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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 31st day of July 1995 between
Xxxxxx Communications, L.P., a Delaware limited partnership (the "Company"),
and Xxxxx X. Xxxxxxx (the "Employee").
Recital
The Company desires to employ the Employee, and the Employee desires
to accept such employment be the Company on the terms and conditions set forth
herein.
NOW, THEREFORE, the parties agree as follows:
1. Employment. The Company hereby employs the Employee to serve as
Vice President of Business Development, and the Employee accepts such
employment by the Company, on the terms and conditions set forth in this
Agreement.
2. Duties. The Employee will perform new media program development,
supervise marketing personnel, and perform other project, duties, and
responsibilities commensurate with this position as may from time to time be
assigned to the Employee by the Company.
3. Commitment.
(a) The Employee will devote his entire business time,
attention and energies, and his best efforts to the performance of his duties
and responsibilities under this Agreement. During the term of the Employee's
employment, the Employee will not engage in any other business activity,
whether or not such activity is pursued for gain, profit or other pecuniary
advantage: provided, however, that the Employee may invest his personal assets
in businesses which do not compete with the Company, so long as any
participation is solely that of a passive investor.
(b) The Employee represents and warrants to the Company that
he is able to enter into this Agreement and that such ability is not limited or
restricted by any agreements or understandings between the Employee and any
other person. For purposes of this Agreement, the term "person" means any
natural person, corporation, partnership, unincorporated association or other
entity of any nature.
4. Compensation.
(a) For all services rendered by the Employee to the Company,
the Company will pay the Employee a base biweekly salary of $6,730.77.
(b) In addition to the base salary provided for in Section
4(a), the Employee shall be entitled to receive the following incentive bonus
payment:
(1) $125,000 bonus will be paid to the Employee upon
satisfactory completion of agreed upon objectives. This bonus will be paid in
two payments. The first payment will be $50,000 after six (6) months of
employment and a second payment of $75,000 after twelve (12) months of
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employment. It is further understood that future incentive bonuses will be
contingent upon revenue and profit objectives.
(c) The payment of all compensation to the Employee will be
subject to tax and other required withholdings.
5. Relocation Expenses.
(a) Upon receipt of appropriate documentation, the Company
will pay for all moving expenses.
(b) The Company agrees to pay up to $8,000 for two months
interest on a bridge loan while employee sells current residence.
6. Expense Reimbursement. Upon receipt of appropriate documentation,
the Company will reimburse the Employee not less frequently than monthly for
his reasonable travel, lodging, entertainment and other ordinary and necessary
business expenses incurred in the course of his duties on behalf of the
Company.
7. Benefits. The Employee shall be entitled to all benefits
generally available to Employees of the Company.
8. Term of Employment. The Employee is an employee at will and may be
terminated at any time with or without cause.
9. Nonsolicitation and Noncompetion. For a period of eighteen (18)
months following termination of his employment for any reason, whether
voluntary or involuntary, with or without cause, the Employee agrees that he
will not, anywhere in the continental United States of America:
(a) Induce or attempt to induce any of the Company's employees
to terminate their employment with the Company.
(b) In competition with the Company, market or sell wall media
products, product sampling/couponing or services (or any other products or
services marketed or sold by the Company at the time of termination of
employment), or cause, encourage or in any way assist any person or entity to
market or sell wall media products or services (or any products or services
marketed or sold by the Company at the time of termination of employment).
(c) Use any of the Company's Confidential information (as
defined in Section 10) for purposes of engaging in the wall media products,
product sampling/couponing or services (or any other business in which the
Company is engaged at the time of termination of employment), alone or for or
through any person other than the Company.
(d) Solicit or cause or encourage any person to solicit any
wall media products, product sampling/couponing or services (or any business in
which the Company is engaged at the time of termination of employment) from any
person who is a client of the Company as of the date of termination of
employment or who has been a client of the Company within the twelve (12) month
period immediately preceding the date of such termination.
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10. Confidentiality.
(a) The Employee recognizes and acknowledges that to enable
the Company to perform services its clients furnish to the Company Confidential
Information concerning their affairs; that the good will of the Company
depends, among other things, upon its keeping information confidential and that
unauthorized disclosure of the same may irreparably damage the Company; and
that by reason of his duties at the Company, the Employee will come into
possession of the Company's Confidential Information and into possession of
Confidential Information furnished to the Company by its clients including,
without limitation, the Confidential Information of clients to whom the
Employee does not himself market or sell the Company products or services or
Confidential Information which the Employee does not himself use. The Employee
agrees that, except as required in his duties to the Company or as required by
law, the Employee will not while employed by the Company and thereafter
directly, indirectly or otherwise use, disseminate, disclose or communicate to
third parties any Confidential Information and Employee shall take any and all
precautions necessary to protect the lose or disclosure of any Confidential
Information except as Employee may demonstrate by clear and convincing evidence
was required to perform his duties to the Company or was required by law. The
parties hereto stipulate that, as between them the foregoing matters are
important, material and confidential and gravely affect the successful conduct
of the business of the Company, and the Company's good will, and that any breach
of the terms of this Section 10 will be a material breach of this Agreement.
(b) For the purposes of this Agreement, the term "Confidential
Information" means knowledge or information disclosed by the Company to the
Employee which is not generally known in the advertising industry (and with
respect to Confidential Information of Company clients, the industry in which
such client conducts its business), including information conceived, discovered
or developed by the Employee, which is made known to the Employee, over which
the Employee exercised or exercises custody or possession in any forms, or to
which the Employee has access as a consequence of or through his employment by
the Company, and which information is related to the Company's research,
development and marketing strategies or pricing information, or related to the
needs and desires of the Company's clients with respect to advertising
services.
(c) The Employee agrees that the restrictions set forth in
Sections 9 and 10 are reasonable, proper and necessitated by legitimate
business interests of the Company and do no constitute an unlawful or
unreasonable restraint upon the Employee's ability to earn a livelihood. The
parties agree that in the event of any restrictions in Sections 9 and 10,
interpreted in accordance with the Agreement as a whole, are found to be
unreasonable by a court of competent jurisdiction, such court shall determine
the limits allowable by law and shall enforce the same.
(d) The Employee acknowledges that his violation of Sections
and of this Agreement may cause substantial and irreparable injury to the
Company. Accordingly, the Employee agrees that the Company will be entitled, in
addition to all other rights and remedies which may be available, to an
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injunction enjoining and restraining the Employee and any other involved party
from committing a violation of this Agreement. The Employee also agrees in the
event the Company is successful in whole or in part in any legal action against
the Employee under this Agreement, that the Company will be entitled to payment
of all costs, including reasonable attorney's fees, from the Employee. If the
Employee is successful in whole or in part in any legal action against the
Company under this Agreement, that the Employee will be entitled to the payment
of all costs, including reasonable attorney's fees from the Company.
(e) In the event the Company enforces this Agreement through a
court order, the parties agree that the restrictions on the Employee set forth
in Section 10 following termination of employment shall remain in effect for a
period of eighteen (18) consecutive months from the date of the court order
enforcing this Agreement; in the event the Employee engages in conduct
constituting a violation of this Agreement prior to such a court order, then
the restrictions on the Employee set forth in Section 9 following termination
of employment shall remain in effect for a period of eighteen (18) consecutive
months from the date the Employee ceases such conduct.
11. Return of the Company Property. The Employee agrees that all the
Company equipment, documents, records, notes, customer lists, proposals,
programs or other documents concerning or containing Confidential Information
or Work Products, or both, including all copies thereof, and other documents
and materials furnished to the Employee by the Company or relating to the
business of the Company and/or any other person with which the Company does
business and obtained by the Employee in the course of his employment, relating
to the business of the Company and/or any person with which the Company does
business and shall remain the exclusive property of the Company. The Employee
will deliver the same to the Company upon demand therefor and in any event upon
the termination of his employment for any reason. The Employee agrees that he
will not make copies of any of the foregoing Company property without the
written permission of the Company.
12. Assignment of Work Product. All work products made or conceived by
Employee, either solely or jointly with other person(s), whether or not using
Confidential Information, during his hours of employment or with the use of the
Company resources of facilities and whether or not using Confidential
Information, during the term of his employment by the Company, shall be the
sole and exclusive property of the Company. Employee shall execute any and all
applications, certificates or other instruments which Company shall deem
necessary to register or to protect its rights in such Work Products.
Employee acknowledges that the Work Products constitute "works made
for hire" under the U.S. Copyright Laws, in which the Company shall be the
copyright owner; however, in the event any Work Products do not constitute
"works made for hire," Employee hereby assigns his entire right and interest in
such Work Products to the Company.
For the purposes of this Agreement, "Work Products" means work of
authorship, inventions, and ideas including but not limited to marketing plans,
business proposals, sales materials
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which relate to the business, of wall media products, product
sampling/couponing or services or any other business in which the Company is
engaged during the Employee's employment by the Company.
13. Notices. All notices and other communications required or
permitted to be given by this Agreement shall be in writing and shall be deemed
given if delivered personally, mailed by registered or certified first class
mail (return receipt requested) or sent by telefax numbers specified below, or
to such other persons, addresses of telefax numbers as the party entitled to
notice shall give to the other party from time to time, by like notice.
(i) If to the Employee, to (ii) If to the Company, to
-------------------------- Xxxxxx Communications, L.P.
-------------------------- 0000 Xxxxxxxxx Xxxxx
-------------------------- Fifteenth Floor
-------------------------- Xxxxxxxx, Xxxxxxxx 00000
-------------------------- Attention: Xxxxxx X. Xxxxxx
-------------------------- Telefax No: (000 ) 000-0000
14. Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
16. Survival. The obligations of the Employee set forth in Sections 9,
10, 11, and 12 shall survive the termination of the Employee's employment for
any reason.
17. Waiver. The waiver by either party of a breach of any term or
provision of this Agreement will not be construed as a waiver of any subsequent
breach.
18. Miscellaneous. This Agreement (i) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof; (ii) is
not intended to and shall not confer upon any other person, other than the
parties hereto, any rights or remedies with respect to the subject matter
hereof; and (iii) shall be governed in all respects by the laws of the State of
Maryland without regard to its laws or regulations relating to conflicts of
laws.
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IN WITNESS WHEREOF, the parties hereto have executed or caused to be
executed this Agreement as of the date first above written.
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Xxxxxx Communications, L.P.
By: Xxxxxx Communications, Inc.
Its General Partner
/s/ XXXXXX X. XXXXXX
--------------------------------------
By: Xxxxxx X. Xxxxxx, President
