EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This Employment Agreement is made effective as of the 6th day of
September, 1996, by and between Firestone Publishing, Inc., a Delaware
corporation (the "Company") and Xxxxx Xxxxxxxxxx ("Employee").
W I T N E S S E T H :
WHEREAS, the Company desires to employ Employee in accordance with the
terms of this Agreement and Employee desires to be so employed by the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Term. Subject to earlier termination as hereinafter provided,
Employee's period of employment pursuant to this Agreement shall be for a
period of five (5) years commencing on the effective date hereof. The entire
period of Employee's employment by the Company pursuant hereto is hereinafter
referred to as the "Term."
2. Duties.
(a) During the Term, Employee shall serve the Company as its
Vice President - Production, upon the terms and subject to the
conditions set forth herein.
(b) During the Term, Employee shall be employed by the Company
on a full-time basis and shall perform such duties as the President of
the Company may from time to time reasonably direct and as are
consistent with the position of Vice President - Production. Employee
shall comply with all reasonable directions given him by the President.
(c) During the Term, Employee shall devote his full business
time and his best efforts, business judgment, skill and knowledge
exclusively to the advancement of the business and interests of the
Company and to the discharge of his duties and responsibilities
hereunder. Employee shall not engage in any other business activity or
serve in any industry, trade, or professional position during the Term,
except as may be expressly approved in advance by the Board in writing.
3. Compensation; Benefits. The Company shall pay to Employee an
annual salary of $75,000, payable at the same intervals as salaries of other
employees of the Company, and subject to the usual withholding taxes, not less
frequently than semi-monthly. The Company shall provide similar health
insurance and other benefits to Employee as it provides its other full-time
employees, if any.
4. Vacations. During the Term, Employee shall be entitled to such
amount of vacation per year as is commensurate with Company policy (which
shall be substantially similar to the policy of the prior owner of the
Company's assets), to be taken at such times and intervals as shall be
determined by Employee, subject to the reasonable business needs of the
Company.
5. Representations and Warranties. Employee hereby represents and
warrants to the Company that Employee's execution of this Agreement and
performance pursuant to this Agreement do not and will not breach or conflict
with any other agreement, contract, or restriction to which Employee is
subject.
6. Termination. Notwithstanding the provisions of Section 1 hereof,
the Term shall be subject to termination as follows:
(a) The death of Employee shall terminate the Term. After
Employee's death, Employee's estate or other successors in interest
shall be entitled to receive any compensation earned or accrued and
unpaid to the date of his death.
(b) The Term may, at the option of the Company, be terminated
for Cause (as hereinafter defined) upon at least five (5) days' prior
written notice to Employee. As used herein Cause shall be limited to
(i) theft, embezzlement or fraud by Employee, or other misconduct or
dishonesty by Employee which, in the opinion of the Company's Board of
Directors, jeopardizes the Company or Employee's ability to perform in
accordance with the terms hereof; (ii) Employee's failure to perform,
or negligence in the performance of, his duties and responsibilities to
the Company or any willful and material breach by Employee of this
Agreement; or (iii) the President's reasonable determination that any
representation or warranty made by Employee to the Company was false or
misleading when made, or thereafter became false or misleading and
Employee failed to notify the Company thereof.
(c) Employee may terminate the Term for any reason upon sixty
(60) days' written notice to the Company.
(d) At any time subsequent to the payment in full of all amounts
owed by the Company to Dugent Publishing Corp. pursuant to a promissory
note in the original principal amount of $4,000,000, or at any time
subsequent to the sale or transfer of such note to any unaffiliated
party, Company may terminate the Term upon thirty (30) days' written
notice to Employee.
7. Covenant Not to Disclose.
(a) Other than as necessary in the ordinary course of the
Company's business, Employee shall not disclose or make accessible in
any manner to or use for the benefit of any person or entity, at any
time during or after the Term, any information of a confidential or
secret nature relating to the business, products or activities of the
Company (the "Confidential Information"). Such Confidential Information
shall include, but not be limited to, information relating to
inventions, products, designs, methods, know-how, techniques, systems,
processes, software programs, works of authorship, customer lists,
projects, plans and proposals), but only if specifically listed and
presented to Employee in writing and identified as Confidential.
Employee shall keep secret all matters entrusted to him and shall not
use or attempt to use any such information in any manner which may
injure or cause loss or may be calculated to injure or cause loss
whether directly or indirectly to the Company. Information shall be
Confidential Information whether or not such information was developed,
devised or otherwise created in whole or in part by the efforts of
Employee, and whether or not such information is a matter of public
knowledge, unless the Company has authorized disclosure of such
information to the general public.
(b) Employee agrees that during his employment he shall not
make, use or permit to be used any Confidential Information relating to
any matter within the scope of the business of the Company or concerning
any of its dealings or affairs otherwise than for the benefit of the
Company. Employee further agrees that he shall not, after the
termination of his employment, use or permit to be used any such
Confidential Information, it being agreed that all of the foregoing
shall be and remain the sole and exclusive property of the Company,
whether or not prepared by Employee, and that immediately upon the
termination of his employment he shall deliver all of the foregoing, and
all copies thereof, to the Company, at its main offices.
8. Non-Competition.
(a) While Employee is employed at the Company and for a period
of two (2) years after termination of such employment, Employee will
not, whether alone or as a partner, officer, director, consultant,
agent, employee or stockholder of any company or other commercial
enterprise, directly or indirectly engage in any business or other
activity in the United States or Canada which is competitive with the
Company and which publishes or distributes any of the same types of
products or services being published, marketed, distributed, planned in
writing or developed by the Company during his employment or at the time
of termination of such employment.
(b) The ownership of securities of a public company not in
excess of five percent (5%) of any class of such securities shall not of
itself be deemed a violation of any of the provisions of this Section 8.
9. No Solicitation. While Employee is employed at the Company and
for a period of two (2) years after termination of his employment (for any
reason, whether voluntarily or involuntary), Employee will not directly or
indirectly solicit, recruit or hire or attempt to solicit, recruit or hire any
employee of the Company to work for a third party other than the Company or
engage in any activity that would cause any employee to violate any agreement
with the Company.
10. Equitable Relief. Employee agrees that any breach of Section 7,
8, or 9 of this Agreement by him will cause irreparable damage to the Company
and that in the event of such breach the Company shall have, in addition to
any and all remedies at law, the right to an injunction, specific performance
or other equitable relief to prevent the violation of his obligations
hereunder.
11. Reasonable Restrictions; Severability. Employee hereby
acknowledges that the type and periods of restriction imposed in the
provisions of this Agreement are fair and reasonable and are reasonably
required for the protection of Company and the goodwill associated with the
Company. Employee further agrees that each provision herein shall be treated
as a separate and independent clause, and the enforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall
for any reason be held to be excessively broad as to scope, activity or
subject so as to be unenforceable at law, such provision or provisions shall
be construed by the appropriate judicial body by limiting and reducing it or
them, so as to be enforceable to the maximum extent compatible with the
applicable law as it shall then appear.
12. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original and all of
which together shall constitute but one and the same instrument.
13. No Waiver. Any waiver by the Company of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of such provision or any other provision hereof.
14. Notices. Any notice or communication required or permitted
hereunder shall be deemed given when delivered in hand or sent by first class
mail, postage prepaid:
If to Employee, to him at:
If to the Company, to it at:
Firestone Publishing, Inc.
x/x XxXxxx Xxxxxxxxxxx
000 Xxxxxxxxx Xxx., Xxxxx 000
Xxxx Xxxxx, XX 00000
or to such other address of which either party may notify the other party by
notice similarly given.
15. Survival. Employee's obligations under this Agreement shall
survive the termination of his employment regardless of the manner of such
termination and shall be binding upon his heirs, executors, administrators and
legal representatives.
16. Assignment. Neither party may assign any rights or obligations
under this Agreement.
17. Entire Agreement; Amendment. This instrument contains the entire
agreement between the parties with respect to the subject matter addressed
herein and all prior discussions, understandings, negotiations and agreements
are merged herein. This Agreement may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
19. Submission to Jurisdiction. Each party hereto submits to the
jurisdiction of any state court sitting in Dade County, Florida and any
federal court for the Southern District of Florida, Dade County Division, in
any action or proceeding arising out of or relating to this Agreement and
agrees that all claims in respect of the action or proceeding may be heard and
determined in any such court. Each party also agrees not to bring any action
or proceeding arising out of or relating to this Agreement in any other Court.
Each party waives any defense of inconvenient forum to the maintenance of any
action or proceeding so brought and waives any bond, surety, or other security
that might be required of any other party with respect thereto. Each party
agrees that a final judgment in any action or proceeding so brought shall be
conclusive and may be enforced by suit on the judgment or in any other manner
provided by law or in equity.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as a
sealed instrument as of the day and year first above written.
Firestone Publishing, Inc.
By: /s/ /s/ Xxxxx Xxxxxxxxxx
Xxxxx Xxxxxxxxxx
Print Name and Title:
Witness: Witness:
/s/ /s/
