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EXHIBIT 10.19
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") made as of this 6th day
of December 1999 by and between the parties: XXXXXX X. XXXXXXXXX, an individual
residing at 0000 Xxxx Xxx. X.X., Xx. Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as the "Executive"), and TELESERVICES INTERNET GROUP INC., a Florida
corporation with its principal executive offices at 000 Xxxxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Company").
W I T N E S S E T H
WHEREAS, the Company desires to retain and employ the Executive for the
purpose of securing to the Company the experience, ability and services of the
Executive as Senior Vice President, Marketing and Sales; and
WHEREAS, the Executive desires to be employed by the Company;
NOW, THEREFORE, it is mutually agreed by and between the parties as
follows:
ARTICLE I
EMPLOYMENT
The Company hereby employs the Executive, effective December 6, 1999, as
Senior Vice-President ("SVP"), Marketing and Sales, and the Executive hereby
accepts such employment and shall serve as an executive officer of the Company,
subject to and upon the terms and conditions set forth in this Agreement.
ARTICLE II
DUTIES
(A) The Executive shall, during the term of his employment with the Company
and subject to the direction and control of the Company's Board of Directors
(the "Board" or the "Board of Directors"), perform such executive duties and
functions as he may be called upon to perform consistent with his employment
hereunder as SVP, Marketing and Sales.
(B) The Executive shall devote most of his time and best efforts to the
performance of his duties for the Company, including the following:
(i) Develop, implement, and monitor marketing and sales plans for
the Company and its subsidiaries;
(ii) Make recommendations to the President and Chief Operating
Officer regarding sales staffing levels, and monitor and evaluate
performance of sales staff relative to compliance with established
policies and objectives of the Company and contributions towards
attaining objectives;
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(iii) Render services to any joint venture, subsidiary or
affiliated business of the Company as requested by the Chief Operating
Officer and the Board of Directors, provided that indemnification
equivalent to that referred to in Article IV (D) is provided to
Executive in connection with those services;
(iv) Seek to enhance and develop the Company's relationships with
its employees, customers, shareholders and others in the business
community;
(v) Confer on a regular basis with the Company's top management
and, from time to time, its Board of Directors, regarding the
company's vision, long-term strategy, employee issues, and customer
policies; and
(vi) Perform such other duties consistent with his position as
SVP, Marketing and Sales, as may be assigned to him by the President
and Chief Operating Officer.
(C) At the request of the Company, the Executive shall also serve, without
additional compensation, as an officer of one or more of the Company's
subsidiaries during the term of this Agreement, provided that indemnification
equivalent to that referred to in Article IV (D) is provided to Executive in
connection with those services.
(D) The Executive represents and warrants to the Company that, to the best
of his knowledge, he is under no professional obligation or commitment, whether
contractual or otherwise, that is inconsistent with his obligations under this
Agreement. The Executive represents and warrants that he will not knowingly use
or disclose, in connection with his employment by the Company, any trade secrets
or other proprietary information or intellectual property in which the Executive
or any other person has any right, title or interest. To the best of his
knowledge, the Executive's employment by the Company as contemplated by this
Agreement will not infringe or violate the rights of any other person. The
Executive represents and warrants to the Company that he has returned all
property and confidential information belonging to his most recent prior
employer.
ARTICLE III
COMPENSATION
(A) The Company shall pay to the Executive for all services to be rendered
pursuant to the terms of this Agreement a base annual salary of $85,000, payable
bi-weekly and in accordance with the Company's normal payroll procedures. The
President and Chief Operating Officer will review the Executive's performance on
or before June 1, 2000, and may increase the Executive's base salary from time
to time in his discretion, subject to the approval of the Chief Executive
Officer.
(B) The Executive shall be eligible to receive a bonus of up to 30% - 40%
of his salary, based on the extent to which he achieves certain defined goals
and objectives, to be determined by mutual agreement between him and the
President and Chief Operating Officer, subject to approval by the Chief
Executive Officer.
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ARTICLE IV
WORKING CONDITIONS AND BENEFITS
(A) The Executive shall be entitled to paid vacations during each year of
his employment with the Company in accordance with Company practice in that
year, but no less than as described on the attached Exhibit A, which is
incorporated in this Agreement as a part hereof by this reference. The Executive
shall also be entitled to leave for illness or temporary disability, which may
be paid or unpaid, in accordance with the policies of the Company in effect at
that time, but no less favorable to Executive than described on Exhibit A.
(B) The Executive shall work out of the Company's executive offices in St.
Petersburg, Florida. The Executive shall travel on the Company's behalf to the
extent reasonably necessary and be reimbursed for such travel.
(C) The Company shall reimburse the Executive for all reasonable and
necessary business travel and entertainment expenses, upon presentation by the
Executive of an itemized accounting of all expenditures unrelated to office
rental.
(D) The Company shall provide to the Executive, to the full extent provided
for under the laws of the Company's State of Incorporation and the Company's
Bylaws, indemnification for any claim or lawsuit which may be threatened,
asserted or commenced against the Executive by reason of the fact that he is or
was a director, officer, employee or other agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or other
agent of another corporation, partnership, joint venture, trust, or other
enterprise or employee benefit plan, provided that indemnification shall not be
provided in violation of applicable law. The indemnification to be provided to
Executive shall include coverage of him by officer and director insurance no
less favorable to Executive than the policies referred to on Exhibit A. The
Company shall also provide the Executive with mandatory advancement of expenses
upon receipt by the Company only of Executive's written undertaking to repay any
such amount advanced if he is ultimately found not to be entitled to
indemnification under applicable law.
ARTICLE V
OTHER BENEFITS
(A) Contemporaneously with the execution of this Agreement, the Company
shall grant the Executive options to acquire 1,000,000 shares of the Company's
common stock at an exercise price per share equal to $.05. Ten percent of the
options (100,000) shall vest upon the execution of this agreement and the
balance (900,000) shall vest over a 2 year period (and shall become exercisable
at the time they vest), subject to continued employment, at a rate of 112,500
options per quarter on the first day following the end of the quarter,
commencing on April 1, 2000. All options shall expire the earlier of January 1,
2005, or one year following the termination of employment with the Company. The
following terms and conditions apply to the options: (i) both the number of
options and the exercise price are subject to appropriate adjustments in the
event of any stock split, stock dividend or other change in capital structure
affecting the Company's common stock, (ii) the options and the shares of common
stock issuable upon exercise of the options are subject to
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restrictions on transfer, as required by applicable federal and state securities
laws; (iii) options which have not vested on or before the date of termination
of Executive's employment shall terminate on such date, and (iv) notwithstanding
the expiration date, all vested options must be exercised within the earlier of
the expiration date of the options or one year after termination of Executive's
employment The Executive acknowledges that as long as he remains an executive
officer of the Company, he shall be deemed an "affiliate" and/or a "control
person" for purposes of reporting and compliance under the rules and regulations
of the Securities and Exchange Commission.
(B) During the term hereof, the Executive shall be entitled to receive such
of the following other benefits of employment that are or may become available
to other members of the Company's senior executive management: health and life
insurance benefits, pension, profit sharing and income protection or disability
plans, in each instance consistent with his position as Senior Vice President,
Marketing and Sales, and no less favorable to Executive than any description
thereof on Exhibit A.
(C) Stock options in addition to those described above may be granted from
time to time in the discretion of the Board.
ARTICLE VI
TERM
The Company shall continue the Executive's employment, and the Executive
shall remain in employment with the Company, from the commencement date set
forth in Article I until the date when the Executive's employment terminates
pursuant to Article VII.
ARTICLE VII
TERMINATION
(A) The Executive may voluntarily terminate this Agreement at any time upon
written notice to the Company. The Executive shall provide at least one month
advance notice to the Company of his election to voluntarily terminate this
Agreement.
(B) The Company may terminate this Agreement for Cause at any time by
giving the Executive written notice thereof specifying with particularity the
grounds for such termination. In such event, this Agreement and the employment
relationship hereunder shall be terminated as of the date of such written notice
and the Executive will be entitled to no further salary from the Company. The
Company shall continue, however, to provide Executive with the indemnification
referred to in Article IV (D), but shall not be required to provide such
indemnification for or in connection with any matter in which a cause of action
is asserted against the Executive for any act which constitutes grounds for
termination for Cause hereunder. For purposes hereof, "Cause" shall mean (i) a
material violation of the terms of this Agreement that has not been cured by
Executive within 10 days of his receipt of notice particularly describing each
such violation; (ii) a breach of trust, defined as acts of dishonesty, moral
turpitude, theft, embezzlement and self-dealing; (iii) the disclosure of
confidential information prohibited hereunder (except disclosure in the
good-faith belief that the same is for the benefit of the Company) which results
(or can reasonably be expected to result) in material harm to the Company; or
(iv) negligence or willful misconduct, either of
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which results (or can reasonably be expected to result) in material harm to the
Company. Notice of termination for Cause shall be forwarded to the Executive by
the Company only upon and after a resolution of the Board authorizing such
notification and shall be effective immediately; provided, however, that the
Executive may be reinstated retroactively, in the discretion of the Board, in
the event that within ten days the Executive establishes to the satisfaction of
the Board that Cause did not exist.
(C) The Company may terminate this Agreement at any time upon at least one
month advance notice to the Executive; such notice shall be forwarded to the
Executive by the Company only upon and after a resolution of the Board
authorizing such notification and shall be deemed a termination without Cause.
(D) The Executive's employment with the Company shall be "at will." Any
contrary representations which may have been made to the Executive shall be
superseded by this Agreement, which may only be changed in an express written
agreement signed by the Executive and a duly authorized officer of the Company.
No options shall vest after the date of termination, but the Executive shall be
entitled to any options already vested, subject to the provisions of Article V
(A).
ARTICLE VIII
CONFIDENTIALITY AND NON-COMPETITION
The Executive and the Company recognize that due to the nature of the
Executive's engagement hereunder, and the relationship of the Executive to the
Company, the Executive will have access to, will acquire, and may assist in
developing confidential proprietary information relating to the business and
operations of the Company and its affiliates, including information with respect
to their present and prospective products, systems, customers, agents, processes
and sales and marketing methods. The Executive acknowledges that such
information has been and will continue to be of central importance to the
business of the Company and its affiliates and that disclosure of it or its use
by others could cause substantial loss to the Company. The Executive and the
Company also recognize that an important part of the Executive's duties shall be
to develop good will for the Company and its affiliates through his personal
contact with customers, agents and others having business relationships with the
Company and its affiliates, and that there is a danger that this good will, a
proprietary asset of the Company and its affiliates, may follow the Executive if
and when his relationship with the Company is terminated. Therefore, the
Executive hereby agrees as follows:
(A) All Company trade secrets, proprietary information, software, software
codes, advertising, sales, marketing and other materials or articles of
information, including customer and supplier lists, data, reports, customer
sales analyses, invoices, price lists or information, samples, or any other
materials or data of any kind furnished to the Executive by the Company or
developed by the Executive on behalf of the Company or at the Company's
direction or for the Company's use or otherwise in connection with the
Executive's employment hereunder, are and shall remain the sole and confidential
property of the Company; if the Company requests the return of such materials at
any time during or after the termination of the Executive's employment, the
Executive shall immediately deliver the same to the Company.
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(B) During the term of Executive's employment and during any period in
which the Executive may receive severance pay (or would be receiving severance
pay if he receives a lump sum rather than installments), the Executive shall
not, directly or indirectly, own, manage, operate, join or control, or
participate in the ownership, management, operation or control of, or be a
director, stockholder or an employee of, or a consultant to, any business, firm,
corporation or entity which (i) is conducting any business which competes with
the business, as conducted at any time during the term of employment with the
Company, of the Company or any of its affiliates with which Executive had any
substantial management involvement, or (ii) is or was at any time during the
term of employment with the Company a vendor, supplier, customer or distributor
of the Company or any of its affiliates with which Executive had any substantial
management involvement. During the same period of time specified in the
preceding sentence, the Executive shall not solicit, directly or indirectly, for
his own account or for the account of others, orders for merchandise, products
or services of a kind and nature like or similar to merchandise, products and
services sold or rendered by the Company during his employment with the Company
from any person or entity which was a customer of the Company or which the
Company was actively soliciting through personal contact to be a customer during
the 12 month period immediately preceding that date upon which his employment
relationship with the Company shall have terminated.
(C) During the term of this Agreement and for a period of one year
thereafter, the Executive shall not at any time, directly or indirectly, urge
any customer, or any person or entity which the Company was actively soliciting
to be a customer during the 12 month period immediately preceding that date upon
which his employment relationship with the Company shall have terminated, to
discontinue, in whole or in part, business, or not to do business with, the
Company; nor shall he directly or indirectly induce or attempt to influence any
employee of the Company to terminate his or her employment with the Company,
except for Xxxxxx Xxxxxx or Xxxxxxx Xxxxxxx.
(D) During the term of this Agreement and at all times thereafter, the
Executive shall not knowingly use for his personal benefit, or disclose,
communicate or divulge to, or use for the direct or indirect benefit of any
person, firm, association or entity other than the Company, any material
referred to in Paragraph (A) above or any information regarding the business
methods, business policies, procedures, techniques, research or development
projects or results, trade secrets, or other knowledge or processes used or
developed by the Company or any names and addresses of customers or clients or
any other confidential information relating to or dealing with the business
operations or activities of the Company, first made known to the Executive or
first learned or acquired by the Executive while in the employ of the Company.
(E) The foregoing provisions of this Article shall not (i) prevent
Executive from owning five percent or less of the outstanding stock of any
publicly traded entity, (ii) apply to information of any type that is publicly
disclosed, or is or becomes publicly available, in each instance without a
violation by Executive of the provisions of this Article, and (iii) be construed
to prevent disclosure by Executive pursuant to legal process, provided in this
event Executive shall endeavor to give reasonable advance notice to the Company
of any such legal process involving him that may result in otherwise prohibited
disclosure.
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(F) It is recognized that damages in the event of breach by the Executive
of this Article would be difficult, if not impossible, to ascertain. It is,
therefore, agreed that the Company shall have the right to an injunction or
other equitable relief in any court of competent jurisdiction, enjoining any
breach, and the Executive hereby waives any and all defenses specifically
related to the ground of lack of jurisdiction or competence of the court to
grant such injunction or other equitable relief. The existence of this right
shall not preclude any other rights and remedies at law or in equity which the
Company may have.
ARTICLE IX
CONSTRUCTION, ENFORCEABILITY AND SEVERABILITY
(A) The descriptive headings of Articles, or of or in any exhibit, are
inserted for convenience only and are not a part of this Agreement. Unless
otherwise qualified, references in this Agreement to "Article" are to provisions
of this Agreement and a reference thereto includes any subparts. As used herein,
the singular includes the plural, the plural includes the singular, and words in
one gender include the others, the terms "party" and "parties" are references to
the Company and/or the Executive as permitted or required by the context,
"herein", "hereunder", "hereof" and similar references refer to the whole of
this Agreement, "include", "including" and similar terms are not words of
limitation, and any examples are not limiting. The failure of an incorporated
party to affix its corporate seal to this Agreement shall not impair the
validity of the signature of that party but shall, instead, be the adoption by
that party of the phrase "(CORPORATE SEAL)" as the corporate seal of that party
for the purposes of this Agreement. In the event any date specified herein or
determined hereunder shall be on a Saturday, Sunday or nationally declared
holiday, then that date so specified or determined shall be deemed to be the
next business day following such date and compliance by or on that day shall be
deemed to be compliance with the terms of this Agreement.
(B) If any provision or portion of this Agreement shall be held invalid or
unenforceable, the remainder of this Agreement shall remain in full force and
effect. If any provision or portion of this Agreement is held invalid or
unenforceable with respect to particular circumstances, it shall remain in full
force and effect in all other circumstances.
(C) The Company represents and warrants to the Executive that, to the best
of its knowledge, it has been duly authorized to execute, deliver and perform
this Agreement and each related agreement, and that execution, delivery and
performance hereof and thereof is not and will not be a breach or violation of
any obligation or commitment, whether contractual or otherwise, to which the
Company is subject or by which it is bound.
ARTICLE X
ARBITRATION
Any controversy or claim arising out of or relating to this Agreement or
the breach thereof, or the Executive's employment or the termination thereof,
shall be settled by arbitration in St. Petersburg, Florida in accordance with
the National Rules for the Resolution of Employment Disputes of the American
Arbitration Association. The decision of the arbitrator shall be final and
binding on the parties, and judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. The arbitrator shall be
empowered to enter an equitable decree mandating specific enforcement of the
terms of this Agreement. The Company and the Executive
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shall share equally all fees and expenses of the arbitrator; provided, however,
that the Company or the Executive, as the case may be, shall bear all fees and
expenses of the arbitrator and all of the legal fees and out-of-pocket expenses
of the other party if the arbitrator determines that the claim or position of
the Company or the Executive, as the case may be, was without reasonable
foundation. The Executive and the Company each hereby consent to personal
jurisdiction of the state and federal courts located within the territorial
limits of the above venue for any action or proceeding arising from or relating
to this Agreement or relating to any arbitration in which the parties are
participants, and waive all venue objections with respect to such arbitration,
actions or proceedings.
ARTICLE XI
NOTICE
Any notice, request, demand or other communication required to be given
under the terms of this Agreement shall be in writing and shall be deemed to
have been duly given if delivered to the addressee in person or mailed by
certified mail, return receipt requested, to the Executive at the last resident
address he has provided to the Company, or in the case of the Company, at its
principal executive offices.
ARTICLE XII
BENEFIT
This Agreement shall inure to and shall be binding upon the parties, the
successors and assigns of the Company, and the heirs and personal
representatives of the Executive.
ARTICLE XIII
WAIVER
The waiver by either party of any breach or violation of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach.
ARTICLE XIV
GOVERNING LAW
The law of the State of Florida (except its provisions governing the choice
of law) shall govern the construction, enforcement and validity of this
Agreement.
ARTICLE XV
ENTIRE AGREEMENT
This Agreement constitutes or refers to the entire understanding of the
Executive and the Company with respect to the subject matter hereof and
supersedes any and all prior understandings written or oral. This Agreement may
not be changed, modified or discharged orally, but only by an instrument in
writing signed by the parties.
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ARTICLE XVI
COUNTERPARTS AND FACSIMILE SIGNATURES
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Execution and delivery of this Agreement
by exchange of facsimile copies bearing the facsimile signature of a party shall
constitute a valid and binding execution and delivery of this Agreement by such
party. Such facsimile copies shall constitute enforceable original documents.
IN WITNESS WHEREOF, the parties have executed this Agreement and affixed
their hands and seal the day and year first above written.
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxxx
TELESERVICES INTERNET GROUP INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx, Chairman
(CORPORATE SEAL)
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EXHIBIT A
SENIOR VICE PRESIDENT, MARKETING AND SALES
Paid Vacation - 3 weeks per year
Sick Time - 6 days per year
Holidays - 8.5 annually
Health Insurance - United HealthCare
Eligible on the first of the month following your first 90 days
Coverage Total Premium - $xxx.xx monthly
Company Pays - $xxx.xx monthly
Employee Pays - $xxx.xx monthly
Dental Insurance - American Dental Plan
Two Choices
HMO Dental - Family Coverage Total Premium - $xx.xx monthly
Employee pays $xx.xx monthly
Indemnity - Family Coverage Total Premium - $xx.xx monthly
Employee pays $xx.xx monthly
Life insurance paid for by the Company for employee only (no add-on's)
Coverage is by salary - VP coverage is $50,000
Executive will be able to participate as soon as possible in 401-K plan, when
and if implemented.
Liability Insurance - Hartford Business Insurance
Commercial Package
Liability and Medical $1,000,000
Personal and Advertising Injury $1,000,000
General Aggregate $2,000,000
Products - Completed Operations $2,000,000
Umbrella $2,000,000
Workers Comp $ 500,000 Each
D&O - TIG Specialty Insurance Co. $2,500,000
American Alliance Insurance Co. $2,500,000
Zurich Insurance Co. $2,500,000
Admiral Insurance Company $2,500,000
TSIG/POTENBERG EMPLOYMENT AGREEMENT EXHIBIT A
