EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of the ____ day of
December, 1999 between The Golfing Xxxxxxx.Xxx Inc., a Florida
corporation ("Company") and NetWeb XxXxxx.Xxx Inc., a Texas
corporation, for itself and as sole shareholder of the Company
("NetWeb"), with both of their principal offices at 0000 XX Xxxx
Xxxxx Xxxx, Xxxxx X00, Xxxx Xxxxx, XX 00000, and Xxxxx X. Xxxxxx,
an individual residing at 0000 Xxxxx Xx Xxxx, XxXxxxxx, Xxxxx
00000 (the "Employee").
In consideration of their mutual promises and covenants
set forth herein, and intending to be legally bound hereby,
Company, NetWeb and Employee agree as follows:
1. Employment. The Company hereby employs the
Employee and the Employee accepts such employment on the terms
and conditions hereinafter set forth. NetWeb hereby accepts and
ratifies such employment.
2. Term. The initial term of the Agreement shall
commence as of the date hereof and terminate on December 31, 2004
("Initial Term") and shall be automatically renewed for periods
of one (1) year ("Renewal Terms") after the expiration of the
Initial Term and any renewals thereof unless either party gives
the other party hereto written notice of termination at least
thirty (30) days prior to the expiration of the Initial Term or
Renewal Term or unless this Agreement is sooner terminated in
accordance with Paragraph 7 hereof. The Initial Term or any
Renewal Term shall sometimes hereinafter be referred to as
"Term."
3. Duties. The Employee is engaged hereunder as
President and Chief Executive Officer and he agrees to perform
the duties and services incident to that position, or such other
or further duties and services of a similar nature as may be
reasonably required of him by the Board of Directors of the
Company.
The Employee shall devote all his business time,
attention, energies and efforts to the performance of his duties
hereunder and to the promotion of the business and interests of
the Company.
4. Compensation; Expenses.
(a) Base Salary. During the Term of this
Agreement, the Employee shall be paid a salary at the monthly
rate of Five Thousand Six Hundred Dollars ($5,600) (the "Base
Salary"). Base Salary or any increase thereof shall sometimes
hereafter be referred to as "Current Salary." The Current Salary
shall be paid in installments in arrears in accordance with the
Company's regular payroll practices, but not less often than
monthly.
(b) Incentive Compensation. In addition to the
Base Salary, Company shall pay to Employee a bonus (the "Bonus")
on or before January 31 of the succeeding calendar year based
upon sales performance of the Company as follows:
(i) 1% of gross sales revenues between $500,000 and
$1,000,000 in each calendar year; and
(ii) 3% of gross sales revenues in excess of $1,000,000 in
each calendar year.
The Company may also pay an Employee additional bonuses if
determined by the Board of Directors of NetWeb, in its sole
discretion, without Employee having any vote in such
determination.
(c) Fringe Benefits. The Employee shall be
entitled to participate in all fringe benefit programs of NetWeb
or the Company (including, without limitation, health and dental
plans, personal days, sick days and 401(k) plan) to the extent
and on the same terms and conditions as are accorded to other
executive employees of NetWeb or the Company. In addition, the
Company will provide Employee with an automobile allowance of
$400 per month.
(d) Business Expenses. The Company will pay or
reimburse the Employee for all ordinary and reasonable out-of-
pocket business expenses reasonably incurred by Employee in
connection with his performance of services hereunder, upon
presentation to the Company of appropriate documentation.
Expenses shall be subject to review and approval by the Chief
Executive Officer of NetWeb.
5. Death or Total Disability of the Employee.
(a) Death. In the event of the death of the
Employee during the Term of this Agreement, this Agreement shall
terminate effective as of the date of the Employee's death, and
the Company shall not have any further obligation or liability
hereunder except that the Company shall pay to Employee's
designated beneficiary or, if none, his estate, within ten (10)
days after such death, the portion, if any, of the Employee's
Current Salary, Bonus and fringe benefits for the period up to
the Employee's date of death which remains unpaid.
(b) Total Disability. In the event of the Total
Disability (as that term is hereinafter defined) of the Employee,
the Company shall have the right to terminate the Employee's
employment hereunder by giving the Employee thirty (30) days
prior written notice thereof and, upon expiration of such thirty
(30) day period, the Company shall not have any further
obligation or liability under this Agreement except that the
Company shall pay to the Employee within ten (10) days after such
determination the portion, if any, of the Employee's Current
Salary, Bonus and fringe benefits for the period up to the date
of termination which remains unpaid. Notwithstanding the
foregoing, if the Employee, during any period of disability,
receives any periodic payments which represent lost compensation
under any disability insurance paid for by Company, the amount of
the Current Salary that the Employee would be entitled to receive
from the Company during such period of disability shall be
decreased by the amounts of such payments.
The term "Total Disability," when used herein,
shall mean a mental, emotional or physical condition which has
rendered the Employee for a period of ninety (90) consecutive
days or any one hundred twenty days (120) during any period of
twelve (12) consecutive months during the Term of this Agreement,
unable or incompetent to carry out, on a substantially full-time
basis, the job responsibilities he held or tasks that he was
assigned at the time the disability was incurred.
6. Termination of Employment.
(a) Termination by Company for Cause. In
addition to termination pursuant to Paragraph 5, the Company may
discharge the Employee and thereby terminate his employment
hereunder at any time for "cause." For purposes of this
Agreement, "cause" shall mean: (i) wilful or deliberate failure
by Employee to substantially perform his duties to the Company or
its affiliates; (ii) grossly incompetent performance of
Employee's duties to the Company or its affiliates;
(iii) dishonesty in the performance of Employee's duties of a
material nature adversely affecting the Company; (iv) an act or
acts on Employee's part resulting in: (1) conviction of a felony
or a plea of guilty or no contest to any felony or (2) any formal
finding by a judicial regulatory or self-regulatory body that
Employee has engaged in conduct involving, or have entered into a
consent decree as a result of allegations involving, any
violation of the securities or commodities laws of the United
States, or any state thereof (or, if located abroad, any foreign
jurisdiction) or any regulation promulgated thereunder;
(v) Employee intentionally engaged in conduct materially
injurious to the Company or its affiliates, including, but not
limited to breaches of trust; or (vi) any intentional, willful or
reckless misappropriation or misuse by Employee of any
confidential or proprietary information of the Company or its
affiliates for his personal gain or that of others; (vii)
misappropriation of corporate funds materially and adversely
affecting the financial condition of the Company; or (viii) the
Employee's breach of the terms set forth in this Agreement in
any other respect, but only if such breach is not cured within
thirty (30) days after prior written notice thereof is given to
Employee by Company in the manner prescribed by Paragraph 13
below. In the event that the Company shall terminate the
Employee pursuant to this Paragraph 6(a), the Company shall have
no further obligation or liability under this Agreement, except
that within ten (10) days after such discharge the Company shall
pay to Employee the portion, if any, of the Employee's Current
Salary, Bonus and fringe benefits which remain unpaid as of the
date of termination.
(b) Termination by the Company Without Cause. If
the Company discharges Employee and thereby terminates his
employment for any reason other than as set forth in Paragraph 5
and 6(a) above, Employee shall be entitled to receive the
remaining Current Salary due to him under this Agreement for the
remainder of the then current Term of this Agreement (but in no
event more than an amount equal to six (6) months of Employee's
Current Salary), payable in accordance with the Company's
standard payroll policies over such period of time and all
previously issued and unissued Warrants will automatically be
granted and vested. Further in the event of such termination.
(c) Termination by Employee.
(i) Employee may terminate this Agreement at
any time voluntarily. In such event, Employee
shall be entitled to receive his Current Salary
and fringe benefits through the date of
termination, but will not be entitled to any Bonus
not previously declared and/or issued.
(ii) Employee may also terminate this
Agreement by reason of the Company's breach of any
provisions of this Agreement, but only if such
breach is not cured within thirty (30) days (or
such longer period as is reasonably required to
cure such breach) after notice thereof is given to
Company. Such termination shall be considered
Termination by the Company without cause in
accordance with Section 6(b) above and Employee
shall be entitled to the payments provided
therein.
7. Non-Disclosure. The Employee recognizes and
acknowledges that he will have access to certain confidential
information of the Company and NetWeb and that such information
constitutes valuable, special and unique property of the Company
and NetWeb. The Employee agrees that he will not, for any reason
or purpose whatsoever, during or after the term of his
employment, disclose any of such confidential information to any
party without express authorization of the Company, except as
necessary in the ordinary course of performing his duties
hereunder. The obligation of confidentiality imposed by this
paragraph shall not apply to information which appears in issued
patents or printed publication, which otherwise becomes generally
known in the industry through no act of the Employee in breach of
this Agreement or from a source other than the Company, provided
that such source is not known by Employee to be bound by a
confidentiality agreement.
8. Non-Competition. The Employee agrees that during
the Term of this Agreement and for a period of one (1) year
thereafter (or for a period of one (1) year after the date of
termination if this Agreement is sooner terminated by a party
hereto as herein provided), the Employee shall not, unless acting
pursuant hereto or with the prior written consent of the Company,
directly or indirectly:
(a) solicit business from or perform services
for, any person, company or other entity which at any
time during the Employee's employment by the Company is
or was a client or customer of the Company if such
business or services are of the same general character
as those engaged in or performed by the Company;
(b) solicit for employment or in any other
fashion hire any of the employees away from the
Company;
(c) own, manage, operate, finance, join, control
or participate in the ownership, management, operation,
financing or control of, or be connected as an officer,
director, employee, partner, principal, agent,
representative, consultant or otherwise with any
business or enterprise engaged in the business of
residential sub-prime mortgage lending (or any other
lines of business that Company enters into during the
Term of this Agreement) within the United States ;
(d) use the name of the Company or any name
similar thereto, but nothing in this clause shall be
deemed, by implication, to authorize or permit use of
such name after expiration of such period,
provided, however, that nothing in this Paragraph 8 shall be
construed to prohibit the Employee from investing his assets in
other businesses, provided, that such businesses are not in
direct competition with Company or the Partnership. In the event
that the provision of this Paragraph should ever be adjudicated
to exceed the time, geographic, service or product limitations
permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the
maximum time, geographic, service or product limitations
permitted by applicable law.
9. Equitable Relief; Survival. The Employee
acknowledges that the restrictions contained in Paragraphs 7 and
8 hereof are, in view of the nature of the business of the
Company, reasonable and necessary to protect the legitimate
interests of the Company, and that any violation of any
provisions of these Paragraphs will result in irreparable injury
to the Company. The Employee also acknowledges that the Company
shall be entitled to temporary and permanent injunctive relief,
without the necessity of proving actual damages, and to an
equitable accounting of all earnings, profits and other benefits
arising from any such violation, which rights shall be cumulative
and in addition to any other rights or remedies to which the
Company may be entitled. In the event of any such violation, the
Company shall be entitled to commence an action for temporary and
permanent injunctive relief or any other equitable relief in any
court of competent jurisdiction and Employee further irrevocably
submits to the jurisdiction of any Florida or Federal court
sitting in the Southern District of Florida over any suit, action
or proceeding arising out of or relating to Paragraph 7 or 8.
The Employee hereby waives, to the fullest extent permitted by
law, any objection that he may now or hereafter have to such
jurisdiction or to the venue of any such suit, action or
proceeding brought in such a court and any claim that such suit,
action or proceeding was brought in an inconvenient forum.
Effective service of process may be made upon the Employee by
mail under the notice provisions contained in Paragraph 16 below.
10. Remedies Cumulative; No Waiver. No right or
remedy conferred upon the Company or Employee by this Agreement
is intended to be exclusive of any other right or remedy, and
each and every such right and remedy shall be cumulative and
shall be in addition to any other right and remedy given
hereunder or now or hereafter existing at law or in equity. No
delay or omission by the Company or Employee in exercising any of
its respective rights, remedies or powers hereunder or existing
at law or in equity shall be construed as a waiver thereof, and
any such respective rights, remedies or powers may be exercised
by the Company or Employee from time to time and as often as may
be deemed expedient or necessary by the Company or Employee in
their respective sole discretions.
11. Enforceability. If any provision of this
Agreement shall be invalid or unenforceable, in whole or in part,
then such provision shall be deemed to be modified or restricted
to the extent and in the manner necessary to render the same
valid and enforceable or shall be deemed excised from the
Agreement, as the case may require, and this Agreement shall be
construed and enforced to the maximum extent permitted by law, as
if such provision had been originally incorporated herein as so
modified or restricted, or as if such provision had not been
originally incorporated herein, as the case may be.
12. Joint and Several Obligations of Company and
NetWeb. The obligations of Company which are required to be
performed by Company are accepted by NetWeb and NetWeb hereby
agrees to be bound by such obligation and agrees to cause Company
to perform such obligations or to perform such obligations.
NetWeb does not waive any claims, defenses, offsets or
counterclaims which Company may now or hereafter have against
Employee and may assert any such claims, defenses, offsets or
counterclaims against Employee in any action or proceeding
brought by Employee hereunder.
13. Notices. All notices, requests, demands, claims
and other communications hereunder will be in writing. Any
notice, request, demand, claim or other communication hereunder
shall be deemed duly given if it is sent by registered or
certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to Employee: Xxxxx X. Xxxxxx
0000 Xxxxx Xx Xxxx
XxXxxxxx, Xxxxx 00000
If to Company: The Golfing Xxxxxxx.Xxx Inc. (Texas)
0000 XX Xxxx Xxxxx Xxxx
Xxxxx X00
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Secretary of the Corporation
If to NetWeb: NetWeb XxXxxx.Xxx Inc. (Florida)
0000 X.X. Xxxx Xxxx Xxxx.
Xxxxx X00
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Secretary of the Corporation
Any party hereto may give any notice, request, demand,
claim or other communication hereunder using any other means
(including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but
no such notice, request, demand, claim or other communication
shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended.
Any party hereto may change the address to which notices,
requests, demands, claims and other communications hereunder are
to be delivered by giving the other parties notice in the manner
herein set forth.
For purposes of this Agreement, any notice of
termination by one party to the other shall be in accordance with
this Paragraph 13 and shall:
(a) indicate the specific termination provision
in this Agreement relied upon;
(b) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for
termination of this Agreement under the
provision so indicated; and
(c) if the termination date is other than the
date of receipt of such notice, specify the
termination date of this Agreement (which
date shall in all respects comply with the
terms and conditions of this Agreement,
including, without limitation, the expiration
of any cure period).
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF FLORIDA.
15. Contents of Agreement; Amendment and Assignment.
This Agreement sets forth the entire understanding between the
parties hereto with respect to the subject matter hereof and
supersedes and is instead of all other employment arrangements
between the Employee and the Company. This Agreement cannot be
changed, modified or terminated except upon written amendment
duly executed by the parties hereto. All of the terms and
provisions of this agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective heirs,
representatives, successors and permissible assigns of the
parties hereto, except that the duties and responsibilities of
the Employee hereunder are of a personal nature and shall not be
assignable in whole or in part by the Employee.
16. Arbitration.
(a) Any dispute between the Company and the
Employee under this Agreement, other than a dispute relating to
Paragraphs 7, 8, 9, and 10, will be submitted to arbitration in
Broward or Palm Beach Counties, Florida and such arbitration will
be commenced, conducted and concluded in accordance with the
rules and under the auspices of the American Arbitration
Association then in effect. All fees and expenses of the
arbitration will be paid by the respective parties in accordance
with the decision of the Arbitrator. The decision of the
arbitrators will be final and binding and both parties hereby
forever waive and renounce any right either party may have to
seek review of such decision in any tribunal.
17. Attorneys' Fees and Expenses. In the event that a
party hereto institutes a proceeding at law or in equity or seeks
arbitration against the other party hereto to interpret or
enforce the terms or conditions of this Agreement, the prevailing
party in such proceeding shall be entitled to all costs thereby
incurred, including, without limitation, all attorneys' fees and
expenses at trial or in an arbitration, on appeal and under any
bankruptcy proceeding. The determination as to which party is
the prevailing party shall be submitted for resolution to and
determined by the Arbitration panel or Court, as the case may be.
18. Counterparts; Telefacsimile Execution. This
Agreement may be executed in any number of counterparts, and by
each of the parties on separate counterparts, each of which, when
so executed, shall be deemed an original, but all of which shall
constitute but one and the same instrument. Delivery of an
executed counterpart of this Agreement by telefacsimile shall be
equally as effective as delivery of a manually executed
counterpart of this Agreement. Any party hereto delivering an
executed counterpart of this Agreement by telefacsimile also
shall deliver to the other party hereto a manually executed
counterpart of this Agreement, but the failure to deliver a
manually executed counterpart shall not affect the validity,
enforceability or binding effect of this Agreement.
19. Survival of Covenants. Notwithstanding anything
else herein to the contrary, the provisions of Paragraphs 7, 8,
12, 14, 16 and 20 and all remedies of any party hereto to enforce
its rights hereunder as a result of such party's termination of
this Agreement shall survive the termination of this Agreement
for any reason until and unless all obligations of one party due
to any other party under this Agreement are satisfied in full.
20. Titles Not To Affect Interpretation. Titles of
Paragraphs and subparagraphs contained in this Agreement are
inserted for convenience of reference only; they neither form a
part of the Agreement nor are they to be used in the construction
or interpretation thereof.
IN WITNESS WHEREOF, this Agreement has been executed by
the parties on the date first above written.
The Golfing Xxxxxxx.Xxx Inc.
(Texas)
By: /s/
duly authorized
officer
NetWeb XxXxxx.Xxx Inc.
(Florida)
By: /s/
duly authorized
officer
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
