Exhibit 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made on November 13, 1996, by and
between Universal Commodities Corporation (the "Employer"), 2047 Route 130
North, Burlington, NJ 08016, and Marc Sherman (the "Employee"), 40D Long Beach
Blvd., Loveladies, NJ 08008, 609-361-2332.
A. Employer is engaged in the business of selling used computers and
computer parts.
B. Employer desires to have the services of Employee.
C. Employee is willing to be employed by Employer.
Therefore, the parties agree as follows:
1. Employee shall provide to Employer the normal services of President of the
business.
2. Employee agrees to perform faithfully, industriously and to the best of
Employee's ability, experience and talents, all of the duties that may be
required by the express and implicit terms of this Agreement, to the reasonable
satisfaction of Employer. Such duties shall be provided at Burlington, NJ and at
such other place(s) as the needs, business or opportunities of the Employer may
require from time to time.
3. As compensation for the services provided by Employee under this Agreement,
Employer will pay Employee an annual salary of $125,000.00, in accordance with
Employer's usual payroll procedures. Employee shall be entitled to a commission
based on the Lehmann formula for any acquisitions made by Employer which were
facilitated by Employee. Such commission shall be shared with Edward L.
Cummings. The Lehmann formula is calculated on the total purchase price as
follows: 5% commission on the first million, 4% commission on the second
million, 3% commission on the third million, 2% commission on the fourth
million, and 1% commission thereafter of the total purchase price. This is the
maximum commission that will be paid for each transaction.
4. Salaries will be reviewed annually and stock options will be issued as the
size of the management role expands.
5. Employer will reimburse Employee for "out of pocket" expenses in accordance
with Employer policies in effect from time to time.
6. Employee shall be entitled to six weeks of paid vacation per year beginning
on the first date of Employee's employment. Such vacation must be taken at a
time mutually convenient to Employer and Employee.
Unused vacation time may be accumulated if not used within the year it is
earned up to a total of twelve weeks. Cash payments will not be disbursed in
lieu of earned vacation time.
7. Employee shall be entitled to six days paid time due to illness or personal
business each year of employment beginning on the first date of Employee's
employment. All requests for sick days and personal days off shall be made by
Employee in accordance with Employer policies in effect from time to time.
8. Employee shall be entitled to the standard company holidays.
9. Employee shall be entitled to insurance benefits including health
insurance, disability insurance and any other benefits that are in effect from
time to time.
10. Employer will continue to provide Employee with two automobiles comparable
to the type in use at the signing of this Agreement.
11. Employee's employment under this Agreement shall be for three years,
beginning on the date of signing of this Agreement. If Employee is terminated by
Employer for Cause or if Employee terminates this Agreement, or Cause exists,
Employer shall pay Employee compensation only to the date of such termination.
If Employer terminates Employee without Cause, Employer will pay Employee an
amount equal to the greater of compensation due to Employee for the remainder of
the Agreement or one years' compensation. "Cause" shall mean any willful
misconduct or premeditated fraud or willful acts against Employer by Employee.
12. Employee shall provided Employer all information regarding Employer's
business of which Employee has knowledge. Employee shall make all suggestions
and recommendations that will be of mutual benefit to Employer and Employee.
13. Employee recognizes that Employer has and will have inventions, business
affairs, products, future plans, trade secrets, customer lists, and other vital
information (collectively, "Information" which are valuable, special and unique
assets of Employer. Employee agrees that Employee will not at any time or in any
manner, either directly or indirectly, divulge, disclose or communicate in any
manner any Information to any third party without the prior written consent of
the Employer. Employee will protect the Information and treat it as strictly
confidential. A violation by Employee of this paragraph shall be a material
violation of this Agreement and will justify legal and/or equitable relief.
If it appears that Employee has disclosed (or has threatened to disclose)
Information in violation of this Agreement, Employer shall be entitled to an
injunction to restrain Employee from disclosing, in whole or in part, such
Information, or from providing any services to any party to whom such
Information has been disclosed or may be disclosed. Employer shall not be
prohibited by this provision from pursuing other remedies, including a claim for
losses and damages.
14. Employee agrees to submit to all of the rules and regulations of Employer.
15. All notices are required or permitted under this Agreement shall be in
writing and shall be deemed delivered when delivered in person or deposited in
the United States mail, postage paid, addressed as follows:
Employer: Universal Commodities Corporation
Attn. Garrett A. Sullivan
2047 Route 130 North
Burlington, NJ 08016
Employee: Marc Sherman
40D Long Beach Blvd.
Loveladies, NJ 08008
Such addresses may be changed from time to time by either party by
providing written notice in the manner set forth above.
16. This agreement contains the entire agreement of the parties and there are
not other promises or conditions in any other agreement whether oral or written.
This Agreement supersedes any prior written or oral agreements between the
parties.
17. This Agreement may be modified or amended, if the amendment is made in
writing and is singed by both parties.
18. If any provision of the Agreement shall be held to be invalid or
unenforceable for any reason, the remaining provisions shall continue to be
valid and enforceable. If a court finds that any provision of the Agreement is
invalid or unenforceable, but that by limiting such provision it would become
valid and enforceable, then such provision shall be deemed to be written,
construed, and enforced as so limited.
19. The failure of either party to enforce any provision of this Agreement
shall not be construed as a waiver or limitation of the party's right to
subsequently enforce and compel strict compliance with every provision of this
Agreement.
20. This Agreement shall be governed by the laws of the State of New Jersey.
21. Employee hereby agrees that he shall not at anytime during the term of this
Agreement and for a period of three years thereafter participate in any business
which is in competition with Employer in the States of New Jersey, New York,
Delaware and Connecticut.
22. In the event that the Registration Statement (as defined in the Agreement
of Sale dated as of November 13, 1996, among Employer, Employee and Applied
Cellular Technology, Inc.) has not been declared effective by the Securities and
Exchange Commission or Employee has not received registered common stock as
provided in the Agreement of Sale within nine months after the date of the
Agreement of Sale, the provisions of Section 13 and 21 hereof shall be null and
void and Employee shall be permitted to compete against Employer at Employee's
sole discretion.
Agreed this 13th day of November, 1996.
Universal Commodities Corporation
By: _____________________________________
Garrett A. Sullivan - CEO
/s/ Marc Sherman
_____________________________________
Marc Sherman
The undersigned hereby agrees to guarantee all obligations of Employer
under this Agreement if Employer, for any reason, is unable or unwilling to
perform.
APPLIED CELLULAR TECHNOLOGY, INC.
By: ___________________________________
Title:_________________________________
21. Employee hereby agrees that he shall not at anytime during the term of this
Agreement and for a period of three years thereafter participate in any business
which is in competition with Employer in the States of New Jersey, New York,
Delaware and Connecticut.
22. In the event that the Registration Statement (as defined in the Agreement
of Sale dated as of November 13, 1996, among Employer, Employee and Applied
Cellular Technology, Inc.) has not been declared effective by the Securities and
Exchange Commission or Employee has not received registered common stock as
provided in the Agreement of Sale within nine months after the date of the
Agreement of Sale, the provisions of Section 13 and 21 hereof shall be null and
void and Employee shall be permitted to compete against Employer at Employee's
sole discretion.
Agreed this 13th day of November, 1996.
Universal Commodities Corporation
By: /s/ Garrett A. Sullivan
_____________________________________
Garrett A. Sullivan - CEO
_____________________________________
Marc Sherman
The undersigned hereby agrees to guarantee all obligations of Employer
under this Agreement if Employer, for any reason, is unable or unwilling to
perform.
APPLIED CELLULAR TECHNOLOGY, INC.
By: /s/ Garrett A. Sullivan
_____________________________________
Title: President
[Logo Omitted]
March 12, 1999
Personal & Confidential
Mr. Marc Sherman
2047 Route 130 North
Burlington, NJ 08016
Re: Employment Agreement dated November 13, 1996 ("Employment Agreement")
Dear Marc:
The referenced Employment Agreement is hereby amended as follows:
1. Base Salary: Commencing January 1, 1999 your base salary will be $210,000
per annum.
Except as indicated above, the remaining terms of the Employment Agreement shall
remain unchanged and the Employment Agreement will continue in full force and
effect.
Please indicate your acceptance of this Amendment to your Employment Agreement
by signing the enclosed copy of this letter and returning it to me.
Sincerely,
Applied Cellular Technology, Inc. Universal Commodities Corp.
By: /s/ Garrett A. Sullivan By: /s/ Garrett A. Sullivan
______________________________ _________________________
Garrett A. Sullivan Garrett A. Sullivan
President Chairman
Accepted:
/S/ Marc Sherman Date: 3-19-99
___________________________________ _________
Marc Sherman
400 Royal Palm Way, Suite 410 Palm Beach, FL 33480
TEL 561.366.4800 FAX 561.366.0002