EMPLOYMENT AGREEMENT
This
Agreement, dated as of January 3, 2006 (the “Effective
Date”),
is
between Xxxxxx Xxxxxxxx (the “Executive”),
SuperStock Inc., a corporation formed under the laws of the State of Florida
(the “SuperStock”)
and
a21, Inc., a corporation formed under the laws of the State of Texas
(“a21”
or
the
“Company”).
W
I T N E S S E T H:
WHEREAS,
the Company desires to employ the Executive, and the Executive is willing to
render services to the Company, on the terms and subject to the conditions
hereinafter set forth.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants, agreements
and promises hereinafter set forth, the parties hereto covenant and agree as
follows:
1. EMPLOYMENT.
The
Company shall employ the Executive as its Chief Financial Officer and Vice
President and as Chief Financial Officer and Executive Vice President of
SuperStock, and the Executive hereby accepts such employment upon the terms
and
subject to the conditions hereinafter set forth, commencing on the Effective
Date and continuing until terminated pursuant to Paragraph 4 hereof (the
“Employment
Period”).
2. DUTIES.
(a) The
Executive shall report to SuperStock’s Board of Directors (the “Board”)
through its Chief Executive Officer and a21’s Board of Directors (the
“a21
Board”)
through its Chief Executive Officer. The Executive shall perform and discharge
diligently and faithfully such duties as may be assigned to him from time to
time by the Board and the a21 Board as are customary for the position of Chief
Financial Officer. The Executive shall be based in the Jacksonville, Florida
metropolitan area, but his position will require reasonable travel outside
of
such area.
(b) The
Executive shall devote his full business time, attention, skills and energies
to
the performance of his duties hereunder and to the promotion of the business
of
the Company, consistent with such duties, and shall not during the Employment
Period be employed or engaged in any other business activity, whether or not
such activity is pursued for gain, profit or other pecuniary advantage;
provided, however, that this shall not be construed as preventing the Executive
from i) investing his personal assets in businesses which do not compete with
the Company, ii) engaging in not-for-profit and civic activities that do not
interfere with the Executive’s duties, or iii) investing in publicly traded
securities of any company as long as Executive is not an affiliate, as defined
by applicable securities laws, in a competitor.
3. COMPENSATION.
(a) Salary.
For
services rendered by the Executive hereunder during the Employment Period,
the
Company shall pay him a base salary (the “Salary”)
at the
annual gross rate of One Hundred Fourteen Thousand Dollars ($114,000). An
employment review will take place on an annual basis. Any increases in the
Salary rate shall be determined by the Chief Executive Officers of SuperStock
and a21 after the employment review.
(b) Intentionally
left blank.
(c) Stock
Options.
Subject
to final approval of the a21 Board, the Executive shall be entitled to receive,
as soon as practicable following the Effective Date, nonqualified stock options
in accordance with the terms of the a21 stock option plan and the standard
stock
option agreement thereunder; provided, however, that such options shall provide
the Executive with the right to purchase 165,000 common shares of a21 at a
purchase price per common share equal to the closing market price on the day
prior to the a21 Board’s approval. The options shall vest in equal portions on
each of June 30, 2006, December 31, 2006, June 30, 2007 and December 31, 2007.
All options shall immediately vest upon a change in control.
(d) Benefits.
During
the Employment Period, SuperStock shall provide the Executive with any medical
insurance, 401(k), pension, vacation or other employee benefits made available
to similarly situated executives of the Company from time to time in accordance
with the terms of the Company’s standard benefits plans and policies.
Notwithstanding the foregoing, the Executive will receive four (4) weeks
vacation per year.
(e) Expense
Reimbursement.
The
Executive is authorized to incur reasonable expenses related to the performance
of his duties under this Agreement in accordance with budgets and guidelines
established by the Company from time to time or otherwise approved by the Chief
Executive Officer of the Company. The Company shall promptly reimburse the
Executive for all such expenses in accordance with its expense reimbursement
policy in effect from time to time. In
addition, the Company shall reimburse the Executive for up to Fifteen Thousand
Dollars ($15,000) of relocation and transition lodging expenses. The relocation
expenses will be reimbursed at such time the Executive establishes a principal
residence in the Jacksonville, Florida metropolitan area. Such relocation
expenses may include selling broker commissions on home sold, the cost to
transport personal furnishings to new home, and any closing costs on purchase
of
new home (“Relocation Expense”). During the first six-months of the Employment
Period, the Company may directly pay or otherwise will reimburse the Executive
for any transition lodging expenses as incurred.
(f) Taxes.
All
payments and benefits provided to the Executive hereunder shall be reported
as
taxable income to the extent required by law and shall be subject to applicable
income and payroll withholding taxes.
4. TERM
AND TERMINATION.
(a) The
term
of this Agreement (the “Employment
Period”)
shall
commence on the Effective Date and continue for thirty-six (36) months unless
terminated earlier in accordance with this Paragraph 4.
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(b) Termination
Without Cause.
Either
party hereto may terminate this Agreement and the Executive’s employment for any
reason at any time during the Employment Period, effective upon sixty (60)
days
written notice to the other party. In the event the Executive gives written
notice to terminate this Agreement within the first six (6) months, the
Executive shall repay to the Company on a pro rata basis any Relocation Expense
(if notice is in first month, 6/6’s to if notice is in sixth month, 1/6). In the
event the Company terminates this Agreement and the Executive’s employment
without Cause (as hereinafter defined), the Company shall pay to the Executive
(i) any unpaid Salary accrued as of the date of termination, (ii) any unused
vacation days accrued as of the date of termination, and (iii) if written notice
is given on or prior to June 30, 2006 or the Executive has not moved to the
Jacksonville metropolitan area, Salary for a period equal to 50% of period
employed from the Effective Date to the date of written notice, but not greater
than three (3) months Salary, or if written notice is given after June 30,
2006
and the Executive has already moved to the Jacksonville metropolitan area,
the
lesser of 1) the Salary due for any remaining term of this Agreement, and 2)
the
Salary for a period of six (6) months following the end of the Employment Period
- in either case in installments in accordance with the Company’s ordinary
payroll practices. In addition, solely for purposes of determining the portion
of any Stock Options under Paragraph 3(c) that have vested, the shares or
options that would have vested on the vesting date next succeeding the date
of
termination of employment, but for the termination without Cause, shall be
vested as of the date of the termination of Executive’s employment. The
Executive shall not be entitled to any further payments or benefits except
as
required by any federal or state law requiring continuation of benefits and
except as may be provided in any stock option agreement.
(c) Termination
for Cause.
The
Company may terminate this Agreement and the Executive’s employment for Cause
(as hereinafter defined) at any time, effective immediately upon giving the
Executive written notice of such termination. As used herein, the term
“Cause”
shall
mean any of the following events:
(i) the
Executive’s conviction of or plea of guilty or nolo contendere, or no contest to
a misdemeanor involving moral turpitude (which is likely to have an adverse
effect on the Company or the Executive’s ability to perform his duties
hereunder) or a felony which may result in a term of imprisonment;
(ii) the
Executive’s breach of this Agreement or willful failure to carry out the lawful
directives of the Board or the a21 Board consistent with Paragraph 2(a) hereof
(provided the Company has given the Executive advance written notice specifying
the nature of such breach or failure to carry out the lawful directives of
the
Board or the a21 Board and a period of at least fifteen (15) days to cure such
breach or failure); or
(iii) the
Executive’s (A) willful gross misconduct, including, without limitation,
dishonesty, fraud or theft, or (B) willful bad faith act or failure to act
that
is injurious to the business or reputation of the Company.
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In
the
event of termination for Cause, the Company shall pay to the Executive any
unpaid Salary and any unused vacation days accrued as of the date of
termination, and the Executive shall not be entitled to any further payments
or
benefits except as required by any federal or state law requiring continuation
of benefits and except as may be provided in any stock option agreement, as
the
case may be.
(d) Death.
If the
Executive dies during the Employment Period, this Agreement and the Executive’s
employment shall terminate as of the date of his death. The Company shall pay
to
the Executive’s estate any unpaid Salary and any unused vacation days accrued as
of the date of termination, and the Executive’s estate shall not be entitled to
any further payments or benefits pursuant to Paragraph 3 except as required
by
any federal or state law requiring continuation of benefits and except as may
be
provided in any stock option agreement, as the case may be.
(e) Disability.
If the
Executive is incapacitated by accident, sickness or otherwise so as to render
him mentally or physically incapable of performing the services required of
him
under this Agreement (referred to herein as a “Disability”)
for
(i) a period of ninety (90) consecutive days or (ii) for an aggregate of one
hundred twenty (120) business days during any twelve (12) month period, the
Company may terminate this Agreement and the Executive’s employment effective
immediately after the expiration of either of such periods, upon giving the
Executive written notice of such termination. Notwithstanding the foregoing
provision, if it is determined by the Company that the Executive has a
“disability”
as
defined under the Americans with Disabilities Act, the Executive’s employment
shall not be terminated on the basis of such disability unless it is first
determined by the Company after consultation with the Executive that there
is no
reasonable accommodation which would permit the Executive to perform the
essential functions of his position without imposing an undue hardship on the
Company.
In
the
event the Executive is determined to have a Disability hereunder and receives
payments under any disability plan maintained by the Company for its employees
or under any other arrangement maintained by the Company for the Executive,
such
payments shall reduce and offset any Salary payable to the Executive pursuant
to
Paragraph 3 hereof, to extent permitted under such plan or arrangement. In
the
event of termination pursuant to this Subparagraph 4(e), the Company shall
pay
to the Executive (i) any unpaid Salary accrued as of the date of termination,
and (ii) any unused vacation days accrued as of the date of termination, and
the
Executive shall not be entitled to any further payments or benefits pursuant
to
Paragraph 3 except as required by any federal or state law requiring
continuation of benefits and except as may be provided in any stock option
agreement, as the case may be.
5. NON-SOLICITATION.
(a) Non-Solicitation
of Employees.
The
Executive hereby agrees that during the Employment Period and for a period
of
one (1) year thereafter (the “Survival
Period”),
he
shall not, directly or indirectly through any other individual, person or
entity, employ, solicit, persuade or induce any individual, who is, or was
at
any time during the last twelve (12) months of the Executive’s employment by the
Company, an employee of the Company to terminate or refrain from renewing or
extending his or her employment by the Company or to become employed by or
enter
into a contractual relationship with the Executive or any other individual,
person or entity. For the purposes of Paragraphs 5, 6 and 7 of this Agreement
the “Company”
shall
be deemed to include the Company and each of its Affiliates. For the purposes
hereof, Affiliates shall mean with respect to any person, any person directly
or
indirectly controlling, controlled by, or under common control with, such other
person at any time during the period for which the determination of affiliation
is being made.
4
(b) Non-Solicitation
of Suppliers or Vendors.
The
Executive hereby agrees that during the Employment Period and the Survival
Period he shall not, directly or indirectly through any other individual, person
or entity, solicit, persuade or induce any individual, person or entity which
is, or at any time during the Employment Period was, a supplier of any product
or service to the Company, or vendor of the Company (whether as a distributor,
agent, commission agent, employee or otherwise), to terminate, reduce or refrain
from renewing or extending his, her or its contractual or other relationship
with the Company.
(c) Non-Solicitation
of Customers.
The
Executive hereby agrees that during the Employment Period and the Survival
Period he shall not, directly or indirectly through any other individual, person
or entity, solicit, persuade or induce any individual, person or entity which
is, or at any time during the Employment Period was, a customer of the Company
to terminate, reduce or refrain from renewing or extending its contractual
or
other relationship with the Company in regard to the purchase of products or
services manufactured, marketed or sold by the Company, or to become a customer
of or enter into any contractual or other relationship with the Executive or
any
other individual, person or entity in regard to the purchase of products or
services similar or identical to those manufactured, marketed or sold by the
Company.
6. CONFIDENTIALITY.
The
Executive agrees that during the Employment Period, and thereafter, he shall
not
divulge to anyone, other than as necessary in the performance of his duties
hereunder or as required by law or legal process, confidential information
of
the Company, its affiliates or its customers, including, without limitation,
know-how, trade secrets, customer lists, costs, profits or margin information,
markets, sales, pricing policies, operational methods, plans for future
development, data, drawings, samples, processes or products and other
information disclosed to the Executive or known by him as a result of or through
his employment by the Company, which is not generally known in the businesses
in
which the Company is engaged and which relates directly or indirectly to the
Company’s products or services or which is directly or indirectly useful in any
aspect of the Company’s business. In the event the Company is bound by a
confidentiality agreement with a customer, supplier or other party regarding
the
confidential information of such customer, supplier or other party, which
provides greater protection than specified above in this Paragraph 6, the
provisions of such other confidentiality agreement shall be binding upon the
Executive and shall not be superseded by this Paragraph 6. Upon the termination
of the Executive’s employment hereunder or at any other time upon the Company’s
request, the Executive shall deliver forthwith to the Company all memoranda,
notes, records, reports, computer disks and other documents (including all
copies thereof) containing such confidential information.
7. NON-COMPETITION.
The
Executive hereby agrees that during the Employment Period and the Survival
Period, the Executive shall not, directly or indirectly, anywhere in the entire
United States, own, manage, operate, control or participate in the ownership,
management, operation or control of, or be connected as an officer, employee,
partner, director, independent contractor or in any other capacity with, or
have
any financial interest in, or aid or assist anyone else in the manufacture,
sale
or representation of products or the provision of services identical or similar
to the products and services manufactured, sold, represented or provided by
the
Company, and which products or services are marketed to the same customer base
as the products or services offered by the Company, at any time during the
Employment Period or the Survival Period, or which are included in any business
plans of the Company in existence and under consideration at the time of
termination and of which Executive was aware.
5
8. REMEDIES.
The
Executive acknowledges and agrees that the Company’s remedy at law for a breach
or threatened breach of any of the provisions of Paragraphs 5, 6 or 7 of this
Agreement would be inadequate and, in recognition of that fact, in the event
of
a breach or threatened breach by the Executive of any of the provisions of
Paragraphs 5, 6 or 7 of this Agreement, it is agreed that in addition to its
remedy at law, the Company shall be entitled to appropriate equitable relief
in
the form of specific performance, preliminary or permanent injunction, temporary
restraining order or any other appropriate equitable remedy which may then
be
available. Notwithstanding any provision of this Agreement to the contrary,
it
is expressly understood and agreed that, although the Executive and the Company
consider the restrictions contained in Paragraphs 5, 6 and 7 to be reasonable
for the purpose of preserving the Company’s goodwill and other proprietary
rights, if a final judicial determination is made by a court having jurisdiction
that the time and scope of the restrictions in such Paragraphs is an
unreasonable or otherwise unenforceable restriction against the Executive,
the
provisions of such Paragraphs shall not be rendered void but shall be deemed
amended to apply as to the maximum time and scope permitted and to such other
extent as the court may determine to be reasonable.
9. REPRESENTATION/WARRANTY.
The
Executive represents and warrants that he is not bound by the terms of a
confidentiality agreement or non-competition agreement or any other agreement
with a former employer or other third party which would preclude him from
accepting employment by the Company or which would preclude him from effectively
performing his duties for the Company. The Company represents and warrants
that
it has all requisite corporate power and authority to consummate the
transactions contemplated by this Agreement and that this Agreement is binding
on the Company and enforceable against the Company in accordance with its terms.
10. NOTICES.
Any
notices or other communications required to be given pursuant to this Agreement
shall be in writing and shall be deemed given: (i) upon delivery, if by hand;
(ii) after two (2) business days if sent by express mail or air courier; (iii)
four (4) business days after being mailed (seven (7) business days for
international mailings), if sent by registered or certified mail, postage
prepaid, return receipt requested; or (iv) upon transmission, if sent by
facsimile (provided that a confirmation copy is sent in the manner provided
in
clause (ii) or clause (iii) of this Paragraph 10 within thirty-six (36) hours
after such transmission), except that if notice is received by facsimile after
5:00 p.m. on a business day at the place of receipt, it shall be effective
as of
the following business day. All communications hereunder shall be delivered
to
the respective parties at the following addresses:
If
to the
Company or a21:
0000
Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention:
Chairman, Board of Directors
with
a
copy to:
6
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxxxxxxx, Esq.
If
to the
Executive:
Xxxxxx
Xxxxxxxx
[use
home
address]
or
to
such other address as the person to whom notice is given may have previously
furnished to the others in writing in the manner set forth above.
11. GOVERNING
LAW/JURISDICTION.
This
Agreement shall be governed by and construed in accordance with the law of
the
State of Florida, regardless of the law that might otherwise govern under
applicable principles of conflicts of laws thereof. The parties hereto hereby
irrevocably consent to the exclusive jurisdiction of the state or federal courts
sitting in Jacksonville, Florida in connection with any controversy or claim
arising out of or relating to this Agreement, or the negotiation or breach
thereof, and hereby waive any claim or defense that such forum is inconvenient
or otherwise improper. Each party hereby agrees that any such court shall have
in persona jurisdiction over it and consents to service of process in any matter
authorized by Florida law.
12. SEVERABILITY.
Whenever possible, each provision or portion of any provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or portion of any provision of this
Agreement is found to be invalid or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such finding or construction shall
not affect the remainder of the provisions of this Agreement, which shall be
given full force and effect without regard to the invalid or unenforceable
provision, and such invalid or unenforceable provision shall be modified
automatically to the least extent possible in order to render such provision
valid and enforceable, but only if the provision as so modified remains
consistent with the parties’ original intent.
13. WAIVER
OF BREACH.
The
waiver by either party hereto of a breach of any provision of this Agreement
by
the other party shall not operate or be construed as a waiver of any subsequent
breach.
14. SUCCESSORS
AND ASSIGNS.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, successors, representatives and assigns.
This
Agreement is assignable to any legal successor of the Company. This Agreement
may not be assigned by the Executive.
15. ENTIRE
AGREEMENT.
This
Agreement constitutes the entire understanding and agreement between the Company
and the Executive with regard to all matters contained herein and incorporates
and supersedes all prior agreements between the parties concerning the
employment of the Executive by the Company. There are no other agreements,
conditions or representations, oral or written, express or implied, with regard
thereto. This Agreement may be amended only in writing, signed by both
parties.
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IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date set forth
above.
| SUPERSTOCK, INC. | EXECUTIVE | ||
| /s/ Xxxxxx X. Xxxxx | /s/ Xxxxxx Xxxxxxxx | ||
|
|
|
||
| Name:
Xxxxxx X. Xxxxx Title: Chief Executive Officer |
Xxxxxx
Xxxxxxxx
|
| a21, INC. | |||
| /s/ Xxxxxx X. Xxxxx | |||
|
|
|||
| Name:
Xxxxxx X. Xxxxx Title: Chief Executive Officer |
8
