EMPLOYMENT AGREEMENT
AGREEMENT dated as of September 19, 1997 by and between DREW SHOE
CORPORATION, an Ohio corporation with principal offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (hereinafter the "Company") and ▇▇▇▇▇ ▇▇▇▇▇▇, residing at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (hereinafter the "Employee").
W I T N E S S E T H
WHEREAS, the Company is engaged in the business of the manufacture,
design and distribution of shoes; and
WHEREAS, the Company and Employee wish to enter into an employment
agreement in order to assure the employment of the Employee by the Company for
the period provided herein; and
WHEREAS, the Company is a wholly-owned subsidiary of BCAM
International, Inc., a New York corporation ("BCAM"); and
WHEREAS, the Employee is willing to serve in the employ of the
Company for said period, and upon such other terms and conditions hereinafter
provided.
NOW, THEREFORE, the Company and the Employee, intending to be
legally bound, agree as follows:
1. Position/Term. The Employee shall be employed to serve as
Executive Vice President for the term commencing on the date hereof (the
"Commencement Date") and terminating on the first anniversary of the
Commencement Date or sooner as herein provided (the "Term").
2. Extent of Services.
A. The Employee shall devote full business time, attention and
energies and perform services heretofor provided. After three months of the
Term, he shall not be required to be present at the Company's premises on a
daily basis but shall be there as needed, in the Company's discretion. During
the second half of the Term, Employee shall be entitled to pursue other
employment opportunities and shall be afforded reasonable time off in respect
thereof.
B. During the first three months of the Term Employee's
services
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shall include, but be not limited to, programming. Thereafter, during the
balance of the Term, his services in regard to programming shall be limited to
explanations of the goals, theory of operation and general layout of programs
written by the Employee.
C. During the Term, the Employee will provide to the Company
the goals, theory of operation, known procedures of operation, and trouble
shooting of programs and systems not written by the Employee.
3. Compensation.
A. Base Salary. As full compensation for all services to be
rendered by the Employee to the Company hereunder, the Company will pay to
Employee an annual base salary of One Hundred Thousand ($100,000) Dollars during
the Term ("Base Salary"). The Base Salary will be paid in equal monthly
installments or such other normal periodic payment schedule as the Company may
establish for its employees.
B. Benefits. The Employee will receive the benefits of group
life, health, accident, hospitalization and disability insurance in amounts not
less than he was entitled to prior to the date hereof. The Employee shall
continue to use the automobile presently used by him and the Company will make
the lease payments on such automobile during the Term. The Company shall use
reasonable effort following the execution hereof to assign to Employee the lease
for the automobile presently used by him and to obtain the consent and release
from the lessor and Employee will execute whatever document is necessary to
facilitate such assignment. At the time of assignment, the Employee shall assume
monthly payment of the lease and the Company shall provide him with an allowance
during the Term of $800 per month. If such lease cannot be assigned, then upon
termination of his employment by the Company, the Employee will make payment
under the lease directly to the lessor. To the extent that a purchase option is
available under the lease, the Employee shall have the right to exercise or
require the Company to exercise the same and transfer title to him provided that
he shall pay the purchase price and associated costs thereof.
C. Reimbursement of Expenses. The Company shall reimburse or
cause to be reimbursed to the Employee, all reasonable out-of-pocket expenses
incurred by him in the performance of his duties hereunder or in furtherance of
the business and/or interests of the Company and BCAM; provided that Employee
shall furnish to the Company a satisfactory itemized account thereof.
D. Upon termination of employment, Employee shall have the
right to remove from the Company's premises and have title to the property
described in Schedule A annexed hereto.
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4. Company Indemnification/Employee Release.
A. The Company shall, to the extent permitted by law,
indemnify and hold Employee harmless from and against all claims, damages,
losses and expenses, including reasonable attorneys' fees and disbursements
arising out of the performance by the Employee of his duties pursuant to this
Agreement, in furtherance of the Company's business and within the scope of his
employment.
B. Employee hereby (i) acknowledges that as of the date
hereof, he has no claims or causes of action (or potential claims or causes of
action) against the Company and each of its present and former directors,
officers, employees, stockholders, (and their successors and assigns) and (ii)
fully releases and discharges the Company and each of its present and former
directors, officers, employees, stockholders (and their successors and assigns),
from all actions, claims and demands whatsoever (whether in equity, tort,
contract or otherwise), which against any or all of them Employee has ever had
up to and including the date hereof (including any claims or actions discovered
or asserted in the future arising out of conduct occurring up to and including
the date hereof). Notwithstanding the foregoing, the provisions of this
paragraph 4B shall not apply to any claim made by Employee that arises out of
the Purchase by BCAM of the stock of the Company.
5. Termination.
A. If the Employee becomes disabled during the Term, his Base
Salary and all other rights under this Agreement shall terminate at the end of
the month during which disability occurs. For purposes of this Agreement, the
Employee shall be deemed "disabled" if he has been unable to perform his duties
as determined in good faith by the Board of Directors of the Company and upon at
least thirty (30) days prior notice to Employee.
B. If the Employee dies during the Term, the Corporation shall
pay to his estate, the Employee's then current Base Salary up until the date of
death.
C. The Board shall, in the manner described in the last
paragraph of this Section 5.C, have the right to terminate the employment of the
Employee under this Agreement for "cause" and the Employee shall forfeit the
right to receive any and all further payments hereunder, other than the right to
receive any compensation then due and payable to the Employee pursuant to
Section 3 hereof through the date of termination. "Cause" shall be deemed to be
the commission of any of the following acts by the Employee:
(i) The Employee shall have committed any material
breach of any covenants of this Agreement or of the representations, warranties,
covenants and agreements of the Stock Purchase Agreement by and among the
Company, Employee and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
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(ii) The Employee shall have committed any act of gross
negligence in the performance of his duties or obligations hereunder, or,
without proper cause, shall have wilfully refused or habitually neglected to
perform his duties or obligations under this Agreement;
(iii) The Employee shall have committed any material act
of willful misconduct, dishonesty or breach of trust which directly or
indirectly causes the Company or any of its subsidiaries to suffer any material
loss, fine, civil penalty, judgment, claim, damage or expense; or
(iv) The Employee shall have been convicted of, or shall
have plead guilty or nolo contendere to, a felony or indictable offense (unless
committed in the reasonable, good faith belief that the Employee's actions were
in the best interests of the Company and its stockholders and would not violate
criminal law).
If the Board elects to terminate the Employee's employment for cause as set
forth above, it shall deliver written notice (the "Termination Notice") thereof
to the Employee, describing with reasonable detail the "cause" giving rise to
termination, and thereupon no further payments of any type shall be made or
shall be due or payable to Employee hereunder, except as provided in the first
sentence of this Section 5.C.
6. Restrictive Covenants.
A. Covenant not to Disclose; Confidential Information. The
Employee covenants and agrees that he will not at any time during or after the
termination of his employment hereunder reveal, divulge, or make known to any
person, firm, corporation or other business organization (other than the Company
or its subsidiaries), or use for his own account any customer lists, trade
secrets, any information whatsoever relating to patents, trademarks or other
intellectual property of the Company or any secret or confidential information
of any kind used by the Company during his employment, and made known (whether
or not with the knowledge and permission of the Company, whether or not
developed, devised, or otherwise created in whole or in part by the efforts of
the Employee, and whether or not a matter of public knowledge unless as a result
of authorized disclosure) to the Employee by reason of his employment by the
Company. The Employee further covenants and agrees that the knowledge and
information which he has acquired or hereafter shall acquire during his
employment respecting such customer lists, trade secrets, and secret or
confidential information shall be held by him in trust for the sole benefit of
the Company, its successors and assigns.
B. Covenant Not to Compete. The Employee covenants and agrees
that, during the Term hereof and for five (5) years thereafter, he will not,
without the prior
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written consent of the Company, directly or indirectly, and whether as
principal, agent, officer, director, employee, consultant, or otherwise, alone
or in association with any other person, firm, corporation, or other business
organization, carry on, or be engaged, concerned, or take part in, or render
services to, or own, share in the earnings of, or invest in the stock, bonds, or
other securities of any person, firm, corporation, or other business
organization (other than the Company) engaged in a business in the United States
which is similar to or in competition with any footwear and/or footwear related
products business carried on by the Company (a "Similar Business") except in the
course of his employment hereunder; provided, however, that the Employee may
invest in stock, bonds, or other securities of any Similar Business (but without
otherwise participating in the activities of such Similar Business) if (i) such
stock, bonds, or other securities are listed on any national or regional
securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934; and (ii) his investment does not exceed, in the
case of any class of the capital stock of any one issuer, 5% of the issued and
outstanding shares, or in the case of bonds or other securities, 5% of the
aggregate principal amount thereof issued and outstanding.
C. Covenant of Non-Interference. The Employee covenants and
agrees that during the Term hereof and for five (5) years thereafter he will
not, whether for his own account or for the account of any other person, firm,
corporation or other business organization, interfere with the Company's
relationship with, or endeavor to entice away from the Company, any person,
firm, corporation or other business organization who or which at any time during
the term of the Employee's employment with the Company or for three (3) years
preceding such employment, was an employee, consultant, agent, supplier, or a
customer of, or in the habit of dealing with, the Company.
D. Covenant Involving Inventions/Intellectual Property.
(i) The Employee agrees to disclose immediately to the Company
or any persons designated by it and to assign to the Company at its option, or
its successors or assigns, all inventions made, discovered, conceived or first
reduced to practice by the Employee, solely or jointly with others, at anytime
during the time (a) while employed by the Company, (b) within a period of three
(3) years prior to employment by the Company, or (c) within a period of five (5)
years from the date of termination of such employment, which inventions are
made, discovered or conceived either in the course of such employment, or with
the use of the Company's time, material, facilities or funds, or which relate to
or are suggested by any subject matter with which the Employee's employment by
the Company may bring the Employee into contact, or which relate to any
investigations or obligations undertaken by the Company; and the Employee hereby
grants and agrees to grant the right to the Company and its nominees to obtain,
for its own benefit and in its own name (entirely at its expense) patents and
patent applications including original, continuation, reissue, utility and
design patents, and applications, patents of addition, confirmation patents,
registration patents, ▇▇▇▇▇ patents, utility models, etc., and all other types
of patents and the like, and all renewals and extensions
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of any of them for those inventions in any and all countries; and the Employee
shall assist the Company, without further charge during the period of the
Employee's employment to execute, acknowledge, and deliver all such further
papers, including assignments, applications for Letters Patent (of the United
States or of any foreign country), oaths, disclaimers or other instruments and
to perform such other acts, including giving testimony or furnishing evidence in
the prosecution or defense of appeals, interferences, suits and controversies
relating to any of the aforesaid inventions, applications and patents as may be
deemed necessary by the Company or its nominees to effectuate the vesting or
perfecting in the Company or its nominees of all right, title and interest in
and to said inventions, applications and patents.
(ii) The Employee agrees to disclose immediately to the
Company or any persons designated by it and to assign to the Company, at its
option, or its successors or assigns, all works of authorship, including, but
not limited to, all writings, manuals, computer programs, software and hardware,
written or created by the Employee solely or jointly with others, at any time
(a) during the course of his employment by the Company, (b) within a period of
three (3) years prior to employment by the Company, or (c) within a period of
five (5) years from the date of termination of such employment, which works are
made or conceived either in the course of such employment, or with the use of
the Company's time, material, facilities or funds, or which relate to or are
suggested by any subject matter with which the Employee's employment by the
Company may bring the Employee into contact or which relate to any
investigations or obligations undertaken by the Company; and the Employee hereby
agrees that all such works are works made for hire, of which the Company is the
author and the beneficiary of all rights and protections afforded by the law of
copyright in any and all countries; and the Employee will assist the Company
without further charge during the term of his employment. Only during the first
three months of the Term does such assistance include programming. During the
remaining nine months of the Term, such assistance is limited to explanations of
the goals, theory of operation and general layout of programs written by the
Employee. During the Term, the Employee will provide to the Company the goals,
theory of operation, known procedures of operation, and troubleshooting by
telephone of programs and systems not written by the Employee. Following the
expiration of the Term, the Employee shall be paid at the rate of $150.00 per
hour, in hourly increments (including travel time), for any time spent assisting
the Company. The Employee shall and after termination of his employment, at the
rate of $150 per hour, through counsel designated by the Company, execute,
acknowledge, and deliver all such further papers, including assignments,
applications for copyright registration (in the United States or in any foreign
country), oaths, disclaimers or other instruments, and to perform such further
acts, including giving testimony or furnishing evidence in the prosecution or
defense of appeals, interferences, suits and controversies relating to any of
the aforesaid works, as may be deemed necessary by the Company or its nominees
to effectuate the vesting or perfecting in the Company or its nominees of all
rights and interest in and to said works and copies thereof, including the
exclusive rights of copying and distribution.
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(iii) During the term hereof, the Employee shall keep
complete, accurate and authentic accounts, notes, data and records of all
inventions made, discovered or developed by the Employee as aforesaid in the
manner and form requested by the Company.
E. Covenant Modification. If any provision of this Section 6
is held by any court of competent jurisdiction to be unenforceable because of
the scope, duration or area of applicability, such provision shall be deemed
modified to the extent such court modifies the scope, duration or area of
applicability of such provision to make it enforceable.
F. Documents and Records. All written materials, records and
documents made by the Employee or coming into his possession during the Term
concerning the business or affairs of the Company shall be the sole property of
the Company and, upon expiration of the Term or upon the request of the Company
during the Term, the Employee shall promptly deliver the same to the Company.
The Employee agrees to render in a timely manner to the Company such reports of
the activities undertaken by the Employee or conducted under the Employee's
direction pursuant hereto during the Term as the Company may reasonably request.
G. Survivability of Covenants. All covenants contained in this
Section 6 shall survive indefinitely the termination of this Agreement for any
reason whatsoever.
7. Injunction. It is recognized and hereby acknowledged by the
Employee that a breach or violation by the Employee of any of the covenants or
agreements contained in this Agreement may cause irreparable harm and damage to
the Company, the monetary amount of which may be virtually impossible to
ascertain. As a result, the Employee recognizes and acknowledges that the
Company shall be entitled to an injunction, without posting any bond or security
in connection therewith, from any court of competent jurisdiction enjoining and
restraining any breach or violation of any of the restrictive covenants
contained in Section 6 hereof by the Employee or his associates, partners or
agents, either directly or indirectly, and that such right to injunction shall
be cumulative and in addition to whatever other rights or remedies the Company
may possess. Nothing contained in this Section 7 shall be construed to prevent
the Company from seeking and recovering from the Employee damages (which shall
include reasonable legal fees and expenses in connection therewith) sustained as
a result of any breach or violation by the Employee of any of the covenants or
agreements contained in this Agreement, and that in the event of any such
breach, the Company shall avail itself of all remedies available both at law and
in equity. The Company agrees that if the Employee is not liable to the Company
for any breach of his obligations, the Company shall reimburse Employee's
reasonable legal fees and expenses incurred in such action.
8. Employee's Representations. Employee represents to the Company
that
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to the best of his knowledge he is under no obligation to any employer or third
party which would preclude the full, complete and unfettered discharge of his
duties under this Agreement.
9. Notices. Any and all notices or other communications required or
permitted to be given under any of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered or
mailed by first class certified or registered mail, return receipt requested,
addressed to the parties at the following addresses (or at such other address as
any such person may specify by notice to all other such persons given as
aforesaid):
If to the Company:
BCAM International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to:
Ruskin, Moscou, ▇▇▇▇▇ & Faltischek, P.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to Employee:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Tour, Esq.
10. Amendment. This Agreement may be amended only in writing signed
by both parties hereto.
11. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Company, its successors and assigns. Employee
may not assign,
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transfer, pledge or hypothecate any of his rights or obligations hereunder, or
money to which he may be entitled hereunder.
12. Waiver of Breach. The failure of a party to insist on strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver hereto must be
in a writing signed by both parties.
13. Severability. The invalidity or unenforceability of any other
provision hereof shall in no way affect the validity or enforceability of any
other provision hereof.
14. Entire Agreement. This Agreement constitutes the entire
Agreement between the parties, and supersedes all existing agreements between
them with respect to the subject matter hereof. It may only be changed or
terminated by an instrument in writing signed by both parties.
15. Governing Law. This Agreement shall be governed by, construed
and interpreted in accordance with the laws of the State of Ohio without taking
into account conflict-of-law provisions.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Paragraph Headings. Paragraph headings are inserted herein for
convenience only and are not intended to modify, limit or alter the meaning of
any provision of this Agreement.
18. Compensation Disclosure. In January, 1998 and January, 1999,
respectively, the Company shall provide the Employee with a statement of the
complete compensation of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ for the preceding calendar years.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
DREW SHOE CORPORATION
By:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
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Chairman, Board of Directors
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▇▇▇▇▇ ▇▇▇▇▇▇
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