Exhibit 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of July 13, 2005, by and between
RELATIONSERVE MEDIA, INC., a Nevada corporation with its principal office at
0000 X. Xxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 (the "Company"), and
XXXXXX XXXXXX XXXXX, an individual, residing at 0000 Xxxxx Xxxx Xxxxx #0000,
Xxxxxxxx, Xxxxxxx 00000 (the "Employee").
RECITALS:
WHEREAS, the Company desires to employ the Employee for the period and
under the terms and conditions provided in this Agreement and the Employee is
willing to accept such employment with the Company;
NOW, THEREFORE, for and in consideration of the premises hereof and the
mutual covenants contained herein, the parties hereto covenant and agree as
follows:
1. EMPLOYMENT.
(a) The Company hereby employs the Employee, and the Employee
hereby accepts such employment with the Company, for the period set forth in
Section 2 hereof, all upon the terms and conditions hereinafter set forth.
(b) The Employee affirms and represents that she is under no
obligation to any former employer or other party that is in any way inconsistent
with, or that imposes any restriction upon, the Employee's acceptance of
employment hereunder with the Company, the employment of the Employee by the
Company, or the Employee's undertakings under this Agreement.
2. TERM OF EMPLOYMENT.
(a) Unless earlier terminated as provided in this Agreement, the
term of the Employee's employment under this Agreement shall be for a period
beginning on June 17, 2005 (the "Effective Date") and ending on June 16, 2008
(the "Initial Term").
(b) The term of the Employee's employment under this Agreement
may be renewed for additional two-year terms (each a "Renewal Term") upon the
expiration of the Initial Term or any Renewal Term upon the mutual consent of
the Employee and the Company. The period from the Effective Date until June 16,
2008, or, in the event that the Employee's employment hereunder is earlier
terminated as provided herein or renewed as provided in this Section 2(b), such
shorter or longer period, as the case may be, is hereinafter called the
"Employment Term."
3. DUTIES. The Employee shall be employed as the Chief Executive
Officer of the Company and shall faithfully and competently perform such duties
consistent with such position as the Board of Directors of the Company shall
from time to time determine and be subject to periodic performance evaluations
and reviews by the Board of Directors. The Employee shall perform her duties
principally at the offices of the Company in Fort Lauderdale, Florida, or such
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other places as the Board of Directors may reasonably determine, with such
travel, including overnight travel, to such other locations from time to time as
the Board of Directors may reasonably prescribe. Except as may otherwise be
approved in advance by the Board of Directors, and except during vacation
periods and reasonable periods of absence due to sickness, personal injury or
other disability or non-profit public service activities, the Employee shall
devote her full time throughout the Employment Term to the services required of
her hereunder. The Employee shall render her business services exclusively to
the Company and its subsidiaries during the Employment Term and shall use her
best efforts, judgment and energy to improve and advance the business and
interests of the Company and its subsidiaries in a manner consistent with the
duties of her position.
4. SALARY AND BONUS. As compensation for the complete and satisfactory
performance by the Employee of the services to be performed by her hereunder
during the Employment Term:
(a) the Company shall pay the Employee a base salary at the
annual rate of $200,000 (such amount, together with any increases thereto as may
be determined from time to time by the Board of Directors in its sole discretion
but subject to the provisions of this Agreement, being hereinafter referred to
as "Salary"). Any Salary payable hereunder shall be paid in regular intervals in
accordance with the Company's payroll practices from time to time in effect;
(b) the Company shall pay to the Employee such incentive
compensation and bonuses, if any, (i) as the Board of Directors in its absolute
discretion may determine to award the Employee, and (ii) to which the Employee
may become entitled pursuant to the terms of any incentive compensation or bonus
program, plan or agreement from time to time in effect and applicable to the
Employee;
(c) upon the effectiveness of the Company's 2005 Incentive Plan,
the Company shall recommend to the Board of Directors a grant to the Employee an
option to purchase 100,000 shares of common stock, $0.001 par value per share,
of the Company ("Common Stock") at a per share exercise price equal to the
current market price per share; and
(d) Upon the effectiveness of the Company's 2005 Incentive Plan,
the Company shall recommend to the Board of Directors a grant to Employee of
300,000 shares of restricted Common Stock, with one-third of the shares of
Common Stock vesting upon the resolution of the Board of Directors granting the
Common Stock (the "Grant Date"), one-third of the shares of Common Stock vesting
on the first anniversary of the Grant Date and the remaining one-third of shares
of Common Stock vesting on the second anniversary of the Grant Date.
5. OTHER BENEFITS. During the Employment Term, the Employee shall:
(a) be eligible to participate in employee fringe benefits and
pension and/or profit sharing plans that may be provided by the Company for its
senior executive employees in accordance with the provisions of any such plans,
as the same may be in effect from time to time;
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(b) be eligible to participate in any medical and health plans or
other employee welfare benefit plans that may be provided by the Company for its
senior executive employees in accordance with the provisions of any such plans,
as the same may be in effect from time to time;
(c) be entitled to two weeks' paid vacation in respect of each
12-month period during the Employment Term;
(d) be entitled to all paid holidays given by the Company to its
senior executive employees;
(e) be eligible for consideration by the Board of Directors for
awards of stock or stock options under any equity incentive plan that may be
established by the Company for its and its subsidiaries' key employees, the
amount, if any, of shares of stock or shares with respect to which options may
be granted to the Employee to be in the sole discretion of the Board of
Directors, subject to the provisions of this Agreement;
(f) be entitled to sick leave, sick pay and disability benefits
in accordance with any Company policy that may be applicable to senior executive
employees from time to time; and
(g) be entitled to reimbursement for all reasonable and necessary
out-of-pocket business expenses incurred by the Employee in the performance of
her duties hereunder in accordance with the Employee's existing arrangements
with the Company.
6. CONFIDENTIAL INFORMATION. The Employee hereby covenants, agrees and
acknowledges as follows:
(a) The Employee has and will have access to and will participate
in the development of or be acquainted with confidential or proprietary
information and trade secrets related to the business of the Company and any
present and future subsidiaries or affiliates of the Company (collectively with
the Company, the "Companies"), including but not limited to (i) customer lists;
the identity, lists or descriptions of any new customers, referral sources or
organizations; financial statements; cost reports or other financial
information; contract proposals or bidding information; business plans; training
and operations methods and manuals; personnel records; software programs; email
databases; reports and correspondence; and management systems policies or
procedures, including related forms and manuals; (ii) information pertaining to
future developments such as future marketing or acquisition plans or ideas, and
potential new business and (iii) all other tangible and intangible property that
are used in the business and operations of the Companies. The information and
trade secrets relating to the business of the Companies described hereinabove in
this paragraph (a) are hereinafter referred to collectively as the "Confidential
Information," provided that the term Confidential Information shall not include
any information (x) that is or becomes generally publicly available (other than
as a result of violation of this Agreement by the Employee or the violation of
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an agreement of like tenor by any other person or entity) or (y) that the
Employee receives on a nonconfidential basis from a source (other than the
Companies or their representatives) that is not known by her to be bound by an
obligation of secrecy or confidentiality to any of the Companies.
(b) The Employee shall not disclose, use or make known for her or
another's benefit any Confidential Information or use such Confidential
Information in any way, except as is in the best interests of the Companies in
the performance of the Employee's duties under this Agreement. The Employee may
disclose Confidential Information when required by a third party and applicable
law or judicial process, but only after providing (i) immediate notice to the
Company at any third party's request for such information, which notice shall
include the Employee's intent with respect to such request, and (ii) sufficient
opportunity for the Company to challenge or limit the scope of the disclosure on
behalf of the Companies, the Employee or both.
(c) Upon termination of her employment with the Company for any
reason, the Employee shall forthwith return to the Company all Confidential
Information in whatever form maintained (including, without limitation, computer
discs and other electronic media).
7. TERMINATION.
(a) The Employee's employment hereunder shall be terminated upon
the occurrence of any of the following:
(i) the death of the Employee;
(ii) the Employee's inability to perform her duties on
account of disability or incapacity for a period of 180 or more days, whether or
not consecutive, within any period of 12 consecutive months;
(iii) the Company giving written notice, at any time, to the
Employee that the Employee's employment is being terminated for "cause" (as
defined below); or
(iv) the Company giving written notice, at any time, to the
Employee that the Employee's employment is being terminated other than pursuant
to clause (i), (ii) or (iii) above.
The following actions, failures and events by or affecting the Employee
shall constitute "cause" for termination within the meaning of clause (iii)
above: (A) an indictment for or conviction of the Employee of, or the entering
of a plea of nolo contendere by the Employee with respect to, having committed a
felony, (B) abuse of controlled substances or alcohol, (C) acts of dishonesty or
moral turpitude by the Employee that are detrimental to one or more of the
Companies, (D) willful misconduct of the Employee to perform any material duties
hereunder or gross negligence of the Employee in the performance of such duties,
(E) failure by the Employee to obey the reasonable and lawful orders and
policies of the Board of Directors that are consistent with the provisions of
this Agreement or (F) breach by the Employee of any provision of this Agreement.
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(b) Notwithstanding anything to the contrary expressed or implied
herein, except as required by applicable law, the Companies shall not be
obligated to make any payments to the Employee or on her behalf of whatever kind
or nature by reason of the termination of the Employment Term (i) by the
Employee (except in the case of the breach of this Agreement by the Company) or
(ii) pursuant to clause (i), (ii) or (iii) of Section 7(a) above, other than (x)
such amounts, if any, of her Salary and additional compensation payable pursuant
to Section 4(b) hereof as shall have accrued and remained unpaid as of the date
of said termination and (y) such other amounts, if any, that may be then
otherwise payable to the Employee pursuant to the terms of the Company's
benefits plans or pursuant to Section 5(g) hereof.
(c) If the Company terminates Employee's employment hereunder
pursuant to clause (iv) of Section 7(a), the Company shall continue to pay to
the Employee her Salary (at the rate in effect immediately prior to such
termination) through the earlier of (i) the twelve month anniversary of the
Employee's termination or (ii) the expiration of, as the case may be, either the
Initial Term or the then current Renewal Term. In addition, any options or
Common Stock granted under this Employment Agreement shall vest on the date of
such termination.
(d) In the event of the death of the Employee at any time when
she is entitled to receive payments under Section 7(c) hereof, such payments
shall be made to the estate of the Employee or if the Employee has designated a
beneficiary to receive such payments under Section 8 hereof, to such
beneficiary.
(e) No interest shall accrue on or be paid with respect to any
portion of any payments hereunder.
8. ASSIGNABILITY.
(a) Neither this Agreement nor any right or interest hereunder
shall be assignable by the Employee or her beneficiaries or legal
representatives without the Company's prior written consent; provided, however,
that nothing in this Section 8(a) shall preclude the Employee from designating a
beneficiary to receive any benefit payable hereunder upon her death or
incapacity.
(b) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation or to exclusion,
attachment, levy or similar process or to assignment by operation of law, and
any attempt, voluntary or involuntary, to effect any such action shall be null,
void and of no effect.
9. RESTRICTIVE COVENANTS.
(a) During the Employment Term and, in the event that the
Employee's employment is terminated for any reason (including the non-renewal of
this Agreement in accordance with Section 2(b) above), during the 12-month
period following such termination, for herself or on behalf of any other person,
firm or entity, the Employee will not directly or indirectly:
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(i) induce or attempt to induce any employee of any of the
Companies to leave the employ of the Companies or in any way interfere with the
relationship between any of the Companies and any employee thereof;
(ii) call on or contact any supplier or customer of the
Companies or any agent of the Companies for the purpose of soliciting, diverting
or taking away any such supplier, customer or agent from the Companies; and
(iii) hire, engage, send any work to, place orders with, or
in any manner be associated with any supplier, contractor, subcontractor or
business relation of any of the Companies if such action by her would have an
adverse effect on the business, assets, financial condition or prospects of any
of the Companies, or interfere with the relationship between any such person or
entity and any of the Companies.
(b) In connection with the foregoing provisions of this Section
9, the Employee represents that her experience, capabilities and circumstances
are such that such provisions will not prevent her from earning a livelihood.
The Employee further agrees that the limitations set forth in this Section 9
(including, without limitation, time limitations) constitute the "legitimate
business interests" of the Companies within the meaning of Florida Statutes
542.335 and are hereby conclusively agreed to be legally sufficient to support
such covenants. Such "legitimate business interests" include but are not
necessarily limited to trade secrets; valuable confidential business or
professional information that does not legally qualify as trade secrets;
substantial relationships with specific prospective or existing customers or
clients; customer or client good will associated with an ongoing business, by
way of trade name, trademark, service xxxx or "trade dress", in a specific
geographic location and a specific marketing or trade area; and extraordinary or
specialized training. It is further acknowledged and agreed that all such
restrictive covenants set forth above are reasonably necessary to protect the
legitimate business interests of the Companies and are not overbroad or
unreasonable. It is acknowledged and agreed that the Company is specifically
relying upon the foregoing statements in entering into this Employment
Agreement. It is understood that the covenants made by the Employee in this
Section 9 (and in Section 6 hereof) shall survive the expiration or termination
of this Agreement.
10. REMEDIES. The Employee acknowledges that a remedy at law for any
breach or threatened breach of the provisions of Sections 6 or 9 hereof would be
inadequate, that the Company would be irreparably injured by such breach and
that, therefore, the Company shall be entitled to injunctive relief in addition
to any other available rights and remedies in case of any such breach or
threatened breach, without the necessity of posting a bond or proving damages.
11. BINDING EFFECT. Without limiting or diminishing the effect of
Section 8 hereof, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, legal
representatives and assigns.
12. NOTICES. All notices that are required or may be given pursuant to
the terms of this Agreement shall be in writing and shall be sufficient in all
respects if given in writing and (i) delivered personally, (ii) mailed by
certified or registered mail, return receipt requested and postage prepaid, or
(iii) sent via a responsible overnight courier, to the parties at their
respective addresses set forth above, or to such other address or addresses as
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either party shall have designated in writing to the other party hereto. The
date of the giving of such notices delivered personally or by carrier shall be
the date of their delivery and the date of giving of such notices by certified
or registered mail shall be the date five days after the posting of the mail.
13. LAW GOVERNING AND VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, except that body
of law relating to choice of laws. In addition, any legal suit, action or
proceeding arising out of or relating to this Employment Agreement shall be
instituted exclusively in the federal or state courts in the state of Florida,
Broward County, and each party waives any objection to the venue of any such
suit, action or proceeding and the right to assert that such forum is not a
convenient forum, and irrevocably consents to the jurisdiction of such federal
or state courts in the state of Florida, Broward County, in any such suit,
action or proceeding.
14. SEVERABILITY. In the event that any court of competent
jurisdiction shall finally hold that any provision of Section 6 or 9 hereof is
void or constitutes an unreasonable restriction against the Employee, Section 6
or 9, as the case may be, shall not be rendered void, but shall apply with
respect to such extent as such court may judicially determine constitutes a
reasonable restriction under the circumstances, and, in such connection, the
parties hereto authorize any such court to modify or sever any such provision,
including without limitation, any such provision relating to duration and
geographical area, to the extent deemed necessary or appropriate by such court.
If any part of this Agreement other than Section 6 or 9 is held by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part by reason of any rule of law or public policy, such part shall
be deemed to be severed from the remainder of this Agreement for the purpose
only of the particular legal proceedings in question and all other covenants and
provisions of this Agreement shall in every other respect continue in full force
and effect and no covenant or provision shall be deemed dependent upon any other
covenant or provision.
15. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
16. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements, oral and written, between the parties hereto
with respect to the subject matter hereof. This Agreement may be modified or
amended only by an instrument in writing signed by both parties hereto.
17. SURVIVAL OF PROVISIONS. Neither the termination of this Agreement,
nor of Employee's employment hereunder, shall terminate or affect in any manner
any provision of this Agreement that is intended by its terms to survive such
termination, including without limitation, the provisions of Sections 4 to 7
inclusive and Sections 9 and 11 hereof.
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18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signature Page Follows]
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[SIGNATURE PAGE TO XXXXXX XXXXXX XXXXX]
IN WITNESS WHEREOF, the Company and the Employee have duly executed
and delivered this Agreement as of the day and year first above written.
RELATIONSERVE MEDIA, INC.
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: President
/s/ Xxxxxx Xxxxxx Xxxxx
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Xxxxxx Xxxxxx Xxxxx
