Exhibit 10.2
Dated June 16, 1995,
as amended on August 1, 1996
EMPLOYMENT AGREEMENT
Between
ROOM PLUS, INC.
and
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EMPLOYMENT AGREEMENT
DATE: June 16, 1995, as amended on August 1, 1996
THE PARTIES
Room Plus, Inc. a company registered to do business in New York
and whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ (the "Company")
and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ (the "Appointee")
1. DEFINITIONS
In this Agreement (except where the context otherwise
requires) the words and expressions set out below shall have
the following meanings:
a) Associated Company: Associated Company means from
time to time any company designated by the Board
as an Associated Company.
b) Board: The Board means the board of directors of
the Company from time to time or a duly authorized
committee thereof.
c) Compensation Committee: Compensation Committee is
the committee established by the Board for the
purposes of determining the annual salary, any
bonuses and other remuneration payable to the
Appointee and other executive officers of the
Company. In the event no such committee is
established by the Board, the Compensation
Committee shall mean the entire Board.
d) Employment: The term of employment of the
Appointee pursuant to this Agreement.
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e) Group: The Group means the Company and any
Associated Company and any holding company of the
Company and any subsidiary of such holding company
or of the Company from time to time.
f) Clause Headings: Clause headings are inserted for
ease of reference only and shall not affect
construction.
g) Miscellaneous: Words importing one gender shall
be treated as importing any gender; words
importing individuals shall be treated as
importing corporations and vice-versa; words
importing singular shall be treated as importing
plural and vice-versa; and words importing whole
shall be treated as including a reference to any
part thereof.
2. APPOINTMENT
The Company shall employ the Appointee and the Appointee shall serve
the Company as the Company's Executive Vice President and Director of
Manufacturing.
3. DURATION
3.1 The Employment shall be deemed to have commenced on June 30,
1995 ("the Commencement Date") and, subject to Paragraph 3.2,
shall continue unless terminated by not less than three years
written notice if given by the Company or not less than three
months' written notice if given by the Appointee, such notice
to be given at any time after the Commencement Date.
3.2 After notice of termination has been given by the Company or
Appointee pursuant to the provisions of this Agreement, the
Company shall, in its sole discretion, have the right to
relieve Appointee of his duties and deny Appointee access to
Company property PROVIDED THAT the Appointee shall be entitled
to receive his salary and any bonus in accordance with
paragraph 6 hereof during any such period.
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4. DUTIES
The Appointee will:
a) perform all the duties and exercise all the powers of
his office and such other functions within the Group
(not being inconsistent with his position as Executive
Vice President and Director of Manufacturing) as the
Board may reasonably require to the best of his
ability, giving the Company the full benefit of his
knowledge, expertise and technical skills and will
comply with all lawful directions given by or with the
authority of the Board, and will promptly, whenever
required to do so, give a full account to the Board or
a person duly authorized by the Board of all matters
with which he is entrusted;
b) whenever so required for the proper fulfillment of his
duties work, without further remuneration, in excess of
the normal hours of work of the Company, which are 35
hours per week; and
c) attend and work at any premises of the Group
wheresoever situated, and travel and work both in the
United States and abroad, as may be required for the
proper fulfillment of his duties provided the Company
shall not, without the Appointee's prior consent,
require him to go to or reside anywhere outside the
United States other than occasional visits in the
ordinary course of his duties and any expenses of such
relocation will be paid according to current Group
policy in appropriate circumstances.
5. FULL-TIME EMPLOYMENT
The Employment is full time and the Appointee will not, without the prior
authority of the Compensation Committee (and if the Appointee shall be a member
of the Compensation Committee, he shall not vote on the matter), engage or be
concerned or undertake or be interested in (whether directly or indirectly), any
other business or occupation (except real estate holdings) or become or an
employee or agent or consultant or partner of any
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other person, firm or company (other than a company within the
Group), except that
a) the Appointee may beneficially own any shares or
securities listed on a recognized stock exchange; and
b) the Appointee may maintain his interest in and perform
his duties for Retail Media Plus, Inc.
6. REMUNERATION
6.1 The Appointee will be compensated at the rate of $125,000 per
annum which shall accrue from day to day and be payable by
equal biweekly installments in arrears and shall be inclusive
of any director's and other fees and emoluments receivable by
the Appointee as a director of the Company or of any member of
the Group. Such salary will be increased annually based on the
New York-Northeastern New Jersey CPI published by the Bureau
of Labor Statistics of the United States Department of Labor.
6.2 The Appointee will be compensated by a performance bonus based
on 1.5% of gross profit of the Company as paid as a monthly
draw in advance. "Gross profit" shall mean the gross profit as
shown on the Company's financial statements.
At the end of the Company's fiscal year, the draw account will
be adjusted based on the actual gross profit for that year as
reported by the Company's then accountants and any over or
under adjustments will be reconciled 30 days after receipt of
the Company's audited year-end financial report. Should there
be a shortage in the draw account, the Appointee may repay
such shortage at the monthly rate of 1/12 of the shortage over
the next 12 months without interest.
6.3 The Company may also pay to the Appointee such further sum or
sums by way of bonus or otherwise in such manner and subject
to such conditions as the Compensation Committee (and if the
Appointee shall be a member of the Compensation Committee, he
shall not vote on the matter) shall determine in each year.
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7. EXPENSES
The Company shall reimburse the Appointee during the Employment
(against receipts or other appropriate evidence) for all expenses
properly and reasonably incurred by him in the course of his duties
under this Agreement. Such reimbursements will also be made for all
such expenses incurred by the Employee (against receipts or other
appropriate evidence) prior to the date of this Employment Agreement.
8. AUTOMOBILE
8.1 The Company shall provide an annual automobile allowance of
$7,800 to the Appointee for the Appointee's use for the
fulfillment of his duties under this Agreement on the
following terms:
a) the Company will insure the automobile and
reimburse the Appointee (against receipts or other
appropriate evidence) for all maintenance, oil,
repair and other running costs hereof;
b) the Appointer shall ensure that the automobile is
fully serviced at such intervals as are
recommended by the manufacturer of such model; and
c) the Company shall pay for fuel consumed by the
automobile for the fulfillment of the Appointee's
duties under this Agreement and for private
mileage.
8.2 The automobile shall at all times remain the absolute property
of the Company and shall be returned immediately on
termination of Employment.
9. BENEFITS
The Appointee shall be entitled to participate in any life insurance,
retirement plan (including, but not limited to, pension, annuity,
profit-sharing and deferred compensation plans), accident, disability,
health and dental insurance and stock purchase plan maintained by the
Company, on terms
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no less favorable to those extended to any other executive
of the Company.
10. SICKNESS PAY
10.1 The Appointee will be entitled to full pay during the first
six months of absence from Employment in any calendar year due
to sickness or injury and, for any subsequent such absence in
the same calendar year, to such pay as the Board may deem
appropriate, subject to the Company's right to terminate
Appointee's Employment pursuant to paragraphs 3.1 and 13.1
hereof.
10.2 The Appointee shall, at the request and expense of the
Company, submit to a medical examination at any time when the
Company sees fit as part of his Employment.
11. HOLIDAYS AND VACATION
11.1 The Appointee shall be entitled, with full remuneration, to
the usual public and statutory holidays and a further 20
working day's vacation in each calendar year to be taken at
such times as shall be agreed between the Board and the
Appointee, or failing agreement, as the Board may determine.
11.2 Such vacation entitlement shall be deemed to accrue from day
to day and may be carried over from one calendar year to the
next. The Appointee shall not be entitled to receive vacation
pay in respect to vacation days accrued but not taken by him
except on the termination of Employment (other than
termination pursuant to paragraph 14.1), when he shall be
entitled to receive vacation pay only in respect of vacation
days accrued in the calendar year in which the Employment
terminates but not taken at the date of such termination.
12. CONFIDENTIALLY
12.1 Without prejudice to the obligations of the Appointee
arising by law during the Employment or at any time
thereafter, the Appointee shall not, except with the
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prior written authority of the Board or under legal process,
use for his own purpose or disclose to any third party and
shall use his best endeavors to prevent the publication or
disclosure of any information relating to the business,
prospective business, technical process, systems, procedures,
finances, designs, inventions, price lists or lists of
customers and suppliers of any member of the Group (both
current and those who were customers or suppliers during the
previous two years) which comes into his possession by virtue
of the Employment, and which the relevant member of the Group
regards, or could reasonably be expected to regard, as
confidential or commercially valuable.
12.2 All plans, programs, designs, drawings, formulae, software,
correspondence, specification, price lists, lists of customers
and suppliers and all other documents, papers and property
which may have been made or prepared by, or at the request of,
the Appointee or have come into his possession or under his
control in the course of the Employment or which relate in any
way to the business (including prospective business) or
affairs of the Group or of any customer, supplier, agent,
distributor or sub-contractor of any member of the Group,
shall, as between the Company and the Appointee, be deemed to
be the property of the Company and shall, together with all
other documents, papers and property in the possession or
under the control of the Appointee and belonging to the Group,
be delivered by the Appointee to the Company immediately upon
termination of the Employment (or at any earlier time on
demand of the Company) and the Appointee shall not, without
the prior written consent of the Board, retain any copy
thereof.
13. TERMINATION
13.1 Notwithstanding the provisions of Paragraph 3.1, the Company
may terminate the Employment by written notice having
immediate effect if the Appointee:
a) is convicted of a criminal offense (excluding a
motor vehicle violation) irrespective of which he
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is sentenced to any term of imprisonment, whether
immediate or suspended; or
b) is disqualified from being a director of the
Company by any reason of an order made by any
competent court; or
c) is unable to perform the duties of the Employment
through sickness or injury for twenty-six
consecutive weeks or an aggregate of thirty-nine
weeks in any fifty-two consecutive weeks; or
d) suffers from mental disorder, substance abuse or
becomes of unsound mind which prevents him, in the
sole judgment of the Company, from carrying out
the duties of the Employment.
13.2 Upon termination of Employment or if the Appointee shall cease
for any reason to be a director of the Company, the Appointee
shall forthwith, if so required by the Company, resign from
his office as director of all companies of which is a director
which are members of the Group, and of all other companies of
which he shall have been appointed a director any member of
the Group by virtue of any right of nomination vested in such
member, and if he shall fail or refuse to do so, the Company
is hereby irrevocably authorized by the Appointee to appoint a
person in his place and on his behalf to do all such things
and execute all such documents as may be necessary for or
incidental to give effect to such resignation.
14. CHANGE OF CONTROL
14.1 In the event that any person or persons acting in concert
shall become beneficially entitled to 50% plus one share or
more of issued voting share capital of the Company pursuant to
an offer, the terms of which are not recommended by the Board
of the Company, the Appointee can, at his sole discretion,
terminate this Agreement within one week of such change of
control becoming absolute, or such later date as may be
subsequently agreed with the acquirer.
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14.2 In the event of such termination, the Appointee will be
entitled to receive an amount equal to three (3) times his
annual salary plus bonus, if any, subject to any tax
deductions or other withholdings as may be required by law.
15. RESTRICTIONS
The Appointee shall not, either alone or jointly with another or
others, whether as principal, agent, consultant, director, partner, or
employee, whether directly or indirectly through any other person, firm
or company, and whether for his own benefit or that of others:
a) for a period of one year following the termination of
the Employment, solicit or endeavor to entice away any
employee, director, agent or independent contractor or
of any member of the Group or do any act whereby such
employee, director, agent or independent contractor is
encouraged to terminate his employment, appointment or
contract with any member of the Group, whether or not
such person would, by reason of terminating his service
with or that member of the Group, be committing a
breach of his contract with such company; or
b) at any time during or after the termination of the
Employment, use the name "Room Plus," "Just 'Round the
Corner," "A Lot of Living in a Little Space" or any
name likely to cause confusion therewith in the minds
of members of the public for the purpose of a business
similar to or competing with any business carried on by
or any member of the Group whether such name is part of
a corporate name, corporate motto or otherwise.
16. SEVERABILITY
16.1 Each of the restrictions contained in paragraphs 12 and 15
hereof constitutes an entirely separate and independent
restriction and is considered by the parties to be reasonable
and necessary for the protection of the legitimate interests
of the Group, but if any such restriction or part thereof
shall be found void by any court of competent jurisdiction but
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would be valid if some words were deleted therefrom, or the
period thereof reduced, or are covered or range of activities
reduced, such restrictions shall apply with such modification
as may be necessary to make it valid and effective.
16.2 In the event of any paragraph contained in this Agreement or
any part thereof being declared invalid or unenforceable by
any court of competent jurisdiction, all other paragraphs or
parts thereof contained in this Agreement shall remain in full
force and effect and shall not be affected thereby.
17. AMENDMENTS AND WAIVERS
17.1 No amendment to the provisions of this Agreement shall be
effective unless in writing and signed by the parties hereto
or their duly authorize representatives.
17.2 All rights, remedies and powers conferred upon the parties
hereto are cumulative and shall not be deemed or construed to
be exclusive of other rights, remedies or powers now or
hereafter conferred upon the parties hereto or either of them
by law or otherwise.
17.3 Any failure of either party at any time to insist upon or
enforce any such right, remedy or power shall not be construed
as a waiver thereof.
18. NOTICES
18.1 Any notice required or authorized hereunder shall be in
writing and may be served by personal delivery or
registered mail.
18.2 Notices shall be deemed to be served at the time of delivery
in the case of personal delivery, and upon receipt in the case
of registered mail.
19. POST TERMINATION PROVISIONS
Any provision of this Agreement which contemplates or is
capable of operation after termination of the Employment
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shall apply, notwithstanding termination of the Employment
for whatever reason.
20. WHOLE AGREEMENT
This Agreement constitutes the whole agreement between the parties. All
other agreements (if any) for service between the Company and the
Appointee or any other member of the Group are hereby abrogated and
superseded.
ROOM PLUS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Chairman
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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