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EXHIBIT 10.4
EMPLOYMENT AGREEMENT FOR XXXX X. XXXXXXX
AGREEMENT, made as of September 29, 2000, by and between Xxxxxx Xxxxxx
Communications Inc., a New York corporation, with a business address of 0000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Corporation"), and Xxxx Xxxxxxx,
an individual residing at 00 Xxxxxxxxxxx Xxxx, Xxxxxx Xxxxxxx, XX 00000 (the
"Executive").
W I T N E S S E T H :
WHEREAS, the Corporation desires to employ the Executive, and the Executive is
agreeable to accepting such employment, under the terms of this Agreement;
NOW, THEREFORE, in consideration of the promises and the mutual covenants herein
contained, the parties agree as follows:
1. The Corporation employs the Executive, and the Executive agrees to
serve the Corporation, for a period (the "Period of Employment") of two
(2) years commencing on the date hereof, ending at 12:00 midnight on
the second anniversary thereof (the "Termination Date").
2. During the Period of Employment hereunder, the Executive shall be
employed by the Corporation as the President of the Long Island
operations of the Corporation, and, except as hereinafter provided,
shall devote his full time and attention to the business and affairs of
the Corporation, use his best efforts consistent with such time
requirements to promote the business of the Corporation, hold the
offices in the Corporation to which from time to time he may be elected
or appointed, and perform such executive duties as shall be assigned to
him by the Board of Directors of the Corporation, provided such duties
are consistent with those currently being performed by the Executive
contemporaneously with the execution of this Agreement. All such
requests or instructions for services to be performed by the Executive
(consistent with the terms hereof) shall be made solely by Xxxxxx X.
Xxxxxxxxxx to whom Executive shall report or if Xxxxxx X. Xxxxxxxxxx
shall have terminated his employment then in that event the Executive
shall report to Xxxxx X. Xxxxxx. In connection with the performance of
his duties hereunder, the Executive, from time to time, may be required
to travel both within and outside of the United States of America,
provided however that the Executive shall not be required to travel
more than ten (10) consecutive days in any calendar month throughout
the term hereof.
2.1. The Executive shall be reimbursed for all travel and other
expenses incidental to the performance of services hereunder in
accordance with the usual practices of the Corporation and all
expenses so reimbursed shall be deemed to have been approved.
Such expenses shall be reimbursed either by the Corporation
providing the Executive a corporate credit card to use for such
expenses or upon presentation by the Executive of invoices,
vouchers or other documents evidencing such expenses. The
Corporation shall pay 100% of the costs of the
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Executive's participation in the Corporation's medical and dental
insurance plans in existence on the execution date of this
Agreement. The Executive shall be entitled to vacations in
accordance with the Corporation's existing vacation policy
(provided, however, that his vacation time shall not be less than
four (4) weeks per year). The Corporation shall provide the
Executive with reasonable perquisites suitable to the office
which he holds.
3. The Corporation shall compensate the Executive for the services to be
rendered by him hereunder, including all services to be rendered as an
officer or director of the Corporation, by paying the Executive a
salary at the rate of not less than Two Hundred Forty Thousand and
No/100 Dollars ($240,000.00) per annum. Such salary shall be payable in
accordance with the usual salary payment practices of the Corporation
or as otherwise determined by the Board of Directors, but no less
frequently than monthly
4. In the event the Executive is terminated by the Corporation prior to
the Termination Date (a "Cessation of Employment) otherwise than for
"cause" (as hereinafter defined in Paragraph 8):
4.1. The Corporation shall within five (5) days of the Cessation of
Employment pay to the Executive a lump sum payment of Two Hundred
and Twenty-five Thousand and no/100 Dollars ($225,000.00), as a
special severance and termination payment which amount shall be
paid in addition to and not in lieu of any other amounts payable
to the Executive by the Corporation; and
4.2. For the entire remaining portion of the then current Period of
Employment, the Corporation shall continue to pay to the
Executive the salary then being paid by the Corporation to the
Executive pursuant to the provisions of Paragraph 3 prior to the
date of the Cessation of Employment; and
4.3. For the entire remaining portion of the then current Period of
Employment, the Executive shall continue to be eligible to, and
shall participate in, all employee benefit programs of the
Corporation in which the Executive participated prior to the date
of the Cessation of Employment including, without limitation, all
savings, life, accident, medical and dental insurance plans and
programs; and the Executive shall be entitled to make whatever
elections may be available to him with respect to his interests
in savings and comparable plans. In addition, for the entire
remaining portion of the then current Period of Employment, the
Corporation shall pay 100% of the costs of the Executive's
participation in the Corporation's medical and dental insurance
plans.
4.4. If by the Termination Date, the Corporation and the Executive
have not entered into a mutually acceptable written renewal
employment agreement for a period of at least one year beyond the
Termination Date (a "Renewal Agreement"), the Corporation shall
pay to the Executive, on or before the fifth day following the
Termination Date, in one lump sum as a special severance and
termination payment, the amount of Two Hundred Twenty-five
Thousand and no/100 Dollars ($225,000.00), which amount shall be
in addition to, and not in lieu of, any other
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amounts payable to the Executive by the Corporation. Neither the
Corporation nor the Executive shall have any obligation to
consider or negotiate a Renewal Agreement, and the Corporation
shall be obligated to make this special severance and termination
payment whether or not there is any attempt to negotiate a
Renewal Agreement and irrespective of the reasons the parties do
not enter into such a Renewal Agreement.
5. In the event of the Executive's death during the term hereof, this
Agreement shall terminate on the date of death of the Executive.
6. During the term of the Executive's employment hereunder and for a
period of twelve (12) months following the end of the employment period
(the "Restricted Period"), the Executive shall not engage in or carry
on, directly or indirectly, either for himself or as a member of a
partnership or as a stockholder, investor, lender, officer or director
of a corporation (other than the Corporation), or as an employee or
agent of, or consultant to, any person, partnership or corporation
(other than the Corporation), or in any capacity on behalf of any trust
or other organization or entity, any business in competition with (as
defined below) the Corporation as long as any like business is carried
on by the Corporation or by any person, corporation, partnership, trust
or other organization or entity deriving title to the good will of such
business, directly or indirectly, from the Corporation; provided,
however, that nothing herein contained shall prevent the Executive from
purchasing securities of any publicly-owned company, the securities of
which are listed on a national securities exchange or registered
pursuant to Section 12 (g) of the Securities Exchange Act of 1934, as
amended, but the total holding of any such security so listed or
registered shall be limited to one (1%) percent of the amount of any
such security outstanding. The Executive may make investments, without
restriction on amount, in non-competitive private businesses. The term
"in competition with" as used in this Agreement shall mean a business
which is conducted anywhere within the State of Florida or the State of
New York and is engaged in the business of providing advertising or
public relations services.
7. To induce the Corporation to execute and deliver this Agreement, and to
protect the trade secrets and the business of the Corporation, the
Executive hereby covenants and agrees that during the Restricted
Period, the Executive will not, whether for the Executive's own account
or for the account of any other person, solicit business in competition
with the business of the Corporation, from any person known by the
Executive to be a customer of the Corporation, whether or not the
Executive had personal contact with such person during and by reason of
the Executive's employment with the Corporation.
8. For the purposes of this Agreement, the term "for cause" shall mean,
and be limited exclusively to, the following actions by the Executive:
fraud; misappropriation of funds or property of the Corporation for his
own use; embezzlement of the Corporation's property; or a willful,
deliberate and intentional material breach by Executive of the
obligations to be performed by him of Paragraphs 2, 6, 7, 9, 10 or 11
of this Agreement. A mere allegation by the Corporation shall not be
sufficient; the burden of proving that a termination is "for cause"
shall be on the Corporation. It is specifically agreed that "cause"
shall not include any act of commission or omission by the Executive in
the
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exercise of Executive's business judgement as a senior executive of the
Corporation or a member of the Board of Directors of the Corporation.
It is further specifically agreed that a termination of this Agreement
by virtue of Employee's inability to perform his duties because of
total or partial disability shall not be a termination "for cause", it
being specifically understood and agreed that the Executive (or his
estate) shall be paid the special severance and termination payment
provided for in paragraph 4.1 and the Executive shall have the rights
provided for under paragraph 4.3 (but not the right to continued salary
under paragraph 4.2) if the Executive's employment is terminated for
such reasons.
It is further specifically agreed that the Corporation shall be
conclusively precluded from contending that the Executive committed a
willful, deliberate and intentional breach of his obligations under
Paragraph 2 of this Agreement unless the Corporation has given the
Executive written notice of the claimed breach, specifying the conduct
alleged to comprise willful, deliberate and intentional material
breach, at least thirty (30) days prior to the termination and the
conduct continues or is repeated after the Executive's receipt of such
notice.
If the Corporation withholds the special severance payment to
Executive, or any other payment which would be due to the Executive
absent termination "for cause", and the Corporation does not prevail on
its contention that Executive's employment was terminated for cause or
any other defense to payment, then the Corporation shall be liable for
all legal expenses, including reasonable attorney's fees, incurred by
the Executive to enforce the payment obligation.
9. The Executive agrees that any and all systems, work-in-progress,
inventions, discoveries, improvements, processes, compounds, formulae,
patents, copyrights and trademarks, made, discovered or developed by
him, solely or jointly with others, or otherwise, during the Employment
Period by the Corporation, and which may be useful in or relate to any
business of the Corporation, shall be fully disclosed by the Executive
to the Board of Directors of the Corporation, and shall be the sole and
absolute property of the Corporation, and the Corporation will be the
sole and absolute owner thereof. The Executive agrees that at all
times, both during the Period of Employment and after the termination
of his employment, he will keep all of the same secret from everyone
except the Corporation and will disclose the same to no one except as
required for the business of the Corporation or unless otherwise
authorized in writing by the Board of Directors or the Chairman of the
Board of Directors of the Corporation, unless such information shall
have become public knowledge or shall have become known generally to
competitors through sources other than the Executive.
10. The Executive agrees, at the request of the Corporation, to make
application in due form for United States Letters Patent and foreign
Letters Patent on any of said systems, inventions, discoveries,
improvements, processes, compounds and formulae, and to assign to the
Corporation all of his right, title and interest in and to said
systems, inventions, discoveries, improvements, processes, compounds,
formulae and patent applications therefor or any patents thereon, and
to execute at any and all times any and
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all instruments, and to do any and all acts necessary, or which the
Corporation may deem desirable, in connection with such application of
letters Patent, to establish and perfect in the Corporation the entire
right, title and interest in and to said systems, inventions,
discoveries, improvements, processes, compounds, formulae and patent
applications therefor or patents thereon or in the conduct of any
proceedings or litigation in regard thereto. It is understood and
agreed that all costs and expenses, including, but not limited to,
reasonable attorney's fees, incurred at the request of the Corporation
in connection with any action taken by the Executive pursuant to this
Paragraph 10, shall be borne by the Corporation.
11. The Executive agrees that, during or after the termination of this
Agreement, he shall not divulge, use, furnish or make accessible to any
person, corporation, partnership, trust or other organization or
entity, any information, trade secrets, technical data or know-how
relating to the business, business practices, methods, products,
processes, equipment or any confidential or secret aspect of the
business of the Corporation without the prior written consent of the
Corporation, unless such information shall have become public knowledge
or shall have become known generally to competitors of the Corporation
through sources other than the Executive.
12. The Executive shall be entitled to participate in the life insurance,
dental, 401(k) and major medical group plans of the Corporation, and in
each other employee benefit plan that the Corporation has or may
establish and maintain for the benefit of the employees of the
Corporation. Notwithstanding the foregoing, the Executive shall receive
health insurance benefits equal to or better than those presently being
provided to the Executive.
13. The Executive agrees that the Corporation may procure life insurance on
the life of the Executive, in such amount as the Corporation may deem
appropriate, with the Corporation named as the sole beneficiary under
such policy or policies. The Executive agrees that upon request from
the Corporation, he will submit to a physical examination and will
execute such applications and other documents as may be required for
the procurement of such insurance.
14. The Executive acknowledges that he has been employed for his unique
talents and that his leaving the employ of the Corporation would
seriously hamper the business of the Corporation.
15. This Agreement sets forth the entire Agreement and understanding
between the parties and merges and supersedes all prior discussions,
agreements and understandings of every kind and nature between them
concerning the subject matter hereof. No variation hereof shall be
deemed valid unless in writing and signed by the party to be bound
thereby and no discharge of the terms hereof shall be deemed valid
unless by full performance by the parties or by a writing signed by
both parties. No waiver by a party of any breach by the other party of
any provision or condition of this Agreement by him or its to be
performed shall be deemed a waiver of the breach of a similar or
dissimilar provision or condition at the same time or any prior or
subsequent time or of the provision or condition itself. Nothing
contained herein shall prevent the Corporation from waiving any
requirement
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that the Executive perform the services required hereunder; provided,
however, that any such waiver shall be in writing.
16. All notices relating to this Agreement shall be in writing and shall be
deemed to have been given at the time when delivered personally,
against appropriate receipt, or when mailed in any general or branch
office of the United States Postal Service, by registered or certified
mail, postage prepaid, return receipt requested, addressed to the
address of the other party hereinbefore set forth, or to such changed
address as the other party may fix by notice; provided, however, that
any notice of change of address shall be effective only upon receipt.
17. This Agreement shall inure to the benefit of and be binding upon the
Corporation, its successors and assigns, including, without limitation,
any corporation which may acquire all or substantially all of the
Corporation's assets and business or with or into which the Corporation
may be consolidated or merged, and the Executive his heirs, executors,
administrators and legal representative, provided that the obligations
of the Executive hereunder may not be delegated.
18. If any provision of this Agreement or the application of any provision
to this Agreement is declared to be illegal, invalid or otherwise
unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to
delete such illegal, invalid or unenforceable provision, unless such
declaration shall substantially impair the benefit of the remaining
portions of this Agreement.
19. This Agreement shall be governed by the laws of the State of New York
governing contracts made to be performed in such State without giving
effective to principles of conflicts of law.
20. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
be deemed to be the same Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of
the date first set forth above.
XXXXXX XXXXXX COMMUNICATIONS, INCORPORATED
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxx Xxxxxxx
-------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxx Xxxx Xxxxxxx
Title: Chief Executive Officer
