EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT
(the
"Agreement") is made and entered into this 23rd day of January, 2007, by and
between XxxXxxxxxxxxxXxxxxxxx.xxx, Inc., a Nevada Corporation, (the
“Company"), , and Xxxxxxxx X. Xxxxxx, (the "Employee").
WHEREAS,
the
Company desires to employ Employee, and Employee desires to be employed by
the
Company; and
WHEREAS,
the
Company and the Employee wish to memorialize their understanding through this
Agreement;
NOW,
THEREFORE,
in
consideration of the mutual covenants and promises herein contained, the parties
hereby agree as follows:
| 1. |
Duties
and Responsibilities
|
During
the term of this Agreement, Employee will be employed by the Company to serve
as
its Chief Executive Officer (C.E.O.). The Employee will devote such amount
of
business time, on a full-time basis, to the conduct of the business of the
Company as may be reasonably required to effectively discharge Employee's duties
under this Agreement and will perform those duties and have such authority
and
powers as are customarily associated with this position. Following acceptance
of
the position of C.E.O. by the Employee in accordance with the terms of this
agreement, the Board of Directors will appoint you to the Board of Directors
and
elect you as Chairman of the Board. The duties, responsibilities, and term
of
the Employee as a Director and Chairman are not covered specifically by this
agreement, but rather through the Articles of Incorporation and the By-laws
of
the Company. The parties hereto acknowledge and agree that the Employee’s
position as C.E.O. is separate and distinct from the Employee’s position as a
member of the Company’s Board of Directors and Chairman of the
Board.
| 2. |
Term
of Employment
|
| 2.1 |
Basic
Term
|
This
Agreement shall commence on January 23, 2007 and continue for a period of
three (3) years, wherein it shall expire. This Agreement shall
automatically renew for a period of three (3) years upon the expiration on
the
third anniversary of this Agreement unless either party informs the other party
in writing, ninety (90) days prior to the third anniversary of this Agreement,
of that party’s desire to terminate the Agreement on the third anniversary. The
Agreement shall continue to renew every third year until terminated pursuant
to
this Agreement.
| 2.2 |
Termination
for Willful Misconduct
|
Termination
for Willful Misconduct may be effected by Company at any time during the term
of
this Agreement and shall be effected by written notification by the Company
to
Employee. Such written notification shall specifically state the willful
misconduct that is the grounds for the Employee’s termination. Upon Termination
for Willful Misconduct, Employee is to be immediately paid all accrued salary,
incentive compensation to the extent earned, vested deferred compensation (other
than pension plan or profit sharing plan benefits, which will be paid in
accordance with the applicable plan), and accrued vacation pay, all to the
date
of termination, and Employee will not be paid any severance compensation.
Employee shall be entitled to any additional benefits, including but not limited
to COBRA, as required by applicable law.
"Termination
for Willful Misconduct" means termination by Company of Employee's employment
due to (i) Employee's willful dishonesty towards, fraud upon, or deliberate
injury or attempted injury to, the Company; (ii) Employee's material breach
of this Agreement; or (iii) Employee's gross negligence or intentional
misconduct with respect to the performance of Employee's duties under this
Agreement.
| 2.3 |
Termination
Other Than for Willful Misconduct
|
Notwithstanding
anything else in this Agreement, Company may terminate this Agreement for any
reason or no reason, at any time upon giving written notice to Employee of
such
termination. Upon termination pursuant to this section 2.3, Employee will
immediately be paid all salary that Employee is due for the remaining term
of
the Agreement, all incentive compensation due to the Employee, severance
compensation as provided in Section 4, vested deferred compensation (other
than pension plan or profit sharing plan benefits, which will be paid in
accordance with the applicable plan), and accrued vacation pay, all to the
date
of termination. Employee shall be entitled to any additional benefits, including
but not limited to COBRA, as required by applicable law.
| 2.4 |
Termination
Due to Disability
|
In
the
event that, during the term of this Agreement, Employee should, in the
reasonable judgment of the Board of Directors, fail to perform Employee's duties
under this Agreement because of illness or physical or mental incapacity
("Disability"), and such Disability continues for a period of more than three
(3) consecutive months, Company will have the right to terminate Employee's
employment under this Agreement by written notification to Employee and payment
to Employee of all salary that Employee is due to the date of termination plus
one additional year’s Base Salary, all incentive compensation, severance
compensation as provided in Section 4, vested deferred compensation (other
than pension plan or profit sharing plan benefits, which will be paid in
accordance with the applicable plan), and all accrued vacation pay, all to
the
date of termination. Employee shall be entitled to any additional benefits,
including but not limited to COBRA, as required by applicable law.
| 2.5 |
Death
|
In
the
event of Employee's death during the term of this Agreement, Employee's
employment is to be deemed to have terminated as of the expiration date of
this
Agreement, and Company will pay to Employee's estate the Employee’s all salary
that Employee is due to the date of termination plus one additional year’s Base
Salary, incentive compensation to the extent earned, vested deferred
compensation (other than pension plan or profit sharing plan benefits, which
will be paid in accordance with the applicable plan), and accrued vacation
pay
to the date of termination.
| 2.6 |
Voluntary
Termination
|
Notwithstanding
anything else in this Agreement, Employee may terminate this Agreement for
any
reason or no reason, at any time upon giving written notice to Company,
respectively, of such termination. In the event that the Employee terminates
this Agreement, the Employee shall provide the Company with thirty (30) days
written notice, and the Company will immediately pay to Employee all accrued
salary, all incentive compensation to the extent earned, vested deferred
compensation (other than pension plan or profit sharing plan benefits, which
will be paid in accordance with the applicable plan), and accrued vacation
pay,
all to the date of termination, but Employee will not be paid any severance
compensation.
Voluntary
termination means termination by the Employee of the Employee's employment
with
Company, except by reason of death or disability.
| 3. |
Salary,
Benefits and Other
Compensation
|
| 3.1 |
Base
Salary
|
The
Employee shall be paid a minimum "Base Salary," payable bi-weekly. The Base
Salary payable to Employee under this Section will initially be Two Hundred
Twenty-Five Thousand Dollars ($225,000.00) annually. The Base Salary shall
be
adjusted each subsequent year, as determined by the Company’s Compensation
Committee, in accordance with the salaries found for positions of the same
nature, scope, and level of responsibility as the Employee’s and in similar
industries to that of the Company. In no case shall the Base Salary be
decreased.
| 3.2 |
Incentive
Bonus Plans
|
During
the term of his employment under this Agreement, the Employee will be eligible
to participate in all bonus and incentive plans established by the Board and
the
Compensation Committee. Employee will be provided with a description of said
bonus and incentive plans separately from this Agreement. The Employee shall
also be entitled to a bonus of Seventy-Five Thousand Dollars ($75,000.00) when
the Company achieves Ten Thousand (10,000) subscribers at the Company’s lowest
price point of $60.00 per month or $600.00 per year. The Employee shall be
entitled to an additional bonus of Seventy-Five Thousand Dollars ($75,000.00)
when the Company’s monthly revenues (as determined in accordance with Generally
Accepted Account Principles) are equal to One Million Dollars ($1,000,000.00)
or
more. The Company’s Compensation Committee will examine the Employee’s
performance on at least an annual basis, to determine if the Employee is meeting
the objectives provided by the Company under this Agreement. If the Compensation
Committee determines that the Employee is meeting the requirements of this
Agreement, the Employee shall be entitled to a bonus on each anniversary of
this
Agreement between fifty percent (50%) and one-hundred percent (100%) of the
Employee’s Base Salary.
| 3.3 |
Benefit
Plan
|
The
Employee will be entitled to participate in or become a participant in the
Company’s health insurance plan, pension benefit or profit sharing plan, or any
other similar plan maintained by the Company for which the Executive is
eligible, subject to the terms and conditions of such plans. On termination
of
the Employee for any reason or no reason, the Employee will retain all of
Employee's rights to benefits that have vested under such plan, subject to
federal and state laws. The Employee shall be entitled to three (3) weeks of
paid vacation for each calendar year. If there is any employee benefit plan
that
is not currently provided by the Company, the Employee shall be entitled,
without more, to participate in such plan as they are instituted by the
Company.
| 3.4 |
Withholding
of Taxes
|
The
Employee’s Base Salary, bonus, and benefits shall be subject to applicable tax
withholding, in accordance with applicable law.
| 3.5 |
Equity
Position
|
Employee
shall be entitled to receive ownership shares in the Company per the Company's
qualified Stock Option Plan of up to Six Million (6,000,000) shares. Until
such
time as the Company files and completes a registration statement the shares
underlying the options will be restricted. Once the registration is effective
all of the shares in the plan will be registered and thus unrestricted. The
Company represents and warrants to the Employee that Six Million shares
(6,000,000) is equivalent to four percent (4%) of the outstanding shares of
the
Company. The Employee shall be entitled at the time of execution of this
Agreement to One Million Five Hundred Thousand (1,500,000) options to purchase
shares. The purchase price of the options shall be the closing price of the
Company’s shares on the date of execution of the Agreement by the Employee. Then
the Employee shall be entitled to an additional One Million Five Hundred
Thousand (1,500,000) options to purchase shares on the first anniversary of
this
Agreement at the closing price of the Company’s shares on the date of execution
of this Agreement by the Employee. The Employee shall be entitled to an
additional One Million Five Hundred Thousand (1,500,000) or options to purchase
shares on the second and third anniversaries of this Agreement at the closing
price of the Company’s shares on the date of execution of this Agreement by the
Employee.
| 4. |
Severance
Compensation
|
If
Employee's employment is terminated for any reason or no reason, except a
Termination Other Than for Willful Misconduct, as defined above, Employee will
be paid the remaining balance of the term of this Agreement as severance pay,
incentive compensation to the extent earned, vested deferred compensation (other
than pension plan or profit sharing plan benefits, which will be paid in
accordance with the applicable plan), and accrued vacation pay, all to the
date
of termination.
| 5. |
Confidentiality
and Non-competition and Assignment of
Inventions.
|
The
employee agrees to sign and execute the Company’s standard confidentiality
agreement.
| 6. |
Miscellaneous
|
| 6.1 |
Entire
Agreement; Modification
|
Except
as
otherwise provided in the Agreement, this Agreement represents the entire
understanding among the parties with respect to the subject matter of this
Agreement, and this Agreement supersedes any and all prior understandings,
agreements, plans, and negotiations, whether written or oral, with respect
to
the subject matter hereof, including without limitation, any understandings,
agreements, or obligations respecting any past or future compensation, bonuses,
reimbursements, or other payments to Employee from Company. All modifications
to
the Agreement must be in writing and signed by the party against whom
enforcement of such modification is sought.
| 6.2 |
Governing
Law
|
This
Agreement is to be governed by and construed in accordance with the laws of
the
State of New Jersey applicable to employment contracts entered into.
| 6.3 |
Survival
of Company's Obligations
|
This
Agreement will be binding on, and inure to the benefit of, the executors,
administrators, heirs, successors, and assigns of the parties.
| 6.4 |
Enforcement
|
If
any
portion of this Agreement is determined to be invalid or unenforceable, that
portion of this Agreement will be adjusted, rather than voided, to achieve
the
intent of the parties under this Agreement. The remaining portions of the
Agreement shall remain in full force and effect.
| 6.5 |
Notices
|
Any
notice or other communication by one party to the other shall be in writing
and
shall be given, and be deemed to have been given, if either hand-delivered
or
mailed, postage prepaid, certified mail (return receipt requested), or sent
by
an overnight courier service, addressed as follows:
|
To
the Company:
|
XxxXxxxxxxxxxXxxxxxxx.xxx, Inc. | ||
| 000 Xxxxx Xxxxxxx Xxxxxx | |||
| Xxxxxxxxx, Xxxxxxxxxx 00000 | |||
| To the Employee: | Xxxxxxxx X. Xxxxxx | ||
| 0000 Xxx Xxxx Xxxxx | |||
| Xxxxxx, Xxxxxxx 00000 |
Any
party
may change the address for notice by notifying the other party, in writing,
of
the new address.
[SIGNATURES
ARE ON THE FOLLOWING PAGE.]
IN
WITNESS WHEREOF
, the
parties hereto have executed this Agreement as of the day and year first above
written.
| COMPANY: | |||
|
Date:
January
23,
2007
|
XxxXxxxxxxxxxXxxxxxxx.xxx, Inc.
|
||
|
|
|
By:
|
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, Chairman
|
|
Date:
January
23,
2007
|
|
||
|
|
|
By:
|
/s/
Xxx Xxxxx
Xxx Xxxxx, Director |
|
Date:
January
23,
2007
|
|
EMPLOYEE:
|
|
|
|
|
By:
|
/s/
Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx |
