EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “
Employment Agreement ” or “
Agreement ”) dated as of January 1, 2008 (the “
Effective Date ”) by and between Destination Software,
Inc., a corporation having an office and principal place of
business at 137 Hurffville Crosskeys Rd., Sewell, NJ 08080
(hereinafter referred to as the " Company ") and David
Rosenbaum, an individual residing in Cincinnati, Ohio (hereinafter
referred to as the " Employee ").
WITNESSETH :
WHEREAS, the
Employee is currently an independent contractor of Company;
and
WHEREAS, Green
Screen Interactive Software LLC (“ GSIS ”) has
acquired all of the stock of Company; and
WHEREAS,
Company and Employee desire Employee to be employed by Company
under the terms of this Employment Agreement;
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 employment
with 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 ”). In addition the parties agree to
discuss the renewal of this Agreement starting at least six (6)
months prior to the end of the Term. As used herein, the
term “ Contract Year ” shall mean each of the
four 12 month periods during the Term beginning on the Effective
Date or the anniversary of the Effective Date.
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
Seventy Five Thousand Dollars ($375,000) for each of the first two
Contract Years and Four Hundred Thousand Dollars ($400,000) for
each remaining 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 . (i) Employee shall
annually receive a bonus of $375,000 for each of the first two
Contract Years and $400,000 for each of the final two Contract
Years, payable in equal semi-annual installments within 30 days of
the end of the relevant six month period (the “ Minimum
Bonus ”). (ii) In addition, Employee shall be
eligible to receive an additional bonus based on reasonable
semi-annual North American sales and/or profits targets for Company
and GSIS, and other milestones, including, without limitation,
establishing a fully functional national sales force and
establishing direct relationships with specific major retailers,
the specifics of which are to be set on a semi-annual basis by the
Company and GSIS (the “ Additional Bonus
”). Any Additional Bonus amounts shall be payable
semi-annually, within 60 days of the end of the relevant six month
period. The Additional Bonus will be $750,000 per
Contract Year ($375,000 semi-annually) if the goals are met, but
not exceeded.
C.
Equity . Employee shall be eligible to
participate in any incentive equity option plan GSIS may have,
subject to the discretion of GSIS or its compensation committee,
taking into account Employee’s senior management role in the
Company, among other things.
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 Senior Vice
President of Sales of the Company and such other office(s) of the
Company and/or its affiliates to which he 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 President of the Company, currently Susan
Kain. 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.
B.
The Employee warrants and represents
(and breach hereof shall be cause for termination by the Company of
this Agreement for Cause) that (i) he is not under any contractual
or other obligations of any sort which will (a) prevent him from
performing fully all of his obligations hereunder, and/or (b) vest
in any other person, firm or corporation any right to recover
damages as a result of the Employee's performance hereunder, and/or
(c) permit any other person or entity to enjoin or otherwise
prevent full compliance by him hereunder; and (ii) he is not party
to, either directly or indirectly, to any agreement with COKem
International, Ltd. (“COKem”) and or Jack of All Games,
Inc. (“Jack”) except for confideantaility and
nondisclosure provisions under the prior agreement with Jack.
Employee hereby indemnifies and holds harmless Company, GSIS, their
subsidiaries, affiliates, successors, licensees and assigns, from
and against any (i) claim, liability, cost or expense including
reasonable attorneys' fees and costs, arising out of the breach or
alleged breach, of Employee’s representations, warranties,
covenants or agreements contained in this Agreement; and/or (ii)
claim, liability, cost or expense including reasonable attorneys'
fees and costs, arising out of any claim made by COKeM and/or Jack,
their parent companies, subsidiaries, affiliates, successors,
licensees and assigns, relating to any agreement(s) between such
companies and Employee.
C. Company
agrees that Employee may perform his duties and reside either in
Cincinnati, Ohio and/or Naples, Florida. Employee agrees
to travel as is necessary to perform his duties.
6.
Extent of Services . The Employee shall
devote his 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 his 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 his ability all assignments given him by the
Company.
7. Benefits
. During the Term:
A.
Vacation . The Employee shall be entitled to a
vacation of twenty (20) 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.
B.
Benefits . The Employee and his
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 and Employee’s
coverage (and that of his eligable family members) shall
be consistent with the Company’s policy for payment of
insurance premiums for its other
executives. Nowithstanding anything to the contrary
contained above, Company shall pay 100% of premiumns for all
Company-provided insurance for Employee and his eligible
dependents.
C.
Expenses . The Employee is authorized to
incur reasonable and necessary expenses 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 $500 must be approved in advance by the Company, with the
exception of air travel which Company agrees may be business
class. 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.
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. This provision
shall not apply to any equity ownership of Employee in Company,
GSIS or their subsidiaries.
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 his
employment hereunder he 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, 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 he will keep secret and confidential any and
all Confidential Information and that he 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 his employment hereunder:
(i) Communicate, divulge or otherwise
disclose any such Confidential Information to any person or entity;
and/or
(ii) 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 him on its
behalf, or generated or obtained by him during the course of his
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 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.
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 his 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 nature or kind therein except to the extent that
the Employee is required to use such Works in connection with his
employment by the Company. Without limiting the
foregoing, it will be presumed that any copyright, patent,
trademark or other right and any idea, invention, product, program,
procedure, format or material created, developed or worked on by
the Employee at any time during the Term of his employment will be
a result or proceed of the Employee’s services under this
Agreement. Furthermore, the Employee’s right to
any compensation or other amounts under this Agreement will not
constitute a lien on any results or proceeds of th
