Exhibit 99.1 - Chief Executive Officer Employment Agreement
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EMPLOYMENT AGREEMENT
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AGREEMENT dated as of the 10th day of May, 2006, by and between Adsouth
Partners, Inc., a Nevada corporation with its principal office at 0000 X. Xxxxxx
Xxxxxx, Xxxx Xxxxx, XX 00000 (the "Company"), and Xxxxxxx Xxxxx, residing at
XXXXXXXXXXXX ("Executive").
WITNESSETH:
WHEREAS, the Company has engaged Executive as its Chief Executive
Officer and desires to continue to obtain the benefits of Executive's knowledge,
skill and ability in connection with the operations of the Company and to
continue to employ Executive on the terms and conditions hereinafter set forth;
and
WHEREAS, Executive desires to provide his services to the Company and
to accept employment by the Company on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the mutual promises set forth in
this Agreement, the parties agree as follows:
1. Employment and Duties.
(a) Subject to the terms and conditions hereinafter set forth, the
Company hereby employs Executive as its Chief Executive Officer, and he shall
have the duties and responsibilities associated with the Chief Executive Officer
of a public corporation. Executive shall report to the Company's board of
directors (the "Board") Executive shall also perform such other duties and
responsibilities for the Company as may be determined by the Board, as long as
such duties and responsibilities are consistent with those of the Company.
Executive shall, if elected, serve as a Director of the Company and any of its
subsidiaries, provided that such duties are consistent with those of the
Company. Executive may receive additional compensation for services rendered
pursuant to this Section 1(a).
(b) Unless terminated earlier as provided for in Section 5 of this
Agreement, this Agreement shall have an initial term (the "Initial Term")
commencing as of the date of this Agreement and expiring on December 31, 2009,
and shall continue on a month-to-month basis thereafter unless terminated by
either the Company or Executive on not less than ninety (90) days written notice
prior to the expiration of the Initial Term or thereafter on one month's written
notice. The Initial Term and the extensions are collectively referred to as the
"Term."
2. Executive's Performance. Executive hereby accepts the employment
contemplated by this Agreement. During the Term, Executive shall devote
substantially all of his business time to the performance of his duties under
this Agreement, and shall perform such duties diligently, in good faith and in a
manner consistent with the best interests of the Company. Executive shall not be
precluded from engaging in charitable and community activities, managing his
personal and financial affairs and engaging in other non-competitive activities,
provided that such activities shall not interfere in any material way with
Executive's duties pursuant to this Agreement. Executive will not be required to
move his residence from South Florida.
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3. Compensation and Other Benefits.
(a) For his services to the Company during the Term, the Company
shall pay Executive a salary ("Salary") at the annual rate of $250,000. Such
salary shall commence immediately upon execution of this Agreement and shall,
for the first period be in addition to any and all monies previously paid.
(b) Executive shall receive a monthly car allowance of one thousand,
six hundred fifty ($1,650.00) dollars, which such sum shall be paid regardless
of termination, death or disability or separation from the Company for any
reason(s) whatsoever, for a period of twenty-four consecutive months starting on
the first day of the first month following the signing of this agreement and
running for the twenty-three months there following, uninterrupted and Company
shall hold Executive harmless from its failure to timely pay. Such sum shall be
paid monthly thereafter at the same rate for as long as Executive shall remain
employed and be self renewing for twenty-four month periods thereafter and shall
be non-cancellable by Company for the twenty-three months following the payment
of the first payment of each new twenty-four month period.
(c) In addition to the Salary, the Company shall pay Executive the
following bonuses (collectively, the "Bonuses"):
i. "The Company may and is encouraged to pay Executive an Annual Bonus based
upon Company's growth and Executive's efforts.
(d) In addition to Salary and Bonuses, Executive shall receive the
following benefits during the Term:
(i) Major medical and ordinary health insurance for Executive and
members of his immediate family;
(ii) Dental insurance for Executive and members of his family;
provided, that if the Company does not provide dental insurance coverage, the
Company shall reimburse Executive for his dental expenses, including any dental
insurance he may obtain, provided, that the payments pursuant to this Section
3(d)(ii) shall not exceed $7,500 per year.
(iii) Accident, life insurance and long-term disability insurance
to the extent such benefits are provided to the Company's executive officers, or
reimbursement to Executive for Executive's actual out-of-pocket expense for
obtaining Executive's policies independently, up to five thousand ($5,000.00)
dollars.
(iv) Long-term health care insurance to the extent that the
Company is able, by using reasonable efforts, to obtain such coverage for an
annual premium which does not exceed $3,000. To the extent that the annual
premium for such coverage exceeds $3,000, if Executive desires such coverage, he
shall be responsible for the additional premiums.
(v) Vacation in accordance with Company policy, but in no event
fewer than three (3) weeks per year with no more than two (2) weeks at any one
time.
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(e) In the event of a termination of Executive's employment as a
result of his death or Disability, as hereinafter defined, the Company shall
continue to pay to Executive or his beneficiary, his Salary at the annual rate
in effect at the date of death or termination resulting from a Disability, until
twelve (12) months from the date of death or such termination.
(f) Any compensation paid or payable to Executive by any subsidiary
of the Company shall be treated as a payment on account of the compensation due
Executive pursuant to this Agreement, unless otherwise agreed to in writing.
4. Reimbursement of Expenses. The Company shall reimburse Executive, upon
presentation of proper expense statements, for all authorized, ordinary and
necessary out-of-pocket expenses reasonably incurred by Executive during the
Term in connection with the performance of his services pursuant to this
Agreement hereunder in accordance with the Company's expense reimbursement
policy.
5. Termination of Employment.
(a) This Agreement and Executive's employment hereunder shall
terminate immediately upon the death of Executive.
(b) This Agreement and Executive's employment may be terminated by
Executive upon thirty (30) days written notice to the Company or by the Company
on not less than thirty (30) days' written notice in the event of Executive's
Disability. The term "Disability" shall mean any illness, disability or
incapacity of Executive which prevents him from substantially performing his
regular duties for a period of three (3) consecutive months or four (4) months,
even though not consecutive, in any twelve (12) month period. However, if
Executive is covered by long-term disability insurance, the Company may not
terminate this Agreement pursuant to this Section 5(b) unless Executive is
eligible for disability payments under his long-term disability insurance.
(c) The Company may terminate this Agreement and Executive's
employment for cause, in which event no further compensation shall be payable to
Executive subsequent to twelve (12) months from the date of such termination.
The term "Cause" shall mean (i) a breach of Sections 6, 7 or 8 of this
Agreement; (ii) a breach of trust whereby Executive obtains personal gain or
benefit at the expense of or to the detriment of the Company; or (iii) a
conviction of Executive of any felony or any misdemeanor involving drugs or
controlled substances or theft, embezzlement or other taking of property
belonging to another person. If the Company proposes to terminate this Agreement
pursuant to clauses (i) or (ii) of this Section 5(c), the Company shall notify
Executive in writing setting forth in reasonable detail the basis for the
proposed termination, and Executive shall have a reasonable opportunity to
respond to the Board and to be represented before the Board by counsel. If this
Agreement is terminated pursuant to clause (iii) of this Section 5(c), and the
conviction is subsequently reversed on appeal, the Company shall pay Executive
his Salary for the balance of the Term. For purposes of clauses (iii) of this
Section 5(c), a guilty plea or plea of nolo contendere or similar plea shall be
deemed to be a conviction.
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(d) In the event that (i) the Company terminates Executive's
employment other than as provided in Sections 5(a), (b) and (c) of this
Agreement or (ii) Executive terminates his employment for Good Reason, as
hereinafter defined, then in either case, (x) the Company shall pay to
Executive, within fifteen (15) days after such termination, a severance payment
equal to one month's salary for every month (or part thereof) worked, up to
twelve months.
(e) Executive may terminate this Agreement on fifteen (15) days'
notice for Good Reason. "Good Reason" shall mean (i) the Company's failure to
pay compensation as required by Section 3 of this Agreement; (ii) any other
material breach of this Agreement by the Company, or (iii) the assignment of
Executive without Executive's consent to a position, responsibilities or duties
of a lesser status or degree of responsibility than the Employee's position,
responsibilities, or duties as the Company's Chief Executive Officer.
6. Trade Secrets and Proprietary Information.
(a) Executive recognizes and acknowledges that the Company, through
the expenditure of considerable time and money, has developed and will continue
to develop in the future information concerning customers, clients, marketing,
products, services, business, research and development activities and
operational methods of the Company and its customers or clients, contracts,
financial or other data, technical data or any other confidential or proprietary
information possessed, owned or used by the Company, the disclosure of which
could or does have a material adverse effect on the Company, its business, any
business it proposes to engage in, its operations, financial condition or
prospects and that the same are confidential and proprietary and considered
"confidential information" of the Company for the purposes of this Agreement. In
consideration of his employment, Executive agrees that he will not, during or
after the Term, without the consent of the Board make any disclosure of
confidential information now or hereafter possessed by the Company, to any
person, partnership, corporation or entity either during or after the term here
of, except that nothing in this Agreement shall be construed to prohibit
Executive from using or disclosing such information (a) if such disclosure is
necessary in the normal course of the Company's business in accordance with
Company policies or instructions or authorization from the Board, (b) such
information shall become public knowledge other than by or as a result of
disclosure by a person not having a right to make such disclosure, or (c)
subsequent to the Term, if such information shall have either (i) been developed
by Executive independent of any of the Company's confidential or proprietary
information or (ii) been disclosed to Executive by a person not subject to a
confidentiality agreement with or other obligation of confidentiality to the
Company. For the purposes of Sections 6, 7 and 8 of this Agreement, the term
"Company" shall include the Company, its parent, its subsidiaries and
affiliates, other than affiliates whose relationship as an affiliate is derived
solely from Executive's interest in or position at the affiliate.
(b) In the event that any trade secrets or other confidential
information covered by Section 6(a) of this Agreement is required to be produced
by Executive pursuant to legal process, Executive shall give the Company notice
of such legal process within a reasonable time, but not later than ten (10)
business days prior to the date such disclosure is to be made, unless Executive
has received less notice, in which event Executive shall immediately notify the
Company. The Company shall have the right to object to any such disclosure, and
if the Company objects (at the Company's cost and expense) in a timely manner so
that Executive is not subject to penalties for failure to make such disclosure,
Executive shall not make any disclosure until there has been a court
determination on the Company's objections. If disclosure is required by
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a court order, final beyond right of review, or if the Company does not object
to the disclosure, Executive shall make disclosure only to the extent that
disclosure is unequivocally required by the court order, and Executive will
exercise reasonable efforts at the Company's expense, to obtain reliable
assurance that confidential treatment will be accorded the Confidential
Information.
7. Covenant Not To Solicit or Compete.
(a) During the period from the date of this Agreement until one (1)
year following the date on which Executive's employment is terminated, Executive
will not, directly or indirectly:
(i) Persuade or attempt to persuade any person or entity which is
or was a customer, client or supplier of the Company to cease doing business
with the Company, or to reduce the amount of business it does with the Company
(the terms "customer" and "client" as used in this Section 7 to include any
potential customer or client to whom the Company submitted bids or proposals, or
with whom the Company conducted negotiations, during the term of Executive's
employment hereunder or during the twelve (12) months preceding the termination
of his employment);
(ii) solicit for himself or any other person or entity other than
the Company the business of any person or entity which is a customer or client
of the Company, or was a customer or client of the Company within one (1) year
prior to the termination of his employment;
(iii) persuade or attempt to persuade any employee of the
Company, or any individual who was an employee of the Company during the one (1)
year period prior to the termination of this Agreement, to leave the Company's
employ, or to become employed by any person or entity other than the Company; or
(iv) engage in any business in the United States whether as an
officer, director, consultant, partner, guarantor, principal, agent, employee,
advisor or in any manner, which directly competes with the business of the
Company as it is engaged in at the time of the termination of this Agreement,
unless, at the time of such termination or thereafter during the period that
Executive is bound by the provisions of this Section 7, the Company ceases to be
engaged in such activity, provided, however, that nothing in this Section 7
shall be construed to prohibit Executive from (x) owning an interest of not more
than five (5%) percent of any public company engaged in such activities or (y)
serving as a financial or accounting officer or employee of a company engaged in
such activities as long as Executive does not take any action expressly
prohibited by Section 7(a)(i), (ii) or (iii) of this Agreement.
(b) Executive acknowledges that the restrictive covenants (the
"Restrictive Covenants") contained in Sections 6 and 7 of this Agreement are a
condition of his employment are reasonable and valid in geographical and
temporal scope and in all other respects. If any court determines that any of
the Restrictive Covenants, or any part of any of the Restrictive Covenants, is
invalid or unenforceable, the remainder of the Restrictive Covenants and parts
thereof shall not thereby be affected and shall remain in full force and effect,
without regard to the invalid portion. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable because
of the geographic or temporal scope
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of such provision, such court shall have the power to reduce the geographic or
temporal scope of such provision, as the case may be, and, in its reduced form,
such provision shall then be enforceable.
(c) The Company acknowledges that the payment of Salary, Bonuses and
other benefits provided in Section 3 of this Agreement is a necessary
prerequisite to Executive being bound by the Restrictive Covenants. If the
Company fails to pay to Executive such compensation or benefits within ten
business days after receipt of written notice of such failure, Executive shall
be relieved of his obligations to comply with the Restrictive Covenants. In the
event of the termination of Executive's employment other than (i) by the Company
as provided in Sections 5(a), (b) or (c) of this Agreement or (ii) by Executive
for Good Reason, the Restrictive Covenants shall terminate on the date of
termination of Executive's employment.
8. Inventions and Discoveries. Executive agrees promptly to disclose in
writing to the Company any invention or discovery made by him during the period
of time that this Agreement remains in full force and effect, whether during or
after working hours, in any business in which the Company is then engaged or
which otherwise relates to any product or service dealt in by the Company and
such inventions and discoveries shall be the Company's sole property. Upon the
Company's request, Executive shall execute and assign to the Company all
applications for copyrights and letters patent of the United States and such
foreign countries as the Company may designate, and Executive shall execute and
deliver to the Company such other instruments as the Company deems necessary to
vest in the Company the sole ownership of all rights, title and interest in and
to such inventions and discoveries, as well as all copyrights and/or patents. If
services in connection with applications for copyrights and/or patents are
performed by Executive at the Company's request after the termination of his
employment hereunder, the Company shall pay him reasonable compensation for such
services rendered after termination of this Agreement.
9. Injunctive Relief. Executive agrees that his violation or threatened
violation of any of the provisions of Sections 6, 7 or 8 of this Agreement shall
cause immediate and irreparable harm to the Company. In the event of any breach
or threatened breach of any of said provisions, Executive consents to the entry
of preliminary and permanent injunctions by a court of competent jurisdiction
prohibiting Executive from any violation or threatened violation of such
provisions and compelling Executive to comply with such provisions. This Section
9 shall not affect or limit, and the injunctive relief provided in this Section
9 shall be in addition to, any other remedies available to the Company at law or
in equity or in arbitration for any such violation by Executive. The provisions
of Sections 6, 7, 8 and 9 of this Agreement shall survive any termination of
this Agreement and Executive's employment pursuant to this Agreement.
10. Indemnification. The Company shall provide Executive with payment of
legal fees and indemnification to the maximum extent permitted by the Company's
Certificate of Incorporation, By-Laws, and the laws of the jurisdiction under
which the Company was organized.
11. Miscellaneous.
(a) Executive represents, warrants, covenants and agrees that he has
a right to enter into this Agreement, that he is not a party to any agreement or
understanding, oral or written, which would prohibit performance of his
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obligations under this Agreement, and that he will not use in the performance of
his obligations hereunder any proprietary information of any other party which
he is legally prohibited from using. Executive states unequivocally and
emphatically and Company acknowledges unequivocally and fully informed that by
their signatures hereto Executive does not in any way, shape or form ratify,
endorse, accept, encourage, underwrite, guarantee or acquiesce to any action or
actions taken by, through or under the control or authority (apparent or
implied) of Company from the first day of existence until midnight of the date
of the last signature hereto and that Company shall hold Executive harmless from
all such actions.
(b) The Company represents warrants and agrees that it has full power
and authority to execute and deliver this Agreement and perform its obligations
hereunder and this Agreement has been duly authorized by the Board and no other
corporate action is required of the Company to enter into this Agreement and
perform its obligations hereunder.
(c) Executive will cooperate with the Company in connection with the
Company's application to obtain key-man life insurance on his life, on which the
Company will be the beneficiary. Such cooperation shall include the execution of
any applications or other documents requiring his signature and submission of
insurance applications and submission to a physical.
(d) Any notice, consent or communication required under the
provisions of this Agreement shall be given in writing and sent or delivered by
hand, overnight courier or messenger service, against a signed receipt or
acknowledgment of receipt, or by registered or certified mail, return receipt
requested, or telecopier or similar means of communication if receipt is
acknowledged or if transmission is confirmed by mail as provided in this Section
11(d), to the parties at their respective addresses set forth at the beginning
of this Agreement or by telecopier to the Company at 0000 X. Xxxxxx Xxxxxx, Xxxx
Xxxxx, XX 00000 (561) 750-0420, or to Executive at 000-000-0000 - , with notice
to the Company being sent to the attention of the individual who executed this
Agreement on behalf of the Company. Either party may, by like notice, change the
person, address or telecopier number to which notice is to be sent. If no
telecopier number is provided for Executive, notice to him shall not be sent by
telecopier.
(e) This Agreement shall in all respects be construed and interpreted
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of Florida applicable to contracts executed and to be performed
wholly within such State, without regard to principles of conflicts of laws
except that the provisions of Section 10 shall be governed by the corporation
law of the state in which the Company is incorporated.
(f) Except for actions, suits, or proceedings taken pursuant to or
under Section 6, 7, 8 or 9 of this Agreement, any dispute concerning this
Agreement or the rights of the parties hereunder shall be submitted to binding
arbitration in Miami, Florida before a single arbitrator under the rules of the
American Arbitration Association. The award of the arbitrator shall be final,
binding and conclusive on all parties, and judgment on such award may be entered
in any court having jurisdiction. The arbitrator shall have the power, in his
discretion, to award counsel fees and costs to the prevailing party. The
arbitrator shall have no power to modify or amend any specific provision of this
Agreement except as expressly provided in Section 7(b) and 11(h) of this
Agreement.
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(g) Notwithstanding the provisions of Section 11(f) of this
Agreement, with respect to any claim for injunctive relief or other equitable
remedy pursuant to Section 9 of this Agreement or any claim to enforce an
arbitration award or to compel arbitration, the parties hereby (i) consent to
the exclusive jurisdiction of the state courts sitting in Palm Beach County,
Florida and (ii) waives any claim that the jurisdiction of any such court is not
a convenient forum for any such action and any defense of lack of in personam
jurisdiction with respect thereof.
(h) If any term, covenant or condition of this Agreement or the
application thereof to any party or circumstance shall, to any extent, be
determined to be invalid or unenforceable, the remainder of this Agreement, or
the application of such term, covenant or condition to parties or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant or condition of this Agreement shall be
valid and be enforced to the fullest extent permitted by law, and any court or
arbitrator having jurisdiction may reduce the scope of any provision of this
Agreement, including the geographic and temporal restrictions set forth in
Section 7 of this Agreement, so that it complies with applicable law.
(i) This Agreement constitute the entire agreement of the Company and
Executive as to the subject matter hereof, superseding all prior or
contemporaneous written or oral understandings or agreements, including any and
all previous employment agreements or understandings, all of which are hereby
terminated, with respect to the subject matter covered in this Agreement. This
Agreement may not be modified or amended, nor may any right be waived, except by
a writing which expressly refers to this Agreement, states that it is intended
to be a modification, amendment or waiver and is signed by both parties in the
case of a modification or amendment or by the party granting the waiver. No
course of conduct or dealing between the parties and no custom or trade usage
shall be relied upon to vary the terms of this Agreement. The failure of a party
to insist upon strict adherence to any term of this Agreement on any occasion
shall not be considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement.
(j) Neither party hereto shall have the right to assign or transfer
any of its or his rights hereunder except in connection with a merger of
consolidation of the Company or a sale by the Company of all or substantially
all of its business and assets.
(k) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, successors, executors,
administrators and permitted assigns.
(l) The headings in this Agreement are for convenience of reference
only and shall not affect in any way the construction or interpretation of this
Agreement.
(m) No delay or omission to exercise any right, power or remedy
accruing to either party hereto shall impair any such right, power or remedy or
shall be construed to be a waiver of or an acquiescence to any breach hereof. No
waiver of any breach hereof shall be deemed to be a waiver of any other breach
hereof theretofore or thereafter occurring. Any waiver of any provision hereof
shall be effective only to the extent specifically set forth in an applicable
writing. All
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remedies afforded to either party under this Agreement, by law or otherwise,
shall be cumulative and not alternative and shall not preclude assertion by such
party of any other rights or the seeking of any other rights or remedies against
any other party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ADSOUTH PARTNERS, INC.
By:/S/ Xxxxx Xxxxxx
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Director
EXECUTIVE:
/S/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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