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EXHIBIT 10.3
FIRST RESTATED EMPLOYMENT AGREEMENT OF XXX ATLAS
This First Restated Employment Agreement of Xxx Atlas (this "Agreement")
is made and entered into as of this 1st day of December 1997 by and between
Camera Platforms International, Inc., a Delaware corporation (the "Company") and
Xxx Atlas ("Employee") with respect to the following facts:
A. Company and Employee have previously entered into an Employment
Agreement dated January 1, 1997, a copy of which is attached hereto as Exhibit
"A".
B. In recognition of Employee's faithful service to the Company, the
parties wish to restate and amend Employee's contract in its entirety, with the
result that this Agreement supercedes the previous agreement and any other
agreements or understandings between the parties.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and conditions herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. SERVICES TO BE PERFORMED BY THE EMPLOYEE. The Employee shall provide
to the Company such services of managerial and operational nature as the Board
of Directors shall determine from time to time to be reasonably necessary or
advisable and in the best interests of the Company in the course of its
business. The Employee shall hold the title of President and Chief Operating
Officer. The Employee agrees that, to the best of his ability and experience, he
will, at all times, loyally and conscientiously perform all of the duties and
obligations either expressly or implicitly required of him by the terms of this
Agreement. The Employee shall provide services hereunder on a full-time and
exclusive basis, consisting of not less than 40 hours per week.
2. OTHER ACTIVITIES. At all times during the term of this Agreement, the
Employee may not engage or participate for his own account, whether directly or
indirectly, as an employee, employer, consultant, agent, principal, partner,
stockholder, or in any other capacity in any business which is competitive with
the Company or in any activities which detract from his duties hereunder.
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3. TERM OF THE AGREEMENT. Unless terminated earlier pursuant to the
terms hereof, the term of this Agreement shall be four (4) years and one month
beginning on January 1, 1998 and terminating on December 31, 2001. This
Agreement shall automatically be extended for successive one (1) year periods
beginning on the respective anniversary dates hereof, unless either party gives
at least thirty (30) days written notice of their election not to renew this
Agreement to the other party.
In the event this Agreement is renewed, all covenants in this Agreement
will remain in full force and effect, unless the parties agree to a written
modification thereto.
4. COMPENSATION. In consideration for the services to be performed by
the Employee hereunder, the Employee shall receive an annual salary of one
hundred thousand dollars ($100,000), payable in accordance with the Company's
established payroll procedures, but not less often than monthly. The Board of
Directors of the Company shall review the Employee's compensation on an annual
basis and may increase the Employee's compensation based on the Employee's and
the Company's performance.
5. BONUSES. In addition to the compensation set forth in paragraph 4
above, the Employee shall be entitled to receive: (i) in the event that the
Company's profits are $1,000,000 or more annually, a cash bonus equal to 2.5%,
to a maximum of $300,000, of all profits of the Company or (ii) in the event
that the Company's profits are less than $1,000,000 but equal to or greater than
$500,000 annually, a cash bonus equal to 1.25% of such profits of the Company.
For purposes of this paragraph, the term "Profits" shall mean annual net profits
before taxes of the Company including its subsidiaries, as shown in the audited
annual financial statement prepared by the Company's independent accountants,
adding back any compensation paid to the Chairman, Chief Executive Officer, W/F
Investment Corp. ("W/F"), Shotmaker Acquisition Corporation ("SAC") or any
affiliates or shareholders holding 10% or more of the stock of W/F or SAC. Such
bonuses shall be paid within 30 days following completion of the audited annual
financial statement and acceptance thereof by the Board.
6. BENEFITS. The Employee shall be entitled to receive such benefits as
the Company may provide for its employees from time to time, including medical
and dental insurance (for the Employee and his wife), paid vacation, sick pay
and holiday pay, plus the following additional benefits:
(a) Vacation. Three (3) weeks during the first year hereunder;
four (4) weeks thereafter.
(b) Automobile. The Company shall provide the Employee with a car
allowance of $500 per month (to cover all automobile related expenses, including
lease payments and repairs), with the exception of damage caused by the Company,
which is to be reimbursed 100%
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by the Company. Insurance on the vehicle is to be covered under the Company's
policy, with liability limits of $1,000,000 or more.
(c) Disability Insurance. The Employee shall be entitled to
coverage under any policy or policies of disability insurance which the Company
provides for the benefit of the employees generally. The Employee understands
that the disability insurance policy currently in effect provides for long-term
disability benefits at 60 % of an employee's then current compensation, with
maximum monthly benefits of $5,000.
(d) Life Insurance. The Company shall maintain for the benefit of
the Employee a whole life policy in the amount of five hundred thousand dollars
($500,000), provided that the cost of such policy shall not exceed $325 per
month. The Company shall be named as the beneficiary of the policy but, in the
event of the Employee's death during the term of his employment, the Company
shall pay the $500,000 insurance proceeds to the Employee's estate and the
Employee's estate shall relinquish to the Company any unexercised vested
warrants and any common stock of the Company which it holds as a result of the
Employee's having exercised any warrants within the twelve months prior to his
death.
7. REIMBURSEMENT OF BUSINESS EXPENSE. During the term of this Agreement,
the Company shall reimburse the Employee for all ordinary and necessary business
expenses incurred by him in connection with the Company's business.
Authorization of the Board of Directors shall be required for any single
expenditure of $1000 or more.
8. WARRANTS. As additional compensation for entering into this
transaction, the Company shall grant to the Employee, effective January 1, 1997,
a warrant giving the Employee the right to purchase seven hundred thousand
(700,000) shares of the common stock of the Company. The warrant shall contain
customary anti-dilution protections. The warrant shall vest at the rate of one
hundred forty thousand (140,000) shares per year of service under the Employment
Agreement dated January 1, 1997 and this Agreement, and shall remain exercisable
for a period of three (3) years from vesting, subject to the terms and
conditions of this Agreement. If the Company should at anytime register its
common stock, then the Employee shall have piggyback registration rights
exercisable within thirty (30) days of notice. The Employee shall be entitled to
customary indemnification in any registration. The exercise price of the warrant
shall be $.125 per share, the price at which said shares are currently trading.
If there is a change in control of the Company or SAC, all outstanding warrants
shall fully vest immediately. In the event of death, all earned shares shall
become fully vested in Employee's estate.
9. TERMINATION. The Company shall have the right (but not the
obligation) to terminate this Agreement at any time during the term hereof by
written notice for the following causes:
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(a) Upon 20 days notice and right to cure, if cure is possible,
for conduct which is detrimental to the Company's reputation, goodwill or
business operations;
(b) The Employee's death or disability, or such other condition
as shall prevent the Employee from the performance of his duties hereunder for a
period in excess of six months;
(c) Upon 20 days notice and right to cure, if cure is possible,
for gross neglect or breach of the Employee's duties or misconduct in
discharging such duties and without notice and a right to cure for habitual
neglect or breach of the Employee's duties and misconduct in discharging such
duties;
(d) Upon 20 days notice and right to cure, if cure is possible,
for Employee's failure or refusal to comply with the directions of the Board of
Directors, and without notice and a right to cure for habitual failure or
refusal to comply with the directions of the Board of Directors.
Upon termination for cause, payment of all unearned compensation
shall cease immediately and any unvested warrants shall terminate immediately.
10. BOARD OF DIRECTORS. The Company shall recommend and support the
election of Employee to the Company's Board of Directors.
11. INDEMNIFICATION. The Company shall save and hold harmless the
Employee from and against any claim of liability or loss (including reasonable
attorney's fees) arising as a result of the Employee's activities in the course
of his services hereunder to the fullest extent permitted by law.
12. CONFIDENTIALITY. The Employee shall, at no time, either during his
employment or following the termination of his employment for any reason, use or
disclose to any person, directly or indirectly, any business secret, customer
list or other confidential information concerning the business or policies of
the Company, except to the extent that such use or disclosure is (i) necessary
to the performance of the Employee's duties hereunder, (ii) required by
applicable law; (iii) authorized by the Company; or (iv) lawfully obtainable
from other sources. Upon the termination of his employment, the Employee shall
return to the Company all memoranda, notes and other documents in his possession
that relate to the business secrets, customer lists and other confidential
information of the Company.
13. INTEGRATION. This Agreement is the entire agreement between the
parties hereto with respect to the subject hereof and supersedes all prior
agreements (including Exhibit "A") between the parties with respect to the
matters expressly contained herein. Any waiver or modification of any provision
of this Agreement shall only be effective if in writing and duly executed by all
parties hereto.
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14. 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 agreement.
15. NOTICES. Any communication, notice or demand a party may be required
or may desire to give hereunder shall be in writing and delivered by personal
service, telecopied (with oral confirmation of receipt from the office of the
addressee) or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
If to the Company: Camera Platforms International, Inc.
00000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
1900 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile (000) 000-0000
If to the Employee: Xxx Atlas
0000 Xxxxx Xxxx Xxxxx Xxxxxxxxx, #000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile (000) 000-0000
Any party may change its address or fax number for notice by written
notice given to the other in the manner provided in this section. Any such
communication, notice or demand shall be deemed to have been duly given or
served on the date personally served or telecopied, if by personal service or
telecopier, and on the date shown on the return receipt or other evidence of
delivery if mailed.
16. FURTHER ASSURANCES. The parties agree to execute such instructions
and such other instruments and agree to do such further acts as may be
reasonably necessary to carry out the provisions of this Agreement.
17. NO ASSIGNMENT. This Agreement is a personal services contract and
may not be assigned by either party.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
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19. ARBITRATION. All controversies, claims or disputes between the
Employee and the Company or any of its officers, directors or shareholders,
including without limitation, contract, tort or other controversies, claims or
disputes, shall be arbitrated in accordance with the California Employment
Dispute Resolution rules of the American Arbitration Association. All
arbitration proceedings shall be held in Los Angeles, California. The award of
the arbitrators in any arbitration proceeding shall be final and may be enforced
in any court of competent jurisdiction. The unsuccessful party to such
arbitration proceeding shall pay to the successful party all costs and expenses,
including without limitation, reasonable attorney's fees incurred therein by the
successful party, all of which shall be included in and as part of the award or
judgment rendered in such proceeding.
20. SEVERABILITY. If any provision or portion of this Agreement shall be
or become illegal, invalid or unenforceable in whole or in part, for any reason,
such provision shall be ineffective only to the extent of such illegality or
invalidity without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"COMPANY"
CAMERA PLATFORMS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Chairman of the Board
"EMPLOYEE"
/s/ Xxx Atlas
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Xxx Atlas
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