EXHIBIT 10.6
AGREEMENT
AGREEMENT dated as of June 13, 2003 between SmartServ Online, Inc. a
Delaware corporation with an address at 1 Station Place, Stamford, CT, 06902
(the "Corporation"), and Richard D. Kerschner, an individual whose principal
residence address is _____________________________ (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee has been a valuable senior executive employee of
the Corporation for a number of years; and
WHEREAS, the Corporation and the Employee desire to set forth in
writing certain agreements between them in the event of the termination of the
employment of the Employee by the Corporation under certain circumstances.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Corporation and the Employee
hereby agree as follows:
1. Employee at Will.
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The Corporation and the Employee hereby acknowledge and agree that the
Employee is an employee at will, and that the Corporation may terminate the
employment of the Employee at any time for any reason or for no reason
whatsoever.
2. Severance Payments Upon Termination other than for Cause.
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(a) In the event that the Corporation shall terminate the
employment of the Employee for any reason other than (i) for Cause (as such term
is defined below), (ii) the Disability (as such term is defined below) of the
Employee, or (iii) upon the death of the Employee, the Corporation will pay to
the Employee, in equal lump-sum payments paid quarterly in advance, his base
salary at the per annum rate in effect on the Termination Date(as defined below)
(such base salary not to be less than $160,000 per annum) for the period
commencing on the Termination Date ) and ending on the day immediately preceding
the nine month anniversary of such termination of employment (plus any deferred
or unpaid salary and any due and unpaid bonuses as of the Termination Date) less
the Required Deductions (as defined below)(the "Severance Payments"). In no
event, however, will the Employee be entitled to receive any rights, amounts, or
benefits under this paragraph 2(a) unless he executes and delivers to the
Corporation a release prepared by, and acceptable to, the Corporation. The
Severance Payments will be payable by check (or, if requested by the Employee,
by direct deposit into the Employee's account in substantially the same manner
as presently deposited and subject to no material additional conditions to the
Corporation than presently exist).
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(b) The Corporation will withhold, and the payments otherwise
payable to the Employee hereunder shall be reduced by, all applicable federal,
state and local taxes, FICA, unemployment compensation taxes and other taxes,
assessments and withholdings required by applicable law to be withheld (the
"Required Deductions").
(c) In addition to the Severance Payments, the Employee will
receive the following benefits from the Corporation: (i) continuation, at no
additional expense to the Employee, of Employee's health care, disability and
life insurance coverage that is in effect on the Termination Date, for a period
commencing on the Termination Date and ending on the earlier to occur of nine
months or the commencement of new employment by Employee pursuant to which the
Employee is eligible to receive substantially similar health care, disability
and life insurance coverage, and (ii) amendment, simultaneously herewith, of the
Employee's stock option contracts with the Corporation to provide for the
vesting on the Termination Date of Employee's stock options that are unvested
and extension of the exercise period for all of the Employee's stock options to
one year from the Termination Date but no later than the date on which such
option would have expired by its terms if the Employee's employment had not so
terminated.
(d) The term "Cause" shall mean (i) a willful refusal or failure
by the Employee to perform any duties consistent with his position as assigned
to the Employee(unless the performance of such assigned duties will cause the
Employee to violate, or risk violating, any law, regulation, rule, order,
professional ethics or licensing requirement, or the best practices of his
profession or position), which is not cured within 14 days after notice of such
breach shall have been given to the Employee by the Corporation (or within 30
days after such notice if such breach shall not be curable within 14 days after
such notice and the Employee shall, at all times, diligently pursue the cure of
such breach within such 30-day period), (ii) the commission by the Employee of
an act involving moral turpitude, dishonesty, theft, misappropriation of assets,
or unethical business conduct, in each case which materially impairs or harms
the reputation, or is otherwise to the material detriment, of the Corporation,
or any of its subsidiaries or affiliates, or which could reasonably be expected
to materially impair or harm the reputation, or be to the material detriment, of
the Corporation, (iii) the possession or use of illegal drugs or prohibited
substances, (iv) excessive drinking which impairs the Employee's ability to
perform his duties and responsibilities hereunder, or (v) the conviction of the
Employee of, or the pleading of nolo contendere by the Employee to, any felony,
or a misdemeanor involving any of the acts referred to in clause (ii) above.
(e) The term "Disability" shall mean the failure of the Employee,
because of physical or mental illness or incapacity, to be able to substantially
perform the duties and services required of him pursuant to his employment by
the Corporation for a period of 120 consecutive days or for a period of 270 days
in any 365-day period.
(f) The term "Termination Date" shall mean the last day the Employee is
employed by the Corporation.
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3. Certain Covenants of the Employee.
(a) The Employee acknowledges that by his employment he has
been and will continue to be in a confidential relationship with the Corporation
and will have access to confidential information and trade secrets of the
Corporation, its subsidiaries and affiliates (collectively, the "Confidential
Information"). Confidential Information includes, but is not limited to,
customer and client lists, financial information, price lists, marketing and
sales strategies and procedures, computer programs, databases and software,
supplier, vendor and service information, personnel information, operating
procedures and techniques, business plans and systems, and all other records,
files, and information in respect of the Corporation. During the term of his
employment by the Corporation and thereafter, the Employee shall maintain the
strictest confidentiality of all Confidential Information and shall not use or
permit the use of, or disclose, discuss, communicate or transmit or permit the
disclosure, discussion, communication or transmission of, any Confidential
Information. This paragraph shall not apply to (i) information that, by means
other than the Employee's direct or indirect disclosure, becomes generally known
to the public, or (ii) information the disclosure of which is compelled by law
(including judicial or administrative proceedings and legal process). In that
connection, in the event that the Employee is requested or required (by oral
question, interrogatories, requests for information or documents, subpoenas,
civil investigative demand or other legal process) to disclose any Confidential
Information, the Employee agrees to provide the Corporation with prompt written
notice of such request or requirement so that the Corporation may seek an
appropriate protective order or relief therefrom or may waive the requirements
or this paragraph 3(a). If, failing the entry of a protective order or the
receipt of a waiver hereunder, the Employee is compelled to disclose
Confidential Information under pain of liability for contempt or other censure
or penalty, the Employee may disclose such Confidential Information to the
extent so required.
(b) In the event of a breach or threatened breach by the
Employee of any of the provisions of paragraph 3(a), the Corporation shall be
entitled to seek an injunction to be issued by any court or tribunal of
competent jurisdiction to restrain the Employee from committing or continuing
any such violation. In any proceeding for an injunction, the Employee agrees
that his ability to answer in damages shall not be a bar or be interposed as a
defense to the granting of a temporary or permanent injunction against him. The
Employee acknowledges that the Corporation will not have an adequate remedy at
law in the event of any breach by him as aforesaid and that the Corporation may
suffer irreparable damage and injury in the event of such a breach by him.
Nothing contained herein shall be construed as prohibiting the Corporation from
pursuing any other remedy or remedies available to the Corporation in respect of
such breach or threatened breach.
4. Representations.
(a) The Employee represents and warrants that he has full
authority and legal capacity to execute and deliver this Agreement and perform
his duties and obligations
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hereunder, that he has duly executed this Agreement, and that he is not under
any contractual, legal or other restraint or prohibition that would restrict,
prohibit or prevent the Employee from performing this Agreement and his duties
and obligations hereunder.
(b) The Employee acknowledges that he is free to seek advice
from independent counsel with respect to this Agreement. The Employee has
obtained such advice and is not relying on any representation or advice from the
Corporation or any of its officers, directors, attorneys, or other
representatives regarding this Agreement, its contents or effect.
(c) The Corporation represents and warrants that it has full
corporate power and authority to execute and deliver this Agreement and perform
its duties and obligations hereunder, that it has duly executed this Agreement,
and that it is not under any contractual, legal or other restraint or
prohibition that would restrict, prohibit or prevent the Corporation from
performing this Agreement and its duties and obligations hereunder.
5. Assignability.
This Agreement may not be assigned by the Employee and all of
its terms and conditions shall be binding upon and inure to the benefit of the
Employee and his heirs, executors, administrators, legal representatives and
assigns. This Agreement may be assigned, in whole or in part, by the Corporation
and shall be binding upon and inure to the benefit of the Corporation, its
successors and assigns. Successors of the Corporation shall include, without
limitation, any corporation or other entity acquiring directly or indirectly all
or a substantial part of the assets of the Corporation whether by merger,
consolidation, purchase, lease or otherwise, and such successor shall thereafter
be deemed the "Corporation" for purposes hereof.
6. Notices.
Except as otherwise expressly provided, any notice, request,
demand or other communication permitted or required to be given under this
Agreement shall be in writing, shall be sent by one of the following means to
the Employee at his address set forth on the first page of this Agreement and to
the Corporation at its address set forth on the first page of this Agreement,
Attention: Chairman, Compensation Committee of the Board of Directors (or to
such other address as shall be designated hereunder by notice to the other
parties and persons receiving copies, effective upon actual receipt) and shall
be deemed conclusively to have been given: (a) on the first business day
following the day timely deposited for overnight delivery with Federal Express
(or other equivalent national overnight courier service) or United States
Express Mail, with the cost of delivery prepaid or for the account of the
sender; (b) on the fifth business day following the day duly sent by certified
or registered United States mail, postage prepaid and return receipt requested;
or (c) when otherwise actually received by the addressee on a business day (or
on the next business day if received after the close of normal business hours or
on any non-business day). A copy of each notice, request, demand or other
communication given to the Corporation by the Employee shall be
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given to Michael J. Shef, Esq., Jenkens & Gilchrist Parker Chapin, LLP, The
Chrysler Building, 405 Lexington Avenue, New York, New York 10174.
7. No Waiver by Action, Cumulative Rights, Etc.
Any waiver or consent from either party respecting any term or
provision of this Agreement shall be effective only in the specific instance and
for the specific purpose for which given and shall not be deemed, regardless of
frequency given, to be a further or continuing waiver or consent. The failure or
delay of either party at any time or times to require performance of, or to
exercise any of its powers, rights or remedies with respect to, any term or
provision of this Agreement in no manner shall affect that party's right at a
later time to enforce any such term or provision.
8. Interpretation, Headings.
The parties acknowledge and agree that the terms and
provisions of this Agreement have been negotiated, shall be construed fairly as
to all parties hereto, and shall not be construed in favor of or against any
party. The section headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
9. Severability.
The invalidity or unenforceability of any provision of this
Agreement shall not affect, impair or invalidate any other provision of this
Agreement.
10. Counterparts; Facsimile Signatures; New York Governing Law;
Amendments, Entire Agreement.
This Agreement may be executed in two counterpart copies, each of which
may be executed by one of the parties hereto, but both of which, when taken
together, shall constitute a single agreement binding upon the parties hereto.
Any signature delivered by a party by facsimile transmission shall be deemed to
be an original signature hereto. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without regard to principles of conflicts of laws (other than Section 5-1401 of
the New York General Obligations Law). Each and every modification and amendment
of this Agreement shall be in writing and signed by the parties hereto, and any
waiver of, or consent to any departure from, any term or provision of this
Agreement shall be in writing and signed by the party granting the waiver or
consent. This Agreement contains the entire agreement of the parties and
supersedes all prior representations, agreements and understandings, oral or
otherwise, between the parties with respect to the matters contained herein.
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IN WITNESS WHEREOF, the Corporation and the Employee have signed this
Agreement as of the date set forth on the first page of this Agreement.
SMARTSERV ONLINE, INC.
By: /s/ Sebastian E. Cassetta
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Print Name: Sebastian E. Cassetta
Print Title: Chairman of the Board and
Chief Executive Officer
/s/ Richard D. Kerschner
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Richard D. Kerschner