EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT made as of the 27th day of March, 2000 by and between Vizacom
Inc., a Delaware corporation (the "Company"), and Xxxxx X. Xxxxx, an individual
residing at 000 Xxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called the
"Employee").
W I T N E S S E T H:
WHEREAS, this Agreement is intended to supersede and replace all prior
agreements, understandings and arrangements between or among the Company and the
Employee relating to the employment of the Employee.
NOW, THEREFORE, it is agreed as follows:
1. Retention of Services. The Company hereby retains the services of
Employee, and Employee agrees to furnish such services, upon the terms and
conditions hereinafter set forth.
2. Term. Subject to earlier termination on the terms and conditions
hereinafter provided, and further subject to certain provisions hereof which
survive the term hereof, the term of this Agreement shall be comprised of a
three (3) year period of employment commencing on the date hereof, and shall be
extended thereafter for additional one-year periods unless or until the Company
or the Employee provides sixty (60) days' notice to the other party of its
intention not to extend further the term.
3. Duties and Extent of Services During Period of Employment.
(a) During the term of employment, Employee shall be employed as Vice
President of the Company and as President of the Company's wholly owned
subsidiary, PWR Systems, Inc. ("PWR"), or in such other equivalent positions
with the Company, PWR and their affiliates, as may be determined by the Board of
Directors of the Company. Employee agrees that he shall devote his full time
business efforts to serving the Company, PWR and their affiliates in such
capacity (excluding, consistent with this Agreement, vacation or sick or other
leave Employee is entitled to) under the direction of the Board of Directors of
the Company and shall perform all duties incident to his position on behalf of
the Company, PWR and their affiliates to the best of his ability and shall
perform such other duties as may from time to time be assigned to him by the
Board of Directors of the Company. Notwithstanding the foregoing, with the prior
approval of the Board of Directors (which approval shall not be unreasonably
withheld), Executive shall be entitled to serve as director on the governing
boards of other for-profit or not-for-profit entities and to retain any
compensation and benefit resulting from such service, so long as such service
does not unreasonably interfere with his duties under this Agreement. During the
term hereof, the Company will use its best efforts to cause the Employee to be
elected and reelected to the Board of Directors of the Company in Class III.
(b) The Company and Employee agree that Employee shall perform his
basic responsibilities and duties hereunder at the corporate headquarters of PWR
which shall be located in Western or Central Suffolk County, New York; subject,
however, to the travel requirements of his position.
4. Remuneration. During the period of employment, Employee shall be
entitled to receive the following compensation for his services:
(a) The Company shall pay to Employee a salary at the rate of $200,000
per annum, payable in equal bi-weekly installments, or in such other manner as
shall be consistent with the Company's payroll practices.
(b) In addition to the salary provided in clause (a) above, not later
than one hundred twenty (120) days after the end of each fiscal year of the
Company, the Company shall pay to Employee, as incentive compensation, an amount
equal to $25,000 per annum so long as PWR has achieved (i) revenues during such
fiscal year which exceed its revenues in its previous fiscal year (or, in the
case of the first fiscal year of PWR, the final fiscal year of PC Workstations
Rentals, Inc. d/b/a PWR Systems, Inc. ("Old PWR")) by 30% or more, provided that
the revenues for such prior year were equal or greater than the revenues of Old
PWR for its final fiscal year and (ii) either (A) gross margins of at least 20%
or (B) net income of at least $1,000,000. For purposes of this Paragraph 4(b),
amortization of goodwill shall be excluded from the calculation of net income.
The Company agrees to furnish to Employee a copy of the Company's financial
statements not later than one hundred and five (105) days after the end of each
fiscal year of the Company during the term of this Agreement. In the event that
this Agreement is terminated other than pursuant to Section 9(a), the Employee
shall be entitled to receive the amount which would be payable under this clause
(b) for each fiscal quarter of any fiscal year prior to the date of such
termination.
5. Employee Benefits; Expenses.
(a) During the term of this Agreement, the Company shall provide to
the Employee an allowance for auto and insurance of $500 per month and the right
to participate in the Company's then existing life, medical and dental insurance
and other employee benefit plans and policies on the same terms as are then
generally available to the Company's executive and managerial employees.
(b) Employee shall be entitled to paid vacation each year during the
term of this Agreement at the rate of four (4) weeks per annum. Vacation shall
be taken each year and, if not taken, shall be carried over for one (1) year
and, if not taken during such carry-over period, shall be forfeited.
(c) The Corporation shall reimburse Employee, in accordance with the
practice followed from time to time for other executive and managerial officers
of the Company, for all reasonable and necessary business and traveling
expenses, and other disbursements incurred by Employee for or on behalf of the
Corporation in the performance of Employee's duties hereunder, upon presentation
by Employee to the Company of an appropriate accounting or documentation of such
expense.
6. Disability. If Employee, during the period of employment, becomes unable
for any 90 days in any twelve-month period due to ill health, accident or other
physical or mental incapacity, to substantially perform his services hereunder,
the Company may thereafter, upon at least 60 days' written notice to Employee,
place Employee on disability status. After such action by the Company, Employee
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shall no longer be entitled to receive any compensation hereunder until the
Employee returns to full-time status.
7. Confidential Information.
(a) In the course of Employee's employment by the Company, Employee
will have access to and possession of valuable and important confidential or
proprietary data or information of the Company and its operations. Employee will
not during Employee's employment by the Company or at any time for a period of
five (5) years thereafter divulge or communicate to any person nor shall
Employee direct any employee, representative or agent of the Company or its
affiliates to divulge or communicate to any person or entity (other than to a
person or entity bound by confidentiality obligations similar to those contained
herein and other than as necessary in performing Employee's duties hereunder) or
use to the detriment of the Company or for the benefit of any other person or
entity, including without limitation any competitor, supplier, licensor,
licensee or customer of the Company, any of such confidential or proprietary
data or information or make or remove any copies thereof, whether or not marked
or otherwise identified as "confidential" or "secret." Employee shall take all
reasonable precautions in handling the confidential or proprietary data or
information within the Company to a strict need-to-know basis and shall comply
with any and all security systems and measures adopted from time to time by the
Company to protect the confidentiality of confidential or proprietary data or
information.
(b) The term "confidential or proprietary data or information" as used
in this Agreement shall mean information not generally available to the public,
including, without limitation, all database information, personnel information,
financial information, customer lists, account lists or other account
information, names, telephone numbers or addresses, supplier lists, trade
secrets, patented or proprietary information, forms, information regarding
products, operations, systems, methods, financing, services, know how, computer
and any other processed or collated data, computer programs, pricing, marketing,
media and advertising data.
(c) Employee will at all times promptly disclose to the Company in
such form and manner as the Company may reasonably require, any inventions,
improvements or procedural or methodological innovations, including without
limitation relating to programs, methods, forms, systems, services, designs,
marketing ideas, products or processes (whether or not capable of being
trademarked, copyrighted or patented) conceived or developed or created by
Employee during or in connection with Employee's employment hereunder and which
relate to the business of the Company ("Intellectual Property"). Employee agrees
that all such Intellectual Property shall be the sole property of the Company.
Employee further agrees that Employee will execute such instruments and perform
such acts as may reasonably be requested by the Company to transfer to and
perfect in the Company all legally protectable rights in such Intellectual
Property.
(d) All written materials, books, records and documents made by
Employee or coming into Employee's possession during Employee's employment by
the Company concerning any products, processes or equipment manufactured, used,
developed, investigated, purchased, sold or considered by the Company or
otherwise concerning the business or affairs of the Company, including without
limitation any files, customer records such as names, telephone numbers and
addresses, lists,
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firm records, brochures and literature, shall be the sole property of the
Company, shall not be removed from the Company's premises by the Employee, and
upon termination of Employee's employment by the Company, or upon request of the
Company during Employee's employment by the Company, Employee shall promptly
deliver the same to the Company. In addition, upon termination of Employee's
employment by the Company, Employee will deliver to the Company all other
Company property in Employee's possession or under Employee's control,
including, but not limited to, financial statements, marketing and sales data,
customer and supplier lists, account lists and other account information,
database information and other documents, and any Company credit cards.
(e) The Employee acknowledges that the covenants contained in this
Section 7 are fair and reasonable in order to protect the Company's business and
were a material and necessary inducement for the Company to agree to the terms
of this Agreement. The Employee further acknowledges that any remedy at law for
any breach or threatened or attempted breach of the covenants contained in this
Section 7 may be inadequate and that the violation of any of the covenants
contained in this Section 7 will cause irreparable and continuing damage to the
Company. Accordingly, the Company shall be entitled to specific performance or
any other mode of injunctive and/or other equitable relief to enforce its rights
hereunder, including without limitation an order restraining any further
violation of such covenants, or any other relief a court might award, without
the necessity of showing any actual damage or irreparable harm or the posting of
any bond or furnishing of other security, and that such injunctive relief shall
be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. The covenants in this Section 7 shall run in favor of
the Company and its successors and assigns. In addition, the Employee agrees to
pay the Company the costs it incurs, including reasonable attorneys' fees and
expenses, in bringing and prosecuting any proceeding to enforce the terms of
this Agreement.
(f) The provisions of this Section 7 shall survive the termination of
this Employment Agreement.
8. Non-Competition.
(a) During the term of this Agreement and (other than with respect to
clause (i) below), for one year thereafter (the "Restricted Period"), the
Employee shall not, without the written consent of the Company, directly or
indirectly,
(i) become associated with, render services to, invest in,
represent, advise or otherwise participate in as an officer, employee, director,
stockholder, partner, promoter, agent of, consultant for or otherwise, any
business which is conducted in any of the jurisdictions in which the Company's
business is conducted and which is competitive with the business conducted by
the Company; provided, that this Section 8(a)(i) shall not prohibit the Employee
from purchasing or owning as a passive investment up to three percent (3%) of
the outstanding capital stock of a company which is listed or authorized for
trading on any national securities exchange, Nasdaq or the OTC Electronic
Bulletin Board or is a company with a class of securities registered under
Section 12 of the Securities Act of 1934, as amended;
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(ii) for the Employee's own account or for the account of any other
person or entity (A) interfere with the Company's relationship with any of its
suppliers, customers, accounts, brokers, representatives or agents or (B)
contact, telephone, meet, solicit or transact any business with any material
customer, account or supplier of the Company who or which transacts or has
transacted business with the Company at any time during the term of this
Agreement; or
(iii) employ or otherwise engage, or solicit, entice or induce on
behalf of the Employee or any other person or entity, the services, retention or
employment of any person who has been an employee, principal, partner,
stockholder, sales representative, trainee, consultant to or agent of the
Company within one year of the date of such offer or solicitation.
(b) Nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such violation,
including but not limited to any injunctive or other equitable relief or the
recovery of damages from the Employee.
(c) The Employee acknowledges that the covenants contained in this
Section 8 are fair and reasonable in order to protect the Company's business and
were a material and necessary inducement for the Company to agree to the terms
of this Agreement. The Employee further acknowledges that any remedy at law for
any breach or threatened or attempted breach of the covenants contained in this
Section 8 may be inadequate and that the violation of any of the covenants
contained in this Section 8 will cause irreparable and continuing damage to the
Company. Accordingly, the Company shall be entitled to specific performance or
any other mode of injunctive and/or other equitable relief to enforce its rights
hereunder, including without limitation an order restraining any further
violation of such covenants, or any other relief a court might award, without
the necessity of showing any actual damage or irreparable harm or the posting of
any bond or furnishing of other security, and that such injunctive relief shall
be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. The covenants in this Section 8 shall run in favor of
the Company and its successors and assigns.
(d) In case any one or more of the terms or provisions contained in
this Section 8 shall for any reason be held invalid, illegal or unenforceable,
such invalidity, illegality or unenforceability shall not affect any other terms
or provisions hereof, but such term or provision shall be deemed modified or
deleted as or to the extent required by applicable law, and such modification or
deletion shall not affect the validity of the other terms or provisions of this
Section 8. In addition, if any one or more of the restrictions contained in this
Section 8 shall for any reason be held to be unreasonable with regard to time,
duration, geographic scope or activity, the parties contemplate and hereby agree
that such restriction shall be modified and shall be enforced to the full extent
compatible with applicable law. The parties hereto intend that the covenants
contained in this Section 8 shall be deemed a series of separate covenants for
each country, state, county and city. If, in any judicial proceeding, a court
shall refuse to enforce all the separate covenants deemed included in this
Section 8 because, taken together, they cover too extensive a geographic area,
the parties intend that those of such covenants (taken in order of the cities,
counties, states and countries therein which are lease populous) which if
eliminated would permit the remaining separate covenants to be enforced in such
proceeding shall, for the purpose of such proceeding, be deemed eliminated from
the provisions of this Section 8.
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(e) The provisions of this Section 8 shall survive the termination of
this Employment Agreement.
(f) Notwithstanding the foregoing provisions of this Section 8, if the
employment of Employee is terminated for other than "for cause" as defined in
Section 9(a) of the Agreement or if the Company materially breaches the
provisions of the first, second or fourth sentence of Section 3(a) or Section
3(b) of this Agreement, Employee shall not be subject to any of the restrictive
covenants set forth in Section 8(a)(ii) and 8(a) (iii) for any period after
termination of this Agreement.
9. Termination.
(a) The Company may terminate the Employee's services hereunder "for
cause" by delivering to Employee not less than ten (10) days prior to the date
on which the termination is to be effective, a written notice of termination for
cause specifying the act, acts or failure to act that constitute the cause. For
the purposes of this agreement, "for cause" shall mean; (i) any act of
dishonesty, fraud embezzlement or moral turpitude materially adversely affecting
the financial, market, reputation or other interests of the Company, or any
affiliate thereof, (ii) the Company placing Employee on disability status
pursuant to Section 6 hereof more than once during the term hereof, (iii) a
conviction of the Employee for any felony or other serious crime or any knowing
violation of any federal or state securities law or regulation, (iv) failure to
substantially perform Employee's duties hereunder, or repeated neglect of duty
or chronic unapproved absenteeism, (v) any material breach by the Employee of
this Agreement which remains uncured after thirty (30) days notice thereof, or
(vi) the death of the Employee.
(b) If the Company terminates Employee's employment hereunder for any
reason other than "for cause" as set forth in Section 9(a) hereof, the Company
shall pay to the Employee compensation pursuant to Sections 4(a) and 4(b) hereof
at the time and in the manner provided for herein, and no other compensation
payable hereunder shall be payable to the Employee. If the Company terminates
Employee's employment hereunder "for cause" as set forth in Section 9(a) hereof,
Employee shall not be entitled to receive any further compensation hereunder.
Employee and the Company acknowledge that the foregoing provisions of this
paragraph 9(b) are reasonable and are based upon the facts and circumstances of
the parties at the time of entering into this Agreement, and with due regard to
future expectations.
(c) If the Company materially breaches the first, second or fourth
sentence of Section 3(a) and Sections 3(b) or 4 of this Agreement, then Employee
shall have the right to terminate this Agreement upon ten (10) days written
notice (the "Termination Notice") to the Company setting forth in reasonable
detail, Employee's reason for terminating his employment. Notwithstanding the
foregoing, if within that ten day period, Company provides Employee with a
Notice electing to cure said breach, the Company shall have thirty (30) days
from the date the Company received the Termination Notice to cure such breach.
Failure to cure within said thirty (30) day period shall result in Employee's
employment with the Company being terminated pursuant to the Termination Notice.
Upon termination of Employees employment pursuant to this Section 9(c), the
Company shall pay Employee through the term of this agreement as if this
Agreement had not been terminated (the "Balance Period") pursuant to the terms
of Section 4 of this Agreement. Company shall also provide Employee through the
Balance
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Period, with all benefits coverage set forth in Section 5(a), to be
followed by COBRA election rights. Any additional coverages Employee had at
termination, including dependent coverage, will also be continued for such
period on the same terms. If the terms of any benefit plan referred to herein do
not permit continued participation by Employee, then the Company will arrange
for other coverage providing substantially similar benefits at the same
contribution level of Employee.
10. Notices. Any notice to be given to the Company hereunder shall be
deemed sufficient if addressed to the Company in writing and delivered by
personal delivery, overnight mail service, or mailed by certified or registered
mail return receipt requested to it at Glenpointe Center East, 300 Xxxxx X. Xxxx
Boulevard, Box 18, 7th Floor, Teaneck, New Jersey 07666, Attention: President,
or to such other address as the Company may hereafter designate, and a copy to
Xxxx X. Xxxxxxx, Esq., Xxxxxxx & Xxxxxxxx, LLP, 00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxx Xxxx 00000. Any notice to be given to Employee
hereunder shall be delivered or mailed by certified or registered mail to
Employee at the address set forth at the head of this Agreement or such other
address as he may hereafter designate, and a copy to Xxxx Xxxxxx, Esq., Ruskin,
Moscou, Xxxxx & Faltischek, P.C., 000 Xxx Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000.
11. Successors and Assigns; Third Party Beneficiaries. This Agreement
shall be binding upon and inure to the benefit of the successors and assigns of
the Company, and unless clearly inapplicable, all references herein to the
Company shall be deemed to include any such successor. In addition, this
Agreement shall be binding upon and inure to the benefit of the Employee and his
heirs, executors, legal representatives and assigns; provided, however, that the
obligations of Employee hereunder may not be delegated without the prior written
approval of the Board of Directors of the Company. In the event of any
consolidation or merger of the Company into or with any other corporation during
the term of this Agreement, or the sale of all or substantially all of the
assets of the Company to another corporation, person or entity during the term
of this Agreement, such successor corporation shall assume this Agreement and
become obligated to perform all of the terms and provisions hereof applicable to
the Company, and Employee's obligations hereunder shall continue in favor of
such successor corporation.
12. Amendments. This Agreement may not be altered, modified, amended or
terminated except by a written instrument signed by each of the parties hereto.
13. Prior Agreements Superseded. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
any other agreements, oral or written, entered into between Employee and the
Company prior to the date of this Agreement relating thereto.
14. Applicable Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York, without regard to
conflicts of laws.
15. Severability. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be contrary to law or public policy, the
remaining provisions shall remain in full force and effect.
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16. Waiver. No term or provision hereof shall be deemed waived and no
breach consented to or excused, unless such waiver, consent or excuse shall be
in writing and signed by the party claimed to have waived, consented or excused.
A consent, waiver or excuse of any breach shall not constitute a consent to,
waiver or, or excuse of any other or subsequent breach whether or not of the
same kind of the original breach.
17. Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one and the same
agreement.
18. Acknowledgment. Employee acknowledges that he has carefully read this
Agreement, has had an opportunity to consult counsel regarding this Agreement
and hereby represents and warrants to the Company that Employee's entering into
this Agreement, and the obligations and duties undertaken by Employee hereunder,
will not conflict with, constitute a breach of or otherwise violate the terms of
any other agreement to which Employee is a party and that Employee is not
required to obtain the consent of any person, firm, corporation or other entity
in order to enter into and perform his obligations under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
VIZACOM INC.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President & Chief Executive Officer
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
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