AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
AMENDED
AND RESTATED
EXECUTIVE
EMPLOYMENT AGREEMENT
AGREEMENT made as of July 29,
2008 by and between NEXXNOW, INC., a New York corporation with offices at 00
Xxxxxxx Xxxxxx, Xxxx Xxxxxx, XX 00000 (the “Corporation”), and Xxxx Xxxxx,
residing at 00 Xxxxxx Xxxxxx, Xxxxxxx, XX, X0X0X0 (“Xxxxx”).
WHEREAS, Xxxxx serves as
President of the Corporation pursuant to an employment agreement dated April 25,
2008 (the “April 25 Agreement”); and
WHEREAS, the parties wish to
replace the April 25 Agreement with this amended and restated executive
employment agreement.
NOW, THEREFORE, it is
agreed:
1.
Termination of
April 25 Agreement. The April 25 Agreement is hereby
terminated and shall have no further force or effect. All of the
rights and obligations of the parties that arose under the April 25 Agreement
are hereby replaced by the rights and obligations arising
hereunder.
2.
Title;
Capacities.
(a)
The Corporation hereby employs Xxxxx as Chief Executive
Officer and Member of the Board of Directors. Xxxxx shall perform
executive functions as shall be assigned to him by the Corporation’s Board of
Directors.
(b)
Xxxxx agrees that for a 3 year term (the “Term”) he will devote substantially
all of his business time, labor, skill, attention and best ability to the
performance of his duties under this Agreement. Xxxxx agrees to
abide by such reasonable rules, regulations, personnel practices and policies of
the Corporation, and any changes therein, which may be reasonably adopted from
time to time by the Corporation and delivered in writing to Xxxxx.
(c) Xxxxx
agrees to perform the following specific duties in addition to any functions
assigned to him by the Corporation’s Board of Directors; construction and
mailing of a monthly shareholder letter, conduct an “open” monthly conference
call, attend “market-related” functions twice per month, prepare and present a
written report to the Corporation’s Board of Directors by the 5th day of
each month. The written report to the Corporation’s Board of
Directors will be based on the previous month’s progress to include but is not
limited to client status, sales progress, financial progress with regard to
revenue and profitability, current or upcoming regulatory filings, benchmark
attainment and future production expectations and commitments as well as any
other business related developments that may be requested by the Board of
Directors.
3. Compensation.
(a) Salary. Upon
the receipt of $1,000,000 of additional paid in capital prior to January 1, 2009
the Corporation will pay Xxxxx as follows:
i) a salary at the rate of Ten Thousand
Dollars ($10,000) per month during his first year of employment; ii)
a salary at a rate of Twelve Thousand Five Hundred Dollars ($12,500) per month
during his second year of employment; and iii) a salary of Sixteen
Thousand Six Hundred Dollars ($16,600) per month during his third year of
employment.
Salary shall be payable on the days
when the salaries of other Corporation employees are paid. In the
event of non-payment company agrees to accrue balance in the form of a note
payable to Xxxxx. Further, Xxxxx shall be paid Forty Thousand
Dollars ($40,000) immediately upon the Corporation having acquired at least One
Million Dollars ($1, 000,000) of paid in capital.
(b) Bonus. On
April 1st of 2009
and each year of the agreement thereafter Xxxxx will be entitled to a bonus
equal to 15-50% of his past year salary earned. Amount of bonus to be
determined by the Board of Directors and payable in cash or S-8 registered
shares at the company’s option.
(c) Benefits. Xxxxx
shall be entitled to participate in such benefit programs as the Corporation
makes available for executive employees in general. Specifics at this
point are:
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(i)
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Monthly
car allowance of $500.00
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(ii)
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Annual
Vacation – 2 weeks year 1, 3 weeks years 2 and
3
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(d) Reimbursement of Business
Expenses. Xxxxx shall be entitled to reimbursement of all
reasonable business expenses actually incurred by Xxxxx in the
discharge of Xxxxx’x duties hereunder, including expenses for
entertainment, travel, employee training and similar items, upon submission of
the related invoice or other sufficient documentation.
(e) Stock.
(i)
(425,000) shares of the Corporation’s common stock shall be issued to Xxxxx upon
each anniversary date of the execution of this Agreement if Xxxxx remains
employed by the Corporation on said anniversary date.
(ii) Upon
the execution of this Agreement, Two Hundred Fifty Thousand (250,000) shares of
the Corporation’s common stock shall be issued to Xxxxx. Said shares
shall be in compensation for all services of Xxxxx to the Corporation prior to
the date of this Agreement, and Xxxxx irrevocably waives all claims for
compensation with respect to any period prior to the date hereof, whether
arising under the April 25 Agreement or otherwise.
(iii)
1,000,000 shares upon the Corporations receipt of an additional
$1,000,000 of paid in capital, if received prior to January 1,
2009.
4. Term and
Termination.
(a) The
“Term” of this Agreement and of Xxxxx'x employment hereunder shall commence on
the date of the Agreement and shall terminate on April 30, 2011, unless earlier
terminated pursuant to §5(b) hereunder.
(b) Prior
to April 30, 2011, Xxxxx'x employment hereunder may be terminated as
follows:
(i) by
Xxxxx, at will;
(ii) by
the Corporation for Cause. As used herein, the term “Cause” shall mean only the
following: (A) conviction during the Term of a crime involving moral
turpitude, (B) material, willful or gross misconduct by Xxxxx in the
performance of his duties hereunder, or (C) the failure by Xxxxx to
perform or observe any substantial lawful obligation of such employment that is
not remedied within fifteen (15) days after the receipt of written notice
thereof from the Board of Directors (provided such neglect or failure is
unrelated to disability),
(iii) by
the Corporation, upon the death or disability
of Xxxxx. “Disability” shall mean Xxxxx'x inability to
perform Xxxxx’x normal employment functions due to any medically determinable
physical or mental disability, which can last or has lasted three months or is
expected to result in death.
(c) Termination
of Xxxxx’x employment, when permitted hereunder, may be effectuated by delivery
of written notice to Xxxxx, stating the grounds for termination. Such
notice shall be effective upon receipt.
(d)
The inability of Xxxxx to perform or advance the company’s interests at a
level defined in this Agreement.
(e) Upon
termination of Xxxxx’x employment for any reason prior to April 30, 2011, Xxxxx
is restricted from selling any NexxNow shares for a period of 180 days from the
date of termination.
(f) For
a period of one year following the date of termination the Corporation reserves
and Xxxxx grants the right of the Corporation to use Xxxxx’x likeness in or on
any collateral material that may have been published prior to
termination.
5. Covenant of
Non-Competition. In consideration of the undertakings by the
Corporation herein, Xxxxx covenants for the benefit of the Corporation and the
shareholders thereof as follows:
(a) The
“Restricted Period” for purposes of this Covenant shall commence on the date of
this Agreement and shall continue for a period ending on the date which is six
months after the date on which Xxxxx ceases to be employed by the
Corporation.
(b) During
the Restricted Period Xxxxx shall not, directly or indirectly, as an
employee, consultant or principal, through equity ownership or otherwise, for
himself or for any other person, engage in, or assist any other person to engage
in, any Competitive Activities. For purposes hereof, “Competitive
Activities” shall mean the following:
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(i)
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Providing
products or services to any individual or entity that is competitive with
the company’s offerings;
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(ii)
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Directly
or indirectly soliciting, diverting, taking away or attempting to solicit,
divert, or take away any business opportunities which became available to
the Corporation or any of its subsidiaries or affiliated entities during
the Term of this Agreement;
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(iii)
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Providing
products or services to any individual or entity to whom the Corporation
sold products or services or contracted to sell products or services
during the last six months of Xxxxx’x employment with the
Corporation; or
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(iv)
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Hiring,
offering to hire, enticing away or in any manner persuading or attempting
to persuade any person affiliated (as employee or as independent
contractor) with the Corporation or any affiliate or subsidiary of the
Corporation to discontinue his relationship with such company, or to
become employed by any other
entity.
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6. Inventions. Any
and all inventions, discoveries, developments and innovations conceived by Xxxxx
during the Term of this Agreement shall be the exclusive property of the
Corporation; and Xxxxx hereby assigns all right, title, and interest in the same
to the Corporation. Any and all inventions, discoveries, developments
and innovations conceived by Xxxxx prior to the term of this Agreement and
utilized by him in rendering duties to the Corporation are hereby licensed to
the Corporation for use in its operations and for an infinite
duration. This license may be assigned by the Corporation to a
wholly-owned subsidiary of the Corporation.
7. Assignment. The
Corporation and Xxxxx acknowledge that the relationship established hereby is
unique and personal and that neither the Corporation nor Xxxxx may assign or
delegate any of their respective rights and/or obligations hereunder without the
prior written consent of the other party except as follows:
In the event of a future disposition of
(or including) the properties and business of the Corporation substantially as
an entirety, by merger, consolidation, sale of assets, or otherwise, then the
Corporation shall be obligated to assign this Agreement and all of its rights
and obligations hereunder to the acquiring or surviving corporation, and such
acquiring or surviving corporation shall assume in writing all of the
obligations of the Corporation hereunder; provided, however, that the
Corporation (in the event and so long as it remains in business as an
independent going enterprise) shall remain liable for the performance of its
obligations hereunder in the event of an unjustified failure of the acquiring
corporation to perform its obligations under this Agreement.
8. Indemnification. The
Corporation shall indemnify Xxxxx to the fullest extent authorized by the
Business Corporation Law of the State of New York against claims or liability
arising from his service on behalf of the Corporation.
9. Governing
Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York applicable to contracts made
and to be performed therein.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above
written.
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By:
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/s/ Xxxxxxxx
Xxxxxxxx
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Xxxxxxxx
Xxxxxxxx, Secretary
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By:
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/s/ Xxxx
Xxxxx
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Xxxx
Xxxxx, CEO
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