EXHIBIT 10.25
EMPLOYMENT AGREEMENT
XXXXXXXXXX.XXX, INC., a Nevada Corporation (the "Company") and XXXX X.
XXXXXX (the "Employee") hereby enter into this EMPLOYMENT AGREEMENT (the
"Agreement") dated as of December ___, 1999, as follows:
1. EMPLOYMENT.
The Company shall employ Employee, and Employee shall be employed by the
Company upon the terms and subject to the conditions set forth in this
Agreement.
2. TERM OF EMPLOYMENT.
The period of Employee's employment under this Agreement shall begin as of
the Closing Date of the Company's Initial Public Offering (the "Employment
Commencement Date"), and shall continue for a period of three (3) years
thereafter (the "Initial Term") and shall be automatically renewed for
successive one (1) year terms thereafter, unless Employee's employment is
terminated in accordance with Section 5 below.
3. DUTIES AND RESPONSIBILITIES
(a) Employee shall serve as President of Jamberry Lake Digital Media, Inc.
("Jamberry"), a wholly-owned subsidiary of the Company. In such
capacity, Employee shall perform such duties and/or accept such
assignments as may be required of Employee by the Company.
(b) Employee shall faithfully serve the Company and/or its affiliated
corporations, devote Employee's full working time, attention and
energies to the business of the business of the Company and/or its
affiliated corporations, and perform the duties under this Agreement to
the best of Employee's abilities.
(c) Employee shall (i) comply with all applicable laws, rules and
regulations, and all requirements of all applicable regulatory,
self-regulatory, and administrative bodies; (ii) comply with the
Company's rules, procedures, policies, requirements, and directions; and
(iii) not engage in any other business or employment without the written
consent of the Company, except as otherwise specifically provided herein.
4. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Initial Term, the Company shall pay Employee a
base salary at the rate of One Hundred Twenty Thousand and 00/100
Dollars ($120,000.00) dollars per year ("Base Salary"). Thereafter, in
any renewal period, Employee's Base Salary shall be increased by no less
than fifteen percent (15%) per year, beginning on the first year of the
renewal period. Such Base Salary shall be paid in accordance with the
Company's standard payroll practice for employees.
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(b) BONUS. Employee shall be entitled to receive a minimum bonus (the
"Minimum Bonus") of Thirty Thousand Dollars ($30,000.00) for each fiscal
year, or in the case of a fiscal year of less than twelve (12) months, on
a pro rata basis, in which the gross revenues of Jamberry, as determined
in accordance with generally accepted accounting principals, exceed Two
Million Five Hundred Thousand and 00/100 Dollars ($2,500,000.00) (the
"Minimum Gross Revenue"). The Minimum Bonus, or any amount in excess
thereof paid to Employee as a result of Jamberry having exceeded the
Minimum Gross Revenue (the "Bonus"), shall be paid to Employee in a lump
sum within thirty (30) days of the end of the fiscal year in which
Employee becomes entitled to the Bonus.
(c) EXPENSE REIMBURSEMENT. The Company shall promptly reimburse Employee for
the ordinary and necessary business expensed incurred by Employee in the
performance of Employee's duties hereunder in accordance with the
Company's customary practices applicable to employees, provided that
such expenses are incurred and accounted for in accordance with the
Company's policy.
(d) BENEFIT PLANS. Employee shall be eligible to participate in or receive
benefits under any pension plan, profit sharing plan, medical and dental
benefits plan, life insurance plan, short-term and long-term disability
plans, supplemental and/or incentive compensation plans, or any other
benefit plan or arrangement generally made available by the Company to
employees of similar status and responsibilities (hereinafter referred
to as "similarly situated employees").
(e) STOCK OPTIONS. Employee shall, on each one (1) year anniversary of the
Employment Commencement Date ("Anniversary Date"), have the cumulative
option to purchase from the Company shares of the Company's common stock
(the "Option Shares") at a price equal to eighty-five percent (85%) of
the Initial Public Offering price of the Company's common stock (the
"Option Price"), provided that in that year, or in the case of a
partial year, on a pro rata basis, the gross revenues of Jamberry, as
determined in accordance with generally accepted accounting principals,
exceed Two Million Five Hundred Thousand and 00/100 Dollars
($2,500,000.00). Employee shall, at each Anniversary Date, be entitled to
purchase a number of Option Shares having a cumulative value, which value
shall be determined based upon the Initial Public Offering price of the
common stock of the Company, equal to Three Hundred Thousand and 00/100
Dollars ($300,000.00) or two (2) times Employee's than current Base
Salary, whichever is greater. This annual option to purchase the number
of Option Shares per year of employment pursuant to the formula set
forth herein (an "Annual Purchase Option"). shall vest in Employee on
each Anniversary Date. Each Annual Purchase Option, once and to the
extent vested, may be exercised by Employee at any time up to thirty
(30) days after the end of Employee's employment hereunder.
(f) PLACE OF EMPLOYMENT. The Company shall not cause the Employee to
relocate his principal place of employment outside the States of New
York or New Jersey.
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5. TERMINATION OF EMPLOYMENT.
Employee's employment hereunder may be terminated under the following
circumstances:
(a) DEATH. Employee's employment hereunder shall terminate upon Employee's
death.
(b) TOTAL DISABILITY. The Company may terminate Employee's employment
hereunder upon Employee's becoming "Totally Disabled". For purposes of
this Agreement, Employee shall be "Totally Disabled" if Employee is
physically or mentally incapacitated so as to render Employee incapable
of performing Employee's usual and customary duties under this
Agreement. Employee's receipt of disability benefits under the Company's
long-term disability plan, or receipt of Social Security disability
benefits, shall be deemed conclusive evidence of Total Disability for
purpose of this Agreement; provided, however, that in the absence of
Employee's receipt of such long-term disability benefits or Social
Security benefits, the Company may, in its reasonable discretion (but
based upon appropriate medical evidence), determine that Employee is
Totally Disabled.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
Employee's employment hereunder for "Cause" at any time after providing
written notice to Employee.
(i) For purposes of this Agreement, the term "Cause" shall mean any of
the following: (A) conviction of a crime (including conviction on
a NOLO CONTENDERE plea) involving a felony; (B) deliberate and
continual refusal to perform employment duties reasonable
requested by the Company or an affiliate after thirty (30) days'
written notice by certified mail of such failure to perform,
specifying that the failure constitutes cause (other than as a
result of vacation, sickness, illness or injury); (C) fraud or
embezzlement determined in accordance with the Company's normal,
internal investigative procedures consistently applied in
comparable circumstances; or (D) gross misconduct or gross
negligence in connection with the business of the Company or an
affiliate which has substantial effect on the Company or the
affiliate.
(ii) Any determination of Cause under this Agreement shall be made by
the Company after giving Employee a reasonable opportunity to
be heard.
(d) VOLUNTARY TERMINATION BY EMPLOYEE. Employee may terminate employment
hereunder at any time after the first Anniversary Date of this Agreement
after providing thirty (30) days' written notice to the Company.
(d) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate
Employee's employment hereunder, and this Employment Agreement, for any
reason, provided Employee is given written notice to terminate, received
ninety (90) days prior to the expiration of the current term of this
Agreement.
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6. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT.
In the event that Employee's employment hereunder is terminated, Employee
shall be entitled to the following compensation and benefits upon such
termination:
(a) TERMINATION BY REASON OF DEATH. In the event that Employee's employment
is terminated by reason of Employee's death, the Company shall pay the
following amounts to Employee's beneficiary or estate:
(i) Any accrued but unpaid Base Salary for services rendered to the
date of death, any accrued but unpaid expenses required to be
reimbursed under this Agreement, and any vacation accrued to the
date of death.
(ii) Any benefits to which Employee may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(d)
hereof as determined and paid in accordance with the terms of such
plans, policies and arrangements.
(iii) An amount equal to the Base Salary (at the rate in effect as of
the date of Employee's death) which would have been payable to
Employee if Employee had continued in employment until the end of
the twelve (12) month period beginning on the date of Employee's
death. Such amount shall be paid in a single lump sum cash payment
within thirty (30) days after Employee's death.
(iv) An amount equal to the Bonus which would have been payable to
Employee if Employee had continued in employment until the end of
the twelve (12) month period beginning on the date of Employee's
death.
(v) Employee's estate shall be entitled to exercise any vested Annual
Purchase Options and any Annual Purchase Options that would have
vested in Employee if Employee had continued in employment until
the end of the twelve (12) month period beginning on the date of
Employee's death.
(b) TERMINATION BY REASON OF TOTAL DISABILITY. In the event that Employee's
employment is terminated by reason of Employee's Total Disability as
determined in accordance with Section 5(b), the Company shall pay the
following amounts to Employee:
(i) Any accrued but unpaid Base Salary for services rendered to the
date of termination any accrued but unpaid expenses required to be
reimbursed under this Agreement, any vacation accrued to the date
of termination.
(ii) Any benefits to which Employee may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(d)
hereof shall be determined and paid in accordance with the terms
of such plans, policies and arrangements.
(iii) An amount equal to
(A) the Base Salary (at the rate in effect as of the date of
Employee's Total Disability) which would have been
payable to Employee if
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Employee had continued in active employment until the
end of the 12-month period beginning on the date of
Employee's termination; reduced by
(B) the maximum annual amount of the long term disability
benefits payable to Employee under the Company's
long-term disability plan as determined prior to the
reduction of such benefits under the terms of the plan
for other disability income. Payment shall be made at
the same time and in the same manner as such
compensation would have been paid if Employee had
remained in active employment until the end of such
period.
(iv) An amount equal to the Bonus which would have been payable to
Employee if Employee had continued in employment until the end of
the twelve (12) month period beginning on the date of Employee's
termination.
(v) Employee or Employee's guardian, if appropriate, shall be entitled
to exercise any vested Annual Purchase Options and any Annual
Purchase Options that would have vested in Employee if Employee
had continued in employment until the end of the twelve (12) month
period beginning on the date of Employee's termination.
(c) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION BY EMPLOYEE. In the event
that Employee's employment is terminated by the Company for Cause
pursuant to Section 5(c) or Employee terminates employment pursuant to
Section 5(d), the Company shall pay the following amounts to Employee:
(i) Any accrued but unpaid Base Salary for services rendered to the
date of termination, any accrued but unpaid expensed required to
be reimbursed under this Agreement, any vacation accrued to the
date of termination.
(ii) Any benefits to which Employee may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(d)
hereof shall be determined and paid in accordance with the terms
of such plans, policies and arrangements.
(iii) Employee shall, within 30 days of Employee's termination, be
entitled to exercise any Annual Purchase Options which have vested
at the time of termination.
(d) TERMINATION BY THE COMPANY WITHOUT CAUSE. In the event that Employee's
employment is terminated by the Company pursuant to Section 5(c) for
reasons other than death, Total Disability or Cause, the Company shall
pay the following amounts to Employee:
(i) Any accrued but unpaid Base Salary for services rendered to the
date of termination, any accrued but unpaid expenses required to
be reimbursed under this Agreement, and any vacation accrued to the
date of termination.
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(ii) Any benefits to which Employee may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(d)
hereof shall be determined and paid in accordance with the terms
of such plans, policies and arrangements.
(iii) The Base Salary (at the rate in effect as of the date of
Employee's termination) which would have been payable to Employee
if Employee had continued in active employment for either (A) the
period ending on the last day of the current term; or (B) twelve
(12) months, whichever is greater. Payment shall be made in a lump
sum within thirty (30) days of such termination. The Employee
shall also be eligible for a bonus or incentive compensation
payment, to the extent bonuses are paid to similarly situated
employees, pro-rated for the year in which the Employee is
terminated, and paid at the same time as similarly situated
employees are paid.
(iv) The Company, completely at its expense, will continue for employee
and Employee's spouse and dependents, group health plans, programs
or arrangements, in which Employee was entitled to participate at
any time during the twelve-month period prior to the date of
termination, until the earlier of: (A) the last day of the period
during which Employee receives payment in accordance with clause
(iii) above; (B) Employee's death (provided that benefits payable
to Employee's beneficiaries shall not terminate upon Employee's
death); or (C) with respect to any particular plan, program or
arrangement, the date Employee becomes covered by a comparable
benefit provided by a subsequent employer.
(v) An amount equal to any Bonus which would have been payable to
Employee if Employee had continued in active employment for either
(A) the period ending on the last day of the current term; or (B)
twelve (12) months, whichever is greater.
(vi) Employee shall be entitled to exercise any Annual Purchase Options
which were vested at the time of termination and which would have
vested if Employee had continued in active employment for either
(A) the period ending on the last day of the current term; or (B)
twelve (12) months, whichever is greater.
(e) NO OTHER BENEFITS OR COMPENSATION. Except as may be provided under this
Agreement, under the terms of any incentive compensation, employee
benefit, or fringe benefit plan applicable to Employee at the time of
Employee's termination or resignation of employment, Employee shall have
no right to receive any other compensation, or to participate in any
other plan, arrangement or benefit, with respect to future periods after
such termination or resignation.
7. WITHHOLDING OF TAXES.
The Company may withhold from any compensation and benefits payable under
this Agreement all applicable federal, state, local or other taxes.
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8. NON-DISCLOSURE OF AGREEMENT TERMS.
Employee agrees that Employee will not disclose the terms of this Agreement
to any third party other than Employee's immediate family, attorney,
accountants, or other consultants or advisors or except as may be required by
any governmental authority.
9. ASSIGNMENT.
Except as otherwise provided in this Agreement, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns. This Agreement shall not be
assignable by Employee.
10. ENTIRE AGREEMENT; AMENDMENT.
This Agreement shall supersede any and all existing oral or written
agreements, representations, or warranties between Employee and the Company or
any of its subsidiaries or affiliated entities relating to the terms of
Employee's employment by the Company. It may not be amended except by a
written agreement signed by both parties.
11. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Tennessee applicable to agreements made and to be performed
in that State, without regard to its conflict of laws provisions.
12. NOTICES.
Any notice, consent, request or other communication made or given in
connection with this Agreement shall be in writing and shall be deemed to
have been duly given when delivered or mailed registered or certified mail,
return receipt requested, or by facsimile or by hand delivery, to those
listed below at their following respective addresses or at such other address
as each may specify by notice to the others:
To the Company:
Xxxxxxxxxx.xxx, Inc.
000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Xx., Chairman
with a copy to:
Xxxxx, Rowin, Novack, Burnbaum & Crystal
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx
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To Employee:
Xxxx X. Xxxxxx
0000-X Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxxxx & Xxxxxx
0000 Xxxxxxxxxx Xxxxxx
P.O. Box 1289
West Xxxxxxxx, New Jersey 07007-8452
Attention:: Xxxxx X.X. Xxxxxxxx
13. MISCELLANEOUS.
(a) WAIVER. The failure of a party to insist upon strict adherence to any
item of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(b) SEPARABILITY. If any term or provision of this Agreement is declared
illegal or unenforceable by any court of competent jurisdiction and
cannot be modified to be enforceable, such term or provision shall
immediately become null and void, leaving the remainder of this
Agreement in full force and effect.
(c) HEADINGS. Section headings are used herein for convenience of reference
only and shall not affect the meaning of any provision of this Agreement.
(d) RULES OF CONSTRUCTION. Whenever the context so requires, the use of the
singular shall be deemed to include the plural and vice versa.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts will together constitute but one
Agreement.
IN WITNESS WHEREOF, the parties herein have duly executed this Agreement
as of the day and year first above written.
ATTEST: XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxx, Xx.
------------------------------- -------------------------------
Xxxxx Xxxxxxx, Xx.,
Chairman
WITNESS:
/s/ Xxxx X. Xxxxxx
------------------------------- -------------------------------
Xxxx X. Xxxxxx
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ATTEST Xxxxxxxxxx.Xxx, Inc.
/s/ Xxxxx Xxxxxxx, Xx. By: /s/ Xxxxx Xxxxxxx, Xx.
------------------------------- -------------------------------
Xxxxx Xxxxxxx, Xx.
Chairman
ATTEST Jamberry Lake, LLC
/s/ [Illegible] By: /s/ Xxxx X. Xxxxxx
------------------------------- -------------------------------
Xxxx X. Xxxxxx,
Managing Member
ATTEST Jamberry Lake Digital Media, Inc.
/s/ [Illegible] By: /s/ Xxxx X. Xxxxxx
------------------------------- -------------------------------
Xxxx X. Xxxxxx,
President
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