EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made this 1st day of Oct, 1998 by and between AMERICAN
KIOSK CORPORATION, a Delaware corporation (the "Company"), and Xxxxxx XxXxxxxx.
("Executive").
In consideration of the mutual covenants and agreements herein contained, the
monies to be paid hereunder and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Term of Employment. The Company hereby employs Executive and Executive hereby
accepts employment with the Company for a period beginning as of Oct 1, 1998 and
terminating, unless sooner terminated as provided herein, on Sept 30, 1999.
2. Duties of Executive. Executive is hereby hired and employed by the Company to
perform the duties and accept the responsibilities as herein set forth. During
the term hereof, Executive shall be a Director and VP Business and Product
Development for the Company and shall devote approximately 1 week each month to
rendering services to the Company in such capacity.
3. Compensation of Executive.
(a) Base Fee. As compensation for services rendered under this Agreement,
beginning 10/1/98. Executive shall be entitled to receive from the
Company a monthly fee of $4,000. As additional compensation for
services rendered, Executive shall be issued fifty thousand shares
(50,000) of the Company's restricted common stock, the beneficial
ownership of which is vested in Executive Oct 1, 1998.
(b) Stock Option. As additional compensation, the Company and Executive
shall simultaneously herewith enter into a Stock Option Agreement in
the form attached hereto.
4. Reimbursement of Executive Expenses. Executive shall be expected to incur
various business expenses customarily incurred by persons holding like
positions, including, but not limited to, traveling, entertainment and similar
expenses, for the benefit of the Company. Subject to the Company's policy
regarding the reimbursement of such expenses, the Company shall reimburse
Executive for such expenses from time to time, at Executive's request, and
Executive shall account to the Company for such expenses
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5. Termination by the Company.
(a) The Company shall have the right to terminate this Agreement under the
following circumstances:
(i) Upon the death of Executive;
(ii) Upon notice from the Company to Executive in the event of an
illness or other disability which has incapacitated him from
performing his duties for two (2) consecutive months as
determined in good faith by the Board; or
(iii) For "good cause" upon notice from the Company. Termination by
the Company of Executive's employment for "good cause" shall
be limited to the following circumstances:
(A) Executive is convicted of, pleads guilty to or pleads
nolo contendere to a felony crime involving moral
turpitude;
(B) Executive is found guilty of or pleads no contest to
fraud, conversion, embezzlement, falsifying records or
reports or a similar crime involving the Company's
property;
(C) Executive willfully fails to perform his duties and
responsibilities hereunder (in the discretion of the
Company's Board of Directors) or otherwise breaches
this Agreement; or
(D) The voluntary resignation by Executive as an employee of
the Company.
(b) If this Agreement is terminated pursuant to Section 5(a) above,
Executive's rights and the Company's obligations hereunder shall
forthwith terminate except as expressly provided in this Agreement.
(c) If this Agreement is terminated pursuant to Section 5(a)(i) or (ii)
hereof, Executive or his estate shall be entitled to receive:
(i) A cash payment equal to Executive's Base Salary hereunder
for the remainder of the term hereof, payable within thirty
(30) days of the date of such termination.
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The Company may purchase insurance to cover all or any part
of its obligations set forth in this Section 5(c), and
Executive agrees to take a physical examination to
facilitate the obtaining of such insurance. However, death
and disability benefits are not conditioned upon the
Executive's insurability or the Company's obtaining
insurance.
(d) Whenever compensation is payable to Executive hereunder during a time
when he is partially or totally disabled and such disability (except
for the provisions hereof) would entitle him to disability income or
to salary continuation payments from the Company according to any
Company policy in effect at the time of such disability, the
compensation payable to him hereunder shall be inclusive of any
disability income or salary continuation and shall not be in addition
thereto. If disability income is payable directly to Executive by an
insurance company under an insurance policy paid for by the Company,
the amounts paid to him by said insurance company shall be considered
to be part of the payments to be made by the Company to him pursuant
to this Section, and shall not be in addition thereto.
6. Termination by Executive. Executive shall have the right to terminate his
employment under this Agreement upon thirty (30) days' notice to the Company in
the event the Company materially reduces Executive's duties and responsibilities
hereunder. Executive's duties and responsibilities shall not be deemed
materially reduced for purposes hereof solely by virtue of the fact that the
Company is (or substantially all of its assets are) sold to, or is combined
with, another entity.
7. Consequences of Breach by the Company.
(a) If this Agreement is terminated pursuant to Section 6 hereof, or if
the Company shall terminate Executive's employment under this
Agreement in any other way that is a breach of this Agreement by the
Company, the following shall apply:
(i) Executive shall receive a cash payment equal to the
Executive's Base Salary hereunder for the remainder of the
term hereof, payable within thirty (30) days of the date of
such termination; and
(b) If any benefit under the preceding subsection is finally determined by
the Internal Revenue Service to be an "Excess Parachute Payment" under
Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), the Company shall pay Executive and additional amount such
that (x) the excess of all Excess Parachute Payments (including
payments under this sentence) over the sum of excise tax thereon
(c) under Section 4999 of the Code and income tax thereon under Subtitle A
of the Code and under applicable state law is equal to (y) the excess
of all Excess Parachute Payments (excluding payments under this
sentence) over income tax thereon under Subtitle A of the Code and
under applicable state law.
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8. Remedies. The Company recognizes that because of Executive's special talents
and Stature, in the event of termination by the Company hereunder (except under
Section 5(a)), or in the event of termination by Executive under Section 6,
before the end of the agreed term, the Company acknowledges and agrees that the
provisions of this Agreement regarding further payments of Base Salary and
incentive bonuses constitute fair and reasonable provisions for the consequences
of such termination, do not constitute a penalty, and such payments and benefits
shall not be limited to or reduced by amounts Executive might earn or be able to
earn from any other employment or ventures during the remainder of the agreed
term of this Agreement.
9. Notices and Demands. Any notice or demand which, by any provision of this
Agreement or any agreement, document or instrument executed pursuant hereto,
except as otherwise provided therein, is required or provided to be given shall
be deemed to have been sufficiently given or served for all purposed if sent by
certified or registered mail, postage and charges prepaid, to the following
addresses: if to the Company, Attention: Xxxxxxx X. Xxxxxxx, 0000 XXX Xxxxxxxxx
#000, Xxxx Xxxxx Xxxxxxx, XX 00000, or at any other address designated by the
Company to Executive in writing, and if to Executive,___________________________
________________________________________________________________________________
10. Severability. In case any covenant, condition, term or provision contained
in this Agreement shall be held to be invalid, illegal or unenforceable in any
respect, in whole or in part, by judgment, order or decree of any court or other
judicial tribunal of competent jurisdiction, from which judgment, order or
decree no further appeal or petition for review is available, the validity of
the remaining covenants, conditions, terms and provisions contained in this
Agreement, and the validity of the remaining part of any term or provision held
to be partially invalid, illegal or unenforceable, shall in no way be affected,
prejudiced or disturbed thereby.
11. Waiver or Modification. No waiver or modification of this Agreement or of
any covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith. Furthermore, no
evidence of any waiver or modification shall be offered or received in evidence
in any proceeding, arbitration or litigation between the parties arising out of
or affecting this Agreement, or the rights or obligations of any party
hereunder, unless such waiver or modification is in writing and duly executed as
aforesaid. The provisions of this Section may not be waived except as herein set
forth.
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12. Complete Agreement. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter of this Agreement and
supersedes any an all previous agreements between the parties, whether written
or oral, with respect to such subject matter.
13. Applicable Law, Binding Effect and Venue. This Agreement shall be construed
and regulated under and by the laws of the State of Florida, and shall inure to
the benefit of and be binding upon the parties hereto and their heirs, personal
representatives, successors and assigns. Venue for any action related to or
arising out of this Agreement shall lie in Palm Beach County, Florida.
14. Covenant Not To Compete; Disclosure of Information. Executive agrees to
receive confidential and proprietary information of the Company in confidence,
and not to disclose such information to others except as authorized by the
Company. Confidential and proprietary information shall mean information not
generally known to the public that is created by or disclosed to Executive as a
consequence of his employment by the Company, whether or not pursuant to this
Agreement. During the term hereof and for two (2) years after the termination of
Executive's employment hereunder, Executive shall not directly start up or own
any entity directly engaged in a business substantially similar to that of the
Company or in direct competition with the Company.
IN WITNESS WHEREOF, the undersigned have executed this Employment Agreement as
of the date first written above with the intent to be legally bound.
AMERICAN KIOSK CORPORATION
By:
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Xxxxxxx X. Xxxxxxx, President
By:
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