EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") by and between COMPU-▇▇▇▇, INC., a
Delaware corporation ("Company"), and ▇▇▇▇ ▇▇▇ ("Executive") is made and entered
into a New York, New York on this the 28th day of October, 1996, effective as of
the 1st day of October, 1996 ("Effective Date").
TERMS OF EMPLOYMENT
1.1 Employment. The Company hereby employs the Executive as the
President and Chief Operating Officer of the Company for and during the term
hereof. The Executive hereby accepts employment under the terms and conditions
set forth in this Agreement.
1.2 Duties of Executive. The Executive shall perform in the capacity
described in Section 1.1 hereof and shall have such duties, responsibilities,
and authorities as are designated for such offices pursuant to the Bylaws, as
amended, of the Company, and as may be reasonably assigned to him from time to
time by the Board of Directors of the Company; provided, however, the Executive
shall, during the term hereof, continuously have and retain such duties,
responsibilities, and authorities at least as significant in scope and substance
as the duties, responsibilities, and authorities required of the Executive's
offices and position with the Company as of the effective date. The Executive
agrees to devote his full time during normal business hours, best efforts,
abilities, knowledge and experience to the faithful performance of the duties,
responsibilities, and authorities which may be reasonably assigned to him and
which are consistent with his executive offices under Section 1.1 of this
Agreement. Notwithstanding the preceding, the Executive may, without being in
violation of his obligations hereunder, (i) serve on corporate, civic or
charitable boards or committees which are not engaged in business in the
computer software industry; provided, however, the Executive may serve as an
officer or director of a trade or business association related to the computer
software industry provided, however, the Executive may serve as an officer or
director of a trade or business association related to the computer software
industry; (ii) invest the Executive's personal assets in such form or manner as
will not require any material services by the Executive in the operation of the
entities in which such investments are made, provided the Executive shall use
his best efforts to pursue such activities in such a manner so that such
activities shall not prevent the Executive from fulfilling his obligations to
the Company hereunder, and provided further, the Executive shall resolve any
conflict between his obligations to the Company and his obligations to any other
entity in which the Executive has a financial interest in favor of the Company.
1.3 Term. This Agreement shall become effective as of the Effective
Date and shall continue in force and effect until September 30, 1999, unless
sooner terminated as provided in Section 1.6 hereof or renewed or extended
either (i) by written agreement between the Company and the Executive pursuant
to terms and conditions mutually acceptable to each, or (ii) in
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accordance with the following sentence of this Section. Notwithstanding the
preceding, as of September 30 each year, the term of this Agreement shall be
automatically extended one (1) additional year so that the unexpired term of
this Agreement as of October 1 each year shall always be three (3) years unless
on or before July 1 of any year either party notifies the other in writing that
such party does not desire to so extend the term of this Agreement in which
event this Agreement shall continue in force and effect until the expiration of
the unexpired term of this Agreement, unless sooner terminated as provided in
Section 1.6 hereof or renewed or extended by written agreement between the
Company and the Executive pursuant to terms and conditions mutually acceptable
to each.
1.4 Compensation. The Company shall pay the Executive, as full compensation
for services rendered by the Executive under the Agreement, as follows:
(a) Base Salary. The Company shall pay the Executive a base salary of ONE
HUNDRED AND TWENTY FIVE THOUSAND AND NO/100 DOLLARS ($125,000.00) per year, or
such higher salary as may be determined from time to time during the term hereof
either in accordance with the provisions of Section 1.4(b) hereof or by the
Board of Directors in its sole discretion, prorated for any partial period of
employment ("Salary"). Such Salary shall be paid by the Company to the Executive
in twenty-six (26) equal bi-weekly installments in accordance with the regular
payroll payment dates of the Company or in such installments and on such days
during the month as the Company and the Executive shall mutually determine. The
Company's compensation of the Executive by payments of the Salary pursuant to
Section 1.4(a) shall not be deemed exclusive and shall not prevent the Executive
from participating in any other compensation or benefit plan of the Company, nor
shall such compensation in any way limit or reduce any other obligation of the
Company hereunder; and, except to the extent specifically set forth herein, no
other compensation, benefit or payment hereunder shall in any way limit or
reduce the obligation of the Company to pay the Salary to the Executive during
the term of this Agreement.
(b) Annual Bonus Based on Pre-Tax Taxable Income. In addition to the Salary set
forth in Section 1.4(a) hereof, the Executive shall receive a bonus each year
during the term of this Agreement in an amount equal to a varying percentages of
the pre-tax consolidated taxable income of the Company and its subsidiaries for
the preceding taxable year ending December 31 (or such other fiscal year as the
Company may adopt in the future), commencing with the taxable year ending
December 1, 1997 as determined by the Company's independent accountant in
accordance with generally accepted accounting principles (except as hereinafter
set forth) prorated for any partial period of employment ("Earnings Annual
Bonus"). Notwithstanding the preceding, for purposes of this Agreement the
pre-tax consolidated taxable income of the Company and its subsidiaries for any
given year shall be determined without taking into consideration (i) the
Earnings Annual Bonus to be paid to the Executive or other executive officers of
the Company for that year or; (ii) any losses incurred by the Company and its
subsidiaries on start up ventures during the first twelve months of such
venture; or (iii) one-time
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non-recurring charges as the result of, including but not limited to,
divestitures, acquisitions, consolidations, restructuring, and changes in
accounting ("EBITANC"). The Earnings Annual Bonus payable to the Executive shall
be the amount determined by multiplying the EBITANC of the Company as determined
above by the applicable percentage based upon the EBITANC of the Company as set
forth in the table below, prorated for any partial period of employment:
EBITANC Earnings Annual Bonus
Less than $250,000 None
$250,000 or more but 5% of EBITANC of the
less than $500,000 Company
$500,000 or more but 6% of the EBITANC of the
less than $1,000,000 Company
$1,000.00 or more but 7.5% of the EBITANC of the
less than $1,500,000 Company
$1,500,000 or more 10% of the EBITANC of the
Company
For example, if the Executive worked a full twelve months during the
employment year and the EBITANC of the Company for the preceding year ended
December 31 was either: $100,000, $300,000, $800,000 or $1,200,000, then the
Earnings Annual Bonus due the Executive would be $0, $15,000 ($300,000 x 5%),
$48,000 ($800,000 x 6%), $90,000 ($1,200,000 x 7.5%) and $150,000 ($1,500,000 x
10%), respectively. Such Earnings Annual Bonus, or the balance thereof in the
event the Executive elects to receive a portion of such bonus quarterly as
hereinafter set forth, shall be paid to the Executive within ninety (90) days
after the end of the taxable year of the Company for which the Executive is
entitled to receive the Earnings Annual Bonus.
Notwithstanding the preceding, the Earnings Annual Bonus shall be estimated
and determined quarterly by the Company within forty-five (45) days after the
end of each fiscal quarter of the Company ("Estimated Quarterly Earnings
Bonus"). The Company shall notify the Executive ("Bonus Notice") of the
Estimated Quarterly Earnings Bonus due the Executive. The Executive shall have
the option exercisable for a period of thirty (30) days after receiving the
Bonus Notice to demand and receive up to fifty percent (50%) of such Estimated
Quarterly Earnings Bonus ("Advance Earnings Bonus Payment"). If the Executive
elects to receive the Advance Earnings Bonus Payment, such amount shall be paid
concurrently with the next regularly scheduled payroll. In the event that the
sum of the Advance Earnings Bonus Payments paid to the Executive exceeds the
Annual Earnings Bonus due the Executive for the Company's fiscal year, the
Executive shall repay such excess to the Company within ninety (90) days after
the Company's audited financial results are made available by the Company's
auditors.
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(c) Annual Bonus Based On Net Sales. In addition to the Minimum Annual Earnings
Bonus set forth in Section 1.4(c) hereof, the Executive shall receive a bonus
each year during the term of this Agreement in an amount equal to varying
percentages of the "net sales" of the Company and its subsidiaries for the
preceding taxable year ended December 31 (or such other fiscal year as the
Company may adopt in the future), commencing with the taxable year ending
December 31, 1997 as determined by the Company's independent accountant in
accordance with generally accepted accounting principles (except as hereinafter
set forth) prorated for any partial period of employment ("Net Sales Annual
Bonus"). The Net Sales Annual Bonus payable to the Executive shall be the amount
determined by multiplying the Executive's base salary of the Company and its
subsidiaries as determined above by the applicable percentage based upon the
"net sales" of the Company and its subsidiaries as set forth in the table below,
prorated for any partial period of employment, provided however that the
threshold bonus levels below shall increase by $1,000,000 in the year next
succeeding a year when a Net Sales Annual Bonus is earned.
Net Sales Net Sales Annual Bonus
Less than $3,750,000 None
$3,750,000 or more but 7 1/2% of base salary
less than $4,500,000
$4,500,000 or more but 10% of base salary
less than $5,250,000
$5,250,000 or more but 15% of base salary
less than $6,000,000
$6,000,000 or more 20% of base salary
For example, if the Executive worked a full twelve months during the
employment year and the "net sales" of the Company and its subsidiaries for the
preceding year ended December 31 was either: $3,000,000, $4,000,000, $5,000,000,
$5,500,000 & $6,000,000, then the Net Sales Annual Bonus due the Executive would
be $0, $9,375 ($125,000 x 7.5%), $12,500($125,000 x 10%), $18,750 ($125,000 x
15%) and $25,000 ($125,000 x 20%), respectively. Such Net Sales Annual Bonus,
shall be paid to the Executive within thirty (30) days after the Company's
audited financial statements are made available by the Company's auditors.
For purposes of this Agreement, the term "Net sales" shall mean the gross
sales of the Company and its subsidiaries for the fiscal year ended December 31
less the sum of any returns and allowances for such taxable year and any sales
taxes included in the gross sales of the Company and its subsidiaries for such
taxable year.
(d) Discretionary Bonus Compensation. In addition to the Earnings Annual
Bonus set forth in Section 1.4(c) hereof, and Net Sales Annual Bonus set forth
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in Section 1.4(d) hereof, the Company may also pay the Executive discretionary
annual bonus compensation ("Discretionary Bonus Compensation") in an amount
determined by the Board of Directors of the Company in its sole discretion to be
proper and appropriate based upon such factors as the Board of Directors deems
appropriate including (i) the Executive's contributions to the success of the
business operations and the pre-tax profits of the Company and its subsidiaries,
as determined in accordance with generally accepted accounting principles, (ii)
the consolidated revenues of the Company and its subsidiaries for the taxable
year, and (iii) the general overall performance of the Company and its
subsidiaries for the taxable year. Such Discretionary Bonus Compensation shall
be paid by the Company to the Executive in the manner set forth in the
resolution of the Board of Directors of the Company authorizing and declaring
the payment of such Discretionary Bonus Compensation. Notwithstanding anything
herein to the contrary, the Executive shall not be entitled to any Discretionary
Bonus Compensation (i) for a period of one (1) year following the closing of the
contemplated initial public offering of the Company's securities and (ii) for
any Employment Year during the term of this Agreement unless and until such
Discretionary Bonus Compensation is determined and declared by the Board of
Directors of the Company.
(e) Signing Bonus. In addition to all other bonuses payable hereunder the
Executive shall be paid a signing bonus in the amount of Fifteen Thousand
($15,000.00) Dollars.
1.5 Employment Benefits. In addition to the Salary, the Earnings Annual
Bonus, Net Sales Annual Bonus or other bonus payable to the Executive hereunder,
the Executive shall be entitled to the following benefits upon satisfaction by
the Executive of the eligibility requirements therefor, subject to the following
limitations:
(a) Sick Leave Benefits and Disability Insurance. Unless this Agreement is
terminated pursuant to the provisions of Section 1.6(b) hereof, the Executive
shall be paid sick leave benefits for a period of up to six (6) months at his
then prevailing Salary rate during his absence due to illness or other
incapacity, reduced by the amount, if any, of worker's compensation, social
security entitlement, or disability benefits, if any, under the Company's group
disability insurance plan, if any.
(b) Life Insurance;"Key Man" Life Insurance. The Company, at its own expense,
shall provide the Executive, subject to the Executive passing any physical
examination required by the Company's insurance company, life insurance benefits
under and consistent with any group term life insurance plan which the Company,
at its election, may adopt. Any such life insurance coverage shall be upon terms
and conditions comparable to the coverage, if any, provided other executive
officers of the Company and provided further however, that the Company shall not
be obligated to incur a premium of more than $5,000 per year for any such
coverage. In addition, the Company may obtain "Key Man" life insurance upon the
life of the Executive in an amount determined by the Company in its sole
discretion. The Executive shall fully cooperate in obtaining said life
insurance, including submitting to any physical examination.
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(c) Hospitalization, Accident. Major Medical and Dental Insurance. The Company,
at its own expense, shall provide the Executive (and all dependents of the
Executive at the request of the Executive) with group Hospitalization, group
accident, major medical, and dental insurance in amounts of coverage comparable
to the coverage, if any, provided other executive officers of the Company.
(d) Vacations. The Executive shall be entitled to a reasonable paid vacation of
not less that fifteen (15) business days each year during the term of this
Agreement, exclusive of national and religious holidays and weekends, which
vacation shall be taken by the Executive in accordance with the business
requirements of the Company at the time and its personnel policies then in
effect relative to this subject. The Executive shall also be entitled to all
paid holidays given by the Company to its executive employees.
(e) Working Facilities. During the term of this Agreement, the Company shall
provide at its expense, adequate office space, furniture, equipment, supplies,
and personnel (including professional, clerical, support and other personnel) as
shall be suitable in the opinion of the Board of Directors of the Company to the
Executive's position and adequate for the Executive's use in performing his
duties and responsibilities under this Agreement.
(f) Automobile Allowance. During the term of this Agreement, the Company shall
provide the Executive with a monthly automobile allowance of ONE THOUSAND AND
NO/l00 DOLLARS ($1,000.00). In addition during the term of this Agreement, the
Company shall reimburse the Executive for the cost of automobile insurance,
gasoline and maintenance expenses incurred by the Executive in connection with
such automobile on a monthly basis within ten (10) business days after receiving
an itemized invoice. Any allowance due the Executive pursuant to the preceding
provisions of this paragraph shall be paid by the Company concurrently with
payroll in twenty-six payments of $461.54 per year.
(g) Minimum Incentive Stock Options. With respect to each of the Company's
fiscal years ending during the term of this Agreement, the Company shall grant
the Executive incentive stock options effective as of December 31 of that year,
to the extent permissible under incentive stock option plans maintained by the
Company, to purchase 5,000 shares of common stock of the Company for each full
$100,000 of EBITANC of the Company and its subsidiaries for such fiscal year as
determined by the Company's independent accountant in accordance with generally
accepted accounting principles. The number of shares of common stock covered by
the incentive stock options to be granted to the Executive pursuant to this
paragraph, and the exercise price per share thereof, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of common
stock of the Company resulting from a subdivision or consolidation of shares or
the payment of a stock dividend (but only on the common stock) or any other
increase or decrease in the number of shares affected without receipt of
consideration by the Company. Notwithstanding the preceding, nothing contained
herein shall preclude the Board of Directors of the Company from terminating one
or more incentive stock
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option plans currently or hereafter maintained by the Company or issuing
additional incentive stock options to the Executive in its discretion.
(h) Other Employment Benefits. As an employee of the Company, the Executive
shall participate in and receive such other fringe benefits as may be in effect
from time to time for employees of the Company, whether or not specifically
enumerated herein and whether or not through any written plan or arrangement,
upon satisfaction by the Executive of the eligibility requirements therefor. Any
such benefits shall be upon terms and conditions comparable to the benefits, if
any, provided other executive officers of the Company.
1.6 Termination. This Agreement and the Executive's employment hereunder may
be terminated without any breach of this Agreement at any time during the term
hereof only by reason of and in accordance with the following provisions:
(a) Death. If the Executive dies during the term of this Agreement and while in
the employ of the Company, this Agreement shall automatically terminate as of
the date of the Executive's death, and the Company shall have no further
liability hereunder to the Executive or his estate except to the extent set
forth in Section 1.7(a) hereof.
(b) Disability. If, during the term of this Agreement, the Executive shall] be
prevented from performing his duties hereunder by reason of becoming disabled as
hereinafter defined for twelve (12) months out of a twenty-four (24) month
period, then the Company may terminate this Agreement immediately upon written
notice to the Executive without any further liability hereunder to the Executive
except as set forth in Section 1.7(b) hereof. For purposes of this Agreement,
the Executive shall be deemed to have become disabled when (i) he either
receives "disability benefits" under (a) Social Security, or (b) the Companys
disability plan, if any (whether funded with insurance or self-funded by the
Company), or (ii) the Board of Directors of the Company, upon the written report
of a qualified physician (after complete examination of the Executive)
designated by the Board of Directors of the Company or its insurers, shall have
determined that the Executive has become physically and/or mentally incapable of
performing his duties under this Agreement.
(c) Termination By the Company for Cause. Prior to the expiration of the term of
this Agreement, the Company may discharge the Executive for cause and terminate
this Agreement immediately upon written notice to the Executive without any
further liability hereunder to the Executive or his estate, except to the extent
set forth in Section 1.7(c) hereof. For purposes of this Agreement, a "discharge
for cause" shall mean termination of the Executive upon written notice to the
Executive limited, however, to one or more of the following reasons: (1)
Misappropriation or embezzlement by the Executive in connection with the Company
as determined by the affirmative unanimous vote of the Board of Directors of the
Company other than the Executive;
(2) Gross mismanagement or gross neglect of the Executive's duties as determined
by the affirmative unanimous vote of the Board of Directors of the Company other
than the Executive after notice to the Executive of the
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particular details thereof and a period of thirty (30) days thereafter within
which to cure such act or acts of gross mismanagement or gross neglect, and the
failure of the Executive to cure such act or acts within such thirty (30) day
period;
(3) Indictment for a felony; or
(4) Willful and unauthorized disclosure of Trade Secrets (as defined in Section
1.8 hereof) of the Company as determined by the affirmative unanimous vote of
the Board of Directors of the Company other than the Executive.
(d) Termination by the Company with Notice. The Company may terminate this
Agreement, for a reason other than as set forth in subparagraphs (a), (b), (c)
or (g) of this Section 1.6 at any time immediately upon written notice to the
Executive without any further liability hereunder to the Executive except to the
extent set forth in Section 1.7(d) hereof.
(e) Termination by the Executive with Notice. The Executive may terminate
this Agreement without liability to the Company arising solely from the
resignation of the Executive at any time upon thirty (30) days written notice to
the Company in which event the Company shall have no further liability hereunder
to the Executive except to the extent set forth in Section 1.7(e) hereof.
(f) Termination by the Executive for Good Reason. The Executive may terminate
this Agreement at any time for Good Reason (as hereinafter defined) in which
event the Company shall have no further liability hereunder to the Executive
except to the extent set forth in Section 1.7(f) hereof. For purposes of this
Agreement, the term "Good Reason" shall mean, without the Executive's express
written consent, the occurrence of any the following circumstances (which
changes shall constitute a "Change"):
(1) The assignment to the Executive of any duties inconsistent in any material
respect (unless in the nature of a promotion) with the Executive's position in
the Company immediately prior to such Change (including, but not limited to, the
Executive's status, offices and titles), or a significant adverse alteration or
diminution in the nature or status of the Executive's authority, duties or
responsibilities from those in effect immediately prior to such change, other
than an isolated, insubstantial and inadvertent action that is fully corrected
within five (5) days after receipt of written notice from the Executive;
(2) Any failure by the Company to comply with any of the provisions of Section
1.4 or 1.5 of this Agreement, other than an isolated, insubstantial and
inadvertent action that is fully corrected within five (5) days after receipt of
written notice from the Executive;
(3) The Company's requiring the Executive to be based anywhere other than at the
Company's executive office, except for travel reasonably required of the
Executive in the performance of the Executive's duties on behalf of the Company
8
to an extent substantially consistent with the Executive's present business
travel obligations;
(4) The failure of the Company to obtain an agreement, satisfactory to the
Executive, from any and all successors to assume and agree to perform this
Agreement, as contemplated in Section 1.9 hereof; or
(5) Any failure by the Company to comply with any material provision of this
Agreement that has not been cured within ten (10) days after notice of such
noncompliance has been given by the Executive to the Company.
During a period of three (3) months immediately following any such termination
of this Agreement by the Executive, the Executive agrees to provide such
consulting services to the Company as it may reasonably request, at such time or
times within such period as may be mutually agreed upon between the Company and
the Executive. The Executive shall be compensated for any such consulting
services at a daily rate equal to one thirtieth (1/30) of the monthly Salary
paid to the Executive at the time of the Executive's resignation from the
Company, plus reimbursement for any reasonable out-of-pocket expenses incurred
by the Executive in rendering such consulting service.
(g) Termination Upon Chanqe in Control. The Company may terminate this
Agreement at any time within twelve (12) months after a Change in Control (as
hereinafter defined) immediately upon written notice to the Executive without
any further Liability hereunder to the Executive except to the extent set forth
in Section 1.7(g) hereof. In the event this Agreement is terminated by the
Company within twelve (12) months after the occurrence of a Change of Control,
the provisions of this Section shall supersede the provisions of Sections 1.6(d)
hereof, the provisions of Section 1.6(d) shall not be available to the Company
and the payments due the Executive hereunder shall be determined in accordance
with the provisions of Section 1.7(g) hereof and the provisions of Section
1.7(d) shall not be available. For purposes of this Agreement, the terms "Change
of Control" shall mean:
(1) The transfer, through one transaction or a series of related transactions,
either directly or indirectly, or through one or more intermediaries, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) of 25% or more of either the then outstanding
shares of common stock or the combined voting power of the Company's then
outstanding voting securities entitled to vote generally in the election of
directors, or the last of any series of transfers that results in the transfer
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) of 25% or more of either the then outstanding
shares of common stock or the combined voting power of the Company's then
outstanding voting securities entitled to vote generally in the election of
directors;
(2) Approval by the shareholders of the Company of a merger or consolidation,
with respect to which persons who were the shareholders of the Company
immediately prior to such merger or consolidation do not, immediately
thereafter, own more than 50% of the combined voting power entitled to vote
9
generally in the election of directors of the merged or consolidated company's
then outstanding voting securities, or a liquidation or dissolution of the
Company or the sale of all or substantially all of the assets of the Company;
(3) The transfer, through one transaction or a series of related transactions,
of more than 50% of the assets of the Company, or the last of any series of
transfers that results in the transfer of more than 50% of the assets of the
Company. For purposes of this paragraph, the determination of what constitutes
more than 50% of the assets of the Company shall be determined based on the most
recent financial statement prepared by the Company's independent accountants; or
(4) During any calendar year, individuals who at the beginning of such year
constituted the Board of the Company and any new director or directors whose
election by the Board was approved by a vote of a majority of the directors then
still in office who either were directors at the beginning of the year or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof provided, however, that this provision
will not be triggered in the event the Executive votes or causes other
stockholders to vote their shares to cause said change to the directorship of
the Company.
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1.7 Compensation upon Termination.
(a) Death. In the event the Executive's employment hereunder is terminated
pursuant to the provisions of Section 1.6(a) hereof due to the death of the
Executive, the Company shall have no further obligation to the Executive or his
estate, except to pay to the Executive's spouse, or if he leaves no spouse, to
the estate of the Executive (provided, however, that the Executive, with the
written consent of the Executive's spouse, if any, may affirmatively designate a
beneficiary other than his spouse or estate): (i) any accrued, but unpaid,
Salary, any authorized but unreimbursed business expenses, and any vacation or
sick leave benefits, which have accrued as of the date of death, but were then
unpaid or unused, (ii) any accrued, but unpaid, Earnings Annual Bonus, Net Sales
Annual Bonus or other bonuses payable to the Executive, and (iii) an amount
equal to the difference between (a) the full monthly Salary payable hereunder as
of the date of death of the Executive for a period consisting of that number of
months equal to one (1) month multiplied by the number of full years that the
Executive was an employee of the Company or a subsidiary or a predecessor in
interest thereof, and (b) the monthly payment, if any, payable to the Executive
under the Companys salary continuation plan, if any, for the corresponding month
during the period set forth in clause (iii)(a) above. Any amount due the
Executive under clause (i) of this paragraph shall be paid in a lump sum in cash
within thirty (30) days after the death of the Executive, any amount, due the
Executive under clause (ii) of this paragraph shall be paid in accordance with
the Discretionary Bonus Resolution; provided, however, that any unpaid Annual
Bonus shall be paid to the Executive within thirty (30) days after the Company's
audited financial statements for the fiscal year is made available by the
Company's auditors for which such Annual Bonus is due, and any amount due the
Executive under clause (iii) of this paragraph shall be paid in accordance with
the Company's regular payroll periods during the period set forth in said clause
(iii). For purposes of the provision "Salary" shall include any amounts due
under Section 1.5(f) hereof.
(b) Disability. In the event the Executive's employment hereunder is
terminated pursuant to the provisions of Section 1.6(b) hereof due to the
Disability of the Executive, the Company shall be relieved of all of its
obligations under this Agreement, except to pay the Executive (i) any accrued,
but unpaid Salary, any authorized but unreimbursed business expenses, and any
vacation or sick leave benefits which have accrued as of the date on which such
permanent disability is determined, but then remain unpaid, (ii) any accrued,
but unpaid, Earnings Annual Bonus and Net Sales Annual Bonus and any declared,
but unpaid, Discretionary Bonus Compensation but without accelerating the bonus
payment date, and (iii) an amount equal to the difference between (a) the full
monthly Salary payable hereunder as of the date of termination of the
Executive's employment hereunder for a period consisting of that number of
months equal to one (1) month multiplied by the number of full years that the
Executive was an employee of the Company or a subsidiary or predecessor in
interest thereof, subject to a minimum of six (6) months, and (b) the monthly
payment, if any, payable to the Executive under the Company's salary
continuation plan and/or disability plan, if any, for the corresponding month
during the period set forth in clause (iii)(a) above. The provisions of the
preceding sentence shall not
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affect the Executive's rights to receive payments under the Company's disability
insurance plan, if any. Any amount due the Executive under clause (i) of this
paragraph shall be paid in a lump sum in cash within thirty (30) days after the
termination of the Executive's employment hereunder, any amount due the
Executive under clause (ii) of this paragraph shall be paid in accordance with
the Discretionary Bonus Resolution; provided, however, that Bonus and Net Sales
Annual Bonus shall be paid to the Executive within thirty (30) days after the
issuance of the Company's fiscal year audited financial results for which such
Earnings Annual Bonus is due, and any amount due the Executive under clause
(iii) of this paragraph shall be paid in accordance with the Company's regular
payroll periods during the period set forth in clause (iii). For purposes of
this provision "salary" shall include any amounts due under Section 1.5(f)
hereof.
(c) Cause. In the event the Executive's employment hereunder is terminated
by the Company for Cause pursuant to the provisions of Section 1.6(c) hereof,
the Company shall have no further obligation to the Executive under this
Agreement except to pay the Executive (i) any accrued, but unpaid, Salary, any
authorized but unreimbursed business expenses, and any vacation or sick leave
benefits, which have accrued as of the date of termination of this Agreement,
but were then unpaid or unused, and (ii) any accrued, but unpaid, Earnings
Annual Bonus, Net Sales Annual Bonus and other bonus. Any amount due the
Executive under clause (i) of this paragraph shall be paid in a lump sum in cash
within thirty (30) days after the termination of the Executive's employment
hereunder, and any amount due the Executive under clause (ii) of this Paragraph
shall be paid in accordance with the Discretionary Bonus Resolution; provided,
however, that any unpaid Earnings Annual Bonus or Net Sales Annual Bonus and
other bonus shall be paid to the Executive within thirty (30) days after the end
of the Company's taxable year for which such Earnings or Net Sales Annual Bonus
is due.
(d) Termination By the Company with Notice. In the event the Executive's
employment hereunder is terminated by the Company pursuant to the provisions of
Section 1.6(d) hereof, the Executive shall be entitled to receive (i) any
accrued, but unpaid, Salary, any authorized but unreimbursed business expenses,
and any vacation or sick leave benefits which have accrued as of the date of
termination of the Agreement, but were then unpaid or unused, (ii) any accrued,
but unpaid, Earnings Annual Bonus or Net Sales Annual Bonus and any declared,
but unpaid, and (iii) the full monthly Salary payable hereunder for the
unexpired term of the Agreement whether or not the Executive has sought or
obtained employment elsewhere after the termination of the Executive's
employment pursuant to the provisions of section 1.6(d) hereof. Any amount due
the Executive under clauses (i), (ii) and (iii) of this paragraph (other than
for any Earnings Annual Bonus and Net Sales Annual Bonus) shall be paid in a
lump sum in cash within thirty (30) days after the termination of the
Executive's employment thereunder; provided, however, that any unpaid Earnings
Annual Bonus and Net Sales Annual Bonus shall be paid to the Executive within
ninety (90) days after the end of the Company's taxable year for which such
Earnings or Net Sales Annual Bonus is due. In addition, in the event this
Agreement is terminated by the Company pursuant to the provisions of Section
1.6(d) hereof, the Company at its expense shall continue to provide the
Executive with the benefits set forth in Sections 1.5(b), 1.5(c), 1.5(f) and
1.5(h) above for the unexpired term of this Agreement whether or not the
Executive has sought or obtained employment
12
elsewhere after the termination of the Executive's employment pursuant to the
provisions of Section 1.6(d) hereof; provided, however, if the Executive obtains
employment elsewhere during the aforesaid period, then the Company shall
continue to provide the benefits set forth in Sections 1.5(b), 1.5(c), 1.5(f)
and 1.5(h) hereof only to the extent the Executive does not receive such
benefits in their entirety from the Executive's then current employer.
(e) Termination by the Executive with Notice. In the event the Executives
employment hereunder is terminated by the Executive pursuant to the provisions
of Section 1.6(e) hereof, the Executive shall be entitled to receive (i) any
accrued, but unpaid, Salary, any authorized but unreimbursed business expenses,
and any vacation or sick leave benefits which have accrued as of the date of
termination of this Agreement, but were then unpaid or unused, and (ii) any
accrued, but unpaid, Earnings Annual Bonus, Net Sales Annual Bonus and any
declared, but unpaid, Discretionary Bonus Compensation. Any amount due the
Executive under clause (i) of this paragraph shall be paid in a lump sum in cash
within thirty (30) days after the termination of the Executive's employment
hereunder, and any amount due the Executive under clause (ii) of this paragraph
shall be paid in accordance with the Discretionary Bonus Resolution; provided,
however, that any unpaid Earnings Annual Bonus and Net Sales Annual Bonus shall
be paid to the Executive within ninety (90) days after the end of the Company's
taxable year for which such Earnings and Net Sales Annual Bonus is due.
(f) Termination by the Executive for Good Reason.
(1) Prior to Change of Control. In the event this Agreement is terminated by the
Executive pursuant to the provisions of Section 1.6(f) hereof prior to the
occurrence of a Change of Control, the Executive shall be entitled to receive
(i) any accrued, but unpaid, Salary, any authorized but unreimbursed business
expenses, and any vacation or sick leave benefits which have accrued as of the
date of termination of the Agreement, but were then unpaid or unused, (ii) any
accrued, but unpaid, Earnings Annual Bonus, and Net Sales Annual Bonus and any
declared, but unpaid, Discretionary Bonus Compensation, and (iii) the full
monthly Salary payable hereunder for the unexpired term of the Agreement whether
or not the Executive has sought or obtained employment elsewhere after the
termination of the Executive's employment pursuant of the provisions of Section
1.6(f) hereof. Any amount due the Executive under clauses (i), (ii) and (iii) of
this paragraph (other than for any Earnings Annual Bonus and Net Sales Annual
Bonus) shall be paid in a lump sum in cash within thirty (30) days after the
termination of the Executive's employment hereunder; provided, however, that any
unpaid Earnings or Net Sales Annual Bonus shall be paid to the Executive within
ninety (90) days after the end of the Company's taxable year for which such
Minimum Annual Bonus is due. In addition, in the event this Agreement is
terminated by the Executive pursuant to the provisions of Section 1.6(f) hereof;
provided, however, if the Executive obtains employment elsewhere during the
aforesaid period, then the Company shall continue to provide the benefits set
forth in Sections 1.5(b), 1.5(c) and 1.5(h) hereof only to the extent the
Executive does not receive such benefits in their entirety from the Executive's
then current employer.
In addition, in the event this Agreement is terminated by the Executive pursuant
to the provisions of Section 1.6(f), the Company at its expense shall purchase
the automobile provided to the Executive pursuant to Section 1.5(f) by paying
the total lease payments
13
due pursuant to Section 1.5(f) and the residual value then due in order to
acquire title and transfer title on said automobile to Executive within ninety
(90) days after the termination of the Executive's employment thereunder.
2. After Change of Control. In the event this Agreement is terminated by the
Executive pursuant to the provisions of Section 1.6(f) hereof after the
occurrence of a Change of control, the executive shall be entitled to receive
(i) any accrued, but unpaid, Salary, any authorized but unreimbursed business
expenses, and any vacation or sick leave benefits which have accrued as of the
date of termination of the Agreement, but were then unpaid or unused, (ii) any
accrued, but unpaid, Earnings Annual Bonus, Net Sales Annual Bonus and any
declared, but unpaid, Discretionary Bonus Compensation, and (iii) an amount
equal to the full monthly Salary payable hereunder for the unexpired term of the
Agreement whether or not the Executive has sought or obtained employment
elsewhere after the termination of the Executive's employment pursuant to the
provisions of Section 1.6(f) hereof. Any amount due the Executive under clauses
(i), (ii) and (iii) of this paragraph (other than for any Earnings or Net Sales
Annual Bonus) shall be paid in a lump sum in cash within thirty (30) days after
the termination of the Executive's employment hereunder; provided, however, than
any unpaid Earnings Annual Bonus and Net Sales Annual Bonus shall be paid to the
Executive within ninety (90) days after the end of the Company's taxable year
for which such Earnings or Net Sales Annual Bonus is due. In addition, in the
event this Agreement is terminated by the Executive pursuant to the provisions
of Section 1.6(f) hereof after the occurrence of a Change of Control, the
Company at its expense shall continue to provide the Executive with the benefits
set forth in Section 1.5(b), 1.5(c) 1.5(f) and 1.5(h) above for the unexpired
term of this Agreement whether or not the Executive has sought or obtained
employment elsewhere after the termination of the Executive's employment
pursuant to the provisions of Section 1.6(f) hereof; provided, however, if the
Executive obtains employment elsewhere during the aforesaid period, then the
Company shall continue to provide the benefits set forth in Sections 1.5(b),
1.5(c), 1.5(f) and 1.5(h) hereof only to the extent the Executive does not
receive such benefits in their entirety from the Executive's current employer.
In addition, in the event this Agreement is terminated by the Executive pursuant
to the provisions of Section 1.6(f), the Company at its expense shall purchase
the automobile provided to the Executive pursuant to Section 1.5(f) by paying
the total lease payments due Section 1.5(f) and residual value than due in order
to acquire title and transfer title on said automobile to Executive within
ninety (90) days after the termination of the Executive's employment thereunder.
(g) Termination by the Company After Change of Control. In the event this
Agreement is terminated by the Company pursuant to the provisions of Section
1.6(g) hereof after the occurrence of a Change of Control, the Executive shall
be entitled to receive (i) any accrued, but unpaid, Salary, any authorized but
unreimbursed business expenses, and any vacation or sick leave benefits which
have accrued as of the date of termination of the Agreement, but were then
unpaid or unused, (ii) any accrued, but unpaid, Earnings Annual Bonus, Net Sales
Annual Bonus and any declared, but unpaid, Discretionary Bonus Compensation, and
(iii) an amount equal to the full monthly Salary payable hereunder for the
unexpired term of the Agreement whether or not the Executive has sought or
obtained employment elsewhere after the termination of the Executive's
employment pursuant to the provisions of Section l.6(g) hereof. Any amount due
the Executive under clauses (i) and (ii) of this paragraph shall be paid in a
lump sum in cash within thirty (30) days after the termination of the
Executive's employment hereunder, and any amount due the Executive under clause
(iii) of this paragraph shall
14
be paid in a lump sum in cash within ninety (90) days after the termination of
the Executive's employment hereunder. In additional, in the event this Agreement
is terminated by the Company pursuant to the provisions of Section 1.6(g) hereof
after the occurrence of a Change of Control, the Company at its expense shall
continue to provide the Executive with the benefits set forth in Sections
1.5(b), 1.5(c) 1.5(f) and 1.5(h) above for the unexpired term of this Agreement
whether or not the Executive has sought or obtained employment elsewhere after
the termination of the Executive's employment pursuant to the provisions of
Section 1.6(g) hereof; provided, however, if the Executive obtains employment
elsewhere during the aforesaid period, then the Company shall continue to
provide the benefits set forth in Sections 1.5(b), 1.5(c), l.5(f) and 1.5(h)
hereof only to the extent the Executive does not receive such benefits in their
entirety from the Executive's then current employer.
(h) Termination of Obligations of the Company Upon Payment of Compensation.
Upon payment of the amount, if any, due the Executive pursuant to the preceding
provisions of this Section, the Company shall have no further obligation to the
Executive under this Agreement.
1.8 Protective Covenants. The Executive recognizes that his employment by the
Company is one of the highest trust and confidence because (i) the Executive
will become fully familiar with all aspects of the Company's business and that
of its subsidiaries during the period of his employment with the Company, (ii)
certain information of which the Executive will gain knowledge during his
employment is proprietary and confidential information which is of special and
peculiar value to the Company or its subsidiaries, and (iii) if any such
proprietary and confidential information were imparted to or became known by any
person, including the Executive, engaging in a business in competition with that
of the Company or its subsidiaries, hardship, loss and irreparable injury and
damage could result to the Company or its subsidiaries, the measurement of which
would be difficult if not impossible to ascertain. The Executive acknowledges
that any and all inventions, improvements, discoveries, formulae, processes,
products or designs developed by the Executive alone or in conjunction with
others in connection with the Company's business during the term of the
Executive's employment with the Company ("Proprietary Information") shall be the
sole and absolute property of the Company in perpetuity, that the Executive
shall promptly disclose such Proprietary Information to the Company, and the
Executive shall have no right, title or interest therein or to receive
additional monies therefor, regardless of whether development occurred during
working hours or any other time during the term of the Executive's employment
with the Company. The Executive shall assist the Company in obtaining patents on
all such Proprietary Information deemed patentable by the Company and shall
execute all documents necessary to obtain such patents and to vest the Company
with full and extensive title to the patents and to protect the patents against
infringement by others. For purposes of this Agreement, an invention shall be
deemed to have been made during the period of the Executive's employment if,
during such period, the invention was conceived or first actually reduced to
practice, and the Executive agrees that any patent application filed by the
Executive within one (1) year after a termination of the Executive's employment
with the Company shall be presumed to relate to an invention made during the
term of the Executive's employment with the Company unless the Executive can
establish the contrary. The Executive further acknowledges that the Company or
its subsidiaries has developed unique skills, concepts, sales presentations,
marketing programs, marketing strategy, business practices, methods of
operation, trademarks, licenses, technical information, Proprietary Information,
computer software programs,
15
tapes and discs concerning its operations systems, customer lists, customer
leads, documents identifying past, present and future customers, hiring and
training methods, investment policies, financial and other confidential and
proprietary information concerning its operations and expansion plans ("Trade
Secrets"). Therefore, the Executive agrees that it is necessary for the Company
to protect its business and that of its subsidiaries from such damage, and the
Executive further agrees that the following covenants constitute a reasonable
and appropriate means, consistent with the best interest of both the Executive
and the Company, to protect the Company or its subsidiaries against such damage
and shall apply to and be binding upon the Executive as provided herein:
(a) Trade Secrets. The Executive recognizes that his position
with the Company is one of the highest trust and confidence by reason of the
Executive's access to and contact with certain Trade Secrets of the Company and
its subsidiaries. The Executive agrees and covenants to use his best efforts and
exercise utmost diligence to protect and safeguard the Trade Secrets of the
Company and its subsidiaries. The Executive further agrees and covenants that,
except as may be required by the Company in connection with this Agreement, or
with the prior written consent of the Company, the Executive shall not, either
during the term of this Agreement or thereafter, directly or indirectly, use for
the Executive's own benefit or for the benefit of another, or disclose,
disseminate, or distribute to another, any Trade Secret (whether or not
acquired, learned, obtained, or developed by the Executive alone or in
conjunction with others) of the Company or its subsidiaries or of other with
whom the Company or its subsidiaries has a business relationship. All memoranda,
notes, records, drawings, documents, or other writings whatsoever made,
compiled, acquired, or received by the Executive during the term of this
Agreement, arising out of, in connection with, or related to any activity or
business of the Company or its subsidiaries, including, but not limited to, the
customers, suppliers, or others with whom the Company or its subsidiaries has a
business relationship, the arrangements of the Company or its subsidiaries with
such parties, and the pricing and expansion policies and strategy of the Company
or its subsidiaries, are, and shall continue to be, the sole and exclusive
property of the Company or its subsidiaries, are, and shall continue to be, the
sole and exclusive property of the Company or its subsidiaries, as applicable,
and shall, together with all copies thereof and all advertising literature, to
returned and delivered to the Company by the Executive immediately, without
demand, upon the termination of this Agreement, or at any time upon the
Company's demand.
(b) Restriction on Soliciting Customers of the Company and its
Subsidiaries. The Executive covenants that for a period of twenty-four (24)
months following the termination of this Agreement, he will not, either directly
or indirectly, (i) disclose or otherwise make known to any person or entity the
names and addresses of any of the customers of the Company, of (ii) call on,
solicit, or take away, or attempt to call on solicit or take away any of the
customers of the Company or its subsidiaries with whom he became acquainted
during his employment with the Company, either for himself or for any other
person, firm, corporation or other entity.
(c) Covenant Not to Compete. In the event this Agreement is terminated
pursuant to the provisions of Section 1.6(c) hereof, the Executive hereby
covenants and agrees that for a period of twelve (12) months following the
termination of his employment hereunder, he will not directly or indirectly,
either as an employee, employer, consultant, agent, principal, partner,
shareholder (other than through
16
ownership of public traded capital stock of a corporation which represent less
than five percent (5%) of the outstanding capital stock of such corporation),
corporate officer, director, investor, financier or in any other individual or
representative capacity, engage or participate in any business located in a
county in which the Company or any of its subsidiaries is doing business as of
the date of termination of the Executive's employment hereunder which is
competitive with the business of the Company or any of its subsidiaries as of
such date. Notwithstanding the foregoing, the Company agrees that the
participation of the Executive in the current and currently proposed business of
Coastal Computers will not violate the provisions of this paragraph.
(d) Survival of Covenants. Each covenants of the Executive set forth in
this Section 1.8 shall survive the termination of this Agreement and shall be
construed as an agreement independent of any other provision of this Agreement,
and the existence of any claim or cause of action of the Executive against the
Company whether predicated on this Agreement or otherwise shall not constitute a
defense to the enforcement by the Company of said covenant.
(e) Remedies. In the event of breach or threatened breach by the
Executive of any provision of this Section 1.8, the Company shall be entitled to
relief by temporary restraining order, temporary injunction, or permanent
injunction or otherwise, in addition to other legal and equitable relief to
which it may be entitled, including any and all monetary damages which the
Company may incur as a result of said breach, violation or threatened breach or
violation. The Company may pursue any remedy available to it concurrently or
consecutively in any order as to any breach, violation, or threatened breach or
violation, and the pursuit of one of such remedies at any time will not be
deemed an election of remedies or waiver of the right to pursue any other of
such remedies as to such breach, violation, or threatened breach or violation,
or as to any other breach, violation, or threatened breach or violation.
The Executive hereby acknowledges that the Executive's agreement to be
bound by the protective covenants set forth in this Section 1.8 was a material
inducement for the Company entering into this Agreement and agreeing to pay the
Executive the compensation and benefits set forth herein.
1.9 Merger or Acquisition. In the event the Company should consolidate, or
merge into another corporation, or transfer all or substantially all of its
assets to another entity, or divide its assets among a number of entities, this
Agreement shall continue in full force and effect. The Company will require any
and all successors (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, to expressly assume and agree pursuant to an appropriate
written assumption agreement to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such agreement
prior to the effectiveness of any such successor shall be a breach of this
Agreement and shall entitle the Executive to terminate his employment and this
Agreement for Good Reason. As used in this Agreement, the term "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which executes and delivers the assumption agreement
provided for in this Section 1.9 or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
17
1.10 Reimbursement of Employee Expenses. The Executive is authorized to incur
ordinary, necessary and reasonable expenses in connection with the performance
of his duties and responsibilities under this Agreement and for the promotion of
the business and activities of the Company during the term hereof, including,
without limitation, expenses for necessary travel and necessary travel and
entertainment and other items of expenses required in the normal and routine
course of the Executive's employment hereunder. The Company will reimburse the
Executive from time to time for all such business expenses incurred pursuant to
and in conformity with the provisions of this Section provided that the
Executive presents to the Company:
(a) An account book in which the Executive recorded at or near the time
each expenditure was made; (i) the amount of the expenditures, (ii) the time,
place and designation of the type of entertainment and travel or other expenses,
or the date and description of the gift (gifts made to one individual are not to
exceed a total of Twenty-Five and No/100 Dollars ($25.00) in any taxable year);
(iii) the business reason for the expenditure and the nature of the business
benefit derived or expected to be derived as the result of the expenditure; and
(iv) the names, occupations, addresses and other information concerning each
person who was entertained or given a gift sufficient to establish the business
relationship to the Company; and
(b) Documentary evidence (such as receipts or paid bills) which state
sufficient information to establish the amount, date, place and essential
character of the expenditure, for such expenditure (i) of Twenty-Five and No/100
Dollars ($25.00) or more except for transportation charges if not readily
available and (ii) for lodging or traveling away from home.
GENERAL PROVISIONS
2.1 Notices. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be deemed to have been delivered on
the date personally delivered or on the date deposited in a receptacle
maintained by the United States Postal Service for such purpose, postage
prepaid, by certified mail, return receipt requested, addressed to the
respective parties as follows:
If to the Executive: ▇▇▇▇ ▇. ▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to the Company: Compu-▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
2.2 Severability. If any provision contained in this Agreement is
determined to be void, illegal or unenforceable, in whole or in part, then the
other provisions contained herein shall remain in full force and effect as if
the provision which was determined to be void, illegal, or unenforceable had not
been contained herein.
18
2.3 Waiver, Modification, and Integration. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by any party. This instrument
contains the entire agreement of the parties concerning employment and
supersedes all prior and contemporaneous representations, understandings and
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Executive by the Company and all such prior or
contemporaneous representations, understandings and agreements, both oral and
written, are hereby terminated. The terms of this Agreement may not be modified,
altered or amended except by written agreement of the Executive and the Company,
subject to the prior approval of the Board of Directors of the Company.
2.4 Binding Effect. This Agreement shall be binding and effective Upon
the Company and its successors and permitted assigns, and upon the Executive,
his heirs and representatives; provided, however, that the Company shall not
assign this Agreement without the written consent of the Executive.
2.5 Choice of Law and Venue. The parties agree that this Agreement is
made and entered into in Nassau County, New York and shall be governed by and
construed in accordance with the laws of the State of New York, and that any
litigation, special proceeding or other proceeding as between the parties that
may be brought, or arise out of, in connection with or by reason of this
Agreement shall be brought in the applicable state court in and for Nassau
County, New York which Courts shall be the exclusive courts or jurisdiction and
venue.
2.6 Representation of Executive. The Executive hereby represents and
warrants to the Company that he has not previously assumed any obligations
inconsistent with those contained in this Agreement. The Executive further
represents and warrants to the Company that the Executive has entered into this
Agreement pursuant to his own initiative and that the Company did not induce the
Executive to execute this Agreement in contravention of any existing
commitments. The Executive acknowledges that the Company has entered into this
Agreement in reliance Upon the foregoing representations of the Executive.
2.7 Independent Counsel. The Company has been presented by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ESQ. The Executive has been represented by .Each
has made his or her its own determination with respect to counsel without
coercion from the other. Each has thoroughly reviewed the provisions of this
Agreement and all matters concerning the consulting with the benefit of
independent counsel.
2.8 Arbitration Any controversy or claim arising out of or relating to
this Agreement shall be settled by binding arbitration in Nassau County, New
York under the rules of the American Arbitration Association. Judgment Upon the
award may be entered in any court having jurisdiction and the arbitrator(s) are
specifically authorized to award the prevailing party in such arbitration all
reasonable attorney's fees, expenses and costs of arbitration.
19
2.9 Counterpart Execution. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written effective as of the Effective Date.
COMPU-▇▇▇▇, INC.
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Secretary and Chairman
of the Board
EXECUTIVE:
/s/ ▇▇▇▇ ▇▇▇
------------
▇▇▇▇ ▇▇▇
Attest
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Assistant Secretary
AGEMPCOAST
20