Exhibit 10.7
AGREEMENT, made as of January 1, 1996, by and between
GREENSTONE XXXXXXX ADVERTISING, INC., a New York corporation (the
"Corporation"), and XXXX X. XXXXXXX, an individual residing at 00
Xxxxxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000 (the "Executive")
W I T N E S S E T H :
WHEREAS, the Corporation desires to employ the
Executive, and the Executive is agreeable to accepting such
employment, under the terms of this Agreement;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, the parties agree to as
follows:
1. The Corporation employs the Executive, and the
Executive agrees to serve the Corporation, for a period of two
(2) years commencing on January 1, 1996 and ending at 12:00
midnight on the second anniversary thereof (the "First
Termination Date"), and from year to year thereafter unless the
period of employment hereunder shall be terminated by either
party giving at least six (6) months' prior written notice of
termination to the other party specifying the date of
termination. Each of the initial term of this Agreement and the
renewal periods thereof is referred to herein as a "Period of
Employment." Such termination date shall be either the First
Termination Date or an anniversary date of the First Termination
Date and termination shall be effective on the date specified in
such notice.
2. During the period of employment hereunder, the
Executive shall be employed by the Corporation as the President
of the Corporation, and, except as hereinafter provided, shall
devote his full business time and efforts to the business and
affairs of the Corporation, use his best efforts to promote the
business of the Corporation, hold the offices in the Corporation
to which from time to time he may be elected or appointed, and
perform such executive duties as shall be assigned to him by the
Chairman of the Board and/or the Board of Directors of the
Corporation, provided they are at least of the same degree of
responsibility as the duties being performed by the Executive
contemporaneously with the execution of this Agreement. In
connection with the performance of his duties hereunder, the
Executive from time to time may be required to travel both within
and outside of the United States of America. The Executive shall
be reimbursed for all travel and other expenses incidental to the
performance of services hereunder in accordance with the usual
practices of the Corporation. The Executive shall be entitled to
vacations in accordance with the Corporation's existing vacation
policy and the Corporation shall provide the Executive with
reasonable perquisites suitable to the office in the Corporation
which he holds. The Corporation agrees that, consistent with the
foregoing, the Executive may devote such time and attention as is
reasonably necessary to his personal and financial affairs.
3. (a) The Corporation shall compensate the Executive
for the services to be rendered by him hereunder, including all
services to be rendered as an officer or director of the
Corporation, by paying the Executive a salary at the rate of not
less than Three Hundred Thousand ($300,000.00) Dollars. Such
salary shall be payable in accordance with the usual salary
payment practices of the Corporation or as otherwise determined
by the Board of Directors.
For each fiscal year ending October 31 in which the
Executive is employed, the Corporation shall establish a five
(5%) percent pre-tax earnings bonus pool, the dollar amount of
which shall be determined by the Corporation's auditors which
shall be binding upon the Corporation and the Executive. As
additional incentive compensation, the Executive shall be
entitled to receive forty (40%) percent of this pool. If the
Executive's employment shall terminate on a date other than
October 31, then the Executive's share of the bonus pool shall be
pro-rated for that portion of the year the Executive has rendered
service.
The Board of Directors of the Corporation annually
shall review the services rendered by the Executive and, in its
sole discretion, may award the Executive bonus compensation for
the services rendered during the year under review. The Board of
Directors of the Corporation also shall review the salary of the
Executive at least annually. Nothing herein contained shall
prevent the Board of Directors of the Corporation from
prospectively increasing the salary or other compensation of the
Executive during the period of employment hereunder.
(b) In the event that the Executive is terminated by
the Corporation (a "Cessation of Employment") otherwise than for
"cause" (as hereinafter in Paragraph 6 defined):
(i) The Corporation shall within five (5) days of
the Cessation of Employment pay to the Executive in one lump sum
as a special severance and termination payment an amount equal to
the annual salary then being paid to the Executive pursuant to
the provisions of Paragraph 3(a); and
(ii) For the entire remaining portion of the then
current Period of Employment, the Corporation shall continue to
pay to the Executive the salary then being paid by the
Corporation to the Executive pursuant to the provisions of
Paragraph 3(a) prior to the date of the Cessation of Employment;
(iii) For the entire remaining portion of the then
current Period of Employment, the Executive shall continue to be
eligible to, and shall participate in, all employee benefit
programs of the Corporation in which the Executive participated
prior to the date of the Cessation of Employment, including,
without limitation, all savings, life, accident, medical and
dental insurance plans and programs; and the Executive shall be
entitled to make whatever elections may be available to him with
respect to his interests in savings and comparable plans.
4. In the event of the Executive's death during the
term hereof, this agreement shall terminate on the date of death
of the Executive.
5. While employed hereunder, the Executive shall not
engage in or carry on, directly or indirectly, either for himself
or as a member of a partnership or as a stockholder, investor,
lender, officer or director of a corporation (other than the
Corporation), or as an employee or agent of, or consultant to,
any person, partnership or corporation (other than the
Corporation), or in any capacity on behalf of any trust or other
organization or entity, any business in competition with (as
defined in Paragraph 6) any business then carried on by the
Corporation as long as any like business is carried on by the
Corporation or by any person, corporation, partnership, trust or
other organization or entity deriving title to the good will of
such business, directly or indirectly, from the Corporation;
provided, however, that nothing herein contained shall prevent
the Executive from purchasing securities of any publicly-owned
company, the securities of which are listed on a national
securities exchange or registered pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended, but the total
holding of any such security so listed or registered shall be
limited to one percent (1%) of the amount of any such security
outstanding. The Executive may make investments, without
restriction on amount, in non-competitive private businesses.
6. To induce the Corporation to execute and deliver
this Agreement, and to protect the trade secrets of the business
of the Corporation, the Executive hereby covenants and agrees
that if the Executive shall terminate his employment hereunder in
breach of this Agreement, or if his employment is terminated by
the Corporation for cause (as hereinafter defined), then for a
period of twelve (12) months from the effective date of
termination of the period of employment hereunder, the Executive
will not engage in or carry on, directly or indirectly, either
for himself or as a member of a partnership or as a stockholder,
investor, lender, officer or director of a corporation, or as an
employee or agent of, or consultant to, any person, partnership
or corporation, or in any capacity on behalf of any trust or
other organization or entity, any business with or for any person
or entity which at any time during the twenty-four (24) months
preceding the date of termination of this Agreement was a client
of Corporation in completion with any business then carried on by
the Corporation; provided, however, that nothing herein contained
shall prevent the Executive from purchasing securities of any
publicly-owned company, the securities of which are listed on a
national securities exchange or are registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended,
but the total holding of any such securities so listed or
registered shall be limited to one percent (1%) of the amount of
any such security outstanding. Nothing contained herein shall
prevent the Executive from purchasing or otherwise beneficially
owning, without restriction on amount, any securities issued by
the Corporation. The term "in competition with" as used in this
Agreement shall mean a business which is conducted anywhere
within the United States or in other areas in the world where the
Corporation then carries on business and which is substantially
similar in whole or in part to the business then conducted by the
Corporation.
For the purposes of this Paragraph 6, the term "for
cause" shall mean, and be limited exclusively to, the following
actions by the Executive: actual (as distinguished from
statutory) fraud; misappropriation of funds or property of the
Corporation for his own use; embezzlement of the Corporation's
property; or a material and intentional breach by Executive of
the provisions to be performed by him of Paragraph 2, 7 or 9 of
this Agreement. A mere allegation by the Corporation shall not
be sufficient; the burden of proving that a termination is "for
cause" shall be on the Corporation. It is specifically agreed
that "cause" shall not include any act of commission or omission
by the Executive in the exercise of Executive's business judgment
as a senior executive of the Corporation or a member of the Board
of Directors of the Corporation.
7. The Executive agrees that any and all systems,
work-in-progress, inventions, discoveries, improvements,
processes, compounds, formulae, patents, copyrights and
trademarks, made, discovered or developed by him, solely or
jointly with others, or otherwise, during the period of his
employment by the Corporation, and which may be useful in or
relate to any business of the Corporation, shall be fully
disclosed by the Executive to the Board of Directors of the
Corporation, and shall be the sole and absolute property of the
Corporation, and the Corporation will be the sole and absolute
owner thereof. The Executive agrees that at all times, both
during his employment and after the termination of his
employment, he will keep all of the same secret from everyone
except the Corporation and will disclose the same to no one
except as required for the business of the Corporation or unless
otherwise authorized in writing by the Board of Directors or the
Chairman of the Board of Directors of the Corporation, unless
such information shall have become public knowledge or shall have
become known generally to competitors through sources other than
the Executive.
8. The Executive agrees, at the request of the
Corporation, to make application in due form for United States
Letters Patent and foreign Letters Patent on any of said systems,
inventions, discoveries, improvements, processes, compounds and
formulae, and to assign to the Corporation all of his right,
title and interest in and to said systems, inventions,
discoveries, improvements, processes, compounds, formulae and
patent applications therefore or any patents thereon, and to
execute at any and all times any and all instruments, and to do
any and all acts necessary, or which the Corporation may deem
desirable, in connection with such application for Letters
Patent, to establish and perfect in the Corporation the entire
right, title and interest in and to said systems, inventions,
discoveries, improvements, processes, compounds, formulae and
patent applications therefor or patents thereon or in the conduct
of any proceedings or litigation in regard thereto. It is
understood and agreed that all costs and expenses, including, but
not limited to, reasonable attorneys' fees, incurred at the
request of the Corporation in connection with any action taken by
the Executive pursuant to this Paragraph 8, shall be borne by the
Corporation.
9. The Executive agrees that, during or after the
termination of this Agreement, he shall not divulge, furnish or
make accessible to any person, corporation, partnership, trust or
other organization or entity, any information, trade secrets,
technical data or know-how relating to the business, business
practices, methods, products, processes, equipment or any
confidential or secret aspect of the business of the Corporation
without the prior written consent of the Corporation, unless such
information shall have become public knowledge or shall have
become known generally to competitors of the Corporation through
sources other than the Executive.
10. The Executive shall be entitled to participate in
the life insurance, dental, 401(k) and major medical group plans
of the Corporation, and in each other employee benefit plan that
the Corporation has or may establish and maintain for the benefit
of the employees of the Corporation.
11. The Executive agrees that the Corporation may
procure life insurance on the life of the Executive, in such
amount as the Corporation may deem appropriate, with the
Corporation named as the sole beneficiary under such policy or
policies. The Executive agrees that upon request from the
Corporation, he will submit to a physical examination and will
execute such applications and other documents as may be required
for the procurement of such insurance.
12. The Executive acknowledges that he has been
employed for his unique talents and that his leaving the employ
of the Corporation would seriously hamper the business of the
Corporation.
13. This Agreement sets forth the entire agreement and
understanding between the parties and merges and supersedes all
prior discussions, agreements and understandings of every kind
and nature between them concerning the subject matter hereof. No
variation hereof shall be deemed valid unless in writing and
signed by the party to be bound thereby and no discharge of the
terms hereof shall be deemed valid unless by full performance by
the parties or by a writing signed by both parties. No waiver by
a party of any breach by the other party of any provision or
condition of this Agreement by him or its to be performed shall
be deemed a waiver of the breach of a similar or dissimilar
provision or condition at the same time or any prior or
subsequent time or of the provision or condition itself.
14. All notices relating to this Agreement shall be in
writing and shall be deemed to have been given at the time when
delivered personally, against appropriate receipt, or when mailed
in any general or branch office of the United States Postal
Service, by registered or certified mail, postage prepaid, return
receipt requested, addressed to the address of the other party
hereinbefore set forth, or to such changed address as the other
party may fix by notice; provided, however, that any notice of
change of address shall be effective only upon receipt.
15. This Agreement shall inure to the benefit of and
be binding upon the Corporation, it successors and assigns,
including, without limitation, any corporation which may acquire
all or substantially all of the Corporation's assets and business
or with or into which the Corporation may be consolidated or
merged, and the Executive, his heirs, executors, administrators
and legal representatives, provided that the obligations of the
Executive hereunder may not be delegated.
16. If any provision of this Agreement or the
application of any provision to this Agreement is declared to be
illegal, invalid or otherwise unenforceable by a court of
competent jurisdiction, the remainder of this Agreement shall not
be affected except to the extent necessary to delete such
illegal, invalid or unenforceable provision, unless such
declaration shall substantially impair the benefit of the
remaining portions of this Agreement.
17. This Agreement shall be governed by the laws of
the State of New York governing contracts made to be performed in
such State without giving effect to principles of conflicts of
law.
18. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be the same Agreement.
IN WITNESS WHEREOF, each of the parties hereto has
executed this Agreement as of the date first set forth above.
GREENSTONE XXXXXXX
ADVERTISING, INC.
By:
Name: XXXXXX XXXXXXXXXX XXXX X. XXXXXXX
Title: Chairman of the Board
