Exhibit 10.49
EMPLOYEEMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of March 13, 2000,
("Effective Date"), is made and entered into by and between XxxxxxxxxXxx.Xxx,
Inc., a Nevada corporation (the "Company"), and Len von Vital, a Pennsylvania
resident ("Employee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that the Employee's contribution to the growth and success of the Company will
be substantial, and the Board has further determined that this Agreement will
reinforce and encourage the Employee's attention and dedication to the Company
and is in the best interests of the Company, and
WHEREAS, the Board desires to provide for the employment of the Employee
and the Employee is willing to commit himself to serve the Company.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and agreements of the parties herein contained and other good and valuable
consideration, the receipt and sufficiency all of which are forever acknowledged
and confessed, the parties hereby agree as follows:
1. Agreement for Employment.
1.1 Employment. The Company (including its successors, present and future
subsidiaries, affiliates or divisions of the Company or any one or more other
entities to which the business or functions of the Company may be transferred)
hereby engages and employs and agrees to continue to employ the Employee, and
Employee accepts such engagement and employment as Chief Financial Officer and
Executive Vice President of the Company and agrees to serve the Company on the
terms herein specified.
1.2 Employee's Service. Employee agrees to act as Chief Financial Officer
of Company for so long as he holds such offices of the Company. Employee shall
divide his time among New York City, Orlando, and his home office during the
term of this Agreement.
1.3 Office of Chief Financial Officer. Employee acknowledges that the
office of Chief Financial Officer of the Company is an office to
which he must be appointed by the Board and that the Board has
appointed Employee to serve for a period equal to the Term. Employee
may not be removed from such office except in strict accordance with
the procedures set forth in this Agreement. The removal of Employee
or expiration of Employee's appointment shall not affect this
Agreement except as specified below. Company represents and warrants
to Employee that Company's Articles of Incorporation and By-
laws do not prohibit such appointment and the employment
contemplated hereunder.
2. Scope of Management and Duties.
2.1 Scope of Duties. The Employee is authorized to conduct the Company's
financial affairs as he deems appropriate, subject to the direction of the
President, Chief Executive Officer and Board of Directors, and within confines
of the legal and accounting rules and principles applicable to his activities.
The Employee shall be the senior financial officer of the Company and the
primary effector of Board action with respect to financial matters, with
responsibility and authority for the general direction of the financial affairs
of the Company. Employee shall be solely responsible for conducting the day to
day financial operations of the Company. The Employee shall attend meetings of
the Board as may from time to time be requested, and in general shall perform
all duties customarily incident to the offices of Chief Financial Officer.
2.2 Legal Compliance. In the discharge of his duties, the Employee shall use his
best efforts to adhere to the legal requirements codified in statues, ordinances
and governmental regulations applicable to the Company, unless the failure to do
so will not have a material adverse effect on the Company.
2.3 Required Efforts. Employee shall devote his full time and effort to the
business and affairs of the Company in order to accomplish the tasks assigned to
him under this Agreement, except in cases of Disability or Incapacity, as
hereinafter defined. This Agreement shall not be construed to prevent the
Employee from investing his personal assets in businesses which do not compete
with Company.
3. Term.
3.1 Term. This Agreement shall commence on the Effective Date and
continue thereafter, unless terminated as hereinafter provided, for one year
from the Effective Date (the "Initial Term") and for successive one (1) year
periods ("Renewal Terms"). The word "Term" shall mean the Initial Term as well
as any and all Renewal Terms.
3.2 Renewal. This Agreement shall be automatically extended without the
action of any party at the end of the Initial Term and each Renewal Term unless
either the Company or the Employee delivers to the other written notice that the
Employee's employment hereunder will not be extended. Such notice must be
delivered at least ninety (90) days prior to the expiration of the Term, whether
the Initial Term or a Renewal Term, for which it is to be effective.
4. Compensation.
4.1 Base Salary. Throughout the Term of this Agreement the Company agrees
to compensate and pay Employee a base salary at the initial rate of ONE HUNDRED
eighty THOUSAND DOLLARS ($ 180,000) per year, commencing on March 13, 2000. The
base salary shall be paid in equal periodic installments on the fifteenth and
last day of each
month. The base salary shall be increased annually in accordance with the good
faith business practices of the Company and customary business practices.
4.2 Annual Incentive Bonus: Employee's target bonus will be 30% of your
annual cash base salary. This bonus will be developed with the FWEB Board of
Directors, and will be based on Employee's individual and business performance
against specific objectives developed by the Board of Directors. It will be paid
in the first quarter following each performance year.
4.3 Termination Compensation. If Employee's employment is terminated for
any reason other than by Employee's voluntary resignation or "For Cause" as
defined in Section 7.5, the Employee's Base Salary shall be continued (a) for a
period equal to six months or (b) if lesser, until Employee is re-employed on a
full-time basis. In the event of termination, other than "For Cause" or
voluntary resignation, Employee shall use his best efforts to be re-employed on
a full time basis, which efforts shall be a condition to receipt of Termination
Compensation. The Termination Compensation shall be paid in equal periodic
installments on the fifteenth and last days of each month.
4.4 Equity Compensation. In addition to Employee's compensation provided
above, the Company shall grant stock options to Employee, as set forth below.
Notwithstanding the foregoing, if Employee's employment is terminated for any
reason, other than "For Cause" or Employee's voluntary resignation, the equity
interest hereunder shall vest and be transferred to Employee as of the date of
Employee's termination of employment. Furthermore, if the Company undergoes a
change of control, as defined herein, all of the equity interest hereunder shall
vest immediately.
4.5 Stock Incentive Award: Upon commencement of employment, Employee will
be granted an option to purchase 300,000 shares of the Company's common stock
("Option Shares") at an exercise price of $5.00 per share, which shares will
vest over the succeeding 12 month period at the rate of 25,000 shares per month.
Employee will have additional grant targets set against an additional 190,000
Option Shares when the Company's share trading price closes for three
consecutive days at or above the following prices, as follows:
o 9 dollars - an option shall be granted to purchase 95,000 shares at 9 dollars.
o 11 dollars - an option shall be granted to purchase 95,000 shares at 11
dollars.
5. Reimbursement for Expenses.
5.1 Reimbursement. The Company shall reimburse Employee or cause him to
be promptly reimbursed for all reasonable and necessary expenses incurred by
Employee in furtherance of the business and affairs of the Company, including,
but not limited to, all travel expenses and living expenses while away from home
on business or at the request of the Company or the Board. Such reimbursement
shall be effected as soon as reasonably practicable after such expenditures are
made, against presentation of signed, itemized expense reports in accordance
with the present travel and business expense reimbursement policies of the
Company.
6. Fringe Benefits.
6.1 Benefits. The Company shall furnish to Employee, at the Company's
expense, the following specific benefits in addition to any other benefits
provided in the Agreement.
(a) Company paid family medical and dental insurance coverage. The
insurance coverage provided to the Employee shall be no less
favorable to the Employee and his family, than the insurance
coverage provided by the Company to any other employee, agent,
officer or similar operative of the Company or that which is in
effect on the Effective Date;
(b) Participation in the Company's 401K plan.
(c) A life insurance policy equal to 4 (four) times Employee's base
salary.
(d) A disability policy for short term and long term disability.
6.2 Other Benefits. The Company maintains employee benefit plans and
arrangements. The Employee shall be entitled to and may elect to participate in,
or receive benefits equivalent to, any plans or arrangements instituted
subsequent hereto by the Company for its employees (including without limitation
each pension and retirement plan and arrangement, stock option plan, life
insurance and health-and-accident plan and arrangement, medical insurance plan,
disability plan, survivor income plan, relocation plan and vacation plan). The
Company shall not make any changes in such plans or arrangements, which would
adversely affect the Employee's rights or benefits thereunder. Nothing paid to
the Employee under any plan or arrangement presently in effect or made available
in the future shall be deemed to be in lieu of the base salary payable to the
Employee.
6.3 Post Termination Benefits. If Employee's employment is terminated for
any reason other than "For Cause" or Employee's voluntary resignation, the
Fringe Benefits provided to Employee under this Article 6 shall be continued for
(a) a period equal to six (6) months or (b) if lesser, until Employee is
re-employed on a full-time basis. In the event of termination, other than "For
Cause" or voluntary resignation, Employee shall use his best efforts to be
re-employed on a full time basis, which efforts shall be a condition to receipt
of Fringe Benefits.
6.4 Vacations. The Employee shall be entitled to 15 (fifteen) vacation
days in each calendar year, and to compensation for earned but unused vacation
days, determined in accordance with the Company's vacation plan. The Employee
shall also be entitled to all paid holidays given by the Company to its
executives and other employees. The number of vacation and paid holidays and the
policies related thereto available to the Employee shall be no less favorable to
the Employee than the vacation and holiday benefits provided to any other
employee, agent or similar operative or those in effect on the Effective Date.
6.5 Service Furnished. The Company shall furnish the Employee with office
space, word processing and computer assistance and such other facilities and
services as shall be suitable to the Employee's position and adequate for the
performance of his duties as set forth herein.
7. Termination.
7.1 Events of Termination. This Agreement may only be terminated upon the
following circumstances:
(a) Death. The death of the Employee;
(b) Disability. The Employee's Disability and election of the Company to
terminate as set forth in Sections 7.2 and 7.3, respectively;
(c) Term Expiration. The expiration of the Initial Term or any Renewal
Term only if the written notice provided for in Section 3.2 has been
delivered to the nonterminating party after the beginning of the Term
that is to be the last Term and 90 (ninety) days prior to the
expiration of the Term for which the notice is to be effective;
(d) Termination For Cause by the Company. Written notice from the Company
delivered to the Employee that his employment is terminated For
Cause, as that term is defined below; and
(e) Termination for Good Reason by the Employee. Written notice from the
Employee delivered to the Company that his employment is terminated
For Good Reason as that term is defined below.
7.2 Definition of Disability. "Disability" as applied to the Employee
shall be deemed to have occurred whenever the Employee has
suffered physical or mental illness or infirmity of such nature,
degree or effect as to render Employee substantially unable to
perform his duties as delineated in Article 2 hereof for a period
of two (2) consecutive months.
7.3 Termination in the Event of Disability. In the event of Employee's
Disability, the Company, shall have the right to terminate the Employee's
employment at any time upon 30 (thirty) days advance written Notice of
Termination to Employee, provided however, that the Employee may contest the
determination of Incapacity at any time as provided in Section 7.4. If the
Company has not elected to terminate the Employee's employment after Disability
has occurred, the Company may appoint another person to temporarily perform the
duties of Employee, but in such case such appointment shall not constitute a
termination of Employee's employment nor a breach by the Company of this
Agreement.
7.4 Determination of Disability. The Employee's physician, at the
Company's request, shall determine, according to the facts then available to
him, whether Disability has occurred and is continuing. Such determination shall
be made in good faith and not arbitrarily or unreasonably made. The Board may
request the opinion of a reputable and qualified physician mutually acceptable
to Employee and the Company to examine Employee for the purpose of determining
whether Employee is in fact disabled. The fees of such physician, as well as any
other expenses related to such physician's examination of Employee, shall be
paid by the Company. Employee shall be given written notice of the intent of the
Company to make such request and the Employee shall be provided with sufficient
time to respond thereto. In the event the Employee's physician and the mutually
agreed upon physician do not concur, the Employee shall have the right to
request the appointment of a mutually agreeable third physician who shall
consult with the other two physicians and make a final binding determination
with respect to the Employee's Disability.
7.5 For Cause. Except for Disability or termination upon expiration of
the Term, the Company may terminate Employee's employment only "For Cause." For
purposes of this Agreement, the Company shall have "Cause to terminate the
Employee's employment only if termination by the Company shall have taken place
as a direct result of: (i) Employee's conviction of a crime which constitutes a
felony or misdemeanor with a possible sentence of one year or more, or (ii)
Employee's failure or refusal to perform, or negligence in performing, his
lawful duties as required his duties as required by this Agreement following
written notice of such default within 3 (three) days of Employee's receipt of
notice, or (iii) conduct that is unethical,, illegal, or prejudicial to the
image or interests of the Company, or (iv) failure to follow the instructions
that from time to time may be issued or meet the goals that may from time to
time be set by the Board of Directors.
7.6 Termination by the Employee. The Employee may terminate his
employment hereunder for Good Reason.
For the purposes of this Agreement, "Good Reason" shall mean (a) a change
in Control of the Company (as defined below), (b) a failure by the Company to
comply with any material provision of this Agreement which has not been cured
within thirty (30) days after written notice of such noncompliance has been
given by the Employee to the Company, (c) any purported termination of the
Employee's employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of paragraph 7.8 hereof (and for purposes of this
Agreement no such purported termination shall be effective), (d) any act or
pattern of acts of hostility toward employee or creation of a hostile work
environment, or (e) any time when Employee's health is impaired to an extent
that makes his continued performance of his duties hereunder hazardous to his
physical or mental health or his life, provided that the Employee shall have
furnished the Company with a written statement from a physician to such effect,
if requested by the Company.
7.7 Change of Control. For purposes of this Agreement, a "Change of
Control," shall be deemed to have occurred if there is any change in legal or
beneficial share ownership from that reflected on the Effective Date in the
transfer ledger or other record of share ownership of the Company other than in
connection with (i) a public offering; or (ii) any change in Share ownership
which effects less than thirty percent (30%) of the issued and outstanding stock
of the Company when aggregated with all prior transfers during the immediately
preceding twenty-four (24) month period.
7.8 Notice of Termination. Any termination of the Employee's employment
by the Company or by the Employee shall be communicated by written notice of
termination to the other party hereto. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Employee's employment under the provision so indicated.
7.9 Date of Termination. "Date of Termination" shall mean (i) if the
Employee's employment is terminated by his death, the date of his death, (ii) if
the Employee's employment is terminated pursuant to paragraph 7.1 (b) above, 30
(thirty) days after Notice of Termination is given (iii) if the Employee's
employment is terminated pursuant to paragraph 7.1(c) above, the date specified
in the Notice of Termination, and (iv) if the Employee's employment is
terminated for any other reason the date on which a Notice of Termination is
given.
7.10 Payment Upon Termination by Company. If the Employee's employment
shall be terminated pursuant to Sections 7.1(a), (b) or (c), the Company shall
pay the Employee his base salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given thereafter, compensation shall
be paid, as herein provided. If Employee dies, however, Employee's spouse shall
receive all compensation, including post termination compensation, due to
Employee.
7.11 Miscellaneous. Termination of employment of Employee shall not
terminate this Agreement. Employee, however, shall not be obligated to mitigate
damages by seeking employment elsewhere.
8. Confidential Information.
8.1 Employee agrees that he will not, either during the term of this
Agreement or at any time after the termination thereof, disclose or make
accessible to any other person (except pursuant to the valid order of a court or
governmental agency), or use for the benefit of himself or any other person, any
Confidential Information as hereinafter defined.
8.2 "Confidential Information" for the purposes of this Employment
Agreement means any knowledge of information which is not generally known or
available relating to the existing or contemplated products, or services,
equipment, processes and methods, technology, research, engineering or
developmental work, processes, formulae, inventions, plans, business procedures,
sales methods, customer lists, customer usage and requirements, raw materials
and the suppliers and costs thereof, and other confidential business information
and data relating to the affairs of the Company or of any other subsidiary or
division of the Company with which Employee may have an association or
relationship. Confidential Information shall not, however, include any
information which (a) has become knows in the industry through no wrongful act
of Employee; (b) has been rightfully received from a third party without
restriction and without breach of this Agreement; (c) has been furnished to a
third party by the Company without a similar restriction on the third party's
rights; or (d) is in the public domain.
9. Notices. Any notices and communications required to be given under
this Employment Agreement shall be in writing and shall be sent by registered or
certified mail, postage prepaid, or delivered by hand to the parties at the
addresses set forth below, or at such other addresses as any party may designate
to the others by notice hereunder:
If to the Company:
XxxxxxxxxXxx.xxx, Inc.
000 Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
If to Employee:
Mr. Len von Vital
00 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
10. Review.
Each year in March, the Company and the Employee agree to meet to review
the performance of Employee, Employee's status with the Company and the status
of the Company.
11. Good Faith. Except as herein expressly provided to the contrary,
whenever this Agreement requires any consent or approval to be given by either
party, or either party must or may exercise discretion, the parties agree that
such consents or approvals and all actions taken in compliance with or relating
to this Agreement shall not be unreasonably withheld or delayed and shall be
reasonable exercised in good faith.
12. Severability.
If any provision or term of this Agreement shall be found by any court of
competent jurisdiction to be enforceable, the remaining terms and provisions
hereof shall remain in full force and effect, as if such enforceable provision
or term had never been a part hereof.
13. Captions.
The headings of paragraphs hereof are used for convenience only and shall
not affect the meaning or interpretation of the contents hereof.
14. Successors.
This Agreement is personal and may not be assigned by Employee. This
Agreement shall inure to the benefit of and be binding upon the Company's
successors and assigns. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, by agreement and
form and substance satisfactory to Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no succession had taken place.
Failure of the Company to obtain such agreement prior to such succession shall
be a breach of this Agreement and shall entitle the Employee to compensation in
the same amount and on the same terms as if he terminated his employment for
Good Reason. The date on which the succession becomes effective shall be deemed
the Date of Termination. For purposes of this Agreement "Company" shall mean not
only the Company as defined herein, but also any successor to its business or
assets or which otherwise becomes bound under this Agreement by operation of
law.
15. Entire Agreement.
This Employment Agreement contains the entire agreement between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
modified or amended or waived or discharged except in writing signed by all
parties.
16. Governing Law.
This Agreement is entered into and shall be construed in accordance with
the laws of the State of Florida. The parties hereto shall submit to the
jurisdiction and venue of the State and Federal Courts of Florida in the event
of a dispute.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the day and year first above written.
XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxxxx
-------------------
Name: Xxxxx Xxxxxxxxx
Title: President & CEO
/s/ Len von Vital
-----------------
Len von Vital
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Between Len von Vital and XxxxxxxxxXxx.xxx, Inc.
THIS AMENDMENT to the Employment Agreement ("Agreement") entered into between
the above named parties on March 13, 2000, is made and agreed to as follows:
1. Introductory Paragraph - Employee's Effective Date is March 16, 2000.
2. Paragraph 4.1 - Employee shall commence rendering services to the Company
on March 16, 2000, and payment of his base salary shall likewise commence
on that date.
3. Paragraph 4.4 - The following paragraph is hereby incorporated into and
made a part of the Agreement, following Paragraph 4.4:
4.4.1 - Upon execution of this Agreement by the Parties, it shall be
submitted to the Compensation Committee of the Board of Directors for
review and approval. Employee shall not have any legal or beneficial
interest in any securities of the Company until such time as the
Compensation Committee ("Committee") or the Board of Directors ("Board")
grants to the Employee an option to purchase stock. Any option grant shall
contain such terms and conditions as the Committee or the Board deems
appropriate.
4. Paragraph 4.5 - Paragraph 4.5 is hereby deleted in its entirety, and
replaced with the following text:
Upon commencement of employment, management shall recommend to the
Committee that Employee be granted an option to purchase 300,000 shares of
the Company's common stock, with the vesting period to run from the
Employee's commencement date, at the rate of 25,000 shares per month over
the succeeding 12 months. Management shall further recommend that Employee
be granted an option to purchase 95,000 shares at an exercise price of
$9.00 when the share trading price closes at or above $9.00 for three
consecutive days, and an option to purchase 95,000 shares at an exercise
price of $11 when the share trading price closes at or above $11 for three
consecutive days.
5. The following text is hereby incorporated into and made a part of the
Agreement as Paragraph 17:
Employee fully understands the content and implications of this Amendment,
and hereby forever releases, discharges, and forgives the Company from any
and all claims, actions, suits, demands, agreements, and each of them, if
more than one, liabilities, and proceedings both at law and in equity
arising from the beginning of time to the date of these presents for and as
more particularly related to or arriving from any change in financial
circumstances, expectations or condition that Employee may experience as a
result of the terms and conditions set forth in this amendment.
/S/ Len von Vital /S/ Xxxxx Xxxxxxxxx
----------------- -------------------
Xxxxxxx von Vital Xxxxx Xxxxxxxxx
President
Date: March 15, 2000 Date: March 15, 2000
