EMPLOYMENT AGREEMENT
This Agreement executed as of the 6th of December 1999, by and between
Progressive Telecommunications Corporation (hereafter referred to as the
"Company"), a Florida Corporation with its offices located at 000 Xxxxxxxxx
Xxxxxx, Xxxxx 000 Xxxxxxxxxx, Xxxxxxx 00000 and Xxxxxxx X. Xxxxx
(hereafter referred to as the "Employee") located at 00 Xxxxxxx Xxxxx, Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000.
WITNESSETH
Whereas, the Employee is currently the President of Penultimate
Management Systems Ltd., and is presently acting as a consultant to the Company
for the purpose of creating, designing and implementing the Companies plan to
build an Internet business to business portal, XxxxxxxxXxxx.Xxx;
Whereas, the Company acknowledges and recognizes the value of the
Employee's services which are special, unique and of extraordinary character
with expertise desired by the Company; and
Whereas, the Company desires to employ, retain and make secure for the
Company the services, abilities and expertise of the Employee on a full time
basis for a minimum period of two years from the effective date of this
Agreement; and
Whereas, both the Company and the Employee desire to embody the terms
and conditions of employment into a written agreement;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy and receipt of which is hereby
acknowledged, the Company and the Employee do hereby agree as follows:
1. EMPLOYMENT
The Company hereby agrees to employ the Employee and the Employee hereby
accepts such Employment upon the terms and conditions hereinafter set forth.
2. TERM
Subject to the provisions of this Section hereof the term of employment
shall commence on December 1, 1999 (Commence Date) and continue for an initial
period of two (2) years or until January 1, 2002. Following completion of the
Initial Term, the Employee's term of employment shall be renewed, if not
renegotiated, for two year terms automatically, unless either party notifies the
other, in writing, of its intent not to renew at least ninety (90) days prior to
this Agreement's expiration.
3. COMPENSATION AND BENEFITS
For the services rendered by the Employee hereunder, the Company shall
be obligated to the Employee under the following compensation schedule:
3.1 Sign on Bonus
In consideration of prior agreements and in return for the Employees, concepts,
designs inventions and ideas conceived of prior to this agreement, becoming the
proprietary property of the Company, the Company will issue 100,000 shares of
common stock and 250,000 stock options @$2.50 per share to the Employee upon the
signing of this agreement.
The Corporation agrees that the shares of common stock of the Corporation
comprising the Signing Bonus shall be issued to the Employee as of the date of
the execution of this Agreements, and such shares of common stock of the
Corporation shall immediately be registered under S-8 as to make the securities
available to be traded on the OTC-BB, without limitation or restriction.
3.2 Fixed Compensation
Employee shall receive a minimum in annual salary (detailed in schedule
3.2a) paid in BI-monthly or weekly installments. This shall be considered the
minimum salary to the Employee. The Company's Board of Directors may, at its
discretion, increase the salary but at no time or in any event shall the above
referenced salary be less than that detailed in schedule 3.2a.
3.2a Compensation Schedule
December 1, 1999 to February 28, 2000 ..........$8,333.33 per month
($100,000.00 annualized)
March 1, 2000 to September 1, 2000............ $10,000.00 per month
($120,000.00 annualized)
September 1, 2000 to January 1, 2002............ $11,666.67 per month
($140,000.00 annualized)
3.3 Other Benefits
In addition to the above reference fixed and incentive compensation
which the Employee shall receive, pursuant to subsections 3.1,3.2 and 3.2a of
Section 3, the Employee shall receive the reimbursements, compensation and
benefits:
a) Travel and Virtual Office. The Company acknowledges that the Employee
currently lives in New Jersey. The Employee will work virtually from his home
in New Jersey and travel to the Companies offices in Florida as required. The
Company will pay for all travel related expenses as well as provide
accommodations and transportation in Florida. The Company will pay for all
communication costs associated with the Employee working from his home office.
b) The Employee recognizes the need to travel not only to Florida, but also to
any other place deemed necessary by the Company for the purpose of promoting or
facilitating the Companies business. The Company recognizes the Employees
requirement to be home for the weekend and will schedule all travel accordingly.
c) Moving Expenses: In order to facilitate a move of the Employees family to
Florida the Company will pay all closing costs associated with the purchase of a
new home in Florida, not to exceed $7,500. In addition, the Company will pay
all expenses associated with the moving of all of the Employees and his
families personal property.
d) Expenses: Employee is authorized hereunder to incur reasonable expenses for
promoting the business and affairs of the Company, including, without limitation
by specification, expenses for travel, entertainment, lodging and other similar
items. The Company shall promptly reimburse the Employee for all such expenses
upon presentation, as expenses are incurred, by the Employee to the Company of
an itemized account of such expenditures.
e) The Company shall maintain either a whole-life life insurance policy or
policies or a minimum deposit life insurance policy or policies (or the
equivalent thereof) on the life of Employee having an aggregate face value of
not less than $100,000.00 (collectively, the "Policy"). In the event that the
Company purchases minimum deposit life insurance and this Agreement is
terminated with or without cause as defined herein prior to the time that the
insurance policy has been fully paid, the Company agrees to continue to make the
premium payments on the policy until it is fully paid. The proceeds of the
policy shall be fully payable to any beneficiary or beneficiaries designated at
any time and from time to time by the Employee, provided however, that upon
death of the Employee, the aggregate amount of premiums paid on the Policy by
the Company is repaid to the Company by the beneficiary(s) of the Employee
designated in the Policy. Employee, if requested by the Company, shall take all
necessary steps, including if requested, the naming of the Company as a
Co-Beneficiary of the Policy to the extent of the total amount of the premiums
paid thereon, in order to insure Employee's compliance with this covenant. In
no event shall premiums on any policy or policies aggregate more than $10,000.00
per year. The policy shall be in addition to any key man policy or group term
policy or policies insuring the life of the Employee maintained by the Company
for the benefit of the Company.
f) Automobile. The Company shall provide Employee with an automobile compatible
with his position and responsibility hereunder or, in lieu thereof, at the
option of the Employee, a monthly stipend equal to the cost of leasing and
insuring such an automobile. The Company's monthly obligation under this
paragraph shall not exceed $ 400.00 per month excluding gas and maintenance.
g) Medical Benefits. The Company shall provide and pay for in its entirety the
Employee with such family health and medical benefits as the Company accords its
Executive officers
h) Vacations. Employee shall be entitled during each calendar year, during the
period of employment, to four weeks vacation beginning during the first year of
Employment and every year thereafter. The vacation entitlement is cumulative or
may be compensated in a monetary manner. The Employee is entitled to
compensation during such vacation periods.
i) Sick Time. Employee is entitled, if needed, 10 fully compensated sick per
calendar year.
j) Working Facilities. The Company shall furnish Employee with a private
office, secretarial help and other facilities, services and staff as are
suitable to his position to ensure adequate performance of the duties of the
position the Employee holds in the Company.
3.4 The Company agrees that nothing contained in this Agreement is intended to
or shall be deemed to be granted to the Employee in lieu of, or as a limitation
upon, any rights and privileges which the Employee may otherwise be entitled to
as an executive employee of the Company under any retirement, pension,
insurance, hospitalization or other employee benefit plan of any type
(including, without limitation by specification, any incentive, profit sharing,
bonus or stock option plan), which may now be in effect or which may hereafter
be adopted by the Company, it being understood that the Employee shall have the
same rights and privileges to participate in such Company benefit plans as any
other executive employee of the Company.
4. Duties, Time And Effort.
4.1 During the term of Employment hereunder, Employee, subject to the
supervision and control of the Board of Directors of the Company which shall
supervise all aspects of the Company. Employee shall serve the Company as the
Director of Operations of XxxxxxxxXxxx.Xxx a wholly owned subsidiary of the
Company. The Company and Employee agree that Employee shall serve in this
capacity throughout the period of employment as outlined herein.
4.2 Employee agrees to devote full-time attention and effort to the business of
the Company during the term of employment hereunder. The Employee shall perform
his duties faithfully, diligently and to the best of his ability. Employee, at
all times, shall use his best efforts to preserve, protect, enhance and maintain
the trade, business and goodwill of the Company.
5. Covenants and Restrictions.
Subject to the provisions 8.6 hereof, Employee covenants that, except in
carrying out his duties hereunder, during the term of employment and for a
period of one (1) year following the date of termination of employment
hereunder:
5.1 Without express written consent of the Board of Directors, Employee shall
not directly or indirectly, participate or engage in, assist render employment
services to, become associated with, work for, or otherwise become in any way or
manner connected with the ownership, management, operation, or control of, any
business, which would take from the assets or products or confidential and
proprietary information of the Company. This clause in no way is to be
construed as industry ban but rather as a ban from utilizing contacts, products
developed, procedures and other confidential information.
5.2 Employee shall not knowingly provide or solicit to provide to any person or
individual (I) any goods or services which are competitive with those provided
by the Company or which would be competitive with the goods and services that
the Company has planned to provide; or (ii) any goods or services to any
customer of the Company. The term "Customer" shall mean any person or company
to whom the Company has provided goods or services to within the previous twelve
(12) month period prior to termination of Employee's employment hereunder.
Notwithstanding anything herein to the contrary, no limitation shall be imposed
on Employee hereunder with respect to any goods or services that the Company has
planned to provide and which are not actually being provided at the time of the
termination of Employee's employment.
5.3 Employee agrees that he shall not divulge to others, nor shall he use to
the detriment of the Company or in any business or process of manufacture
competitive with or similar to any business or process of manufacture engaged in
by the Company or any of its subsidiaries or affiliated companies, at any time
during employment with the Company or thereafter, any confidential or trade
secret information obtained during the course of employment with the Company
relating to sales, salesman, sales volume or strategy, customers, formulas,
processes, methods, machines, manufactures, compositions, ideas, improvements or
inventions belonging to or relating to the business of the Company, or its
subsidiary or affiliated companies.
5.4 Employee shall neither solicit, seek to solicit any of the Company's
personnel in any capacity whatsoever nor shall Employee induce or attempt to
induce any of the Company's personnel to the employ of the Company to work for
Employee or otherwise.
5.5 Employee acknowledges that a breach of any of the restrictive covenants
contained in Section 5 may cause irreparable damage to the Company for which
remedies at law would be inadequate. Accordingly, if Employee breaches or
threatens to breach any of the provisions of this Section 5, the Company shall
be entitled to appropriate injunctive relief, including without limitation,
preliminary and permanent injunctions in any court of competent jurisdiction,
restraining Employee from taking any action prohibited hereby. This remedy
shall be in addition to all other remedies available to the Company at law or
equity. If any portion of this Section 5 is adjudicated to be invalid or
unenforceable, this Section 5 shall be deemed amended to delete there from the
portion so adjudicated, such deletion to apply only with respect to the
operation of this Section 5 in the jurisdiction in which such adjudication is
made.
6. Proprietary Property.
Subject to the provisions of Section 8.6 hereof:
6.1 The Employee agrees that any and all inventions or improvements as well as
any and all ideas, creations, know-how and methods of applying and putting into
practice any inventions or improvements (all of the foregoing being hereinafter
called "Proprietary Property" and being more fully defined in subsection 6.2
below) that are created, developed, conceived of or discovered either (I) by the
Employee (solely or jointly with others) in the course of employment, on Company
time, with Company materials or facilities; or (ii) by and for the Company; or
(iii) by any independent individual of business acquired by the Company. The
Employee shall not, without limitation as to time or place, use any Proprietary
Property except on Company business, during or after his period of employment
(in accordance with Section 5), nor disclose the same to any other person or
individual except for disclosure on Company business or as may be required by
law.
6.2 As used in this Agreement "Proprietary Property" means proprietary
technical information not known by the Employee prior to employment or
information not generally known in the Company's industry and which is disclosed
to Employee or known or developed by Employee as a consequence of or through
employment with the Company.
6.3 During or subsequent (in accordance with Section 5) to the Employee's
employment by the Company, Employee shall not, directly or indirectly, lecture
upon, publish articles concerning, use, disseminate, disclose, sell or offer for
sale any Proprietary Property without the Company's prior written consent.
7. Disability.
7.1 Subject to the terms of Section 7.1, in the event Employee becomes
temporarily disabled during the term of this Agreement, Employee shall continue
to receive one-hundred percent (100%) of the fixed compensation to which
Employee was entitled at the time of disability for a maximum period of six (6)
months. Beginning on the seventh month of disability by Employee the fixed
compensation shall be reduced to fifty percent (50%) and be available for six
(6) more calendar months. The terms "disabled" and "disability" shall mean
disability which, in the opinion of a doctor reasonably satisfactory to the
Company, renders the Employee unable to perform his duties hereunder. The date
such disability commences shall be the date Employee first absents from work
during a continuous period of disability as so determined by the doctor herein
above set forth. The term "temporary disability" shall mean a disability which
is not a permanent disability as defined in Section 7.2 below.
7.2 Notwithstanding anything to the contrary set forth in this Agreement, the
Company may terminate this Agreement upon no less than ninety (90) days prior
written notice to Employee after six (6) full continuous calendar months
following "permanent disability" (as defined below) of Employee and the payment
to Employee of all unpaid accrued compensation which the Company owes to the
Employee for the period of employment prior to termination. In such event, the
Employee shall be entitled to receive from the Company or from the Company's
disability insurance carrier disability compensation in an amount which, when
added to all social security benefits received or to be received by Employee as
a result of the permanent disability, equal to One-Hundred Thousand
($100,000.00) per annum; provided, however, in no event shall the premiums paid
by the Company for maintaining the disability policy (as such term is defined
below) exceed fifteen thousand ($15,000.00) dollars per annum. The Employee's
entitlement to disability benefits shall be pursuant to the terms of this
Agreement and the disability insurance policy (the "Disability Policy") to be
obtained and maintained by the Company, naming the Employee as the insured
thereunder. Notwithstanding the foregoing, in the event Employee's disability
is either not covered under the Disability Policy or Employee is covered for
less than One-Hundred ($100,000.00) Thousand dollars per annum or if coverage
under the Disability Policy terminates during the Period of disability for any
reason whatsoever, then for the balance of Employee's then current term of
employment the Company will pay Employee One-Hundred ($100,000.00) Thousand
dollars per annum or, if Employee is receiving benefits under the Disability
Policy, the Company will supplement the insurance payments which Employee is
entitled to receive so that Employee receives a total of One-Hundred Thousand
($100,000.00) dollars per annum and, thereafter, the Company will pay to
Employee, or supplement the benefits Employee receives under said Disability
Policy, so that Employee receives the lesser of (I) One-Hundred Thousand
($100,000.00) dollars per annum; or (ii) fifty (50%) percent of Employee's Fixed
Compensation until Employee attains the age of sixty-five (65). Once the
Employee attains the age of sixty-five (65), the Company shall have no further
obligations to make disability payments to Employee or to otherwise supplement
the amounts Employee receives under the Disability Policy except to the extent
that it is the Company's then current policy to continue to cover or provide
benefits to permanently disabled executive officers beyond the age sixty-five
(65). Notwithstanding anything to the contrary set forth in this Section 7.2,
in the event the Employee reassumes the full Performance of his duties hereunder
prior to such termination notice, the Employee shall be entitled to one-hundred
(100%) percent of the total compensation from the date of the Employee's
return. In no event shall Employee be entitled to renew the term of the
Employment for the Extension Terms or any Annual Term if the Employee becomes
permanently disabled during either the Initial Term or Extension Term.
Employee shall be deemed "Permanently Disabled" for purposes hereof if
either: (I) Employee has been temporarily disabled for a period in excess of
730 consecutive days; or (ii) the insurance company issuing the Disability
Policy determines that the Employee is permanently Disabled and will make
payments pursuant to the Disability Policy; or (iii) a physician, mutually
acceptable to both the Company and the Employee, determines on the basis of
medical evidence that the Employee is totally disabled, mentally or
physically, so as to be , prevented from engaging in further employment by
the Company in the capacity in which Employee was engaged prior to such
disability and that such disability will be permanent and continuous during
the remainder of the life of Employee. In the event a physician cannot be
selected who is acceptable to both the Company and the Employee, each party
shall select a physician who shall select a third physician whose decision
shall be final. In the event of a dispute or the inability of the physicians
selected by the Company and the Employee to select a third physician, a
physician shall be selected by the American Arbitration Association and the
decision of such physician shall be final.
7.3 Payments of disability compensation under Sub-Sections 7.1 and 7.2 above
shall be reduced by the amounts actually received by the Employee under any
policy or policies of disability, health, accident or wage continuation
insurance paid for by the Company.
8. Termination; Severance; Death.
8.1 The Employee's employment shall terminate upon death, and may be
terminated, at the option of (I) the Employee, (a) upon the conclusion of the
Initial Term, or any Annual Term upon proper notice to the Company, or (b) for
documented breach of this Agreement, or (ii) the Company upon proper written
notice to the Employee, (a) at the conclusion of the Initial Term or any Annual
Term, (b) as a result of permanent disability as defined in Section 7.2 hereof,
or (C ) for cause. Termination "for cause" shall mean termination only in the
event the Employee is guilty in a court of competent jurisdiction with respect
to Section 5, (I) intentional failure to perform duties hereunder, (ii) any act
of intentional dishonesty which has material adverse effect to the Company's
business.
8.2 If Employee's employment is terminated by the Company for documented cause,
as referenced in Section 8.1C.
8.3 If Employee's employment is terminated by the Employment decision to act as
a consultant to the Company or as a result of the Employee's permanent
disability, the Company shall remain obligated to pay Employee the entitlements
set forth in Section 7 of this Agreement.
8.4 If Employee's employment is terminated by the Company's determination not
to renew the employment term at the conclusion of either the Initial Term or any
Annual Term, THE Company shall be obligated to pay Employee, within sixty (60)
days of such termination, a lump sum severance payment in an amount equal to
Fifty Thousand ($50,000.00) Dollars.
8.5 If Employee's employment is terminated by the Company, without cause,
during the Initial Term or any Annual Term, the Company shall be obligated to
pay Employee, within sixty (60) days of such termination, a lump sum severance
payment in an amount equal to Fifty Thousand ($50,000.00) Dollars.
8.6 If the Employee is terminated by the Company "for cause", the Company
shall have no further obligation to pay compensation or benefits to Employee,
other than those accrued through the date of such termination. Termination "for
cause" shall mean termination only in the event the Employee is guilty of (i)
intentional or reckless failure to perform his duties hereunder, or (ii) any act
of intentional dishonesty by the Employee which adversely effects the Company's
business or reputation.
8.7 If the Employee dies during the term of the employment hereunder, the
Company shall promptly pay to the Employee's estate or promptly distribute to
the beneficiary or beneficiaries named by the Employee all life insurance
proceeds under the Policy referred to in Section 3.3(b) hereof (if received by
the Company for any reason) as well as any term life insurance policy or
policies with the exception of any key-man policy which the Company maintained
on the life of and for the benefit of the Employee; provided, however, all other
Company fringe benefits shall cease upon Employee's death.
8.8 Notwithstanding anything to the contrary set forth in this Agreement, the
Employee's covenants set forth in Sections 5 and 6 hereof shall not apply with
respect to and shall not be enforceable against the Employee, in the event the
Employee's employment is terminated by the Company for any reason other than
those reasons expressly set forth in Section 8.1 hereof.
9. Arbitration
Any dispute, controversy or claim arising out of or pursuant to this
Agreement or the breach hereof shall be settled by arbitration in the City of
Clearwater, County of Pinellas and State of Florida. Such arbitration shall be
effected by arbitrators selected as hereinafter provided and shall be conducted
in accordance with the Rules, existing at the date thereof, of the American
Arbitration Association. The dispute, controversy or claim shall be submitted
to three arbitrators, one arbitrator to be selected by the Company, one
arbitrator to be selected by the Employee and the third arbitrator to be
selected by the two so selected by the Company and Employee, or if they cannot
agree on a third, by the American Arbitration Association. In the event that
either the Company or Employee within one (1) month after notification of any
demand for arbitration hereunder, shall not have selected its arbitrator and
given notice thereof to the other party, the arbitrator for such party shall be
selected by the American Arbitration Association. Meetings of the arbitrators
shall be held in Clearwater, Florida at such place or places as may be agreed
upon by the arbitrators. The results of final determination of any such
arbitration proceedings shall be binding on the parties hereto and a judgment
may be entered in any court having jurisdiction.
10. Severability Of Provisions
In the event any court of competent jurisdiction determines that any
term or provision of this Agreement shall be unenforceable, the invalidity of
such term or provision shall not affect the validity of the remainder hereof.
11. Notices
Any notice required or permitted to be given pursuant to the provisions
hereof shall be deemed given when sent by registered or certified mail, return
receipt requested, to the Company or Employee at their respective addresses set
forth above or to such other address as may be given by similar notice by the
Company or Employee.
12. Waiver Of Breach
The waiver by the Company or Employee of a breach of any provision
hereof by the other shall not operate or be construed to operate as a waiver by
such party of any subsequent breach by the other of the same or any other
provision hereof.
13. Entire Agreement, Modification and Construction.
This Agreement contains the entire understanding between the Company and
Employee with respect to the subject matter hereof. The terms and conditions
hereof may be changed only by agreement in writing signed by the Company and the
Employee. This Agreement shall be governed by and construed with the laws of
the State of Florida, applicable to contracts made and to be performed therein,
without giving effect to the principles thereof relating to conflicts of law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed and its
seal affixed by a duly authorized officer and the Employee has signed this
Agreement as the day and year first written above.
Progressive Telecommunications Corporation: Employee:
/s/ Xx. Xxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxx
Authorized Corporate Signature Employee Signature
Xx. Xxxxxx Xxxxxxx
Vice President Xxxxxxx X. Xxxxx
Print Name & Title Print Name
12-10-99 12-9-99
Date Date
