EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of the
1st day of April, 2000 by and between American Xxxxxxxxxxxxx.xxx, Inc., a
Florida corporation (the "Employer"), and Xxx Xxxxx (hereinafter called the
"Employee").
Whereas, Employee desires to serve as Vice President/CFO (Chief Financial
Officer) of Employer;
Whereas, Employee and Employer would like to structure a mutually
beneficial business relationship whereby Employee serves in the capacities
enumerated in this Agreement in exchange for compensation similarly enumerated;
Whereas, Employee and Employer desire to clarify the nature of their
business relationship and obligations to the other;
Now therefore, in consideration of the premises and mutual covenants set
forth herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Employment.
1.1 Employment. The Employer hereby agrees to employ the Employee and
the Employee hereby agrees to serve the Employer on the terms and conditions set
forth herein.
1.2 Duties of Employee. Employee shall act as Vice President/CFO of
Employer and shall perform such duties as shall be reasonably assigned to him by
the Chief Executive Officer of the Employer which are consistent with his
office. Employee shall serve at the direction of and be responsible to the Chief
Executive Officer of Employer. Throughout the period of his employment
hereunder, the Employee shall: (i) devote his full business time, attention,
knowledge and skills, faithfully , diligently and professionally, to the active
performance of his duties and responsibilities hereunder on behalf of the
Employer at a level at least equal to that generally expected of an employee of
a business comparable to that of the Employer; having the rank and
responsibilities of the Employee; (ii) observe and carry out such rules,
regulations, policies, directions and restrictions of general application to all
employees of the Employer having a rank comparable to that of the Employee as
may reasonably be established from time to time by the Employer's Board of
Directors, including but not limited to the standard policies and procedures of
the Employer as in effect from time to time; and (iii) do such traveling as may
reasonably be required in connection with the performance of such duties and
responsibilities.
2. Term. The term of this Agreement, and the employment of the Employee
hereunder, shall commence on the date hereof (the "Commencement Date") and shall
expire on March 31, 2003 (the "Expiration Date") unless sooner terminated in
accordance with the terms and conditions hereof (the "Term").
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3. Compensation.
3.1 Base Salary. The Employee shall receive a base salary at the
annual rate of $110,000 (the "Base Salary") during the term of this Agreement,
with such Base Salary payable in installments consistent with the Employer's
normal payroll payment schedule, subject to applicable withholding and other
taxes. The Base Salary shall be reviewed at least annually and may, by action
and in the discretion of the Employer, be increased at any time or from time to
time.
3.2 Bonuses. During the Term of this Agreement, the Employee shall be
eligible to receive bonuses, at the discretion of the Employer, pursuant to any
bonus plan established by the Employer for bonus compensation for employees of
the Employer having a rank comparable to that of the Employee.
3.3 Stock Options. The Employer shall grant to Employee an option to
acquire up to 200,000 shares of Employer's common stock pursuant to and subject
to the terms of the Non-qualified Stock Option Plan. The Options shall be
exercisable at the option price of $0.25 per share. The Option shall be subject
to lock-ups and restrictions if required by an initial public offering (IPO)
underwriter. The options shall vest as follows:
Continuous Employment
FROM SIGNING AGREEMENT PORTION EXERCISABLE
---------------------- -------------------
March 31, 2000 1/3
March 31, 2001 1/3
March 31, 2002 1/3
4. Expense Reimbursement and Other Benefits .
4.1 Reimbursement of Expenses. During the term of the Employee's
employment hereunder, upon the submission of proper substantiation by the
Employee, and subject to such rules and guidelines as the Employer may from time
to time adopt, the Employer shall reimburse the Employee for all reasonable
expenses actually paid or incurred by the Employee in the course of and pursuant
to the business of the Employer. The Employee shall account to the Employer in
writing for all expenses for which reimbursement is sought and shall supply to
the Employer copies of all relevant invoices, receipts or other evidence
reasonably requested by the Employer.
4.2 Compensation/Benefit Programs. During the term of this Agreement,
the Employee shall be entitled to participate in all medical, dental,
disability, and life insurance plans, and any and all other employee benefit
plans as are presently and hereinafter offered by the Employer to its employees
having rank comparable to that of the Employee, subject to the general
eligibility and participation provisions set forth in such plans.
4.3 This paragraph intentionally left blank.
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4.4 Other Benefits. The Employee shall be entitled to two weeks of
vacation each calendar year during the term of this Agreement, to be taken at
such times as the Employee and the Employer shall mutually determine and
provided that no vacation time shall interfere with the material duties required
to be rendered by the Employee hereunder. Any vacation time not taken by
Employee during any calendar year may not be carried forward into any succeeding
calendar year.
5. Termination.
5.1 Termination for Cause. The Employer shall at all times have the
right, upon written notice to the Employee, to terminate the Employee's
employment hereunder, for Cause. For purposes of this Agreement, the term
"Cause" shall mean (i) an action or omission of the Employee which constitutes a
breach of this Agreement which is not cured within 30 days of the Employer's
giving notice of termination to the Employee specifying in reasonable detail the
reasons for termination; (ii) the Employee's committing an act constituting
fraud, theft, conversion, a crime, or breach of fiduciary duty; (iii) gross
negligence in connection with the performance of the Employee's material duties
hereunder; (iv) the material failure or refusal (other than as a result of a
disability) by the Employee to perform his duties hereunder; (v) the Employee's
abuse of drugs or alcohol that adversely affects the performance of the
Employee's duties hereunder; (vi) the Employee's commission of an act of
misconduct, to the extent that in the reasonable judgment of the Employer, the
Employee's credibility and reputation no longer conform to the standards of the
Employer's senior officers; and (vii) the Employee not being qualified in the
Employer's reasonable judgment to discharge properly the duties of the
Employee's employment hereunder. Upon any termination pursuant to this Section
5.1, the Employer shall pay to the Employee his Base Salary to the date of
termination. The Employer shall have no further liability hereunder .
5.2 Disability. Subject to applicable law the Employer shall at all
times have the right in its discretion, upon written notice to the Employee, to
terminate the Employee's employment hereunder, if the Employee shall as the
result of mental or physical incapacity , illness or disability , become unable
to perform his obligations hereunder for a total of 120 days in any 180 day
period, or any 90 consecutive days. Upon any termination pursuant to this
Section 5.2, the Employer shall, (i) pay to the Employee any unpaid Base Salary
through the effective date of termination specified in such notice, and (ii) pay
to the Employee severance payments equal to three months of the Employee's Base
Salary at the time of the termination of the Employee's employment with the
Employer, payable on the Employer's normal payroll payment schedule. The
Employer shall have no further liability hereunder (other than for (x)
reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however to the provisions of Section 4.1, (y) payment of
compensation for unused vacation days that have accumulated during the calendar
year in which such termination occurs, and (z) issuance of Shares under Section
3.3, and (aa) payment of unpaid benefits that have accrued through the date of
termination.
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5.3 Death. In the event of the death of the Employee during the Term
of his employment hereunder, the Employer shall pay to the estate of the
deceased Employee any unpaid Base Salary through the Employee's date of death.
The Employer shall have no further liability hereunder (other than for (x)
reimbursement for reasonable business expenses incurred prior to the date of the
Employee's death, subject, however to the provisions of Section 4.1, (y) payment
of compensation for unused vacation days that have accumulated during the
calendar year in which such termination occurs, (z) issuance of Shares under
Section 3.3, and (aa) payment of unpaid benefits that have accrued through the
date of termination).
5.4 Termination Without Cause. At any time the Employer shall have the
right to terminate the Employee's employment hereunder by ten days prior written
notice to the Employee. Upon any termination pursuant to this Section 5.4 (that
is not a termination under any of Sections 5.1,5.2, or 5.3), Employer shall (i)
pay to the Employee any unpaid Base Salary through the effective date of
termination specified in such notice, and (ii) continue to pay the Employee's
Base Salary for the term of this Agreement but not less than a period of six
months following the termination of the Employee's employment with the Employer,
in the manner and at such time as the Base Salary otherwise would have been
payable to the Employee. The Employer shall have no further liability hereunder
(other than for (x) reimbursement for reasonable business expenses incurred
prior to the date of termination, subject, however, to the provisions of Section
4.1, (y) payment of compensation for unused vacation days that have accumulated
during the calendar year in which such termination occurs, (z) issuance of
Shares under Section 3.3, and (aa) payment of unpaid benefits that have accrued
through the date of termination).
5.5 Resignation. Upon any termination of employment pursuant to this
Section 5, the Employee shall be deemed to have resigned as an officer, and if
he or she was then serving as a director of the Employer, as a director, and if
required by the Board, the Employee hereby agrees to immediately execute a
resignation letter to the Board.
6. Restrictive Covenants.
6.1 Non-Competition. At all times while the Employee is employed by
the Employer and for a two year period after the termination of the Employee's
employment with the Employer by the voluntary resignation of the Employee, the
Employee shall not, directly or indirectly, engage in or have any interest in
any sole proprietorship, partnership, corporation or business or any other
person or entity (whether as an employee, officer, director, partner, agent,
security holder, creditor, consultant or otherwise) that directly or indirectly
(or through any affiliated entity) engages in competition with the Employer (for
this purpose, any business that engages in the business of Internet vertical
business to business product and manufacturer search shall be deemed to be in
competition with the Employer); provided that such provision shall not apply to
the Employee's ownership of Common Stock of the Employer or the acquisition by
the Employee, solely as an investment, of securities of any issuer having
securities registered under Section 12(b) or 12(g) of the Securities Exchange
Act of 1934, as amended, that are listed or admitted for trading on any United
States national securities exchange or that are quoted on the National
Association of Securities Dealers Automated Quotations System, or any similar
system
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of automated dissemination of quotations of securities prices in common use, so
long as the Employee does not control, acquire a controlling interest in or
become a member of a group which exercises direct or indirect control of, more
than five percent of any class of capital stock of such corporation.
6.2 Nondisclosure. The Employee shall not at any time divulge,
communicate, use to the detriment of the Employer or for the benefit of the
Employee or any other person, or misuse in any way, any Confidential Information
(as hereinafter defined) pertaining to the business of the Employer. Any
Confidential Information or data now or hereafter acquired by the Employee with
respect to the business of the Employer (which shall include, but not be limited
to, information concerning the Employer's financial condition, prospects,
technology, customers, suppliers, sources of leads and methods of doing
business) shall be deemed a valuable, special and unique asset of the Employer
that is received by the Employee in confidence and as a fiduciary, and Employee
shall remain a fiduciary to the Employer with respect to all of such
information. For purposes of this Agreement, "Confidential Information" means
information disclosed to the Employee or known by the Employee as a consequence
of or through his employment by the Employer (including information conceived,
originated, discovered or developed by the Employee) prior to or after the date
hereof, and not generally known, about the Employer or its business.
Notwithstanding the foregoing, nothing herein shall be deemed to restrict the
Employee from disclosing Confidential Information to the extent required by law.
This Section 6.2 shall not apply to information that (i) is generally known to
the Employee prior to its disclosure to the Employee; (ii) is or becomes
publicly available other than by unauthorized disclosure by the Employee; or
(iii) is received by the Employee from a third party who is rightfully in
possession of such information free of any obligation to maintain its
confidentiality; or (iv) is known by the Employee prior to his employment by the
Employer.
6.3 Nonsolicitation of Employees and Clients. At all times while the
Employee is employed by the Employer and for a two year period after the
termination of the Employee's employment with the Employer for any reason, the
Employee shall not, directly or indirectly, for himself or for any other person,
firm, corporation, partnership, association or other entity (a) employ or
attempt to employ or enter into any contractual arrangement with any employee or
former employee of the Employer, and/or (b) call on or solicit any of the
Employer's actual or targeted prospective customers, suppliers, providers of
products or services to the Employer or its customers, or comparable parties
("Customers/Providers") on behalf of any person or entity in connection with any
business competitive with the business of the Employer as defined herein, nor
shall the Employee make known the names and addresses of Customers/Providers or
any information relating in any manner to the Employer's trade or business
relationships with Customers/Providers, other than in connection with the
performance of Employee's duties under this Agreement; provided however that
this Section 6.3 shall not apply to any solicitation of users of the Internet
generally through a web site that can be accessed by the public so long as such
solicitation does not involve direct contact with Customers/Providers.
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6.4 Ownership of Developments. All copyrights, patents, trade secrets,
or other intellectual property rights associated with any ideas, concepts,
techniques, inventions, processes, or works of authorship developed or created
by Employee during the course of performing work for the Employer or its clients
(collectively, the "Work Product") shall belong exclusively to the Employer and
shall, to the extent possible, be considered a work made by the Employee for
hire for the Employer within the meaning of Title 17 of the United States Code.
To the extent the Work Product may not be considered work made by the Employee
for hire for the Employer, the Employee agrees to assign, and automatically
assigns at the time of creation of the Work Product, without any requirement of
further consideration, any right, title, or interest the Employee may have in
such Work Product. Upon the request of the Employer, the Employee shall take
such further actions, including execution and delivery of instruments of
conveyance, as may be appropriate to give full and proper effect to such
assignment.
6.5 Books and Records. All books, records, and accounts relating in
any manner to the customers or clients of the Employer, whether prepared by the
Employee or otherwise coming into the Employee's possession, shall be the
exclusive property of the Employer and shall be returned immediately to the
Employer on termination of the Employee's employment hereunder or on the
Employer's request at any time.
6.6 Definition of Employer. Solely for purposes of this Section 6, the
term "Employer" also shall include any existing or future subsidiaries of the
Employer that are operating during the time periods described herein and any
other entities that directly or indirectly, through one or more intermediaries,
control, are controlled by or are under common control with the Employer during
the periods described herein.
6.7 Acknowledgment by Employee. The Employee acknowledges and confirms
that (a) the restrictive covenants contained in this Section 6 are reasonably
necessary to protect the legitimate business interests of the Employer, and (b )
the restrictions contained in this Section 6 (including without limitation the
length of the term of the provisions of this Section 6) are not overbroad,
overlong, or unfair and are not the result of overreaching, duress or coercion
of any kind. The Employee further acknowledges and confirms that his
full,uninhibited and faithful observance of each of the covenants contained in
this Section 6 will not cause him any undue hardship, financial or otherwise,
and that enforcement of each of the covenants contained herein will not impair
his ability to obtain employment commensurate with his abilities and on terms
fully acceptable to him or otherwise to obtain income required for the
comfortable support of him and his family and the satisfaction of the needs of
his creditors. The Employee acknowledges and confirms that his special knowledge
of the business of the Employer is such as would cause the Employer serious
injury or loss if he were to use such ability and knowledge to the benefit of a
competitor or were to compete with the Employer in violation of the terms of
this Section 6. The Employee further acknowledges that the restrictions
contained in this Section 6 are intended to be, and shall be, for the benefit of
and shall be enforceable by, the Employer's successors and assigns.
6.8 Reformation by Court. In the event that a court of competent
jurisdiction shall determine that any provision of this Section 6 is invalid or
more restrictive than permitted
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under the governing law of such jurisdiction, then only as to enforcement of
this Section 6 within the jurisdiction of such court, such provision shall be
interpreted and enforced as if it provided for the maximum restriction permitted
under such governing law.
6.9 Extension of Time. If the Employee shall be in violation of any
provision of this Section 6, then each time limitation set forth in this Section
6 shall be extended for a period of time equal to the period of time during
which such violation or violations occur. If the Employer seeks injunctive
relief from such violation in any court, then the covenants set forth in this
Section 6 shall be extended for a period of time equal to the pendency of such
proceeding including all appeals by the Employee.
7. Injunction. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Employee of any of the covenants contained in
Section 6 of this Agreement will cause irreparable harm and damage to the
Employer, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Employee recognizes and hereby acknowledges that the Employer
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Section 6 of this Agreement by the Employee or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Employer may possess.
8. Mediation. Except to the extent the Employer has the right to seek an
injunction under Section 7 hereof, in the event a dispute arises out of or
relates to this Agreement, or the breach thereof, and if the dispute cannot be
settled through negotiation, the parties hereby agree first to attempt in good
faith to settle the dispute by mediation administered by the American
Arbitration Association under its Employment Mediation Rules before resorting to
litigation or some other dispute resolution procedure.
9. Assignment. Neither party shall have the right to assign or delegate his
rights or obligations hereunder, or any portion thereof, to any other person.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and, upon
its effectiveness, shall supersede all prior agreements, understandings and
arrangements, both oral and written, between the Employee and the Employer (or
any of its affiliates) with respect to such subject matter. This Agreement may
not be modified in any way unless by a written instrument signed by both the
Employer and the Employee.
12. Notices. All notices required or permitted to be given hereunder shall
be in writing and shall be personally delivered by courier, sent by registered
or certified mail, return receipt requested or sent by confirmed facsimile
transmission addressed as set forth herein.
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Notices personally delivered, sent by facsimile or sent by overnight courier
shall be deemed given on the date of delivery and notices mailed in accordance
with the foregoing shall be deemed given upon the earlier of receipt by the
addressee, as evidenced by the return receipt thereof, or three (3) days after
deposit in the U. S. mail. Notice shall be sent (i) if to the Employer,
addressed to 000X Xxxxx Xxxx Xxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000-0000, and (ii)
if to the Employee, to his address as reflected on the payroll records of the
Employer, or to such other address as either party hereto may from time to time
give notice to the other.
13. Benefits; Binding Effect. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, and successors.
14. Severability. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and, in the
event that anyone or more of the words, phrases, sentences, clauses or sections
contained in this Agreement shall be declared invalid, this Agreement shall be
construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, or section or sections had not been inserted. If
such invalidity is caused by length of time or size of area, or both, the
otherwise invalid provision will be considered to be reduced to a period or area
which would cure such invalidity .
15. Waivers .The waiver by either party hereto of a breach or violation of
any term or provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach or violation.
16. Section Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Employer, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
18. Venue. In the event of litigation arising out of this Agreement, venue
shall be in Brevard County, Florida.
19. Survival. The provisions of this Sections 6-18 hereof shall survive the
termination of this Agreement, as applicable.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written
Employer:
American Xxxxxxxxxxxxx.xxx, Inc.
By:_________________________
Xxxxxx X. Xxxxxxxx, CEO/President:
Employee:
_____________________________
Xxx Xxxxx
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ADDENDUM TO
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EMPLOYMENT AGREEMENT
--------------------
This ADDENDUM TO EMPLOYMENT AGREEMENT, made and entered into as of the 1st
day of June 2000, by and between New Millennium Media International, Inc., a
Colorado corporation (the "CORPORATION"), and Xx. Xxxx Xxxxxx, an individual
residing in Clearwater, Florida (the "EXECUTIVE").
WITNESSETH THAT:
---------------
WHEREAS, the Parties hereto entered into an Employment Agreement dated
November 2, 1999 for a term of three years;
WHEREAS, the Parties desire to change an element of the employee's
compensation as stated in said Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, it is hereby covenanted and agreed by the Corporation and the
Executive as follows:
1. Paragraph 3.(a) of the Employment Agreement between the parties hereto
is deleted in its entirety and substituted in its stead shall be the
paragraph 3.(a) as follows:
"3.(a) He shall receive, for the first 12-consecutive month
period beginning on the beginning January 1, 2000 a rate of
salary that is not less than $140,000 per year, payable in
substantially equal monthly or more frequent installments. For
the balance of the term of this Employment Agreement beginning on
January 1, 2001 and for the balance of the employment term the
EXECUTIVE shall receive a rate of salary that is not less than
$120,000 per year, payable in substantially equal monthly or more
frequent installments. The Corporation shall also provide an
additional $10,000.yearly for non accountable expenses, payable
at least monthly to Executive. During the Employment Period the
Executive's salary rate shall be reviewed by the Board of
Directors on or before each anniversary of the Commencement Date
to determine whether an increase in his rate of compensation is
appropriate."
2. In all other respects the said November 2, 1999 Employment Agreement
shall remain unchanged and is hereby ratified and affirmed as modified
herein.
IN WITNESS WHEREOF, the Executive and the Corporation have executed this
Employment Agreement as of the day and year first above written.
________________________________________
Xxxx Xxxxxx
________________________________________
By: Xxxxxx X. Xxxxxx
Its: Chairman
NEW MILLENNIUM MEDIA INTERNATIONAL, INC.
