Exhibit 10.49
EMPLOYMENT AGREEMENT
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THIS AGREEMENT made to have effect the 1st of February, 2003.
BETWEEN:
THE NEPTUNE SOCIETY, INC. a Florida corporation having its offices at 0000
Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx Xxxx, XX 00000;
(the "Company")
AND:
XXXX X. XXXXXX, an individual having his residence at 0000 X. Xxxxxxx
Xxxxx, Xxx #000, Xxxx Xxxx Xxxxx, Xxxxxxx, 00000-0000
(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 National Sales Manager
of the Company. The Employee shall perform all duties incident to such position
of National Sales Manager and other duties as may reasonably be required from
time to time by the C.E.O., C.O.O. or President 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. The Employee shall
perform his duties as long as a suitable work permit is in effect from the
appropriate governing authorities.
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 National Sales
Manager, the Company shall pay to the Employee, a fee, plus applicable taxes (if
any), of US $75,000 annually. Such compensation is to be paid monthly. The
Employee will also be paid an override of $10 on each Pre-Need
Contract sold. During the term of this Agreement, the Employee will be provided
with a vehicle which is paid for and insured by the Company. Upon signing this
Agreement, the Company shall issue the Employee 30,000 shares of the Company's
Common Stock as a signing bonus.
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) Business and Travel Expenses. The Company shall provide the Employee
with a monthly business and travel allowance of no less than $1,000. The Company
shall promptly reimburse the Employee for all business, travel and entertainment
expenses.
(b) Entertainment Expenses. The Company shall provide the Employee with a
monthly business and travel allowance of no less than $1,000.
4.2 In addition, there will be a bonus paid on an annual basis of no less than
10% of the annual salary, net of reimbursement and car expenses, issued to the
Employee upon successful performance by the National Sales Manager and upon
successful completion of the four criteria described in Appendix A, attached
hereto. Each of the four criteria described in Appendix A accounts for one
quarter of the total 10% bonus and the Employee will be paid accordingly. The
total bonus amount is to be paid to the Employee by check or with the issuance
of common stock of the Company; such payment to be determined annually by the
Board of Directors.
4.3 In addition, the Company agrees to grant to the Employee, subject to the
Company's stock option plan, 30,000 stock options of the Company with an
exercise price of $0.70 U.S. per share. These options become exercisable at any
time commencing after February 1, 2004. Any of these options that are exercised
will be replaced by the Company at an exercise price of 10% below the current
market value at the time of grant.
4.4 Deferrals. It is agreed that the Employee will defer $2,000 per month of the
base salary until August 31, 2003. At such time, the total amount of the
deferred compensation will be paid to the employee by cash or with the issuance
of common stock; such payment to be determined by the Board of Directors.
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. This Agreement shall become effective on the 1st day of February, 2003, and
shall continue until January 31, 2006 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.
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. or President 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 six months of the
annual fees due 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: President
AND TO: Xxxx X. Xxxxxx
0000 X. Xxxxxxx Xxxxx, #000
Xxxx Xxxx Xxxxx, XX 00000-0000
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
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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 enure 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
/s/ Xxxxx Xxxxxx /s/ Xxxx X. Xxxxxx
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Authorized Signatory Xxxx X. Xxxxxx
In the presence of:
/s/ Xxxxxxx X. Xxxxxxxx
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Witness
Xxxxxxx X. Xxxxxxxx
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Name
0000 Xxxxxxx Xxx, XX 0
Xxxxxxx Xxxx XX 00000
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Address
