EXHIBIT 6(II)
Xxxx Xxxxxxxxxx Employment Agreement
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (THE "Agreement"), dated as of the 10th day
of November, 1998, is between Dreams, Inc., a Utah corporation (the "Company")
and Xxxx Xxxxxxxxxx (the "Employee").
In consideration of the foregoing and the mutual promises and covenants
set forth herein, Company and Employee agree:
1. EMPLOYMENT.
1.1 EMPLOYMENT AND TERM. The company hereby employs the
Employee, and Employee shall serve the company, upon the terms and
conditions herein set forth, for a term commencing on the date of this
Agreement and expiring on the last day of the 60th calendar month
following the date first written above (the "Term of Employment"),
unless earlier terminated pursuant to Section 4 below.
1.2 POSITION AND DUTIES. The Employee is engaged as
Vice-President to exercise and faithfully perform to the best of his
ability on behalf of Company such duties as shall be determined by the
Board of Directors of the Company, and as same may be modified from
time to time.
1.3 OTHER ACTIVITIES. Nothing in this Agreement shall be
construed to prevent Employee from devoting a portion of his time to
community or charitable activities, from investing his assets in any
form or manner he deems appropriate or from serving as a director of
any corporation, provided such activities do not unreasonably interfere
with the performance of duties under this Agreement and do not violate
the provisions of Section 3.1.
2. COMPENSATION.
2.1 BASE SALARY. Company shall pay Employee Two Hundred Fifty
Thousand and No/100 Dollars ($250,000) per calendar year, payable
semi-monthly, subject, however, to the "EBITA" (as hereinafter defined)
adjustment. Notwithstanding the foregoing, commencing as of April 1,
2000, and on April 1st of each and every calendar year thereafter
during the Term of Employment, in the event that the Company's EBITA
for the immediately preceding fiscal year is: (a) less than One Million
Two Hundred Thousand and No/100 Dollars ($1,200,000.00), then for the
fiscal year then in question (commencing April 1, 2000 through March
31, 2001), the base salary shall be Two Hundred Thousand and No/100
Dollars ($200,000.00), payable semi-monthly; or (b) equal to or greater
than One Million Two Hundred Thousand and No/100 Dollars
($1,200,000.00), then for the fiscal year then in question (commencing
April 1, 2000 through March 31, 2001), the base salary shall
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be Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), payable
semi-monthly. For purposes of this Agreement, the term "EBITA" shall
mean net income plus interest expense, plus income tax, plus
depreciation expenses, plus amortization expenses, all determined in
accordance with generally accepted accounting principles, all as set
forth in the Company's audited financial statements.
2.2 HEALTH INSURANCE. The Company shall provide health,
medical and dental care insurance coverage for Employee and his
dependents in amounts and coverage equivalent to the greater of the
amount and coverage previously provided to Employee by his previous
employer, Mounted Memories, Inc., or the insurance benefits and
coverage provided by the Company in its health insurance coverage
provided for other Company officers.
2.3 AUTOMOBILE ALLOWANCE. Company shall reimburse Employee or
otherwise provide Employee an automobile allowance in the amount of
Eight Hundred and No/100 dollars ($800.00) per month and a
reimbursement for all insurance, fuel, maintenance, cellular and mobile
telephones, repairs and upkeep therefor. The automobile allowance shall
increase effective immediately preceding the adjustment then in
question by a ratio of the "Index" (as hereinafter defined) for the
month of November preceding the year of the date of adjustment then in
question divided by the Index for the month of November of 1997. The
"Index" shall mean the index numbers of retail commodity prices
designated "Revised Consumer Price Index for all Urban Consumers - U.S.
City Average - All Items (1982-1984=100) Prepared by the Bureau of
Labor Statistics of the United States Department of Labor". In the
event such Index is not published, then an index most comparable to the
commodity index published shall be utilized.
2.4 DISABILITY AND LIFE INSURANCE.
(a) Company shall pay for or reimburse Employee the
cost of a disability insurance policy which shall provide
the highest rate of compensation then available, but in no
event less than Two Hundred Thousand and No/100 Dollars
($200,000.00) per year, a ninety (90) day waiting period,
and benefits payable through the age of seventy-five (75).
(b) Company shall pay for or reimburse Employee for a
life insurance policy which will provide a death benefit in
the amount of Two Million and No/100 Dollars
($2,000,000.00), which shall contain a cost of living
adjustment endorsement for each calendar year during the
term of this Agreement.
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(c) Provided, however, that the total annual cost of
such disability and life insurance coverage for Employee to
be paid by the Company shall not exceed Two Thousand
Dollars ($2,000) per year. Any cost of such insurance in
excess of $2,000 per year shall be paid by Employee.
2.5 DIRECTORS' AND OFFICERS' INSURANCE. At such time as it
becomes available and economically feasible, Company will maintain
director's and officers' insurance in sufficient amounts to insure
against the personal liability of the Employee as a director of the
Company for certain losses resulting from claims brought against
directors and officers because of their alleged wrongful acts.
2.6 VACATION. The Employee shall be entitled to a four (4)
week vacation each calendar year during the term of this Agreement.
2.7 BENEFITS. In addition to the other provisions of Section 2
set forth above, Company shall provide to Employee all other standard
benefits and perquisites as are provided for other Company officers,
directors and employees.
2.8 WITHHOLDING. Employee agrees that the Company shall deduct
and withhold from his salary and from all other amounts paid to
Employee, all state and federal tax and other withholdings.
2.9 EXPENSES. Employee is authorized to incur reasonable
expenses for the business of company which are necessary for the
promotion of Company's business and similar expenses that assist
Employee in the performance of his duties hereunder.
2.10 TERMINATION. Without in any way limiting the other
provisions of this Agreement, upon termination of Employee's
employment, whether by expiration of the term of this Agreement or as
provided for in Section 4, Employee shall cease to receive or have any
right to receive salary or any other compensation provided for above or
otherwise, provided, however, that nay previously earned compensation
shall be paid by Company to Employee in accordance with the terms and
provisions of this Agreement.
3. DISCLOSURE OF INFORMATION.
3.1 DISCLOSURE OF INFORMATION. The Employee recognizes and
acknowledges that the confidential, proprietary information of the
Company, and other intellectual property of this Company including
contacts made prior to the commencement of this Agreement and those
made within the scope of Employee's duties hereunder and such trade
secrets or information as may exist from time to time, including
without limitation, technical
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information regarding the Company's business, information as to the
identity of employees, customers and potential or existing suppliers
of the Company or its affiliates, information as to the marketing or
other plans of the Company and other similar items, are valuable,
special and unique assets of the Company's business, access to and
knowledge of which are essential to the performance of the duties of
Employee hereunder. Such property and information shall remain the
exclusive property of the Company at all times during and subsequent
to the Term of Employment. Employee will not, during or after the
Term of Employment, in whole or in part, remove Company's records
either in original, duplicated or copied form, from the premises of
the Company, nor disclose such secrets or confidential or
proprietary information to any person, firm, corporation,
association or other entity (except the Company or its affiliates)
under any circumstances, during or after the Term of Employment.
3.2 INJUNCTIVE RELIEF. If there is a breach or threatened
breach of the provisions of Section 3.1 of this Agreement by Employee,
the Company shall be entitled to an injunction restraining the Employee
from breaching or violating the provisions of this Section 3, it being
agreed that the loss and damages suffered by virtue of any breach are
incapable of being made certain.
3.3 EVENTS OF DEFAULT BY COMPANY. In the event of a breach or
default by the Company hereunder, which results in Employee not
receiving base salary (as set forth in Paragraph 2.1 above), for any
reason and for a period of ninety (90) consecutive days, which reasons
include, but are not limited to, the failure of the Company to pay to
Employee the base salary while Employee remains in the employ of the
Company or Employee ceases to be employed by the Company directly as a
result of such breach or default by the Company, then the provisions of
this Section 3 shall be void and of no further force or effect.
4. EARLY TERMINATION OF AGREEMENT.
4.1 EARLY TERMINATION OF AGREEMENT. This Agreement shall
terminate earlier than expiration of the Term of Employment ("Early
Termination") upon the occurrence of any of the following events:
(a) Immediately upon notice from the Company to the
Employee for cause. The term "cause" shall refer and be
limited to: (i) any act of embezzlement or conversion of
assets of the Company; (ii) the employee's breach of any
material covenant of this Agreement; (iii) habitual or
repeated non-performance of material duties. However, with
regard to (ii) and (iii) above, "cause" shall not have
occurred until Company notifies Employee of such event, in
writing, and Employee shall not have cured such event
within a period of fifteen (15) days after receipt of such
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written notice, provided however, in the event such cure
cannot be reasonably completed within said fifteen (15) day
period, Employee shall have the right to commence to cure
such event and diligently pursue such cure to completion.
(b) Upon mutual agreement of Company and Employee.
4.2 OBLIGATIONS SURVIVING EARLY TERMINATION. Notwithstanding
the Early Termination of this Agreement as contemplated in Section 4.1
above or expiration of the term if this Agreement, the provisions of
this Agreement relating to the Employee's covenant not to compete, and
Employee's obligation to maintain and protect trade secrets and
confidential, proprietary rights and information of the Company shall
maintain in force and effect pursuant to the terms of this Agreement.
5. GENERAL PROVISIONS.
(a) BINDING AGREEMENT. This Agreement shall be binding upon
and shall inure to the benefit of the heirs, legal representatives,
successors and assigns, as applicable, of the respective parties hereto,
and any entities resulting from the reorganization, consolidation or
merger of any party hereto.
(b) HEADINGS. The headings used in this Agreement are inserted
for reference purposes only and shall not be deemed to limit or affect
in any way the meaning or interpretation of any of the terms or
provisions of this Agreement.
(c) COUNTERPARTS. This Agreement may be signed upon any number
of counterparts with the same effect as if the signature to any
counterpart were upon the same instrument.
(d) SEVERABILITY. The provisions of this Agreement are
severable, and should any provision hereof be found to be void, voidable
or unenforceable, such void, voidable or unenforceable provision shall
not affect any other portion or provision of this Agreement. without
limiting the generality of the above, should any provision be
unenforceable as a result of a time period or geographic area, the time
period and/or geographic area shall be reduced to the longest period
and/or largest area which would render the provision enforceable.
(e) WAIVER. Any waiver by any party hereto of any breach of
any kind or character whatsoever by any other party, whether such waiver
be direct or implied, shall not be construed as a continuing waiver or
consent to any subsequent breach of this Agreement on the part of the
other party.
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(f) MODIFICATION. This Agreement may not be modified except
by an instrument in writing signed by the parties hereto.
(g) GOVERNING LAW. This Agreement shall be interpreted,
construed and enforced according to the laws of the State of Florida.
Venue with respect to any litigation regarding this Agreement shall only
be permitted in the Seventeenth Judicial Circuit in and for Broward
County, Florida.
(h) ATTORNEYS' FEES. In the event any action or proceeding is
brought by either party against the other under this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees
and costs through all trial and appellate levels.
(i) NOTICE. Any notice, consent, request, objection or
communication to be given by either party to this Agreement shall be in
writing and shall be either delivered personally or by Airborne, Federal
Express or other commercial overnight delivery service addressed as
follows:
Company: Dreams, Inc.
00000 Xxxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Employee: Xxxx Xxxxxxxxxx
00000 Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
(j) ASSIGNMENT. Employee may not assign his rights and
obligations pursuant to this Agreement to a third party without the
written consent of the Company.
(k) SECURITIES DOCUMENTS. It shall be a condition to the
issuance of any securities by Company to Employee, including shares of
the Company's common stock, that Employee shall execute and deliver to
Company all documents deemed necessary by the Company's counsel in order
to comply with the securities laws of the United States and the states
thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first set forth above.
COMPANY:
DREAMS, INC., a Utah corporation
By:
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Its: Secretary
EMPLOYEE:
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Xxxx Xxxxxxxxxx
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