EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, effective as of July 21, 2003 between NATIONAL
MANAGEMENT CONSULTING, INC., a Delaware corporation, having a place of business
at 000 Xxxxxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Employer"), and
XXXX XXX-XXXX, an individual with a place of business located at 1120 Avenue of
the Americas, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 ("Employee").
W I T N E S S E T H :
WHEREAS, the Employee is presently employed by Tele-V, Inc., a New York
corporation and its subsidiaries and affiliates (the "Tele Entities") as Chief
Executive Officer; and
WHEREAS, Employer is acquiring the Tele Entities pursuant to a definitive
acquisition agreement with Tele-V, Inc. and Employee who is its principal
officer, director and shareholder dated as of July 9, 2003 (the "Tele
Acquisition"); and
WHEREAS, Employer desires to employ the Employee as Chairman and Chief
Executive Officer of the Employer's Board of Directors in accordance with the
terms of this Agreement, and the Employee desires to be so employed by Employer.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee and Employee hereby accepts
employment with Employer upon the terms and conditions set forth herein.
2. TERM.
2.1. The term of Employee's employment hereunder shall commence effective
as of July 21, 2003 (the "Commencement Date") and shall terminate (the
"Termination Date") on the earliest of: (a) July 21, 2005;
(b) The death of Employee;
(c) The disability of Employee. Disability, for the purposes of this
Section 2.1.(c), shall mean any physical or mental illness or injury as a result
of which Employee remains absent from work or cannot adequately perform his
duties hereunder for one hundred thirty five (135) days (whether or not
continuous) or ninety (90) consecutive days during any period of three hundred
sixty (360) consecutive days. The disability shall be deemed to have occurred on
the one hundred thirty fifth (135th) or ninetieth (90th), as the case may be,
day of Employee's absence or lack of adequate performance;
(d) Upon notice by Employer to Employee of the termination of
Employee's employment for cause. "Cause" shall mean: (i) Employee's conviction
of a felony; (ii) Employee's material breach of any of his obligations under
this Agreement; (iii) Employee's gross negligence with respect to his duties or
gross misfeasance or malfeasance of office; (iv) Employee's voluntary
termination of this Agreement and/or termination of employment with Employer;
(v) Employee's commission of a material act of dishonesty related to Employer's
business or its relationships with any of its employees, suppliers, contractors
or customers; (vi) Employee's refusal or willful failure to furnish information
concerning Employer's affairs as reasonably requested by or under the authority
of the Board of Directors, or Employee's willful and material falsification of
such information or Employee's willful failure to carry out directives from the
Board of Directors of the Employer; provided, however, that prior to terminating
this Agreement for cause pursuant to (ii), (iii) and (vi) (with respect to
failure to furnish information or failure to carry out directives only),
Employer will give Employee written notice of such cause and fifteen (15) days
from delivery of the notice in which to cure such cause;
(e) upon notice by Employer to Employee of the termination of
Employee's employment without cause or if Employer provides to Employee notice
that the Agreement will not be renewed for any Renewal Term in accordance with
the last paragraph of this Section 2.1.
The term of this Agreement shall be renewed for up to three successive one year
terms beyond July 21, 2005 (each one year extension, a "Renewal Term")unless the
Employer provides written notice to the Employee that this Agreement shall not
be renewed at least sixty (60) days prior to the expiration of the then existing
term. All the terms and conditions of this Agreement shall continue and remain
in full force and effect during each Renewal Term.
2.2. Upon termination of this Agreement, Employer's obligations hereunder
shall cease; PROVIDED, HOWEVER, that in the event of termination pursuant to
Section 2.1.(a) or Section 2.1.(b) or 2.1.(c) or 2.1.(e) Employer shall continue
to pay to Employee or to Employee's estate, as the case may be, after such
termination, (i) Employee's salary and all other benefits made available to the
Employee immediately prior to such termination, including but not limited to
vacation, leave and holiday benefits, if any, and all other benefits described
in Section 4 hereof, for the remainder of the then term of this Agreement
(including any Renewal Term then in effect) plus six months thereafter, and (ii)
a bonus equal to the bonus paid or payable to the Employee for the immediately
preceding full year of this Agreement (and in the event of a termination of the
Employee's employment hereunder in the first year of this Agreement an amount
that may not be less than $45,000). Notwithstanding the foregoing, in the event
that the Employee resigns his employment hereunder, Employer shall not be
entitled to an additional six months of salary nor any other benefits described
in Section 4 hereof made available to Employee immediately prior to such
resignation. The obligations of the Employee under Sections 7 and 8 hereof shall
continue notwithstanding the termination of Employee's employment pursuant
hereto. Payment by Employer to Employee pursuant to this Section 2.2 subsequent
to termination of Employee's employment shall constitute satisfaction of all
obligations of Employer to Employee hereunder.
Any payments of salary required to be paid to the Employee hereunder shall be
paid in the same installments as paid to the Employee prior to the Termination
Date or according to the then general payroll practices of Employer, but in no
event less frequently than monthly.
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3. BASIC COMPENSATION.
3.1. COMPENSATION.
For all services to be rendered by Employee hereunder and in
consideration of all of the covenants set forth in this Agreement, and subject
to the performance of the services required to be performed by Employee
hereunder, Employer shall pay to Employee a salary at the annual rate of One
Hundred Eighty Thousand Dollars ($180,000), which shall be payable in accordance
with the general payroll practices of Employer, but in no event less frequently
than monthly.
3.2 In addition to his salary, Employee shall be eligible for annual
bonus compensation in an amount to be awarded by the Board of Directors of the
Employer in its sole discretion (without the participation of the Employee)
based upon the Board of Director's evaluation of the services rendered by the
Employee.
3.3. Employer shall be entitled to deduct applicable withholding and
other payroll taxes and the like from all amounts payable to Employee under this
Agreement before remitting the same to Employee.
4. BENEFITS.
4.1. Employee shall be entitled to participate, to the extent of his
eligibility therefore, in such pension, profit-sharing, health, disability,
vacation and other employee benefit programs as are generally provided from time
to time by Employer to all of its employees. In addition, Employer shall pay all
premiums and other costs in connection a life insurance policy for Employee up
to a maximum face amount of $2,000,000, which insurance policy shall be issued
by a reputable insurance company and shall name Employee's spouse or children,
at Employee's sole discretion, as the sole beneficiary or beneficiaries, as the
case may be, provided that the annual premium for such policy shall not exceed
$7,500. Employee shall provide the Employer with a receipt for such premium
payment from the insurance company.
4.2. Nothing contained in this Agreement shall be construed to require
Employer to create or continue any programs or prevent Employer from modifying
or terminating any programs.
4.3. Employer shall furnish Employee with such working facilities and
other services that Employer deems suitable to Employee's position and duties.
4.4 Employer shall reimburse Employee, upon receipt of proper vouchers
or receipts therefor, for all customary business expenses incurred by Employee
in the performance of his duties hereunder. All expenses in excess of $1,000
require the prior written consent of the Chief Executive Officer of the
Employer.
4.5 Employer shall pay for Employee's expenses related to the
lease and
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insurance of such leased car in the form of lease payments not to exceed $1,000
per month plus gas and normal maintenance but not including repairs during the
term of this Agreement, including any Renewal Term.
5. DUTIES.
5.1. During the term of Employee's employment hereunder, Employee
agrees to serve as the Chairman of the Board of Directors and Chief Executive
Officer of the Employer, including Employer's subsidiaries and affiliates and
shall perform such duties and services to Employer consistent with the positions
in which Employee is serving with responsibilities as may be determined from
time to time by the Board of Directors of the Employer. Employee's duties shall
include chairing of and participation at meetings of the Board of Directors of
the Employer and its subsidiaries and affiliates, developing business and
acquisition strategy, managing the employees of the Employer and its affiliates
and subsidiaries, and carrying out initiatives to enhance the business of the
Employer and its subsidiaries and affiliates consistent with the mandate of the
Board of Directors of the Employer. Employee agrees that in the performance of
Employee's duties hereunder Employee will act only in good faith and in the best
interest of Employer. Employee further agrees that Employee shall work in the
New York City offices of Employer or at such other location within a 50 mile
radius of New York City. Employee further agrees that the Board of Directors of
the Employer, in its sole discretion, may change Employee's title and/or duties,
provided that Employee remains a director of the Employer, and Employee shall be
entitled to all of the payments and other benefits set forth in Section 2.2 and
Section 4 hereunder and provided further that Employee is provided with an
office at the then corporate offices of the Employer that are superior to any
office of all vice president or senior vice presidents of the Employer.
6. EXTENT OF SERVICES. During the period of his employment hereunder,
Employee shall serve Employer faithfully and to the best of his ability and
shall devote his best efforts and at least seventy-five percent (75%) of his
business time, attention, energies and skill to the business and affairs of
Employer and its affiliates and subsidiaries. Employer acknowledges that
Employee is engaged in other business activities and shall have the right to
continue such activities as long as they do not conflict with Employee's
obligations hereunder.
7. SECRECY AND NONDISCLOSURE.
7.1. Without the prior written consent of Employer in each instance,
and in further consideration of the employment of Employee hereunder, Employee
agrees to treat as secret and confidential all of the Trade Secrets (as
hereinafter defined) of Employer, and Employee agrees further not to disclose,
use, publish, or in any other manner reveal, directly or indirectly, at any time
during or after the term of this Agreement, any Trade Secret, except as may be
necessary to perform Employee's services hereunder or except as required by law
(including pursuant to an order of a court or arbitration panel) in which case
Employee shall provide Employer with written notice of such requirement by law
no less than five days prior to any such disclosure.
7.2. "Trade Secrets", as used in this Agreement, shall mean any and
all information regarding the business of Employer and any Subsidiary or
Affiliate or Parent (as hereinafter defined) of Employer, including, but not
limited to, information regarding operations, systems, technology, services,
know-how, supplier lists, customer lists, customer accounts,
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financial information, costing data, and marketing plans, to the extent not
generally known in the Direct Response (as defined in Section 8.4 below)
industry or not otherwise disclosed by Employer to the public.
7.3. "Affiliates", as used in this Agreement, shall mean any person,
firm or entity that, directly or indirectly, is controlled by or is under common
control with Employer. In this definition, the term "control" shall mean the
ownership of 15% or more of the beneficial interest in the firm or entity
referred to. "Subsidiary" shall mean wholly as well as partly-owned
subsidiaries. "Parent" shall mean Tele and National and their successors and
assigns.
8. COVENANTS.
8.1. NON-COMPETITION.
(a) Employee agrees that during Employee's employment with Employer,
and for the period of time commencing with the Termination Date and ending on
the last day in respect of which Employee is entitled to severance pay (or, in
the case of termination for cause or resignation, ending on the six month
anniversary of the Termination Date), Employee shall not, directly or
indirectly, for his own account or as an employee, officer, director, partner,
joint venturer, shareholder, investor or otherwise, within the United States of
America (Employer's distribution and sales region), either engage in any phase
of any business or enterprise similar to that of Employer or in competition with
Employer or compete with Employer in any Direct Response related business in
which Employer is currently engaged or which it is currently actively developing
or which it shall have developed as of the Termination Date; PROVIDED, HOWEVER,
that nothing in this Section 8.1(a) shall be construed to prevent the Employee
from making any investments in the securities of any business enterprise whether
or not engaged in competition with the Employer or any of its Subsidiaries or
Affiliates, to the extent that such securities are actively traded on a national
securities exchange or the NASDAQ system in the United States or on any foreign
exchange and represent, at the time of acquisition, not more than five percent
(5%) of the aggregate equity of such business enterprise.
(b) Employee agrees that during the period of his employment with
Employer, Employee shall not, directly or indirectly, employ or solicit the
employment or engagement by himself or others of any employees of Employer or of
any independent contractors or suppliers servicing Employer.
(c) Employee agrees that for a period of twelve (12) months
immediately following the termination of his employment with Employer, Employee
shall not, directly or indirectly, employ or solicit the employment or
engagement by himself or others of any employees of Employer or of any
independent contractors or suppliers servicing Employer; PROVIDED, HOWEVER, that
this Section 8.1.(c) shall apply only with respect to such employment or
solicitation of employment in a business or venture related to the Direct
Response industry.
(d) The existence of any claim or cause of action by Employee against
Employer shall not constitute a defense to the enforcement by Employer of the
covenants contained in this section, but such claim or cause of action shall be
litigated separately.
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8.2. SOLICITATION OF CUSTOMERS OF EMPLOYER.
(a) Employee agrees that during the period of his employment with
Employer, Employee shall not, directly or indirectly, for himself, or as an
agent, employee or consultant of another person, firm or corporation, knowingly
canvass or solicit business from any of Employer's customers.
(b) Employee agrees that for a period of nine (9) months immediately
following his employment with Employer, Employee shall not, directly or
indirectly, for himself, or as agent, employee or consultant of another person,
firm or corporation, knowingly canvass or solicit business from any of
Employer's customers; PROVIDED, HOWEVER, that this Section 8.2(b) shall apply
only with respect to such canvassing or solicitation of business which business
involves the Direct Response industry.
8.3. INVENTIONS AND DISCOVERIES.
(a) Employee shall promptly and fully disclose to the Employer, and
with all necessary detail for a complete understanding of the same, all
developments, know-how, discoveries, inventions, improvements, concepts, ideas,
writings, formulae, processes and methods (whether copyrightable, patentable or
otherwise) made, received, conceived, acquired or written by Employee (whether
or not at the request or upon the suggestion of the Employer) during the period
of his employment with the Employer or any if its affiliates, solely or jointly
with others, in or relating to any activities of the Employer or any of its
affiliates (collectively the "Subject Matter").
(b) Employee hereby assigns and transfers, and agrees to assign and
transfer, to the Employer, all his rights, title and interest in and to the
Subject Matter which constitutes work-for-hire and expressly waives any moral
rights or "droit morale" in and to any Subject Matter and further agrees to
deliver to the Employer any and all drawings, notes, software, code,
specifications and data relating to the Subject Matter. Employee shall assist
the Employer in obtaining such copyrights or patents during the term of this
agreement, and to testify in any prosecution or litigation involving any of the
Subject Matter.
8.4. DEFINITIONS. For purposes of this Section 8, (i) businesses or
enterprises "similar to" or "in competition with" Employer shall mean those
engaged, in whole or in part, in the business of distributing and selling
collectibles and other consumer products through direct response marketing,
television infomercials and retail channels (collectively, "Direct Response"),
and (ii) Employer shall mean Employer and any subsidiaries and affiliates or the
parent of Employer.
8.5. REASONABLENESS OF RESTRICTION. Employee acknowledges that the
restrictions specified under Section 8 hereof are reasonable, in view of the
nature of the business in which Employer is engaged and Employee's special and
unique skills, reputation and knowledge of Employer's operations. Employee
further acknowledges that his service, if used by a competitor, could cause
significant harm to Employer.
8.6. MODIFICATION OF RESTRICTIONS. Notwithstanding anything contained
in Section 8 to the contrary, if the restrictions specified under Section 8
hereof should be determined to be unreasonable in any judicial proceeding, then
the period of time and area of the
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restriction shall be reduced so that this Agreement may be enforced in such area
and during such period of time as shall be determined to be reasonable.
9. CONSENT TO EQUITABLE RELIEF. Employee consents and agrees that if
Employee violates or threatens to violate any of the provisions contained in
Sections 7 or 8 of this Agreement, Employer shall, in addition to such other
remedies as it may have at law or in equity, be entitled to an injunction to be
issued by a court or arbitrator of competent jurisdiction restraining and
prohibiting Employee from committing or continuing any violation of such
provisions. If the scope of any restriction contained in this Agreement is too
broad to permit enforcement to its fullest extent, then such restriction shall
be enforced to the maximum extent permitted by law.
10. REPRESENTATIONS OF EMPLOYEE. Employee hereby represents and
warrants to Employer that he is not subject to any contract or restriction with
any person or entity that would be violated by his execution of this Agreement,
the performance of his obligations hereunder or the carrying out of his duties
hereunder.
11. NOTICE. For the purposes of this agreement, notices and all other
communications provided for in this agreement shall be in writing and shall be
deemed to have been duly given when delivered, two (2) business days after
delivery to a nationally recognized overnight courier service for next day
priority delivery or three (3) business days after having been deposited in the
mails by United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to Employer: National Management Consulting, Inc.
000 Xxxxxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: Xxxxxx X. Xxxxxxxx
With a copy to: Xxxx X'Xxxxxx, Esq.
c/o Adelphia Capital LLC
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Employee: Xxxx Xxx-Xxxx
C/o Tele-V, Inc.
1120 Avenue of the Americas, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
With a copy to: Xxxxx Xxxxxxx, Esq.
Jenkens Xxxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
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12. WAIVER OF BREACH. The waiver by either party of a breach of any
provision hereof shall not operate or be construed to operate as a waiver by
such party of any subsequent breach by the other party of any provision hereof.
13. BENEFITS AND BURDENS. The rights and obligations of Employer
hereunder shall inure to the benefit of and shall be binding upon the successors
and assigns of Employer. The rights of Employee hereunder shall inure to the
benefit of his heirs and his personal representatives.
14. ENTIRE AGREEMENT, MODIFICATION AND CONSTRUCTION.
14.1. This Agreement contains the entire agreement between
Employer and Employee, and supersedes and replaces any and all prior agreements
between the parties concerning the subject matter hereof.
14.2. The terms and conditions hereof may be changed only by
an agreement in writing signed by Employer and Employee.
14.3. This Agreement shall be governed by, construed and
enforced under the laws of the State of New York without giving effect to the
conflicts or choice of law provisions thereof. Any dispute arising under or
related to this Agreement may only be maintained in the State or Federal courts
of the State of New York, New York County and Employer and Employee waive any
defense of lack of personal jurisdiction or forum non conveniens or related
defense to the bringing of any action, suit or proceeding in the State or
Federal courts of the State of New York.
15. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
16. PARAGRAPH HEADINGS. The paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
17. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
18. EMPLOYEE'S REVIEW OF THIS AGREEMENT. Employee acknowledges that he
has (i) carefully read this Agreement, (ii) had an opportunity to consult with
independent counsel with
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[SIGNATURE PAGE TO XXXX XXX-XXXX EMPLOYMENT AGREEMENT]
respect to this Agreement, and (iii) entered into this Agreement at his own free
will.
IN WITNESS WHEREOF, Employer and Employee have executed this Employment
Agreement on July 21, 2003.
EMPLOYER:
NATIONAL MANAGEMENT
CONSULTING, INC.
BY:/S/XXXXXX X. XXXXXXXX
NAME: XXXXXX X. XXXXXXXX
TITLE: PRESIDENT AND CHAIRMAN
EMPLOYEE:
XXXX XXX-XXXX
/S/XXXX XXX-XXXX
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