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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: DRIFTWOOD VENTURES, INC. | Destination Software, Inc | Green Screen Interactive Software, LLC | GSIS, Company You are currently viewing:
This Employee Retention Agreement involves

DRIFTWOOD VENTURES, INC. | Destination Software, Inc | Green Screen Interactive Software, LLC | GSIS, Company

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Title: EMPLOYMENT AGREEMENT
Governing Law: New York     Date: 9/18/2008

EMPLOYMENT AGREEMENT, Parties: driftwood ventures  inc. , destination software  inc , green screen interactive software  llc , gsis  company
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EMPLOYMENT AGREEMENT

 

THIS EMPLOYMENT AGREEMENT (this "Employment Agreement") dated as of December 18, 2007 (the "Effective Date") by and between Destination Software, Inc., a New Jersey corporation having an office and principal place of business at 137 Hurffville-Cross Keys Road, Suite C, Sewell, NJ 08080 (hereinafter referred to as the "Company") and Susan Kain Jurgensen, an individual residing at 4 Oak Ridge Lane, Sewell, New Jersey 08080 (hereinafter referred to as the "Employee").

 

WITNESSETH:

 

WHEREAS, the Employee is an equity owner in Company; and

 

WHEREAS, simultaneously with the execution hereof, Green Screen Interactive Software, LLC ("GSIS") is acquiring all of the equity of Company pursuant to a Contribution Agreement dated as of July 24, 2007 among GSIS, Company, the Employee and others (the "Contribution Agreement"); and

 

WHEREAS, as a condition to closing of the transactions contemplated by the Contribution Agreement, GSIS and Company require that the Employee agree to provide services to the Company for the benefit of the Company, its parent, affiliates and subsidiaries upon the terms and conditions herein set forth; and

 

WHEREAS, the Employee desires to render such services in order to induce GSIS to consummate the closing under the Contribution Agreement; and

 

WHEREAS, the Company is the owner of the Company's business and the Company's accounts, clients and customers, all of which comprise a substantial part of the good will of the Company; and

 

WHEREAS, the Company wishes to protect its business, good will and confidential and proprietary information.

 

NOW, THEREFORE, in consideration of the premises herein, and the mutual promises and undertakings herein contained and set forth, and for other good and valuable consideration, made over by each party to the other, the receipt and sufficiency of which are hereby acknowledged, it is covenanted and agreed as follows:

 

1.   Employment . The Company hereby agrees to employ the Employee, and the Employee hereby agrees to accept employment by the Company, upon and subject to the terms and conditions of this Agreement.

 

2.   Term . The term of this Agreement shall begin on the date hereof (the "Commencement Date") and shall continue for a period of four (4) years, unless sooner terminated in the manner provided for herein (the "Term"). As used herein, the term "Contract Year" shall mean each 12 month period during the term of this Agreement.

 

 

 


 

 

3.   Compensation .

 

A.   Base Salary . For all services to be rendered by the Employee to the Company under this Agreement, or otherwise, the Company shall pay to the Employee a base salary ("Base Salary") at the rate of Three Hundred Thousand Dollars ($300,000) for the first Contract Year with increases of 4% for each subsequent Contract Year, which sum shall be paid on such basis as the Company shall reasonably determine, but not less frequently than monthly. It is understood that the Company may, in its sole discretion, increase said base salary without affecting any of the other terms of this Agreement.

 

B.   Bonuses . Employee shall be eligible to receive bonuses of: (i) $150,000 for each Contract Year, payable in equal quarterly installments, if the [new label, the name of which has not been determined as of the date hereof] licenses and publishes at least 10 video game SKUs in such Contract Year; (ii) a $150,000 per Contract Year sales bonus if Company-wide sales equal or exceed $30 million for such Contract Year; (iii) a $750,000 one time bonus if [new label] exceeds $85 million in sales with an Operating Margin of no less than 10% in any one fiscal year; and (iv) an additional $750,000 one time bonus if [new label] exceeds $125 million in sales with an Operating Margin of no less than 10% in any one fiscal year. "Operating Margin" is defined as [new label's] sales, net of all applicable sales discounts, allowances and markdowns consistent with those recorded on GAAP-based financial statements, cost of sales (including cost of manufacturing, freight-in, royalties, development advances and costs, and inventory write-downs), marketing costs, distribution costs, and sales, general and administrative costs specific to [new label].

 

C.   Equity . Employee shall be eligible to participate in any incentive equity option plan Company may have, subject to the discretion of the compensation committee of Company, such committee taking into account Employee's senior management role in the Company.

 

4.   Social Security and Withholding . All compensation provided for in this Agreement shall be subject to the Company deducting therefrom such Social Security, withholding and any other payments as may be required by law.

 

5.   Duties .

 

A.   During the Term, the Employee will hold the initial office of President of the Company and President of [new label] and such other office(s) of the Company and/or its affiliates to which she may be elected or appointed, and Employee shall perform all duties incidental thereto as may be prescribed by the Company from time to time. The Employee shall report to the Chairman of GSIS and/or his/her designees. The precise services and responsibilities of the Employee may be extended or curtailed, from time to time, at the direction of the Company, in its sole discretion. In the event that the Employee is now or shall in the future be elected or appointed as an officer of the Company or of any affiliate of the Company during the Term, the Employee will serve in such capacity or capacities without further compensation; however, nothing herein shall be construed as requiring the Company, or anyone else, to cause the election or appointment of the Employee as such officer.

 

 

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B.   The Employee warrants and represents (and breach hereof shall be cause for termination by the Company of this Agreement) that she is not under any contractual or other obligations of any sort which will (i) prevent her from performing fully all of her obligations hereunder, and/or (ii) vest in any other person, firm or corporation any right to recover damages as a result of the Employee's performance hereunder, and/or (iii) permit any other person or entity to enjoin or otherwise prevent full compliance by her hereunder.

 

6.   Extent of Services . The Employee shall devote her entire, full time, attention, energies and best efforts to the business of the Company, and shall not during the Term be engaged in any other business activity whether or not such business activity is pursued for gain, profit, or other pecuniary advantage; but this shall not be construed as preventing the Employee from investing her assets in such form or manner as will not require any services on the part of the Employee in the operation of the affairs of the companies in which such investments are made. The Employee agrees to perform faithfully and to the best of her ability all assignments given her by the Company.

 

7.   Benefits . During the Term:

 

A.   Vacation . The Employee shall be entitled to a vacation of twenty five (25) working days during each Contract Year, or pro rata for a portion of a Contract Year. The time or times of said vacation shall be determined by the mutual agreement of the Company and the Employee, provided, however, that any vacation absence exceeding ten (10) consecutive vacation days shall be subject to the prior approval of the Company, which approval shall not be unreasonably withheld.

 

B.   Benefits . The Employee and her dependents, if applicable, shall be eligible to participate in any plan of the Company relating to group life insurance, medical coverage, dental coverage, disability insurance, education and/or other retirement or employee benefit plans or programs that the Company has adopted or may adopt for the benefit of its executive employees ("Plans"). The Employee acknowledges and agrees that the Company shall have the absolute right, at any time and from time to time, to modify, amend, replace and/or discontinue any of the Plans. Notwithstanding anything herein to the contrary, Company acknowledges that medical coverage is a significant component to this Agreement based upon health issues relating to Employee's family and agrees that it will provide either (a) medical coverage equal to or greater than the present policy in place for Company or (b) in the event the medical coverage provided by Company is less than the policy currently in place for Company, reimbursement to Employee for the cost of insurance which she will purchase privately to make up the shortfall in coverage.

 

C.   Expenses . The Employee is authorized to incur reasonable and necessary expenses (including a first class seat when traveling by air or business class when traveling by train) for promoting the business of the Company, including expenses for entertainment, travel and similar items; provided, however, that any single such expense in excess of $3,000 (three thousand dollars) must be approved in advance by the Company. The Company will pay for and/or reimburse the Employee for all such expenses upon the presentation by the Employee, within thirty (30) days of the date incurred, of an itemized account of such expenditures and invoices and/or such other verification of such expenses as may be requested by the Company.

 

 

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D.   Company Car . Company shall maintain the GMAC Cadillac Escalade lease dated October 21, 2006 and insurance for the term of such lease. Such vehicle shall be used by Employee primarily for business purposes. After the expiration of such lease, Company shall reimburse Employee up to $1,400 per month for lease and insurance costs associated with her automobile.

 

8.   Title to Business . The Employee shall keep and maintain accurate, detailed and legible records of all work performed by the Employee on behalf of the Company, including, but not limited to, specific proposals to clients and customers, proposals and presentations, the Employee's work product and other ideas created and implemented during the Term. All right, title, and interest in and to all of the above, together with any and all books, records, accounts, good will, all related business and all other business conducted by the Company, or the Employee on the Company's behalf, whether produced by the Employee or not, and any renewals thereof, shall remain in the Company before and after the termination of this Agreement for any reason.

 

9.   Ventures . If, during the Term of this Agreement, the Employee is engaged in or associated with the planning or implementing of any project, program or venture involving the Company or its affiliates and a third party or parties, all rights in such project, program or venture shall belong to the Company. The Employee shall not be entitled to any interest in such project, program or venture or to any commission, finder's fee or other compensation in connection therewith other than the salary to be paid to the Employee as provided in this Agreement.

 

10.   Life Insurance . The Company may, in its discretion, at any time after the execution of this Agreement, apply for and procure as owner, and for its own benefit, insurance on the life of the Employee, in such amounts and in such form or forms as the Company may choose. The Employee shall have no interest whatsoever in any such policy or policies, but shall, at the request of the Company, submit to such medical examinations, supply such information, and execute such documents as may be reasonably required by the insurance Company or companies to whom the Company has applied for such insurance.

 

11.   Confidentiality of Information .

 

A.   The Employee acknowledges and recognizes that in the course of her employment hereunder she will become acquainted with confidential and/or proprietary information of the Company, (all of such confidential and/or proprietary information being collectively referred to as "Confidential Information"). "Confidential Information" includes, but is not limited to, any trade secrets including confidential or secret designs, processes, formulae, plans, devices or material (whether or not patented or patentable) directly or indirectly useful in any aspect of the business of the Company or its affiliates, any customer or supplier lists of the Company, any confidential or secret development or research work of the Company, or any other confidential information or secret aspects of the business of the Company, whether developed by the Employee or by others, as well as all such information of affiliates of Company, including GSIS and other subsidiaries and affiliates of GSIS. In recognition of the foregoing, the Employee agrees that she will keep secret and confidential any and all Confidential Information and that she will not, directly or indirectly, without the prior written consent of the Company, either during the Term or at any time thereafter, except as may be required in the course of her employment hereunder:

 

 

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(1)   Communicate, divulge or otherwise disclose any such Confidential Information to any person or entity; and/or

 

(2)   Use or attempt to use any such Confidential Information for any purpose or in any manner, including, without limiting the foregoing, for the purpose of inducing or attempting to induce any account, client and/or customer of the Company to become an account, client and/or customer of the Employee or of any person or entity with which the Employee is affiliated in any capacity; and/or for any purpose which may injure or cause loss or may be calculated to injure or cause loss, whether directly or indirectly, to the Company.

 

B.   All records, files, manuals, lists of customers, blanks, forms, materials, supplies, computer programs and other materials furnished to the Employee by the Company, used by her on its behalf, or generated or obtained by her during the course of her employment, shall be and remain the property of the Company. The Employee shall be deemed the bailee thereof for the use and benefit of the Company and shall safely keep and preserve such property, except as consumed in the normal business operations of the Company. The Employee acknowledges that this property is confidential and/or proprietary and is not readily accessible to the Company's competitors. Upon the termination of the Employee's employment for any reason whatsoever, all documents, records, notebooks, equipment, employee lists, price lists, specifications, programs, customer and prospective customer lists and other materials which refer or relate to any confidential or proprietary aspect of the business of the Company which are in the possession of the Employee including all copies thereof, shall be promptly returned to the Company.

 

 

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C.   The products and proceeds of Employee's services hereunder that Employee may acquire, obtain, develop or create during the term of this Agreement, or that are otherwise made at the direction of the Company or with the use of the Company's or its affiliates' facilities or materials, including, but not limited to, all materials, ideas, concepts, formats, suggestions, developments, packages, programs, inventions, products, programs, procedures, formats, intellectual properties, and other materials of any kind created or developed or worked on by the Employee during her employment by the Company (collectively, "Works"), shall be considered a "work made for hire," as that term is defined under the United States Copyright Act, and Employee shall be considered an employee for hire of the Company, and all rights in and to the Works, including the copyright or patent thereto, shall be the sole and exclusive property of the Company, as the sole author and owner thereof, and the copyright thereto may be registered by the Company in its own name, and the Employee will not have any right, title or interest of any natu


 
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