Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the __ day of
March, 1999, between DAG, Media, Inc, a New York corporation (the "Company"),
having its principal place of business at 000-00 Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxx Xxxx, 00000, and Assaf Ran (the "Executive"), residing at 000-00 00xx
Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx 00000.
WITNESSETH:
WHEREAS, the Company believes that it would benefit from the
application of the Executive's particular and unique skill, experience and
background to the management and operation of the Company, and wishes to employ
the Executive as President and Chief Executive Officer ("CEO") of the Company;
and
WHEREAS, the parties desire by this Agreement to set forth the terms
and conditions of the employment relationship between the Company and the
Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants in this Agreement, the Company and the Executive agree as follows:
1. EMPLOYMENT AND DUTIES. The Company hereby employs the Executive as
President and CEO on the terms and conditions provided in this Agreement and
Executive agrees to accept such employment subject to the terms and conditions
of this Agreement. The Executive shall be the senior executive officer of the
Company, shall perform the duties and responsibilities as are customary for the
officer of a corporation in such positions, and shall perform such other duties
and responsibilities as are reasonably determined from time to time by the Board
of Directors of the Company (the "Board"). The Executive shall report to and be
supervised by the Board. The Executive shall be based at the Company's offices
in Kew Gardens, New York or such other place
that shall constitute the Company's headquarters and, except for business travel
incident to his employment under this Agreement, the Company agrees the
Executive shall not be required to relocate.
2. TERM. The term of this Agreement shall be deemed to have commenced
on February 22, 1999 (the "Commencement Date"), and shall terminate on June 30,
2002, unless extended or earlier terminated in accordance with the terms of this
Agreement (the "Termination Date"). Such term of employment is herein sometimes
referred to as the "Employment Term". The Employment Term shall be extended for
successive one year periods unless either party notifies the other in writing at
least 180 days before the Termination Date or any anniversary of the Termination
Date, as the case may be, that he or it chooses not to extend the Employment
Term.
3. COMPENSATION. As compensation for performing the services required
by this Agreement, and during the term of this Agreement, the Executive shall be
compensated as follows:
(a) BASE COMPENSATION. The Company shall pay to the Executive an
annual salary ("Base Compensation") of $75,000, payable in equal installments
pursuant to the Company's customary payroll procedures in effect for its
executive personnel at the time of payment, but in no event less frequently
than monthly, subject to withholding for applicable federal, state, and local
taxes. The Executive may be entitled to such increases in Base Compensation
with respect to each calendar year during the term of this Agreement, as
shall be determined by the Board, in its sole and absolute discretion, based
on periodic reviews of the Executive's performance .
(b) INCENTIVE COMPENSATION. In addition to Base Compensation,
the Executive may be entitled to receive such additional compensation
("Incentive Compensation") as shall be determined by the Board in its sole
discretion. For purposes of this Agreement, the Executive's "Pro Rata Share"
of Incentive Compensation for any calendar of the Company shall be a fraction
whose
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numerator shall be equal to the number of months (or parts of months) during
which the Executive was actually employed by the Company during any such
calendar year and whose denominator shall be the total number of months in such
calendar year.
4. EMPLOYEE BENEFITS. During the Employment Term and subject to the
limitations set forth in this Section 4, the Executive and his eligible
dependents shall have the right to participate in any retirement plans
(qualified and non-qualified), pension, insurance, health, disability or other
benefit plan or program that has been or is hereafter adopted by the Company (or
in which the Company participates), according to the terms of such plan or
program, on terms no less favorable than the most favorable terms granted to
senior executives of the Company.
5. VACATION AND LEAVES OF ABSENCE. The Executive shall be entitled to
the normal and customary amount of paid vacation provided to senior executive
officers of the Company, but in no event less than 25 days during each 12 month
period, beginning on the Effective Date of this Agreement. Any vacation days
that are not taken in a given 12 month period shall not accrue or carry-over
from year to year. Upon any termination of this Agreement for any reason
whatsoever, accrued and unused vacation for the year in which this Agreement
terminates will be paid to the Executive within 10 days of such termination
based on his annual rate of Base Compensation in effect on the date of such
termination. In addition, the Executive may be granted leaves of absence with or
without pay for such valid and legitimate reasons as the Board in its sole and
absolute discretion may determine, and is entitled to the same sick leave and
holidays provided to other senior Executive Officers of the Company.
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6. EXPENSES.
(a) BUSINESS EXPENSES. The Executive shall be promptly reimbursed
against presentation of vouchers or receipts for all reasonable and necessary
expenses incurred by him in connection with the performance of
business-related duties.
(b) AUTOMOBILE EXPENSE. During the Employment Term, in order to
facilitate the performance of the Executive's duties hereunder, and otherwise
for the convenience of the Company, the Company shall provide the Executive
with an automobile, or shall reimburse the Executive for the cost of leasing
an automobile (provided that the lease payments with respect to such
automobile shall not exceed $1,500 per month) and shall pay or reimburse
Executive (upon presentation of vouchers or receipts) for the reasonable cost
of all maintenance, insurance, repairs, gas and other expenses related to
such automobile.
7. INDEMNIFICATION. The Company shall (and is hereby obligated to)
indemnify (including advance payment of expenses, which such expenses shall
include, without limitation, attorneys' fees) the Executive for all actions
taken by Executive as an officer of the Company or the failure of Executive
to take any action in each and every situation where the Company is obligated
to make such indemnification pursuant to applicable law and the relevant
portions of the Company's Certificate of Incorporation and By-laws.
8. TERMINATION AND TERMINATION BENEFITS.
(a) TERMINATION BY THE COMPANY.
(i) FOR CAUSE. Notwithstanding any provision contained
herein, the Company may terminate this Agreement at any time during the
Employment Term for "cause". For purposes of this subsection 8(a)(i), "cause"
shall mean (1) the continuing willful failure by the Executive to
substantially perform his duties hereunder for any reason other than total or
partial
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incapacity due to physical or mental illness, (2) gross negligence or gross
malfeasance on the part of the Executive in the performance of his duties
hereunder that causes material harm to the Company, and (3) the conviction of
the Executive, by a court of competent jurisdiction, of a felony or other
serious crime involving moral turpitude. Termination pursuant to this subsection
8(a)(i) shall be effective immediately upon giving the Executive written notice
thereof stating the reason or reasons therefor with respect to clauses (2) and
(3) above, and 15 days after written notice thereof from the Company to the
Executive specifying the acts or omissions constituting the failure and
requesting that they be remedied with respect to clause (1) above, but only if
the Executive has not cured such failure within such 15 day period. In the event
of a termination pursuant to this subsection 8(a)(i), the Executive shall be
entitled to payment of his Base Compensation and the benefits pursuant to
Section 4 hereof up to the effective date of such termination and it is also the
intention and agreement of the Company that Executive shall not be deprived by
reason of termination for cause of any payments, options or benefits which have
been vested or have been earned or to which Executive is entitled as of the
effective date of such termination.
(ii) DISABILITY. If due to illness, physical or mental
disability, or other incapacity, the Executive shall fail, for a total of any
six consecutive months ("Disability"), to substantially perform the principal
duties required by this Agreement, the Company may terminate this Agreement
upon 30 days' written notice to the Executive. In such event, the Executive
shall be (1) paid his Base Compensation until the Termination Date and his
Pro Rata Share of any Incentive Compensation to which he would have been
entitled for the year in which such termination occurs, and (2) provided with
employee benefits pursuant to Section 4, to the extent available, for the
remainder of the Employment Term; PROVIDED, HOWEVER, that any compensation to
be paid to the Executive pursuant to this subsection 8(a)(ii) shall be offset
against any payments received by the
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Executive pursuant to any policy of disability insurance the premiums of which
are paid for by the Company.
(b) TERMINATION BY THE EXECUTIVE. The Executive may terminate
this Agreement at any time during the Employment Term for "good reason" upon
60 days' written notice to the Company (during which period the Executive
shall, if requested in writing by the Company, continue to perform his duties
as specified under this Agreement). "Good reason" shall mean: (1) if the
Executive's employment is terminated by the Company without "cause" (as such
term is defined in subsection 8(a)(i) above); (2) the Company's failure to
make any of the payments or provide any of the benefits to the Executive
under this Agreement; (3) the Company's material breach of any provision of
this Agreement; (4) a material reduction in the Executive's responsibilities
(provided, however, "good reason" shall not include a reduction in
Executive's responsibilities if such reduction is a result of Executive's
failure to perform his duties in a manner reasonably satisfactory to the
Company); or (5) a material reduction in the Executive's Base Compensation
(other than a pro rata reduction in Base Compensation applicable to all
senior executives of the Company); provided, however, that the Company has
not cured, or commenced to cure, such failure or breach within the
aforementioned 60 day period.
(c) TERMINATION COMPENSATION. In the event of a termination of
this Agreement by the Executive for "good reason" pursuant to subsection 8(b)
above, the Executive shall be paid (1) his Base Compensation up to the
effective date of such termination; (2) his full share of any Incentive
Compensation payable to him for the year in which the termination occurs; and
(3) a lump sum payment (hereinafter "Termination Compensation") to the
Executive equal to 100% of the average cash compensation (including Base
Compensation and Incentive Compensation) paid to, or accrued for, the
Executive in the two calendar years immediately preceding the calendar year
in
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which the termination occurs. Payment of Termination Compensation to the
Executive shall occur no later than 14 days following the effective date of
the Executive's termination. For purposes of this subsection 8(c), the date
of termination of the Executive's employment shall be date on which the
Executive ceases to perform services for the Company.
(d) STOCK OPTIONS AND OTHER BENEFITS. In the event that the
Executive is terminated for reasons other than for "cause" or in the event
the Executive terminates this Agreement for "good reason", any stock options
then held by the Executive and/or any other benefits subject to specified
vesting criteria, shall immediately vest in the Executive; provided, however,
all stock options then held by the Executive and/or any other benefits
subject to specified vesting criteria shall expire and/or terminate 90 days
after the date this Agreement is terminated pursuant to subsections 8(a)(i)
or 8(b). The Company agrees to take such steps and to execute such documents
as shall be necessary to effectuate the foregoing.
(e) DEATH BENEFIT. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of the Executive's
death. In such event the Company shall continue to pay Executive's Base
Salary to his wife, if she survives him, or, if she does not survive him, in
equal shares to his children who survive him, through the end of the third
month following the month in which such death occurs. In addition, the
Company shall pay to Executive's wife, if she survives him, or, if she does
not survive him, in equal shares to his children who survive him, the Pro
Rata Share of any Incentive Compensation which Executive would have been
entitled to for the year in which such death occurs.
(f) NO MITIGATION. The Executive shall not be required to
mitigate the amount of any payments provided for by this Agreement by seeking
employment or otherwise, nor shall the
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amount of any payment or benefit provided in this Agreement be reduced by any
compensation or benefit earned by the Executive after termination of his
employment.
9. COMPANY PROPERTY. All advertising, promotional, sales, suppliers,
manufacturers and other materials or articles or information, including without
limitation data processing reports, customer lists, customer sales analyses,
invoices, product lists, price lists or information, samples, or any other
materials or data of any kind furnished to the Executive by the Company or
developed by the Executive on behalf of the Company or at the Company's
direction or for the Company's use or otherwise in connection with the
Executive's employment hereunder, are and shall remain the sole and confidential
property of the Company; if the Company requests the return of such materials at
any time during or at or after the termination of the Executive's employment,
the Executive shall immediately deliver the same to the Company.
10. COVENANT NOT TO COMPETE.
(a) NO SOLICITATION OR COMPETITION. Except as otherwise provided
herein, during the term of this Agreement and for a period of one year after
termination of the Executive's employment with the Company for any reason,
the Executive shall not, directly or indirectly, solicit, induce, encourage
or attempt to influence any client, customer, employee, consultant,
independent contractor, salesman or supplier of the Company to cease to do
business or terminate his employment with the Company, and shall not engage
in (as a principal, partner, director, officer, agent, employee, consultant
or otherwise) or be financially interested in any business competing with the
Company anywhere in the United States where it is doing business. The first
sentence of this Section 10(a) shall not apply if the Executive's employment
is terminated by the Company without "cause" (as defined in Section 8(a)(i))
or the Executive terminates his employment for "good reason" (as defined in
Section 8(b)). Nothing contained in this Section 10 shall prevent the
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Executive from holding for investment not more than five percent (5%) of any
class of equity securities of a company whose securities are publicly traded or
from engaging in any activities that are not in competition with the business
activities of the Company.
(b) CONFIDENTIALITY OF COMPANY PROPERTY. During the
effectiveness of this Agreement and at all times thereafter, the Executive
shall not use for his personal benefit, or disclose, communicate or divulge
to, or use for the direct or indirect benefit of any person, firm,
association or company other than the Company, any material referred to in
Section 9 above unless such material has become otherwise publicly available.
(c) SAVING CLAUSE. If the period of time or the area specified
in subsection (a) above should be adjudged unreasonable in any proceeding,
then the period of time shall be reduced by such number of months or the area
shall be reduced by the elimination of such portion thereof or both so that
such restrictions may be enforced in such area and for such time as is
adjudged to be reasonable. If the Executive violates any of the restrictions
contained in the foregoing subsection (a), the restrictive period shall not
run in favor of the Executive from the time of the commencement of any such
violation until such time as such violation shall be cured by the Executive
to the satisfaction of Company.
11. EXECUTIVE'S REPRESENTATION AND WARRANTIES. Executive represents and
warrants that he has the full right and authority to enter into this Agreement
and fully perform his obligations hereunder, that he is not subject to any
non-competition agreement other than with the Company, and that his past,
present and anticipated future activities have not and will not infringe on the
proprietary rights of others. Executive further represents and warrants that he
is not obligated under any contract (including, but not limited to, licenses,
covenants or commitments of any nature) or other agreement or subject to any
judgment, decree or order of any court or administrative agency
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which would conflict with his obligation to use his best efforts to perform his
duties hereunder or which would conflict with the Company's business and
operations as presently conducted or proposed to be conducted. Neither the
execution nor delivery of this Agreement, nor the carrying on of the Company's
business as officer and employee by Executive will conflict with or result in a
breach of the terms, conditions or provisions of or constitute a default under
any contract, covenant or instrument to which Executive is currently a party.
12. MISCELLANEOUS.
(a) INTEGRATION; AMENDMENT. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters set
forth herein and supersedes and renders of no force and effect all prior
understandings and agreements between the parties with respect to the matters
set forth herein. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties.
(b) SEVERABILITY. If any part of this Agreement is contrary to,
prohibited by, or deemed invalid under applicable law or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited, or invalid, but the remainder of this Agreement shall not be
invalid and shall be given full force and effect so far as possible.
(c) WAIVERS. The failure or delay of any party at any time to
require performance by the other party of any provision of this Agreement,
even if known, shall not affect the right of such party to require
performance of that provision or to exercise any right, power, or remedy
hereunder, and any waiver by any party of any breach of any provision of this
Agreement shall not be construed as a waiver of any continuing or succeeding
breach of such provision, a waiver of the provision itself, or a waiver of
any right, power, or remedy under this Agreement. No notice to or
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demand on any party in any case shall, of itself, entitle such party to other or
further notice or demand in similar or other circumstances.
(d) POWER AND AUTHORITY. The Company represents and warrants to
the Executive that it has the requisite corporate power to enter into this
Agreement and perform the terms hereof; that the execution, delivery and
performance of this Agreement by it has been duly authorized by all
appropriate corporate action; and that this Agreement represents the valid
and legally binding obligation of the Company and is enforceable against it
in accordance with its terms.
(e) BURDEN AND BENEFIT; SURVIVAL. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, personal and legal representatives, successors
and assigns. In addition to, and not in limitation of anything contained in
this Agreement, it is expressly understood and agreed that the Company's
obligation to pay Termination Compensation as set forth herein shall survive
any termination of this Agreement.
(f) GOVERNING LAW; HEADINGS. This Agreement and its
construction, performance, and enforceability shall be governed by, and
construed in accordance with, the laws of the State of New Jersey. Headings
and titles herein are included solely for convenience and shall not affect,
or be used in connection with, the interpretation of this Agreement.
(g) NOTICES. All notices called for under this Agreement shall
be in writing and shall be deemed given upon receipt if delivered personally
or by confirmed facsimile transmission and followed promptly by mail, or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at their respective addresses (or at such other
address for a party as shall be specified by like notice; provided that
notices of a change of address shall be effective only upon receipt thereof)
as set forth in the preamble to this Agreement or to any other address or
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addressee as any party entitled to receive notice under this Agreement shall
designate, from time to time, to others in the manner provided in this
subsection 11(g) for the service of Notices.
Any notice delivered to the party hereto to whom it is
addressed shall be deemed to have been given and received on the day it was
received; PROVIDED, HOWEVER, that if such day is not a business day then the
notice shall be deemed to have been given and received on the business day next
following such day. Any notice sent by facsimile transmission shall be deemed to
have been given and received on the business day next following the day of
transmission.
(h) NUMBER OF DAYS. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; PROVIDED, HOWEVER, that if the final day of any time
period falls on a Saturday, Sunday or holiday on which federal banks are or may
elect to be closed, then the final day shall be deemed to be the next day which
is not a Saturday, Sunday or such holiday.
THIS AGREEEMENT CONTAINS VERY IMPORTANT TERMS GOVERNING YOUR EMPLOYMENT. IN
PARTICULAR, PARAGRAPH 10 AFFECTS YOUR ABILITY TO TAKE CERTAIN ACTIONS FOLLOWING
THE TERMINATION OF THIS AGREEMENT. YOU SHOULD SEEK ADVICE FROM YOUR ATTORNEY
REGARDING ANY MATTER RELATING TO THIS AGREEMENT. BY EXECUTING THIS AGREEMENT,
YOU ARE AFFIRMING THAT YOU HAVE HAD THE OPPORTUNITY TO REVIEW THIS AGREEMENT AND
TO CONSULT WITH YOUR ATTORNEY IF YOU SO DESIRED, THAT YOU UNDERSTAND THE MEANING
AND SIGNIFICANCE OF ALL OF ITS PROVISIONS, THAT NO REPRESENTATIONS OR PROMISES
HAVE BEEN MADE TO YOU REGARDING YOUR EMPLOYMENT WHICH ARE NOT SET FORTH IN THIS
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AGREEMENT, AND THAT YOU ARE FREELY SIGNING THIS AGREEMENT TO OBTAIN EMPLOYMENT
WITH THE COMPANY.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
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ASSAF RAN
DAG MEDIA, INC.,
A NEW YORK CORPORATION
by:
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Xxxxx Xxxxxxxxxx, Secretary
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