EXHIBIT 10.5
EMPLOYMENT AGREEMENT
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THIS AGREEMENT made as of this 22nd day of November, 1999, between
Pinecrest Investment Group. Inc. (PNCR-OTCBB), a Florida corporation
(hereinafter sometimes called the "Employer"), having its corporate offices
located at 0000 Xxxx Xxxx., Xxxxx 000, Xxxxx, Xxxxxxx 00000, principal place of
business and Xxxxxx X. Xxxxxxx, whose mailing address is X.X. Xxx 000, Xxxxxx,
Xxxxxxx 00000 (hereinafter sometimes called the "Employee").
WHEREAS, the Employee and Employer desire to set forth in writing their
contract with respect to Employee's employment by Employer;
NOW, THEREFORE, in consideration of their mutual promises set forth herein,
the parties hereby agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee hereby
accepts such employment, upon the terms and conditions set forth in
this Agreement.
2. DUTIES AND AUTHORITIES.
A. Employee will occupy the position of President and Chief
Operating Officer (hereinafter referred to as "Position" or
"Assignment") with the Employer's wholly owned subsidiary known
as PINECREST FARMS, INC. (hereinafter referred to as
"Subsidiary").
B. Employee agrees to devote full business time equal to at least a
40-hour business workweek while this agreement is in effect,
dedicating all attention, skill and effort to the faithful
performance of this agreement.
C. Employee will not, during the term of this Agreement, directly or
indirectly engage in a like or similar business as that of
Employer, either as an employee, employer, or consultant,
principal, corporate officer, or in any other capacity, whether
or not compensated, without the prior written consent of
Employer.
3. TERM OF EMPLOYMENT. The term of employment shall be for a period of 5
years beginning November 22, 1999 and continue to November 21, 2004
(hereinafter called the "Initial Term"). After the Initial Term, this
Agreement shall be extended automatically for successive periods of
one year each upon the same terms and conditions set forth in this
contract, or other terms and conditions as the parties hereto shall
agree, unless this Agreement is terminated by either party as herein
provided.
4. COMPENSATION. Employee will receive compensation during the term of
this Agreement as follows:
A. BASE SALARY. An Annual Base Salary (hereinafter "Annual Base
Salary"), of $120,000 payable bi-weekly.
B. BONUSES/INCENTIVE PAY. Employee shall earn a bonus, on a pro-rata
basis, for meeting the Revenues, Gross Profit and Gross Net
Operating Profit guideline indicated in Exhibit A attached hereto
and made a part hereof. Thresholds shall be calculated pursuant
to GAAP (Generally Accepted Accounting Principles) and as
indicated in Exhibit A except that Gross Net Operating Profit
shall be calculated as follows: Gross Net Operating Profit shall
be the Net Profit before federal, state and local income taxes,
determined in accordance with GAAP and adjusted to exclude: (i)
any bonus or incentive payments paid to officers, directors,
and/or stockholders; (ii) any extraordinary gains or losses
(including, but not limited to, gains or losses in disposition of
assets); (iii) any deficiency of federal and state income taxes
paid in a prior year; and (iv) depreciation. The Bonus shall be
calculated within thirty days after the end of each quarter.
One-half of the Annually Disbursable Bonus shall be disbursed to
Employee within forty-five (45) days after the end of the
quarter, and the remaining one-half shall be disbursed within
ninety (90) days after the end of the fiscal year. The Accrued
Bonus shall be disbursed within 90 days after the end of the 60th
month from the inception of this Agreement or as otherwise
indicated in this Agreement.
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C. PENSION AND PROFIT SHARING. The Employee shall be entitled to
participate in any pension or profit sharing plan, or other type
of plan adopted by the Employer for the benefit of its officers.
If the corporation establishes more than one plan, Employee may
choose the plan in which to participate.
X. XXXXXXXXX PAY. In the event of termination of this Agreement for
any reason other than those set forth in Paragraph 12.A. below,
or if Employer breaches, or attempts to breach this Agreement,
Employer shall pay Employee the sum of (a) the Annual Base Salary
of $120,000, plus (b) an amount equal to the total Annually
Disbursable Bonus/Incentive Pay paid or payable in the
immediately preceding quarter multiplied by a factor of 4, plus
(c) all Accrued Bonus accrued through the date of termination.
The Severance Pay shall be paid in cash within 30 days.
5. DEFERRED COMPENSATION. The Employee shall be entitled to participate
in any deferred compensation plan adopted by the Employer for the
benefit of its officers.
6. RELOCATION. In the event Employee is transferred and assigned to a new
principal place of work located more than fifty (50) miles from
Employee's residence, Employer will pay for all reasonable relocation
expenses including:
a. Transportation fares, meals, and lodging for Employee, his
spouse, and family from Employee's residence to any new residence
located near the new principal place of work.
b. Moving of Employee's household goods and the personal effects of
Employee and Employee's family from Employee's residence to the
new residence.
c. Lodging and meals for Employee and Employee's family for a period
of not more than sixty (60) consecutive days while occupying
temporary living quarters located near the new principal place of
work.
d. Round trip travel expenses and lodging expenses for Employee's
family for no more than two (2) house hunting trips to locate a
new residence, each trip not to exceed fourteen (14) days; and
e. Expenses in connection with the sale of the residence of Employee
including realtor fees, mortgage prepayment penalties, termite
inspector fees, title insurance policy and revenue stamps, escrow
fees, fees for drawing documents, state or local sales taxes,
mortgage discount points (if in lieu of a prepayment penalty),
and seller's attorneys fees. At the option of Employee and in
lieu of reimbursement for these expenses, Employee may sell the
residence of Employee to the Employer at the fair market value of
the residence determined by an appraiser chosen by the Employer.
The appraisal will be performed within ten (10) days after notice
of transfer and notice of appraised value will be submitted by
report to Employee. Employee will have the right to sell the
residence to the Employer at the appraised price by giving notice
of intent to sell within thirty (30) days from the date of the
appraisal report. The term "residence" shall mean the property
occupied by Employee as the principal residence at the time of
transfer and does not include summer homes, multiple-family
dwellings, houseboats, boats, or airplanes but does include
condominium or cooperative apartment units and duplexes (two
family) occupied by Employee.
7. MEDICAL, DENTAL, AND OTHER INSURANCE. At its sole cost and expense,
Employer agrees to include Employee and Employee's family in the group
medical, dental, hospital and disability insurance plans of Employer,
when such plans are established and will provide group life insurance
for Employee in the amount of not less than $100,000. Said life
insurance policy shall then remain in effect for the remainder of the
term of the Agreement. In the event that the Employer does not
establish such plans for the benefit of its employees, Employer shall
reimburse Employee for a private health benefits and disability
package that is at least as comprehensive as the benefits that
Employee currently has in place.
8. LEAVE.
A. VACATION. Employee shall be entitled to three (3) weeks of paid
vacation each year during this agreement. Employee and Employer
shall mutually agree upon the time for the vacation. If vacation
is not taken, for the benefit of the Employer, Employee shall be
reimbursed at his base salary rate for time not taken.
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B. HOLIDAYS. The Employee will be entitled to nine (9) paid holidays
each year as follows: New Years Day, Presidents Day, Employee's
Birthday (March 27), Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, the Friday following Thanksgiving Day, and
Christmas Day. Additional holidays may be allowed in connection
with holidays which fall on weekends.
C. SICK LEAVE. The Employee shall be allowed up to ten (10) sick
days per year. Sick days are not cumulative and may not be
carried from year to year.
D. EMERGENCY LEAVE. If a member of the Employee's immediate family
dies or becomes critically ill, the Employee will be allowed up
to three days of leave with pay. Additional time may be granted,
with or without pay, upon approval of the Employer.
9. AUTOMOBILE. Employer will pay to Employee an automobile allowance of
$600 per month plus a gas allowance of $150 per month.
10. EXPENSE REIMBURSEMENT. Employee shall be entitled to reimbursement for
all reasonable expenses, including travel and entertainment, incurred
by Employee in the performance of Employee's duties. Employee will
maintain records and written receipts as required by federal and state
tax authorities to substantiate expenses as an income tax deduction
for Employer and shall submit vouchers for expenses for which
reimbursement is made.
11. DEATH. In the event that Employee dies during the term of this
Agreement, this Agreement shall be immediately terminated.
12. TERMINATION.
A. This Agreement may be terminated upon ten (10) days' notice to
Employee if: (i) Employee willfully breaches or habitually
neglects the duties to be performed under Paragraph 2, or engages
in any conduct which is dishonest or damages the reputation of
Employer; (ii) an act of God renders impossible performance of
this Agreement or, (iii) failure of Employer to conduct business
due to financial inability to maintain its operations.
B. This Agreement may be terminated by Employee without cause by
giving ninety (90) days notice to Employer. Under this provision,
Employer will have the option of terminating this Agreement at
any time subsequent to Employee's notice of termination to
Employer. In the event Employer decides to terminate this
Agreement prior to expiration of said 90 day period provided for
above, Employer shall only be liable to employee for compensation
under this Agreement up to the date that employee no longer
provides service to employer.
C. In the event employment is terminated pursuant to subparagraph A
or B, Employee will be entitled to only base salary compensation
earned prior to the date of termination as provided for in
Paragraph 4 of this agreement computed pro rata up to and
including the date of termination, and any earned incentive
salary payments, or the deferred compensation payments provided
for in Paragraph 4.B and 5, respectively.
D. In the event Employer is acquired, is a non-surviving party in a
merger, or transfers substantially all of its assets, this
agreement shall not be terminated and Employer agrees to take all
actions necessary to assure that the transferee or surviving
company is bound by the provisions of this agreement.
E. In the event of termination of this Agreement for any reason
other than those set forth in subparagraph A or B above, or if
Employer breaches, or attempts to breach this Agreement, Employer
shall pay Employee the Severance Pay as set forth in paragraph
4.E above.
13. NOTICES. Any notice provided for in this agreement shall be given in
writing. Notices shall be effective from the date of service, if
served personally on the party to whom notice is to be given or on the
second day after mailing, if mailed by first class mail, postage
prepaid. Notices shall be properly addressed to the parties at their
respective addresses or to such other address as either party may
later specify by notice to the other.
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14. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
supersedes all prior agreements and understanding, oral or written,
with respect to the subject matter hereof. This Agreement may be
changed only by an agreement in writing signed by the party against
whom any waiver, change, amendment or modification is sought.
15. WAIVER. The waiver by either party of a breach of any of the
provisions of this Agreement by the other party shall not be construed
as a waiver of any subsequent breach.
16. GOVERNING LAW: VENUE. This Agreement shall be construed and enforced
in accordance with the laws of the State of Florida, Hillsborough
County, Florida, shall be proper venue for any litigation arising out
of this Agreement.
17. PARAGRAPH HEADINGS. Paragraph headings are for convenience only and
are not intended to expand or restrict the scope or substance of the
provisions of this Agreement.
18. ASSIGNABLIITY. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Employer. This Agreement is a personal
employment agreement and the rights, obligations and interests of the
employee hereunder may not be sold, assigned, transferred, pledged or
hypothecated.
19. SEVERABILITY. If any provisions of this Agreement is held by a court
of competent jurisdiction to be invalid or unenforceable, the
remainder of the Agreement shall remain in full force and shall in no
way be impaired.
20. ARTITRATION. Any controversy or claim arising out of or relation to
this contract, or breach thereof, shall be settled by arbitration in
accordance with the Rules of the American Arbitration Association and
judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof.
21. LITIGATION. In the event of any litigation for the enforcement of this
agreement, or collection of the obligations evidenced hereby, the
prevailing party shall be entitled to recover costs and expenses of
such action, including reasonable attorneys' fees, from the
non-prevailing party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the 22nd day
of November 1999.
EMPLOYEE:
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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Witnesses
EMPLOYER:
PINECREST INVESTMENT GROUP. INC.
a Florida Corporation
Attested:
/s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxx
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Secretary Xxxxx X. Xxxx, CEO
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