Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and among L.
XXXXXX XXXXX an individual residing in the State of Florida (the "Employee");
and NetWorth Systems, Inc. a Florida corporation ("NetWorth Systems"). NetWorth
Systems and the Employee being sometimes hereinafter collectively to as the
"Parties" or generically as a "Party".
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
Witnesseth:
ARTICLE ONE
TERM, RENEWALS, EARLIER TERMINATION
1.1 TERM.
Subject to the provisions set forth herein, the term of the Employee's
employment hereunder shall be deemed to have commenced as of March 1, 2004 and
shall continue until February 28, 2007.
1.2 RENEWALS.
(a) This Agreement may be renewed after expiration of the original term, on a
continuing annual basis, on the mutual consent of the parties.
(b) In the event that in conjunction with a renewal of this Agreement, a Party
desires a modification of the terms of this Agreement that are not of
general application (e.g., the provisions pertaining to salary,
commissions, etc.), then:
(1) Such Party shall provide the other with a written notice specifying
the requested modifications (the "Modification Request Notice") on
or before the 45th day prior to termination of the then current term
which;
(2) If the modifications specified in the Modifications Request Notice
are accepted in writing by the other Party prior to expiration of
the then current term, the Modifications Request Notice shall be
deemed a written amendment to this Agreement, effective as of the
first day of the new renewal term;
(3) If the Party receiving the Modifications Request Notice finds the
proposed modifications unacceptable, it may initiate negotiations to
reach compromise modifications with the Party providing the
Modifications Request Notice, which must be concluded and reflected
in a written amendment to this Agreement prior to the end of the
then current term, failing which, the provisions of Section
1.2(B)(4) will be deemed in effect;
(4) If the modifications specified in the Modifications Request Notice
are not accepted in writing by the other Party prior to expiration
of the then current term, the Modifications Request Notice shall be
deemed a Notice of Termination and this Agreement will expire
effective as of the close of business on the last day of the then
current term.
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1.3 EARLIER TERMINATION.
NetWorth Systems shall have the right to terminate this Agreement prior to
the expiration of its Term or of any renewals thereof:
(a) For Cause:
(1) NetWorth Systems may terminate the Employee's employment under this
Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice thereof to the
Employee, which notice shall specify the cause for termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of the Employee, through sickness or other
incapacity, to discharge his duties under this Agreement for
30 or more consecutive days or for a total of 50 or more days
out of a period of 365 days;
(B) The failure of the Employee to abide by the directions of
NetWorth Systems' board of directors;
(C) Dishonesty; theft; insubordination or conviction of a crime;
(D) Material default in the performance of the Employee's
obligations, services or duties required under this Agreement
(other than due to illness) or material breach of any
provision of this Agreement, which default or breach has not
been completely remedied within five days after written notice
of such default or breach.
(b) Deterioration or Discontinuance of Business:
(1) In the event that NetWorth Systems discontinues operating its
business, this Agreement shall terminate as of the last day of the
month on which it ceases operation with the same force and effect as
if such last day of the month were originally set as the termination
date hereof; provided, however, that a reorganization or merger of
NetWorth Systems shall not be deemed a termination of its business.
(c) Death:
This Agreement shall terminate immediately on the death of the Employee;
however, all accrued compensation at such time shall be promptly paid to the
Employee's estate.
1.4 SEVERANCE PAYMENTS AND ALTERNATIVES TO TERMINATION
In the event this Agreement is terminated for reasons other than for cause
as described in Section 1.3(a)(3)(b) or (c) above, the Employee shall be
entitled to receive:
(A) All salaries and reimbursements earned through the date of
termination;
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(B) Pay to the Employee an amount equal to the lesser of two months of the
Employee's then prevailing salary or the remaining compensation due under this
Agreement whichever is less;
(C) Continue to provide the Employee for applicable period of 30 days with
those medical, life and disability insurance benefits, if any, which are
provided to the Employee as of the last date of employment;
1.5 FINAL SETTLEMENT.
Upon termination of this Agreement the Employee or the Employee's
representative shall execute and deliver to NetWorth Systems on a form prepared
by NetWorth Systems, a release of all claims except such claims as may have been
submitted pursuant to the terms of this Agreement and which remain unpaid, and,
shall forthwith tender to NetWorth Systems all records, manuals and written
procedures, as may be desired by it for the continued conduct of its business,
provided that all obligations of the Company to the Employee have been met.
ARTICLE TWO
SCOPE OF EMPLOYMENT
2.1 RETENTION.
NetWorth Systems hereby hires the Employee and the Employee hereby accepts
such employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 GENERAL DESCRIPTION OF DUTIES.
Reporting to the Board of Directors for the Company the CEO will be responsible
for the overall strategic and organic growth of the organization. His direct
responsibilities include corporate development, fundraising, strategic planning
and public relations. The CEO shall ensure that Networth Systems is held to a
minimum of an 8% EBITDA margin to be determined by financial review of the Board
of Directors.
Position responsibilities include:
o Formulate and execute major policies, programs and objectives to
promote and ensure the company's continuing success and growth
o Champion and author the annual strategic plan
o Execute the strategic and tactical operational growth plans for the
company, with particular emphasis on continued expansion into new
products and markets
o Take a leadership role in formulating and articulating the company's
vision and mission
o Achieve maximum efficiency and profit objectives through the efforts
of a strong management team
o Develop management personnel and implement effective succession
plans
o Establish and maintain strong relationships with industry peers and
major corporate players necessary for ensuring the company's
continued growth
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o Be the lead on all mergers and acquisitions, strategic alliances,
fundraising activities and other corporate development initiatives
x Xxxxxx an achievement-oriented culture based on continuous learning
principles where employees are motivated and rewarded for both
individual and team contributions
2.3 STATUS.
(A) The Employee shall serve as its Chairman and Chief Executive.
(B) The Employee is expected to work a minimum of 40 hours per week and devote
his full time and attention to the operations of the Company. However,
nothing shall prohibit the Employee from engaging in charitable and civic
activities and managing his personal passive investments, provided that
such passive investments are not in a company which competes in a business
similar to that of the Company's business. A minimum of 20-hours per week
is expected in the office.
(C) The Employee hereby represents and warrants to NetWorth Systems that he is
subject to no legal, self regulatory organization (e.g., National
Association of Securities Dealers, Inc.'s bylaws) or regulatory
impediments to the provision of the services called for by this Agreement,
or to receipt of the compensation called for under this Agreement or any
supplements thereto; and, the Employee hereby irrevocably covenants and
agrees to immediately bring to the attention of NetWorth Systems any facts
required to make the foregoing representation and warranty accurate
throughout the term of this Agreement, or any supplements or extensions
thereof.
2.4 EXCLUSIVITY.
(a) Unless specifically authorized by this Agreement or is otherwise
authorized by NetWorth Systems' board of directors, on a case by case
basis, in writing, all of the Employee's business time shall be devoted
exclusively to the affairs of NetWorth Systems.
(b) Without limiting the generality of the foregoing, the Employee covenants
to perform the employment duties called for hereby in good faith, devoting
substantially all business time, energies and abilities thereto; however,
so long as other commercial activities do not effect the performance of
the Employee, the Employee is free to engage in other business activities
that do not compete with or are in the same industry as Networth Systems
Inc.
2.5 LIMITATIONS ON SERVICES
(a) In rendering his services, the Employee shall not disclose to any third
party any confidential non-public information furnished by NetWorth
Systems or otherwise obtained by it with respect to NetWorth Systems,
except on a need to know basis.
(b) The Employee shall not take any action which would in any way adversely
affect the reputation, standing or prospects of NetWorth Systems or which
would cause NetWorth Systems to be in violation of applicable laws.
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ARTICLE THREE
COMPENSATION
3.1 COMPENSATION.
As consideration for the Employee's services to NetWorth Systems the
Employee shall be entitled to the following compensation:
A. The Employee shall receive an annual compensation of $82,000 per annum
payable monthly in arrears. B. The Employee shall also receive 1,350,000 options
to purchase Networth Systems Inc common stock at a cashless exercising to be
issued at every the anniversary of this contract based upon realization of the
profitability criteria as outlined in paragraph 2.2 above.
C. The Employee shall also receive during the term of this Agreement such
bonuses as deemed appropriate by the NetWorth Systems Board of Directors.
D. The Employee will be entitled to a minimum 10% increase in his salary
or such salary rise as determined by the Board of Directors.
3.2 BENEFITS.
(A) The Employee shall be entitled to any benefits generally made
available to all other employees including health insurance for the
Employee. Coverage for the family will be available to the Employee
at the Employee's cost. The Employee shall also be entitled to
receive such fringe benefits as may be generally provided by the
Company from time to time to its employees, in accordance with the
policies of the Company in office from time to time.
(B) If deemed appropriate under the circumstances by NetWorth Systems'
board of directors, an expense allowance in an amount established
from time to time by NetWorth Systems' board of directors for
traveling, telephone and other direct business expenses required in
connection with the performance of the Employee's duties hereunder,
the amount of the allowance being limited to actual expenditures
verified and documented as required by NetWorth Systems for audit
purposes, for tax deduction purposes and in order to assure
compliance with applicable laws and regulations.
(C) The Employee shall be entitled to two (2) weeks paid vacation
annually, to be take at such time(s) as shall not, in the reasonable
judgment of the Company's Board of Directors , interfere with the
fulfillment of the Employee's duties under this Agreement. The
Employee shall be entitled to as many holidays, sick days and
personal days as are generally provided from time to time to its
employees in accordance with the Company's policies in effect from
time to time.
3.3 INDEMNIFICATION.
NetWorth Systems will defend, indemnify and hold the Employee harmless
from all liabilities, suits, judgments, fines, penalties or disabilities,
including expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by the Employee in good faith on behalf of NetWorth Systems, its
affiliates or for other persons or entities at the request of the board of
directors of NetWorth Systems, to the fullest extent legally permitted.
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ARTICLE FOUR
SPECIAL COVENANTS
4.1 CONFIDENTIALITY, NON-CIRCUMVENTION AND NON-COMPETITION.
During the term of this Agreement, all renewals thereof and for a period
of two years after its termination, the Employee hereby irrevocably agrees to be
bound by the following restrictions, which constitute a material inducement for
NetWorth Systems' entry into this Agreement:
(a) Because the Employee will be developing for NetWorth Systems, making use
of, acquiring and/or adding to, confidential information of special and
unique nature and value relating to such matters as NetWorth Systems'
trade secrets, systems, procedures, manuals, confidential reports,
personnel resources, strategic and tactical plans, advisors, clients,
investors and funders; as material inducement to the entry into this
Agreement by NetWorth Systems, the Employee hereby covenants and agrees
not to personally use, divulge or disclose, for any purpose whatsoever,
directly or indirectly, any of such confidential information during the
term of this Agreement, any renewals thereof, and for a period of two
years after its termination.
(b) The Employee hereby covenants and agrees to be bound as a fiduciary of
NetWorth Systems, as if the Employee were a partner in a partnership bound
by the partnership opportunities doctrine, as such concept has been
judicially and legislatively developed in the State of Florida, and
consequently, without the prior written consent of NetWorth Systems, on a
specific, case by case basis, the Employee shall not, among other things,
directly or indirectly:
(1) Engage in any activities, whether or not for profit, competitive
with NetWorth Systems' business.
(2) Solicit or accept any person providing services to NetWorth Systems,
whether as an employee, consultant or independent contractor, for
employment or provision of services.
(3) Induce any client or customer of NetWorth Systems to cease doing
business with NetWorth Systems or to engage in business with any
person engaged in business activities that compete with NetWorth
Systems' business.
(4) Divert any business opportunity within the general scope of NetWorth
Systems' business and business capacity, to any other person or
entity.
4.2 ACKNOWLEDGMENT OF REASONABLENESS.
(a) The Employee hereby represents, warrants and acknowledges that
having carefully read and considered the provisions of this Article
Four, the restrictions set forth herein are fair and reasonable and
are reasonably required for the protection of the interests of
NetWorth Systems, its officers, directors and other employees;
consequently, in the event that any of the above-described
restrictions shall be held unenforceable by any court of competent
jurisdiction, the Employee hereby covenants, agrees and directs such
court to substitute a reasonable judicially enforceable limitation
in place of any limitation deemed unenforceable and, the Employee
hereby covenants and agrees that if so modified, the covenants
contained in this Article Four shall be as fully enforceable as if
they had been set forth herein directly by the Parties.
(b) In determining the nature of this limitation, the Employee hereby
acknowledges, covenants and agrees that it is the intent of the
Parties that a court adjudicating a dispute arising hereunder
recognize that the Parties desire that these covenants not to
circumvent, disclose or compete be imposed and maintained to the
greatest extent possible.
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4.3 UNAUTHORIZED ACTS.
The Employee hereby covenants and agrees not do any act or incur any
obligation on behalf of NetWorth Systems except as authorized by its board of
directors or by its stockholders pursuant to duly adopted stockholder action or
reasonably inferred therefrom.
4.4 COVENANT NOT TO DISPARAGE
The Employee hereby irrevocably covenants and agrees that during the term
of this Agreement and after its termination, he will refrain from making any
remarks that could be construed by anyone, under any circumstances, as
disparaging, directly or indirectly, specifically, through innuendo or by
inference, whether or not true, about NetWorth Systems, its constituent members,
or their officers, directors, stockholders, employees, agent or affiliates,
whether related to the business of NetWorth Systems, to other business or
financial matters or to personal matters.
ARTICLE FIVE
MISCELLANEOUS
5.1 NOTICES.
(a) (1) All notices, demands or other communications hereunder shall be in
writing, and unless otherwise provided, shall be deemed to have been
duly given on the first business day after mailing by registered or
certified mail, return receipt requested, postage prepaid, addressed
as follows:
To the Employee:
L. XXXXXX XXXXX
0000 XX 0xx Xxx Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
To NetWorth Systems:
NETWORTH SYSTEMS, INC.
0000 XX 0xx Xxx Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxx
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxx
0000 XX Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
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(2) Copies of notices will also be provided to such other address or to
such other person as any Party shall designate to the other for such
purpose in the manner hereinafter set forth.
5.2 AMENDMENT.
(a) No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by the Party
against which the enforcement of said modification, waiver, amendment,
discharge or change is sought.
(b) This Agreement may not be modified without the consent of a majority in
interest of NetWorth Systems' Board of Directors. .
5.3 MERGER.
(a) This instrument contains all of the understandings and agreements of the
Parties with respect to the subject matter discussed herein.
(b) All prior agreements whether written or oral, are merged herein and shall
be of no force or effect.
5.4 SURVIVAL.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 SEVERABILITY.
If any provision or any portion of any provision of this Agreement, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
5.6 GOVERNING LAW AND VENUE.
This Agreement shall be construed in accordance with the laws of the State
of Florida but any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
5.7 LITIGATION.
(a) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing
Party shall be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations, trials
and appeals, whether or not litigation is initiated.
(a) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the
dispute shall be resolved before the Palm Beach County, Florida courts.
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In the event of any litigation, the prevailing party shall be entitled to
recover all costs including reasonable attorneys fees.
(B) BENEFIT OF AGREEMENT.
(c) This Agreement may not be assigned by the Employee without the prior
written consent of NetWorth Systems.
(d) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the Parties, their successors, assigns,
personal representative, estate, heirs and legatees.
(E) CAPTIONS.
The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
5.10 NUMBER AND GENDER.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 FURTHER ASSURANCES.
The Parties hereby agree to do, execute, acknowledge and deliver or cause
to be done, executed or acknowledged or delivered and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
5.12 STATUS.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but, rather,
the relationship established hereby is that of employer-employee in NetWorth
Systems.
5.13 COUNTERPARTS.
(a) This Agreement may be executed in any number of counterparts.
(f) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for
aesthetic purposes, prepare a fully executed original version of this
Agreement, which shall be the document filed with the Securities and
Exchange Commission.
Signature Page to Follow
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In Witness Whereof, the Parties have executed this Agreement, effective as
of the last date set forth below.
THE EMPLOYEE
/s/ L. Xxxxxx Xxxxx
----------------------------------------
L. XXXXXX XXXXX
NETWORTH SYSTEMS, INC.
A FLORIDA CORPORATION.
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
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