Exhibit 10.3 - Employment Agreement
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") made as of June 9, 1998, by and
between Xxxxxx Media, Inc., a New York corporation having its principal place
of business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Employer"), and
Xxxxxx X. Xxxxxxxxxx, 00 Xxxxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (the
"Employee").
W I T N E S S E T H:
WHEREAS the Employer is engaged in the promotion, marketing and sales of
telecommunications-related merchandise; and
WHEREAS the Employee possesses sales, management and marketing
experience related to the type of business and activities in which the Employer
is now engaged;
WHEREAS the Employee has entered into a certain Stock Purchase Agreement
dated November 26, 1996 among DCI, Xxxxxx Xxxxxx, the Employee, and Employer
(the "Stock Purchase Agreement"); and
WHEREAS the Employee desires to be employed by the Employer and the
Employer desires to employ the Employee, upon the terms and conditions
contained in this Agreement.
NOW, THEREFORE, in consideration of the covenants and promises contained
in this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Employer and the Employee
agree as follows:
1. Employment. The Employer hereby employs the Employee and the
Employee hereby accepts employment from the Employer, upon the terms and
conditions set forth in this Agreement.
2. Term. The term of this Agreement shall commence on the date of
this Agreement and shall end three (3) years from such date plus a one (1)
year extension at Employee's option.
3. Scope of Duties. During the term of this Agreement, the Employee
shall be employed as Executive Vice President of Employer. The Employee
shall have general responsibility as to the development of new business and
sales of products of the business.
4. Scope of Service. During the term of this Agreement, the Employee
shall, consistent with his duties as Executive Vice
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President of Employer, devote his attention, energies, and best efforts to the
business of the Employer, and shall perform all of the duties that are required
of him pursuant to the express terms of this Agreement. During the term of this
Agreement, the Employee shall not, directly or indirectly, alone or as a member
of any partnership, firm, corporation, association or other entity, or as an
officer, director, employee or consultant of any corporation or other entity,
be engaged in or concerned with any other business activity, whether or not
such business activity is pursued for gain or profit or for other pecuniary
advantage which shall compete with the Employer in the promotion, marketing and
sales of telecommunications-related merchandise. Employee will be allowed to
serve on boards of directors of non-profit organizations, engage in charitable
activities and deliver lectures which do not directly compete with, or directly
benefit competitors of the Employer. The foregoing shall not, however, be
construed as preventing the Employee from investing his personal assets in such
form or manner as will not require any services on his part in the operation of
affairs of the companies or enterprises in which such investments are made.
5. Compensation. As compensation for services rendered by the
Employee to the Employer, the Employee shall be paid during the term of this
Agreement out of the general fund of Employer the following amounts:
(a) Base Salary.
(i) For the calendar year 1998 and until December 31,
1998, the Employee shall receive a base salary equal to One hundred
seventy-five thousand dollars ($175,000) per annum, payable in monthly
installments ("Base Salary"). In addition, he will receive commissions in
accordance that certain contract with Delta Television Group dated April 2,
1984, as amended and supplemented on January 2, 1985 and January 1, 1994.
(ii) The amount of the Employee's Base Salary in all
subsequent years during the term of this Agreement, and renewals thereof, will
be increased on January 1 of each year. During the term of this Agreement and
all renewals thereof, the then, current Base Salary shall be increased as of
each January 1, beginning January 1, 1999, by a rate equivalent to any
percentage increase in the Consumer Price Index for the twelve month period
occurring prior to the date of the scheduled change, plus five percent (5%). As
used in this section, the Consumer Price Index shall mean (i) the "CONSUMER
PRICE INDEX FOR URBAN WAGE EARNERS AND CLERICAL WORKERS, currently published by
the Bureau of Labor Statistics of the United States Department of Labor for the
Greater New York Metropolitan Area on a bi-monthly basis, or (ii) if the
publication of the Consumer Price Index shall be discontinued, and/or the
Consumer Price Index is published more or less frequently at the time any of
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the foregoing determinations are made, the comparable index most clearly
reflecting dilution of the real value of the Base Salary and/or the
publication periods most comparable to those specified above. In the event
of a change in the base for the Consumer Price Index, the numerator of the
fraction referred to above shall be appropriately adjusted to reflect
continued use of the base period in effect at the time of its adoption for
use hereunder. At the request of either party hereto, the other from time
to time shall execute an appropriate instrument supplemental to this
Agreement evidencing the then current Base Salary payable by the Employer
hereunder.
(b) Stock Purchase Option.
In addition to the Base Salary, DCI shall grant to employee
a stock option to purchase 50,000 registered shares of DCI on the effective
date of this Agreement and, thereafter to purchase 50,000 registered shares of
DCI on each anniversary date of this Agreement (a total of 150,000 registered
shares for the term of this Agreement and 50,000 registered shares in the
option year if option is taken), in each case under the same terms and
conditions contained in DCI's stock option plan which is hereby incorporated by
reference in this Employment Agreement and at a price equal to the price per
share prevailing on the date of execution of the Stock Purchase Agreement, in
the case of the option granted on the effective date of this Agreement and, in
the case of each subsequent option granted on each anniversary date of this
Agreement at the then existing market price.Options granted pursuant to this
section shall vest on the first anniversary of the date such options are
granted and shall be exercisable for a period of five years after the date of
grant.
6. Withholdings. All compensation, including any incentive bonus,
paid to the Employee under this Agreement shall be subject to applicable
withholdings for federal, state, and local income taxes, FICA, and all other
applicable withholdings required by law.
7. Vacation. In each calendar year during the term hereof, the
Employee shall be entitled to an annual paid vacation of four (4) weeks.
Vacation shall be taken upon reasonable advance notice to the Employer, and at
such times not to interfere with the proper operation of Employer's business or
the Employee's responsibility under this Agreement. Unused vacation shall be
carried over from year to year, and the Employee shall be entitled to the value
of any unused vacation time remaining upon the expiration or earlier
termination of this Agreement.
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8. Employee Benefits. During the term of this Agreement the Employee shall
be entitled, at the Employee's option, to participate in, and to receive the
following:
(a) Life insurance, disability insurance, health, dental and
welfare plans of the Employer or DCI; and
(b) Any and all retirement plans established by the Employer or
DCI pursuant to the terms of said plan, including, but not limited to, Thrift
Plans, ESOP's and 401(k) plans, it being understood that, in the event that the
Employee elects to be covered under Employer's benefit plans during the term of
this Agreement and Employer is capable of maintaining such plans without
subsidy from DCI, DCI shall not terminate any such retirement plan.
9. Expenses.
(a) Employer shall reimburse the Employee for all reasonable
expenses incurred by the Employee in connection with the rendering of services
under this Agreement including, without limitation, reasonable travel
(reasonable air travel defined as Business Class for trips in excess of 2
hours) and entertainment, Employee's attorneys fees incurred in preparation and
review of this Agreement and reasonable legal fees if any litigation or
proceeding results in a settlement or judgment at least partly in favor of the
Employee.
(b) Employer obligation to reimburse the Employee for such
reasonable expenses is conditioned upon the Employee submitting itemized
statements, bills, receipts, or other evidence of expenditure, in a form
reasonably satisfactory to the Employer. Reimbursement for any authorized
expenses shall be made by the Employer within thirty (30) days after the
Employer's receipt of such itemized statements, bills, receipts, or other
evidence of expenditure from the Employee.
10. Termination.
(a) Termination for cause. The Employer, acting through its
Board of Directors, may terminate this Agreement only for cause by written
notice to the Employee. For the purposes of this Agreement, the term "cause"
shall include only the following acts: (1) any material breach of any fiduciary
duty owed by the Employee to Employer which if curable is not cured within 30
days after written notice from Employer to Employee; or (2) any mental or
physical disability suffered by the Employee which makes it impossible for the
Employee to perform his duties under this Agreement for a period of one hundred
eighty (180) consecutive days; or (3) the Employee's failure, not caused by
physical or mental disability, to perform his duties and responsibilities as
required under the express
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terms of this Agreement. Employer may not terminate this Agreement under any
other circumstances.
(b) Voluntary termination by Employee. This Agreement may be
terminated by the Employee with or without cause upon sixty (60) days written
notice to the Employer provided that employee may not compete with Employer and
or DCI in the television distribution business for a period equal to the lesser
of one year from date of termination or the remainder of the then effective
term of this Agreement.
In the event that this Agreement is terminated by the Employee for any
of the following reasons (collectively, "Employee Cause"), the Employee shall
be entitled to Severance Benefits described in Section 11 below:
(i) The Employer is liquidated, dissolved, consolidated,
merged or sold, or a controlling interest in the common stock of the Employer
is transferred from the current owner (s) thereof;
(ii) Any material breach of any other obligation of the
Employer hereunder.
Employer covenants that it will not:
(i) Remove Employee from his current position, or reduce
the Employee's duties and responsibilities;
(ii) Relocate the Employee outside of New York or
Connecticut;
(iii) Reduce the Employee's salary and/or benefits from
those set forth in this Agreement; or
(iv) Terminate this Agreement for any reason other than as
set forth in Section 10(a).
Any breach by Employer of this provision will constitute a "material breach"
under Section 10(b)(ii) hereof.
(c) Physician statement. Prior to terminating the
Employee by reason of the existence of any condition of mental or
physical disability, as stated in paragraph (a) of this
Section 10, the Employer shall first obtain a written statement
from an attending physician or psychotherapist competent in the
area relating to Employee's illness or condition, stating that in
the physician or psychotherapist's professional opinion, the
Employee is unable to perform his duties and responsibilities in
a manner contemplated by this Agreement. If Employee refuses or
fails to consent to an examination of the Employee for the
purpose of obtaining the written statement required herein, then
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the necessity of obtaining such statement shall be deemed waived by .the
Employee.
(d) Termination upon death of Employee. This Agreement shall
terminate upon the Employee's death. Upon such termination Employee's estate
shall be entitled to receive Base Salary plus any adjustments due to the
Employee to the last day of the calendar month which is the full calendar month
succeeding the calendar month in which death occurs and any unpaid incentive
bonus for such period which may become due by reason of collection after
Employee's death.
11. Severance. In the event that this Agreement is terminated by the
Employee for Employee Cause, then the Employer shall pay Employee the
following:
(a) A severance bonus from the general funds of the Employer,
consisting of:
(i) The present value of the Employee's salary, less
amounts the Employee would have paid for under the benefits set forth in
Section 8 hereof for the greater of the unexpired term of this Agreement or two
(2) years;
(ii) At the Employee's election, either the payment of the
present value as a lump sum, or payment in any form and manner provided for in
the Employer's or DCI's retirement plan, of the pension benefits which the
Employee would have received at the end of the term hereof, calculated on the
assumptions of full vesting and compensation for the unexpired portion of the
term hereof at the rate in effect at the time of termination;
(iii) The present value of payments the Employer or DCI
would have made during the unexpired portion of the term hereof to any ESOP and
Thrift Plan for the Employee; and
(iv) Commissions earned per the Agreement will continue to
be paid by the Employer for sales generated by the Employee but unpaid as of
the termination date.
The severance bonus due under this paragraph 11(a) shall be paid to the
Employee in a single lump sum within thirty (30) days after the termination of
the Employee;
(b) The Employee's then-effective Base Salary for a period of
six (6) months or until such sooner time as Employee obtains new employment, to
be paid to the Employee on the dates when such salary would have been payable
had such employment not been terminated; and
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(c) In addition to any COBRA rights, reasonable expenses pursuant to
Paragraph 8 of this Agreement for health and life insurance in the amounts and
coverages existing at the time of termination (i) for a period of the longer of
six months or the remainder of the year in which Employee terminates this
Agreement, or (ii) until such sooner time as Employee obtains new coverage in
the course of new employment.
12. Assignment. The Employee acknowledges that the services to be
rendered by him are unique and personal. Accordingly, the Employee may not
assign any of his rights or delegate any of his duties or obligations under
this Agreement.
13. Entire Agreement. This Agreement contains the entire agreement of
the parties regarding the subject matter hereof. This Agreement may not be
amended or modified except by a writing executed by both the Employer and the
Employee.
14. Severability. All agreements and covenants contained in this
Agreement are severable, and in the event any of them are held to be invalid,
then this Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein.
15. Governing Law. This Agreement shall be governed, construed, and
interpreted by and in accordance with the laws of the State of New York. Any
dispute arising under this Agreement that is not settled promptly in the
ordinary course of business shall be resolved pursuant to the arbitration
procedure set forth in Section 13.5 of the Stock Purchase Agreement except that
the term "Employee," as used in this Agreement, shall be substituted for the
terms "Seller" and "Sellers" as used in the Stock Purchase Agreement, and any
arbitration procedure instituted pursuant to this Agreement shall pertain only
to the Employee, not to any other party who may have an employment agreement
with the Employer nor to any other employment agreement between the Employer
and another employee.
16. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all collectively
constituting the same instrument.
17. Notices. All notices required or permitted under this Agreement
shall be in writing and shall de deemed "given" when personally delivered or if
mailed by registered or certified mail, postage prepaid, to the respective
addresses of the parties stated in the preamble to this Agreement, within 5
business days of such mailing.
18. Binding Agreement. The provisions, covenants and agreement
contained herein will inure to the benefit of, and be binding upon, the parties
hereto and the respective heirs,
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executors, administrators, successors, legal representatives and assigns.
19. Waiver of Breach. The waiver by either party of a breach or
violation of any provisions of this Agreement shall not operate as, or be
construed to be, a waiver of any subsequent breach thereof.
IN WITNESS WHEREOF, the parties have executed this employment agreement
as of the day and year first above written.
Xxxxxx Media, Inc.
---------------------------- By --------------------
Witness (Jordan X. Xxxxxx) Xxxxxx Xxxxxx
(Xxxxx Xxx) Its President
(Xxxxxxxxx Xxxxx)
W
-------------------------
XXXXXX X. XXXXXXXXXX
Approved by:
DCI Telecommunications, Inc.
---------------------------- By --------------------
Witness Xxxxxx X. Xxxxxx
Its: President
----------------------------
Witness
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MMI
XXXXXX MEDIA, INC.
May 1, 2001
Xx. Xxxxxx Xxxxxx
DCI TELECOMMUNICATIONS, INC.
000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Re: Addendum Agreement of Employment Terms and
Extensions - Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxxxx
Dear Xxx:
The purpose of this letter is to confirm our meeting and conversations as to
extended or changed employment circumstances for Xxxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxxxxxx effective June 9, 2001.
As to XXXXXX X. XXXXXXXXXX, he will be promoted to President and C.O.O. of
Xxxxxx Media, Inc., a wholly owned subsidiary of DCI Telecommunications, Inc.
With his added responsibilities, in addition to his usual annual salary
increase in accordance with his Employment Agreement dated June 9, 1998, Xx.
Xxxxxxxxxx'x salary (after annual increase) will increase by $25,000.00
annually beginning June 9, 2001. In addition, his employment agreement will be
extended for an additional three (3) years under the same terms and conditions
set forth in his June 9, 1998 Employment Agreement (or to June 9, 2004).
As to XXXXXX X. XXXXXX, he will become Chairman and C.E.O. of Xxxxxx Media,
Inc., a wholly owned subsidiary of DCI Telecommunications, Inc. Xx. Xxxxxx'x
responsibilities will include advising, consulting, and assisting Xx. Xxxxxx X.
Xxxxxxxxxx with his new and expanded duties as President and C.O.O. Xx. Xxxxxx
will no longer frequent the offices of Xxxxxx Media, Inc. or travel on their
behalf on a regular basis, but will be available on an as needed basis to
prepare Xx. Xxxxxxxxxx for his new responsibilities.
In return for Xx. Xxxxxx'x adjusted position with Xxxxxx Media, Inc., he is to
have his salary reduced to $200,000., his employment as such to be for one (1)
year beginning June 9, 2001, and will include the same terms, conditions and
benefits set forth in his original June 9, 1998 Employment Agreement.
00 XXXX 00xx XXXXXX, XXX XXXX, XX 00000-0000 (000) 000-0000
FAX: (000) 000-0000 Email: xxxxxx0000@xxx.xxx
Page 2 of 2
May 1, 2001
Xx. Xxxxxx Xxxxxx, DCI Telecommunications
Addendum Agreement of Employment Terms and Conditions
It is also understood and agreed that Xx. Xxxxxxxxxx will have the right, if
needed, to hire an additional sales representative for Xxxxxx Media, Inc. to
travel, communicate and present the company's product throughout the Television
and/or Cable Territories for which the company has under license. Salary and
terms of employment for such new employee will be consistent with industry
standards.
If the above is in full accordance with our mutual understanding and agreement,
please counter-sign below, returning three (3) individually signed copies to my
attention.
Agreed to as to Agreed to as to
DCI Telecommunications, Inc. Xxxxxx Media, Inc.
Dated .5/10/01 Dated 5/1/01
--------------------------- -------------------------------
Xxxxxx Xxxxxx Title Xxxxxx X. Xxxxxx President
Dated 5/1/01
---------------------------------
Xxxxxx X. Xxxxxxxxxx E.V.P.
00 XXXX 00xx XXXXXX, XXX XXXX, XX 00000-0000 (000) 000-0000
FAX: (000) 000-0000 Email: xxxxxx0000@xxx.xxx
