EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT
(the “Agreement”) dated
December 3, 2008 by and between Xxxxxxx.xxx, Inc., a Nevada corporation (the
“Company”), and Xxxxx
Xxxx, an individual (the “Executive”).
The Company, a wholly owned subsidiary
of OmniReliant Holdings, Inc. (“OmniReliant”), desires to employ the Executive,
and the Executive wishes to accept such employment with the Company, upon the
terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the
foregoing facts and mutual agreements set forth below, the parties, intending to
be legally bound, agree as follows:
1. Employment. The
Company hereby agrees to employ Executive, and Executive hereby accepts such
employment and agrees to perform Executive’s duties and responsibilities in
accordance with the terms and conditions hereinafter set forth.
1.1 Duties and
Responsibilities. Executive shall serve as Vice President, Chief
Financial Officer and Chief Operating Officer of the Company. During
the Employment Term (as defined below), Executive shall perform all duties and
accept all responsibilities incident to such positions and other appropriate
duties as may be assigned to Executive by the Company’s Board of Directors from
time to time. The Company shall retain full direction and control of
the manner, means and methods by which Executive performs the services for which
she is employed hereunder and of the place or places at which such services
shall be rendered; provided, however, that the Company recognizes that Employee
has significant background and experience in day-to-day operations of the
business of the Company and, absent a compelling reason, will not interfere with
Employee’s decisions concerning these matters.
1.2 Employment
Term. The term of this Agreement shall commence as of
[_________] (the “Effective
Date”) and shall continue for twenty-four (24) months, unless earlier
terminated in accordance with Section 4 hereof. The term of
Executive’s employment shall be automatically renewed for successive one (1)
year periods until the Executive or the Company delivers to the other party a
written notice of their intent not to renew the Employment Term, such written
notice to be delivered at least thirty (30) days prior to the expiration of the
then-effective Employment Term. Upon termination by the Company,
Executive is entitled to termination payments pursuant to Section 4
hereof. The period commencing as of the Effective Date and ending
twenty-four (24) months thereafter or such later date to which the term of
Executive’s employment under the Agreement shall have been extended by mutual
written Agreement is referred to herein as the “Employment Term.”
1.3 Extent of
Service. During the Employment Term, Executive agrees to use
Executive’s best efforts to carry out the duties and responsibilities under
Section 1.1 hereof and shall devote such time Executive deems is reasonably
necessary to perform his duties hereunder. To that end, the Company
acknowledges and agrees that Executive may dedicate some of his business time to
other ventures that do not compete directly with the business of the Company and
that doing so shall not be a violation of Executive’s obligations under this
Agreement.
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1.4 Base
Salary. The Company shall pay Executive a base salary (the
“Base Salary”) at the
annual rate of Eighty-Five Thousand Dollars per year ($85,000.00), payable at
such times as the Company customarily pays its other senior level executives
(but in any event no less often than monthly).
1.5 Bonus. It is hereby
acknowledged, Executive shall be eligible for an annual bonus based on
performance of the Company. The Board of Directors of the Company will use its
discretion to determine Bonus amount based on sales, gross margin, EBITDA,
operating profits amongst other non-financial consideration.
1.6 Incentive
Compensation. In the event the Company sells for in excess of
Fifteen Million Dollars ($15,000,000) in cash within two (2) years of the
Closing Date, as that term is defined in the Securities Purchase Agreement by
and between the OmniReliant, Abazias, Inc. and Xxxxxxx.xxx, Inc., the Executive
shall receive additional compensation. The additional compensation will be fifty
percent (50%) of every dollar over Fifteen Million dollars ($15,000,000) in cash
and up to Seventeen Million dollars ($17,000,000) and Seven and One half percent
(7.5%) of the cash in excess of $17,000,000 (the “Incentive
Compensation”).
1.7 Other
Benefits. During the Employment Term, Executive shall be
entitled to participate in all employee benefit plans and programs made
available to OmniReliant’s senior level executives as a group or to its
employees generally, as such plans or programs may be in effect from time to
time, including, without limitation, medical, dental, short-term and long-term
disability and life insurance plans, accidental death and dismemberment
protection and travel accident insurance. Executive shall be provided
office space and staff assistance appropriate for Executive’s position and
adequate for the performance of his duties.
1.8 Miscellaneous. Executive
shall be provided with reimbursement of expenses related to Executive’s
employment by the Company. Executive shall be entitled to vacation
and holidays in accordance with the Company’s normal personnel policies for
senior level executives.
1.9 Sign On
Bonus. At Effective Date, Executive shall be paid One
Hundred and Six Thousand Three Hundred and Fifty Dollars ($106,350.00) as a sign
on bonus.
2. Confidential
Information. Executive recognizes and acknowledges that by
reason of Executive’s employment by and service to the Company before, during
and, if applicable, after the Employment Term, Executive will have access to
certain confidential and proprietary information relating to the Company’s
business, which may include, but is not limited to, trade secrets, trade
“know-how,” product development techniques and plans, customer lists and
addresses, cost and pricing information, strategy and programs, computer
programs and software and financial information (collectively referred to as
“Confidential Information”). Executive acknowledges that such
Confidential Information is a valuable and unique asset of the
Company. Executive covenants that he will not, unless expressly
authorized in writing by the Board of Directors, at any time during the course
of Executive’s employment use any Confidential Information or divulge or
disclose any Confidential Information to any person, firm or corporation except
in connection with the performance of Executive’s duties for the Company and in
a manner consistent with the Company’s policies regarding Confidential
Information.
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Executive
also covenants that at any time after the termination of such employment,
directly or indirectly, he will not use any Confidential Information or divulge
or disclose any Confidential Information to any person, firm or corporation,
unless such information is in the public domain through no fault of Executive or
except when required to do so by a court of law, by any governmental agency
having supervisory authority over the business of the Company or by any
administrative or legislative body (including a committee thereof) with apparent
jurisdiction to order Executive to divulge, disclose or make accessible such
information.
All
written Confidential Information (including, without limitation, in any computer
or other electronic format) which comes into Executive’s possession during the
course of Executive’s employment shall remain the property of the
Company. Upon termination of Executive’s employment, the Executive
agrees to return immediately to the Company all written Confidential Information
(including, without limitation, in any computer or other electronic format) in
Executive’s possession.
3. Non-Competition;
Non-Solicitation.
3.1 Non-Compete. The
Executive hereby covenants and agrees that during the term of this Agreement,
the Executive will not, without the prior written consent of the Company,
directly or indirectly, on his own behalf or in the service or on behalf of
others, whether or not for compensation, engage in any business activity, or
have any interest in any person, firm, corporation or business, through a
subsidiary or parent entity or other entity (whether as a shareholder, agent,
joint venturer, security holder, trustee, partner, consultant, creditor lending
credit or money for the purpose of establishing or operating any such business,
partner or otherwise) with any Competing Business in the Covered
Area. For the purpose of this Agreement, (i) “Competing Business” means the
sale, trade, import or export, via the internet, wholesale, retail and any other
channels not exclusively named herein, of diamonds and jewelry. and
(ii) “Covered Area”
means all geographical areas of the United States, South America, and other
foreign jurisdictions where Company then has offices and/or sells its products
directly or indirectly through distributors and/or other sales
agents. Notwithstanding the foregoing, the Executive may
own shares of companies whose securities are publicly traded, so long as such
securities do not constitute more than five percent (5%) of the outstanding
securities of any such company.
3.2 Non-Solicitation. The
Executive hereby covenants and agrees that during the term of this Agreement,
the Executive will not divert any business of the Company or any customers or
suppliers of the Company and/or the Company’s business to any other person,
entity or competitor, or induce or attempt to induce, directly or indirectly,
any person to leave his or her employment with the Company.
3.3 Remedies. The
Executive acknowledges and agrees that his obligations provided herein are
necessary and reasonable in order to protect the Company and their respective
business and the Executive expressly agrees that monetary damages would be
inadequate to compensate the Company for any breach by the Executive of his
covenants and agreements set forth herein. Accordingly, the Executive
agrees and acknowledges that any such violation or threatened violation of this
Section 3 will cause irreparable injury to the Company and that, in addition to
any other remedies that may be available, in law, in equity or otherwise, the
Company shall be entitled to obtain injunctive relief against he threatened
breach of this Section 3
or the continuation of any such breach by the Executive without the necessity of
proving actual damages.
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4. Termination.
4.1 By
Company.
(a)
The
Company may terminate Executive's employment prior to the expiration of the Term
(“Termination”). If
such termination by the Company is for any reason other than a
Termination for Cause (as defined in Section 4.1(b) hereof), or Executive’s
death or disability, then:
(i) all
unvested options, warrants and other equity grants shall vest
immediately,
(ii) Executive
shall be entitled to a continuation of health and other medical benefits and
coverage at the cost and expense of the Company for a period of not less than
eighteen (18) months, in consideration for all of which the parties hereto shall
exchange mutual releases of claims,
(iii)
Executive shall be entitled to retain the signing bonus issued pursuant to
Section 1.9 above, and
(iv) Executive
shall be entitled to receive Incentive Compensation pursuant to Section
1.6.
(b) For
purposes of this Agreement, the term "Termination for Cause" means, a
termination by reason of any of the following:
(i) Executive’s
conviction of or entrance of a plea of guilty or nolo contendere to a felony;
or
(ii) Executive
is engaging or has engaged in material fraud, material dishonesty, or other acts
of willful and continued misconduct in connection with the business affairs of
the Company;
provided, however, that (x) no
conduct by Executive shall be deemed willful for purposes of this Section 4.1 if
Executive believed in good faith that such conduct was in or not opposed to the
best interests of the Company, and (y) Cause shall in no event be deemed to
exist with respect to clause (ii) above, unless Executive shall have first
received written notice from the Board of Directors advising Executive of the
specific acts or omissions alleged to constitute misconduct, and such misconduct
continues after Executive shall have had a reasonable opportunity (which shall
be defined as a period of time consisting of at least fifteen (15) days from the
date Executive receives said notice) to correct the acts or omissions so
complained of.
(c) For
purposes of this Agreement, Executive’s employment shall be deemed to have been
terminated Without Cause in the event of:
(i)
the material reduction by the Company of Executive’s title, authority, duties or
responsibilities, or the assignment to Executive of duties materially
inconsistent with Executive’s positions with the Company as stated in Section 1
hereof;
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(ii)
a reduction by the Company in the Base Salary of Executive;
(iii)
the Company’s failure to pay Executive any amounts otherwise due hereunder or
under any plan, policy, program, agreement, arrangement or other commitment of
the Company if such failure is not cured by the Company within fifteen (15) days
of notice of such failure; or
(iv)
any other material breach by the Company of this Agreement.
(d) If
all, or any portion, of the payments provided under this Agreement, either alone
or together with other payments and benefits which Executive receives or is
entitled to receive from the Company, would constitute an “excess parachute
payment” within the meaning of Section 280G of the Internal Revenue Code
(whether or not under an existing plan, arrangement or other agreement) (each
such parachute payment, a “Parachute Payment”),
and would result in the imposition on the Executive of an excise tax under
Section 4999 of the Internal Revenue Code, then, in addition to any other
benefits to which the Executive is entitled under this Agreement, the Executive
shall be paid by the Company an amount in cash equal to the sum of the excise
taxes payable by the Executive by reason of receiving Parachute Payments plus
the amount necessary to put the Executive in the same after-tax position (taking
into account any and all applicable federal, state and local excise, income or
other taxes at the highest possible applicable rates on such Parachute Payments
(including without limitation any payments under this Section 4.1(d)) as if no
excise taxes had been imposed with respect to Parachute Payments.
4.2 By Executive’s Death or
Disability. This Agreement shall also be terminated upon the
Executive’s death and/or a finding of permanent physical or mental disability,
such disability expected to result in death or to be of a continuous duration of
no less than twelve (12) months, and the Executive is unable to perform his
usual and essential duties for the Company. In the event of dispute
over disability, a supported medical analysis and conclusion by Employee’s
personal physician shall be determinative. In the event of
termination by reason of Executive’s death and/or permanent disability,
Executive or his executors, legal representatives or administrators, as
applicable, shall be entitled to an amount equal to Executive’s Base Salary
accrued through the date of termination, plus a pro rata share of any annual
bonus to which Executive would otherwise be entitled for the year which death or
permanent disability occurs as well as be eligible to receive the compensation
set forth in Section 1.6 above.
4.4 Voluntary
Termination. Executive may voluntarily terminate the
Employment Term upon thirty (30) days’ prior written notice for any reason;
provided, however, that no
further payments shall be due under this Agreement in that event except that
Executive shall be entitled to any benefits due under any compensation or
benefit plan provided by the Company for executives or otherwise outside of this
Agreement.
5. General
Provisions.
5.1 Modification: No
Waiver. No modification, amendment or discharge of this
Agreement shall be valid unless the same is in writing and signed by all parties
hereto.
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Failure
of any party at any time to enforce any provisions of this Agreement or any
rights or to exercise any elections hall in no way be considered to be a waiver
of such provisions, rights or elections and shall in no way affect the validity
of this Agreement. The exercise by any party of any of its rights or
any of the elections under this Agreement shall not preclude or prejudice such
party from exercising the same or any other right it may have under this
Agreement irrespective of any previous action taken.
5.2 Further
Assurances. Each party to this Agreement shall execute all
instruments and documents and take all actions as may be reasonably required to
effectuate this Agreement.
5.3 Notices. All
notices and other communications required or permitted hereunder or necessary or
convenient in connection herewith shall be in writing and shall be deemed to
have been given when hand delivered or mailed by registered or certified mail as
follows (provided that notice of change of address shall be deemed given only
when received):
If to the Company,
to: Xxxxxxx.xxx,
Inc.
0000 XX
00xx
Xxxxxxx Xxxxx X
Xxxxxxxxxxx, XX 00000
With a
Copy
to:
OmniReliant Holdings, Inc.
00000
Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention:
Xxxx Xxxxxxxx
If to Executive,
to:
Xxxxx Xxxx
0000 XX 00xx Xxxxxxx
Xxxxx X
Xxxxxxxxxxx, XX 00000
or to
such other names or addresses as the Company or Executive, as the case may be,
shall designate by notice to each other in the manner specified in this
Section.
5.4 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
5.5 Severability. Should
any one or more of the provisions of this Agreement or of any agreement entered
into pursuant to this Agreement be determined to be illegal or unenforceable,
then such illegal or unenforceable provision shall be modified by the proper
court or arbitrator to the extent necessary and possible to make such provision
enforceable, and such modified provision and all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement
shall be given effect separately from the provisions or portion thereof
determined to be illegal or unenforceable and shall not be affected
thereby.
5.6 Successors and
Assigns. Executive may not assign this Agreement without the
prior written consent of the Company. The Company may assign its
rights without the written consent of the executive, so long as the Company or
its assignee complies with the other material terms of this
Agreement. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the Company, and the Executive’s rights under this
Agreement shall inure to the benefit of and be binding upon his heirs and
executors.
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5.7 Entire
Agreement. This Agreement supersedes all prior agreements and
understandings between the parties, oral or written. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced.
5.8 Counterparts;
Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original,
and all of which taken together shall constitute one and the same
instrument. This Agreement may be executed by facsimile with original
signatures to follow.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed
this Agreement as of the date first written above.
XXXXXXX.XXX,
INC.
By: 
Xxxxx Xxxxxxxxx
Chief Executive Officer
XXXXX
XXXX
By:
Xxxxx Xxxx
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