EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this "Employment Agreement") dated as of December
18, 2007 (the "Effective Date") by and between Destination Software, Inc.,
a New
Jersey corporation having an office and principal place of business at 000
Xxxxxxxxxx-Xxxxx Xxxx Xxxx,
Xxxxx X, Xxxxxx, XX 00000 (hereinafter referred to as the "Company") and Xxxxx
Xxxx Xxxxxxxxx,
an individual residing at 0 Xxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000
(hereinafter referred
to as the "Employee").
WITNESSETH:
WHEREAS,
the Employee is an equity owner in Company; and
WHEREAS,
simultaneously with the execution hereof, Green Screen Interactive Software,
LLC ("GSIS") is acquiring all of the equity of Company pursuant to a
Contribution Agreement dated as of July 24, 2007 among GSIS, Company, the
Employee and others (the "Contribution Agreement"); and
WHEREAS,
as a condition to closing of the transactions contemplated by the Contribution
Agreement, GSIS and Company require that the Employee agree to provide
services
to the Company for the benefit of the Company, its parent, affiliates and
subsidiaries upon
the
terms and conditions herein set forth; and
WHEREAS,
the Employee desires to render such services in order to induce GSIS to
consummate the closing under the Contribution Agreement; and
WHEREAS,
the Company is the owner of the Company's business and the Company's accounts,
clients and customers, all of which comprise a substantial part of the good
will
of the Company; and
WHEREAS,
the Company wishes to protect its business, good will and confidential and
proprietary information.
NOW,
THEREFORE, in consideration of the premises herein, and the mutual promises
and
undertakings herein contained and set forth, and for other good and valuable
consideration, made
over
by each party to the other, the receipt and sufficiency of which are hereby
acknowledged,
it is covenanted and agreed as follows:
1. Employment.
The
Company hereby agrees to employ the Employee, and the Employee
hereby agrees to accept employment by the Company, upon and subject to the
terms
and conditions of this Agreement.
2. Term.
The
term of this Agreement shall begin on the date hereof (the "Commencement
Date") and shall continue for a period of four (4) years, unless sooner
terminated
in the manner provided for herein (the "Term"). As used herein, the term
"Contract Year" shall mean each 12 month period during the term of this
Agreement.
3. Compensation.
A. Base
Salary.
For all
services to be rendered by the Employee to the Company under
this Agreement, or otherwise, the Company shall pay to the Employee a base
salary ("Base Salary")
at the rate of Three Hundred Thousand Dollars ($300,000) for the first Contract
Year with
increases of 4% for each subsequent Contract Year, which sum shall be paid
on
such basis as
the
Company shall reasonably determine, but not less frequently than monthly. It
is
understood
that the Company may, in its sole discretion, increase said base salary without
affecting
any of the other terms of this Agreement.
B. Bonuses.
Employee shall be eligible to receive bonuses of: (i) $150,000 for each Contract
Year, payable in equal quarterly installments, if the [new label, the name
of
which has not been determined as of the date hereof] licenses and publishes
at
least 10 video game SKUs in such
Contract Year; (ii) a $150,000 per Contract Year sales bonus if Company-wide
sales equal or
exceed
$30 million for such Contract Year; (iii) a $750,000 one time bonus if [new
label] exceeds $85 million in sales with an Operating Margin of no less than
10%
in any one fiscal year;
and
(iv) an additional $750,000 one time bonus if [new label] exceeds $125 million
in sales with
an
Operating Margin of no less than 10% in any one fiscal year. "Operating Margin"
is defined
as [new label's] sales, net of all applicable sales discounts, allowances and
markdowns consistent with those recorded on GAAP-based financial statements,
cost of sales (including cost of manufacturing, freight-in, royalties,
development advances and costs, and inventory write-downs),
marketing costs, distribution costs, and sales, general and administrative
costs
specific to [new
label].
C. Equity.
Employee shall be eligible to participate in any incentive equity option plan
Company may have, subject to the discretion of the compensation committee of
Company, such committee taking into account Employee's senior management role
in
the Company.
4. Social
Security and Withholding.
All
compensation provided for in this Agreement shall
be
subject to the Company deducting therefrom such Social Security, withholding
and
any other payments as may be required by law.
5. Duties.
A. During
the Term, the Employee will hold the initial office of President of the
Company
and President of [new label] and such other office(s) of the Company and/or
its
affiliates
to which she may be elected or appointed, and Employee shall perform all duties
incidental
thereto as may be prescribed by the Company from time to time. The Employee
shall report
to
the Chairman of GSIS and/or his/her designees. The precise services and
responsibilities
of the Employee may be extended or curtailed, from time to time, at the
direction of
the
Company, in its sole discretion. In the event that the Employee is now or shall
in the future
be
elected or appointed as an officer of the Company or of any affiliate of the
Company during
the Term, the Employee will serve in such capacity or capacities without further
compensation;
however, nothing herein shall be construed as requiring the Company, or anyone
else, to cause the election or appointment of the Employee as such
officer.
2
B. The
Employee warrants and represents (and breach hereof shall be cause for
termination
by the Company of this Agreement) that she is not under any contractual or
other
obligations of any sort which will (i) prevent her from performing fully all
of
her obligations hereunder,
and/or (ii) vest in any other person, firm or corporation any right to recover
damages as
a
result of the Employee's performance hereunder, and/or (iii) permit any other
person or entity
to
enjoin or otherwise prevent full compliance by her hereunder.
6. Extent
of Services.
The
Employee shall devote her entire, full time, attention, energies
and best efforts to the business of the Company, and shall not during the Term
be engaged
in any other business activity whether or not such business activity is pursued
for gain,
profit,
or other pecuniary advantage; but this shall not be construed as preventing
the
Employee from
investing her assets in such form or manner as will not require any services
on
the part of the
Employee in the operation of the affairs of the companies in which such
investments are made.
The
Employee agrees to perform faithfully and to the best of her ability all
assignments given her by the Company.
7. Benefits.
During
the Term:
A. Vacation.
The
Employee shall be entitled to a vacation of twenty five (25) working
days during each Contract Year, or pro rata for a portion of a Contract Year.
The time or
times
of said vacation shall be determined by the mutual agreement of the Company
and
the Employee,
provided, however, that any vacation absence exceeding ten (10) consecutive
vacation
days shall be subject to the prior approval of the Company, which approval
shall
not be unreasonably withheld.
B. Benefits.
The
Employee and her dependents, if applicable, shall be eligible
to participate in any plan of the Company relating to group life insurance,
medical coverage,
dental coverage, disability insurance, education and/or other retirement or
employee benefit
plans or programs that the Company has adopted or may adopt for the benefit
of
its executive
employees ("Plans"). The Employee acknowledges and agrees that the Company
shall
have the absolute right, at any time and from time to time, to modify, amend,
replace and/or discontinue any of the Plans. Notwithstanding anything herein
to
the contrary, Company acknowledges that medical coverage is a significant
component to this Agreement based upon health issues relating to Employee's
family and agrees that it will provide either (a) medical coverage equal to
or
greater than the present policy in place for Company or (b) in the event the
medical coverage provided by Company is less than the policy currently in place
for Company, reimbursement to Employee for the cost of insurance which she
will
purchase privately to make up the shortfall in coverage.
C. Expenses.
The
Employee is authorized to incur reasonable and necessary expenses (including
a
first class seat when traveling by air or business class when traveling by
train)
for promoting the business of the Company, including expenses for entertainment,
travel and
similar items; provided, however, that any single such expense in excess of
$3,000 (three thousand
dollars) must be approved in advance by the Company. The Company will pay for
and/or
reimburse the Employee for all such expenses upon the presentation by the
Employee, within
thirty (30) days of the date incurred, of an itemized account of such
expenditures and invoices
and/or such other verification of such expenses as may be requested by the
Company.
3
D. Company
Car.
Company
shall maintain the GMAC Cadillac Escalade lease
dated October 21, 2006 and insurance for the term of such lease. Such vehicle
shall be used
by
Employee primarily for business purposes. After the expiration of such lease,
Company shall reimburse Employee up to $1,400 per month for lease and insurance
costs associated with her automobile.
8. Title
to Business.
The
Employee shall keep and maintain accurate, detailed and legible
records of all work performed by the Employee on behalf of the Company,
including, but not limited to, specific proposals to clients and customers,
proposals and presentations, the Employee's
work product and other ideas created and implemented during the Term. All right,
title,
and interest in and to all of the above, together with any and all books,
records, accounts, good
will, all related business and all other business conducted by the Company,
or
the Employee on the Company's behalf, whether produced by the Employee or not,
and any renewals
thereof, shall remain in the Company before and after the termination of this
Agreement
for any reason.
9. Ventures.
If,
during the Term of this Agreement, the Employee is engaged in or associated
with
the planning or implementing of any project, program or venture involving the
Company
or its affiliates and a third party or parties, all rights in such project,
program or venture
shall belong to the Company. The Employee shall not be entitled to any interest
in such project,
program or venture or to any commission, finder's fee or other compensation
in
connection
therewith other than the salary to be paid to the Employee as provided in this
Agreement.
10. Life
Insurance.
The
Company 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 the Employee, in such amounts and in such form or forms as the
Company may choose. The Employee
shall have no interest whatsoever in any such policy or policies, but shall,
at
the request
of the Company, submit to such medical examinations, supply such information,
and execute such documents as may be reasonably required by the insurance
Company or companies to whom the Company has applied for such
insurance.
11. Confidentiality
of Information.
A. The
Employee acknowledges and recognizes that in the course of her employment
hereunder she will become acquainted with confidential and/or proprietary
information of the Company,
(all of such confidential and/or proprietary information being collectively
referred to as
"Confidential Information"). "Confidential Information" includes, but is not
limited to, any trade
secrets including confidential or secret designs, processes, formulae, plans,
devices or material
(whether or not patented or patentable) directly or indirectly useful in any
aspect of the business of the Company or its affiliates, any customer or
supplier lists of the Company, any confidential or secret development or
research work of the Company, or any other confidential information
or secret aspects of the business of the Company, whether developed by the
Employee
or by others, as well as all such information of affiliates of Company,
including GSIS and
other
subsidiaries and affiliates of GSIS. In recognition of the foregoing, the
Employee agrees
that she will keep secret and confidential any and all Confidential Information
and that she
will
not, directly or indirectly, without the prior written consent of the Company,
either during
the Term or at any time thereafter, except as may be required in the course
of
her employment
hereunder:
4
(1) Communicate,
divulge or otherwise disclose any such Confidential Information to any person
or
entity; and/or
(2) Use
or
attempt to use any such Confidential Information for any purpose or in any
manner, including, without limiting the foregoing, for the purpose of inducing
or attempting to
induce
any account, client and/or customer of the Company to become an account, client
and/or
customer of the Employee or of any person or entity with which the Employee
is
affiliated in
any
capacity; and/or for any purpose which may injure or cause loss or may be
calculated to injure or cause loss, whether directly or indirectly, to the
Company.
B. All
records, files, manuals, lists of customers, blanks, forms, materials, supplies,
computer programs and other materials furnished to the Employee by the Company,
used by her on its behalf, or generated or obtained by her during the course
of
her employment, shall be and remain
the property of the Company. The Employee shall be deemed the bailee thereof
for
the use
and
benefit of the Company and shall safely keep and preserve such property, except
as consumed in the normal business operations of the Company. The Employee
acknowledges that this property is confidential and/or proprietary and is not
readily accessible to the Company's competitors. Upon the termination of the
Employee's employment for any reason whatsoever, all documents, records,
notebooks, equipment, employee lists, price lists, specifications, programs,
customer
and prospective customer lists and other materials which refer or relate to
any
confidential
or proprietary aspect of the business of the Company which are in the possession
of the Employee including all copies thereof, shall be promptly returned to
the
Company.
5
C. The
products and proceeds of Employee's services hereunder that Employee may
acquire,
obtain, develop or create during the term of this Agreement, or that are
otherwise made at
the
direction of the Company or with the use of the Company's or its affiliates'
facilities or materials, including, but not limited to, all materials, ideas,
concepts, formats, suggestions, developments,
packages, programs, inventions, products, programs, procedures, formats,
intellectual
properties, and other materials of any kind created or developed or worked
on by
the Employee during her employment by the Company (collectively, "Works"),
shall
be considered a "work
made for hire," as
that
term is defined under the United States Copyright Act, and Employee
shall be considered an employee for hire of the Company, and all rights in
and
to the Works, including the copyright or patent thereto, shall be the sole
and
exclusive property of the Company,
as the sole author and owner thereof, and the copyright thereto may be
registered by the
Company in its own name, and the Employee will not have any right, title or
interest of any nature or kind therein except to the extent that the Employee
is
required to use such Works in connection with her employment by the Company.
Without limiting the foregoing, it will be presumed that any copyright, patent,
trademark or other right and any idea, invention, product, program,
procedure, format or material created, developed or worked on by the Employee
at
any time during the Term of her employment will be a result or proceed of the
Employee's services under this Agreement. Furthermore, the Employee's right
to
any compensation or other amounts under
this Agreement will not constitute a lien on any results or proceeds of the
Employee's services
under this Agreement. In the event that any part of the Works shall be
determined not to be
a work
made for hire or shall be determined not to be owned by the Company, Employee
hereby
irrevocably assigns and transfers and agrees to assign and transfer to the
Company, its successors
and assigns, the following: (a) the entire right, title and interest in and
to
the copyrights,
trademarks and other rights in any such Work and any rights in and to any works
based
upon, derived from, or incorporating any such Work ("Derivative Work"); (b)
the
exclusive
right to obtain, register and renew the copyrights or copyright protection
in
any such Work
or
Derivative Work; (c) all income, royalties, damages, claims and payments now
or
hereafter
due or payable with respect to any such Work and Derivative Work; and (d) all
causes of
action
in law or equity, past and future, for infringements or violation of any of
the
rights in any
such
Work or Derivative Work, and any recoveries resulting therefrom. Employee also
hereby
waives in writing any moral or other rights that she has under state or federal
laws, or under
the
laws of any foreign jurisdiction, which would give her any rights to constrain
or prevent
the use of any Work or Derivative Work, or which would entitle her to receive
additional compensation from the Company. Employee shall execute all documents,
including without limitation
copyright assignments and applications and waivers of moral rights, and perform
all acts
that
the Company may request, in order to assist the Company in perfecting its rights
in and to any Work and Derivative Work anywhere in the world. Employee hereby
appoints the officers of the Company as Employee's attorney-in-fact to execute
documents on behalf of Employee for this limited purpose.
D. For
the
purposes of this Paragraph 11, subparagraphs A and B, "Company" shall be deemed
to include GSIS and its subsidiaries and affiliates.
12. Covenant
Not to Compete.
A. In
order
to induce the Company to enter into this Agreement, and for other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Employee, the Employee agrees as follows:
(1) The
Employee hereby agrees that she shall not, during the period of her employment
and for any period she is receiving severance pay following such employment,
directly
or indirectly, within the United States or territory outside the United States
in which the Company is engaged in business during the period of the Employee's
employment or on the date of termination of the Employee's employment, engage,
have an interest in or render any services to
any
business (whether as owner, manager, operator, licensor, licensee, lender,
partner, stockholder
(of more than 5% of the outstanding stock of any business which is publicly
traded, or
of
options to purchase more than 5% of the outstanding stock of any such business
which is publicly
traded), joint venturer, employee, consultant or otherwise) competitive with
the
Company's
business activities.
6
(2) The
Employee hereby agrees that she shall not, during the period of her employment
and for a period of one (1) year following such employment, directly or
indirectly solicit any of the Company's customers, or persons listed on the
personnel lists of the Company, nor shall the Employee attempt to cause any
person, firm or corporation which is a customer or client of or has a
contractual relationship with the Company at the time of the termination of
her
employment to terminate such relationship with the Company, and this provision
shall apply regardless
of whether such customer, client or contracting party has a valid contractual
arrangement with
the
Company. Except as required by law or legal process, at no time during the
Term,
or thereafter shall the Employee, engage in any conduct, directly or indirectly,
that disparages the commercial, business or financial reputation of the Company.
Except as required by law or legal process, at no time during the Term, or
thereafter shall the Employer or any executive officer of the Company, engage
in
any conduct, directly or indirectly, that disparages the professional, business,
financial or personal reputation of the Employee.
(3) For
purposes of clarification, but not of limitation, the Employee hereby
acknowledges and agrees that the provisions of subparagraphs (1) and (2) above
prohibit her, during the period referred to therein, from directly or
indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee or customer who
has
been previously contacted by either a representative of the Company, including
the Employee, (but only those suppliers existing during the
time
of the Employee's employment by the Company, or at the termination of her
employment),
to discontinue or alter his, her or its relationship with the Company.
Furthermore, for
purposes of clarification, but not of limitation, the Employee hereby
acknowledges and agrees
that the provisions of subparagraphs (1) and (2) above prohibit her from
engaging, hiring, retaining, or otherwise employing any person who was an
officer or employee of the Company at the
time
of the termination of Employee's employment, or cause such person to otherwise
become
associated with the Employee or with any other person, corporation, partnership
or other entity with which the Employee may thereafter become
associated.
B. The
Employee represents (i) that her experience and capabilities are such that
the
restrictions
contained herein will not prevent her from obtaining employment or otherwise
earning
a
living at the same general economic benefit as reasonably required by her and
(ii) that she has, prior to the execution of this Agreement, reviewed this
Agreement thoroughly with her legal counsel.
C. Employee
acknowledges that the restrictions contained in Paragraphs 11 and 12 hereof
are
reasonable and necessary to protect the legitimate business interests of the
Company and
that
the Company would not have entered into this Agreement in the absence of such
restrictions.
By reason of the foregoing, Employee agrees that if she violates any of the
provisions
of Paragraphs 11 and/or 12 hereof, the Company would sustain irreparable harm
and, therefore, the Employee hereby irrevocably and unconditionally (i) agrees
that in addition to any other
remedies which the Company may have under this Agreement or otherwise at law
or
in equity,
all of which remedies shall be cumulative, the Company shall be entitled to
apply to any court
of
competent jurisdiction for preliminary and permanent injunctive relief and
other
equitable
relief, (ii) agrees that such relief and any other claim by the Company pursuant
hereto may
be
brought in any court of general jurisdiction in New York, (iii) consents to
the
nonexclusive
jurisdiction of any such court in any such suit, action or proceeding, and
(iv)
waives any
objection which the Employee may have to the laying of venue of any such suit,
action or proceeding
in any such court. The Employee also irrevocably and unconditionally consents
to
the
service of any process, pleadings, notices or other papers in a manner permitted
by the notice provisions hereof.
7
D. The
Employee agrees that the Company may provide a copy of this Agreement to
any
business or enterprise (i) which the Employee may directly or indirectly own,
manage, operate,
finance, join, control or participate in the ownership, management, operation,
financing, or control of, or (ii) with which she may be connected with as an
officer, director, employee, partner, principal, agent representative,
consultant or otherwise, or in connection with which she may use or permit
her
name to be used. The Employee will provide the names and addresses of any of
such persons or entities as the Company may from time to time reasonably
request.
E. In
the
event of any breach or violation of any of the restrictions contained in
subparagraph
A. above, any time period therein specified shall xxxxx during the time of
any
violation
thereof and that portion remaining at the time of commencement of any violation
shall not begin to run until such violation has been fully and finally
cured.
F. If
any
commission, fee or other sum becomes payable to the Employee, or any
person
or
entity with which the Employee is affiliated in any capacity, as a result of
a
violation by
the
Employee of any
of
the
provisions of Paragraph 11 or of subparagraph A. of this Paragraph
12, then, in addition to any other legal and equitable remedies and/or
contractual rights
the Company may have, the Employee agrees to pay or cause the person or entity
with which
she
is affiliated to account to the Company for and pay over to the Company any
and
all commissions, fees, profits, remuneration or other financial benefits
obtained in connection with any
such
violation, and the Company may offset such amounts against any monetary
obligations of the Company may have to the Employee hereunder or in connection
with any other agreement between the Company and the Employee.
G. In
the
event of a breach or threatened breach by the Employee of any of the
provisions
of Paragraphs 11 or 12, the Company shall be entitled to seek injunctive relief
and the Employee agrees that it shall not be a defense to any request for such
relief that the Company has an adequate remedy at law. Notwithstanding the
foregoing, the Company shall have such other remedies
as may be appropriate under the circumstances, including, inter-alia, recovery
of damages
occasioned by such breach, all of which shall be cumulative and not exclusive.
The existence
of any claim or cause of action of the Employee against the Company whether
predicated
on this Agreement or otherwise shall not constitute a defense to the enforcement
by the
Company of the covenants of Paragraphs 11 and/or 12. Each of the foregoing
covenants shall
be
severable from the others.
8
H. It
is the
intent of the parties hereto that the covenants contained in Paragraphs 11
and
12
hereof shall be enforced to the fullest extent permissible under the laws and
public policies
of each jurisdiction in which enforcement is sought (the Employee hereby
acknowledging
that said restrictions are reasonably necessary for the protection of the
Company). Accordingly, it is hereby agreed that if any of the provisions of
Paragraphs 11 or 12 hereof
shall be adjudicated to be invalid or unenforceable for any reason whatsoever,
said provision
shall be (only with respect to the operation thereof in the particular
jurisdiction in which
such adjudication is made) construed by limiting and reducing it so as to be
enforceable to the
extent permissible, without invalidating the remaining provisions of this
Agreement or affecting
the validity or enforceability of said provision in any other
jurisdiction.
I. If
any
provision contained in Paragraphs 11 or 12 hereof is found to be unenforceable
by reason of the extent, duration or scope thereof, or otherwise, then the
court
making such determination shall have the right to reduce such extent, duration,
scope or other provision and in its
reduced form any such restriction shall thereafter be deemed by the parties
hereto as a permitted
modification of this Agreement and be enforceable as contemplated
hereby.
J. Without
prejudice to any other right or remedy which may be available to the Company,
to
the maximum extent permitted by law, the Company shall have the right to set-off
against
and deduct from any payments due from the Company to the Employee (whether
under
this
Agreement or otherwise) any loss or damage suffered by the Company in the event
of any breach
by
the Employee of any of her covenants, agreements or obligations under this
Agreement.
In any legal suit concerning the enforcement of this Section 12, if the Employee
prevails,
she shall be entitled to collect all reasonable costs and expenses of suit,
including, but not
limited to, attorneys' fees.
K. For
the
purposes of Paragraph 12, Subparagraph A, "Company" shall be deemed to include
GSIS and its subsidiaries and affiliates.
L. Notwithstanding
anything herein to the contrary, the parties acknowledge that it is of
the
essence to this Agreement that Employee shall not be restricted in any manner
pursuant to Section 12A (1) if Company fails to make a required severance
payment pursuant to Section 13 below and does not make such payment within
5
business days after receiving a written demand for such payment from Employee,
provided further that the Company shall be entitled to no more than two such
opportunities to cure within a twelve month period.
M. Notwithstanding
anything herein to the contrary, if pursuant to Section 12L above the
Employee is not restricted by Section 12A (1) above, then the provisions of
Section 12 A (3) shall not prohibit the Employee from, directly or indirectly,
hiring Xxxxx Xxxx, Xxxxxx Xxxx or Xxxxx
Xxxxxxxx so long as they are hired to be employed in a business that is not
competitive with
the
Company's business activities.
9
13. Termination.
A. This
Agreement shall terminate as follows:
(i) Immediately
upon the death or Permanent Disability (hereinafter defined) of
the
Employee. Any base salary or other payments accrued or due to the Employee,
as
of the date of such termination, shall remain due and payable and shall be
paid
by the Company to the Employee
or the Employee's estate, as the case may be, as soon as practicable thereafter,
but no later
than sixty (60) days from the effective date of termination. For purposes
hereof, "Permanent
Disability" shall mean the inability of the Employee to perform her duties
hereunder due to mental or physical illness or other incapacity (as determined
in good faith by a physician mutually acceptable to the Company and the
Employee) for a period of more than 90 consecutive days (or more than 90 days
during any 270 day period). During any period of disability prior to termination
on account of Permanent Disability, the Employee shall continue to be paid
her
base salary under Paragraph 3 above and be provided with the benefits referred
to in Paragraph 7.B. above. The Company will be entitled to deduct from all
payments to be made to the Employee during any disability period an amount
equal
to all disability payments payable to the Employee from
Workers' Compensation, Social Security and/or any disability insurance policies
or programs
maintained by the Company, as the case may be; or
(ii) By
the
Company for "Cause" (defined below) immediately upon written notice from the
Company to the Employee (subject to any cure periods set forth herein). For
purposes hereof, the term. "Cause" shall mean any of the following events:
(a)
conviction of the Employee in a court of law of any crime or offense involving
money or other property of the Company
or of any felony; or (b) a material breach by the Employee of a fiduciary duty
or duty of
loyalty to the Company; or (c) the misappropriation of any asset or opportunity
of the Company
by or on behalf of the Employee. In the event that this Agreement is terminated
by the Company for "Cause" the Company shall have no further obligations
hereunder, except that the Employee's
Base Salary to which the Employee shall be entitled for any periods prior to
termination
shall be prorated to the date of termination and shall be paid to the Employee
(subject
to any right of set-off in favor of the Company); or
(iii) By
Employee in the event the Company requires Employee to be based at an
office
location either more than a 20 mile radius from Xxxxxx, New Jersey or outside
of
the State
of
New Jersey. In such event, such termination shall be deemed to have been by
the
Company
"without Cause" and Paragraph 13 B shall apply.
B.
(i) If
the
Employee's employment is terminated by Company without Cause during the
first
two years of the Term, Employee shall receive an amount equal to two years
Base
Salary and an amount equal to two times the amount of the bonus earned by
Employee during the 12 month period prior to her termination, excluding any
amounts of the bonus paid or earned pursuant
to Paragraph 3 B and/or (iv). If such termination occurs prior to the end of
the
first year
of
the Term, the amount of severance attributable to the bonus portion of her
severance shall be determined after the first year of the Term. Such severance
shall be paid to Employee in equal installments over two years, paid in
accordance with Company's then current payroll schedule.
10
(ii) If
the
Employee's employment is terminated by Company without Cause during the
third
year of the Term, Employee shall receive an amount equal to her Base Salary
plus
bonus
for
the remainder of the Term, such bonus to be in an amount equal to the amount
of
the Bonus earned by Employee during the 12 month period prior to her
termination, excluding any amounts of the bonus paid or earned pursuant to
Paragraph 3 B (iii) and/or (iv). Such severance shall be paid to Employee in
equal installments over the duration of the Term, paid in accordance with
Company's then current payroll schedule.
(iii) If
the
Employee's employment is terminated by Company without Cause during the
fourth year of the Term, Employee shall receive an amount equal to one year
of
Base Salary and an amount equal to the amount of the bonus earned by Employee
during the 12 month period prior
to
her termination, excluding any amounts of the bonus paid or earned pursuant
to
Paragraph
3 B (iii) and/or (iv). Such severance shall be paid to Employee in equal
installments over one year, paid in accordance with Company's then current
payroll schedule.
C. The
Company's obligation to provide the any payments pursuant to Paragraph 13 hereof
is
expressly conditioned upon the Employee's execution and delivery to the Company
of a release
agreement, as drafted at the time of the Company's termination of employment,
including,
but not limited to:
(i) An
unconditional release of all rights to any claims, charges, complaints,
grievances, known or unknown to the Employee, through the date of the Employee's
termination from employment;
(ii) A
representation and warranty that the Employee has not filed or assigned any
claims, charges, complaints, or grievances against the Company;
(iii) An
agreement not to use, disclose or make copies of any confidential information
of
the Company, as well as to return any such confidential information and property
to the Company upon execution of such release;
(iv) An
agreement to maintain the confidentiality of the release; and
(v) An
agreement to indemnify the Company, in the event that the Employee breaches
any
portion of such release.
14. Choice
of Law/Venue.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without reference to principles of conflict of laws.
Employee agrees to and does hereby submit to the exclusive jurisdiction before
any state or
federal court located in New York County, New York in connection with any
claims, disputes or disagreements regarding this Agreement.
11
15. Amendment
or Alterations.
No
amendment or alteration of the terms of this Agreement
shall be valid unless made in writing and signed by both the Company and the
Employee.
16. Notices.
All
notices and other communications hereunder shall be deemed to have been given
if
in writing and sent by commercial overnight courier service (e.g., Federal
Express) or mailed certified or registered mail, postage prepaid, return receipt
requested, as follows, or to such other address as either party may designate
upon at least ten (10) days prior written notice:
| A. |
To
the Company:
|
Green
Screen Interactive Software, LLC
000
Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Chairman
With
a
copy to:
Green
Screen Interactive Software, LLC
000
Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
General Counsel
| B. |
To
the Employee:
|
Xxxxx
X.
Xxxx
0
Xxx
Xxxxx Xxxx
Xxxxxx,
XX 00000
With
a
copy to:
PISARRI
XxXXXXX & XXXXXX
Attorneys
at Law
000
Xxxxx
Xxxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxx, Xx., Esq.
17. Waiver
of Breach.
No
delay or omission by any party in exercising any right, remedy
or
power hereunder or existing at law or in equity shall be construed as a waiver
thereof, and
any
such right, remedy or power may be exercised by the party possessing the same
from time
to
time and as often as may be deemed expedient or necessary by such party in
its
sole discretion.
18. Binding
Effect.
All of
the terms and provisions of this Agreement shall be binding upon
and
inure to the benefit of and be enforceable by the respective heirs, executors,
administrators,
legal representatives, successors and assigns of the parties hereto, except
that
the duties and responsibilities of the Employee hereunder are of a personal
nature and shall not be assignable or delegable in whole or in part by
Employee.
12
19. Entire
Agreement.
This
Agreement is intended to supersede and replace any and all prior
agreements and understandings between the parties hereto with respect to the
employment of
the
Employee by Company. This Agreement constitutes the entire agreement among
the
parties
with respect to the matters herein provided, and no modification, amendment
or
waiver of any provision hereof shall be effective unless in writing and signed
by the parties hereto.
20. Survival.
The
provisions of Paragraphs 8, 11, 12, 20 and 21 shall survive the expiration
or termination of this Agreement for any reason whatsoever.
21. Miscellaneous.
A. The
Employee agrees that the obligations of the Company hereunder shall be limited
to the Company only, and the Employee agrees that she shall not bring any claim
or suit against any director or shareholder of the Company or any other person
other than the Company for any breach or default by the Company of its
obligations hereunder.
B. If
any,
provision of this Agreement or application thereof to anyone or under any
circumstances is adjudicated to be invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall not affect any other provision or
application of this Agreement which can be
given
effect without the invalid or unenforceable provision or application and shall
not invalidate
or render unenforceable such provision or application in any other
jurisdiction.
C. No
remedy
conferred upon the Company by this Agreement is intended to be exclusive of
any
other remedy, and each and every such remedy shall be cumulative and shall
be in
addition to any other remedy given hereunder or now or hereafter existing at
law
or in equity.
[Signature
Page Follows]
13
|
/s/
Xxxxx Xxxx
|
||
|
XXXXX
XXXX
|
||
14
[Signature
Page to Employment Agreement]
|
/s/
Xxxxx Xxxx
|
||
|
Xxxxx
Xxxx, its President
|
||
15
