EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is made as of March 5, 1999 between
CADAPULT GRAPHIC SYSTEMS INC., a New Jersey corporation with offices at 000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 ("Employer"), and XXXXXXX XXXXXX
("Employee") residing at 0000 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Employer desires to retain the services of Employee and Employee
desires to be employed by Employer upon the terms and conditions hereinafter set
forth;
NOW THEREFORE, in consideration of the agreements herein contained, the
parties hereto agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee hereby
agrees to serve, as Vice President of Marketing and Investor Relations,
Treasurer and Secretary of Employer, or such other position and with such title
as Employer may reasonably designate, for the Term of Employment (as defined in
Section 2). Employee agrees to perform such services as are customary for such
office or to such other offices as shall from time to time be assigned to
Employee by Employer's Board of Directors or its designee, and, in the absence
of such assignment, such services customary to such offices as are necessary to
the operations of Employer. Employee further agrees to use Employee's best
efforts to promote the interest of Employer and to devote Employee's full
business time and energies during normal business hours to the business and
affairs of Employer during the Term of Employment.
2. TERM OF EMPLOYMENT. The employment hereunder which commenced on May
1, 1998 and shall continue for a term of three (3) years (the "Term of
Employment"), unless earlier terminated: (a) upon death of Employee; (b) at the
option of Employer upon 30 days' prior written notice to Employee, in the event
Employee, by reason of physical injury or illness, is unable to materially
perform her duties hereunder for a period of 60 days and has no proof of
expectation of returning to work within a reasonable time thereafter; or (c)
upon the discharge of Employee by the Board of Directors of Employer for "cause"
(as defined in Section 7 hereof).
3. COMPENSATION.
A. Base Salary. As compensation for the services to be
provided hereunder and in consideration of Employee's agreement not to compete
as set forth in Section 4, during the Term of Employment, Employer shall pay
Employee an annual salary of eighty thousand dollars ($80,000) with adjustments
of not less than the change in the Consumer Price Index, or such greater amount
as may be established by Employer's Board of Directors, which shall be payable
in appropriate installments to conform with the regular payroll dates for
salaried personnel of Employer.
B. Incentive Earnings Bonus. In addition to any bonus to be
determined by the Board of Directors, Employee is eligible for certain Incentive
bonuses contingent upon certain corporate earnings milestones. Employee is
hereby granted five year options to purchase 100,000 shares of the Company's
common stock, par value $.001 per share. These options will vest upon the
achievement of certain corporate earnings milestones as set forth herein.
Options to purchase 25,000 shares at $2.00 per share shall vest following the
first fiscal year end in which the Company's EBITDA exceeds $500,000; additional
options to purchase 25,000 additional shares at $2.00 per share shall vest
following the first fiscal year end in which the Company's EBITDA exceeds
$1,000,000; additional options to purchase 25,000 additional shares at $2.00 per
share shall vest following the first fiscal year end in which the Company's
EBITDA exceeds $1,500,000; and additional options to purchase 25,000 additional
shares at $2.00 per share shall vest following the first fiscal year end in
which the Company's EBITDA exceeds $2,000,000. These options are cumulative and
are subject to anti-dilution rights.
C. Other Benefits. Employee shall be entitled to the
following fringe benefits, perquisites, and other benefits of employment during
the Term of Employment to the extent that the Board of Directors determines such
benefits are to be made available to the Company's employees in general: (i)
medical and dental insurance under such group medical and dental insurance
policies as Employer may provide to its employees; (ii) sick days in accordance
with Employer's policy regarding officers; (iii) up to four (4) weeks vacation
in each year fully worked, and it is not to be deemed to have any cash value;
(iv) participation in Employer's 401(k) plan or such other plan as Employer may
adopt; and (v) participation in Employer's employee stock option plan when and
if established.
D. Payment Upon Early Termination. In the event of early
termination of employment for any reason specified in Section 7 hereof, Employer
shall no longer be obligated to make any payments of compensation to Employee or
Employee's estate under this Agreement. However, any salary or bonus earned
and/or vested for prior periods, but not yet paid, shall be paid by Employer to
Employee or Employee's estate.
E. Bonus. Employee shall, during the term of this Agreement, be
entitled to a performance bonus as the Board of Directors may determine from
time to time. A grant of any bonus or other compensation to another of
Employer's employee, shall not be, in any way, interpreted so as to entitle
Employee to such bonus or other compensation.
4. COVENANT NOT TO COMPETE; INTELLECTUAL PROPERTY; CONFIDENTIALITY.
A. Covenant Not to Compete and Solicit. During the Term of
Employment and for a period of three (3) years after termination of Employee's
employment with Employer, Employee will not, within any jurisdiction in which
Employer or any affiliate conducts its business operations, directly or
indirectly, own, manage, operate, control, be employed by or participate in the
ownership, management, operation or control of, or be connected in any manner
with, any business of the type or character engaged in or competitive with that
conducted by Employer. The decision of Employer's Board of Directors as to what
constitutes a competing business shall be final and binding upon Employee, and
such decision shall be made in good faith, or as adjudicated in a court of law.
For these purposes, ownership by Employee or any affiliate of Employee of
securities of a public company not in excess of 1% of any class of such
securities shall not be considered to be competition with Employer.
For a period of three (3) years after termination of Employee's
employment with Employer, Employee further agrees to refrain from interfering
with the employment relationship between Employer and its other employees by
soliciting any of such individuals to participate in any way in any other
business ventures and agrees to refrain from soliciting business from any client
or prospective client (as disclosed in a list, compiled in good faith, to be
provided to Employee by Employer at the time she ceases to be employed, which
list shall be binding upon Employee) of Employer's for Employee's benefit or for
any other entity.
It is the desire and intent of the parties that if any provisions of
this Section 4(A) shall be adjudicated to be invalid or unenforceable, this
Section 4(A) shall be deemed amended to delete therefrom such provisions or
portion adjudicated to be invalid or unenforceable, such amendment to apply only
with respect to the operation of this paragraph in the particular jurisdiction
in which such adjudication is made.
B. Intellectual Property. During the Term of Employment, Employee
will disclose to Employer all ideas, inventions and business plans developed by
Employee during such period which relates directly or indirectly to the business
of Employer or affiliates, including without limitation any process, operation,
product or improvement which may be patentable or copyrightable. Employee
agrees that such will be the property of Employer and that Employee will, at
Employer's request and cost, do whatever is reasonably necessary to secure the
rights thereto by patent, copyright or otherwise to Employer.
C. Confidentiality. Employee agrees to not divulge to anyone
(other than Employer or any other persons employed or designated by Employer)
any knowledge or information of any type whatsoever of a confidential nature
relating to the business of Employer or any of its subsidiaries or affiliates,
including without limitation all types of trade secrets (unless readily
ascertainable from public or published information or trade sources). Employee
further agrees not to disclose, publish or make use of any such knowledge or
information of a confidential nature without prior written consent of Employer.
5. REIMBURSEMENT OF EXPENSES. Employee shall be entitled to be
reimbursed for reasonable travel and other reasonable expenses incurred in
connection with Employee's services to Employer pursuant to and during the Term
of Employment upon a basis consistent with the policies established or announced
by Employer.
6. BREACH BY EMPLOYEE. Both parties recognize that the services to be
rendered under this Agreement by Employee are special, unique and extraordinary
in character, and that in the event of a breach by Employee of the terms and
conditions of this Agreement to be performed by Employee, or in the event
Employee performs services during the Term of Employment for any person, firm,
corporation or other entity engaged in a competing line of business with
Employer, or otherwise breaches this Agreement, Employer shall be entitled, if
it so elects, to take all actions, either in law or in equity, that it deems
necessary to protect its rights and interests.
7. TERMINATION FOR CAUSE. Employer may terminate Employee for cause upon
ten days' prior written notice to Employee. For purposes of this Agreement, an
event or occurrence constituting "cause" shall mean:
A. Employee's willful failure or refusal after notice thereof, to
perform specific directives of Employer's Board of Directors, when such
directives are consistent with the scope and nature of Employee's duties and
responsibilities as set forth in Section 1 and elsewhere herein;
B. Dishonesty of Employee affecting Employer;
C. Employee's conviction of a felony or of any crime involving
moral turpitude, fraud or misrepresentation;
D. Any gross or willful conduct of Employee resulting in
substantial loss to Employer, substantial damage to Employer's reputation or
theft from Employer;
E. Other than physical injury or illness, Employee's failure to
perform the duties and responsibilities under this Agreement; or
F. Any material breach (not covered by any of the clauses (A)
through (E)) of any of the provisions of this Agreement, causing damage to
Employer, if such breach is not cured within ten days after written notice
thereof to Employee by Employer.
8. ASSIGNMENT. This Agreement is a personal contract and, except as
specifically set forth herein, the rights and interests of Employee herein may
not be sold, transferred, assigned, pledged or hypothecated by Employee. The
rights and obligations of Employer hereunder shall be binding upon and run in
favor of the successors and assigns of Employer. In the event of any attempted
assignment or transfer of rights hereunder contrary to the provisions hereof,
Employer shall have no further liability for payments hereunder. Employee
specifically consents to assignment of this Agreement by Employer pursuant to
any reorganization or merger that Employer may effect hereafter.
9. GOVERNING LAW; CAPTIONS. This Agreement contains the entire agreement
between the parties and shall be governed by the laws of the State of New York.
It may not be changed orally, but only by agreement in writing signed by the
party against whom enforcement of any waiver, change, modification or discharge
is sought, and consented to in writing by the President of Employer. Section
headings are for convenience or reference only and shall not be considered a
part of this Agreement.
10. PRIOR AGREEMENTS. This Agreement supersedes and terminates all prior
agreements between Employer and Employee relating to the subject matter herein
addressed.
11. NOTICES. Any notice or other communication required or permitted
hereunder shall be sufficiently given if delivered in person to Employer by
delivery to its Chairman of the Board of Directors or sent by telex, telecopy or
by registered or certified mail, postage prepaid, addressed as follows:
If to Employee, to:
Xxxxxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000.
If to Employer, to:
Cadapult Graphic Systems Inc.
Attn: Xxxxxxx Xxxxx, President
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
fax: 000-000-0000
IN WITNESS WHEREOF, Employer has by its appropriate officer signed this
Agreement and Employee has signed this Agreement, on and as of the date and year
first above written.
CADAPULT GRAPHIC SYSTEMS INC.
By: /s/ Xxxxxxx X. Xxxxx,
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Xxxxxxx X. Xxxxx, Chairman of the Board
EMPLOYEE
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
