EXHIBIT 10.25
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of the 22ND DAY OF
MARCH, 2000 by and between 5th Avenue Channel Corporation (the "Corporation")
and Xxxxxx Xxxxxx Xxxxxxxxxx ("Employee").
WHEREAS, the Corporation is a Florida Corporation with its
principal place of business at 0000 XX 000xx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx,
00000, and
WHEREAS, Employee is an attorney whom the Corporation desires
to employ upon the terms and conditions hereafter set forth, and Employee
desires to accept such employment.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. EMPLOYMENT
The Corporation employs Employee and Employee accepts
employment with the Corporation to render legal and business services on behalf
of the Corporation. Employee's duties shall include, but shall not be limited
to, assuming the title and duties of General Counsel, 5th Avenue Channel
Corporation ("General Counsel"). Employee shall also promote the professional
practice of the Corporation by entertainment, travel to visit existing or
prospective clients, and other forms of efforts intended to market the services
of the Corporation, the expense for which may be incurred by the Corporation or
by Employee, with reimbursement to Employee as specified herein. Employee shall
attend professional conventions and post graduate courses and seminars,
participate in professional societies and in general do all things necessary to
maintain and improve his professional skills and reputation for the benefit of
the Corporation and to remain in good standing with the Virginia State Bar and
the Virginia State Bar Association, which fees, expenses and costs shall be paid
by Corporation directly or by Corporation, with reimbursement to Employee as
specified herein. Employee will also seek entry into the Florida State Bar and
Florida State Bar Association as well as the local bar association of Dade
County and shall attend professional conventions and post graduate courses and
seminars, participate in professional societies and in general do all things
necessary to maintain and improve his professional skills and reputation for the
benefit of the Corporation and to remain in good standing with the Florida State
Bar and the Florida State Bar Association, which fees, expenses and costs shall
be paid by Corporation directly or by Corporation, with reimbursement to
Employee as specified herein. Employee's other duties shall be such as the
Corporation may from time to time reasonably direct, including normal duties as
an officer or director of the Corporation.
2. COMPENSATION
As compensation for all services rendered under this
Employment Agreement, subject to withholding and other applicable employment
taxes, the Corporation shall pay to Employee while employed hereunder:
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(a) BASE COMPENSATION. From March 22, 2000 through March 22,
2001 Employee shall have and receive a salary of one
hundred forty-four thousand US dollars ($144,000) per
year, or twelve thousand US dollars ($12,000) per month
("Employee's Base Compensation'). The Employee's Base
Compensation is based on a thirty-five (35) hour
workweek. The Employee's Base Compensation shall be
payable in equal semi-monthly installments on the
fifteenth and on the last day of each month. From March
22, 2001 through March 22, 2002 the Employee shall have
and receive a salary of at least one hundred seventy-four
thousand US dollars ($174,000), or fourteen thousand five
hundred US dollars ($14,500) per month ("Employee's
Revised Base Compensation"). Employee's Revised Base
Compensation will increase by twenty-five percent (25%)
each year, every year from March 22, 2002 forward unless
this percentage increase is again increased by the mutual
agreement of the parties.
(b) STOCK. Employee shall receive on the date of this
Employment Agreement, March 22, 0000 xxx thousand (1,000)
shares of 5th Avenue Channel Common Stock (the "First
Stock Shares"), fully vesting in six months on September
22, 2000. Employee shall also receive on March 22, 2001
on the one year anniversary of this Employment Agreement,
twenty thousand (20,000) fully vested shares of 5th
Avenue Channel Common Stock (the "Second Stock Shares").
The First Stock Shares and the Second Stock Shares will
fully vest with the Employee prior to March 22, 2001 upon
the occurrence of one or more of the following events: 1)
the sale or transfer of all or part of the Corporation;
2) a change in management of the Corporation; 3) a change
in the overall business plan and strategy of the
Corporation; 4) if Corporation asks Employee to assume
new or substantially different job functions; 5) upon
Employee's termination without cause; or upon 6) the
occurrence of a significant Corporation event.
(c) STOCK OPTIONS. Employee shall have and be entitled to
receive, on the date of this Employment Agreement, March
22, 2000 and on the first day of each following month
through February 1, 2001 ten thousand (10,000) 5th Avenue
Channel Stock Options (the "First Options"). The option
exercise price of the First Options ("First Options
Exercise Price") shall be for the lowest listed 0xx
Xxxxxx Channel stock price during the thirty days of the
month immediately after the first of the month. All First
Options issued to Employee prior to September 22, 2000
shall immediately vest with Employee on September 22,
2000 the six month anniversary of Employee's employ. All
subsequent First Options and all other options received
after September 22, 2000 shall immediately vest with
Employee upon receipt. On the first day of every month
after March 1, 2001 and each and every month forward, the
Employee shall receive twelve thousand (12,000) 5th
Avenue Channel Stock options (the "Second Options"), at
the options exercise price ("Second Options Exercise
Price") of the lowest listed 0xx Xxxxxx Channel stock
price during the thirty days of the month immediately
after the first of the month. The Second Options shall
vest with Employee immediately upon issue and receipt.
The Second Options and any other issued options will vest
immediately with the Employee upon the occurrence of the
following events: 1) the sale or transfer of all or part
of the Corporation; 2) a change in management of the
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Corporation; 3) a change in the overall business plan and
strategy of the Corporation; 4) if Corporation asks
Employee to assume new or substantially different job
functions; 5) upon Employee's termination without cause;
or upon 6) the occurrence of a significant Corporation
event.
(d) MOVING EXPENSES, STORAGE AND TEMPORARY HOUSING. Employee
does not currently reside in Florida. In order to allow
for Employee to smoothly and efficiently transition into
the work under this Employment Agreement Corporation
shall pay for all reasonable moving, including, but not
limited to , movers' fees, truck and equipment rental,
moving insurance and suitable storage facility charges in
the Miami area. In addition, Corporation acknowledges
that Employee will need to work long hours and weekends
during the foreseeable future. To that end, it may be
difficult for Employee to locate suitable housing in a
timely fashion. Therefore, Corporation will reimburse
Employee for temporary housing for a reasonable period of
time in order to facilitate Employee's move and
transition.
(e) AUTOMOBILE. For the duration of Employee's Term, as set
forth in Section 8 below, Corporation shall lease for
Employee a vehicle of Employee's election, to be paid for
directly by the Corporation. Corporation shall maintain
insurance on the vehicle and register the vehicle in
Corporation's name. The lease term for each vehicle shall
not exceed two years.
(f) ADDITIONAL BENEFITS. As further compensation, Employee
shall be entitled to participate in any pension plan,
insurance plan, health plan, cafeteria plan or other
employee benefit program the Corporation now has in
effect or adopts during the Employment Term.
3. EXPENSE REIMBURSEMENT
Corporation shall reimburse Employee for such reasonable out
of pocket expenses ("Business Expenses") as he may incur.
In addition to Business Expenses, Employee is expected to
incur other reasonable expenses ("Deductible Expenses") on behalf of the
Corporation, such as travel on behalf of the Corporation, entertainment at home
or elsewhere, automobiles for use when needed on the Corporation's business,
availability of home facilities for meetings with clients or others and
membership in clubs for entertainment of clients which are on behalf of the
Corporation and are deductible under the Internal Revenue Code but are not
included in Business Expenses. Deductible Expenses shall be reimbursed by the
Corporation upon submission to the Corporation of satisfactory documentation and
support of such expenses.
4. FACILITIES
The Corporation shall provide or cause to be provided to
Employee an office, secretarial and administrative assistance, technical help
and such other facilities, equipment, services and supplies necessary and
appropriate as mutually reasonably agreed upon.
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5. SERVICE
Except as expressly provided hereinafter, Employee shall
devote his full working time and best efforts to the performance of his duties
under this Employment Agreement. All work-product, including, but not limited
to, intellectual property, publication rights, and copyright from publications
written by Employee shal1 remain in the exclusive ownership of the Employee.
6. VACATIONS AND LEAVES OF ABSENCE
Employee shall be entitled each year to four weeks (twenty
business days) of paid vacation at times mutually agreed upon by Employer and
Employee. In addition, Employee shall be granted leaves of absence with or
without pay and for such valid and legitimate reasons as agreed to by the
Corporation and Employee.
7. INSURANCE AND ADDITIONAL PLANS
The Corporation may also, from time to time and at its sole
discretion, offer or supply health, disability, general comprehensive and/or
life insurance to Employee (the "Plans"). Employee may participate in those
Plans as soon as they are available to any other employee in Corporation. In
addition, Corporation shall acquire and name Employee on Corporation's
director's and officer's insurance liability policies and, if possible, the
Corporation shall name Employee on Corporation's errors and omissions insurance
policies.
8. TERM
This Employment Agreement and Employee's employment hereunder
shall be for one year from March 22, 2000 to March 22, 2001, with an Employee
right to renew the Employment Agreement for additional years at the Employee's
election and at the compensation listed in Section 2 above. Both parties
realize that Employee will need to spend considerable time away from the
office during the initial move and transition period. To that end, Employee
and Corporation agree that Employee need not appear in the office for regular
office hours until April 17, 2000, even though March 22, 2000 is the
commencement date of this Employment Agreement.
9. TERMINATION
Either party on sixty (60) days prior written notice to the
other party may terminate this Employment Agreement. Once such notice has been
given, Corporation may require or limit Employee as to what services are to be
rendered hereunder until the effective date of the termination. Both parties
agree that pursuant to Section 2(d) and Section 10 below all stock and stock
options (including, but not limited to, the First Stock Shares, the Second Stock
Shares, the First Options, the Second Options and other options) vest
immediately upon Employee termination, if Employee was terminated without cause
and regardless of whether the stock or stock options have yet issued and/or
vested.
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10. TERMINATION BONUS
In the event that Corporation terminates Employee without
cause, Corporation shall pay Employee, his heirs, legatees, successors and
assigns, eighteen (18) months of Employee's Base Salary or Employee's Revised
Base Salary (whichever is in effect), the corresponding stock options (based on
the applicable remaining or outstanding option number of the First Options,
Second Options or other options to be received at that date) and the First Stock
Shares and the Second Stock Shares (regardless of the date and regardless of
whether termination has occurred before or after March 22, 2001) as set forth in
Section 2 above. The method and terms of payment shall be acceptable to the
Employee his heirs, legatees, successors and assigns.
11. INDEMNIFICATION
(a) The Corporation shall defend, indemnify and hold Employee harmless
if Employee was or is a party or is threatened to be made a party to any action,
claim, suit or proceeding, whether civil, criminal, administrative or
investigative (including any action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, committee chairman,
General Counsel or member, employee, or agent of the Corporation, including the
fact that he was performing legal services as a lawyer/employee of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, General Counsel or agent of another business,
foreign or domestic, profit or nonprofit corporation, partnership, joint venture
or other enterprise. This indemnification shall cover and include expenses
(including attorneys' fees, judgments, fines and amounts paid in settlement)
actually and reasonably incurred by him in connection with such action, claim,
suit or proceeding, regardless of whether such expenses and liabilities are
otherwise covered by insurance in favor of Employee.
(b) If the Corporation's indemnity obligations under this Section 11
are not otherwise insured, the Corporation shall be self-insured to the extent
necessary to provide such indemnity protection.
(c) The indemnification and advancement of expenses provided for herein
shall not be deemed exclusive of any other rights to which Employee may be
entitled, both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to Employee after
Employee has ceased to be a director, officer, committee chairman, General
Counsel, or member, employee, or agent and after Employee ceases serving at the
request of the Corporation as a director, officer, employee or agent of another
business, foreign or domestic, profit or nonprofit corporation, partnership,
joint venture or other enterprise, and shall inure to the benefit of his heirs
and legal representatives.
(d) The Corporation shall procure insurance on Employee in his
positions as director, officer, committee chairman, General Counsel, or member,
employee, or agent of the Corporation, or if Employee was serving at the request
of the Corporation as a director, officer, employee or agent of another
business, foreign or domestic, profit or nonprofit Corporation, partnership,
joint venture or other enterprise against any liability asserted against or
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the business corporation law of Florida or professional
laws of Florida.
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(e) To the extent that any portion of this Section 11 is found to be
illegal or beyond the permissible limits of indemnification for any reason, such
portion shall be deemed to be modified or amended, or if necessary deleted, to
the extent required to comply with applicable law, it being the intent of this
Section 11 to afford indemnification of Employee to the full extent provided for
herein.
12. REPRESENTATIONS, WARRANTIES AND GUARANTEES
Corporation represents, warrants and guarantees to Employee
that it has divulged to Employee the existence of any and all threatened or
pending actions, claims, proceeding or suits (whether criminal, civil or
investigative) against the Corporation.
Corporation represents, warrants and guarantees to Employee
that it is in compliance with laws and regulations of the United States and the
State of Florida.
Corporation represents, warrants and guarantees that all
provisions of this Employment Agreement and in this section are material.
Corporation agrees that if it breaches any of these
representations, warranties or guarantees that is has materially breached the
contract. Employee and not the Corporation shall then be entitled to consider
the Corporation's material breach as a termination of this Employment Agreement
which would, among other things, trigger the provisions of Sections 2, 9 and 10
above.
13. ARBITRATION
Employee and the Corporation hereby specifically agree that
any controversy or claim of any nature arising between them, including, but not
limited to, controversies or claims arising from Employee's employment by the
Corporation or from any other relationship between Employee or the Corporation,
or arising under this Employment Agreement, as amended from time to time, or
under any other contract, agreement, or undertaking by or between Employee
(whether in the capacity of Employee, agent, shareholder, director, officer, or
any other capacity) and the Corporation, or under any federal, state or local
law (including common law), rule or regulation of any nature whatsoever, shall
be settled by arbitration in the City of Miami, Florida in accordance with the
then-governing rules of the American Arbitration Association. Judgment upon the
award rendered may be entered and enforced in any court of competent
jurisdiction and Corporation shall waive any objections to service, venue and
forum.
14. FILES
Employee is entitled to keep and maintain a copy of all
documents and files generated or routinely used (the "Documents") by Employee.
In the event of Employee's termination or a sale or transfer of all or part of
the Corporation, Employee shall be allowed to retain possession of the copy set
of the Documents at Corporation's expense.
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15. COMPETITION
In the event of Employee termination with or without cause or
departure, Employee shall be able to seek employment from a Corporation's
competitor and nothing in this agreement shall be construed as a covenant of
noncompetition.
16. DISABILITY
(a) If Employee becomes partially disabled and unable to
effectively perform the work or totally disabled he shall continue to be an
Employee of the Corporation and shall be entitled to compensation under this
Employment Agreement for a period of twenty-four (24) months.
(b) At the end of the twenty-four (24) month period following
the onset of the disability, the disabled Employee shall cease to be an Employee
of the Corporation. If Employee thereafter ceases to be disabled, he may, upon
such terms and conditions as may be agreed upon between him and the Corporation,
resume a full or part-time position with the Corporation.
(c) If Employee dies after becoming disabled, his estate shall
be entitled to the payments provided by Sections 2, 10 and 15 which Employee
would have received if he had lived.
17. MISCELLANEOUS
No amendments or additions to this Employment Agreement shall
be binding unless it is in writing and signed by both parties, except as
otherwise provided herein.
Any amounts payable hereunder to a payee after the death of
such payee shall be paid to the heirs or legatees or succession representative,
as the case may be, of such payee.
This Employment Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
Headings entitled herein are included solely for convenience
and shall not affect or be used in connection with the interpretation of this
Employment Agreement.
If any provision of this Employment Agreement is held to be
contrary to law or unenforceable, such finding shall not invalidate any other
provision hereof and the provision, or portion thereof, shall be deemed to be
modified or amended, or if necessary deleted, to the extent required to comply
with applicable law.
This Employment Agreement supersedes any and all prior
employment agreements between Employee and the Corporation, and all other
agreements, understandings or undertakings between Employee and the Corporation,
whether written or verbal, regarding the terms of Employee's employment by the
Corporation, except as otherwise specifically stated herein and except for any
remaining administrative obligations Employee may have with his prior employer
or the newly merged entity.
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The parties agree that both parties drafted this Employment
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Employment Agreement as of the date set forth herein.
5th AVENUE CHANNEL CORPORATION,
A Florida Corporation
By:
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Xxx Xxxxx, President and CEO
For 5th Avenue Channel Corporation
Date:
EMPLOYEE:
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Xxxxxx Xxxxxx Xxxxxxxxxx
Date:
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