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EXHIBIT 10.5.1
EMPLOYMENT AGREEMENT
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AGREEMENT made as of the 30th day of April, 2000 by and between
Lighthouse Landings Inc., a New Jersey corporation with offices at 195 Fairfield
Avenue, Suite 3C, West Caldwell, New Jersey 07006 (the "Company"), and John
Ferreira (the "Employee") residing at 155 President Road, Washington Township,
New Jersey 07675.
W I T N E S S E T H
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WHEREAS, the Company wishes to assure itself of the services of the
Employee, and the Employee wishes to serve in the employ of the Company, upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Employment Term.
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1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the position and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement
shall be for the period commencing May 1, 2000 and continuing through April 30,
2001, unless sooner terminated in accordance with this Agreement. The term of
the Employee's employment shall be automatically extended for a period of one
(1) year on the first and second anniversary dates of the commencement date of
the Employee's employment, respectively, unless Employee provides ninety (90)
days written notice of termination, or unless sooner terminated in accordance
with this Agreement.
2. Position, Duties. The Employee shall serve the Company as the
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Chief Financial Officer of the Company. The Employee shall report to, and shall
have such duties and responsibilities as shall be reasonably assigned to the
Employee, by the President of the Company which duties and responsibilities
shall include:
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Maximize the return on financial assets by establishing
financial policies, procedures, controls and reporting
systems; ensure legal and regulatory compliance for all
accounting and financial reporting functions; oversee cost
and general accounting, accounts receivable/collection and
payroll and risk management; provide leadership and
direction of the organization's financial operations,
including strategic planning, analysis, reporting, and
collections; all aspects of Company finance including
planning, budgeting, monitoring and all reporting in guiding
management to stated objectives; plan capital structure,
direct treasury functions and manage audit & compliance
programs; develop and implement information and financial
system strategies and objectives to meet company needs.
The Employee shall perform his duties and responsibilities hereunder faithfully
and diligently. The Employee shall devote such time and attention as is required
for the performance of his duties and responsibilities hereunder. The Employee
hereby represents that he is not bound by any confidentiality agreements or
restrictive covenants with anyone other then the Company which restrict or may
restrict his ability to perform his duties hereunder, and agrees that he will
not enter into any such agreements or covenants during the term of his
employment hereunder, except such restrictive covenants or confidentiality
agreements which are required by the Company. The Employee shall be based at the
offices of the Company for the duration of the term of this Agreement.
3. Compensation.
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3.1 Base Salary. In consideration of the performance by the Employee
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of the services set forth in Section 2 and his observance of the other covenants
set forth herein, the Company shall pay the Employee, and the Employee shall
accept, a base salary at the rate of One Hundred Thousand Dollars ($100,000.00)
per annum, payable in accordance with the standard payroll practices of the
Company, for the period commencing May 1, 2000 through December 31, 2000.
Commencing January 1, 2001, the Company shall pay the Employee, and the Employee
shall accept, a base salary at the rate of One Hundred Twenty-Five Thousand
Dollars ($125,000.00) per annum, payable in accordance with the standard payroll
practices of the Company.
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3.2 Bonus/Relocation. The Company shall pay the Employee, and the
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Employee shall accept, upon the commencement of Employee's employment under the
Agreement, a combined signing bonus and relocation payment in the amount of Five
Thousand Dollars ($5,000.00).
3.3 Options. The Company shall issue four stock options to Employee,
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as follows:
(1) Stock Option #1. The Company shall issue Stock Option #1 on
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November 1, 2000, permitting the Employee to purchase 50,000 shares of the
Company's stock within a three year period from the date of issuance, at $4.00
per share.
(2) Stock Option #2. The Company shall issue Stock Option #2
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upon the first anniversary of the commencement of Employee's employment under
the Agreement, permitting Employee to purchase 50,000 shares of the Company's
stock within a three year period from the date of issuance, at $4.00 per share.
(3) Stock Option #3. The Company shall issue Stock Option #3
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upon the second anniversary of the commencement of Employee's employment under
the Agreement, permitting Employee to purchase 100,000 shares of the Company's
stock within a three year period from the date of issuance, at $6.00 per share.
(4) Stock Option #4. The Company shall issue Stock Option #4
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upon the third anniversary of the commencement of Employee's employment under
the Agreement, permitting Employee to purchase 100,000 shares of the Company's
stock within a three year period from the date of issuance, at $7.00 per share.
All options granted hereunder shall be exercisable immediately upon a
Change of Control of the Company which shall be deemed to have occurred upon
either (A) two or more of the presently existing Board members of the Company
being replaced as Directors, or (B) the membership of the Board being increased
to a number such that the presently existing Board members no longer represent a
majority of the membership of the Board of Directors.
3.4 Annual Review. The Employee shall receive an annual review from
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the President of the Company. The Employee shall be eligible to receive merit
increases in salary and/or an annual bonus, based upon achievement of individual
and Company performance goals as
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established by the Board of Directors in its sole discretion and in amounts and
at such times as shall be determined by the Board of Directors of the Company in
its sole discretion.
4. Expense Reimbursement. During the term of the Employee's employment
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by the Company pursuant to this Agreement, consistent with the Company's
policies and procedures as may be in effect from time to time, the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by him in connection with the performance of his duties hereunder, upon
the presentation of proper accounts therefore in accordance with the Company's
policies. Employee shall be entitled to a $625.00 per month automobile allowance
and a gas charge card.
5. Other Benefits. For the period commencing May 1, 2000 through
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December 31, 2000, Employee shall be entitled to seven (7) business days paid
vacation time. Commencing January 1, 2001 through December 31, 2001, Employee
shall be entitled to receive fifteen (15) business days paid vacation time.
Commencing January 1, 2002, Employee shall be entitled to receive twenty (20)
business days paid vacation time per annum. During the term of the Employee's
employment by the Company, Employee shall be entitled to receive such other
benefits as are from time to time made available to Officers by the Board of
Directors. In addition, the Employee shall be entitled to receive (1) a term
life insurance policy on the life of the Employee in an amount equal to one and
one-half times Employee's annual base salary, and (2) disability insurance with
a 90 day waiting or elimination period.
Employee shall be covered under the Company's group health insurance plan
as soon as is administratively feasible. For the period commencing May 1, 2000
and continuing until such time as Employee is effectively covered under the
Company's group health insurance plan, Employee shall be reimbursed by the
Company for the cost of Employee's personal monthly health care insurance
premiums, not to exceed the amount of $753.00.
6. Termination of Employment.
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6.1 Death. In the event of the death of the Employee during the term
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of this Agreement, the Company shall pay to the estate or other legal
representative of the Employee the salary provided for in Section 3.1 (at the
annual rate then in effect) accrued to that date which is three
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months after the Employee's date of death and not theretofore paid, and the
estate or other legal representative of the Employee shall have no further
rights under this Agreement.
6.2 Disability. If the Employee shall become incapacitated by reason
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of sickness, accident or other physical or mental disability and shall for a
period of ninety (90) consecutive days be unable to perform his normal duties
hereunder, with or without reasonable accommodation, the employment of the
Employee hereunder may be terminated by the Company upon thirty (30) days' prior
written notice to the Employee. Promptly after such termination, the Company
shall pay to the Employee the salary provided for in Section 3.1 (at the annual
rate then in effect) accrued to the date of such termination and not theretofore
paid. Neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
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terminated by the Company at any time during the term of this Agreement for Due
Cause (as hereinafter defined). In the event of such termination, the Company
shall pay to the Employee the salary provided for in Section 3.1 (at the annual
rate then in effect) accrued to the date of such termination and not theretofore
paid to the Employee, and, after the satisfaction of any claim of the Company
against the Employee arising as a direct and proximate result of such Due Cause,
neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 7, 8, 9 and 10.
For purposes hereof, "Due Cause shall mean (a) a material breach of any of the
Employee's obligations hereunder (it being understood that any breach of the
provisions of Sections 2, 7, 8 or 9 hereof shall be considered material); (b)
the habitual abuse of alcohol or unprescribed drugs by the Employee to an extent
that such use interferes with the performance by the Employee of his
responsibilities hereunder; or (c) that the Employee, in carrying out his duties
hereunder, has been guilty of gross mismanagement resulting in material harm to
any member of the Company Group (as hereinafter defined); or (d) that the
Employee has been convicted of, or entered a plea of nolo contendere to, (I) a
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felony or (ii) any lesser crime or offense involving moral turpitude. In the
event of an occurrence under this Section 6.3, the Employee shall be given
written notice by the Company that it intends to terminate the Employee's
employment for Due Cause under this Section, which written notice shall specify
the act or acts upon the basis of which
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the Company intends so to terminate the Employee's employment. If the basis for
such written notice is an act or acts described in clause (a) or (b) above (and
not involving moral turpitude), the Employee shall be given twenty (20) days
with respect to an act or acts described in clause (a) and sixty (60) days with
respect to an act or acts described in clause (b) to cease or correct the
performance (or nonperformance) giving rise to such written notice and, upon
failure of the Employee within such twenty (20) days or sixty (60) days, as
applicable, to cease or correct such performance (or nonperformance), the
Employees employment by the Company shall automatically be terminated hereunder
for Due Cause.
6.4 Other Termination by the Company. The Company may terminate the
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Employee's employment prior to the expiration of the term of this Agreement for
whatever reason it deems appropriate; provided, however, that in the even that
such termination is not pursuant to Sections 6.1, 6.2 or 6.3, the Company shall
pay to the Employee in a lump sum one times his annual salary provided for in
Section 3.1 (at the annual rate then in effect). Neither the Employee nor the
Company shall have any further rights or obligations under this Agreement,
except as provided in Sections 7, 8, 9 and 10.
6.5 Termination by the Employee by Resignation. This Agreement may
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be terminated by the Employee, at any time upon 60 days prior written notice
(the "Resignation Notice") to the Company, upon the occurrence of a change in
the Employee's responsibilities which represents a material adverse change from
his responsibilities as described in Section 2, and which is not cured within 30
days of the Resignation Notice.
Upon any such termination in accordance with this Section 6.5, the Company
shall continue to pay to the Employee (or his estate or other legal
representative in the case of the death of the Employee subsequent to such
termination), in the same periodic installments as his annual salary was paid,
the salary provided for in Section 3.1 (at the annual rate then in effect) for a
period of six months.
6.6 Intentionally Left Blank.
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6.7 Rights to Benefits. Upon termination of employment under any
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provision contained in this Section 6, rights and benefits of the Employee, his
estate or other legal
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representative under the employee benefit plans and programs of the Company, if
any, will be determined in accordance with the terms and provisions of such
plans and programs. Neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Sections 7, 8,
9 and 10.
7. Confidential Information.
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7.1 (a) The Employee shall, during the Employee's employment with
the Company and at all times thereafter, treat all confidential material (as
hereinafter defined) of the Company or any of the Company's subsidiaries,
affiliates or parent entities (the Company and the Company's subsidiaries,
affiliates and parent entities being hereinafter collectively referred to as the
"Company Group") confidentially. The Employee shall not, without the prior
written consent of the Board of Directors of the Company, disclose such
confidential material, directly or indirectly, to any party, who at the time of
such disclosure is not an employee or agent of any member of the Company Group,
or remove from the Company's premises any notes or records relating thereto,
copies or facsimiles thereof (whether made by electronic, electrical, magnetic,
optical, laser, acoustic or other means), or any other property of any member of
the Company Group. The Employee agrees that all confidential material, together
with all notes and records of the Employee relating thereto, and all copies or
facsimiles thereof in the possession of the Employee (whether made by the
foregoing or other means) are the exclusive property of the Company.
(b) For the purposes hereof, the term "confidential material"
shall mean all information in any way concerning the activities, business or
affairs of any member of the Company Group or any of the customers of any member
of the Company Group, including, without limitation, information concerning
trade secrets, together with all sales and financial information concerning any
member of the Company Group and any and all information concerning projects in
research and development or marketing plans for any products or projects of the
Company Group, and all information concerning the practices and customers of any
member of the Company Group; provided, however, that the term "confidential
material" shall not include information which becomes generally available to the
public other than as a result of a disclosure by the Employee.
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7.2 Promptly upon the request of the Company, the Employee shall
deliver to the Company all confidential material relating to any member of the
Company Group in the possession of the Employee without retaining a copy
thereof, unless, in the written opinion of counsel for the Company delivered to
the Employee, either returning such confidential material or failing to retain a
copy thereof would violate any applicable Federal, state, local or foreign law,
in which event such confidential material shall be returned without retaining
any copies thereof as soon as practicable after such counsel advises in writing
to the Employee that the same may be lawfully done.
7.3 In the event that the Employee is required, by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process, to disclose any confidential material
relating to any member of the Company Group, the Employee shall provide the
Company with prompt notice thereof so that the Company may seek an appropriate
protective order and/or waive compliance by the Employee with the provisions
hereof.
8. Intentionally Left Blank.
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9. Intellectual Property.
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9.1 Any and all intellectual property, inventions or software made,
developed or created by the Employee (a) during the term of this Agreement or
(b) within a period of one year after the termination of the Employee's
employment with the Company or any other member of the Company Group, which
reasonably relate to the business of the Company or any other member of the
Company Group or which reasonably relate to any business conducted by the
Company during the term of the Employee's employment by the Company (each, an
"Invention"), whether at the request or suggestion of the Company or otherwise,
whether alone or in conjunction with others, and whether during regular working
hours of work or otherwise, shall be promptly and fully disclosed by the
Employee to the Board of Directors of the Company and shall be the Company's
exclusive property as against the Employee, and the Employee shall promptly
deliver to the Board of Directors all papers, drawings, models, data and other
material relating to any Invention made, developed or created by him as
aforesaid. In addition, the Employee covenants and agrees to disclose to the
Board of Directors any Invention developed or created by the Employee during the
term of this Agreement,
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whether or not such Invention relates to the business being conducted by the
Company or any other member of the Company Group at the time of development or
creation of such Invention.
9.2 The Employee hereby expressly acknowledges and agrees that any
Invention developed or created by the Employee during the term of this Agreement
which reasonably relates to the business of the Company or any other member of
the Company Group or which reasonably relates to the business conducted by the
Company during the Employee's employment by the Company shall be considered
"works made for hire" within the meaning of the Copyright Act of 1976, as
amended (17 U.S.C. (S) 101). Each such invention as well as all copies of such
Invention in whatever medium fixed or embodied, shall be owned exclusively by
the Company as of the date of creation.
9.3 The Employee shall, upon the Company's request and without any
payment therefor, execute any documents necessary or advisable in the opinion of
the Company's counsel to direct issuance of patents or copyrights of the Company
with respect to such Invention as are to be in the Company's exclusive property
as against the Employee under this Section 9 or to vest in the Company title to
such inventions as against the Employee, the expense of securing any such patent
or copyright, to be borne by the Company. In addition, the Employee agrees not
to file any patent, copyright or trademark applications related to such
Invention.
10. Equitable Relief. In the event of a breach or threatened breach by
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the Employee of any of the provisions of Sections 7, 8 or 9 of this Agreement,
the Employee hereby consents and agrees that the Company shall be entitled to
pre-judgment injunctive relief or similar equitable relief restraining the
Employee from committing or continuing any such breach or threatened breach or
granting specific performance of any act required to be performed by the
Employee under any of such provisions, without the necessity of showing any
actual damage or that money damages would not afford an adequate remedy and
without the necessity of posting any bond or other security. The parties hereto
hereby consent to the jurisdiction of the federal courts located in New Jersey
and the state courts located in such District for any proceedings under this
Section 10. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity which it may have.
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11. Successors and Assigns.
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11.1 Assignment by the Company. The Company may assign this
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Agreement to any member of the Company Group or to any entity which acquires
substantially all the assets and business of the Company, and the Employee
hereby consents to such assignment.
11.2 Assignment by the Employee. The Employee may not assign this
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Agreement or any part hereof without the prior written consent of the Board of
Directors of the Company.
12. Governing Law. This Agreement shall be deemed a contract made under,
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and for all purposes shall be construed in accordance with, the laws of New
Jersey or such other State in which the Employee's principal business office is
located if his principal business office no longer is in New Jersey applicable
to contracts to be performed entirely within such State.
13. Entire Agreement. This Agreement contains all the understandings and
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representations between the parties hereto pertaining to the subject matter
hereof and supersede all undertakings and agreements, whether oral or in
writing, if there be any, previously entered into by them with respect thereto;
provided, however, that Section 8 shall not serve as a limitation of the terms
of-any other non-competition agreement between the Employee and any member of
the Company Group.
14. Modification and Amendment; Waiver. The provisions of this Agreement
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may be modified, amended or waived, but only upon the written consent of the
party against whom enforcement of such modification, amendment or waiver is
sought and then such modification, amendment or waiver shall be effective only
to the extent set forth in such writing. No delay or failure on the part of any
party hereto in exercising any right, power or remedy hereunder shall effect or
operate as a waiver thereof, nor shall any single or partial exercise thereof or
any abandonment or discontinuance of steps to enforce such right, power or
remedy preclude any further exercise thereof or of any other right, power or
remedy.
15. Notices. All notices, requests or instructions hereunder shall be in
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writing and delivered personally, sent by telecopier or sent by registered or
certified mail, postage prepaid, as follows:
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If to the Company: To the address set forth above.
Attention: Chief Executive Officer
Telecopy No. (973) 618-
Telephone No. (973) 618-
If to the Employee:
John Ferreira
155 President Road
Washington Township, NJ 07675
Either of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered or telecopied, and two business days after the date of
mailing, if mailed.
16. Arbitration. Any controversy or claim arising out of or relating to
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this Agreement, or any breach hereof, shall, except as provided in Section 10
hereof, be settled by arbitration in accordance with the rules of the American
Arbitration Association for a single arbitrator then in effect and judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitration shall be held in the Newark, New Jersey
area.
17. Expenses. Each of the parties hereto shall bear his or its own costs
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and expenses, including attorneys fees and disbursements, incurred in connection
with this Agreement and the transactions contemplated hereby.
18. Titles. Titles of the sections of this Agreement are intended solely
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for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
19. Severability. Should any provision of this Agreement be held by a
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court of competent jurisdiction to be enforceable only if modified, such holding
shall not affect the validity of the remainder of this Agreement, the balance of
which shall continue to be binding upon the parties hereto with any such
modification to become a part hereof and treated as though originally set forth
in this Agreement. The parties further agree that any such court is expressly
authorized to
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modify any such unenforceable provision of this Agreement in lieu of severing
such unenforceable provision from this Agreement in its entirety, whether by
rewriting the offending provision, deleting any or all of the offending
provision, adding additional language to this Agreement, or by making such other
modifications as it deems warranted to carry out the intent and agreement of the
parties as embodied herein to the maximum extent permitted by law. The parties
expressly agree that this Agreement as so modified by the court shall be binding
upon and enforceable against each of them. In any event, should one or more of
the provisions of this Agreement be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and if such provision or provisions are not
modified as provided above, this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had never been set forth herein.
20. Survivorship. The respective rights and obligations of the parties
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hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
LIGHTHOUSE LANDINGS, INC., Employer
By: /s/ Anthony Colasanti
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Name:
Title:
/s/ John Ferreira
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John Ferreira, Employee
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