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EXHIBIT 10.25
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT, dated as of December 4, 2000 (the
"Agreement"), by and between TELESERVICES INTERNET GROUP INC., a Florida
corporation, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
(the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇, an individual residing at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Executive").
WHEREAS, the Company is presently engaged in the business of in a
variety of businesses, including, through its ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
subsidiary, the Internet Search Engine and Portal business, through it's The
Affinity Group, Inc. subsidiary, the marketing of vacation packages and other
things, and the marketing of music compact discs, smartcards and other products;
WHEREAS, the Executive has had extensive experience in the business of
marketing vacations and other products and services;
WHEREAS, the Company has acquired Executive's former employer, The
Affinity Group, Inc. and wishes to assure itself of the continued services of
the Executive as an employee of the Company rendering services for both the
Company and its subsidiary, The Affinity Group, Inc. for the period provided in
this Agreement and the Executive is willing to serve in the employ of the
Company for such period upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Company hereby agrees to employ the Executive upon the
terms and conditions herein contained, and the Executive hereby agrees to accept
such employment for the term described below. The Executive agrees to serve as
the President and chief executive officer or co-chief executive officer of the
Company and as a member of the Board of Directors of the Company and the
Executive Committee of the Board of Directors of the Company during the term of
this Agreement. In addition, the Executive agrees to serve as the chief
executive officer of The Affinity Group, Inc. and as the chairman of the Board
of Directors of the Affinity Group, Inc., during the term of this Agreement. In
such capacities, the Executive shall have such powers and responsibilities
consistent with his various positions, and as the Executive Committee of the
Board of Directors, or the Board of Directors, may assign to him.
Throughout the term of this Agreement, the Executive shall
devote his best efforts and substantially all of his business time and services
to the business and affairs of the Company and its subsidiaries in accordance
with his assignments from time to time.
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2. TERM OF AGREEMENT
The three (3) year initial term of the Executive employment
under this Agreement shall commence as of ____________, 2000 (the "Effective
Date").
Notwithstanding the foregoing, the Company shall be entitled
to terminate this Agreement immediately, subject to a continuing obligation to
make any payments required under Section 5 below, if the Executive (i) becomes
disabled as described in Section 5(b), (ii) is terminated for Cause, as defined
in Section 5(c), or (iii) voluntarily terminates his employment before the
current term of this Agreement expires, as described in Section 5(d).
3. SALARY, BONUS AND INCENTIVES
(a) Salary. The Executive shall receive an annual base salary during
the term of this Agreement at an annual rate of not less than $350,000.00,
subject to review and increases from time to time in the reasonable discretion
of the Company's Board of Directors (the "Board"), payable in equal installments
consistent with the Company's normal payroll schedule, but not less frequently
than monthly.
(b) Cash Bonus. The Executive shall also receive an annual cash
incentive bonus from the Company for each fiscal year of the Company during the
term of this Agreement, in the following amounts for achievement of the
following performance goals:
(i) (A) If during the first 12 months of this Agreement, the Company's
gross revenues, including all of its subsidiaries, except ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
Inc. and any subsidiaries acquired after June 13, 2000, equals or exceeds $40
million and the EBITDA on said gross revenues for said period, not including any
costs or expenses of the headquarters operation, equals or exceeds 20%, the
Executive shall receive during the 13th month of this Agreement a cash bonus
equal to his annual base salary ($350,000.00) (the "Maximum Cash Bonus").
(B) If during the first 12 months of this Agreement the
requirements of 3(b)(i)(A) are not met, but the Company's gross revenues,
including all of its subsidiaries, except ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and any
subsidiaries acquired after June 13, 2000, equals $20 million and the EBITDA on
said gross revenues for said period, not including any costs or expenses of the
headquarters operation, equals 10%, the Executive shall receive during the
thirteenth month a cash bonus equal to one half of his annual base salary
($175,000.00) (the "Minimum Cash Bonus").
(C) If one of the two components of Company performance (gross
revenue and/or EBITDA) exceeds requirements for the Minimum Cash Bonus, and the
other component at least meets the requirements for the Minimum Cash Bonus, the
bonus shall be calculated on a sliding scale by dividing the difference between
the Minimum Cash Bonus and the Maximum Cash Bonus by 2 and multiplying the
difference by the percentage of the maximum requirement for
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that category actually achieved, and then doing the same for the other category,
with the sum of the two amounts plus the Minimum Cash Bonus equaling the cash
bonus to which the Executive is entitled. For example, if gross revenues equal
$35 million and EBITDA equals 15%, the Executive's bonus would be $295,312.50
[$175,000 + ($87,500 x 0.875 = $76,562.50) + ($87,500 x 0.50 = $43,750) =
$295,312.50].
(ii) (A) If during the second 12 months of this Agreement, the
Company's gross revenues, including all of its subsidiaries, except
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and any subsidiaries acquired after June 13, 2000,
equals or exceeds $50 million and the EBITDA on said gross revenues for said
period, not including any costs or expenses of the headquarters operation,
equals or exceeds 20%, the Executive shall receive during the 25th month of this
Agreement a cash bonus equal to his annual base salary ($350,000.00) (the
"Maximum Cash Bonus").
(B) If during the second 12 months of this Agreement the
requirements of 3(b)(ii)(A) are not met, but the Company's gross revenues,
including all of its subsidiaries, except ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and any
subsidiaries acquired after June 13, 2000, equals $25 million and the EBITDA on
said gross revenues for said period, not including any costs or expenses of the
headquarters operation, equals 10%, the Executive shall receive during the 25th
month of this Agreement a cash bonus equal to one half of his annual base salary
($175,000.00) (the "Minimum Cash Bonus").
(C) The sliding bonus for performance between the Minimum Cash
Bonus and the Maximum Cash Bonus for the second 12 months of this Agreement
shall be determined in the same manner such bonus is determined for the first 12
months of this Agreement, except that the gross revenue numbers for the second
12 months of this Agreement shall be substituted in place of those for the first
12 months.
(iii) (A) If during the third 12 months of this Agreement, the
Company's gross revenues, including all of its subsidiaries, except
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and any subsidiaries acquired after June 13, 2000,
equals or exceeds $62.5 million and the EBITDA on said gross revenues for said
period, not including any costs or expenses of the headquarters operation,
equals or exceeds 20%, the Executive shall receive on the last day of the
initial 36-month term of this Agreement a cash bonus equal to his annual base
salary ($350,000.00) (the "Maximum Cash Bonus").
(B) If during the third 12 months of this Agreement the
requirements of 3(b)(iii)(A) are not met, but the Company's gross revenues,
including all of its subsidiaries, except ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and any
subsidiaries acquired after June 13, 2000, equals $31.25 million and the EBITDA
on said gross revenues for said period, not including any costs or expenses of
the headquarters operation, equals 10%, the Executive shall receive during the
25th month of this Agreement a cash bonus equal to one half of his annual base
salary ($175,000.00) (the "Minimum Cash Bonus").
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(C) The sliding bonus for performance between the Minimum Cash
Bonus and the Maximum Cash Bonus for the third 12 months of this Agreement shall
be determined in the same manner such bonus is determined for the first 12
months of this Agreement, except that the gross revenue numbers for the third 12
months of this Agreement shall be substituted in place of those for the first 12
months.
If the Executive's annual base salary is increased during the initial
36-month term of this Agreement, then the above bonus amounts will be
correspondingly increased. The Executive, in his sole discretion, shall have the
option to have his bonus paid in fully registered and legally salable shares of
the common stock of the Company.
(c) Stock Bonus Options. In addition to the foregoing, the Company
hereby grants to the Executive options to purchase up to 4,000,000 shares of the
common stock of the Company (1) at an exercise price of $0.75 per share, (2)
exercisable on a cashless basis subject to the following conditions:
(i) The Executive may exercise the option with respect to 2,000,000
shares, in whole or in part, in all events, beginning immediately, and at any
time and as many times during the 60 month period as the Executive, in his sole
discretion, may choose until the option has been exercised with respect to all
of the shares granted under the option.
(ii) The Executive may exercise the option with respect to 1,000,000
shares, in whole or in part, in all events, beginning September 1, 2001, and at
any time and as many times during the 60 month period as the Executive, in his
sole discretion, may choose until the option has been exercised with respect to
all of the shares granted under the option.
(iii) The Executive may exercise the option with respect to 1,000,000
shares, in whole or in part, in all events, beginning September 1, 2002, and at
any time and as many times during the 60 month period as the Executive, in his
sole discretion, may choose until the option has been exercised with respect to
all of the shares granted under the option.
(iv) If the Executive chooses to exercise the option, in whole or in
part, of a cashless basis, the Executive shall be entitled to receive
certificate for the number of shares of common stock equal to the quotient
obtained by dividing [(A-B) (X) by (A), where: (A) = the average of the high and
low trading prices per share of common stock as reported by the OTC Bulletin
Board (or if the Company's common stock is not trading on the OTC Bulletin Board
at the time of exercise, then as reported by the then prevailing principal
market for the common stock, such as Nasdaq SmallCap Market, Nasdaq National
Market, American Stock Exchange or the New York Stock Exchange) for the ten
trading days preceding the date of the election; (B) = the per share Exercise
Price of the option; and (X) = the number of shares issuable upon exercise of
the Option in accordance with the terms of this "cashless exercise" provision.
These shares are intended to be S8 Registered shares. To the extent
that the Company does not currently have a sufficient number of S8 Registered
shares available, the Company shall include
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this stock bonus option for 4,000,000 shares of the Company's common stock in an
S8 Registration Statement to be filed not later than 10 days following the date
that the Company is able to file audited financial information in conformity
with Securities and Exchange Commission requirements, which the Company
covenants will be not later than 75 days from the date of Closing. The S8
Registration shall remain effective for 5 years from the date granted. The
underlying shares of this stock bonus option shall vest immediately for purposes
of legal public resale. The underlying shares of this stock bonus option shall
vest immediately for purposes of legal public resale. Vesting of shares for
purposes of legal public resale shall not be delayed by the fact that the S8
Registration Statement with respect to such shares has not been filed or by the
fact that the option has not been exercised or has only been exercised only in
part. The stock bonus option, and the terms and conditions of same, granted
hereunder shall survive the expiration of, and any termination of, this
Agreement.
4. ADDITIONAL COMPENSATION AND BENEFITS
The Executive shall receive the following additional
compensation and welfare and fringe benefits:
(a) Annual Stock Options. Upon execution of this Agreement by
both the Executive and the Company, the Company shall grant to the Executive
three options to purchase 100,000 shares each of the common stock of the Company
(1) at an exercise price of $1.00 per share, (2) each exercisable on a cashless
basis (using the same formula as contained in paragraph 3(c)(iv) hereof) in
accordance with the following exercise schedule: (i) the first option for
100,000 shares may be exercised, in whole or in part, in all events, at any time
and as many times as the Executive, in his sole discretion, may choose (until
the option has been exercised with respect to all of the underlying shares),
during the first 12 consecutive calendar months following the date of execution
of this Agreement, (ii) the second option for 100,000 shares may be exercised,
in whole or in part, in all events, at any time and as many times as the
Executive, in his sole discretion, may choose (until the option has been
exercised with respect to all of the underlying shares), during the second 12
consecutive calendar months following the date of execution of this Agreement,
and (iii) the third option for 100,000 shares may be exercised, in whole or in
part, in all events, at any time and as many times as the Executive, in his sole
discretion, may choose (until the option has been exercised with respect to all
of the underlying shares), during the third 12 consecutive calendar months
following the date of execution of this Agreement. The Company shall include
said options in a registration statement to be filed with the SEC within 60 days
from the date of execution of this Agreement and to become effective within 120
days from the date of execution of this Agreement and to remain effective for 5
consecutive years from said date. Beginning on the date that each option granted
hereunder may first be exercised by the Executive, the underlying shares shall
vest for purposes of legal public resale at the rate of 1/12th of the total
underlying shares per month on consecutive calendar months until all of the
option shares granted hereunder are fully vested for purposes of legal public
resale. Vesting of shares for purposes of legal public resale shall not be
delayed by the fact that the registration statement with respect to such shares
has not become effective or by the fact that the option has not been exercised
or has only been exercised in part.
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Accordingly, vesting of shares shall accumulate each month prior to the
effective date of the registration statement and regardless of whether or not
any of the options has been exercised, in whole or in part. The stock options,
and the terms and conditions of same, granted hereunder shall survive the
expiration of, and any termination of, this Agreement.
(b) Life and Disability Insurance. During the term of this
Agreement, the Company shall provide to Executive at no cost to him life
insurance and disability coverage in the amount of $1,000,000.
(c) Medical Insurance. The Company shall provide the Executive
and his dependents with health insurance coverage.
(d) Automobile. The Company shall provide Executive with the
use of a recent model automobile of the Executive's choice and a cell phone,
provided that the Company's obligation with respect to the automobile shall not
exceed $1,200 per month, plus the cost of fuel and maintenance.
(e) Vacation. The Executive shall be entitled to up to twenty
(20) days of vacation during each year during the term of this Agreement and any
extensions thereof, prorated for partial years. Employee shall schedule vacation
time at such time or times as approved by Employer in the best interest of the
business of Employer.
(f) Business Expenses. The Company shall reimburse the
Executive for all reasonable expenses he incurs in promoting the Company's
business, including expenses for travel, entertainment of business associates,
service and usage charges for business use of cellular phones and similar items,
upon presentation by the Executive from time to time of an itemized account of
such expenditures.
(g) Sales Bonus. In addition to all of the foregoing
compensation benefits provided in this Agreement, the Executive shall receive as
additional weekly compensation the applicable percentage, as set forth on
Exhibit "A" hereto, of the net collections on all sales (1) of the Company's
(all references to the Company in this paragraph include any and/or all of its
subsidiaries) "mini-vacation" packages, including the current "Imperial Holidays
Mini-Vac Program" vacations, and (2) of the Company's memberships in its
"membership" programs (programs in which discounted vacations, products and
services are offered to the programs' "members", such as the current Imperial
Holidays Travel Agency ID membership program [TAID], the Crown Buyers Club and
the Buyers Advantage Club, ▇▇ ▇▇▇▇▇'▇ Club, and the Common Wealth Benefits
Programs) and of products and services to members of such programs, regardless
of whether such sales are made by or through the Company's own telemarketing
call centers or Internet sites or by or through third party telemarketing call
centers or Internet sites, payable weekly on the preceding week's collections.
In addition to the benefits provided pursuant to the preceding
paragraphs of this Section 4, the Executive shall be eligible to participate in
such other executive compensation and
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retirement plans of the Company as are applicable generally to other officers,
and in such welfare benefit plans, programs, practices and policies of the
Company as are generally applicable to other key employees.
5. PAYMENTS UPON TERMINATION
(a) Involuntary Termination. If the Executive's employment is
terminated by the Company during the term of this Agreement, the Executive shall
be entitled to receive his base salary accrued through the date of termination.
The Executive shall also receive any nonforfeitable benefits already earned and
payable to him under the terms of this Agreement and/or any deferred
compensation, incentive or other benefit plan maintained by the Company, payable
in accordance with the terms of the applicable plan.
If the termination is not for death, disability as described
in paragraph (b), for Cause as described in paragraph (c) or a voluntary
termination by the Executive as described in paragraph (d), the Company shall
also be obligated to make a series of monthly payments to the Executive for each
month during the remaining term of this Agreement, but not less than twenty-four
(24) months. Each monthly payment shall be equal to one-twelfth (1/12th) of the
Executive's annual base salary, as in effect on the date of termination.
(b) Disability. The Company shall be entitled to terminate
this Agreement, if the Board determines that the Executive has been unable to
attend to his duties for at least one hundred eighty (180) days because of a
medically diagnosable physical or mental condition, and has received a written
opinion from a physician acceptable to the Board that such condition prevents
the Executive from resuming full performance of his duties and is likely to
continue for an indefinite period. Upon such termination, the Company shall pay
to Executive a monthly disability benefit equal to one-twenty-fourth (1/24th) of
his current annual base salary at the time he became permanently disabled.
Payment of such disability benefit shall commence on the last day of the month
following the date of the termination by reason of permanent disability and
cease with the earliest of (i) the month in which the Executive returns to
active employment, either with the Company or otherwise, (ii) the end of the
initial term of this Agreement, or the current renewal term, as the case may be,
or (iii) the twenty-fourth month after the date of the termination. Any amounts
payable under this Section 5(b) shall be reduced by any amounts paid to the
Executive under any long-term disability plan or other disability program or
insurance policies maintained or provided by the Company.
(c) Termination for Cause. If the Executive's employment is
terminated by the Company for Cause, the amount the Executive shall be entitled
to receive from the Company shall be limited to his base salary accrued through
the date of termination, and any nonforfeitable benefits already earned and
payable to the Executive under the terms of deferred compensation or incentive
plans maintained by the Company.
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For purposes of this Agreement, the term "Cause" shall be
limited to (i) any action by the Executive involving willful disloyalty to the
Company, such as embezzlement, fraud, misappropriation of corporate assets or a
breach of the covenants set forth in Sections 9 and 10 below; or (ii) the
Executive being convicted of a felony; or (iii) the Executive being convicted of
any lesser crime or offense committed in connection with the performance of his
duties hereunder and involving fraud or embezzlement or assault or sexual
harassment; or (iv) the intentional, willful and repeated or continuing failure
by the Executive to substantially perform his duties hereunder as directed by
the Board (other than any such failure resulting from the Executive's incapacity
due to physical or mental disability). Notwithstanding the foregoing, no
termination pursuant to subsection (iv) shall be treated as termination for
cause unless the Board has provided executive with at least thirty (30) days
prior written notice specifying in reasonable detail the alleged breach and
giving the Executive a reasonable opportunity to correct such breach.
(d) Voluntary Termination by the Executive. If the Executive
resigns or otherwise voluntarily terminates his employment before the end of the
current term of this Agreement, the amount the Executive shall be entitled to
receive from the Company shall be limited to his base salary accrued through the
date of termination, and any nonforfeitable benefits already earned and payable
to the Executive under the terms of this Agreement and/or any deferred
compensation or incentive plans of the Company.
For purposes of this paragraph, a resignation by the Executive
shall not be deemed to be voluntary if the Executive resigns during the period
of three months after the date he is (1) assigned without his consent to a
position other than vice president of either the Company or the Company's
subsidiary, The Affinity Group, Inc., of the Company (other than for Cause, or
by reason of permanent disability), (2) assigned duties materially inconsistent
with such position, or (3) directed to report to anyone other than the Company's
President, CEO or Chief Operating Officer or The Affinity Group's President or
CEO.
6. EFFECT OF CHANGE IN CORPORATE CONTROL
(a) In the event of a Change in Corporate Control, the vesting
of any warrants and/or stock options or other awards granted to the Executive
under this Agreement and/or under the terms of any of the Company's various
warranty and stock option plans shall become immediately vested in full and, in
the case of warrants and stock options, exercisable in full immediately.
In addition, if, at any time during the period of twelve (12)
consecutive months following the occurrence of a Change in Corporate Control,
the Executive is involuntarily terminated (other than for Cause) by the Company,
the Executive shall be entitled to receive as severance pay in lieu of the
monthly payments described in Section 5(a) above, a series of thirty-six (36)
equal monthly payments, each equal to one-twelfth (1/12th) of the sum of (i) the
Executive's annual base salary in effect at the time of the Change in Corporate
Control plus (ii) the annual bonus paid to the Executive with respect to the
last fiscal year of the Company ending prior to the Change in Corporate Control.
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(b) For purposes of this Agreement, a "Change in Corporate
Control" shall include any of the following events:
(1) The acquisition in one or more transactions of a
controlling interest in the Company's outstanding Common Stock by any
corporation, or other person or group (within the meaning of Section
14(d)(3) of the Securities Exchange Act of 1934, as amended);
(2) Any merger or consolidation of the Company into
or with another corporation in which the Company is not the surviving
entity, or any transfer or sale of substantially all of the assets of
the Company or any merger or consolidation of the Company into or with
another corporation in which the Company is the surviving entity and,
in connection with such merger or consolidation, all or part of the
outstanding shares of Common Stock shall be changed into or exchanged
for other stock or securities of any other person, or cash, or any
other property;
(3) Any election of persons to the Board of Directors
that causes a majority of the Board of Directors to consist of persons
other than (i) persons who were members of the Board of Directors on
the Effective Date of that certain Stock-for-Stock Acquisition
Agreement Between TeleServices Internet Group Inc. and The Affinity
Group, Inc. (the "Acquisition Agreement") as Effective Date is defined
in the Acquisition Agreement and (ii) persons who were nominated for
election as members of the Board by the Board of Directors (or a
Committee of the Board) as representatives from companies acquired by
the Company in acquisitions in which the Company is the surviving
entity; provided, that any person nominated for election by the Board
of Directors composed entirely of persons described in (i) or (ii), or
of persons who were themselves nominated by such Board, shall for this
purpose be deemed to have been nominated by a Board composed of persons
described in (i); or
(4) The acquisition of a controlling interest in the
Company's outstanding Common Stock by any person, or entity, or group
of persons, who makes or has made a tender offer to acquire up to a
controlling interest in the Company's Common Stock;
provided that, no acquisition of stock by any person in a public offering or
private placement of the Company's common stock shall be considered a Change in
Corporate Control.
7. DEATH
If the Executive dies during the term of this Agreement, the
Company shall pay to the Executive's estate a lump sum payment equal to the sum
of the Executive's base salary accrued through the date of death plus the total
unpaid amount of any bonuses earned with respect to the fiscal year of the
Company most recently ended. In addition, the death benefits payable by reason
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of the Executive's death under any retirement, deferred compensation or other
employee benefit plan maintained by the Company shall be paid to the beneficiary
designated by the Executive in accordance with the terms of the applicable plan
or plans.
8. WITHHOLDING
The Company shall, to the extent permitted by law, have the
right to withhold and deduct from any payment hereunder any federal, state or
local taxes of any kind required by law to be withheld with respect to any such
payment.
9. PROTECTION OF CONFIDENTIAL INFORMATION
The Executive agrees that he will keep all confidential and
proprietary information of the Company or relating to its business (including,
but not limited to, information regarding the Company's customers, pricing
policies, methods of operation, proprietary computer programs and trade secrets)
confidential, and that he will not (except with the Company's prior written
consent), while in the employ of the Company or thereafter, disclose any such
confidential information to any person, firm, corporation, association or other
entity, other than in furtherance of his duties hereunder, and then only to
those with a "need to know." The Executive shall not make use of any such
confidential information for his own purposes or for the benefit of any person,
firm, corporation, association or other entity (except the Company) under any
circumstances during or after the term of his employment. The foregoing shall
not apply to any information that is already in the public domain, or is
generally disclosed by the Company or is otherwise in the public domain at the
time of disclosure.
The Executive recognizes that because his work for the Company
will bring him into contact with confidential and proprietary information of the
Company, the restrictions of this Section 9 are required for the reasonable
protection of the Company and its investments and for the Company's reliance on
and confidence in the Executive.
10. COVENANT NOT TO COMPETE
The Executive hereby agrees that he will not, either during
the Employment Term or during a period equal to the length of the payment of
cash benefits under Executive's severance compensation upon termination of the
Executive's employment under this Agreement, engage in any business activities
on behalf of any enterprise which competes with the Company in the business of
marketing any of the products or services marketed by the Company or any of its
subsidiaries. The Executive will be deemed to be engaged in such competitive
business activities if he participates in such a business enterprise as an
employee, officer, director, consultant, agent, partner, proprietor, or other
participant; provided that the ownership of no more than 2 percent of the stock
of a publicly traded corporation engaged in a competitive business, shall be
deemed to be engaging in competitive business activities.
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The Executive agrees that he shall not during any period in
which he is receiving monthly severance payments under Section 5 or Section 6 of
this Agreement,
(i) solicit any employee or full-time consultant of the
Company for the purposes of hiring or retaining such employee
or consultant, or
(ii) contact any present or prospective client of the Company
to solicit such a person to enter into a contract with any
organization other than the Company or a related entity.
For this purpose, the Executive shall be considered to be receiving monthly
severance payments under Section 5 of this Agreement during any period for which
he receives or has received such severance payments.
11. INJUNCTIVE RELIEF
The Executive acknowledges and agrees that it would be
difficult to fully compensate the Company for damages resulting from the breach
or threatened breach of the covenants set forth in Sections 9 and 10 of this
Agreement and accordingly agrees that the Company shall be entitled to temporary
and injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions, to enforce such provisions in any action
or proceeding instituted in the United States District Court for the Western
District of Florida or in any court in the State of Florida having subject
matter jurisdiction. This provision with respect to injunctive relief shall not,
however, diminish the Company's right to claim and recover damages.
It is expressly understood and agreed that although the
parties consider the restrictions contained in this Agreement to be reasonable,
if a court determines that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction on the activities of
the Executive, no such provision of this Agreement shall be rendered void but
shall be deemed amended to apply as to such maximum time and territory and to
such extent as such court may judicially determine or indicate to be reasonable.
12. TERMINATION OF NONCOMPETE AND CONFIDENTIALITY OBLIGATIONS
In the event that the Company shall fail to make any payment
when due under this Employment Agreement and if such failure to pay shall
continue for at least 5 days past the due date of such payment, then the
Executive shall have the right to terminate this Employment Agreement effective
immediately upon written notice to the Company, in which event, all obligations
and restrictions on the right of the Executive to compete against the Company,
whether contained in this Employment Agreement (paragraph 10 hereof) or in any
other agreement, and all restrictions and obligations of the Executive with
respect to confidential information of the Company, whether
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December 4, 2000
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contained in this Agreement (paragraph 9 hereof) or in any other agreement,
shall terminate upon delivery of the said written notice by the Executive to the
Company.
13. SEPARABILITY
If any provision of this Agreement shall be declared to be
invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
14. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit
of the heirs and representatives of the Executive and the assigns and successors
of the Company, but neither this Agreement nor any rights hereunder shall be
assignable or otherwise subject to hypothecation by the Executive.
15. ENTIRE AGREEMENT
This Agreement represents the entire agreement of the parties
and shall supersede any and all previous contracts, arrangements or
understandings between the Company and the Executive. This Agreement may be
amended at any time by mutual written agreement of the parties hereto.
16. GOVERNING LAW
This Agreement shall be construed, interpreted, and governed
in accordance with the laws of the State of Florida, other than the conflict of
laws provisions of such laws.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed, and the Executive has hereunto set his hand, as of the day and
year first above written.
Attest: TELESERVICES INTERNET GROUP INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------- -----------------------------
Secretary ▇▇▇▇ ▇▇▇▇▇, Secretary and CFO
Witness: EXECUTIVE:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------- -----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
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Exhibit "A"
The percentages to be paid by the Company to the Executive as set forth in
paragraph 4 (h) of this Agreement are as follows:
9% of the Company's net collections (collected sales less outside commissions
paid) on all sales of the Company's mini-vacation packages, such as the
Company's current "Imperial Holidays Minivac Program;"
8.1% of the net amount paid to independent brokers on all sales of the Company's
membership vacation packages (such as the current Imperial Holidays Travel
Agency ID membership program [TAID], the Crown Buyers Club and the Buyers
Advantage Club) and of products and services to members of such programs; and
17.388% of the Company's net collections (collected sales less outside
commissions paid) on all sales of the Company's programs with department stores,
discount stores, and super stores, including, but not limited to the ▇▇ ▇▇▇▇▇'▇
Club program and the Common Wealth Benefits Programs.
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