EMPLOYMENT AGREEMENT - XXXX XXXXXXXX
AGREEMENT made as of November 10, 2004 by and between CENTALE,
INC., a New York corporation with offices at 000 Xxxx Xxxxxx, Xxxx
Xxxxxx, XX 00000 (the "Corporation"), and XXXX XXXXXXXX, residing at
000 Xxxx Xxx Xxxxxx, Xxxxxxxx, XX 00000 ("Xxxxxxxx").
WHEREAS, the Corporation wishes to employ Xxxxxxxx as
President and Chief Operating Officer, and to provide Xxxxxxxx with
assurance of compensation and terms of employment which will
competitively motivate Xxxxxxxx, and Xxxxxxxx desires to be so
employed.
NOW, THEREFORE, it is agreed:
1. Title; Capacities.
(a) The Corporation hereby employs Xxxxxxxx as President and
Chief Operating Officer of the Corporation. In such capacity,
Xxxxxxxx shall be responsible for implementing the plans and
policies adopted from time-to-time by the Corporation's Board of
Directors. Xxxxxxxx shall be subject to the supervision of the
Corporation's Board of Directors and the Corporation's Chief
Executive Officer. Xxxxxxxx shall report to the Chief Executive
Officer.
(b) Xxxxxxxx agrees that he will devote substantially all of
his business time, labor, skill, attention and best ability to the
performance of his duties under this Agreement. Xxxxxxxx agrees to
abide by such reasonable rules, regulations, personnel practices and
policies of the Corporation, and any changes therein, which may be
reasonably adopted from time to time by the Corporation and
delivered in writing to Xxxxxxxx.
(c) Xxxxxxxx will serve on the Corporation's Board of
Directors immediately upon the Effective Date of the Agreement,
without additional compensation.
2. Compensation.
(a) Salary. During the Term of this Agreement, the
Corporation will pay Xxxxxxxx a salary at the rate of Ninety
Thousand Dollars ($90,000) per annum. Salary shall be payable on the
days when the salaries of other Corporation employees are paid.
(b) Sales Override. Ten days after the end of each month
during the Term of this Agreement, the Corporation will pay Xxxxxxxx
a sales override equal to one-sixth (1/6) of the total sales
commissions earned by employees of the Corporation during the month.
(c) Sales Commission. Xxxxxxxx will participate in the
Corporation's sales commission plan, as modified from time to time,
on terms equal to the Corporation's highest ranking sales personnel,
except as modified by this Subsection "c." On the date specified in
the plan for payment of commissions, the Corporation will pay
Xxxxxxxx the commissions earned by him subject to a deduction of
Seven Thousand Five Hundred Dollars ($7,500) per calendar month.
The deduction for a month in which Xxxxxxxx does not earn $7,500 in
commissions will not carry over to subsequent months.
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(d) Restricted Stock Grant. Upon the Effective Date of
this Agreement, the Corporation will grant to Xxxxxxxx nine hundred
thousand (900,000) shares of restricted stock on the terms set forth
in the "Award Agreement - Restricted Stock" annexed as Appendix X.
Xxxxxxxx will have all voting rights attendant to such shares,
notwithstanding the restrictions set forth in the Award Agreement.
(e) Reimbursement of Business Expenses. Xxxxxxxx shall be
entitled to reimbursement of all reasonable business expenses
actually incurred by Xxxxxxxx in the discharge of Xxxxxxxx'x duties
hereunder, including expenses for entertainment, travel, employee
training and similar items, upon submission of the related invoice
or other sufficient documentation.
(f) Will provide a car allowance of $700 per month.
3. Term.
(a) The "Effective Date" of this Agreement will be the date
that is five business days after the Funding Date. The "Funding
Date will be the date on which the amount of capital contributed in
cash to the Corporation after the date of this agreement equals or
exceeds Four Hundred Thousand Dollars ($400,000). If the Effective
Date does not occur prior to December 31, 2004, the Agreement will
terminate on that date. The Corporation will give Xxxxxxxx notice
of the Effective Date on the Funding Date.
(b) The "Term" of this Agreement and of Xxxxxxxx'x employment
hereunder shall commence on the Effective Date and shall terminate
on November 30, 2007, unless earlier terminated pursuant to Sec 3(c)
hereunder.
(c) Prior to November 30, 2007, Xxxxxxxx'x employment
hereunder may be terminated as follows:
(i) by Xxxxxxxx, at will;
(ii) by the Corporation for Cause. As used herein, the term
"Cause" shall mean only the following: (A) conviction during the
Term of a crime involving moral turpitude, (B) material, willful or
gross misconduct by Xxxxxxxx in the performance of his duties
hereunder, or (C) the failure by Xxxxxxxx to perform or observe any
substantial lawful obligation of such employment that is not
remedied within fifteen (15) days after the receipt of written
notice thereof from the Board of Directors (provided such neglect or
failure is unrelated to disability).
(iii) by the Corporation, upon the death or disability
of Xxxxxxxx. "Disability" shall mean Xxxxxxxx'x inability to
perform Xxxxxxxx'x normal employment functions due to any medically
determinable physical or mental disability, which can last or has
lasted three months or is expected to result in death.
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(d) Termination of Xxxxxxxx'x employment, when
permitted hereunder, may be effectuated by delivery of written
notice to Xxxxxxxx, stating the grounds for termination. Such
notice shall be effective upon receipt.
(e) At any time during the Term of the Agreement, the Board of
Directors may remove Xxxxxxxx from his position as President, if it
determines that such removal is in the best interests of the
Corporation. Upon such removal, Xxxxxxxx may assume another role in
the Corporation if Xxxxxxxx and the Corporation so agree, or he may
have no further responsibilities to the Corporation. A removal from
office pursuant to this Section 3(e) shall not be deemed to be a
termination of this agreement, and Xxxxxxxx shall remain employed
under the terms of this Agreement until the Agreement terminates
pursuant to either Section 3(b) or Section 3(c).
4. Covenant of Non-Competition. In consideration of the
undertakings by the Corporation herein, Xxxxxxxx covenants for the
benefit of the Corporation and the shareholders thereof as follows:
(a) The "Restricted Period" for purposes of this Covenant
shall commence on the Effective Date of this Agreement and shall
continue for a period ending on the date which is one year after the
date on which Xxxxxxxx ceases to be employed by the Corporation.
(b) During the Restricted Period Xxxxxxxx shall not, directly
or indirectly, as an employee, consultant or principal, through
equity ownership or otherwise, for himself or for any other person,
engage in, or assist any other person to engage in, any Competitive
Activities. For purposes hereof, "Competitive Activities" shall
mean the following:
(i) Directly or indirectly soliciting, diverting, taking
away or attempting to solicit, divert, or take away any
business opportunities which became available to the
Corporation or any of its subsidiaries or affiliated entities
during the Term of this Agreement;
(ii) Engaging in business with any person or entity
with which the Corporation was engaged in business during the
six months preceding Xxxxxxxx'x business engagement;
(iii) Engaging in (A) the business of marketing desktop
software applications, (B) the business of compiling and/or
marketing databases, or (C) the business of generating and/or
marketing marketing leads; or
(iv) Hiring, offering to hire, enticing away or
in any manner persuading or attempting to persuade any person
affiliated (as employee or as independent contractor) with the
Corporation or any affiliate or subsidiary of the Corporation
to discontinue his relationship with such company, or to
become employed by any other entity.
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5. Assignment. The Corporation and Xxxxxxxx acknowledge that
the relationship established hereby is unique and personal and that
neither the Corporation nor Xxxxxxxx may assign or delegate any of
their respective rights and/or obligations hereunder without the
prior written consent of the other party except as follows:
In the event of a future disposition of (or including) the
properties and business of the Corporation, substantially as an
entirety, by merger, consolidation, sale of assets, or otherwise,
then the Corporation shall be obligated to assign this Agreement and
all of its rights and obligations hereunder to the acquiring or
surviving corporation, and such acquiring or surviving corporation
shall assume in writing all of the obligations of the Corporation
hereunder; provided, however, that the Corporation (in the event and
so long as it remains in business as an independent going
enterprise) shall remain liable for the performance of its
obligations hereunder in the event of an unjustified failure of the
acquiring corporation to perform its obligations under this
Agreement.
6. Indemnification. The Corporation shall indemnify Xxxxxxxx
to the fullest extent authorized by the Business Corporation Law of
the State of New York against claims or liability arising from his
service on behalf of the Corporation.
7. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York
applicable to contracts made and to be performed therein.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
CENTALE, INC.
By: /s/ Xxxxxxxx X. Xxxx, Xx.
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Xxxxxxxx X. Xxxxxxxx, Xx., Secretary
Xxxxxxxx X. Xxxx, Xx., Chairman
s/s Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
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APPENDIX A
CENTALE, INC.
Date: November 10, 2004 Number of Shares: 900,000
Grantee: Xxxx Xxxxxxxx
Restriction: The shares may not be transferred, pledged or hypothecated
unless and until they "vest." If the Grantee's employment by Centale, Inc.
(the "Corporation") is terminated, all unvested shares shall be cancelled
by the Corporation.
Vesting Schedule:
The vesting schedule will be:
300,000 of the shares will vest on the Effective Date defined in the
Employment Agreement between the Grantee and the Corporation.
150,000 of the shares will vest on each of the following dates (the
"Vesting Dates"), if, on the Vesting Date, the Grantee remains an
employee of the Corporation: June 30, 2005, January 1, 2006, June
30, 2006 and January 1, 2007.
If a Change in Control occurs and the Grantee remains an employee of the
Corporation on the effective date of the Change in Control, then all of
the shares will vest on the effective date of the Change in Control.
A "Change in Control" shall be deemed to have occurred if (i) any "person"
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act),
other than (A) a person who on October 18, 2004 was the beneficial owner
of more than 25% of the Corporation's outstanding shares, (B) a trustee or
other fiduciary holding securities under an employee benefit plan of the
Corporation or (C) a corporation owned directly or indirectly by the
shareholders of the Corporation in substantially the same proportions as
their ownership of stock of the Corporation, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Corporation representing fifty percent (50%) or
more of the total voting power represented by the Corporation's then
outstanding voting securities, or (ii) during any period of two (2)
consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Corporation and any new Director
whose election by the Board of Directors or nomination for election by
the Corporation's shareholders was approved by a vote of at least
two-thirds (2/3) of the Directors then still in office who either were
Directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the shareholders of the
Corporation approve a merger or consolidation of the Corporation with any
other corporation, other than a merger or consolidation which would result
in the voting securities of the Corporation outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least
fifty-five percent (55%) of the total voting power represented by the
voting securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation, or the shareholders of
the Corporation approve a plan of complete liquidation of the Corporation
or an agreement for the sale or disposition by the Corporation of all or
substantially all the Corporation's assets.
Note: The certificate for the shares will bear a legend referencing this
Award Agreement. The legend may be removed as to any vested shares
immediately upon vesting upon the Grantee's request to the Corporation.
CENTALE, INC.
By: /s/ Xxxxxxxx X. Xxxx, Xx.
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Name: Xxxxxxxx X. Xxxx, Xx.
Title: Chairman
