EMPLOYMENT AGREEMENT
THIS AGREEMENT ("the Agreement")
made this first day of April 1999 by and between:
Marina Capital, Inc.,
a Utah Corporation
(hereinafter referred to as "Employer")
and
Xxxxxxx X. Xxxxxx, an individual
(hereinafter referred to as "Employee")
WITNESSETH
WHEREAS, Employer is desirous of employing the Employee as the Chief Operating
Officer of Marina Capital, Inc.; and
WHEREAS, Employee is desirous of being employed by Employer as the Chief
Operating Officer of Marina Capital, Inc.; and
WHEREAS, Employer and Employee have negotiated the terms of this Agreement over
the past several weeks.
NOW, THEREFORE, in consideration of the premises and covenants and Agreements
contained herein, the parties agree as follows:
1. Employment. Employer hereby employs, engages, and hires Employee as the Chief
Operation Officer, and Employee hereby accepts and agrees to such hiring,
engagement and employment. Employee shall in general supervise and control all
of the operations of the Employer. He shall, when present, attend and may
preside at meetings of the shareholders and the Board of Directors. In general,
shall perform all duties relating to operations as may be prescribed by the
Board of Directors, from time to time.
2. Best Efforts of Employee. Employee agrees that he will, at all times
faithfully, industriously, and to the best of his ability, experience, and
talents, perform all of the duties that may be required of and from him pursuant
to the express and implicit terms hereof, to the reasonable satisfaction of
Employer. Such duties shall be rendered in the continental United States, its
Territories, and at such other place or places as the Employer shall in good
faith require of as the interest, needs, business or opportunity may require.
3. Term of Employment. The term of this Agreement shall be for a period of seven
(7) years commencing on November 1, 1996, and terminating October 31, 2003,
subject, however, to prior termination as hereinafter provided. On the
expiration date of this Agreement on October 31, 2003, this Agreement shall be
considered renewed for regular periods of one (1) year or such other period of
time as the parties may agree to, provided neither party submits a notice of
termination.
4. Compensations of Employee. Employer shall pay Employee, and Employee shall
accept from Employer, in full payment for Employee's service hereunder,
compensation at the rate of seventy-five Thousand Dollars ($75,000), in U.S.
Currency, per annum, payable in sums of Six Thousand Two Hundred Fifty Dollars
($6,250) once per month on the first day of each month. The first payment of
Six Thousand Two Hundred Fifty Dollars ($6,250), less Federal, State, Social
Security and other local taxes will be due and payable to Employee on December
1, 1996. The Employer and the Employee on December 1, 1996. The Employer and
the Employee agree that the initial compensation paid by this Agreement is a
minimum rate of payment, which may be increased on the anniversary date by the
Board of Directors.
4.1 Nothing herein shall be construed to prevent the Employer from increasing
the $75,000 per year base salary hereunder during the term of this Agreement, at
the discretion of the Board of Directors.
5. Additional Compensation. The Employer proposes to establish an additional
compensation pool out of the Employer's yearly net profits. The pool will be
made up of a minimum of two hundred thousand dollars ($200,000) or ten percent
(10%) of the Employer's yearly net profits, before taxes, which ever is greater.
The Company will pay Employee three percent (3%) of the Moines or amount in the
pool at the end of the first quarter after the close of Employer's books on an
annual basis. The pool will be established only out of the available revenues
that will not put the Company's liquidity in jeopardy.
5.1. The Board of Directors will review the status of the pool on an annual
basis and make any necessary adjustments, at its sole discretion.
5.2. Employee shall also receive Fifty percent (50%) of all real estate
listings and sales commissions Employee has earned, after deducting employees
monthly salary.
6. Right to Purchase Common Stock. The Employee shall have the right to
purchase common stock of the Employer under the following formula; Each year
within the first sixty (60) days of the anniversary date, starting in 1997,
Employee may purchase up to an amount of stock equal to 5% of the then issued
and outstanding common shares at a price equal to 75% of the book.
7. Other Employment. Employee shall devote all of his time, attention,
knowledge, and skills solely to the business and interest of Employer, and
Employer shall be entitled to all of the benefits, profits or other issues
arising from or incident to all work, services and advise of Employee. Employee
may be permitted to be a partner, officer, director, or stockholder in any other
business, to the extent that the business in question does not create a conflict
of interest with Employer's business and does not detract from the time
necessary to carry on the duties of this Agreement.
8. Recommendations. For Improvement of Operations. Employee shall make
available to Employer all information of which Employee has any knowledge and
shall make all suggestions and recommendations that will be of material benefit
to Employer.
9. Trade Secrets. Employee shall not at any time or in any manner, either
directly or indirectly divulge, disclose or communicate to any person, firm or
Corporation in any manner whatsoever any information concerning any matters
affecting or relating to the business of Employer, including without limitation
to the generality of the foregoing, any of its customers, prices, it obtains or
has obtained from the sale of, or at which it sells or has sold, its properties,
services or any other information concerning the business of Employer, its
manner of operation, its plans, processes, or other data without regard to
whether all of the foregoing matters will be deemed confidential and affect the
effective and successful conduct of the business of Employer, and Employer's
good will, and that any breach of the terms of this paragraph may be considered
as breach of this Agreement.
10. Modification of Contract. No waiver or modification of this Agreement or of
any covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding, arbitration, or litigation between the parties hereto arising out of
or affecting this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing, duly executed as
aforesaid, and the parties further agree that the provisions of this section may
not be modified except as herein set forth.
11. Agreement Outside of Contract. This contract contains the complete
Agreement concerning the employment Agreement between the parties and shall, as
of the effective date hereof, supersede all other Agreements between the
parties. The parties stipulate that neither of them have made any
representation with respect to the subject matter of this Agreement or any
representations including the execution and delivery hereof except such
representations as are specifically set forth herein and each of the parties
hereof acknowledges that he or it has relied on their own judgment in entering
into this agreement.
12. Failure to Pay Employee. The failure of Employer to pay employee his
salary as provided in this Agreement may, in employee's sole discretion be
deemed a breach of this Agreement, and unless such breach is cured within ten
(10) days after written notice thereof to employer, this employment Agreement
shall terminate, including any non-competitive provisions.
13. Vacation and Holidays. Employee shall be entitled to a paid annual
vacation of thirty (30) days. In consultation with Employer, employee may
accumulate or carry forward to the next calendar year any vacation days as are
necessary under the circumstances. In addition to Vacation, the employee shall
have the normal holidays, additional vacation days will be allowed if a vacation
day and a holiday fall on the same day.
14. Reimbursement for Expenses. Employer shall reimburse Employee for
reasonable out-of-pock expenses which employee shall incur in connection with
his services for employer contemplated hereby on the presentation by Employee of
appropriate vouchers, receipts and contemporaneous notes therefor to Employer.
15. Traveling Expenses. Employer will pay Employee's airline fare, hotel, and
entertainment expenses, and other necessary and proper expenses when traveling
on Employer's business within our outside the Continental United States.
16. Expenses for Promoting business of Employer. Employee is encouraged and is
expected, from time to time, to incur reasonable expenses for the promotion of
the business of the Employer, including expenses for home telephone; automobile
and other transportation, social, athletic and civic club memberships for
himself, family members and other necessary business associates participation,
entertainment, travel and similar items. The cost of these business related
expenses shall be borne by the Employer upon presentation to the employer of
itemized expenses receipts or contemporaneous memoranda of such expenses.
17. Expenses for Attendance at Meetings and Seminars. Employee is encouraged
and is expected at such time or times as employee may find necessary, to attend
seminars, professional meetings, conventions, and educational courses, the cost
of travel, registration, tuition, food, lodging for attending these activities
shall be paid by the Employer. Any other costs incurred by Employee in
connection with these activities shall be the expense of the Employee, unless,
there is mutual agreement with employer and it is determined that any additional
cost of Employee's attendance should be authorized as an expense of employer.
Should any such additional expenses of attendance be authorized, the Employee
shall be reimbursed therefor upon presenting to Employer an itemized receipt or
contemporaneous memoranda of such expenses.
18. Furnishing of Support. Employer shall furnish Employee the necessary
equipment, computer services, support personnel, experts, office space and any
other thing or personnel that may be necessary to perform his duties as Chief
Operating Officer. In addition, the employer shall furnish an automobile
parking space, personal financial counselor and attorney's services at
Employer's expense.
19. Fringe Benefits and Incentive Compensation Plans. Employee shall be
entitled to participate with other officers of the Employer in all fringe
benefits or incentive compensation plans authorized and adopted from time to
time by Employer, including, without limitation; a pension plan, a profit
sharing plan, a medical reimbursement plan, a group life insurance plan, a
disability plan, etc.
20. Automobile Expenses. Employer will pay Employee $800 per month for the use
of Employee's automobile in the course of performing his Employer's business,
only.
21. Illness and Disability. Employee shall be entitled to twenty (20) days sick
leave in each calendar year of employment or if he has not completed a year, the
number of days shall be calculated on a pro-rata basis if he is unable to
perform his duties by reason of illness or accident not resulting in Employee
becoming "totally disabled," without any adjustment in his compensation. Unused
sick leave may only be carried forward to the next calendar year with agreement
of Employer. If employee is unable to perform his duties by reason of total
disability, his salary may be reduced in accordance with the following schedule
during the continuance of such disability.
For six months he shall receive eighty percent (80%) of his monthly salary for
the next six months of disability, he shall receive seventy percent (70%) of his
monthly salary.
Thereafter, the Employer will have had in place a long term disability policy
which will guarantee fifty percent (50%) of the Employee's highest monthly
salary for the term of his disability in determining periods of disability any
new periods of disability, shall be deemed to be a continuation of the prior
period of disability if the Employee has not returned to work for at least one
(1) month between such periods of disability. If employee becomes disabled, but
the disability ceased before termination of his employment with Employer,
Employee's salary shall be reinstated on the date the disability ends.
22. Nonabatement of Salary in Event of Illness. It is understood and agreed
that the Employee shall not be considered as having breached this Agreement of
Employment in the event that he becomes unable to perform services for the
Employer because of sickness or disability, however, subject to paragraph 17,
and in the event Employee's salary shall not xxxxx or in any other way be
curtailed.
23. Termination by Death. If the employee dies before his employment with
Employer is otherwise terminated, payments and/or benefits to which he would
then have been entitled to at the time of his death, shall be paid over to his
beneficiary and if no beneficiary survives him, the entire amount due him shall
be paid to his estate.
24. Payment of Professional Dues. Employer shall pay all dues of Employee in
any professional association to which the Employee may find it necessary to
belong in order to carry out his duties, and promote the business of Employer.
In addition, Employer will pay for the purchase of professional periodicals,
newspapers, and magazines which Employee may find necessary in order to carry
out his duties.
25. Medical & Life Insurance. Employer shall provide employee with a major
medical insurance policy. The cost of said policy shall be borne by Employer.
The medical insurance policy shall include but not be limited to dental care,
and psychiatric counseling. In addition there shall be no deductible as it
relates to the insurance policy. The Employer shall arrange and pay for the
medical insurance for the Employee's dependents. Employer shall also provide a
paid life insurance policy for Employee and spouse. The minimum benefit for the
beneficiary shall be no less than $250,000.
26. Deduction for Taxes. Employer shall deduct from the compensation payable
to Employee under all of the provisions of this employment Agreement, social
security taxes, and all federal, state and municipal taxes and charges as now
may be in effect or which may hereafter be enacted or required.
27. Performance and Termination - Employment Period. Subject, to the
performance of the covenants and agreement made by the employer herein, the
employee will perform his duties during the Employment Period in good faith and
will observe faithfully the covenants and agreements made by him herein. The
Employee shall not be discharged during the Employment Period except for
substantial and serious cause involving dishonesty or material breach of express
obligations of this Agreement within the control of the Employee. The discharge
of the Employee for reasons other than those specified in the preceding sentence
shall be of no force and effect. No breach or default by the employee shall be
deemed to have occurred thereunder unless written notice setting forth with
specificity the alleged incidents of default thereof shall have been given by
the Employer to the Employee and the Employee shall have failed to cure the
breach or default within sixty (60) days after he receives the written notice
If Employee has performed or complied with all of the material terms and
conditions hereof, and the Employer terminates the Employee, the employer will
be bound to pay Employee for the unexpired term of his seven (7) year contract
or a minimum of two (2) years.
27.1. Conversely, in the event that the Employer has failed to perform or comply
with any material term or condition hereof, the employee may terminate this
Agreement by giving the employer 30 day's written notice. In such event the
Employer will be bound to pay Employee whatever monies may still be owed to
Employee for the unexpired term of his seven (7) year contract.
28. Remedies For Breach Of Employment Contract. Any breach or evasion of any
term of the Agreement by either party will cause immediate and irreparable
injury to the other party and will authorize recourse by such party to
injunctive relief and/or specific performance, as well as to all other legal or
equitable remedies to which such party may be entitled.
29. Liquidated Damages Breach of Employer. Because damages would be difficult
to estimate, Employer agrees to pay Employee in case employer shall violate this
contract of services by dismissing employee, without just cause before the end
of the seven (7) year term hereof, as liquidated damages and not as a penalty
for such breach, a sum of money equal to the amount of salary earned from the
date of such breach to the end of the term hereof, as if Employee had been
permitted fully to perform the terms of this Agreement.
30. Conduct Of Parties After Termination of Employment. Following any notice
of termination of employment by Employer. Employee shall fully cooperate with
employer in all matters relating to the winding up of his pending work on behalf
of the Employer and the orderly transfer of any such pending work. Employer,
however, will refrain from using Employee's name on any brochure, advertising
material, or in any way use Employee's name in any discrediting manner.
Employee, likewise, will not use employer's name in any discrediting manner.
31. Covenant Not to Compete. The Employer and Employee agree that for a period
of three (3) years following the termination of this Agreement, with cause, the
Employee will not enter the employ of any person firm or corporation engaged in
the same line of business in competition with the employer in any state in which
the Employer has been or is associated with in any manner, nor himself engaged
in the same line of business in competition with the Employer in any state in
which the Employer has been or is associated with in any manner, nor himself
engaged during such period, directly or indirectly, as principal, agent or
Employer in any business in competition with the Company in such state or
states. The Employer and Employee recognize that the services to be performed
by the Employee will require confidentiality as aforesaid.
32. Severability. All agreements and covenants contained herein are severable
and in the event that any of them, should be held to be invalid by a competent
court, this contract shall be interpreted as if such invalid agreement or
covenants were not contained herein.
33. Choice of Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special proceedings
hereunder be construed tin accordance with and under and pursuant to the laws of
the State of Utah and that in any action, special proceedings or other
proceeding that may be brought arising out of connection with, or by reason of
this Agreement, the laws of the State of Utah shall be applicable and shall
govern to the exclusion of the law of any other forum, without regard to the
Jurisdiction in which any action or special proceeding may be instituted.
34. Legal Proceedings. Employer agrees to pay for or otherwise indemnify,
defend and hold harmless Employee for any expenses that might occur concerning
any law suits that Employee has to defend while in his normal course of
business. Employer will retain Counsel on his behalf and pay for any expenses
thereof. In addition, Employer agrees to provide Employee with an errors and
omissions insurance policy for the duration of the Employment Agreement.
35. Litigation. Employer stipulates that there is no pending or threatened
litigation against Employer and that there is no basis known to exist for any
such litigation which might result in an impediment in Employee performing his
duties. In addition, Employer stipulates that there is no governmental
investigation pending or threatened against Employer or any of its subsidiaries,
including inquiries, citations or complaints by any federal, state or local
administration; and that there are no outstanding orders, decrees, stipulations
affecting Employer and its subsidiaries.
36. Representations Not Misleading. All representations made by Employer in
this Agreement are true, complete and accurate in all material respects. That
there are no material facts necessary to make such representations not
misleading have been omitted.
37. Headings. The section and subsection headings contained in this Agreement
are for reference purposes only and shall not effect the meaning or
interpretations of this Agreement.
38. Notices. Any notices required or permitted herein shall be in writing and
shall be delivered personally or sent by United States, first-class, certified
mail, postage prepaid:
a) If to Employer, address to Marina Capital Inc., 349 South, 000 Xxxx, Xxxxx
000, Xxxx Xxxx Xxxx, XX 00000.
b) If to employee, address to 0000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000.
39. Entire Agreement Amendments. All negotiations relative to the matter
contemplated by this Agreement are merged herein and there are no other
understandings or agreements relating to the matters and things herein set forth
other than those incorporated in this Agreement. No provisions of this
Agreement shall be altered, amended, revoked, or waived except by an instrument
in writing signed by the party sought to be charged with such amendment,
revocation or waiver.
40. No Third Party Benefits. This Agreement is not intended, and shall not be
deemed or construed, to confer any rights, powers or privileges on any person,
firm, corporation or other entity not a party hereto.
The terms Employer and employee as used throughout this Agreement shall refer
not only to the parties hereto, but also to their respective successor or
assigns.
41. Confidential Treatment. Each party agrees to the use of all reasonable
efforts to keep this document and the information herein in confidence and
should only be revealed upon mutual agreement of the parties.
42. Renewal of Agreement. The parties to this Agreement may extend the
provisions and terms of this Agreement on a year to year basis provided that
said extension is entered into in writing and duly executed to reflect the
agreement of the parties.
43. The Indemnification of Employee Pending the Incorporation of the Company.
Employer hereby agrees that the employer will indemnify Employee from and
against any expenses or liabilities incurred by Employee while performing his
duties on behalf of Employer.
44. Attorney's Fees. If any term of this Agreement is breached, the party
adjudicated by the court to be in wrongfull breach shall bear the reasonable
attorney's fees of the party not in breach of the Agreement.
IN WITNESS WHEREOF, the parties have executed this employment Agreement on the
date and year first above written.
MARINA CAPITAL, INC.
by:
Employer
XXXXXXX X. XXXXXX
by:
Employee
