Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the __ day of
March, 1999, between DAG, Media, Inc, a New York corporation (the "Company"),
having its principal place of business at 000-00 Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxx Xxxx, 00000, and Xxxx Xxxxxx (the "Executive"), residing at 00 Xxxxxxxx
Xxxxxxx, Xxx. 0X, Xxx Xxxx, XX 00000.
WITNESSETH:
WHEREAS, the Company believes that it would benefit from the
application of the Executive's particular and unique skill, experience and
background to the management and operation of the Company, and wishes to employ
the Executive as Vice President-Sales and Corporate Development; and
WHEREAS, the parties desire by this Agreement to set forth the terms
and conditions of the employment relationship between the Company and the
Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants in this Agreement, the Company and the Executive agree as follows:
1. EMPLOYMENT AND DUTIES. The Company hereby employs the Executive as
Vice President-Sales and Corporate Development on the terms and conditions
provided in this Agreement and Executive agrees to accept such employment
subject to the terms and conditions of this Agreement. Executive agrees that (i)
on or before the Commencement Date (as defined in Section 2 below) he will
terminate all of his existing employment relationships which he may have and
(ii) he will not accept or enter into any other employment relationships during
the Employment Term (as defined in Section 2). Executive shall use his best
efforts to promote the Company's
directories, to increase the volume of the Company's advertising sales and,
generally, advance the interests of the Company. Until such time as Executive is
promoted to sales manager, Executive shall be employed as a salesperson working
out of the Company's offices in Kew Gardens, New York and shall be supervised by
the sales manager of that office. Executive shall be required to participate in
such training programs and to perform the duties and responsibilities required
of the Company's sales staff. Executive shall be required to work from Monday
through and including Friday, from 9:00 a.m. until 7:00 p.m.; provided, however,
in the event Executive shall be required to keep appointments made after 7:00
p.m. In the sole discretion of the President of the Company, Executive may be
promoted to Sales Manager in which case Executive shall be based in such office
as shall be determined by the Company's President. As Sales Manager, executive
shall be required to hire, train and supervise a sales force in accordance with
the Company's policies and procedures and to perform the duties and
responsibilities required of the Company's sales staff. Executive shall be
required to work from Monday through and including Friday, from 9:00 a.m. until
8:00 p.m.; provided, however, in the event Executive shall be required to keep
appointments made for him after 8:00 p.m. In addition, Executive shall be
required to work on Sundays at the Company's offices in Kew Gardens, New York.
2. TERM. The term of this Agreement shall commence on the closing date
of the Company's initial public offering (the "Commencement Date"), and shall
terminate on the first anniversary thereof (the "Termination Date"), unless
extended or earlier terminated in accordance with the terms of this Agreement.
Such term of employment is herein sometimes referred to as the "Employment
Term". The Employment Term shall be extended for successive one year periods
unless either party notifies the other in writing at least 14 days before the
Termination
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Date or any anniversary of the Termination Date, as the case may be, that he or
it chooses to terminate this Agreement.
3. COMPENSATION. As compensation for performing the services required
by this Agreement, and during the term of this Agreement, the Executive shall be
compensated as follows:
(a) COMMISSION. Until such time as Executive is promoted to
Sales Manager, the Company shall pay Executive a commission equal to 12% of the
Total Weekly Sales (as defined below) generated by Executive from sales of ads
for the Company's directories. At such time as Executive is promoted to Sales
Manager, the Company shall pay Executive commissions based on the Total Weekly
Sales of the sales staff supervised by Executive in accordance with the
following table:
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TOTAL WEEKLY SALES COMMISSION
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$100,000 or less 4% of Total Weekly Sales
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More than $100,000 but not more than $200,000 5% of Total Weekly Sales
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More than $200,000 6% of Total Weekly Sales
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Total Weekly Sales means the total sum of all collected checks and post-dated
checks received during the Current Week (as defined below) plus the amount
charged during the Current Week by any customer's chargeable credit cards which
were approved by the Company less the sum of any bounced checks from previous
weeks. Current week shall mean a week that begins on Sunday and ends on
Saturday.
(b) MINIMUM SALARY. Notwithstanding anything contained herein
to the contrary, in no event shall the commissions payable to Executive during
the Employment Term be less than $5,000.00 per month before deductions for
income and employment taxes.
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(c) TAXES AND WITHHOLDING. All amounts payable to Executive
pursuant to this Section 3 shall be payable pursuant to the Company's customary
payroll procedures in effect for its personnel at the time of payment, but in no
event less frequently than monthly, subject to withholding for applicable
federal, state, and local taxes.
4. EMPLOYEE BENEFITS. During the Employment Term and subject to the
limitations set forth in this Section 4, Executive and his eligible dependents
shall have the right to participate in any health and major medical insurance
plan or program maintained by the Company in accordance with the terms of such
plan or program and on terms that are no less favorable than the terms granted
to other employees of the Company.
5. VACATION AND LEAVES OF ABSENCE. Executive shall be entitled to
vacation on such terms and conditions as are applicable to other employees of
the Company in comparable positions.
6. EXPENSES.
(a) BUSINESS EXPENSES. Executive shall be promptly reimbursed
against presentation of vouchers or receipts for all reasonable and necessary
expenses incurred by him in connection with the performance of business-related
duties.
(b) AUTOMOBILE EXPENSE. During the Employment Term, in order
to facilitate the performance of Executive's duties hereunder, and otherwise for
the convenience of the Company, the Company shall provide the Executive with an
automobile, or shall reimburse the Executive for the cost of leasing an
automobile (provided that the lease payments with respect to such automobile
shall not exceed $300 per month).
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(c) MOBILE PHONE. In order to facilitate the performance of
the Executive's duties hereunder, and otherwise for the convenience of the
Company, the Company shall provide the Executive with a mobile phone.
7. TERMINATION AND TERMINATION BENEFITS. The Company may terminate this
Agreement at any time upon 14 days prior written notice to Executive. In the
event of a termination pursuant to this subsection 7, Executive shall be
entitled to payment of his Commissions pursuant to Section 4 hereof up to the
effective date of such termination and health and major medical insurance
coverage for Executive and his dependents for up to six months following the
effective date of such termination.
8. COMPANY PROPERTY. Upon termination of this Agreement, Executive
shall immediately deliver to the Company all of the Company's property then in
the possession of Executive including, but not limited to, automobiles,
computers, telephones, all advertising, promotional, sales, suppliers,
manufacturers and other materials or articles or information, including without
limitation data processing reports, customer lists, customer sales analyses,
invoices, product lists, price lists or information, samples, or any other
materials or data of any kind furnished to Executive by the Company or developed
by Executive on behalf of the Company or at the Company's direction or for the
Company's use.
9. COVENANT NOT TO COMPETE.
(a) CONFIDENTIALITY AND NONCOMPETITION.
(i) Executive understands that the Company has made a
substantial investment in developing its know-how, customers, distribution
points, sales methods and any other knowledge related to the business of the
Company, as well as training Executive for his
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position. It is therefore proper for the Company to be protected against the
disclosure of its confidential matters and against unfair competition.
(ii) Executive agrees that during the term of his
employment and for a period of twenty-four (24) months immediately following
termination, he will not:
(A) Make known to any firm, person, or
corporation, the names or addresses of any of the Company's customers, the
Company's financial information, distribution points or any other information
which is pertaining to any of them.
(B) Call on, solicit or take away or attempt
to call on, solicit or take away any of the customers of the Company.
(C) Call on, solicit or take away or attempt
to call on, solicit or take away any customer who's address or place of business
is in a radius of 50 miles from any of the Company's offices.
(iii) Executive agrees that upon employment's
termination for any reason, for a period of twenty four (24) months immediately
afterwards, he will not become employed by, directly or indirectly, whether as
an employee, or as independent contractor, nor associated with nor own any part
of any firm, person or corporation which:
(A) Sells or services any directory,
newspaper or magazine; or
(B) Is competitive with the Company; or
(C) Which distributes or markets products or
services which are similar to the products or services of the Company or to
which Executive sold during the term of his employment with the Company.
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(b) EXECUTIVE'S ACKNOWLEDGMENTS. Executive hereby acknowledges
that:
(i) He is fully familiar with the restrictions,
restraints and limitations imposed upon him in Section 9(a) of this Agreement
(hereinafter the "Restraints").
(ii) The Company would not continue to employ the
employee without the imposition of the Restraints and Executive agreement to
abide by such Restraints.
(iii) The imposition upon Executive of the Restraints
is necessary for the reasonable and adequate protection of the business of the
Company.
(iv) Each and every Restraint is reasonable with
respect to its subject matter, geographic area, and length of time.
(v) The monetary damages alone will not adequately
compensate the Company in the event of a breach by him of the Restraints,
therefor, in addition to all remedies available to the Company at law or in
equity, the Company shall be entitled to interim restraints and permanent
injunctive relief for the enforcement thereof, and to an accounting and payment
of all receipts realized by Executive as a result of such breach.
(vi) In the event that Executive shall be in
violation of any Restraints, then the time limitation thereof shall be extended
for a period of time equal to the period of time during which such breach or
breaches occurred.
(vii) In the event the Company shall be required to
seek relief in any court or other tribunal, then the Restraints shall be
extended for a period of time equal to the pendency of such proceedings,
including appeals, and excluding any periods during which the court or other
tribunal has ordered Executive to honor the Restraints and Executive has
complied with such order.
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(c) CONFIDENTIALITY OF COMPANY PROPERTY. During the
effectiveness of this Agreement and at all times thereafter, Executive shall not
use for his personal benefit, or disclose, communicate or divulge to, or use for
the direct or indirect benefit of any person, firm, association or company other
than the Company, any material referred to in Section 9 above unless such
material has become otherwise publicly available.
(d) SAVING CLAUSE. If the period of time or the area specified
in subsection (a) above should be adjudged unreasonable in any proceeding, then
the period of time shall be reduced by such number of months or the area shall
be reduced by the elimination of such portion thereof or both so that such
restrictions may be enforced in such area and for such time as is adjudged to be
reasonable. If Executive violates any of the restrictions contained in the
foregoing subsection (a), the restrictive period shall not run in favor of
Executive from the time of the commencement of any such violation until such
time as such violation shall be cured by Executive to the satisfaction of
Company.
10. EXECUTIVE'S REPRESENTATION AND WARRANTIES. Executive represents and
warrants that he has the full right and authority to enter into this Agreement
and fully perform his obligations hereunder, that he is not subject to any
non-competition agreement other than with the Company, and that his past,
present and anticipated future activities have not and will not infringe on the
proprietary rights of others. Executive further represents and warrants that he
is not obligated under any contract (including, but not limited to, licenses,
covenants or commitments of any nature) or other agreement or subject to any
judgment, decree or order of any court or administrative agency which would
conflict with his obligation to use his best efforts to perform his duties
hereunder or which would conflict with the Company's business and operations as
presently conducted or proposed to be conducted. Neither the execution nor
delivery of this
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Agreement, nor the carrying on of the Company's business as officer and
employee by Executive will conflict with or result in a breach of the
terms, conditions or provisions of or constitute a default under any contract,
covenant or instrument to which Executive is currently a party.
11. MISCELLANEOUS.
(a) INTEGRATION; AMENDMENT. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters set
forth herein and supersedes and renders of no force and effect all prior
understandings and agreements between the parties with respect to the matters
set forth herein. No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties.
(b) SEVERABILITY. If any part of this Agreement is contrary
to, prohibited by, or deemed invalid under applicable law or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited, or invalid, but the remainder of this Agreement shall not be invalid
and shall be given full force and effect so far as possible.
(c) WAIVERS. The failure or delay of any party at any time to
require performance by the other party of any provision of this Agreement, even
if known, shall not affect the right of such party to require performance of
that provision or to exercise any right, power, or remedy hereunder, and any
waiver by any party of any breach of any provision of this Agreement shall not
be construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any right, power, or
remedy under this Agreement. No notice to or demand on any party in any case
shall, of itself, entitle such party to other or further notice or demand in
similar or other circumstances.
(d) POWER AND AUTHORITY. The Company represents and warrants
to the Executive that it has the requisite corporate power to enter into this
Agreement and perform the
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terms hereof; that the execution, delivery and performance of this Agreement by
it has been duly authorized by all appropriate corporate action; and that this
Agreement represents the valid and legally binding obligation of the Company and
is enforceable against it in accordance with its terms.
(e) BURDEN AND BENEFIT; SURVIVAL. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, personal and legal representatives, successors and assigns. In
addition to, and not in limitation of anything contained in this Agreement, it
is expressly understood and agreed that the Company's obligation to pay
Termination Compensation as set forth herein shall survive any termination of
this Agreement.
(f) GOVERNING LAW; HEADINGS. This Agreement and its
construction, performance, and enforceability shall be governed by, and
construed in accordance with, the laws of the State of New Jersey. Headings and
titles herein are included solely for convenience and shall not affect, or be
used in connection with, the interpretation of this Agreement.
(g) NOTICES. All notices called for under this Agreement shall
be in writing and shall be deemed given upon receipt if delivered personally or
by confirmed facsimile transmission and followed promptly by mail, or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at their respective addresses (or at such other address for a party as
shall be specified by like notice; provided that notices of a change of address
shall be effective only upon receipt thereof) as set forth in the preamble to
this Agreement or to any other address or addressee as any party entitled to
receive notice under this Agreement shall designate, from time to time, to
others in the manner provided in this subsection 10(g) for the service of
Notices.
Any notice delivered to the party hereto to whom it is
addressed shall be deemed to have been given and received on the day it was
received; PROVIDED, HOWEVER, that if such day
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is not a business day then the notice shall be deemed to have been given and
received on the business day next following such day. Any notice sent by
facsimile transmission shall be deemed to have been given and received on the
business day next following the day of transmission.
(h) NUMBER OF DAYS. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; PROVIDED, HOWEVER, that if the final day of any time
period falls on a Saturday, Sunday or holiday on which federal banks are or may
elect to be closed, then the final day shall be deemed to be the next day which
is not a Saturday, Sunday or such holiday.
THIS AGREEMENT CONTAINS VERY IMPORTANT TERMS GOVERNING YOUR EMPLOYMENT. IN
PARTICULAR, PARAGRAPH 9 AFFECTS YOUR ABILITY TO TAKE CERTAIN ACTIONS FOLLOWING
THE TERMINATION OF THIS AGREEMENT. YOU SHOULD SEEK ADVICE FROM YOUR ATTORNEY
REGARDING ANY MATTER RELATING TO THIS AGREEMENT. BY EXECUTING THIS AGREEMENT,
YOU ARE AFFIRMING THAT YOU HAVE HAD THE OPPORTUNITY TO REVIEW THIS AGREEMENT AND
TO CONSULT WITH YOUR ATTORNEY IF YOU SO DESIRED, THAT YOU UNDERSTAND THE MEANING
AND SIGNIFICANCE OF ALL OF ITS PROVISIONS, THAT NO REPRESENTATIONS OR PROMISES
HAVE BEEN MADE TO YOU REGARDING YOUR EMPLOYMENT WHICH ARE NOT SET FORTH IN THIS
AGREEMENT, AND THAT YOU ARE FREELY SIGNING THIS AGREEMENT TO OBTAIN EMPLOYMENT
WITH THE COMPANY.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
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XXXX XXXXXX
DAG MEDIA, INC.,
A NEW YORK CORPORATION
by:
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Assaf Ran, President
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