10.5
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 23rd day of September 1999, among WALL STREET
STRATEGIES, INC., a Delaware corporation, having a place of business at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter designated and referred to
as the "Company"), VACATION EMPORIUM CORPORATION, a Nevada corporation, having a
place of business at 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (hereinafter
designated and referred to as the "Parent"), and XXXXXXX XXXXX, an individual
residing at 000 Xxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter designated
and referred to as the "Executive").
WHEREAS, Executive and Parent have entered into an Agreement and Plan of
Share Exchange dated as of July 30, 1999 (the "Purchase Agreement") pursuant to
which Executive proposes to sell to Parent all of the issued and outstanding
shares of common stock of the Company in exchange for shares of the common stock
of Parent;
WHEREAS, Executive is currently, and has, since prior to the date of the
Purchase Agreement, been serving as the President and Chief Executive Officer of
the Company;
WHEREAS, it is a condition to the closing of the Purchase Agreement that
Executive, the Company and the Parent enter into this Agreement providing for
the Executive to be employed by the Company and the Parent as President and
Chief Executive Officer of each on the terms and subject to the provisions set
forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Term. The term of this Agreement shall be for a period of three
(3) years commencing on the date hereof, subject to earlier termination as
provided herein or unless extended by consent of all parties.
2. Employment.
(A) Subject to the terms and conditions and for the compensation
hereinafter set forth, the Company and the Parent hereby agree to employ the
Executive for and during the term of this Agreement. Executive is hereby
employed by the Parent and the Company as President and Chief Executive Officer
of each. The Executive's powers and duties shall be those of an executive nature
which are appropriate for a President and Chief Executive Officer, and shall be
determined only by the Board of Directors from time to time in accordance with
the Parent and the Company's respective By-Laws but in any event Executive shall
have final editorial approval of all literature published, printed, created,
distributed or used by the Company for use with respect to its clients; and the
Executive does hereby accept such employment or other substantially similar or
greater employment as may be mutually agreed upon by the parties hereto and
agrees to use his best efforts and to devote his full business time during the
term of this Agreement, to the performance of his duties upon the conditions
hereinafter set forth. Executive shall report to the Boards of Directors
(collectively hereinafter referred to as the "Boards") of the Parent and the
Company. Neither the Parent nor the Company shall require Executive to be
employed in any location other than the Metropolitan New York City area unless
he consents in writing to such location.
(B) During the term of this Agreement, Executive shall be furnished
with office space and facilities at least consistent with that previously
provided by the Company.
(C) During the term of this Agreement, the Parent shall be
responsible (i) to pay to Executive the compensation set forth in Section 3;
(ii) reimburse Executive for expenses as provided in Section 4; and (iii)
provide Executive with the benefits and vacation set forth in
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Section 5. In the event the Parent fails to perform any of its obligations under
Section 3, 4, 5, 9, or any other Section of this Agreement, the Company shall be
so obligated.
3. Compensation.
(A) Salary. During the term of this Agreement, the Parent agrees to
pay Executive, and Executive agrees to accept, an annual salary of not less than
Two Hundred Fifty Thousand Dollars ($250,000) per year, payable in accordance
with the Parent's policies, for all services rendered by Executive hereunder.
(B) Bonus. As additional compensation, the Executive will be
entitled to earn cash bonuses as set forth on Schedule I attached hereto.
(C) Increases. The annual salary is subject to periodic increases at
the discretion of the Board of Directors of the Parent, but shall be increased
by not less than ten percent (10%) per year, with such increases to take effect
no later than on each anniversary date of this Agreement. The bonus shall be
subject to increases at the discretion of the Board of Directors of the Parent.
4. Expenses. The Parent shall reimburse Executive for all reasonable
and actual business expenses incurred by him in connection with his service to
the Parent or the Company, upon submission by him of appropriate vouchers and
expense account reports. Such business expenses shall include, but be not
limited to, a monthly transportation allowance of not less than Eight Hundred
Dollars ($800).
5. Benefits.
(A) Insurance. In addition to the salary and bonus to be paid to
Executive hereunder, the Company shall continue to maintain family medical and
dental insurance, life and disability income insurance as now in effect.
Additionally, the Parent shall
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provide Executive with split dollar and/or whole life insurance in the aggregate
amount of One Million Dollars ($1,000,000) on the life of the Executive and for
which Executive shall designate the beneficiary(ies), long term disability
insurance providing monthly disability benefits to Executive of not less than
Twelve Thousand Five Hundred Dollars ($12,500) inclusive of any disability
income insurance now in effect provided by the Company. Executive and his
dependents shall be entitled to participate in such other benefits as are
hereafter extended to active executive employees of the Parent and the Company
and their dependents. The foregoing life and individual disability income
policies shall have the costs and other terms and conditions as identified in
Schedule II attached hereto.
(B) Vacation. The Executive shall be entitled to take up to six (6)
weeks of paid vacation annually at a time mutually convenient to the Parent, the
Company and the Executive.
6. Full Business Time. The Executive, during the term of this
Agreement, shall devote his full business time, attention and energy and render
his best efforts and skill to the business of the Parent and the Company.
7. Discoveries, etc.
(A) Ownership. The Parent and the Company shall be the owners,
without further compensation, of all rights of every kind in and with respect to
any reports, materials, inventions, processes, discoveries, improvements,
modifications, know-how or trade secrets hereafter made, prepared, invented,
discovered, acquired, suggested or reduced to practice (hereinafter designated
and referred to as "Property Rights") by Executive in connection with
Executive's performance of his duties pursuant to this Agreement or relating to
the business
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of the Parent and the Company, and the Parent and Company shall be entitled to
utilize and dispose of such in such manner as they may determine.
(B) Disclosure. The Executive agrees to and shall promptly disclose
to the Boards all Property Rights (whether or not patentable) made, discovered
or conceived of by him, alone or with others, at any time during his employment
with the Parent and the Company. Any such Property Rights will be the exclusive
property of the Parent and the Company, and Executive will execute any
assignments requested by the Parent and the Company of his right, title or
interest in any such Property Rights. In addition, the Executive will also
provide the Parent and the Company with any other instruments or documents
requested by the Parent and the Company, at the Parent's and the Company's
expense, as may be necessary or desirable in applying for and obtaining patents
with respect thereto in the United States and all foreign countries. The
Executive also agrees to cooperate with the Parent and the Company in the
prosecution or defense of any patent claims or litigation or proceedings
involving inventions, trade secrets, trademarks, service marks, secret
processes, discoveries or improvements, whether or not he is employed by the
Parent and the Company at the time; provided that, should Executive not be
employed by the Parent and the Company at such time, he will receive reasonable
compensation for his time in this regard at no less than his present salary rate
on a per diem basis, as well as reimbursement of all out-of-pocket expenses he
may incur in connection with the performance of such services. Executive's
obligation under this Section 7(B) shall continue for a period of six (6) months
following the termination of his employment. This Section 7 shall not be
applicable to any inventions or discoveries made by Executive outside of the
scope of his employment and which are unrelated to the business of the Parent
and the Company.
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8. Confidential Information and Non-Competition.
(A) Confidentiality. Executive recognizes and acknowledges that the
Parent and the Company, through the expenditure of considerable time and money,
will acquire, has developed and will continue to develop in the future,
information, skills, confidential information, know-how, formulae, technical
expertise and methods relating to or forming part of the Parent's or the
Company's services and products and conduct of their businesses, and that the
same are confidential and proprietary, and are "trade secrets" of the Parent and
the Company. Executive understands and agrees that such trade secrets give or
may give the Parent and the Company a significant competitive advantage.
Executive further recognizes that the success of the Parent and the Company
depends on keeping confidential both the trade secrets already developed or to
be acquired and any future developments of trade secrets. Executive understands
that in his capacity with the Parent and the Company he will be entrusted with
knowledge of such trade secrets and, in recognition of the importance thereof
and in consideration of his employment by the Parent and the Company hereunder,
agrees that he will not, without the consent of the Board of Directors of the
Parent, make any disclosure of trade secrets now or hereafter possessed by the
Parent or Company to any person, partnership, corporation or entity either
during or after the term hereunder, except to employees of the Parent or the
Company or their subsidiaries or affiliates, as may be necessary in the regular
course of business and except as may be required pursuant to any court order,
judgment or decision from any court of competent jurisdiction. The foregoing
shall not apply to information which, after it is disclosed to Executive by the
Parent or the Company is published or becomes part of the public domain through
no fault of Executive; which is known to Executive prior to disclosure thereof
to him by the Parent and the Company as evidenced by his written records; or,
after Executive is no longer employed by
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the Parent and the Company, which is thereafter disclosed to Executive in good
faith by a third party who was not under any obligation of confidence or secrecy
to the Parent or the Company with respect to such information at the time of
disclosure to him.
(B) Restrictive Covenants. Executive will not, directly or
indirectly for a period of one (1) year following the termination of this
Agreement, unless such termination shall be for "Reason" as hereinafter defined:
(i) persuade or attempt to persuade any person or entity which
is or was a customer, client or supplier of the Company or the Parent during the
term of this Agreement or on the date on which Executive's employment with the
Company or the Parent is terminated to cease doing business with the Company or
the Parent, or to reduce the amount of business it does with the Company or the
Parent;
(ii) persuade or attempt to persuade, or hire or attempt to
hire, any employee of the Company or the Parent, or any individual who was an
employee of the Company or the Parent during the one (1) year period prior to
the termination of this Agreement, to leave the Company's or Parent's employ, or
to become employed by any person or entity other than the Company or the Parent;
or
(iii) engage in or market any business competitive with the
business of the Company or the Parent, enter the employ of or render any
services to, any person engaged in such activities, or become interested in any
such person in any capacity, including without limitation, as an individual,
partner, shareholder, investor, officer, director, principal, agent, trustee or
consultant; provided, however, he may own, directly or indirectly, solely as an
investment, securities of any person traded on any national securities exchange
if he is not a
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controlling person of, or a member of a group which controls such person and
does not, directly or indirectly, own 5% or more of any class of securities of
such person.
(C) Except as provided in the next sentence, the provisions of
Sections 8(A), 8(B)(i), 8(B)(ii), and 8(B)(iii) shall continue in full force and
effect notwithstanding any termination of Executive's employment under this
Agreement for a period of one (1) year following said termination of employment.
In the event this Agreement is terminated by Executive for "Reason," Sections
8(A) and 8(B) shall be cancelled and terminated.
(D) Remedies. If Executive commits a material breach or threatens to
commit a material breach of any of the provisions of either Section 8(A) or
8(B), the Parent shall have the right to seek enforcement hereof by any court
having equity jurisdiction. In addition, and without limiting the Parent's right
to seek such enforcement, the Parent shall also have the right to seek such
actual damages as it may prove, occasioned by such material breach.
9. Termination.
(A) Death. In the event of the Executive's death during the term of
his employment, Executive's designated beneficiary, or in the absence of such
beneficiary designation, his estate shall be entitled to payment of Executive's
accrued but unpaid salary, and bonuses and unreimbursed expenses through the
date of termination. In addition, Executive's beneficiary and/or dependents
shall be entitled, for a one (1) year period, to continuation, at the Parent's
or the Company's expense, of such benefits as are then being provided to them
under Section 5(A) hereof, and any additional benefits as may be provided to
dependents of the Parent's or the Company's executive officers in accordance
with the terms of the Parent's or the Company's policies and practices. In
addition, any options granted to the Executive which have not, by the terms of
the options, vested shall be deemed to have vested as of the date of his death
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and shall thereafter be exercisable by the Executive's beneficiary or estate for
the maximum period of time allowed for exercise thereof under the terms of the
Parent's stock option plan(s).
(B) Disability.
(i) In the event the Executive, by reason or physical or
mental incapacity, shall be disabled for a period of at least three (3)
consecutive months or four (4) months in the aggregate in any twelve (12) month
period, the Parent shall have the option at any time thereafter, to terminate
Executive's employment hereunder for disability. Such termination will be
effective five (5) business days after the Board of Directors of the Parent
gives written notice of such termination to the Executive, unless Executive
shall have returned to the performance of his duties prior to the effective date
of the notice. In the event of Executive's disability during the term of this
Agreement, Executive shall be entitled to payment of Executive's salary for a
period of ninety (90) days, and accrued but unpaid bonuses and unreimbursed
expenses through the date of termination. All other obligations of the Parent
hereunder shall cease upon the effectiveness of such termination, provided that
such termination shall not affect or impair any rights Executive may have under
any policy or disability insurance or benefits then maintained on his behalf by
the Parent and the Company. In addition, for a period of one (1) year following
termination of Executive's employment for disability, Executive and his
dependents, as the case may be, shall continue to receive the benefits set forth
under Section 5(A) hereof, as well as such benefits as are extended to the
Parent's and the Company's active executive employees and their dependents
during such period. Any options granted to the Executive which have not, by the
terms of the options, vested shall be deemed to have vested at the termination
and shall thereafter be exercisable by the Executive, his beneficiary,
conservator
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or estate, as applicable, for the maximum period of time allowed for exercise
thereof under the terms of such options.
(ii) "Incapacity" as used herein shall mean the inability of
the Executive due to physical or mental illness, injury or disease to perform
his normal duties as President and Chief Executive Officer. Executive's salary
as provided for hereunder shall continue to be paid during any period of
incapacity prior to and including the date on which Executive's employment is
terminated for disability.
(C) By the Parent for Cause.
(i) The Parent shall have the right, before the expiration of
the term of this Agreement, to terminate this Agreement and to discharge
Executive for cause (hereinafter "Cause"), and all compensation to Executive
shall cease to accrue upon discharge of the Executive for Cause. For the
purposes of this Agreement, the term "Cause" shall mean any of the following
occurring after the date stated in the initial paragraph of this Agreement:
(1) a knowing violation of law relating to the
Company's business;
(2) a knowing violation of a written material
Company policy;
(3) except for the orders entered by the court in
the matter of the Securities and Exchange Commission vs. Members Service
Corporation, et al., Case No. 1:97CV 01146 (TFH) in the United States District
Court for the District of Columbia, the issuance of any order, judgment or
decree permanently or preliminarily enjoining or otherwise limiting Executive or
his activities, as the case may be, (a) from engaging in the business of an
investment adviser, underwriter, broker or dealer in securities, (b) from
engaging in any type of
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business practice, activity in connection with the purchase or sale of any
security or commodity, or (c) in connection with any violation of federal or
state securities or commodities laws;
(4) Executive personally receiving a material
benefit in money, property or services from the Company or from another person
dealing with the Company in violation of (a) law, or (b) a written material
Company policy;
(5) an act of fraud, conversion, misappropriation
or embezzlement relating to or concerning the Company or the Parent;
(6) Executive's conviction of or entering a guilty
plea or a plea of no-contest with respect to a felony or the equivalent
thereof;
(7) Executive's breach of Section 8 hereof;
(8) any other breach of this Agreement in any
material respect, which is not cured by the Executive within thirty (30) days
after receipt of written notice from the Parent or the Company, as the case may
be.
(ii) If the Parent elects to terminate Executive's employment
for Cause under any of the provisions contained in Sections 9(C)(i)(1) through
(7) above, such termination shall be effective five (5) business days after the
Parent gives written notice of such termination to the Executive. In the event
the Parent intends to discharge Executive pursuant to Section 9(C)(i)(8) above,
the Board of Directors of Parent shall provide Executive with notice of its
intention to effect a termination for Cause. Any such notice shall be in writing
and shall specify the grounds for the existence of Cause, and provide Executive
with an opportunity of not less than thirty (30) days following his receipt of
such notice to cure same. In the event of a termination of the Executive's
employment for Cause in accordance with the provisions of Section 9(C)(i), the
Parent and the Company shall have no further obligation to the Executive,
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except for the payment of accrued but unpaid salary through the date of such
termination, and any other benefits to which he or his dependents may be
entitled by law.
(D) By Executive for Reason.
(i) The Executive shall have the right to terminate his
employment at any time for "good reason" (herein designated and referred to as
"Reason"). The term Reason shall mean (1) provided the Executive votes as a
director and shareholder of the Parent to maintain his positions with the
Company and Parent, the failure to elect or appoint, or re-elect or re-appoint,
Executive to, or removal of Executive from, his positions as President and/or
Chief Executive Officer or superior positions with the Parent or the Company
except in connection with the proper termination of Executive's employment by
reason of Cause, Death or Disability; (2) a reduction in Executive's overall
compensation or an adverse change in the nature or scope of the authorities,
powers, functions or duties normally attached to the Executive's positions with
the Parent or the Company; (3) the Parent or the Company's failure or refusal to
perform any obligations required to be performed in accordance with this
Agreement; and (4) a "Change of Control" of the Parent as defined herein. An
election by Executive to terminate his employment under the provisions of this
Section 9(D) shall not be deemed a voluntary termination of employment of the
Executive for the purpose of interrupting the provisions of any of the Parent's
or the Company's employee benefit plans, programs or policies.
(ii) If the Executive elects to terminate his employment under
this Agreement for Reason under any of the provisions contained in Sections
9(D)(i)(1), 9(D)(i)(2) or 9(D)(i)(4) above, such termination shall be effective
five (5) business days after the Executive gives written notice of such
termination to the Parent. In the event Executive intends to terminate his
employment pursuant to Section 9(D)(i)(3) above, the Executive shall provide
Parent with his
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intention to effect a termination for Reason. Any such notice shall be in
writing and specify the grounds for the existence of Reason, and provide the
Parent with an opportunity of not less than thirty (30) days following its
receipt of such notice to cure same. In the event of a termination of the
Executive's employment for Reason in accordance with the provisions of Section
9(D)(i), the Executive shall have no further obligation to either the Company or
the Parent.
(E) Severance. In the event Executive's employment hereunder shall
be terminated by the Parent or the Company for other than Cause, Death or
Disability, or by the Executive for Reason: (i) the Executive shall thereupon
receive as severance pay in a lump sum the amount of salary and bonuses which
the Executive would have received for the remaining term of this Agreement had
there been no termination, provided however, that in no event shall such lump
sum payment be less than one (1) year salary and bonus; and (ii) the Executive's
(and his dependents') participation in any and all life, disability, medical and
dental insurance plans shall be continued, or equivalent benefits provided to
him or them by the Parent or the Company, at no cost to him or his dependents,
for a period of one (1) year from the termination; and (iii) any options granted
to the Executive which have not, by the terms of the options, vested shall be
deemed to have vested at the termination, and shall thereafter be exercisable
for the maximum period of time allowed for exercise thereof under the terms of
such options.
(F) Resignation. In the event Executive resigns without Reason prior
to the expiration hereof, he shall receive any accrued but unpaid salary through
such resignation date, and such benefits to which he is entitled by law.
(G) Extension of Benefits. Any extension of benefits following the
termination of employment provided for herein shall be deemed to be in addition
to, and not
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in lieu of, any period for benefits continuation provided for by law at the
Parent's, Company's, Executive's or his dependents' expense.
(H) Change In Control. For purposes hereof, a Change in Control
shall mean the Executive no longer being able to manage the affairs and the
operations of the Company on a day-to-day basis, excluding any such inability
arising from the act, disability or conduct of Executive.
10. Indemnification. The Parent and the Company hereby indemnify and
hold Executive harmless to the maximum extent permitted under applicable law.
11. Waiver. No delay or omission to exercise any right, power or
remedy accruing to any party hereto shall impair any such right, power or remedy
or shall be construed to be a waiver of or an acquiescence to any breach hereof.
No waiver of any breach hereof shall be deemed to be a waiver of any other
breach hereof theretofore or thereafter occurring. Any waiver of any provision
hereof shall be effective only to the extent specifically set forth in an
applicable writing. All remedies afforded to any party under this Agreement, by
law or otherwise, shall be cumulative and not alternative and shall not preclude
assertion by such party of any other rights or the seeking of any other rights
or remedies against any other party.
12. Governing Law. The validity of this Agreement or of any of the
provisions hereof shall be determined under and according to the laws of the
State of New York, and this Agreement and its provisions shall be construed
according to the laws of the State of New York, without regard to the principles
of conflicts of law.
13. Notice. All notices, demands or other communications required or
permitted to be given in connection with this Agreement shall be given in
writing, shall be transmitted to the appropriate party by hand delivery, by
certified mail, return receipt requested,
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postage prepaid or by overnight courier and shall be addressed to a party at
such party's address shown on the first page hereof. A party may designate by
written notice given to the other parties a new address to which any notice,
demand or other communication hereunder shall thereafter be given. Each notice,
demand or other communication transmitted in the manner described in this
Section 13 shall be deemed to have been given and received for all purposes at
the time it shall have been (i) delivered to the addressee as indicated by the
return receipt (if transmitted by mail), the affidavit of the messenger (if
transmitted by hand delivery or overnight courier) or (ii) presented for
delivery during normal business hours, if such delivery shall not have been
accepted for any reason.
14. Assignment. This Agreement shall be binding upon the Parent and
the Company and their respective successors (including any transferee of the
good will of the Company or the Parent) or assigns.
15. Miscellaneous. This Agreement contains the entire understanding
between the parties hereto and supersedes all other oral and written agreements
or understandings between them. No modification or addition hereto or waiver or
cancellation of any provision shall be valid except by a writing signed by the
party to be charged therewith.
16. Obligations of a Continuing Nature. It is expressly understood
and agreed that the covenants, agreements and restrictions undertaken by or
imposed on the Executive, the Parent and the Company hereunder, which are stated
to exist or continue after termination of Executive's employment with the Parent
or the Company, shall exist and continue irrespective of the method or
circumstances of such termination for the respective periods of time set forth
herein.
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17. Severability. The parties agree that if any covenant, agreement
or restriction contained herein is held to be invalid by any court of competent
jurisdiction, such holding will not invalidate any of the other covenants,
agreements and/or restrictions herein contained and such invalid provisions
shall be severable so that the invalidity of any such provision shall not
invalidate any others.
18. Venue: Jurisdiction. The Parent, the Company and the Executive
hereby agree that any action, proceeding or claim against any of them arising
out of or relating in any way to this Agreement shall be brought and enforced in
any of the courts of the State of New York in New York County, New York, or the
United States District Court for the Southern District of New York, and
irrevocably submit to such jurisdiction. The Parent, the Company and the
Executive hereby waive any objection to such jurisdiction and that such courts
represent an inconvenient forum. The Parent, the Company and the Executive
hereby waive the right to a trial by jury in any action, proceeding or claim
against any of them arising out of or relating in any way to this Agreement. Any
process or summons to be served upon the Parent, the Company or the Executive
may be served by transmitting a copy thereof by registered or certified mail,
return receipt requested, postage prepaid, addressed to their respective
addresses set forth in the initial paragraph of this Agreement or such other
address as a party may so notify the other parties hereto in the manner provided
by Section 13 hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the Parent, the Company and the Executive in any action,
proceeding or claim.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
WALL STREET STRATEGIES, INC.
By: /s/ Xxxxxxx Xxxxx President
-----------------------------------------
VACATION EMPORIUM CORPORATION
By: /s/ Xxxxx XxXxxxxx
-----------------------------------------
/s/ Xxxxxxx Xxxxx
-------------------------------------------
Xxxxxxx Xxxxx
Executive
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SCHEDULE I
TO THE EMPLOYMENT AGREEMENT
AMONG WALL STREET STRATEGIES, INC.,
VACATION EMPORIUM CORPORATION AND XXXXXXX XXXXX
BONUS SCHEDULE
"WSS" shall mean Wall Street Strategies, Inc.
In the event WSS
derives revenues
receive During the Xx. Xxxxx
in excess of below Fiscal shall receive
following Year Ended the following
--------------------------------------------------------------------------------
1. $2,000,000 December 31, 1999 $125,000
(an additional)
2. $3,000,000 December 31, 1999 $125,000
3. $3,000,000 December 31, 2000 $125,000
(an additional)
4. $4,000,000 December 31, 2000 $125,000
5. $4,000,000 December 31, 2001 $125,000
(an additional)
6. $5,000,000 December 31, 2001 $125,000
