Exhibit 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
effective as of January 1, 1999, by and between Amir Tukulj ("Executive"),
currently residing in Toronto, Canada, and Thane Direct Canada. Inc., a Canadian
corporation, with offices in Toronto, Canada ("Corporation").
WHEREAS:
A. The Corporation is engaged in the business of marketing and distributing
infomercial products worldwide; and
B. Executive is a person whose skills, experience and training are required
by the Corporation; and
C. Executive wishes to accept the employment offered by the Corporation on
the terms and conditions hereinafter set forth.
NOW THEREFORE, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. POSITION AND DUTIES
The Corporation does hereby employ Executive and Executive hereby accepts
such employment as President and COO upon the terms and provisions set forth in
this Agreement. Subject to direction of the CEO and/or from the Board of
Directors, Executive shall have full authority over all Corporation activities.
Executive shall carry out and perform all orders, directions, and policies
stated to him by the Board of Directors and/or the CEO periodically, either
orally or in writing. Executive shall carry out the duties assigned to him in a
trustworthy, businesslike, and loyal manner.
2. TERM
This agreement shall commence on the effective date and shall continue for
a period of five years unless sooner terminated as herein provided.
3. COMPENSATION
3.1 Base Salary
Effective January 1, 1999, the Corporation agrees to pay Executive a Base
Salary at the rate of $100,000 per year, payable in accordance with the
Corporation practices in effect from time to time, but not less often than
monthly ("the Base Salary").
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3.2 Additional Benefits
Executive shall be entitled to all rights and benefits for which
Executive is otherwise entitled under any bonus plan, incentive, participation
or extra compensation plan, pension plan, profit sharing plan, life, medical,
dental, disability or other insurance plan or policy or other plan or benefit
the Corporation may provide for senior executives and for employees of the
Corporation from time to time in effect during the term of this Agreement
(collectively "Additional Benefits").
3.3 Periodic Review
The Corporation shall review the Executive's Base Salary, Stock
Options, and Additional Benefits then being provided to Executive not less
frequently than every twelve (12) months. Following such review, the Corporation
may, in its discretion, increase the Base Salary, Stock Options, and Additional
Benefits, but Corporation shall not decrease the Base Salary and Additional
Benefits during the time Executive serves as an employee of the Corporation.
Effective the first pay period following one year from the date of this
Agreement, and each year thereafter during the Term of this Agreement,
Executive's Base Salary shall be increased to no less than $5,000 more per each
consecutive year.
3.4 Bonus Pool Compensation
In addition to Base Salary, within three months from the close of
fiscal year 1998, Executive shall receive Bonus Pool Compensation to be shared
amongst Executive and those personnel hired by Executive, at Executive's sole
discretion. The Bonus Pool Compensation shall be based on the Corporation's
pre-tax income for the prior year and a declining percentage as determined by
the Board of Director's of Thane Direct, Inc (the "Board"). The Board has
determined that the percentages set forth below shall be used to compute Bonus
Pool Compensation for fiscal year ending in 1999. The Board may annually revise
the amounts set forth below for future years. Executive automatically forfeits
the receipt of any and all Bonus Pool Compensation for any fiscal year if he
terminates his employment for any reason prior to the end of that fiscal year.
For fiscal year ending March 31, 1999:
10% of pre-tax income between 500 thousand and 1 1/2 million
9% of the next 100 thousand 8% of the next 100 thousand
7% of the next 100 thousand
6% of the next 100 thousand
5% of any additional amount
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3.5 Reimbursements
During the term of this Agreement, Corporation agrees to, and
shall reimburse Executive promptly for all reasonable business expenditures
including travel, entertainment, parking, and business meetings, made or
substantiated in accordance with policies, practices and procedures established
from time to time by the Corporation or pre-approved by the CEO.
3.6 Deductions
There shall be deducted from Executive's gross compensation
appropriate amounts for standard employee deductions and any other amounts
authorized for deduction by Executive.
4. TRADE SECRETS/UNFAIR COMPETITION
4.10 Business Disclosures
For the purpose of Section 4 herein, "Corporation" shall be
defined as Thane Direct Canada, Inc. and any and all subsidiaries and parent
companies. Executive agrees that during the term of his employment by the
Corporation and thereafter he will not disclose, other than to an authorized
employee, officer or director of the Corporation, including, without limitation,
any information relating to the Corporation's business, trade practices, trade
secrets or "know-how," without the Corporation's prior written consent, and that
on the termination of his employment for any reason, he shall not remove or
retain without the Corporation's prior express written consent any figures,
calculations, letters, papers, documents or copies thereof, or any other "trade
secret", confidential and/or proprietary information of Corporation. For
purposes of this Agreement, "trade secret, confidential and/or proprietary
information" shall be defined as information pertinent only to Corporation,
rather than the marketing and infomercial industry as a whole, including but not
limited to, information concerning the Corporation's, employees, products,
operations, contracts and contractual negotiations, and other pending business
negotiations; but does not include information which is 1) already in one's
possession prior to employment with Corporation or available from a source other
than the Corporation, or 2) is generally available to the public. During the
term of this Agreement and for two years after termination, Executive agrees not
to disclose or divulge any "trade secret, confidential and/or proprietary
information", of Corporation, for the Executive's own purposes or for the
benefit of any entity engaged in competitive business activities, or engaged in
activities adverse to Corporation's, or its parent companies', business
interests.
4.20 Unfair Competition
Executive acknowledges and agrees that the sale of or
unauthorized use or disclosure of any of Corporation's trade secrets obtained by
Executive in the course of his
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employment under this Agreement, including information concerning Corporation's
current or future and proposed work, services, or products, the facts that any
such work, services, or products are planned, under consideration, or in
production, as well as any descriptions thereof, constitute unfair competition.
Executive promises and agrees not to engage in any unfair competition with
Corporation, either during the term of this Agreement or at any other time
thereafter.
5. INDEMNIFICATION
The Corporation shall, to the maximum extent permitted by law,
indemnify and hold Executive harmless from and against any expenses, including
reasonable attorney's fees, judgements, fines, settlements and other amounts
actually and reasonably incurred in connection with any preceding arising out
of, or related to, Executive's employment by the Corporation. The Corporation
shall advance to Executive any expenses incurred in defending any such
proceeding to the maximum extent permitted by law.
6. TERMINATION
Employment shall terminate upon the occurrence of any of the following
events:
6.1 Expiration of Term of this Agreement or Upon Notice
The Corporation may terminate this Agreement upon expiration of
each and every year from the effective date of this Agreement; by giving at
least ninety (90) days written notice prior to the end of such period;
6.2 Termination for Cause
The Corporation may terminate at any time for cause. "Cause"
shall be defined as any of the following, provided however, that the Corporation
must determine the presence of such cause in good faith: (i) Executive's
material breach of any of his duties and responsibilities under this Agreement
(other than as a result of incapacity due to disability); (ii) Executive's
conviction by or entry of a plea of guilty in a court of competent and final
jurisdiction for a felony which materially and adversely affects the
Corporation; (iii) Executive's commission of an act of fraud or willful
misconduct; and (iv) Executive's willful failure or refusal to perform
Executive's material duties and responsibilities under this Agreement or
Executive's material violation of his duty to Corporation or breach of fiduciary
duty involving personal profit.
Notwithstanding the foregoing, Executive shall not be terminated
for cause pursuant to the causes above, unless and until Executive has received
notice of the proposed termination for cause including details of the bases for
such termination and has had an opportunity to be heard before the Board of
Directors of the Corporation. Executive shall be deemed to have had such an
opportunity if written or telephonic notice is given at least ten (10) days
before such a meeting.
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6.3 Death/Disability
The death of Executive shall terminate this Agreement. The
disability of Executive shall terminate this Agreement upon written notice to
Executive. For purposes of this Agreement, "disability" shall mean the absence
of Executive performing Executive's duties with the Corporation on a full time
basis for a period of three (3) months, as a result of incapacity due to mental
or physical illness which is determined to be total and permanent by a physician
selected by the Corporation or its insurers and reasonably acceptable to
Executive or Executive's legal representative. If the parties cannot agree on a
mutually acceptable physician, they shall mutually chose an independent third
party who shall select a physician.
6.4 Severance
If Corporation terminates this Agreement without cause,
Corporation shall pay to Executive an amount equal to six (6) months annual Base
Salary at the then current rate of compensation.
7. ASSIGNMENT
The Corporation shall have the complete power, right and authority to
assign any and all rights granted under this Agreement to a successor entity and
designate such successor entity to perform its obligations hereunder. Executive
may not assign this Agreement, or any of his obligations, rights, or interests,
without the prior written approval of the Corporation.
8. MISCELLANEOUS
8.1 Notices.
All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person or sent by overnight delivery, confirmed telecopy or prepaid
first class registered or certified mail, return receipt requested, to the
following addresses, or such other addresses as are given to the other parties
to this Agreement in the manner set forth herein:
(i) If to Corporation, to: Thane Direct Canada, Inc.
c/o Xxxxxxx Xxxxxxx
Samac, Darling
00 Xxxxxxxx Xxxxxx X., Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Board of Directors
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(ii) If to Executive, to: Amir Tukulj
00 Xxxxxxxxxx Xxxx.
Xxxxxxx, Xxxxxxx X0X 0X0
8.2 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. It
supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
8.3 Amendment/Waiver. This Agreement may not be amended, supplemented
or modified in whole or in part except by an instrument in writing signed by the
Executive and the Corporation. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
8.4 Choice of Law. This Agreement will be interpreted, construed and
enforced in accordance with the laws of the State of California.
8.5 Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.6 Severability. The invalidity, illegality or unenforcability of
any provision of this Agreement shall not affect the other provisions of this
Agreement, which will remain in full force and effect, nor will the invalidity,
illegality or unenforcability of a portion of any provision of this Agreement
affect the balance of such provision. In the event that any one or more of the
provisions contained in this Agreement or any portion thereof shall for any
reason be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be reformed, construed and enforced as if such invalid, illegal
or unenforceable provision had never been contained herein.
8.7 Enforcement. Should it become necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the prevailing party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. Any suit, action or proceeding with
respect to this Agreement shall be brought in the courts of Riverside County in
the State of California or in the U.S. District Court for the Southern District
of California. The parties hereto hereby accept the exclusive jurisdiction of
those courts for the purpose of any such suit, action or proceeding.
The parties hereto hereby irrevocably waive, to the fullest extent
permitted by law, any objection that any of them may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or any judgment entered by any court in respect thereof
brought in state or federal court in Riverside County, California, and hereby
further irrevocably waive any claim that any suit, action or proceeding brought
in state or federal court in Riverside County, California, has been brought in
an inconvenient forum.
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8.8 No Third-Party Beneficiaries. No person shall be deemed to
possess any third-party beneficiary right pursuant to this Agreement. It is the
intent of the parties hereto that no direct benefit to any third party is
intended or implied by the execution of this Agreement.
8.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Corporation: Executive:
/s/ Xxxxxxx X. Xxx /s/ Amir Tukulj
-------------------------------------------- -----------------------------
By Xxxxxxx X. Xxx, CEO and Chairman of the Amir Tukulj
Board of Directors, Thane Direct Canada, Inc.
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FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This agreement serves as the first amendment ("First Amendment") to the
"Executive Employment Agreement", dated January 1, 1999 ("Agreement"), between
Amir Tukulj ("Executive") and Thane Direct Canada. Inc. ("Corporation").
Corporation and Executive hereby agree that this First Amendment will not modify
or change any other terms of the Agreement.
WHEREAS, the Executive and the Corporation agree that reasonable
restrictions upon direct competition with the Corporation following termination
of the Executive's employment with the Corporation are necessary to protect the
business interests of the Corporation and its parent corporation, Thane Direct,
Inc., in which Executive has an ownership interest.
THEREFORE, the Parties hereby revise Section 4 of the Agreement to read as
follows:
"4. TRADE SECRETS/UNFAIR COMPETITION
4.10 Confidential Information. Except as may be required by the
lawful order of a court or agency of competent jurisdiction, the
Executive agrees to keep secret and confidential indefinitely all
non-public information concerning the Corporation and its affiliates
that was acquired by or disclosed to the Executive during the course
of his employment by the Corporation or any of its affiliates,
including information relating to customers (including, without
limitation, credit history, repayment history, financial information
and financial statements), costs, and operations, financial data and
plans, whether past, current or planned and not to dis close the same,
either directly or indirectly, to any other person, firm or business
entity, or to use it in any way; provided, however, that the
provisions of this paragraph 5 shall not apply to information that is
in the public domain or that was disclosed to the Executive by
independent third parties who were not bound by an obligation of
confidentiality. The Executive further agrees that he shall not make
any statement or disclosure that (a) would be prohibited by applicable
Federal or state laws or (b) is intended or reasonably likely to be
detrimental to, or disparaging of, the Corporation or any of its
subsidiaries or affiliates.
4.20. Non-competition. The Executive and the Corporation agree
that reasonable restrictions upon direct competition with the
Corporation following termination of the Executive's employment with
the Corporation are necessary to protect the business interests of the
Corporation.
(a) For purposes of this section, the "Business" of the
Corporation is defined as the design, production and distribution of
television programs that are marketing or advertisement pieces
("infomercials") targeted at potential consumers of health, beauty,
fitness and related home products, or other products as may be
identified pursuant to section 4.20(a) below, with the objective of
causing the
television viewers to make purchases of the products featured in the
television programs.
(b) The extent of the Corporation's Business is limited to
the actual and intended business of the Corporation, as demonstrated
by books, records, contracts, advertising, strategic plans and
financial and budget documents, created or relied upon during the
Employment Period and as of the date the Executive leaves the
employment of the Corporation.
(c) The Executive and Corporation agree that for the period
(the "Non-Competition Period") commencing on the Effective Date of the
Agreement and ending on the fifth anniversary of the date hereof,
unless the Executive is terminated without cause as defined in Section
6.2 herein, the Executive shall not serve as or be a consultant to or
employee, officer, agent, director or owner of more than three percent
(3%) of another corporation, partnership or other entity whose primary
Business competes with the Corporation in Business (as defined in this
section).
(d) That the nature of the television production business of
the Corporation is interstate and international in scope, that the
global scope of the business renders a global restriction reasonable
and a more narrowly tailored geographic restriction insufficient to
protect the legitimate business interests of the Corporation.
(e) The Executive may engage in the design, production and
distribution of infomercials other than those competing with the
Business of the Corporation (as defined in this section) at any time
following termination of employment with the Corporation.
(f) The Executive may engage in design, production and
distribution of infomercials competing with the Business of the
Corporation as provided for in subsection 4.20(a), after the
Non-Competition Period."
The parties have executed this First Amendment effective May 31, 1999.
THANE DIRECT CANADA, INC. AMIR TUKULJ
/s/ Xxxxxxx X. Xxx /s/ Amir Tukulj
----------------------------------------- ------------------------------
By: Xxxxxxx X. Xxx, Chairman of the Board
SECOND AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This agreement serves as the second amendment ("Second Amendment") to the
"Executive Employment Agreement", dated January 1, 1999 and amendment thereto
(collectively "Agreement"), between Amir Tukulj ("Executive") and Thane Direct
Canada. Inc. ("Corporation"). Corporation and Executive hereby agree that this
Second Amendment will not modify or change any other terms of the Agreement.
WHEREAS, the Executive and the Corporation agree that the following
amendments to the Agreement are necessary and beneficial to the business
interests of the Corporation.
THEREFORE, the Parties hereby revise the Agreement as follows:
1. The Parties hereby revise Section 2. Term of the Agreement by extending the
Term up to December 10, 2004.
2. The Parties hereby revise Section 3.1 Base Salary by increasing the Base
Salary to $300,000 effective January 1, 2002.
3. The Parties hereby revise Section 3.4 Bonus Pool Compensation by adjusting
the computation amounts as follows:
"5% of pre-tax income between 5 million and 5.6 million
4.5% of the next 100,000
4% of the next 100,000
3.5% of the next 100,000
3% of the next 100,000
2.5% of any additional amount"
4. Bonus calculation for the fiscal year ended 2002 will be based on prior bonus
calculations set forth in Prior Agreements, except that Executive's personal
bonus shall reduce by 37,500 US dollars.
The parties have executed this Second Amendment effective December 10, 2001.
THANE DIRECT CANADA, INC. AMIR TUKULJ:
/s/ Xxxxxxx X. Xxx /s/ Amir Tukulj
----------------------------------------- ------------------------------
By: Xxxxxxx X. Xxx, Chairman of the Board
