EMPLOYMENT AGREEMENT (Senior Executive Level)
Exhibit 10.1
(Senior Executive Level)
THIS AGREEMENT made as of the 19th day of June, 2015 (the “Effective Date”).
BETWEEN:
(the “Company”)
- and -
Xxxxxx Xxxxxxx
(the “Executive”)
WHEREAS the Company is engaged in the ownership and management of real estate, television and media related services (the “Business”); and
WHEREAS the Company desires to employ Executive as defined and as per the duties set forth in Exhibit A and Executive desires to accept such employment in the Business, subject to the terms, conditions and covenants herein provided; and
WHEREAS both parties have agreed to execute, deliver and perform this Agreement;
NOW THEREFORE in consideration of the mutual covenants herein contained and other good and valuable consideration, the Company and the Executive agree as follows:
POSITION
The Company hereby employs the Executive and the Executive agrees to dedicate a minimum of 50% of his attention and time as is necessary for him to perform his duties in the position as set forth in Exhibit A for the Company and will assume the role on the terms and conditions herein contained. Notwithstanding any other provision of this Agreement, Executive may continue to conduct business for other third parties that do not compete with the Company so long as such other business that is conducted does not interfere with or conflict with Executive’s duties and responsibilities for Company. Executive agrees not to use the Company’s time, material or facilities in performance of his work for such other third parties.
1. The Executive shall report to the COO of the Company and other Senior Officers as the Chairman/CEO direct.
2. The Executive shall have such duties and responsibilities consistent with his position as a senior officer as the COO shall reasonably determine. Initially, such duties and responsibilities will include those set forth on Exhibit B hereto.
3. The Executive shall work when requested out of the Weston, Florida offices, but it is understood that the Executive shall work primarily out of Xxxxxxxx Park, NJ.
4. The Executive will agree to work with other Officers including the Chairman, CEO, CIO and CTO to prepare budgets for the Company, develop sales and supporting reporting systems, develop new business opportunities, assist with product development, technology development and help to implement the media programs in an overall effort to aid the corporation in achieving its sales and operational goals in an efficient and fiscally responsible manner.
REMUNERATION
5. Salary
The Executive shall receive no less than the minimum base salary from the Company during his employment hereunder at the annual rate set forth in Exhibit A. This amount shall be payable in periodic installments in accordance with the usual payroll of the Company during the Term hereof (the “Salary”), payable in accordance with the Company’s payroll practices in force from time to time and shall be inclusive of all applicable income, and other taxes and charges that are required by law to be withheld by the Company or the Executive.
6. THIS SECTION IS INTENTIONALLY BLANK
7. THIS SECTION IS INTENTIONALLY BLANK
EXPENSES
8. The Company shall pay all necessary and reasonable business expenses as approved by the Company’s Chairman and/or COO which approval shall not be unreasonably withheld, and which are actually and properly incurred by the Executive in furtherance of or in connection with the Business, including without limitation, all business related travel and parking expenses, public relations expenses and all business related entertainment expenses (whether incurred at the Executive’s residence, while traveling or otherwise). If any such expenses are paid in the first instance by the Executive, the Company shall reimburse him, subject to the receipt by the Company of statements and vouchers in a form reasonably satisfactory to the Company.
VACATION
9. The Executive shall be entitled to the number of weeks of vacation set forth in Exhibit A (in addition to the Company national holidays) during each contract year which he serves hereunder. Such vacation shall be taken at such time or times as will be mutually agreed between the Executive and the Company.
TERM
10. The initial term of this Agreement (the “Initial Term”), and the employment hereunder, shall be for a period of set forth in Exhibit A.
TERMINATION
| 11. | (a) | Events of Termination. The Term, the Executive’s Salary and any and all other rights of the Executive under this Agreement or otherwise as an Executive of the Company will terminate (except as otherwise provided in herein): |
| (i) | upon the death of the Executive; |
| (ii) | upon the disability of the Executive (as defined in section 11 (b)) immediately upon notice from either party to the other; |
| (iii) | For Cause (as defined in section 11 (c)), immediately upon notice from the Company to the Executive or at such later time as such notice may specify; |
| (iv) | Other than For Cause, Disability or Death, immediately upon notice from the Company to the Executive or at such later time as such notice may specify; |
| (v) | Other than for Good Reason by Executive, immediately upon notice from the Executive to the Company or at such later time as such notice may specify; or |
| (vi) | For Good Reason (as defined in Section 11 (d)) upon not less than 10 calendar days’ prior notice from the Executive to the Company. |
| (b) | Definition of Disability. For the purposes of section 11 (a), the Executive will be deemed to have a “disability”, for physical or mental reasons, the Executive is unable to perform the Executive’s duties for a period of 120 days out of 180 days, under this Agreement as determined in accordance with this section 11 (b). The disability of the Executive will be determined by a medical doctor selected by written agreement of the Company and the Executive upon the request of either party by notice to the other. If the Company and the Executive cannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third medical doctor who will determine whether the Executive has a disability. The determination of the medical doctor selected under this section 11 (b) will be binding on both parties. |
| (c) | Definition of “For Cause”. For the purposes of section 11 (a), the phrase “For Cause” means: (i) the Executive’s material breach of this Agreement; (ii) the Executive’s failure to substantially perform the duties of Chief Operating Officer (or such other position with the Company as Executive may hold) as contemplated hereunder; (iii) the Executive’s failure to substantially adhere to any reasonable written Company policy if the Executive has been given a reasonable opportunity to comply with such policy or cure his failure to comply; (iv) the misappropriation by the Executive of a material business opportunity of the Company, including securing any undisclosed personal profit in connection with any transaction entered into on behalf of the Company; (v) the misappropriation of any of the Company’s funds, property or Confidential Information; (vi) the commission of material acts of dishonesty, willfully fraudulent or criminal acts or misconduct, or other willfully wrongful acts or omissions materially adversely affecting the Company; or (vii) the conviction of, the indictment for or its procedural equivalent or the entering of a guilty plea or plea of no contest with respect to any felony. |
| (d) | Definition of “For Good Reason.” For the purposes of section 11 (a), the phrase “For Good Reason” means the Company’s material breach of this Agreement. |
| (e) | Termination Pay. Effective upon the termination of this Agreement for any of the reasons set forth in xxxxxxx00 (a), the Company shall be obligated to pay the Executive (or in the event of his death, his designated beneficiary as defined below) the amounts set forth below, as well as all business expenses recoverable under Section 8. For purposes of this section ·11 (e), the Executive’s designated beneficiary will be such individual beneficiary or trust, located at such address, as the Executive may designate by notice to the Company from time to time or if the Executive fails to give notice to the Company of such a beneficiary, the Executive’s estate. Notwithstanding the preceding sentence the Company will have no duty, in any circumstances, to attempt to open an estate on behalf of the Executive, to determine whether any beneficiary designated by the Executive is alive or to ascertain the address of any such beneficiary, to determine the existence of any trust, to determine whether any person or entity purporting to act as the Executive’s personal representative (or the trustee of a trust established by the Executive) is duly authorized to act in that capacity or to locate or attempt to locate any beneficiary, personal representative, or trustee. |
(I) Termination by the Executive For Good Reason. If the Executive terminates this Agreement For Good Reason, the Company shall pay the Executive his Salary and other benefits, including shares, earned or accrued through the date of termination. Additionally, all shares held in escrow, or subject to vesting schedules shall accelerate and/or be released, and distributed according to the terms of the relevant escrow agreement as though the vesting/release conditions had been met in the ordinary course. In the event such a termination occurs within six (6) months of the Effective Date herein
| (ii) | Termination by the Company For Cause. If the Company terminates this Agreement For Cause, the Company shall pay Executive his Salary and other benefits earned or accrued through the date of termination. |
| (iii) | Termination upon Disability. If this Agreement is terminated by either party as a result of the Executive’s disability, as determined under section 11 (a)(ii), the Company shall pay the Executive his Salary and other benefits earned or accrued through the remainder of the calendar month during which such termination is effective. |
| (iv) | Termination upon Death. If this Agreement is terminated because of the Executive’s death, the Company shall pay Executive’s estate or designated beneficiary the Executive’s Salary and other benefits earned or accrued through the date of death. |
| (v) | Termination by Company Other than for Cause, Disability or Death. If the Company terminates this Agreement other than For Cause or for death or disability, then the Company shall pay Executive his Salary and other benefits earned or accrued through the date of termination. Additionally, all shares held in escrow, or subject to vesting schedules shall accelerate and/or be released, and distributed according to the terms of the relevant escrow agreement as though the vesting/release conditions had been met in the ordinary course. |
| (vi) | Termination by Executive Without Good Reason. If the Executive terminates this Agreement without Good Reason, the Company shall pay Executive his Salary and other benefits earned or accrued through the date of termination. |
CONFIDENTIALITY AND INTELLECTUAL PROPERTY
| 12. | (a) | All confidential records, material, information and all trade secrets concerning the business or affairs of the Company obtained by the Executive in the course of his employment with the Company shall remain the exclusive property of the Company. During the Executive’s employment or at any time thereafter, the Executive shall not divulge the contents of such confidential records, material, information or trade secrets to any person, firm or corporation other than to the Company or the Company’s qualified Executives and following the termination of his employment hereunder the Executive shall not, for any reason, use the contents of such confidential records, material, information or trade secrets for any purpose whatsoever. This Section shall survive the termination of this Agreement. This Section shall not apply to any confidential records, material, information or trade secrets which as proven by written documentation: |
| (1) | is or becomes publicly known through the lawful action of any third party; |
| (2) | is disclosed without restriction to the Executive by a third party; |
| (3) | is known by the Executive prior to its disclosure by the Company; |
| (4) | is subsequently developed by the Executive, independently of records, material, information and trade secrets supplied to the Executive by the Company; |
| (5) | has been made available by the Company directly or indirectly to a third party without obligation of confidentiality; or |
| (6) | the Executive is obligated to produce as a result of a court order or pursuant to governmental or other legal action, provided that the Company shall have been given written notice of such court order or governmental or other legal action (if permitted by law or requesting authority) and an opportunity to appear and object. |
INTELLECTUAL PROPERTY
(b) The Executive agrees that any invention, improvement, discovery, process, formula, or method or other intellectual property, whether or not patentable or copyrightable, conceived or first reduced to practice by Executive, either alone or jointly with others, relating to the performance of services hereunder , the business of the Company or the business of Next 1 Interactive, Inc. (or, if based on any of the Company Confidential Information, after the expiration or termination of the Term) (collectively, “Inventions”) shall belong exclusively to the Company and the Executive hereby assigns to the Company all title and interest, including copyright and patent rights, thereto and waives any moral rights which the Executive may have therein. If the Executive develops, prepares or works on the design or development of Inventions related to the performance of services hereunder the business of the Company or the business of Next 1 Interactive, Inc. during the Term,, the Executive will keep notes and other written records of such work, which records shall be kept on the premises of the Company and made available to the Company at all times for the purpose of evaluation and use in obtaining copyright protection or as a protective procedure. If the Executive develops, prepares or works on the design or development of Inventions while at the Company facilities, the Inventions shall belong exclusively to the Company and the Executive hereby assigns to the Company all title and interest, including copyright and patent rights, thereto and waives any moral rights which the Executive may have therein. The Executive will upon request of the Company, and at the Company’s expense, provide a reasonable level of assistance to the Company with respect to applications for trademarks, copyrights, patents or other forms of intellectual property protection for work on which the Executive was involved during the Term. The Executive agrees to execute such documents as are reasonable and necessary for the purpose of the Company establishing its right of ownership to such property. Without limiting the foregoing, Executive further acknowledges that all original works of authorship by Executive, whether created alone or jointly with others, related to Executive’s employment with the Company and which are protectable by copyright, are “works made for hire” within the meaning of the United States Copyright Act, 17 U. S. C. (S) 101, as amended, and the copyright of which shall be owned solely, completely and exclusively by the Company. If any Invention is considered to be work not included in the categories of work covered by the United States Copyright Act, 17 U. S. C. (S) 101, as amended, such work is hereby assigned or transferred completely and exclusively to the Company. Executive hereby irrevocably designates counsel to the Company as Executive’s agent and attorney-in-fact to do all lawful acts necessary to apply for and obtain patents and copyrights and to enforce the Company rights under this Section. This Section shall survive the termination of this Agreement. Any assignment of copyright hereunder includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights” (collectively “Moral Rights”). To the extent such Moral Rights cannot be assigned under applicable law and to the extent the following is allowed by the laws in the various countries where Moral Rights exist, Executive hereby waives such Moral Rights and consents to any action of the Company that would violate such Moral Rights in the absence of such consent. Executive agrees to confirm any such waivers and consents from time to time as requested by the Company.
NON-SOLICITATION
13. The Executive covenants and agrees with the Company that he shall not, during the term of his employment hereunder and for a period ending one year following the date of the termination of his employment:
(a) Directly or indirectly solicit, interfere with or endeavor to direct or entice away from the Company any person, firm or company who is or has within the preceding year been a customer, client, affiliated agency or otherwise in the habit of dealing with the Company; or
(b) Interfere with, entice away or otherwise attempt to induce the termination of employment of any Executive of the Company.
This Section shall survive the termination of this Agreement.
NON-COMPETITION
14. The Executive covenants and agrees with the Company that he will not (without the prior written consent of the Company which consent will not be unreasonably withheld) directly or through another person or another entity during the term of his employment hereunder and for a period of one (1) year following the date of the termination of his employment, carry on or be engaged in any business within North America which is competitive with the Business. However the non-compete shall terminate in the event of a termination of employment by Executive for Good Reason or a termination by the Company other than for Cause or disability and provided, further that under no circumstances shall Executive disclose Company confidential information.
This Section shall survive the termination of this Agreement.
INJUNCTIVE RELIEF
15. The Executive acknowledges and agrees that the agreements and covenants in sections 12 to 14 are essential to protect the business and goodwill of the Company and that a breach by the Executive of the covenants in sections 12 to 14 hereof could result in irreparable loss to the Company which could not be adequately compensated for in damages and that the Company may have no adequate remedy at law if the Executive breaches such provisions. Consequently, if the Executive breaches any of such provisions (and such breach remains uncured after written notice and opportunity to cure for a period of ten days), the Company shall have, in addition to and not in lieu of, any other rights and remedies available to it under any law or in equity, the right to seek injunctive relief to restrain any breach or threatened breach thereof and to have such provisions specifically enforced by any court of competent jurisdiction
DISPUTE RESOLUTION PROCEDURE
| 16. | (a) | The parties shall be free to bring all differences of interpretation and disputes arising under or related to this Agreement to the attention of the other party at any time without prejudicing their harmonious relationship and operations hereunder and the offices and facilities of either party shall be available at all times for the prompt and effective adjustment of any and all such differences, either by mail, telephone, or personal meeting, under friendly and courteous circumstances. Notwithstanding the foregoing, any controversy, claim, or breach arising out of or relating to this Agreement which the parties are unable to resolve to their mutual satisfaction shall be resolved in accordance with subparagraph b below. |
| (b) | As a condition precedent to invoking any other dispute resolution procedure including litigation, the parties shall attempt in good faith first to mediate such dispute and use their best efforts to reach agreement on the matters in dispute. Within five (5) business days of the request of either party, the requesting party shall attempt to employ the services of a third person mutually acceptable to both parties to conduct such mediation within ten (10) business days of the mediator’s appointment. Unless otherwise agreed upon by the parties hereto, the parties shall share equally the cost of the mediator’s fees and expenses equally. If the parties are unable to agree on such third person, then the requesting party may submit the matter to the nearest office of the American Arbitration Association for mediation, only, in accordance with the commercial mediation rules then prevailing. If, on completion of such mediation, the parties are still unable to agree upon and settle the dispute, then either party may initiate litigation. This Agreement contains no arbitration clause. Binding arbitration may only be used upon the mutual agreement of the parties hereto. |
SEVERABILITY
17. The parties acknowledge that the provisions of sections 12 to 14 hereof (the “Restrictive Covenants”) are reasonable and valid in geographic and temporal scope and all other respects. If any court of competent jurisdiction determines that any of the Restrictive Covenants or any part thereof, is or are invalid or unenforceable, the remainder of the Restrictive Covenants shall not thereby be affected and shall be given full effect, without regard to invalid portions. If any court of competent jurisdiction determines that any of the Restrictive Covenants or any part thereof is unenforceable because of the duration or geographic scope of such provision, such court shall have the power to reduce the duration or scope of such provision, as the case may be and, in its reduced form, such provision shall then be enforceable. The Executive acknowledges that the Company’s business extends throughout the geographical area outlined above and that the geographic scope of the covenants contained herein is reasonable.
INDEMNITY
18. Except for acts of dishonesty, willfully fraudulent or criminal acts or other willfully wrongful acts or omissions on the part of Executive, the Company agrees to indemnify and save the Executive harmless from and against any and all damages, liabilities, claims, costs, including reasonable attorneys’ fees, charges and expenses, including any amount paid to settle any action or satisfy any judgment, incurred by him in connection with his employment or incurred by him in respect of any civil, criminal or administrative action or proceeding to which the Executive is made a party by reason of having been an officer or Executive of the Company.
WHOLE AGREEMENT
19. This Agreement constitutes and expresses the whole agreement of the parties hereto with respect to the employment of the Executive by the Company and with respect to any matters or things herein provided for or hereinbefore discussed or mentioned with reference to such employment. All promises, representations, collateral agreements and understandings relative thereto not incorporated herein are hereby superseded by this Agreement.
GENERAL
20. All notices, request, demands or other communications by the terms hereof required or permitted to be given by one party to the other shall be given in writing by personal delivery or by facsimile, addressed to the other party as follows:
| (a) | to the Company at: |
RealBiz Media Group, Inc.
c/o 0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
| Attention: | Xxxxxxx Xxxxx |
| Facsimile No: | No: (000) 000-0000 |
| (b) | to the Executive at: |
Xxxxxx Xxxxxxx
x/x Xxxxx, Xxxxxxx & Symonides, L.L.C.
000 X. Xxxxxxx Xx #000
Xxxxxxxx Xxxx, XX 00000
or such other addresses as may be given by either of them to the other in writing from time to time.
21. This Agreement shall be governed by and interpreted under the laws of the State of Florida without regard to principals of conflicts of law.
22. All dollar amounts referred to in this Agreement are expressed in U.S. funds.
| 23. | (a) | This Agreement is personal to the Executive and may not be assigned by him. |
| (b) | Upon notice to the Executive, this Agreement may be assigned to an affiliate of the Company, provided that notwithstanding such assignment, the Company continues to guarantee the performance by such assignee of its obligations hereunder. This Agreement shall not otherwise be assigned by Company and such restriction shall include any assignment by operation of law. |
| (c) | Except as aforesaid, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, including, in the case of the Executive, his heirs, executors, administrators and legal personnel representatives. |
24. Time shall be of the essence of this Agreement and of every part hereof.
25. The parties acknowledge and agree that, except to the extent the context clearly requires otherwise, the representations, warranties and covenants set forth herein shall survive the termination or expiration of this Agreement.
26. The parties acknowledge that each of them has read and understood this Agreement, and that each of them has been given the opportunity to obtain independent legal advice in connection with this Agreement and its terms.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date first above written.
| RealBiz Media Group, Inc. | ||||
| By: | /s/ Xxxx Xxxxxxxxxx | |||
| Xxxx Xxxxxxxxxx | ||||
| COO and CIO | ||||
| /s/ Xxxxxx Xxxxxxx | ||||
| WITNESS | Xxxxxx Xxxxxxx | |||
| Executive | ||||
Exhibit A
Executive. Xxxxxx Xxxxxxx
Section 1. Position
The Position is defined as Chief Financial Officer with the responsibilities as listed on Exhibit B.
Section 2. Remuneration
(a) Terms and conditions will include a base salary of $70,000 per year and $30,000 in Company shares that is 300,000 shares at 10 cents issued quarterly commencing September 23, 2015. The total annual compensation will be $100,000.
(b) Additionally, the Executive will have the option to receive healthcare for himself and his dependent family members with 50% of the premiums paid by the Company in the event this contract is modified to reflect the executive as a full time employee.
(c) Additionally, the Executive will be further eligible for bonus programs commensurate with other senior executives of Realbiz, which are to be determined and implemented within the first year of employment (from the Effective Date herein).
Section 3. Disposition of Stock
If Executive desires to sell in excess of One Hundred Thousand (100,000) shares of the common stock of the Company in a single transaction or in one or more related transactions at any time when the daily trading volume of the Company’s stock is less than 20,000 shares, then prior to selling any such shares, Executive shall submit a written offer to the Company for the Company to acquire such shares at the market price of such shares on the date of such offer. The Company shall have five (5) calendar days in which to notify the Executive of its intent to exercise such right of first refusal and the closing of such sale shall occur within ten (10) calendar days of such notification. If the Company does not exercise such right of first refusal then the · Executive shall be free to sell such shares in the open market in accordance with all applicable laws.
Section 4. Vacation
The Executive will be eligible for 3 weeks of vacation.
Section 5. Term
The initial term of this Agreement (the “Initial Term”), and the employment hereunder, shall be for a period of twelve (12) months commencing on June 23rd, 2015, and expiring on June 22nd 2016 unless sooner terminated. The contract may be extended by mutual consent of the parties.
Exhibit B
Xxxxxx Xxxxxxx- Chief Financial Officer
The Executive’s responsibilities will include:
| • | Responsible for overseeing the financial aspects of the day to day operations of the Company. |
| • | Responsible for overseeing and ensuring completion of the Filings, Reporting, Sarbanes Oxley compliance of the company on a timely basis. |
| • | Work with the CEO and COO to assist in setting the direction of the corporation |
| • | Implementation of proper accounting and reporting systems in accordance with GAAP. |
| • | Setting up structure, staff roles, responsibilities, goals and objectives for the finance and accounting departments. |
| • | Review of existing staff and assessing capabilities including position changes, hiring and firing as required. |
| • | Working with the CEO, COO and other department heads to review expenditures, develop budgets, complete ongoing review with senior management of these budgets to ensure efficiencies, cost control systems and best practices are implemented and practiced. |
And such other duties/responsibilities as may be assigned by the CEO and/or COO from time to time
