EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
1st day of January 2000 by and between 5TH AVENUE CHANNEL CORP. (the "Company"),
a Florida corporation and Xxx Xxxxx (the "Employee").
WITNESSETH:
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WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company desires to employ the Employee the Company's President and Chief
Executive Officer, and the Employee desires to be so employed by the Company.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by this reference. The Company's Employee Manual (as defined
below) is considered part of this Agreement.
2. EMPLOYMENT. In exchange for the "Compensation" (as hereinafter
defined) and subject to the other terms and conditions hereinafter set forth,
the Company hereby employs the Employee to render the "Employee Duties" (as
described in Section 3 below) as an employee of the Company, and the Employee
hereby accepts such employment.
3. EMPLOYEE DUTIES. For purposes of this Agreement, "Employee Duties"
shall mean serving the Company as its President and Chief Executive Officer. In
this capacity, Employee will be responsible for such duties and responsibilities
that are customary for such a position as well as such other duties and
responsibilities assigned to Employee from time to time by the President of the
Company.
4. TERM. This Agreement shall commence on the date hereof and shall
continue to be in effect for five (5) years from the date of this Agreement
("Term"), unless terminated prior to the end of the Term in accordance with
Section 7 of this Agreement. At the end of the Term, this Agreement shall be
automatically renewed for consecutive additional one-year periods ("Renewal
Terms") unless either party provides written notice of non-renewal to the other
not less than ninety (90) days prior to the end of the Term or any such renewal
term.
5. LOCATION. The Employee will be required to spend his principal
time at the facilities specified by the Company in the Miami area to achieve the
Employee Duties. The Company's activities will be first priority for Employee.
6. COMPENSATION. In exchange for the Employee's performance of the
Employee Duties hereunder, the Company hereby agrees to pay the Employee the
following compensation (collectively, the "Compensation"):
(a) BASE SALARY. The Company shall pay the Employee a gross
annual salary of two hundred and fifty thousand dollars ($250,000) per year (the
"Salary") together with an annual bonus to be based upon performance of the
Company's business operations. Salary shall be paid by the Company in accordance
with the Company's regular payroll practices which at this time are on the 15th
and 30th of each month.
(b) WITHHOLDING. The Company shall deduct or withhold from all
Compensation payable hereunder all amounts required to be deducted or withheld
from Compensation pursuant to state or federal law.
(c) STOCK OPTIONS. Employee shall be granted options to purchase
240,000 shares of the Company's Common Stock for employment for the year 2000
and 240,000 for the year 2001. (The year 2000 grant was already ratified by the
Board of Directors on January 31, 2000). Stock options for the year 2000 shall
be granted at the fair market value of the stock as of January 31, 2000 and for
the year 2001 at the fair market value of the stock as of January 31, 2001. Such
grant of options shall be at no cost to the Employee and shall be otherwise
governed by the terms of the Company's Employee Stock Option Plan as modified
from time to time. Such options vest ratably each month throughout the years
2000 and 2001, and have an expiration term of five years. In addition, the
Company grants to Employee, for each six months of employment commencing January
1, 2000 25,000 options at an exercise price of $10, 25,000 options at an
exercise price of $15, and 25,000 options at an exercise price of $20. Such
options shall have a three year term and vest ratably over a six month period
from date of grant. All options granted to Employee are non-dilutable based on
the amount of outstanding shares of the Company's Common Stock as of January 31,
2000. If the Company increases the number of outstanding shares prior to either
the exercise of any of the options by the Employee or the sale by the Employee
of the exercised shares, such amount of options or shares shall be increased by
the percentage increase in the number of outstanding shares of the Company's
Common Stock. The 240,000 options for the year 2000 shall be registered in the
Company's upcoming S-8 registration.
(d) GRANT OF STOCK. In recognition of the Employee's work in
1999, Company agrees to grant thirty thousand (30,000) shares of the Company's
Common Stock. Such shares will be registered in the SB-2 registration to be
amended prior to going effective with the SEC.
(e) OTHER BENEFITS. The monthly premiums for family health are
paid by the Company. Company will also provide a $1 million dollar life
insurance policy to the beneficiary specified by Employee. Company shall also
provide the other insurance that is the same provided to other senior executives
of the Company. Dental is available to the Employee at the Employee's expense
from a plan the company has negotiated. The company honors 9 holidays. Sick days
are allowed at the rate of 1 per month but are not accruable. The Employee is
granted three weeks of vacation per year. At the end of the year if Employee has
not taken a full three weeks of vacation, at the Employee's option, he may
receive the cash equivalent of such time or accrue the time to the following
year. Employee shall also receive a Company credit card and Company cellular
phone. Employee shall also be entitled to all salary continuation benefits that
the Company provides its senior executives, for any partial or total disability
that you may suffer.
(f) AUTOMOBILE. For the duration of Employee's Term, Company
shall lease for Employee a vehicle of Employee's election, to be paid for
directly by the Company. Company shall maintain insurance on the vehicle and
register the vehicle in Company's name.
(i) EXPENSE REIMBURSEMENT. It is contemplated that, in
connection with his employment hereunder, the Employee may incur business,
entertainment and travel expenses. The Company agrees to reimburse the Employee
in full for all preapproved reasonable, ordinary and necessary business,
entertainment and other related expenses, including travel expenses, incurred or
expended by him incident to the performance of his duties hereunder, and
incurred or expended in accordance with the Company's policies with respect to
such expenses, upon submission by the Employee to the Company of such vouchers
or expense
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statements satisfactorily evidencing such expenses as may be reasonably required
by the Company or its accountants. Such reimbursement shall include a mileage
charge for the use by the Employee of his personal automobile for business
purposes other than for transportation between home and work.
7. TERMINATION.
(a) BY COMPANY - FOR CAUSE. The Company shall have the right to
terminate the employment of the Employee for cause immediately upon providing
written notice to the Employee. For purposes of this Agreement, "cause" shall
mean only the occurrence of any of the following, each of which shall be deemed
a breach of this Agreement:
(i) Employee's failure (other than as a result of illness or
mental or physical disability), within seven (7) days after written notice from
the Company, to cure any material breach of the Employee Duties or the Employee
Manual (as defined below) or any of his other obligations under this Agreement;
(ii) Employee's habitual and material negligence in the
performance of the Employee Duties, Employee Manual or the Employee's negligence
otherwise, which in either event results in a material loss to the Company; In
no event shall the results of the Company's operations or any business judgment
made in good faith by the Executive constitute an independent basis for
termination for cause of the Executive's employment under this agreement.
(iii)Employee's commission of any act of corporate theft,
misappropriation of funds, breach of fiduciary duty as an officer of the Company
or other willful misconduct, act of dishonesty or intentional harm against or to
the Company;
(iv) Employee's conviction of or pleading nolo contendere to
any felony;
(v) Employee's failure to abide by the Company's policies or
procedures, including, but not limited to the Company's policy against
disclosure of "Confidential Information" (as hereinafter defined), sexual
harassment and discrimination, use of corporate resources or property for
personal gain and other policies described in writing by the Company in the
Company's employee manual as modified from time to time ("Employee Manual").
(vi) The Employee's employment under this shall terminate
upon his death. In such event, his estate shall be entitled to receive the
Employee's base salary and other benefits to which the Employee is entitled
under this agreement up to the effective date of such termination.
In the event the Company elects to terminate the Employee's
employment hereunder as set forth above, the Company shall give written notice
to such effect to the Employee, which notice shall describe in reasonable detail
the actions of the Employee constituting cause.
(b). SEVERANCE PAY. If this Agreement is terminated by the Company
with or without cause then (without limiting any other rights or claims which
employee may have in respect of
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the Company's breach of contract or otherwise), the Employee shall be entitled
to receive from the Company the full salary, stock options and other benefits
(including family health insurance or reimbursement for the cost of COBRA
insurance) described in Par. 6 from the date of such termination through the end
of the Term. If the Company elects not to renew this Agreement at the end of the
Term or if this Agreement is terminated less than one year from the end of the
Term, then Employee shall be entitled to receive from the Company a one year
termination bonus of all compensation described in Par. 6. Such severance shall
be paid monthly beginning at termination or the non-renewal of this Agreement.
If this Agreement is terminated by the Employee without cause, then Employee
shall have the right to retain and receive all options, stock grants and other
benefits earned through the date of termination, but will not be due any
severance pay as described in this paragraph. If this Agreement is terminated by
the Employee without cause, then Employee shall have the right to retain and
receive all options, stock grants and other benefits earned through the date of
termination, but will not be due any severance pay as described in this
paragraph.
8. INDEMNIFICATION.
(a) The Company shall defend, indemnify and hold Employee
harmless if Employee was or is a party or is threatened to be made a party to
any action, claim, suite or proceeding, whether civil, criminal, administrative
or investigative (including any action by or in the right of the Company by
reason of the fact that he is or was a director, officer, committee chairman,
General Counsel or member, employee, or agent of the Company., including the
fact that he was performing requested services of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another business, foreign or domestic, profit or nonprofit corporation,
partnership, joint venture or other enterprise. This indemnification shall cover
and include expenses (including attorneys' fees, judgments, fines and amounts
paid in settlement) actually and reasonably incurred by him in connection with
such action, claim, suit or proceeding, regardless of whether such expenses and
liabilities are otherwise covered by insurance in favor of Employee.
(b) If the Company's indemnity obligations under this Section are
not otherwise insured, the Corporation shall be self-insured to the extent
necessary to provide such indemnity protection.
(c) The indemnification and advancement of expenses provided for
herein shall not be deemed exclusive of any other rights to which Employee may
be entitled, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to Employee
and Employee has ceased to be a director, officer, committee chairman, or
member, employee, or agent and after Employee ceases serving at the request of
the Company as a director, officer, employee or agent of another business,
foreign or domestic, profit or nonprofit corporation, partnership, joint venture
or other enterprises, and shall inure to the benefit of his heirs and legal
representatives.
(d) The Company shall procure insurance on Employee in his
positions as director, officer, committee chairman, or member, employee, or
agent of the Company, or if Employee was serving at the request of the Company
as a director, officer, employee or agent of another business, foreign or
domestic, profit or nonprofit corporation, partnership, joint venture or other
enterprise against any liability asserted against or incurred by him in any such
capacity, or arising out of his status as such, whether or not the Company would
have the power to indemnify him against such liability under the business
corporation law of Florida or professional laws of Florida.
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(e) To the extent that any portion of this Section is found to be
illegal or beyond the permissible limits of indemnification for any reason, such
portion shall be deemed to be modified or amended, or if necessary deleted, to
the extent required to comply with applicable law, it being the intent of this
Section to afford indemnification of Employee to the full extent provided for
herein.
9. DISABILITY.
(a) If Employee becomes partially disabled and unable to
effectively perform the work or totally disabled, he shall continue to be an
employee of the Company and shall be entitled to compensation under this
Employment Agreement for a period of twelve (12) months.
(b) At the end of the twelve month (12) period following the
onset of the disability, the disabled Employee shall cease to be an employee of
the Company. If Employee thereafter ceases to be disabled, he may, upon such
terms and conditions as may be agreed upon between him and the Company, resume a
full or part-time position with the Company.
(c) If Employee dies after becoming disabled, his estate shall be
entitled to the payments provided for by Section 6 for the length of the Term,
which Employee would have received if he had lived.
10. MISCELLANEOUS.
Notices. (a) All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given only
upon hand delivery thereof or upon the first business day after mailing by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows or to such other address or such other person as
any party shall designate, in writing, to the other for such purposes and in the
manner hereinabove set forth.
To Company: 5th Avenue Channel, Inc.
0000 X.X. 000xx Xxxxxx
Xxxxx Xxxxx Xxxxx, XX 00000
To Employee: Xxx Xxxxx
North Miami, FL
(a) ENTIRE AGREEMENT. This Agreement sets forth all the promises,
covenants, agreements, conditions and understandings between the parties hereto
with respect to the subject matter contained herein, and supersedes all prior
and contemporaneous agreements, understandings, inducements or conditions with
respect to said subject matter, expressed or implied, oral or written, except as
herein contained.
(b) AMENDMENT. The parties hereby irrevocably agree that no
attempted amendment, modification, termination, discharge or change
(collectively, "Amendment") of this Agreement shall be valid and effective,
unless the parties shall unanimously agree in writing to such Amendment.
(c) NO WAIVER. No waiver of any provision of this Agreement shall
be effective unless it is in writing and signed by the party against whom it is
asserted, and any such
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written waiver shall only be applicable to the specific instance to which it
relates and shall not be deemed to be a continuing or future waiver.
(d) GENDER AND USE OF SINGULAR AND PLURAL. All pronouns shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the party or parties, or their personal representatives, successors
and assigns may require.
(e) COUNTERPARTS. This Agreement and any amendments may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together will constitute one and the same instrument.
(f) HEADINGS. The article and section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of the Agreement.
(g) GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Florida and any proceeding arising between the
parties in any manner pertaining or related to this Agreement shall, to the
extent permitted by law, be held in Miami-Dade County, Florida.
(h) FURTHER ASSURANCES. The parties hereto will execute and
deliver such further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this Agreement.
(i) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and shall be binding upon any of the Company's successors or assigns.
(j) PROVISIONS SEVERABLE. This Agreement is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules, and regulations of the jurisdiction in which
the parties do business. If any provision of this Agreement, or the application
thereof to any person or circumstances shall, for any reason or to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
(k) DISPUTE RESOLUTION AND ARBITRATION. The Parties shall be free
to bring all differences of interpretation and dispute arising in connection
with this Agreement to the attention of the other at any time without
prejudicing their harmonious relationship and operations hereunder, and the good
offices and facilities of all respective parties 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. In the even that any controversy or claim arising out of the
Agreement cannot be settled by the parties hereto, such controversy or claim
will be settled by binding arbitration in accordance with the then current rules
of the American Arbitration Association, in the State of Florida, United States
of America, and judgment upon the award may be entered in any court having
jurisdiction thereof. Each respective party hereby appoints, as its agent for
service for process in connection with any action brought by any other party,
hereunder, the Secretary of State of the state of their respective addresses of
record.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date above written.
EMPLOYEE: 5TH AVENUE CHANNEL CORP.,
By:
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Xxx Xxxxx Xxx Xxxxx
Chairman of the Board
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