Unassociated Document




EMPLOYMENT
AGREEMENT







THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is
entered into by and between Prem
Ramchandani
(“you”) and
[TACTICA] (the
“Company”), and
will be effective for all purposes and in all respects as of April 29, 2004 (the
“Effective
Date”)

 

WHEREAS,
the Company has hired you based on your particular qualifications, on the
condition that you shall enter into this Agreement and shall fully perform all
the responsibilities and duties and strictly observe all of your obligations
hereunder; and

 

WHEREAS,
you are willing to be employed as President of the Company, on the condition
that the Company enter into this Agreement, and shall fully perform and strictly
observe all of its obligations hereunder.

 

NOW,
THEREFORE, in consideration of your employment by the Company and the
compensation to be paid by the Company to you in connection therewith and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, you and the Company, intending legally and equitably to be
bound, hereby agree as follows:

 

1.  Position
and Responsibilities.

 

(a)  Position.   The Company agrees to
employ you as President throughout the Term (as defined below). You shall report
directly to the Board of Directors of the Company (the “Board”).

 

(b)  Responsibilities.   You shall use your best
efforts to further the interests of the Company, to discharge diligently your
duties and responsibilities to the Company under this Agreement and to abide
strictly by the policies of the Company. Subject to Section 5(b)(ii) hereof,
such duties shall be rendered at the principal office of the Company or at such
other places for minimal periods of time as the interests, needs, business or
opportunity of the Company shall require. During the Term, you shall devote your
substantial business time, attention and energies to the Company’s business and
you may engage in other business activities so long as such business activities
are not in direct or indirect competition with the Company, including, but not
limited to, serving in charitable or philanthropic capacities or positions. This
Section 1 shall not be construed to prevent or prohibit you from managing your
personal assets or investments as long as such activities do not interfere with
the performance of your duties hereunder.

 

 




















 

(c)  Board
Seat.   During the Term, you will
be a member of the Board, subject to the provisions of Sections 5(b)(iii) and
(iv) hereof.

 

2.  Term
of Employment.   Subject to the terms and
conditions of this Agreement, the Company agrees to employ you, and you agree to
be employed by the Company, from the Effective Date until the day prior to the
fifth (5th)
anniversary of such date (the “Term”).
Notwithstanding the foregoing, commencing on the Effective
Date, the Term shall extend one (1) day at the end of every day during its
length, and each such additional day shall, ipso
facto, become
part of (and incorporated within any references to) the Term, unless either
party sends a written notice to the other party of such party’s desire to
terminate such extensions in accordance with Section 13(a) hereof (a
“Non-renewal
Notice”), in
which case the Termination Date (as defined in Section 5 hereof) shall be five
(5) years from the date of the Non-renewal Notice unless, prior to the
expiration of such five (5)-year period, your employment is terminated pursuant
to Section 5(a), (b) or (c) hereof. In the event of any termination of your
employment pursuant to the terms of Section 5(a), (b) or (c) hereof, the Term
shall be deemed to have ended as of the applicable Termination Date.


 

3.  Compensation.

 

(a)  Base
Compensation.   You will be entitled to
receive base compensation (“Base
Compensation”) during
the Term. Your Base Compensation for the period ending December 31, 2004 shall
be at the annual rate of Six Hundred Thousand Dollars ($600,000) per year. For
the period commencing on the Effective Date and ending December 31,
2004, your
Base Compensation shall be prorated by multiplying Six Hundred Thousand Dollars
($600,000) by a fraction, the numerator of which is the number of calendar days
from the Effective Date through and including December 31, 2004 and the
denominator of which is 365. Your Base
Compensation shall be paid in equal weekly installments, less deductions
required by law. On or about February 1st of each
year during the Term, the Compensation Committee of the Board (the “Compensation
Committee”) will
review and increase (but not decrease) your Base Compensation in an amount no
less than the then-current Base Compensation multiplied by the percentage change
in the Consumer Price Index (“CPI”) from
the calendar year prior to the calendar year in which such increase shall take
effect to January 1 of the current calendar year in which such increase shall
take effect, and your annual Base Compensation for the remainder of the Term
shall not be less than any such increased amount. Any such increase shall be
made retroactive to January 1 of the calendar year in which such increase
becomes effective. Such review shall be in accordance with criteria to be
determined in the sole discretion of the Compensation Committee after
appropriate consultation with you. 

 

 




















 

(b)  Bonus
Compensation.   On an annual basis, you
shall be entitled to receive an additional cash payment (less deductions
required by law) (“Bonus
Compensation”) that
shall be calculated as follows: You will receive the product of 10%, of the
EBITDA of the Company for such fiscal year. For the purposes of this agreement
EBITDA shall mean for any period of determination, an amount equal to the sum of
(A) Net Income )Loss) for such period, plus (B) without duplication and to the
extent the same were deducted in calculating Net Income (Loss) for such period,
amortization for such period, all other non cash charges, non cash losses, and
extraordinary losses for such period, minus (C) without duplication and to the
extent the same were deducted in calculating Net Income (Loss) for such period,
all non cash gains and extraordinary gains for such period, in each case
determined on a consolidated basis , in accordance with GAAP. All computations
of the EBITDA shall be rounded to nearest 0.1 percent. (i) “Net Income (Loss)”
shall mean, for any period, the net income (or loss), after deducting all
operating expenses, provisions for taxes and reserves (including reserves for
deferred income tax) and all other proper deductions of the Company for such
period (taken as a single accounting period) determined on a consolidated basis
in conformity with GAAP, including any income loss of any person accrued prior
to the date of such person becomes a subsidiary of the Company or is merged into
or consolidated with the Company or all or substantially all of such person’s
assets are acquired by the Company, provided, however, that your Bonus
Compensation shall never be less than zero. No later than January 31 of the year
following each year of the Term, all awards of Bonus Compensation for the prior
year shall be determined and payment of your Bonus Compensation shall be made by
the Company no later than thirty (30) days after your award has been calculated.
Your Bonus Compensation may exceed your Base Compensation in any year.
In the
event of your termination that results in the Termination Date being a date
other than December 31 of the final year of the Term, your Bonus Compensation
shall be prorated for such year by multiplying your Bonus Compensation for the
full year by a fraction, the numerator of which is the number of calendar days
that you were employed in such final year and the denominator of which is 365.
In addition, for the period commencing on the Effective Date and ending on
December 31, 2004, your Bonus Compensation shall be prorated by multiplying your
Bonus Compensation for the full year by a fraction, the numerator of which is
the number of calendar days from the Effective Date through and including
December 31, 2004 and the denominator of which is 365.

 

4.  Employee
Benefits; Expenses.


 

(a)  During
the Term, you shall be eligible for vacation and paid holidays in accordance
with Company policy and to participate in Company employee benefit plans and
executive compensation programs at the highest levels that the Company provides
to its senior executives, including, but not limited to, the Company’s health
and dental insurance plans (which include family coverage at the Company’s sole
expense), stock option plan, executive long term disability plan and deferred
compensation and 401(k) plans, subject to the generally applicable terms and
conditions of the plan or program in question and to the determinations of the
Compensation Committee administering such plan or program. In addition, the
Company agrees to pay the premiums in connection with a MetLife life
insurance policy # 980-850-064 in the amount of $7,942.50, purchased by the
Company on your behalf.

 

(b)  The
Company shall reimburse you for all ordinary and reasonable business expenses
paid by you in connection with the performance of your duties in accordance
with, and subject to, the Company’s expense reimbursement policies then in
effect for senior executives. 

 

 




















 

5.  Termination
of Employment.   Subject to the provisions
of Sections 7 and 8 hereof, any stock option agreement(s) entered or to be
entered between the Company and you pursuant to a duly authorized stock option
plan of the Company , should the Company adopt such a plan in the future, (the
“Stock
Option Agreement(s)”), upon
the effective date of termination of your employment with the Company (the
“Termination
Date”), you
will not be eligible for further compensation, benefits or perquisites under
Sections 3 and 4 of this Agreement, other than those that have already accrued
or vested (as result of accelerated vesting or otherwise) on or before the
Termination Date. Termination of your employment may occur under any of the
following circumstances:

 

(a)  Company’s
Termination of Employment.   Notwithstanding the terms
of Section 2 hereof, subject to the provisions of this Section 5 and Sections 7
and 8 hereof, the Company has the right to terminate your employment at any
time, with or without Cause. For all purposes under this Agreement,
“Cause” shall
mean:

 

(i)  a willful
failure by you substantially to perform your duties under this Agreement, other
than a failure resulting from your complete or partial incapacity due to
physical or mental illness or impairment, which failure is materially injurious
to the Company and which continues on an uninterrupted basis for more than
thirty (30) days after written notice by the Company to you specifying in
reasonable detail your claimed failure; provided, however, that you shall have
no authority to bind the Company during the thirty (30) days after written
notice is delivered hereunder; or

 

(ii)  a willful
act by you, which constitutes embezzlement or criminal fraud and which is
materially injurious to the Company.

 

 




















 

No act,
or failure to act, by you shall be considered “willful” if done in good faith
and with a reasonable belief that the act or omission was lawful and in the
Company’s best interest. If the Company terminates your employment for any
reason other than for Cause or if the Company delivers a Non-renewal Notice
pursuant to Section 2 hereof, you shall receive the Severance Payments in
accordance with Section 7 hereof and, if applicable, Section 8 hereof. Any
determination of Cause under this Agreement shall be made by a resolution duly
adopted by the affirmative vote of at least two-thirds (2/3) of the members of
the Board (not including you if you are a member of the Board) at a meeting of
the Board called and held for that purpose; provided, that you shall have been
given written notice of such meeting in accordance with Section 13(a) hereof at
least ten (10) business days prior to the meeting and shall have been given the
opportunity to be heard by the Board before any such resolution is passed. Any
failure by the Company to follow the procedures set forth in this Section 5(a)
in connection with a termination of your employment shall result in such
termination being deemed to be a termination by the Company without Cause under
this Agreement.

 

(b)  Your
Termination of Employment.   Notwithstanding the terms
of Section 2 hereof, you have the right to terminate your employment with the
Company at any time for any reason. If you terminate your employment (other than
(x) for Good Reason (as defined herein) or (y) due to your death or Disability),
you will not be entitled to any Severance Payments. “Good
Reason” shall
mean that, within the sixty (60) days prior to your notice of termination (or,
with respect to clause (v) of this Section 5(b) only, the twenty-four (24)
months after a Change of Control):

 

(i)  you have
been assigned duties that are materially inconsistent with your position or have
been given instructions by the Board that, if implemented by you, would result
in a breach of your fiduciary duties to the Company, which inconsistent assigned
duties or instructions shall have remained uncorrected for a period of thirty
(30) days after written notice by you to the Company specifying in reasonable
detail your dispute with such assigned duties or instructions;

 

(ii)  your
office has been relocated to a location more than forty (40) miles from your
current office;

 

(iii)  you cease
to be any of the following: the Chairman of the Board or the
President;

 

 




















 

(iv)  you cease
to be nominated to continue as a member of the Board;

 

(v)  Prem
Ramchandani ceases (A) to be President for any reason other than if the Company
terminates his employment for Cause, or if he terminates his employment without
Good Reason or due to his death or Disability, or (B) to be nominated to
continue as a member of the Board;

 

(vi)  a Change
of Control (as defined in Section 6 hereof) has occurred;

 

(vii)  the
Company breaches any of its obligations to you under Section 3 or 4 of this
Agreement or breaches any material obligation under any other agreement between
the Company and you, including, but not limited to, that certain Indemnification
Agreement, dated as of even date herewith, by and between the Company and you in
the form attached hereto as Exhibit
A (the
“Indemnification
Agreement”), which
breach continues for more than thirty (30) days after written notice by you to
the Company specifying in reasonable detail such breach;

 

(viii)  the
Company fails to maintain its directors’ and officers’ liability insurance
policy(ies) at a coverage level of at least Ten Million Dollars ($10,000,000),
which failure continues for more than thirty (30) days after written notice by
you to the Company; or

 

(ix)  your Base
Compensation or the multiplier in the calculation of your Bonus Compensation
shall have been reduced.

 

Your
continued employment after an event constituting Good Reason shall not
constitute your consent to, or a waiver by you of your rights with respect to,
any circumstance constituting Good Reason, unless you fail to give notice of
your termination for Good Reason within the time limits set forth
above.

 

 




















 

(c)  Death
or Disability.   Notwithstanding the terms
of Section 2 hereof, your employment shall be deemed to have been terminated by
you upon your (i) death or (ii) inability to perform your duties under this
Agreement due to your physical or mental illness or impairment, even with
reasonable accommodation, for more than twenty-six (26) substantially
consecutive weeks in any twelve (12)-month period (“Disability”). For
purposes of this Section 5(c), the Termination Date will be the date of your
death or on the date after the substantially consecutive 26th week
that you receive notice of Disability, as applicable. 

 

(d)  Notice
of Termination.


 

(i)  You agree
to provide the Company thirty (30) days’ prior written notice of any termination
by you. The Company may, in its sole discretion, select any date prior to the
end of such thirty (30)-day notice period as the Termination Date. 

 

(ii)  The
Company agrees to provide thirty (30) days’ prior written notice of its
intention to terminate this Agreement without Cause pursuant to this Section 5
and, unless otherwise agreed to by the parties, the Termination Date shall
become effective on the date that is thirty (30) days after such notice. In the
event that the Board undertakes a determination of whether Cause exists pursuant
to Section 5(a) hereof, the Company shall send written notice to you no later
than one (1) business day after the Board passes a resolution finding that Cause
exists in accordance therewith and the Termination Date shall become effective
on the date that such resolution is passed by the Board.

 

6.  Change
of Control.   “Change
of Control” shall
mean the occurrence of any of the following events after the Effective Date of
this Agreement:

 

(a)  the sale
or other disposition of all or substantially all of the Company’s assets;


 

(b)  the
acquisition, whether directly, indirectly, beneficially (within the meaning of
rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934 Act”))
or of record, as a result of a merger, consolidation or otherwise, of securities
of the Company representing fifteen percent (15%) or more of the aggregate
voting power of the Company’s then-outstanding Common Stock by any “person”
(within the meaning of Sections 13(d) and 14(d) of the 1934 Act), including, but
not limited to, any corporation or group of persons acting in concert, other
than (i) the Company or its subsidiaries and/or (ii) any employee pension
benefit plan (within the meaning of Section 3(2) of the Employee Retirement
Income Security Act of 1974) of the Company or its subsidiaries, including a
trust established pursuant to any such plan; or

 

 




















 

(c)  The
individuals who were members of the Board as of the Effective Date (the
“Incumbent
Board”) cease
to constitute at least two-thirds (2⁄3)of the
Board; provided, however, that any director appointed by at least two-thirds
(2⁄3) of the
then Incumbent Board or nominated by at least two-thirds (2⁄3) of the
Nominating Committee of the Board (a majority of the members of the Nominating
Committee shall be the then Incumbent Board or appointees thereof), other than
any director appointed or nominated in connection with, or as a result of, a
threatened or actual proxy or control contest, shall be deemed to constitute a
member of the Incumbent Board.

 

7.  Severance
Payments.   If, during the Term, the
Company terminates your employment for any reason other than Cause, or you
terminate your employment for Good Reason, or your employment is terminated due
to your death or Disability, or either party sends a Non-renewal Notice pursuant
to Section 2 hereof, you shall be entitled to receive the applicable payments
and benefit coverage described in this Section 7 (the “Severance
Payments”).

 

(a)  If,
during the Term, the Company terminates your employment for any reason (other
than Cause or as a result of a Non-renewal Notice pursuant to Section 2 hereof)
or you terminate your employment for Good Reason, you shall be entitled to
continue to receive your then-current Base Salary and Bonus Compensation for a
period of five (5) years after the Termination Date in accordance with the
Company’s standard payroll practices; provided, however, that, if you terminate
your employment for Good Reason due to a Change of Control, you shall be
entitled to receive within thirty (30) days after you provide written notice of
your election to terminate your employment due to a Change of Control a lump sum
payment equal to the net present value of the sum of (i) five times (5x) your
then-current Base Salary plus (ii) five times (5x) your highest annualized Bonus
Compensation paid to you during the three (3)-year period prior to the Change of
Control during the Term. In addition, if any such termination occurs pursuant to
this Section 7(a), any and all Stock Options granted to you as set forth in
Section 3(c) hereof before the Termination Date shall immediately vest and
become exercisable by you, and any future grants of Stock Options shall be
forfeited.

 

(b)  If your
employment terminates as a result of your death or Disability or either party
has sent a Non-renewal Notice pursuant to Section 2 hereof and this Agreement
has not otherwise been terminated pursuant to any other provision hereof prior
to the five (5)-year period after the date of any such Non-renewal Notice, you
or your beneficiary, personal or legal representatives or estate, as the case
may be, shall be entitled to receive a lump sum payment (less deductions
required by law) equal to one times (1x) the average of the sum of (A) your Base
Compensation for the last three (3) fiscal years of the Company (as reflected on
the Company’s books for such fiscal years), plus (B) your Bonus Compensation for
the last three (3) fiscal years of the Company (as reflected on the Company’s
books for such fiscal years). In addition, if any such termination occurs
pursuant to this Section 7(b), any and all Stock Options granted to you as set
forth in Section 3(c) hereof before the Termination Date shall immediately vest
and become exercisable by you, and any future grants of Stock Options shall be
forfeited.

 

 




















 

Notwithstanding
the foregoing, in the event that a Non-renewal Notice has been given by the
Company prior to your death or Disability, in lieu of the one times (1x)
multiple contained in Sections 7(b) hereof, the multiple shall be the remaining
number of years between the date of your death or Disability and the fifth
(5th)
anniversary of the date of the Non-renewal Notice, but in no event less than one
(1) year. The Company shall pay the amounts set forth in this Section 7(b) no
later than sixty (60) days following your Termination Date or, in the event of
termination due to your Disability, no later than sixty (60) days following your
Termination Date.

 

(c)  Benefits.   Provided that you and
your eligible family members make a timely election to continue your health and
dental insurance benefits under the Company’s group health plans under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the
regulations issued thereunder (“COBRA”), the
Company will pay your COBRA premiums for the maximum period of continuation
coverage provided under COBRA, and pay the full cost for substantially
equivalent health and dental insurance benefits for you and your eligible family
members throughout the life of each of your eligible family members after such
maximum continuation coverage period expires. These payments will be made
directly to the insurance carrier beginning on the first pay period following
your Termination Date. In addition, in the event that the Company terminates
your employment without Cause, or you terminate your employment for Good Reason
or your employment terminates due to your death or Disability, or the Term
expires in accordance with this Agreement after the delivery of a Non-renewal
Notice by either party, you (or your personal or legal representatives) shall
receive the benefits (including, but not limited to, stock option plan,
executive long term disability plan, deferred compensation and 401(k) plans, the
continued payment of premiums under the life insurance policy purchased for you
by the Company and other perquisites set forth in Section 4(a) hereof until the
earlier of (i) five (5) years from the Termination Date or the date on which you
receive equivalent benefits from another employer.

 

(d)  No
Mitigation. You
shall not be required to mitigate the amount of any payment or benefits
contemplated by this Section 7, nor shall any such payment or benefits be
reduced by any earnings that you may receive from any other source.

 

 




















 

8.  Tax
Equalization Payment.

 

In
addition to the amounts payable under Section 7 hereof, the Company shall pay
you a tax equalization payment (“Tax
Equalization Payment”) in
accordance with this Section 8. The Tax Equalization Payment shall be in an
amount that, when added to the other amounts payable to you under Section 7 and
any other amounts to which you are entitled pursuant to the Stock Option
Agreement(s) will place you in the same after-tax position as if all taxes
payable on such amounts by you, including, without limitation, Federal and state
income and employment-related taxes and payments (assuming the highest marginal
Federal and state income tax rates then applicable to you) and any excise taxes
payable under Section 4999 of the Internal Revenue Code of 1986, as amended (the
“Code”), or
any successor statute of similar import, did not apply to any of the amounts
payable under Section 7 and under and pursuant to the Stock Option Agreement(s)
(including any amounts paid under this Section 8). The amount of this Tax
Equalization Payment shall be determined by the Company’s independent
accountants and shall be remitted to the applicable Federal, state and local tax
jurisdictions. 

 

9.  Confidential
Information and Non-Disparagement.

 

(a)  Commencing
on the Effective Date [and
continuing for a period of two (2) years after the Termination
Date], you
shall not disclose or use any confidential information (“Confidential
Information”)
(defined below) of the Company, whether patentable or not, which you learn as a
result of your employment with the Company, whether or not you developed such
information. Confidential Information shall include, without limitation, any and
all proprietary information regarding the Company’s, its customers’ and its
business partners’ trade secrets and any and all other proprietary information
of the Company.

 

Information
that is or later becomes publicly available in a manner wholly unrelated to any
breach of this Agreement by you (including, but not limited to, any and all
information contained in any public filing pursuant to Federal or state
securities laws) shall not be considered Confidential Information as of the date
it enters the public domain. If you are uncertain whether something is
Confidential Information, you should treat it as Confidential Information until
you receive clarification from the Company that it is not Confidential
Information. Confidential Information shall remain at all times the property of
the Company. You may use or disclose Confidential Information only:

 

 




















 

(i)  as
authorized and necessary in performing your responsibilities under this
Agreement during your employment with the Company;

 

(ii)  with the
Board’s prior written consent;

 

(iii)  in a
legal proceeding between you and the Company to establish the rights of either
party under this Agreement; provided, that you stipulate to a protective order
to prevent any unnecessary use or disclosure; or

 

(iv)  subject
to a compulsory legal process that requires disclosure of such information;
provided, that you have complied with the following procedures to ensure that
the Company has an adequate opportunity to protect its legal interests in
preventing disclosure.

 

Upon
receipt of a subpoena that could possibly require disclosure of Confidential
Information, you shall provide a copy of the compulsory process and complete
information regarding the circumstances under which you received it to the
Company by hand delivery within two (2) business days after such receipt or as
soon thereafter as is reasonably practicable. You will not make any disclosure
until the latest possible date for making such disclosure in accordance with the
compulsory process (“Latest
Possible Date”),
unless otherwise agreed to by a duly authorized representative of the Company.
If the Company seeks to prevent disclosure in accordance with the applicable
legal procedures, and provides you with notice before the Latest Possible Date
that it has initiated such procedures, you will not make disclosures of any
Confidential Information that is the subject of such procedures, until such
objections are withdrawn or ruled on or unless you are otherwise required to
make such disclosure.

 

You
hereby acknowledge that any breach of this Section 9(a) may cause the Company
irreparable harm.

 

 




















 

(b)  Non-Disparagement. During
the Term, neither of the parties shall in any way, manner or form, directly or
indirectly, disparage or defame the other party and, in your case, any director,
officer or employee of the Company; provided, however, that this Section shall
not prohibit you from making a good faith assessment of the person’s performance
of his or her duties for the Company and where such assessment is necessary to
fulfill your duties to the Company. After the Term, neither of the parties shall
in any way, manner or form, directly or indirectly, disparage or defame the
other party and, in your case, any directors, officers or employees of the
Company.

 

10.  Non-Solicitation.

 

(a)  Commencing
on the Effective Date and continuing for a period of two (2) years after the
Termination Date (if the Company terminates your employment with or without
Cause or you terminate your employment with or without Good Reason) or (ii) one
(1) year after the Termination Date (if your employment terminates due to your
Disability or the Term expires in accordance with this Agreement after the
delivery of a Non-renewal Notice by either party) (“Restricted
Period”), you
will not, directly or indirectly, individually or as a part of or on behalf of
any other person, company, employer or other entity:

 

(i)  hire or
attempt to solicit for hire (other than on behalf of the Company), any person
who is employed by the Company within six (6) months prior to such action until
at least six (6) months after the person’s employment with the Company ends
(“Covered
Employee”);
provided, however, that the provisions of this Section 10(a)(i) shall not apply
in the event that you and Prem Ramchandani choose to enter into any business
relationship together upon either of your terminations by or resignations from
the Company so long as you otherwise comply with the provisions of this Section
10; or

 

(ii)  solicit,
encourage or attempt to persuade any consultant, vendor, client or customer to
terminate or adversely modify its existing relationship with the Company, except
during the Term where you are authorized to do so and have a reasonable good
faith belief that such termination or modification is in the best interests of
the Company.

 

(b)  The
parties agree that any breach of this Section 10 will entitle the Company to an
injunction without bond enforcing this Section 10.

 

 




















 

11.  Indemnification.

 

Commencing
on the Effective Date and at all times thereafter, you shall be indemnified by
the Company pursuant to the Indemnification Agreement. You shall be a
beneficiary of a commercially available directors’ and officers’ liability
insurance policy maintained by the Company, on terms and conditions deemed
appropriate by the Board, with the advice of counsel, as long as you remain an
officer or director and any periods thereafter for acts relating to the period
of time in which you served as an officer and/or director. 

 

12.  Return
of Property.

 

Upon
termination of your employment with the Company for any reason, you agree to
return to the Company or destroy (pursuant to the Company’s instructions) all
property belonging to the Company in your possession within not more than thirty
(30) days. This includes without limitation all equipment, materials, credit
cards and all documents and other information prepared by you or on your behalf
or provided to you in connection with performing your responsibilities as set
forth in Section 1(b) of this Agreement, regardless of the form in which such
documents or information are maintained or stored, including computer, typed,
written, imaged, audio, video, micro-fiche, electronic or any other means of
recording or storing documents or other information. You hereby agree that you
will not retain in any written, printed or electronic or similar form any such
document or other information or copies thereof; provided, however that you may
retain a copy of this Agreement and information describing any rights you may
have after the Termination Date under any employee benefit plan.

 

13.  Miscellaneous
Provisions.

 

(a)  Notices. Unless
otherwise provided herein, any notice or other information to be provided to the
parties hereto will be in writing, hand delivered, with receipt therefore, or
sent by certified or registered mail, return receipt requested, and first-class
postage prepaid, or by nationally recognized overnight delivery service, with
acknowledgement of receipt requested, to:

 

 




















 

If to the
Company:




[TACTICA]



 






 















cc:     

 






 







 








If to
you:




Prem
Ramchandani

 















Documents
sent (i) via hand delivery will be deemed to be received on the date of
delivery, (ii) via certified or registered mail will be deemed to be received on
the third business day after the date of its mailing and (iii) via nationally
recognized overnight delivery service will be deemed received on the next
business day following the day sent. The parties agree to provide notice of any
change of address.

 

(b)  Dispute
Resolution.   You and the Company agree
that arbitration in accordance with the Federal Arbitration Act (“FAA”) and
the Dispute Resolution Procedures set forth in Exhibit
B to this
Agreement shall be the exclusive means for final resolution of any dispute
between the parties arising out of or relating to your employment or this
Agreement, except (i) for workers’ compensation and unemployment claims; (ii)
when injunctive relief is necessary to preserve the status quo or to prevent
irreparable injury, (iii) disputes relating to Sections 9 and 10 of this
Agreement or (iv) disputes relating to the Stock Option Agreement(s) and the
Indemnification Agreement. Injunctive relief may be sought only from any court
of competent jurisdiction located in the State of New York and you consent to
personal jurisdiction in such court.

 

 




















 

(c)  Company
Claims.   In the event that the
Company alleges that you breached any of your covenants contained in Sections 9,
10 and/or 12 hereof, the Company agrees that it shall not offset or suspend any
of its severance obligations pursuant to Section 7 hereof or its obligations to
make payments pursuant to Section 8 hereof, but instead shall be required to
maintain a separate action for damages relating to any such alleged
breach.

 

(d)  Nature
of Agreement.   This Agreement and the
attachments hereto constitute the entire agreement between you and the Company
and supersede all prior agreements and understandings between you and the
Company (including that certain Employment Agreement dated as of March 14, 2000
by and between Tactica International, Inc. and you), except for the Stock Option
Agreement(s), the Indemnification Agreement, and the terms and provisions of any
employee benefit plans of the Company in which you are a participant. No
provision of this Agreement shall be modified, waived or discharged unless the
modification, waiver or discharge is agreed to in writing and signed by you and
by an authorized representative of the Company. No failure by either party to
declare a default due to any breach of any obligation under this Agreement by
the other, nor failure by either party to act quickly with regard thereto, shall
be considered to be a waiver of any such obligation, or of any future breach.
This Agreement shall be interpreted, enforced and governed by the laws of the
State of New York, without regard to its choice-of-law or conflict-of-laws
principles. This Agreement shall be binding on the Company and its successors
and assigns and on you, your heirs and personal or legal representatives.
Notwithstanding anything to the contrary contained herein, this Agreement will
continue in effect until all obligations under it are fulfilled. Neither party
may assign this Agreement, either voluntarily or involuntarily. The invalidity
or unenforceability of any provision or provisions of this Agreement shall not
affect the validity or enforceability of any other provision hereof, which shall
remain in full force and effect, and this Agreement shall be interpreted as if
the unenforceable provision had not been included in it. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument. The headings in this
Agreement are for convenience only and shall not affect the interpretation of
this Agreement. The parties further certify that they fully understand the terms
of this Agreement and have entered into it knowingly and
voluntarily.

 

 




















 

IN
WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of
the Company by its authorized officer, effective as of the date and year set
forth above.

 


	 	 	 	
      [TACTICA]

       

	/s/ Prem Ramchandani	 	 	By:
      /s/ Avi Sivan
	
      

      PREM RAMCHANDANI	 	 	
      

      Name:
      

    
		 	 	Title: