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EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of the 6th day of
June, 2007
by and between HARVEY ELECTRONICS, INC., a New York corporation
(the "Company"),
and MICHAEL RECCA ("Executive").
In consideration of the mutual covenants contained in this
Agreement, the
Company and Executive agree as follows:
1. Employment. During the term of this Agreement (as defined in
Section 2),
the Company shall employ Executive, and Executive hereby accepts
such employment
by the Company, in accordance with the terms and conditions set
forth in this
Agreement.
a) Position and Duties. Executive shall serve as Interim Chief
Executive
Officer and President of the Company or in such other position
with the Company,
as the Board of Directors of the Company shall, from time to
time, specify.
Executive shall perform all duties, services and
responsibilities and have such
authority and powers for, and on behalf of, the Company as are
customary and
appropriate for such position designated by, as are established
from time to
time by, or in accordance with procedures established by, the
Company's Board of
Directors.
(b) Performance. Executive shall perform the duties called for
under this
Agreement to the best of his ability and shall devote an
appropriate amount of
his business time (no less than 40 hours per week), energies,
efforts and skill
to such duties during the term of his employment and shall not
accept employment
with any other employer or business or engage in any other
business of any
nature whatsoever, in any capacity whatsoever, unless approved
in writing in
advance by the Board of Directors of the Company.
2. Term. The term of Executive's employment under this Agreement
shall
begin on the date hereof and shall continue until November 30,
2007 (the
"Termination Date"). Subject to Section 4 hereof, at any time on
or before the
Termination Date or any Extended Termination Date (as defined
herein), the
Company may, at its sole option, extend this Agreement for a
period of one (1)
month (the expiration of any extension being referred to herein
as the "Extended
Termination Date"); provided, however, that the Company may
extend this
Agreement no more than six (6) times for an aggregate of six (6)
months.
3. Compensation, Expenses and Benefits. As full compensation
for
Executive's performance of his duties pursuant to this
Agreement, the Company
shall pay Executive during the term of this Agreement, and
Executive shall
accept as full payment for such performance, the following
aggregate amounts and
benefits:
(a) Salary. As salary for Executive's services to be rendered
under this
Agreement, the Company shall pay Executive a monthly salary of
$25,000; Eighty
(80%) percent, ($ 20,000) of such salary to be paid in cash in
accordance with
the regular payroll practices of the Company, with the balance
accrued. The
total balance accrued and not paid shall be paid in twelve-equal
monthly
installments following termination of the agreement
(b) Business Expenses. In addition, the Company shall reimburse
Executive,
or cause him to be reimbursed, for all reasonable out-of-pocket
expenses
incurred by him in the performance of his duties hereunder or in
furtherance of
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the business and/or interests of the Company. Out of pocket
expenses will be
reimbursed provided, that (i) such expenses are incurred in
accordance with
Company policy, and (ii) Executive furnishes to the Company an
itemized account
(including receipts), reasonably satisfactory to the Company, in
substantiation
of such expenditures.
(c) Vacation. Executive shall be entitled to 2 paid vacation
days per month
period. Vacation days not taken by Executive will not be paid
upon termination.
(d) Options. Upon the execution of this Agreement, the Company
shall grant
Executive a "non-qualified stock option" (the "Option") pursuant
to the Free
Standing Non-Qualified Stock Option Agreement attached hereto as
Annex A.
The parties agree that Executive shall be granted certain
"piggy-back"
registration rights to the extent the shares of common stock
underlying the
Option are not covered by an effective registration statement.
The parties
further acknowledge and agree that the number of shares and
exercise prices set
forth in Annex A reflect a one-for-four reverse split
consummated by the Company
on November 10, 2006. Executive further agrees and acknowledges
that he shall
not sell any shares of the Company's common stock underlying the
Option until a
period commencing one year from the later of the Termination
Date and the final
Extended Termination Date and Executive further agrees and
acknowledges that he
shall not sell more than 25,000 Option Shares in any three-month
period.
Should Executive purchase shares of the common stock of the
Company outside of
the scope of this Agreement and the option granted hereunder,
Executive agrees
that such purchases shall be made pursuant to a plan meeting the
requirements of
Rule 10b5-1(c) under the Securities and Exchange Act of 1934, as
amended. The
prohibition on the sale of shares set forth in this Agreement
shall not apply to
such shares, provided, however, that Executive acknowledges that
to the extent
Executive purchases such shares at any time the Executive is
deemed an
"affiliate" (as such term is defined under Rule 144(a)(1) of the
Securities Act
of 1933, as amended (the "Act")) of the Company, such shares
shall be
"restricted securities" (as such term is defined under Rule
144(a)(3) of the
Act) and may only be resold pursuant to an effective
registration statement
under the Act or pursuant to an applicable exemption under the
Act. .
(e) Executive shall have the right to participate, on the same
basis and to
the same extent as other executive employees of the Company, in
the Company's
employee benefit programs, if any, including, without
limitation, group life and
medical insurance programs covering Executive and his
dependents.
(f) Indemnification; Directors and Officers Insurance. The
Company shall,
to the fullest extent authorized or permitted by the New York
Business
Corporation Law, the Company's Charter and the Company's
By-Laws, defend,
indemnify and hold Executive, his heirs, executors,
administrators and other
legal representatives, harmless from and against any and all
claims, suits,
debts, causes of action, proceedings or other actions, at law or
in equity
("Claims"), which any person or entity may have had, now has or
may in the
future have with respect to Executive's service to the Company
as an officer,
director, executive or agent thereof, including any costs and
reasonable
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attorney fees incurred in connection with defending such Claims.
This provision
shall survive the termination of this agreement.
(g) The Company shall deduct from Executive's compensation
hereunder and
any other payment, any federal, state, or city withholding
taxes, social
security contributions, and any other amounts which may be
required to be
deducted or withheld by the Company pursuant to any federal,
state, or city
laws, rules, or regulations.
4. Termination.
The Company or Executive can terminate this Agreement on thirty
(30) days'
notice to the other party; provided however this Agreement shall
terminate
immediately upon Executive's death.
5. Effects of Expiration or Termination.
(a) Expiration under Section 2 or Termination under Section 4.
If this
Agreement expires or Executive's employment with the Company
under this
Agreement is terminated pursuant to Section 4, the Company's
obligations under
this Agreement, including obligations under Section 3, shall end
except for the
Company's obligation to: (i) reimburse Executive (or his estate)
for all
out-of-pocket expenses incurred and unpaid pursuant to Section
3(b); (ii) pay to
Executive (or his estate) any salary pursuant to Sections 3(a)
and (c), actually
earned, accrued and unpaid through the date of termination and
(iii) indemnify
Executive as provided under section 3(e). All unvested options
as of the
termination of this Agreement shall be forfeited.
(b) Rights and Obligations. Termination of Executive's
employment under
this Agreement shall not affect any party's rights and
obligations under
Sections 3 (subject to the limitations set forth in Sections
5(a), 6, 7, 8, 9,
10, 11 and 12, such rights and obligations shall continue and
survive the
termination of Executive's employment and this Agreement.
6. Solicitation of Employees and Consultants. Upon expiration of
this
Agreement or termination of Executive's employment with the
Company under this
Agreement pursuant to Section 4, Executive shall not for a
period of three years
following the date of such termination, without the written
consent of the
Company, directly or indirectly:
(i) solicit, recruit, or attempt to hire any person who is then
employed
by, or is a consultant to, the Company or who, to Executive's
knowledge, was
employed by, or was a consultant to, the Company at any time
during the period
of Executive's employment with the Company under this Agreement;
or
(ii) encourage, solicit or entice any such person to terminate
his or her
employment or consultation with the Company, or employ or engage
any such person
as an employee, or independent contractor of any person or
entity other than the
Company or a Company subsidiary.
This provision will not apply to Executive's appointment of the
Company's
employees, board members or consultants to serve on the board of
directors of
another company, provided such appointment is to the board of
directors of a
company whose interests are not adverse to the Company.
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7. Covenant Not to Compete/ Non Disparagement.
(a) During the term of Executive's employment under this
Agreement and for
a period of three years following expiration of this Agreement
or the
termination of Executive's employment with the Company under
this Agreement
pursuant to Section 4, Executive shall not, directly or
indirectly, himself, or
through or for an individual, person or entity wherever
located:
(i) engage in any activities or perform any services for a
company that
specializes in the sale and custom installation of audio visual
and
home theater products for consumers or, businesses. or
(ii) be employed by, consult with, own any capital stock of, or
have any
financial interest of any kind in, any individual, person or
entity,
wherever located, for a company that specializes in the sale
and
custom installation of audio visual and home theater products
for
consumers or businesses; provided that Executive may own,
for
investment purposes up to 1% of the securities of any such
publicly
traded company whose securities (i) trade or are listed on a
national
securities exchange registered under Section 6 of the Securities
and
Exchange Act of 1934, as amended (the "Exchange Act") or (ii)
are
quoted on the National Association of Securities Dealers'
electronic
bulletin board or any other "over-the-counter market"(so long
as
Executive is not otherwise affiliated with such business).
(b) Each of the parties agrees that it will not, and will
instruct, as the
case may be, each of its respective representatives, officers
and members of its
board of directors not to, make any statements, written or oral,
which would be
reasonably likely to disparage or damage the other party.
Executive further
acknowledges and agrees that, following the expiration of the
Agreement or
termination of Executive's employment with the Company pursuant
to Section 4, he
will not make any statement about the Company or his service
thereto, or any
related matter, without the prior written consent of the
Company. Following the
expiration of this Agreement or termination of Executive's
employment with the
Company pursuant to Section 4, Executive further agrees to
provide assistance to
and shall cooperate with the Company upon its reasonable request
with respect to
matters within the scope of Executive's duties and
responsibilities during
employment. The Company agrees and acknowledges that it shall,
to the maximum
extent possible under then prevailing circumstances, coordinate
any such request
with Executive's other commitments and responsibilities to
minimize the degree
to which such request interferes with such commitments and
responsibilities. The
Company agrees that it will reimburse Executive for reasonable
travel expenses
(i.e., travel, meals, and lodging) that Executive may incur in
providing
assistance to the Company hereunder.
8. Solicitation of Company Customers. Upon expiration of this
Agreement or
termination of Executive's employment with the Company under
this Agreement
pursuant to Section 4, Executive shall not, directly or
indirectly, at any time
within three years after the date of such termination, solicit
any entity that,
to Executive's knowledge, was a customer of the Company within
the year before
the date of such termination, to perform services or supply
products for such
customer of a similar nature to those services performed or
products provided by
the Company to such customer.
9. Intellectual Property/Confidential Information; Return of
Documents.
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(a) Executive covenants and undertakes that he will not at any
time during
or after the expiration of this Agreement or termination of
Executive's
employment with the Company under this Agreement pursuant to
Section 4, in
perpetuity, reveal, divulge, or make known to any person, firm,
corporation, or
other business organization (other than the Company or its
affiliates, if any),
or use for his own account or for the account of another,
directly or
indirectly, any customer lists, pricing policies, marketing
plans or strategies,
financial information, trade secrets, "know-how", or any other
secret or
confidential information of any kind used by the Company (the
"Confidential
Information") during his employment by the Company, and made
known (whether or
not with the knowledge and permission of the Company, whether or
not developed,
devised, or otherwise created in whole or in part by the efforts
of Executive,
and whether or not a matter of public knowledge unless as a
result of authorized
disclosure) to Executive by reason of his employment by the
Company. Executive
further covenants and agrees that he shall retain and use the
Confidential
Information in trust for the sole benefit of the Company, its
successors and
assigns.
(b) Executive shall promptly communicate and disclose to the
Company all
inventions, ideas, discoveries, improvements, modifications,
writings, artistic
or creative material, or other intellectual property in any form
whatsoever
(hereinafter "Inventions"), conceived, developed, or made by him
during his
employment by the Company, whether solely or jointly with
others, and whether or
not patentable or copyrightable, (a) which relate to any matters
or business of
the type carried on or being developed by the Company, or (b)
which result from
or are suggested by any work done by him in the course of his
employment by the
Company. Executive shall also promptly communicate and disclose
to the Company
all other data obtained by him concerning the business or
affairs of the Company
in the course of his employment by the Company.
(c) All written materials, records, and documents (in any form)
made by
Executive or coming into his possession during the term of this
Agreement
concerning the business or affairs of the Company shall be the
sole property of
the Company, and, upon the expiration of this Agreement or
termination of
Executive's employment with the Company under this Agreement
pursuant to Section
4, or upon the request of the Company during the term hereof,
Executive shall
promptly deliver the original and all copies (whether physical
or electronic) of
same to the Company. Executive agrees to render to the Company
such reports of
the activities undertaken by Executive or conducted under
Executive's direction
pursuant hereto during the term hereof as the Company may
request from time to
time.
10. Company' Remedies. Executive acknowledges and agrees that
the covenants
and undertakings contained in Sections 1(b), 6, 7, 8, and 9 of
this Agreement
relate to matters which are of a special, unique and
extraordinary character and
that a violation of any of the terms of such Sections will cause
irreparable
injury to the Company, the amount of which will be difficult, if
not impossible,
to estimate or determine and which cannot be adequately
compensated. Executive
further acknowledges and agrees that the compensation paid, or
to be paid to him
hereunder, is adequate and sufficient for the covenants and
agreements he is
making hereunder. Therefore, Executive agrees that the Company,
in addition to
any other available remedies under applicable law, shall be
entitled, as a
matter of course, to an
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