EXHIBIT 10.4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of the 23rd day of July, 1999
between TELESCENTS, INC., a New York corporation (the "Company"), and Xxxxxx
X. Xxxxx (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company has entered into an Agreement and Plan of
Merger dated as of the date hereof with National Capital Management Corporation,
a Delaware corporation ("NCMC"), and the other parties thereto, pursuant to
which the Company will merge with a subsidiary of NCMC (the "Merger") and become
a wholly-owned subsidiary of NCMC and NCMC will change its corporate name to
XxxxxxxxxXxx.xxx, Inc. (NCMC also being referred to herein as "FragranceNet");
and
WHEREAS, the Company desires to employ the Executive in an executive
capacity and to be assured of his services in such capacity, on the terms and
conditions hereinafter set forth; and
WHEREAS, the Executive is willing to accept such employment on such
terms and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the Company and the Executive hereby agree as
follows:
1. Employment, Term.
1.1 Employment. The Company agrees to employ the Executive, and the
Executive agrees to serve in the employ of the Company, for the term set forth
in Section 1.2, in the positions and with the responsibilities, duties and
authority set forth in Section 2 and on the other terms and conditions set forth
in this Agreement.
1.2 Term. The term of the Executive's employment under this
Agreement shall commence on the date hereof and shall continue until terminated
in accordance with Section 6 of this Agreement.
2. Position, Duties.
The Executive shall serve as Vice Chairman and Chief Financial
Officer of the Company. The Executive shall have such responsibilities and
duties consistent with such executive positions as shall be assigned to him from
time to time by the Board of Directors of the Company. The Executive shall
devote up to forty (40) hours per month of his business time and attention to
the performance of his responsibilities and duties hereunder. Effective upon
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consummation of the Merger, the Executive shall also serve as Vice Chairman and
Chief Financial Officer of FragranceNet.
3. Salary, Incentive Bonus.
3.1 Salary. The Company shall pay to the Executive a base salary,
initially at the rate of $55,000 per annum, payable in accordance with the
standard payroll practices of the Company. The Executive's base salary shall be
increased annually by an amount equal to the incentive bonus earned by the
Executive in the prior fiscal year pursuant to Section 3.2, such increase to
take effect on the date of payment of such incentive bonus.
3.2 Incentive Bonus. (a) In addition to the base salary provided for
in Section 3.1, the Company shall pay to the Executive an incentive bonus with
respect to each fiscal year of the Company ending during the term of this
Agreement in an amount equal to one percent (1%) of Sales in excess of Target
Sales. For purposes of this Agreement: "Sales" shall mean sales of the Company
as shown in the audited financial statements of the Company for the applicable
fiscal year; and "Target Sales" shall mean (a) for the fiscal year of the
Company ending March 31, 2000, $1,000,000 and (b) for the fiscal year of the
Company ending March 31, 2001 and each subsequent fiscal year, Sales for the
fiscal year of the Company immediately preceding such year. In no event shall
the Executive be entitled to an incentive bonus on Sales in excess of
$10,000,000; at such time as Sales shall exceed $10,000,000, the Executive and
the Company shall, at the option of the Executive, negotiate a new incentive
bonus formula in good faith.
(b) In the event of the termination of employment of the
Executive by the Company without Cause (as defined in Section 6), or by reason
of the death or Disability (as defined in Section 6) of the Executive, the
Executive (or his estate or other legal representative) shall be entitled to a
bonus for the fiscal year in which such termination takes place in an amount
equal to the product of (i) the bonus for such fiscal year determined pursuant
to Section 3.2(a), multiplied by (ii) a fraction, the numerator of which is the
number of days from the beginning of such fiscal year to the date of
termination, and the denominator of which is 365.
(c) The bonus payable to the Executive (or his estate or other
legal representative) for any fiscal year of the Company pursuant to this
Section 3.2, shall be paid by the Company within thirty (30) days of receipt by
the Company of the audited financial statements of the Company for such fiscal
year.
4. Expense Reimbursement.
During the term of this Agreement, the Company shall reimburse the
Executive for all reasonable and necessary out-of-pocket expenses incurred by
him in connection with the performance of his duties hereunder, upon the
presentation of proper accounts therefor in accordance with the Company's
policies.
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5. Benefits.
During the term of this Agreement, the Executive will be eligible to
participate in all employee benefit plans and programs offered by the Company
from time to time to its employees, subject to the provisions of such plans and
programs as in effect from time to time.
6. Termination of Employment.
6.1 General. Either the Company or the Executive may terminate the
employment of the Executive on thirty (30) days' advance written notice to the
other.
6.2 Termination Without Cause. In the event that the Executive's
employment with the Company shall be terminated by the Company without Cause (as
hereinafter defined), and not as a result of the Executive's death or Disability
(as hereinafter defined), the Company shall pay the Executive severance in the
form of salary continuation (determined at the Executive's highest rate of
salary with the Company in effect during the one-year period ending on the date
of termination), payable through the regular payroll of the Company, for the
Applicable Period (as hereinafter defined) commencing on the date of termination
of the Executive's employment. The Executive shall be under no obligation to
seek other employment or otherwise to mitigate the Company's obligation to make
such severance payment to the Executive. The severance provided for in this
Section 6 shall be in lieu of, and no severance shall be payable to the
Executive under, any other severance plan or policy of the Company. The Company
shall also pay to the Executive any incentive bonus payable pursuant to Section
3 of this Agreement, at the time prescribed by such Section. The Company shall,
during the Applicable Period, continue to provide the Executive with health
insurance benefits on the same basis, including any Company-paid premiums, as
such benefits are provided to employees of the Company. The Executive's rights
under the other benefit plans and programs of the Company shall be determined in
accordance with the terms of such plans and programs as then in effect. In the
event of such termination neither the Executive nor the Company shall have any
further rights or obligations under this Agreement, except as set forth in
Sections 7, 8, 9 and 10 of this Agreement. For purposes of this Section 6.2,
"Applicable Period" shall mean a period of six (6) months.
6.3 Definition. For purposes of this Agreement: "Cause" shall mean
(a) the Executive's material failure to properly discharge the Executive's
duties and responsibilities to the Company, which failure continues after
written notice from the Company and a reasonable period to remedy such failure,
(b) any act of willful misappropriation by the Executive against the Company or
(c) the Executive's indictment, conviction or plea of guilty or nolo contendere
with respect to any crime involving moral turpitude or a felony; and
"Disability" shall mean the Executive's failure by reason of sickness, accident
or physical or mental disability to substantially perform the duties and
responsibilities of the Executive's employment with the Company for a cumulative
period of three (3) months in any period of twelve (12) consecutive months.
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6.4 Resignation of all Positions. Upon termination of the employment
of the Executive with the Company, the Executive shall be deemed to have
resigned all of his positions as an officer, director and trustee of any benefit
plan of the Company or any subsidiary of the Company.
7. Confidential Information.
7.1 Nondisclosure. The Executive shall, during the term of this
Agreement and at all times thereafter, treat as confidential and, except as
required in the performance of his duties and responsibilities under this
Agreement, not disclose, publish or otherwise make available to the public or to
any individual, firm or corporation any confidential information (as hereinafter
defined).
7.2 Confidential Information Defined. For the purposes hereof, the
term "confidential information" shall mean all information acquired by the
Executive in the course of the Executive's employment with the Company in any
way concerning the products, projects, activities, business or affairs of the
Company and its Parent or subsidiaries or its or their customers, including,
without limitation, all information concerning trade secrets and the products or
projects of the Company and its subsidiaries and/or any improvements therein,
all sales and financial information concerning the Company and its subsidiaries,
all customer and supplier lists, all information concerning projects in research
and development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company or its subsidiaries which is furnished to
the Executive by the Company or its subsidiaries or any of their agents or
customers, as such; provided, however, that the term "confidential information"
shall not include information which (a) becomes generally available to the
public other than as a result of a disclosure by the Executive, (b) was
available to the Executive on a non-confidential basis prior to his employment
with the Company or (c) becomes available to the Executive on a non-confidential
basis from a source other than the Company or its subsidiaries or any of their
agents or customers provided that such source is not bound by a confidentiality
agreement with the Company or its subsidiaries or any of such agents or
customers.
8. Intellectual Property.
The Executive agrees that all inventions and copyrightable or
patentable material, and all trade secrets, processes, know-how, practices,
designs, technologies and methods which the Executive may make or develop during
the period of the Executive's employment with the Company relating to the
business of the Company shall belong to and shall be owned by the Company,
whether the Executive shall make or develop them individually or jointly with
others or on the Executive's own time or on the time of the Company. The
Executive agrees that, upon the request of the Company and without further
consideration, the Executive shall expressly assign to the Company all of the
Executive's right, title and interest in and to each such invention, material,
trade secret, process, know-how, practice, design, technology and method and
shall sign all papers and do all other acts necessary, at the Company's expense,
to assist the
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Company to obtain patents or copyrights on or otherwise to perfect the Company's
right, title and interest in and to each such invention, material, trade secret,
process, know-how, practice, design, technology and method in any and all
countries.
9. Post-Employment Restriction.
In order to induce the Company to enter into this Agreement, and in
consideration of his employment hereunder, the Executive agrees, for the benefit
of the Company, that he will not, during the period of his employment with the
Company and thereafter, for a period of one (1) year commencing on the date of
termination of his employment with the Company, employ or entice or endeavor to
solicit the employment of any person who was an employee of the Company at any
time during the one-year period ending on the date of termination of the
Executive's employment with the Company, either for his own account or for any
individual, firm or corporation.
10. Equitable Relief.
In the event of a breach or threatened breach by the Executive of
any of the provisions of Section 7, 8 or 9 of this Agreement, the Executive
hereby consents and agrees that the Company shall be entitled to an injunction
or similar equitable relief from any court of competent jurisdiction restraining
the Executive from committing or continuing any such breach or threatened breach
or granting specific performance of any act required to be performed by the
Executive under any of such provisions, without the necessity of showing any
actual damage or that money damages would not afford an adequate remedy and
without the necessity of posting any bond or other security. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedies
at law or in equity which it may have.
11. Successors and Assigns.
11.1 Of the Company. The Company shall require any successors
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken
place. As used in this Section, the "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law and this Agreement shall be binding upon, and
inure to the benefit of, the Company, as so defined.
11.2 Of the Executive. The Executive may not assign this Agreement
or any part thereof; provided, however, that nothing herein shall preclude one
or more beneficiaries of the Executive from receiving any amount that may be
payable following the occurrence of his legal incompetency or his death and
shall not preclude the legal representative of his estate from receiving such
amount or from assigning any right hereunder to the person or persons entitled
thereto under his will or, in the case of intestacy, to the person or persons
entitled thereto under
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the laws of intestacy applicable to his estate. The term "beneficiaries", as
used in this Agreement, shall mean a beneficiary or beneficiaries so designated
to receive any such amount or, if no beneficiary has been so designated, the
legal representative of the Executive (in the event of his incompetency) or the
Executive's estate.
12. Governing Law.
This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of New
York applicable to contracts to be performed entirely within such state. In the
event that a court of any jurisdiction shall hold any of the provisions of this
Agreement to be wholly or partially unenforceable for any reason, such
determination shall not bar or in any way affect the Company's right to relief
as provided for herein in the courts of any other jurisdiction. Such provisions,
as they relate to each jurisdiction, are, for this purpose, severable into
diverse and independent covenants.
13. Entire Agreement.
This Agreement contains all the understandings and representations
between the parties hereto pertaining to the subject matter hereof and
supersedes all undertakings and agreements, whether oral or in writing, if any
there be, previously entered into by them with respect thereto.
14. Amendment, Modification, Waiver.
No provision of this Agreement may be amended or modified unless
such amendment or modification is agreed to in writing and signed by the
Executive and by a duly authorized representative of the Company other than the
Executive. Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time, nor shall the failure of or delay by
either party hereto in exercising any right, power or privilege hereunder
operate as a waiver thereof to preclude any other or further exercise thereof or
the exercise of any other such right, power or privilege.
15. Arbitration.
Any controversy or claim arising out of or relating to this
Agreement, or any breach thereof, shall, except as provided in Section 10, be
settled by arbitration in accordance with the rules of the American Arbitration
Association then in effect and judgment upon such award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitration shall be held in New York, New York. The arbitration award shall
include attorneys' fees and costs to the prevailing party.
16. Notices.
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Any notice to be given hereunder shall be in writing and delivered
personally or sent by certified mail, postage prepaid, return receipt requested,
addressed to the party concerned at the address indicated below or at such other
address as such party may subsequently designate by like notice:
If to the Company:
0000 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxx Xxxx 00000
Attention: Vice Chairman
If to the Executive:
Xxxxxx X. Xxxxx
0000 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxx Xxxx 00000
17. Severability.
Should any provision of this Agreement be held by a court or
arbitration panel of competent jurisdiction to be enforceable only if modified,
such holding shall not affect the validity of the remainder of this Agreement,
the balance of which shall continue to be binding upon the parties hereto with
any such modification to become a part hereof and treated as though originally
set forth in this Agreement. The parties further agree that any such court or
arbitration panel is expressly authorized to modify any such unenforceable
provision of this Agreement in lieu of severing such unenforceable provision
from this Agreement in its entirety, whether by rewriting the offending
provision, deleting any or all of the offending provision, adding additional
language to this Agreement, or by making such other modifications as it deems
warranted to carry out the intent and agreement of the parties as embodied
herein to the maximum extent permitted by law. The parties expressly agree that
this Agreement as so modified by the court or arbitration panel shall be binding
upon and enforceable against each of them. In any event, should one or more of
the provisions of this Agreement be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and if such provision or provisions are not
modified as provided above, this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had never been set forth herein.
18. Withholding.
Anything to the contrary notwithstanding, all payments required to
be made by the Company hereunder to the Executive or his beneficiaries,
including his estate, shall be subject to withholding of such amounts relating
to taxes as the Company may reasonably determine it should withhold pursuant to
any applicable law or regulation. In lieu of withholding such amounts, in whole
or in part, the Company, may, in its sole discretion, accept other provision for
payment of taxes as permitted by law, provided it is satisfied in its sole
discretion
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that all requirements of law affecting its responsibilities to withhold such
taxes have been satisfied.
19. Survivorship.
The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
20. Titles.
Titles of the sections and paragraphs of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section or paragraph.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
TELESCENTS, INC.
By /s/ Xxxxx X. Xxxxx
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Agreed as to Section 2:
XXXXXXXXXXXX.XXX, INC.
By /s/ Xxxxx X. Xxxxx
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