EXHIBIT 99.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into as of the 26th day of January 2005, (the "Effective Date"), between
EVOLVE ONE, Inc., a Delaware corporation, whose principal place of business is
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (the "Company") and
XXXXX X. XXXXXXXX, an individual whose mailing address is 0000 Xxxxx Xxxxx Xxxx,
Xxxx Xxxxx, Xxxxxxx 00000 (the "Executive).
A. The Company is a Delaware corporation and is principally engaged as
an Internet-based seller of consigned merchandise and other direct retail
marketing.
B. The Company desires to employ the Executive and the Executive
desires to be employed by the Company and to enter into a formal employment
agreement for the benefit and protection of all of the parties.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Executive do hereby agree as follows:
1. RECITALS. The above recitals are true, correct, and are herein
incorporated by reference.
2. EMPLOYMENT. The Company hereby employs the Executive as the
Company's President and Chief Executive Officer, and the Executive hereby
accepts employment, upon the terms and conditions hereinafter set forth.
3. DUTIES AND RESPONSIBILITIES. During the term of this Agreement, the
Executive shall serve as President and Chief Executive Officer of the Company,
and shall have general operating supervision over the property, business and
affairs of the Company, subsidiaries and divisions, subject to the guidelines
and direction of the Board of Directors of the Company. It is further the
intention of the parties that at all times during the "Term" (as hereinafter
defined) of the Agreement, the Executive shall serve as a member of the Board of
Directors of the Company in accordance with the Bylaws of the Company.
4. TERM. The Term of employment hereunder will commence on the date as
set forth above and terminate three (3) years from the Effective Date, and such
term shall automatically be extended for successive one (1) year terms
thereafter unless (a) the parties mutually agree in writing to alter or amend
the terms of the Agreement; or (b) one or both of the parties exercises their
right, pursuant to Section 6 herein, to terminate this employment relationship.
For purposes of this Agreement, the Term (the "Term") shall include the initial
term and all renewals thereof.
5. COMPENSATION AND BENEFITS.
(a) SALARY. The Executive shall be paid a base salary (the "Base
Salary"), payable bi-weekly, at an annual rate of no less that Twelve Thousand
Dollars ($12,000).
(b) STOCK OPTIONS. As of the Effective Date, the Company shall grant
to the Executive options ("Options") to purchase 50,000,000 shares ("Shares") of
restricted common stock (the "Common Stock") of the Company which exercise
price, exercise period and other provisions are as follows:
(1) The exercise price of the Options is $0.30 per share of
Common Stock;
1
(2) The term of each annual Option shall be eight years from the
date; and
(3) At the request of the Executive, the Company agrees to
register these shares of Common Stock underlying the Options on Form S-8 or
other suitable registration form of the Securities and Exchange Commission.
(c) OFFICES. The Company shall provide suitable offices and
facilities to the Executive either at or off the premises of the Company to
enable the Executive to fulfill his responsibilities under this Agreement.
(d) EXECUTIVE BENEFITS. The Executive shall be entitled to
participate in all benefit programs of the Company currently existing or
hereafter made available to executives and/or other salaried employees,
including, but not limited to, pension and other retirement plans, group life
insurance, hospitalization, surgical and major medical coverage, sick leave,
disability and salary continuation, vacation and holidays, cellular telephone
and all related costs and expenses, long-term disability, and other fringe
benefits.
(e) VEHICLE ALLOWANCE. The Company shall pay to the Executive a
monthly vehicle allowance of $1,500.00 to include use of the vehicle,
maintenance, repairs and gas charges and expenses.
(f) MISCELLANEOUS EXPENSES. The Executive shall be reimbursed for
his travel, lodging and entertainment expenses incurred in connection with his
services to the Company, including travel, lodging and dining charges incurred
during the period while Executive commutes between his residence in Sarasota,
Florida and Boca Raton, Florida.
(g) BUSINESS EXPENSE REIMBURSEMENT. During the term of employment,
the Executive shall be entitled to receive proper reimbursement for all other
reasonable, out-of-pocket expenses incurred by the Executive (in accordance with
the policies and procedures established by the Company for its senior executive
officers) in performing services hereunder, provided the Executive properly
accounts therefore.
6. CONSEQUENCES OF TERMINATION OF EMPLOYMENT.
(a) DEATH. In the event of the death of the Executive during the
term of this Agreement, salary shall be paid to the Executive's designated
beneficiary, or, in the absence of such designation, to the estate or other
legal representative of the Executive for a period of two months from and after
the date of death. In addition, the Options granted pursuant to Section 5(b)
hereof shall not be affected by the death of the Executive, and shall be deemed
transferred to such beneficiary or legal representative.
(b) DISABILITY.
(1) In the event of the Executive's disability, as hereinafter
defined, the Executive shall be entitled to compensation in accordance with the
Company's disability compensation practice for senior executives, including any
separate arrangement or policy covering the Executive, but in all events the
Executive shall continue to receive the Executive's salary at the annual rate in
effect immediately prior to the commencement of disability for a period of not
less that two months from the date on which the disability has been deemed to
occur as hereinafter defined below. Any amounts provided for in this Section
6(b) shall not be offset by other long-term disability benefits provided to the
Executive by the Company. The Options granted pursuant to Section 5(b) shall not
be affected by the disability of the Executive.
2
(2) "Disability," for the purposes of this Agreement, shall be
deemed to have occurred in the event (A) the Executive is unable by reason of
sickness or accident, to perform the Executive's duties under this Agreement for
an aggregate of 90 days in any twelve-month period or (B) the Executive has a
guardian of the person or estate appointed by a court of competent jurisdiction.
Termination due to disability shall be deemed to have occurred upon the first
day of the month following the determination of disability as defined in the
preceding sentence.
Anything herein to the contrary notwithstanding, if, following a
termination of employment hereunder due to disability as provided in the
preceding paragraph, the Executive becomes reemployed, whether as an Executive
or a consultant to the Company, any salary, annual incentive payments or other
benefits earned by the Executive from such reemployment shall offset any salary
continuation due to the Executive hereunder commencing with the date of
re-employment.
(c) TERMINATION BY THE COMPANY FOR CAUSE.
(1) Nothing herein shall prevent the Company from terminating
Employment for "Cause," as hereinafter defined. The Executive shall continue to
receive salary only for the period ending twenty (20) Days after the date of
such termination. Any rights and benefits the Executive may have in respect of
any other compensation shall be determined in accordance with the terms of such
other compensation arrangements or such plans or programs.
(2) "Cause" shall mean those actions or events specified below
in subsections (A) through (D) to the extent the same occur, or the events
constituting the same take place, subsequent to the date of execution of this
Agreement: (A) Committing or participating in an injurious act of gross neglect
or embezzlement against the Company; (B) committing or participating in any
other injurious act or omission wantonly, willfully, recklessly or in a manner
which was grossly negligent against the Company, monetarily or otherwise; (C)
engaging in a criminal enterprise involving moral turpitude; or (D) conviction
of an act or acts constituting a felony under the laws of the United States or
any state thereof. No actions, events or circumstances occurring or taking place
at any time prior to the date of this Agreement shall in any event constitute or
provide any basis for any termination of this Agreement for Cause. Any other
termination shall be deemed a termination "Other than for Cause."
(3) Notwithstanding anything else contained in this Agreement,
this Agreement will not be deemed to have been terminated for Cause unless and
until there shall have been delivered to the Executive a notice of termination
stating that the Executive committed one of the types of conduct set forth in
this Section 6(c) contained in this Agreement and specifying the particulars
thereof and the Executive shall be given a forty-five (45) day period to cure
such conduct, if possible.
(d) Termination by the Company Other than for Cause. The foregoing
notwithstanding, the Company may terminate the Executive's employment for
whatever reason it deems appropriate; provided, however, that in the event such
termination is not based on Cause, as provided in Section 6(c) above, the
Company may terminate this Agreement upon giving three months' prior written
notice. During such three-month period, the Executive shall continue to perform
the Executive's duties pursuant to this Agreement, and the Company shall
continue to compensate the Executive in accordance with this Agreement. The
Executive will receive, at the Executive's option, either (A) a lump sum equal
to the "Compensation and Benefits," as hereinafter defined, for the remaining
balance of the Term of this Agreement, at the then current rate, reduced to
present value, as set forth in Section 280G of the Internal Revenue Code or (B)
for the remaining balance of the Term of this Agreement, from and after the date
of any such termination, the Company shall on the last day of each calendar
month pay to the Executive such "Compensation and Benefits," which shall be an
amount equal to (Y) One Hundred percent (100%) of the Executive's compensation
and benefits set forth in Section 5, which shall specifically include the Base
Salary and Executive Benefits (the "Compensation and Benefits"), on the date of
any such
3
termination, divided by (Z) twelve (12); provided, however, that if (i) there is
a decrease in the Executive's Compensation and Benefits of more than five (5%)
percent prior to termination for any reason Other than for Cause, and (ii) the
Executive is terminated without cause, the Compensation and Benefits shall be as
existed immediately prior to such a decrease. The Executive will be entitled to
continued Compensation and Benefits coverage and credits as provided in Section
5 or to reimbursement for the cost of providing the Executive with comparable
benefit coverage during the term in which the Executive is receiving payments
from the Company after termination pursuant to Section 6(d). Such benefit
coverage will be offset by comparable coverage provided to the Executive in
connection with subsequent employment.
(e) VOLUNTARY TERMINATION. In the Event the Executive terminates the
Executive's employment on the Executive's own volition, except as provided in
Section 6(f), prior to the expiration of the Term of this Agreement, including
any renewals thereof, such termination shall constitute a voluntary termination
and in such event the Executive shall be limited to the same rights and benefits
as provided in connection with a termination for Cause as provided in Section
6(c).
(f) CONSTRUCTIVE TERMINATION OF EMPLOYMENT. If the Executive so
elects, a termination by the Company without Cause under Section 6(d) shall be
deemed to have occurred upon the occurrence of one or more of the following
events without the written consent of the Executive:
(1) a significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached to
Executive's position as described in Section 3; or
(2) a change in Executive's principal office to a location
outside the Palm Beach-Stuart-Broward-Dade County, Florida area; or
(3) a material breach of the Agreement by the Company;
(4) or a material reduction of the Executive's benefits under
any employee benefit plan, program or arrangement (for Executive individually or
as part of a group) of the Company as then in effect or as in effect on the
effective date of the Agreement, which reduction shall not be effectuated for
similarly situated employees of the Company; or
(5) failure by a successor company to assume the obligations
under the Agreement.
Anything herein to the contrary notwithstanding, the Executive
shall give written notice to the Board of Directors of the Company that the
Executive believes an event has occurred which would result in a Constructive
Termination of the Executive's employment under this Section 6(f), which written
notice shall specify the particular act or acts, on the basis of which the
Executive intends to so terminate the Executive's employment, and the Company
shall then be given the opportunity, within fifteen (15) days of its receipt of
such notice to cure said event, provided, however, there shall be no time period
permitted to cure a second or subsequent occurrence under the Section 6(f)
(whether such second occurrence be of the same or a different event specified in
subsections (1) through (5) above).
7. INDEMNIFICATION. The Executive shall continue to be covered by the
Articles/Certificate of Incorporation and/or the Bylaws of the Company with
respect to matters occurring on or prior to the date of termination of the
Executive's employment with the Company, subject to all the provisions of
Delaware and federal law and the Certificate of Incorporation and Bylaws of the
Company then in effect. Such reasonable expenses, including attorneys' fees,
that may be covered by the Certificate of Incorporation and/or Bylaws of the
Company shall be paid by the Company on a current basis in accordance with such
provision, the Company's Certificate of Incorporation and Delaware law. To the
4
extent that any such payments by the Company pursuant to the Company'
Certificate of Incorporation and/or Bylaws may be subject to repayment by the
Executive pursuant to the provisions of the Company's Certificate of
Incorporation or Bylaws, or pursuant to Delaware or federal law, such repayment
shall be due and payable by the Executive to the Company within three (3) months
after the termination of all proceedings, if any, which relate to such repayment
and to the Company's affairs for the period prior to the date of termination of
the Executive's employment with the Company and as to which Executive has been
covered by such applicable provisions.
8. WITHHOLDING. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Executive or the Executive's
estate or beneficiaries shall be subject to the withholding of such amounts, if
any, relating to tax and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation. In
lieu of withholding such amounts, the Company may accept other arrangements
pursuant to which it is satisfied that such tax and other payroll obligations
will be satisfied in a manner complying with applicable law or regulation.
9. NOTICES. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Executive to
the Executive's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the first paragraph of this Agreement, or at such other place as it may
designate.
10. WAIVER. Unless agreed in writing, the failure of either party, at
any time, to require performance by the other of any provisions hereunder shall
not affect its right thereafter to enforce the same, nor shall a waiver by
either party of any breach of any provision hereof be taken or held to be a
waiver of any other preceding or succeeding breach of any term or provision of
this Agreement. No extension of time for the performance of any obligation or
act shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
11. COMPLETENESS AND MODIFICATION. This Agreement constitutes the
entire understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the Employment Agreement. This Agreement may be amended, modified, superseded or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties or, in the case of a waiver, by the party to be charged.
12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
13. BINDING EFFECT/ASSIGNMENT. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Executive but shall be assignable by
the Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliates controlled by or under common
control with the Company.
14. GOVERNING LAW. This Agreement shall become valid when executed and
accepted by Company. The parties agree that it shall be deemed made and entered
into in the State of Florida except where the General Corporation Law of the
State of Delaware would specifically apply. Anything in this Agreement to the
contrary notwithstanding, the Executive shall conduct the Executive's business
in a lawful manner and faithfully comply with applicable laws or regulations of
the state, city or other political subdivision in which the Executive is
located.
5
15. FURTHER ASSURANCES. All parties hereto shall execute and deliver
such other instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
16. HEADINGS. The headings of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
17. SURVIVAL. Any termination of this Agreement shall not, however,
affect the ongoing provisions of this Agreement, which shall survive such
termination in accordance with their terms.
18. SEVERABILITY. The invalidity or unenforceability, in whole or in
part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
19. ENFORCEMENT. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs.
20. VENUE. Company and Executive acknowledge and agree that the U.S.
District for the Southern District of Florida, or if such court lacks
jurisdiction, the 15th Judicial Circuit (or its successor) in and for Palm Beach
County, Florida, shall be the venue and exclusive proper forum in which to
adjudicate any case or controversy arising either, directly or indirectly, under
or in connection with this Agreement and the parties further agree that, in the
event of litigation arising out of or in connection with this Agreement in these
courts, they will not contest or challenge the jurisdiction or venue of these
courts.
21. CONSTRUCTION. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ ALL OF THE TERMS
OF THIS AGREEMENT, UNDERSTANDS THE AGREEMENT, AND AGREES TO ABIDE BY ITS TERMS
AND CONDITIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of date
set forth in the first paragraph of this Agreement.
EVOLVE ONE, INC.
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxxx, President
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
XXXXX X. XXXXXXXX
6
