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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
DATED JANUARY 1, 1998
BY AND BETWEEN
XXXX DIGITAL TECHNOLOGIES, INC.,
A DELAWARE CORPORATION (THE "COMPANY"),
AND
XXXX X. XXXXX (THE "EXECUTIVE").
The parties hereto desire to provide for the Executive's continued
employment by the Company in accordance with the terms and provisions set forth
below:
NOW, THEREFORE, the parties agree as follows:
1. Employment; Term.
The Company will continue to employ the Executive, and the Executive will
continue to work for the Company, as its Executive Vice President -- Sales, for
a term commencing on the date hereof and terminating on December 31, 1999,
unless sooner terminated in accordance with Section 7 hereof. Such period,
together with the period of any extension or renewal of such employment, is
referred to herein as the "Employment Period."
This Agreement shall supersede any other agreement by and between the
Company and the Executive pertaining to the subject matter hereof.
2. Duties.
During the Employment Period, the Executive shall serve as the Executive
Vice President -- Sales of the Company, and perform such further duties as
shall, from time to time, be reasonably assigned to the Executive by the
President and Chief Executive Officer of the Company consistent with her
position and abilities.
3. Devotion of Time.
During the Employment Period, the Executive shall be required to: (i) work
on a part time basis to promote Company's sales; (ii) devote her best efforts,
energy and skill to the services of the Company and the promotion of its
interests; and (iii) not take part in activities known by the Executive to be
detrimental to the best interests of the Company.
4. Compensation.
In consideration for the services to be performed by the Executive during
the Employment Period hereunder, the Company shall compensate the Executive as
follows:
(a) The Company shall pay the Executive an annual base salary from the
date hereof at the rate of $125,000 per annum, to be paid in accordance
with the Company's regular payroll practices for its employees;
(b) The Company shall pay the Executive an amount equal to five (5%)
percent of all amounts billed by the Company in each calendar quarter in
excess of an aggregate of $600,000 for (i) services rendered or products
delivered to the customers of the Company listed on the annexed Schedule A
and (ii) services rendered or products delivered to customers of the
Company procured by the Executive subsequent to the date hereof. Such
compensation shall be paid to the Executive within thirty (30) days after
the conclusion of such calendar quarter; and
(c) The Company shall pay the Executive an amount equal to five (5%)
percent of all amounts billed by the Company in each calendar quarter for
services rendered or products delivered to Viacom. Such compensation shall
be paid to the Executive within thirty (30) days after the conclusion of
such calendar quarter.
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5. Use of Automobile; Reimbursement of Expenses; Additional Benefits.
5.1 The Executive shall be provided with an automobile to be owned or
leased by the Company or shall be reimbursed for the expenses in connection with
one automobile of the make and type approved by the Company.
5.2 The Company shall pay directly, or reimburse the Executive for, all
other reasonable and necessary expenses and disbursements incurred by her for
and on behalf of the Company in the performance of her duties under this
Agreement, including all costs associated with the maintenance and use of one
cellular telephone. For such purposes, the Executive shall submit to the Company
itemized reports of such expenses in accordance with the Company's policies.
5.3 The Executive shall be reimbursed for all business travel and business
entertainment expenses consistent with the Company's practices and policies.
5.4 The Executive shall be entitled to participate in, and to receive
benefits under, any employee benefit plans of the Company (including, without
limitation, pension, profit sharing, group life insurance and group medical
insurance plans) as may exist from time to time for its executive employees.
6. Restrictive Covenant.
6.1 During the Employment Period and thereafter, the Executive shall not
reveal, divulge or make known to any person, firm, corporation or other business
organization, and shall not directly or indirectly use for her own benefit, or
for the benefit of anyone else, any secret or confidential information used by
the Company in its business, including, without limitation, (i) pricing
information, (ii) the terms of the Company's existing contracts with suppliers,
service bureaus or vendors (iii) any information pertaining to the Company's
customers and their requirements and (iv) any other of the Company's trade
secrets, all of which shall be collectively referred to hereafter as the
"Confidential Information."
6.2 The services of the Executive are unique, extraordinary and essential
to the business of the Company, particularly in view of the Executive's access
to the Confidential Information. Accordingly, the Executive agrees that she will
not at any time during the Employment Period and for a period of two (2) years
thereafter, without the prior written approval of the Board of Directors of the
Company, directly or indirectly, engage in any business activity competitive
with the business of the Company. Furthermore, the Executive agrees that, during
such period, she shall not solicit, directly or indirectly, or affect to the
Company's detriment any relationship of the Company with any customer, supplier,
service bureau, vendor or employee of the Company or cause any customer,
supplier, service bureau or vendor to refrain from entrusting additional
business to the Company.
6.3 In the event that any of the provisions of Sections 6.1 and 6.2 hereof
shall be adjudicated to exceed the time, geographic or other limitations
permitted by applicable law in any jurisdiction, then such provision shall be
deemed reformed in any such jurisdiction to the maximum time, geographic or
other limitations permitted by applicable law.
6.4 As used in this Section 6, the term "Company" shall mean and include
any and all corporations affiliated with the Company, which either now exist or
which may hereafter be organized.
6.5 The Executive hereby acknowledges and agrees that, in the event she
shall violate any provisions of this Section 6 the Company will be without an
adequate remedy at law and accordingly, will be entitled to enforce such
restrictions by temporary or permanent injunctive or mandatory relief obtained
in any action or proceeding instituted in any court of competent jurisdiction
without the necessity of proving damages and without prejudice to any other
remedies which it may have at law or in equity.
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7. Earlier Termination.
7.1 The Executive's employment hereunder shall automatically be terminated
upon the death of the Executive or the Executive's voluntarily leaving the
employ of the Company and, in addition, may be terminated, at the sole
discretion of the Company, as follows:
(a) Upon thirty (30) days' prior written notice by the Company, in the
event of the Executive's disability as set forth in Section 7.2 below; or
(b) Upon thirty (30) days' prior written notice by the Company, in the
event that the Company terminates the Executive's employment hereunder for
cause as set forth in Section 7.3 below.
7.2 The Executive shall be deemed disabled hereunder, if in the opinion of
the Board of Directors of the Company, as confirmed by competent medical advice,
she shall become physically or mentally unable to perform her duties for the
Company hereunder and such incapacity shall have continued for any period of six
(6) consecutive months.
7.3 For purposes hereof, "cause" shall mean the following: (a) the
Executive's willful malfeasance or gross negligence; or (b) the material breach
of any covenant made by the Executive hereunder, and the Executive's failure to
cure such conduct or event constituting "cause" within 30 days after written
notice thereof.
7.4 In the event that this Agreement shall be terminated due to the
Executive's death or disability, then the Company shall pay to the Executive or
her personal representatives, as the case may be, severance pay in a lump sum
amount equal to base annual salary and draw against commission for a period of
twelve months as set forth in Section 4 hereof. If, however, this Agreement
shall be terminated for any other reason whatsoever, then the Company shall not
be obligated to made any severance payments whatsoever to the Executive
hereunder, except for the compensation set forth in Section 4 hereof which shall
have accrued but be unpaid at the effective time of termination.
8. No Requirement of Relocation.
The Company expressly agrees that the Executive, as a condition of her
employment, need not relocate her residence from the community in which she
presently resides.
9. Assignment.
This Agreement, as it relates to the employment of the Executive, is a
personal contract and the rights and interests of the Executive hereunder may
not be sold, transferred, assigned, pledged or hypothecated, except as otherwise
set forth herein. This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns, including without limitation,
any corporation or other entity into which the Company is merged or which
acquires all of the outstanding shares of the Company's capital stock, or all or
substantially all of the assets of the Company.
10. Notices.
Any notice required or permitted to be given pursuant to this Agreement
shall be deemed given three (3) business days after such notice is mailed by
certified mail, return receipt requested, addressed as follows: (i) if to the
Executive, at 00 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxx, XX 00000; and (ii) if to the
Company, at 00 Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address as
any such party shall designate by written notice to the other party. Copies of
all notices shall also be provided to Feder, Kaszovitz, Isaacson, Weber, Xxxxx &
Bass LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
11. Waiver, Modification.
The terms of this Agreement may not be waived or modified except by an
agreement in writing executed by the parties hereto. The waiver by either party
of any breach of this Agreement must be in writing and shall not be deemed to be
a waiver of any prior or succeeding breach.
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12. Governing Law.
This Agreement shall be governed by, and construed and enforced in
accordance with the laws of the State of New York.
13. Severability.
If, at any time subsequent to the date hereof, any provision of this
Agreement shall be held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision shall be of no force and effect, but the
illegality or enforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this Agreement.
14. Entire Agreement.
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and there are no representations,
warranties or commitments except as set forth herein. This Agreement supersedes
all prior and contemporaneous agreements, understandings, negotiations and
discussions, whether written or oral, of the parties hereto relating to the
transactions contemplated by this Agreement; provided, however, that it is the
intention of the parties that this Agreement shall be interpreted and applied in
conjunction with the terms of any option, warrant or other right now in
existence or hereinafter granted to the Executive to acquire shares of capital
stock of the Company. In the event of any conflict, however, the terms of this
Agreement shall govern and prevail. This Agreement may be amended only in
writing executed by the parties hereto affected by such amendment.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
XXXX DIGITAL TECHNOLOGIES, INC.
By: /s/ XXXX XXXX
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Xxxx Xxxx, President
/s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
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