Exhibit 10(e)
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT is made this 23/rd/ day of December, 1998 by and
between XXXXXXXXXXX.XXX, a Nevada corporation (the "Employer"), and XXXXX XXXXX
(the "Employee").
PREAMBLE
--------
Employer desires to employ Employee as Creative Director of Employer, and
Employee desires to be so employed, under the terms and conditions set forth
herein.
THEREFORE the parties agree as follows with the intent to be legally bound:
1. Employment. Employer hereby employs Employee and Employee hereby
----------
accepts employment as Employer's Creative director on the terms and subject to
the conditions hereinafter set forth. Employee shall perform such duties, and
have such powers, authority and responsibilities for Employer as may be assigned
to her from time to time by Employer's Chief Executive Officer.
2. Term. Except as provided herein to the contrary, the term of
----
Employee's employment under this Agreement shall be for a continually renewing
term of five years without any further action by either Employer or Employee, it
being the intention of the parties that there shall be continuously a term of
five years' duration of Employee's employment under this Agreement until an
event has occurred terminating such employment as provided herein.
3. Compensation.
------------
(a) Base Salary. For all services rendered by Employee while employed
-----------
hereunder, Employer agrees to pay Employee a base salary at the initial rate of
$33,000 per annum (the "Base Salary"), which shall be payable in the intervals
consistent with Employer's normal payroll schedules. The Base Salary may be
increased (but not decreased) in the discretion of the Chief Executive Officer
or Board of Directors of Employer.
(b) Employee Benefits. During the term of Employee's employment
-----------------
hereunder and, with respect to the benefits described in (i) and (ii) below, for
a period of five years following the termination of Employee's employment for
any reason other than pursuant to Section 4(a), Section 4(c) or Section 5 hereof
(i) Employer shall, at its cost and expense, provide Employee and her immediate
family with medical and dental insurance, (ii) Employee shall be eligible to
participate in all other benefit plans or programs generally available to
executive employees of Employer, including without limitation, if and when
available, disability insurance, pension, profit sharing and stock option plans,
and (iii) Employer shall, at its cost and expense, purchase and maintain $2.0
million of term life insurance on Employee's life naming as beneficiaries (A)
Employer for $1.0 million of the insurance amount and (B) Employee's husband or,
if he is not living, then Employee's children or, if there are no living
children, then Employee's surviving parents, for $1.0 million of the insurance
amount.
(d) Holidays and Vacation. The Employee shall be entitled to the same
---------------------
paid holidays as other employees of the Employer. In addition, the Employee
shall be entitled to 20 days of paid vacation per calendar year. If the Employee
is employed hereunder for only a portion of any calendar year, then such number
of vacation days shall be reduced pro rata based upon the actual number of days
in such calendar year during which the Employee is employed hereunder. Vacation
days are not cumulative and must be taken during the calendar year in which they
accrue. The Employee shall not be entitled to any cash payment in lieu of taking
any vacation days. The Employee shall arrange her vacation so as not to conflict
with the needs of Employer.
(e) Reimbursement of Expenses. During the term of the Employee's
-------------------------
employment hereunder, the Employer shall reimburse the Employee for all
reasonable out-of-pocket expenses incurred by the Employee in the lawful and
ordinary course of Employer's business and reported to Employer in accordance
with its accounting procedures, including expenses for meals, entertainment,
hotel and air travel, telephone, automobile, dues, club expenses, fees and
similar items.
(g) Other Facilities. Employer shall provide Employee with office
----------------
space, furnishings and facilities, secretarial and administrative assistance,
supplies and equipment commensurate with Employee's position.
4. Termination.
-----------
(a) Termination By Employer. The employment of Employee under this
-----------------------
Agreement may be terminated by Employer as follows:
(i) For cause in the event of Employee's deliberate and
intentional continuing refusal to substantially perform her duties and
obligations under this Agreement (except by reason of incapacity due to
disability or illness), if she shall have either failed to remedy such alleged
breach within 45 days after his receipt of written notice from Employer
demanding that he remedy such alleged breach, or shall have failed to take
reasonable steps in good faith to that end during such 45 day period and shall
continue diligently to take such steps; provided that Employer has delivered to
Employee a further notice after the end of such 45 day period asserting that
Employee has failed to comply with the remedy provisions of this Section
4(a)(i), and specifying the particulars thereof in detail, and provided further
that Employee thereafter receives a certified copy of a resolution of the Board
adopted by the affirmative vote of not less than 75% of the entire Board at a
meeting called and held for that purpose and at which Employee was given an
opportunity to be heard, finding that Employee exhibited conduct set forth in
this Section and that Employee failed to take reasonable steps in good faith to
remedy such alleged breach and specifying the particulars thereof in detail; or
(ii) For cause in the event that Employee has engaged in willful
fraud or defalcation involving material funds or other assets of Employer.
(b) Termination Payment in Event of Termination for Cause. In the
-----------------------------------------------------
event of termination of Employee's employment under this Agreement by Employer
under Section 4(a), Employee shall only be entitled to receive the Base Salary
being paid at the time of such termination, and, if applicable, other
compensation, due hereunder, computed on a pro rata basis, up to the effective
date of such termination.
-2-
(c) Termination by Employee. Employee shall have the right at any
-----------------------
time, by giving written notice to Employer, to terminate Employee's employment
hereunder effective 90 days after the date on which such notice is given by
Employee. In the event Employee shall make such election under this Section
4.3(c) Employee shall, in addition to all other reimbursements, payments or
other allowances required to be paid under this Agreement or under any other
plan, agreement or policy which survives the termination of this Agreement, be
entitled to be paid, in addition to the Base Salary payable during such 90 day
period, a lump sum payment, payable by delivery of Employer's cashier's check
within five business days after the end of such 90 day period, in an amount
equal to three monthly installments of the Base Salary (less required tax
withholding) in effect at the time Employee makes such election. Thereupon, this
Agreement shall terminate and Employee shall have no further rights under or be
entitled to any other benefits of this Agreement.
(d) Termination Payment. In the event Employee's employment hereunder
-------------------
is terminated for any reason other than as set forth in Sections 4(a), 4(c), 5
or 6, Employer shall pay to Employee an amount equal to five times Employee's
then current annual Base Salary. Such payment shall be made within ten days
after the termination of Employee's employment triggering such payment
obligation. Thereupon, Employee shall have no further rights under or be
entitled to any other benefits of this Agreement.
5. Death of Employee. In the event of Employee's death during the term of
-----------------
his employment hereunder, Employer shall pay to Employee's surviving spouse or
to the executor or administrator of Employee's estate (if her spouse shall not
survive her) an amount equal to the installments of her Base Salary then payable
pursuant to Section 3(a) for the month in which he dies, for the greater of: (a)
the balance of the term remaining under this Agreement; or (b) two years.
6. Disability of Employee. Employee shall be covered by Employer's
----------------------
disability benefit plan as such plan may from time to time exist. In the event
that, due to physical or mental illness or personal injury, Employee shall
become disabled such that he is unable to perform, and in all reasonable medical
likelihood, will continue indefinitely to be unable to perform, her normal
duties in his regular manner, as determined by independent competent medical
authority, then Employer may elect (but shall not be obligated) to terminate
Employee's employment under this Agreement on a date which is not less than five
years after the date on which written notice of such termination is received by
Employee, and Employer shall pay to Employee the Base Salary payable pursuant to
Section 3(a) for a period of not less than five years thereafter. The foregoing
payment obligations shall be reduced by the amount of any payment made to such
Employee under the coverage then afforded to Employee by Employer's disability
benefit plan in effect at the time such disability determination is made.
Employee shall, during such disability and until the effective date of the
termination of this Agreement and of payments hereunder by Employer to Employee,
continue to enjoy all other applicable benefits of employment that would
otherwise pertain to continued employment pursuant to this Agreement.
7. Covenant Not to Compete.
-----------------------
(a) Employee agrees that at all times during the term of her
employment hereunder and for a period of two years after the termination of his
employment hereunder pursuant to Sections 4(a) or 4(c), she will not, within 100
miles of:
-3-
(i) Employer's principal place of business; or
(ii) any other geographical location in which Employee has
specifically represented the interests of Employer during the 12 months prior to
the termination of this Agreement;
as principal, agent, partner, employee, consultant, distributor, dealer,
contractor, broker or trustee or through the agency of any corporation,
partnership, association or agent or agency, engage directly or indirectly, in
any business competitive with any material business engaged in by Employer; and
Employee shall not be the owner of more than five percent of the outstanding
capital stock of any corporation (other' than Employer), or an officer,.
director or employee of any corporation (other than Employer or a corporation
affiliated with Employer), or a member or employee of any partnership, or an
owner, investor, lender, agent, consultant, distributor, dealer, contractor,
broker or employee of any other business which conducts a business described
herein, within the territory described above.
(b) Employee agrees that during the term of her employment under this
Agreement and for a period of two years after the termination of Employee's
employment hereunder pursuant to Sections 4(a) or 4(c), she will not directly or
indirectly: (i) induce any customers of Employer or corporations affiliated with
Employer to patronize any similar business that competes with any material
business of Employer; (ii) solicit any similar business from any customer of
Employer or corporations affiliated with Employer; (iii) request or advise any
customers of Employer or corporations affiliated with Employer to withdraw,
curtail or cancel such customer's business with Employer; or (iv) disclose to
any other person, firm or corporation the names or addresses of any of the
customers of Employer or corporations affiliated with Employer.
(c) If the provisions of this Section 7 are violated, in whole or in
part, Employer shall be entitled, upon application to any court of proper
jurisdiction, to a temporary restraining order or preliminary injunction to
refrain and enjoin Employee from such violation without prejudice to any other
remedies Employer may have at law or in equity. Further, in the event that the
provisions of this Section 7 should be deemed to exceed the time, geographic or
occupational limitations permitted by applicable law, Employee and Employer
agree that such provisions shall be and are hereby reformed in the maximum time,
geographic or occupational limitations permitted by the applicable law.
8. Confidential Information.
------------------------
(a) Employee recognizes and acknowledges that she has had and will
continue to have access to confidential and proprietary information concerning
Employer and corporations affiliated with Employer of a special and unique value
which may include, without limitation: (i) books and records relating to
operation, finance, accounting, sales, personnel and management; (ii) policies
and matters relating particularly to operations such as customer service
requirements, costs of providing service and equipment, operating costs and
pricing matters; and (iii) various trade or business secrets, including business
opportunities, marketing or business diversification plans, business development
and bidding techniques, methods and processes, financial data and the like
(collectively, the "Protected Information"). Notwithstanding the foregoing,
Protected Information shall not include (A) information which is or becomes
generally known to the public through no act or omission of Employee and (B)
information which has been or hereafter is
-4-
lawfully obtained by Employee from a source other than Employer or any of its
affiliates (or their respective officers, directors, employees, equity holders
or agents) so long as, in the case of information obtained from a third party,
such third party was or is not, directly or indirectly, subject to an obligation
of confidentiality owed to Employer or any of its affiliates at the time such
Protected Information was or is disclosed to Employee.
(b) Employee agrees that she will not at any time, either while
employed by Employer or after termination of employment hereunder, knowingly
make any independent use of, or knowingly disclose to any other person or
organization (except as authorized by Employer) any of the Protected
Information.
(c) Notwithstanding clause (b) above, Employee shall be permitted to
disclose Protected Information to the extent, but only to the extent, (i)
reasonably necessary for Employee to perform her duties hereunder or (ii)
required by law; provided, that prior to making any disclosure of Protected
Information required by law, Employee shall notify Employer of his intent to
make such disclosure, and Employer shall have the right to participate with
Employee in determining the amount and type of Protected Information, if any,
which must be disclosed in order to comply with applicable law.
(d) In the event of a breach or threatened breach by Employee of the
provisions of this Section 8, Employee agrees that Employer shall be entitled to
a temporary restraining order or a preliminary injunction restraining Employee
from using or disclosing, in whole or in part, such Protected Information.
(e) Promptly after termination of the Employee's employment hereunder
for any reason, the Employee or her personal representative shall return to the
Employer any Confidential Information which is in tangible form and which is
then in her possession.
9. Reimbursement of Expenses. Employer and Employer's successors and
-------------------------
assigns shall reimburse Employee, or advance to Employee, upon Employee's
request, all reasonable legal, accounting and other advisory fees incurred by
Employee, whether or not incurred during the period of time in which Employee is
an employee of Employer, in connection with:
(a) Defending the validity of this Agreement;
(b) Contesting any determinations by Employer concerning the amounts
payable (or reimbursable) by Employer to Employee under this Agreement; or
(c) Preparing responses to Internal Revenue Service audits of, and to
otherwise defend, her personal income tax return or an adverse determination,
administrative proceedings or civil litigation arising therefrom that is
occasioned by or related to an audit by the Internal Revenue Service of
Employer's income tax return.
10. Severability. In case any one or more of the provisions of this
------------
Agreement shall, for any reason, be held or found by final judgment of a court
of competent jurisdiction to be invalid, illegal or unenforceable in any
respect: (a) such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, (b) this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein (except that this Section 10 shall not prohibit any modification allowed
under Section 7 above); and (c) if the
-5-
effect of a holding or finding that any such provision is either invalid,
illegal or unenforceable is to modify to Employee's detriment, reduce or
eliminate any compensation, reimbursement, payment, allowance or other benefit
to Employee intended by Employer and Employee in entering into this Agreement,
Employer shall promptly negotiate and enter into an agreement with Employee
containing alternative provisions (reasonably acceptable to Employee), that will
restore to Employee (to the extent lawfully permissive) substantially the same
economic, substantive and income tax benefits to Employee would have enjoyed had
any such provision of this Agreement been upheld as legal, valid and
enforceable.
11. Disputes: Payment of Attorneys' Fees. If at any time during or after
------------------------------------
the term of this Agreement there should arise any dispute as to the validity,
interpretation or application of any terms or condition of this Agreement,
Employer shall, upon written demand by Employee, promptly provide sums
sufficient to pay on a current basis, either directly or by reimbursing
Employee, Employee's costs and reasonable attorney's fees incurred by Employee
in connection with any such dispute or any litigation: (a) provided that
Employee shall repay any such amounts paid or advanced if Employee is not the
prevailing party with respect to any dispute or litigation arising under Section
7 or 8; and (b) regardless of whether Employee is the prevailing party in a
dispute or in litigation involving any other provision of this Agreement,
provided that the court in which such litigation is first initiated determines
with respect to this obligation, upon application of either party hereto,
Employee did not initiate frivolously such litigation. Under no circumstances
shall Employee be obligated to pay or reimburse Employer for any attorney's
fees, costs or expenses incurred by Employer. The provisions of this Section 11
shall survive the expiration or termination of this Agreement and of Employee's'
employment hereunder. Employee shall be entitled, upon application to any court
of competent jurisdiction, to the entry of a mandatory injunction, without the
necessity of posting any bond with respect thereto, compelling Employer to carry
out the provisions of this Section 11.
12. Binding Effect and Entire Agreement. This Agreement shall be binding
-----------------------------------
upon and shall inure to the benefit of the parties hereto and their heirs,
personal representatives, executors, administrators, successors and assigns.
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter contained herein, and supersedes all prior and
contemporaneous oral and written communications and agreements with respect
thereto.
13. Assignment and Termination. Employee may designate one or more
--------------------------
beneficiaries to receive any amount that may be payable hereunder after her
death. Except as set forth in the preceding sentence, this Agreement may not be
assigned, partitioned, pledged, or hypothecated in whole or in part without the
express prior written consent of Employee and Employer. This Agreement shall not
be terminated either by the voluntary or involuntary dissolution or the winding
up of the affairs of Employer, or by any merger or consolidation wherein
Employer is not the surviving corporation, or by any transfer of all or
substantially all of Employer's assets on a consolidated basis. In the event of
any such merger, consolidation or transfer of assets, the provisions of this
Agreement shall be binding upon and shall inure to the benefit of the surviving
corporation to which such assets shall be transferred.
14. No Right of Set-Off. Employer shall have no right of set-off or
-------------------
counterclaim in respect of any debt or other obligation of Employee to Employer
against any payment or other
-6-
obligation of Employer to Employee provided for in this Agreement or pursuant to
any other plan, agreement or policy.
15. Amendment and Waiver. This Agreement may be amended and any provision
--------------------
hereof waived only in a writing signed by the party against whom an amendment or
waiver is sought to be enforced. The parties hereto shall have the right at all
times to enforce the provisions of this Agreement in strict accordance with the
terms hereof, notwithstanding any conduct or custom on the part of either party
in refraining from so doing at any time or times. The failure of either party at
any time to enforce its rights under such provisions strictly in accordance with
the same shall not be construed as having created a custom in any way or manner
contrary to specific provisions of this Agreement or as having in any way or
manner modified or waived the same.
16. Headings. Headings of sections shall be deemed to be included for
--------
purposes of convenience only and shall not affect the interpretation of this
Agreement.
17. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of South Carolina. The state courts of
South Carolina and the federal courts in South Carolina shall have sole and
exclusive jurisdiction over any dispute or controversy arising from or relating
to this Agreement.
18. Notices. Except as provided herein to the contrary, any notices or
-------
consents required or permitted by this Agreement shall be in writing and shall
be deemed delivered if sent by certified mail, postage prepaid, return receipt
requested, or overnight delivery service, or facsimile, as follows, unless such
address is changed by written notice hereunder:
If to Employer: Xxxxxxxxxxx.Xxx
The Professional Building
Suite 000
Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
If to Employee: Xxxxx Xxxxx
Rose Hill Plantation House
000 Xxxx Xxxx Xxx
Xxxxxxxx, XX 00000
Any notice sent by mail shall be deemed given three (3) days after
deposited with the United States Postal Service; any notice sent by overnight
delivery service shall be deemed given the day after deposited with the delivery
service; any notice sent by facsimile shall be deemed given when transmitted.
-7-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXXXXXXX.XXX
By: /s/
---------------------------------
Title: Secretary
/s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx
-8-
