Exhibit 10.1
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT, dated as of April 1, 2005 by and between
COACTIVE MARKETING GROUP, INC., a Delaware corporation with its principal place
of business at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Employer") and XXXXX
XXXXXXX, an individual residing at 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx
Xxxxxx 00000 ("Employee").
W I T N E S S E T H:
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WHEREAS, Employer operates a sales promotion and marketing services
business; and
WHEREAS, Employer desires to employ Employee, and Employee desires to
enter into the employ of Employer, on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
1. Employment. Employer hereby employs Employee and Employee
hereby accepts employment by Employer for the period and on the terms and
conditions set forth in this Agreement.
2. Position, Employment Duties and Responsibilities. Employee
shall be employed as Employer's Senior Vice President -- Finance with the
responsibility of maintaining and reporting on Employer's accounting records and
such other responsibilities typically accorded a Vice President -- Finance and
Controller, subject to Employer's established company policies and procedures
and to such further duties and responsibilities granted and restrictions imposed
by Employer's Chief Financial Officer. Throughout the term of this Agreement,
Employee shall devote his entire working time, energy and skill and best efforts
to the performance of his duties hereunder in a manner which will faithfully and
diligently further the business and interests of Employer. Employee's direct
reporting responsibility is to the Chief Financial Officer of Employer.
3. Working Facilities. Employee will work out of Employer's
offices located in New York, New York.
4. Compensation and Benefits.
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4.1 Salary. For all of the services rendered by Employee
to Employer, Employer shall pay to Employee an annual salary of Two Hundred and
Fifty Thousand Dollars ($250,000), payable in reasonable periodic installments
in accordance with Employer's regular payroll practices in effect from time to
time. Employee's performance will be reviewed annually and subject to such
review, Employee's salary may be adjusted as the Board of Directors of Employer
may determine in its sole discretion, but the Employee acknowledges that there
is no agreement regarding any such adjustment.
4.2 Bonus. Employer from time to time may pay Employee
such bonuses or other additional compensation as the Board of Directors of
Employer may determine in its sole discretion, but Employee acknowledges that
there is no agreement regarding any such additional payments.
4.3 Employee Benefits. Employee shall be entitled to (a)
participate in and be provided with health insurance, life insurance and other
benefit plans and programs readily offered to and or made available to
Employer's employees, (b) four (4) weeks paid vacation during each year of the
employment term, with such vacation otherwise consistent with the vacation
policy of Employer and (c) observe Employee's religious holidays. Should
Employee elect to participate in Employer's provided health insurance plans,
Employer will not be required to contribute to the expense of Employee's
eligible family coverage.
4.4 Travel, Entertainment and Other Business Expenses.
During the period of employment pursuant to this Agreement, Employee will be
reimbursed for reasonable expenses incurred for the benefit of Employer in
accordance with the general policy of Employer. Those reimbursable expenses
shall include properly documented, authorized or otherwise reasonably required,
travel, entertainment and other business expenses incurred by Employee, other
than those expenses related to or in connection with routine commutation to and
from Employee's home.
4.5 Automobile Allowance.During the period of employment
pursuant to this Agreement, Employer shall provide Employee with a monthly
automobile allowance of five hundred dollars ($500).
4.5 Deductions. All references herein to compensation to
be paid to Employees are to the gross amounts thereof which are due hereunder.
Employer shall have the right to deduct therefrom all taxes which may be
required to be deducted or withheld under any provision of the law (including,
without limitation, social security payments, income tax withholding and any
other deduction required by law) now in effect or which may become effective at
any time during the term of this Agreement.
5. Term. This Agreement shall be for a term of one (1) year,
commencing on the date hereof and ending on the first anniversary of the date
hereof, provided, however, that Employer may terminate this Agreement as of
November 1, 2005 by providing Employee with not less than thirty (30) days
notice of such termination. However, in the event Employer replaces it current
Chief Financial Officer with anyone other than Employee, on the commencement
date of such replacement, this Agreement will be deemed to have been terminated
by Employer. Unless earlier terminated, subsequent to its initial one year term,
this Agreement shall automatically continue on a month to month basis unless and
until either party terminates this Agreement by providing the other party with
not less than thirty (30) days prior written notice of termination effective on
or after the first anniversary of the date hereof. In the event Employer
terminates this Agreement, Employee shall be entitled receive four (4) months
severance pay, unless such termination was pursuant to Section 7 as hereinafter
set forth.
6. Nondisclosure and Non-Compete.
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6.1 Definitions. The following words and expressions used
in this Agreement shall have the respective meanings hereby assigned to them as
follows:
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(a) "Affiliate" shall mean any partnership,
firm, corporation, association, trust, unincorporated organization or other
entity, that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, Employer.
(b) "Business Associate(s)" shall mean and refer
to any (all) individuals, partnerships, corporations, associations or other
business enterprises in any form which have had in the past, have currently,
shall have or be attempting to develop during the Restriction Period a business
relationship with Employer or any of its Affiliates as a customer or supplier.
(c) "Customer(s)" shall mean and refer to any
(all) of the past or current customers of Employer or any of its Affiliates and
shall also include those prospective customers who are actively being marketed
by Employer or any of its Affiliates during the term of this Agreement.
(d) "Competitor" shall mean and refer to any
individual, partnership, corporation, association or other business enterprise
in any form, other than Employer and its Affiliates, which at any time during
the Restriction Period, either directly or indirectly, (i) engages in the
business of promotion marketing and sells to Customers in the Restriction Area
or (ii) engages in any other business directly competitive with Employer or any
of its Affiliates and sells to Customers in the Restriction Area.
(e) "Confidential Information" shall mean and
refer to all information of Employer and its Affiliates which is not generally
known or available to the public or a Competitor (whether or not in written or
tangible form), the knowledge of which could benefit a Competitor, including
without limitation, all of the following types of information:
(i) identities of, and information pertaining
to, Customers, Personnel and Business
Associates;
(ii) research, projections, financial
information, cost and pricing information,
invoices and internal accounting statistics;
(iii) product or service development plans and
marketing strategies;
(iv) purchasing methods; and
(v) trade secrets, or other knowledge or
processes of or developed by Employer or any
of its Affiliate.
(f) "Confidential Materials" shall mean and
refer to any and all documents, materials, programs, recordings or any other
tangible media (including, without limitation, copies or reproductions of any of
the foregoing) in which Confidential Information may be contained.
(g) "Personnel" shall mean and refer to any
(all) employees, contractors, agents, brokers, consultants or other individuals
rendering services to Employer or any of its Affiliates for compensation in any
form, whether employed by or independent of Employer or any of its Affiliates.
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(h) "Restriction Area" shall mean and refer to
the United States.
(i) "Restriction Period" shall mean and refer to
the period of time, commencing on Employee's date of employment and expiring
eighteen (18) months after, for any reason whatsoever, (i) the employment
relationship between Employee and Employer or any of its Affiliates terminates
or (ii) Employee ceases to perform services for Employer or any of its
Affiliates, whichever occurs later.
6.2 Covenant Not to Interfere.
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(a) During the Restriction Period, Employee
shall not, directly or indirectly, solicit, induce or influence, or attempt to
induce or influence, any Customer to terminate a relationship which has been
formed or is being formed with Employer or any of its Affiliates, or to reduce
the extent of, discourage the development of, or otherwise harm its relationship
with Employer or any of its Affiliates, including, without limitation, to
commence or increase its relationship with any Competitor.
(b) During the Restriction Period, Employee
shall not, directly or indirectly, recruit, solicit, induce or influence, any
Personnel of Employer or any of its Affiliates to discontinue, reduce the extent
of, discourage the development of, or otherwise harm their relationship or
commitment to Employer or its Affiliates, including, without limitation, by
employing, seeking to employ or inducing or influencing a Competitor to employ
or seek to employ any Personnel of Employer or any of its Affiliates, or
inducing an employee of Employer or any of its Affiliates to leave employment by
Employer or its Affiliate, as the case may be.
(c) During the Restriction Period, Employee
shall not, directly or indirectly, solicit, induce or influence, or attempt to
induce or influence, any Business Associate to discontinue, reduce the extent
of, discourage the development of, or otherwise harm its relationship with
Employer or any of its Affiliates, including, without limitation, by inducing a
Business Associate to commence, increase the extent of, develop or otherwise
enhance its relationship with any Competitor, or to refuse to do business with
Employer or any of its Affiliates.
6.3 Confidential Information.
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(a) Duty to Maintain Confidentiality. Employee
shall maintain in strict confidence and duly safeguard to the best of his
ability any and all Confidential Information. Employee covenants that Employee
will become familiar with and abide by all policies and rules issued by Employer
now or in the future dealing with Confidential Information.
(b) Covenant Not to Disclose, Use or Exploit.
Employee shall not, directly or indirectly, disclose to anyone or use or
otherwise exploit for the benefit of anyone, other than Employer and its
Affiliates, any Confidential Information.
(c) Confidential Materials. All Confidential
Materials are and shall remain the exclusive property of Employer. No
Confidential Materials may be copied or otherwise reproduced, removed from the
premises of Employer, or entrusted to any person or entity (other than the
Personnel entitled to such materials by authorization of Employer) without prior
written permission from Employer.
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6.4 Employer's Property. Any and all writings,
improvements, processes, procedures and/or techniques which Employee may make,
conceive, discover or develop, either solely or jointly with any other person or
persons, at any time during the term of this Agreement, whether during working
hours or at any other time and whether at request or upon the suggestion of
Employer or any Affiliate thereof, which relate to or are useful in connection
with any business now or hereafter carried on or contemplated by Employer or any
Affiliate thereof, including developments or expansions of its present fields of
operations, shall be the sole and exclusive property of Employer. Employee shall
make full disclosure to Employer of all such writings, improvements, processes,
procedures and techniques, and shall do everything necessary or desirable to
vest the absolute title thereto in Employer. Employee shall not be entitled to
any additional or special compensation or reimbursement regarding any and all
such writings, improvements, processes, procedures and techniques.
7. Discharge for Cause. Employer may discharge Employee at any
time for (a) criminal conduct constituting a felony offense, (b) alcohol or drug
abuse which impairs Employee's performance of Employee's duties hereunder, (c)
incompetence, (d) insubordination, (e) willful misconduct, (f) willful violation
of any express direction or any reasonable rule or regulation established by
Employer's Board of Directors from time to time regarding the conduct of its
business, (g) misrepresentation made in this Agreement, or (h) any violation of
Employee of the terms and conditions of this Agreement. In the event that
Employer wishes to discharge Employee for incompetence, insubordination, willful
misconduct, any willful violation of any express direction or any reasonable
rule or regulation established by Employer's Board of Directors from time to
time regarding the conduct of its business, misrepresentation made in this
Agreement, or any violation of Employee of the terms and conditions of this
Agreement, Employer shall notify Employee, orally or in writing, of Employer's
intention to discharge Employee and of the time (which shall be at least 48
hours after such notice) and place when Employee may have a hearing before the
Board of Directors. Following such hearing, the Board of Directors shall advise
Employee of its determination and, if Employee is to be terminated, of the date
of Employee's termination. In the event of any termination pursuant to this
Section 7, Employer shall have no further obligations or liabilities hereunder
after the date of such discharge.
8. Consequences Upon Termination.
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8.1 Payment of Compensation Owed. Upon the termination of
Employee's employment and this Agreement for any reason whatsoever, Employer
shall promptly pay to Employee all compensation owed to Employee up until the
date of termination.
8.2 Return of Property. Upon the termination of
Employee's employment and this Agreement for any reason whatsoever, Employee
shall promptly return to Employer all Confidential Materials in his possession
or within Employee's control, all keys, credit cards, business card files and
other property belonging to Employer.
8.3 Performance of Services. After the termination of
Employee's employment and for the remaining duration of the Restriction Period,
Employee shall notify Employer of the name and address of all persons for whom
Employee performs services for compensation and the nature of such services,
whether performed by Employee as a proprietor, partner, shareholder, investor,
manager, director, officer, employee, venturer, representative, agent, broker,
independent contractor, consultant or otherwise.
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9. Remedies.
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9.1 Equitable Relief. The parties acknowledge that the
provisions and restrictions of this Agreement, including without limitation the
restrictions contained in Article 6 hereof, are reasonable and necessary for the
protection of the legitimate interests of Employer and Employee. The parties
further acknowledge that the provisions and restrictions of this Agreement are
unique, and that any breach or threatened breach of any of these provisions or
restrictions by Employee will provide Employer with no adequate remedy at law,
and the result will be irreparable harm to Employer. Therefore, the parties
agree that upon a breach or threatened breach of the provisions or restrictions
hereof by Employee, Employer shall be entitled, in addition to any other
remedies which may be available to it, to institute and maintain proceedings at
law or in equity, to recover damages, obtain specific performance or a temporary
or permanent injunction, without the necessity of establishing the likelihood of
irreparable injury or proving damages and without being required to post bond or
other security.
9.2 Modification of Restrictions; Full Restriction
Period. If the Restriction Period, the Restriction Area or the scope of activity
restricted in Article 6 should be adjudged unreasonable in any proceeding, then
the Restriction Period shall be reduced by such number of months, the
Restriction Area shall be reduced by the elimination of such portion thereof or
the scope of the restricted activity shall be modified, or any or all of the
foregoing, so that such restrictions may be enforced in such area and for such
time as is adjudged to be reasonable. If Employee violates any of the
restrictions contained in Article 6, the Restriction Period shall not run in
favor of Employee from the time of commencement of any such violation until such
time as such violation shall be cured by Employee to the satisfaction of
Employer.
9.3 Arbitration. Except for the provisions of Sections
9.1 and 9.2 above, any controversy, dispute, or difference arising out of or
relative to this Agreement or the breach thereof shall first be submitted to
settlement by arbitration in New York, New York in accordance with the rules
which are then in effect of the American Arbitration Association, provided that
persons eligible to be selected as arbitrators shall be limited to
attorneys-at-law. A demand for arbitration under this provision shall be made in
writing to the other party within sixty (60) days of the date the party
demanding arbitration knew or should have known of the event giving rise to the
claim, but in no event more than two (2) years after the event giving rise to
the claim, or the claim shall be forever barred. The parties agree that judgment
upon any award rendered may be entered in any court having jurisdiction thereof
as an enforceable judgment or decree.
10. Consideration for Restrictive Covenants. Employee acknowledges
that the execution of this Agreement and compliance with it by Employer shall
constitute fair and adequate consideration for Employee's compliance with the
restrictive covenants contained in the respective sections of this Agreement.
11. Miscellaneous.
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11.1 Governing Law. This Agreement, its interpretation,
performance and enforcement, and the rights and remedies of the parties hereto,
shall be governed and construed by the laws of the State of New York applicable
to contracts to be performed wholly within New York, without regard to
principles of conflicts of laws and without the aid of any canon, custom or rule
of law requiring construction against the drafter.
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11.2 Waiver. A waiver by any party of any condition or the
breach of any term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
not be deemed or construed as a further or continuing waiver of any such
condition or the breach of any other term, covenant, representation, or warranty
set forth in this Agreement.
11.3 Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersede all prior agreements and contemporaneous understandings,
inducements or conditions, express or implied, written or oral, between the
parties with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof.
11.4 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by cable, by telecopy, by telegram, by telex or
by registered or certified mail (postage prepaid, return receipt requested) to
the respective parties at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this Section
11.5):
(a) if to Employer:
CoActive Marketing Group, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
CoActive Marketing Group, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Executive Vice President
(b) if to Employee:
Xxxxx Xxxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
11.6 Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
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11.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
11.8 Counterparts. This Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
11.9 Amendment or Termination. No agreement shall be
effective to change, modify, waive, release, amend, terminate, discharge or
effect an abandonment of this Agreement, in whole or in part, unless such
agreement is in writing, refers expressly to this Agreement and is signed by the
party against whom enforcement of the change, modification, waiver, release,
amendment, termination, discharge or effectuation of the abandonment is sought.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
COACTIVE MARKETING GROUP, INC.
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Executive Vice President,
Chief Financial Officer
and Secretary
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
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