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Exhibit 99(1)
EMPLOYMENT AGREEMENT
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This Employment Agreement ("AGREEMENT") is entered into effective
January 1, 2000 by and between LA GROUP, INC. ("EMPLOYER") and XXXXXX X. XXXXXX
("EMPLOYEE"), and
PREMISES
1. Employee possesses expertise, experience and skill in the development
and marketing of products via electronic and other means.
2. Employee has demonstrated the ability to run, manage and build a
publicly traded development stage business.
3. Employer desires to employ Employee to serve as its Chief Executive
Officer to run, manage and build its business.
4. Employee desires to perform all of such services as Employer's
employee and both parties want to enter into a written agreement as to
their understanding of the employment relationship.
AGREEMENT
For and in Consideration of the mutual covenants contained herein and
of the mutual benefits to be derived hereunder, the parties agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following terms
shall have the meanings set forth below:
a. "Accrued Benefits" shall mean the amount payable not later than
ten (10) days following an applicable Termination Date and which shall be equal
to the sum of the following amounts:
(i) All salary earned or accrued through the Termination
Date;
(ii) Reimbursement for any and all monies advanced in
connection with Employee's employment for reasonable
and necessary expenses incurred by
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Employee and approved by the Employer through the
Termination Date; and
(iii) All other payments and benefits to which Employee may
be entitled under the terms of any benefit plan of
the Employer.
b. "Board" shall mean the board of directors of the Employer.
c. "Cause" shall mean any of the following:
(i) The engagement by Employee in fraudulent conduct,
which has a significant adverse impact on the
Employer in the conduct of the Employer' s business;
(ii) Conviction of a felony involving a crime against the
Employer, as evidenced by a binding and final
judgment, order or decree of a court of competent
jurisdiction;
(iii) Gross negligence or refusal by Employee to perform
his duties or responsibilities; or
d. "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
e. "Confidential Information" means information (i) disclosed to
or actually known by Employee as a consequence of or through his/her employment
with the Employer, (ii) not generally known outside the Employer, and (iii)
which relates to the Employer's business. Confidential Information includes, but
is not limited to, information of a technical nature, such as methods and
materials, trade secrets, inventions, processes, formulas, systems, computer
programs, and studies, and information of a business nature such as project
plans, market information, costs, customer lists, and so forth.
f. "Disability" shall mean a physical or mental condition whereby
Employee is unable to perform on a full-time basis his customary duties under
this Agreement.
g. "Developments" means all Inventions (defined hereafter),
computer programs, copyright works, mask works, trademarks, Confidential
Information, Works of Authorship (defined hereafter), and other Intellectual
Property (defined hereafter), made, conceived or authored by Employee, alone or
jointly with others, while employed by the Employer; whether or not during
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normal business hours or on the Employer's premises, that are within the present
scope of the Employer's business at the time such Developments are made,
conceived, or authored, or which result from or are suggested by any work
Employee or others may do for or on behalf of the Employer.
h. "Employer" means LA Group, Inc. and its subsidiaries, divisions
and affiliates as well as majority owned companies of such subsidiaries,
divisions and affiliates, or their successors or assigns.
i. "Invention" means discoveries, concepts, and ideas, whether or
not patentable or copyrightable, including but not limited to improvements,
know--how, data, processes, methods, formulae, and techniques, as well as
improvements thereof, or know--how related thereto, concerning any present or
prospective activities of the Employer which Employee makes, discovers or
conceives (whether or not during the hours of his engagement of with the use of
the Employer's facilities, materials or personnel), either solely or jointly
with others during his engagement by the Employer or any affiliate and, if based
on or related or Proprietary Information, at any time after termination of such
engagement.
j. "Intellectual Property" means Inventions, Confidential
Information, Works of Authorship, patent rights, trademark rights, service xxxx
rights, copyrights, know-how, Developments and rights of like nature arising or
subsisting anywhere in the world, in relation to all of the foregoing, whether
registered or unregistered.
k. "Notice of Termination" shall mean the notice described in
Section 13 hereof.
l. "Person" shall mean any individual, partnership, joint venture,
association, trust, corporation or other entity, other than an employee benefit
plan of the Employer of an entity organized, appointed of established pursuant
to the terms of any such benefit plan.
m. "Proprietary Information" shall mean any and all methods,
inventions, improvements or discoveries, whether or not patentable or
copyrightable, and any other information of a similar nature related to the
business of the Employer disclosed to the Employee or otherwise made known to
him as a consequence of or through his engagement by the Employer (including
information originated by Employee) in any technological area previously
developed by the Employer or developed, engaged in, or researched, by the
Employer during the term of Employee's engagement, including, but not limited
to, trade secrets, processes, products, formulae, apparatus, techniques,
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know--how, marketing plans, data, improvements, strategies, forecasts, customer
lists, and technical requirements of customers, unless such information is in
the public domain to such an extent as to be readily available to competitors.
n. "Termination Date" shall mean, except as otherwise provided in
Section 12 hereof.
(i) Employee's date of death;
(ii) Thirty (30) days after the delivery of the Notice of
Termination if Employee's employment on account of
Disability pursuant to Section 16 hereof, unless
Employee returns on a full-time basis to the
performance of his duties prior to the expiration of
such period;
(iii) Thirty (30) days after the delivery of the Notice of
Termination if Employee's employment is terminated by
Employee voluntarily; and
(iv) Thirty (30) days after the delivery of the Notice of
Termination if Employee's employment is terminated by
the Employer for any reason other than death or
Disability.
o. "Termination Payment" shall mean the payment described in
Section 14 hereof.
p. "Works of Authorship" means an expression fixed in a tangible
medium of expression regardless of the need for a machine to make the expression
manifest, and includes, but is not limited to, writings, reports, drawings,
sculptures, illustrations, video recordings, audio recordings, computer
programs, and charts.
2. EMPLOYMENT. Employer hereby employs Employee to perform those duties
generally described in this Agreement, and Employee hereby accepts and agrees to
such employment on the terms and conditions hereinafter set forth.
3. TERM. Subject to the terms and conditions of this Agreement, the
term of this Agreement shall commence retroactively from January 1, 2000,
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and end on December 31, 2005.
4. DUTIES. During the term of this Agreement, Employee shall be
employed by Employer as its Chief Executive Officer. In addition to the office
of Chief Executive Officer, Employee agrees to serve in such other office or
position with Employer or any subsidiary of Employer and as such shall, from
time to time, be determined by Employer's Board. Employee agrees to serve as a
member of the Employer's Board as Chairman of its Board. Employee shall devote
substantially all of his working time and efforts to the business of Employer
and its subsidiaries and shall not during the term of this Agreement be engaged
in any other substantial business activities which will significantly interfere
or conflict with the reasonable performance of his duties hereunder.
5. COMPENSATION.
a. Salary. For all services rendered by Employee, Employer shall
pay to Employee a base salary of $125,000 for the first year, and the base
salary shall increase by $12,500 per year for each of the remaining four years
of this Agreement, payable in bi-monthly installments. If Employer's financial
constraints so dictate, Employee agrees to defer a portion of the salary
contained in this Section. This deferred base salary along with any deferred
base salary earned prior to the date of this Agreement shall be paid to Employee
at such time or times as financial constraints allow. All salary payments shall
be subject to withholding and other applicable taxes. The rate of salary may be
increased at any tine, as the Board may determine, based on earnings, increased
activities of the Employer, or such other factors as the Board may deem
appropriate from time to time. Employee shall receive bonus or incentive
compensation as approved by the Board. This option may be exercised at any time
prior to the expiration of this Agreement by written notice to the then
President of the Employer, and is subject to an increase in the authorized
capitalization of the Employer from 20,000,000 shares of common stock to
100,000,000 shares of common stock.
b. Incentive Compensation. In the event that Employer achieves
"ADJUSTED GROSS REVENUES" annually in excess of $10,000,000 Employee shall
receive additional compensation equal to 9/10 of 1% of "ADJUSTED GROSS
REVENUES". This Incentive compensation shall be paid on an annual basis within
thirty (30) days of the end of the calendar year based on the preceding calendar
year's "ADJUSTED GROSS REVENUES". "GROSS"
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and "ADJUSTED GROSS REVENUES" are defined as follows: "GROSS REVENUES" shall
mean all income of Employer from all sources exclusive of sales taxes, use
taxes, value added taxes, and any other taxes imposed upon sales of products.
"ADJUSTED GROSS REVENUES" shall mean Employer's Gross Revenues from sales of the
Products less all of the following:
(i) refunds, credits or other allowances on account of
return or rejection of goods or otherwise granted in
the ordinary course of business as actually incurred
and as reserved for ("Returns");
(ii) uncollectible accounts due to credit card charge
backs, bad checks or other reasons of
uncollectability, as actually incurred and as
reserved for ("Uncollectibles"); and
(iii) sales made at or below LA Group's cost of goods for
purposes of liquidation or close-out ("Liquidation
Sales").
c. Insurance Benefits. Employer shall provide health and medical
insurance for Employee in a form and program to be chosen by Employer for
certain of its full-time employees. Alternatively, at Employee's discretion,
Employer may reimburse Employee for Employee's health and medical insurance
coverage for Employee and his family. Employer shall provide Employee with
directors and officers liability insurance in the minimal amount of $2,000,000
and life and disability insurance in amounts approved by the Board.
d. Other Benefits. Employee shall be entitled to participate in
any retirement, pension, profit-sharing, or other plan as may be put in effect
from time to time by the Board, including the following:
(i) Qualified Stock Option Plan. Pursuant to a Qualified
Stock Option Plan authorized by the Board and
approved by the Shareholders of Employer, Employee
shall have the option to purchase up to 400,000
shares of the Employer's common shares on the
following terms: up to 100,000 shares of Employer's
stock in six months at $1.00 per share, up to 100,000
shares of Employer's stock in 12 months at $2.00 per
share, up to 100,000 shares of Employer's stock in
eighteen months at $3.00 per share and up to 100,000
shares of Employer's stock in twenty-four months at
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$4.00 per share. These options are cumulative and
fully vested upon execution of this Agreement; and
(ii) Revenue Performance Bonuses. Employee shall be issued
100,000 shares of Employer's stock for each
$10,000,000 in Gross Income received by Employer on
an annual basis with a maximum of 3,000,000 shares to
be issued during the term of this Agreement Gross
Income shall mean total revenue less sales taxes
collected, returns and allowances; and
(iii) Stock Performance Options. Employee shall have the
option to purchase additional shares of the
Employer's common stock upon the happening of the
following: if the public trading price closes at a
minimum of $2.00 per share for five (5) consecutive
days, Employee shall have the option to purchase
150,000 shares at $1.00 per share; if the public
trading price closes at a minimum of $4.00 per share
for five (5) consecutive days, Employee shall have
the option to purchase an additional 150,000 shares
at $2.00 per share; if the public trading price
closes at a minimum of $6.00 per share for five (5)
consecutive days, Employee shall have the option to
purchase an additional 200,000 shares at $3.00 per
share. These options are cumulative and fully vested
upon execution of this Agreement. These options must
be executed prior to the expiration of this Agreement
by written notice to the President of the Employer.
e. Automobile / Transportation. Employer shall pay for or
reimburse Employee for his insurance, monthly automobile payment, not to exceed
$1,000 per month, including applicable taxes, fuel, oil, insurance, repairs and
maintenance.
6. EXPENSES. Employer will reimburse Employee for ordinary and
necessary expenses incurred in connection with Employer's business, including
expenses for travel, lodging, meals, beverages, entertainment, and other items
of Employee's periodic presentation of an account of such expenses. Employer
shall reimburse Employee for the following expenses whether incurred or to be
incurred on behalf of Employer.
7. WORKING FACILITIES. Employer shall provide to Employee offices
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and facilities appropriate to Employee's position and suitable for the
performance of Employee's duties as set forth in this Agreement.
8. NONDISCLOSURE OF PROPRIETARY AND CONFIDENTIAL INFORMATION
Recognizing that the Employer is presently engaged, and may hereafter continue
to be engaged in the research and development of processes, the manufacturing of
products or performance of services, which involve experimental and inventive
work and that the success of the Employer's business depends upon the protection
of the processes, products and services by patent, copyright or by secrecy and
that Employee has had, or during the course of his engagement may have, access
to Proprietary and Confidential Information, as herein defined, of the Employer
or other information and data of a secret or proprietary nature of the Employer
which the Employer wishes to keep confidential and Employee has furnished, or
during the course of his engagement may furnish such information to the
Employer, Employee agrees and acknowledges that:
a. The Employer has exclusive property rights to all
Proprietary and Confidential Information and Employee hereby assigns all rights
he might otherwise possess in any Proprietary and Confidential Information to
the Employer. Except as required in the performance of his duties to the
Employer, Employee will not at any time during or after the term of his
engagement, which term shall include any time in which Employee may be retained
by the Employer as a consultant, directly or indirectly use, communicate,
disclose or disseminate any Proprietary or Confidential Information of a secret,
proprietary, confidential or generally undisclosed nature relating to the
Employer, its products, customers, processes and services, including information
relating to testing, research development, manufacturing, marketing and selling.
b. All documents, records, notebooks, notes, memoranda and
similar repositories of, or containing, Proprietary and Confidential Information
or any other information of a secret, proprietary, confidential or generally
undisclosed nature relating to the Employer or its operations and activities
made or compiled by Employee at any time or made available to him prior to or
during the term of his engagement by the Employer, including any and all copies
thereof, shall be the property of the Employer, shall be held by him in trust
solely for the benefit of the Employer, and shall be delivered to the Employer
by him on the termination of his engagement or at any other time on the request
of the Employer.
c. Employee will not assert any rights under any inventions,
trademarks, copyrights, discoveries, concepts or ideas, or improvements thereof,
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or know--how related thereto, as having been made or acquired by him during the
term of his engagement if based on or otherwise related to Proprietary or
Confidential Information.
9. ASSIGNMENT OF INVENTIONS.
a. All Inventions shall be the sole property of the Employer, and
Employee agrees to perform the provisions of the Section 9 with respect thereto
without the payment by the Employer of any royalty or any consideration therefor
other than the regular compensation paid to Employee in the capacity of any
employee or consultant.
b. Employee shall apply, at the Employer's request and expense,
for United States and foreign letters patent or copyrights either in Employee' s
name or otherwise an the Employer shall desire.
c. Employee hereby assigns to the Employer all of his rights to
such Inventions, and to applications for United States and/or foreign letters
patent or copyrights and to United States and/or foreign letter patent or
copyrights granted upon such Inventions.
d. Employee shall acknowledge and deliver promptly to the
Employer, without charge to the Employer, but at its expense, such written
instruments (including applications and assignments) and do such other acts,
such as giving testimony in support of Employee' s inventorship, as may be
necessary in the opinion of the Employer to obtain, maintain, extend, reissue
and enforce United States and/or foreign letters patent and copyrights relation
to the Inventions and to vest the entire right and title thereto in the Employer
of its nominee. Employee acknowledges and agrees that any copyright developed or
conceived of, by Employee during the term of his employment that is related to
the Business of the Employer shall be a " work for hire" under the copyright law
of the United States and other applicable jurisdictions.
e. Employee represents that his performance of all the terms of
this Agreement and as an employee of or consultant to the Employer does not and
will not breach any trust prior to his employment by the Employer. Employee
agrees not to enter into any agreement either written or oral in conflict
herewith and represents and agrees that he has not brought and will not bring
with to the Employer or use in the performance of his responsibilities at the
Employer any materials or documents of a former employer which are not generally
available to the public, unless he has obtained written authorization from the
former employer for their possession and use, a copy of which has been provided
to the Employer.
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f. No provisions of the Paragraph shall be deemed to limit the
restrictions applicable to Employee under Section 8 and 9.
10. SHOP RIGHTS. The Employer shall also have the royalty-free right to
use in its business, and to make, use and sell products, processes and/or
services derived from any inventions, discoveries, concepts and ideas, whether
or not patentable, including but not limited to processes, methods, formulas and
techniques, as well as improvements thereof or know-how related thereto, which
are not within the scope of Inventions as defined herein but which are conceived
of or made by Employee during the period he is engaged by the Employer or with
the use or assistance of the Employer's facilities, materials or personnel.
11. NON-COMPETE. Employee hereby agrees that during the term of this
Agreement and for a period of one year thereafter, Employee will not:
a. Within any jurisdiction or marketing area in the United States
or Canada in which the Employer or any subsidiary thereof is doing business,
own, manage, operate, or control any business of the type and character engaged
in and competitive with the Employer or any subsidiary thereof. For purposes of
this paragraph, ownership of securities of not in excess of five percent (5%) of
any class of securities of a public employer listed on a national securities
exchange or on the National Association of Securities Dealers Automated
Quotation System (NASDAQ) shall not be considered to be competition with the
Employer or any subsidiary thereof;
b. Within any jurisdiction or marketing area in the United States
in which the Employer or any subsidiary thereof is doing business, act as, or
become employed as an officer, director, employee, consultant or agent of any
business of the type and character engaged in and competitive with the Employer
or any of its subsidiaries;
c. Solicit any similar business to that of the Employer's for, or
sell any products that are in competition with the Employer's products to which
is, as of the date hereof, a customer or client of the Employer or any of its
subsidiaries, or was such a customer or client thereof within two years prior to
the date of this Agreement; or
d. For up to six months following the termination of this
Agreement solicit the employment of, or hire, any full time employee employed by
the Employer or its subsidiaries as of the date of termination of this
Agreement.
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12. TERMINATION. Employer may not terminate this Agreement during its
term without Cause as defined herein. If this Agreement is terminated without
Cause, Employee shall be entitled to the Termination Payments set forth in
Section 14 hereof. Any termination by Employer of Employee of Employee's
employment during the term hereof shall be communicated by written Notice of
Termination to Employee, if such Notice of Termination is delivered by the
Employer, and to the Employee, if such Notice of Termination is delivered by
Employee, all in accordance with the following procedures:
a. The Notice of termination shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances alleged to provide a basis for
termination;
b. Any Notice of Termination by the Employer shall be approved by
a resolution duly adopted by a majority of the members of the Employer;
c. If Employee shall provide the president or chief executive
officer with a Notice of Termination at least 30 days prior to leaving the
employment of the Employer. Upon the end of the thirty days, all compensation
provisions of this Agreement shall cease.
13. TERMINATION UPON TRANSFER OF BUSINESS. Notwithstanding any
provision this Agreement to the contrary, Employee may terminate this Agreement
upon the happening of any of the following events: (a) the sale by Employer of
substantially all of its assets to a single purchaser or to a group of
associated purchasers; (b) the sale, exchange, or other disposition to a single
entity or group of entities under common control in one transaction or series of
related transactions of greater than 50% of the outstanding shares of Employer's
common stock; (c) the decision by Employer to terminate its business and
liquidate its assets; or (d) the merger or consolidation of Employer in a
transaction in which the shareholders of the Employer immediately prior to such
merger or consolidation receive less than 50% of the outstanding voting shares
of the new or continuing corporation. In the event Employee does not elect to
terminate this Agreement upon the happening of any of the events noted above,
and as a result of such event, Employer is not the surviving entity, then the
provisions of this Agreement shall inure to the benefit of and be binding upon
the surviving or resulting entity. If as a result of the merger, consolidation,
transfer of assets, or other event listed above, the duties of Employee are
increased, then the compensation of Employee provided for in paragraph 5 of this
Agreement shall be reasonably adjusted upward for
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the additional duties and responsibilities assumed. In the event of the
occurrence of (a) (b) or (d) above and Employee elects to terminate this
Agreement, Employee shall be entitled to a bonus equal to three (3) times the
base salary provided for in Paragraph 5(a). Said payment to be paid at time of
closing.
14. TERMINATION PAYMENTS. In the event the Employee's employment is
terminated by the Employer during the term hereof for reasons other than Cause,
as defined herein, Employee shall be paid any sums owed under this Agreement,
including but not limited to any salary, any deferred compensation, accrued
benefits, bonuses and options, and for any potential actions for breach of this
Agreement by Employer. Other than any payments set forth in this Section 14,
Employee shall be entitled to no further compensation nor any other payments
after termination. Employee shall receive no further payments if terminated for
Cause other than Accrued Benefits.
15. DEATH DURING EMPLOYMENT. If Employee dies during the term of this
Agreement, Employer shall have no further obligations to pay Employee other than
any Accrued Benefits.
16. ILLNESS OR INCAPACITY. If Employee is unable to perform Employee's
services by reason of illness or incapacity for a period of more than two (2)
consecutive months the compensation thereafter payable to Employee during the
next two (2) consecutive months shall be 50% of the compensation provided for
herein. During such period of illness or incapacity, Employee shall be entitled
to receive incentive compensation if any Notwithstanding the foregoing, if such
illness or incapacity does not cease to exist within a four (4) consecutive
month period, Employee shall not be entitled to receive any further compensation
nor any payments for such illness or incapacity, and Employer may terminate this
Agreement without further liability to Employee. Any existing options to
purchase Employer's common stock held by Employee at the time termination shall
be governed by the terms of the option and not affected by this provision. At
the termination of such illness or incapacity, Employee shall be entitled to
receive Employee's full compensation payable pursuant to the terms of this
Agreement.
17. NON-TRANSFERABILITY. Neither Employee, Employee's spouse,
Employee's designated contingent beneficiary, nor their estates shall have any
right to anticipate, encumber, or dispose of any payment due under this
Agreement. Such payments and other rights are expressly declared non-assignable
and nontransferable except as specifically provided herein.
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18. INDEMNIFICATION. Employer shall indemnify, defend and hold Employee
harmless from liability for acts or decisions made by Employee while performing
services for Employer to the greatest extent permitted by applicable law.
Employer shall use its best efforts to obtain coverage for Employee under any
insurance policy now in force or hereafter obtained during the term of this
Agreement insuring officers and directors of Employer against such liability.
19. ASSIGNMENT. This Agreement may not be assigned by either party
without the prior written consent of the other party.
20. ENTIRE AGREEMENT. This Agreement is and shall be considered to be
the only agreement or understanding between the parties hereto with respect to
the employment of employee by employer. All negotiations, commitments, and
understandings acceptable to both parties have been incorporated herein. No
letter, telegram, or communication passing between the parties hereto covering
any matter during this contract period, or any plans or periods thereafter,
shall be deemed a part of this Agreement; nor shall it have the effect of
modifying or adding to this Agreement unless it is distinctly stated in such
letter, telegram, or communication that is to constitute a part of this
Agreement and is attached as an amendment to this Agreement and is signed by the
parties to this Agreement.
21. ENFORCEMENT. Each of the parties to this Agreement shall be
entitled to any remedies available in equity or by statute with respect to the
breach of the terms of this Agreement by the other party. Employee hereby
specifically acknowledges and agrees that a breach of the agreements, covenants
and conditions of this Agreement will cause irreparable harm and damage to the
Employer, that the remedy at law, for the breach or threatened breach of this
Agreement will be adequate, and that, in addition to all other remedies
available to the Employer for such breach or threatened breach (including,
without limitation the right to recover damages), the Company shall be entitled
to injunctive relief for any breach or threatened breach of this Agreement.
22. GOVERNING LAW. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of New York.
23. SEVERABILITY. If and to the extent that any court of competent
jurisdiction holds any provision or any part thereof of this Agreement to be
invalid or unenforceable, such holding shall in no way affect the validity of
the remainder of this Agreement.
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24. WAIVER. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this Agreement or
to exercise any right or remedy consequent upon a breach hereof shall constitute
a waiver of any such breach or of any covenant, agreement, term, or condition.
25. LITIGATION EXPENSES. In the event that it shall be necessary or
desirable for the Employee or Employer to retain legal counsel and/or incur
other costs and expenses in connection with the enforcement of any or all of the
provisions of this Agreement, the prevailing party shall be entitled to recover
from the other party reasonable attorneys' fees, costs, and expenses incurred by
the prevailing party in connection with the enforcement of this Agreement.
Payment shall be made upon the conclusion of such action.
26. SURVIVABILITY. The provisions of Section 8, 9, 10, 11 and 12 shall
survive termination of this Agreement.
AGREED AND ENTERED INTO as of the date first above written.
EMPLOYER: EMPLOYEE:
LA GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxx, SEC /s/ Xxxxxx X. Xxxxxx
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Duly Authorized Officer XXXXXX X. XXXXXX
