EXHIBIT 10.15
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made effective as of the day of September, 2004
(the "Effective Date"), by and between NECI ACQUISITION, INC., a Florida
Corporation having offices at 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxx
Xxxxxx 00000 (the "Company"), and XXXXXX XXXXXXX, residing at /s/10 Darvel Dr.,
West Windsor, NJ (the "Employee").
WHEREAS, the Company desires to have the services of the Employee as
its President and the Employee desires to be employed by the Company, on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree as follows:
1. TERM OF EMPLOYMENT; DUTIES.
1.1. The Company hereby employs the Employee as President of the
Company, and the Employee hereby agrees to serve the Company in such capacity
and to perform such duties consistent therewith as the Board of Directors of the
Company (the "Board") from time to time shall determine for a period of two (2)
years commencing on September 14, 2004 (the "Initial Term"), and which
Employment Agreement shall automatically renew for a period of one (1) year on
each anniversary of such date ("Renewal Term") unless notice of termination is
provided to the other party ("Notice of Non-Renewal"). Said notice shall be in
writing and shall be delivered not less than ninety (90) days prior to an
anniversary date or unless the agreement is earlier terminated pursuant to the
terms and conditions set forth in Section 4 of this Employment Agreement.
2. COMPENSATION.
2.1. For all services rendered pursuant to the terms hereof, the
Employee shall receive a base salary of $150,000 ("Base Salary"), for each of
the 12 month periods commencing on the date hereof (a "Contract Year"), which
shall accrue and be payable in the event the Company has sufficient working
capital. The Base Salary may be reviewed by the Board for each of the Contract
Years after the fiscal year ending June 30, 2005, to determine whether the Base
Salary should be changed for any such year. The Base Salary shall be paid to the
Employee in equal periodic installments not less frequently than monthly. In
addition and not in lieu thereof, the Employee shall be entitled to receive such
fringe benefits and to participate in such benefit plans and programs as are
generally made available by the Company to other senior executive employees,
including, but not limited to, health insurance, and a car allowance or company
vehicle.
2.2. The terms and conditions of the Company Employee Handbook, if any,
are incorporated as terms herein. In the event the terms of this agreement
conflict with the provisions of the Employee Handbook, the terms of this
agreement shall prevail.
2.3. The Employee shall receive an annual monetary bonus, if any, as
determined in the sole discretion of the Board.
3. SERVICES TO BE PROVIDED.
3.1. The Employee is currently the President of the Company. The
foregoing sentence notwithstanding the Employee shall serve at the discretion of
the Board and shall perform all duties, obligations and responsibilities as
shall be assigned to him by the Board, and shall devote his full attention to
the performance of the duties, obligations and responsibilities assigned to him
and he will devote his full time and attention exclusively to the business and
affairs of the Company. The Employee also agrees that he shall act solely for
the Company's benefit in all matters connected with his employment and further
agrees that he shall not take personal advantage of any business opportunities
which arise during his employment and which may benefit the Company. All
material facts regarding such opportunities must be promptly reported to the
Board for consideration.
4. TERMINATION OF EMPLOYMENT.
4.1. During the Initial Term or Renewal Term, the Employee's employment
may be terminated by the Board on the occurrence of any one or more of the
following events without liability for the payment of any severance payments as
set forth in Section 8 hereof.
(a) The death of the Employee; in which event the Employee's salary
and benefits owing to the Employee at the date of the Employee's death shall be
paid to his estate. the Employee's estate will not be entitled to any other
compensation under this Agreement; or
(b) The Disability (as defined in Section 4.2 below) of the
Employee; subject to the provision of Section 4.2 below; or
(c) Termination of the Employee for "cause", which shall mean any of
the following: (i) the intentional failure by the Employee to perform his duties
hereunder for reasons other than death or disability in the discretion of the
Board; or (ii) if the Employee is convicted or enters a plea of nolo contendo to
a misdemeanor involving fraud, perjury or embezzlement, or any felony; or (iii)
if the Employee engaged in fraud, misappropriation of funds, disloyalty,
dishonesty, breach of fiduciary duty or embezzlement with respect to the Company
and/or its assets; (iv) gross negligence in the performance of duties; or (vi) a
material violation of Section 7.2. In the event that the Employee is terminated
for cause as defined in Section 4.1(c) all benefits and entitlements shall cease
immediately and only such benefits that have previously vested shall be paid.
Notwithstanding termination of employment, the Employee's obligations under
Sections 6 and 7 shall continue pursuant to the terms and conditions of this
Employment Agreement.
4.2. If the Employee becomes mentally or physically disabled for a
period of three (3) consecutive months such that he is not able to perform his
duties substantially as contemplated herein ("Disability"), the Company's
obligations to pay the Base Salary and the Bonus, if any, shall cease from and
after the last day of such three (3) month period and shall not be resumed
unless and until the Employee has returned to his duties on a full time basis
for a period of two (2) consecutive months. During such two (2) month period,
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the Employee shall be paid at the rates of Base Salary and Bonus, if any, which
would then have been prevailing hereunder had he not become so disabled. The
Employee shall, as a result of any physical or mental disability, become unable
to perform substantially all of the duties customarily performed by him for a
continuous period of ninety (90) days, the Board, at its option, may terminate
the Employee's employment with the Company and the Company's obligation
hereunder to pay the Base Salary and Bonus, if any, will continue for six (6)
months following termination. The Company shall have no further obligation or
liability to the Employee. However, the Employee's obligations under Sections 6
and 7 shall continue pursuant to the terms and conditions of this Employment
Agreement. Disability shall be deemed to have become permanent when, as a result
of the injury or illness, the Employee becomes wholly and continuously disabled
and is thus unable to perform the material and substantial duties of his
employment as set forth in Section 3 above.
5. REIMBURSEMENT OF EXPENSES.
The Company shall reimburse the Employee for all reasonable expenses
incurred in connection with the promotion of the business of the Company,
including expenses for travel, entertainment and similar expenses incurred by
the Employee on the Company's behalf. No such reimbursement shall be made except
upon the presentation by the Employee of an itemized account of such expenses or
other evidence thereof for which reimbursement then is being sought, all in form
reasonably satisfactory to the Board.
6. DISCLOSURE OF INFORMATION AND COMPANY PROPERTY.
All memoranda, notes, correspondence, records, lists, files,
communications (electronic and written), or other documents made or compiled by
the Employee or made available to him during the course of his employment with
the Company concerning the business of the Company is considered the Company's
property and not the property of the Employee. Said property shall be delivered
to the Company by the Employee on the termination of the Employee's employment.
The Employee further represents that he will not copy, nor cause to be copied,
print out, nor cause to be printed out any documents, software or other
materials originating with or belonging to the Company. The Employee
additionally represents that on termination of his employment with the Company
he will not retain, nor dispose of, any such property.
7. RESTRICTIVE COVENANTS AND NON-COMPETITION AGREEMENTS.
7.1. The Employee acknowledges that his position with the Company is
fiduciary, special, unique and intellectual in character and his position with
the Company will place him in a position of confidence and trust with employees
and clients of the Company.
7.2. NON-COMPETITION. The Employee acknowledges and recognizes the
highly competitive nature of the Company's business and accordingly agrees that
during the Initial Term and Renewal Term of this Employment Agreement as defined
in Section 1, and for a period of one (1) year thereafter (the "Non-Compete
Period") the Employee will not directly or indirectly (i) whether as director,
officer, consultant, principal, employee, agent, lender, stockholder or
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otherwise, engage in or contribute the Employee's knowledge and/or abilities to
any business or entity in competition with the Company; or (ii) employ or
attempt to employ or assist anyone in employing any person who is an employee of
the Company or was an employee of the Company at any time during the period
commencing two (2) years from the Employee's termination; or (iii) attempt in
any manner to solicit from any client business of the type performed by the
Company or persuade any client of the Company to cease doing business or reduce
the amount of business that such client has customarily done with the Company;
or (iv) solicit, entice or induce, whether individually or in concert with
others any manufacturer and/or supplier whose products are distributed by the
Company to act as manufacturer or supplier for any other party of the same or
similar goods that it supplies to the Company. If the Employee is terminated for
any reason other than the reasons set forth in Section 4.1(c), the provisions
contained within this Section 7.2 shall also terminate.
7.3. CONFIDENTIALITY. The Employee acknowledges that he will have
access to certain proprietary and confidential information of the Company.
Unless authorized by the Company, at no time shall the Employee use for himself
or others or divulge to others, any proprietary or confidential information of
the Company obtained by him as a result of his employment during the Initial
Term, Renewal Term or thereafter. For purposes of this Section, the term
"proprietary or confidential" information: shall mean all information which (i)
is known only to the Employee or to the Employee and other employees, former
employees, consultants of the Company, or others in a confidential relationship
with the Company, (ii) relates to specific matters such as trade secrets,
customers and client lists, potential customers, vendor lists, pricing and
credit techniques, research and development activities, books and records, and
commission schedules, contemplated new products and services, and sales
projections, creative, marketing and advertising campaigns, commission schedules
and financial information of the Company, as they may exist from time to time,
which the Employee may have acquired or obtained by virtue of work heretofore or
hereafter performed for or on behalf of the Company, or which he may acquire or
may have acquired knowledge of during the performance of such work, and (iii) is
not readily available to others.
7.4. ENFORCEMENT.
(a) The Employee agrees that the restrictions set forth in this
Section 7 are reasonable and necessary to protect the interests and goodwill of
the Company. If any of the covenants set forth herein are deemed to be invalid
or unenforceable based upon the duration or otherwise, the parties agree that
such provision(s) shall be modified to make them enforceable to the fullest
extent permitted by law.
(b) In the event of a breach or threatened breach by the Employee of
the provisions set forth in this Section 7, the Employee acknowledges that the
Company will be irreparably harmed and that monetary damages shall be an
insufficient remedy to the Company. Therefore, the Employee consents to
enforcement by means of temporary or permanent injunction restraining the
Employee from violating or breaching any of the provisions of this Section 7,
including, but not limited to, disclosing in whole or in part the aforementioned
proprietary or confidential information of the Company or from rendering any
services to any person, firm, corporation, association or other entity to whom
or to which such proprietary or confidential information in whole or in part has
been disclosed or is threatened to be disclosed, and from competing with the
Company in violation of this Section 7.2, and consents to such other appropriate
equitable relief in any competent court in addition to any other remedies the
Company may have under this Employment Agreement or otherwise, including
recovery of damages from the Employee.
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8. SEVERANCE PAYMENTS.
If the Company terminates the Employee's employment hereunder for any
reason other than a reason set forth in Section 4 hereof, in exchange for a
release of all claims against the Company, the Employee shall be entitled to
severance payments equal to two (2) year of the current Base Salary, paid over
two (2) years, in accordance with the Company's regular salary payment
intervals.
9. NOTICES.
Any notices required or permitted to be given under the provisions of
this Employment Agreement shall be in writing: (i) delivered personally; or (ii)
sent by recognized overnight courier, or (iii) mailed by certified or registered
mail, return receipt requested and postage prepaid, to the persons and at the
addresses first set forth above, or to such other person at such other address
as the party may request by notice in writing sent by recognized overnight
courier or by certified or registered mail, return receipt requested and postage
prepaid, to the other party to this Employment Agreement. Notices which are hand
delivered or delivered by recognized overnight courier shall be effective upon
delivery. Notices which are mailed shall be effective upon the third business
day after mailing.
10. CONSTRUCTION.
This Employment Agreement shall be construed in accordance with, and be
governed by, the laws of the State of New Jersey.
11. SUCCESSORS AND ASSIGNS.
This Employment Agreement shall be binding on the successors and
assigns of the Company and shall inure to the benefit and be enforceable by and
against its successors and assigns. This Employment Agreement is personal in
nature and may not be assigned or transferred by the Employee without the prior
written consent of the Company.
12. ENTIRE AGREEMENT.
This Employment Agreement contains the entire understanding and
agreement between the parties relating to this subject matter hereof, and
neither this Employment Agreement nor any provision hereof may be waived,
modified, amended, changed, discharged, or terminated, except by an agreement in
writing signed by both parties.
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13. COUNTERPARTS.
This Employment Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, and all of which
counterparts shall together constitute a single agreement.
14. ILLEGALITY.
In case any one or more of the provisions of this Employment Agreement
shall be invalid, illegal, or unenforceable in any respect, the validity, the
legality, and enforceablility of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
15. ARBITRATION.
Any disputes arising under this Employment Agreement shall be subject
to arbitration under the rules of the American Arbitration Association, brought
in New Jersey, each side to bear their own fees, costs and disbursements. Any
award issued by the arbitrator is to be enforced by the Courts of the State of
New Jersey, venue Middlesex County, to the exclusion of all other rules and
procedures of any other jurisdiction.
16. CAPTIONS.
The captions of the sections hereof are for convenience only and shall
not control or affect the meaning or construction of any of the terms or
provisions of this Employment Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NECI ACQUISITION, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: /s/Xxxxxx Xxxxxxx
Its: /s/Vice President
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XXXXXX XXXXXXX
Dated: this /s/20th day of /s/September 2004
Witness: /s/Illegible
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