EMPLOYMENT AGREEMENT
AGREEMENT made and entered into as of the 1st day of July, 1997 between
CABLE & CO. WORLDWIDE, INC., a Delaware corporation (the "Corporation" or "Cable
& Co.") having an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
XXXX XXXXXXX (the "Executive"), residing at 000 Xxxxxxx Xxxxx, Xxxxxxxxx 000,
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Executive is presently employed by the Corporation; and
WHEREAS, the Corporation recognizes the effort, attention and skill
Executive has
given the organization, operation and planning of the Corporation and desires to
enter into this employment agreement with Executive.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree with each other as follows:
1. Employment. The Corporation agrees to and does hereby employ
Executive, and Executive agrees to and does hereby accept employment by the
Corporation, as the President and Chief Executive Officer of the Corporation,
subject to the supervision and direction of its Board of Directors, for the five
(5) year period commencing on July 1, 1997, and ending at midnight on the 30th
day of June, 2002 (the "Term"). The Terms shall be automatically renewed on an
annual basis (each such annual period, a "Renewal Year") unless this Agreement
is terminated in writing (the "Notice of Nonrenewal") not less than ninety (90)
days prior to the expiration of the Term or any Renewal Year, unless otherwise
terminated pursuant to the
provisions of this Agreement.
2. Duties of Executive. Executive shall devote such time, attention and
energy to the affairs of Corporation as shall be reasonably required to perform
his duties hereunder, and, in pursuance of the policies and directions of the
Board of Directors, Executive shall perform such duties as may be assigned to
him from time to time by the Board of Directors and use his best efforts to
promote the business and affairs of the Corporation.
3. Base Compensation. In consideration of the Executive's services
pursuant to this Agreement, Corporation shall pay to Executive, during the
period of Executive's employment under this Agreement (the "Base Compensation"),
(i) a salary at the rate of Two Hundred Thousand ($200,000) dollars per year
during the first year of this Agreement; and (ii) in each year after first year
of the operation of this Agreement, annual compensation to be determined by the
Board of Directors, but in no event less than $200,000. The Base Compensation
shall be payable in equal installments, in accordance with the Corporation's
customary procedures for executive employees, subject to applicable tax and
payroll deductions. The Board of Directors of the Corporation may increase
Executive's Base Compensation at such time or times and in such amount or
amounts as it may in its sole discretion determine.
4. Incentive Compensation. Provided Executive has duly performed his
obligations pursuant to this Agreement, Executive shall be eligible to receive,
as additional compensation for the services to be rendered by Executive under
this Agreement, incentive compensation. The amount and frequency of such
incentive compensation, if any, shall be determined by the Board of Directors in
its sole discretion based on the profitability of the Corporation and the
Executive's performance and contributions to the Corporation's success.
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5. Other Benefits. During the term of this Agreement the Executive shall
be entitled to participate in any benefit plans adopted by the Corporation for
the general and overall benefit of all employees and/or for key executives of
the Corporation such as health care, life insurance, disability, stock option
plans, legal and financial planning services, pension, profit sharing and
savings.
6. Vacation. Executive shall be entitled to a fully paid vacation of
four (4) weeks per calendar year, which vacation shall be scheduled at such time
or times as the Corporation in consultation with Executive may reasonably
determine.
7. Expenses. (a) The Corporation shall pay or reimburse Executive for
all reasonable and necessary expenses incurred by him in connection with his
duties hereunder, upon submission by Executive to the Corporation of such
reasonable evidence of such expenses as the Corporation may require.
(b) Throughout the term of this Agreement, the Corporation will
provide Executive with the use of a vehicle of a class equivalent to that
currently utilized by the Executive for purposes within the scope of his
employment with Corporation and shall pay all expenses for fuel, maintenance,
and insurance in connection with such use of the automobile. Such expense shall
be accounted for in the travel and entertainment budget of the Corporation.
8. Insurance. The Corporation may from time to time apply for policies
of life, health and accident insurance or disability insurance upon the
Executive in such amounts as the Corporation deems appropriate. The Executive
agrees to aid the Corporation in procuring such insurance, including submitting
to a physical examination, if required, and completing any and all forms
required for application for any insurance policy.
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9. Confidential Information. The Executive acknowledges that, during the
term of his employment by the Corporation, he may have access to certain
confidential information of the Corporation, including without limitation
information about business plans, customers, manufacturers, suppliers, sourcing,
costs, profits, markets, sales, products, product design, key personnel, pricing
policies, operational methods, reports on the results of research and
development work conducted by or on behalf of the Corporation, other business
affairs and methods and other information not available to the public or in the
public domain (hereinafter referred to as "Confidential Information"). The
Executive covenants and agrees that he will (i) keep secret all Confidential
Information of the Corporation and will not, directly or indirectly, while such
Confidential Information remains confidential, disclose or disseminate to
anyone, or make use of such Confidential Information for any purpose other than
for the advancement of the Corporation's business; and (ii) upon the termination
of his employment at the Corporation, promptly deliver to the Corporation all
tangible materials and objects containing Confidential Information (including
all copies thereof, whether prepared by the Executive or others) which he may
possess or have under his control.
10. Industrial Property Rights. (a) The Executive shall promptly
disclose to the Corporation in writing, any and all charts, layouts, maps,
inventions, improvements, techniques, markets, sales and advertising plans,
processes, concepts and plans, whether or not copyrightable or patentable,
secret processes and "know-how," conceived by the Executive during the term of
his employment by the Corporation (the "Executive's Work Product"), whether
alone or with others and whether during regular working hours and through the
use of facilities and property of the Corporation or otherwise, which directly
relates to the present business of the
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Corporation. Upon the Corporation's request at any time or from time to time
during the Term of the Executive's employment, the Executive shall (i) deliver
to the Corporation copies of the Executive's Work Product that may be in his
possession or otherwise available to him, and (ii) execute and deliver to the
Corporation such applications, assignments and other documents as it may
reasonably require in order to apply for and obtain copyrights or patents in the
United States of America and other countries with respect to any Executive's
Work Product that it deems to be copyrightable or patentable, and/or otherwise
to vest in itself full title thereto.
(b) All documents that pertain to the Corporation, including but
not limited to the Executive's Work Product, shall be the sole and exclusive
property of the Corporation. Upon the termination of the Executive's employment,
all such documents that may be in his possession or otherwise available to him
or shall thereafter come into his possession or control shall be promptly
returned to the Corporation without the necessity of a request therefor.
11. Non-Competition Covenant. (a) The Executive shall not, during his
employment by the Corporation, engage, directly or indirectly, in any business
competitive with the business of the Corporation without the consent of the
Board of Directors.
(b) For a period of two years after the termination of the
Executive's employment hereunder (the "Non-Competition Period"), either by the
Corporation for "cause" or voluntarily by the Executive, the Executive shall not
(i) engage, directly or indirectly, in any business throughout the United States
(the "Territory") that is directly competitive with the business of the
Corporation without the permission of the Board of Directors, which permission
shall not be unreasonably withheld or delayed or (ii) induce or actively attempt
to influence any other employee or consultant of the Corporation to terminate
his or her employment or
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consultancy with the Corporation. Nothing herein contained shall be deemed to
prevent ownership by Executive and his associates (as said term is defined in
regulation 14(A) promulgated under the Securities Exchange Act of 1934 as in
effect on the date hereof), collectively, of not more than 5% of the outstanding
capital stock of a corporation listed on a national securities exchange.
(c) (i) The parties to this Agreement consider the restrictions
contained herein reasonable as to the duration of the Non-Competition Period and
the extent of the Territory. However, if the duration of the Non-Competition
Period or the extent of the Territory herein specified should be judged
unreasonable by any Court or arbitration proceeding, the validity and effect of
the remaining provisions of this Agreement shall not be affected thereby and,
the duration of the Non-Competition Period shall be reduced by such number of
months and/or the area of the Territory shall be reduced such that, the
Territory and the Non-Competition Period shall be deemed reasonable so that the
foregoing covenant not to compete may be enforced .
(ii) Executive agrees and recognizes that in the event of a
breach or threatened breach by Executive of the provisions of the restrictive
covenant contained in this Section 11, the Corporation may suffer irreparable
harm, and that money damages may not be an adequate remedy. Therefore, the
Corporation shall be entitled as a matter of right to specific performance of
the covenants of Executive contained herein by way of temporary or permanent
injunctive relief in a Court of competent jurisdiction.
12. Termination. (a) Survival - The provisions of Sections 9, 10, 11,
and 12 shall survive the termination of this Agreement.
(b) Termination by Executive - Except as otherwise provided in
Section 15,
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at any time during the Term (whether or not Executive has received a Notice of
Nonrenewal), Executive elects to terminate his employment with the Corporation,
then the Corporation's obligations to Executive under this Agreement shall be
limited to the Base Compensation and benefits earned up to the date of
Executive's departure. If such termination is as a result of changes in the
character and philosophy of the Board of Directors resulting in the Executive's
inability to direct the Corporation and effectuate his policies, the Executive
shall receive compensation as if the Executive was terminated under paragraph
12(c) as termination without cause.
(c) Termination Without Cause - (i) In the event that the
Corporation dismisses Executive without Cause from employment as President and
Chief Executive Officer, then the Corporation shall continue to fulfill its
obligations under this Agreement for the later of two and one-half (2 1/2) years
following Executive's dismissal whether or not the Executive secures other
employment during or subsequent to such payment or June 30, 2002. The amount to
be paid to the Executive during such period shall the Executive Base
Compensation determine in the accordance with Section 3.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Corporation, in its sole and absolute discretion, may accelerate
the payment of any amounts payable under Section 12(c) hereof to Executive,
provided, however, that accelerating such payments does not affect Executive's
eligibility to continue his insurance benefits on the same basis (both with
respect to coverage and contributions) as the Corporation's active employees
until such time as he would have received the last amount payable under Section
12(c) hereof had payment thereof not been accelerated pursuant to this Section
12(c)(ii).
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(d) Termination for "Cause" - The Board of Directors shall have
the right to terminate the employment of the Executive for Cause if he (i)
commits a felony or any criminal act involving moral turpitude which results in
arrest or indictment; (2) deliberately and continually refuses to perform
employment duties reasonably requested by the Board of Directors; (3) commits
fraud or embezzlement, as determined by the Board of Directors in accordance
with procedures it deems reasonable; or (4) if his work for the Corporation
evidences gross misconduct or gross negligence. In the event the Executive is
terminated for Cause he shall be entitled only to such Executive Base
Compensation as he may have earned up to the date of his termination and shall
receive no bonus, severance payment or other benefit provided herein.
(e) Death or Disability - (i) If Executive dies or becomes
disabled, this Agreement shall terminate effective at the end of the calendar
month during which his death occurs or when his disability is determined,
provided, however, that such termination shall not result in the loss of any
benefit or rights which Executive may have accrued through the date of his death
or disability. If Executive's employment is terminated prior to the expiration
of the Term due to his death or disability, the Corporation shall make severance
payments to Executive or his legal representatives on behalf of the Corporation,
equal to Executive's Base Compensation under Section 3 until the later of two
years or the end of the Term.
(ii) For the purposes of this paragraph, the definition of
"disability" shall be the same as that contained in any disability insurance
policy maintained by the Corporation for its employees in effect at the time of
the purported disability. In the event that there is no such definition of
"disability" in any such insurance policy, or the Corporation does
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not maintain such a disability insurance policy, then disability shall be
determined, in good faith by the Board of Directors of the Corporation. For such
purposes "disability" shall mean that by reason of physical or mental inability,
due to illness, accident or mental or physical incapacity or infirmity,
continuing for more than six (6) consecutive months, the Executive has been
substantially unable to render service of the character contemplated by this
Agreement.
13. Effect of Waiver. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.
14. Notices. Any notice permitted, required, or given hereunder shall be
in writing and shall be personally delivered; or delivered by any prepaid
overnight courier delivery service then in general use; or mailed, registered or
certified mail, return receipt requested, to the addresses designated herein or
at such other address as may be designated by notice given hereunder:
If to : Xxxx Xxxxxxx
000 Xxxxxxx Xxxxx, Xxxxxxxxx 000
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
If to : Cable & Co. Worldwide, Inc.
Raritan Plaza
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxx Xxxxxx
With copy to: Lane & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Delivery shall be deemed made when actually delivered, or if mailed,
three days after delivery to a United States Post Office.
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15. Assignment. Executive shall not be entitled to assign his rights,
duties or obligations under this Agreement. This Agreement may not be assigned
by the Corporation, except as part of the sale of all or substantially all of
its business or assets; provided that the purchaser shall expressly assume all
obligations of the Corporation under this Agreement. Executive agrees that if
this Agreement is so assigned, all the terms and conditions of this Agreement
shall remain between such assignee and himself with the same force and effect as
if said Agreement had been made with such assignee in the first instance.
16. Amendments. The terms and provisions of this Agreement may be
amended or modified only by a written instrument executed by the party to be
charged by such amendment or modification.
17. Governing Law. The terms and provisions herein contained and all the
disputes or claims relating to this Agreement shall be governed by, interpreted
and construed in accordance with the internal laws of the State of New York,
without reference to its conflict of laws principles.
18. Arbitration. (a) In the event of a dispute between the parties
arising out of or relating to this Agreement, or the breach thereof, the parties
shall make every effort to amicably resolve, reconcile, and settle such dispute
between them. Should an amicable resolution not be possible, either party may
invoke arbitration.
(b) Subject to the provisions of Section 11(c)(ii) hereof, all
claims, disputes and other matters in controversy arising out of or related to
this Agreement or the performance or breach hereof, shall be decided by binding
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA Rules"), by a panel of
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three (3) arbitrators, in New York, New York. One (1) such arbitrator shall be
appointed by each of the parties within three (3) weeks after being requested by
the other party to make such appointment and the third arbitrator shall be
appointed by the two (2) arbitrators appointed by the parties. In the event that
a party does not appoint its arbitrator within such three (3) week period, or
the two (2) arbitrators appointed by the parties shall fail to agree on the
third arbitrator, such appointed arbitrator or arbitrators shall be appointed by
the American Arbitration Association in accordance with the AAA Rules. The award
shall state the facts and findings and shall be rendered with reasons in
writing. The arbitrators shall have no authority or power to alter or modify any
express condition or provision of this Agreement, or to render any award which
by its terms shall have the effect of altering or modifying any express
conditions or provisions of this Agreement. The award rendered by the
arbitrators shall be final and judgement may be entered upon it in any court
having jurisdiction thereof. The successful party to the arbitration shall be
entitled to an award for reasonable attorney's fees, as determined by the
arbitrators.
19. Captions. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
20. Merger and Severability. This Agreement shall constitute the entire
Agreement between the Corporation and Executive with respect to the subject
matter hereof. The invalidity or unenforceability of any provision hereof shall
in no way affect the validity or enforceability of any other provision.
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IN WITNESS WHEREOF, the parties hereto have affixed their signatures the
day and year first above written.
CABLE & CO. WORLDWIDE, INC.
By:
----------------------------
XXXX XXXXXXX
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Confidential Information. The Executive acknowledges that during the term of his
employment by the Corporation he may have access to certain confidential
information of the Company, including without limitation information about
business plans, customers, manufacturers, suppliers, sourcing, costs, profits,
markets, sales, products, product design, key personnel, pricing policies,
operational methods, reports on the results of research and development work
conducted by or on behalf of the Corporation, other business affairs and methods
and other information not available to the public or in the public domain
(hereinafter referred to as "Confidential Information"). The Executive covenants
and agrees that he will (i) keep secret all Confidential Information of the
Corporation and will not, directly or indirectly, while such Confidential
Information remains confidential, disclose or disseminate to anyone, or make use
of, for any purpose whatsoever, such Confidential Information; and (ii) upon the
termination of his employment at the Corporation, promptly deliver to the
Corporation all tangible materials and objects containing Confidential
Information (including all copies thereof, whether prepared by the Executive or
others) which he may possess or have under his control.
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