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EXHIBIT
10.2
Form
of Employment Agreement, dated as of August 1, 2008, by and
among Audience Response Systems, Inc., Campus Group Companies,
Inc., iDNA, Inc. and Steven Campus.
EXHIBIT C
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this
“
Agreement ”),
effective as of August 1, 2008 (the “
Effective Date ”),
by and among STEVEN
CAMPUS (“
Executive ”),
AUDIENCE
RESPONSE SYSTEMS, INC. (“
ARSI ”),
a New York corporation and CAMPUS
GROUP COMPANIES, INC. (“
CGCI ”),
a New York corporation
(ARSI
and CGCI, “
Employers ”
and each an “
Employer ”)
are hereinafter sometimes referred to collectively as the
“
Parties ”
and each as a “
Party .”
NOW, THEREFORE ,
in consideration of the premises and the mutual covenants
hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1.
Employment of Executive
Each
Employer hereby agrees to employ Executive, and Executive
hereby agrees to be and remain in the employ of each Employer,
upon the terms and conditions hereinafter set
forth.
2.
Employment Period; Employment Year
2.1
Employment Period .
Subject to earlier termination as provided in
Section 5 hereof,
the term of Executive's employment under this Agreement shall
commence as of the Effective Date and shall continue for a period
(the “
Initial Employment Period ”)
ending on July 31, 2011. As used herein, “
Employment Period ”
means the Initial Employment Period plus any extension of the term
of Executive's employment under this Agreement that has been made
as provided above.
2.2
Employment Year .
As
used herein, an “
Employment Year ”
means the period commencing on the date hereof and ending on July
31, 2009 and each successive twelve month period commencing on
August 1
st and
ending on the following July 31
st .
3.
Duties and Responsibilities; Place of
Performance
3.1.
Duties and Responsibilities .
During the Employment Period, Executive shall have the titles of,
and shall serve as, President of each of Employers and their
subsidiaries, if any. During the Employment Period, Executive shall
devote all of his business time to Employers and their subsidiaries
(if any) and to his duties and responsibilities hereunder. During
the Employment Period, Executive shall perform such duties and
obligations (not inconsistent with his positions as President of
each of Employers) as may be assigned to him from time to time by
the Board of Directors of any Employer (the “
Board ”)
or by the Chairman or Chief Executive Officer of iDNA, Inc.
(“iDNA”), parent to each of the Employers. During the
Employment Period, Executive shall (subject to the next following
sentence) have authority and responsibility to manage all
day-to-day business and operations of each of Employers and their
subsidiaries (if any), including the hiring of all personnel.
Notwithstanding anything contained herein to the contrary,
Executive shall not have authority or responsibility, without the
consent or approval of the Board of the relevant Employer or the
Chairman or Chief Executive Officer of iDNA, to cause any Employer
(or any subsidiary of any Employer) to take (or allow or permit any
Employer (or any subsidiary of any Employer) to take), and
Executive shall not cause any Employer (or any subsidiary of any
Employer) to take (or allow or permit any Employer (or any
subsidiary of any Employer) to take), any of the following actions:
(a) terminate or cease any business or line of business of any
Employer (or such subsidiary) if such business or line of business
has generated revenues of at least fifty thousand dollars ($50,000)
during the preceding Fiscal Year (as hereinafter defined); (b)
commence any new business or line of business or acquire any new
business or line of business from any Person (as hereinafter
defined); (c) grant any security interest in, or lien on, any of
the assets or property of any Employer (or such subsidiary), unless
the aggregate amount of all of the obligations secured by such
grant and all prior grants does not exceed $50,000; (d) sell,
transfer or otherwise dispose of any of the assets or property of
any Employer (or such subsidiary) other than in the ordinary course
of its business consistent with past practices (which shall, to the
extent applicable, include the past practices of the relevant
Campus Companies); (e) loan or advance any funds; (f) guaranty or
otherwise act as a surety with respect to any obligations of any
other Person; (g) borrow any funds or money, unless the aggregate
amount of all funds and money so borrowed, inclusive of any funds
or money previously borrowed, does not exceed $50,000; (h) make or
incur any expenditure (other than a capital expenditure) in excess
of one hundred thousand dollars ($100,000) unless such expenditure
has been incurred in order to enable an Employer (or such
subsidiary) to fulfill its obligation under a contract entered into
by such Employer (or such subsidiary) with a client or customer and
such expenditure (I) is provided to be recovered by such Employer
(or such subsidiary) pursuant to such contract or (II) has been
included in the pricing of such contract; (i) make or incur any
capital expenditure (including, without limitation, pursuant to any
capitalized lease) unless such capital expenditure (A) has been
incurred in order to enable an Employer (or such subsidiary) to
fulfill its obligation under a contract entered into by such
Employer (or such subsidiary) with a client or customer and such
capital expenditure (I) is provided to be recovered by such
Employer (or such subsidiary) pursuant to such contract or (II) has
been included in the pricing of such contract or (B) (I) such
capital expenditure, when aggregated with all other capital
expenditures that have been made or incurred during the Fiscal
Year, does not exceed one-hundred thousand dollars ($100,000) and
(II) such capital expenditure is not made or incurred during or for
any Fiscal Year if the Available Cash Flow (as hereinafter defined)
for such Fiscal Year is or would be (whether or not after taking
into consideration such capital expenditure) less than one million
dollars ($1,000,000); (j) enter into or make any contract,
agreement or other commitment that (i) would require payments
during any consecutive twelve-month period in excess of one hundred
thousand dollars ($100,000)
or
(ii) have a term that is either (A) more than one (1) year or (B)
extends beyond the end of the Employment Period; (k) enter into any
contract with, or make any commitment to, any affiliate of
Executive; (l) hire any executive officer (or otherwise retain a
person to provide services normally provided by an executive
officer); or (m) grant to any employee any compensation package
(including, without limitation, any employee or fringe benefits)
not consistent with such Employer’s (or such
subsidiary’s) customary past policies or practices as
approved by the Board of such Employer (or such subsidiary). If
Executive shall have made a request for authority and permission to
do any of the things set forth in the foregoing clauses (a) through
(m) and shall not have received consent or approval therefor from
the Board of the relevant Employer or the Chairman or Chief
Executive Officer of iDNA, then, at Executive’s request, such
request shall be referred to the Board of Directors of iDNA for its
consideration and Executive shall be given an opportunity to
convince such Board to grant such request. As used herein,
“
Person ”
means any individual, corporation, partnership, limited liability
company, trust, business trust, association or other entity,
and “
Fiscal Year ”
means any twelve consecutive month period beginning August 1
st and
ending on the following July 31
st.
3.2.
Place of Performance .
In connection with his employment during the Employment Period,
Executive shall be based in New York, New York or such other
principal offices of an Employer or any of its subsidiaries (if
any) as may be established in the future by the respective Board,
which principal offices shall not (without the written consent of
Executive, which consent shall not be unreasonably withheld or
delayed) be moved more than twenty-five (25) miles (measured in a
straight line and not over streets or roadways) from the location
of the current offices in Bohemia or New York, New York;
provided ,
however ,
that the principal offices of any Employer (or any of its
subsidiaries) may be moved without Executive’s consent if the
distance from Executive’s then primary residence to the new
location is not greater (measured in a straight line and not over
streets or roadways) than the distance from Executive’s then
primary residence to the then existing location of the principal
offices of such Employer (or any of its subsidiaries). Executive
shall not be required, without his consent, to undertake more
extensive travel than the travel in which he has been engaged in
connection with the prior business of any of
Employers.
4.
Compensation and Related Matters
4.1
Base Salary .
Employers shall pay to Executive an aggregate base salary (the
“
Base Salary ”),
which during the First Employment Year shall be at the rate of one
hundred thousand dollars ($100,000) per annum (the “
Initial Base Salary ”).
The Base Salary shall be paid to Executive in arrears in accordance
with the customary practices of iDNA as applied to its executive
officers.
4.2
Discretionary Bonus .
In addition to his Base Salary and any performance bonus to which
he may be entitled pursuant to
Section 4.2 hereof,
Executive shall be entitled to such bonuses (if any), in such
amounts and at such times, as the respective Boards, in their sole
and absolute discretion, may approve.
4.3
Automobile Allowance .
Employers shall provide Executive with an aggregate monthly
allowance during the Employment Period of $1,250 to cover the costs
of a leased automobile, including maintenance, fuel and
insurance.
4.4
Other Benefits .
During the Employment Period, to the extent Executive is eligible
and qualifies under their respective terms, Executive shall be
entitled to receive such fringe benefits as are from time to time
hereafter generally provided by Employers to their senior
management employees or other employees (other than those provided
under or pursuant to separately negotiated individual employment
agreements or arrangements) under any pension or retirement plan,
disability plan or insurance, group life insurance, medical
insurance, accidental death and dismemberment insurance, travel
accident insurance or other similar plan or program of the
respective Employer. Subject to Executive being eligible and
qualifying therefor, Employers shall, in a manner and amount
consistent with insurance generally provided by iDNA to its senior
executive officers, provide short-term and long-term disability
insurance for Executive.
4.5
Expense Reimbursement .
Employers shall reimburse Executive for all business expenses
reasonably incurred by him in the performance of his duties under
this Agreement upon his presentation of signed, itemized accounts
of such expenditures, all in accordance with Employers’
Policies And Practices. As used herein, “
Employers’ Policies and Practices
”
means the policies, procedures and practices of Employers, as
approved by the Boards of Employers and in effect from time to
time, which policies, procedures and practices are anticipated to
be the same or substantially the same as the corresponding policies
and procedures applicable to iDNA’s senior
management.
4.6
Vacations .
Executive
shall be entitled to twenty (20) days paid vacation for each
Employment Year during the Employment Period, in
accordance with Employers’ Policies and Practices. Executive
shall also be entitled to paid holidays and personal days in
accordance with Employers’ Policies and Practices.
5.
Termination of Employment
5.1
Termination Without Cause; Voluntary Termination by
Executive .
Employers may, by written notice to Executive at any time following
the end of the third Employment Year, terminate the Employment
Period and this Agreement without Cause (as defined below).
Executive
may, by written notice to Employers and iDNA at any time during the
Employment Period, voluntarily resign from Employers and terminate
the Employment Period and
this Agreement by
giving written notice of his intention to do so at least ninety
(90) days in advance. A termination under this
Section 5.1 shall
be effective immediately or, in the case of such a voluntary
resignation, upon the date set forth in such written
notice.
5.2
By Employers for Cause .
Employers may, at any time during the Employment Period, by written
notice to Executive, terminate the Employment Period and this
Agreement for Cause, which termination shall be effective
immediately except as otherwise provided below. Such
notice shall set forth in reasonable detail the basis for such
termination. In the event that it is reasonably practical for
Executive to cure or correct the circumstances set forth in such
notice, the termination shall not be effective until the date that
is thirty (30) days following the date on which such notice is
given, and the circumstances set forth in the notice shall not
constitute “Cause” if within such 30 days
Executive
cures
or corrects such circumstances. Employers shall have "
Cause "
to terminate Executive's employment hereunder upon
Executive's:
(a)
fraud,
embezzlement or any other illegal act committed intentionally
by Executive in connection with Executive's duties as an
executive of any Employer or any subsidiary or affiliate of
any Employer that causes or may reasonably be expected to
cause substantial economic injury to any Employer or any
subsidiary or affiliate of any Employer;
(b)
conviction
of any felony that causes or may reasonably be expected to
cause substantial economic injury to any Employer or any
subsidiary or affiliate of any Employer;
(c)
breach
or violate any term or condition of this Agreement or of that
certain Non-Competition
And Non-Solicitation Agreement, dated as of even date
herewith, by and among iDNA, Employers and Executive
;
or
(d)
willful
or grossly negligent commission of any other act or failure to
act that causes or may reasonably be expected (as of the time
of such occurrence) to cause substantial economic injury to or
substantial injury to the reputation of any
Employer
or any subsidiary or affiliate of any
Employer,
including, without limitation, any material violation of the
Foreign Corrupt Practices Act, as described below. An act or
failure to act on the part of Executive shall be considered
“willful” if done, or omitted to be done, by
Executive in bad faith or without a reasonable belief that the
act or omission was in the best interest of
Employers.
5.3
By Executive for Good Reason .
Executive may, at any time during the Employment Period by written
notice to Employers and iDNA, terminate the Employment Period and
this Agreement for Good Reason (as defined below), which
termination shall be effective immediately subject to the notice
and cure period provided for below. For the purposes hereof,
“
Good Reason ”
means any of the following without Executive's consent: (A) subject
to
Section 3 above,
a material and adverse change in the nature and scope of
Executive's authority and duties or (B) a material breach of this
Agreement by Employers (including, but not limited to, failure to
pay any amount due to Executive when due);
provided ,
however ,
that the circumstances set forth in the foregoing clauses (A) and
(B) will not constitute Good Reason unless Executive shall have
given Employers and iDNA written notice of his election to
terminate this Agreement for Good Reason (which notice shall set
forth in reasonable detail the circumstances giving rise to such
election to terminate) and Employers shall have failed to cure or
correct such circumstances within thirty (30) days of their receipt
of such notice.
5.4
Disability .
During the Employment Period, if, as a result of physical or mental
incapacity or infirmity, Executive shall be unable to perform any
of his duties under this Agreement for (i) a period of at least one
hundred and twenty (120) consecutive days or (ii) periods
aggregating at least 180 days during any period of twelve (12)
consecutive months (each a “
Disability Period ”),
and at the end of the Disability Period there is no reasonable
probability that Executive can promptly resume his duties
hereunder, Executive shall be deemed disabled (the “
Disability ”)
and Employers, by written notice to Executive, shall have the right
to terminate the Employment Period and this Agreement for
Disability either at, as of or after the end of the Disability
Period. The existence of the Disability shall be determined by a
reputable, licensed physician. The parties (with iDNA acting on
behalf of Employers for this purpose) shall attempt to agree on
such a physician. In the event the parties are unable to so agree,
such physician shall be selected by an arbitrator provided by
the American
Arbitration Association in New York, New York. Executive
shall cooperate in all reasonable respects to enable an examination
to be made by such physician.
5.5
Death .
The Employment Period and this Agreement shall terminate on the
date of Executive's death.
6.
Termination Compensation
6.1
Termination by Employer without Cause or by Executive for Good
Reason .
If the Employment Period is terminated by Employers without Cause
or by Executive for Good Reason, Employers will pay to Executive
the lesser of (a) one dollar ($1) less than the amount that would
constitute a “excess parachute payment” under Section
280G of the Internal Revenue Code of 1986, as amended (the
“
Code ”),
or (b) the amount of Base Salary to which Executive would be
entitled for the balance of the Initial Employment Period or, if
the term of Executive’s employment hereunder has been
extended pursuant to
Section 2.1 hereof,
for the balance of the Employment Period. Employers shall pay to
Executive such amount in a lump sum cash payment as soon as
practicable following the effective date of such termination.
Employers shall
also continue to provide Executive with all employee benefits that
he was participating in or receiving at the effective
date of termination for
a period (the “
Post-Termination Period ”)
of one year or, if shorter, until the
end of the Initial Employment Period or, if the term of
Executive’s employment hereunder has been extended pursuant
to
Section 2.1 hereof,
until the end of the Employment Period ;
provided ,
however ,
that, to the extent, as a consequence of such termination,
Executive is not eligible to receive or does not qualify for such
benefits for all or a portion of the Post-Termination Period,
Executive shall be entitled to receive from Employers an amount (on
a tax effective basis) equal to the out-
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