Exhibit 10.51
EMPLOYMENT AGREEMENT
THIS AGREEMENT made to have effect the 1st day of September, 2004.
BETWEEN:
THE NEPTUNE SOCIETY, INC. a Florida corporation having its offices at 0000
Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx Xxxx, XX 00000;
(the "Company")
AND:
XXX XXXX, an individual having his residence at 000 Xxxxxx Xxxxxx, #0000,
Xxxxxx, XX 00000.
(the "Employee")
WHEREAS, the Company wishes to obtain the services of the Employee, and the
Employee is willing to provide his service to the Company upon the terms and
conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants and
agreements herein set forth, the parties hereto mutually covenant and agree as
follows:
CONTRACT FOR SERVICES
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1. The Company hereby engages the Employee to act as the Senior Vice President
of Operations of the Company. The Employee shall perform all duties incident to
such position of Senior Vice President of Operations and other duties as may
reasonably be required from time to time by the C.E.O of the Company.
2. The Employee shall provide the services at the time and in the manner set
forth herein. The Employee shall perform his duties out of the Xxxxxxx Oaks,
California office of the Company, but the Company may, at its discretion, direct
that the duties be provided on occasion in other locations.
VACATION
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3. Under this Agreement, the Employee is entitled to two weeks vacation per
year.
FEES AND EXPENSES
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4.1 In consideration of the Employee providing his services as Senior Vice
President of Operations, the Company shall pay to the Employee, $116,000
annually.
The Company shall provide directly to the Employee, at no cost, vehicle parking
at the office site and medical or health benefits. The Employee will be directly
responsible for all necessary travel, auto, and any other expenses incurred by
the Employee in connection with the provision of the services hereunder,
however, expenses required to be paid by the Company for specifically required
Company work, the Employee shall furnish statements and receipts as a
requirement for reimbursement.
(a) Automobiles. The Company shall provide the Employee with a
monthly automobile allowance of $1,000.00.
(b) Housing. The Company shall provide the Employee with a monthly
housing allowance of $1,000.00.
8.2 In addition, there will be a bonus paid on an annual basis of 30% of the
annual base salary (pro rata) issued to the Employee, pending meeting five
specific defined goals, as documented by the CEO. The 2004 Bonus will be based
on 5 criteria with each amounting to 20% of the annual bonus potential per the
contract:
20% - Based on total gross revenues of $21,590,000
20% - Based on achieving the gross revenues for At-Need business (including
merchandise) per At-Need budgeted numbers (copy attached.)
20% - Based on the total contract goal (15,500) and total pre-need revenue goal
20% - Based on achieving an EBITDA of $4,279,000
20% - Based on net cash flow from operations of $3,649,000
The goals listed above pertain to 2004. These individual goals will differ for
the portion of this agreement beginning January 1, 2005 through the expiry of
this agreement and will be provided to you upon finalization.
Bonus to be paid to Employee by check or with the issuance of common stock of
the Company (stock at current market price less 10%); such payment to be
determined annually by the Board of Directors. Payment to be made to Employee by
no later than March 31st of the following year.
CONFIDENTIAL INFORMATION
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5. The Employee shall well and faithfully provide the service to the Company,
and use his best efforts to promote the interest thereof and shall not disclose
(either during the term of this Agreement or at any time thereafter) the private
affairs of the Company or any trade secret of the Company, to any persons other
than the Management of the Company, or as required in the normal course of
business and shall not use (either during the continuance of this Agreement or
at any time thereafter) for his own purposes, or for any purposes other than
those of the Company, any information he may acquire with respect to the
Company's affairs. The Employee further agrees to execute such further and other
agreements concerning the secrecy of the affairs of the Company or of any
companies with which the Company is affiliated or associated, as the Management
of the Company shall reasonably request. Furthermore, without restricting the
generality of the foregoing, the Employee shall not either during the term of
this Agreement or any time thereafter, directly or indirectly divulge to any
person, firm or corporation:
(a) any intellectual property, proprietary information, know-how,
trade secrets, processes, product specifications, new product
information or methods of doing business acquired in the course
of providing the services hereunder;
any information with respect of Company personnel or
organization, or any of the financial affairs or business plans
of the Company; or
any information in respect of Company pricing policies, sales
statistics, sales and marketing plans and strategies, profits,
costs, or sourcing of clients.
TERM OF AGREEMENT
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6.1 This Agreement shall become effective on the 15th day of August 2004, and
shall continue until July 31, 2005 unless terminated upon mutual consent of the
Employee and the Company, or until termination by the Employee or the Company in
accordance with Sections 7 or 8, whichever is earlier.
6.2 At the Company's option, this Agreement will be renewed for one additional
12 month term, commencing September 1, 2005. The Company will provide the
Employee with 30 days notice of exercising its option to renew. Base Salary will
be increased 3% for additional term. New goal requirements for bonus will be
provided at such time.
BREACH OF AGREEMENT
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7. Without prejudice to any remedy the Company may have against the Employee for
any breach or non-performance of this Agreement, the Company may terminate this
Agreement, subject to Section 11, for breach by the Employee at any time
effective immediately and without notice and without any payment for any
compensation either by way of anticipated earnings or damage of any kind to him
whatsoever, save and except in respect of fees payable to the date of such
termination. For the purposes of this paragraph, any one of the following events
shall constitute breach of this Agreement sufficient for termination, provided
however, that the following events shall not constitute the only reasons for
termination:
(a) being guilty of any dishonesty or gross neglect in the provision
of the services hereunder; or
(b) being convicted of any criminal offense, other than an offense
which in the reasonable opinion of the Company does not affect
his position as a representative of the Company; or
(c) becoming bankrupt or making any arrangement or composition with
his creditors; or
(d) alcoholism or drug addiction of the Employee which impairs his
ability to provide the services required hereunder; or
(e) excessive and unreasonable absence of the Employee from the
performance of the services for any reason other than for absence
or incapacity specifically allowed hereunder.
(f) The breach of any clause or term, including but not limited to
Section 6 of this Agreement and the attached Addendum (if any) to
this Agreement
TERMINATION
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8.1 The Employee shall be entitled to terminate this Agreement, at any time by
giving 4 weeks notice in writing to the C.E.O. of the Company.
8.2 The Company shall be entitled to terminate this Agreement at any time upon
giving the Employee 4 weeks notice in writing of such termination and upon
payment to the Employee of all fees and other amounts owing up to the date of
termination and, in the event there has not been a breach of this Agreement by
the Employee, a termination payment in an amount equal to 90 days of the annual
base salary under Section 4 above will be in full satisfaction of all claims
that the Employee may have against the Company.
OWNERSHIP AND USE OF WORK PRODUCTS
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9.1 The Employee agrees that any work product produced by the Employee in
furtherance of the business of the Company either developed solely by the
Employee or jointly with any other party will be the sole and exclusive property
of the Company.
9.2 The Company acknowledges that general knowledge and experience including
general techniques, concepts, methods and formulae not developed for the
Company's specific application or work gained by the Employee prior to or in the
course of his association with the Company, may be used by the Employee at any
time prior to, during or subsequent to his association with the Company, unless
a specific agreement to the contrary is entered into by the Employee and the
Company.
9.3 This Agreement does not apply to general techniques, formulae, concepts or
method for which no equipment, supplies, facility or other resources or trade
secret information of the Company was used and which was developed entirely on
the Employee's own time unless such general techniques, formulae, concepts or
method relates directly to the actual or specifically targeted business of the
Company.
9.4 At any and all times, either during the term of this Agreement or after
termination hereof, the Employee will promptly, on the request of the Company,
perform all such reasonable acts and execute and deliver all such documents that
may be necessary to vest in the Company the entire right, title and interest in
and to any such work products determined, by the Company, to be the exclusive
property of the Company. Should any such services be rendered after expiration
or termination of this Agreement, a reasonable fee, mutually agreed upon by the
Employee and the Company, will be paid to the Employee on a per diem basis in
addition to reasonable expenses incurred as a result of rendering such services.
RETURN OF PROPERTY
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10. In the event of termination of this Agreement, the Employee agrees to return
to the Company any property, which may be in the possession or control of the
Employee.
SURVIVAL
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11. Notwithstanding the termination of this Agreement for any reason whatsoever
the provisions of Section 5, 9, and 10 hereof and any other provision of this
Agreement necessary to give efficacy thereto shall continue in full force and
effect following such termination.
NOTICE
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12. Any notice or other communication (each a "Communication") to be given in
connection with this Agreement shall be given in writing and will be given by
personal delivery addressed as follows:
TO: The Neptune Society
0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attention: CEO
AND TO: Xxx Xxxx
Tappan Street, #1038
Carmel, IN 46032
or at such other address as shall have been designated by Communication by
either party to the other. Any Communication shall be conclusively deemed to
have been received on the date of delivery. If the party giving any
Communication knows or ought reasonably to know of any actual or threatened
interruptions of the mails, any such Communication shall not be sent by mail but
shall be given by personal delivery.
ENTIRE AGREEMENT
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13. This Agreement constitutes and expresses the whole agreement of the parties
hereto with reference to the services of the Employee by the Company, and with
reference to any of the matters or things herein provided for, or hereinbefore
discussed or mentioned with reference to such services; all promises,
representations, and understandings relative thereto being merged herein.
AMENDMENTS AND WAIVERS
----------------------
14. No amendment of this Agreement shall be valid or binding unless set forth in
writing and duly executed by both parties hereto. No waiver or any breach of any
provision of this Agreement shall be effective or binding unless made in writing
and signed by the party purporting to give the same and, unless otherwise
provided in the written waiver, shall be limited to the specific breach waived.
BENEFIT OF AGREEMENT
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15. The provisions of this Agreement shall ensure to the benefit of and be
binding upon the legal personal representatives of the Employee and the
successors and assigns of the Employee and the Company.
SEVERABILITY
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16. If any provision of this Agreement is deemed to be void or unenforceable, in
whole or in part, it shall not be deemed to affect or impair the validity of any
other provision of this Agreement, and each and every section, subsection and
provision of this Agreement is hereby declared and agreed to be severable from
each other and every other section, subsection or provision hereof and to
constitute separate and distinct covenants. The Employee hereby agrees that all
restrictions herein are reasonable and valid.
17. This Agreement shall be governed by and construed in accordance with the
laws of the State of California. The Company and the Employee hereby irrevocably
consent to the jurisdiction of the courts of the State of California.
COPY OF AGREEMENT
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18. The Employee hereby acknowledges receipt of a copy of this Agreement duly
signed by the Company.
NUMBER AND GENDER
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19. Wherever the singular is used in this Agreement it is deemed to include the
plural and wherever the masculine is used it is deemed to include the feminine
or body politic or corporate where the context or the parties so require.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written:
THE NEPTUNE SOCIETY, INC. EMPLOYEE
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Authorized Signatory Xxx Xxxx
In the presence of:
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Witness
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Name
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Address
