Exhibit 10.54
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EMPLOYMENT AGREEMENT
By and Between
PROJECTAVISION, INC.
and
EMILIO BAJ MACARIO
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December 7, 1998
TABLE OF CONTENTS
Page
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1. Employment.................................................................1
2. Duties and Responsibilities of Employee....................................2
3. Exclusivity of Service.....................................................2
4. Compensation; Bonus........................................................2
5. Benefits...................................................................3
6. Term of Employment.........................................................4
7. Confidentiality; Inventions; Product Development, Etc......................4
8. Termination................................................................6
(b) Cause.............................................................7
9. Violation of Other Agreements..............................................8
10. Specific Performance; Damages..............................................8
11. Notices....................................................................9
12. Waivers....................................................................9
13. Preservation of Intent.....................................................9
14. Entire Agreement..........................................................10
15. Inurement; Assignment.....................................................10
16. Amendment.................................................................10
17. Headings..................................................................10
18. Counterparts..............................................................10
19. Governing Law.............................................................10
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated ___________, 1998, by and
between PROJECTAVISION, INC., a Delaware corporation having an office at Two
Penn Plaza, Suite 640, New York, NY 10121 ("Employer"), and EMILIO BAJ MACARIO,
an individual residing at _________________________ ("Employee"). [Note: The
actual employing entity may be an Italian affiliate (either a subsidiary or a
division), based upon the final structure of the transaction.]
W I T N E S S E T H:
WHEREAS, Employer has entered into an Agreement of Purchase and Sale of
Assets (the "Purchase Agreement") dated __________, 1998 by and among Employer,
Projectavision International and Vidikron Industries, S.p.A. ("Vidikron")
pursuant to which Employer is purchasing from Vidikron, and Vidikron is selling
to Employer, certain of the assets of Vidikron;
WHEREAS, the closing under the Purchase Agreement occurred concurrently
with the execution and delivery of this Agreement;
WHEREAS, Employee served as Managing Director of Vidikron;
WHEREAS, Employee has certain valuable experience and
expertise in Vidikron which could benefit Employer;
WHEREAS, Employer would suffer irreparable harm if Employee discloses
Confidential Information or Trade Secrets (each as hereinafter defined) or
otherwise violates the provision of this Agreement; and
WHEREAS, Employer desires to engage Employee as an employee of
Employer's Vidikron European Division (the "Vidikron European Division") and
Employee desires to provide his services in connection with Employer's business
and both parties desire to clarify and specify the rights and obligations which
each have with respect to the other in connection with such employment.
NOW, THEREFORE, in consideration of the agreements and covenants herein
set forth, the parties hereby agree as follows:
1. Employment
Employer hereby employs Employee as Managing Director of the Vidikron
European Division and Employee hereby accepts such employment and agrees to
render his services as an employee of Employer, for the term of this Agreement
(as set forth in Section
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6 hereof), all subject to and on the terms and conditions herein set forth.
2. Duties and Responsibilities of Employee
(a) Employee shall be employed as Managing Director of the Vidikron
European Division, subject to the other provisions of this Section 2, initially
based out of the Vidikron European Division Office.
(b) In the performance of his duties, Employee shall report to
Employer's Chief Executive Officer. Employee shall use his best efforts to
maintain and enhance the business and reputation of Employer. Employee's duties
and responsibilities shall include, without limitation, responsibilities for
overseeing matters related to the Vidikron European Division's accounting,
personnel, information technology, technical production, sales department and
quality assurance program, and such other duties commensurate with and
appropriate to his position as may, from time to time, be designated to Employee
by the Board or its designee(s). Upon Employer's request, Employee shall also
perform similar services in an identical capacity for any other subsidiary or
division of Employer designated by Employer in Italy. Employee shall be
available to travel as the reasonable needs of Employer shall require.
(c) Employer agrees not to take any action to denigrate or lessen the
status, authority, responsibilities or perquisites of Employee hereunder.
Employee shall be entitled during the "Term" (as defined in Section 6 below), to
an office, secretary, and all senior executive privileges commensurate with his
title and position and he shall generally be treated in the same fashion as all
other senior executives of Employer.
3. Exclusivity of Service
Employee agrees to devote all of his business time, efforts and
attention to the business and affairs of Employer on an exclusive basis, and not
to engage in any other business activities for any person or entity, other than
personal investment activities, provided that such activities do not materially
affect the performance of Employee's duties hereunder.
4. Compensation; Bonus
(a) In consideration for his services to be performed under this
Agreement and as compensation therefor, Employee shall receive, in addition to
the benefits set forth in Section 5 hereof, a base salary (the "Base Salary") at
the annual rate of One Hundred Eighty Thousand ($180,000) Dollars. All payments
of
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Base Salary shall be payable in bi-weekly installments or otherwise in
accordance with Employer's policies. The Base Salary shall be reviewed by the
Board one year after the date hereof and may be increased at the Board's sole
discretion; provided, however, that at a minimum, the Board shall increase the
Base Salary by a percentage equal to the percentage increase of the rate of
inflation (the "Inflation Percentage") in Italy (as determined by ) with respect
to the first year of the Term (as hereinafter defined); provided, further, that
the Board shall have no obligation whatsoever to increase the Base Salary by
more than the Inflation Percentage.
(b) In addition to the Base Salary, Employee may receive an annual
bonus, in an amount of up to $25,000, for the first twelve (12) months of the
Term, based upon performance criteria to be agreed upon by Employer and Employee
within thirty (30) days subsequent to the execution hereof. The bonus program
with respect to the thirteenth through twenty-fourth months of the Term shall be
subject to the approval of the Board of Directors (the "Board").
5. Benefits
In addition to the Base Salary and bonus provided for in Section 4
hereof, Employee shall be entitled to the following benefits during and in
respect of the Term (as defined below):
(a) Employee shall be entitled to four (4) weeks annual paid vacation,
in accordance with Employer's policies, annually to be taken by Employee at
times mutually and reasonably agreed upon by Employer and Employee in addition
to all other holidays established as part of Employer's standard practices. No
payment shall be made to Employee for unused vacation days nor may more than
fifty (50%) percent of such days be carried over to future years.
(b) Employee shall be entitled to reimbursement for all reasonable
travel, entertainment and other reasonable expenses incurred in connection with
Employer's business, provided that such expenses are adequately documented and
vouchered in accordance with Employer's policies.
(c) On the date hereof, Employer shall grant to Employee options (the
"Options") to purchase eighty eight thousand (88,000) shares of common stock
(the "Common Stock") of Employer (as may be adjusted for stock splits, stock
dividends, recapitalization and any similar transactions), par value $.0001 per
share, pursuant to Employer's 1990 Stock Option Plan (the "Plan") and a Stock
Option Agreement to be entered into by Employer and Employee in the form adopted
pursuant to the Plan promptly following the mutual execution and delivery of
this Agreement. Fifty percent (50%) of the Options shall vest, and become
exercisable, one (1) year from and after the date hereof and the remaining fifty
percent (50%) of the Options shall vest, and become exercisable, two (2) years
from and after the date hereof. All Options shall, subject to the terms and
conditions of the Plan, be exercisable at the price per share of the Common
Stock on the date of the issuance of the Options.
(d) In the event that subsequent to the execution hereof the Company
institutes any new benefits for senior executives that were not effected as of
the date hereof, Employee shall be entitled to fully participate in any such
newly instituted benefits for senior executives.
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6. Term of Employment
The term (the "Term") of employment shall be from the date hereof
through two (2) years after the closing, unless terminated prior thereto in
accordance with Section 8 hereof. In addition, the Term shall be subject to a
one (1) year removal after said two (2) year period upon the mutual agreement of
the parties.
7. Confidentiality; Inventions; Product Development, Etc.
(a) Employee agrees and covenants that, at any time during employment
by Employer or thereafter, he will not (without first obtaining the written
permission of Employer) divulge to any person or entity, nor use (either himself
or in connection with any business) any "Confidential Information" or "Trade
Secrets" (each as hereinafter defined in Section 7(c) hereof) to which he may
have had access or which had been revealed to him during the course of his
employment unless such disclosure is pursuant to a court order, disclosure in
litigation involving the Employer or in any reports or applications required by
law to be filed with any governmental agency.
(b) Employee hereby grants to Employer or its nominee all rights of
every kind whatsoever, exclusively and perpetually, in and to all services
performed, products created and product ideas conceived by Employee for Employer
or its nominee, and hereby agrees, upon Employer's request therefor, to assign
and transfer to Employer or its nominee, any and all inventions, Trade Secrets,
product ideas, improvements, processes, Confidential Information and "know how"
relating to the business or products of Employer or any subsidiary or division
thereof, including any thereof which Employee may learn, possess or acquire
during Employee's employment by Employer, and agrees that all such things and
such knowledge are, and will be, the sole and exclusive property of Employer or
its nominee, and are known or held by Employee only for the benefit of Employer
or its nominee. Any patent, trademark, servicemark or copyright applications and
patents, trademarks, servicemarks or copyrights developed, obtained or conceived
by Employee while employed or engaged by Employer which relate to the business
or product development activities of Employer or its nominee, as well as all
physical embodiments of Confidential Information, shall be and remain the sole
exclusive property of Employer, or its nominee. At Employer's request, Employee
will execute any and all applications, assignments or other instruments which
Employer or its nominee shall deem necessary to apply for and obtain Letters
Patent of the United States or any foreign country or to protect otherwise
Employer's interest therein.
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(c) As used in this Agreement, the term "Confidential Information"
shall mean and include all information and data in respect of Employer's
operations, financial condition, products, customers and business (including,
without limitation, artwork, photographs, specifications, facsimiles, samples,
business, marketing or promotional plans, creative written material and
information relating to characters, concepts, names, trademarks and copyrights)
which may be communicated to Employee or to which Employee may have access in
the course of Employee's employment by Employer and which are designated or
treated by the Employer as confidential, and with respect to which Employer has
taken reasonable measures to maintain confidentiality. Notwithstanding the
foregoing, the term "Confidential Information" shall not include information
which:
(i) is, at the time of the disclosure, a part of the public
domain through no act or omission by Employee;
(ii) was otherwise in Employee's lawful possession prior to the
disclosure; or
(iii) is hereafter lawfully disclosed to Employee by a third party
who or which did not acquire the information under an
obligation of confidentiality to or through Employer.
As used in this Agreement, the term "Trade Secrets" shall mean and
include information, without regard to form, including, but not limited to,
technical or non-technical data, a formula, a pattern, a compilation, a program,
a device, a method, a technique, a drawing, a process, financial data, financial
plans, product plans, or a list of actual or potential customers or suppliers
which is not commonly known by or available to the public and which information
(i) derives economic value, actual or potential, from not being known to, and
not being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (ii) is the subject of efforts by
the Employer, that are reasonable under the circumstances to maintain its
secrecy including but not limited to the entering into of agreements containing
similar provisions as set forth herein with respect to confidentiality with
other senior executives of the Company.
Any combination of known information shall be within any of the
foregoing exclusions only if the combination as such is within such exclusions.
Nothing in this Section 7 shall limit any protection, definition or
remedy provided to Employer under any law, statute or legal principle relating
to Confidential Information or Trade Secrets.
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(d) Employee agrees that at the time of leaving the employ of Employer
he will deliver to Employer and not keep or deliver to anyone else any and all
notes, notebooks, drawings, memoranda, documents, and in general, any and all
material relating to the business of Employer (except Employee's personal files
and records) or relating to any employee, officer, director, agent or
representative of Employer.
(e) Employee agrees that commencing as of the date hereof and for a
period of one (1) year following the termination of his employment with the
Company, Employee will not, directly or indirectly: (a) engage in or become
interested (whether as owner, principal, agent, stockholder, member, partner,
trustee, venturer, lender or other investor, director, officer, employee,
consultant or through the agency of any corporation, partnership, limited
liability company, association or agent or otherwise) in any business or
enterprise that shall then be in whole or in substantial part competitive with
the business conducted by the Company (or any other subsidiary thereof);
provided, however, ownership of less than one percent (1%) of the outstanding
securities of any class of any entity listed on a national securities exchange
or traded in the over-the-counter market shall not be considered a breach of
this Section 7(e).
8. Termination
(a) General. In the event Employee is terminated other than pursuant to
Sections 8(b), 8(c) and 8(d) hereof, or in the event of a breach by Employer of
this Agreement (which breach shall not have been cured by Employer within thirty
(30) days after written notice thereof from Employee, which written notice, to
be effective, must describe with specificity the nature of the alleged breach),
(i) Employer shall pay to Employee Employee's Base Salary under Section 4 hereof
in a lump sum (net of all applicable withholding taxes and other amounts that
have routinely been deducted from Employee's Base Salary payments hereunder
prior to any such termination) within ten (10) business days, (ii) Employer
shall pay to Employee all other benefits under Section 5(d) hereof until the two
year anniversary of the date set forth above, and (iii) all options set forth in
Section 5(c) shall automatically vest upon any such termination.
(b) Cause. Notwithstanding the terms of this Agreement, Employer may
discharge Employee and terminate this Agreement in the event that (i) Employee
shall materially fail to perform his material duties hereunder with reasonable
diligence or shall violate any material covenant of his herein contained, (ii)
Employee shall engage in an act of dishonesty in connection with his duties
hereunder or theft, (iii) Employee shall unreasonably refuse to carry out the
lawful order of Employer commensurate and appropriate with Employee's duties to
be performed hereunder, (iv) Employee shall be charged with a felony involving
moral turpitude (which shall include any felony relating to drugs) or shall be
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convicted of, or plead nolo contendere (or make an equivalent plea) in respect
of, any governmental indictment, complaint or other formal allegation or (v)
Employee shall have breached in any material respect any material agreement,
covenant, undertaking or representation and/or warranty under either (x) the
Purchase Agreement or (y) that certain Non- Competition and Continuity of
Business Dealings Undertaking made by Employee in favor of Employer of even date
herewith. Notwithstanding the foregoing to the contrary, prior to discharging
Employee pursuant to clauses (i) or (iii) of the immediately preceding sentence,
Employer shall give Employee ten (10) days' prior written notice of any breach
or failure and a reasonable opportunity to cure any such breach or failure, or
cease violating any covenant contained herein, the extent curable or ceasable;
provided, however, that no notice shall be required to be given in the event
such breach, failure or violation is not curable or ceasable. In the event
Employee is discharged pursuant to this Section 8(b), Employee's Base Salary and
bonus under Section 4 hereof and all benefits under Section 5 hereof shall
terminate immediately upon such discharge (subject to applicable law such as
COBRA), and Employer shall have no further obligation to Employee except the
payment to and reimbursement to Employee for any monies due to Employee which
right to payment or reimbursement accrued prior to such discharge.
(c) Incapacity. Should Employee, in the reasonable judgment of a
physician chosen by the Board, become incapacitated to the extent that he is
unable to perform his material duties pursuant to this Agreement for a period of
four (4) consecutive months by reason of illness, disability, or other
incapacity, Employer may terminate this Agreement upon one (1) month's notice
after said four (4) month period. In addition, upon any such termination, all
options set forth in Section 5(c) shall automatically vest.
Notwithstanding the foregoing, in the event that Employee (or
his representative) disputes the determination made by the physician chosen by
the Board to evaluate Employee's ability to perform his material duties
hereunder, Employee (or his representative) shall have the right to have a
physician of their choosing evaluate Employee. In the event that physician
chosen by the Board and the Employee (or his representative) cannot agree, then
the two (2) physicians shall choose a third physician, whose determination shall
be final and binding upon the parties.
(d) Death. This Agreement shall terminate immediately upon the death of
Employee, in which case Employee's legal representatives shall be entitled to
receive promptly a payment equal to the lesser of four (4) months Base Salary or
the Base Salary for the remaining Term hereof.
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9. Violation of Other Agreements
Employee represents and warrants to Employer that he is legally able to
enter into this Agreement and accept employment with Employer; that Employee is
not prohibited by the terms of any agreement, understanding or policy from
entering into this Agreement; and the terms hereof will not and do not violate
or contravene the terms of any agreement, understanding or policy to which
Employee is or may be a party, or by which Employee may be bound. Employee
agrees that, as it is a material inducement to Employer that Employee make the
foregoing representations and warranties and that they be true in all respects,
Employee shall forever indemnify and hold Employer harmless from and against all
liability, costs or expenses (including attorney's fees and disbursements) on
account of the foregoing representations being untrue.
10. Specific Performance; Damages
In the event of a breach or threatened breach of the provisions of
Section 7 hereof, Employee agrees that the injury which would be suffered by
Employer would be of a character which could not be fully compensated for solely
by a recovery of monetary damages. Accordingly, Employee agrees that in the
event of a breach or threatened breach of Section 7 hereof, in addition to and
not in lieu of any damages sustained by Employer and any other remedies which
Employer may pursue hereunder or under any applicable law, Employer shall have
the right to equitable relief, including issuance of a temporary or permanent
injunction, by any court of competent jurisdiction against the commission or
continuance of any such breach or threatened breach, without the necessity of
proving any actual damages or posting of any bond or other surety therefor. In
addition to, and not in limitation of the foregoing, Employee understands and
confirms that, in the event of a breach or threatened breach of Section 7
hereof, Employee may be held financially liable to Employer for any loss
suffered by Employer as a result.
11. Notices
Any and all notices, demands or requests required or permitted to be
given under this Agreement shall be given in writing and sent, by registered or
certified U.S. mail, return receipt requested, by hand, or by overnight courier,
addressed to the parties hereto at their addresses set forth above or such other
addresses as they may from time-to-time designate by written notice, given in
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accordance with the terms of this Section, together with copies thereof as
follows:
In the case of Employer, with a copy to:
Zukerman Gore & Brandeis, LLP
900 Third Avenue
New York, New York 10022-4728
Attention: Clifford A. Brandeis, Esq.
In the case of Employee, with a copy to:
Cesaris, Nunziante e Breveglieri
20121 Milano
Via Marte Di Pieta, 24
Milan, Italy
Telephone no.: (011) 39-02.72.55.11
Facsimile no.: (011) 39-02.72.55.13.33
Attn: Avv. Luca Breveglieri
and
Rubin, Bailin, Ontoli, Mayer, Baker & Fry LLP
405 Park Avenue
New York, New York 10022
Telephone no.: (212) 935-0900
Facsimile no.: (212) 826-9307
Attn: Joseph Rubin, Esq.
Notice given as provided in this Section shall be deemed effective: (i) on the
date hand delivered, (ii) on the first business day following the sending
thereof by overnight courier, and (iii) on the seventh calendar day (or, if it
is not a business day, then the next succeeding business day thereafter) after
the depositing thereof into the exclusive custody of the U.S. Postal Service.
12. Waivers
No waiver by any party of any default with respect to any provision,
condition or requirement hereof shall be deemed to be a waiver of any other
provision, condition or requirement hereof; nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
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13. Preservation of Intent
Should any provision of this Agreement be determined by a court having
jurisdiction in the premises to be illegal or in conflict with any laws of any
state or jurisdiction or otherwise unenforceable, Employer and Employee agree
that such provision shall be modified to the extent legally possible so that the
intent of this Agreement may be legally carried out.
14. Entire Agreement
This Agreement sets forth the entire and only agreement or
understanding between the parties relating to the subject matter hereof and
supersedes and cancels all previous agreements, negotiations, letters of intent,
correspondence, commitments and representations in respect thereof among them,
and no party shall be bound by any conditions, definitions, warranties or
representations with respect to the subject matter of this Agreement except as
provided in this Agreement.
15. Inurement; Assignment
The rights and obligations of Employer under this Agreement shall inure
to the benefit of and shall be binding upon any successor of Employer or to the
business of Employer, subject to the provisions hereof. Employer may assign this
Agreement to any person, firm or corporation controlling, controlled by, or
under common control with Employer, provided that such assignee is the entity
conducting the business and operations in Italy where Employee is being engaged
to provide his services hereunder. Neither this Agreement nor any rights or
obligations of Employee hereunder shall be transferable or assignable by
Employee.
16. Amendment
This Agreement may not be amended in any respect except by an
instrument in writing signed by the parties hereto.
17. Headings
The headings in this Agreement are solely for convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
18. Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
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19. Governing Law
This Agreement shall be governed by, construed and enforced in
accordance with the internal laws of the State of New York, without giving
reference to principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
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EMILIO BAJ MACARIO
PROJECTAVISION, INC.
By:__________________________
Name: Martin J. Holleran
Title: President and Chief
Executive Officer
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