Employment Agreement
with Xxxx Xxxxx
10.88
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made as of this 18th day of October, 1996,
by and between:
COMPUTER BUSINESS SCIENCES, INC., a New York corporation having its
executive office at 00-00 Xxx Xxxxxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxx Xxxx
00000 (hereinafter referred to as "EMPLOYER")
AND
XXXX XXXXX, an adult individual residing at 000 Xxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 (hereinafter referred to as "EMPLOYEE")
WITNESSETH THAT:
WHEREAS, EMPLOYEE has certain education, experience, background and
contacts, as well as substantial foreing and domestic expertise in the sales and
marketing of international telecommunications services, which would be useful
and helpful to EMPLOYER in its business and EMPLOYER is desirous of employing
EMPLOYEE in order to obtain the benefits of such education, experience,
background, contacts and expertise;
WHEREAS, EMPLOYEE is agreeable to being hired by EMPLOYER as an
employee and providing the benefits of his education, experience, background,
contacts and expertise to EMPLOYER;
WHEREAS, the parties have agreed upon the terms of such employment and
desire a written, formal contract to evidence their agreements;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
forbearances contained herein, and intending to be legally bound, the parties
have agreed as follows:
1. EMPLOYMENT. For the term provided in Paragraph 2, EMPLOYER hereby
employs EMPLOYEE, and EMPLOYEE hereby accepts that employment, upon the terms
and conditions hereinafter set forth.
2. TERM.
(a) This Agreement shall become effective as of November 25, 1996.
(b) This Agreement, subject to the provisions of Paragraphs 14 and 15
below, shall continue and exist for an initial period from the date hereof to
November 24, 1999.
3. COMPENSATION-BASE.
(a) For all services rendered under this Agreement, EMPLOYEE shall be
paid, as base compensation, such annual salary as shall be determined by the
Board of Directors of EMPLOYER, from time to time, but in no event shall such
compensation be at a rate of less than $110,000 per year. Such compensation is
to be payable in equal installments at intervals no longer than semi-monthly.
Such base compensation shall be in addition to such fringe benefits and bonuses
as provided elsewhere herein.
(b) For compensation purposes, EMPLOYER may assign EMPLOYEE
to one or more of its subsidiaries and/or affiliates, to perform services
consistent with EMPLOYEEIS duties hereunder. In such event, EMPLOYEE may be
separately compensated by each such subsidiary and/or affiliate. All such
compensation shall be deducted from the compensation payable under sub-paragraph
(a) above and EMPLOYER shall pay EMPLOYEE only the difference between (i) the
total of all such compensations from subsidiaries and/or affiliates and (ii) the
base compensation. No assignment hereunder for compensation purposes shall
require that EMPLOYEE physically relocate.
(c) At the end of each calendar year, the Board of Directors of
EMPLOYER shall review the performance of EMPLOYEE for such year and, based upon
such evaluation, establish any increase in the base compensation payable to
EMPLOYEE for the succeeding calendar year, as adjusted by subparagraph (c)
above. EMPLOYER shall not be obligated to provide any increase.
(d) The base compensation for the first year of employment hereunder is
deemed vested and guaranteed, meaning that if EMPLOYER terminates this
Employment Agreement without cause as defined in Paragraph 18 or breaches this
Employment Agreement, such compensation shall be due and payable. If, however,
EMPLOYEE breaches this Employment Agreement for any reason other than a breach
by EMPLOYER or its parent, Fidelity Holdings, Inc., the vesting and guarantee
provision shall be null and void.
(e) Immediately upon execution of this Agreement, EMPLOYEE and EMPLOYER
shall mutually select an escrow. EMPLOYER's parent, Fidelity Holdings, Inc.
shall issue twenty thousand shares of its Common Stock to such escrow for the
purposes hereof. In the event of a default by EMPLOYER with respect to the
vesting and guarantee provision of subparagraph (d) above, the escrow shall
proportionately release to EMPLOYEE sufficient shares to meet the balance of the
unpaid compensation.
4. COMPENSATION-FRINGE BENEFITS. EMPLOYEE shall receive at least the
following additional benefits, which may be extended or increased, but not
reduced, by EMPLOYER:
(a) Vacation - EMPLOYEE shall be entitled to paid vacation during the
first year of this Agreement of two (2) weeks and thereafter of three (3) weeks,
which shall not be accumulated from year to year if unused. EMPLOYEE shall not
be compensated for any unused vacation time.
(b) Personal Leave - During each year of this Agreement, EMPLOYEE shall
receive five days paid personal leave, which shall not be accumulated from year
to year if unused. EMPLOYEE shall not be compensated for any unused personal
leave. "Personal leave" shall include sick leave, bereavement leave, and all
other personal time off.
(d) Disability Insurance - At such time as EMPLOYER, or its parent,
Fidelity Holdings, Inc., shall establish a program including disability
insurance, EMPLOYEE shall either be included in such program or shall receive an
allowance sufficient for him to purchase such insurance to the same level as
would have been afforded under the program.
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(e) Parking Space - EMPLOYEE shall receive a paid parking space in the
building garage.
(f) Moving Allowance - EMPLOYEE shall,receive an allowance of up to Ten
Thousand Dollars ($10,000) to cover costs of moving, including car
transportation and family travel costs.
(g) Other - EMPLOYEE shall receive such other medical, surgical,
hospital, dental or legal insurance and fringe benefits as are available to any
other officers/employees/consultants, consistent with EMPLOYERIS past practices
and such life/disability insurance, incentive or deferred compensation or
bonuses, pension/profit sharing plan and qualified and non-qualified stock
option plans as the Board of Directors of EMPLOYER and/or EMPLOYER's parent,
Fidelity Holdings, Inc., shall establish. The current medical/ hospitalization
plan is the oxford Freedom Plan. Nothing contained in this Agreement shall be in
lieu of any rights, benefits and privileges to which EMPLOYEE may be entitled
under any retirement, pension, profit-sharing, insurance, hospital or other
plans which may now be in effect or which may hereafter be adopted. EMPLOYEE
shall have the same rights and privileges to participate in such plans and
benefits as any other employee during his period of employment.
(h) Executive Bonus Package - EMPLOYER's parent, Fidelity Holdings,
Inc. is establishing an Executive Bonus Package in which EMPLOYEE shall be
entitled to participate on as parity with executives of equal rank.
5. SIGNING BONUS. (a) As a "signing bonus", EMPLOYER's parent, Fidelity
Holding's Inc., shall promptly issue to EMPLOYEE Thirty Thousand (30,000) shares
of its Common Stock, ownership to which shall vest as provided below. The
purpose of immediate issuance is to establish EMPLOYEE as a stockholder as of
the starting date of employment, subject to such subsequent vesting, for
purposes of dividends, stock splits, and other capital transactions. EMPLOYEE
represents and warrants that he is acquiring such shares for personal investment
purposes and not with a view to resale or distribution; the certificates for
such shares shall bear a legend on the face thereof indicating that such shares
have not been registered under the Securities Act of 1933 and are restricted as
to further transfer.
(b) ownership to the 30,000 shares shall vest as follows:
(I) upon completion of the first year of employment, twenty thousand
(20,000) shares shall vest; and
(ii) upon completion of the second year of employment, ten thousand
(10,000) shares shall vest.
The certificates for such shares shall bear a legend on the face
thereof indicating that such shares have not vested and cannot be sold,
transferred, assigned or otherwise disposed of until and unless they have
vested.
(c) As shares shall vest, EMPLOYEE may, subject to restrictions imposed
by applicable securities laws and regulations, sell, transfer, assign or
otherwise dispose of the vested shares.
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EMPLOYEE may not sell, transfer, assign or otherwise dispose or any shares not
vested.
(d) During the two year vesting period, all dividends shall be paid to EMPLOYEE
to the extent that shares are vested. Dividends payable with respect to shares
not yet vested, shall be held by Fidelity Holdings, Inc. and shall be paid over
to EMPLOYEE proportionately as the shares shall vest. As shares shall vest, all
accrued dividends with respect thereto shall vest also. Stock splits and other
capital transactions shall also follow the status of the original shares; i.e.,
vested or unvested.
6. COMPENSATION-INCENTIVE. (a) After the end of each calendar year, the
Board of Directors of EMPLOYER shall determine the net income before federal and
state income taxes of EMPLOYEE's SBU for such prior year. The calculation of
such net income shall consolidate all revenue components of the SBU. The
calculation of the costs and expenses of the SBU shall be (i) those costs and
expenses over which EMPLOYEE has control, (ii) budgeted costs directly
attributable to the SBU, and (iii) costs and expenses not under the control of
EMPLOYER but which are components of gross margin. The SBU will not be charged
overhead factors not directly related executive salaries and benefits, SEC/NASD
than allocated accounting and professional SBU related items.
(b) Examples of costs and expenses underwith general corporate to such SBU, such
as compliance costs (other fees), and similar non-your control are:
(i) contractor services (independent representatives) for outside sales
(ii) salaries, wages, commissions, and benefits for all sales managers
and staff members
(iii) travel and entertainment expenses incurred by sales managers and
staff members
(iv) salaries, wages, and benefits for all non-sales SBU staff and
employees (e.g., SBU secretary)
(c) Examples of budgeted costs directly attributable to your SBU are:
(i) allocated rent, telephone, fax, express delivery, and other office
and communication expenses (with the allocation to be based upon
actual utilization by the SBU)
(ii) allocated or incurred professional expenses, including quarterly
accounting and annual audit, (with the allocation to be based upon
actual utilization by the SBU)
(iii) allocated salaries, wages, and benefits for all shared employees
(e.g., a receptionist) (with the allocation to be based upon actual
utilization by the SBU) (iv) EMPLOYEE's salary and benefits
(d) Examples of costs not under the control of EMPLOYER but which are components
for determination of gross margin are:.
(i) cost of carrier services
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(ii) carrier usage charges
(iii) monthly access service charges
(iv) carrier penalties
(v) miscellaneous carrier charges
(vi) network management
(e) EMPLOYEE shall receive a bonus equal to twelve and one-half percent (12.5%)
of the amount by which such net income exceeds Four Hundred Thousand Dollars
($400,000).
(f) Any bonus awarded hereunder shall be paid at such time or times, in such
amounts or installments, as the Board of Directors may determine, provided,
however, that such bonus shall be paid within three (3) months after completion
of the annual audit of EMPLOYER for the year in question.
7. STOCK OPTIONS. (a) At the beginning of each employment year under
this Agreement, EMPLOYEE shall receive from EMPLOYER's parent, Fidelity
Holdings, Inc., an option to purchase 25,000 shares of the Common Stock of
Fidelity Holdings, Inc., exercisable upon the terms of this paragraph 7. Within
the first forty-five (45) days of each such employment year, EMPLOYER and
EMPLOYEE shall mutually set certain specific, objectively-defined targets
(goals) to be achieved by EMPLOYEE and his SBU. Within thirty (30) days
following release of the annual audit(s) covering the employment year under
consideration, EMPLOYER shall determine whether EMPLOYEE and his SBU have
achieved the targets (goals) and shall advise EMPLOYEE accordingly. If the
targets (goals) have been met, the options for that year shall become
exercisable as of the date of such notification. If the targets (goals) have not
been met, the options shall terminate.
(b) The option price (exercise price) for the options for the first 'employment
year shall be Four Dollars ($4.00) per share. Thereafter, the option price
(exercise price) shall be fixed at eighty percent (80%) of the closing price for
the Common Stock of Fidelity Holdings, Inc. on the first trading day of such
employment year.
(c) All options granted hereunder shall have an exercise period (term) of two
(2) years commencing with the date on which EMPLOYEE is first notified that the
targets (goals) have been met. Such options shall be exercisable in whole or in
part at any time and from time to time during the exercise period. To the extent
not exercised during the exercise period, the options shall terminate and become
null and void at the end of the two years. All options shall include
anti-dilution protection in the event of stock splits, stock dividends,
recapitalizations, mergers and consolidations.
(d) All shares issued upon exercise of the options shall be unregistered and
restricted as to transfer. EMPLOYEE represents and warrants that he is acquiring
such shares for personal investment purposes and not with a view to resale or
distribution; the certificates for such shares shall bear a legend on the face
thereof indicating that such shares have not been registered under the
Securities Act of 1933 and are restricted as to further transfer.
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8. DUTIES. EMPLOYEE is engaged as the EMPLOYER's "Vice President- Sales and
Marketing" and shall establish, supervise and manage a Sales and Marketing
Section (hereinafter referred to as "SBU" to (i) manage and direct the domestic
and international sales and marketing operations for CBS (covering VIP Accounts,
Credit Cards, Debit Cards, etc.); (ii) develop a forecast of probable sales (at
predicted pricing for predicted costs over predicted time periods); (iii) assist
management in developing a budget based upon such forecast; (iv) advise
management on competitive market conditions and recommend appropriate responses
while making required changes in the forecast and the budget; (v) recommend
marketing programs; (vi) directly contact and sell major accounts; hire, train,
direct and supervise any required sales personnel; (vii) develop and establish a
sales network/distribution system for debit cards and any newly-developed
similar programs; and, (viii) generally, such other sales and marketing duties
as the Board of Directors of EMPLOYER and the management of EMPLOYERI's parent,
Fidelity Holdings, Inc., may assign from time to time. EMPLOYEE shall provide
"product" advice, competitive market reports, and general sales and marketing
assistance and advice to EMPLOYER's officers, directors and key management. The
precise scope of, and the specification of, the services to be rendered by
EMPLOYEE may be defined, interpreted, curtailed, or extended, from time to time,
by determination of the Board of Directors of EMPLOYER, provided, however, that
any definition, interpretation, curtailment, or extension is consistent with the
status of, and/or educational experience required for, the responsibilities for
which EMPLOYEE has been initially engaged hereunder. It is the intent of this
provision to provide EMPLOYER with flexibility in assigning responsibilities to
EMPLOYEE and this provision shall not be used to discipline, embarrass,
humiliate or harass EMPLOYEE.
9. EXTENT OF SERVICES. EMPLOYEE agrees that this employment constitutes his
exclusive employment and understands that his primary loyalty and responsibility
is to EMPLOYER. Accordingly, EMPLOYEE shall devote such adequate, reasonable,
and proper time, attention, and energies to the business of EMPLOYER as shall be
necessary or consistent with such understanding and EMPLOYEE shall not, during
the term of this Agreement be engaged in any other business activity (whether or
not such business activity is pursued for gain, profit, or other pecuniary
advantage), which conflicts with EMPLOYEE'S employment responsibilities
hereunder, without prior, written authorization of EMPLOYER'S Board of
Directors. Nothing contained herein shall be construed as preventing EMPLOYEE
from investing his assets in such form or manner as will not require any
services on EMPLOYEE'S part in the operation of the affairs of the companies in
which such investments are made.
10. WORKING FACILITIES. EMPLOYEE shall be furnished, at EMPLOYER's expense, with
all necessary working facilities, including but not limited to an equipped
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office, clerical help, and telephone/facsimile/copying services, suitable to his
position and adequate for the performance of his duties. In addition, EMPLOYEE
shall-be furnished, at EMPLOYER's expense, with a pager, a cellular telephone,
and a car allowance for business use.
11.EXPENSES. EMPLOYEE is not authorized to incur expenses on behalf of , or
chargeable to, EMPLOYER, with respect to his business travel, including
transportation, lodging, food, entertainment, etc. except within such guidelines
as may be established from time to time by the Board of Directors of EMPLOYER.
EMPLOYER shall reimburse EMPLOYEE for authorized expenses within such guidelines
upon presentation by EMPLOYEE, from time to time, of an itemized account of such
expenditures in such f orm as EMPLOYER may require, together with receipts or
other proofs of the expenditures as may be required.
12. OWNERSHIP OF INVENTIONS AND DEVELOPMENTS. (a) For purposes of this
Agreement, the following definitions shall apply:
(i) "Inventions" shall mean:
(a) All inventions, improvements, modif ications, and
enhancements, whether or not patentable, made by EMPLOYEE during EMPLOYEE's
employment by EMPLOYER; and
(b) All inventions, improvements, modif ications and
enhancements made by EMPLOYEE, during a period of one (1) year after any
suspension or termination of EMPLOYEE's employment by EMPLOYER, which relate,
directly or indirectly, to the past, present or future business of the EMPLOYER.
(ii) "Work Product" shall mean all documentation, software, creative
works, programs,, systems, source codes, Hardware Signatures, know-how and
information created, in whole or in part, by EMPLOYEE during EMPLOYEE's
employment by EMPLOYER, whether or not copyrightable or otherwise protectable,
excluding Inventions.
(iii) "Trade Secrets" shall mean all documentation, software, know-how
and information relating to the past, present and future business of the
EMPLOYER or any plans therefor, or relating to the past, present or future
business of a third party or plans therefor that are disclosed to the EMPLOYER,
which the EMPLOYER does not disclose to third parties without restrictions on
use or further disclosure.
(b)EMPLOYEE shall promptly disclose to EMPLOYER all Inventions and keep accurate
records relating to the conception and reduction to practice of all Inventions.
Such records shall be the sole and exclusive property of EMPLOYER, and the
EMPLOYEE shall surrender possession of such records to the EMPLOYER upon any
suspension or termination of EMPLOYEE's employment with the EMPLOYER.
(c) EMPLOYEE hereby assigns to the EMPLOYER, without further consideration to
the EMPLOYEE, the entire right title and interest in and to the Inventions and
Work Product and in and to all proprietary rights therein or based thereon.
EMPLOYEE agrees that the Work Product shall be deemed to be a "work made for
hire". EMPLOYEE shall execute all such assignments, oaths, declarations and
other documents as may be prepared by EMPLOYER to effect the foregoing.
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(d) EMPLOYEE shall provide EMPLOYER with all information, documentation, and
assistance EMPLOYER may request to perfect, enforce, or defend the proprietary
rights in or based on the Inventions, Work Product or Trade Secrets. EMPLOYER,
in its sole discretion, shall determine the exact extent of the proprietary
rights, if any, to be protected in or based on the Inventions and Work Product.
All such information, documentation and assistance shall be provided at no
additional expense or cost to the EMPLOYER, except for out-of-pocket expenses
which the EMPLOYEE incurs at the EMPLOYER's request.
(e) In the event of termination of this Employment Agreement, EMPLOYER shall be
entitled to advise any new employer of EMPLOYEE of his rights and obligations
hereunder.
13.NON-DISCLOSURE OF INFORMATION. (a) EMPLOYEE recognizes and acknowledges that,
during the course of his employment, he will have access to valuable proprietary
information, including, but not limited to Inventions, Work Product and/or Trade
Secrets, contractual arrangements and compensation arrangements with employees
and agents of EMPLOYER; compensation arrangements with sub contractors, vendors,
and outside personnel; costing, pricing and bidding methods, procedures, and
amounts; management and operating procedures and software; management
information systems, etc.; marketing plans and strategy; personnel policies and
contractual arrangements, including job assignments and compensation; customer
leads; customer lists; and that such information constitutes unique assets of
the business of EMPLOYER and of which EMPLOYER is the sole and exclusive owner.
EMPLOYEE will treat such proprietary information on a confidential basis and
will not, during or after his employment, personally use or disclose all, or any
part of, such proprietary information to any person, firm, corporation,
association, agency, or other entity except as properly required in the conduct
of the business of EMPLOYER, or except as authorized in writing by EMPLOYER,
publish, disclose or authorize anyone else to publish or disclose, any secret or
confidential matter relating to any aspect of the business of EMPLOYER with
which EMPLOYEEIS service may in any way acquaint EMPLOYEE. EMPLOYEE shall
surrender possession of all proprietary information, including especially all
Trade Secrets, to EMPLOYER upon any suspension or termination of EMPLOYEE's
employment with the EMPLOYER. In the event of a breach, or threatened breach, by
EMPLOYEE, of the provisions of this Paragraph, EMPLOYER shall be entitled to a
preliminary, temporary and permanent injunction restraining EMPLOYEE from
disclosing in whole or in part, any such proprietary information and/or form
rendering any services to any person, firm, corporation, association, agency, or
other entity to whom such information, in whole or in part, has been disclosed
or is threatened to be disclosed. Furthermore, nothing herein shall be construed
as prohibiting EMPLOYER from pursuing any other equitable or legal remedies
8
available to it f or such breach or threatened breach, including the recovery or
damages from EMPLOYEE.
(b) EMPLOYER recognizes that the EMPLOYEE may possess proprietary inf ormation
of third parties and that EMPLOYEE may have ongoing obligations to third parties
with respect thereto. EMPLOYER expressly requires that EMPLOYEE shall honor such
ongoing obligations to such third parties and that the EMPLOYEE shall not use,
for the benefit of EMPLOYER, or disclose to EMPLOYER, any such proprietary
information.
14.RESTRICTIVE COVENANT. (a) During the term of this Agreement and for
a period of twelve (12) months after the termination of this Agreement and any
extension thereof, EMPLOYEE will not, within the United States or any other area
of the world in which EMPLOYER is then operating, directly or indirectly,
compete with, own, manage,, operate, control, be employed by, consult for,
participate in, perform services for, or be connected in any manner with the
ownership, management, operation or control of any telecommunications business
which provides (delivers) service, directly or indirectly, through a system
which is PC-based and/or IVR-based. EMPLOYEE shall not, directly or indirectly,
compete with any products or services marketed or offered by EMPLOYER at the
time of termination, or engage in any activities which could be deemed a
conflict of interest. This provision shall not restrict EMPLOYEE from being
employed in a telecommunications business which provides (delivers) service
through a system which is not PC-based or IVR-based.
(b)EMPLOYEE agrees that the "time", "geographic area", and "Scope of
Business" provisions of this restrictive covenant are reasonable and proper and
have been negotiated in connection with his employment hereunder.
(c)EMPLOYER and EMPLOYEE agree, that if any court of competent
jurisdiction shall, for any reason, conclude that any portion of this covenant
shall be too restrictive, the court shall determine and apply lesser
restrictions, it being the intent of the parties that some such restrictions
shall be applicable for the protection of EMPLOYER and its shareholders.
15. NONSOLICITATION COVENANT. (a) For a period of two (2) years after
the termination of this Agreement (including any extension thereof) (the "Post
Termination Period") EMPLOYEE shall not, solicit, directly or indirectly, by any
means, any of the clients, accounts, employees or "leads" of EMPLOYER during the
Post Termination Period.
(b) EMPLOYER and EMPLOYEE agree, that if any court of competent
jurisdiction shall, for any reason conclude that any portion of this covenant
shall be too restrictive, the court shall determine and apply lesser
restrictions, it being the intent of the parties that some such restrictions
shall be applicable for the protection of EMPLOYER and its shareholders.
(c) This covenant has been given to induce EMPLOYER to enter into this
Agreement and provide EMPLOYEE'S job responsibilities and compensation.
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16. DISABILITY. (a) If the EMPLOYEE is unable to perform his services
by reason of illness or incapacity f or a period of more than thirty (30)
consecutive business days or more than fifty percent (50%) in any calendar
quarter ("extended disability"), at its option EMPLOYER may either suspend this
Employment Agreement until EMPLOYEE is able to fully perform his duties or
terminate this Employment Agreement. In the event of suspension of this
Employment Agreement, EMPLOYER may suspend all payments of compensation and
accrual of fringe benefits. All obligations of EMPLOYER hereunder, except for
any compensation, bonus and/or benefits earned prior to termination or
suspension, shall cease upon any termination.
(b)It is anticipated that EMPLOYER will adopt a program including
disability insurance, in which event EMPLOYEE shall be covered as provided in
subparagraph 4(d) above. In the event that such insurance is purchased, during
any period for which benefits are being paid by such insurance subparagraph (a)
above shall be inapplicable; in lieu thereof, EMPLOYER shall compensate EMPLOYEE
at the agreed base compensation rate less the benefits paid by such insurance.
17. SUSPENSION.. As used in this Agreement, the term "suspension" shall
mean:
(a) uncompensated extended personal leave, authorized by EMPLOYER;
(b) temporary discontinuance of compensation due to disability, whether
or not compensated; and
(c) temporary discontinuance of employment, without termination, for
the convenience of either of the parties.
18. TERMINATION.
(a) EMPLOYER can terminate EMPLOYEE's employment at any time for good
cause, which is defined as follows:
(1) the EMPLOYEEIS death or extended disability as defined in Paragraph
16;
(2) the occurrence of one of the following events:
(i) EMPLOYEE is convicted of a felony or any crime involving moral turpitude or
unethical conduct;
(ii) EMPLOYEE commits an act, or fails to take action in bad faith and to the
material detriment of the EMPLOYER; and
(iii) in the good faith opinion of the Board of Directors, the EMPLOYEE fails to
fully and faithfully perform his obligations under this Employment Agreement,
and corrective action is not taken within a reasonable time after written
notification of such failure. In the absence of written waiver by EMPLOYER,
"full and faithful performance of obligations" shall include a requirement, in
effect only after the first year, for achievement of profit breakeven (net
revenues equal or exceed costs) by EMPLOYEE's SBU.
(b)The termination of EMPLOYEE'S services shall not constitute a termination of
the restrictive obligations and duties under Paragraphs 12, 13, 14 and 15.
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However, termination for cause will terminate EMPLOYEE's benefits under this
Employment Agreement.
(c) In the event of the bankruptcy (Chapter 7), reorganization (Chapter 11) or
other termination of the business-of the EMPLOYER or of any subsidiary on which
EMPLOYEE's continued employment and compensation is dependent, the provisions of
Paragraph 14 shall continue in full force and effect only so long as full base
compensation by EMPLOYER shall continue.
19.ARBITRATION. Any controversy or claim arising out of, or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in New
York City, New York in accordance with the rules then pertaining of the American
Arbitration Association, but with all rights of discovery provided by the New
York Rules of civil Procedure, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof. The losing party shall pay all
costs and fees, including reimbursement of the attorney's fees of the winning
party.
20.WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by such other party. The failure of a party
to exercise any rights or privileges under this Agreement shall not be deemed to
be a waiver or extinguishment of such rights or privileges, all of which shall
continue to be exercisable.
21.BENEFIT. The rights and obligations of EMPLOYER under this Agreement
shall inure to the benefit of, and shall be binding upon it, its successors and
assigns. The protection of Paragraphs 12, 13, 14 and 15 shall inure to the benef
it of EMPLOYER and any successors and assigns. The rights and obligations of
EMPLOYEE under this Agreement shall inure to the benefit of, and shall be
binding upon, his heirs, administrators, executors, successors and assigns.
22. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by certified mail to
his residence in the case of EMPLOYEE, or to its principal office in the case of
EMPLOYER.
00.XXXX INSURANCE. EMPLOYER and/or one or more of its subsidiaries may,
in its discretion at any time after the execution of this Agreement, apply for
and procure,.as owner and for its own benefit, insurance on the life of
EMPLOYEE, in such amounts and in such forms as EMPLOYER may choose. EMPLOYER
shall not be required to give EMPLOYEE any interest whatsoever in any such
policy or policies, (although nothing contained herein shall be deemed to
prohibit any such arrangement) but EMPLOYEE shall, at the request of EMPLOYER,
subject himself to such medical examination, supply such information, and
execute such information releases and documents as may be required by the
insurance company or companies
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to whom EMPLOYER has applied for such insurance.
24. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties and may be modified only by agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
25. APPLICABLE LAW. This Agreement shall be governed'for all purposes
by the laws of the State of New York. If any provision of this Agreement is
declared void, such provision shall be deemed severed from this Agreement, which
shall otherwise remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto set their hands and seals as of the day and year herein above
written.
COMPUTER BUSINESS SCIENCES, INC.
ATTEST:
________________________________
Xxxxx Xxxxx
President
___________________________
Secretary
Xxxx Xxxxx
WITNESS:
