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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated February 23, 1990, by and between The Peoples
Publishing Group, Inc., a Delaware corporation (the "Company"), and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, an individual resident of the State of New Jersey ("Executive").
WITNESSETH:
WHEREAS, the Company has entered into that certain Restated Stock
Purchase Agreement, dated February 23, 1990 (the "Purchase Agreement"), with a
group of investors (the "Investors"), which provides, subject to certain
conditions, for the purchase by the Investors of shares of capital stock of the
Company; and
WHEREAS, the execution and delivery of this Agreement by Executive is a
condition precedent to the purchase by the Investors of capital stock under the
Purchase Agreement; and
WHEREAS, Executive is desirous of entering into employment with the
Company on the terms herein contained; and
WHEREAS, the Company is desirous of employing Executive on the terms
herein contained.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, the Company and Executive agree as follows:
1. Employment. The Company hereby employs Executive, and Executive
accepts such employment and agrees to perform services for the Company, for the
period and upon the other terms and conditions set forth in this Agreement.
2. Term. Unless terminated at an earlier date in accordance with
Section 9, the term of Executive's employment hereunder shall be for a period of
two years, commencing on February 23, 1990. Thereafter, the term of this
Agreement shall be automatically extended for successive one-year periods unless
either party objects to such extension by written notice to the other party at
least 60 days prior to the end of the initial term or any extension term.
Notwithstanding the foregoing, the terms of Sections 5, 7, 9, 10 and 11 shall
survive the termination of this Agreement.
3. Position and Duties.
3.01 Service with Company. During the term of this Agreement,
Executive shall serve as the President of the Company and perform such
reasonable employment duties as the Board of Directors of the Company shall
assign to him from time to time; provided that the
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nature of Executive's duties shall at all times be that of a senior executive.
Executives shall serve, for any period for which he is elected, as director of
the Company; provided, however, that Executive shall not be entitled to any
additional compensation for serving as director.
3.02 Performance of Duties. Executive shall serve the Company
faithfully and to the best of his ability, and devote his full time, attention
and efforts to the business and affairs of the Company during normal business
hours (and outside normal business hours as reasonably required) during the term
of this Agreement. Executive hereby confirms that he is under no contractual
commitments inconsistent with his obligations set forth in this Agreement, and
that during the term of this Agreement he shall not render or perform services
for any other corporation, firm, entity or person which are inconsistent with
the provisions of this Agreement.
4. Compensation.
4.01 Base Salary. As compensation in full for all services to
be rendered by Executive under this Agreement during the initial term of this
Agreement, the Company shall pay to Executive a base salary of $100,000 in the
first year of this Agreement and $110,000 in the second year of this Agreement,
which salary shall be paid in accordance with the Company's normal payroll
procedures and policies. The compensation payable to Executive for each year
following the expiration of the initial term of this Agreement shall be mutually
agreed upon by the Company and Executive prior to the commencement of each such
year, provided that such compensation shall not be decreased from the prior
period.
4.02 Incentive Compensation. In addition to the base salary
described in Section 4.01, Executive shall be eligible to participate in any
corporate performance based incentive compensation plans which are established
by the Board of Directors of the Company.
4.03 Participation in Benefit Plans. Executive shall also be
entitled to participate in all employee benefit plans or programs (including
vacation time of not less than three weeks annually) established by the
Company's Board of Directors from time to time to the extent that his position,
title, tenure, salary, age, health and other qualifications make him eligible to
participate. Executive's participation in any such plan or program shall be
subject to the provisions, rules and regulations applicable thereto. Without
limiting the generality of the foregoing, Executive shall be provided with
medical, disability, and life insurance coverage to the extent it is available
at a reasonable cost from reputable insurers.
4.04 Expenses. The Company shall pay or reimburse Executive
for all reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the presentment of
appropriate vouchers in accordance with the Company's normal policies for
expense verification.
5. Confidential Information. Except as permitted or directed by
the Company's Board of Directors, during the term of this Agreement and for a
period f one year thereafter Executive
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shall not divulge, furnish or make accessible to anyone or use in any way (other
than in the ordinary course of the business of the Company) any confidential or
secret knowledge or information of the Company which Executive has acquired or
become acquainted with prior to the termination of the period of his employment
by the Company (including employment by the Company or any affiliated companies
prior to the date of this Agreement), whether developed by himself or by others,
concerning any trade secrets, confidential or secret designs, processes,
formulae, plans, devices or material (whether or not patented or patentable)
directly or indirectly useful in any way aspect of the business of the Company,
any confidential or secret development or research work of the Company, or any
other confidential or secret aspects of the business of the Company. Executive
acknowledges that the above-described knowledge or information constitutes a
unique and valuable asset of the Company acquired at great time and expense by
the Company and its predecessors, and that any disclosure or other use of such
knowledge or information other than for the sole benefit of the Company would be
wrongful and would cause irreparable harm to the Company. The foregoing
obligations of confidentiality, however, shall not apply to any knowledge or
information which is now published or which subsequently becomes generally
publicly known, other than as a direct or indirect result of the breach of this
Agreement by Executive.
6. Ventures. If, during the term of this Agreement, Executive is
engaged in or associated with the planning or implementing of any project,
program or venture involving the Company and a third party or parties, all
rights in the project, program or venture shall belong to the Company. Except as
approved by the Company's Board of Directors, Executive shall not be entitled to
any interest in such project, program or venture or to any commission, finder's
fee or other compensation in connection therewith other than the salary to be
paid to Executive as provided in this Agreement.
7. Non-Competition.
(a) During the term of Executive's employment by the Company
he shall not, directly or indirectly, engage in competition with the Company in
any manner or capacity (e.g., as an adviser, principal, agent, partner, officer,
director, stockholder, employee, member of any association, or otherwise) in any
phase of the business which the Company is conducting during the term of this
Agreement, including the design, development, manufacture, distribution,
marketing, leasing or selling of accessories, devices, or systems related to the
products or services being sold by the Company.
(b) The obligations of Executive under Section 7(a) shall
apply to any geographic area in which the Company
(i) has engaged in business during the term of
this Agreement through production,
promotional, sales or marketing activity, or
otherwise, or
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(ii) has otherwise established its goodwill,
business reputation, or any customer
relations.
(c) For a period of one year following the termination of
Executive's employment hereunder, except a termination without cause, Executive
will not, on behalf of himself or on behalf of any other person, firm or
corporation, call on any of the customers of the Company, or any of its
affiliates, for the purposes of soliciting or providing to any said customers
any products competitive to the Company's products, nor will he in any way
divert or take away any customer of the Company or its affiliates.
(d) During the term of this Agreement, Executive shall not,
directly or indirectly, assist or encourage any other person in carrying out,
directly or indirectly, any activity that would be prohibited by the above
provisions of this Section 7 if such activity were carried out by Executive,
either directly or indirectly; and in particular Executive shall not, directly
or indirectly, induce any employee of the Company to carry out, directly or
indirectly, any such activity.
(e) For a period of one year following the termination of
Executive's employment hereunder, except a termination without cause, Executive
will not, directly or indirectly, employ, solicit for employment, or advise or
recommend to any other person, firm or corporation that they employ or solicit
for employment of any employee of the Company.
(f) During the term of this noncompetition covenant which
follows the termination of Executive's employment by the Company shall pay to
Executive, as consideration for such covenant, an amount equal to 60% of
Executive's salary at the time of termination of employment, which amount shall
be payable to Executive on a monthly basis; provided, however, that the Company
may, upon 30 days written notice to Executive, terminate its obligation to make
such payments to Executive, terminate its obligation to make such payments to
Executive and, in such event, this noncompetition covenant shall terminate as of
the end of such 30-day period.
(g) Ownership by Executive, as a passive investment, of less
than 1% of the outstanding shares of capital stock of any corporation listed on
a national securities exchange or publicly traded in the over-the-counter market
shall not constitute a breach of this Section 7.
8. Termination.
8.01 Grounds for Termination. This Agreement shall terminate
prior to the expiration of the initial term set forth in Section 2 or any
extension thereof in the event that at any time during such initial term or any
extension thereof:
(a) Executive shall die (in which case the Company will pay to
Executive's estate a benefit equal to 50% of Executive's annual salary in effect
at such time), or
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(b) Executive shall become disabled in accordance with
Section 8.02, or
(c) Executive has breached the provisions of Sections 5 or 7
of this Agreement in any material respect, or
(d) Executive is terminated for "cause," which means (i)
Executive's violation of a specific written direction from the Board of
Directors of the company or (ii) Executive's failure or refusal to perform
duties in accordance with this Agreement; provided, however, no termination
shall be for cause under subsection (ii) unless Executive shall have first
received written notice from the Board of Directors of the Company advising
Executive of the act or omission that constitutes cause and such act or omission
continues after Executive's receipt of such notice for at least a period of time
that would have allowed Executive to correct such act or omission.
Notwithstanding any termination of this Agreement, Executive, in consideration
of his employment hereunder to the date of such termination, shall remain bound
by the provisions of this Agreement which specifically relate to periods,
activities or obligations upon or subsequent to the termination of Executive's
employment; provided, however, that Executive shall not remain bound if the
Company terminate's Executive's employment without cause.
8.02 "Disability" Defined. The Board of Directors may
determine that Executive has become disabled, for the purpose of this Agreement,
in the event that Executive shall fail, because of illness or incapacity, to
render services of the character contemplated by this Agreement for a period of
three consecutive months and on the date of determination continues to be so
disabled. The existence or nonexistence of grounds for termination of this
Agreement for any reason under Section 8.01(b) shall be determined in good faith
by the Board of Directors after such notice in writing given to Executive at
least 30 days prior to such determination. During such 30-day period, Executive
shall be permitted to make a presentation to the Board of Directors for its
consideration.
8.03 Surrender of Records and Property. Upon termination of
his employment with the Company, Executive shall deliver promptly to the Company
all records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof, which are the
property of the Company or which relate in any way to the business, products,
practices or techniques of the Company, and all other property, trade secrets
and confidential information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession or
under his control.
9. Purchase Rights Upon Termination of Employment.
(a) In the event that Executive unilaterally leaves the employment of
the Company prior to February 16, 1995, or in the event that Executive's
employment with the Company is
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involuntarily terminated in accordance with Section 8.01(c) or (d) prior to
February 16, 1995, the Company shall have the irrevocable right and option to
purchase from Executive, or Executive's successors or assigns, that number of
shares of the Company's capital stock which is then owned by Executive or such
successors or assigns.
(b) The Company shall exercise the option described in Section 9(a), if
at all, by delivery to Executive, his successors, heirs or assigns of a written
notice of exercise within 60 days after the date of termination of employment.
The purchase price for any shares of the Company's capital stock repurchased by
the Company pursuant to the exercise of such option shall be determined in
accordance with Exhibit A attached hereto and incorporated herein by reference.
If Executive owns more than one class of the Company's capital stock at the time
such option is exercised, the valuation percentages described in Exhibit A shall
be separately applied to each class of capital stock. For the purposes of
determining the purchase price pursuant to Exhibit A, Executive's cost for his
shares is $.02 for each common share and $.84624 for each preferred share and
the fair market value of such shares shall be determined by the Company's Board
of Directors and agreed ▇▇▇▇ Executive, his successors, heirs or assigns. If
Executive, his successors, heirs or assigns and the Board of Directors are
unable to agree upon the fair market value of such shares within 30 days after
the exercise of such option by the Company, the fair market value shall be
determined by submitting the matter to appraisal, as hereinafter provided. In
the event of an appraisal, Executive, his successors, heirs or assigns, as the
case may be, and the Company shall each name a qualified appraiser within 10
days after the expiration of said 30-day period. A "qualified appraiser" shall
mean an investment banker or independent accountant experienced in the valuation
of the equity interests of closely-held publishing or other businesses similar
to the Company. The two appointed appraisers shall, within 30 days thereafter,
each make a separate determination of the fair market value of the Executive's
shares, and each appraiser shall certify the same in writing. If one of the
parties fails to select an appraiser within the time provided, the appraiser
appointed by the other party shall make the appraisal which shall be the fair
market value. Otherwise, the value shall be the average of the two appraisals
certified by the two appraisers; provided, however, that if the difference
between the values determined in the two appraisals is greater than 20% of the
larger appraised value, then the two appraisers shall within five days of
submission of their certified appraisals designate a third qualified appraiser
who shall make his independent appraisal within 15 days thereafter, and the fair
market value for the purposes hereof shall then be the average of the two
appraisals which are closest in value to one another. If the two appraisers do
not select a third appraiser within the time period provided, one or both of the
parties shall apply to the then senior judge of the Hennepin County (Minnesota)
District Court for the selection of a third appraiser, whose selection shall be
binding upon the parties in all respects. Each party shall bear the costs of the
appraiser selected by it. The services of such third appraiser shall be paid for
one-half by Executive, his successors or assigns, as the case may be, and
one-half by the Company. The purchase price shall be payable at the option of
the Executive, his successors or assigns either in cash within 30 days of the
date of exercise of the option or the date of the determination of the amount of
the purchase price, or in five equal annual installments of principal and
interest (at the prime rate in effect from time to time as announced by First
Bank
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National Association) with the first installment due and payable at the closing.
10. Purchase of Executive's Shares by Company. In the event that
Executive's employment hereunder is terminated for any reason other than by the
Company for cause, pursuant to Section 8.01(c), or unilaterally by the
Executive, Executive may for a period of 30 days after such termination deliver
written notice to the Company that he desires to sell his shares of capital
stock to the Company. The Company agrees that it shall purchase all such capital
stock to the Company. The Company agrees that it shall purchase all such capital
stock as set forth in such notice at the fair market value thereof as determined
pursuant to the procedures set forth in Section 9. The closing of such purchase
will occur within 30 days of receipt of such notice by the Company. The purchase
price shall be payable at the option of the Company either in cash within 30
days of the date of exercise of the option or the date of determination of the
amount of purchase price, or in five equal annual installments of principal and
interest (at the prime rate in effect from time to time as announced by First
Bank National Association) with the first installment due and payable at the
closing.
11. Restriction on Transfer of Shares; Right of First Refusal; Legend.
(a) Executive shall not voluntarily or involuntarily sell, transfer,
exchange or otherwise dispose of any of the shares of Company stock that he may
now own or hereafter acquire unless he shall first offer to sell such shares to
the Company in accordance with the terms of this Section 11; provided, however,
in no event may Executive transfer shares of Company stock which remain subject
to the Company's repurchase at Executive's cost therefor except to the Company.
(b) If Executive wishes to transfer or otherwise dispose of any shares
not then subject to repurchase by the Company at Executive's cost therefor or if
any of such shares are subject to involuntary transfer pursuant to court order
or other legal proceedings, he shall deliver a written notice to the Company,
which notice shall specify the person to whom the shares are to be transferred
or disposed of, the purchase price or other consideration to be received by
Executive for such shares and the terms upon which such purchase price or other
consideration is to be paid. If the transfer or other disposition is for no
consideration or is involuntary, such written notice shall explain the
circumstances of the transfer or disposition. The delivery of such written
notice to the Company shall constitute an irrevocable offer by Executive to sell
the shares to the Company upon the same terms and conditions as are specified in
the notice or, if such transfer or other disposition is for no consideration or
is involuntary, at the fair market value of such shares, as determined pursuant
to the procedures set forth in Section 9. The Company may accept such offer by
delivering a written acceptance to Executive within 30 days after receipt of the
written notice from Executive. If the Company elects to accept such offer, the
purchase of such shares shall be closed within 30 days (i) upon the same terms
as are specified in Executive's written notice, (ii) by a cash purchase if the
transfer is for no consideration or is involuntary, or (iii) upon such other
terms as are mutually acceptable to the parties. If the Company elects not to
exercise such offer or if the Company allows such offer to expire without being
accepted, Executive shall
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be able to transfer or encumber such shares on the terms specified in the
written notice to the Company to the person identified therein. If such
transaction is not consummated within 90 days, such shares shall again be
subject to the restrictions and the purchase option described in Section 11.
(c) Each certificate representing the shares of the Company's capital
stock that Executive may now own or hereafter acquire shall be endorsed with the
following legend:
"The transferability of this certificate and the shares of
stock represented hereby is subject to the restrictions, terms
and conditions contained in the Employment Agreement, dated
February 23, 1990, entered into between the registered owner
of such shares and The Peoples Publishing Group, Inc. A copy
of the Employment Agreement is on file in the office of the
Secretary of the Peoples Publishing Group, Inc."
12. Termination of Certain Rights. The terms of Sections 9, 10 and 11,
notwithstanding any provisions hereof to the contrary, shall terminate and shall
be of no further force and effect at the earliest to occur of: (a) a Public
Offering (as defined in the Purchase Agreement); (b) the date when (i) any
person other than Cherry Tree Ventures III who was not, on February 23, 1990,
the "beneficial owner" (as defined in Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended), directly or indirectly, of in
excess of 80% of the Company's voting capital stock, has become the beneficial
owner (as so defined), directly or indirectly, of in excess of 80% of the
Company's voting capital stock; or (ii) the holders of the Company's capital
stock approve (A) any consolidation or merger (except with one of the
acquisition candidates listed on Schedule 2 to the Purchase Agreement) in which
the Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's capital stock would be converted into cash or the right
to receive cash, securities or the right to receive securities, or other
property (other than a merger in which the holders of the Company's capital
stock immediately prior to the merger have the same percentage ownership of
capital stock of the surviving corporation immediately after the merger), (B)
any sale, lease, exchange or other transfer of all or substantially all of the
assets, or (C) any plan of liquidation or dissolution; or (c) February 16, 1995.
13. Miscellaneous.
13.01 Governing Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of New
Jersey.
13.02 Prior Agreements. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understandings with respect to such subject matter, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
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13.03 Withholding Taxes. The Company may withhold from any
benefits payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
13.04 Amendments. No amendment or modification of this
Agreement shall be deemed effective unless made in writing signed by the parties
hereto.
13.05 Assignment. This Agreement shall not be assignable, in
whole or in part, by either party without the written consent of the other
party.
13.06 No Waiver. No term or condition of this Agreement shall
be deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
13.07 Injunctive Relief. Executive agrees that it would be
difficult to compensate the Company fully for damages for any violation of the
provisions of this Agreement, including without limitation the provisions of
Sections 5, 7 and 8.03. Accordingly, Executive specifically agrees that the
Company shall be entitled to temporary and permanent injunctive relief to
enforce the provisions of this Agreement. This provision with respect to
injunctive relief shall not, however, diminish the right of the Company to claim
and recover damages in addition to injunctive relief.
13.08 Severability. To the extent any provision of this
Agreement shall be invalid or unenforceable, it shall be considered deleted
herefrom and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect. In furtherance and not
in limitation of the foregoing, should the duration or geographical extent of,
or business activities covered by, any provision of this Agreement be in excess
of that which is valid and enforceable under applicable law, then such provision
shall be construed to cover only that duration, extent or activities which may
validly and enforceably be covered. Executive acknowledges the uncertainty of
the law in this respect and expressly stipulates that this Agreement be given
the construction which renders its provisions valid and enforceable to the
maximum extent (not exceeding its express terms) possible under applicable law.
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THE PEOPLES PUBLISHING GROUP, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Exhibit A
Percent of Shares Percent of Shares
which may be purchased which may be purchased
by the Company at by the Company at
Period Executive's cost therefor fair market value
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From the date hereof
through February 16, 1991 66-2/3% 33-1/3%
From February 17, 1991
through February 16, 1992 33-2/3% 66-2/3%
February 17, 1992
through February 16, 1993 None 100%