EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into, as of this 8th
day of October 1999 (the "Effective Date"), by and between Craig Lerman an
individual resident of the State of New Jersey ("Employee"), and Internet Cable
Corporation, a Nevada corporation ("Employer") with its principal place of
business at 263 King Street, Second Floor, Charleston, South Carolina 29401.
W I T N E S S E T H
WHEREAS, Employer desires to employ Employee, and Employee desires to
be employed by Employer, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
SECTION 1.EMPLOYMENT.
Subject to the terms hereof, Employer hereby employs Employee, and
Employee hereby accepts such employment. Employee will serve in the capacity of
President - CAD Consultants Division of Employer and will have duties and
responsibilities customarily assigned to a person with such title. Employee
hereby agrees that, throughout his period of employment, he shall devote his
business time, attention, knowledge and skills, diligently in the furtherance of
the business of the Employer and of its subsidiaries and affiliates, shall
perform his duties consistent with his position with Employer and shall observe
and carry out such rules and regulations, policies and directions as Employer
may from time to time establish to the extent consistent herewith. During the
term of this Agreement, Employee shall do such traveling as may be reasonably
required of him in the performance of his duties on behalf of Employer. Employee
shall report directly to the Chief Operating Officer of Employer.
SECTION 2.TERM OF EMPLOYMENT.
2.1 The term of Employee's employment hereunder (the "Initial Term")
shall be from the Effective Date and expire at the earlier of (a) the third
anniversary of the date of this Agreement or (b) the occurrence of any of the
following events:
(i) The death or total disability of Employee (total disability
meaning the failure to substantially perform his normal required
services hereunder for a period of six (6) consecutive months
during any consecutive twelve (12) month period during the term
hereof, as determined by an independent medical doctor jointly
chosen by the Employee and the Employer, by reason of mental or
physical disability; or
(ii) The termination by Employer of Employee's employment hereunder,
upon seven (7) days prior written notice to Employee, which
termination shall be for "Cause", as determined by the Board of
Directors of Employer in accordance with the terms hereof. For
purposes of this Agreement, ACause" for termination of
Employee's employment shall exist (V) if Employee is convicted
of, pleads guilty to, or confesses to any felony or any act of
fraud, misappropriation or embezzlement with regard to Employer,
(W) if Employee has engaged in a dishonest act to the material
damage or prejudice of Employer or an affiliate of Employer, or
in conduct or activities materially damaging to the property,
business, or reputation of Employer or an affiliate of Employer,
(X) if Employee violates any of the provisions contained in
Section 4 of this Agreement, after receiving thirty (30) days
written notice from Employer specifically outlining the alleged
violations by the Employee of Section 4 hereof and Employee has
not cured the alleged violations within thirty (30) days of
receipt of written notice by the Employer; (Y) Employee
willfully breaches or habitually neglects the duties he is
required to perform hereunder, or performs such duties in a
negligent manner, after receiving thirty (30) days written
notice from Employer specifically outlining the violations of
this Section and Employee has not cured the alleged violations
of this Section within thirty (30) days of receipt of written
notice by Employer.
(iii) Termination by Employee of Employee's employment hereunder,
upon thirty (30) days' written notice to the Employer given
within ninety (90) days following the occurrence of any of the
following events:
(1) Employer acts to materially reduce Employee's duties and
responsibilities hereunder;
(2) A reduction in Employee's rate of compensation or material
reduction in Employee's other benefits; or
(3) A material breach of this Agreement by the Employer, which
is not cured within thirty (30) days of written notice of
such breach by Employer.
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2.2 SUCCESSIVE TERMS. After the Initial Term, this Agreement shall
continue upon a year-to-year basis (the "Successive Terms"; together with the
Initial Term, the "Term") unless terminated by either the Employer or the
Employee upon ninety (90) days written notice to the other prior to the end of
the Initial Term or the then Successive Term.
SECTION 3.COMPENSATION.
3.1 TERM OF EMPLOYMENT. Employer will provide Employee with the
following salary, expense reimbursement and additional employee benefits during
the term of employment hereunder:
(a) SALARY. During the Initial Term, Employee will be paid a
salary (the "Salary"), that shall be no less than
two-hundred-thousand United States dollars (US$200,000.00)
per annum, less deductions and withholdings required by
applicable law. Thereafter, and during the Successive
Terms, Employee will be paid a salary (the "Successive
Terms Salary") determined in good faith negotiations
between Employer and Employee. The Salary and Successive
Terms Salary shall be paid to Employee in equal monthly
installments (or on such more frequent basis as other
executives of Employer are compensated).
(b) DISCRETIONARY BONUS. The Board of Directors may, from time
to time, award the Employee a discretionary bonus based
upon such factors as the Board deems appropriate. The
Employee shall have no entitlement to such a discretionary
bonus until and unless so awarded by the Board.
(c) VACATION. Employee shall be entitled to receive four (4)
weeks paid vacation during each year of employment upon
dates agreed upon by Employer.
(d) EXPENSES. Employer shall reimburse Employee within thirty
(30) days of its receipt of a reimbursement report with
supporting receipts from the Employee, for all reasonable
and necessary expenses incurred by Employee at the request
of and on behalf of Employer.
(e) BENEFIT PLANS. Employee shall have the option of
participating in such medical, dental, disability,
hospitalization, life insurance, stock option and other
benefit plans (such as pension and profit sharing plans) as
Employer maintains from time to time for the benefit of
other full-time employees of Employer, on the terms and
subject to the conditions set forth in such plans.
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(f) STOCK COMPENSATION. On the Effective Date, Employer shall
issue to Employee an option to purchase
two-hundred-thousand (200,000) shares of Employer's common
stock at an exercise price of five United States dollars
and fifty cents (US$5.50) per share. The term of such
option shall be for a period of five (5) years from the
Effective Date. The option shall vest according to the
following schedule: (i) fifty-thousand (50,000) shares on
the Effective date; (ii) fifty-thousand (50,000) shares on
October 8, 2000; and (iii) fifty-thousand (50,000) shares
on October 8, 2001; and (iv) fifty-thousand (50,000) shares
on October 8, 2002.
However, vesting shall be accelerated in full in the event
of death, disability, involuntary termination without Cause
(as defined in Section 2.1(ii) above); the termination of
employment with Employer's consent; the filing of a
voluntary or involuntary bankruptcy; or upon the sale,
pledge or distribution of Employer's assets defined as
follows: (W) the sale of forty-five percent (45%) or more
of Employer's assets; (X) the entry into an agreement
covering over fifteen (15%) of the voting common stock to a
related party, as defined in Section 12 of the Securities
Act of 1933, as amended, without Employee's written
consent, which will not be unreasonably withheld; or (Y) a
recapitalization of Employer; or (Z) a split of any manner
in Employer's voting common stock.
(f) AUTOMOBILE ALLOWANCE. During the Term, Employer shall pay
Employee seven-hundred United States dollars (US$700.00)
per month as an allowance for the use of Employee's
automobile. In lieu of such allowance, Employer may
furnish, or lease, an automobile mutually acceptable to
both Employer and Employee for Employee's use. Employer
shall pay all expenses charged to Employee in connection
with Employee's return of a leased automobile.
3.2 EFFECT OF TERMINATION. Upon the termination of the
employment of Employee hereunder for Cause, Employee shall be entitled to all
compensation and benefits earned or accrued under Section 3.1 as of the
effective date of termination. Upon the termination of this Agreement during the
first thirty (30) months of the Initial Term or the then Successive Term, as the
case may be, for any reason other than for Cause, Employee shall be entitled to
receive all compensation and benefits provided in Section 3.1 through the end of
the Initial Term or the then Successive Term, as the case may be. Upon the
termination of this Agreement during the last six (6) months of the Initial Term
or the then Successive Term, as the case may be, for any reason other than for
Cause, Employee shall be entitled to receive all compensation and benefits
earned or accrued under Section 3.1 as of the effective date of termination plus
an amount equal to six (6) months Salary.
SECTION 4.NONSOLICITATION.
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4.1 DEFINITIONS. For the purposes of this Section 4, the following
definitions shall apply.
(a) "Confidential Information" means any confidential,
proprietary business information or data belonging to or
pertaining to Employer that does not constitute a "Trade
Secret" (as hereinafter defined) and that is not generally
known by or available through legal means to the public,
including, but not limited to, information regarding the
Employer's customers or actively sought prospective
customers, acquisition targets, suppliers, manufacturers
and distributors gained by Employee as a result of his
employment with Employer.
(b) "Customer" means actual customers or actively sought
prospective customers of Employer.
(c) "Trade Secrets" means information or data of or about
Employer, including but not limited to technical or
non-technical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings,
processes, financial data, financial plans, products plans,
or lists of actual or potential customers, clients,
distributees or licensees, information concerning or
Employer's finances, services, staff, contemplated
acquisitions, marketing investigations and surveys, that
are not generally known to, and/or are not readily
ascertainable by proper means by, other persons.
(d) "Work Product" means any and all work product property,
data documentation or information of any kind prepared,
conceived, discovered, developed or created by Employee for
Employer or its affiliates' clients or customers for
utilization in Employer=s business, not generally known by
or not readily ascertainable by proper means by other
persons who can obtain economic value from their disclosure
or use.
4.2 TRADE NAME AND CONFIDENTIAL INFORMATION.
(a) Employee hereby agrees that at all times during the Term
and thereafter:
(i) Employee shall not, directly or by assisting others
own, manage, operate, join, control or participate in
the ownership, management, operation or control of, or
be connected in any manner with, any business
conducted under any corporate or trade name of
Employer or name confusingly similar thereto, without
the prior written consent of Employer;
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(ii) Employee shall hold in confidence all Trade Secrets
and all Confidential Information and will not, either
directly or indirectly, use, sell, lend, lease,
distribute, license, give, transfer, assign, show,
disclose, disseminate, reproduce, copy, appropriate or
otherwise communicate any Trade Secrets or
Confidential Information, without the prior written
consent of Employer; and
(iii) During the Term Employee shall immediately notify
Employer of any unauthorized disclosure or use of any
Trade Secrets or Confidential Information of which
Employee becomes aware, Employee shall assist
Employer, to the extent necessary, in the procurement
or any protection of Employer's rights to or in any of
the Trade Secrets or Confidential Information.
(b) Upon the request of Employer, Employee shall deliver to
Employer all memoranda, notes, records, manuals and other
documents, including all copies of such materials and all
documentation prepared or produced in connection therewith,
pertaining to the performance of Employee's services
hereunder or Employer's business or containing Trade
Secrets or Confidential Information, whether made or
complied by Employee or furnished to Employee from another
source by virtue of Employee's employment with Employer.
(c) To the greatest extent possible, all Work Product shall be
deemed to be "work made for hire" (as defined in the
Copyright Act, 17 U.S.C.A. Section 101 et seq., as amended)
and owned exclusively by Employer. Employee hereby
unconditionally and irrevocably transfers and assigns to
Employer all rights, title and interest Employee may have
in or to any and all Work Product, including, without
limitation, all patents, copyrights, trademarks, service
marks and other intellectual property rights arising out of
the Work Product. Employee agrees to execute and deliver to
Employer any transfers, assignments, documents or other
instruments which Employer may deem necessary or
appropriate to vest complete title and ownership of any and
all such Work Product, and all rights therein, exclusively
in Employer.
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4.3 NONSOLICITATION AND NONCOMPETE. Employee hereby agrees that
Employee will not, during the Term and for a period of one (1) year following
the Term, either directly or indirectly, alone or in conjunction with any other
party, on the North American continent:
(a) solicit, divert or appropriate or attempt to solicit,
divert or appropriate, any Customer for the purpose of
providing the Customer with services or products
competitive with those offered by Employer during the Term;
or
(b) solicit or attempt to solicit any officer, director,
employee, consultant, contractor, agent, lessor, lessee,
licensor, licensee, supplier or any shareholder of Employer
or other personnel of Employer or any of its affiliates or
subsidiaries to terminate, alter or lessen that party's
affiliation with Employer or such affiliate or subsidiary
or to violate the terms of any agreement or understanding
between such employee, consultant, contractor or other
person and Employer; or
(c) engage in, as owner, stockholder, employee, partner, agent,
representative or otherwise, or have an interest in (except
for ownership of publicly trade securities representing not
more than five percent (5%) of the outstanding voting
shares), any business, firm, corporation or other entity in
direct competition with the business of Employer.
(i) Upon the conclusion of the Initial Term, if this
Agreement is not renewed for a Successive Term,
Employee may be engaged solely as an employee in any
business, firm, corporation or other entity in direct
competition with the business of Employer.
Nothing contained in this Section 4 shall prohibit Employee from
acquiring not more than five percent (5%) of any competitor of Employer whose
common stock is publicly traded on a national securities exchange or in the
over-the-counter market or from acquiring any percentage of any company which is
non-competitive with Employer.
SECTION 5.MISCELLANEOUS.
5.1 SEVERABILITY. The covenants in this Agreement shall be construed
as covenants independent of one another and as obligations distinct from any
other contract between Employee and Employer. Any claim that Employee may have
against Employer shall not constitute a defense to enforcement by Employer of
this Agreement.
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5.2 SURVIVAL OF OBLIGATIONS. The covenants in Section 4 of this
Agreement shall survive termination of Employee's employment for the period set
forth therein.
5.3 NOTICES. Any notice or other document to be given hereunder by
any party hereto to any other party hereto shall be in writing and delivered in
person or by courier, by telecopy transmission or sent by any express mail
service, postage or fees prepaid at the following addresses:
EMPLOYER: Internet Cable Corporation
-------- 263 King Street, Second Floor
Charleston, South Carolina 29401
Telephone: (843) 722-8007
Facsimile: (843) 873-4594
Attention: Secretary
WITH A
COPY TO: Gersten, Savage & Kaplowitz, LLP
------- 101 East 52nd Street
New York, New York 10022
Telephone: (212) 752-9700
Facsimile: (212) 813-9768
Attention: Christopher J. Kelly, Esq.
EMPLOYEE: Craig Lerman
-------- 83 Ridge Drive
Livingston, New Jersey 07039
Telephone:
Facsimile:
WITH A
COPY TO: Hellring Lindeman Goldstein & Siefal, LLP
------- One Gateway Center
Newark, New Jersey 07102-5386
Telephone: (973) 621-9020
Facsimile: (973) 621-7406
Attention: Judah I. Elstein, Esq.
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or at such other address or number for a party as shall be specified by like
notice. Any notice which is delivered in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or its agent.
5.4 BINDING EFFECT. This Agreement inures to the benefit of, and is
binding upon, Employer and their respective successors and assigns, and
Employee, together with Employee's executor, administrator, personal
representative, heirs, and legatees.
5.5 ENTIRE AGREEMENT. This Agreement is intended by the parties
hereto to be the final expression of their agreement with respect to the subject
matter hereof and is the complete and exclusive statement of the terms thereof,
notwithstanding any representations, statements or agreements to the contrary
heretofore made. This Agreement supersedes and terminates all prior employment
and compensation agreements, arrangements and understandings between or among
Employer and Employee. This Agreement may be modified only by a written
instrument signed by all of the parties hereto.
5.6 GOVERNING LAW. This Agreement shall be deemed to be made in, and
in all respects shall be interpreted, construed, and governed by and in
accordance with, the laws of the State of Pennsylvania. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority or by any
board of arbitrators by reason of such party or its counsel having or being
deemed to have structured or drafted such provision.
5.7 HEADINGS. The section and 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.
5.8 SPECIFIC PERFORMANCE. Each party hereto hereby agrees that any
remedy at law for any breach of the provisions contained in this Agreement shall
be inadequate and that the other parties hereto shall be entitled to specific
performance and any other appropriate injunctive relief in addition to any other
remedy such party might have under this Agreement or at law or in equity.
5.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the ____ day of December, 1999.
INTERNET CABLE CORPORATION
By:__________________________
Name: Michael F. Mulholland
Title: Chief Executive Officer
By:___________________________
Craig Lerman