Contract
EXHIBIT
10.2
Form
of
Employment Agreement, dated as of August 1, 2008, by and among Audience Response
Systems, Inc., Campus Group Companies, Inc., iDNA, Inc. and Xxxxxx
Campus.
EXHIBIT
C
EMPLOYMENT
AGREEMENT
(this
“Agreement”),
effective as of August 1, 2008 (the “Effective
Date”),
by
and among XXXXXX
CAMPUS
(“Executive”),
AUDIENCE
RESPONSE SYSTEMS, INC.
(“ARSI”),
a New
York corporation and CAMPUS
GROUP COMPANIES, INC.
(“CGCI”),
a New
York corporation (ARSI
and
CGCI, “Employers”
and
each an “Employer”)
are
hereinafter sometimes referred to collectively as the “Parties”
and
each as a “Party.”
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants hereinafter set forth
and
other good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Employment
of Executive
Each
Employer hereby agrees to employ Executive, and Executive hereby agrees to
be
and remain in the employ of each Employer, upon the terms and conditions
hereinafter set forth.
2. Employment
Period; Employment Year
2.1 Employment
Period.
Subject
to earlier termination as provided in Section
5
hereof,
the term of Executive's employment under this Agreement shall commence as of
the
Effective Date and shall continue for a period (the “Initial
Employment Period”)
ending
on July 31, 2011. As used herein, “Employment
Period”
means
the Initial Employment Period plus any extension of the term of Executive's
employment under this Agreement that has been made as provided
above.
2.2 Employment
Year.
As used
herein, an “Employment
Year”
means
the period commencing on the date hereof and ending on July 31, 2009 and each
successive twelve month period commencing on August 1st
and
ending on the following July 31st.
2
3. Duties
and Responsibilities; Place of Performance
3.1. Duties
and Responsibilities.
During
the Employment Period, Executive shall have the titles of, and shall serve
as,
President of each of Employers and their subsidiaries, if any. During the
Employment Period, Executive shall devote all of his business time to Employers
and their subsidiaries (if any) and to his duties and responsibilities
hereunder. During the Employment Period, Executive shall perform such duties
and
obligations (not inconsistent with his positions as President of each of
Employers) as may be assigned to him from time to time by the Board of Directors
of any Employer (the “Board”)
or by
the Chairman or Chief Executive Officer of iDNA, Inc. (“iDNA”), parent to each
of the Employers. During the Employment Period, Executive shall (subject to
the
next following sentence) have authority and responsibility to manage all
day-to-day business and operations of each of Employers and their subsidiaries
(if any), including the hiring of all personnel. Notwithstanding anything
contained herein to the contrary, Executive shall not have authority or
responsibility, without the consent or approval of the Board of the relevant
Employer or the Chairman or Chief Executive Officer of iDNA, to cause any
Employer (or any subsidiary of any Employer) to take (or allow or permit any
Employer (or any subsidiary of any Employer) to take), and Executive shall
not
cause any Employer (or any subsidiary of any Employer) to take (or allow or
permit any Employer (or any subsidiary of any Employer) to take), any of the
following actions: (a) terminate or cease any business or line of business
of
any Employer (or such subsidiary) if such business or line of business has
generated revenues of at least fifty thousand dollars ($50,000) during the
preceding Fiscal Year (as hereinafter defined); (b) commence any new business
or
line of business or acquire any new business or line of business from any Person
(as hereinafter defined); (c) grant any security interest in, or lien on, any
of
the assets or property of any Employer (or such subsidiary), unless the
aggregate amount of all of the obligations secured by such grant and all prior
grants does not exceed $50,000; (d) sell, transfer or otherwise dispose of
any
of the assets or property of any Employer (or such subsidiary) other than in
the
ordinary course of its business consistent with past practices (which shall,
to
the extent applicable, include the past practices of the relevant Campus
Companies); (e) loan or advance any funds; (f) guaranty or otherwise act as
a
surety with respect to any obligations of any other Person; (g) borrow any
funds
or money, unless the aggregate amount of all funds and money so borrowed,
inclusive of any funds or money previously borrowed, does not exceed $50,000;
(h) make or incur any expenditure (other than a capital expenditure) in excess
of one hundred thousand dollars ($100,000) unless such expenditure has been
incurred in order to enable an Employer (or such subsidiary) to fulfill its
obligation under a contract entered into by such Employer (or such subsidiary)
with a client or customer and such expenditure (I) is provided to be recovered
by such Employer (or such subsidiary) pursuant to such contract or (II) has
been
included in the pricing of such contract; (i) make or incur any capital
expenditure (including, without limitation, pursuant to any capitalized lease)
unless such capital expenditure (A) has been incurred in order to enable an
Employer (or such subsidiary) to fulfill its obligation under a contract entered
into by such Employer (or such subsidiary) with a client or customer and such
capital expenditure (I) is provided to be recovered by such Employer (or such
subsidiary) pursuant to such contract or (II) has been included in the pricing
of such contract or (B) (I) such capital expenditure, when aggregated with
all
other capital expenditures that have been made or incurred during the Fiscal
Year, does not exceed one-hundred thousand dollars ($100,000) and (II) such
capital expenditure is not made or incurred during or for any Fiscal Year if
the
Available Cash Flow (as hereinafter defined) for such Fiscal Year is or would
be
(whether or not after taking into consideration such capital expenditure) less
than one million dollars ($1,000,000); (j) enter into or make any contract,
agreement or other commitment that (i) would require payments during any
consecutive twelve-month period in excess of one hundred thousand dollars
($100,000) or
(ii)
have a term that is either (A) more than one (1) year or (B) extends beyond
the
end of the Employment Period; (k) enter into any contract with, or make any
commitment to, any affiliate of Executive; (l) hire any executive officer (or
otherwise retain a person to provide services normally provided by an executive
officer); or (m) grant to any employee any compensation package (including,
without limitation, any employee or fringe benefits) not consistent with such
Employer’s (or such subsidiary’s) customary past policies or practices as
approved by the Board of such Employer (or such subsidiary). If Executive shall
have made a request for authority and permission to do any of the things set
forth in the foregoing clauses (a) through (m) and shall not have received
consent or approval therefor from the Board of the relevant Employer or the
Chairman or Chief Executive Officer of iDNA, then, at Executive’s request, such
request shall be referred to the Board of Directors of iDNA for its
consideration and Executive shall be given an opportunity to convince such
Board
to grant such request. As used herein, “Person”
means
any individual, corporation, partnership, limited liability company, trust,
business trust, association or other entity, and “Fiscal
Year”
means
any twelve consecutive month period beginning August 1st
and
ending on the following July 31st.
3
3.2. Place
of Performance.
In
connection with his employment during the Employment Period, Executive shall
be
based in New York, New York or such other principal offices of an Employer
or
any of its subsidiaries (if any) as may be established in the future by the
respective Board, which principal offices shall not (without the written consent
of Executive, which consent shall not be unreasonably withheld or delayed)
be
moved more than twenty-five (25) miles (measured in a straight line and not
over
streets or roadways) from the location of the current offices in Bohemia or
New
York, New York; provided,
however,
that
the principal offices of any Employer (or any of its subsidiaries) may be moved
without Executive’s consent if the distance from Executive’s then primary
residence to the new location is not greater (measured in a straight line and
not over streets or roadways) than the distance from Executive’s then primary
residence to the then existing location of the principal offices of such
Employer (or any of its subsidiaries). Executive shall not be required, without
his consent, to undertake more extensive travel than the travel in which he
has
been engaged in connection with the prior business of any of
Employers.
4. Compensation
and Related Matters
4.1 Base
Salary.
Employers shall pay to Executive an aggregate base salary (the “Base
Salary”),
which
during the First Employment Year shall be at the rate of one hundred thousand
dollars ($100,000) per annum (the “Initial
Base Salary”).
The
Base Salary shall be paid to Executive in arrears in accordance with the
customary practices of iDNA as applied to its executive officers.
4.2 Discretionary
Bonus.
In
addition to his Base Salary and any performance bonus to which he may be
entitled pursuant to Section
4.2
hereof,
Executive shall be entitled to such bonuses (if any), in such amounts and at
such times, as the respective Boards, in their sole and absolute discretion,
may
approve.
4.3 Automobile
Allowance.
Employers shall provide Executive with an aggregate monthly allowance during
the
Employment Period of $1,250 to cover the costs of a leased automobile, including
maintenance, fuel and insurance.
4.4 Other
Benefits.
During
the Employment Period, to the extent Executive is eligible and qualifies under
their respective terms, Executive shall be entitled to receive such fringe
benefits as are from time to time hereafter generally provided by Employers
to
their senior management employees or other employees (other than those provided
under or pursuant to separately negotiated individual employment agreements
or
arrangements) under any pension or retirement plan, disability plan or
insurance, group life insurance, medical insurance, accidental death and
dismemberment insurance, travel accident insurance or other similar plan or
program of the respective Employer. Subject to Executive being eligible and
qualifying therefor, Employers shall, in a manner and amount consistent with
insurance generally provided by iDNA to its senior executive officers, provide
short-term and long-term disability insurance for Executive.
4
4.5 Expense
Reimbursement.
Employers shall reimburse Executive for all business expenses reasonably
incurred by him in the performance of his duties under this Agreement upon
his
presentation of signed, itemized accounts of such expenditures, all in
accordance with Employers’ Policies And Practices. As used herein, “Employers’
Policies and Practices”
means
the policies, procedures and practices of Employers, as approved by the Boards
of Employers and in effect from time to time, which policies, procedures and
practices are anticipated to be the same or substantially the same as the
corresponding policies and procedures applicable to iDNA’s senior
management.
4.6 Vacations. Executive
shall be entitled to twenty (20) days paid vacation for each Employment Year
during the Employment Period, in
accordance with Employers’ Policies and Practices. Executive shall also be
entitled to paid holidays and personal days in accordance with Employers’
Policies and Practices.
5. Termination
of Employment
5.1 Termination
Without Cause; Voluntary Termination by Executive.
Employers may, by written notice to Executive at any time following the end
of
the third Employment Year, terminate the Employment Period and this Agreement
without Cause (as defined below). Executive
may, by written notice to Employers and iDNA at any time during the Employment
Period, voluntarily resign from Employers and terminate the Employment Period
and
this
Agreement by
giving
written notice of his intention to do so at least ninety (90) days in advance.
A
termination under this Section
5.1
shall be
effective immediately or, in the case of such a voluntary resignation, upon
the
date set forth in such written notice.
5.2 By
Employers for Cause.
Employers may, at any time during the Employment Period, by written notice
to
Executive, terminate the Employment Period and this Agreement for Cause, which
termination shall be effective immediately except as otherwise provided
below.
Such
notice shall set forth in reasonable detail the basis for such termination.
In
the event that it is reasonably practical for Executive to cure or correct
the
circumstances set forth in such notice, the termination shall not be effective
until the date that is thirty (30) days following the date on which such notice
is given, and the circumstances set forth in the notice shall not constitute
“Cause” if within such 30 days Executive
cures or
corrects such circumstances. Employers shall have "Cause"
to
terminate Executive's employment hereunder upon Executive's:
(a) fraud,
embezzlement or any other illegal act committed intentionally by Executive
in
connection with Executive's duties as an executive of any Employer or any
subsidiary or affiliate of any Employer that causes or may reasonably be
expected to cause substantial economic injury to any Employer or any subsidiary
or affiliate of any Employer;
(b) conviction
of any felony that causes or may reasonably be expected to cause substantial
economic injury to any Employer or any subsidiary or affiliate of any
Employer;
(c) breach
or
violate any term or condition of this Agreement or of that certain Non-Competition
And Non-Solicitation Agreement, dated as of even date herewith, by and among
iDNA, Employers and Executive;
or
5
(d) willful
or grossly negligent commission of any other act or failure to act that causes
or may reasonably be expected (as of the time of such occurrence) to cause
substantial economic injury to or substantial injury to the reputation of
any
Employer
or any subsidiary or affiliate of any
Employer,
including, without limitation, any material violation of the Foreign Corrupt
Practices Act, as described below. An act or failure to act on the part of
Executive shall be considered “willful” if done, or omitted to be done, by
Executive in bad faith or without a reasonable belief that the act or omission
was in the best interest of Employers.
5.3 By
Executive for Good Reason.
Executive may, at any time during the Employment Period by written notice to
Employers and iDNA, terminate the Employment Period and this Agreement for
Good
Reason (as defined below), which termination shall be effective immediately
subject to the notice and cure period provided for below. For the purposes
hereof, “Good
Reason”
means
any of the following without Executive's consent: (A) subject to Section
3
above, a
material and adverse change in the nature and scope of Executive's authority
and
duties or (B) a material breach of this Agreement by Employers (including,
but
not limited to, failure to pay any amount due to Executive when due);
provided,
however,
that
the circumstances set forth in the foregoing clauses (A) and (B) will not
constitute Good Reason unless Executive shall have given Employers and iDNA
written notice of his election to terminate this Agreement for Good Reason
(which notice shall set forth in reasonable detail the circumstances giving
rise
to such election to terminate) and Employers shall have failed to cure or
correct such circumstances within thirty (30) days of their receipt of such
notice.
5.4 Disability.
During
the Employment Period, if, as a result of physical or mental incapacity or
infirmity, Executive shall be unable to perform any of his duties under this
Agreement for (i) a period of at least one hundred and twenty (120) consecutive
days or (ii) periods aggregating at least 180 days during any period of twelve
(12) consecutive months (each a “Disability
Period”),
and
at the end of the Disability Period there is no reasonable probability that
Executive can promptly resume his duties hereunder, Executive shall be deemed
disabled (the “Disability”)
and
Employers, by written notice to Executive, shall have the right to terminate
the
Employment Period and this Agreement for Disability either at, as of or after
the end of the Disability Period. The existence of the Disability shall be
determined by a reputable, licensed physician. The parties (with iDNA acting
on
behalf of Employers for this purpose) shall attempt to agree on such a
physician. In the event the parties are unable to so agree, such physician
shall
be selected by an arbitrator provided by the American
Arbitration Association in New York, New York.
Executive shall cooperate in all reasonable respects to enable an examination
to
be made by such physician.
5.5 Death.
The
Employment Period and this Agreement shall terminate on the date of Executive's
death.
6
6. Termination
Compensation
6.1 Termination
by Employer without Cause or by Executive for Good Reason.
If the
Employment Period is terminated by Employers without Cause or by Executive
for
Good Reason, Employers will pay to Executive the lesser of (a) one dollar ($1)
less than the amount that would constitute a “excess parachute payment” under
Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”),
or
(b) the amount of Base Salary to which Executive would be entitled for the
balance of the Initial Employment Period or, if the term of Executive’s
employment hereunder has been extended pursuant to Section
2.1
hereof,
for the balance of the Employment Period. Employers shall pay to Executive
such
amount in a lump sum cash payment as soon as practicable following the effective
date of such termination. Employers shall
also continue to provide Executive with all employee benefits that he was
participating in or receiving at the effective
date of termination
for a
period (the “Post-Termination
Period”)
of one
year or, if shorter, until the
end
of the Initial Employment Period or, if the term of Executive’s employment
hereunder has been extended pursuant to Section
2.1
hereof,
until the end of the Employment Period;
provided,
however,
that,
to the extent, as a consequence of such termination, Executive is not eligible
to receive or does not qualify for such benefits for all or a portion of the
Post-Termination Period, Executive shall be entitled to receive from Employers
an amount (on a tax effective basis) equal to the out-of-pocket cost to
Employers of such benefits for a period, immediately preceding such termination,
equal to the portion of the Post-Termination Period during which such benefits
are not provided.
6.2 Termination
by Reason of Death.
If the
Employment Period is terminated by death as contemplated by Section
5.5
hereof,
Employers (a) shall, within thirty (30) days following the effective date of
termination, pay to Executive’s estate (to the extent the same has not already
been paid) Executive's Base Salary through the effective date of termination
plus Executive's Base Salary for an additional ninety (90) days and (b) if
Executive became entitled to any performance bonus prior to his death pursuant
to Section
4.2
above,
shall pay to Executive’s estate (to the extent the same has not already been
paid) such performance bonus when Employers would have otherwise been obligated
hereunder to pay such performance bonus to Executive.
6.3 Certain
Other Terminations.
If the
Employment Period is terminated pursuant to the provisions of Section
5.2
or
5.4
hereof,
Employers (a) shall, within thirty (30) days following the effective date of
termination, pay to Executive (to the extent the same has not already been
paid)
his Base Salary through the effective date of termination and (b) if Executive
was terminated on account of his Disability as contemplated by Section
5.4
above
and Executive became entitled to any performance bonus prior to his Disability,
shall pay to Executive (to the extent the same has not already been paid) such
performance bonus when Employers would have otherwise been obligated hereunder
to pay such performance bonus to Executive. Employers shall have no obligation
to continue any other benefits provided for in Section
4
hereof
or otherwise past the effective date of termination; provided,
however,
that
the foregoing shall not relieve Employers from any mandatory obligations they
may have under the Consolidated Omnibus Budget Reconciliation Act (COBRA) or
other applicable law.
6.4 No
Other Termination Compensation.
Executive shall not, except as set forth in this Section
6,
be
entitled to any compensation or other consideration following termination of
the
Employment Period or his employment hereunder.
6.5 Mitigation
of Damages.
In the
event of any termination of Executive’s employment by Employers,
Executive shall not be required to seek other employment to mitigate damages,
and any income earned by Executive from other employment or self-employment
shall not be offset against any obligations of Employers to Executive under
this
Agreement. Employers’
obligations hereunder and Executive’s rights to payment shall not be subject to
any right of set-off or other deduction by Employers
not
in
the nature of customary withholding, other than in any judicial proceeding
or
arbitration.
7
7. Professional
Liability Insurance; Indemnification
7.1 Insurance.
Employers will provide (to the extent the same is not provided by iDNA) coverage
for Executive under a director and officer professional liability insurance
policy.
7.2 Indemnification.
Employers shall indemnify Executive to the fullest extent permitted by law
in
effect as of the date hereof, or as hereafter amended, against all costs,
expenses, liabilities and losses (including, without limitation, reasonable
attorneys' fees, judgments, fines, penalties, ERISA excise taxes, penalties
and
amounts paid in settlement) reasonably incurred by Executive in connection
with
a Proceeding (as hereinafter defined). For the purposes of this section, a
“Proceeding”
shall
mean any action, suit or proceeding, whether civil, criminal, administrative
or
investigative, if Executive is made, or is threatened to be made, a party to,
or
a witness in, such action, suit or proceeding by reason of the fact that he
is
or was an officer, director or employee of any Employer (or any subsidiary
thereof) or is or was serving as an officer, director, member, employee, trustee
or agent of any other entity at the request of any Employer.
(a) Notification
and Defense of Claim.
Promptly after receipt by Executive of notice of the commencement of any
Proceeding, Executive will, if a claim in respect thereof is to be made against
Employers under this Agreement, notify Employers in writing of the commencement
thereof, but the omission to so notify Employers will not relieve Employers
from
any liability that they may have to Executive otherwise than under this
Agreement. Notwithstanding any other provision of this Agreement, with respect
to any such Proceeding as to which Executive gives notice to Employers of the
commencement thereof:
(i) Employers
will be entitled to participate therein at their own expense; and
(ii) Except
as
otherwise provided in this Section
7.2(a)(ii),
to the
extent that they may wish, Employers, jointly with any other indemnifying party
similarly notified, shall be entitled to assume the defense thereof, with
counsel selected by Employers and approved by Executive, with such approval
not
to be unreasonably withheld or delayed. After notice from Employers to Executive
of their election to so assume the defense thereof, Employers shall not be
liable to Executive under this Agreement for any legal or other expenses
subsequently incurred by Executive in connection with the defense thereof other
than reasonable costs of investigation or as otherwise provided below. Executive
shall have the right to employ Executive's own counsel in such Proceeding,
but
the fees and expenses of such counsel incurred after notice from Employers
of
their assumption of the defense thereof shall be at the expense of Executive
unless (a) the employment of counsel by Executive has been authorized in writing
by Employers, (b) Executive shall have reasonably concluded that there may
be a
conflict of interest between Employers and Executive in the conduct of the
defense of such Proceeding (which conclusion shall be deemed reasonable if,
without limitation, such action shall seek any remedy other than money damages
and Executive would be personally affected by such remedy or the carrying out
thereof) or (c) Employers shall not in fact have employed counsel to assume
the
defense of the Proceeding, in each of which cases the reasonable fees and
expenses of counsel retained by Executive shall be at the expense of Employers.
Employers shall not be entitled to assume the defense of any Proceeding brought
against Executive by or on behalf of Employers or as to which Executive shall
have reasonably reached the conclusion provided for in clause (b)
above.
8
8. Confidentiality
Unless
otherwise required by law or judicial process, Executive shall retain in strict
confidence during the Employment Period and after termination of Executive's
employment with Employers all confidential or proprietary information known
to
Executive concerning Employers (or any of them) or any direct or indirect
subsidiary or parent of any Employer and/or any aspect of the businesses of
Employers (or any of them) or any such subsidiary or parent.
The
obligations of Executive pursuant to this Section
8
shall
survive the expiration or termination of this Agreement for any reason
whatsoever.
9. Mutual
Non-Disparagement
Subject
to Executive’s compliance with this Agreement, Employers shall not make any oral
or written statement about Executive that is intended or reasonably likely
to
disparage Executive or otherwise degrade his reputation in the business or
legal
community. Subject to Employers’ compliance with this Agreement, Executive shall
not make any oral or written statement about any Employers (or iDNA or any
other
affiliate of any Employer) that is intended or reasonably likely to disparage
any Employers (or iDNA or any other affiliate of any Employer) or otherwise
degrade the reputation of any Employer (or iDNA or any other affiliate of any
Employer) in the business or legal community.
10. Foreign
Corrupt Practices Act
Executive
agrees to comply in all material respects with the applicable provisions of
the
U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”),
as
amended, which provides generally that under no circumstances will foreign
officials, representatives, political parties or holders or public offices
be
offered, promised or paid any money, remuneration or things of value, or
provided any other benefit, direct or indirect, in connection with obtaining
or
maintaining contracts. When any representative, employee, agent or other
individual or organization associated with Executive is required to perform
any
obligation related to or in connection with this Agreement, the substance of
this Section
10
shall be
imposed upon such person and included in any agreement between Executive and
any
such person. Failure by Executive to comply in all material respects with the
provisions of the FCPA (other than an inadvertent violation on the basis of
advice from counsel to Employers that the conduct in question is not a
violation) shall constitute a material breach of this Agreement and shall
entitle Employers to terminate Executive's employment for Cause.
11. Successors;
Binding Agreement
This
Agreement and all rights of Executive hereunder shall inure to the benefit
of
and be enforceable by Executive and Executive's personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees. If Executive should die while any amounts would still be payable
to
him hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to
Executive's devisee, legatee or other beneficiary or, if there be no such
beneficiary, to Executive's estate.
9
12. Survivorship
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
13. Miscellaneous
13.1 Notices.
Any
notice, consent or authorization required or permitted to be given pursuant
to
this Agreement shall be in writing and shall be given as set forth in Section
10.2 of the Stock Purchase Agreement, with any notice or other communication
provided for herein to be sent or given to any Employer to also be sent or
given
to IDNA in the manner and at the address provided therein.
|
If
to iDNA:
|
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxx XxXxxxxx
FAX:
(000) 000-0000
|
|
With
a copy to:
|
Xxxx
Xxxxx LLP
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxx, Esq.
FAX:
(000) 000-0000
|
|
If
to Xxxxxx Campus:
|
Xxxxxx
Campus
00
Xxxxx Xxxx Xxxx
Xxxxx
Xxxxx, XX 00000
FAX:
(914)
Attn:
Xxxxxx Campus
|
|
With
a copy to:
|
Xxxx
Xxxxx LLP
2500
One Liberty Place
0000
Xxxxxx Xx
Xxxxxxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxx, Esquire
FAX:
(000) 000-0000
|
10
13.2 Withholding
of Taxes.
Employers are authorized to withhold (from any compensation or benefits payable
hereunder to Executive) such amounts for income tax, social security,
unemployment compensation and other taxes as shall be necessary or appropriate
in the reasonable judgment of Employers to comply with applicable laws and
regulations.
13.3 Inventions;
Work for Hire.
Executive hereby agrees to assign, and does hereby assign, to Employers all
of
Executive's right, title and interest in and to any and all ideas, concepts,
know-how, techniques, processes, inventions, discoveries, developments, works
of
authorship, innovations and improvements (collectively "Inventions"),
whether patentable or subject to potential copyrights or not, that meet either
or both of the following criteria: (A) such Inventions are conceived, made
or
developed in whole or in part by Executive (whether alone or in concert with
others) at any time during the Employment Period, excepting only those that
(i)
Executive develops during the Employment Period entirely on Executive’s own time
without using any employees, services, equipment, supplies, facilities or
confidential or proprietary information of any Employer (or any of its
subsidiaries or affiliates) and (ii) do not relate to, and are not useable
in
connection with, any Employer Business (as defined below); or (B) such
Inventions (i) were or are conceived, made or developed by Executive (whether
alone or in concert with others), whether prior to or during the Employment
Period, and (ii) relate to, or are useable in connection with, any Employer
Business. Executive agrees to promptly inform and disclose all Inventions to
Employers and iDNA in writing and with respect to those Inventions that
Executive is required to assign to Employers hereunder to provide all assistance
reasonably requested by Employers in the preservation of Employers’ interests in
the Inventions (such as by executing documents, testifying, etc.), such
assistance to be provided at Employers’ expense but without additional
compensation to Executive. Executive agrees that any work prepared by Executive
during the Employment Period, which work is subject to assignment under this
Section
13.3
and is
eligible for United States copyright protection or protection under the
Universal Copyright Convention, the Berne Copyright Convention and/or the Buenos
Aires Copyright Convention, shall be a "work made for hire". In the event that
any such work is deemed not to be a "work made for hire," Executive hereby
assigns all right, title and interest in and to the copyright in such work
to
Employers and agrees to provide all assistance reasonably requested in the
establishment, preservation and enforcement of Employers’ copyright in such
work, such assistance to be provided at Employers’ expense but without any
additional compensation to Executive. As used herein, “Employer
Business”
means
any business that was conducted or proposed to be conducted by any Employer
prior to the date hereof or is conducted or proposed to be conducted by (a)
any
Employer, (b) any direct or indirect subsidiary of any Employer or (c) any
other
IDNA Company (as hereinafter defined) at any time during the period Executive
is
employed by any iDNA Company, and “iDNA
Company”
means
iDNA or any direct or indirect subsidiary of iDNA.
13.4 Miscellaneous
Provisions. This Agreement shall be governed by and construed and enforced
in
accordance with the laws of the State of New York, without reference to the
principles of conflicts of laws therein.
11
13.5 Dispute
Resolution and Arbitration.
In the
event that any dispute arises between the Employer and the Executive regarding
or relating to this Agreement and/or any aspect of the Executive's employment
relationship with the Employer, AND IN LIEU OF LITIGATION AND A TRIAL BY JURY,
the parties consent to resolve such dispute through mandatory arbitration under
the Commercial Rules of the American Arbitration Association, before a single
arbitrator in New York, New York. The parties hereby consent to the entry of
judgment upon award rendered by the arbitrator in any court of competent
jurisdiction. Notwithstanding the foregoing, however, should adequate grounds
exist for seeking immediate injunctive or immediate equitable relief, any party
may seek and obtain such relief; provided that, upon obtaining such relief,
such
injunctive or equitable action shall be stayed pending the resolution of the
arbitration proceedings called for herein. The parties hereby consent to the
exclusive jurisdiction in the state and Federal courts located in the City
of
New York, County of New York and State of New York for purposes of seeking
such
injunctive or equitable relief as set forth above. Each side shall bear its
own
costs; however any fees assessed by the American Arbitration Association shall
be allocated by the arbitrator in his/her sole discretion.
13.6 Headings.
All
descriptive headings in this Agreement are inserted for convenience only and
shall be disregarded in construing or applying any provision of this
Agreement.
13.7 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument.
13.8 Severability.
If any
provision of this Agreement, or any part thereof, is held to be unenforceable,
the remainder of such provision and this Agreement, as the case may be, shall
nevertheless remain in full force and effect.
13.9 Entire
Agreement and Representation.
This
Agreement contains the entire agreement and understanding between or among
Employers, iDNA and Executive with respect to the subject matter hereof. No
representations or warranties of any kind or nature relating to Employers or
their several businesses, or relating to Employers’ assets, liabilities,
operations, future plans or prospects have been made by or on behalf of
Employers (or any of them) to Executive. This Agreement supersedes any prior
or
contemporaneous agreement (whether written or oral) between the parties relating
to the subject matter hereof.
13.10
Scope
of Liabilities of Employers Hereunder.
Except
as otherwise provided herein, the obligations of Employers hereunder shall
be
joint and several. However, except as otherwise expressly provided herein to
the
contrary, to the extent any Employer shall perform any obligation or duty
hereunder, the other Employers shall be released and relieved of such obligation
or duty.
13.11 iDNA
Guaranty.
iDNA
hereby
irrevocably and unconditionally guarantees to Executive the full and timely
performance by Employers of all of their payment and other obligations
hereunder. Such guaranty is a guaranty of performance and not merely of
collection, and Executive shall be entitled to proceed against iDNA
without
first (or simultaneously) commencing any action, or otherwise proceeding,
against Employers or otherwise seeking to enforce this Agreement against
Employers.
12
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement on as of the date first above
written.
|
AUDIENCE
RESPONSE SYSTEMS, INC.
|
CAMPUS
GROUP COMPANIES, INC.
|
|||
|
By:
|
By:
|
|||
|
Name:
Xxxxxx
Campus
|
Name:
Xxxxxx
Campus
|
|||
|
Title:
President
|
Title:
President
|
|||
|
|
||||
|
|
By:
|
|
||
|
XXXXXX
CAMPUS
|
Name:
Xxxxx
XxXxxxxx
|
|||
|
Title:
Chairman
|
||||
13
NON-COMPETITION
AND NON-SOLICITATION AGREEMENT
NON-COMPETITION
AND NON-SOLICITATION
AGREEMENT
(this
“Agreement”),
effective as of July 31, 2008 (the “Effective
Date”),
between XXXXXX
CAMPUS
(“Executive”)
and
IDNA,
INC.
(“iDNA”),
a
Delaware corporation. Executive and iDNA
are
hereinafter sometimes referred to collectively as the “Parties”
and
each as a “Party.”
WHEREAS,
in
order to protect and preserve the investments of iDNA
in the
Campus
Group Companies, Inc. and Audience Response Systems, Inc,
it is
appropriate that Executive agree to the matters set forth herein;
WHEREAS,
iDNA
would not enter into the Xxxxx Campus Employment Agreement or Reduction of
Purchase Price and Discharge of Indebtedness Agreement without the protections
provided for herein;
WHEREAS,
Executive desires to provide the protections provided for herein; and
NOW,
THEREFORE,
in
consideration of the foregoing premises and the mutual covenants hereinafter
set
forth and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Parties, intending to be legally bound
hereby, hereby agree as follows:
1. Confidentiality
Unless
otherwise required by law or judicial process, Executive shall (except as
otherwise herein expressly provided) retain in the strictest confidence all
confidential or proprietary information known to Executive concerning any of
the
iDNA
Companies
(as
hereinafter defined) and/or any aspect of the businesses of any iDNA
Company.
Except
as
otherwise herein expressly provided
to the
contrary, the obligations of Executive pursuant to this Section
1
shall
apply both during and after any period he may be employed by any iDNA Company
and shall survive the expiration or earlier termination of any such employment,
regardless of any reason for such expiration or earlier termination. As used
herein, the
“iDNA
Companies”
means,
collectively, iDNA any direct or indirect subsidiary of any of the foregoing.
14
2. Noncompetition
2.1
General.
For the
duration of the Non-Compete Period (as defined below), Executive shall not,
directly or indirectly, engage in any Competitive Activity (as defined below).
As used herein, “Competitive
Activity”
means
any of the following: (A) developing, supervising, directing, administering
or
managing, or acting as a consultant with respect to the development,
supervision, direction, administration or management, of (I) any business that
was conducted or proposed to be conducted by any iDNA
Companies
prior to
the date hereof or is conducted or proposed to be conducted by and iDNA
Companies
or any
direct or indirect subsidiary of any iDNA
Companies
at any
time during the period Executive is employed by any iDNA Company (any business
referred to in this clause (I) is hereinafter referred to as an “Acquired
Business”)
or
(II) any other business that is conducted or proposed to be conducted by iDNA
or
any other iDNA Affiliate (as hereinafter defined) at any time during the period
Executive is employed by any iDNA Company) (any business referred to in this
clause (II) is hereinafter referred to as an “Affiliate
Business”);
(B)
the participation, directly or indirectly, in any business that is the same
as
or substantially similar to, or is or would be competitive with, any Acquired
Business or any Affiliate Business; and (C) becoming an employee, director,
officer, consultant, independent contractor, lecturer or advisor of or to,
or
otherwise providing services to, any Person if Executive's duties or services
relate in any manner to developing, supervising, directing, administering or
managing any business that is the same as or substantially similar to, or is
or
would be competitive with, any Acquired Business or any Affiliate Business.
Nothing contained herein, however, shall prohibit Executive from acquiring
or
holding any issue of stock or securities of any Person that has any securities
listed on a national securities exchange or quoted in the daily listing of
over-the-counter market securities, provided that at no time does he (together
with members of his immediate family, any trust or trusts of which Executive
is
a trustee and any trust or trusts of which Executive or any member of his
immediate family is a beneficiary) own more than five percent (5%) of the voting
securities of any such Person. The obligations of Executive pursuant to this
Section
2
shall
apply for the full duration of the Non-Compete Period, including following
the
expiration or earlier termination of his employment by any iDNA Company,
regardless of any reason for such expiration or earlier termination. As used
herein, “iDNA
Affiliate”
means
any iDNA Company, any joint venture or partnership in which any iDNA Company
is
a partner or other participant and any Person in which any iDNA Company owns
an
equity interest equal to or in excess of five percent (5%). Notwithstanding
the
foregoing, following
a Repurchase Event, the definition of “Competitive
Activity”
shall
be deemed to exclude (i) any reference to any Acquired Business and (ii) any
reference to any business or activity included in the definition of Affiliate
Business to the extent such business or activity would also be included in
the
definition of Acquired Business.
2.2 Non-Compete
Period.
As used
herein, “Non-Compete
Period”
means
the period commencing on the date hereof and extending to the end of two (2)
years following the later to occur of the date Executive’s employment by any
iDNA Company expires or is terminated.
15
3. Nonsolicitation
During
the term of his employment by any of the iDNA Companies, Executive shall not,
directly or indirectly, (a) solicit to enter into the employ of any other
Person, or hire, any individual who is, or who within the prior twelve (12)
months has been, an iDNA Employee (which, for the purposes of this Agreement,
means any employee of any iDNA Company), (b) solicit, hire or take away, or
attempt to solicit, hire or take away, any Person who or that is, or who or
that
has been, an iDNA Customer (which, for the purposes of this Agreement, means
any
client or customer of any iDNA Company) or (c) encourage any iDNA Customer
to
terminate, or otherwise adversely negotiate or otherwise change, its
relationship with any iDNA Company. Following the expiration or earlier
termination of his employment by the iDNA Companies and during the balance
of
the Non-Compete Period, Executive shall not, directly or indirectly, (a) solicit
to enter into the employ of any other Person, or hire, any individual who is,
or
who within the one (1) year prior to the expiration or earlier termination
of
such employment has been, an iDNA Employee, (b) solicit, hire or take away,
or
attempt to solicit, hire or take away, any Person who or that is, or who or
that
has been, an iDNA Customer or (c) encourage any such iDNA Customer to terminate,
or otherwise adversely negotiate or otherwise change, its relationship with
any
iDNA Company. The obligations of Executive pursuant to this Section
3
shall
apply for the full duration of the Non-Compete Period, including following
the
expiration or earlier termination of his employment by any iDNA Company,
regardless of any reason for such expiration or earlier termination.
Notwithstanding the foregoing, following
a Repurchase Event, the definition of “iDNA
Employee”
shall
be deemed to exclude any individual who has been an employee of any of the
Purchased Corporations or any of their subsidiaries and “iDNA
Customer”
shall
be deemed to exclude any client
or
customer of any
of
the iDNA Companies.
4. Successors;
Binding Agreement
This
Agreement and all rights of iDNA hereunder shall inure to the benefit of and
be
enforceable by iDNA and its successors and assigns. Executive acknowledges
and
agrees that the scope and duration of this Agreement and the restrictions and
protections contained herein are reasonable, necessary and appropriate.
5. Miscellaneous
5.1 Notices.
Any
notice, consent or authorization required or permitted to be given pursuant
to
this Agreement shall be in writing and be given as provided in Section 13.1
of
the Employment Agreement.
5.2 Miscellaneous
Provisions.
This
Agreement is subject to certain provisions, as to governing law and other
matters, as set forth in Section
13.4 of the Employment Agreement.
5.3 Headings.
All
descriptive headings in this Agreement are inserted for convenience only and
shall be disregarded in construing or applying any provision of this
Agreement.
5.4 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument.
5.5 Severability.
If any
provision of this Agreement, or any part thereof, is held to be unenforceable,
the remainder of such provision and this Agreement, as the case may be, shall
nevertheless remain in full force and effect.
5.6 Entire
Agreement and Representation.
This
Agreement contains the entire agreement and understanding between the Parties
with respect to the subject matter hereof. This Agreement supersedes any prior
or contemporaneous agreement (whether written or oral) between the Parties
relating to the subject matter hereof.
[signatures
appear on the following page.]
16
IN
WITNESS WHEREOF,
the
Parties hereto have executed this Agreement as of the date first above
written.
|
CAMPUS
GROUP COMPANIES, INC.
|
|||
|
By:
|
|||
|
Name:
|
Xxxxx
XxXxxxxx
|
XXXXXX
CAMPUS
|
|
|
Title:
|
Chairman
|
||
AUDIENCE RESPONSE SYSTEMS, INC. |
|
|
By:
|
|
|
Name:
Xxxxx
XxXxxxxx
|
|
|
Title:
Chairman
|
|
17
