EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This employment agreement (the "Agreement") is made and entered into as of
December 9, 2004 by and between EasyWeb, Inc., a Colorado corporation (the
"Company") and Xxxxx Xxxxx (the "Employee").
RECITALS
A. The Company desires to employ the Employee from the date set forth above (the
"Effective Date") until expiration of the term of this Agreement, and Employee
is willing to be employed by the Company during that period, on the terms and
subject to the conditions set forth in this Agreement.
In consideration of the mutual covenants and promises of the parties, the
Company and the Employee covenant and agree as follows:
1. DUTIES
During the term of this Agreement, Employee will be employed by the Company to
serve as the President and Chief Executive Officer of the company. The Employee
will devote such amount of his/her business time to the conduct of the business
of the Company as may be reasonably required to effectively discharge Employee's
duties under this Agreement and, subject to the supervision and direction of the
Company's Board of Directors (the "Board"), not to include financing on a
personal basis. Notwithstanding the foregoing, nothing in this Agreement is to
be construed as prohibiting Employee from continuing to serve as a director of
other entities whether or not for profit, so long as his service as such does
not substantially prevent or prohibit Employee from effectively discharging his
duties hereunder and such positions are disclosed to the Board.
2. TERM OF EMPLOYMENT
2.1 DEFINITIONS
For purposes of this Agreement the following terms have the following meanings:
(a) "Termination for Cause" means termination by Company of Employee's
employment (i) by reason of Employee's willful dishonesty towards, fraud upon,
or deliberate injury or attempted injury to, the Company, (ii) by reason of
Employee's material breach of this Agreement or (iii) by reason of Employee's
gross negligence or intentional misconduct with respect to the performance of
Employee's duties under this Agreement; provided, however, that no such
termination will be deemed to be a Termination for Cause unless the Company has
provided Employee with written notice of what it reasonably believes are the
grounds for any Termination for Cause and Employee fails to take appropriate
remedial actions during the thirty day period following receipt of such written
notice.
(b) "Termination Other than For Cause" means termination by the Company of
Employee's employment by the Company for reasons other than those which
constitute Termination for Cause.
(c) "Voluntary Termination" means termination by the Employee of the Employee's
employment with the Company, excluding termination by reason of Employee's death
or disability as described in Sections 2.5 and 2.6.
2.2 BASIC TERM
The term of employment of Employee by the Company will commence on the Effective
Date and will extend through the period ending on December 9, 2005, or if and
when a transaction is complete that leaves the Company in capable hands by new
management, (the "Termination Date"). Company and Employee may extend the term
of this Agreement by mutual written agreement.
2.3 TERMINATION FOR CAUSE
Termination for Cause may be effected by the Board of Directors at any time
during the term of this Agreement and may be effected by written notification to
Employee; provided, however, that no Termination for Cause will be effective
unless Employee has been provided with the prior written notice and opportunity
for remedial action described in Section 2.1. Upon Termination for Cause,
Employee is to be immediately paid all accrued salary, incentive compensation to
the extent earned, vested deferred compensation (other than pension plan or
profit sharing plan benefits, which will be paid in accordance with the
applicable plan), and accrued vacation pay, all to the date of termination, but
Employee will not be paid any severance compensation.
2.4 TERMINATION OTHER THAN FOR CAUSE
Notwithstanding anything else in this Agreement, the Board of Directors may
effect a Termination Other Than for Cause at any time upon giving notice to
Employee of such Termination Other Than for Cause. Upon any Termination Other
Than for Cause, Employee will immediately be paid all accrued salary, all
incentive compensation to the extent earned, severance compensation as provided
in Section 4, vested deferred compensation (other than pension plan or profit
sharing plan benefits, which will be paid in accordance with the applicable
plan), and accrued vacation pay, all to the date of termination.
2.5 TERMINATION DUE TO DISABILITY
In the event that, during the term of this Agreement, Employee should, in the
reasonable judgment of the Board, fail to perform Employee's duties under this
Agreement because of illness or physical or mental incapacity ("Disability"),
and such Disability continues for a period of more than six (6) consecutive
months, Company will have the right to terminate Employee's employment under
this Agreement by written notification to Employee and payment to Employee of
all accrued salary and incentive compensation to the extent earned, severance
compensation as provided in Section 4, vested deferred compensation (other than
pension plan or profit sharing plan benefits, which will be paid in accordance
with the applicable plan), and all accrued vacation pay, all to the date of
termination. Any determination by the Board with respect to Employee's
Disability must be based on a determination of competent medical authority or
authorities, a copy of which determination must be delivered to the Employee at
the time it is delivered to the Board. In the event the Employee disagrees with
the determination described in the previous sentence, Employee will have the
right to submit to the Board a determination by a competent medical authority or
authorities of Employee's own choosing to the effect that the aforesaid
determination is incorrect and that Employee is capable of performing Employee's
duties under this Agreement. If, upon receipt of such determination, the Board
wishes to continue to seek to terminate this Agreement under the provisions of
this section, the parties will submit the issue of Employee's Disability to
arbitration in accordance with the provisions of this Agreement.
2.6 DEATH
In the event of Employee's death during the term of this Agreement, Employee's
employment is to be deemed to have terminated as of the last day of the month
during which Employee's death occurred, and Company will pay to Employee's
estate accrued salary, incentive compensation to the extent earned, vested
deferred compensation (other than pension plan or profit sharing plan benefits,
which will be paid in accordance with the applicable plan), and accrued vacation
pay, all to the date of termination.
2.7 VOLUNTARY TERMINATION
(a) In the event of a Voluntary Termination, other than for "Good Reason," as
defined below, the Company will immediately pay to Employee all accrued salary,
all incentive compensation to the extent earned, vested deferred compensation
(other than pension plan or profit sharing plan benefits, which will be paid in
accordance with the applicable plan), and accrued vacation pay, all to the date
of termination, but Employee will not be paid any severance compensation.
(b) The Employee may voluntarily terminate his/her employment hereunder at any
time with or without Good Reason. For purposes of this Agreement, "Good Reason"
shall mean, so long as the Employee has not been guilty of conduct set forth in
Section 2.1(a), a failure by the Company to comply with any material provision
of this Agreement that has not been cured within thirty (30) days after written
notice of such noncompliance has been given by the Employee to the Company or
(b) the assignment to the Employee by the Company of duties inconsistent with
the Employee's position, duties or responsibilities as in effect immediately
prior to the Effective Date, including, but not limited to, any material
reduction in such position, duties, or responsibilities or material change in
his/her title, other than as permitted by paragraph 2.2(b) or (c) a relocation
by the Company of the Employee's office to a location outside a 60 mile radius
of Englewood, Colorado, unless in compliance with the travel requirements set
forth in paragraph 1, in each case of clauses (b) or (c), without the consent of
the Employee. The Employee's election to terminate his/her employment with Good
Reason shall be considered in material respects to be a Termination for Other
Than Cause. Upon a voluntary Termination for Good Reason, Employee will be paid
immediately for all accrued salary, all incentive compensation to the extent
earned, severance compensation as provided in Section 4, vested deferred
compensation (other than pension plan or profit sharing plan benefits, which
will be paid in accordance with the applicable plan) and accrued vacation pay,
all to the date of termination.
3. Salary, Benefits and Other Compensation
3.1 Base Salary
As payment for the services to be rendered by Employee as provided in Section 1
and subject to the terms and conditions of Section 2, Company agrees to pay to
Employee a one time fee of up to $100,000, if and when the Company transact a
merger, acquisition, reverse merger, financing, or any related transaction, non
detrimental to the immediate future of the Company, that leaves the Company in a
position and direction better then it currently is.
The payment of Base Salary hereunder shall not in any way limit or reduce any
other obligation of the Company hereunder, and no other compensation, benefit or
payment hereunder shall in any way limit or reduce the obligation of the Company
to pay the Employee's Base Salary hereunder. The Board, at any time and from
time to time, may increase (but not reduce) the Base Salary payable under this
Agreement, and increase in the Base Salary shall become effective at the time
indicated by the Board without the need for an amendment to this Agreement.
3.2 INCENTIVE BONUS PLANS
During the term of his employment under this Agreement, the Employee will be
eligible to participate in all bonus and incentive plans established by the
Board.
3.3 BENEFIT PLANS
During the term of Employee's employment under this Agreement, the Employee is
to be eligible to participate in all employee benefit plans to the extent
maintained by the Company, including (without limitation) any life, disability,
health, accident and other insurance programs, paid vacations, and similar plans
or programs, subject in each case to the generally applicable terms and
conditions of the plan or program in question and to the determinations of any
committee administering such plan or program. On termination of the Employee for
any reason, the Employee will retain all of Employee's rights to benefits that
have vested under such plan, but the Employee's rights to participate in those
plans will cease on the Employee's termination unless the termination is a
Termination Other Than for Cause, in which case Employee's rights of
participation will continue for a period of six months following Employee's
termination.
3.4 WITHHOLDING OF TAXES
The Employee understands that the services to be rendered by Employee under this
Agreement will cause the Employee to recognize taxable income, which is
considered under the Internal Revenue Code of 1986, as amended, and applicable
regulations thereunder as compensation income subject to the withholding of
income tax (and Social Security or other employment taxes). The Employee hereby
consents to the withholding of such taxes as are required by the Company.
3.5 VACATION
During the term of this Agreement, Employee will be entitled to three weeks paid
vacation time per year. To the extent that Employee does not use the full three
weeks of vacation time in any given year, Employee may accrue and carry forward
such unused time up to a maximum accrual of six weeks.
3.6 EXPENSES
During the term of this Agreement, Company will reimburse Employee for
Employee's reasonable out-of-pocket expenses incurred in connection with
Company's business, including travel expenses, food, and lodging while away from
home, subject to such policies as Company may from time to time reasonably
establish for its employees.
4. SEVERANCE COMPENSATION
4.1 TERMINATION OTHER THAN FOR CAUSE OR VOLUNTARY TERMINATION;
PAYMENT IN LIEU OF NOTICE
In the event Employee's employment is terminated in a Termination Other Than for
Cause or a Voluntary Termination other than for Good Reason, Employee will be
paid as severance pay Employee's Base Salary, as defined in Section 3.1, for the
period commencing on the date that Employee's employment is terminated and
ending on the later of the end of Employee's term of employment or the date
which is nine months from the date of termination.
4.2 TERMINATION FOR DISABILITY
In the event Employee's employment is terminated because of Employee's
disability pursuant to Section 2.5, Employee will be paid as severance pay
Employee's Base Salary, as defined in Section 3.1, for the period commencing on
the date that Employee's employment is terminated and ending on the date which
is nine months thereafter.
4.3 CHANGE IN CONTROL
In the event that Employee's employment is terminated because of a change in
control (as defined herein) of the Company prior to the Termination Date,
Employee will be paid as severance pay Employee's Base Salary, as defined in
Section 3.1, for the period commencing on the date that Employee's employment is
terminated and ending on the date which is nine months thereafter. For purposes
of this Agreement, a "change in control" shall be defined as the sale of more
than fifty (50%) of the Company's outstanding capital stock, other than in
connection with an underwritten public offering of the Company's securities or a
merger (or similar transaction) in which the Company is not the surviving entity
or following which the Company's shareholders immediately prior to such
transaction no longer control a majority of the Company's voting stock.
4.4 OTHER TERMINATION
In the event of a Voluntary Termination, Termination for Cause or Death,
Employee or Employee's estate will not be entitled to any severance pay.
5. MISCELLANEOUS
5.1 WAIVER
The waiver of any breach of any provision of this Agreement will not operate or
be construed as a waiver of any subsequent breach of the same or other provision
of this Agreement.
5.2 ENTIRE AGREEMENT; MODIFICATION
Except as otherwise provided in the Agreement and in the Option Agreement, this
Agreement represents the entire understanding among the parties with respect to
the subject matter of this Agreement, and this Agreement supersedes any and all
prior understandings, agreements, plans, and negotiations, whether written or
oral, with respect to the subject matter hereof, including without limitation,
any understandings, agreements, or obligations respecting any past or future
compensation, bonuses, reimbursements, or other payments to Employee from
Company. All modifications to the Agreement must be in writing and signed by the
party against whom enforcement of such modification is sought.
5.3 NOTICE
All notices and other communications under this Agreement must be in writing and
must be given by personal delivery, telecopier or telegram, or first class mail,
certified or registered with return receipt requested, and will be deemed to
have been duly given upon receipt if personally delivered, three (3) days after
mailing, if mailed, or twenty-four (24) hours after transmission, if delivered
by telecopies or telegram, to the respective persons named below:
If to Company: EasyWeb, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: President
If to Employee: Xxxxx Xxxxx
0000 XxxxXxxxx Xxxxx
Xxxxxx, Xxxxxxxx, 00000
Telephone: 000-000-0000
Any party may change such party's address for notices by notice duly given
pursuant to this Section.
5.4 HEADINGS
The Section headings of this Agreement are intended for reference and may not by
themselves determine the construction or interpretation of this Agreement.
5.5 GOVERNING LAW
This Agreement is to be governed by and construed in accordance with the laws of
the State of Colorado/Delaware applicable to contracts entered into and wholly
to be performed within the State of Colorado by Colorado residents. Any
controversy or claim arising out of or relating to this Agreement, or breach of
this Agreement (except any controversy or claim with respect to Section 5 or 6),
is to be settled by arbitration in Colorado in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment on the
award rendered by the arbitrators may be entered in any court having
jurisdiction. There must be three arbitrators, one to be chosen directly by each
party at will, and the third arbitrator to be selected by the two arbitrators so
chosen. Each party will pay the fees of the arbitrator he or she selects and his
or her own attorneys, and the expenses of his or her witnesses and all other
expenses connected with presenting his or her case. Other costs of the
arbitration, including the cost of any record or transcripts of the arbitration,
administrative fees, the fee of the third arbitrator, and all other fees and
costs, will be borne equally by the parties.
5.6 SURVIVAL OF COMPANY'S OBLIGATIONS
This Agreement will be binding on, and inure to the benefit of, the executors,
administrators, heirs, successors, and assigns of the parties; provided,
however, that except as expressly provided in this Agreement, this Agreement may
not be assigned either by Company or by Employee.
5.7 COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of which taken
together will constitute one and the same Agreement.
5.8 ENFORCEMENT
If any portion of this Agreement is determined to be invalid or unenforceable,
that portion of this Agreement will be adjusted, rather than voided, to achieve
the intent of the parties under this Agreement.
5.9 INDEMNIFICATION
The Company agrees that it will indemnify and hold the Employee harmless to the
fullest extent permitted by applicable law from and against any loss, cost,
expense or liability resulting from or by reason of the fact of the Employee's
employment hereunder, whether as an officer, employee, agent, fiduciary,
director or other official of the Company, except to the extent of any expenses,
costs, judgments, fines or settlement amounts which result from conduct which is
determined by a court of competent jurisdiction to be knowingly fraudulent or
deliberately dishonest or to constitute some other type of willful misconduct.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
EASYWEB, INC.
By /s/ Xxxxx Floor
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Xxxxx Floor, member of the Board of Directors
EMPLOYEE
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
