Exhibit 10.14
AGREEMENT, made as of January 1, 1998, by and between GREENSTONE
XXXXXXX ADVERTISING, INC., a New York corporation (the "Corporation"), and XXXX
X. XXXXXXX, an individual residing at 00 Xxxxxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxx
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 premises and the mutual
covenants herein contained, the parties agree to as follows:
1. The Corporation employs the Executive, and the Executive agrees to
serve the Corporation, for a period of two (2) years commencing on January 1,
1998 and ending at 12:00 midnight on December 31, 1999 (the "Termination Date"),
Notwithstanding this two (2) year term, the Corporation at its option may
terminate the second year of this Agreement by giving the Executive written
notice of termination on or before September 1, 1998, and such termination shall
be effective as of 12:00 midnight on December 31, 1998. "Period of Employment"
as used in this Agreement shall mean January 1, 1998 through December 31, 1999,
unless the second year of this Agreement is terminated pursuant to this
paragraph 1, in which case "Period of Employment" shall mean January 1, 1998
through December 31, 1998.
2. During the period of employment hereunder, the Executive shall be
employed by the Corporation as Vice Chairman of the Corporation, and, except as
hereinafter provided, shall devote his full business time and efforts to the
business and affairs of the Corporation, use his best efforts 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 Chairman of the Board and/or the Board of
Directors of the Corporation provided that such duties are of a degree of
responsibility commensurate with a senior executive position. 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. 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. The Executive shall be entitled to vacations in accordance with
the Corporation's existing vacation policy and the Corporation shall provide the
Executive with reasonable perquisites suitable to the office in the Corporation
which he holds. The Corporation agrees that, consistent with the foregoing, the
Executive may devote such time and attention as is reasonably necessary to his
personal and financial affairs.
3. (a) During the Period of Employment hereunder, 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 Twenty Five Thousand ($225,000.00) Dollars per year. 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.
For each fiscal year ending October 31st in which the Executive is
employed, he shall receive as an additional incentive compensation in the sum of
two (2%) percent pre-tax earnings, the dollar amount of which shall be
determined by the Corporation's auditors which shall be binding upon the
Corporation and the Executive. If the Executive's employment shall terminate on
a date other than October 31st, then the Executive's share of the bonus pool
shall be pro-rated for that portion of the year the Executive has rendered
service.
The Board of Directors of the Corporation annually shall review the
services rendered by the Executive and, in its sole discretion, may award the
Executive bonus compensation for the services rendered during the year under
review. The Board of Directors of the Corporation also shall review the salary
of the Executive at least annually. Nothing herein contained shall prevent the
Board of Directors of the Corporation from prospectively increasing the salary
or other compensation of the Executive during the period of employment
hereunder.
(b) In the event that the Corporation exercises its option to
terminate this Agreement with respect to the second year of employment in
accordance with paragraph 1 hereof otherwise than for "cause" (as hereinafter
defined in Paragraph 6):
(i) The Corporation shall, on or before January
5, 1999, pay to the Executive in one lump sum as a special severance and
termination payment the amount of Three Hundred Thousand Dollars ($300,000.00),
which payment shall be in addition to, and not in lieu of, any other amounts
payable by the Corporation to the Executive; and
(ii) The Corporation shall continue to employ and
compensate the Executive, including all perquisites and benefits provided for
herein, until the end of the Period of Employment.
(c) If there is no termination of this Agreement by the Corporation
prior to the Termination Date to which paragraphs 3(b) and 3(d) hereof apply,
then the term of employment pursuant to this Agreement shall terminate on the
Termination Date. If by September 1, 1999, 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 January 5,
2000, in one lump sum as a special severance and termination payment, the amount
of $225,000.00, which amount shall be in addition to, and not in lieu of, any
other amounts payable to the Executive by the Corporation. The Corporation and
the Executive each has the right, but not any obligation, to seek to 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 enter
into a Renewal Agreement and irrespective of the reasons the parties do not
enter into such a Renewal Agreement.
(d) In the event that the Executive's employment is terminated by the
Corporation prior to the Termination Date without "cause" (as hereafter defined
in paragraph 6), other than by exercising the Corporation's option to terminate
the second year of this Agreement pursuant to paragraph 1 hereof (a "Cessation
of Employment"):
(i) The Corporation shall, within five (5) days
of the Cessation of Employment, pay the Executive in one lump as a special
severance and termination payment the amount of (A) Three Hundred Thousand
Dollars ($300,000.00) if the second year of the Executive's employment is
terminated pursuant to paragraph 1 hereof or (B) Two Hundred Twenty Five
thousand Dollars ($225,000.00) if the second year of the Executive's Employment
is not terminated pursuant to paragraph 1 hereof; which payment shall be in
addition to, and not in lieu of, any other amounts payable to the Executive by
the Corporation.
(ii) For the entire remaining portion of the
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 this Agreement prior to the date of the Cessation of Employment;
and
(iii) For the entire remaining portion of the
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 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.
(e) Nothing in the Agreement shall be construed as giving the
Corporation the right to terminate the Executive's employment without cause (as
defined in paragraph 6 hereof), other than a termination of the second year of
employment pursuant to paragraph 1 hereof, and the provisions of paragraph 3(d)
are not intended to preclude or limit in any way the Executive's right to enjoin
any attempt to so terminate his employment or to assert any legal rights or
remedies he otherwise might have for the wrongful termination of this
employment.
4. In the event of the Executive's death during the term hereof, this
agreement shall terminate on the date of death of the Executive.
5. While employed hereunder, 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 in Paragraph 6) any
business then carried on by 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 percent (1%) of the amount of any
such security outstanding. The Executive may make investments, without
restriction on amount, in non-competitive private businesses.
6. To induce the Corporation to execute and deliver this Agreement,
and to protect the trade secrets of the business of the Corporation, the
Executive hereby covenants and agrees that if the Executive shall terminate his
employment hereunder in breach of this Agreement, or if his employment is
terminated by the Corporation for cause (as hereinafter defined), then for a
period of twelve (12) months from the effective date of termination of the
period of employment hereunder, the Executive will 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, or as an
employee or agent of, or consultant to, any person, partnership or corporation,
or in any capacity on behalf of any trust or other organization or entity, any
business with or for any person or entity which at any time during the
twenty-four (24) months preceding the date of termination of this Agreement was
a client of Corporation in completion with any business then carried on by 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 are
registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended, but the total holding of any such securities so listed or registered
shall be limited to one percent (1%) of the amount of any such security
outstanding. Nothing contained herein shall prevent the Executive from
purchasing or otherwise beneficially owning, without restriction on amount, any
securities issued by the Corporation. The term "in competition with" as used in
this Agreement shall mean a business which is conducted anywhere within the
United States or in other areas in the world where the Corporation then carries
on business and which is substantially similar in whole or in part to the
business then conducted by the Corporation.
For the purposes of this Agreement, the term "for cause" shall mean,
and be limited exclusively to, the following actions by the Executive: actual
(as distinguished from statutory) fraud; misappropriation of funds or property
of the Corporation for his own use; embezzlement of the Corporation's property;
or a material and intentional breach by Executive of the provisions to be
performed by him of Paragraph 2, 7 or 9 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 judgment as a senior executive
of the Corporation or a member of the Board of Directors of the Corporation.
7. 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 period of his employment 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 his 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.
8. 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 therefore 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 for 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 attorneys' fees, incurred at
the request of the Corporation in connection with any action taken by the
Executive pursuant to this Paragraph 8, shall be borne by the Corporation.
9. The Executive agrees that, during or after the termination of this
Agreement, he shall not divulge, 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. This Agreement shall inure to the benefit of and be binding upon
the Corporation, it 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
representatives, provided that the obligations of the Executive hereunder may
not be delegated.
16. 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.
17. 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.
18. 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.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first set forth above.
GREENSTONE XXXXXXX ADVERTISING, INC.
By:___________________________ ______________________________
Name: XXXXXX X. XXXXXXXXXX XXXX X. XXXXXXX
Title: Chairman of the Board
