EMPLOYMENT AGREEMENT
Exhibit 10.11
EMPLOYMENT AGREEMENT, effective as of July 13, 2010 (this “Agreement”), between Xxxxx Xxxxxxxx, an individual residing at ________ (the “CEO”), and mBeach Software, Inc., a Florida corporation with an office currently at 000 Xxxxxxx Xxx Xxxxxx, Xxxxxxx, XX (the “Company”).
WITNESSETH :
WHEREAS, the Company and the Board of Directors of the Company desire to memorialize the engagement of the CEO as its Chief Executive Officer and the CEO desires to accept such engagement subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein, the parties hereto agree as follows:
ARTICLE I
POSITION; DUTIES; TERM
1.1 Position. The Company hereby engages the CEO as the Chief Executive Officer of the Company, which engagement the CEO hereby accepts, all in the capacity and on the terms and conditions hereinafter set forth.
1.2 Duties.
(a) During the Term (as defined below), the CEO shall provide services as directed by the Board of Directors of the Company (the “Board”).
(b) In his capacity as Chief Executive Officer, the CEO shall be a senior executive officer of the Company with principal responsibility for controlling the operations of the Company, and he shall perform such duties for the Company as are consistent with the foregoing. The CEO agrees to use his best efforts to supply such services in a professional and diligent manner, and to devote as much time and effort as is necessary to perform such services. The services to be rendered to the Company by the CEO hereunder shall include, without limitation, the following: certification and necessary approval of the Company’s products, developing and implementing international manufacturing, sales, marketing and distribution strategies; conducting market research and assessing the competitive environment to identify international opportunities; developing business plans for new business development; reviewing current manufacturing, sales and distribution strategies and proposing changes to facilitate rapid growth; consulting with management on developing appropriate marketing strategies; proposing strategies to improve operational efficiencies of international manufacturing and distribution; analyzing sales, marketing and distribution goals, and suggesting improvements so as to meet the company’s strategic growth objectives; advising management on establishing manufacturing agreements and developing a network of international distribution partners; and preparing growth forecasting reports and presenting findings to management with respect to domestic and international markets.
1
(c) The services to be performed by the CEO shall be commensurate with the position of the CEO as the most senior executive officer of the Company. In this connection, during the Term (i) the CEO shall not render services to or for any other person, firm, corporation or business and (ii) shall have no interest directly or indirectly in any other person, firm, corporation or business whose business is directly or indirectly related to or competitive with the business of the Company; provided, however, the CEO may own, directly or indirectly, solely as an investment, securities of any entity which are traded on any national securities exchange or which are admitted to quotation on The NASDAQ Stock Market Inc. if the CEO (a) is not a controlling person of, or a member of a group which controls, such entity and (b) does not, directly or indirectly, own one percent or more of any class of securities of such entity. Notwithstanding the foregoing, so long as it does not interfere with his engagement hereunder, the CEO may attend to outside investments and serve as a director, trustee or officer of or otherwise participate in charitable and civic organizations and serve as director of corporations whose business is unrelated to the business of the Company and continue to pursue his other business interests.
1.3 Term. The term of this Agreement shall be eighteen (18) months, commencing as of the date set forth above, unless this Agreement is terminated earlier in accordance with the terms hereof (the “Term”). Notwithstanding anything contained herein to the contrary, (i) the CEO can terminate his engagement hereunder at any time hereafter upon sending written notice of termination to the Company at least thirty (30) days prior to the termination and (ii) the Company can terminate the employment by the Company as CEO and any other positions he may be serving with the Company at any time hereafter upon sending written notice of termination to the CEO at least six (6) months prior to the termination.
1.4 Renewal. No less than 30 days prior to the expiration of the Term, the parties agree to use their best efforts to negotiate in good faith a renewal of the terms of this Agreement.
ARTICLE II
SALARY
2.1 Annual Base Salary. During the Term, the annual base salary (the “Base Salary”) to be paid by the Company to the CEO shall be Five Thousand Dollars ($5,000) per month, payable upon receipt of an invoice to be received by the Company from the CEO.
2
2.2 Increase in Base Salary. The Base Salary shall be increased to (A) $10,000 per month upon the earlier to occur of (a) the Company raising an aggregate of $300,000 and (b) the Company achieving gross revenues of no less than $750,000 and (B) $15,000 per month upon the earlier to occur of (a) the Company raising an aggregate of $750,000 and (b) the Company achieving gross revenues of no less than $1,500,000. In the event that the conditions of A and/or B occur prior to the Term, then the amount of the Base Salary shall be as set forth therein for all purposes of this Agreement.
2.3 Bonus. In addition to the Base Salary, the CEO shall be eligible for a bonus (the “Bonus”) of 3% of the Company’s net profits before taxes. The amount of the net profits before taxes shall be confirmed by the independent public accountants of the Company.
ARTICLE III
BENEFITS
3.1 Business Expenses The Company, upon presentation by the CEO of appropriate documentation, shall reimburse the CEO for all reasonable and necessary business expenses incurred by the CEO in connection with the performance of his duties under this Agreement. The CEO shall also be entitled to lease a car with a maximum amount of $__ per month lease payment and all cell phone expenses up to a maximum of $__ per month.
3.2 Additional Benefits. The CEO shall be entitled to participate in any pension or profit sharing plans, group health, accident or life insurance plans, group medical and hospitalization plan, and other similar benefits as may be available to the employees of the Company. The CEO shall assist the Company in adopting the proper plans for the Company.
ARTICLE IV
TERMINATION
4.1 Termination without Cause. The CEO's engagement hereunder may be terminated by the Company or by the CEO without Cause as provided in Section 1.3 above.
4.2 Termination with Cause. Notwithstanding anything contained herein to the contrary, the CEO's engagement hereunder may be terminated by the Company for Cause (hereafter defined) at any time upon notice from the Company to the CEO. For purposes hereof, “Cause” shall mean any one of the following: (i) willful and continuing disregard of his responsibilities or material breach by the CEO of this Agreement, which continues for 20 days after delivery to the CEO of notice thereof or (ii) fraud, embezzlement, conviction of a felony or serious crime, violation of ethics code or other serious misconduct.
3
ARTICLE V
REPRESENTATION; NON-COMPETITION; CONFIDENTIALITY
5.1 CEO Representation. The CEO represents that the CEO’s execution of this Agreement and the performance of his duties required hereunder will neither be a breach of any other consultant, employment, or other agreement nor a breach of any non-competition or similar agreement.
5.2 Non-Competition. (a) The CEO agrees that during the Term and for the period of one (1) year thereafter, he will not engage, directly or directly, either as principal, agent, consultant, proprietor, creditor, stockholder, director, officer or employee, or participate in the ownership, management, operation or control of any business which directly or indirectly competes with the business of the Company. The CEO acknowledges and agrees that the current market for the Company's business extends throughout the world and that it is therefore reasonable to prohibit the CEO from competing with the Company anywhere in such territory. This Section shall not apply to the CEO’s ownership of less than five percent (5%) of the capital stock of a company having a class of capital stock which is traded on any national stock exchange or on the over-the-counter market.
(b) During the Term and for the period of one (1) year thereafter, the CEO agrees that he will not, directly or indirectly, (i) solicit, divert or recruit or encourage any of the employees of the Company, or any person who was an employee of the Company during the Term, to leave the employ of the Company or terminate or alter their contractual relationship in a way that is adverse to the Company's interests, (ii) solicit or divert business from the Company, or assist any person or entity in doing so or attempting to do so or (iii) cause or seek to cause any person or entity to refrain from dealing or doing business with the Company or assist any person or entity in doing so or attempting to do so.
5.3 Confidential Information. (a) The CEO agrees that he shall hold in strict confidence and shall not at any time during or after his engagement with the Company, directly or indirectly, (i) reveal, report, publicize, disclose, or transfer any Confidential Information (as described below) or any part thereof to any person or entity, (ii) use any of the Confidential Information or any part thereof for any purpose other than in the course of his duties on behalf of the Company, or (iii) assist any person or entity other than the Company to secure any benefit from the Confidential Information or any part thereof. All Confidential Information (regardless of the medium retained) and all abstracts, summaries or writings based upon or reflecting any Confidential Information in the CEO's possession shall be delivered by the CEO to the Company upon request therefor by the Company or automatically upon the expiration of the Term or termination of this Agreement.
(b) For purposes of this Agreement, "Confidential Information" shall mean any information relating to the business, operations, affairs, assets or condition (financial or otherwise) of the Company which is not generally known by non-company personnel, or is proprietary or in any way constitutes a trade secret (regardless of the medium in which information is maintained) which the CEO develops or which the CEO obtains knowledge of or access to through or as a result of the CEO’s relationship with the Company. Confidential Information specifically includes, without limitation, business and marketing plans, financings, cost and pricing information, supplier information, all source code, system and user documentation, and other technical documentation pertaining to the hardware and software programs of the Company, including any proposed design and specifications for future products and products in development, and all other technical and business information considered confidential by the Company. Confidential Information shall not include any information that is generally publicly available or otherwise in the public domain other than as a result of a breach by the CEO of his obligations hereunder. For purposes of this Agreement, information shall not be deemed Confidential Information if (i) such information is available from public sources, (ii) such information is received from a third party not under an obligation to keep such information confidential, or (iii) the CEO can conclusively demonstrate that such information had been independently developed by the CEO.
4
5.4 Remedies. The CEO agrees and acknowledges that the foregoing restrictions and the duration and the territorial scope thereof as set forth in this Sections 5.2 and 5.3 are under all of the circumstances reasonable and necessary for the protection of the Company and its business. In the event that the CEO shall breach any of the provisions of Sections 5.2 or 5.3, in addition to and without limiting or waiving any other remedies available to the Company, at law or in equity, the Company shall be entitled to immediate injunctive relief in any court, domestic or foreign, having the capacity to grant such relief, to restrain any such breach or threatened breach and to enforce the provision of this Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Entire Agreement. This Agreement constitutes the entire understanding between the Company and the CEO with respect to the subject matter hereof and supersedes any and all other previous or contemporaneous agreements or understandings between the CEO and the Company concerning the subject matter hereof, all of which are merged herein.
6.2 Successors. This Agreement shall be binding upon and inure to the benefit of the CEO and his heirs and personal representatives, and the Company and its successors and assigns.
6.3 Notices. All notices and other communications required or permitted hereunder shall be delivered personally, sent via facsimile, certified or registered mail, return receipt requested, or next day express mail or overnight, nationally recognized courier, postage prepaid with proof of receipt, to the address or telephone number (in the case of facsimile) set forth above. Such addresses and/or telephone numbers may be changed by notice given in the manner provided herein. Any such notice shall be deemed given (i) when delivered if delivered personally, (ii) the day after deposit with the express or courier service when sent by next day express mail or courier, (iii) five (5) days after deposit with the postal service when sent by certified or registered mail, or (iv) when sent over a facsimile system with answer back response set forth on the sender's copy of the document.
5
6.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to choice of law principles.
6.5 Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement executed by the Company, as approved by the Board, and the CEO.
6.6 Headings. The section headings herein are inserted for the convenience of the parties only and are not to be construed as part of the terms of this Agreement or to be taken into account in the construction or interpretation of this Agreement.
6.7 Counterparts. This Agreement may be executed in counterparts and by facsimile, each of which shall be deemed to be an original but both of which together will constitute one and the same instrument.
6.8 Independent Counsel. The CEO and the Company agree and acknowledge that this Agreement is the product of negotiation between sophisticated individuals, each of whom were either represented by counsel or had an opportunity to be so represented, and each of whom had an opportunity to participate in and did participate in, the drafting of each provision hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the day and year first above written.
| mBEACH SOFWARE, INC. | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | President | |
| /s/ Xxxxx Xxxxxxxx | ||
| Xxxxx Xxxxxxxx | ||
6
