EXHIBIT 10.22
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
1st day of January 2000 by and between 5TH AVENUE CHANNEL CORP. (the "Company"),
a Florida corporation and XXXX XXXXXXXXX (the "Employee").
WITNESSETH:
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company desires to employ the Employee the Company's Senior Executive Vice
President, and the Employee desires to be so employed by the Company.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by this reference. The Company's Employee Manual (as defined
below) is considered part of this Agreement.
2. EMPLOYMENT. In exchange for the "Compensation" (as hereinafter
defined) and subject to the other terms and conditions hereinafter set forth,
the Company hereby employs the Employee to render the "Employee Duties" (as
described in Section 3 below) as an employee of the Company, and the Employee
hereby accepts such employment.
3. EMPLOYEE DUTIES. For purposes of this Agreement, "Employee Duties"
shall mean serving the Company as its Senior Executive Vice President. In this
capacity, Employee will be responsible for such duties and responsibilities that
are customary for such a position as well as such other duties and
responsibilities assigned to Employee from time to time by the President of the
Company.
4. TERM. This Agreement shall commence on the date hereof and shall
continue to be in effect for two (2) years from the date of this Agreement
("Term"), unless terminated prior to the end of the Term in accordance with
Section 7 of this Agreement. At the end of the Term, this Agreement shall be
automatically renewed for consecutive additional one-year periods ("Renewal
Terms") unless either party provides written notice of non-renewal to the other
not less than ninety (90) days prior to the end of the Term or any such renewal
term.
5. LOCATION. The Employee will be required to spend his principal time
at the facilities specified by the Company in the Miami area to achieve the
Employee Duties. The Company's activities will be first priority for Employee.
6. COMPENSATION. In exchange for the Employee's performance of the
Employee Duties hereunder, the Company hereby agrees to pay the Employee the
following compensation (collectively, the "Compensation"):
(a) Base Salary. The Company shall pay the Employee a gross
annual salary of two hundred thousand dollars ($200,000) per year (the "Salary")
together with an annual bonus to be based upon performance of the Company's
business operations. Salary shall be paid
by the Company in accordance with the Company's regular payroll practices which
at this time are on the 15'b and 30" of each month.
(b) WITHHOLDING. The Company shall deduct or withhold from all
Compensation payable hereunder all amounts required to be deducted or withheld
from Compensation pursuant to state or federal law.
(c) STOCK OPTIONS. Employee shall be granted options to
purchase 180,000 shares of the Company's Common Stock for employment for the
year 2000 and 180,000 for the year 2001. (The year 2000 grant was already
ratified by the Board of Directors on January 31, 2000). Stock options for the
year 2000 shall be granted at the fair market value of the stock as of January
31, 2000 and for the year 2001 at the fair market value of the stock as of
January 31, 2001. Such grant of options shall be at no cost to the Employee and
shall be otherwise governed by the terms of the Company's Employee Stock Option
Plan as modified from time to time. Such options vest ratably each month
throughout the years 2000 and 2001, and have an expiration term of five years.
In addition, the Company grants to Employee, for each six months of employment
commencing January 1, 2000 25,000 options at an exercise price of $10, 25,000
options at an exercise price of $15, and 25,000 options at an exercise price of
$20. Such options shall have a three year term and vest ratably over a six month
period from date of grant. All options granted to Employee under this Agreement
are non-dilutable based on the amount of outstanding shares of the Company's
Common Stock as of January 31, 2000. If the Company increases the number of
outstanding shares prior to either the exercise of any of the options by the
Employee or the sale by the Employee of the exercised shares, such amount of
options or shares shall be increased by the percentage increase in the number of
outstanding shares of the Company's Common Stock. The 180,000 options for the
year 2000 shall be registered in the Company's upcoming S-8 registration.
(d) GRANT OF STOCK. In recognition of the Employee's work in
1999, Company agrees to grant 20,000 shares of the Company's Common Stock. Such
shares will be registered in the SB-2 registration to be amended prior to going
effective with the SEC.
(e) OTHER BENEFITS. The monthly premiums for family health are
paid by the Company. Company will also provide a $1 million dollar life
insurance policy to the beneficiary specified by Employee. Company shall also
provide the other insurance that is the same provided to other senior executives
of the Company. Dental is available to the Employee at the Employee's expense
from a plan the company has negotiated. The company honors 9 holidays. Sick days
are allowed at the rate of 1 per month but are not accruable. The Employee is
granted three weeks of vacation per year. At the end of the year if Employee has
not taken a full three weeks of vacation, at the Employee's option, he may
receive the cash equivalent of such time or accrue the time to the following
year. Employee shall also receive a Company credit card and Company cellular
phone. Employee shall also be entitled to all salary continuation benefits that
the Company provides its senior executives, for any partial or total disability
that you may suffer.
(f) COMMISSIONS. The Company agrees that the Employee shall be
entitled to a commission for relationships Employee brings to Company that lead
to a substantive agreement for the Company. Such commission shall be negotiated
on a case by case basis.
(g) EXPENSE REIMBURSEMENT. It is contemplated that, in
connection with his employment hereunder, the Employee may incur business,
entertainment and travel expenses. The Company agrees to reimburse the Employee
in full for all preapproved reasonable, ordinary and necessary business,
entertainment and other related expenses, including travel expenses,
incurred or expended by him incident to the performance of his duties hereunder,
and incurred or expended in accordance with the Company's policies with respect
to such expenses, upon submission by the Employee to the Company of such
vouchers or expense statements satisfactorily evidencing such expenses as may be
reasonably required by the Company or its accountants. Such reimbursement shall
include a mileage charge for the use by the Employee of his personal automobile
for business purposes other than for transportation between home and work.
7. TERMINATION.
(a) BY COMPANY - FOR CAUSE. The Company shall have the right
to terminate the employment of the Employee for cause immediately upon providing
written notice to the Employee. For purposes of this Agreement, "cause" shall
mean only the occurrence of any of the following, each of which shall be deemed
a breach of this Agreement:
(i) Employee's failure (other than as a result of
illness or mental or physical disability), within seven (7) days after written
notice from the Company, to cure any material breach of the Employee Duties or
the Employee Manual (as defined below) or any of his other obligations under
this Agreement;
(ii) Employee's habitual and material negligence in
the performance of the Employee Duties, Employee Manual or the Employee's
negligence otherwise, which in either event results in a material loss to the
Company; In no event shall the results of the Company's operations or any
business judgment made in good faith by the Executive constitute an independent
basis for termination for cause of the Executive's employment under this
agreement.
(iii) Employee's commission of any act of corporate
theft, misappropriation of funds, breach of fiduciary duty as an officer of the
Company or other willful misconduct, act of dishonesty or intentional harm
against or to the Company;
(iv) Employee's conviction of or pleading nolo
contendere to any felony;
(v) Employee's failure to abide by the Company's
policies or procedures, including, but not limited to the Company's policy
against disclosure of "Confidential Information" (as hereinafter defined),
sexual harassment and discrimination, use of corporate resources or property for
personal gain and other policies described in writing by the Company in the
Company's employee manual as modified from time to time ("Employee Manual").
(vi) The Employee's employment under this shall
terminate upon his death. In such event, his estate shall be entitled to receive
the Employee's base salary and other benefits to which the Employee is entitled
under this agreement up to the effective date of such termination.
In the event the Company elects to terminate the Employee's
employment hereunder as set forth above, the Company shall give written notice
to such effect to the Employee, which notice shall describe in reasonable detail
the actions of the Employee constituting cause.
(b) SEVERANCE PAY. If this Agreement is terminated by the
Company with or without cause then (without limiting any other rights or claims
which employee may have in respect of the Company's breach of contract or
otherwise), the Employee shall be entitled to receive from the Company the full
salary, stock options and other benefits (including family health insurance or
reimbursement for the cost of COBRA insurance) described in Par. 6 from the date
of such termination through the end of the Tenn. If the Company elects not to
renew this Agreement at the end of the Term or if this Agreement is terminated
less than one year from the end of the Term, then Employee shall be entitled to
receive from the Company a one year termination bonus of all compensation
described in Par. 6. Such severance shall be paid monthly beginning at
termination or the non-renewal of this Agreement. If this Agreement is
terminated by the Employee without cause, then Employee shall have the right to
retain and receive all options, stock grants and other benefits earned through
the date of termination, but will not be due any severance pay as described in
this paragraph.
8. CONFIDENTIAL INFORMATION AND COMPETITION.
(a) CONFIDENTIAL INFORMATION. The Employee hereby acknowledges
that he will or may be making use of, acquiring and adding to confidential
information of a special and unique nature and value affecting and relating to
the Company and its operations, including, but not limited to, its businesses,
the identities of its customers and suppliers, its data base information, prices
paid by the Company for inventory, its business practices, marketing strategies,
expansion plans, contracts, business records and other records, trade secrets,
inventions, techniques, know-how and technologies, whether or not patentable,
and other similar information relating to the Company (all the foregoing
regardless of whether same was known to the Employee prior to the date hereof is
hereinafter referred to collectively as "Confidential Information"). The
Employee further recognizes and acknowledges that all Confidential Information
is the exclusive property of the Company, is material and confidential, and
greatly affects the legitimate business interests, goodwill and effective and
successful conduct of the Company's businesses. Accordingly, the Employee hereby
covenants and agrees that he will use the Confidential Information only for the
benefit of the Company and shall not at any time, directly or indirectly, either
during the Term of this Agreement or afterward, divulge, reveal or communicate
any Confidential Information to any person, firm, corporation or entity
whatsoever, or use any Confidential Information for his own benefit or for the
benefit of others.
(b) COMPETITION. The Employee hereby acknowledges and agrees
that the Company would suffer irreparable injury if the Employee competes with
the Company. As a material inducement to the Company to enter into this
Agreement, the Employee hereby covenants and agrees that, unless the Company and
its successors and assigns shall cease to engage in its businesses, or unless
the Employee's engagement hereunder is terminated by the Company in violation of
this Agreement or by the Employee in accordance with Section 6(b) hereof, during
the period beginning on the date hereof and continuing until one year following
the date of the expiration or sooner termination of this Agreement, he shall
not:
(i) directly or indirectly, divert business from the
Company or its successors or assigns; or
(ii) directly or indirectly, solicit for employment,
employ or otherwise engage the services of, any employees of the Company or its
successors or assigns.
(c) INJUNCTION AND ATTORNEY'S FEES. In view of the irreparable
injury to the Company that would result from a breach or threatened breach of
Employee of the covenants or
agreements under Sections 7 (a) or (b) hereof, and because there is not an
adequate remedy at law to protect the Company from the ongoing breach of those
covenants, the Employee acknowledges that a permanent injunction is an
appropriate remedy for such a breach or threatened breach. These remedies shall
be in addition to and not in limitation of any other rights or remedies to which
the Company is or may be entitled at law or in equity under this Agreement. With
respect to any such litigation, the provisions of Section 9(m) hereof shall
apply, regardless of whether this Agreement had earlier expired or been
terminated.
(d) REASONABLENESS OF RESTRICTIONS. The Employee has carefully
read and considered the provisions of Sections 7 (a), (b) and (c) hereof and,
having done so, agrees that the covenants set forth in those Sections are fair
and reasonable and are reasonably required to protect the legitimate business
interests of the Company. The Employee agrees that the covenants set forth in
Sections 7 (a), (b) and (c) hereof do not unreasonably impair the ability of the
Employee to conduct any unrelated business or to find gainful work in his field.
The parties hereto agree that if a court of competent jurisdiction holds any of
the covenants set forth in Sections 7 (a) or (b) unenforceable, the court shall
substitute an enforceable covenant that preserves, to the maximum lawful extent,
the scope, duration and all other aspects of the covenants deemed unenforceable,
and that the covenant substituted by the court shall be immediately enforceable
against the Employee. The foregoing shall not be deemed to affect the right of
the parties hereto to appeal any decision by a court concerning this Agreement.
(e) SURVIVAL. This Section 7 shall survive the termination of
this Agreement and the Employee's employment hereunder. The Employee
acknowledges and agrees that the provisions of this Section 7 are specifically
intended by both the Company and the Employee to benefit, and be enforceable by,
not only the Company, but also the Company's successors and assigns.
9. RIGHTS TO INVENTIONS, PATENTS AND COPYRIGHTS.
(a) The Employee shall promptly disclose in writing to the
Company: all ideas, inventions, discoveries, devices, machines, apparatus,
methods, compositions, know-how, works, processes and improvements to any
thereof, whether or not patentable or copyrightable, that he may conceive, make,
develop, invent, reduce-to-practice, author or discover, whether solely or
jointly or commonly with others, during his employment with the Company, or
within one calendar year following the termination of his employment with the
Company, which relate to the business of the Company at the time of termination
(the items specified in this Section 8(a) are hereinafter collectively referred
to as "Inventions"). All Inventions are the sole and exclusive property of the
Company.
(b) The Employee shall promptly assign, transfer and set over
unto the Company, its successors and assigns, all of his rights, title and
interest in and to all Inventions, all applications for letters patent or
copyrights, foreign and domestic, which have or may be filed on such Inventions,
all copyrights, all letters patent of the United States and its territorial
possessions and all letters patent of foreign countries which may be granted
therefor, and all reexaminations and reissues of said letters patent, including
the subject matter of any and all claims which may be obtained in every such
domestic and foreign patent, the same to be held And enjoyed by the Company for
its own and exclusive use and advantage, and for the exclusive use and advantage
of its successors, assigns and other legal representatives, to the full end of
the term or terms for which said copyrights and letters patent of the United
States, territories and foreign countries are or may be granted, reexamined or
reissued, as fully and entirely as the same would have been held and enjoyed by
the Employee, if the assignment had not been made.
(c) The Employee further covenants and agrees that he will,
during and subsequent to the Term hereof, without demanding any other
consideration therefor, at any time, upon request, execute, or cause to be
executed, and deliver any and all papers that may be necessary or desirable to
perfect the title to any Invention and to such letters patent and copyrights as
may be granted therefor, in the Company, its successors, assigns or other legal
representatives, and that if the Company, its successors, assigns, or other
legal representatives shall desire to file any subsequent or derivative
application, or to secure a reissue or reexamination of such letters patent, or
to file a disclaimer relating thereto, the Employee will upon request, sign, or
cause to be signed, all papers, make or cause to be made all rightful oaths, and
do all lawful acts requisite for such action.
(d) The Employee does further covenant and agree, that he
will, at any time during and subsequent to the Term hereof, upon request,
communicate to the Company, its successors, assigns, or other legal
representatives, such facts relating to the Inventions, letters patent and
copyrights or to the history thereof, as may be known to her, and testify, at
the Company's expense, as to the same in any interference or other litigation or
proceeding in which the Employee is not a party and does not have an interest,
when requested to do so.
10. INDEMNIFICATION.
(a) The Company shall defend, indemnify and hold Employee
harmless if Employee was or is a party or is threatened to be made a party to
any action, claim, suite or proceeding, whether civil, criminal, administrative
or investigative (including any action by or in the right of the Company by
reason of the fact that he is or was a director, officer, committee chairman,
General Counsel or member, employee, or agent of the Company., including the
fact that he was performing requested services of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another business, foreign or domestic, profit or nonprofit corporation,
partnership, joint venture or other enterprise. This indemnification shall cover
and include expenses (including attorneys' fees, judgments, fines and amounts
paid in settlement) actually and reasonably incurred by him in connection with
such action, claim, suit or proceeding, regardless of whether such expenses and
liabilities are otherwise covered by insurance in favor of Employee.
(b) If the Company's indemnity obligations under this Section
are not otherwise insured, the Corporation shall be self-insured to the extent
necessary to provide such indemnity protection.
(c) The indemnification and advancement of expenses provided
for herein shall not be deemed exclusive of any other rights to which Employee
may be entitled, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to Employee
and Employee has ceased to be a director, officer, committee chairman, or
member, employee, or agent and after Employee ceases serving at the request of
the Company as a director, officer, employee or agent of another business,
foreign or domestic, profit or nonprofit corporation, partnership, joint venture
or other enterprises, and shall inure to ,the benefit of his heirs and legal
representatives.
(d) The Company shall procure insurance on Employee in his
positions as director, officer, committee chairman, or member, employee, or
agent of the Company, or if Employee was serving at the request of the Company
as a director, officer, employee or agent of another business, foreign or
domestic, profit or nonprofit corporation, partnership, joint venture or other
enterprise against any liability asserted against or incurred by him in any such
capacity,
or arising out of his status as such, whether or not the Company would have the
power to indemnify him against such liability under the business corporation law
of Florida or professional laws of Florida.
(e) To the extent that any portion of this Section is found to
be illegal or beyond the permissible limits of indemnification for any reason,
such portion shall be deemed to be modified or amended, or if necessary deleted,
to the extent required to comply with applicable law, it being the intent of
this Section to afford indemnification of Employee to the full extent provided
for herein.
11. DISABILITY.
(a) If Employee becomes partially disabled and unable to
effectively perform the work or totally disabled, he shall continue to be an
employee of the Company and shall be entitled to compensation under this
Employment Agreement for a period of twelve (12) months.
(b) At the end of the twelve month (12) period following the
onset of the disability, the disabled Employee shall cease to be an employee of
the Company. If Employee thereafter ceases to be disabled, he may, upon such
terms and conditions as may be agreed upon between him and the Company, resume a
full or part-time position with the Company.
(c) If Employee dies after becoming disabled, his estate shall
be entitled to the payments provided for by Section 6 for the length of the
Term, which Employee would have received if he had lived.
12. MISCELLANEOUS.
NOTICES. (a) All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given only
upon hand delivery thereof or upon the first business day after mailing by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows or to such other address or such other person as
any party shall designate, in writing, to the other for such purposes and in the
manner hereinabove set forth.
To Company: 5th Avenue Channel, Inc.
0000 X.X. 000x Xxxxxx
Xxxxx Xxxxx Xxxxx, XX 00000
To Employee: Xxxx Xxxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
(a) ENTIRE AGREEMENT. This Agreement sets forth all the
promises, covenants, agreements, conditions and understandings between the
parties hereto with respect to the subject matter contained herein, and
supersedes all prior and contemporaneous agreements, understandings, inducements
or conditions with respect to said subject matter, expressed or implied, oral or
written, except as herein contained.
(b) AMENDMENT. The parties hereby irrevocably agree that no
attempted amendment, modification, termination, discharge or change
(collectively, "Amendment") of this
Agreement shall be valid and effective, unless the parties shall unanimously
agree in writing to such Amendment.
(c) NO WAIVER. No waiver of any provision of this Agreement
shall be effective unless it is in writing and signed by the party against whom
it is asserted, and any such written waiver shall only be applicable to the
specific instance to which it relates and shall not be deemed to be a continuing
or future waiver.
(d) GENDER AND USE OF SINGULAR AND PLURAL. All pronouns shall
be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the party or parties, or their personal representatives,
successors and assigns may require.
(e) COUNTERPARTS. This Agreement and any amendments may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together will constitute one and the same instrument.
(f) HEADINGS. The article and section headings contained in
this Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of the Agreement.
(g) GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Florida and any proceeding arising
between the parties in any manner pertaining or related to this Agreement shall,
to the extent permitted by law, be held in Miami-Dade County, Florida.
(h) FURTHER ASSURANCES. The parties hereto will execute and
deliver such further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this Agreement.
(i) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and shall be binding upon any of the Company's successors or assigns.
(j) PROVISIONS SEVERABLE. This Agreement is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules, and regulations of the jurisdiction in which
the parties do business. If any provision of this Agreement, or the application
thereof to any person or circumstances shall, for any reason or to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
(k) DISPUTE RESOLUTION AND ARBITRATION. The Parties shall be
free to bring all differences of interpretation and dispute arising in
connection with this Agreement to the attention of the other at any time without
prejudicing their harmonious relationship and operations hereunder, and the good
offices and facilities of all respective parties 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. In the even that any controversy or claim arising out of the
Agreement cannot be settled by the parties hereto, such controversy or claim
will be settled by binding arbitration in accordance with the then current rules
of the American Arbitration Association, in the State of Florida, United States
of America, and judgment upon the award may be entered in any court having
jurisdiction thereof Each respective party hereby appoints, as its agent for
service for process in connection
with any action brought by any other party, hereunder, the Secretary of State of
the state of their respective addresses of record.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date above written.
EMPLOYEE: 5TH AVENUE CHANNEL CORP.,
By:
-------------------------------- -----------------------------
Xxxx Xxxxxxxxx Xxx Xxxxx
President
