AGREEMENT
Agreement made and entered into as of the 21st day of July,
1997 between Cable & Co. Worldwide, Inc. ("Cable & Co."), a Delaware corporation
having its principal place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
and Xxxxx Xxxxxxxx ("Albahari") residing at 0 Xxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Albahari is presently employed by Cable & Co.
pursuant to an employment agreement made and entered into as of the 1st day of
January, 1995 between Cable & Co. and Albahari (the "Employment Agreement"); and
WHEREAS, the parties would like to terminate this employment
relationship on amicable terms.
NOW, THEREFORE, in consideration of the covenants and
agreements contained herein, the parties agree as follows:
1. Termination. Albahari's employment with Cable & Co. will be
terminated effective as of July 21, 1997. Albahari will also resign as a
director of Cable & Co. effective as of July 21, 1997. Albahari also hereby
resigns as an officer and a director of any "affiliate" of Cable & Co. as
defined under Rule 405 under the Securities Act of 1933, as amended, including,
but not limited to, any wholly-owned subsidiaries of Cable & Co.
2. Payments.
(a) Cable & Co. shall pay Albahari at the rate of two hundred
thousand dollars ($200,000) per year through September 30, 1998. The payments
shall be made in equal semimonthly installments, subject to deduction for rent
payments made by Cable & Co. pursuant to Section 2(b) hereof. The period from
the date of this Agreement through September 30, 1998 is hereafter referred to
as the "Payment Period."
(b) Cable & Co. shall make all monthly payments of rent due
under the Lease between Albahari and Xxxxxxx Xxxxx (the "Lease") through June
30, 1998. The rent payments made pursuant to this Section 2(b) shall be deducted
from the payments made to Albahari pursuant to Section 2(a) of this Agreement in
equal semimonthly installments prorated over the term of the Payment Period.
Cable & Co. shall also pay Albahari four hundred dollars ($400) per month
through June 30, 1998 to reimburse him for expenses associated with the use his
automobile.
(c) Cable & Co. shall reimburse Albahari for up to twenty five
thousand dollars ($25,000) of the legal expenses incurred by him in connection
with his employment and the termination of his employment with Cable & Co. Cable
& Co. shall only be obligated to pay those expenses for which a written
statement from the provider and/or receipts are submitted to Cable & Co.
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3. Non-Competition Covenant. Cable & Co. hereby waives the
non-competition requirements imposed upon Albahari pursuant to Section 11 of the
Employment Agreement as well as any and all claims or causes of action Cable &
Co. may have in the event of Albahari's breach of such Section. In lieu of the
requirements imposed upon Albahari pursuant to Section 11 of the Employment
Agreement, and in consideration of the sum of $50,000 which amount is included
in the payments set forth in Paragraph 2(a) hereof, the following shall apply:
(a) For a period of one year after the date first above
noted (the "Non-Competition Period"), Albahari shall not (i) accept employment
by, or engage, directly or indirectly, in any work, labor or services for any of
the entities noted in Schedule "A" annexed hereto, their parents, subsidiaries
and affiliates. For purposes of this Agreement, "affiliates" of any entity noted
on Schedule "A" include any entity, directly or indirectly, controlling or
controlled by or under common control of such other entity or by any officer,
director or partner of such other entity; or (ii) induce or actively attempt to
influence any employee or consultant of Cable & Co. to terminate his or her
employment or consultancy with Cable & Co.. Nothing herein contained shall be
deemed to prevent ownership by Albahari and his associates (as said term is
defined in regulation 14(A) promulgated under the Securities Exchange Act of
1934 as in effect on the date hereof), collectively, of not more than 5% of the
outstanding capital stock of a corporation listed on a national securities
exchange.
(b) Enforceability: Injunctive Relief - (i) The parties to
this Agreement consider the restrictions contained herein reasonable as to the
duration of the Non-Competition Period and the extent of the Territory. However,
if the duration of the Non-Competition Period or the extent of the Territory
herein specified should be judged unreasonable in any Court of competent
jurisdiction, such Court may reduce the duration of the Non-Competition Period
by such number of months and/or reduce the area of the Territory such that the
foregoing covenant may be enforced.
(ii) Albahari agrees and recognizes that in
the event of a breach or threatened breach by him of the provisions of the
foregoing covenant, Cable & Co. may suffer irreparable harm, and money damages
may not be an adequate remedy. Therefore, Cable & Co. shall be entitled as a
matter of right to specific performance of the foregoing covenant by way of
temporary or permanent injunctive relief in a Court of competent jurisdiction.
4. Employee Benefits. Cable & Co. shall maintain health
insurance coverage for Albahari and his dependents through December 31, 1997
under the same terms and conditions as it did prior to the termination of his
employment; provided, however, that Cable & Co.'s obligation to reimburse
Albahari for any unreimbursed medical expenses incurred by Albahari before
December 31, 1997 shall be limited to an aggregate of $25,000. Albahari and his
dependents may elect continued coverage in accordance with the terms of COBRA
for up to an additional 18 month period beginning January 1, 1998. Albahari and
his dependents shall also be eligible to convert this health insurance coverage
to an individual policy on the same terms and conditions as other employees who
lose health insurance coverage.
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5. Mutual Release. Except for any benefits as of the date
hereof to which Albahari may be entitled under Internal Revenue Code ss. 401(k)
plans, Albahari hereby releases and discharges Cable & Co., its affiliates and
their respective partners, directors, officers, employees and agents
(collectively, "Releasees") from any and all claims, actions, causes of action,
damages, liabilities, promises, debts, compensation, losses, obligations, costs
or expenses of any kind or nature, which he ever had or now has against each or
any of the Releasees, including, but not limited to all claims alleged in an
action pending in the Superior Court, Judicial District of Stamford/Norwalk
entitled Xxxxx Xxxxxxxx v. Cable & Co. Worldwide, Inc., Xxxx Xxxxxxx and Xxxxxx
X. Xxxxx; and those arising from or related to his shareholder status,
employment relationship, or service as a director with Cable & Co. or the
termination of such employment, any alleged violation of any covenant of good
faith and fair dealing relative to his employment or any applicable labor or
employer-employee statute, regulation or ordinance, whether federal, state or
local (including, by way of specificity but not of limitation, the Age
Discrimination Act of 1967, as amended, and the Americans With Disabilities
Act). Cable & Co. hereby releases and discharges Albahari from any and all
claims, actions, causes of action, damages, liabilities, promises, debts,
compensation, losses, obligations, costs or expenses of any kind or nature,
which Cable & Co. ever had or now has against Albahari, including, but not
limited to, those arising from his shareholder status, employment relationship,
or service as a director with Cable & Co., or the termination of such
employment. Notwithstanding the foregoing, nothing in this Agreement shall be
deemed to release (i) Cable & Co. from: (a) its obligation to indemnify Albahari
for actions arising out of his duties as an officer and director of Cable & Co.;
and (b) any other obligation arising under this Agreement; and (ii) Albahari
from any obligation arising under this Agreement.
6. Protection of Reputation. Neither party hereto nor their
agents or employees will take any action which is intended, or would reasonably
be expected, to harm the other party's reputation or which would reasonably be
expected to lead to unwanted or unfavorable publicity to the other party;
provided, however, the foregoing limitation shall not apply to (a) compliance
with any legal process or subpoena or (b) statements in response to authorized
inquiry from a court or regulatory body.
7. Nondisclosure. Albahari and Cable & Co. agree that the
terms and conditions of this Agreement are confidential and that each will not,
without the express prior written consent of the other party, in any manner
publish, publicize, disclose or otherwise make known or permit or cause to be
made known such terms and conditions to anyone (other than such party's
prospective or current lenders or such party's financial and legal advisors, who
shall agree to be bound by this paragraph prior to disclosure of the terms or
conditions hereof to such persons), except as required by law, or in any
proceeding to enforce the terms of this Agreement.
8. Confidentiality. Albahari acknowledges that during the term
of his employment by Cable & Co., he had access to certain confidential
information of the Company, including without limitation information about
business plans, customers, manufacturers, suppliers sourcing, costs, profits,
markets, sales, products, product design, key personnel, pricing policies,
operational methods, reports on the results of research and development work
conducted by or on behalf of Cable & Co., other business affairs and methods and
other information not available to the public or in the public domain
(hereinafter referred to as
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"Confidential Information"). Albahari covenants and agrees that he will (i) keep
secret all Confidential Information of Cable & Co. and will not, directly or
indirectly, while such Confidential Information remains confidential, disclose
or disseminate to anyone, or make use of, for any purpose whatsoever, such
Confidential Information; and (ii) promptly deliver to the Company all tangible
materials and objects containing Confidential Information (including all copies
thereof, whether prepared by Albahari or others) which Albahari may possess or
have under his control.
9. Guarantees. Cable & Co. shall indemnify and hold harmless
Albahari from any and all liabilities associated with the personal guarantees he
executed in connection with his employment with Cable & Co.
10. Stock Options. Cable & Co. shall xxxxx Xxxxxxxx the option
to purchase all or any part of 901,756 shares of common stock of Cable & Co. at
a purchase price of $.01 per share in the manner and subject to the conditions
provided in the Stock Option Agreement dated as of July 21, 1997 ("Stock Option
Agreement") by and between Cable & Co. and Albahari. (Albahari acknowledges that
Cable & Co. is contemplating a reverse stock split and, in the event of such
reverse stock split, the shares underlying the stock options are subject to
adjustment as provided for in the Stock Option Agreement.) Cable & Co. hereby
agrees to register the shares of Common Stock underlying the stock options,
under the Securities Act of 1933, as amended, and cause such shares to be listed
on NASDAQ as soon as practicable within five business days.
11. Future Cooperation.
(a) Albahari agrees to consult with the Board of Directors and
management of Cable & Co., from time to time, as requested by Cable & Co. with
regard to operations, strategic planning and business development and such other
aspects of the business of Cable & Co. as Albahari and Cable & Co. may agree
from time to time. Albahari agrees to use his best efforts to perform all
services required hereunder in a competent and timely manner.
(b) Albahari hereby agrees to cooperate with Cable & Co. and
its attorneys in connection with the defense and preparation of a defense
relating to any claim or potential claim which arose during Albahari's
employment by Cable & Co.
12. No Waiver. No delay or failure by either party to this
Agreement to exercise any right under this Agreement and no partial or single
exercise of that right shall constitute a waiver of that or any other right. No
waiver shall be valid unless in writing and signed by Albahari or an authorized
officer of Cable & Co., as the case may be, and any waiver by either party of a
breach of any provision hereof shall not be construed as a waiver of any
subsequent breach or violation thereof.
13. Severability. If any provision of this Agreement shall
hereafter be held to be invalid, unenforceable or illegal in whole or in part,
in any jurisdiction under any circumstances for any reason, (i) such provision
shall be reformed to the minimum extent necessary to cause such provision to be
valid, enforceable and legal while preserving the intent of the parties as
expressed in, and the benefits to the parties provided by, this Agreement or
(ii)
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if such provision cannot be so reformed, such provision shall be severed from
this Agreement and an equitable adjustment shall be made to this Agreement
(including, without limitation, addition of necessary further provisions to this
Agreement) so as to give effect to the intent as so expressed and the benefits
so provided. Such holding shall not affect or impair the validity,
enforceability or legality of such provision in any other jurisdiction or under
any other circumstances. Neither such holding nor such reformation or severance
shall affect or impair the legality, validity or enforceability of any other
provision of this Agreement.
14. Governing Law; Submission to Jurisdiction. The validity,
interpretation, performance and enforcement of this agreement shall be governed
by the laws of the State of New York (without giving effect to the laws, rules
and principles of the State of New York regarding conflicts of laws). Albahari
and Cable & Co. agree that any action, proceeding or claim arising out of, or
relating in any way to, this Agreement shall be brought and enforced in the
courts of the State of New York and irrevocably submit to such jurisdiction,
which jurisdiction shall be exclusive. Albahari and Cable & Co. hereby
irrevocably waive any objection to such jurisdiction or an inconvenient forum.
15. Miscellaneous. This Agreement may not be amended except by
a written agreement signed by Albahari and a duly authorized officer of Cable &
Co. This Agreement shall be binding upon and inure to the benefit of Albahari
and Cable & Co. and his heirs and Cable & Co.'s successors and assigns.
16. Other. Within ten days of signing this Agreement, Albahari
shall (a) refund outstanding advances up to $13,393.42 or submit appropriate and
reasonable documentation for valid business expenses to Cable & Co.; (b) return
the personal laptop computer that was issued to him in working condition or pay
Cable & Co. $2,981.52; (c) return the painting from his office or pay Cable &
Co. $1,200; and (d) return to Cable & Co. the $1,900 security deposit for his
apartment. If the obligations stated in subsections (a) - (d) are not satisfied
within ten days of the date of this Agreement, Cable & Co. may deduct the
respective amounts stated above from the first payments due Albahari under
Section 2(a) above. Cable & Co. shall follow Albahari's instructions for
redeeming fifty percent of the bonus points accrued in the American Express
Membership Rewards program for Account No. 1M78486933 through June 30, 1997.
Cable & Co. shall also reimburse Albahari for the parking expenses he has
incurred through June 30, 1997 in accordance with the same terms and conditions
as it had prior to the termination of his employment.
17. Opportunity to Review. Albahari acknowledges and agrees
that he has been given a reasonable period, up to and including twenty-one days,
to review and sign this Agreement. Albahari further acknowledges that he has
reviewed this agreement with legal counsel before signing it.
18. Right to Revoke This Agreement. Albahari acknowledges that
he signed this Agreement on the date set forth above. In accordance with
applicable law, he may revoke this Agreement at any time during the seven-day
period after he signs this Agreement. Such revocation may be made by delivering
a written notice of revocation to Cable & Co. during such seven day period. This
Agreement will not be effective or enforceable until the date on which the
revocation period has expired (the "Effective Date").
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IN WITNESS WHEREOF, the parties have affixed their signatures
the day and year written above.
CABLE & CO. WORLDWIDE, INC.
/s/ Xxxx Xxxxxxx
By: Xxxx Xxxxxxx
Title: President
/s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
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SCHEDULE A
Intentionally Omitted
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