Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made this 7th day of December, 2005, by and between Epicus
Communications Group, Inc., a Florida corporation, hereinafter sometimes called
the "Employer", having its principal place of business in West Palm Beach,
Florida, and Xxxxxx Xxxxxxx of Palm Beach, Florida, 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 Authority.
A. Employee will occupy the position of President, (hereinafter referred
to as "Position" or "Assignment") with the Employer and may serve as a Director
of the Employer.
B. In this position, Employee will have the responsibility and authority
of the President, subject to the control of the Board of Directors and Chief
Executive Officer, and have general supervision, direction and control, as
necessary, over the business and affairs of the Corporation and its Employees.
Employee will be primarily responsible for carrying out all orders and
resolutions of the Board of Directors and such duties as may from time to time
be assigned to Employee by the Board of Directors.
C. In the absence of the Chairman of the Board at any Shareholders or
Board of Directors meeting, Employee will preside over that Shareholders meeting
and, in the event Employee is then a Director of the Employer, may preside over
the Board of Directors meeting.
D. Employee agrees to devote his full time attention and best efforts to
the performance of employment hereunder.
3. Term of Employment. The term of employment shall begin on the date of
this Agreement, and shall extend for a period of one (1) year or until
terminated as provided herein.
4. Compensation. Employee will receive compensation during the term of
this Agreement as follows: A. A base annual salary of One Hundred Eighty
Thousand Dollars ($180,000) payable either bi-monthly or monthly at the
discretion of the Employer.
Page 1 of 5
B. An incentive salary (Bonus) equal to a minimum of three percent (3%)
of the adjusted net profits (hereinafter defined) of the Employer during each
fiscal year beginning or ending during the term of this Agreement. Said Bonus to
be paid to the Employee in cash or company stock or any combination thereof with
the method of payment to be at the sole discretion of the Board of Directors.
"Adjusted net profit" shall be the net profit after federal and state income
taxes, determined in accordance with accepted accounting practices by the
independent accounting firm employed by the Employer as auditors and adjusted to
exclude: (i) any incentive salary payments paid pursuant to this Agreement; (ii)
any contributions to pension and/or profit-sharing plans; (iii) any
extraordinary gains or losses (including, but not limited to, gains or losses on
disposition of assets); (iv) any refund or deficiency of federal and state
income taxes paid in a prior year; and (v) any provision for federal or state
income taxes made in prior years which is subsequently determined as
unnecessary. The determination of the adjusted net profits made by the
independent accounting firm employed by the Employer shall be final and binding
upon Employee and the Employer. For the first and last fiscal years ending and
beginning, respectively, during the term of this Agreement, the incentive salary
shall be computed for the proportion of the fiscal year coextensive with this
Agreement. The incentive salary shall be paid within sixty (60) days after the
end of each fiscal year. The maximum incentive salary payable for any one year
shall not exceed two hundred percent of Employee's base annual salary unless
authorized by the Board of Directors.
5. 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
present 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 present 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 present 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, meals 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, property appraisals, 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 attorney's fees (not to
exceed one percent (1%) of the sales price). 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
Page 2 of 5
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.
6. Medical and Group Insurance. At the expense of the Employer, Employer
agrees to include Employee in the group medical and hospital plan of Employer,
when such plan is established, and will provide group life insurance for
Employee in the amount of not less than two (2) times Employees annual salary.
7. Vacation, Sick/Personal Leave. Employee shall be entitled to three (3)
weeks vacation during each year. The time for the vacation shall be mutually
agreed upon by Employee and Employer. If vacation is not taken for the benefit
of the Employer, Employee shall be reimbursed at his base salary rate for time
not taken. Employee shall receive fifteen (15) days Sick/Personal Leave for each
year of employment. Unused Sick/Personal Leave will accrue to a maximum of 60
days, and will be retained by Employee to be used at his discretion.
8. 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.
9. Termination.
A. This agreement may be terminated by Employer by giving ten (10) days
notice to Employee if Employee willfully breaches or habitually neglects the
duties to be performed under Paragraph 2, habitually engages in the use of
illegal substances or the excessive use of alcohol, or engages in any conduct
which is illegal or dishonest resulting in damage to the reputation of Employer.
B. This agreement may be terminated by Employee, without cause, by giving
thirty (30) days notice to Employer.
C. In the event employment is terminated pursuant to subparagraphs (10A)
or (10B), 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, plus
one twelfth (1/12) of one years base salary. Employee shall not receive the
incentive salary payments as in Paragraphs 4(B).
Page 3 of 5
D. Should Employer wish to terminate the Employee for any reason, other
than those listed in subparagraph (10A) of this agreement, Employee shall
receive the compensation due for the remainder of the Term of Employment
(defined in paragraph (3) of this agreement), said compensation shall be paid as
in paragraph 4 of this Agreement.
E. 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 ensure that
the transferee or surviving company is bound by the provisions of this
agreement.
10. 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: Employer: 0000
Xxxxxxx Xxxxx, Xxxx Xxxx Xxxxx, XX 00000 Employee: 0000 Xxxxxxxx Xxxx, Xxxxxxx
Xxxxx, XX 00000,xx to such other address as either party may later specify by
notice to the other.
11. Entire Agreement. This Agreement contains the entire agreement and
supersedes all prior agreements and understandings., 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.
12. Waiver. The waiver by the Employer of a breach of any of the
provisions of this Agreement by the Employee shall not be construed as a waiver
of any subsequent breach by the Employee.
13. Governing Law; Venue. This Agreement shall be construed and enforced
in accordance with the laws of the State of Florida. Palm Beach County, Florida,
shall be the proper venue for any litigation arising out of this Agreement.
14. 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.
15. Assignability. 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.
16. Severability. If any provision 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 effect and shall in no way be impaired.
Page 4 of 5
17. Arbitration. Any controversy or claim arising out of or relating 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.
18. This agreement becomes effective and operative on the Effective Date
of the confirmed plan of reorganization in the bankruptcy case of Epicus
Communications Group, Inc., et al., debtors by the United States Bankruptcy
Court for the Southern District of Florida, Case No. 04-34915-BKC-PGH, which
plan was filed on May 20, 2005.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the 7th
day of December, 2005
---------------------------
Xxxxxx Xxxxxxx, Employee
FOR EPICUS COMMUNICATIONS GROUP, INC.:
---------------------------------------
Xxxx Xxxxxxxxxx, Chief Executive Officer
Page 5 of 5
