EXHIBIT 10.7
AGREEMENT
AGREEMENT dated as of June 13, 2003 between SmartServ Online, Inc. a
Delaware corporation with an address at 0 Xxxxxxx Xxxxx, Xxxxxxxx, XX, 00000
(the "Corporation"), and Xxxxxx X. Xxxxxx, an individual whose principal
residence address is _____________________________ (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee has been a valuable senior executive employee of
the Corporation for a number of years; and
WHEREAS, the Corporation and the Employee desire to set forth in
writing certain agreements between them in the event of the termination of the
employment of the Employee by the Corporation under certain circumstances.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Corporation and the Employee
hereby agree as follows:
1. Employee at Will.
The Corporation and the Employee hereby acknowledge and agree that the
Employee is an employee at will, and that the Corporation may terminate the
employment of the Employee at any time for any reason or for no reason
whatsoever.
2. Severance Payments Upon Termination other than for Cause.
(a) In the event that the Corporation shall terminate the
employment of the Employee for any reason other than (i) for Cause (as such term
is defined below), (ii) the Disability (as such term is defined below) of the
Employee, or (iii) upon the death of the Employee, the Corporation will pay to
the Employee, in equal lump-sum payments paid quarterly in advance, his base
salary at the per annum rate in effect on the Termination Date(as defined below)
(such base salary not to be less than $165,000 per annum) for the period
commencing on the Termination Date ) and ending on the day immediately preceding
the twelve month anniversary of such termination of employment (plus any
deferred or unpaid salary and any due and unpaid bonuses as of the Termination
Date) less the Required Deductions (as defined below)(the "Severance Payments").
In no event, however, will the Employee be entitled to receive any rights,
amounts, or benefits under this paragraph 2(a) unless he executes and delivers
to the Corporation a release prepared by, and acceptable to, the Corporation.
The Severance Payments will be payable by check (or, if requested by the
Employee, by direct deposit into the Employee's account in substantially the
same manner as presently deposited and subject to no material additional
conditions to the Corporation than presently exist).
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(b) The Corporation will withhold, and the payments otherwise
payable to the Employee hereunder shall be reduced by, all applicable federal,
state and local taxes, FICA, unemployment compensation taxes and other taxes,
assessments and withholdings required by applicable law to be withheld (the
"Required Deductions").
(c) In addition to the Severance Payments, the Employee will
receive the following benefits from the Corporation: (i) continuation, at no
additional expense to the Employee, of Employee's health care, disability and
life insurance coverage that is in effect on the Termination Date, for a period
commencing on the Termination Date and ending on the earlier to occur of twelve
months or the commencement of new employment by Employee pursuant to which the
Employee is eligible to receive substantially similar health care, disability
and life insurance coverage, and (ii) amendment, simultaneously herewith, of the
Employee's stock option contracts with the Corporation to provide for the
vesting on the Termination Date of Employee's stock options that are unvested
and extension of the exercise period for all of the Employee's stock options to
one year from the Termination Date but no later than the date on which such
option would have expired by its terms if the Employee's employment had not so
terminated.
(d) The term "Cause" shall mean (i) a willful refusal or
failure by the Employee to perform any duties consistent with his position as
assigned to the Employee(unless the performance of such assigned duties will
cause the Employee to violate, or risk violating, any law, regulation, rule,
order, professional ethics or licensing requirement, or the best practices of
his profession or position), which is not cured within 14 days after notice of
such breach shall have been given to the Employee by the Corporation (or within
30 days after such notice if such breach shall not be curable within 14 days
after such notice and the Employee shall, at all times, diligently pursue the
cure of such breach within such 30-day period), (ii) the commission by the
Employee of an act involving moral turpitude, dishonesty, theft,
misappropriation of assets, or unethical business conduct, in each case which
materially impairs or xxxxx the reputation, or is otherwise to the material
detriment, of the Corporation, or any of its subsidiaries or affiliates, or
which could reasonably be expected to materially impair or harm the reputation,
or be to the material detriment, of the Corporation, (iii) the possession or use
of illegal drugs or prohibited substances, (iv) excessive drinking which impairs
the Employee's ability to perform his duties and responsibilities hereunder, or
(v) the conviction of the Employee of, or the pleading of nolo contendere by the
Employee to, any felony, or a misdemeanor involving any of the acts referred to
in clause (ii) above.
(e) The term "Disability" shall mean the failure of the
Employee, because of physical or mental illness or incapacity, to be able to
substantially perform the duties and services required of him pursuant to his
employment by the Corporation for a period of 120 consecutive days or for a
period of 270 days in any 365-day period.
(f) The term "Termination Date" shall mean the last day the
Employee is employed by the Corporation.
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3. Certain Covenants of the Employee.
(a) The Employee acknowledges that by his employment he has been and
will continue to be in a confidential relationship with the Corporation and will
have access to confidential information and trade secrets of the Corporation,
its subsidiaries and affiliates (collectively, the "Confidential Information").
Confidential Information includes, but is not limited to, customer and client
lists, financial information, price lists, marketing and sales strategies and
procedures, computer programs, databases and software, supplier, vendor and
service information, personnel information, operating procedures and techniques,
business plans and systems, and all other records, files, and information in
respect of the Corporation. During the term of his employment by the Corporation
and thereafter, the Employee shall maintain the strictest confidentiality of all
Confidential Information and shall not use or permit the use of, or disclose,
discuss, communicate or transmit or permit the disclosure, discussion,
communication or transmission of, any Confidential Information. This paragraph
shall not apply to (i) information that, by means other than the Employee's
direct or indirect disclosure, becomes generally known to the public, or (ii)
information the disclosure of which is compelled by law (including judicial or
administrative proceedings and legal process). In that connection, in the event
that the Employee is requested or required (by oral question, interrogatories,
requests for information or documents, subpoenas, civil investigative demand or
other legal process) to disclose any Confidential Information, the Employee
agrees to provide the Corporation with prompt written notice of such request or
requirement so that the Corporation may seek an appropriate protective order or
relief therefrom or may waive the requirements or this paragraph 3(a). If,
failing the entry of a protective order or the receipt of a waiver hereunder,
the Employee is compelled to disclose Confidential Information under pain of
liability for contempt or other censure or penalty, the Employee may disclose
such Confidential Information to the extent so required.
(b) In the event of a breach or threatened breach by the Employee of
any of the provisions of paragraph 3(a), the Corporation shall be entitled to
seek an injunction to be issued by any court or tribunal of competent
jurisdiction to restrain the Employee from committing or continuing any such
violation. In any proceeding for an injunction, the Employee agrees that his
ability to answer in damages shall not be a bar or be interposed as a defense to
the granting of a temporary or permanent injunction against him. The Employee
acknowledges that the Corporation will not have an adequate remedy at law in the
event of any breach by him as aforesaid and that the Corporation may suffer
irreparable damage and injury in the event of such a breach by him. Nothing
contained herein shall be construed as prohibiting the Corporation from pursuing
any other remedy or remedies available to the Corporation in respect of such
breach or threatened breach.
4. Representations.
(a) The Employee represents and warrants that he has full authority and
legal capacity to execute and deliver this Agreement and perform his duties and
obligations hereunder, that he has duly executed this Agreement, and that he is
not under any contractual,
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legal or other restraint or prohibition that would restrict, prohibit or prevent
the Employee from performing this Agreement and his duties and obligations
hereunder.
(b) The Employee acknowledges that he is free to seek advice from
independent counsel with respect to this Agreement. The Employee has obtained
such advice and is not relying on any representation or advice from the
Corporation or any of its officers, directors, attorneys, or other
representatives regarding this Agreement, its contents or effect.
(c) The Corporation represents and warrants that it has full corporate
power and authority to execute and deliver this Agreement and perform its duties
and obligations hereunder, that it has duly executed this Agreement, and that it
is not under any contractual, legal or other restraint or prohibition that would
restrict, prohibit or prevent the Corporation from performing this Agreement and
its duties and obligations hereunder.
5. Assignability.
This Agreement may not be assigned by the Employee and all of its terms
and conditions shall be binding upon and inure to the benefit of the Employee
and his heirs, executors, administrators, legal representatives and assigns.
This Agreement may be assigned, in whole or in part, by the Corporation and
shall be binding upon and inure to the benefit of the Corporation, its
successors and assigns. Successors of the Corporation shall include, without
limitation, any corporation or other entity acquiring directly or indirectly all
or a substantial part of the assets of the Corporation whether by merger,
consolidation, purchase, lease or otherwise, and such successor shall thereafter
be deemed the "Corporation" for purposes hereof.
6. Notices.
Except as otherwise expressly provided, any notice, request, demand or
other communication permitted or required to be given under this Agreement shall
be in writing, shall be sent by one of the following means to the Employee at
his address set forth on the first page of this Agreement and to the Corporation
at its address set forth on the first page of this Agreement, Attention:
Chairman, Compensation Committee of the Board of Directors (or to such other
address as shall be designated hereunder by notice to the other parties and
persons receiving copies, effective upon actual receipt) and shall be deemed
conclusively to have been given: (a) on the first business day following the day
timely deposited for overnight delivery with Federal Express (or other
equivalent national overnight courier service) or United States Express Mail,
with the cost of delivery prepaid or for the account of the sender; (b) on the
fifth business day following the day duly sent by certified or registered United
States mail, postage prepaid and return receipt requested; or (c) when otherwise
actually received by the addressee on a business day (or on the next business
day if received after the close of normal business hours or on any non-business
day). A copy of each notice, request, demand or other communication given to the
Corporation by the Employee shall be given to Xxxxxxx X. Xxxx, Esq., Jenkens &
Xxxxxxxxx Xxxxxx Xxxxxx, LLP, The Chrysler
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Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
7. No Waiver by Action, Cumulative Rights, Etc.
Any waiver or consent from either party respecting any term or
provision of this Agreement shall be effective only in the specific instance and
for the specific purpose for which given and shall not be deemed, regardless of
frequency given, to be a further or continuing waiver or consent. The failure or
delay of either party at any time or times to require performance of, or to
exercise any of its powers, rights or remedies with respect to, any term or
provision of this Agreement in no manner shall affect that party's right at a
later time to enforce any such term or provision.
8. Interpretation, Headings.
The parties acknowledge and agree that the terms and provisions of this
Agreement have been negotiated, shall be construed fairly as to all parties
hereto, and shall not be construed in favor of or against any party. The section
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
9. Severability.
The invalidity or unenforceability of any provision of this Agreement
shall not affect, impair or invalidate any other provision of this Agreement.
10. Counterparts; Facsimile Signatures; New York Governing Law;
Amendments, Entire Agreement.
This Agreement may be executed in two counterpart copies, each of which
may be executed by one of the parties hereto, but both of which, when taken
together, shall constitute a single agreement binding upon the parties hereto.
Any signature delivered by a party by facsimile transmission shall be deemed to
be an original signature hereto. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without regard to principles of conflicts of laws (other than Section 5-1401 of
the New York General Obligations Law). Each and every modification and amendment
of this Agreement shall be in writing and signed by the parties hereto, and any
waiver of, or consent to any departure from, any term or provision of this
Agreement shall be in writing and signed by the party granting the waiver or
consent. This Agreement contains the entire agreement of the parties and
supersedes all prior representations, agreements and understandings, oral or
otherwise, between the parties with respect to the matters contained herein.
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IN WITNESS WHEREOF, the Corporation and the Employee have signed this
Agreement as of the date set forth on the first page of this Agreement.
SMARTSERV ONLINE, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Print Name: Xxxxxxxxx X. Xxxxxxxx
Print Title: Chairman of the Board and
Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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