EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
AGREEMENT made
as
of the 19th day of November, 2008 (the "effective
date").
BETWEEN:
Next1
Interactive, Inc.
(the
"Company")
-
and -
Xxxxxx
XxXxxxxxxx
(the
"Executive")
WHEREAS
the
Company is engaged in the ownership and management of travel and media related
services (the "Business");
and
WHEREAS
the
Company desires to employ the Executive and the 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
1. The
Company hereby employs the Executive as, and the Executive agrees to be employed
as, the Chief Financial Officer of the Company on the terms and conditions
herein contained. The Executive shall report to the Chief Executive Officer
of
the Company.
2. The
Executive shall have such duties and responsibilities as the Executive and
the
Company’s CEO shall agree upon from time to time. Initially, such duties and
responsibilities will include those set forth on Exhibit A hereto.
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3.
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The
Executive shall work out of office in the Weston Florida. The Company
agrees that the Executive will not be asked to relocate his principal
place of employment from time to time anywhere in Canada and the
United
States, unless mutually agreed to by the parties and provided always
that
any and all reasonable relocation costs shall be borne by the Company.
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4.
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The
Executive will agree to prepare a budget for the Company, develop
reporting systems, control accounting functions, complete financial
statements, aid the corporation with audits, SEC reporting and overall
aid
the corporation in achieving its goals of operating in an efficient
and
fiscally responsible manner.
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REMUNERATION
5.
(a)
The Executive shall receive a minimum base salary from the Company of no less
than US$100,000 per year (US$8,333 per month) comprising of a cash payment.
The
executive will receive a review after 90 days and will be adjusted to an annual
salary of $140,000 (based on acceptable review and performance during the 90
day
review period). After the 90 day review the Executives pay (the "Salary"),
will
be payable in accordance with the Company's payroll practices in force from
time
to time shall be inclusive of all applicable income, employment insurance and
other taxes and charges that are required by law to be withheld by the Company
or the Executive.
| (b) | Except as otherwise provided herein, the Salary shall be pro-rated for any partial year. |
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(c)
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The
company will agree to enter into an option plan with the executive
for
Stock options to be set under similar terms and conditions as those
of
other senior management as soon as the stock option plan for the
Parent
company is approved by the Board.
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6.
Other
Bonuses. The
Company will agree to include the Executive in any cash bonuses (Other
Bonuses)
that
may be set from time to time by the Board of Directors as part of a Senior
Management Incentive package. Such Other Bonuses are at the discretion of the
Board of Directors and if set; will include the Key Senior Management comprising
of the CEO, COO, CFO and CMO.
BENEFITS
AND EXPENSES
7. The
Executive shall be entitled to participate in any health, life and medical
benefit plan made available by the Company generally to its executives, as
amended from time to time. The Company shall pay all necessary and reasonable
business expenses as approved by the Company’s CEO 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 therefor, subject to the receipt by the Company of statements
and
vouchers in a form reasonably satisfactory to the Company.
VACATION
8. The
Executive shall be entitled to four weeks paid vacation in each year of the
Term
of the Agreement. In the event of termination of this Agreement and the
Executive's employment, the Executive shall be entitled to payment for any
vacation time accrued up to the date of termination but unused.
TERM
9. (a) The
initial term of this Agreement (the "Initial
Term"),
and
the Executive's employment hereunder, shall be for a period of two years
commencing as of November 16th, 2008, unless sooner terminated in accordance
with the provisions of section 10; provided that upon the expiration of the
Initial Term, this Agreement shall be automatically renewed for successive
periods of one year each (each a “Renewal Term”), unless at least 90 days prior
to the expiration of the Initial Term or any Renewal Term, as the case may
be,
either the Executive or the Company gives written notice to the other of its
intention to terminate this Agreement upon the expiration of the Initial Term
or
the Renewal Term, as the case may be. For the purposes of this Agreement, if
such notice is not given at least 90 days prior to the expiration of the Initial
Term or Renewal Term, as the case may be, the employment of the Executive
hereunder shall be deemed to be automatically renewed for a one-year period
following the date of such expiration upon the same terms as the preceding
year.
Notwithstanding anything to the contrary set forth herein, there shall not
be
any more than four (4) Renewal Terms. The Initial Term, as it may be extended
by
one or more Renewal Terms is referred to herein as the Term.
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(b)
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In
the event of the delivery by the Executive of a notice pursuant to
section
7(a), the Executive shall be deemed to have voluntarily resigned
from his
employment hereunder effective on the expiration of the Initial Term
or
Renewal Term, as the case may be. In the event of termination by
the
Executive under this section 9, the Executive shall be entitled to
Salary
and benefits (including, without limitation, Executive’s Bonus) earned up
until termination and shall be entitled to reimbursement of business
expenses recoverable under section 7, above, incurred up until
termination. Notwithstanding the foregoing and notwithstanding the
provisions of Article 10 hereof, in the event the Executive delivers
a
notice pursuant to subsection 9(a) and is thereby deemed to have
voluntarily resigned from his employment effective on the expiration
of
the Initial Term or the Renewal Term, upon receipt of such notice,
the
Company shall have the right to immediately terminate the employment
of
the Executive hereunder and in such event the Executive shall only
be
entitled to his Salary and benefits (including, without limitation,
Executive’s Bonus) earned up until termination and shall be entitled to
reimbursement of business expenses recoverable under section 8 above,
incurred up until termination.
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(c)
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In
the event of the delivery by the Company of a notice pursuant to
section
10(a), Company shall pay Executive his Salary and benefits (including,
without limitation, Executive’s Bonus) earned or accrued through the date
of termination and shall reimburse Executive for business expenses
recoverable under section 7, above, incurred up until the date of
termination.
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TERMINATION
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10.
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(a)
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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 section
10):
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(i)
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upon
the death of the Executive;
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(ii)
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upon
the disability of the Executive (as defined in section 10(b)) immediately
upon notice from either party to the other;
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(iii)
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For
Cause (as defined in section 10(c)), immediately upon notice from
the
Company to the Executive or at such later time as such notice may
specify;
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(iv)
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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;
or
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(v)
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For
Good Reason (as defined in section 10(d)) upon not less than 10 days'
prior notice from the Executive to the
Company.
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(b)
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Definition
of Disability.
For the purposes of section 10(a), the Executive will be deemed to
have a "disability"
if, 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 10(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 10.2(b) will be binding on both parties.
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(c)
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Definition
of "For Cause".
For the purposes of section 10(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
Financial 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;
(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.
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(d)
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Definition
of "For Good Reason."
For the purposes of section 10(a), the phrase "For
Good Reason"
means the Company's material breach of this Agreement.
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(e)
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Termination
Pay.
Effective upon the termination of this Agreement for any of the reasons
set forth in section10(a), the Company shall be obligated to pay
the
Executive (or in the event of his death, his designated beneficiary
as
defined below) the compensation provided in this section 10(e), as
well as
all business expenses recoverable under Section 7. For purposes of
this
section 10(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.
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(i) Termination
by the Executive For Good Reason.
If the
Executive terminates this Agreement For Good Reason, the Company shall (A)
pay
the Executive his Salary and other benefits earned or accrued through the date
of termination.
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(ii)
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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.
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(iii)
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Termination
upon Disability.
If
this Agreement is terminated by either party as a result of the
Executive's disability, as determined under section 10(a)(ii), the
Company
shall (A) pay the Executive his Salary and other benefits earned
or
accrued through the remainder of the calendar month during which
such
termination is effective.
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(iv)
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Termination
upon Death.
If
this Agreement is terminated because of the Executive's death, the
Company
shall (A) pay Executive’s estate or designated beneficiary the Executive’s
Salary, Bonus and other benefits earned or accrued through the date
of
death.
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(v)
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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, the Company shall (A) pay Executive his Salary, Bonus
and
other benefits earned or accrued through
termination.
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CONFIDENTIALITY
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11.
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(a)
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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 not apply to any confidential
records, material, information or trade secrets
which:
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(1)
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is
or becomes publicly known through the lawful action of any third
party;
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| (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; |
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(4)
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is
subsequently developed by the Executive, independently of records,
material, information and trade secrets supplied to the Executive
by the
Company;
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(5)
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has
been made available by the Company directly or indirectly to a third
party
without obligation of confidentiality;
or
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(6)
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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 and an opportunity to appear and
object.
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(b)
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The
Executive agrees that all Confidential Information which the Executive
develops, prepares or works on either individually or on a team during
the
Term with the Company 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 Confidential Information of any kind
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. 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.
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NON-SOLICITATION
12. The
Executive covenants and agrees with the Company that he shall not, during the
term of his employment hereunder and for a period ending ninety days following
the date of the termination (for any reason) of his employment:
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(a)
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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
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(b)
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Interfere
with, entice away or otherwise attempt to induce the termination
of
employment of any employee of the
Company.
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NON-COMPETITION
13. 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 indirectly, during the term of his employment hereunder
and for a period 30 days 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 (a "Competitive
Business")
where
such business involves “clients or accounts” that were introduced to the
Executive by the Company.
INJUNCTIVE
RELIEF
14. The
Executive acknowledges and agrees that the agreements and covenants in sections
11 to 13 are essential to protect the business and goodwill of the
Company and
that
a breach by the Executive of the covenants in sections 11 to 13 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, 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 obtain 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
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15.
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(a)
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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.
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(b)
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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 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 five business days of the mediator's appointment.
Unless
otherwise agreed upon by the parties hereto, the parties shall share
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.
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SEVERABILITY
16. The
parties acknowledge that the provisions of sections 11 to 13 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
17. 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
employee of the Company.
WHOLE
AGREEMENT
18. 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
19. 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:
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(a)
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to
the Company at:
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Next1
Interactive, Inc.
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0000
Xxxxx Xxxxxxxx Xxxx, xxx 000
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Xxxxxx
XX 00000
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Attention:
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Xxxxxxx
Xxxxx
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Facsimile
No:
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954)
888-9082
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(b)
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to
the Executive at:
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Xxxxxx XxXxxxxxxx | |
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0000
Xxxxxx Xxxxx Xxxxx
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Xxxxxx
Xxxxx, Xx 3446
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Facsimile
No:
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000-000-0000
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or
such
other addresses as may be given by either of them to the other in writing from
time to time.
20. This
Agreement shall be governed by and interpreted under the laws of the State
of
Florida without regard to principals of conflicts of law.
21. All
dollar amounts referred to in this Agreement are expressed in U.S.
funds.
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22.
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(a)
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This
Agreement is personal to the Executive and may not be assigned by
him.
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(b)
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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.
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(c)
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Except
as aforesaid, this Agreement shall endure 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.
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23. Time
shall be of the essence of this Agreement and of every part hereof.
24. 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.
25. 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.
| Next1 Interactive, Inc. | ||
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| By: | /s/ Xxxxxxx Xxxxx | |
| Xxxxxxx Xxxxx | ||
| /s/ Xxxxxxx Xxxxxx | /s/ Xxxxxx XxXxxxxxxx | |
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Witness |
Xxxxxx XxXxxxxxxx |
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EXHIBIT
A
To
the Employment Agreement Dated the 3rd day of June, 2008
by
and between
Extraordinary
Vacations Group, Inc. and Xxxxxx XxXxxxxxxx
The
Executive’s initial responsibilities are as follows:
Duties:
Oversee and report on all financial transactions of the Next1 Interactive,
Inc.(Next1), its subsidiaries or any other business entity related to Next1
or
its successor company in conformance with generally accepted accounting
principles.
Fulfill
all reporting requirements for internal and external purposes in a public or
private environment including fulfilling requirements according to
Xxxxxxxx-Xxxxx and providing financial statements internally for management
purposes.
Use
best practices in cash flow management, accounts receivable, accounts payable,
budgeting and financial forecasting as well as systems
development.
