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EXHIBIT 10.9 EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") made as of
this 4th day of December 1998 by and between the parties: XXXXXX X. XXXXXX, an
individual residing at 000 - 00xx Xxxxxx Xxxxxxxxx, Xx Xxxxxxxxxx, Xxxxxxx 00000
(hereinafter referred to as the "Executive"), and TELESERVICES INTERNATIONAL
GROUP INC., a Florida corporation with its principal executive offices at 000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, XX 00000 (hereinafter referred
to as the "Company").
W I T N E S S E T H
WHEREAS, the Company desires to continue to retain and employ
the Executive for the purpose of securing to the Company the experience, ability
and services of the Executive as an executive officer of the Company in the
position of Chairman; and
WHEREAS, the Executive desires to continue to be retained and
employed by the Company; and
WHEREAS, this Agreement supercedes and replaces the Employment
Agreement dated January 15 ,1997;
NOW, THEREFORE, it is mutually agreed by and between the
parties as follows:
ARTICLE I
EMPLOYMENT
The Company hereby employs the Executive effective December 4,
1998 as Chairman of the Company and each of its subsidiaries, and the Executive
hereby accepts such employment and shall serve on a full-time basis as an
executive officer of the Company, subject to and upon the terms and conditions
set forth in this Agreement.
ARTICLE II
DUTIES
(A) During the term of employment with the Company, and subject to the
direction of its Board of Directors (the "Board of Directors" or the "Board"),
the Executive shall perform duties and functions consistent with his employment
hereunder as Chairman, and as further defined in the Company's Bylaws. Such
responsibilities shall include, but not be limited to, the following: to take a
leadership role in helping the Company to develop its overall strategic plan and
its operating business plan; to assist in efforts to arrange adequate financing
to carry out the Company's business plan; and generally, to help meet the needs
of the Company, its employees and customers.
(B) The Executive agrees to devote his best efforts to the performance
of his duties for the Company; to render his services to any joint venture,
subsidiary or affiliated business of the Company; to participate in establishing
the direction of the Company's business; and to promote the Company's
relationships with its employees, customers and others in the business and
financial communities.
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In the performance of his duties, Executive shall be provided
by the Company with facilities, equipment and staff appropriate to his position
and necessary and appropriate to the accomplishment of Executive's duties.
(C) At the request of the Company, the Executive shall also serve,
without additional compensation, as Chief Executive Officer and/or as a director
of the Company or one or more of its 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 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 and that, to the best of
his knowledge, his 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 salary at the rate of
$360,000 per year (unless adjusted by the Board of Directors as described
below), payable in accordance with the Company's normal payroll procedures. The
Board may increase Executive's base salary from time to time in its discretion.
(B) The Company shall issue to the Executive 5,000,000 shares of
restricted common stock of the Company as of the date of this Agreement.
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 is authorized to incur reasonable and necessary
expenses for promoting the business of the Company, including expenses for
entertainment, travel and similar items. The Company shall reimburse the
Executive on a monthly basis for all such expenses, upon presentation by the
Executive of an itemized account of such expenditures.
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(C) The Executive shall be employed by the Company at its executive
offices in St. Petersburg, Florida, and shall not be required to relocate
outside of the Tampa-St. Petersburg-Clearwater area. The Executive shall travel
on the Company's behalf to the extent reasonably necessary.
(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 and 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) 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 President and
no less favorable to Executive than any description thereof on Exhibit A.
(B) Stock options may be granted from time to time in the discretion of
the Board.
ARTICLE VI
TERM
The term of this Agreement shall commence as of December 4, 1998, and
continue until December 31, 2003, unless this Agreement is otherwise terminated
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 four
weeks 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 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 notice and the
Executive will be entitled to no further payments 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
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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,
including dishonesty, acts of 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 in material harm to the Company; or (iv)
gross negligence or willful misconduct, either of which results 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 10 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
two weeks 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.
In the event that the Company actually or constructively terminates the
employment of the Executive without Cause the Executive shall be entitled to the
following:
(i) Severance pay equal to his base salary (at the
rate in effect at the Executive's termination date) for the
Severance Period, in addition to the payment of accrued
benefits as of the date of termination. Such severance pay
shall be made, at the election of the Company, in one lump sum
or in monthly installments at the rate in effect immediately
prior to termination on the first day of each month. For
purposes of this Agreement, "Severance Period" shall mean the
period of time commencing on the date the Company actually or
constructively terminates the employment of the Executive
without Cause, and ending on December 31, 2003.
(ii) If the Executive elects to continue his health
insurance coverage under the Consolidated Omnibus Budget
Reconciliation Act ("COBRA") following the termination of his
employment, then the Company shall pay the Executive's monthly
premium under COBRA until the close of the Severance Period.
For the purposes of this Agreement, "constructively
terminates" shall be defined as any event resulting in any substantial reduction
or material adverse change in the position, compensation or benefits described
in this Agreement.
The consideration set forth in this Paragraph (C), together
with any prior unpaid salary, earned but unpaid bonuses, and unreimbursed
expenses, and vested stock options, if any, shall completely relieve the Company
of any liability to the Executive for any compensation that would have otherwise
been payable to the Executive under the terms of this Agreement, provided that
the Company shall continue to provide Executive with the indemnification
referred to in Article IV (D). Any other provision of this Agreement
notwithstanding, the Company shall not be obligated to make severance payments
or provide other benefits under this Paragraph (C) unless the Executive (i) has
executed a release (in a commercially reasonable form prescribed by the Company)
of all known claims relating to the termination of his employment that he may
then have
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against the Company or persons affiliated with the Company and (ii) has agreed
not to prosecute any legal action or other proceeding based upon any of such
claims.
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.
(B) During the term of this Agreement and during any period in which
the Executive is receiving severance pay (or would be receiving severance pay if
he receives a lump sum rather than installments), but in any event at least
three months after the termination of this Agreement, 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 to be a customer during the 12 month
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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 three years
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.
(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.
(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,
and 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 he
may have on 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
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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) To the extent any provision or portion of this Agreement shall be
held, found or deemed to be invalid, unreasonable, unlawful or unenforceable,
then the parties expressly covenant and agree that any such provision or portion
shall be modified to the extent necessary in order that any such provision or
portion shall be legally enforceable to the fullest extent permitted by
applicable law and that any court of proper jurisdiction shall, and the parties
do hereby expressly authorize any such court to, enforce any such provision or
portion or to modify any such provision or portion in order that any such
provision or portion shall be enforced by such court to the fullest extent
permitted by applicable law. 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 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 United States District Court for the Middle District of Florida,
Tampa Division, 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.
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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.
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement
and affixed their hands and seal the day and year first above written.
EXECUTIVE
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Xxxxxx X. Xxxxxx
TELESERVICES INTERNATIONAL GROUP INC.
By:
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Xxxxx X. Guild, President
ATTEST:
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Xxxx X. Xxxxx, Secretary
(CORPORATE SEAL)
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EXHIBIT A
Paid Vacation - 6 Weeks per year accrued monthly.
Sick Time - 12 days per year accrued at one half day per month.
Holidays - 8.5 annually
Car Allowance - The Company shall pay Executive $2,500 per month as a Car
Allowance
Health Insurance - United HealthCare
Eligible on the first of the month following your first 90 days Family
Coverage Total Premium - $508.83 monthly Company Pays - $168.65 monthly
Employee Pays - $340.18 monthly
Dental Insurance - American Dental Plan
Two Choices
HMO Dental - Family Coverage Total Premium - $26.48 Monthly
Employee pays $15.58 monthly
Indemnity - Family Coverage Total Premium - $44.00 Monthly
Employee pays $26.00 Monthly
Life insurance paid for by the Company for employee only (no add-on's)
Coverage is by class - Managers Class 1: Chairman/CEO coverage is $50,000
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
Current coverage in effect through 5/27/99.
D&O - Agricultural E&S Ins. Co. $2,500,000
Rock River Ins. Co. $2,500,000
TIG Specialty Insurance Company $2,500,000
Admiral Insurance Company $2,500,000
TSIG/XXXXXX X. XXXXXX EMPLOYMENT AGREEMENT Exhibit A
