EMPLOYMENT AGREEMENT
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AGREEMENT made on the 23 day of December 1999 by and between Xxxxx
Xxxxxxxx (Hereinafter called the "Executive") and MULTIMEDIA TUTORIAL SERVICES,
INC., a Delaware corporation (the "company") which owns all of the capital stock
of Video Tutorial Service, Inc., a New York corporation ("VTS").
WHEREAS, the Board of Directors of the Company (the "Board") desires to
assure the Company the continued employment and services of the Executive; and
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree:
1. DUTIES. The Company shall continue to employ the Executive and Executive
shall continue employment with the Company for the term of employment
hereinafter defined. During the term of employment, the Executive shall,
subject to the provisions of this Agreement, have the title of President.
The Executive convenants and agrees, that during their term of employment,
he will work for the Company from his home or at the Company's office, as
necessitated by the nature of the assignments.
In connection with the performance of his duties hereunder which cannot
otherwise be performed from his home, the Executive shall initially be based
at the Company's principal executive offices in Brooklyn, New York and shall
not be required to perform his services outside the Greater New York, New
Jersey, Connecticut area. He will have four (4) weeks vacation. Any unused
vacation time can be applied to the next succeeding year or years.
2. TERM. "Term of employment" as used herein shall mean the period from the
date hereof through December 31st, 2004; provided, however, that the Term of
employment shall thereafter be extended subject to termination upon 180 days
notice; and, provided further, however, that the term of employment may be
earlier terminated, as hereinafter set forth, in which event the term of
employment shall mean the period from the date hereof through the effective
date of such earlier termination. The term of employment shall be terminated
earlier upon: (I) the death of the Executive; (ii) the Executive becoming
disabled in the manner provided in Section 7 (b) hereof; (iii) upon the
Executive being discharged for serious cause in the manner provided in
Section 7 (c) hereof; or (iv) upon the Executive terminating his employment
as provided in Section 7(d) hereof.
3. COMPENSATION. As compensation for his services, the Executive shall receive
a base salary at an annual rate of $100,000 (the "Base Salary") to be paid
in accordance with the usual payroll practices of the Company. The Base
Salary will be adjusted annually for inflation as calculated annually by the
Federal Government. The base salary shall commence on January 1st, 2000.
4. OTHER BENEFITS. The Executive shall be entitled to participation in pension,
group insurance, hospitalization or other incentive or benefit plans or
ESOPs or arrangements presently in effect or hereafter adopted by the
Company applicable to officers or employees.
5. EXPENSES. The Company shall pay, or reimburse the Executive for, all
reasonable expenses incurred by him in connection with his employment
hereunder, subject to the prior approval of the Chief Executive Officer.
6. DISCHARGE. The Executive's employment hereunder may be terminated without
any breach of this agreement only under the following circumstances:
a) DEATH. The Executive's employment hereunder shall terminate upon his death.
b) DISABILITY. If, as a result of the Executive's incapacity due to physical or
mental illness, the Executive shall have been absent from his duties
hereunder for ninety (90) consecutive days or 180 non-consecutive days in
any 365-day period, and within thirty (30) days after written notice of
termination is given (which may occur before or after the end of such
respective periods) shall not have returned to the performance of his duties
hereunder, the Company may terminate the Executive's employment hereunder.
c) SERIOUS CAUSE. The company may terminate the Executive's employment here
under for Serious Cause. For purposes of this Agreement, the Company shall
have "Serious Cause" to terminate the Executives employment hereunder only
in the event of one of the following: (i) Executive's fraud or embezzlement
from the Company, (ii) the Executive shall have willfully failed to perform
his duties hereunder or directions of the Board which directions are
consistent with Executive's duties and title under this Agreement and which
failure the Executive does not remedy within thirty (30) days following his
receipt of written notice of such failure, or (iii) the Executive engages in
a competitive business with the company. Action is "willful" if it continues
after contrary direction by the board. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for Serious Cause
unless and until there shall have been delivered to the Executive a copy of
a resolution, duly adopted by the affirmative vote of not less than
four-fifths of the entire membership of the at a meeting of the Board called
and held for such purpose (after at least five (5) business days prior
written notice to the Executive and an opportunity for him, together with
his counsel, to be heard before the Board), finding that, in the good faith
opinion of the Board, the Executive was guilty of the conduct set forth
above and specifying the particulars thereof in detail.
d) TERMINATION BY THE EXECUTIVE. The Executive may terminate his employment
hereunder for Good Reason (as defined below) which is not cured by the
Company within thirty (30) days after it receives notice thereof from the
Executive for purpose of this Agreement, "Good Reason" shall mean (i) any
assignment to the Executive of any duties other than those contemplated by,
or any limitation of the powers of the Executive in any respect not
contemplated by, Section 1 hereof, (ii) any removal of the Executive from or
any failure to re-elect the Executive to any of the positions indicated in
Section 1 hereof, except in connection with the termination of the
Executive's employment for Serious Cause or Disability, (iii) any failure by
the Company to comply with this agreement, (iv) failure of the Company to
obtain the assumption of this Agreement by an successor as contemplated in
Section 11 hereof. The Company shall have thirty (30) days to remedy "Good
Reason" after receiving notice thereof from the Executive. If for any reason
there is a dispute between the parties as to whether there was "Good Reason'
for termination, then the matter shall be resolved by arbitration in New
York, New York in accordance with the Rules for Commercial Arbitration of
the American Arbitration Association before one arbitrator to be selected by
the parties; provided however, that if the parties cannot agree on an
arbitrator, the arbitrator shall be appointed by said Association. The
decision or award of the arbitrator shall be final and binding upon the
parties. Any arbitral award may be entered as a judgment or order in any
court of competent jurisdiction.
e) NOTICE OF TERMINATION. Any termination of the Executive's employment by the
Company or by the Executive (other than termination pursuant to subsection
(a) above) shall be communicated by written Notice of Termination to the
other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific
termination provisions in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of the Executive's employment under the provisions so
indicated.
f) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the Executive's
employment is terminated by his death, the date of this death, (ii) if the
Executive's employment is terminated pursuant to subsection (b) above,
thirty (30) days after Notice of Termination is given (provided that the
Executive shall not have returned to the performance of his duties during
such thirty(30) day period) as set forth in subsection (b) above, (iii) if
the Executive's employment is terminated pursuant to subsection (c) or (d)
above, the date specified in the Notice of termination (but in no event
earlier than the date on which the Notice of Termination is given), and (iv)
if the Executive's employment is terminated for any other reason, the date
on which a Notice of Termination is given; provided that if within thirty
(30) days after the Notice of Termination is given a dispute exists
concerning the termination, the Date of Termination shall be the date
determined, either by mutual written agreement of the parties or by a final
judgment order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected).
7. COMPENSATION UPON TERMINATION. (a) if the employment of the Executive is
terminated, pursuant to Section 7(a) hereof, by reason of his death, the
Company agrees to pay directly to his surviving spouse, or if his spouse
shall not survive him, then to the legal representative of his estate, (i)
for a period of twelve (12) months (commencing with the Termination Date) an
amount equal to and payable at the same rate as his then current base
salary, and (ii) any payment the Executive's spouse, beneficiaries, or
estate may be entitled to receive pursuant to any pension or employee
benefit plan, ESOP or life insurance policy then maintained by the Company.
(b) During any period that the Executive fails to perform his duties hereunder
as a result of incapacity due to physical or mental illness, the Executive
shall continue to receive his full Base Salary until the Executive returns
to his duties or until the Executives employment is terminated pursuant to
Section 6 (b) hereof.
(c) If the Executives employment shall be terminated for Serious Cause, the
Company shall pay the Executive his full base Salary through the Date of
Termination a the rate in effect at the time Notice of Termination is given
and the Company shall have no further obligations to the Executive under
this Agreement.
(d) if (i) the Company shall terminate the Executive's employment other than
pursuant to Section 6(a) , 6(b) or 6(c) hereof, (it being understood that a
purported termination pursuant to Section 6(b) or 6(c) hereof which is
disputed and finally determined not to have been proper shall be a
termination by the Company without cause) or (ii) the Executive shall
terminate his employment for Good Reason as defined in section 6(d) hereof,
then in full discharge of the Company's obligation to the Executive, the
Company shall continue to pay the Executive his remaining full base Salary
(periodically as theretofore paid) the remainder of the Term of employment.
(e) Notwithstanding anything in this Agreement to contrary, upon termination of
the Executive's employment, the Benefits shall remain in effect and continue
to the extent contemplated by the terms of each of he written plans
comprising the Benefits.
(f) The Executive shall not be required to mitigate the amount of any payment
provided for in this Section 8 by seeking other employment or otherwise, nor
shall the amount of any payment earned by the Executive as the result of
employment by another employer after the Date of Termination, or otherwise.
8. INDEMNIFICATION. In the event that the Executive is made, or threatened to
be made, a party to any action or proceeding, whether civil or criminal, by
reason of the performance of his duties hereunder, he shall be indemnified
by the Company, and the Company shall advance his related expenses, to the
full extent permitted by law. Directors and Officers Insurance will be
provided by the Company to the Executive if available at reasonable cost or
if any other executive or director is provided such insurance by the Company
or VTS.
9. CONDITION OF AND SURVIVAL OF AGREEMENT ASSIGNMENT. In the event that the
Company or VTS shall at any time be merged or consolidated with any other
corporation or corporations or shall sell or otherwise transfer a
substantial portion of its assets to another corporation or entity, the
provisions of this agreement shall be binding upon and inure to the benefit
of the corporation or entity surviving or resulting from such merger or
consolidation or to which such assets shall be sold or transferred, provided
however, that in the case of an asset sale, the provisions hereof shall not
be construed as relieving the transferor of assets from any liability
hereunder. This agreement shall be binding upon the Executive, his heirs,
successors, administrators and assigns, provided, however, that neither
party shall have the right to assign the Executive's rights and obligations
with respect to his actual employment duties without the prior consent of
the other party.
10. NOTICES. Any notices or other communications required or permitted hereunder
shall be sufficiently given if sent by registered mail, postage prepaid, to
the last home address given by the Executive to the Company or to the
Company at the Company's office or such other addresses as shall be
furnished in writing by either party to the other; such notice or
communication shall be deemed to have been given as of the date so mailed.
11. CONSTRUCTION; LEGAL FEES. This Agreement shall be construed in accordance
with an governed by the laws of the state of New York. The Company shall be
entitled to specific performance in connection with a violation by the
Executive of the applicable provisions of Section 6. The prevailing party in
any dispute involving the subject matter contained herein shall be entitled
to recover its reasonable legal fees and expenses incurred in enforcing its
rights in such dispute.
12. SEVERABILITY. The conditions and provisions herein set forth shall be
severable , and if any condition or provision or portion thereof shall be
held invalid or unenforceable, then said conditions or provision shall not
in any manner affect any other condition or provision and the remainder of
the Agreement and every paragraph thereof construed without regard to said
invalid condition or provision shall continue in full force and effect.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
between the parties hereto with respect to the subject matter hereof, and
this Agreement supersedes and renders null and void any and all prior oral
or written agreements, understandings or commitments pertaining to the
subject matter hereof. No waiver or modification of the terms or provisions
hereof shall be valid unless in writing signed by the party so to be charged
thereby and then only to the extent therein set forth.
14. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have affixed their signatures the day and
year first above written.
Multimedia Tutorial Services, Inc.
By: /S/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
ACKNOWLEDGED AND AGREED TO:
VIDEO TUTORIAL SERVICE, INC.
By:
ACKNOWLEDGED AND AGREED TO BY
XXXXXXXXXXXXXXXXXX.XXX
By:
