EXHIBIT 10.3
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated February 4, 2002 by and
between ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corp., a New York corporation with an address at ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company"), and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, residing at residing at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Executive").
W I T N E S S E T H
WHEREAS, THE COMPANY DESIRES THAT EXECUTIVE BE EMPLOYED BY IT AND
RENDER SERVICES TO IT, AND EXECUTIVE IS WILLING TO BE SO EMPLOYED AND TO RENDER
SUCH SERVICES TO THE COMPANY, ALL ON THE TERMS AND SUBJECT TO THE CONDITIONS
CONTAINED HEREIN.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment
Subject to and upon the terms and conditions contained in this
Agreement, the Company hereby employs Executive, for the period set forth in
Paragraph 2 (subject to the terms and conditions of this Agreement), to render
the services to the Company, its affiliates and/or subsidiaries described in
Paragraph 3 of this Agreement.
2. Term
The Executive's term of employment under this Agreement shall commence
on January 1, 2002 (the "Commencement Date") and shall continue for a period of
thirty-six months (36) months, terminating on December 31, 2004 (the "Expiration
Date"), unless earlier terminated under the terms and conditions herein (the
"Employment Term").
3. Duties
(a) Executive's responsibilities shall be to manage and direct
the Company's wholly owned affinity services subsidiary, ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ADS
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Corp., or as shall from time to time be designated by the Chief Executive
Officer ("CEO") of the Company. Executive shall be based in the New York
counties of Nassau or Suffolk, or wherever the corporate headquarters of the
Company are located and shall have the title of President, driversshield ADS
Corp.
(b) Executive agrees to abide by all By-Laws and policies of
the Company promulgated from time to time by the Company.
4. Exclusive-Services, Best Efforts and Acknowledgment
Executive shall devote his entire working time, attention, best efforts
and ability exclusively to the service of the Company, its affiliates and
subsidiaries during the term of this Agreement. The Company and the Executive
acknowledge that the Affinity Services Division shall only offer its services in
the form of programs that require outside parties to bear the sole cost of sales
marketing, distribution, printing and fulfillment, without the Company incurring
any such costs. The Company shall provide the service and bear the costs
associated with the benefits that are normally offered to the end users of such
affinity programs. The parties agree to develop an annual budget for the
Affinity Services Division that conforms to the program expense format set forth
above.
5. Compensation
(a) Base Salary. Commencing on the Commencement Date, the
Executive shall receive an annual salary, payable pursuant to the Company's
normal payroll procedures in place from time to time, during the Employment
Term, in the amount of One Hundred Thirty Thousand Dollars ($175,000), subject
to all required federal, state and local payroll deductions. The Executive's
Base Salary may be increased upon the recommendation of the CEO and the approval
of the Board of Directors.
(b) Incentive Compensation. The Executive shall participate in
the Company's Corporate Incentive Compensation Program as approved and
authorized by the Board of Directors of the Company, subject to amendment by the
Board of Directors or the Compensation Committee of the Board of Directors of
the Company.
(c) The Executive shall be granted a stock option under the
Company's 1995 Incentive Stock Plan (the "Plan") with the right to purchase
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up to 250,000 shares of the Company's common stock (the "Stock Option"). The
Stock Option shall be granted at a price equal to the closing price of the
Company's common stock as quoted on The Nasdaq SmallCap Stock Market on the
Commencement Date. The Stock Option shall become exercisable in one-third
increments upon the first, second and third anniversary of the Stock Option
grant. The Company will provide the Executive a Stock Option Contract for his
signature that will set out the terms of the option. This Stock Option shall be
subject to the terms of the Plan. Additionally, should a Change in Control, as
hereinafter defined, occur, only to the extent that the Company does not lose
any deductions that would be otherwise be deductible under Section 280G of the
Internal Revenue Code, the Executive's Stock Option shall become fully
exercisable.
6. Business Expenses
Executive shall be reimbursed for only those business expenses incurred
by him (a) which are reasonable and necessary for Executive to perform his
duties under this Agreement in accordance with policies established from time to
time by the Company, and (b) for which Executive has submitted vouchers and/or
receipts. The Executive shall be issued a corporate credit card that he shall
use solely for business expenses that are reasonable and necessary for the
Executive to perform his duties under this Agreement in accordance with policies
established from time to time by the Company
7. Executive Benefits
During the Employment Term, Executive shall participate, to the extent
he is eligible under the terms and conditions thereof, in any health, life,
disability insurance, or 401(k) plan, or other employee benefit plans maintained
by Employer (but nothing herein shall obligate the Company to establish or
maintain any such benefit plan).
The Executive shall be reimbursed $500 per month for a car
allowance.
8. Vacation and Sick Leave
Executive shall be entitled to three (3) weeks of paid vacation per
annum during the Employment Term, to be taken at such times as may be mutually
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agreed upon by the Company and Executive. The Executive shall be entitled to one
(1) week of paid sick leave per annum during the Employment Term.
9. Death and Disability
(a) The Employment Term shall terminate on the date of
Executive's death, in which event Executive's salary payable pursuant to
Paragraph 5 and any accrued vacation, through the date of Executive's death,
shall be paid to his estate. Executive's estate will not be entitled to any
other compensation upon termination of this Agreement pursuant to this Paragraph
9(a).
(b) If during the Employment Term, Executive, because of
physical or mental illness or incapacity, shall become substantially unable to
perform the duties and services required of him under this Agreement for a
period of forty-five (45) consecutive days or ninety (90) days in the aggregate
in any one calendar year, the Company may, upon at least ten (10) days' prior
written notice given at any time after the expiration of such 45 or 90-day
period, as the case may be, to Executive of its intention to do so, terminate
this Agreement as of such date as may be set forth in the notice. In case of
such termination, Executive shall be entitled to receive his salary payable
pursuant to Paragraph 5 through the date of termination. Executive will not be
entitled to any other compensation upon termination of this Agreement pursuant
to this Paragraph 9(b).
10. Termination
(a) The Company may terminate the employment of Executive For
Cause (as hereinafter defined). Upon such termination, the Company shall be
released from any and all further obligations under this Agreement, except that
the Company shall be obligated to pay Executive the unpaid prorated salary
pursuant to Paragraph 5 earned or accrued and any other benefits normally paid
and/provided to the Executive up through the day on which Executive is
terminated.
(b) The Company may terminate the employment of Executive
Without Cause (as hereinafter defined). Upon such termination, the Company shall
be released from any and all further obligations under this Agreement, except
that the Company shall be obligated to pay Executive the unpaid prorated salary
pursuant to Paragraph 5 earned or accrued and any other benefits normally paid
and/provided to the Executive up through the day on
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which Executive is terminated, in addition to the lesser of (i) Base Salary and
other employee benefits, as set forth in Paragraph 7, for a twelve (12) month
period from the date employment is terminated, or (ii) the Base Salary and other
employee benefits that would have been paid the Executive from the date
employment is terminated through the Expiration Date.
(c) As used herein, the term "For Cause" shall mean:
(i) any material breach of this Agreement by
Executive that, in the case of a breach that may be cured or remedied, is not
cured or remedied to the reasonable satisfaction of the Company within 30 days
after notice is given by the Company to Executive, setting forth in reasonable
detail the nature of such breach;
(ii) Executive's failure to perform his duties and
services hereunder to the reasonable satisfaction of the CEO of the Company
that, in the case of any such failure that may be cured or remedied, is not
cured or remedied to the reasonable satisfaction of the Company within 30 days
after notice is given by the Company to Executive, setting forth in reasonable
detail the nature of such failure;
(iii) any material act, or material failure to act,
by Executive in bad faith and to the material detriment of the Company; or
(iv) commission by Executive of a material act
involving moral turpitude, dishonesty, unethical business conduct, or any other
conduct that significantly impairs the reputation of the Company, its
subsidiaries or affiliates.
(v) the conviction of the Executive of a felony,
including the plea of nolo contendere (vi) the Affinity Services Division does
not achieve net income of at least (x) $500,000 in the year ending on December
31, 1999, (y) $750,000 in the year ending on December 31, 2000, or (z) $1
million in the year ending December 31, 2001.
(d) As used herein, the term "Without Cause" shall mean:
(i) Termination by the Company of the Executive's
employment for any reason other than For Cause, Death or Disability.
11. Disclosure of Information and Restrictive Covenant
(a) Executive acknowledges that, by his employment, he has
been and will be in a confidential relationship with the Company and will have
access to confidential information and trade secrets of the Company, its
subsidiaries and affiliates, including, but not limited to, confidential
information
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or trade secrets belonging or relating to the Company, its subsidiaries,
affiliates, customers and/or clients or proprietary processes or procedures of
the Company, its subsidiaries, affiliates, customers and/or clients. Proprietary
processes and procedures shall include, but shall not be limited to, all
information which is known only to employees of the Company, its respective
subsidiaries and affiliates or others in a confidential relationship with the
Company or its respective subsidiaries and affiliates which relates to business
matters. Confidential information and trade secrets include, but are not limited
to, customer and client lists, price lists, marketing and sales strategies and
procedures, operational and equipment techniques, business plans and systems,
quality control procedures and systems, special projects and technological
research, including projects, research and reports for any entity or client or
any project, research, report or the like concerning sales or manufacturing or
new technology, employee compensation plans and any other information relating
thereto, and any other records, files, drawings, inventions, discoveries,
applications or processes which are not in the public domain (all the foregoing
shall be referred to herein as the "Confidential Information"). Executive agrees
that in consideration of the execution of this Agreement by the Company, he will
not use, or disclose to any third party, any of the Confidential Information,
other than as required to perform his services hereunder or as directed or
authorized by the Company's Board of Directors or President.
(b)
(i) Executive will not, at any time prior to the
Expiration Date, or if the Executive's employment shall terminate prior to the
Expiration Date, then for a period of one (1) year after the Executive ceases to
be employed by the Company, engage in or participate in any business activity,
including, but not limited to, acting as a director, officer, employee, agent,
independent contractor, partner, consultant, licensor or licensee, franchiser or
franchisee, proprietor, syndicate member, or shareholder that operates a
business or activity which competes with any business or activity engaged in by
the Company.
(ii) Any time during his employment by the Company or
after the Executive ceases to be employed by the Company, divulge to any
persons, firms or corporations, other than the Company (hereinafter referred to
collectively as "third parties"), or use or allow or cause or authorize any
third parties to use, any such Confidential Information; and
(iii) At any time during his employment by the
Company and for a period of one (1) year after the Executive ceases to be
employed by the Company, solicit or cause or authorize directly or indirectly to
be solicited, for
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or on behalf of the Executive or third parties, any business from persons,
firms, corporations or other entities who were at any time within one (1) year
prior to the cessation of his employment hereunder, customers of the Company;
and
(iv) At any time during his employment by the Company
and for a period of one (1) year after the Executive ceases to be employed by
the Company, accept or cause or authorize directly or indirectly to be accepted,
for or on behalf of the Executive or third parties, any business from any such
customers of this Company; and
(v) At any time during his employment by the Company
and for a period of one (1) year after the Executive ceases to be employed by
the Company, solicit or cause or authorize directly or indirectly to be
solicited for employment, for or on behalf of the Executive or third parties,
any persons who were at any time within one year prior to the cessation of his
employment hereunder, employees of the Company; and
(vi) At any time during his employment by the Company
and for a period of one year after the Executive ceases to be employed by the
Company, employ or cause or authorize directly or indirectly to be employed, for
or on behalf of the Executive or third parties, any such employees of the
Company; and
(vii) At any time during his employment by the
Company and for a period of one (1) year after the Executive ceases to be
employed by the Company, compete with the Company in any fashion or work for,
advise, be a consultant to or an officer, director, agent or employee of or
otherwise associate with any person, firm, corporation or other entity which is
engaged in or plans to engage in a business or activity which competes with any
business or activity engaged in by the Company, or which is under development or
in a planning stage by the Company.
(viii) Notwithstanding anything to the contrary, the
Executive may engage in any business activity he so wishes as long as: (A) this
business activity did not directly compete with any business of the Company
prior to the Executive joining or entering into this business activity, (B) the
Executive does not assist this business activity to develop a business that
competes with any business of the Company that existed, or was in the planning
stages, at the time that the Executive's employment terminated with the Company,
or (c) the Executive shall not serve in a management capacity whereby a
subsidiary, division or business unit reports directly or indirectly to him and
engages in a business activity that competes with any business of the Company
that existed, or was in the planning stages, at the time that the Executive's
employment terminated with the Company.
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(c) Executive will not induce or persuade other employees of
the Company to join him in any activity prohibited by Paragraph 11 or 12.
(d) This Paragraph 11 and Paragraph 12, 13, 14, 21. 23 and 24
shall survive the expiration or termination of the Agreement for any reason.
(e) It is expressly agreed by Executive that the nature and
scope of each of the provisions set forth in Paragraphs 11 and 12 are reasonable
and necessary. If, for any reason, any aspect of these provisions as they apply
to Executive is determined by a court of competent jurisdiction to be
unreasonable or unenforceable, the provisions shall only be modified to the
minimum extent required to make the provisions reasonable and/or enforceable, as
the case may be. Executive acknowledges and agrees that his services are of a
unique character and expressly grants to the Company or any subsidiary,
successor or assignee of the Company, the right to enforce the provisions above
through the use of all remedies available at law or in equity, including, but
not limited to, injunctive relief.
12. Company Property
(a) Any patents, inventions, discoveries, applications,
processes or designs, devised, planned, applied, created, discovered or invented
by Executive in the course of Executive's employment under this Agreement and
which pertain to any aspect of the Company's or its respective subsidiaries' or
affiliates' businesses shall be the sole and absolute property of the Company,
and Executive shall make prompt report thereof to the Company and promptly
execute any and all documents reasonably requested to assure the Company the
full and complete ownership thereof.
(b) All records, files, lists, including computer generated
lists, drawings, documents, equipment and similar items relating to the
Company's business which Executive shall prepare or receive from the Company
shall remain the Company's sole and exclusive property. Upon termination of the
Employment Term, or, if earlier, upon demand by the Company, Executive shall
promptly return to the Company all property of the Company in his possession.
Executive further represents that he will not copy or cause to be copied, print
out or cause to be printed out any software, documents or other materials
originating with or belonging to the Company. Executive covenants that, upon
termination of his employment with the Company, he will not retain in his
possession any such software, documents or other materials.
13. Remedy
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It is mutually understood and agreed that Executive's services are
special, unique, unusual, extraordinary and of an intellectual character giving
them a peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages in an action at law. Accordingly, in the event of any
breach of this Agreement by Executive, including, but not limited to, the breach
of the nondisclosure, non-solicitation and non-compete clauses under Paragraphs
11 and 12 hereof, the Company shall be entitled to equitable relief by way of
injunction or otherwise in addition to damages the Company may be entitled to
recover. Nothing herein shall be deemed to restrict any remedy available to
Executive for breach of the Agreement by the Company.
14. Representations and Warranties of Executive and the Company
(a) In order to induce the Company to enter into this
Agreement, Executive hereby represents and warrants to the Company as follows:
(i) Executive has the legal capacity and unrestricted right to execute and
deliver this Agreement once to perform all of his obligations hereunder: (ii)
the execution and delivery of this Agreement by Executive and the performance of
his obligations hereunder will not violate or be in conflict with any fiduciary
or other duty, instrument, agreement, document, arrangement or other
understanding to which Executive is a party or by which he is or may be bound or
subject; and (iii) Executive is not a party to any instrument, agreement,
document, arrangement or other understanding with any person (other than the
Company) requiring or restricting the use or disclosure of any confidential
information or the provision of any employment, consulting or other services.
(b) The Company hereby represents and warrants to Executive,
as follows: (i) the execution, delivery, and performance of this Agreement has
been duly authorized by all necessary corporate action of the Company; and (ii)
this Agreement constitutes the valid and binding obligation of the Company,
enforceable in accordance with its terms, except that such enforcement may be
subject to any bankruptcy, insolvency, reorganization, fraudulent transfer or
other laws, now or hereafter in effect, relating to or limiting creditors'
rights generally.
15. Notices
All notices given hereunder shall be in writing and shall be deemed
effectively given when mailed, if sent by registered or certified mail, return
receipt requested, addressed to Executive at his address set forth on the first
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page of this Agreement, and to the Company at its address set forth on the first
page of this Agreement, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board, with a
copy to Meritz & ▇▇▇▇▇ LLP., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or at such address as such party shall have
designated by a notice given in accordance with this Paragraph 15, or when
actually received by the party for whom intended, if sent by any other means.
16. Entire Agreement
This Agreement constitutes the entire understanding of the parties with
respect to its subject matter and no change, alteration or modification hereof
may be made except in writing signed by the parties hereto. Any prior or other
agreements, promises, negotiations or representations not expressly set forth in
this Agreement are of no force or effect.
17. Severability
If any provision of this Agreement shall be unenforceable under any
applicable law, then notwithstanding such unenforceability, the remainder of
this Agreement shall continue in full force and effect.
18. Waivers, Modifications, Etc.
No amendment, modification or waiver of any provision of this Agreement
shall be effective unless the same shall be in writing and signed by each of the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
19. Assignment
Neither this Agreement. nor any of Executive's rights, powers, duties
or obligations hereunder, may be assigned by Executive. This Agreement shall be
binding upon and inure to the benefit of Executive and his heirs and legal
representatives and the Company and its successors and assigns. Successors of
the Company shall include, without limitation, any corporation or corporations
acquiring, directly or indirectly, all or substantially all of the assets of the
Company, whether by merger, consolidation, purchase, lease or otherwise, and
such successor shall thereafter be deemed "the Company" for the purpose hereof.
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20. Applicable Law
This Agreement shall be deemed to have been made, drafted, negotiated
and the transactions contemplated hereby consummated and fully performed in the
State of New York and shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflicts of law rules
thereof. Nothing contained in this Agreement shall be construed so as to require
the commission of any act contrary to law, and whenever there is any conflict
between any provision of this Agreement and any statute, law, ordinance, order
or regulation, contrary to which the parties hereto have no legal right to
contract, the latter shall prevail, but in such event any provision of this
Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within the legal requirements.
21. Jurisdiction and Venue
It is hereby irrevocably agreed that all actions, suits or proceedings
between the Company and Executive arising out of, in connection with or relating
to this Agreement shall be exclusively heard and determined in, and the parties
do hereby irrevocably submit to the exclusive jurisdiction of, the Supreme Court
of the State of New York for Nassau or Suffolk County or the United States
District Court for the Eastern District of New York. The parties also agree that
a final judgment in any such action, suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. The parties hereby unconditionally waive any objection
which either of them may now or hereafter have to the venue of any such action,
suit or proceeding brought in any of the aforesaid courts, and waive any claim
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
22. Full Understanding
Executive represents and agrees that he fully understands his right to
discuss all aspects of this Agreement with his private attorney, that to the
extent, if any, that he desired, he availed himself of this right, that he has
carefully read and fully understands all of the provisions of this Agreement,
that he is competent to execute this Agreement. that his agreement to execute
this Agreement has not been obtained by any duress and that he freely and
voluntarily enters into it, and that he has read this document in its entirety
and fully understands the meaning, intent and consequences of this document
which is that it constitutes an agreement of employment.
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23. Severance
(a) Severance Benefits. If the Executive's employment shall be
terminated by the Company within one (1) year after a Change in Control of the
Company, for reasons other than for Termination for Cause, Retirement, Death or
Disability, or terminated by the Executive for Good Reason within one (1) year
after a Change in Control of the Company, then, subject to the limitations set
forth in Subparagraph 23(c) below, the Executive shall be entitled to the
benefits provided below:
(i) the Company shall pay the Executive the
Executive's full base salary through the Date of Termination at the rate equal
to the greater of the rate in effect on the date prior to the Change in Control
and the rate in effect at the time Notice of Termination is given, plus all
other amounts to which the Executive is entitled under any compensation plan of
the Company in effect on the date, the payments are due, except as otherwise
provided below;
(ii) in lieu of any further salary payments to the
Executive for periods subsequent to the Date of Termination, except as provided
in Paragraph 23(c) below, the Company shall pay as severance pay to the
Executive a lump sum severance payment equal to 100% of the Executive's annual
salary as determined on the Date of Termination or the date on which a Change in
Control occurs, whichever is greater;
(b) Date Benefits Due. The payments provided for in Paragraph
23(a) above shall be made not later than the fifth day following the Date of
Termination, provided, however, that if the amounts of such payments cannot be
finally determined on or before such day, the Company shall pay to the Executive
on such day an estimate, as determined in good faith by the Company, of the
minimum amount of such payments and shall pay the remainder of such payments
(together with interest at the rate provided in Section 7872(f)(2) of the Code)
as soon as the amount thereof can be determined but in no event later than the
thirtieth day after the Date of Termination. In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
such excess shall constitute a loan by the Company to the Executive repayable on
the fifth day after demand by the Company (together with interest at the rate
provided in Section 7872(f)(2) of the Code).
(c) Reduction to Avoid Non-Deductibility. Any of the other
provisions of this Agreement notwithstanding, if any payment to be made by the
Company pursuant to this Agreement to the Executive or for the Executive's
benefit (the "Payments") otherwise would not be deductible by the
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Company for Federal income tax purposes due to the provisions of the Code
Section 280G, the aggregate present value (determined as of the date of the
Change in Control) of the Payments shall be reduced (but not to a negative
amount) to an amount expressed in the present value as of such date (the
"Reduced Amount") that maximizes the present value of the Payments without
causing any payment to be nondeductible by the Company due to the Code Section
280G. The determination of the Reduced Amount and the accompanying reduction in
Payments shall be made by the independent certified public accountants for the
Company. Any such decrease in Payments shall be applied to the amounts to be
paid to the Executive or for the Executive's benefit hereunder in the following
order but only to the extent such amounts would be taken into account in
determining whether the Payments constitute "parachute payments" within the
meaning of the Code Section 280G(b)(2)(A): (i) to decrease the amounts payable
to the Executive pursuant to Subparagraph 5(c); (ii) to decrease the amounts
payable to the Executive pursuant to Subparagraph 23(a)(ii);
(d) Determination of Reduced Amount. The determination of the
Reduced Amount and of the reduction in the Payments shall be communicated to the
Executive in writing by the Company. If the Executive does not agree with such
determinations, the Executive may give written notice of such disagreement to
the Board within five (5) days of the Executive's receipt of the determination,
and within fifteen (15) days after the Executive's notice of disagreement, the
Executive shall deliver to the Board the Executive's calculation of the
reduction in Payments. If the Executive fails to give notice of disagreement or
to furnish the Executive's calculation in accordance with the provisions of the
immediately preceding sentence, the Executive shall be conclusively deemed to
have accepted the determinations made by the independent public accountants for
the Company. If the accountants for the Company and the Executive's accountants
are unable to agree upon the reduction of Payments within ten (10) days of the
receipt of the Board of the Executive's calculation, the determination of the
reduction in Payments shall be made by a third accounting firm picked by the
Company's accountants and the Executive's accountants (the "Arbiter") whose
determination shall be final and binding upon the Executive and the Company,
except to the extent provided below. The Company shall withhold for income tax
purposes all amounts that the Company's independent certified public accountants
believe that the Company is required to withhold.
(e) Arbiter to Resolve Disputes. The Arbiter's and the
Company's accountant's fees shall be borne solely by the Company. The
Executive's accountant's fees shall be borne by the Executive.
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(f) Final Payment. As promptly as practicable after the final
determination of the reduction in Payments, the Company shall pay to the
Executive or for the Executive's benefit the amounts determined to be payable.
(g) IRS Ruling. In the event there is a final determination by
the Internal Revenue Service or by a court of competent jurisdiction that any
portion of the Payments are not deductible by the Company by reason of Section
280G, then the amount of the Payments that exceeds the amount deductible by the
Company shall be deemed to be a loan by the Company to the Executive, which
shall be repaid by the Executive five (5) days after delivery of a demand by the
Company therefor together with interest from the date paid by the Company to the
date repaid by the Executive at the rate provided for a demand loan in Section
7872(f)(2) of the Code.
(h) Interpretation. The provisions of this Paragraph 23 shall
be interpreted in a manner that will avoid the disallowance of a deduction to
the Company pursuant to Section 280G and the imposition of excise taxes on the
Executive under Section 4899 of the Code.
(i) Definitions. For the purposes of this Agreement, the
following terms shall mean:
(i) "Incumbent Board" shall mean the members of the
Board, who were members of the Board prior to the date of this Agreement.
(ii) "Subsidiary" shall mean any corporation of which
an amount of voting securities sufficient to elect at least a majority of the
directors of such corporation is beneficially owned, directly or indirectly, by
the Company, or is otherwise controlled by the Company.
(iii) "Good Reason" shall mean, without the
Executive's express written consent, the occurrence of any of the following
circumstances unless, such circumstances are fully corrected prior to the Date
of Termination specified in the Notice of Termination, as defined in Paragraphs
23(i)(iv) and (v), respectively, given in respect thereof:
(A) the assignment to the Executive of any
duties inconsistent with the Executive's status as President of
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ADS Corp., or a substantial adverse alteration in the nature
or status of the Executive's responsibilities from those in effect immediately
prior to a Change in Control of the Company;
(B) a reduction by the Company in the
Executive's annual base salary as in effect on the date hereof or as the same
may be increased from time to time, except for across-the-board salary
reductions similarly affecting all senior executives of the Company and all
senior executives of any person in control of the Company;
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(C) the relocation of the Company's
principal executive offices to a location which is not within the boundaries of
Nassau and Suffolk counties within the State of New York or Miami-Dade, Broward
or Palm Beach counties within the State of Florida, except for required travel
on the Company's business to an extent substantially consistent with the
Executive's present business travel obligations, or the adverse and substantial
alteration of the office space or secretarial or support services provided to
the Executive for the performance of the Executive's duties;
(D) the failure by the Company, without the
Executive's consent, to pay to the Executive any portion of the Executive's
current compensation, except pursuant to an across-the-board compensation
deferral similarly affecting all senior executives of the Company and all senior
executives of any person in control of the Company, or the failure by the
Company to pay to the Executive any portion of an installment of deferred
compensation under any deferred compensation program of the Company, within
seven (7) days of the date such compensation is due;
(E) the failure by the Company to continue
in effect any compensation plan in which the Executive participates that is
material to the Executive's total compensation, including but not limited to the
Company's Incentive Stock Option Plan, 401(k) plan, cafeteria or salary
reduction plan, or any other or substitute plans adopted prior to a Change in
Control of the Company, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such plan, or the
failure by the Company to continue the Executive's participation therein (or in
such substitute or alternative plan) on a basis not materially less favorable,
both in terms of the amount of benefits provided and the level of the
Executive's participation relative to other participants, than the Executive's
participation as it existed at the time of a Change in Control of the Company;
(F) unless such action is pursuant to an
across-the-board reduction in benefits similarly affecting all senior executives
of the Company and all senior executives of any person in control of the
Company, the failure by the Company to continue to provide the Executive with
benefits substantially similar to those enjoyed by the Executive under any of
the Company's pension, life insurance, automobile reimbursement, Company credit
card, medical, health and accident, or disability plans, if any, in which the
Executive was participating at the time of a Change in Control of the Company,
or the taking of any action by the Company that would directly or indirectly
materially reduce any of such benefits or deprive the Executive of any material
fringe benefit enjoyed by the Executive at the time of a Change in Control of
the Company, or the failure by the Company to provide the Executive with the
number of paid vacation or sick days to which the Executive
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is entitled under this Agreement at the time of a Change in Control of the
Company;
(G) the failure of the Company to obtain a
satisfaction agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Paragraph 5 hereof; or
(H) any purported termination of the
Executive's employment that is not affected pursuant to a Notice of Termination
satisfying the requirements of Subparagraph 8(c)(iv) below (and, if applicable,
the requirement of Paragraph 6 above); for purposes of this Agreement, no such
purported termination shall be effective.
The Executive's right to terminate the Executive's
employment pursuant to this paragraph shall not be affected by the Executive's
incapacity due to physical or mental illness. The Executive's continued
employment shall not constitute consent to, or a waiver of right with respect
to, any circumstances constituting Good Reason hereunder.
(iv) "Notice of Termination" shall mean a notice that
shall indicate the specific termination provision of this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
(v) "Date of Termination" shall mean (A) if
employment is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided, that the Executive shall not return to the
full-time performance of the Executive's duties during such thirty (30) day
period), or (B) if employment is terminated due to Death of the Executive, upon
receipt of Notice of Termination or (C) if employment is terminated pursuant to
any other provision in this Agreement, the date specified in Notice of
Termination (which, in the case of a termination pursuant to any provision of
this Agreement other than for Disability and Death shall not be less than
fifteen (15) nor more than sixty (60) days, respectively, from the date such
Notice of Termination is given).
Notwithstanding the above, provided, that if within
fifteen (15) days after any Notice of Termination is given to the Executive or
prior to the Date of Termination (as determined without regard to this
provision) the Executive receiving such Notice of Termination notifies the
Company that a dispute exists concerning such termination, that during the
pendency of any such dispute, the Company will continue to pay the Executive his
full compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, base salary) and continue the Executive as a
participant in all compensation, benefit, and insurance plans in which the
Executive was participating when the notice giving rise to the dispute was
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given, until the dispute is finally resolved. However, should final resolution
of the dispute result in the Notice of Termination being affirmed in the forum,
as set forth in Paragraph 21, utilized for resolving said dispute, then the
Executive shall be liable to the Company for all compensation, benefit, and
insurance plans paid and/or provided to the Executive during the period that the
Notice of Termination was in dispute.
Amounts paid under this subparagraph are prior to all
other amounts due under this Agreement and shall not reduce any other amounts
due under this Agreement, which other amounts shall be in addition to, and shall
not be offset by, amounts due under this subparagraph.
Anything to the contrary herein notwithstanding,
twenty-four hours after written notice to the Executive, the Company may relieve
the Executive of authority to act on behalf of, or legally bind, the Company,
provided, that any such action by the Company shall be without prejudice to the
Executive's right to the compensation and benefits provided under this Agreement
and the Executive's right to termination hereunder under such circumstances and
with the compensation and benefits following such termination as provided in
this Agreement.
(vi) "Disability"- If the Executive, due to physical
or mental illness or incapacity, is unable fully to perform his duties herein
for twelve (12) consecutive months.
(vii) "Death"- If the Executive shall die during the
term of this Agreement.
(viii) ""Retirement"- Shall mean termination in
accordance with the Company's retirement policy, if any, including early
retirement, generally applicable to its salaried employees or in accordance with
any retirement arrangement established with the Executive's consent with respect
to the Executive.
(ix) "Change in Control"- . No benefits shall be
payable hereunder unless an event as set forth below, shall have occurred
(hereinafter called a "Change in Control"):
(a) Any person including any individual, firm, partnership or
other entity, together with all Affiliates and Associates (as defined by
ss.240.12b-2 of the regulations promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act") of such person, directly or indirectly
acquires securities of the Company's then outstanding securities representing
thirty percent (30%) or more of the voting securities of the Company, such
person being hereinafter referred to as an Acquiring Person; or, but excluding:
17
(A) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any Subsidiary of
the Company, or
(B) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of the Company, or
(C) the Company or any Subsidiary of the
Company, is or becomes the Beneficial Owner (as defined in Rule 13d-3 under the
Exchange Act),or
(D)a person who acquires securities of the
Company directly from the Company pursuant to a transaction that has been
approved by a vote of at least a majority of the Incumbent Board, or
(b) Individuals who, on the date hereof, constitute the
Incumbent Board shall cease for any reason to constitute a majority of the
Board; or
(c) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation that would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 70% of the combined voting power of the voting
securities of the Company or such other surviving entity outstanding immediately
after such merger or consolidation, or the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets.
24. Legal Fees
The Company shall bear the cost of the Executive's legal fees regarding
any dispute or controversy arising under or in connection with this Agreement
should the dispute be finally adjudicated in favor of the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date written below.
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ CORP. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: By:
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Title: Dated:
-------------------------- ----------------------
Dated:
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