsequent
breach by such other party. The failure of any party hereto to take any action
by reason of such breach shall not deprive such party of the right to take
action at any time while such breach continues.
15. Entire Agreement.
This instrument contains the entire agreement of the parties as to
the subject matter hereof and supersedes any and all other agreements of the
parties as to the subject matter hereof. It may not be changed, modified,
extended or discharged orally, and no provision hereof may be waived orally, but
only by an agreement in writing signed by the party against whom enforcement of
any change, modification, extension, discharge or waiver is sought.
16. Applicable Law.
This Agreement shall be construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
as of the day and year first above written.
/s/ Xxxxxxx Xxxxxx
_____________________________________________
Xxxxxxx Xxxxxx
GIRGENTI, HUGHES, XXXXXX & XxXXXXXX, INC.
By: /s/ Xxxxxx Xxxxxxxx
________________________________________
Xxxxxx Xxxxxxxx, President
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