EXHIBIT 10(d)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT dated March 13, 2001, is entered into by and
among XxxxxXxx.xxx, Inc., a Georgia corporation ("Parent"), xxxxxxx.xxx, Inc., a
Delaware corporation and a wholly-owned subsidiary of Parent ("Company"), and
Xxxxxx Xxxxx ("Executive").
1. Employment.
Company hereby employs Executive, and Executive hereby agrees to accept
employment from Company, as the Company's President and Chief Executive Officer,
with responsibilities to conduct Company's operations and as otherwise are
customary to such position in the Internet industry. Executive agrees during the
term of his employment under this Agreement to perform the duties and
responsibilities reasonably required of him.
2. Term of Employment.
The employment under this Agreement shall commence effective on the
date hereof and shall end on the first anniversary hereof; provided, however,
that the term of this Agreement shall be extended automatically for successive
one-year periods unless Company provides not less than 90 days' written notice
prior to each anniversary of this Agreement, that this Agreement shall not renew
following such anniversary of this Agreement or is otherwise terminated under
Paragraph 5 hereof.
3. Compensation.
(a) Base Salary. As compensation for services provided to
Company, Parent shall transfer to Executive a monthly amount, beginning on the
date hereof and
thereafter on the same date of each succeeding month, of 50,000 shares of the
common stock, $.001 par value per share (such common stock being referred to as
"PediaNet Shares"), of Parent as long as the fair market value of a PediaNet
Share at the date of issuance is equal to or greater than $.10. If the fair
market value of a PediaNet Share at the date of issuance is less than $.10,
Parent will transfer an amount of PediaNet Shares for that month so that the
aggregate fair market value thereof is $5,000. Such salary may be increased, but
not decreased, from time to time as decided in the discretion of the Board of
Directors of Company. For purposes of this Agreement, the "fair market value" of
a PediaNet Share at the date of its issuance shall be the 10-day average closing
price thereof on the principal exchange or quotation service on which the
PediaNet Shares are then being traded, ending three trading days prior to the
date of issuance hereunder, rounded up to the nearest whole number of PediaNet
Shares, if such calculation results in a fraction of a PediaNet Share.
(b) Bonus. Parent shall transfer to Executive, up to $90,000
in aggregate value as incentive bonuses hereunder, an amount of PediaNet Shares
so that the aggregate fair market value thereof upon the occurrence of each of
the following events is equal to $30,000 each: (i) the negotiation of any
client, joint venture, or other relationship resulting in additional business
for the Company, (ii) the development of a subscription model for the Company's
web site based upon the proposals therefor previously provided by Executive, and
(iii) notwithstanding the occurrence or non-occurrence of either (i) or (ii),
$30,000 in fair market value of PediaNet Shares as of the date which is six
months from the date hereof. Any such transfers shall be made as of the date of
such occurrence and transferred to Executive within three days of the date of
such
occurrence. In addition, as additional compensation for services rendered
by Executive, Executive shall be entitled to participate in any incentive bonus
program that Company's or Parent's Board of Directors may establish for its
executive employees.
(c) Registration. All issuances of PediaNet Shares hereunder
shall be registered with the Securities Exchange Commission ("SEC") on Form S-8
or any successor form thereto (or if such a form is unavailable, under any other
available form of registration) and under all applicable state securities laws,
prior to the time such issuances are to be made hereunder. Parent shall at all
times maintain the effectiveness of any such registration, amend, and/or
supplement such registration statements in accordance with all applicable laws,
list or authorize for quotation all such PediaNet Shares on the primary exchange
or quotation service on which the PediaNet Shares are then trading, and reserve
for issuance hereunder the PediaNet Shares to be issued hereunder. Parent
represents to Executive that, prior to the date hereof, it has filed a Form S-8
relating to the issuances of the PediaNet Shares hereunder with the SEC, and
that such registration statement has been declared or deemed effective.
(d) Adjustments. Parent shall adjust the number of PediaNet
Shares to be issued hereunder by an amount or amounts to take into account all
increases or reductions of the number of outstanding PediaNet Shares which occur
following the date hereof by reason of subdivision or combination, including but
not limited to, splits, reverse splits, share dividends, or other capital
changes affecting the number of outstanding PediaNet Shares. In case of the
event of any reclassification of or other change, such as a consolidation,
merger, or business combination or subdivision resulting in a capital change for
the outstanding PediaNet Shares, then lawful provisions shall be
made by Parent so that Executive shall have the right to receive under this
Agreement the kind and amount of shares of stock, property, or other securities
receivable by Executive as if he had owned such PediaNet Shares immediately
prior to such reclassification or change.
4. Participation in Benefit Programs and Reimbursement of Business
Expenses.
(a) Benefit Programs. During the term of this Agreement,
Executive shall be provided with medical insurance, vacation benefits, sick
leave benefits, and holidays which are not less than, and on terms no less
favorable than, the greater of what Company or Parent provides to its other
executive employees.
(b) Reimbursement of Business Expenses. During the term of
this Agreement, Company shall reimburse Executive promptly for all reasonable
expenditures, including, but not limited to, travel, entertainment, and parking;
provided such expenses are incurred in connection with his duties under this
Agreement, and are submitted for reimbursement in accordance with the policies
reasonably established by the Board of Directors therefor in effect at the time
the expense is incurred.
5. Termination of Employment.
(a) Automatic Termination. This Agreement will automatically terminate
in the event of Executive's death, or Executive's disability. For purposes of
this Agreement, Executive shall be deemed "disabled" if prevented from
performing substantially all of his duties and responsibilities for a continuous
period of 180 days. Company and Parent shall have no further obligations to
Executive or his estate upon such automatic termination, except to issue any
Parent Shares which were due to be issued prior to the date of such termination.
(b) Termination Not for Cause. If Company terminates this Agreement
without cause, Company and Parent shall continue to pay Executive his base
salary at the level in effect at the time of termination for the duration of the
then current term of this Agreement, plus any accrued, but unused vacation time.
The base salary continuation for Executive shall be paid in a lump amount within
10 days of such a termination.
(c) Termination for Cause. Notwithstanding the provisions of Section
5(b) above, Company may terminate Executive's employment for cause. For purposes
of this Agreement, Company shall have "cause" to terminate Executive's
employment solely in the event of the following:
(i) conviction of Executive for any felony or any crime, or entry of a
plea of nolo contendere for any crime involving moral turpitude or
dishonesty; or
(ii) Executive's participation in a fraud against Company.
If Executive's employment is terminated for cause, he will not be
entitled to receive any severance pay or any other severance compensation
provided under this Agreement following the effective date thereof.
(d) Resignation. Executive retains the right to resign or otherwise
voluntarily
terminate his employment with Company upon not less than 10 days' written notice
to Company. If Executive resigns or otherwise voluntarily terminates his
employment with Company, Executive shall not be entitled to any further
severance pay or any other severance compensation hereunder following the
effective date thereof.
6. Stock Compensation Program.
Parent and Company acknowledge and agree that it is essential to their
success and to Executive's performance of his duties hereunder that physicians
and other medically trained personnel be provided with equity compensation in
PediaNet Shares. Accordingly, Parent shall adopt a stock compensation program
solely for Company's physician and other trained employees, advisors, and
consultants relating to not less than 10,000,000 PediaNet Shares (the offer and
sale of which shall be registered on Form S-8 or any successor form thereto and
under any applicable state securities laws, which registrations shall be
maintained for not less than the term of this Agreement, and which shall be
listed or authorized for quotation on the principal exchange or quotation system
on which the PediaNet Shares are then being traded). Parent shall at all times
reserve a sufficient number of PediaNet Shares for issuance in accordance with
such program. This provision is intended by the parties hereto to confer third
party beneficiary rights against Parent to the persons eligible to participate
in such program.
7. Notices.
For purposes of this Agreement, notices and other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States Registered or
Certified Mail, return receipt requested, postage prepaid, addressed as follows:
If to Executive: Xxxxxx Xxxxx
000 Xxxxxx Xxxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
If to Company or Parent:
c/o XxxxxXxx.xxx, Inc.
00 Xxxx Xxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000
or at such other address as any party may have furnished to the other in writing
subsequent to the execution of this Agreement or, in the case of Executive, to
the address listed for him in Company's records, and in the case of Company or
Parent, to the address known by Executive to be where the primary office of
Parent is located.
8. Modifications, Waivers; Superseding Agreement; Applicable Law.
No provision in this Agreement may be modified, waived, or discharged
unless such waiver, modification, or discharge is agreed to in writing, signed
by Executive and by the Parent and Company. This Agreement supersedes all prior
oral or written agreements relating to the subject matter hereof or any other
matter affecting Executive's employment by Company and use of its information.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of New Jersey, without regard to the conflicts of laws principles
thereof.
9. Severability.
If any provision of this Agreement is determined to be invalid or is in
any way modified by any governmental agency, tribunal, or court of competent
jurisdiction, such determination shall be considered as a separate, distinct,
and independent part of this Agreement and shall not affect the validity or
enforceability of any of the remaining provisions of this Agreement.
10. Successor Rights and Assignment.
This Agreement shall bind, inure to the benefit of, and be enforceable
by Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, and legatees. The rights and obligations of
Parent and/or Company under this Agreement may not be assigned without the prior
written consent of Executive. Executive may not assign his duties hereunder and
he may not assign any of his rights hereunder without the prior written consent
of Company.
IN WITNESS WHEREOF, Executive, Parent and Company have signed this
Agreement as of the date hereinabove indicated.
XXXXXX XXXXX:
/s/Xxxxxx Xxxxx
---------------------------
XXXXXXXX.XXX, INC.
By: /s/Xxxxxx Xxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxx
Title: President
XXXXXXX.XXX, INC.:
By: /s/Xxxxxx Xxxxx
---------------------------
Name: Xxxxxx Xxxxx
Title: President
