Exhibit 10.2
EMPLOYMENT AGREEMENT
This agreement is made as of the 2nd day of September, 1998 by and
between Frontline Communications Corporation (the "Company"), and AMY WAGNER
("Employee").
WHEREAS, the Employee acknowledges that her talents, knowledge and
services to the Company are of a special, unique, and extraordinary character
and are of particular and peculiar benefit and importance to the Company; and
WHEREAS, the Company desires to obtain assurances that the Employee
will devote her best efforts to her employment with the Company and that she
will not solicit other employees of the Company to terminate their relationships
with the Company; and
WHEREAS, the continued availability of Employee's services is regarded
by the Company as vitally important to its continued corporate growth and
success, and Employee desires to formalize her employment with employer and to
maximize the security of her position.
NOW, THEREFORE, in consideration of the employment by the Company of
the Employee and mutual covenants and conditions contained herein, and for other
good and valuable consideration, receipt of which is hereby acknowledged, it is
agreed as follows:
1. EMPLOYMENT: The Company agrees to employ Employee in the executive
capacity of Vice President and Corporate Counsel, and Employee accepts
employment upon the terms and conditions set forth herein.
2. TERM: Subject to the provisions for termination as provided herein,
the term of this agreement shall begin on September 2nd, 1998 and shall
terminate on September 2, 2001. This agreement shall be automatically renewed
for successive one (1) year terms unless either party gives notice of its
intention not to renew no less than thirty (30) days prior to the expiration of
the existing term.
3. COMPENSATION: As compensation for the services to be rendered by
Employee, the Company agrees to provide employee with a base salary at the
annual rate of not less than ninety-eight thousand dollars ($98,000). The Board
of Directors shall meet at least annually for the purpose of determining
employee's annual base salary based upon the apparent value of her services. The
payment of the above amount shall constitute full satisfaction and discharge of
the obligations of the Company under this agreement, but are without prejudice
to Employee's rights under any employee benefit plan heretofore or hereafter
provided by the Company.
In addition hereto, upon execution of this agreement employee shall
be issued seventy-five thousand (75,000) of the Company's stock options, which
shall vest to the employee as follows: fifteen thousand (15,000) upon the
execution hereof; twenty-five thousand (25,000) at the one year anniversary date
of employee's employment with the Company; and thirty-five thousand (35,000) at
the two year anniversary date of employee's employment with the Company,
pursuant to and in accordance with the standard Company stock option plan and
the employee's stock option agreement with the Company. The vesting of the
employee's options shall be subject to shareholder approval of an increase in
the Company's stock option plan, if necessary, and shall also be subject to the
provisions of paragraph 11 of this Agreement.
4. DUTIES: Employee shall serve as Vice-President and Corporate Counsel
of the Company, and shall assume other duties as the Board of Directors may
assign.
Employee agrees that she will at all times faithfully, industriously
and to the best of her ability, experience and talents, perform all of the
duties that may be required of and from her pursuant to the express and implicit
terms of this agreement, to the reasonable satisfaction of the Company. Such
duties shall be rendered at the Company's facility located at Rockland County,
New York and at such other place or places within or without the State of New
York as the Company shall in good faith require or as the interest, needs,
business, or opportunities of the Company shall require.
5. EXPENSES: Employee is authorized to incur reasonable expenses on
behalf of the Company in performing her duties, including expenses for general
administration of the Company's office, travel, transportation, entertainment,
gifts and similar items, which expenses shall be paid, or reimbursed to
Employee, by the Company, provided that the Employee furnishes to the Company
appropriate supporting documentation of such expenses, and further provided that
this authorization to incur such expenses is not hereafter withdrawn or
otherwise restricted by the Board of Directors. Additionally, Employee shall
receive a vehicle use and maintenance allowance of $400 per month, either paid
directly to the employee, or paid pursuant to Employee's instructions, the use
of a Company mobile telephone for Company business, and an annual membership in
the Blue Hill Fitness Center..
6. VACATIONS: Employee shall be entitled each calendar year to a
vacation of twenty (20) weekdays, no two of which need be consecutive, during
which time compensation shall be paid in full. The Company shall not be required
to compensate Employee for Vacation days not taken by the Employee in any given
year, and the Employee cannot accrue or accumulate unused vacation days in
subsequent years. Employee shall endeavor in good faith to schedule such
vacation leave at times and in a manner which does not unreasonably impede the
operation of the Company.
7. BONUSES: The Company may, but shall not be obligated to, pay to
the Employee, in addition to her base salary, a cash bonus. Payment of any such
bonus, and the amount of any such bonus shall be at the sole discretion of the
Board of Directors.
8. EMPLOYEE MANUAL: The Company has established an Employee Manual,
receipt of which is hereby acknowledged by the Employee, which manual, as the
same may from time to time be amended or supplemented at the Company's sole
discretion, is hereby incorporated in and made a part of this agreement.
9. EMPLOYEE BENEFITS: The Employee shall be entitled to participate in
any qualified Stock Option Plan, Pension Plan, qualified Profit Sharing Plan,
Group Term Life Insurance Plan, Employee Health Plan, and any other employee
benefit plan currently in place or that may be established by the Company, such
participation being in accordance with the terms of any such plans, and such
participation shall be available only upon the Company having or establishing
such plans. Employee shall be provided with the Company's existing health
insurance plan, at a cost to the employee of no more than that paid by other
Executive level employees (currently being 5% of the cost of such coverage).
Employee shall be reimbursed up to 95% of the cost of gap health coverage during
any required waiting period under the Company plan.
10. TERMINATION: A. The Company may at any time terminate the
employment of the Employee for cause upon written notice to Employee. Cause
shall exist if the act(s) or conduct of the Employee make it unreasonable to
require the Company to continue to retain Employee in its employment, such as,
but not limited to, improper disclosure of any information concerning any matter
affecting or relating to the Company or the business of the Company, dishonesty,
activities harmful to the reputation of the Company, refusal to perform or
neglect of the substantive duties assigned to Employee, or breach of any of the
provisions of this agreement. If Employee is terminated for cause, she shall be
entitled to no severance pay and shall be entitled to no bonus payment that
might otherwise be owed to her even if she worked for the entire year. In the
event of termination under this section, the Company shall pay Employee all
amounts which are then accrued but unpaid within thirty (30) days after the date
of notice. Employer shall have no further or additional liability to Employee.
B. The Employee may only terminate this agreement and her employment
with the Company upon prior approval of a majority of the Board of Directors.
11. CHANGE IN OWNERSHIP OR CONTROL OF COMPANY: A. Upon a change in the
ownership or effective control of the Company, the Employee shall be paid, as
additional compensation, an amount equal to 295% of the Employee's annual base
salary at the time of any such change in ownership or effective control of the
Company. Such amount shall be paid within thirty (30) days of the happening of
such change in ownership or effective control of the Company. Additionally, upon
such change in ownership or effective control of the Company, all Company stock
options issued to the employee, but not yet vested, shall immediately vest.
B. The Employee shall have the right, at any time following a change in
the ownership or effective control of the Company, to terminate this employment
agreement, upon fourteen (14) written notice to the Company.
C. For purposes of this paragraph, a "change in the ownership or
effective control of the Company" shall mean the happening of any of the
following events:
(1). Any person (as that term is defined in Section 13(d) of the
Securities and Exchange Act of 1934, as amended) is or becomes the
beneficial owner, directly or indirectly, of securities of the
Corporation representing 35% or more of the combined voting power of
the Company's then outstanding voting securities, or such lesser amount
as is sufficient to obtain a controlling interest in the Company;
(2). In any one year period, individuals who at the beginning of such
period constitute the Board cease for any reason to constitute a least
a majority thereof at or prior to the conclusion of such one year
period;
(3). The sale, transfer and/or assignment of a substantial portion of
the assets of the Company.
12. DISABILITY: If Employee is unable to perform her services by reason
of illness or incapacity for a period of more than eight (8) consecutive weeks
the compensation otherwise payable during the continued period of illness or
incapacity shall be reduced by fifty (50%) percent. Employee's full compensation
shall be reinstated upon her return to employment and the discharge of her full
duties. Notwithstanding the foregoing, \the Company may terminate this agreement
at any time after Employee has been absent from employment, for whatever cause,
for a continuous period of more than ninety calendar days and all obligations of
the Company shall cease upon that termination.
13. CONFIDENTIALITY: The Employee will not at any time during or after
her employment with the Company, directly or indirectly, divulge, disclose,
disseminate, sell, exchange or communicate to any person, firm, or corporation
in any manner whatsoever, other than in the normal course of performing her
duties for the Company, any information concerning any matter affecting or
relating to the Company or the business of the Company. The Employee
specifically agrees and recognizes that all information, whether written or
otherwise, regarding the Company's business, including but not limited to,
information regarding customers, customer lists, employees, employee salaries,
costs, prices, services, formulae, compositions, machines, equipment, apparatus,
systems, processes, manufacturing procedures, operating procedures, operations,
potential acquisitions, new location plans, prospective and executed contracts,
prospective projects and other business arrangements, and sources of supply, is
presumed to be important, material and confidential information of the Company
for purposes of this agreement, except to the extent that such information may
be otherwise lawfully and readily available to the general public. Employee
agrees that all of this information is a trade secret owned exclusively by the
Company which shall at all times be kept confidential. Employee will at no time,
either during her employment with the Company or at any time thereafter, employ
or make use of, for her own profit or the profit of any person, firm or
corporation other than the Company, any of the trade secrets acquired by him
during or as a result of her employment with the Company.
The Employee agrees that any business opportunity, any
patentable device, apparatus, method, process or manner of manufacturing, and
any other invention, equipment, machinery, process or device, that Employee
discovers, develops, invents or becomes aware of during the period of her
employment with the Company, shall be the sole and exclusive property of the
Company, and shall be used solely and exclusively for the benefit of the
Company. The Employee agrees to promptly turn over, and to make full and prompt
disclosure of, all such information, devices, inventions, processes, and methods
to the Company. The Employee will not disclose to any person or persons other
than the proper officer of the Company any such information, device, process,
invention or method discovered while in the employ of the Company. The above
provision shall be applicable even though the discovery is made by Employee
outside working hours fixed by the Company and/or outside the place of
employment furnished by the Company.
14. NON-COMPETITION / NON-SOLICITATION:For a period of two (2) years
after termination of her employment with the Company, the Employee agrees that
she shall not directly or indirectly, without the prior written consent of the
Company, and whether as an individual, proprietor, stockholder, partner,
officer, director, employee or otherwise, or in any other capacity whatsoever:
A. Engage in any business which is competitive with that of the
Company;
B. Solicit or entice any officer, director, employee or other
individual to leave her or her employment with the Company, or to compete in any
way with the business of the Company, or to violate the terms of any employment,
non-competition, confidentiality or similar agreement with the Company.
15. REMEDIES: Without limiting the rights of the Company to pursue any
and all other legal and equitable remedies that might be available to it as a
result of any violation by the Employee of the covenants in this agreement, it
is agreed that:
A. The services to be rendered by Employee under this agreement are of
a special, unique, unusual and extraordinary character which give them a
peculiar value, and the loss of those services cannot be reasonably and
adequately compensated in damages in an action at law; and
B. Remedies other than injunctive relief cannot fully compensate the
Company for violation of paragraphs "13" and "14" of this Agreement.
Accordingly, the Company shall be entitled to injunctive
relief to prevent violations of such paragraphs or continuing violations
thereof. All of Employee's covenants in and obligations under paragraphs "13"
and "14" of this agreement shall continue in effect notwithstanding any
termination of Employee's employment, whether by the Company or by the Employee,
upon expiration or otherwise, and whether or not pursuant to the terms of this
agreement.
16. NOTICES: All notices required or permitted to be given under this
agreement shall be sufficient if in writing and if sent by certified mail,
return receipt requested, to the Employee at her residence as indicated in
Company personnel records, or at such other address designated by the Employee,
and to the Company at its principal office currently located at Rockland County,
New York.
17. SUCCESSORS AND ASSIGNS: This agreement shall be binding upon and
shall inure to the benefit of the parties, their successors, assigns and all
other successors in interest.
18. CHOICE OF LAW: This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
19. ENTIRE AGREEMENT: This agreement contains the entire agreement of
the parties. It may not be changed orally but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
20. WAIVER: The waiver of any breach of any provision of this agreement
by either party shall not operate or be construed as a subsequent waiver by
either party of any term or condition of this agreement.
21. HEADINGS: The headings in this agreement are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this agreement.
22. SEVERABILITY: The parties intend and agree that each covenant and
condition contained in this agreement shall be a separate and distinct covenant.
If any provision of this agreement is found to be invalid, illegal, or
unenforceable, the remaining provisions shall not be affected.
IN WITNESS THEREOF, the parties have executed this agreement as of the
date written above.
Frontline Communications Corporation
by: /s/ Stephen J. Cole-Hatchard
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Stephen J. Cole-Hatchard
President/CEO
/s/ Amy Wagner
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Amy Wagner
Employee