EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of March 2, 2000, by and between SILVERZIPPER
INTERNET, INC., a Florida corporation (the "Company"), and wholly owned
subsidiary of xxxxxxxxxxxx.xxx, Inc., a Nevada corporation ("silverzipper"),
with offices located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0, Xxxx Xxxxx, Xxxxxxx
00000, and XXXX X. XXXXXXXX, residing at 0000 X.X. 00xx Xxx, Xxxx Xxxxx, Xxxxxxx
00000 (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company is the owner and operator of one or more Internet
businesses related to the xxxxxxxxxxxx.xxx website owned by the Company.
WHEREAS, the Company wishes to assure itself of the services of the
Executive for the period provided in this Agreement, and the Executive is
willing to serve in the employ of the Company on a full-time basis for said
period, and upon the other terms and conditions hereinafter provided.
NOW, THEREFORE, the Company and the Executive, intending to be legally
bound, agree as follows:
1. Employment. The Company hereby employs the Executive and the Executive
hereby accepts employment with the Company, all in accordance with the terms and
conditions hereof, for a term commencing on the date hereof and ending (subject
to the provisions of Section 5 hereof) three (3) years thereafter (the "Term").
The Term shall then extend automatically in one (1) year increments, subject to
termination by notice given by either party to the other not less than three (3)
months prior to the commencement of any one year extension.
2. Duties.
2.1 During the Term, the Executive shall be employed by the Company and
shall serve as its President, and shall perform such executive duties and have
such powers relating to the Company, as the Board of Directors may specify from
time to time, which shall be consistent with the position of Chief Executive
Officer. The services will be provided the Executive primarily in the Boca
Raton, Florida area, and the Executive will travel as necessary for meetings
outside of such area.
2.2 During the Term, the Executive shall devote his full business time,
attention and energy to the business and affairs of the Company and shall not
engage, directly or indirectly, in any other business, employment or occupation
except for non-substantial amounts of time related to other investments, and
further, except that during the first six months of the Term, the Executive may
use such time as is required (not in excess of 50%) to complete his
responsibility to another organization.
3. Compensation.
3.1 As compensation for his services and undertakings pursuant to the terms
of this Agreement, the Executive shall receive base compensation at the rate of
One Hundred Fifty Thousand ($150,000) Dollars per year (the "Base
Compensation"). The Base Compensation shall be payable at such regular times and
intervals as the Company customarily pays its employees from time to time. If
and when the base compensation of Xxxx X. Xxxxxxx ("Xxxxxxx"), Chief Executive
Officer of silverzipper is increased above $150,000 per year, the Executive's
Base Compensation shall be similarly increased. If elected as a director of the
Company and /or silverzipper, the Executive shall serve in such capacity without
additional compensation.
3.2 The Executive shall be entitled to performance bonuses equal to 50% of
the performance bonuses that may be granted by silverzipper to Xxxxxxx for
periods during the Term (excluding bonuses related to the consummation of
acquisitions).
3.3 Upon the commencement of the Term, silverzipper shall grant the
Executive an option to purchase 300,000 shares of common stock of silverzipper
at a price of $5.00 per share on silverzipper's standard form of agreement,
which includes adjustments for stock splits, dividends, combinations and
recapitalizations and reorganizations, vesting one-third immediately, one-third
after one year of service hereunder and one-third after two years of service
hereunder.
3.4 The Executive shall have the right to participate, on the same basis as
executive employees of silverzipper, in the silverzipper's employee benefit
programs, if any, including, without limitation, group life, health, accident
and hospitalization insurance programs covering the Executive and his dependents
and disability insurance similar in coverage to that currently provided, and to
a vacation comparable to other executive employees to be taken at mutually
acceptable times.
3.5 The Company shall deduct from the Executive's compensation any Federal,
state or city withholding taxes, social security contributions and any other
amounts which may be required to be deducted or withheld by the Company pursuant
to any federal, state or city laws, rules or regulations.
3.6 The Company shall reimburse the Executive, or cause him to be
reimbursed, for all reasonable out-of-pocket expenses incurred by him in the
performance of his duties hereunder or in furtherance of the business and/or
interests of the Company; provided, however, that the Executive shall have
previously furnished to the Company an itemized account, satisfactory to the
Company, in substantiation of such expenditures.
3.7 The Executive shall receive $500.00 per month as a cash allowance for a
car or other related expense.
4. Indemnification. The Company undertakes, to the extent permitted by law,
to indemnify and hold the Executive harmless from and against all claims,
damages, losses and expenses, including reasonable attorneys' fees and
disbursements, arising out of the performance by the Executive of his duties
pursuant to this Agreement, in furtherance of the Company's business and within
the scope of his employment.
5. Termination.
5.1 If the Executive dies or becomes disabled during the Term, his Base
Compensation and all other rights under this Agreement except for rights under
Section 3.4 shall terminate at the end of the month during which death or
disability occurs. For purposes of this Agreement, the Executive shall be deemed
to be "disabled" if he has been unable to perform his duties for sixty (60)
consecutive days or ninety (90) days in any twelve (12) month period, all as
determined in good faith by the Board of Directors of the Company.
5.2 The Company shall, in the manner described in the last paragraph of
Section 5.3, have the right to terminate the employment of Executive under this
Agreement and Executive shall forfeit the right to receive any and all further
payments hereunder, other than the right to receive any compensation then due
and payable to Executive pursuant to Section 3 hereof through to the date of
termination, if Executive shall have committed any material breach of any of the
provisions or covenants of this Agreement.
5.3 If the Company elects to terminate this Agreement as set forth above,
it shall deliver notice of such intention to the Executive, describing with
reasonable detail, the action or omission of the Executive constituting the act
of default (the "Termination Notice"), and prior to any termination by the
Company of the Executive's employment, the Executive shall first have an
opportunity to cure or remedy such act of default within forty-five (45) days
following the Termination Notice, and if the same is cured or remedied within
such period, such notice shall become null and void.
5.4 In the event the employment of the Executive is terminated by the
Company other than pursuant to Sections 5.1, 5.2 and 5.3 hereof, which shall
include a material failure of the Company to comply with its obligations
hereunder (provided the Company shall first have an opportunity to cure or
remedy such act of default within forty-five (45) days following notice from the
Executive, and if the same is cured or remedied within such period, such notice
shall become null and void) the Company shall continue to be obligated to pay to
Executive the Base Compensation at the rate on the termination date for the
remaining Term of this Agreement. Additionally, all options granted pursuant to
Section 3.3 shall vest immediately and the Restrictive Covenants set forth in
Section 6 shall terminate when the Company ceases to pay Base Compensation to
Executive including, at the option of the Company, a period of one (1) year
after the stated Term, so long as the Base Compensation is paid during such one
(1) year period.
6. Restrictive Covenants.
6.1 Confidential Information; Covenant not to Disclose. The Executive
covenants and undertakes that he will not at any time during or after the
termination of his employment hereunder reveal, divulge, or make known to any
person, firm, corporation, or other business organization (other than the
Company or its affiliates, if any), or use for his own account any customer
lists, trade secrets, or any secret or any confidential information of any kind
used by the Company during his employment by the Company, and made known
(whether or not with the knowledge and permission of the Company, whether or not
developed, devised, or otherwise created in whole or in part by the efforts of
the Executive, and whether or not a matter of public knowledge unless as a
result of authorized disclosure) to the Executive by reason of his employment by
the Company. The Executive further covenants and agrees that he shall retain
such knowledge and information which he has acquired or shall acquire and
develop during his employment respecting such customer lists, trade secrets, and
secret or confidential information in trust for the sole benefit of the Company,
its successors and assigns.
6.2 Covenant Not to Compete; Non-Interference.
6.2.1 The Executive covenants and undertakes that, during the period of
three (3) years from the date hereof, except as provided in Section 9, he will
not, without the prior written consent of the Company, directly or indirectly,
and whether as principal, agent, officer, director, employee, consultant, or
otherwise, alone or in association with any other person, firm, corporation, or
other business organization, carry on, or be engaged, concerned, or take part
in, or render services to, or own, share in the earnings of, or invest in the
stock, bonds, or other securities of any person, firm, corporation, or other
business organization (other than the Company or its affiliates, if any) engaged
in a business in the Continental United States which is in competition with any
of the businesses carried on by the Company (a "Similar Business") except in the
course of his employment hereunder; provided, however, that the Executive may
invest in stock, bonds, or other securities of any Similar Business (but without
otherwise participating in the activities of such Similar Business) if (i) such
stock, bonds, or other securities are listed on any national or regional
securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934; and (ii) his investment does not exceed, in the
case of any class of the capital stock of any one issuer, 5% of the issued and
outstanding shares, or in the case of bonds or other securities, 5% of the
aggregate principal amount thereof issued and outstanding.
6.2.2 The Executive covenants and undertakes that during the Term and for a
period of one (1) year thereafter he will not, whether for his own account or
for the account of any other person, firm, corporation or other business
organization, interfere with the Company's relationship with, or endeavor to
entice away from the Company or silverzipper, any person, firm, corporation or
other business organization who or which at any time during the Term, was an
employee, consultant, agent, supplier, or a customer of, or in the habit of
dealing with, the Company or silverzipper.
6.2.3 If any provision of this Article 6.2 is held by any court of
competent jurisdiction to be unenforceable because of the scope, duration or
area of applicability, such provision shall be deemed modified to the extent the
court modifies the scope, duration or area of applicability of such provision to
make it enforceable.
7. Injunction. It is recognized and hereby acknowledged by the Executive
that a breach or violation by the Executive of any of the covenants or
agreements contained in this Agreement may cause irreparable harm and damage to
the Company hereto, the monetary amount of which may be virtually impossible to
ascertain. As a result, the Executive recognizes and acknowledges that the
Company shall be entitled to an injunction, without posting any bond or security
in connection therewith, from any court of competent jurisdiction enjoining and
restraining any breach or violation of any of the restrictive covenants
contained in Section 6 of this Agreement by the Executive or his associates,
partners or agents, either directly or indirectly, and that such right to
injunction shall be cumulative and in addition to whatever other rights or
remedies the Company may possess. Nothing contained in this Section 7 shall be
construed to prevent the Company from seeking and recovering from the Executive
damages sustained as a result of any breach or violation by the Executive of any
of the covenants or agreements contained in this Agreement, and that in the
event of any such breach, the Company shall avail itself of all remedies
available both at law and at equity.
8. Compliance with Other Agreements. The Executive represents and warrants
to the Company that the execution of this Agreement by him and his performance
of his obligations hereunder will not, with or without the giving of notice, the
passage of time or both, conflict with, result in the breach of any provision of
or the termination of, or constitute a default under, any agreement to which the
Executive is a party or by which the Executive is or may be bound.
9. Budget. The Executive and Silverzipper have approved a budget for the
Company for a period of one year after the date hereof. By the 15th day of each
month commencing March 15, 2000 silverzipper shall have deposited into the
Company's operating account at least $84,000, subject to adjustment as mutually
agreed (the "Section 9 Amount"). The March 15, 2000 payment shall be reduced by
investment funds received by the Company's predecessor after February 15, 2000
and before the date hereof. In the event silverzipper fails to deposit the
Section 9 Amount, within seven (7) days after written notice, the Executive may
terminate this Agreement and the Company shall continue to be obligated to pay
to Executive the Base Compensation at the rate on the termination date for the
remaining Term of this Agreement. Additionally, all options granted pursuant to
Section 3.3 shall vest immediately and the Restrictive Covenants set forth in
Section 6 shall terminate when the Company ceases to pay Base Compensation to
Executive including, at the option of the Company, a period of one (1) year
after the stated Term, so long as the Base Compensation is paid during such one
(1) year period. Within sixty (60) days prior to the commencement of each of the
second and third years of the Term, the Executive and the Company shall approve
a budget for the Company for the forthcoming year. If they fail to do so by such
date, the most recently approved budget shall be followed until such time as
there is approval of a revised budget.
10. Miscellaneous.
10.1 Notices. Any notice or other communication to a party under this
Agreement shall be in writing, and shall be considered given when delivered
personally, or by a recognized overnight delivery company to the party at the
following address or at such other address as the party may specify by notice to
the other in the manner provided for herein:
(a) If to the Company at its address set forth above, with a copy to
Ruskin, Moscou, Xxxxx & Faltischek, P.C., 000 Xxx Xxxxxxx Xxxx, Xxxxxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxx, Esq.; and
(b) If to the Executive: at his address set forth above., with a copy to
Atlas, Xxxxxxxx, Trop & Borkson, 000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000, Xx.
Xxxxxxxxxx, XX 00000, Attention Xxxxxxx Xxxxxx, Esq.
Either party may change the address to which notice may be given by giving
10 days' notice of such change.
10.2 Benefit. This Agreement shall be binding upon and inure to the benefit
of the respective parties hereto and their legal representatives, successors and
assigns. Insofar as the Executive is concerned this Agreement, being personal,
cannot be assigned.
10.3 Validity. The invalidity or unenforceability of any provisions hereof
shall in no way affect the validity or enforceability of any other provision.
10.4. Entire Agreement. The Agreement constitutes the entire Agreement
between the parties, and supersedes all existing agreements between them. It may
only be changed or terminated by an instrument in writing signed by both
parties. The covenants of the Executive contained in Section 6 of this Agreement
shall survive the termination of this Agreement and the expiration of the Term,
subject to Section 10 hereof.
10.5 New York Law to Govern. This Agreement shall be governed by, construed
and interpreted in accordance with the laws of the State of New York without
regard to its conflicts of law principles. Exclusive jurisdiction of any action
or proceeding arising hereunder shall reside in the Federal and New York State
courts located in the City, County and State of New York. The party prevailing
in the dispute shall be entitled to be reimbursed for its reasonable counsel
fees and expenses for the party not prevailing.
10.6 Waiver of Breach. The failure of a party to insist on strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any term of this Agreement. Any waiver hereto must be in writing.
10.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.8 Paragraph Headings. Paragraph headings are inserted herein for
convenience only and are not intended to modify, limit or alter the meaning of
any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and executed
this Agreement as of the day and year first above written.
SILVERZIPPER INTERNET, INC.
By:/s/ Xxxx X. Xxxxxxx
-------------------
/s/ Xxxx X. Xxxxxxxx
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XXXX X. XXXXXXXX, Individually
THE UNDERSIGNED SHALL BE LIABLE,
JOINTLY WITH SILVERZIPPER INTERNET,
INC. FOR PAYMENTS AND OTHER OBLIGATIONS
TO EXECUTIVE UNDER THE PRECEDING
EMPLOYMENT AGREEMENT
XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------
Xxxx X. Xxxxxxx, Chief Executive Officer
