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EXHIBIT 10.3
EMPLOYMENT AGREEMENT FOR XXXXXX X. XXXXXXXXXX
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 Xxxxxx X.
Xxxxxxxxxx, an individual residing at 0000 X.X. 00xx Xxxxxx, Xxxx Xxxxx, Xxxxxxx
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 Chief Executive Officer of the Long Island
operations of the Corporation, and, except as hereinafter provided, shall
devote eighty (80%) percent of a usual full-time Monday through Friday work
week 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 Xxxxx X. Xxxxxx
to whom Executive shall report. 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. In
addition, the Executive may render such services from Executive's home in
Boca Raton, Florida or from the Corporation's office on Long Island, New
York, provided, however, that Executive shall not be required to render
such services from any location other than his home in Boca Raton, Florida
for more than One Hundred (100) days per year during 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. In addition, in the event that the Executive is requested by
the Corporation to
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perform services in Long Island, New York, the Executive will be
reimbursed for: (i) all commuting expenses between his home in Boca
Raton, Florida and the Corporation's Long Island office, including
without limitation, airfare, car service, car rental, parking and
other similar expenses; and (ii) all expenses incident or relating to
the maintenance by Executive of an apartment on Long Island,
including, without limitation, rent, maintenance, telephone,
utilities, etc. all of which expenses shall be reimbursed promptly
upon presentation by the Executive of invoices/vouchers evidencing
such expenses. The Corporation shall pay 100% of the costs of
Executive's participation in the Corporation's medical and dental
insurance plans in existence on the execution 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 Fifteen Thousand and No/100 Dollars
($215,000.00) 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
Fifty Thousand and no/100 Dollars ($250,000.00), 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.
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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 Fifty Thousand no/100 Dollars ($250,000.00),
which amount shall be in addition to, and not in lieu of, any other
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;
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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 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.
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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 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
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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 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
effect 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, INCOPORATED
By: Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
