EXHIBIT 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of March 1, 2005, by
and between ACE MARKETING & PROMOTIONS, INC., a New York corporation having an
office at 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxx, XX 00000 ("Company") and XXXXXXX
XXXXXXX ("Xxxxxxx") with an office at 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxx, XX
00000.
W I T N E S S E T H:
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WHEREAS, Company desires to engage the services of Trepeta and Trepeta
desires to provide the services to Company in connection with Company's
business; and
WHEREAS, both parties desire to clarify and specify the rights and
obligations which each have with respect to the other in connection with
Trepeta's services.
NOW, THEREFORE, in consideration of the agreements and covenants herein
set forth, the parties hereby agree as follows:
1. EMPLOYMENT
Trepeta hereby agrees to be employed by Company as the President of
Company, and Trepeta hereby agrees to render his services as Company's President
for the Term (as hereinafter defined), all subject to and on the terms and
conditions herein set forth.
2. DUTIES AND RESPONSIBILITIES OF TREPETA
(a) Trepeta will be the President of Company, subject to the other
provisions of this Section 2. Although Trepeta shall be required to travel from
time to time, Trepeta's primary office shall be based in Valley Stream, New York
City or the surrounding area. Trepeta shall not be required to relocate from the
New York City metropolitan area without Trepeta's prior written consent, which
consent may be withheld by Trepeta in his absolute discretion.
(b) Trepeta shall be elected to the Board of Directors of the Company
(the "Board") and during the Term shall be nominated for re-election to the
Board.
(c) During the term of this Agreement, Trepeta will exercise such
authority, perform such executive duties and functions and discharge such
responsibilities as he deems appropriate as are customarily vested in an officer
of a public company with said title, including, authority with respect to among
other matters, purchasing, pricing, sales and the hiring, compensating and
discharging of employees, financing arrangements, all subject to the overall
authority of the Board of Directors of the Company consistent with the By-Laws
of the Company. As such, Trepeta shall be primarily responsible for the
direction and management of the current and future affairs and business of the
Company. Trepeta shall use his best efforts to maintain and enhance the business
and reputation of Company and shall perform such other duties commensurate with
his position as may, from time to time, be designated to Trepeta by the Board.
3. EXCLUSIVITY OF SERVICE
The Company agrees that Trepeta shall be required to devote the
necessary business time, effort and attention to the business and efforts of the
Company and its subsidiaries as he deems necessary for the performance of his
duties. Trepeta may pursue other outside business interests that are not related
to the same business as Ace Marketing, as long as it does not interfere with the
everyday responsibilities of Ace Marketing.
4. COMPENSATION; BONUS
(a) In consideration for Trepeta's services to be performed under this
Agreement and as compensation therefor, Company shall pay to Trepeta, commencing
as of the date set forth above, in addition to all other benefits provided for
in this Agreement, a base salary at the rate of One Hundred Forty-Four
($144,000) Dollars per annum, (the "Trepeta Base Salary") which Trepeta Base
Salary will be increased in accordance with the provisions set forth in Section
6 and may be further increased in the sole discretion of the Board. All payments
of Trepeta Base Salary shall be payable in monthly installments or otherwise in
accordance with Company's policies.
(b) In addition to the Trepeta Base Salary, Trepeta shall be entitled
to an annual bonus (the "Annual Bonus") of at least 5% pre-tax earnings (as
defined under generally accepted accounting principles) for the most recently
completed fiscal year before deduction of annual bonuses paid to officers. The
Annual Bonus, if any, shall be paid on the last business day of March of each
year commencing in 2006. Should this Agreement be terminated prior to the end of
any fiscal year for any reason other than that provided in paragraph 9(a), a pro
rata portion of the Annual Bonus shall be paid within 30 days of such
termination.
5. BENEFITS AND INDEMNIFICATION
Trepeta shall be entitled to the following during and in respect of the
term of this Agreement:
(a) Company shall provide Trepeta with hospitalization, medical and
dental insurance coverage and 401(k) benefits as is customary for other senior
officers of the Company.
(b) Trepeta shall be entitled to five weeks paid vacation to be taken
at times mutually and reasonably agreed upon by Trepeta and Company in addition
to all other holidays established as part of Company's standard practices.
(c) Trepeta shall each be entitled to reimbursement for all reasonable
travel, reasonable entertainment and other reasonable expenses incurred in
connection with Company's business, provided that such expenses are adequately
documented and vouchered in accordance with Company's policies.
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(d) The Company shall provide to Trepeta to the full extent provided
for under the laws of the Company's state of incorporation and the Company's
Certificate of Incorporation and Bylaws, indemnification for any claim or
lawsuit which may be asserted against Trepeta when acting in such capacity for
the Company and/or any subsidiary or affiliated business. The Company shall use
reasonable best efforts to include Trepeta as an insured under all applicable
directors' and officers' liability insurance policies maintained by the Company,
and any other subsidiary or affiliated business.
(e) The Company shall provide Trepeta with the use of a Company leased
or owned automobile with all expenses paid for by the Company.
6. ADDITIONAL COMPENSATION
On March 1 of each year under this Agreement commencing March 1, 2006,
Trepeta shall be entitled to receive (i) an increase of $24,000 in his annual
salary and (ii) fully vested 10-year non-statutory options to purchase 50,000
shares of Common Stock at an exercise price to be determined by the board, which
may be discounted if permitted by the Stock Option Plan, but not greater than
100% of fair market value of the Company's Common Stock as of the close of
business on the last business day of February immediately preceding the date of
grant. Trepeta shall be also entitled to Company paid disability insurance and
term life insurance for the benefit of his family in an amount to be fixed by
the Board of Directors of the Company at a cost not to exceed $10,000 per annum.
7. TERM OF EMPLOYMENT
The term of Trepeta's employment hereunder shall be from the date
hereof for a period of three (3) years (the "Term"), unless terminated prior
thereto in accordance with Section 9 hereof. The Agreement shall be
automatically renewed for a period of two years thereafter unless Trepeta gives
60 days prior written notice of his intention not to renew this Agreement prior
to the end of the initial Term.
8. NON-COMPETITION; NON-SOLICITATION
(a) Trepeta hereby agrees and covenants that during the Term hereof
that he will not directly or indirectly engage in or become interested (whether
as an owner, principal, agent, stockholder, member, partner, trustee, venturer,
lender or other investor, director, officer, employee, consultant or through the
agency of any corporation, limited liability company, partnership, association
or agent or otherwise) in any business enterprise which is engaged in the
current business of the Company during the Term; PROVIDED, HOWEVER, that
ownership of not more than 15% of the outstanding securities of any class of any
entity that are listed on a national securities exchange or traded in the
over-the-counter market shall not be considered a breach of this Section 8.
(b) Trepeta agrees and covenants that during the Term hereof he and his
agents will not (without first obtaining the written permission of Company)
directly or indirectly participate in the solicitation of any business of any
type conducted by Company during the period of this Agreement from any person or
entity which was a client or customer of Company during the period of this
Agreement, or was a prospective customer of Company from which Trepeta solicited
business or for which a proposal for submission was prepared during the period.
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(c) Trepeta agrees and covenants that during the Term of this Agreement
he will not (without first obtaining the written permission of Company) directly
or indirectly recruit for employment, or induce or seek to cause such person to
terminate his or her employment with Company, any person who then is an employee
of Company or who was an employee of Company during the preceding six (6)
months.
9. TERMINATION
(a) TERMINATION BY THE COMPANY WITH CAUSE. Notwithstanding the terms
of this Agreement, Company may terminate this Agreement for cause ("Cause") in
the event (i) of Trepeta's commission of an act involving fraud, embezzlement,
or theft against the property or personnel of Company, or (ii) Trepeta shall be
convicted of, or plead NOLO CONTENDERE to a felony or engages in other criminal
conduct that could reasonably be expected to have a material adverse affect on
the business, assets, properties, prospects, results of operations or financial
condition of Company. In the event this Agreement is terminated pursuant to this
Section 9(a), Trepeta's Base Salary and any unearned Annual Bonus and all
benefits under Section 5(a) (b) and (c) hereof shall terminate immediately upon
such discharge, and Company shall have no further obligations to Trepeta except
for payment and reimbursement for any monies due which right to payment or
reimbursement accrued prior to such termination.
(b) DEATH OR DISABILITY. The Company may terminate this Agreement upon
the disability or death of Trepeta by giving written notice to Trepeta. In the
case of disability, such termination will become effective immediately upon the
giving of such notice unless otherwise specified by the Company. For purposes of
this Section 9(b), "disability" shall mean that for a period of more than six
consecutive months in any 12-month period Trepeta is unable to perform the
essential functions of his position because of physical, mental or emotional
incapacity resulting from injury, sickness or disease. Upon any such
termination, the Company shall be relieved of all its obligations under this
Agreement, except for payment of the Trepeta Base Salary and Annual Bonus earned
and unpaid through the effective date of termination. Nothing in this provision
is intended to violate state or federal laws.
(c) TERMINATION BY TREPETA. Trepeta may terminate this Agreement at any
time by giving three months' prior written notice to the Company. The Company
shall be relieved of all of its obligations under this Agreement, except for
payment of the Trepeta Base Salary and Annual Bonus earned and unpaid through
the effective date of termination and those obligations in paragraph 5(d).
10. VIOLATION OF OTHER AGREEMENTS AND AUTHORITY
(a) Trepeta represents and warrants to Company that he is legally able
to enter into this Agreement; that he is not prohibited by the terms of any
agreement, understanding or policy from entering into this Agreement; that the
terms hereof will not and do not violate or contravene the terms of any
agreement, understanding or policy to which Trepeta is or may be a party, or by
which Trepeta may be bound; that Trepeta is under no physical or mental
disability that would materially interfere with the performance of his duties
under this Agreement. Trepeta agrees that, as it is a material inducement to
Company that Trepeta make the foregoing representations and warranties and that
they be true in all material respects.
11. COMPANY AUTHORITY RELATIVE TO THIS AGREEMENT
The Company has the requisite corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated by
this Agreement. The Board of Directors of the Company has duly authorized the
execution and delivery of this Agreement by the Company and the consummation by
the Company of the transactions contemplated on its part by this Agreement, and
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no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or for the Company to consummate the transactions
contemplated by it. The Company has duly validly executed and delivered this
Agreement and it is a valid and binding Agreement of the Company, enforceable
against the Company in accordance with its terms, subject to bankruptcy or
insolvency laws affecting creditors' rights generally and to general principles
of equity.
12. NOTICES
Any and all notices, demands or requests required or permitted to be
given under this Agreement shall be given in writing and sent, by registered or
certified U.S. mail, return receipt requested, by hand, or by overnight courier,
addressed to the parties hereto at their addresses set forth above or such other
addresses as they may from time-to-time designate by written notice, given in
accordance with the terms of this Section.
13. WAIVERS
No waiver by any party of any default with respect to any provision,
condition or requirement hereof shall be deemed to be a waiver of any other
provision, condition or requirement hereof; nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
14. PRESERVATION OF INTENT
Should any provision of this Agreement be determined by a court having
jurisdiction in the premises to be illegal or in conflict with any laws of any
state or jurisdiction or otherwise unenforceable, Company and Trepeta agree that
such provision shall be modified to the extent legally possible so that the
intent of this Agreement may be legally carried out.
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15. ENTIRE AGREEMENT
This Agreement sets forth the entire and only agreement or
understanding between the parties relating to the subject matter hereof and
supersedes and cancels all previous agreements, negotiations, letters of intent,
correspondence, commitments and representations in respect thereof among them,
and no party shall be bound by any conditions, definitions, warranties or
representations with respect to the subject matter of this Agreement except as
provided in this Agreement.
16. INUREMENT; ASSIGNMENT
The rights and obligations of Company under this Agreement shall inure
to the benefit of and shall be binding upon any successor of Company or to the
business of Company, subject to the provisions hereof. Neither this Agreement
nor any rights or obligations of Trepeta hereunder shall be transferable or
assignable by Trepeta.
17. AMENDMENT
This Agreement may not be amended in any respect except by an
instrument in writing signed by the parties hereto.
18. HEADINGS
The headings in this Agreement are solely for convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
20. GOVERNING LAW
This Agreement shall be governed by, construed and enforced in
accordance with the internal laws of the State of New York, without giving
reference to principles of conflict of laws. Each of the parties hereto
irrevocably consents to the venue and exclusive jurisdiction of the federal and
state courts located in the State of New York, County of New York. THE PARTIES
HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR
COUNTERCLAIM BASED ON THIS EMPLOYMENT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
IN IT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF ANY PARTY TO IT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ACE MARKETING & PROMOTIONS, INC.
By: /s/ Xxxx Xxxxx
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XXXX XXXXX, CHIEF EXECUTIVE OFFICER
/s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
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