EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made this 7th day of June, 1996, by and between
COMPLINK, LTD., a New York corporation with its principal place of business at
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(the "Executive").
WHEREAS, the Company desires to employ the Executive as its Chief
Executive Officer and Chairman of the Board and the Executive is willing to
undertake such employment, and the parties hereto wish to set forth certain
terms of the Executive's employment with the Company.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto do agree as follows:
1. Employment. The Company hereby employs the Executive, and the
Executive hereby accepts such employment, as Chief Executive Officer and
President of the Company, upon the terms and subject to the conditions contained
herein.
2. Duties.
(a) The Executive shall have the authority and perform all duties of
the position of Chief Executive Officer and Chairman of the Board of the Company
consistent with the powers and duties of such offices set forth in the Company
By-Laws, as well as any other duties, commensurate with the Executive's
position, which are assigned by the Board of Directors of the Company (the
"Board"). The Executive will be in charge of all day-to-day operations of the
Company, provided however, that the Board of Directors must approve all budgets
of the Company and all transactions not reflected in such budget which require
the Company to expend more than $50,000. Notwithstanding the foregoing, the
Executive may authorize expenditures in excess of $50,000 if such expenditures
are pursuant to a purchase order or the Company has received a letter of
commitment from a customer. The Company will maintain a bank account with a
Federal Deposit Issuance Corporation ("FDIC") insured bank selected by the
Executive. The Executive agrees that checks drawn on such account which are
equal to or greater than $10,000 must be co- signed by another officer of the
Company.
(b) Throughout his employment hereunder, Executive shall devote his
full time, attention, knowledge and skills during normal business hours in
furtherance of the business of the Company and will faithfully, diligently, and
to the best of his ability, perform the duties described above and further the
Company's best interests. During his employment, the Executive
shall not engage, and shall not solicit any employees of the Company or its
subsidiaries or other affiliates to engage, in any commercial activities which
are in any way in competition with the activities of the Company, or which may
in any way interfere with the performance of his duties or responsibilities to
the Company.
(c) The Executive shall at all times be subject to, observe and
carry out such rules, regulations, policies, directions and restrictions as the
Company, consistent with Executive's rights and duties under this Agreement, may
from time to time establish and those imposed by law.
3. Executive Covenants. In order to induce the Company to enter into
this Employment Agreement, the Executive hereby agrees as follows:
(a) Except when it is in the interest of the Company, or with the
consent of or as directed by the Board, the Executive shall keep confidential
and shall not divulge to any other person or entity, during the term of the
Executive's employment or thereafter, any of the business secrets or other
confidential information regarding the Company or its subsidiaries which have
not otherwise become public knowledge.
(b) All papers, books and records of every kind and description
relating to the business and affairs of the Company, whether or not prepared by
the Executive, shall be the sole and exclusive property of the Company, and the
Executive shall surrender them to the Company at any time upon request by the
Board.
(c) During the term of employment by the Company, and for a period
of one (1) year thereafter unless the Agreement is terminated pursuant to
Paragraph 8(d) hereof, the Executive shall not, without the prior written
consent of the Board (such consent not to be unreasonably withheld) (i)
participate as a director, stockholder or partner, or have any direct or
indirect financial interest as creditor, in any business which directly or
indirectly competes with the Company or its subsidiaries which exist as of the
date of the termination of this Agreement (the "Existing Subsidiaries");
provided, however, that nothing in this Agreement shall restrict the Executive
from holding up to two (2%) percent of the outstanding capital stock or other
securities of any publicly traded entity; (ii) solicit any customers of the
Company or its Existing Subsidiaries to stop or reduce the business such
customer is conducting with the Company or its Existing Subsidiaries; or (iii)
directly or indirectly, act in the capacity of an executive officer, employee or
in any other capacity for or of any company or other entity, within the
continental United States, which designs, develops, markets or supports software
communications and network gateway products or
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otherwise designs, develops or markets any products in competition with any of
the products of the Company or its Existing Subsidiaries.
(d) The parties agree that the Executive's services are unique and
that any breach or threatened breach of the provisions of this Paragraph 3 will
cause irreparable injury to the Company and that money damages will not provide
an adequate remedy. Accordingly, the Company shall, in addition to other
remedies provided by law, be entitled to such equitable and injunctive relief as
may be necessary to enforce the provisions of this Paragraph 3 against the
Executive or any person or entity participating in such breach or threatened
breach. Nothing contained herein shall be construed as prohibiting the Company
from pursuing any other and additional remedies available to it, at law or in
equity, for such breach or threatened breach including any recovery of damages
from the Executive and the immediate termination of his employment.
4. Base Salary and Bonuses. As full compensation for Executive's
services hereunder and in exchange for his promises contained herein, the
Company shall compensate the Executive in the following manner:
(a) Base Salary. The Company shall compensate Executive at the base
salary rate of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($130,000
U.S.) per annum, payable in equal installments on the same basis as other senior
salaried officers of the Company. Such annual salary may be increased in the
future by such amounts and at such times as the Board shall deem appropriate in
its sole discretion reasonably exercised based upon the financial performance of
the Company.
(b) Annual Bonuses. The Board, shall also grant bonuses to the
Executive based upon the financial and operating performance of the Company. The
bonuses paid to the Executive may not exceed 60% of the Executive's base salary.
Bonuses will be based on a schedule approved by the Board of Directors of the
Company.
(c) Withholding. The amounts set forth in subparagraphs (a) and (b)
above shall be subject to appropriate payroll withholding and any similar
deductions required by law.
5. Long-Term Incentive Plan. The Executive shall be entitled to
participate, to the extent he is eligible under the terms and conditions
thereof, in any stock option plan, stock award plan, Omnibus stock plan,
performance unit plan or similar incentive plan currently in existence or
hereafter established by the Company, in the manner and to the same extent as
the Company's other senior executive officers. Awards to the Executive under any
such plan shall be made at such times and in
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such amounts as shall be determined in the sole discretion reasonably exercised
of the Board subject to confirmation by Holdings Board or the Executive
Committee thereof.
6. Benefit Plans. During the term of his employment, the Executive
shall be entitled to participate in the Company management employee benefits and
retirement plans, as they are in existence on the date of this Agreement, or as
they may be amended or added hereafter, to the same extent as the Company's
other senior executive officers.
7. Other Benefits. The Executive shall be provided the following
additional benefits:
(a) Business Expense. The Company shall reimburse the Executive,
upon proper accounting, for reasonable expenses and disbursements incurred by
him in the course of the performance of his duties hereunder.
(b) Vacation. The Executive shall be entitled to four (4) weeks of
vacation each year of this Agreement, without reduction in salary.
(c) Automobile. The Company shall at its expense cause an automobile
to be made available for use by the Employee during the term of this Agreement.
(d) Life Insurance. The Company shall enter into a term life
insurance policy whereby the Company shall pay the premiums on a term life
insurance policy for the Executive insuring the life of the Executive for
$350,000. The Executive shall be deemed the owner of the life insurance policy
and shall have such right to designate the beneficiaries of such policy.
8. Duration and Termination.
(a) Duration. The term of this Agreement shall commence, and be
contingent upon, the merger of the Company or its subsidiaries with the NETPLEX
Group, Inc. and America's Work Exchange, Inc. and shall terminate three years
after the effective date of such merger, unless earlier terminated pursuant to
the provisions hereof.
(b) Termination Upon Death of Executive. This Agreement shall
immediately terminate, and all rights, benefits and obligations hereunder shall
cease, in the event of the Executive's death; provided, however, that his heirs
shall continue to be paid his salary for a period of one (1) year thereafter and
participate in the Company's medical insurance plans.
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(c) Termination Upon Disability of Executive. In the event that a
mutually acceptable physician determines that the Executive is unable to
substantially perform his usual and customary duties under this Agreement for
more than four (4) months in any calendar year, this Agreement shall immediately
terminate. However, in addition to such entitlements as the Executive may have
under any Company disability insurance, or other disability insurance program,
the Executive's salary and participation in the Company's medical insurance
plans shall be continued for a period of one (1) year subsequent to the date of
termination of employment.
(d) Termination by the Company for Reasons Other Than Cause. In the
event of the termination of this Agreement by the Company for any reason other
than "Cause" (hereinafter defined), the Executive shall be entitled (without any
obligation on the part of the Executive to mitigate damages) to continuation of
his Base Salary and the benefits set forth in Paragraphs 5, 6 and 7 herein for
the remainder of the term of this Agreement. Notwithstanding the foregoing, the
provisions of Paragraph 3 shall survive termination of this Agreement for all
purposes.
(e) Termination by the Company for Cause. The Company, by notice
from the Board to the Executive, shall have the right to terminate this
Agreement in any of the following events (each of which shall constitute
"Cause"): (i) the ----- Executive's willful and material breach in respect of
his duties under this Agreement if such breach continues unremedied for thirty
(30) days after written notice thereof from the Board to the Executive
specifying the acts constituting the breach and requesting that they be
remedied; or (ii) the Executive is convicted or pleads guilty to a felony,
during the employment period other than for conduct undertaken in good faith in
furtherance of the interests of the Company.
All compensation, benefits and reimbursements (including any annual
bonus, pro rated based on the number of days prior to termination) accrued
through the date of termination shall be paid to the Executive at the times
normally paid by the Company, and the Executive shall thereafter be entitled to
retain all benefits and rights accrued through the termination date. Termination
under this subparagraph (e) shall be without damages or liability to the
Executive for compensation and other benefits which would have accrued hereunder
after termination.
9. Indemnification. The Company shall defend and hold the Executive
harmless to the fullest extent permitted by applicable law and the Company
By-Laws and Certificate of Incorporation in connection with any claim, action,
suit, investigation or proceeding arising out of or relating to performance by
the Executive of services for, or action of the Executive as a Director, officer
or employee of, the Company or any parent,
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subsidiary or affiliate of the Company, or of any other person or enterprise at
the Company's request. Expenses incurred by the Executive in defending a claim,
action, suit or investigation or proceeding shall be paid by the Company in
advance of the final disposition thereof upon the receipt by the Company of any
undertaking by or on behalf of the Executive to repay such amount unless it
shall ultimately be determined that he is entitled to be indemnified hereunder;
provided, however, that this Paragraph 9 shall not apply to a non-derivative
action commenced by the Company against the Executive.
10. Successors and Assigns. The rights of the Company hereunder shall
run in favor of the Company, its successors, assigns, nominees or other legal
representatives. Termination of Executive's employment shall not operate to
relieve him of any remaining obligations hereunder, and all such obligations are
binding upon his heirs, executors, administrators or other legal
representatives. The Company shall require any successor (whether direct or
indirect, by purchase, merger, reorganization, consolidation, acquisition of
property or stock, liquidation or otherwise) to all or a significant portion of
the assets of the Company, by agreement in form and substance satisfactory to
the Executive, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
if no such succession had taken place. Regardless of whether such agreement is
executed, this Agreement shall be binding upon any successor in accordance with
the operation of law and such successor shall be deemed the "Company" for
purposes of this Agreement.
11. Arbitration of All Disputes.
(a) Any controversy or claim arising out of or relating to this
Agreement or the breach thereof (including the arbitrability of any controversy
or claim), shall be settled by arbitration in the County of Nassau, State of New
York, by three arbitrators, one of whom shall be appointed by the Company, one
by the Executive and the third of whom shall be appointed by the first two
arbitrators. If the first two arbitrators cannot agree on the appointment of a
third arbitrator, then the third arbitrator shall be appointed by the American
Arbitration Association. The arbitration shall be conducted in accordance with
the rules of the American Arbitration Association, except with respect to the
selection of arbitrators which shall be as provided in this Section. The cost of
any arbitration proceeding hereunder shall be borne equally by the Company and
the Executive. The award of the arbitrators shall be binding upon the parties.
Judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
(b) In the event that it shall be necessary or desirable for the
Executive to retain legal counsel and/or incur
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other costs and expenses in connection with the enforcement of any or all of his
rights under this Agreement, and provided that the Executive substantially
prevails in the enforcement of such rights, the Company shall pay (or the
Executive shall be entitled to recover from the Company, as the case may be) the
Executive's reasonable attorneys' fees and costs and expenses in connection with
the enforcement of his rights, including the enforcement of any arbitration
award.
12. Notices. All notices, requests, demands and other communications
hereunder must be in writing and shall be deemed to have been duly given upon
receipt if delivered by hand, sent by telecopier or courier, and three (3) days
after such communication is mailed within the continental United States by first
class certified mail, return receipt requested, postage prepaid, to the other
party, in each case addressed as follows:
(a) if to the Company:
CompLink, Ltd.
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Att: Executive Vice President
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome & ▇▇▇▇▇▇▇▇▇▇ LLP
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Att: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
(b) if to the Executive:
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Addresses may be changed by written notice sent to the other party at the last
recorded address of that party.
13. Severability. If any provision of this Agreement shall be adjudged
by any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement.
14. Prior Understanding. This Agreement embodies the entire
understanding of the parties hereto, and supersedes all other oral or written
agreements or understandings between them regarding the subject matter hereof.
No change, alteration or modification hereof may be made except in a writing,
signed by both parties hereto. The headings in this Agreement are for
convenience and reference only and shall not be construed as part
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of this Agreement or to limit or otherwise affect the meaning hereof.
15. Execution in Counterparts. This Agreement may be executed by the
parties hereto in counterparts, each of which shall be deemed to be original,
but all such counterparts shall constitute one and the same instrument, and all
signatures need not appear on any one counterpart.
16. Choice of Laws. Jurisdiction over disputes with regard to this
Agreement shall be exclusively in the courts of the State of New York, and this
Agreement shall be construed in accordance with and governed by the laws of the
State of New York.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
COMPLINK, LTD.
By:
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Authorized Officer
ATTEST:
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