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EXHIBIT 10.09
EMPLOYMENT AGREEMENT
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AGREEMENT made as of the 8th day of April, 1998 by and between
Office Centre Corporation, a Delaware corporation (hereinafter referred to as
"OCC"), with an office in New York City, and Xxxxxx X. Xxxxxx (hereinafter
referred to as the "Executive"), residing at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000.
W I T N E S E T H:
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WHEREAS, OCC wishes to engage the services of the Executive to
serve as its Vice President, Purchasing;
WHEREAS, the Executive desires to serve as a Vice President on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter contained, the parties agree as
follows;
1. PERFORMANCE OF DUTIES. The Executive shall become a Vice
President of OCC with such responsibilities relating to purchasing as are
normally attendant to such offices and as may be prescribed by the Chief
Executive Officer of OCC or his designee.
2. COMPENSATION. As compensation for his services hereunder,
the Executive shall receive:
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(a) An annual salary equal to $115,000 per year, such amount
to be paid to the Executive semi-monthly starting on the Effective Date (as
defined below);
(b) A yearly salary review by the Board of Directors to
determine if said annual salary shall be increased, but in no event shall said
salary be decreased;
(c) A yearly cash bonus of up to 50% of the Executive's annual
salary determined by the Board of Directors of OCC based upon Executive's
performance and the performance of OCC;
(d) Upon an initial public offering of common stock of OCC
(the "IPO"), the Executive shall be awarded options to purchase 50,000 shares of
OCC common stock at a price per share equal to the price per share to the public
in the IPO, 1/3 of such options to vest ratably on each of the first, second and
third anniversaries of the date of the IPO. All such options must be exercised
prior to the tenth anniversary of the IPO.
3. FRINGE BENEFITS. In addition to the provisions of Section
2(a), as part of his compensation, the Executive shall be entitled to the
following fringe benefits:
(a) SALARY CONTINUATION DURING DISABILITY. If the Executive
for any reason becomes disabled, so that he is unable to perform his duties
hereunder in the opinion of the due to physical or mental illness or other cause
for either (i) a period of 90 consecutive days or (ii) 180 days during any
360-day period ("Disabled"), the Executive's employment under this Agreement
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shall terminate. OCC shall nevertheless continue to pay him periodic salary
payments that he would have been entitled to receive under Section 2(a) until
the earlier to occur of (x) the third anniversary of the Effective Date and (y)
the time that he is no longer Disabled. Until such period of disability shall
commence, the Executive shall be entitled to receive his regular salary payments
provided he is not in default under this Agreement.
(b) AUTOMOBILE ALLOWANCE. If the Executive's principal place
of business for OCC is required by OCC to be located outside of Manhattan, the
Executive shall be entitled to an automobile allowance of $400 per month.
(c) OTHER BENEFITS. The Executive shall be eligible to
participate in such other benefit programs, including health and hospitalization
insurance, as are generally available to all executives of OCC.
4. EXPENSE REIMBURSEMENT. The Executive shall be entitled to
the use of a corporate phone card and credit card for business expenses and
shall be entitled to reimbursement from OCC for all reasonable out-of-pocket
business expenses incurred by him in connection with the performance of his
duties as Vice President, subject to compliance with OCC's rules and practices
relating to expense reimbursement.
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5. DURATION AND TERMINATION OF EMPLOYMENT.
(a) Unless the Executive's employment under this Agreement is
otherwise terminated, the term of this Agreement is three (3) years from the
Effective Date.
(b) OCC may terminate the employment of the Executive for
Cause (defined herein) and notice of such termination shall be sent to
Executive. "Cause" shall mean the Executive's (i) willful misconduct, (ii)
grossly negligent misconduct in the performance of his duties to the
Corporation, (iii) material breach of his obligations under this Agreement, (iv)
failure to comply with the lawful instructions of the Board of Directors or (v)
conviction of, or plea of NOLO CONTENDERE to, a felony; or conviction of, or
plea of NOLO CONTENDERE to, a crime involving moral turpitude under federal,
state or local laws. Notwithstanding the foregoing, a crime involving tax
matters shall not be considered a crime involving moral turpitude.
(c) If, at any time, OCC terminates the employment of the
Executive for Cause, the Executive resigns his position for any reason, or the
Executive dies, the Executive (or his estate) shall be entitled to receive only
the unpaid portion of his salary which has accrued to the date of such
termination, resignation or death.
(d) If, at any time, OCC terminates the employment of the
Executive for any reason other than for Cause ("Non-Cause Termination"), the
Executive shall be entitled to receive a lump sum payment equal to the periodic
salary payments that he would
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have been entitled to receive under Section 2(a) for the period from the
effective date of the Non-Cause Termination until the one-year anniversary of
the effective date of the Non-Cause Termination.
(e) If the Executive becomes disabled, no payments shall be
owing by OCC other than those specified in Section 3(a).
6. COVENANTS OF THE EXECUTIVE.
(a) NONCOMPETITION. From the Effective Date through the
Non-compete Termination Date (as defined below), the Executive shall not,
directly or indirectly, engage in or be associated with any entity which engages
in a business which is competitive with the business or activities of OCC and
its subsidiaries, within a 25 mile radius of any business location of OCC or any
of its subsidiaries, whether as a director, officer, employee, agent,
consultant, partner, owner, independent contractor or otherwise. OCC and the
Executive hereby acknowledge that nothing contained herein shall prohibit the
Executive from making investments in other entities or businesses, PROVIDED,
that such entities or businesses are not engaged in activities which are
competitive with the business and activities of OCC and its subsidiaries. The
Executive shall refrain from making any investment in, or receiving compensation
or other payment from, any entity or business which is competitive with the
business or activities of OCC and its subsidiaries. Notwithstanding the
foregoing, the Executive's beneficial ownership of less than 1% of the
outstanding capital stock of a publicly traded company, whether or not such
company
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is competitive with OCC and its subsidiaries, shall not, in and of itself, be
deemed to be activities which are competitive with the business and activities
of OCC and its subsidiaries.
"Non-compete Termination Date" shall mean one year from the
expiration or earlier termination of this Agreement, PROVIDED that, if the
Executive becomes Disabled, the Non-compete Termination Date shall be the date
on which no further payments are owing under Section 3(a).
(b) NONSOLICITATION. From the Effective Date through the
Non-compete Termination Date, the Executive shall not, and shall cause each
business or entity with which he shall become associated in any capacity not to,
(i) solicit for employment or employ any person who is then, or who was at any
time six months prior to the date of such termination, employed by OCC or its
subsidiaries or (ii) solicit business which is competitive with OCC's business
from any current customer or supplier of OCC or its subsidiaries or any person
or entity who was a customer or supplier of OCC or its subsidiaries at any time
within six months prior to the date of such termination.
(c) CONFIDENTIALITY. The Executive agrees and acknowledges
that the Confidential Information (as defined below) of OCC and its subsidiaries
is valuable, special and unique to its business; that such business depends on
such Confidential Information; and that OCC wishes to protect such Confidential
Information by keeping it confidential for the use and benefit of OCC and its
subsidiaries. Based on the foregoing, the Executive
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agrees to undertake the following obligations with respect to such Confidential
Information:
(i) the Executive agrees to keep any and all
Confidential Information in trust for the exclusive use and benefit of OCC and
its subsidiaries;
(ii) the Executive agrees that, except as required by
applicable law or as authorized in writing by OCC, he will not, at any time
prior to the second anniversary of the termination of his employment hereunder,
disclose, directly or indirectly, any Confidential Information of OCC or its
subsidiaries;
(iii) the Executive agrees to take all reasonable
steps necessary, or reasonably requested by OCC, to ensure that all Confidential
Information is kept confidential for the use and benefit of OCC and its
subsidiaries; and
(iv) the Executive agrees that, upon termination of
his employment hereunder or at any other time as OCC may in writing request, he
will promptly deliver to OCC all materials constituting Confidential Information
(including all copies thereof) that are in his possession or under his control.
The Executive further agrees that, if requested by OCC to return any
Confidential Information pursuant to this subparagraph (iv), he will not make or
retain any copy or extract from such materials.
For purposes of SECTION 6(C), "Confidential Information" means
any and all information developed by or for OCC and its subsidiaries of which
the Executive gains or has
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acquired knowledge during or prior to the term of his employment with OCC by
reason of his employment with OCC that is (A) not generally known in any
industry in which OCC and its subsidiaries is or may become engaged or (B) not
publicly available. Confidential Information includes, but is not limited to,
any and all information developed by or for OCC and its subsidiaries concerning
plans, marketing and sales methods, customer lists, materials, processes,
software, procedures, devices, plans for development of products, services or
expansion into new areas or markets, internal operations, and any trade secrets
and proprietary information of any type owned by OCC and its subsidiaries,
together with all written, graphic, electronic and other materials relating to
all or any part of the same.
(d) REMEDIES. The Executive acknowledges and agrees that the
covenants and obligations of the Executive contained in this SECTION 6 relate to
special, unique and extraordinary matters and are reasonable and necessary to
protect the legitimate interests of OCC and that a breach of any of the terms of
such covenants and obligations will cause OCC irreparable injury for which
adequate remedies at law are not available. Therefore, the Executive agrees that
OCC shall be entitled to an injunction, restraining order, or other equitable
relief from any court of competent jurisdiction, restraining the Executive from
any such breach. OCC's rights and remedies under this SECTION 6(D) are
cumulative and are in addition to any other rights and remedies OCC may have at
law or in equity.
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7. EFFECT OF MERGER, TRANSFER OF ASSETS, OR DISSOLUTION. This
agreement shall not be terminated by any:
(a) Merger or consolidation where OCC is not the consolidated
or surviving corporation;
(b) Transfer of all or substantially all of the assets of OCC;
or
(c) Voluntary or involuntary dissolution of OCC.
In the event of any such merger or consolidation or transfer
of assets, the surviving or resulting corporation or the transferee of OCC's
assets shall be bound by and shall have the benefit of the provisions of this
agreement; OCC shall take all actions necessary to insure that such corporation
or transferee is bound by the provisions of this agreement.
8. NON-ASSIGNABILITY. Except as provided in Section 7 above,
neither party shall assign its rights and obligations under this contract
without the written approval of the other party, which approval may be withheld
for any reason or no reason.
9. INDEMNITY. OCC shall indemnify Executive and hold him
harmless for all acts or decisions made by him on behalf of OCC to the fullest
extent permitted by applicable law. OCC shall also use its best efforts to
obtain coverage for him under any insurance policy now in force or hereafter
obtained during the term of this Agreement covering the other officers and/or
directors against lawsuits. OCC shall pay all expenses including
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attorney's fees, incurred by the Executive in connection with thedefense of such
act, suit or proceeding and in connection with any related appeal including the
cost of settlement.
10. TIME TO CURE. In the event either party fails to perform
any of either his or its respective obligations hereunder and if such failure
would otherwise constitute a default under this agreement, the non-defaulting
party shall give written notice specifying such obligations to the defaulting
party who shall have five (5) business days after receipt of such notice to cure
the specified default; PROVIDED that an action or failure to act that
constitutes a default and that has been described with reasonable particularity
may not be cured more than once.
11. ARBITRATION. Any controversy or claim arising out of, or
relating to this Agreement, or its breach, shall be settled by arbitration in
the City of New York in accordance with the then governing rules of the American
Arbitration Association. Judgment upon the award rendered may be entered and
enforced in any court of competent jurisdiction. The prevailing party shall be
entitled to reasonable attorneys' fees and expenses.
12. NOTICES. Any written notice required or permitted to be
given under any provision of this Agreement shall be deemed to have been given
(a) if to the Executive, when sent by Registered or Certified Mail (return
receipt requested) in a sealed envelope addressed to him at his last known
residence address as shown on OCC's records or when delivered by hand to
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him or, in his absence, in a sealed envelope to an adult member of his
household, and (b) if to OCC, when sent by Registered or Certified Mail (return
receipt requested) in a sealed envelope addressed to OCC or delivered by hand at
its then existing executive offices, ATTENTION: Counsel.
13. ENTIRE AGREEMENT; ENFORCEABILITY; PARTIAL INVALIDITY.
(a) This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings between them relating to its subject matter. No
modification or waiver of any of the provisions of this Agreement shall be
effective unless set forth in a writing signed by the party against whom the
same is sought to be enforced. The waiver by either party of any breach of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach hereof by such other party.
(b) The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions, and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
14. INTERPRETATION OF AGREEMENT. This Agreement is made in the
State of New York and its validity and interpretation shall be governed by the
laws of such state, without giving effect to conflicts of law principles. The
section and
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subsection headings in this Agreement are for convenience only and shall be
disregarded in any interpretation of this Agreement.
15. EFFECTIVE DATE; OTHER AGREEMENTS.
(a) This Agreement shall be effective on May 8, 1998.
(b) Executive warrants and represents that, as at the
Effective Date, he is not and will not be subject to any employment agreement or
other obligation to any other entity restricting his abilities to perform his
duties to OCC, or any of its affiliates.
IN WITNESS WHEREOF, OCC has caused this Agreement to be
executed in its name and on its behalf by its Chief Executive Officer and the
Executive has signed this Agreement as of the day and year first above written.
OFFICE CENTRE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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