EXHIBIT 10.2
EMPLOYMENT AGREEMENT
Employment Agreement dated as of _____________, 1997 between ____________
(the "Executive") and DMS Corp., a ________________ corporation ("the Company").
WHEREAS, the Company desires to employ the Executive as the
_________________ of the Company and the Executive desires to accept such
employment, on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Executive and the Company hereby agree as follows;
ARTICLE I
EMPLOYMENT
Section 1.01. POSITION: TERM: RESPONSIBILITIES. The Company
shall employ the Executive as ______ of the Company for a term commencing on
the date hereof and ending on _____________, 20__ subject to earlier
termination pursuant to Article III hereof; provided, however, that such term
shall be extended, as of _____________ of each year during the Employment
Period (hereinafter defined) commencing with __________________, for an
additional one-year period unless either the Executive or the Company shall
have terminated the proviso by written notice to the other party not later
than the ______________________ on which any such extension is to occur; and
provided further that in no event shall such term extend beyond
________________, 20__. The term of employment in effect from time to time
as prescribed in the preceding sentence is hereinafter called the "Employment
Period."
Subject to the powers, authorities and responsibilities vested in the Board
of Directors of the Company (the "Board") and in duly constituted committees of
the Board, the Executive shall have the responsibility and authority for the
formulation and execution of the corporate policy, and the administration of the
corporate affairs, of the Company and such other responsibilities and
authorities as are customarily exercisable by a _________________. The
Executive shall hold the title of _________of the Company and any additional
title as is not inconsistent with such responsibility and authority. The
Executive shall also perform such other executive and administrative duties, not
inconsistent with the position of __________________, as may from time to time
be authorized or directed by the Board. The Executive agrees to be employed by
the Company in such capacities for the Employment Period, subject to the terms
and conditions hereinafter set forth.
Section 1.02. DUTIES. During the Employment Period, the Executive
shall perform faithfully the duties assigned to him hereunder to the best of
his abilities and devote his full and undivided business time and attention
to the transaction of the business of the Company and not engage in any other
business activities except with the approval of the Board.
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ARTICLE II
COMPENSATION
Section 2.01. BASE SALARY. As compensation for his services
hereunder, the Company shall pay to the Executive during the Employment
Period an annual salary of not less than $180,000 (the "Base Salary"),
payable in installments in accordance with the Company's normal payment
schedule for senior executives of the Company. Prior to each installment,
Executive can direct the Company to pay the installment in shares of the
Company's common stock equal to the fair market value of such installment
(less any applicable taxes, withholding taxes, or other deductions authorized
by the Executive), otherwise the Company shall pay such amount (less any
applicable taxes, withholding taxes, or other deductions authorized by the
Executive) in cash.
Section 2.02. BONUS. Following the date hereof, the Compensation
Committee (the "Committee") of the Board shall approve an annual bonus plan (the
("Bonus Plan") for senior executive officers of the Company, including the
Executive. The Bonus Plan shall specify the performance criteria upon which
annual bonuses shall be based and the formula for the payment thereof commencing
with the Company's fiscal year ending _________________. The Executive shall be
eligible to receive an annual bonus ("Bonus") for each fiscal year of the
Company during the Employment Period in accordance with the terms of the Bonus
Plan. Notwithstanding any term of the Bonus Plan to the contrary, the maximum
bonus target shall be for an amount not less than $180,000. Any bonus with
respect to a fiscal year of the Company shall be payable as soon as reasonably
practicable after the end of such fiscal year and shall be paid to the
Executive.
Section 2.03. OTHER BENEFITS. The Company shall provide the
executive with the use of an automobile during the Employment Period in
accordance with the policies and procedures of the Company relating thereto.
The Company shall also, during the Employment Period, pay all fees and dues
relating to club memberships in accordance with the policies and procedures
of the Company relating thereto. The Executive shall also be entitled to
participate in all employee benefit plans, including pension plans, stock
options plans, group life, health and disability insurance plans, to take
four weeks of paid vacation annually, to take time for illness in accordance
with the Company's policy for senior executives and to receive all other
fringe benefits as are from time to time made generally available to senior
executives of the Company.
Section 2.04. EXPENSE REIMBURSEMENT. The Company shall reimburse the
Executive for all proper expenses reasonably incurred by him in the performance
of his duties hereunder in accordance with the policies and procedures of the
Company.
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ARTICLE III
TERMINATION OF EMPLOYMENT
Section 3.01. TERMINATION FOR CAUSE. The Company may terminate the
Executive's employment by the Company for Cause (hereinafter defined) upon
written notice to the Executive. For purposes of this Agreement, "Cause" shall
mean any conduct of the Executive involving dishonesty, willful gross misconduct
or moral turpitude which, in any case, is materially and demonstrably injurious
to the business of the Company or any breach by the Executive of any of the
provisions of Section 4.01 or 4.02 hereof. In the event the Company exercises
its election to terminate the Executive's employment pursuant to this Section
3.01, the Employment Period shall terminate effective with such notice and the
Executive shall be entitled to receive any unpaid compensation pursuant to
Section 2.01 accrued through the date of such termination and reimbursement for
expenses incurred through such date pursuant to Section 2.04.
Section 3.02. TERMINATION DUE TO DISABILITY. If, during the
Employment Period, the Executive shall become disabled due to accident or
illness and in the opinion of the Board shall be unable to perform the duties of
the positions he then occupies for a period of 90 consecutive days, the Company
shall have the right to terminate the Employment Period effective at any time
after such 90 day period of disability by 30 days advance written notice to the
Executive. If the Employment Period is terminated pursuant to this Section
3.02, the Executive shall be entitled to receive (1) any unpaid compensation
pursuant to Sections 2.01 and 2.02 and any benefits payable pursuant to Section
2.03, in each case accrued through the date of such termination, (b)
reimbursement of expenses incurred through such date pursuant to Section 2.04
and (c) an annual amount equal to the excess, if any of 60 percent of the
Executive's Base Salary at the time he became disabled over the annual amount
that the Executive shall be entitled to receive under any disability plan then
maintained by the Company or by any of its subsidiaries. The payments required
by clause (c) of the preceding sentence shall be made in equal monthly
installments commencing on the date as of which the Employment Period is
terminated pursuant to this Section 3.02 and ending on the earlier of the last
day of the Employment Period in effect immediately prior to such termination of
employement and the date of the Executive's death.
Section 3.03. DEATH. In the event of the death of the Executive during
the Employment Period, his estate shall be entitled to receive (a) any unpaid
compensation pursuant to Sections 2.01 and 2.02 and any benefits payable
pursuant to Sections 2.03, in each case accrued through the date of such death,
(b) reimbursement of expenses incurred through such date pursuant to Section
2.04 and (c) a lump sum payment equal to three times the Executive's Base Salary
on the date of such death, minus any amount payable by reason of the Executive's
death under any group life insurance plan then maintained by the Company.
Section 3.04. OTHER TERMINATION. The Company may terminate the
Executive's employment by the Company for any reason other than the reasons set
forth in Sections 3.01, 3.02 and 3.03 upon written notice to the Executive. In
the event that the Company shall exercise its election to terminate the
Executive's employment pursuant to this Section 3.04, the Employment Period
shall terminate effective with such notice and the Executive shall be entitled
to receive (a) any unpaid compensation pursuant to Sections 2.01 and 2.02 and
any benefits
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payable pursuant to Section 2.03, in each case accrued through the date of such
termination, (b) reimbursement of expenses incurred through such date pursuant
to Section 2.04, (c) the continuation of the Base Salary of the Executive for a
period of two years from the date of such termination at the annual rate thereof
immediately preceding such termination, payable as provided in Section 2.01, (d)
the continuation of a bonus for a period of two years following such termination
of employment at an annual rate equal to the Executive's average annual bonus
over the five fiscal years of the Company (or if the Executive shall have been
employed by the Company for less than five years, such period of employment)
immediately preceding the fiscal year in which such termination of employment
shall have occurred, payable in equal installments together with the payment of
Base Salary pursuant to clause (c) of this Section 3.04 and (e) the continuation
of group life, health and disability benefits pursuant to Section 2.03 (or the
fair market value of such benefits) for a period of two years from the date of
such termination.
ARTICLE IV
NON-SOLICITATION; CONFIDENTIAL INFORMATION
Section 4.01. NON-SOLICITATION. During the Employment Period and
for a period of one year thereafter, except with the prior written consent of
the Company duly authorized by the Board, the Executive shall not (a) induce
or attempt to persuade any employee of the Company to discontinue such
employment relationship or (b) solicit any person, corporation, partnership
or other entity or organization which at any time during the Employment
Period is a customer of the Company to become a customer of another entity in
the same or similar business of the Company's; PROVIDED, HOWEVER, that
mailings made to the general public or segments of the general public and
other forms of general advertising shall not be deemed to be solicitation for
purposes of clause (b) of this sentence.
Section 4.02. CONFIDENTIAL INFORMATION. During the Employment Period
and thereafter, except with the prior written consent of the Company duly
authorized by the Board, the Executive shall not disclose to any person
("Unauthorized Person") to whom he is not otherwise authorized to do so by the
Company, or use for his own or any Unauthorized Person's account, any
information ("Confidential Information"), whether or not reduced to written or
other tangible form, in which the Company has a legally protectable interest by
virtue of the following:
(a) such information is not generally known in the industry;
(b) the Executive has had access to (or, either alone or in cooperation
with others, originated or developed) such information during his employment
with the Company and its subsidiaries;
(c) such information has been treated by the Company as confidential;
(d) such information relates to the business of the Company or any of its
subsidiaries, and
(e) such information is of competitive advantage to the Company or any of
its subsidiaries;
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Confidential Information for which the Executive has first secured the written
consent of the Company for its disclosure or use, and Confidential Information
which becomes generally known in the industry, or which otherwise ceases to be
legally protectable (other than by the Executive's breach of this Agreement),
shall cease to be subject to the restrictions set forth in this Section 4.02. In
the event of the Executive's breach of the provisions of this Section 4.02, the
Company shall have no obligation to provide any further payments or benefits to
or on behalf of the Executive under this Agreement except amounts required by
law.
Section 4.03. SCOPE OF COVENANTS; REMEDIES. The following provisions
shall apply to the covenants of the Executive contained in Sections 4.01 and
4.02:
(a) without limiting the right of the Company to pursue all other legal and
equitable remedies available for violation by the Executive of the covenants
contained in Sections 4.01 and 4.02, it is expressly agreed by the Executive and
the Company that such other remedies cannot fully compensate the Company for any
such violation and that the Company shall be entitled to injunctive relief to
prevent any such violation or any continuing violation thereof;
(b) each party agrees that if in any action before any court or agency
legally empowered to enforce the covenants contained in Sections 4.01 and 4.02
any term, restriction, covenant or promise contained therein is found to be
unreasonable and accordingly unenforceable, then such term, restriction,
covenant or promise shall be deemed modified to the extent necessary to make it
enforceable by such court or agency; and
(c) the covenants contained in Section 4.01 and 4.02 shall survive the
conclusion of the Executive's employment by the Company.
ARTICLE V
MISCELLANEOUS
Section 5.01. NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be sufficient if in writing and delivered
personally or sent by certified mail, return receipt requested, as follows: if
to the Executive, to the Executive at his address as set forth in the records of
the Company; and if to the Company, to the Company at
___________________________, Attention: Chairman, Compensation Committee; or to
either party at any other address designated by such party by notice similarly
given. Such notice shall be deemed to have been given upon the personal delivery
thereof or three days following the mailing thereof, as the case may be.
Section 5.02. ASSIGNMENT AND SUCCESSION. The rights and obligations of
the Company under this Agreement shall inure to the benefit of and be binding
upon its successors and assigns, and the Executive's rights and obligations
hereunder shall inure to the benefit of and be binding upon his heirs,
executors, administrators and legal representatives.
Section 5.03. HEADINGS. The Article and Section headings herein are
for convenience of reference only and shall not define or limit the
provisions hereof.
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Section 5.04. PRIOR AGREEMENTS. This Agreement supersedes all prior
agreements, understandings and representations by or between the parties hereto,
whether written or oral, relating to the subject matter hereof.
Section 5.05. APPLICABLE. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of ____________,
without giving effect to any choice of law or conflict of law provision or rule.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by its
duly authorized officer, and the Executive has signed this Agreement, as of the
day and year first above written.
DMS CORP.
By
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EXECUTIVE
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