EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT
("Agreement") is made effective the 24th day of May,
2003,
by and
between Imagitrend, Inc., a Florida corporation ("Employer"), and Xxxxxxx
X.
Xxxxxxxxx, an individual ("President").
PREMISES
WHEREAS,
the Employer desires to secure the services of the President pursuant to
the
terms and conditions of an employment agreement; and
WHEREAS,
the President has the requisite skills and experience in managing a company
in a
business such as Employer and desires to enter into a written agreement to
serve
as President of Employer;
AGREEMENT
NOW
THEREFORE, with the above provisions incorporated herein by this reference,
in
consideration of the mutual promises contained herein, the benefits to be
derived by each party hereunder and other good and valuable consideration,
the
sufficiency of which is hereby expressly acknowledged, the parties hereto
mutually agree as follows:
1. Employment.
The
Employer employs the President and the President accepts employment as President
of Employer upon the terms and conditions set forth in this
Agreement.
2. Term.
The
term of this Agreement shall commence May
24, 2003,
and
shall continue for an initial term of five (5) years. This Agreement may
be
renewed at the end of the term for an additional term upon written notice
of
renewal, at President’s sole option. If there is no written notice of renewal,
then the employment will continue on a month to month basis subject to
termination by either party upon ninety (90) days written notice to the other
party.
3. Compensation.
Employer agrees to compensate the President in the amount of $225,000.00
for
each year that President serves as President of the Employer. This compensation
will be paid in cash.
4. Stock
Bonuses.
In
addition to the cash compensation noted above, President shall be given an
initial signing bonus of One Million Five Hundred Thousand (1,500,000)
restricted shares of the Preferred Stock of Imagitrend, Inc.. These shares
("Compensation Shares") will be valued at par value of $0.001 per share,
since
there are no significant operations of Employer at this time, and there is
no
trading market or other comparable sales of the Preferred Stock at this early
stage of Employer’s development. President shall, in addition to the initial
signing bonus set forth above, be entitled to 500,000 restricted shares of
Imagitrend, Inc. common stock each year as an added stock bonus, commencing
on
May 24, 2005. President shall also be entitled to such additional bonuses
as
Employer desires to give President, in Employer’s sole discretion, on at least
an annual basis, taking into consideration the President’s productivity and the
profitability of the Employer. This bonus is to be paid annually.
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5. Securities
Compliance
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a)
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President
understands that Employer will not register the Compensation Shares
under
the Securities Act of 1933, as amended ("Securities Act") or any
state
securities law, but will instead issue the Compensation Shares
in reliance
upon exemptions from the registration and prospectus delivery requirements
for transactions not involving a public offering. President further
understands that the Compensation Shares will therefore be "restricted
securities" within the meaning of the Securities Act and Rule 144
promulgated under the Securities Act ("Rule 144"). President represents
that he is fully aware of the limitations on the resale of restricted
securities set forth in Rule 144. President acknowledges that if
Rule 144
is available, President may make only routine sales of the Compensation
Shares and in limited amounts, in accordance with Rule 144. If
Rule 144 is
not available, Employer may refuse to transfer the Compensation
Shares
unless President or President's transferee furnishes Employer with
either:
i) a "no action" letter from the Securities and Exchange Commission;
ii)
an opinion of counsel that the transfer is proper; or iii) establishes,
to
Employer's satisfaction, than an exemption from registration is
available.
Employer's registrar and transfer agent will maintain a stop transfer
order against the Compensation Shares. All certificates representing
the
Compensation Shares, and any and all certificates issued in replacement
thereof or in exchange therefor, shall bear a legend, in substantially
the
following form, which President has read and
understands:
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"THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("THE SECURITIES ACT"), AND ARE "RESTRICTED
SECURITIES" WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER THE SECURITIES
ACT.
THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, THE
AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF
EMPLOYER."
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b)
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In
order to provide documentation for Employer's reliance upon exemptions
from registration and prospectus delivery requirements, President
represents and warrants:
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i.
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President
will acquire the Compensation Shares for investment purposes only
and not
with a view to public resale or
distribution.
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ii.
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President
will not sell, transfer or otherwise dispose of the Compensation
Shares
for value except in compliance with the Securities Act and the
rules
promulgated thereunder.
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iii.
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President's
knowledge and experience in financial and business matters in general,
and
investments in particular, are such that President is capable of
evaluating the merits of acquiring the Compensation
Shares.
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iv.
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President
understands the speculative nature of the Compensation Shares and
the
possibility of loss and is capable of bearing the economic risks
of
receiving the Compensation Shares.
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v.
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President
has had an opportunity to ask questions of and obtain answers from
Employer's representatives concerning the financial status of Employer
and
the Compensation Shares. President has also had the opportunity
to examine
Employer's disclosure documents that President believes are necessary
to
make an economic decision to accept the Compensation
Shares.
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6. Duties.
During
the term of this Agreement, President shall serve as the President of the
Employer. President shall perform the tasks and have the rights, powers and
obligations normally associated with the office of President. President agrees
to serve in such offices or positions with Employer that Employer's board
of
directors ("Board of Directors") shall reasonably request.
7. Extent
of Services/Conduct.
The
President may perform services for other organizations and volunteer for
one or
more charitable organizations provided that, in the reasonable judgment of
the
Board of Directors, such services do not interfere with and are not inconsistent
with the President's duties and obligations under this Agreement.
8. Expenses.
The
President may incur reasonable expenses for promoting the Employer's business,
including reasonable expenses for entertainment, travel, and similar items.
The
Employer will reimburse the President for all such expenses upon the President's
periodic presentation of an itemized account of such expenditures.
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9.
Fringe
Benefits.
In
addition to the compensation to the President under Paragraphs
3 and 4,
the
President shall be entitled to participate in any benefit plans adopted by
the
Employer, including, without limitation, health, retirement, disability,
and
life insurance benefit plans, but only to the extent that the President has
satisfied the eligibility requirements of the respective plans.
10.
Termination
Upon Sale of Business.
Employer may terminate this Agreement upon sixty (60) days written notice
to the
President upon the happening of any of the following events:
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a)
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The
sale, by the Employer, of substantially all of its assets to a
single
purchaser or group of associated
purchasers;
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b)
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The
sale, exchange, or other disposition to a single entity or group
of
entities under common control in one transaction or series of related
transactions of greater than fifty percent (50%) of the outstanding
shares
of the Employer's common stock;
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c)
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A
decision by Employer to terminate its business and liquidate its
assets;
or
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d)
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The
merger or consolidation of the Employer in a transaction in which
the
shareholders of the Employer receive less than fifty percent (50%)
of the
outstanding voting shares of the new or surviving
corporation.
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In
the
event of such termination, President shall be entitled to additional pay
as
follows: 2 years’ cash salary at the rate of $225,000 per year, payable in equal
monthly payments over the 24 months following the termination, with such
payments commencing on the 1st
day of
the month immediately following the termination. In addition to the cash
salary
due, President is also entitled to an additional payment of Two Million
(2,000,000) shares of Preferred Stock, all of such shares due and payable
on the
day of termination.
11.
Death
During Employment.
If the
President dies during the term of this Agreement, then the Employer shall
pay to
the designated beneficiary of the President the compensation which would
otherwise be payable to the President up to the end of the month in which
such
death occurs and this Agreement shall be terminated. If no beneficiary
designation has been made by the President, then the compensation due hereunder
shall be paid to the President's estate.
12.
President
Not Restricted by Other Agreement.
The
President hereby expressly represents, warrants, and covenants to the Employer
that he is not bound, in any manner, by any agreement, whether written or
oral,
which would restrict him from performing any duties under this
Agreement.
13.
Survival.
The
provisions of this Agreement including, specifically, the President's
represent-ation, covenants, and agreements set forth in Paragraph
5,
shall
survive the termination of this Agreement.
14.
Indemnification.
Employer shall hold harmless, defend, and indemnify President from all claims,
demands, or causes of action brought, at any time, against President as a
result
of any of the following circumstances: (a) President’s providing services to
Employer; (b) any action or inaction arising from or relating to the President’s
position as President of Employer; or (c) any action taken or which should
have
been taken in the course and scope of President’s employment with Employer, or
which arose from or related to such employment, including all costs for any
judgment, settlement, attorney fees, legal defense, and other expenses related
to same.
14.
Entire
Agreement.
This
Agreement constitutes the entire understanding between the parties and there
are
no covenants, conditions, representations, or agreements, oral or written,
or
any nature whatsoever, other than those herein continued.
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15.
Amendments.
No
amendment, alteration, or modification of this Agreement shall be binding
upon
the parties hereto unless said amendment, alteration, or modification is
in
writing and signed by all parties.
16.
Waiver.
The
waiver of any term, condition, clause, or provision of this Agreement shall
in
no way we deemed or considered a waiver of any other term, condition, clause,
or
provision of this Agreement.
17.
Severability.
If any
term, condition, clause, or provision of this Agreement shall be deemed to
be
void or invalid then that term, condition, clause, or provision shall be
stricken from this Agreement to the extent it is held to be void or invalid,
to
be void or invalid and in all other respects this Agreement shall be valid
and
in full force and operation.
18.
Notices.
Any
notice or other communication required or permitted hereunder shall be sent
by
United States certified mail, postage prepaid, addressed:
if
to the
Employer:
0000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxx 00000
and,
if
to the President:
Xxxxxxx
X. Xxxxxxxxx
0000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxx 00000
or
to
such other person or address designated by the parties to receive notice.
The
date of the notice shall be the date of the mailing.
19.
Additional
Documents.
The
parties hereto agree to execute any and all additional papers and documents
reasonably necessary or appropriate to effectuate the terms of this
Agreement.
20.
Governing
Law.
This
Agreement shall be subject to and governed by the laws of the State of Florida.
Any legal action hereunder shall be properly commenced only in a federal
or
state court of competent jurisdiction in Sarasota County, Florida. The
prevailing party in any such action shall be entitled to recover, in addition
to
any relief or award ordered by the court, a reasonable attorney fee and all
costs of court.
21.
Assignment.
This
Agreement shall not be assignable by any party to this Agreement, except
upon
the written consent of all parties hereto. The President shall not have the
right to pledge, encumber, or dispose of the right to receive any payments
under
this Agreements, which payments and the right thereto are expressly declared
to
be non-assignable and nontransferable and, in the event of any attempted
assignment or transfer, the Employer shall have not further liability
hereunder.
22.
Counterparts.
This
Agreement may be executed in two counterparts, each of which shall be deemed
an
original but both of which together shall constitute one and the same
agreement.
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IN
WITNESS WHEREOF, the
parties hereto have executed this Agreement under seal the day and year first
above written.
Imagitrend,
Inc.
President
___/s/
Xxxxxxx X. Haraburda_____________
__/s/
Xxxxxxx X. Haraburda__________________
By:
_Russell
X. Xxxxxxxxx, President_____
Name
& Title
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