EXHIBIT 5
Form of Employment Agreement
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EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this 15th day of October, 1998 (the "Agreement"), by
and between SMD Group Inc., a Delaware corporation ("Employer"), and
____________ ("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee and Employee desires to be
employed by Employer as ____________________________ of
Employer; and
WHEREAS, Employer recognizes the need of the knowledge, talents and assistance
of Employee and desires to enter into this Agreement to secure the foregoing.
NOW, THEREFORE, in consideration of the promises herein contained, the parties
covenant and agree as follows:
1. EMPLOYMENT. Employer agrees to employ Employee and Employee agrees to be
employed by Employer and to perform work as determined by Employer, as
_____________________ of Employer, on the terms and conditions set forth in this
Agreement. This Agreement shall be effective as of the date mutually agreed to
in writing by both parties (the "Effective Date") but in no event shall it be
more than two weeks following the date on which the Employer receives more than
$500,000 of gross investment capital.
2. COMPENSATION. Employer agrees to employ Employee at the base rate of
compensation of ______________ thousand and No/Dollars ($__,000.00) per year.
Compensation is to be paid twice per month. Compensation is to be reviewed by
the Compensation Committee on an annual basis.
In addition to the base compensation, Employer agrees to pay or provide Employee
with the following:
A. Expenses. Reimbursement for reasonable expenses actually
incurred by Employee in the furtherance of Employer's business,
including, but not limited to, telephone calls (including
business related calls on Employee's cellular phone and business
related long distance calls), entertainment, attendance at
conferences, conventions and institutes, provided proper
itemization of said expenses is furnished to Employer by Employee.
All such expenditures shall be subject to the reasonable
control of Employer.
B. Medical and Disability Benefits. Employee and his spouse shall be
entitled to participate in Employer's medical program,
Employer-paid disability and other benefit programs as other
executives of Employer are entitled to participate in, as is in
place from time to time. If Employee desires to include any
family members other than his spouse in the medical plan,
Employee shall be responsible for all additional costs.
C. Additional Benefits. Employee shall be entitled to participate
in and receive such additional benefits as Employer shall
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from time to time make available to its executive employees including,
without limitation, profit sharing, stock purchase,
stock option and other incentive plans.
D. Preferred Stock, Class C. Pursuant to the "Agreement of
Purchase and Sale" dated October 15, 1998, employee shall be
entitled to receive 50,000 Preferred Stock, Class C which may, under
certain conditions (to be detailed within the
"Certificate of Designation of Rights and Preferences" and
"Irrevocable Voting Trust" agreements), be converted into 500,000
shares of Common Stock.
E. Bonus. Employee shall be entitled to receive cash or stock option
bonuses for exceeding pre-tax profit targets set by the
business plan of October 1998. The amount of bonus shall be
determined by the Compensation Committee.
3. DUTIES. Employee agrees to perform work as determined by the Board of
Directors, subject to the direction of Employer and agrees to subject himself at
all times during the Term (as hereinafter defined) to the direction and control
of Employer in respect to the work to be performed. Employee shall devote his
full business time and attention to the furtherance of Employer's best
interests. In that regard, and as further consideration for this Agreement,
Employee agrees to comply with, and abide by, such rules and directives of
Employer as may be reasonably established from time to time, and recognizes the
right of Employer, in its reasonable discretion, to change, modify or adopt new
policies and practices affecting the employment relationship, not inconsistent
with this Agreement, as deemed appropriate by Employer. During the term of
Employee's employment, Employee will not undertake any new business ventures,
partnerships, consulting arrangements or other enterprise or business other than
those on behalf of Employer, without Employer's prior written consent.
4. WORKING FACILITIES. Employee shall be furnished with office space,
secretarial services, and such other facilities and services suitable to
Employee's position and adequate for the performance of Employee's duties.
5. AGENCY. Employee shall have no authority to enter into any
contracts binding upon Employer, except as authorized in
writing, in advance, by Employer.
6. TERM OF EMPLOYMENT; SEVERANCE.
A. Employee's employment hereunder shall commence as of the
Effective Date hereof and continue for a period of two (2)
years thereafter (the "Term").
B. Anything herein to the contrary notwithstanding,
Employee's employment hereunder may be terminated at any time and
for any reason by either party upon not less than one hundred twenty
(120) days' prior written notice to the other party. It
is understood and acknowledged that Employer shall have the right
to effectuate such termination at will, with or without
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Reasonable Cause (as hereinafter defined). Any such termination
shall be effective as of the end of such one hundred twenty
(120) day period (the "Final Date").
C. If Employee's employment hereunder shall be terminated by
Employer without Reasonable Cause pursuant to paragraph
6.B. or because of Employee's disability, as determined by
Employer in good faith, then Employee shall be entitled to (i)
severance compensation equal to Employee's then-current base
salary and benefits (which for purposes hereof shall include
all compensation payable hereunder, of any type) for a period
equal to the Severance Period (as defined below). Such
severance compensation payments consisting of cash shall be paid
in a lump sum plus any outstanding benefits and allocated
bonuses on or before the Final Date. The severance compensation
are intended to be in lieu of all other payments to which
Employee might otherwise be entitled in respect of termination
of Employee's employment without Reasonable Cause or in
respect of any action by Employer constituting Good Reason for
voluntary termination.
D. If Employee's employment hereunder shall be terminated
for Reasonable Cause pursuant to paragraph 6.C., or if
Employee voluntarily terminates Employee's employment without Good
Reason, Employee shall be entitled to receive Employee's
base salary as accrued through the effective date of such
termination, but shall not be entitled to any Severance Benefits
or other amounts in respect of such termination.
E. "Reasonable Cause," as used herein, shall mean
Employee's involvement in any action or inaction involving fraud
resulting in a personal benefit in excess of any payments to which
Employee is entitled hereunder, dishonesty, or material
violation of Corporation policy and procedures. Employee shall
vacate the offices of Employer on such effective date.
F. "Good Reason," as used herein, means the occurrence of any
of the following events without Employee's consent:
i. a material diminution in Employee's duties and
responsibilities;
ii. a reduction in Employee's base salary;
iii. a forced relocation; or
iv. a Change of Control (as defined below) if
Successor Employer (as defined in paragraph H below) fails to
assume this Agreement in its entirety.
G. "Severance Period," as used herein, means the lesser of
(i) twelve months (12) months or (ii) the remaining time of
the Term.
H. "Change of Control" means a sale outside the ordinary
course of business of more than fifty percent (50%) of the
assets of or equity interests in Employer to any person or entity.
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7. COMPLIANCE WITH LAWS. Employee will comply with all federal and state laws,
rules and regulations relating to any of Employee's responsibilities and duties
with Employer and will not violate any such laws, rules and regulations.
8. COVENANT NOT TO COMPETE. Employee agrees to conform to the following
concerning non-competition.
A. Employer undertakes to train Employee and to give
Employee confidential information and knowledge about Employer's
business policies, accounts procedures and methods. For the
purposes of this Agreement, the term "confidential information"
shall include but is not limited to any list of suppliers,
customers, investors, stockholders, including their names,
addresses, phone numbers, amount of investments and similar
information. In addition, any operational information of
Employer, including but not limited to information on Employer's
methods of conducting business, profits and/or losses of
Employer, marketing material and any information that would reasonably
be considered proprietary or confidential in nature.
Employer has established a valuable and extensive trade in its
products and services, which business has been developed at a
considerable expense to Employer. The nature of the business is
such that the relationship of its customers with Employer
must be maintained through the close personal contact of its
employees.
B. Employee desires to enter into or continue in the employ
of Employer and by virtue of such employment by Employer,
Employee will become familiar with the manner, methods, secrets and
confidential information pertaining to such business.
During the Term, Employee will continue to receive
additional confidential information of the same kind. Through
representatives of Employer, Employee will become personally
acquainted with the business of Employer and its methods of
operation.
C. In consideration of the employment or continued employment
of Employee as herein provided, the training of Employee
by Employer, and the disclosure by Employer to employee of the
knowledge and confidential information described above,
Employer requests and Employee makes the covenants hereinafter set
forth. Employee understands and acknowledges that such
covenants are required for the fair and reasonable protection of
the business of Employer carried on in the area to which
the covenants are applicable and that without the limited
restrictions on Employee's activities imposed by the covenants,
the business of Employer would suffer irreparable and
immeasurable damage. The covenants on the part of Employee shall be
construed as an agreement independent of any other provision of
this Agreement, and existence of any claim or course of
action whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by Employer of
the covenants.
D. Employee agrees that during the term of Employee's
employment and for the period of twelve (12) months immediately
following the termination of employment (which said time period
shall be increased by any time during which Employee is in
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violation of this Agreement) Employee will not, within the
territory hereinafter defined, directly or indirectly, for
Employee, or on behalf of others, as an individual on Employee's
own account, or as an employee, agent, or representative
for any other person, partnership, firm or corporation:
i. Compete with the business of Employer by engaging
or participating in or furnishing aid or assistance in
competition with the business of Employer.
ii. Engage, in any capacity, directly or
indirectly, in or be employed by any business similar to the kind or
nature of business conducted by Employer during the
employment.
iii. For the purposes of this paragraph 8, the
business of Employer shall be limited to the (1) Internet based
music magazine business, (2) CD player software business, (3)
and (3) any business that the Employer enters into
during the Term.
E. The territory referred to in this paragraph 8 shall be the
entire World.
F. Each restrictive covenant is separate and distinct from
any other covenant set forth in this paragraph. In the
event of the invalidity of any covenant, the remaining obligation
shall be deemed independent and divisible. The parties
agree that the territory set forth is reasonable and necessary
for the protection of Employer. In the event any term or
condition is deemed to be too broad or unenforceable, said
provision shall be deemed reduced in scope to the extent
necessary to make said provision enforceable and binding.
G. The provisions of this paragraph 8 shall not apply if
Employee's employment is terminated by Employer without
Reasonable Cause or by Employee for Good Reason.
9. INDUCING EMPLOYEE OF EMPLOYER TO LEAVE. Any attempt on the part of Employee
to induce others to leave Employer's employ or any efforts by Employee to
interfere with Employer's relationship with other employees would be harmful and
damaging to Employer. Employee expressly agrees that during the term of
Employee's employment and for a period of twelve (12) months thereafter
(provided said time period shall be increased by any time during which Employee
is in violation of this Agreement), Employee will not in any way directly or
indirectly:
A. Induce or attempt to induce an employee to sever his or her
employment with Employer;
B. Interfere with or disrupt Employer's relationship with
other employees; and
C. Solicit, entice, take away or employ any person employed with
Employer, excluding people Employee brings to Employer.
10. CONFIDENTIAL INFORMATION. It is understood between the parties hereto that
during the term of employment, Employee will be dealing with confidential
information, as defined above, which is Employer's property, used in the course
of its business. Employee will not disclose to anyone, directly or indirectly,
any of such confidential information or use such information other than in the
course of Employee's employment. All documents that Employee prepares, or
confidential information that might be given to Employee in the course of
employment, are the exclusive property of Employer and shall remain in
Employer's possession on the premises. Under no circumstances shall any such
information or documents be removed without Employer's written consent first
being obtained.
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11. RETURN OF EMPLOYER'S PROPERTY. On termination of employment, regardless of
how termination is effected, or whenever requested by Employer, Employee shall
immediately return to Employer all of Employer's property used by Employee
rendering services hereunder or otherwise that is in Employee's possession or
under Employee's control.
12. VACATION. Employee shall be entitled to a vacation period of four (4) weeks
per calendar year. The vacation shall be taken by Employee at such time during
the year and for such period as reasonable. All vacations should be taken in the
year earned. No vacations may be accrued without written permission of the Board
of Directors.
13. REFERENCES. Employer agrees that, upon termination of this Agreement, it
will, upon written request of Employee, furnish references to third parties,
including prospective employers, regarding Employee. However, Employee
acknowledges that it is Employer's policy to confirm employment only and not to
release any additional information without a written release from Employee.
14. NOTICES. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be deemed to have been delivered on
the date personally delivered or the date mailed, postage prepaid by certified
mail, return receipt requested, or faxed and confirmed, if addressed to the
respective parties as follows:
If to Employer: SMD Group, Inc.
Bedford Towers
000 Xxxxxxx Xxxxxx, Xxxxx 0x
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Board of Directors
If to Employee: _______________
=========================
Either party may change its address for the purpose of receiving notices,
demands, and other communications by giving written notice to the other party of
the change.
15. VOLUNTARY AGREEMENT. Employee represents that he has not been pressured,
misled or induced to enter this Agreement based upon any representation by
Employer not contained herein.
16. PROVISIONS TO SURVIVE. The parties hereto acknowledge that many of the terms
and conditions of this Agreement are intended to survive the employment
relationship. Therefore, any terms and conditions that are intended by the
nature of the promises or representations to survive the termination of
employment shall survive the term of employment regardless of whether such
provision is expressly stated as so surviving.
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17. MERGER. This Agreement represents the entire Agreement between the parties
and shall not be subject to modification or amendment by any oral
representation, or any written statement by either party, except for a dated
written amendment to this Agreement signed by Employee and an authorized officer
of Employer.
18. VENUE AND APPLICABLE LAW. This Agreement shall be enforced and construed in
accordance with the laws of the State of Delaware, and venue for any action or
arbitration under this Agreement shall be Kent County, Delaware.
19. SUBSIDIARIES AND AFFILIATED ENTITIES. Employee acknowledges and agrees that
Employer has or may have various subsidiaries and affiliated entities. In
rendering services to Employer, Employee will have considerable contact with
such subsidiaries and affiliates. Therefore, Employee agrees that all provisions
of paragraphs 7, 8, 9 and 10 shall apply to all such subsidiaries and
affiliates.
20. PERSONNEL INFORMATION. Employee shall not divulge or discuss personnel
information such as salaries, bonuses, commissions and benefits relating to
Employee or other employees of Employer or any of its subsidiaries with any
other person except the Executive Committee and the Board of Directors of
Employer.
21. ASSIGNMENT. This Agreement shall not be assignable by either party without
the written consent of the other party; provided, however, that this Agreement
shall be assignable to any corporation or entity which purchases the assets of
or succeeds to the business of Employer (a "Successor Employer"). Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, personal representatives, successors
and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Employer
SMD Group, Inc.
By: ___________________
Xxxx Xxxxxxxx
Title: President and CEO
Employee
----------------
Employee Name
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