Executive's Employment Agreement
This Executive's Employment Agreement (the "Agreement") is entered into by
and among Xxxxx X. Xxxxx, an individual residing in the State of Florida (the
"Executive"); Vista Vacations International, Inc., a Florida corporation
("Vista"; Vista and the Executive being sometimes hereinafter collectively to as
the "Parties" or generically as a "Party".
Preamble:
WHEREAS, Vista's board of directors is of the opinion that in conjunction
with effectuation of Vista's future plans it must memorialize, confirm and
assure itself of the continuing the services of the Executive, who currently
serves as a member of Vista's board of directors and as its general counsel and
chief legal officer; and
WHEREAS, the Executive is thoroughly knowledgeable with all aspects of
Vista's operations and plans; and
WHEREAS, the Executive is agreeable to serving as a member of Vista's board
of directors and as its general counsel and chief legal officer, on the terms
and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of the Executive's
employment hereunder shall be deemed to commence on the date of this Agreement's
execution by all of the Parties and shall continue until June 30, 2001.
1.2 Renewals.
This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual basis, unless the Party wishing not to
renew this Agreement provides the other Party with written notice of its
election not to renew ("Termination Election Notice") on or before the 30th day
prior to termination of the then current term.
381
1.3 Earlier Termination.
Vista shall have the right to terminate this Agreement prior to the
expiration of its Term or of any renewals thereof, subject to the provisions of
Sections 1.4 and 1.5, for the following reasons:
(a) For Cause:
(1) Vista may terminate the Executive's employment under this
Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice thereof
to the Executive, which notice shall specify the cause for
termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of the Executive, through sickness or
other incapacity, to discharge his duties under this
Agreement for 30 or more consecutive days or for a
total of 60 or more days in a period of twelve
consecutive months;
(B) The failure of the Executive to follow the directions
of Vista's board of directors;
(C) Dishonesty; theft; or conviction of a crime involving
moral turpitude;
(D) Material default in the performance of the
Executive's obligations, services or duties required
under this Agreement (other than due to illness) or
material breach of any provision of this Agreement,
which default or breach has continued for ten days
after written notice of such default or breach.
(b) Deterioration or Discontinuance of Business:
(1) In the event that Vista experiences material business
reversals or fails to meet the operational criteria reflected
in its projections or business plans, then, subject to the
provisions of Section 1.4, at the option of Vista, this
Agreement shall terminate as of a date selected by Vista with
the same force and effect as if such date was the date
originally set as the termination date hereof.
(2) In the event that Vista discontinues operating its business,
this Agreement shall terminate as of the last day of the month
on which it ceases operation with the same force and effect as
if such last day of the month were originally set as the
termination date hereof; provided, however, that a
reorganization of Vista shall not be deemed a termination of
its business.
(c) Death:
This Agreement shall terminate immediately on the death of the Executive;
however, all accrued compensation at such time shall be promptly paid to the
Executive's estate.
382
1.4 Severance Payments and Alternatives to Termination
In the event this Agreement is terminated for reasons other than for cause
as described in Section 1.3(b) above, the Executive shall be entitled to either
thirty days prior written notice or to a severance payment in a sum equal to the
salary that would have been paid had 30 days prior written notice been provided;
provided, however, that in lieu of termination, Vista may offer to continue this
Agreement under modified compensation arrangements, if such arrangements are
reflected in the written notice and accepted by the Executive prior to the end
of the 30 day notice period.
1.5 Final Settlement.
Upon termination of this Agreement and payment of all amounts due to the
Executive hereunder, the Executive or his representative shall execute and
deliver to the terminating entity on a form prepared by Vista, a receipt for
such sums and a release of all claims, except such claims as may have been
submitted pur suant to the terms of this Agreement and which remain unpaid, and,
shall forthwith tender to Vista all records, manuals and written procedures, as
may be desired by it for the continued conduct of its business.
Article Two
Scope of Employment
2.1 Retention.
Vista hereby hires the Executive and the Executive hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) The Executive shall be employed as the general counsel of Vista and
perform the duties generally associated with the position of general
counsel and chief legal officer thereof.
(b) Without limiting the generality of the foregoing, the Executive shall
be responsible for preparation or review of all of Vista's agreements,
preparation of all corporate minutes and monitoring its compliance with
applicable laws.
(c) The Executive covenants to perform the employment duties called for
hereby in good faith, devoting such time as may be required for the
proper and efficient management of the legal affairs of Vista.
2.3 Status.
(a) Throughout the term of this Agreement, the Executive shall serve as a
member of the board of directors of Vista and as its general counsel
and chief legal officer.
(b) In the event that the Executive is not elected to such positions, then,
at the option of the Executive, this Agreement may be deemed terminated
effective as of the earliest time that it can be reasonably determined
that such election will not take place, provided that written notice of
such election is provided to Vista within 30 days after it failed to
elect the Executive to the required office.
383
2.4 Exclusivity.
Vista acknowledges that the Executive has material commitments involving
his legal and judicial career and that the Executive will only devote such time
to Vista's affairs as are required to assure its compliance with applicable
laws, the proposer documentation of its corporate operations and agreements and
the supervision of its legal advisors.
Article Three
Compensation
3.1 Compensation.
As consideration for the Executive's services to Vista the Executive shall
be entitled to:
(a) (1) An initial payment of $25,000, tendered concurrently with
the execution of this Agreement as consideration for the
Executive's Agreement to provide services to Vista as its
general counsel until June 30, 2005, if so desired by Vista
(the "Base Payment"); and
(2) A gross monthly fee of $1,200 (the "Monthly Fee") throughout
the term of this Agreement and any extensions or renewals
thereof.
(b) Incentive stock options complying with the requirements of Section 422 of
the Internal Revenue Code of 1986, as amended, or successor provisions
thereto (the "Options"), permitting the Executive to purchase up to 261,660
of the 931,000 shares of the common stock of AmeriNet Xxxxx.xxx, Inc., a
publicly held Delaware corporation with a class of securities registered
under Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which holds of all of Vista's capital stock and other
securities ("AmeriNet"), that AmeriNet reserved for issuance to Vista
employees in conjunction with the Reorganization Agreement pursuant to
which AmeriNet acquired all of Vista's securities (the "Executive's Option
Shares"), on the following terms and subject to the following conditions:
(1) The Executive's rights to the Options will vest as follows:
(A) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $400,000 during the
period starting on July 1, 2000 and ending on June
30, 2001, then the Executive shall have the right to
purchase 37,378 of the Executive's Option Shares.
(B) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $1,200,000 during
the period starting on July 1, 2000 and ending on
June 30, 2002, then the Executive shall have the
right to purchase 112,134 of the Executive's Option
Shares (including the 37,378 shares first referred to
above) and
(C) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $2,800,000 during
the period starting on July 1, 2000 and ending on
June 30, 2003, then the Executive shall have the
right to purchase all of the Executive's Option
Shares (including the 112,134 shares first referred
to above).
384
(2) If Vista fails to attain the earnings requirements for
exercise of any of the Options by June 30, 2003, all of the
Executive's rights to any of the Executive's Option Shares
that remain unvested by such date shall lapse and be of no
further force or effect.
(3) The Options will be exercisable at a price of $1.875 per share
for a period commencing on the date of vesting and ending on
the earlier of June 30, 2005 or the 90th day after termination
of the Executive's employment by Vista.
(4) All other terms pertaining to the Options are hereby
incorporated by reference from those contained in AmeriNet's
Non-Qualified Stock Option & Stock Incentive Plan, Effective
as of January 1 , 2000 filed by AmeriNet with the United
States Securities and Exchange Commission (the "Commission"),
a copy of which is annexed hereto and made a part hereof as
exhibit 3.1(B)(2), except to the extent that they would be
inconsistent with the specific terms in this Section 3.1
unless such inconsistency is required by the provisions of
Code Section 422.
3.2 Benefits.
During the term of this Agreement, the Executive shall also be entitled to
all benefits of employment generally available to all of Vista's employees,
provided that such benefits have been approved by Vista's stockholders.
3.3 Indemnification.
Vista will defend, indemnify and hold the Executive harmless from all
liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by him in good faith on behalf of Vista, its affiliates or for other
persons or entities at the request of the board of directors of Vista, to the
fullest extent legally permitted, and in conjunction therewith, shall assure
that all required expenditures are made in a manner making it unnecessary for
the Executive to incur any out of pocket expenses; provided, however, that the
Executive permits the majority stockholders of Vista to select and supervise all
personnel involved in such defense and that the Executive waive any conflicts of
interest that such personnel may have as a result of also representing Vista,
its stockholders or other personnel and agrees to hold them harmless from any
matters involving such representation, except such as involve fraud or bad
faith.
Article Four
Special Covenants
4.1 Confidentiality, Non-Circumvention and Non-Competition.
During the term of this Agreement, all renewals thereof and for a period of
two years after its termination, the Executive hereby irrevocably agrees to be
bound by the following restrictions, which constitute a material inducement for
Vista's entry into this Agreement and for AmeriNet's agreement to provide shares
of its common stock as the securities underlying the Options:
(a) Because the Executive will be developing for Vista, making use of,
acquiring and/or adding to, confidential information of special and
unique nature and value relating to such matters as Vista's
385
trade secrets, systems, procedures, manuals, confidential reports,
personnel resources, strategic and tactical plans, advisors, clients,
investors and funders; as material inducement to the entry into this
Agreement by Vista, the Executive hereby covenants and agrees not to
personally use, divulge or disclose, for any purpose whatsoever,
directly or indirectly, any of such confidential information during the
term of this Agreement, any renewals thereof, and for a period of two
years after its termination.
(b) The Executive hereby covenants and agrees to be bound as a fiduciary of
Vista, as if the Executive were a partner in a partnership bound by the
partnership opportunities doctrine, as such concept has been judicially
and legislatively developed in the State of Florida, and consequently,
without the prior written consent of Vista, on a specific, case by case
basis, the Executive shall not, among other things, directly or
indirectly:
(1) Engage in any activities, whether or not for profit, competitive
with Vista's business.
(2) Solicit or accept any person providing services to Vista, whether
as an employee, consultant or independent contractor, for
employment or provision of services.
(3) Induce any client or customer of Vista to cease doing business
with Vista or to engage in business with any person engaged in
business activities that compete with Vista's business.
(4) Divert any business opportunity within the general scope of
Vista's business and business capacity, to any other person or
entity.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Vista as a result of a breach by the Executive of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect Vista's interests, the Executive hereby covenants and agrees that
Vista shall have the following additional rights and remedies in the event of a
breach hereof:
(a) In addition to and not in limitation of any other rights, remedies or
damages available to Vista, whether at law or in equity, it shall be
entitled to a permanent injunction in order to prevent or to restrain
any such breach by the Executive, or by the Executive's partners,
agents, representatives, servants, employers, employees, affiliates
and/or any and all persons directly or indirectly acting for or with
him and the Executive hereby consents to the issuance of such a
permanent injunction; and
(b) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Vista may sustain prior to the effective
enforcement of such injunction, the Executive hereby covenants and
agrees to pay over to Vista, in the event he violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
(1) Any payment or compensation of any kind received by the
Executive or by persons affiliated with or acting for or with
the Executive, because of such violation before the issuance
of such injunction, or
(2) The sum of One Thousand ($1,000.00) Dollars per violation,
which sum shall be liquidated damages, and not a penalty, for
the injuries suffered by Vista as a result of such violation,
386
the Parties hereto agreeing that such liquidated damages are
not intended as the exclusive remedy available to Vista for
any breach of the covenants and agreements contained in this
Article Four, prior to the issuance of such injunction, the
Parties recognizing that the only adequate remedy to protect
Vista from the injury caused by such breaches would be
injunctive relief.
4.3 Cumulative Remedies.
The Executive hereby irrevocably agrees that the remedies described in
Section 4.2 shall be in addition to, and not in limitation of, any of the rights
or remedies to which Vista is or may be entitled to, whether at law or in
equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
(a) The Executive hereby represents, warrants and acknowledges that having
carefully read and considered the provisions of this Article Four, the
restrictions set forth herein are fair and reasonable and are reasonably
required for the protection of the interests of Vista, its officers,
directors and other employees; consequently, in the event that any of the
above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, the Executive hereby covenants, agrees and directs
such court to substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and, the Executive hereby
covenants and agrees that if so modified, the covenants contained in this
Article Four shall be as fully enforceable as if they had been set forth
herein directly by the Parties.
(b) In determining the nature of this limitation, the Executive hereby
acknowledges, covenants and agrees that it is the intent of the Parties
that a court adjudicating a dispute arising hereunder recognize that the
Parties desire that these covenants not to circumvent, disclose or compete
be imposed and maintained to the greatest extent possible.
4.5 Unauthorized Acts.
The Executive hereby covenants and agrees not do any act or incur any
obligation on behalf of Vista except as authorized by its board of directors or
by its stockholders pursuant to duly adopted stockholder action or reasonably
inferred therefrom.
Article Five
Miscellaneous
5.1 Notices.
(a) (1) All notices, demands or other communications hereunder shall be
in writing, and unless otherwise provided, shall be deemed to
have been duly given on the first business day after mailing by
registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
387
To the Executive:
Xxxxx X. Xxxxx
000 Xxxxx Xxxx Xxxxxx; Xxx Xxxx, Xxx Xxxx 00000
Telephone (000) 000-0000; Fax, none; e-mail xxxxxxxx@xxx.xxx
To Vista:
Vista Vacations International, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx; Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, President
Telephone (000) 000-0000; Fax (000) 000-0000; e-mail xxxxx@xxxxxx.xxx;
with a fax copy to
Xxxxx X. Xxxxx
000 Xxxxx Xxxx Xxxxxx; Xxx Xxxx, Xxx Xxxx 00000
Telephone (000) 000-0000; Fax (000) 000-0000; and, e-mail
xxxxxxxx@xxx.xxx (2) In each case, copies of notices
will also be provided to:
AmeriNet Xxxxx.xxx, Inc.
The Crystal Corporate Center;
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X; Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and, e-mail xxxxxxxxxx@xxxxxx.xxx
Attention: Xxxxxxx Xxxxxx Jordan, President; and
AmeriNet Xxxxx.xxx, Inc.
0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000; Fax (000) 000-0000; and e-mail xxxxxxx@xxxxxxxx.xxx
Attention: Xxxxxxx X. Xxxxxxx, Secretary;
(3) Copies of notices will also be provided to such other address or
to such other person as any Party shall designate to the other
for such purpose in the manner hereinafter set forth.
(b) (1) The Parties acknowledge that The Yankee Companies, Inc., a
Florida corporation ("Yankees") has acted as scrivener for the
Parties in this transaction and that Yankees is neither a law
firm nor an agency subject to any professional regulation or
oversight.
(2) Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement on their
behalf since it cannot provide any Party with legal advice.
(3) This Agreement shall not be interpreted more or less strictly
against any Party based on its authorship.
5.2 Amendment.
(a) No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by
the Party against which the enforcement of said modification, waiver,
amendment, discharge or change is sought.
388
(b) This Agreement may not be modified without the consent of a majority
in interest of Vista's AmeriNet's stockholders.
5.3 Merger.
(a) This instrument contains all of the understandings and agreements of
the Parties with respect to the subject matter discussed herein.
(b) All prior agreements whether written or oral, are merged herein and
shall be of no force or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
If any provision or any portion of any provision of this Agreement, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Florida but any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
5.7 Litigation.
(a) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the
prevailing Party shall be entitled to recover its costs and expenses,
including reasonable attorneys' fees up to and including all
negotiations, trials and appeals, whether or not litigation is
initiated.
(b) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the
dispute shall, at the request of any Party, be exclusively resolved
through the following procedures:
(1) (A) First, the issue shall be submitted to mediation
before a mediation service in Broward County,
Florida, to be selected by lot from six alternatives
to be provided, two by Vista's majority stockholder,
two by Vista and two by the Executive.
(B) The mediation efforts shall be concluded within ten
business days after their in itiation unless the
Parties unanimously agree to an extended mediation
period;
389
(2) In the event that mediation does not lead to a resolution of
the dispute then at the request of any Party, the Parties
shall submit the dispute to binding arbitration before an
arbitration service located in Broward County, Florida to be
selected by lot, from six alternatives to be provided,, two by
Vista's majority stockholder, two by Vista and two by the
Executive.
(3) (A) Expenses of mediation shall be borne by Vista, if
successful.
(B) Expenses of mediation, if unsuccessful and of
arbitration shall be borne by the Party or Parties
against whom the arbitration decision is rendered.
(C) If the terms of the arbitral award do not establish a
prevailing Party, then the expenses of unsuccessful
mediation and arbitration shall be borne equally by
the Parties.
5.8 Benefit of Agreement.
(a) This Agreement may not be assigned by the Executive without the prior
written consent of Vista.
(b) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the Parties, their successors,
assigns, personal representative, estate, heirs and legatees.
5.9 Captions.
The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
5.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or cause
to be done, executed or acknowledged or delivered and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
5.12 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but, rather,
the relationship established hereby is that of employer-employee in Vista.
390
5.13 Counterparts.
(a) This Agreement may be executed in any number of counterparts.
(b) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for
aesthetic purposes, prepare a fully executed original version of this
Agreement, which shall be the document filed with the Securities and
Exchange Commission.
5.14 License.
(a) This Agreement is the property of Yankees and the use hereof by the
Parties is authorized hereby solely for purposes of this transaction.
(b) The use of this form of agreement or of any derivation thereof without
Yankees' prior written permission is prohibited.
Execution Page
In Witness Whereof, the Parties have executed this Agreement, effective as
of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
The Executive
--------------------------
/s/ Xxxxx X. Xxxxx
-------------------------- --------------------------
Xxxxx X. Xxxxx
Dated: March 12, 2000
Vista Vacations International, Inc.
a Florida corporation.
--------------------------
__________________________ By: /s/ Xxxx X. Xxxxxx
___________________________
Xxxx X. Xxxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxx Xxxxxxxxx
__________________________
Xxxxxx Xxxxxxxxx, Secretary
Dated: March 12, 2000
391
