EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Employment Agreement” or “Agreement”) dated as of
January 1, 2008 (the “Effective
Date”) by and between Destination Software, Inc., a corporation having an
office and principal place of business at 000 Xxxxxxxxxx Xxxxxxxxx Xx., Xxxxxx,
XX 00000 (hereinafter referred to as the "Company") and Xxxxx Xxxxxxxxx,
an individual residing in Cincinnati, Ohio (hereinafter referred to as the
"Employee").
WITNESSETH
:
WHEREAS, the Employee is currently an
independent contractor of Company; and
WHEREAS, Green Screen Interactive
Software LLC (“GSIS”)
has acquired all of the stock of Company; and
WHEREAS, Company and Employee desire
Employee to be employed by Company under the terms of this Employment
Agreement;
WHEREAS, the Company wishes to protect
its business, good will and confidential and proprietary
information.
NOW, THEREFORE, in consideration of the
premises herein, and the mutual promises and undertakings herein contained and
set forth, and for other good and valuable consideration, made over by each
party to the other, the receipt and sufficiency of which are hereby
acknowledged, it is covenanted and agreed as follows:
1. Employment. The
Company hereby agrees to employ the Employee, and the Employee hereby agrees to
employment with the Company, upon and subject to the terms and conditions of
this Agreement.
2. Term. The
term of this Agreement shall begin on the date hereof (the “Commencement Date”) and shall
continue for a period of four (4) years, unless sooner terminated in the manner
provided for herein (the “Term”). In addition
the parties agree to discuss the renewal of this Agreement starting at least six
(6) months prior to the end of the Term. As used herein, the term
“Contract Year” shall
mean each of the four 12 month periods during the Term beginning on the
Effective Date or the anniversary of the Effective Date.
3.
Compensation.
A. Base
Salary. For all services to be rendered by the Employee to the
Company under this Agreement, or otherwise, the Company shall pay to the
Employee a base salary (“Base
Salary”) at the rate of Three Hundred Seventy Five Thousand Dollars
($375,000) for each of the first two Contract Years and Four Hundred Thousand
Dollars ($400,000) for each remaining Contract Year, which sum shall be paid on
such basis as the Company shall reasonably determine, but not less frequently
than monthly. It is understood that the Company may, in its sole
discretion, increase said base salary without affecting any of the other terms
of this Agreement.
B. Bonuses. (i) Employee
shall annually receive a bonus of $375,000 for each of the first two Contract
Years and $400,000 for each of the final two Contract Years, payable in equal
semi-annual installments within 30 days of the end of the relevant six month
period (the “Minimum
Bonus”). (ii) In addition, Employee shall be eligible to
receive an additional bonus based on reasonable semi-annual North American sales
and/or profits targets for Company and GSIS, and other milestones, including,
without limitation, establishing a fully functional national sales force and
establishing direct relationships with specific major retailers, the specifics
of which are to be set on a semi-annual basis by the Company and GSIS (the
“Additional
Bonus”). Any Additional Bonus amounts shall be payable
semi-annually, within 60 days of the end of the relevant six month
period. The Additional Bonus will be $750,000 per Contract Year
($375,000 semi-annually) if the goals are met, but not exceeded.
C. Equity. Employee
shall be eligible to participate in any incentive equity option plan GSIS may
have, subject to the discretion of GSIS or its compensation committee, taking
into account Employee’s senior management role in the Company, among other
things.
4. Social
Security and Withholding. All compensation provided for in
this Agreement shall be subject to the Company deducting therefrom such Social
Security, withholding and any other payments as may be required by
law.
5. Duties.
A. During
the Term, the Employee will hold the initial office of Senior Vice President of
Sales of the Company and such other office(s) of the Company and/or its
affiliates to which he may be elected or appointed, and Employee shall perform
all duties incidental thereto as may be prescribed by the Company from time to
time. The Employee shall report to the President of the Company, currently Xxxxx
Xxxx. The precise services and responsibilities of the Employee may
be extended or curtailed, from time to time, at the direction of the Company, in
its sole discretion. In the event that the Employee is now or shall
in the future be elected or appointed as an officer of the Company or of any
affiliate of the Company during the Term, the Employee will serve in such
capacity or capacities without further compensation; however, nothing herein
shall be construed as requiring the Company, or anyone else, to cause the
election or appointment of the Employee as such officer.
B. The Employee warrants and represents
(and breach hereof shall be cause for termination by the Company of this
Agreement for Cause) that (i) he is not under any contractual or other
obligations of any sort which will (a) prevent him from performing fully all of
his obligations hereunder, and/or (b) vest in any other person, firm or
corporation any right to recover damages as a result of the Employee's
performance hereunder, and/or (c) permit any other person or entity to enjoin or
otherwise prevent full compliance by him hereunder; and (ii) he is not party to,
either directly or indirectly, to any agreement with COKem International, Ltd.
(“COKem”) and or Xxxx of All Games, Inc. (“Xxxx”) except for confideantaility
and nondisclosure provisions under the prior agreement with Xxxx. Employee
hereby indemnifies and holds harmless Company, GSIS, their subsidiaries,
affiliates, successors, licensees and assigns, from and against any (i) claim,
liability, cost or expense including reasonable attorneys' fees and costs,
arising out of the breach or alleged breach, of Employee’s representations,
warranties, covenants or agreements contained in this Agreement; and/or (ii)
claim, liability, cost or expense including reasonable attorneys' fees and
costs, arising out of any claim made by COKeM and/or Xxxx, their parent
companies, subsidiaries, affiliates, successors, licensees and assigns, relating
to any agreement(s) between such companies and Employee.
C. Company
agrees that Employee may perform his duties and reside either in Cincinnati,
Ohio and/or Naples, Florida. Employee agrees to travel as is
necessary to perform his duties.
6. Extent of
Services. The Employee shall devote his entire, full time,
attention, energies and best efforts to the business of the Company, and shall
not during the Term be engaged in any other business activity whether or not
such business activity is pursued for gain, profit, or other pecuniary
advantage; but this shall not be construed as preventing the Employee from
investing his assets in such form or manner as will not require any services on
the part of the Employee in the operation of the affairs of the companies in
which such investments are made. The Employee agrees to perform
faithfully and to the best of his ability all assignments given him by the
Company.
7. Benefits. During
the Term:
A. Vacation. The Employee shall be
entitled to a vacation of twenty (20) working days during each Contract Year, or
pro rata for a portion of a Contract Year. The time or times of
said vacation shall be determined by the mutual agreement of the Company and the
Employee.
B. Benefits. The Employee and
his dependents, if applicable, shall be eligible to participate in any plan of
the Company relating to group life insurance, medical coverage, dental coverage,
disability insurance, education and/or other retirement or employee benefit
plans or programs that the Company has adopted or may adopt for the benefit of
its executive employees (“Plans”). The
Employee acknowledges and agrees that the Company shall have the absolute right,
at any time and from time to time, to modify, amend, replace and/or discontinue
any of the Plans and Employee’s coverage (and that of his eligable
family members) shall be consistent with the Company’s policy for
payment of insurance premiums for its other
executives. Nowithstanding anything to the contrary contained above,
Company shall pay 100% of premiumns for all Company-provided insurance for
Employee and his eligible dependents.
C. Expenses. The Employee is
authorized to incur reasonable and necessary expenses for promoting the business
of the Company, including expenses for entertainment, travel and similar items;
provided, however, that any single such expense in excess of $500 must be
approved in advance by the Company, with the exception of air travel which
Company agrees may be business class. The Company will pay for and/or
reimburse the Employee for all such expenses upon the presentation by the
Employee, within thirty (30) days of the date incurred, of an itemized account
of such expenditures and invoices and/or such other verification of such
expenses as may be requested by the Company.
8. Title to
Business. The Employee shall keep and maintain accurate,
detailed and legible records of all work performed by the Employee on behalf of
the Company, including, but not limited to, specific proposals to clients and
customers, proposals and presentations, the Employee's work product and other
ideas created and implemented during the Term. All right, title, and
interest in and to all of the above, together with any and all books, records,
accounts, good will, all related business and all other business conducted by
the Company, or the Employee on the Company's behalf, whether produced by the
Employee or not, and any renewals thereof, shall remain in the Company before
and after the termination of this Agreement for any reason.
9. Ventures. If,
during the Term of this Agreement, the Employee is engaged in or associated with
the planning or implementing of any project, program or venture involving the
Company or its affiliates and a third party or parties, all rights in such
project, program or venture shall belong to the Company. The Employee
shall not be entitled to any interest in such project, program or venture or to
any commission, finder's fee or other compensation in connection therewith other
than the salary to be paid to the Employee as provided in this
Agreement. This provision shall not apply to any equity ownership of
Employee in Company, GSIS or their subsidiaries.
10. Life
Insurance. The Company may, in its discretion, at any time
after the execution of this Agreement, apply for and procure as owner, and for
its own benefit, insurance on the life of the Employee, in such amounts and in
such form or forms as the Company may choose. The Employee shall have
no interest whatsoever in any such policy or policies, but shall, at the request
of the Company, submit to such medical examinations, supply such information,
and execute such documents as may be reasonably required by the insurance
Company or companies to whom the Company has applied for such
insurance.
11. Confidentiality
of Information.
A. The
Employee acknowledges and recognizes that in the course of his employment
hereunder he will become acquainted with confidential and/or proprietary
information of the Company, (all of such confidential and/or proprietary
information being collectively referred to as "Confidential Information").
“Confidential
Information” includes, but is not limited to, any trade secrets,
confidential or secret designs, processes, formulae, plans, devices or material
(whether or not patented or patentable) directly or indirectly useful in any
aspect of the business of the Company or its affiliates, any customer or
supplier lists of the Company, any confidential or secret development or
research work of the Company, or any other confidential information or secret
aspects of the business of the Company, whether developed by the Employee or by
others, as well as all such information of affiliates of Company, including GSIS
and other subsidiaries and affiliates of GSIS. In recognition of the
foregoing, the Employee agrees that he will keep secret and confidential any and
all Confidential Information and that he will not, directly or indirectly,
without the prior written consent of the Company, either during the Term or at
any time thereafter, except as may be required in the course of his employment
hereunder:
(i) Communicate, divulge or
otherwise disclose any such Confidential Information to any person or entity;
and/or
(ii) Use or attempt to use
any such Confidential Information for any purpose or in any manner, including,
without limiting the foregoing, for the purpose of inducing or attempting to
induce any account, client and/or customer of the Company to become an account,
client and/or customer of the Employee or of any person or entity with which the
Employee is affiliated in any capacity; and/or for any purpose which may injure
or cause loss or may be calculated to injure or cause loss, whether directly or
indirectly, to the Company.
B. All
records, files, manuals, lists of customers, blanks, forms, materials, supplies,
computer programs and other materials furnished to the Employee by the Company,
used by him on its behalf, or generated or obtained by him during the course of
his employment, shall be and remain the property of the Company. The
Employee shall be deemed the bailee thereof for the use and benefit of the
Company and shall safely keep and preserve such property, except as consumed in
the normal business operations of the Company. The Employee
acknowledges that this property is confidential and/or proprietary and is not
readily accessible to the Company's competitors. Upon the termination of the
Employee’s employment for any reason whatsoever, all documents, records,
notebooks, equipment, employee lists, price lists, specifications, programs,
customer and prospective customer lists and other materials which refer or
relate to any aspect of the business of the Company which are in the possession
of the Employee including all copies thereof, shall be promptly returned to the
Company.
C.
The products and proceeds of Employee’s services hereunder that Employee
may acquire, obtain, develop or create during the term of this Agreement, or
that are otherwise made at the direction of the Company or with the use of the
Company’s or its affiliates’ facilities or materials, including, but not limited
to, all materials, ideas, concepts, formats, suggestions, developments,
packages, programs, inventions, products, programs, procedures, formats,
intellectual properties, and other materials of any kind created or developed or
worked on by the Employee during his employment by the Company (collectively,
“Works”), shall be
considered a “work made for
hire,” as that term is defined under the United States Copyright Act, and
Employee shall be considered an employee for hire of the Company, and all rights
in and to the Works, including the copyright or patent thereto, shall be the
sole and exclusive property of the Company, as the sole author and owner
thereof, and the copyright thereto may be registered by the Company in its own
name, and the Employee will not have any right, title or interest of any nature
or kind therein except to the extent that the Employee is required to use such
Works in connection with his employment by the Company. Without
limiting the foregoing, it will be presumed that any copyright, patent,
trademark or other right and any idea, invention, product, program, procedure,
format or material created, developed or worked on by the Employee at any time
during the Term of his employment will be a result or proceed of the Employee’s
services under this Agreement. Furthermore, the Employee’s right to
any compensation or other amounts under this Agreement will not constitute a
lien on any results or proceeds of the Employee’s services under this Agreement.
In the event that any part of the Works shall be determined not to be a work
made for hire or shall be determined not to be owned by the Company, Employee
hereby irrevocably assigns and transfers and agrees to assign and transfer to
the Company, its successors and assigns, the following: (a) the entire right,
title and interest in and to the copyrights, trademarks and other rights in any
such Work and any rights in and to any works based upon, derived from, or
incorporating any such Work (“Derivative Work”); (b) the
exclusive right to obtain, register and renew the copyrights or copyright
protection in any such Work or Derivative Work; (c) all income, royalties,
damages, claims and payments now or hereafter due or payable with respect to any
such Work and Derivative Work; and (d) all causes of action in law or equity,
past and future, for infringements or violation of any of the rights in any such
Work or Derivative Work, and any recoveries resulting therefrom. Employee also
hereby waives in writing any moral or other rights that he has under state or
federal laws, or under the laws of any foreign jurisdiction, which would give
him any rights to constrain or prevent the use of any Work or Derivative Work,
or which would entitle him to receive additional compensation from the Company.
Employee shall execute all documents, including without limitation copyright
assignments and applications and waivers of moral rights, and perform all acts
that the Company may request, in order to assist the Company in perfecting its
rights in and to any Work and Derivative Work anywhere in the world. Employee
hereby appoints the officers of the Company as Employee’s attorney-in-fact to
execute documents on behalf of Employee for this limited purpose.
D. For
the purposes of this Paragraph 11, subparagraphs A and B, “Company” shall be
deemed to include GSIS and its subsidiaries and affiliates.
12. Covenant
Not to Compete.
A. In
order to induce the Company to enter into this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Employee, the Employee agrees as follows:
(i) The Employee hereby
agrees that he shall not, during the period of his employment and for the period
that he is receiving any payments from the Company as severance under Paragraph
13 B, directly or indirectly, within the United States or territory outside the
United States in which the Company is engaged in business during the period of
the Employee’s employment or on the date of termination of the Employee’s
employment, engage, have an interest in or render any services to any business
(whether as owner, manager, operator, licensor, licensee, lender, partner,
stockholder (of more than 5% of the outstanding stock of any business which is
publicly traded, or of options to purchase more than 5% of the outstanding stock
of any such business which is publicly traded), joint venturer, employee,
consultant or otherwise) competitive with the Company’s business
activities.
(ii) The Employee hereby
agrees that he shall not, during the period of his employment and for the longer
of a period of one (1) year following such employment or the period that he is
receiving any payments from the Company pursuant to Paragraph 13 B of this
Agreement, directly or indirectly solicit any of the Company’s customers, or
persons listed on the personnel lists of the Company, nor shall the Employee
attempt to cause any person, firm or corporation which is a customer or client
of or has a contractual relationship with the Company at the time of the
termination of his employment to terminate such relationship with the Company,
and this provision shall apply regardless of whether such customer, client or
contracting party has a valid contractual arrangement with the
Company. Except as required by law or legal process, at no time
during the Term, or thereafter shall the Employee, engage in any conduct,
directly or indirectly, that disparages the commercial, business or financial
reputation of the Company. Except as required by law or legal
process, at no time during the Term, or thereafter shall the Employer or any
executive officer of the Company, engage in any conduct, directly or indirectly,
that disparages the professional, business, financial or personal reputation of
the Employee. The above language with respect to solicitation of
personnel shall not apply to Employee’s current assistant, Xxxxx Hutmeier, and
to Employee’s son, Xxx Xxxxxxxxx.
(iii) For purposes of
clarification, but not of limitation, the Employee hereby acknowledges and
agrees that the provision of subparagraph (ii) above prohibit him, during the
period referred to therein, from directly or indirectly, hiring, offering to
hire, enticing, soliciting or in any other manner persuading or attempting to
persuade any officer, employee, agent, lessor, lessee, licensor, licensee or
customer who has been previously contacted by either a representative of the
Company, including the Employee, (but only those suppliers existing during the
time of the Employee’s employment by the Company, or at the termination of his
employment), to discontinue or alter his, her or its relationship with the
Company. Furthermore, for purposes of clarification, but not of
limitation, the Employee hereby acknowledges and agrees that the provision of
subparagraph (ii) above prohibit him from engaging, hiring, retaining, or
otherwise employing any person who was an officer or employee of the Company at
the time of the termination of Employee’s employment, or cause such person to
otherwise become associated with the Employee or with any other person,
corporation, partnership or other entity with which the Employee may thereafter
become associated. This provision shall not apply to the solicitation
and/or hiring of Employee’s son, Xxx Xxxxxxxxx or any dedicated personal
assistant of Employee.
B. The
Employee represents that he has, prior to the execution of this Agreement,
reviewed this Agreement thoroughly with his legal counsel.
C. Employee
acknowledges that the restrictions contained in Paragraphs 11 and 12 hereof are
reasonable and necessary to protect the legitimate business interests of the
Company and that the Company would not have entered into this Agreement in the
absence of such restrictions. By reason of the foregoing, Employee
agrees that if he violates any of the provisions of Paragraphs 11 and/or 12
hereof, the Company would sustain irreparable harm and, therefore, the Employee
hereby irrevocably and unconditionally (i) agrees that in addition to any other
remedies which the Company may have under this Agreement or otherwise at law or
in equity, all of which remedies shall be cumulative, the Company shall be
entitled to apply to any court of competent jurisdiction for preliminary and
permanent injunctive relief and other equitable relief, (ii) agrees that such
relief and any other claim by the Company pursuant hereto may be brought in any
court of general jurisdiction in New York, (iii) consents to the exclusive
jurisdiction of any such court in any such suit, action or proceeding, and (iv)
waives any objection which the Employee may have to the laying of venue of any
such suit, action or proceeding in any such court. The Employee also
irrevocably and unconditionally consents to the service of any process,
pleadings, notices or other papers in a manner permitted by the notice
provisions hereof.
D. The
Employee agrees that the Company may provide a copy of this Agreement to any
business or enterprise (i) which the Employee may directly or indirectly own,
manage, operate, finance, join, control or participate in the ownership,
management, operation, financing, or control of, or (ii) with which he may be
connected with as an officer, director, employee, partner, principal, agent
representative, consultant or otherwise, or in connection with which he may use
or permit his name to be used. The Employee will provide the names
and addresses of any of such persons or entities as the Company may from time to
time reasonably request.
E. In
the event of any breach or violation of any of the restrictions contained in
subparagraph A. above, any time period therein specified shall xxxxx during the
time of any violation thereof and that portion remaining at the time of
commencement of any violation shall not begin to run until such violation has
been fully and finally cured.
F. If
any commission, fee or other sum becomes payable to the Employee, or any person
or entity with which the Employee is affiliated in any capacity, as a result of
a violation by the Employee of any of the provisions of Paragraph 11 or of
subparagraph A. of this Paragraph 12, then, in addition to any other legal and
equitable remedies and/or contractual rights the Company may have, the Employee
agrees to pay or cause the person or entity with which he is affiliated to
account to the Company for and pay over to the Company any and all commissions,
fees, profits, remuneration or other financial benefits obtained in connection
with any such violation, and the Company may offset such amounts against any
monetary obligations of the Company may have to the Employee hereunder or in
connection with any other agreement between the Company and the
Employee.
G. In
the event of a breach or threatened breach by the Employee of any of the
provisions of Paragraphs 11 or 12, the Company shall be entitled to seek
injunctive relief and the Employee agrees that it shall not be a defense to any
request for such relief that the Company has an adequate remedy at
law. Notwithstanding the foregoing, the Company shall have such other
remedies as may be appropriate under the circumstances, including, inter-alia,
recovery of damages occasioned by such breach, all of which shall be cumulative
and not exclusive. The existence of any claim or cause of action of
the Employee against the Company whether predicated on this Agreement or
otherwise shall not constitute a defense to the enforcement by the Company of
the covenants of Paragraphs 11 and/or 12. Each of the foregoing
covenants shall be severable from the others.
H. It
is the intent of the parties hereto that the covenants contained in Paragraphs
11 and 12 hereof shall be enforced to the fullest extent permissible under the
laws and public policies of each jurisdiction in which enforcement is sought
(the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is
hereby agreed that if any of the provisions of Paragraphs 11 or 12 hereof shall
be adjudicated to be invalid or unenforceable for any reason whatsoever, said
provision shall be (only with respect to the operation thereof in the particular
jurisdiction in which such adjudication is made) construed by limiting and
reducing it so as to be enforceable to the extent permissible, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of said provision in any other
jurisdiction.
I. If
any provision contained in Paragraphs 11 or 12 hereof is found to be
unenforceable by reason of the extent, duration or scope thereof, or otherwise,
then the court making such determination shall have the right to reduce such
extent, duration, scope or other provision and in its reduced form any such
restriction shall thereafter be deemed by the parties hereto as a permitted
modification of this Agreement and be enforceable as contemplated
hereby.
J.
Without prejudice to any other right or remedy which may be
available to the Company, to the maximum extent permitted by law, the Company
shall have the right to set-off against and deduct from any payments due from
the Company to the Employee (whether under this Agreement or otherwise) any loss
or damage suffered by the Company in the event of any breach by the Employee of
any of his covenants, agreements or obligations under this
Agreement.
K. For
the purposes of Paragraph 12, subparagraph A, all references to “Company” shall
be deemed to include GSIS and its subsidiaries and affiliates except for the
first reference to “Company” in such subparagraph.
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13.
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Termination.
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A.
This Agreement shall terminate as follows:
(i) Immediately upon the
death or Permanent Disability (hereinafter defined) of the
Employee. Any base salary or other payments accrued or due to the
Employee, as of the date of such termination, shall remain due and payable and
shall be paid by the Company to the Employee or the Employee’s estate, as the
case may be, as soon as practicable thereafter, but no later than sixty (60)
days from the effective date of termination. For purposes hereof,
“Permanent Disability”
shall mean the inability of the Employee to perform his duties hereunder due to
mental or physical illness or other incapacity (as determined in good faith by a
physician mutually acceptable to the Company and the Employee) for a period of
more than 90 consecutive days (or more than 90 days during any 260 day
period). During any period of disability prior to termination on
account of Permanent Disability, the Employee shall continue to be paid his base
salary under Paragraph 3 above and be provided with the benefits referred to in
Paragraph 7.B. above. The Company will be entitled to deduct from all
payments to be made to the Employee during any disability period an amount equal
to all disability payments payable to the Employee from Workers’ Compensation,
Social Security and/or any disability insurance policies or programs maintained
by the Company, as the case may be.
(ii) By the Company for
“Cause” (defined below) immediately upon written notice from the Company to the
Employee (subject to any cure periods set forth herein). For purposes hereof,
the term “Cause” shall
mean any of the following events: (a) Employee being
convicted of or pleading guilty or no contest to a felony in a court of law or
any other crime or offense involving money or other property of the Company; or
(b) the refusal of Employee to follow the proper written direction of the board
of directors of Company (the “Board”), provided that the
foregoing refusal shall not be “Cause” if Employee in good faith believes that
such direction is illegal, unethical or immoral and promptly so notifies the
Board; or (c) substantial and continuing willful refusal by Employee to perform
the duties required of him hereunder (other than any such failure resulting from
incapacity due to physical or mental illness) after a written demand for
performance is delivered to Employee by the Board or its chairman, specifically
identifying the manner in which it is believed that Employee has
substantially and continually refused to perform his duties hereunder; or (d) a
material breach by the Employee of a fiduciary duty or duty of loyalty to the
Company; or (e) the misappropriation of any asset or opportunity of the Company
by or on behalf of the Employee; or (f) the breach of any representation or
warranty made by Employee in Paragraph 5 B of this Employment
Agreement. Except with respect to (a) above, Employee may only be
terminated if such breach is not cured within fifteen (15) days after written
notice from the Company to the Employee setting forth the breach; provided,
however, that the Employee shall not be entitled to such notice and opportunity
to cure more than two (2) times during any twelve (12) consecutive month period.
In the event that this Agreement is terminated by the Company for “Cause” or by
the Employee other than pursuant to subparagraph C below, then the Company shall
have no further obligations hereunder, except that the Employee’s Base Salary
and accrued but unpaid Minimum Bonus to which the Employee shall be entitled for
any periods prior to termination shall be prorated to the date of termination
and shall be paid to the Employee as well as any earned but unpaid Additional
Bonus (subject to any right of set-off in favor of the Company).
B.
If the Employee’s employment is terminated by Company without Cause, the
Employee will, subject to executing a waiver and release in a form reasonably
satisfactory to Company, receive an amount equal to his Base Salary plus Minimum
Bonus pursuant to Paragraph 3 B (i). Such amount shall vary depending
upon when during the Term Employee’s employment was terminated and shall be paid
to Employee in equal installments for the following periods, paid in the amounts
and in accordance with Company’s then current payroll schedule as
follows:
(i) If the termination occurs during the first twelve (12)
months of the Term, the period is the remainder of the first twenty-four (24)
months of the Term. The total severance payment shall be the amount
equal to two years Base Salary and Minimum Bonus, minus Base Salary and Minimum
Bonus amounts already paid to Employee; or
(ii) If the termination occurs on or after the end of the
first twelve (12) months and on or before the end of the first thirty-six (36)
months of the Term, the period shall be twelve (12) months. The total
severance payment shall be the amount equal to twelve months of Base Salary and
twelve months of Minimum Bonus; or
(iii) If the termination occurs after the first thirty-six
(36) months of the Term, the period shall be the remainder of the
Term. The total severance payment shall be the amount of unpaid Base
Salary and Minimum Bonus remaining for the Term.
C. Employee shall be
entitled to terminate this Agreement if there is a material breach of this
Agreement by Company which is not cured within fifteen (15) business days of
written notice of such breach to Company. Employee shall also be
entitled to terminate this Agreemnt upon notice to Company within six months
after a Change in Conrtol has occurred and not be deemed to be in breach of this
Agreement. For
purposes of this Agreement, the term “Change in Control” shall mean (i) any
“person” as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (“Act”) (other than Company, GSIS, any trustee or other
fiduciary holding securities under any employee benefit plan of Company or GSIS,
or any company owned, directly or indirectly, by the stockholders of Company or
GSIS or any of the current equity owners of GSIS), becoming the “beneficial
owner” (as defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of GSIS representing more than fifty percent (50%) of the combined
voting power of GSIS’s then outstanding securities; or (ii) the equity owners of
GSIS approving a merger or consolidation of GSIS with any other corporation,
other than a merger or consolidation which would result in the voting securities
of GSIS outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power of
the voting securities of GSIS or such surviving entity outstanding immediately
after such merger or consolidation; provided, however, that a merger or
consolidation effected to implement a recapitalization of GSIS (or similar
transaction) in which no person acquires more than fifty percent (50%) of the
combined voting power of GSIS’s then outstanding securities shall not constitute
a Change in Control of GSIS. In the event of termination by Employee pursuant to
this Paragraph 13 C, Employee shall be paid as if his employment were terminated
by Company for Cause under Section 13 A (ii) above.
14. Choice of
Law/Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to
principles of conflict of laws. Employee agrees to and does hereby
submit to the exclusive jurisdiction before any state or federal court located
in New York County, New York in connection with any claims, disputes or
disagreements regarding this Agreement.
15. Amendment
or Alterations. No amendment or alteration of the terms of
this Agreement shall be valid unless made in writing and signed by both the
Company and the Employee.
16. Notices. All
notices and other communications hereunder shall be deemed to have been given if
in writing and sent by commercial overnight courier service (e.g., Federal
Express) or mailed certified or registered mail, postage prepaid, return receipt
requested, as follows, or to such other address as either party may designate
upon at least ten (10) days prior written notice:
A. To
the Company:
Destination
Software, Inc.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxx
Xxxxxx, XX 00000
Attn. President
With a copy to:
Green Screen Interactive Software,
LLC
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn.: General Counsel
B. To
the Employee:
Xxxxx Xxxxxxxxx
0000 Xxxxxxx Xxx
Xxxxxxxxxx,
XX 00000
With a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxx Xxxxxx Xxxxx & Xxxx
LPA
000 Xxxx Xxxxx Xxxxxx, Xxxxx
0000
Xxxxxxxxxx, XX 00000
17. Waiver of
Breach. No delay or omission by any party in exercising any
right, remedy or power hereunder or existing at law or in equity shall be
construed as a waiver thereof, and any such right, remedy or power may be
exercised by the party possessing the same from time to time and as often as may
be deemed expedient or necessary by such party in its sole
discretion.
18. Binding
Effect. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, executors, administrators, legal representatives, successors
and assigns of the parties hereto, except that the duties and responsibilities
of the Employee hereunder are of a personal nature and shall not be assignable
or delegable in whole or in part by Employee.
19. Entire
Agreement. This Agreement is intended to and shall supersede and replace
any and all prior agreements and understandings between the parties hereto with
respect to the employment of the Employee by Company. This Agreement
constitutes the entire agreement among the parties with respect to the matters
herein provided, and no modification, amendment or waiver of any provision
hereof shall be effective unless in writing and signed by the parties
hereto.
20. Survival.
The provisions of Paragraphs 5B, 8, 11, 12, 20 and 21 shall survive the
expiration or termination of this Agreement for any reason
whatsoever.
21. Miscellaneous.
A. The
Employee agrees that the obligations of the Company hereunder shall be limited
to the Company only, and the Employee agrees that he shall not bring any claim
or suit against any director or shareholder of the Company or any other person
other than the Company for any breach or default by the Company of its
obligations hereunder.
B. If
any, provision of this Agreement or application thereof to anyone or under any
circumstances is adjudicated to be invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall not affect any other provision or
application of this Agreement which can be given effect without the invalid or
unenforceable provision or application and shall not invalidate or render
unenforceable such provision or application in any other
jurisdiction.
C. No
remedy conferred upon the Company by this Agreement is intended to be exclusive
of any other remedy, and each and every such remedy shall be cumulative and
shall be in addition to any other remedy given hereunder or now or hereafter
existing at law or in equity.
D. BOTH
PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY ANCILLARY DOCUMENT CONTEMPLATED TO BE
EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE COMPANY TO HIRE
EMPLOYEE.
|
ACCEPTED
AND AGREED.
|
||
|
DESTINATION
SOFTWARE, INC.
|
||
|
By: /s/ Xxxxx
Xxxx
|
||
|
Name: Xxxxx
Xxxx
|
||
|
Title: President
|
||
|
EMPLOYEE:
|
||
|
/s/ Xxxxx
Xxxxxxxxx
|
||
|
Xxxxx
Xxxxxxxxx
|
