EXECUTIVE EMPLOYMENT AGREEMENT
THIS
AGREEMENT is made as of the 30th day of October 2007, between Future Now Group,
Inc., a Nevada corporation (the “Company” or “FNGI”), and Xxxxxxx Xxxxxxxxx (the
“Executive”). This Agreement automatically becomes effective (the “Effective
Date”) upon the Company closing on the reverse merge (the “Transaction”) with
Future Now, Inc. (“FNI”).
INTRODUCTION
The
Company and the Executive desire to enter into an employment agreement embodying
the terms and conditions of the Executive’s employment.
NOW,
THEREFORE, the parties agree as follows:
1. Definitions
(a) “Affiliate”
means
any person, firm, corporation, partnership, association or entity that, directly
or indirectly or through one or more intermediaries, controls, is controlled
by
or is under common control with the Company.
(b) “Applicable
Period”
or
“Employment
Period”
means
the period of the Executive’s employment
(c) “Area”
means
the United States.
(d)
“Board
of Directors”
means
the Board of Directors of the Company.
(e) “Business
of the Company”
means
any business that carries on the business of a securities brokerage
house.
(f) “Cause”
means
the occurrence of any of the following events: (i) willful and continued
failure (other than such failure resulting from his incapacity during physical
or mental illness) by the Executive to substantially perform his duties with
the
Company or an Affiliate; (ii) conduct by the Executive that amounts to willful
misconduct or gross negligence; (iii) any act by the Executive of fraud,
misappropriation, dishonesty, embezzlement or similar conduct against the
Company or an Affiliate; (iv) commission by the Executive of a felony or
any other crime involving dishonesty; (v) the habitual and disabling use by
the Executive of alcohol or drug; (vi) failure by the Executive to maintain
licenses required under federal and state securities laws or (vii) a material
breach of the Agreement by the Executive.
(g) “Competing
Business”
means
any person, firm, corporation, joint venture or other business entity which
is
engaged in the Business of the Company (or any aspect thereof) within the
Area.
1
(h) “Confidential
Information”
means
data and information relating to the business of the Company (which does not
rise to the status of a Trade Secret) which is or has been disclosed to the
Executive or of which the Executive became aware as a consequence of or through
its relationship to the Company and which has value to the Company and is not
generally known to its competitors. Confidential Information shall not include
any data or information that has been voluntarily disclosed to the public by
the
Company (except where such public disclosure has been made by the Executive
without authorization) or that has been independently developed and disclosed
by
others, or that otherwise enters the public domain through lawful means.
(i) “Disability”
means
the inability of the Executive to perform any of his duties hereunder due to
a
physical, mental, or emotional impairment, as determined by an independent
qualified physician (who may be engaged by the Company), for a ninety (90)
consecutive day period or for an aggregate of one hundred eighty (180) days
during any three hundred sixty-five (365) day period.
(j) “FNGI”
means
Future Now Group, Inc, a Nevada corporation and public reporting company traded
on the over-the-counter bulletin board.
(k) “Termination
Date”
means
the date which corresponds to the first to occur of (i) the death or Disability
of the Executive, (ii) the last day of the Term as provided in Section 4(a)
below or (iii) the date set forth in a notice given pursuant to Section 4(b)
below.
(l) “Trade
Secrets”
means
information including, but not limited to, technical or nontechnical data,
formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product plans or lists
of
actual or potential customers or suppliers which (i) derives economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and (ii) is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy. The provisions
in this Agreement restricting the use of Trade Secrets shall survive termination
of this Agreement for so long as is permitted under Connecticut
law.
2. Terms
and Conditions of Employment.
(a) Employment.
The
Company hereby employs the Executive as its Chief
Executive Officer and President and
the
Executive accepts such employment with the Company in such capacity. The
Executive shall report to the Chief Executive Officer and shall have such
authority and responsibilities and perform such duties as shall reasonably
be
assigned to the Executive from time to time by the Board of
Director.
(b) Exclusivity.
Throughout the Executive’s employment hereunder, the Executive shall devote
substantially all the Executive’s time, energy and skill during regular business
hours to the performance of the duties of the Executive’s employment (vacations
and reasonable absences due to illness excepted), shall faithfully and
industriously perform such duties, and shall diligently follow and implement
all
management policies and decisions of the Company. However, it is understood
that
from time to time the Executive may have individual speaking engagements or
otherwise be involved as an advisory or board member of other company and
received periodic additional compensation from such activities.
2
3. Compensation.
(a) Base
Salary.
In
consideration for the Executive’s services hereunder, the Company shall pay to
the Executive an annual base salary in the amount of $150,000 initially. The
Executive’s annual base salary shall be reviewed at least annually by the
Company, and the Company may increase the Executive’s annual base salary from
time to time and not decrease it. The Company shall pay annual base salary
in
accordance with the normal payroll payment practices of the Company and subject
to such deductions and withholdings as law or policies of the Company, from
time
to time in effect, may require.
(b) Annual
Bonus.
In
addition to the payment under Section 3(a) hereof, the Executive shall be
entitled to participate in a bonus pool (the “Bonus Pool”) for employees of the
group responsible for managing and growing the operations of the Company (the
“Future Now Management Group”). At all times during the term that the Executive
is employed with the Company shall he have a voting right as to the decisions
and participate in the Future Now Management Group Bonus Pool. The composition
of Future Now Group shall be determined by the Board from time to time and
at
during the term of this agreement include the Executive. The Bonus Pool for
a
particular Fiscal Year shall be equal to, 5% for the first year, 7.5% for the
second Year and 10% for the third year, of the Pre-Bonus Pre-Tax Profits (as
defined below), less the deductions specified in Section 3 (b)(1) below. Amounts
paid to the Executive out of the Bonus Pool, including any deferred bonus
amounts as hereinafter provided, are collectively referred to herein as the
“Bonus Award.” To the extent necessary to avoid the limitation on the federal
tax deductibility of the Bonus Award for any year under Section 162 (m) of
the
Internal Revenue Code of 1986, as amended (the “Code”), payment thereof may, at
the sole discretion of the Board, or a committee thereof, be deferred only
to
the extent necessary to avoid exceeding such Section 162 (m) limitation to
the
first taxable year of the Company in which the payment would be fully
deductible; provided, however, that the Bonus Award or portion thereof shall
be
deferred only in the event that the compensation of other executives of the
Company whose compensation is subject to Section 162 (m) is deferred under
circumstances similar to those of the Executive. Except as provided in the
previous sentence, the Bonus Award for a Fiscal Year shall be payable as soon
as
practicable after the release of the Company’s audited financial statements for
such Fiscal Year, but in no event later than ninety (90) days after the end
of
such Fiscal Year. In the case of deferral as described above, amounts deferred
shall be credited with such interest and on such other items as the Company
and
the Executive shall mutually agree. All deferred Bonus Awards shall be payable
within thirty (30) days after the beginning of the first Fiscal Year in which
such amount may be paid.
3
| (1) |
“Pre-Bonus
Pre-Tax Profits” shall mean the amount, if any, determined in accordance
with Generally Accepted Accounting Principles (“GAAP”) consistently
applied from year to year, by which the total consolidated revenues
of the
FNGI for a particular Fiscal Year exceed all direct expenses incurred
in
generating such revenues and in the operation and conduct of the
business
during that Fiscal Year. Such expenses include, but are not limited
to;
(a) all salaries and non-bonus compensation paid to all employees
of the
Company, including the Executive, which includes related payroll
taxes,
insurance and other benefits, any profit-sharing contributions made
on
behalf of such employees, the cost of any stock options or other
equity
awards made to such employees and any amounts paid to such employees
upon
termination of employment; (b) rent (at the Company’s cost per square
foot); (c) telephones; (d) quotation, pricing and portfolio management
and
client accounting systems; (e) computer hardware and software; (f)
electronic and other office equipment; (g) sales commissions payable
to
Company sales personnel and third-parties; (h) consulting and solicitation
fees; (i) business travel and entertainment determined in accordance
with
the Company’s policies; (j) legal and professional fees; and (k)
membership dues and subscriptions
|
| (2) |
For
each Fiscal Year during the Employment Period, the following amounts
shall
be deducted from the Bonus Pool prior to the award of bonuses to
any
employees, including the Executive; (a) any minimum bonus paid
to other
members of the Future Now Management Group with respect to the
particular
Fiscal Year and (b) any Bonus Shortfall (as defined below) from
prior
Fiscal Years.
|
| (3) |
The
amount remaining in the Bonus Pool after making the deductions specified
above shall be distributed by the Executive to employees of the Future
Now
Management Group, as determined by those with voting rights, subject
to
the approval of the Board and, where appropriate a Committee thereof.
In
the event that, after making the necessary deductions specified above,
the
Bonus Pool for a particular Fiscal Year is not sufficient to pay
bonuses
to employees of the Future Now Management Group other than the Minimum
Bonus Award paid, the Company may determine, in its sole discretion,
to
pay bonuses to such employees. The amount by which the total bonuses
paid
to employees of the Future Now Management Group, including the Executive
and the other employees entitled to guaranteed minimum bonuses exceeds
the
amount of the Bonus Pool (the “Bonus Shortfall”) shall be deducted from
the Bonus Pool for the next Fiscal Year.
|
|
(4)
|
“Fiscal
Year” shall mean the year beginning on each July 1st
and ending on each June 30th
of
the following year.
|
(c) Stock
Based Compensation.
Stock
options or other stock-based compensation will be awarded to the Executive
at
the discretion of the Board of Directors, or a committee thereof, and pursuant
to the Company’s stock option plan(s). Furthermore, as detailed in the Appendix
A to this Agreement, the Executive will be entitled to certain performance
based
stock grants.
4
(d) Vacation.
The
Executive shall be entitled to a minimum of three weeks vacation per year in
accordance with the Company’s policy, to be taken at times mutually convenient
to the Company and the Executive.
(e) Expenses.
The
Executive shall be entitled to be reimbursed in accordance with the policies
of
the Company, as adopted and amended from time to time, for all reasonable and
necessary expenses incurred by the Executive in connection with the performance
of the Executive’s duties of employment hereunder; provided, however, the
Executive shall, as a condition of such reimbursement, submit verification
of
the nature and amount of such expenses in accordance with the reimbursement
policies from time to time adopted by the Company.
(f) Benefits.
The
Executive shall be entitled to fully-paid medical and dental benefits (including
full family, if so elected) as senior management. Furthermore, the Executive
will also be entitled to other benefits that generally may be made available
to
executive employees of the Company from time to time, including, once
established, long-term disability and 401K
Benefits.
The Executive will be entitled to a car allowance of $500 per month and any
tax
implications will be handled by grossing up such payment.
4. Term,
Termination and Termination Payments.
(a) Term.
The
term of this Agreement (the “Term”) shall commence as of the effective date
provided for above (the “Commencement Date”) and shall expire on the third
(3rd)
anniversary of the Commencement Date with automatic extensions for successive
additional one-year terms, as provided herein. Ninety (90) days before the
end
of the second (2nd)
year
and ninety (90) days before the end of each year thereafter, the Agreement
is
extended for an additional one year period unless either party gives prior
notice of termination. In the event prior notice of termination is given, this
Agreement shall terminate at the end of the remaining Term then in
effect.
(b) Termination.
This
Agreement and the Executive’s employment by the Company hereunder may only be
terminated before expiration of the Term (i) by mutual agreement of the
Executive and the Company; (ii) by the Company for Cause, (iii) by the
Executive for any reason; or (iv) by the Company or the Executive due to the
Disability of the Executive. This Agreement shall also terminate immediately
upon the death of the Executive. Notice of termination by either the Company
or
the Executive shall be given in writing and shall specify the basis for
termination and the effective date of termination.
(c) Effect
of Termination.
Upon
termination of this Agreement and the Executive’s employment hereunder, the
Company shall have no further obligation to the Executive or the Executive’s
estate with respect to this Agreement, except for payment of salary and bonus
amounts, if any, accrued pursuant to Section 3(a) or 3(b) hereof and unpaid
at
the Termination Date, and termination payments, if any, set forth in Section
4(e), subject to the provisions of Section 12 hereof. Section 4(e) does not
apply to a termination of employment due to the Executive’s Disability or death.
Nothing contained herein shall limit or impinge any other rights or remedies
of
the Company or the Executive under any other agreement or plan to which the
Executive is a party or of which the Executive is a beneficiary.
5
(d) Survival.
The
covenants of the Executive in Sections 5, 6 and 7 hereof shall survive the
termination of this Agreement and the Executive’s employment hereunder and shall
not be extinguished thereby.
(e) Termination
Payments.
Except
as set forth in Section 4(b)(i) hereof, upon termination of the Executive’s
employment by the Company without Cause, the Company shall be obligated to
continue to pay the Executive his annual base salary in effect as of the
Termination Date for three (3) months after termination of employment. Payments
made under this Section 4(e) shall be paid as a salary continuation. In the
event the Company appoints a new Executive with the same title and
responsibilities of the Executive, the Executive shall have the right to
terminate the Employment Period upon thirty (30) days’ written notice to the
Company and receive full benefits under Section 4 (c) above.
5. Agreement
Not to Compete and Not to Solicit Customers.
(a) Agreement
Not to Compete.
The
Executive agrees that commencing on the Commencement Date and continuing through
the Applicable Period, he will not (except on behalf of or with the prior
written consent of the Company, which consent may be withheld in Company’s sole
discretion), within the Area, either directly or indirectly, on the Executive’s
own behalf, or in the service of or on behalf of others, engage in or provide
services of a similar type or nature as he performs for the Company to any
Competing Business. For purposes of this Section 5, the Executive
acknowledges and agrees that the Business of the Company is conducted in the
Area. . During the Non-Competition period (as defined below), the Executive
shall not (except as an officer, director, employee, agent or consultant of
the
Company or any of its Affiliates), directly or indirectly, own, manage, operate,
join, or have a financial interest in, control or participate in the ownership,
management, operation or control of, or be employed as an employee, agent or
consultant, or in any other individual or connection with, or be otherwise
connected in any manner with any business or enterprise, wherever located,
which
is similar to or competitive with the Company’s core disciplines, the business
carried on or planned by the Company, or the business carried on by the
Executive at any time during the one year immediately preceding the termination
of the Employment Period, unless the Executive has obtained the prior written
consent of the Board, provided, however, that the foregoing restriction shall
not be construed to prohibit the ownership by the Executive of not more than
five percent (5%) of any class of securities of any corporation which is engaged
in any of the foregoing businesses,, having a class of securities pursuant
to
Section 12 (b) or 12 (g) of the 1934 Act, which securities are publicly owned
and regularly traded on any national securities exchange or in the
over-the-counter market; provided further, that such ownership represents a
passive investment and that neither the Executive nor any group or persons
including the Executive in any way, either directly or indirectly, manages
or
exercises control of nay such corporation, guarantees any of its financial
obligations, otherwise takes part in its business other than exercising his
rights as a stockholder, or seeks to do any of the foregoing.
6
(b)
For
purposes of this Agreement, the “Non-Competition Period” shall mean; (a) the
Employment Period, and (b) any period during which the Executive is receiving
Termination Payments as a result of the Company’s termination of the Employment
Period. In the event that the Company terminated the Employment Period other
than for cause, or the Executive terminates the Employment Period for Good
Reason, the Executive may elect at any time after such termination, by ten
(10)
days’advance written notice to the Company, to terminate the Non-Competition
Period. On and after such election, the Company shall have no further obligation
to make any termination Payments, except for such amounts as shall have been
accrued prior to the date of such election. The parties acknowledge and agree
that, except as restricted by the terms of this Agreement, nothing in this
Agreement is intended to preclude the Executive from obtaining employment in
the
marketing and internet analytics industry following termination of the
Employment Period.
(c) Agreement
Not to Solicit Customers.
During
the Non-Competition Period and one year after the termination of the Agreement
by the Executive for any reason or the Company for Cause, the Executive shall
not, directly or indirectly, whether for his own account or for the account
of
any other individual or entity, solicit or canvass the trade, business or
patronage of any individuals or entities that were customers of the Company,
or
any Affiliate for which the Executive was working at the time of such
termination, during the twelve(12) months immediately proceeding the termination
of the Employment Period, or prospective customers with respect to whom a sales
effort, presentation or proposal (other than just a mass mailing) was made
by
the Company, or any Affiliate for which the Executive was working at the time
of
such termination. Upon writted request of the Executive following termination
of
the Employment Period, the Company shall provide a list of customers and
prospective subject to this Section.
6.
Agreement
Not to Solicit Employees.
The
Executive agrees that commencing on the Commencement Date and continuing through
the Applicable Period, and for one year following the termination of the
Agreement by the Executive for any reason or by the Company for Cause, the
Executive will not, either directly or indirectly, on the Executive’s own behalf
or in the service of or on behalf of others, solicit, divert or hire, or attempt
to solicit, divert or hire, to any Competing Business in the Area any person
employed by the Company or an Affiliate, whether or not such employee is a
full-time employee or a temporary employee of the Company or an Affiliate and
whether or not such employment is pursuant to written agreement and whether
or
not such employment is for a determined period or is at will.
7
7.
Ownership
and Protection of Proprietary Information.
(a) Confidentiality.
All
Confidential Information and Trade Secrets and all physical embodiments thereof
received or developed by the Executive while employed by the Company are
confidential to and are and will remain the sole and exclusive property of
the
Company. Except to the extent necessary to perform the duties assigned to him
by
the Company, the Executive will hold such Confidential Information and Trade
Secrets in trust and strictest confidence, and will not use, reproduce,
distribute, disclose or otherwise disseminate the Confidential Information and
Trade Secrets or any physical embodiments thereof and may in no event take
any
action causing or fail to take the action necessary in order to prevent, any
Confidential Information and Trade Secrets disclosed to or developed by the
Executive to lose its character or cease to qualify as Confidential Information
or Trade Secrets.
(b) Return
of Company Property.
Upon
request by the Company, and in any event upon termination of the employment
of
the Executive with the Company for any reason, as a prior condition to receiving
any final compensation hereunder (including payments pursuant to
Section 4(e)), the Executive will promptly deliver to the Company all
property belonging to the Company, including, without limitation, all
Confidential Information and Trade Secrets (and all embodiments thereof) then
in
the Executive’s custody, control or possession.
(c) Survival.
The
covenants of confidentiality set forth herein will apply on and after the date
hereof to any Confidential Information and Trade Secrets disclosed by the
Company or developed by the Executive prior to or after the date hereof. The
covenants restricting the use of Confidential Information will continue and
be
maintained by the Executive for a period of two years following the termination
of this Agreement. The covenants restricting the use of Trade Secrets will
continue and be maintained by the Executive following termination of this
Agreement for so long as permitted under Connecticut law.
8. Contracts
or Other Agreements with Former Employer or Business.
The
Executive hereby represents and warrants that he is not subject to any
employment agreement or similar document, except as previously disclosed and
delivered to the Company, with a former employer or any business with which
the
Executive has been associated, which on its face prohibits the Executive during
a period of time which extends through the Commencement Date from any of the
following: (i) competing with, or in any way participating in a business
which competes with the Executive’s former employer or business;
(ii) soliciting personnel of such former employer or business to leave such
former employer’s employment or to leave such business; or (iii) soliciting
customers of such former employer or business on behalf of another business.
9. Remedies.
(a) The
Executive agrees that the covenants and agreements contained in Sections 5,
6
and 7 hereof are of the essence of this Agreement; that each of such covenants
is reasonable and necessary to protect and preserve the interests and properties
of the Company and the Business of the Company; that the Company is engaged
in
and throughout the Area in the Business of the Company; that the Executive
has
access to and knowledge of the Company’s business and financial plans; that
irreparable loss and damage will be suffered by the Company should the Executive
breach any of such covenants and agreements; that each of such covenants and
agreements is separate, distinct and severable not only from the other of such
covenants and agreements but also from the other and remaining provisions of
this Agreement; that the unenforceability of any such covenant or agreement
shall not affect the validity or enforceability of any other such covenant
or
agreements or any other provision or provisions of this Agreement; and that,
in
addition to other remedies available to it, the Company shall be entitled to
specific performance of this Agreement and to both temporary and permanent
injunctions to prevent a breach or contemplated breach by the Executive of
any
of such covenants or agreements.
8
(b) In
addition to any other rights the Company may have pursuant to this Agreement,
if
Executive breaches any of his obligations under Sections 5, 6, or 7 or, directly
or indirectly, on the Executive’s own behalf or in the service of or on behalf
of others, engages in or provides services similar in type or nature to those
provided for the Company to, or owns (other than ownership of less than five
percent (5%) of the outstanding voting securities of an entity whose voting
securities are traded on a national securities exchange or quoted on the
National Association of Securities Dealers, Inc. Automated Quotation System)
a
beneficial or legal interest in, any Competing Business within the Area during
the Applicable Period, Executive will forfeit any amounts owed to Executive
under Section 4(e) which have not been paid to Executive by the Company and
Executive shall immediately repay to the Company all amounts previously paid
to
Executive pursuant to Section 4(e).
10.
No
Set-Off.
The
existence of any claim, demand, action or cause of action by the Executive
against the Company, or any Affiliate of the Company, whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of any of its rights hereunder. The existence of any claim,
demand, action or cause of action by the Company against the Executive, whether
predicated upon this Agreement or otherwise, shall not constitute a defense
to
the enforcement by the Executive of any of his rights hereunder.
11.
Notice.
All
notices, requests, demands and other communications required hereunder shall
be
in writing and shall be deemed to have been duly given if delivered or if
mailed, by United States certified or registered mail, prepaid to the party
to
which the same is directed at the following addresses (or at such other
addresses as shall be given in writing by the parties to one
another):
|
If
to the Company:
|
Future
Now Group, Inc.
|
|
C/O
Chief Financial Officer
|
|
|
00
Xxxxxxxxxx Xx - Xxxxx 000
|
|
|
Xxxxxxxx,
XX, 00000
|
9
|
If
to the Executive:
|
Xxxxxxx
Xxxxxxxxx
|
|
0000
Xxxx 00xx Xx
|
|
|
Xxxxxxxx,
XX 00000
|
Notices
delivered in person shall be effective on the date of delivery. Notices
delivered by mail as aforesaid shall be effective upon the third calendar day
subsequent to the postmark date hereof.
12. Miscellaneous.
(a) Assignment.
Neither this Agreement nor any right of the parties hereunder may be assigned
or
delegated by any party hereto without the prior written consent of the other
party.
(b) Waiver.
The waiver by the Company of any breach of this Agreement by the Executive
shall
not be effective unless in writing, and no such waiver shall constitute the
waiver of the same or another breach on a subsequent occasion.
(c) Arbitration.
Any controversy or claim arising out of or relating to this contract, or the
breach thereof, shall be settled by binding arbitration. However, the provisions
of this Subsection (c) shall not prevent the Company from instituting an action
under this Agreement for specific performance of this Agreement or injunctive
relief as provided in Section 9 hereof.
(d) Applicable
Law.
This
Agreement shall be construed and enforced under and in accordance with the
laws
of the State of New York.
(e) Entire
Agreement.
This Agreement embodies the entire agreement of the parties hereto relating
to
the subject matter hereof and supersedes all oral agreements, and to the extent
inconsistent with the terms hereof, all other written agreements.
(f) Amendment.
This Agreement may not be modified, amended, supplemented or terminated except
by a written instrument executed by the parties hereto.
(g) Severability.
Each of the covenants and agreements hereinabove contained shall be deemed
separate, severable and independent covenants, and in the event that any
covenant shall be declared invalid by any court of competent jurisdiction,
such
invalidity shall not in any manner affect or impair the validity or
enforceability of any other part or provision of such covenant or of any other
covenant contained herein.
10
(h) Captions
and Section Headings.
Except as set forth in Section 1 hereof, captions and section headings used
herein are for convenience only and are not a part of this Agreement and shall
not be used in construing it.
[Signature
Page to follow - Rest of Page Intentionally Left Blank]
11
IN
WITNESS WHEREOF,
the
Company and the Executive have each executed and delivered this Agreement as
of
the date first shown above and as provided for under the preceding 12 sections
and 11 pages.
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THE
COMPANY:
FUTURE
NOW GROUP, INC.
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| By: | ||
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| Title: | ||
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ATTEST:
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Title:
[CORPORATE SEAL] |
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EXECUTIVE:
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XXXXXXX
XXXXXXXXX
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12
APPENDIX
A
Performance
Based Stock Grants:
The
Company agrees to CONDITIONALLY grant to the Executive shares of common stock
in
the Company (the “Common Stock”) at seven different periods: (i) the first
(“Grant One”) being upon the conclusion of a 1 year period following the
Effective Date, (ii) the second (“Grant Two’) being upon the conclusion of a 1
and one-half year period following the Effective Date, (iii) the third (“Grant
Three”) being upon the conclusion of a 2 year period following the Effective
Date, (iv) the fourth (“Grant Four”) being upon the conclusion of a 2 and
one-half year period following the Effective Date, (v) the fifth (“Grant Five”)
being upon the conclusion of a 3 year period following the Effective Date,
(vi)
the sixth (“Grant Six”) being upon the conclusion of a 4 year period following
the Effective Date and, (vii) the seventh (“Grant Seven”) being upon conclusion
of a 5 year period following the Effective Date ( Grant One, Grant Two, Grant
Three, Grant Four, Grant Five, Grant Six and Grant Seven, may be referred to
as
“Grant” or “Grants”). Each Grant shall be equivalent to a “Stock Percentage” of
the Common Stock Equity of the Company (defined below) calculated as of the
“Final Date” associated with the Grant, as follows:
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Xxxx
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Stock
Percentage
|
Final
Date
|
||
|
Grant
One
|
2.0%
|
1
Year from Effective Date
|
||
|
Grant
Two
|
1.5%
|
1
½
Years from Effective Date
|
||
|
Grant
Three
|
1.0%
|
2
Years from Effective Date
|
||
|
Grant
Four
|
1.0%
|
2
½
Years from Effective Date
|
||
|
Grant
Five
|
.75%
|
3
Years from Effective Date
|
||
|
Grant
Six
|
0.5%
|
4
Years from Effective Date
|
||
|
Grant
Seven
|
0.5%
|
5
Years from Effective Date
|
The
Grant
will be earned based upon Performance Criteria achieved by the Company as
defined below. AT ANY TIME AFTER THE COMPANY HAS IMPLEMENTED AN EFFECTIVE ESOP
PROGRAM THE EXECUTIVE MAY OPT TO ACCEPT OPTION GRANTS IN LIEU OF RESTRICTED
COMMON STOCK GRANTS ON A ONE FOR ONE BASIS. THE EXECUTIVE MAY DO SO AT EACH
INDIVIDUAL GRANT DATE.
The
number of shares of Common Stock reflected by the Stock Percentage (“Executive
Shares”) shall be calculated against all issued and outstanding capitals tock or
other equity or conversion right in the Company inclusive of warrants (in
aggregate the “Company Equity). With respect to any convertible stock of he
Company, including without limitation preferred stock classes and any other
conversion right, the calculation determining the number of Executive Shares
shall be made as if each such conversion had taken place in accordance with
the
conversion rights associated with such security, (without regard to limitations
on the number of shares that may be converted in a single instance or in a
defined period), on the Final Date (“Imputed Conversion”). The price of the
Common Stock to be used for calculating the Imputed Conversion shall be the
average price of the Common Stock for the 10 business days prior to the Final
Date reflected on the OTCBB Market or if the Common Stock is no longer listed
on
that market, the principal securities exchange or trading market on which the
Common Stock is listed or traded, including the pink sheets. With respect to
each Grant the final calculation of the total number of Executive Shares shall
be made within fifteen days of the Final Date, in accordance with the following
formula (“Formula”):
Total
#
Executive Shares = Applicable Stock Percentage x the Equity
13
The
Equity = Company Equity Outstanding as of the Final Date + number of Commons
Stock resulting from Imputed Conversion
Each
Grant is CONDITIONED upon the Company achieving it year-end performance
objectives for revenue and profitability, based on a plan to be ratified by
the
Board of the Company during regularly scheduled meetings for each of the
applicable years. For example, whether Grant One occurs will be measured against
the plan set forth by the Board in the second quarter of 2007 for the year
ended
June 30, 2008.
The
subject shares issued via each grant are non-transferable and subject to
forfeiture.
Registration
- All Executive Shares may be unregistered, unless registered prior to issuance.
Such unregistered shares shall bear the following legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE,
IN
RELIANCE UPON THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS.
Executive
Shares shall not contain the legend set forth above or any other restrictive
legend if all the following conditions are satisfied: (i) there is an effective
Registration Statement under the Securities Act at such time, (ii) the Executive
has delivered a certificate to the Company to the effect that the Executive
will
comply with all applicable prospectus delivery requirements under the Securities
Act in any sale or transfer of the Executive Shares by the Executive, and (iii)
the Executive has delivered to the Company an opinion of counsel (acceptable
to
the Company) that such legend is not required under applicable requirements
of
the Securities Act (including judicial interpretations and pronouncements issued
by the staff of the Commission). The Company agrees that it will provide the
Executive, upon request, with a certificate or certificates representing the
Executive’s share, free from such legend at such time as such legend is no
longer required hereunder. The Company may not make any notations on its records
or give instructions to any transfer agent of the Company which enlarges the
restrictions of transfer set forth in this section.
14
The
Company covenants that it will take such further action as any holder of the
Executive Shares may reasonably request, all to the extent required from time
to
time to enable such holder to sell the shares without registration under the
Securities Act within the limitation of the exemption provided by Rule 144
promulgated under the Securities Act, including the legal opinion of counsel
to
the Company pursuant in a written letter to such effect, addressed and
acceptable to the Company’s transfer agent for the benefit of and enforceable by
the Executive or successor in interest thereto. Upon the request of any such
holder, the Company shall deliver to such holder a written certification of
a
duly authorized officer as to whether it has complied with such
requirements.
Registration
Rights - in the event of a registration of the Company’s common stock following
the Final Date, the Executive shall have the right to participate in such
registration at the Company’s expense. Additionally, for a period of five years
form the date of this Agreement, the Executive shall have preemptive rights
in
the event of any potentially dilutive event (excluding exercise of any
conversion rights accounted for in the Imputed Conversion described above),
such
that the Executive may, within a reasonable time, elect to participate in such
dilutive event under the terms thereof to maintain Executive’s then current
percentage interest in the Company.
15
