EMPLOYMENT AGREEMENT
Exhibit
10.8
THIS
OFFICER'S EMPLOYMENT AGREEMENT ("Agreement") made this 10th day of March 2008,
by and between Vemics, Inc. ("Vemics"), a Delaware corporation having an address
000 Xxxxxx Xxxxxxx, Xxxxxx, XX 00000, and Xxxxx Xxxxx ("Employee"), an adult
individual residing at 0 Xxxxx Xxxxx, Xxxxxxxx Xxxxx, XX 00000.
Background
WHEREAS,
Vemics desires to enter into an employment agreement ("Agreement") with the
Employee pursuant to which Vemics shall employ the Employee as Vemics's Chief
Operating Officer; and
WHEREAS,
the Employee is willing and agrees to accept this employment on the terms and
conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants set
forth in this Agreement, Vemics and Employee, each intending to be legally
bound, agree as follows:
Section
1. Employment. Vemics employs the Employee, and the Employee accepts this
employment, on the terms and conditions set forth in this
Agreement.
Section
2. Duties of Employee.
(a)
The Employee will be employed as the Vemics’ Chief Operating Officer and shall
perform and discharge well and faithfully these duties as are usual and
customary for a Chief Operating Officer and will report to, and be subject to
the supervision of the Vemics’ Chief Executive Officer. In furtherance of the
foregoing, the Employee, as Chief Operating Officer, shall be responsible for
Managing the day to day operation of Vemics to include, but not be limited to
sales, operations, human resources, strategic alliances, channel development and
product development, enhancing and improving Vemics Proprietary business
relationships and Services . A detailed list of the Employee’s duties is listed
as Exhibit A to this agreement. The Employee will be located in Chestnut Ridge,
NY, or such other location as agreed to in writing by Employee (in Employee’s
sole discretion). The Employee will be furnished with facilities and services
commensurate with the Employee's position as Chief Operating Officer and
adequate for the performance of the duties under this
Agreement.
(b)
Except as set forth in Section 2(c) of this Agreement, the Employee shall devote
his full working time attention and energies to Vemics’ business and shall not,
during the Employment Period (as defined in this Agreement's Section 3), be
employed or involved in any other business activity, whether or not this
activity is pursued for gain, profit, or other pecuniary advantage, without
Vemics’ prior written consent.
(c)
Nothing set forth in this Section 2 shall be construed to prevent the Employee
from:
(i)
Investing the Employee's personal assets in businesses (“Employee Investment
Businesses”):
(1)
Which do not directly compete with the Vemics
(2)
Where the form or manner of these investments will not require meaningful
services on the part of the Employee in the operation of the affairs of the
business in which these investments are made1;
(ii)
Owning less than five percent (5%) of the aggregate securities of any class of
securities of any entity, regardless of the business activities conducted by
such entity;
(iii)
Acting as an officer, director, or member of management (as appropriate) of
Vemics, or as a member of the board of directors or board of trustees of any
other corporation, organization, or entity which is not a direct competitor of
the Company as of the date of Employee’s accession to such office, directorship,
trusteeship or management position (i.e., Employee shall not be in breach
hereof, or required to resign such position, if after Employee accepts it Vemics
undertakes an activity would cause such corporation, organization, or entity to
compete with Vemics);
Section
3. Term of Agreement.
(a)
Unless sooner terminated in accordance with Section 3(b), this Agreement shall
be for an initial term (the "Initial Term") of three (3) years, commencing on
April 1, 2008 and ending on March 31, 2011; provided, however, that if neither
Vemics nor the Employee notifies the other, in writing, of their intention not
to renew this Agreement at least sixty (60) calendar days prior to the
expiration of the Initial Term or any extension of the Initial Term, this
Agreement shall be automatically extended, and shall continue upon the same
terms and conditions as are contained in this Agreement and which are in force
and effect immediately prior to the end of the then current term of this
Agreement, for a period of one (1) year and so on from year to year thereafter
unless and until terminated by either the Vemics or the Employee by giving the
other party at least sixty (60) calendar days' written notice of termination
prior to the expiration of the then current term of this Agreement. The Initial
Term shall, together with any extensions of the Initial Term, be collectively
referred to in this Agreement as the "Employment Period."
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(b)
Notwithstanding the foregoing, this Agreement and the Employee's employment
shall terminate:
(i) At
any time for “Cause” as defined in this Agreement's Section 3(c) immediately
upon written notice to the Employee from the Board or the Board's designated
representative; In addition, and without limiting any of Employee's other rights
or remedies, Employee's obligations under Section 2 (1), (2) and Section 3 shall
automatically terminate.
(ii)
At any time, immediately upon giving the Employee notice of a determination by
the Board or the Board's designated representative that the Employee has been
incapacitated by accident, sickness, or otherwise so as to render the Employee
mentally or physically incapable of performing the services required of the
Employee under this Agreement for a period of ninety (90) consecutive calendar
days during any period of twelve (12) months, upon the expiration of this period
or at any time thereafter; or
(iii)
Immediately upon the Employee's death.
(c)
For purposes of this Agreement "Cause" shall mean any of the
following:
(i)
The Employee's conviction of or plea of guilty or nolo contendere to a felony,
a crime of falsehood, or a crime involving moral turpitude, or the actual
incarceration of the Employee for a period of ten (10) consecutive calendar days
or longer;
(ii)
The Employee's commission of an act or course of conduct constituting fraud or
willful malfeasance as to Vemics or the Employee's employment under this
Agreement;
(iii)
The Employee's failure to follow the reasonable, good faith instructions of the
Board or the CEO with respect to Vemics or its operations; or (iv) The
Employee's failure to substantially perform the Employee's duties to Vemics,
other than a failure resulting from the Employee's incapacity because of
physical or mental illness.
For
purposes of Sections 3(c)(iii) and 3(c)(iv) above, the Employee shall be
entitled, no more than three (3) times during the Employment Period, to written
notice that Cause exists under Section 3(c)(iii) or 3(c)(iv) of this Agreement.
The Employee shall, during the fourteen (14) calendar day period after this
notice, be entitled to cure. If the Employee does in fact cure, then Cause shall
not exist under Section 3(c)(iii) or 3(c)(iv) of this Agreement with respect to
the matters set forth in the above-described notice.
(d)
Employee shall have the right to terminate this Agreement for “Good Cause” if at
any time Vemics: (i) changes Employee’s reporting structure (including by
purporting to hire an employee higher in rank that the Employee other than the
CEO or President position) as stated in Section 2(a) (above), (ii) materially
reduces the scope of Employee’s responsibilities commensurate with an employee
of the same exact position in a company of comparable size, function and
capitalization as stated in Section 2(a) (above), (iii) changes Employee’s title
(without employees consent) as stated in Section 2(a) (above), or (iv) otherwise
breaches this Agreement. For purposes of Sections 3(d)(i), 3(d)(ii) and
3(d)(iv), Vemics shall be entitled, no more than two (2) times during the
Employment Period, to written notice that Good Cause exists under those sections
of this Agreement. Vemics shall, during the fourteen (14) calendar day period
after this notice, be entitled to cure. If Vemics does in fact cure, then Good
Cause shall not exist under Section 3(d)(i), 3(d)(ii) or 3(d)(iv) (as
applicable) with respect to the matters set forth in the above-described
notice.
Section
4. Employment Period Compensation.
(a)
Base Salary. For the services rendered by the Employee under this Agreement,
Vemics shall pay the Employee a base salary during the Employment Period at the
rate of $120,000 per year, payable in the same manner as salaries are paid to
other senior employees of the Vemics (e.g., the CEO ).Employee’s salary will
increase to $156,000 upon successful completion of funding of at least
$5,000,000 in a single closing or multiple closings within a 60 day period. The
Board may, from time to time, review the Employee's base salary for possible
merit or cost-of-living increases based on then existing policies of Vemics,
which shall be applied to the Employee no less favorably than they are applied
to other Vemics employees of equivalent or lesser stature to Employee. Any and
all of these increases in base salary shall be deemed to constitute amendments
to this Section 4(a) to reflect the increased amount effective as of the dates
established by the Board for these increases in the resolutions authorizing
these increases.
(b)
Bonuses. Commencing with the Vemics fiscal year or ending in the month of
December 2008, and for each subsequent December during the Employment Period,
Vemics shall pay to the Employee an annual bonus, the computation of which bonus
shall be determined by the Board prior to the beginning of each fiscal year of
Vemics and shall be based upon Vemics achievements with respect to certain
specific performance objectives set forth in the Vemics annual business plan
("Business Plan") as formulated, prepared, and adopted by the Board at or prior
to the beginning of each fiscal year, after consultation with the Employee and
other senior Employee officers or management of Vemics.
(c)
Other Benefits. During the Employment Period, the Employee shall be entitled
to:
(i)
Participate in any medical or health insurance plan, medical or health expense
reimbursement plan, pension or profit sharing plan or similar plans or
arrangements which may be in effect from time to time for the benefit of the
Vemics senior officers (i.e., CEO), or that is generally available to all
employees of the Vemics, in accordance with the terms of these
plans;
(ii)
Paid vacation of three weeks per year, plus the week between Christmas and New
Years;
(iii)
Any other stock options, warrants, equity grants, insurance, expense
reimbursements, car allowances and/or other fringe benefits of any kind
whatsoever, in material specifics and in the aggregate not less favorable than
those received by any other employees of the Vemics, including (without
limitation) the senior officers of Vemics (i.e., CEO).
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Section
5. Amounts Due Upon Termination. In the event that this Agreement and the
Employee's employment are terminated prior to the expiration of the Employment
Period, the Employee shall retain all benefits to which he is entitled upon
termination under any benefit plans of the Vemics in which the Employee is a
participant as of the termination date. In addition:
(a)
Upon this Agreement's termination pursuant to Section 3(b)(i), the Employee
shall be entitled to any unpaid base salary accrued through the date of
termination, but shall be entitled to no bonus or any other payments or
benefits.
(b)
Upon termination pursuant to Section 3(b)(ii), the Employee shall be entitled
to: (i) Any unpaid base salary accrued through the date of termination; (ii) Any
bonus that the Employee would have otherwise been entitled to receive for the
year of termination, prorated through the termination date; and (iii) All
benefits shall terminate effective the date of termination subject to any rights
employee may have under applicable State of Federal Law as pertains to Medical
Insurance Benefits such as under COBRA.
(c)
Upon termination of this Agreement pursuant to Section 3(b)(iii), the Employee's
estate shall be entitled to:
(i)
Any unpaid base salary accrued to the date of termination and (ii) Any bonus
that the Employee would have otherwise been entitled to receive for the year of
termination, prorated through the date of termination.
(d)
Upon either expiration of the Employment Period as the result of Vemics
notifying the Employee of its intention not to renew this Agreement under
Section 3(a), or 3(a)(ii) the termination of the Employee's employment by Vemics
after the expiration of the Employment Period for any reason other than Cause,
the Employee shall, in either case: (i) Be paid his or her then existing base
salary for a period of thirty days after the date of the termination of his or
her employment and (ii) Be provided the medical benefits in effect with respect
to the Employee as of the date of termination of employment for a period of
three (3) months following the date of the termination of his or her employment;
provided, however, that: (A) If Vemics cannot provide these medical insurance
benefits because the Employee is no longer an employee of Vemics, Vemics shall
pay to the Employee a dollar amount equal to the cost to the Employee to obtain
these benefits and (B) Vemics shall only be required to pay the Employee's costs
with respect to these medical insurance benefits if, and only to the extent
that, ordinary risk coverage is available with respect to the Employee at
standard individual rates.
This
base salary payment shall be payable in the same manner as salaries are paid to
other Employee employees of Vemics at that time. Any amounts payable and
benefits provided under this Section 5(d) shall be in lieu of, and not in
addition to, any amounts which the Employee might be entitled to receive under
any severance policy of Vemics.
(e)
Upon either of the following: Termination of this Agreement prior to its
expiration for anything other than Cause as defined in Section 3(c) of this
Agreement; OR termination by Employee for Good Cause, Employee shall be entitled
to all base salary, benefits, and bonuses that would have come due during the 12
month Period following Termination, payable in a lump sum (and without reduction
to NPV) within five business days after the termination by Employee takes
effect. In such circumstances, Employee shall have no obligation to mitigate and
Vemics shall have no right of offset with respect to the amounts due to the
Employee hereunder.
Section
6. Trade Secrets, Inventions, and Patents.
(a)
Definition. "Trade Secrets" shall mean any information, including but not
limited to any patent, design, formula, pattern, compilation of information,
program, device, method, technique, computer program, computer software,
process, customer list, pricing policy, marketing plan or strategy, file record,
computer printout, document, object, drawing, specification, etc., which is used
by Vemics, NuScribe, or a Vemics client that: (i) Gives an opportunity to gain
an advantage over competitors who do not know or use this Trade Secret; (ii)
Derives independent economic value, actual or potential, from not being
generally known to the public or to other persons who can obtain economic value
from this Trade Secret's disclosure or use; and (iii) Is the subject of efforts
that are reasonable under the circumstances to maintain the Trade Secret's
secrecy.
(b)
Nondisclosure.
(i)
The Employee may be provided from time to time with Vemics or a Vemics client's
Trade Secrets. The Employee shall not at any time or in any manner, directly or
indirectly, voluntarily or involuntarily, for compensation or no compensation,
use for his or her own benefit or for the benefit of any other person or entity,
or otherwise divulge, disclose, or communicate to any person or entity any
information concerning any of Vemics or a Vemics clients' Trade Secrets,
including copies thereof, except as may be permitted by the scope of the
Employee's employment by the Vemics. (ii) The Employee shall not make any
unauthorized use or disclosure, directly or indirectly, during or subsequent to
employment with the Vemics, of any Trade Secrets, knowledge, or information of a
confidential or proprietary nature, whether published or unpublished, of Vemics,
Vemics clients, or its licensors or its subsidiaries and affiliates, which the
Employee will or may have access to or become acquainted with or which will and
may be generated or acquired, during the course of employment with the Vemics or
the Vemics clients. (iii) This covenant of nondisclosure and the Employee's
liability for this covenant's breach shall survive for a period of two years2
after this Agreement's expiration or termination.
(c)
Liability for Trade Secret Disclosure. (i) Each of the restrictions contained in
this Agreement relating to Trade Secret nondisclosure is reasonable and
necessary to protect Vemics and the Vemics clients' legitimate business
interests, such that any violation would cause irreparable injury to Vemics,
Vemics clients, or both. (ii) In the event of any violation, Vemics shall be
authorized and entitled to seek, from any court of competent jurisdiction,
preliminary and permanent injunctive relief as well as an equitable accounting
of all profits or benefits (if any) arising out of this violation and any
damages for this Agreement's breach. (iii) These rights and remedies shall be
independent, severable, and cumulative and shall be in addition to any other
rights or remedies to which Vemics may be entitled. (iv) Notwithstanding
anything to the contrary herein, it will at all times be the burden of the party
seeking to enforce protection for an alleged trade secret to establish that the
matter in question is, in fact a trade secret.
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(d)
Additional Employee Rights and Obligations: The Employee
hereby agrees to be bound by the terms and conditions of the Proprietary
Information and Inventions Agreement attached hereto and made a part hereof. In
the event of a conflict between this agreement and Proprietary Information and
Inventions Agreement, the terms and conditions of the Proprietary Information
and Inventions Agreement shall prevail. Section 7. Notices. Any notice required
or permitted under this Agreement shall be sufficient if it is in writing and
shall be deemed given (a) at the time of personal delivery to the addressee, or
(b) at the time sent certified mail, with return receipt requested, addressed as
follows:
If to
the Employee:
Xxxxx
Xxxxx
0
Xxxxx Xxxxx
Xxxxxxxx
Xxxxx, XX 00000
If to
the Vemics:
Xxxx
Xxxxx, CEO
000
Xxxxxx Xxxxxxx Xxxxx
Xxxxxx,
XX 00000
Section
8. No Waiver. Failure by either Vemics or the Employee at any time or times
hereafter to require strict performance of any of the provisions, terms, or
conditions contained in this Agreement shall not waive, affect, or diminish any
right of either Vemics or the Employee at any time or times thereafter to demand
strict performance therewith, and with respect to any other provisions, terms,
or conditions contained in this Agreement. Any waiver of a provision, term, or
condition shall not waive or affect any other failure to perform a provision,
term, or condition of this Agreement, whether prior or subsequent thereto, and
whether of the same or a different type. None of the provisions, terms, or
conditions of this Agreement shall be deemed to have been waived by any act or
knowledge of either Vemics or the Employee except by an instrument in writing
signed by either the Vemics or the Employee and directed to either Vemics or the
Employee specifying this waiver.
Section
9. Severability. The invalidity or unenforceability of any provision of this
Agreement shall in no event affect the validity or enforceability of any other
provision.
Section
10. Prior Agreements. The Employee hereby represents and warrants to Vemics that
the Employee has all necessary power and authority to enter into this Agreement
and to perform the Employee's duties and obligations under this Agreement in
accordance with this Agreement's terms and that the execution and delivery of
this Agreement by the Employee does not conflict with, or otherwise violate, the
provisions of any other agreement to which the Employee is a party or by which
the Employee is bound, including, but not limited to, any employment agreement
or similar arrangement with NuScribe Inc. Any such prior employment arrangement
or agreement with NuScribe Inc. shall immediately, irrevocably, and
automatically terminate without liability to Vemics or the Employee upon the
execution and delivery of this Agreement by Vemics and the
Employee.
Section
11. Binding Effect and Benefit. The provisions of this Agreement shall be
binding upon, and shall inure to the benefit of, the successors and assigns of
Vemics, and to the heirs, representatives, executors, devisees, and legatees of
the Employee.
Section
12. Entire Agreement. This Agreement embodies the entire agreement between
Vemics and the Employee with respect to this subject matter, and supersedes all
prior agreements, contracts, or understandings with respect to these matters.
Except as expressly provided in Section 4(a), this Agreement may be amended only
by an instrument in writing executed by Vemics and the
Employee.
Section
13. No Assignment. This Agreement shall not be assignable by either Vemics or
the Employee.
Section
14. Captions. The captions of the several Sections and Paragraphs of this
Agreement are inserted for convenience of reference only. They constitute no
part of this Agreement and are not to be considered in its application,
interpretation, or construction.
Section
15. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed one and the same instrument which may be
sufficiently evidenced by any one counterpart.
Section
16. Applicable Law. Except to the extent preempted by federal law, the
provisions of this Agreement are to be construed, administered, and enforced in
accordance with the domestic, internal law of the State of New York, without
regard to its conflicts of law principles.
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IN WITNESS WHEREOF, the Vemics and the Employee
have executed this Agreement as of the date first above
written.
/s/
Xxxx
Xxxxx
By:
Xxxx Xxxxx, CEO
EMPLOYEE
/s/
Xxxxx
Xxxxx
By:
Xxxxx Xxxxx
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