Exhibit 10.49
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), is made effective as of March 15,
2006, between American Leisure Holdings, Inc. and its successors and assigns
("AMLH") and Xxxxxxx X. Xxxxxxx ("You").
You and the Company desire to set forth the terms and conditions of your
employment by the Company and agree as follows:
1. Term of Employment: Your term of employment as this phrase is used
throughout the Agreement, shall be for the period beginning on effective date
and ending March 15, 2009, subject, however, to earlier termination as set forth
in this Agreement.
2. Employment: During the term of employment, you shall serve as Executive
Vice President, General Counsel and Secretary of AMLH and you shall have the
authority, functions, duties, and powers and responsibilities normally
associated with such positions and such additional authority, functions, duties,
powers and responsibilities as may be assigned to you from time to time by AMLH
consistent with your senior position with AMLH. During the term of employment,
(i) your services will be rendered on a substantially full-time basis for the
benefit of AMLH and interests that effect it, including subsidiaries and related
companies, except to the extent that you conclude a conflict exists between AMLH
and the other entity, in which case you may not perform services for related or
other companies, and you will apply all of your skill and experience to the
performance of your duties, (ii) you shall report to the Chief Executive Officer
and/or President of AMLH, and you shall advise the board of directors, (iii) you
shall have no other employment, except with subsidiaries and related companies,
and, without the prior written consent of the Chief Executive Officer or Chief
Operating Officer, no outside business activities that require the devotion of
substantial amounts of your time except for business activities that benefit,
directly or indirectly, AMLH and its subsidiaries and related companies, and
(iv) the place for the performance of your services shall be in the principal
executive offices of AMLH in Orlando, Florida, subject to such reasonable travel
as may be required in the performance of your duties. Employment by or
performance for subsidiaries or related companies shall not interfere with your
primary obligation to serve AMLH. For purposes of this Agreement, "related
companies" means companies owned in whole or part by AMLH, Xxxxxxx Xxxxxx, Xxxx
Xxxxxx, or Xxxxx Xxxxxxx.
3. Compensation
3.1 Base Salary: AMLH shall pay you a base salary at the rate of not
less than $170,000 per annum during the first year of your employment,
prorated from the effective date ("Base Salary"). AMLH shall increase the
Base Salary by no less than ten percent (10%) annually, effective January 1
of each year during the term of employment. Base Salary shall be paid in
accordance with the Company's customary payroll practices.
3.2 Bonus: In addition to Base Salary, AMLH typically pays its
executives cash bonuses ("Bonus"). Your Bonus is discretionary, but your
target bonus is an amount not less than your Base Salary. Each bonus
period, your personal performance will be considered in the context of your
executive duties and any individual goals set for you, and your actual
Bonus will be determined. Although as a general matter AMLH expects to pay
substantial bonuses in relation to your Base Salary in cases of
satisfactory individual performance, it does not commit to do so, and your
Bonus may be negatively affected by the exercise of AMLH's discretion or
overall company performance. You may also receive a Bonus for business
opportunities or savings you deliver to AMLH or for its benefit, as may be
paid under generally applicable circumstances by AMLH.
3.3 Stock Warrants/Options: You will receive 50,000 stock
warrants/options effective March 15, 2006, exercisable at $1.02 per share,
and 25,000 stock warrants/options on March 15, 2007 and 25,000 stock
warrants/options on March 15, 2008 exercisable at $1.02 a share, to induce
you to become employed by AMLH. So long as the term of employment has not
terminated, you will receive no fewer than annual grants of 25,000 stock
warrants/options. Each such subsequent stock warrant/option grant shall be
at an exercise price equal to the exercise price of stock warrants/options
of contemporaneous grants to other senior executives of AMLH. AMLH may
require the grants to be reflected in a separate Stock Warrant Agreement or
Stock Option Agreement in accordance with AMLH's customary practice.
3.4 Vehicle Allowance: You shall receive a vehicle allowance in the
amount of 5% of your annual salary, plus expenses related to business use
of the vehicle. The vehicle allowance shall be paid monthly.
3.5 Indemnification: You shall be entitled throughout the term of
employment (and after the end of the term of employment, to the extent
relating to service during the term of employment) to the benefit of the
indemnification provisions contained on the date hereof in the certificate
of incorporation, by-laws, and insurance of AMLH. AMLH will defend and hold
you harmless from and against any and all claims, demands, liabilities,
damages, losses and expenses (including attorney's fees, court costs and
disbursements) arising out of the performance of duties hereunder except in
the case of willful misconduct and breach of fiduciary duty.
3.6 Directors and Officers Insurance: You shall be covered by AMLH's
Directors and Officers liability or errors and omissions insurance during
the term of employment.
3.7 Paid Vacation: You shall receive, in addition to holidays
recognized by the company, four weeks paid vacation.
4. Termination:
4.1 Termination for Cause: AMLH may terminate the term of employment
and all of AMLH's obligations under this Agreement, other than its
obligations set forth below in this Section 4.1, for "cause." Termination
by AMLH shall mean termination by action of AMLH because of (a) pleading
guilty to or your conviction of a felony (whether or not any right to
appeal has been or may be exercised), (b) willful refusal without proper
cause to perform your obligations under this Agreement or the reasonable
requests of the CEO or President, (c) fraud, embezzlement,
misappropriation, or sexual harassment, or (d) because of your breach of
any of the covenants provided for in Section 9. Such termination shall be
effected by written notice to you, and effective as of the date of such
notice; provided, however, that if (i) such termination is because of your
willful refusal without proper cause to perform any one or more of your
obligations under this Agreement, (ii) such notice is the first such notice
of termination for any reason delivered to you by AMLH, and (iii) within 15
days following the date of such notice you shall cease your refusal and
shall use your best efforts to perform such obligations, the termination
shall not be effective.
4.2 Termination by You for Material Breach by AMLH and Termination by
AMLH Without Cause: Unless previously terminated pursuant to any other
provision of this Agreement, and unless a Disability Period shall be in
effect, you shall have the right, exercisable by written notice to AMLH, to
terminate the term of employment effective 15 days after the giving of such
notice, if, at the time of giving of such notice, the Company is in
material breach of its obligations under this Agreement; provided, however,
that with the exception of clause 9i) below, this Agreement shall not so
terminate if such notice is the first such notice of termination delivered
by you and within such 15-day period AMLH shall have cured all such
material breaches.
AMLH shall have the rights, exercisable by written notice, to
terminate your employment under this Agreement without cause, which notice
shall specify the effective date of such termination.
4.2.1 After the effective date of a termination this Section 4.2
(a "termination without cause"), you shall remain an employee of AMLH
for a period ending on the date (the "Severance Term Date") which is
the later of (i) the last day of the term of this Agreement (if
applicable, as extended or renewed) and (ii) the date which is one and
one half year after the effective date of such termination and during
such period you shall be entitled to received, whether or not you
become disabled during such period but subject to Section 6, Base
Salary at an annual rate equal to your Base Salary in effect
immediately prior to the notice of termination. Except as provided
below, if you accept other full-time employment during such period or
notify AMLH of your intention to terminate your status as an employee
during such period, you shall cease to be an employee of AMLH
effective upon the commencement of such other employment or the
effective date of such termination as specified by you in such notice,
and you shall be entitled to receive, as severance, a lump sum payment
within 30 days after such commencement or such effective date or
periodic payment as revenues allow, at AMLH's option, discounted as
provided below, equal to the balance of the payments you would have
received pursuant to this section had you remained on AMLH's payroll.
That lump sum shall be discounted to present value as of the date of
payment from the times at which such amounts would otherwise have
become payable.
4.3 After the Term Date: If at the Term Date, the term of employment
shall not have been previously terminated pursuant to the provisions of
this Agreement, no Disability Period is then in effect and the parties
shall not have agreed to an extension or renewal of this Agreement or on
the terms of a new employment agreement, then the term of employment shall
continue in six-month increments and you shall continue to be employed by
AMLH pursuant to the terms of this Agreement, subject to termination by
either party hereto on 60 days written notice. If AMLH shall terminate the
term of employment on or after the Term Date for any reasons (other than
for cause as defined in Section 4.1), which AMLH shall have the right to do
so long as no Disability Date has occurred prior to the delivery by AMLH of
written notice of termination, then such termination shall be deemed for
all purposes to be a "termination without cause" under Section 4.2 and the
provision of Section 4.2.1 shall apply.
4.4 Release: A condition precedent to AMLH's obligation to make the
payments associated with a termination without cause shall be your
execution and delivery of a general release, excepting claims and
assertions for which you would be indemnified had the employment not been
terminated.
4.5 Payments: So long as you remain on the payroll of AMLH or any
subsidiary of AMLH, payments of Base Salary and Bonus required to be made
after a termination without cause shall be made at the same times as
similar payments are made to other senior executives of AMLH.
4.6 Termination by You Without Material Breach or Cause: You shall
have the right to terminate your employment at any time, for any reason. In
the event of such a termination, AMLH shall be required to pay you only
accrued, but then unpaid Base Salary, Bonus, and expenses, and shall have
no other obligations except those provided by COBRA or any other generally
applicable statute or regulation.
5. Disability
5.1 Disability Payments: If during the term of employment and prior to
the delivery of any notice of termination, you become physically or
mentally disabled, whether totally or partially, so that you are prevented
from performing your usual duties for a period of six consecutive months,
or for shorter periods aggregating six months in any twelve-month period,
AMLH shall continue to pay your full compensation through the last day of
the sixth consecutive month of disability or the date on which the shorter
periods of disability shall have equaled a total of six months (such last
day or date being referred to as the "Disability Date"). If you have not
resumed you usual duties on or prior to the Disability Date, AMLH shall pay
you a pro rata Bonus (based on your Average Annual bonus) for the year in
which the Disability Date occurs and thereafter shall pay you disability
benefits for the period ending on the later of (i) the Term Date or (ii)
the date that is two years after the Disability Date (in the case of either
(i) or (ii), the "Disability Period") in an annual amount equal to 75% your
Base Salary at the time you become disabled.
5.2 Other Disability Provisions: AMLH shall be entitled to deduct from
all payments made to you during the Disability Period pursuant to Section 5
an amount equal to all disability payments received by you from disability
insurance policies maintained by AMLH if any.
6. Death: If you die during the term of employment, this Agreement and all
obligations of AMLH to make any payments hereunder shall terminate except that
your estate (or designated beneficiary) shall be entitled to receive Base Salary
to the last day of the month three months after the month in which you death
occurs and Bonus compensation (at the time Bonuses are normally paid) based on
the Average Annual bonus, but prorated according to the number of whole or
partial months you were employed by AMLH in such calendar year.
7. Life Insurance: During your employment with AMLH, AMLH shall pay you
annually an amount equal to the premiums you pay to obtain term life insurance
coverage of $1 million, or will secure for you term life insurance coverage of
$1 million. The payments made to you hereunder shall not be considered as
"salary" or "compensation" or "bonus" in determining the amount of any payment
under any benefit plan of AMLH.
8. Other Benefits:
8.1 General Availability: To the extent that (a) you are eligible
under the general provisions thereof and (b) AMLH maintains such plan or
program for the benefit of its executives, during the term of employment
and so long as you are an employee of AMLH, you shall be eligible to
participate in any savings or similar plan or program and in any insurance,
hospitalization, medical, dental accident, disability or similar plan
program of AMLH.
8.2 Payments in Lieu of Other Benefits: In the event the term of
employment and your employment with AMLH is terminated pursuant to any
section of this Agreement, you shall not be entitled to notice and
severance under the Company's general employee policies or to be paid for
any accrued vacation time or unused sabbatical, the payments provided for
in such sections being in lieu thereof.
8.3 Professional Benefits and Development: AMLH shall, during the term
of employment, caused to be paid on your behalf all professional and
license fees required by The Florida Bar and other professional
organizations reasonably necessary to your duties as General Counsel. AMLH
will pay or reimburse you for continuing legal education expenses. You will
have the authority and responsibility to determine the appropriate level of
resources maintained in-house and through outside providers, and will
provide, upon request, justification to the Chief Operating Officer for any
expenses so incurred on your behalf or on behalf of those legal department
employees reporting to you.
9. Protection of Confidential Information: You acknowledge that your
employment by AMLH will, throughout the term of employment, bring you into close
contact with many confidential affairs of AMLH. You shall keep secret all
confidential matters of AMLH and shall not disclose such matters to anyone
outside of the AMLH or to anyone inside AMLH who dos not have a need to know or
use such information, and shall not use such information for personal benefit or
the benefit of a third party.
10. Successors.
(a) This Agreement shall inure to the benefit of and be binding upon
(i) AMLH and its successors and assigns and (ii) you and your heirs and
legal representatives, except that your duties and responsibilities under
this Agreement are of a personal nature and will not be assignable or
delegable in whole or in part.
(b) AMLH will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business and/or assets of AMLH to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that AMLH
would be required to perform it if no such succession had taken place.
11. General:
11.1 Governing Law: This Agreement shall be governed by the laws of
the State of Florida.
11.2 Assignability: This Agreement and your rights and obligations
hereunder may not be assigned by you.
11.3 Withholding Taxes: Payments made to you pursuant to this
Agreement shall be subject to withholding and social security taxes and
other ordinary and customary payroll deductions.
11.4 This Agreement sets forth the entire agreement of the parties
concerning the subjects; there are no promises, understandings,
representations, or warranties of any kind concerning those subjects except
as expressly set forth in this Agreement.
11.5 If any provision of this Agreement, or its application to anyone
or under any circumstances, is adjudicated to be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability will not affect
any other provision.
/s/ Xxxxxxx X. Xxxxxx
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American Leisure Holdings, Inc.
By: Xxxxxxx X. Xxxxxx
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Its: CEO
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
