EX-10.10.1



 




EXHIBIT 10.10.1




EMPLOYMENT AND NONCOMPETITION AGREEMENT




          THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (this “Agreement”), dated as of December
22, 2000, is between George Chamoun, an individual (“Employee”), and CKMP, Inc., a New York
corporation (the “Company”).




R E C I T A L S:




          WHEREAS, Employee is one of the Company’s principal stockholders, and owns 3,795,516 shares
(the “Employee Shares”) of common stock, $.01 par value per share, of the Company (“Common Shares”)
as of the date of this Agreement.




          NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein,
the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:




     1. Definitions. The following terms, when capitalized, shall have the meanings
set forth below:



          “Board” shall mean the Board of Directors of the Company.




          “Business” shall have the meaning provided in the Recitals to this Agreement.




          “Cause” shall mean a reasonable and good faith determination by a majority of the Board that the Employee’s performance is inadequate.




          “Confidential Information” shall mean information that, although not a Trade Secret,
is not in the public domain and includes, but is not limited to, sales and marketing information,
customer account records, training and operations materials and memoranda, personnel records,
pricing and financial information relating to the business, accounts, customers, employees and
affairs of the Company and any other similar information that is not a Trade Secret.




          “Disability” shall mean physical or mental incapacity of Employee which prevents the
performance of Employee’s obligations hereunder, and which continues for a consecutive period of 90
days or longer or an aggregate period of 120 days or longer during any consecutive twelve-month
period.




          “Material Transaction” shall mean any of the following: (a) a reorganization, merger
or consolidation involving the Company or the sale of all or substantially all of the assets of the
Company to another person or entity (unless, following any such reorganization, merger,
consolidation or sale, all or substantially all of the shareholders of the Company immediately
prior to such transaction own, directly or indirectly, more than 50% the combined voting power of
the then-outstanding voting securities of the corporation resulting from such transaction
(including, without limitation, a corporation that, as a result of such transaction, owns the
Company or all or substantially all of the Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership immediately prior to




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such transaction), and (b) the acquisition by a person or group of a majority of the outstanding
voting capital stock of the Company.




          “Noncompetition Period” shall mean the period of time consisting of the term of
Employee’s employment with the Company and a period of two (2) years following the termination of
Employee’s employment hereunder for any reason by the Company or by Employee.




          “Services” shall have the meaning described in Section 5.




          “Territory”shall mean the United States, Canada and in any other country where the Company
has generated revenue.




          “Trade Secret” shall mean (i) any scientific or technical information, program, software,
design, process, procedure, formula, invention or improvement that is secret and of value and (ii)
information that is secret and of value, including, but not limited to, technical or nontechnical
data, formula patterns, compilations, programs, software, devices, methods, techniques, drawings,
processes, financial data, and lists of actual or potential customers which the Company takes
reasonable efforts to protect from disclosure.




     2. Termination of Existing Agreement. The existing agreement relating to Employee’s
employment with the Company, and all other agreements as to Employee’s employment, are hereby
terminated in all respects and any and all existing or future obligations of the Company pursuant
thereto, if any, are hereby terminated without having to be satisfied by the Company. The Company and Employee acknowledge that this Agreement supercedes in all
respects any such existing agreement and all other agreements as to Employee’s employment with
regard to the matters set forth therein.



     3. Employment At Will. Upon execution of this Agreement, Employee shall be employed
by the Company on an “at will” basis and Employee’s employment hereunder by the Company shall
continue for such time as the Company is in need of, or desirous of, the Services. It is expressly
understood and agreed between the Company and Employee, subject in all events to Employee’s right
to terminate employment, that the duration of Employee’s employment are unspecified and rest in
the sole discretion of the Company.



     4. Compensation.




     (a) The Company shall pay to Employee an annual salary of $125,000 (the “Base
Salary”) for each calendar year or portion thereof (prorated for the number of days in a
partial calendar year) while Employee performs the Services, such amount to be payable in
accordance with the Company’s standard practices in the payment of salaries to its salaried
executives. Such Base Salary shall be subject to an annual review conducted jointly by the
Company and Employee on or about each anniversary of this Agreement.




     (b) In addition to the Base Salary, during the term of this Agreement Employee shall
be eligible to receive bonuses (each, a “Bonus”) at the discretion of the Compensation
Committee of the Board pursuant to this Section 4(b), payable, if earned, pursuant to
such



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bonus program, if any, of the Company as may be in effect from time to time for
executives of the Company, pro-rated to the extent paid for a period of less than twelve
months.




     (c) All payments made to Employee pursuant to this Section 4 shall be subject to
withholding on account of applicable federal, state and local taxes and other payroll taxes.



     5. Duties. Employee shall be employed as a key executive officer of the Company with
such title as determined by the Board of Directors of the Company and shall perform such duties as
are consistent therewith, and shall have such other duties as the Board of Directors of the Company
in its discretion designates, consistent with those of a senior executive (the “Services”).
Employee shall devote his full business time and efforts to the business and interest of the
Company. Employee shall diligently perform his obligations and discharge his duties under this
Agreement. Employee shall adhere to all ethical practices and other reasonable rules and
regulations established by the Company.



     6. Noncompetition; Proprietary Information.




     (a) During the Noncompetition Period, Employee shall not, directly or indirectly,
either individually, in partnership, jointly, or in conjunction with any person, firm,
partnership, limited liability company, corporation, or unincorporated association. of any
kind, whether as principal, agent, shareholder, employee, or in any other capacity
whatsoever:




     (i) engage in any business in the Territory which competes with the
Business of the Company (the “Business”);




     (ii) solicit or contact the Company’s customers or potential customers
on behalf of, invest in, obtain any interest in, advise, lend money to, or
guarantee the debts or obligations of any person, firm, partnership, limited
liability company, corporation, or unincorporated association of any kind, which is
engaged in the Territory in any business which competes with the Business;




     (iii) solicit or accept business from any of the Company’s customers or
potential customers, for the purposes of providing products or services in the
Territory which are the same as or substantially similar to those provided by the
Company in connection with its conduct of the Business; or




     (iv) persuade or attempt to persuade any employee of the Company to
terminate his or her service with the Company.




For purposes of this Agreement, “competes” with the Business means actively engaging in a
material manner or otherwise materially competing in the same or a similar tine of business
as the Company.




     (b) During Employee’s employment with the Company and thereafter, Employee shall not
use, reveal or divulge any Trade Secrets or Confidential Information



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relating to the Business. Notwithstanding the foregoing, Employee shall not be subject to the
restrictions set forth in this Section 6 with respect to information that:




     (i) becomes generally available to the public other than as a result of
disclosure by Employee or his agents or representatives;




     (ii) becomes available to Employee on a non-confidential basis from a source
other than the Company or its agents, provided that such source lawfully obtained such
information and is not bound by a confidentiality obligation not to disclose such
information; or




     (iii) is required to be disclosed by law.




     (c) Notwithstanding anything in this Agreement to the contrary, nothing shall
prohibit (i) any investment or loan by Employee in or to any enterprise which amounts to less than
5% of the equity or debt, respectively, of such enterprise or (ii) service as a member of the
board of any enterprise that does not compete with the Business. In the event Employee is a
member, partner, shareholder or other owner of a venture capital or other investment fund (a
“Fund”), the aforementioned 5% will be calculated on the basis of Employee’s percentage interest
in the Fund multiplied by the Fund’s percentage ownership interest on a fully diluted basis in
the competitive enterprise. For example, if Employee owned a 20% interest in the Fund, and the
Fund owned a 20% interest on a fully diluted basis in a competitive business, then Employee’s
ownership interest for purposes of this provision would equal 4%.



     7. Assignment of Inventions; Return of Company Documents.




     (a) Employee shall promptly make full written disclosure to the Company, shall hold in
trust for the sole right and benefit of the Company, and hereby assigns to the Company, or its
designee, all of Employee’s right, title and interest in and to any and all inventions, original
works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks
or trade secrets, whether or not patentable or registrable under copyright or similar laws, which
Employee may solely or jointly conceive or develop or reduce to practice, or cause to be conceived
or developed or reduced to practice, during the period of time of Employee’s employment with the
Company if the same was made on Company time or with Company assets or is within the scope of
Employee’s employment or otherwise relate directly or indirectly to the Business (collectively
referred to as “Inventions”). Employee also assigns to the Company, or its designee, all of
Employee’s right, title and interest in and to any and all Inventions, which Employee solely or
jointly conceived or developed or reduced to practice, or caused to be developed or reduced to
practice, during Employee’s employment with the Company prior to the date of this Agreement.
Employee further acknowledges that all original works of authorship which are made or were made by
Employee (solely or jointly with others) within the scope of and during the period of Employee’s
employment with the Company prior to and after the date of this Agreement and which are protectable
by copyright are “works made for hire,” as that term is defined in the United States Copyright Act.
Employee understands and agrees that the decision whether or not to commercialize or market any
invention developed by



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Employee solely or jointly with others is within the Company’s sole discretion and for the
Company’s sole benefit and that no royalty shall be due to Employee as a result of the
Company’s efforts to commercialize or market any such invention.




     (b) Employee shall keep and maintain adequate and current written records of all
Inventions made by Employee (solely or jointly with others) during the term of his
employment with the Company. Employee shall keep such records in the form of notes,
sketches, drawings, and any other format that may be specified by the Company. The records
shall be available to and remain the sole property of the Company at all times.




     (c) Employee shall assist the Company, or its designee, at the Company’s expense, in
every proper way reasonably necessary to secure the Company’s rights in the
Inventions and any copyrights, patents or other intellectual property
rights-relating thereto in any and all countries, including the disclosure to the Company
of all pertinent information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other instruments which the
Company shall deem necessary in order to apply for and obtain such rights and in order to
assign and convey to the Company, its successors, assigns, and nominees the sole and
exclusive rights, title and interest in and to such Inventions, and any copyrights,
patents or other intellectual property rights relating
thereto. Employee further agrees that such obligation to execute or cause to be
executed, when it is in Employee’s power to do so, any such instrument or papers at the
Company’s expense shall continue after the termination of this Agreement. If the Company
is unable because of the mental or physical incapacity of Employee to secure Employee’s
signature to apply for or to pursue any application for any United States or foreign
patents or copyright registrations covering Inventions or original works of authorship
assigned to the Company pursuant to this Agreement, then Employee hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents as
Employee’s agent and attorney in fact, to act for and in Employee’s behalf and stead to
execute and file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright registrations thereon
with the same legal force and effect as if executed by Employee.




     (d) Upon termination of Employee’s employment with the Company, Employee shall deliver
to the Company (and shall not keep in his possession, recreate or deliver to anyone else)
any and all devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by Employee pursuant to
Employee’s employment with the Company or otherwise belonging to the Company, its successors
or assigns.



     8. Remedies. Employee acknowledges and agrees that the Company would suffer
irreparable harm from a breach by Employee of the restrictive covenants set forth in Section 6 or
7. Therefore, in the event of the actual or threatened breach by Employee under Section 6 or 7 the
Company may, in addition and supplementary to any other rights and remedies existing in its favor
(including, without limitation, its right to terminate Employee’s employment), apply to any court
of law or equity of competent jurisdiction for specific performance or injunctive or other relief
in order to enforce or prevent any violation of the provisions of Section 6 or 7. Employee



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agrees that the existence of any claim or cause of action by Employee against the Company,
whether predicated upon this Agreement or any other contract, shall not constitute a defense to the
enforcement by the Company of the provisions of Section 6 or 7.




     9. Termination of Employment.




     (a) Termination by Employee or by the Company for Specified Reasons. Subject to
subsection (c) hereof, if Employee’s employment with the Company is terminated by Employee
for any reason other than a termination contemplated by Section 9(c) hereof or by the
Company because of Employee’s dishonesty, commission of a felony, willful violation of his
fiduciary duties or, materially violation of the terms of this Agreement after having
written notice thereof and remains uncured for a period of forty-five (45) days after such
notice:




     (i) The Company shall have the right (the “Buyback Right”) to purchase
from Employee (or his estate) a number of Employee Shares equal to 1,897,758.0
(subject to adjustment for stock splits, dividends, combinations and
reclassifications) minus the product of (A) the number of complete one-month
periods between the date hereof and the date Employee’s employment with the
Company is so terminated and (B) 79,073.3 (subject to adjustment for stock
splits, dividends, combinations and reclassifications), at a purchase price per
share of $0.30 (subject to adjustment for stock splits, dividends, combinations
and reclassifications); and




     (ii) The Company shall pay Employee (or his estate) his Base
Salary (pursuant to Paragraph 4(a)) earned, pro rata, up to and including the
date of any such termination.




     (b) Other Termination by the Company. If Employee’s employment with the Company
is terminated by the Company for a reason other than those specified in Section 9(a):




     (i) The Employee Shares shall not be subject to the Buyback
Right; and




     (ii) The Company shall pay Employee (A) his compensation (including any
bonus awarded but not yet paid) (pursuant to Paragraph 4(a)) earned up to and
including the date of any such termination and (B) as severance, his Base Salary
in effect at the time of such termination for six (6) months, payable periodically
in the same amounts, at the same intervals and subject to the same withholdings as
Base Salary prior to the date of termination.




     (c) Termination by Reason of Death, Disability, Breach by_the Company or a Material
Transaction. Notwithstanding the provisions of subsection (a) or (b) hereof to the
contrary, if (I) Employee’s employment with the Company is terminated by reason of
Employee’s death or Disability, (II) Employee’s employment with the Company is



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terminated by Employee because of a material breach of this Agreement by the Company that
remains uncured for a period of forty-five (45) days after notice of such breach by
Employee to the Company, (III) a Material Transaction occurs and Employee’s employment with
the Company is thereupon terminated (x) by Employee because he is not offered a position
having duties, rights and responsibilities similar to those of Employee immediately prior to
such Material Transaction or (y) by the Company in contemplation of such Material
Transaction, or (IV) Employee terminates this Agreement due to relocation to a location
other than a principal office of the Company:




     (i) The Employee Shares shall not be subject to the Buyback
Right; and




     (ii) The Company shall pay Employee his Base Salary (pursuant to
Paragraph 4(a)) earned up to and including the date of any such termination and,
in the case of (II) and (III) above, severance pay as specified in Section
9(b)(ii).



     10. Notice. All notices and other communications required or permitted under this
Agreement shall be deemed to have been duly given and made if in writing and if served either by
personal delivery to the party for whom intended (which shall include delivery by Federal Express
or similar service) or three (3) business days after being deposited, postage prepaid, certified or
registered mail, return receipt requested, in the United States mail bearing the address shown in
this Agreement for, or such other address as may be designated in writing hereafter by, such party:



	 	 	 	 	 
	 

	 	If to Employee:
	 	At the address specified on the signature
	 

	 	 	 	page hereto or such other address as
	 

	 	 	 	appears on the Company’s records.
	 
	 	 	 	 
	 

	 	If to the Company:
	 	CKMP, Inc.
	 

	 	 	 	465 Main Street, 8th Floor
	 

	 	 	 	Buffalo, NY 14203
	 

	 	 	 	Attention: Chief Executive Officer






     11. Reformation; Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is finally determined by a court of competent jurisdiction to be
unenforceable or invalid under applicable law, such provision shall be effective only to the extent
of its enforceability or validity, without affecting the enforceability or validity of the
remainder of this Agreement, and such court shall have jurisdiction to reform this Agreement to the
maximum extent permitted by law. In the event that any such provision of this Agreement cannot be
reformed, such provision shall be deemed severed from this Agreement, but every other provision of
this Agreement shall remain in full force and effect.



     12. Binding Effect; Waiver. The terms and provisions of this Agreement shall be
binding on and inure to the benefit of Employee, his heirs, executors, administrators, and other
legal representatives and shall be binding on and inure to the benefit of the Company, its



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affiliates, successors or assigns. The failure of the Company at any time or from time to time to
require performance of any of Employee’s obligations under this Agreement shall in no manner affect
the Company’s right to enforce any provision of this Agreement at a subsequent time, and the waiver
of any rights arising out of any breach shall not be construed as a waiver of any rights arising
out of any subsequent or prior breach.




     13. Entire
Agreement. This Agreement constitutes the entire agreement and understanding
between Employee and the Company with respect to the subject matter hereof, and supersedes all
prior agreements and understandings relating to the subject matter hereof.



     14. Amendment. No amendment, modification, or waiver of any provision of this
Agreement, or consent to any departure by Employee therefrom, shall be effective unless the same
shall be in writing and signed by the parties hereto.



     15. Assignment. This Agreement is for personal services to be performed by
Employee and may not be assigned or transferred either the Company or
by Employee.



     16. Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instrument.



     17. Headings. The various headings of this Agreement are inserted for convenience only
and shall not affect the meaning or interpretation of this Agreement or any provisions hereof.



     18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.



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          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 	 	 	 	 
	 	 	THE COMPANY:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CKMP, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Darren J. Ascone
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Darren J. Ascone	 	 
	 	 	 	 	Title:
	 	Vice President


	 	 
	 	 	 	 	 	 	 

	 	 






	 	 	 	 	 
	 

	 	EMPLOYEE:	 	 
	 
	 	 	 	 
	 

	 	/s/ George Chamoun
	 	 
	 

	 	 

George Chamoun
	 	 







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