Executive Vice President Marketing and Sales Development Employment Agreement - Mitchell J. Taube

Exhibit 10.46


EMPLOYMENT AGREEMENT


THIS EMPLOYMENT AGREEMENT is made as of the 1st day of April, 2000 by and between Mitchell J. Taube a resident of New York, (the "Employee"), and ImageMax, Inc., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania (the "Company").


WHEREAS, the Company and Employee previously entered into an Employment Agreement dated as of December 9, 1997; and


WHEREAS, the Company desires to continue to employ Employee and Employee desires to continue to be employed by the Company for a period of time in the future upon the terms and conditions hereinafter set forth;


NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein, and intending to be legally bound, the parties, subject to the terms and conditions set forth herein, agree as follows:


1. Employment and Term. The Company hereby employs and continues to employ Employee and Employee hereby accepts employment with the Company, as Executive Vice President Marketing and Sales Development (the "Position") for a period commencing on the date hereof and continuing until December 31, 2002, subject to early termination pursuant to the provisions of Section 9 hereof (the "Initial Term") and as may be extended from time to time by mutual consent of Employer and Employee. The Initial Term of employment and any renewal periods hereunder, subject to the provisions of Section 9 hereof, are hereinafter referred to as the "Term."


2. Duties. During the Term, Employee shall serve the Company faithfully and to the best of his ability and shall devote his full time, attention, skill and efforts to the performance of the duties required by or appropriate for his Position. Employee agrees to assume such duties and responsibilities as may be customarily incident to such position, and as may be reasonably assigned to Employee from time to time by the Chief Operating Officer of the Company, if any, and otherwise by the Chief Executive Officer. Employee shall report, throughout the Term, to the Chief Operating Officer of the Company, if any, and otherwise to the Chief Executive Officer. Employee shall perform his duties from the Company's office in Westchester County, New York, but shall travel to the extent reasonably necessary to perform the duties hereunder. If the employee is required to travel internationally (excluding North America), it shall be in business class.


3. Other Business Activities. During the Term, Employee will not, without the prior written consent of the Company, directly or indirectly engage in any other business activities or pursuits whatsoever, except such activities in connection with any charitable or civic


activities, personal investments and serving as an executor, trustee or in other similar fiduciary capacity as do not interfere with his performance of his responsibilities and obligations pursuant to this Agreement.


4. Compensation.


4.1 The Company shall pay Employee, and Employee hereby agrees to accept, as compensation for all services rendered hereunder and for Employee's covenant not to compete as provided for in Section 8 hereof, a base salary at the annual rate of one hundred fifty thousand dollars ($150,000) (as the same may hereafter be increased, the "Base Salary"), which shall continue as such for the remainder of the Term unless otherwise increased pursuant to this Section 4 of this Agreement. The Base Salary shall be inclusive of all applicable income, social security and other taxes and charges which are required by law to be withheld by the Company or which are requested to be withheld by Employee, and which shall be withheld and paid in accordance with the Company's normal payroll practice for its similarly situated employees from time to time in effect. Increases in the Base Salary may be granted from time to time at the sole discretion of the Company. In addition to the Base Salary, the Company shall pay Employee, within thirty (30) days after receipt of the final audit for each fiscal year, a bonus (the "Bonus") in the same manner as for similarly situated employees. Such Bonus shall be based on the guidelines established by the Company in advance of each fiscal year under the Company's formal incentive compensation plan, including, but not limited to, the results of the Company's operations, achievement of business unit targets, if applicable, and individual performance as compared to specific management objectives set prior to each fiscal year. Payment of any Bonus upon termination of Employee shall be paid in accordance with Section 9 hereof.


4.2 In addition to the foregoing Section 4.1, the Company shall grant to the Employee an incentive stock option (the "Option") to purchase seventy five thousand (75,000) shares of Common Stock, no par value, of the Company ("Common Stock"). The Option shall be an incentive stock option. The Option shall be subject to and in accordance with the provisions of the 1997 Incentive Plan of the Company, as amended (the "Plan") and shall vest in accordance with the terms set forth in the Incentive Stock Option Agreement between the Company and the Employee dated as of February 15, 2000. In addition to the Option, the Company may grant to the Employee additional stock options under the Plan as determined by the Compensation Committee of the Board from time to time in its sole discretion.


5. Benefits and Expenses. Except as otherwise provided in this Agreement or in Schedule A attached hereto, the Employee shall be entitled to (i) all standard benefits for executive level vice-presidents of the Company and (ii) those benefits set forth on Schedule A hereto (collectively, "Benefits").


6. Confidentiality. Employee recognizes and acknowledges that the Proprietary Information (as hereinafter defined) is a valuable, special and unique asset of the Business of the Company. As a result, both during the Term and thereafter, Employee shall not, without the prior written consent of the Company, for any reason, either directly or indirectly, divulge to any third-party or use for his own benefit, or for any purpose other than the exclusive


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benefit of the Company, any confidential, proprietary, business and technical information or trade secrets of the Company or of any subsidiary or affiliate of the Company ("Proprietary Information") revealed, obtained or developed in the course of his employment with the Company. Nothing herein contained shall restrict Employee's ability to make such disclosures as may be necessary or appropriate to the effective and efficient discharge of the duties required by or appropriate for his Position or as such disclosures may be required by law; and further provided, that nothing herein contained shall restrict Employee from divulging or using for his own benefit or for any other purpose any Proprietary Information that is readily available to the general public so long as such information did not become available to the general public as a direct or indirect result of Employee's breach of this Section 6. Failure by the Company to mark any of the Proprietary Information as confidential or proprietary shall not affect its status as Proprietary Information under the terms of this Agreement.


7. Property.


(a) All right, title and interest in and to Proprietary Information shall be and remain the sole and exclusive property of the Company. During the Term, Employee shall not remove from the Company's offices or premises any documents, records, notebooks, files, correspondence, reports, memoranda or similar materials of or containing Proprietary Information, or other materials or property of any kind belonging to the Company unless necessary or appropriate in accordance with the duties and responsibilities required by or appropriate for his Position and, in the event that such materials or property are removed, all of the foregoing shall be returned to their proper files or places of safekeeping as promptly as possible after the removal shall serve its specific purpose. Employee shall not make, retain, remove and/or distribute any copies of any of the foregoing for any reason whatsoever except as may be necessary in the discharge of his assigned duties and shall not divulge to any third person the nature of and/or contents of any of the foregoing or of any other oral or written information to which he may have access or with which for any reason he may become familiar, except as disclosure shall be necessary in the performance of his duties or as otherwise permitted pursuant to Section 6 hereof; and upon the termination of his employment with the Company, he shall leave with or return to the Company all originals and copies of the foregoing then in his possession, whether prepared by Employee or by others.


(b) (i) Employee agrees that all right, title and interest in and to any innovations, designs, systems, analyses, ideas for marketing programs, and all copyrights, patents, trademarks and trade names, or similar intangible personal property which have been or are developed or created in whole or in part by Employee (1) at any time and at any place while the Employee is employed by Company and which, in the case of any or all of the foregoing, are related to and used in connection with the Business of the Company, (2) as a result of tasks assigned to Employee by the Company, or (3) from the use of premises or personal property (whether tangible or intangible) owned, leased or contracted for by the Company (collectively, the "Intellectual Property"), shall be and remain forever the sole and exclusive property of the Company. The Employee shall promptly disclose to the Company all Intellectual Property, and the Employee shall have no claim for additional compensation for the Intellectual Property.


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(ii) The Employee acknowledges that all the Intellectual Property that is copyrightable shall be considered a work made for hire under United States Copyright Law. To the extent that any copyrightable Intellectual Property may not be considered a work made for hire under the applicable provisions of the United States Copyright Law, or to the extent that, notwithstanding the foregoing provisions, the Employee may retain an interest in any Intellectual Property that is not copyrightable, the Employee hereby irrevocably assigns and transfers to the Company any and all right, title, or interest that the Employee may have in the Intellectual Property under copyright, patent, trade secret and trademark law, in perpetuity or for the longest period otherwise permitted by law, without the necessity of further consideration. The Company shall be entitled to obtain and hold in its own name all copyrights, patents, trade secrets, and trademarks with respect thereto.


(iii) Employee further agrees to reveal promptly all information relating to the same to an appropriate officer of the Company and to cooperate with the Company and execute such documents as may be necessary or appropriate (1) in the event that the Company desires to seek copyright, patent or trademark protection, or other analogous protection, thereafter relating to the Intellectual Property, and when such protection is obtained, to renew and restore the same, or (2) to defend any opposition proceedings in respect of obtaining and maintaining such copyright, patent or trademark protection, or other analogous protection.


(iv) In the event the Company is unable after reasonable effort to secure Employee's signature on any of the documents referenced in Section 7(b)(iii) hereof, whether because of Employee's physical or mental incapacity or for any other reason whatsoever, 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 his behalf and stead to execute and file any such documents and to do all other lawfully permitted acts to further the prosecution and issuance of any such copyright, patent or trademark protection, or other analogous protection, with the same legal force and effect as if executed by Employee.


8. Noncompetition.


8.1 Covenant Not to Compete. The Employee shall not, during the Term, including any extensions of the Term, and during the Restricted Period, as hereinafter defined, do any of the following directly or indirectly without the prior written consent of the Company:


(a) compete with the Company or any of its respective affiliates or subsidiaries, or any of their respective successors or assigns, whether now existing or hereafter created or acquired (collectively, the "Related Companies"), in any document management business conducted during the Term or, as of the date of this Agreement, contemplated to be conducted during the Term of this Agreement (as has been determined by the Board) or in any other business conducted by the Company in which the Employee is or has been actively engaged (the "Restricted Business") within any geographic area located within the United States of America, its possessions or territories (the "Restricted Area");


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(b) become interested (whether as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent, consultant or otherwise) in any person, firm, corporation, association or other entity that competes with the Related Companies in the Restricted Business within the Restricted Area; provided, however, that nothing contained in this Section 8(b) shall prohibit Employee from owning ...