EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the
16th day of August 2010 (the "effective date").
BETWEEN:
Next
One Interactive, Inc.
(the
"Company")
- and
-
Xxxxx
Xxxxx
(the
"Executive")
WHEREAS the Company is engaged
in the ownership and management of travel and leisure, real estate, television
and media related services (the "Business"); and
WHEREAS the Company desires to
employ the Executive and the Executive desires to accept such employment in the
Business, subject to the terms, conditions and covenants herein provided;
and
WHEREAS both parties have
agreed to execute, deliver and perform this Agreement;
NOW THEREFORE in consideration
of the mutual covenants herein contained and other good and valuable
consideration, the Company and the Executive agree as follows:
POSITION
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1.
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The
Company hereby employs the Executive as, and the Executive agrees to be
employed as the President of the Company and will assume the role of
President on the terms and conditions herein
contained.
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The
Executive shall report to the Chief Operating Officer and/or the Chief Executive
Officer (as required) of the Company.
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2.
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The
Executive shall have such duties and responsibilities as the Executive and
the Company’s CEO shall agree upon from time to
time. Initially, such duties and responsibilities will include
those set forth on Exhibit A
hereto.
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3.
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The
Executive shall work primarily out of the office in Weston, Florida
however it is understood that the executive’s duties may require spending
time in other areas of the United
States.
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2
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4.
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The
Executive will agree to work with the CEO, COO and CFO to prepare budgets
for the Company, develop reporting systems, develop new business
opportunities, oversee all operational aspects of the company, work to
develop the travel and incentive side of the operations, help to implement
the media programs and work directly with the CEO on projects and
development of the corporation business plan and operating systems in an
overall effort to aid the corporation in achieving its goals of
operating in an efficient and fiscally responsible
manor.
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REMUNERATION
5. The
Executive shall receive a minimum base salary from the Company of not less than
US$150,000 per year for the first year of employment. Additionally,
the Company will agree to pay the executive an additional $30,000 per year
($2,500 per month) towards a rental property for a period of 1 year. Such rental
property will be done in the company’s name and any additional cost beyond the
$2,500 per month will be at the Executive’s expense.
Thereafter,
the executive will receive an annual review and raise, subject to approval of
the Board of Directors, based upon performance.
During
the Term hereof (the "Salary"), payable in
accordance with the Company's payroll practices in force from time to time shall
be inclusive of all applicable income, employment insurance and other taxes and
charges that are required by law to be withheld by the Company or the
Executive.
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(a)
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Except
as otherwise provided herein, the Salary shall be pro-rated for
any partial
year.
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(b)
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Executive
will be eligible to participate in the 2009 Long-Term Incentive Plan for
stock options to be set under similar terms and conditions as those of
other senior management. The options will vest according to the
terms at the time of the option grant and are subject to Board
approval.
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6.
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Bonuses. The
Company wants to incentivize the Executive to improve efficiencies, drive
revenues and lower expenses. As such the Company is offering the executive
the following Bonus Program:
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(a)
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The
executive will be awarded options to purchase 100,000 of Next One
Interactive, Inc common stock at $0.60 per share. These options
will be exercisable through October 31,
2011.
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(b)
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Should
the company achieve operating profitability for any quarter through May
31, 2011, then the executive will be awarded options to purchase an
additional 100,000 of Next One Interactive, Inc common stock at $0.60 per
share. These options will be exercisable for an 18 month
period from the time of issue.. Such options will be awarded at the end of
each fiscal quarter based upon the Company’s SEC reported financial
statements.
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3
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(c)
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Should
the company achieve $750,000 in revenue in any month from the date of this
agreement through October 31, 2010, then he will be awarded options to
purchase an additional 100,000 of Next One Interactive, Inc common stock
at $1.00 per share. These options will be exercisable for
an 18 month period from time of issue. Such options will be awarded at the
end of each fiscal quarter based upon the Company’s SEC reported financial
statements.
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(d)
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Should
the company achieve $1,000,000 in revenue in any month from the date of
this agreement through April 30, 2011 then he will be awarded options to
purchase an additional 100,000 of Next One Interactive, Inc common stock
at $1.00 per share. These options will be exercisable for
an 18 month period from time of issue. Such options will be awarded at the
end of each fiscal quarter based upon the Company’s SEC reported financial
statements.
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Should
the company achieve $1,250,000 in revenues in any month from the date of this
agreement through April 30, 2011 then he will be awarded options to purchase an
additional 100,000 of Next One Interactive, Inc common stock at $1.00 per
share. These options will be exercisable for an 18 month period
from time of issue. Such options will be awarded at the end of each fiscal
quarter based upon the Company’s SEC reported financial statements.
The
Company will agree to include the Executive in any cash bonuses (Other Bonuses) that may be set
from time to time by the Board of Directors as part of a Senior Management
Incentive package. Such Other Bonuses are at the discretion of the Board of
Directors and if set; will include the Key Senior Management comprising of the
CEO, CFO and COO.
Unless
Executive is Terminated by the Company for Cause as defined in Section 10 (c),
the Employee will be entitled to exercise any options earned within 14 days
after the date of Termination.
4
BENEFITS AND
EXPENSES
7. The
Executive shall be entitled to participate in any health, life and medical
benefit plan made available by the Company generally to its executives, as
amended from time to time. The Company shall pay all necessary and
reasonable business expenses as approved by the Company’s CEO which approval
shall not be unreasonably withheld, and which are actually and properly incurred
by the Executive in furtherance of or in connection with the Business, including
without limitation, all business related travel and parking expenses, public
relations expenses and all business related entertainment expenses (whether
incurred at the Executive's residence, while traveling or
otherwise). If any such expenses are paid in the first instance by
the Executive, the Company shall reimburse him therefor, subject to the receipt
by the Company of statements and vouchers in a form reasonably satisfactory to
the Company.
VACATION
8. The
Executive shall be entitled to four weeks paid vacation in each year of the Term
of the Agreement. In the event of termination of this Agreement and
the Executive's employment, the Executive shall be entitled to payment for any
unused vacation time accrued up to the date of termination.
TERM
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9.
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(a)
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The
initial term of this Agreement (the "Initial Term"), and the
Executive's employment hereunder, shall be for a period of three years
commencing as of August 16, 2010 and expiring on August 15, 2013, unless
sooner terminated in accordance with the provisions of section
10.
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(b)
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In
the event of the delivery by the Executive of a notice pursuant to section
9(a), the Executive shall be deemed to have voluntarily resigned from his
employment hereunder effective on the expiration of the Initial Term or
Renewal Term, as the case may be. In the event of termination
by the Executive under this section 9, the Executive shall be entitled to
Salary and benefits (including, without limitation, Executive’s Bonus)
earned up until termination and shall be entitled to reimbursement of
business expenses recoverable under section 7, above, incurred up until
termination. Notwithstanding the foregoing and notwithstanding the
provisions of Article 10 hereof, in the event the Executive delivers a
notice pursuant to subsection 9(a) and is thereby deemed to have
voluntarily resigned from his employment effective on the expiration of
the Initial Term or the Renewal Term, upon receipt of such notice, the
Company shall have the right to immediately terminate the employment of
the Executive hereunder and in such event the Executive shall only be
entitled to his Salary and benefits (including, without limitation,
Executive’s Bonus) earned up until termination and shall be entitled to
reimbursement of business expenses recoverable under section 7 above,
incurred up until termination.
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5
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(c)
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In
the event of the delivery by the Company of a notice pursuant to section
10(a), Company shall pay Executive his Salary and benefits (including,
without limitation, Executive’s Bonus) earned or accrued through the date
of termination and shall reimburse Executive for business expenses
recoverable under section 7, above, incurred up until the date of
termination.
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TERMINATION
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10.
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(a)
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Events
of Termination. The Term, the Executive’s Salary and any
and all other rights of the Executive under this Agreement or otherwise as
an executive of the Company will terminate (except as otherwise provided
in section 10):
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(i)
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upon
the death of the Executive;
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(ii)
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upon
the disability of the Executive (as defined in section 10(b)) immediately
upon notice from either party to the
other;
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(iii)
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For
Cause (as defined in section 10(c)), immediately upon notice from the
Company to the Executive or at such later time as such notice may
specify;
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(iv)
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Other
than For Cause, Disability or Death, immediately upon notice from the
Company to the Executive or at such later time as such notice may specify;
or
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(v)
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For
Good Reason (as defined in section 10(d)) upon not less than 10 days'
prior notice from the Executive to the
Company.
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(b)
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Definition
of Disability. For the purposes of section 10(a),
the Executive will be deemed to have a "disability" if, for
physical or mental reasons, the Executive is unable to perform the
Executive's duties for a period of 120 days out of 180 days, under this
Agreement as determined in accordance with this
section 10(b). The disability of the Executive will be
determined by a medical doctor selected by written agreement of the
Company and the Executive upon the request of either party by notice to
the other. If the Company and the Executive cannot agree on the
selection of a medical doctor, each of them will select a medical doctor
and the two medical doctors will select a third medical doctor who will
determine whether the Executive has a disability. The
determination of the medical doctor selected under this section 10.2(b)
will be binding on both parties.
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6
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(c)
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Definition
of "For Cause". For the purposes of section 10(a), the
phrase "For Cause"
means: (i) the Executive's material breach of this Agreement; (ii)
the Executive’s failure to substantially perform the duties of Chief
Operating Officer (or such other position with the Company as Executive
may hold) as contemplated hereunder; (iii) the Executive's failure to
substantially adhere to any reasonable written Company policy if the
Executive has been given a reasonable opportunity to comply with such
policy or cure his failure to comply; (iv) the misappropriation by
the Executive of a material business opportunity of the Company, including
securing any undisclosed personal profit in connection with any
transaction entered into on behalf of the Company; (v) the
misappropriation of any of the Company's funds, property or Confidential
Information; (vi) the commission of material acts of dishonesty, willfully
fraudulent or criminal acts or misconduct, or other willfully wrongful
acts or omissions materially adversely affecting the Company;
(vii) the conviction of, the indictment for or its procedural
equivalent or the entering of a guilty plea or plea of no contest with
respect to any felony.
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(d)
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Definition
of "For Good Reason." For the
purposes of section 10(a), the phrase "For Good Reason"
means the Company's material breach of this
Agreement.
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(e)
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Termination
Pay. Effective upon the termination of this Agreement
for any of the reasons set forth in section10(a), the Company shall be
obligated to pay the Executive (or in the event of his death, his
designated beneficiary as defined below) the compensation provided in this
section 10(e), as well as all business expenses recoverable under Section
7. For purposes of this section 10(e), the Executive's designated
beneficiary will be such individual beneficiary or trust, located at such
address, as the Executive may designate by notice to the Company from time
to time or if the Executive fails to give notice to the Company of such a
beneficiary, the Executive's estate. Notwithstanding the preceding
sentence the Company will have no duty, in any circumstances, to attempt
to open an estate on behalf of the Executive, to determine whether any
beneficiary designated by the Executive is alive or to ascertain the
address of any such beneficiary, to determine the existence of any trust,
to determine whether any person or entity purporting to act as the
Executive's personal representative (or the trustee of a trust established
by the Executive) is duly authorized to act in that capacity or to locate
or attempt to locate any beneficiary, personal representative, or
trustee.
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(i) Termination
by the Executive For Good Reason. If the Executive terminates this
Agreement For Good Reason, the Company shall (A) pay the Executive his Salary
and other benefits earned or accrued through the date of
termination.
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(ii)
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Termination
by the Company For Cause. If
the Company terminates this Agreement For Cause, the Company shall pay
Executive his Salary and other benefits earned or accrued through the date
of termination.
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(iii)
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Termination
upon Disability. If this Agreement is terminated by
either party as a result of the Executive's disability, as determined
under section 10(a)(ii), the Company shall (A) pay the Executive his
Salary and other benefits earned or accrued through the remainder of the
calendar month during which such termination is
effective.
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7
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(iv)
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Termination
upon Death. If
this Agreement is terminated because of the Executive's death, the Company
shall (A) pay Executive’s estate or designated beneficiary the Executive’s
Salary, Bonus and other benefits earned or accrued through the date of
death.
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(v)
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Termination
by Company Other than For Cause, Disability or Death. If the Company
terminates this Agreement other than For Cause or for death or disability,
the Company shall (A) pay Executive his Salary, Bonus and other benefits
earned or accrued through the date of
termination.
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CONFIDENTIALITY
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11.
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(a)
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All
confidential records, material, information and all trade secrets
concerning the business or affairs of the Company obtained by the
Executive in the course of his employment with the Company shall remain
the exclusive property of the Company. During the Executive's
employment or at any time thereafter, the Executive shall not divulge the
contents of such confidential records, material, information or trade
secrets to any person, firm or corporation other than to the Company or
the Company’s qualified executives and following the termination of his
employment hereunder the Executive shall not, for any reason, use the
contents of such confidential records, material, information or trade
secrets for any purpose whatsoever. This section shall not
apply to any confidential records, material, information or trade secrets
which:
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(1)
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is
or becomes publicly known through the lawful action of any third
party;
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(2)
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is
disclosed without restriction to the Executive by a third
party;
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(3)
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is
known by the Executive prior to its disclosure by the
Company;
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(4)
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is
subsequently developed by the Executive, independently of records,
material, information and trade secrets supplied to the Executive by the
Company;
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(5)
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has
been made available by the Company directly or indirectly to a third party
without obligation of confidentiality;
or
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(6)
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the
Executive is obligated to produce as a result of a court order or pursuant
to governmental or other legal action, provided that the Company shall
have been given written notice of such court order or governmental or
other legal action and an opportunity to appear and
object.
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8
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(b)
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The
Executive agrees that all Confidential Information which the Executive
develops, prepares or works on either individually or on a team during the
Term with the Company shall belong exclusively to the Company and the
Executive hereby assigns to the Company all title and interest, including
copyright and patent rights, thereto and waives any moral rights which the
Executive may have therein. If the Executive develops, prepares
or works on the design or development of Confidential Information of any
kind during the Term, the Executive will keep notes and other written
records of such work, which records shall be kept on the premises of the
Company and made available to the Company at all times for the purpose of
evaluation and use in obtaining copyright protection or as a protective
procedure. The Executive will upon request of the Company, and at the
Company's expense, provide a reasonable level of assistance to the Company
with respect to applications for trade marks, copyrights, patents or other
forms of intellectual property protection for work on which the Executive
was involved during the Term. The Executive agrees to execute such
documents as are reasonable and necessary for the purpose of the Company
establishing its right of ownership to such
property.
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NON-SOLICITATION
12. The
Executive covenants and agrees with the Company that he shall not, during the
term of his employment hereunder and for a period ending ninety days following
the date of the termination (for any reason) of his employment:
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(a)
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directly
or indirectly solicit, interfere with or endeavor to direct or entice away
from the Company any person, firm or company who is or has within the
preceding year been a customer, client, affiliated agency or otherwise in
the habit of dealing with the Company;
or
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(b)
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Interfere
with, entice away or otherwise attempt to induce the termination of
employment of any employee of the
Company.
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NON-COMPETITION
13. The
Executive covenants and agrees with the Company that he will not (without the
prior written consent of the Company which consent will not be unreasonably
withheld) directly or indirectly, during the term of his employment hereunder
and for a period 30 days following the date of the termination of his
employment, carry on or be engaged in any business within North America which is
competitive with the Business (a "Competitive Business") where
such business involves “clients or accounts” that were introduced to the
Executive by the Company.
9
INJUNCTIVE
RELIEF
14. The
Executive acknowledges and agrees that the agreements and covenants in sections
11 to 13 are essential to protect the business and goodwill of the Company and that a breach by
the Executive of the covenants in sections 11 to 13 hereof could result in
irreparable loss to the Company which could not be adequately compensated for in
damages and that the Company may have no adequate remedy at law if the Executive
breaches such provisions. Consequently, if the Executive breaches any
of such provisions, the Company shall have in addition to and not in lieu of,
any other rights and remedies available to it under any law or in equity, the
right to obtain injunctive relief to restrain any breach or threatened breach
thereof and to have such provisions specifically enforced by any court of
competent jurisdiction.
DISPUTE RESOLUTION
PROCEDURE
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15.
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(a)
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The
parties shall be free to bring all differences of interpretation and
disputes arising under or related to this Agreement to the attention of
the other party at any time without prejudicing their harmonious
relationship and operations hereunder and the offices and facilities of
either party shall be available at all times for the prompt and effective
adjustment of any and all such differences, either by mail, telephone, or
personal meeting, under friendly and courteous
circumstances. Notwithstanding the foregoing, any controversy,
claim, or breach arising out of or relating to this Agreement which the
parties are unable to resolve to their mutual satisfaction shall be
resolved in accordance with subparagraph b
below.
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(b)
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As
a condition precedent to invoking any other dispute resolution procedure
including litigation, the parties shall attempt in good faith first to
mediate such dispute and use their best efforts to reach agreement on the
matters in dispute. Within five business days of the
request of either party, the requesting party shall attempt to employ the
services of a third person mutually acceptable to both parties to conduct
such mediation within five business days of the mediator's
appointment. Unless otherwise agreed upon by the parties
hereto, the parties shall share the cost of the mediator's fees and
expenses equally. If the parties are unable to agree on such
third person, then the requesting party may submit the matter to the
nearest office of the American Arbitration Association for mediation, only, in
accordance with the commercial mediation rules then
prevailing. If, on completion of such mediation, the parties
are still unable to agree upon and settle the dispute, then either party
may initiate litigation. This Agreement contains no arbitration
clause. Binding arbitration may only be used upon the mutual
agreement of the parties hereto.
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10
SEVERABILITY
16. The
parties acknowledge that the provisions of sections 11 to 13 hereof (the "Restrictive Covenants") are
reasonable and valid in geographic and temporal scope and all other
respects. If any court of competent jurisdiction determines that any
of the Restrictive Covenants or any part thereof, is or are invalid or
unenforceable, the remainder of the Restrictive Covenants shall not thereby be
affected and shall be given full effect, without regard to invalid
portions. If any court of competent jurisdiction determines that any
of the Restrictive Covenants or any part thereof is unenforceable because of the
duration or geographic scope of such provision, such court shall have the power
to reduce the duration or scope of such provision, as the case may be and, in
its reduced form, such provision shall then be enforceable. The
Executive acknowledges that the Company's business extends throughout the
geographical area outlined above and that the geographic scope of the covenants
contained herein is reasonable.
INDEMNITY
17. Except
for acts of dishonesty, willfully fraudulent or criminal acts or other willfully
wrongful acts or omissions on the part of Executive, the Company agrees to
indemnify and save the Executive harmless from and against any and all damages,
liabilities, claims, costs, including reasonable attorneys’ fees, charges and
expenses, including any amount paid to settle any action or satisfy any
judgment, incurred by him in connection with his employment or incurred by him
in respect of any civil, criminal or administrative action or proceeding to
which the Executive is made a party by reason of having been an officer or
employee of the Company.
WHOLE
AGREEMENT
18. This
Agreement constitutes and expresses the whole agreement of the parties hereto
with respect to the employment of the Executive by the Company and with respect
to any matters or things herein provided for or hereinbefore discussed or
mentioned with reference to such employment. All promises,
representations, collateral agreements and understandings relative thereto not
incorporated herein are hereby superseded by this Agreement.
11
GENERAL
19. All
notices, request, demands or other communications by the terms hereof required
or permitted to be given by one party to the other shall be given in writing by
personal delivery or by facsimile, addressed to the other party as
follows:
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(a)
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to
the Company at:
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Next
One Interactive
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0000
Xxxxx Xxxxxxxx Xxxx, xxx 000
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Xxxxxx
XX 00000
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Attention:
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Xxxxxxx
Xxxxx
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Facsimile
No:
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(000)
000-0000
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(b)
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to
the Executive at:
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Xxxxx
Xxxxx
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Facsimile
No:
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or such
other addresses as may be given by either of them to the other in writing from
time to time.
20. This
Agreement shall be governed by and interpreted under the laws of the State of
Florida without regard to principals of conflicts of law.
21. All
dollar amounts referred to in this Agreement are expressed in U.S.
funds.
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22.
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(a)
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This
Agreement is personal to the Executive and may not be assigned by
him.
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(b)
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Upon
notice to the Executive, this Agreement may be assigned to an affiliate of
the Company, provided that notwithstanding such assignment, the Company
continues to guarantee the performance by such assignee of its obligations
hereunder. This Agreement shall not otherwise be assigned by
Company and such restriction shall include any assignment by operation of
law.
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(c)
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Except
as aforesaid, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns,
including, in the case of the Executive, his heirs, executors,
administrators and legal personnel
representatives.
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23. Time
shall be of the essence of this Agreement and of every part hereof.
24. The
parties acknowledge and agree that, except to the extent the context clearly
requires otherwise, the representations, warranties and covenants set forth
herein shall survive the termination or expiration of this
Agreement.
12
25. The
parties acknowledge that each of them has read and understood this Agreement,
and that each of them has been given the opportunity to obtain independent legal
advice in connection with this Agreement and its terms.
IN WITNESS WHEREOF the parties
hereto have executed this Agreement as of the date first above
written.
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Next
One Interactive, Inc.
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By:
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/s/ Xxxxxxx Xxxxx
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Xxxxxxx
Xxxxx
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Chief
Executive Officer
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/s/ Xxxxx Xxxxx
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Witness
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Xxxxx
Xxxxx.
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13
EXHIBIT
A
To
the Employment Agreement Dated the 16th day of August 2010
by
and between
Next
One Interactive, Inc.
And
Xxxxx
Xxxxx
The
Executive’s initial responsibilities are as follows:
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Duties:
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Responsible
for the day to day operations of Next One.
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Responsible
for overseeing the Travel, Technology, Real Estate and Media operations
including the company TV and web properties.
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Work
with the CEO and COO to assist in setting of the direction of the
corporation
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Implementation
of reporting systems
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Setting
up Structure and staff roles, responsibilities, goals and
objectives.
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Coordinating
the media, real estate and travel divisions operations to ensure they act
in an efficient and profitable
manner.
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Review
of existing staff and assessing capabilities including position changes,
hiring and firing as required
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Working
with the CFO to review expenditures and ensure efficiencies and cost control
system/best practices are implemented and practiced
Such
other duties as may be assigned by the CEO from Time to Time
