EXHIBIT 9.1
XXXXXX BEAUMONT, INC
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter "Agreement") made and entered into
effective as at the 1st day of October, 2004, by and between XXXXXX BEAUMONT
INC., a Florida Corporation (hereinafter referred to as the "Company") and
XXXXXXXX XXXXXX, a Florida resident (hereinafter referred to as the
"Executive").
W I T N E S S E T H:
WHEREAS, Company is engaged in the operation, management and sales of products
and services;
WHEREAS, the parties are desirous of entering into an Employment Agreement to
replace the agreement between the parties dated April 1, 2002: and
NOW, THEREFORE, in consideration of the mutual promises contained herein, and
for other good and valuable consideration the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
RECITALS
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The foregoing recitals are true and correct in every respect and are
incorporated by reference herein.
DEFINITIONS
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"Board" shall refer to the Board of Directors of Company.
"Disability" or "Disabled" shall mean a physical or mental
impairment that prevents Executive from performing the
essential functions of his job on a permanent basis.
"Gross Revenue" shall mean all income of Company derived from
the sale of goods or services, less refunds or returns, for
any fiscal year of Company.
"Margin" shall be defined as Profit expressed as a percentage
of Gross Revenue.
"Option" shall mean a written document authorizing the
purchase of stock of Company, at a specified price, for a
defined period of time.
"Profit" shall mean net profits, after all business expenses
have been deducted (including salaries and benefits), before
taxes, for any fiscal year of Company.
DUTIES AND DEVOTION OF EFFORTS
------------------------------
DUTIES. Company hereby employs Executive as the Chief
Executive Officer (hereinafter referred to as "CEO"). As CEO,
Executive shall perform all duties and administrative tasks
ordinarily performed by a chief financial officer of a similar
business and other duties reasonably assigned to him by the
Board of Directors (hereinafter the "Board") to the extent
permitted under law, including the Securities Laws of the
United States, and applicable canons of professional ethics
and which may reasonably be accomplished under the terms set
forth herein. Company is aware that Executive has other
business interests that may from time to time require some of
his time.
DEVOTION OF EFFORT. Executive hereby accepts such employment
and agrees to devote his best professional efforts to the
interests of Company as described herein. Executive agrees to
faithfully observe and abide by all rules, regulations and
Bylaws of Company which are in force and which are brought to
his attention. During the term of the Agreement, Executive
shall conduct himself in a manner befitting his position as a
professional corporate Executive.
CHANGE OF POSITION. In the event Company requires Executive to
change positions within Company or assume other roles within
Company, the provisions of this Agreement shall remain in
force, except that the description of Duties hereunder shall
be amended by Company.
TERM OF EMPLOYMENT
------------------
XXXX.Xxxxxxx hereby employs Executive for the period
commencing on October 1, 2004, and ending on September 30,
2007 ("Initial Term").
COMPENSATION
------------
During each Term hereof, Company shall provide the following to
Executive:
BASE SALARY. Executive's Annual Base Salary shall be:
FOR THE PERIOD ENDING SEPTEMBER 30, 2005, $185,000;
SEPTEMBER 30, 2006, $205,000;
SEPTEMBER 30, 2007, $225,000.
The Base Salary shall be paid in accordance with Company's uniform
payroll procedures.
BONUS. Executive's Bonus shall be paid as set forth on
Schedule 5(b).
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NON-CASH COMPENSATION. Company shall provide Executive with
non-cash compensation as set forth on Schedule 5(c).
MEMBERSHIP FEES. Company shall provide membership (to include
dues, initiation and other fees, and other expenses) in such
associations and organizations as may hereinafter be approved
by the Board of Directors of Company or its designee, as an
aid to carrying out his duties and responsibilities for
Company.
BENEFITS. Company shall provide Executive with health
insurance and disability insurance (which shall be sufficient
to cover the Base Salary for the term of the Agreement or the
Maximum available for the term of the Agreement, whichever is
less). In addition, Company will provide Executive with all of
the employee benefits now or hereafter approved by Company for
any officer, including, but not limited to, 401(k) plan or
life insurance.
AUTOMOBILE. A car allowance of $750 a month, plus
reimbursement of all gasoline receipts for Executive.
MISCELLANEOUS EXPENSES. Executive's travel, occupational
licenses, cell phone expense, promotional and entertainment
expenses, and all other related expenses.
LEAVE. Other than as stated herein, use of leave and
observation of holidays shall be subject to Company policies
which may change from time to time.
VACATION. Executive shall receive 6 weeks of paid
Vacation per year, which shall carry over from year
to year, and shall be paid in full upon Executive's
separation from employment for any reason.
SICK LEAVE. Executive shall receive 8 days of paid
Sick Leave per year, which may be used due to health
issues of Executive or his immediate family. Unused
sick leave is forfeited upon separation for any
reason. Sick Leave may not be exchanged for
compensation. In the event Executive uses all accrued
Sick Leave, Executive may use any accrued
Professional Development Time to care for his own
illness or the illness of a member of his immediate
family.
D & O INSURANCE. Company shall provide Director's and
Officer's Insurance equal to or greater than that provided on
the Effective Date of this Agreement.
COMPENSATION UPON SALE, MERGER OR OTHER CONSOLIDATION. If
Company is sold, merged, consolidated or enters into any other
transaction whereby a majority of control is transferred as
defined by the Securities and Exchange reporting rules,
(collectively, a "Change of Control"), Executive shall receive
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upon the close of any such transaction, in addition to any
other sums due hereunder, the greater of $750,000 cash or an
amount equal to 7.5% of any sale price above $25,000,000.
PROFESSIONAL DEVELOPMENT TIME. Executive shall be entitled to
a period of twenty (20) days per year of Professional
Development Time to attend conventions or continuing education
seminars or any other reason approved by the President, CFO or
Chairman of the Board. There shall be a carryover of such time
from year to year. However, no compensation shall be paid to
Executive for any unused Professional Development Time upon
termination of employment.
EXECUTIVE EXPENSES
------------------
Executive shall not be responsible for the payment of any approved
expenses incurred in connection with his employment with Company if
such expenses are not paid by Company.
TERMINATION OF EMPLOYMENT
-------------------------
TERMINATION. Either party may terminate this Agreement at the
expiration of any Term by delivering a written notice of
non-renewal to the other party at least 60 days prior to the
expiration of such Term. Failure to provide such notice will
result in an automatic renewal as set forth herein.
TERMINATION OF EMPLOYMENT BY COMPANY "FOR CAUSE". Company may
immediately terminate this Agreement For Cause, as defined
below, upon delivery of a written notice of For Cause
Termination to Executive. For Cause shall mean upon the
occurrence of any of the following events:
EXECUTIVE'S GROSS NEGLIGENCE OR MATERIAL AND BAD
FAITH BREACH OF THIS AGREEMENT AFTER REASONABLE PRIOR
WRITTEN NOTICE FROM COMPANY SPECIFYING THE NATURE OF
THE ALLEGED BREACH OR FAILURE AND WARNING OF THE
CONSEQUENCES OF A FAILURE TO CORRECT OR A REPEATED
INCIDENT; OR
EXECUTIVE IS CONVICTED OF, OR PLEADS GUILTY OR NO
CONTEST TO, ANY CRIME PUNISHABLE AS A FELONY OR
EMBEZZLEMENT OR FRAUD; OR
EXECUTIVE ENGAGES IN IMMORAL OR DISHONEST ACTS WHICH
MATERIALLY AND NEGATIVELY AFFECT COMPANY.
TERMINATION NOT FOR CAUSE. Company may terminate Executive's
employment without cause by delivering notice of termination
without cause to Executive. In the event Executive is demoted
in a demotion approved by the Board of Directors of Company,
then, if Executive does not consent to such demotion, then
Executive's employment hereunder shall be considered
terminated by Company without cause.
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DEATH OR DISABILITY. The employment relationship between
Company and Executive shall automatically terminate upon the
death or total disability of Executive. Such a termination
shall be considered a for cause termination of employment,
except that Base Salary through the date of termination, any
Options vested through the date of termination and any Bonus
which has been earned but not yet paid (if such event of
termination is subsequent to September 30 of any calendar
year, but before the third Bonus installment has been paid)
shall be paid by Company to Executive or Executive's estate,
as appropriate. In addition, Executive shall be entitled to be
paid the pro-rated portion of any Bonus which would have been
earned for the fiscal year in which the event of termination
occurs, within 90 days of the date of determination.
VOLUNTARY TERMINATION. Executive may voluntarily terminate
this Agreement and employment relationship by giving sixty
(60) days written notice to the other party.
COMPENSATION UPON TERMINATION. Should Executive voluntarily
terminate his employment with Company at any time during the
term hereof, Executive will not be entitled to the remainder
of any compensation possibly due under the employment
agreement, including the Base Salary, any unvested Options and
compensation due upon a sale. However, should Executive be
involuntarily terminated by Company without cause, such person
shall be entitled to be paid Base Salary for the 12 month
period subsequent to termination (such 12 months to begin at
the date notice of termination is given) in accordance with
standard Company payroll procedures, shall be entitled to
receive any Bonus which has been earned by not yet paid (if
such termination is subsequent to September 30 of any calendar
year but before the third Bonus installment is paid) shall be
entitled to immediately vest any Options which would have
vested in the 12 month period subsequent to termination and no
other compensation of any type shall be due or owing.
Notwithstanding the foregoing, should Executive be
involuntarily terminated by Company with cause, Company shall
not be obligated to pay any such compensation, including the
then-remaining portion of the Base Salary all unvested Options
at that time, and any possible compensation due upon a sale.
NOTICE
------
Any and all notices, requests, demands, directions or other
communications required or permitted hereunder shall be in writing and
shall be deemed to have been given or made when personally delivered or
mailed by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows or to such other address as the party
to whom the same is intended shall have specified in conformity with
the foregoing:
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As to Company: Xxxxxx Beaumont Inc.
0000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx, CEO
As to Executive: Xxxxxxxx Xxxxxx
0000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
(or such other address as may be provided by
Executive in writing).
INDEMNITY
---------
Executive shall indemnify and hold Company harmless from and
against any and all claims or actions brought by any person or
from liabilities, losses, damages, costs, penalties and
expenses, including but not limited to attorneys' fees, costs
and interest incurred by counsel of Company's choice, which
may be sustained or incurred at any time by reason of:
EXECUTIVE'S FAILURE TO PERFORM THE SERVICES,
RESPONSIBILITIES AND DUTIES SET OUT IN THIS
AGREEMENT; OR
EXECUTIVE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN
PERFORMING OR FAILING TO PERFORM ANY SERVICE WITHIN
THE SCOPE OF EXECUTIVE'S EMPLOYMENT UNDER THIS
AGREEMENT; OR
VIOLATIONS OF THE PROHIBITIONS OF CRIMINAL STATUTES
UNDER FEDERAL OR STATE LAW; OR
VIOLATIONS OF THE PROHIBITIONS OF CIVIL STATUTES OR
REGULATIONS UNDER FEDERAL OR STATE LAW (OTHER THAN
THOSE INVOLVING SIMPLE OR ORDINARY NEGLIGENCE).
Company shall indemnify and hold Executive harmless from and
against any and all claims or actions brought by any person or
from liabilities, losses, damages, costs, penalties and
expenses, including but not limited to attorneys' fees, costs
and interest incurred by counsel of Company's choice, which
may be sustained or incurred at any time by reason of
Executive's Performance of the services, responsibilities and
duties set out in this Agreement, except as otherwise set
forth in Article 9a hereof.
CONFIDENTIALITY. EXECUTIVE SHALL KEEP CONFIDENTIAL AND NOT USE OR
DISCLOSE TO OTHERS, EXCEPT AS EXPRESSLY CONSENTED TO IN WRITING BY COMPANY OR AS
REQUIRED BY APPLICABLE FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS, ANY
SECRETS OR CONFIDENTIAL TECHNOLOGY, PROPRIETARY INFORMATION, CUSTOMER LISTS, OR
TRADE SECRETS OF COMPANY, OR ANY MATTER, FORMULA, TECHNIQUE OR THING ASCERTAINED
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BY EXECUTIVE THROUGH ASSOCIATION WITH COMPANY, THE USE OR DISCLOSURE OF WHICH
MATTER OR THING MIGHT REASONABLY BE CONSTRUED TO BE CONTRARY TO THE BEST
INTERESTS OF COMPANY. EXECUTIVE FURTHER AGREES THAT UPON TERMINATION OF THIS
AGREEMENT, EXECUTIVE SHALL NEITHER TAKE NOR RETAIN, WITHOUT PRIOR WRITTEN
AUTHORIZATION FROM COMPANY, ANY PAPERS, PATIENT LISTS, FEE BOOKS, RECORDS,
FILES, OR OTHER DOCUMENTS OR COPIES THEREOF OR OTHER CONFIDENTIAL INFORMATION OR
FORMULA OF ANY KIND BELONGING TO COMPANY PERTAINING TO ITS CLIENTS, BUSINESS,
SALES, FINANCIAL CONDITION, OR PRODUCTS. WITHOUT LIMITING OTHER POSSIBLE
REMEDIES TO COMPANY FOR THE BREACH OF THIS COVENANT, EXECUTIVE AGREES THAT AN
INJUNCTION OR OTHER EQUITABLE RELIEF SHALL BE AVAILABLE TO ENFORCE THIS
COVENANT, AND SUCH RELIEF TO BE WITHOUT THE NECESSITY OF POSTING A BOND, CASH OR
OTHERWISE. THE PARTIES SPECIALLY AGREE THAT CONFIDENTIAL INFORMATION DOES NOT
INCLUDE INFORMATION THAT (I) IS OR BECOMES AVAILABLE TO THE PUBLIC OTHER THAN AS
A RESULT OF A DISCLOSURE BY EXECUTIVE, (II) WAS WITHIN EXECUTIVE'S POSSESSION
PRIOR TO THE INFORMATION BEING FURNISHED TO IT BY COMPANY, DURING THEIR TERM OF
EMPLOYMENT WITH COMPANY, OR (III) BECOMES AVAILABLE TO EXECUTIVE ON A
NON-CONFIDENTIAL BASIS AND LAWFULLY FROM A SOURCE OTHER THAN COMPANY, PROVIDED
THAT SUCH OTHER SOURCE IS NOT BOUND BY A CONFIDENTIALITY AGREEMENT WITH COMPANY.
NON COMPETITION
---------------
Executive agrees that while Executive continues to be employed
by Company and for a period of two (2) years following
termination of employment, for any reason, including
expiration of this Agreement, Executive will not directly or
indirectly:
SOLICIT OR CONTACT ANY CLIENTS, POTENTIAL CLIENTS OR
CANDIDATES, EXCEPT ON BEHALF OF COMPANY, OR TO
PERSUADE CLIENTS, POTENTIAL CLIENTS OR CANDIDATES TO
CEASE TO DO BUSINESS WITH COMPANY OR TO REDUCE THE
AMOUNT OF BUSINESS WITH COMPANY;
EMPLOY OR RETAIN, OR ATTEMPT TO EMPLOY OR RETAIN, OR
ASSIST ANYONE ELSE TO EMPLOY OR RETAIN ANY PERSON WHO
IS THEN, OR AT ANY TIME DURING THE PRECEDING YEAR, AN
EXECUTIVE OF COMPANY;
COMPETE WITH THE BUSINESS OF COMPANY;
ENGAGE IN, OR BE INVOLVED IN ANY WAY, IN ANY
UNDERTAKING OR ACTIVITIES, OR BE EMPLOYED BY OR HAVE
AN OWNERSHIP INTEREST IN ANY BUSINESS OR ENTERPRISE
WHOSE BUSINESS IS SIMILAR TO THAT OF COMPANY;
DISCLOSE TO ANYONE, ANY CONFIDENTIAL INFORMATION,
TRADE SECRETS OR CLIENT LISTS, OR UTILIZE SUCH
CONFIDENTIAL INFORMATION, TRADE SECRETS OR CLIENT
LISTS FOR EXECUTIVE'S OWN BENEFIT, OR FOR THE BENEFIT
OF ANY THIRD PARTIES. BOTH DURING AND AFTER THE TERM
OF EXECUTIVE'S EMPLOYMENT WITH COMPANY, EXECUTIVE
AGREES NOT TO USE, REVEAL, REPORT, PUBLISH, DISCLOSE
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OR TRANSFER, DIRECTLY OR INDIRECTLY, ANY OF THE
CONFIDENTIAL INFORMATION FOR ANY PURPOSE EXCEPT AS
REQUIRED IN EXECUTIVE'S DUTIES FOR COMPANY OR WITH
THE PRIOR WRITTEN AUTHORIZATION OF COMPANY;
UTILIZE ANY OF THE BUSINESS PLANS OR METHODS USED BY
COMPANY, EXCEPT AS AN EXECUTIVE OF COMPANY IN
FURTHERANCE OF EXECUTIVE'S JOB DUTIES WITH COMPANY.
UNDERTAKE ANY ILLEGAL ACTIVITIES OR ANY ACTS THAT ARE
NOT IN THE BEST INTERESTS OF COMPANY.
For the purposes of this Agreement, the term "confidential
information" shall mean all of the following materials and
information (whether or not reduced to writing and whether or
not patentable or subject to protection by a copyright) to
which Executive receives access or which Executive develops,
in whole or in part, as a direct or indirect result of
Executive's employment with Company or in the course of
Executive's employment with Company or through the use of any
of Company's facilities or resources and shall include, but
not be limited to: (i) computer software, product
specifications, contract forms, pricing policies, clients,
client lists, client and candidate requirements, suppliers,
supplier lists, personnel data, production processes, business
and marketing plans, or strategies, financial performance and
projections, cost data, and other materials or information
relating to the manner in which Company does business; (ii)
intellectual property, discoveries, concepts and ideas, and
the embodiment thereof, including, without limitation, the
nature and results of research and development activities,
processes, formulas, techniques, "know-how", designs, drawings
and specifications; (iii) any other materials or information
related to the business or activities of Company which are not
generally known to others engaged in similar businesses or
activities; (iv) all inventions; and (v) ideas which are
derived from or related to Executive's access to or knowledge
of any of the above enumerated materials and information.
Executive agrees that the "confidential information" is and
shall at all times remain the sole and exclusive property of
Company and that any of the "confidential information"
produced by Executive shall be considered work for hire and
the exclusive property of Company.
SinceCompany conducts business throughout the United States
and World, the prohibitions of the preceding paragraph shall
apply in and throughout the United States and World.
Failure of any party at any time to insist upon strict
performance of a condition, promise, agreement, or
understanding set forth herein, shall not be construed as a
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waiver or relinquishment of the right to insist upon strict
performance of such condition, promise, agreement or
understanding at a future time.
The parties agree that Company may assign this Agreement, and
any successor-in-interest shall have the right to full
enforcement of this Agreement.
The parties hereto agree that a breach of this Agreement by
Executive would cause damages that are not readily
ascertainable. The remedies under this Agreement include but
are not limited to, temporary and permanent injunctions,
actual damages and any other appropriate remedies at law and
in equity.
MISCELLANEOUS PROVISIONS
------------------------
FLORIDA LAW AND VENUE. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the
State of Florida. If any action, suit or proceeding is
instituted as a result of any matter or thing affecting this
Agreement, the parties hereby designate Sarasota County,
Florida, as the proper jurisdiction and the venue in which
same is to be instituted.
NO PRESUMPTION. The fact that the first (or later) draft of
this Agreement was prepared by counsel for either party shall
create no presumptions and specifically shall not cause any
ambiguities to be construed against the other party.
HEADINGS. The Paragraph headings contained herein are for
reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement.
BINDING EFFECT. This Agreement shall be legally binding upon
and shall operate for the benefit of the parties hereto, their
respective heirs, personal and legal representatives,
transferees, successors, assigns and beneficiaries.
ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties hereto with respect to the subject matter
addressed herein, and all prior understandings and agreements,
whether written or oral, between and among the parties hereto
relating to the subject matter of this Agreement are merged in
this Agreement. Each party specifically acknowledges,
represents and warrants that they have not been induced to
sign this Agreement by any belief that the other will waive or
modify the provisions of this Agreement in the future.
SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the
other provisions hereof, and this Agreement shall be construed
in all respects as if such invalid or unenforceable provisions
were omitted.
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COUNTERPARTS. This Agreement may be signed and executed in one
or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one
agreement.
NON ASSIGNABLE. This Agreement, or any provision thereof,
being in the nature of personal services, may not be assigned
nor duties delegated to any other person or entity and any
such purported assignment or delegation is void AB INITIO.
MODIFICATION. This Agreement may only be modified in writing
and signed by each of the parties hereto.
PLURAL AND GENDER. Whenever used herein, the singular number
shall include the plural, the plural the singular, and the use
of any gender shall be applicable to all genders.
SURVIVAL. All representations, warranties and provisions
hereof without limitation shall survive the termination of
this Agreement, the liquidation or dissolution of the
Corporation, if any, and shall thereby continue in full force
and effect at all times hereafter.
NO WAIVER OF BREACH. The waiver or inaction by either party
hereto of a breach of any condition of this Agreement by the
other party shall not be construed as a waiver of any
subsequent breach by such party, nor shall it constitute a
waiver of that party's rights, actual or inherent. The failure
of any party hereto in any instance to insist upon a strict
performance of the terms of this Agreement or to exercise any
option herein shall not be construed as a waiver or a
relinquishment in the future of such term or option, but that
the same shall continue in full force and effect.
MERGER. All prior agreements, discussions or matters
heretofore pending between the parties, unless specifically
referred to herein, have been merged into this Agreement and
no claim or assertion based upon agreements, purported or
otherwise, not herein contained shall be binding or
enforceable by either party.
NON-DISCLOSURE. Executive shall execute such non-disclosure
agreement with respect to confidential information of Company
as is required of all executive staff of Company. Executive
shall see that such non-disclosure agreements are executed by
all executive staff as a condition of continued employment.
ATTORNEYS' FEES AND COSTS. If it should become necessary for
any party to institute legal action to enforce the terms and
conditions of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs incurred in
connection therewith.
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WAIVER OF JURY TRIAL. To the extent permitted by law, in the
event of a dispute between the parties, Executive and Company
hereby elect to have a judge rather than a jury resolve any
future disputes and hereby waive a trial by jury of any and
all issues arising in any action or proceeding relating to
this Agreement or to their employment relationship. However,
for additional clarity, the following is a list of some of the
types of claims included in this Waiver of Jury Trial: all
claims in tort (for negligent or intentional acts), in
contract (whether verbal or written), by statute, for
constitutional violation, for wrongful discharge,
discrimination, harassment, retaliation, or claims of personal
injury, for compensatory, punitive, or other damages,
expenses, reimbursements, or costs of any kind, including but
not limited to, any and all claims, demands, rights, and/or
causes of action arising out of their relationship from the
beginning of time until the end of time. The Parties
understand that the right to a trial by jury is a
constitutional right and that this election to have a judge
determine any claim, rather than a jury, is a voluntary
choice.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
XXXXXX BEAUMONT INC.
BY: ________________________________________
AS ITS _________________________________
EXECUTIVE:
BY: ________________________________________
XXXXXXXX XXXXXX
JLM-609513.3
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SCHEDULE 5(b)
ANNUAL BONUS
Xxxxxx and Xxxxx shall each be entitled to a bonus per year for the Term of
their agreements as follows:
A. In the event Company's annual (fiscal year) Gross Revenue
exceeds $10,000,000 and Company realizes a Margin of twenty
percent (20%) or more during such time, Executive shall be
entitled to a bonus equal to three percent (3.0%) of that
fiscal year's Profit.
B. In the event Company's annual (fiscal year) Gross Revenue is
less than $10,000,000 or Company realizes a Margin of less
than twenty percent (20%) during any fiscal year, Executive
shall be entitled to a bonus equal to two and one-half percent
(2.5%) of that fiscal year's Profit.
C. The specific bonus amount shall be determined no later than
thirty (30) days after the end of each fiscal year (September
30th) and shall be due and payable to Executive in three equal
installments, the first due within thirty (30) business days
after the date of determination, the second due within sixty
(60) days after the date of determination, and the third due,
subject to adjustment as provided below, within ninety (90)
days following the date of determination. If the annual audit
by Company's auditors shows a Profit different from that
previously determined by Company, then an adjustment shall be
made to the third payment and Executive shall be paid or shall
repay the difference (if the third installment is insufficient
to meet the shortfall), as the case may be, and any repayment
by Executive be made within ten (10) business days thereafter.
All payments of bonus by Company will be subject to cash
availability.
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SCHEDULE 5(c)
STOCK OPTIONS
Executive shall be issued Options directly from Company (the "Options"):
3,250,000 Options at a price of $.20 per share; 1,625,000 vested as of October
1, 2004; 812,500 vested as of September 30, 2005; and 812,500 vested as of
September 30, 2006.
In addition, Executive shall receive, upon execution hereof cash of $75,000.
All Options issued hereunder shall immediately vest in the event of a Change of
Control as defined herein.
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