Exhibit 10.28
Bidville, Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement"), is made and entered into this
17th day of November, 2004, by and between Bidville, Inc., a Nevada corporation,
with its principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, a resident of the State
of Florida ("Employee").
WHEREAS, the Employee has experience and expertise in the field of business
management, financial accounting, strategic development, asset management, and
technology development,
NOW, THEREFORE, for adequate consideration, the sufficiency and receipt of which
is hereby acknowledged, and agreeing to be bound by the terms and conditions of
this Agreement, the Parties hereby agree as follows:
1. Employment
The Company shall employ Employee, and Employee hereby accepts such employment
and agrees to perform the duties and responsibilities hereunder, in accordance
with the terms and conditions hereinafter set forth, as follows:
1.1 Duties and Responsibilities.
(a) During such time as Employee is employed by the Company, Employee
shall serve as Chief Financial Officer and perform all duties and accept all
responsibilities incidental to such position. As of the Effective Date of this
Agreement, said duties, responsibilities and functions of Executive are set
forth in Exhibit A attached hereto and incorporated herein by reference for all
purposes. Employee shall also serve on the Board of Directors of the Company as
a Director.
(b) Employee represents and warrants that he is not subject or a party
to any employment agreement, non-competition covenant, non-disclosure agreement
or other agreement, covenant, understanding or restriction of any nature
whatsoever which would prohibit Employee from executing this Agreement and
performing fully his duties and responsibilities hereunder, or which would in
any manner, directly or indirectly, limit or affect the duties and
responsibilities which may now or in the future be assigned to Employee by the
Company.
1.2 Extent of Service.
During such time as Employee is employed by the Company, Employee
agrees to
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use his best efforts to carry out his duties and responsibilities under Section
1.1 hereof. Except as provided in Section 5 hereof, the foregoing shall not be
construed as preventing Employee from making investments in other businesses or
enterprises, provided that Employee agrees not to become engaged in any other
business activity which may, in the judgment of the Board of Directors of the
Company, interfere with his ability to discharge his duties and responsibilities
to the Company.
1.3 Compensation.
(a) In consideration for all of the services to be rendered by Employee
to the Company, the Company shall pay Employee an annual base salary ("Annual
Base Salary") of an amount equal to sixty-five thousand and 00/100 ($65,000.00)
Dollars. The Annual Base Salary may be subject to increases as approved by the
Board of Directors in its sole and absolute discretion. The Annual Base Salary
shall be paid to Employee in consistent periodic installments throughout the
year in accordance with Company's normal and customary pay policy for executive
officers of Company. The amount of the Annual Base Salary and any other amounts
payable pursuant to this Agreement are gross amounts due by Company to Employee
hereunder, and Company shall have the right to deduct therefrom all taxes and
other amounts which may be required to be deducted or withheld by law
(including, but not limited to, federal income tax withholding and social
security payments), whether such law is now in effect or becomes effective after
the date of this Agreement.
(b) The Company also shall grant the Employee options, under a separate
agreement granted pursuant to the Company's stock option plan (the "Plan") as it
may then be in effect, to purchase an aggregate of two hundred fifty thousand
(250,000) shares of the Company's common stock. Among other things, the option
grant shall (i) be subject to all the terms and conditions of the Plan; (ii)
provide for vesting equally over a three-year period (such three-year period
commencing September 27, 2004 ("Effective Date")); and (iii) be subject to an
exercise price as determined by the Company's Board of Directors. Such options
shall vest in the following manner:
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Vesting Date Number of Options
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At the end of the 12th month from the
Effective Date 83,333
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At the end of the 24th month from the
Effective Date 83,333
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At the end of the 36th month from the
Effective Date 83,334
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(c) Employee is eligible for bonus participation as outlined in the
Bonus Plan to be amended and attached to this Agreement as Exhibit B.
(d) Medical Benefits will be offered by the Company. During the Term,
Employee shall also be entitled to participate in such programs as vacation pay
and other fringe benefit plans authorized from time to time by the Board of
Directors of the Company in its discretion for employees of the Company.
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(e) Additional incentive compensation, if any, shall be at the
discretion of the Board of Directors of the Company.
2. Term
This Agreement shall commence on the Effective Date and shall continue for a
period of three (3) years thereafter unless earlier terminated in accordance
with the terms and conditions of Section 9 of this Agreement (the "Term").
3. Expenses:
Employee shall be reimbursed for the reasonable business expenses incurred by
his in connection with his performance of services hereunder during the Term
upon presentation of an itemized account of such expenses in accordance with the
policies and procedures established by the Company. This amount is not to exceed
$500.00 for any single 30-day period without the Company's Secretary or
Treasurer's prior written approval.
4. Developments:
With reference to all developments, including inventions whether patentable or
otherwise; trade secrets; discoveries; improvements; ideas and writings which
either directly or indirectly relate to or may be useful in the business of the
Company or any of its affiliates (the "Developments") which Employee, either by
herself or in conjunction with any other person or persons, has conceived, made,
developed, acquired or acquired knowledge of during his employment by the
Company, Employee hereby assigns, transfers and conveys, and agrees to so
assign, transfer and convey to the Company, all of his right, title and interest
in and to any and all such Developments to the Company. At any time and from
time to time, upon the request and at the expense of the Company, Employee will
execute and deliver any and all instruments, documents and papers, give evidence
and do any and all other acts which, in the opinion of counsel for the Company,
are or may be necessary or desirable to document such transfer or to enable the
Company to file and prosecute applications for and to acquire, maintain and
enforce any and all patents, trademark registrations or copyrights under United
States or foreign law with respect to any such Developments or to obtain any
extension, validation, reissue, continuance or renewal of any such patent,
trademark or copyright. The Company will be responsible for the preparation of
any such instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse Employee for all reasonable expenses incurred by
his in compliance with the provisions of this Section.
5. Confidential Information:
5.1 Employee recognizes and acknowledges that by reason of his service
to the Company, he has had, and will continue to have (both during the Term and
at any time thereafter during which he may be employed by the Company), access
to confidential information of the Company and its affiliates, including without
limitation, information and knowledge pertaining to products and services
offered, ideas, plans, trade secrets,
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proprietary information, advertising, distribution and sales methods and
systems, sales and profit figures, customer and client lists, and relationships
between the Company and its affiliates and customers, clients, suppliers and
others who have business dealings with the Company and its affiliates
("Confidential Information"). Employee acknowledges that such Confidential
Information is a valuable and unique asset and covenants that he will not,
either during or at any time after the Term, disclose any such Confidential
Information to any person for any reason whatsoever (except as his duties
described herein may require) without the prior written authorization of the
Board of Directors of the Company, unless such information is in the public
domain through no fault of Employee or except as may be required by law.
5.2 Employee will not disclose the terms of his employment or the
contents of this Agreement to any person for any reason whatsoever (except as
his duties described herein may require) without the prior written authorization
of the Board of Directors of the Company, unless such information is in the
public domain through no fault of Employee or except as may be required by law.
6. Non-Competition:
6.1 During the Term and for a three (3) year period following the date
the employment of Employee by the Company or any of its affiliates has ended
(whether or not such employment is pursuant to this Agreement), Employee will
not, unless acting pursuant hereto or with the prior written consent of the
Board of Directors of the Company, directly or indirectly, own, manage, operate,
control, finance or participate in the ownership, management, operation, control
or financing of, or be connected as an officer, director, partner, principal or
otherwise with any business or enterprise engaged within any portion of the
United States in any business in which the Company was engaged at the date of
termination of Employee's employment by the Company or at any time for one year
prior to or after termination of employment with the Company. It is recognized
by Employee that the business of the Company and Employee's connection therewith
is or will be involved in internet auction site activity throughout the United
States, and that more limited geographical limitations on this non-competition
covenant and the non-solicitation covenant set forth in Section 7 hereof are
therefore not appropriate.
6.2 The foregoing restrictions shall not be construed to prohibit the
ownership by Employee of not more than five percent (5%) of any class of
securities of any corporation which is engaged in any of the foregoing
businesses, provided that such ownership represents a passive investment and
that neither Employee nor any group of persons including Employee in any way,
either directly or indirectly, manages or exercises control of any such
corporation, guarantees any of its financial obligations, otherwise takes any
part in its business, other than exercising his rights as a security owner, or
seeks to do any of the foregoing.
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7. Non Solicitation:
During the Term and for a two (2) year period following the date employment of
Employee by the Company or any of its affiliates has ended (whether or not such
employment is pursuant to the Agreement), Employee will not, either directly or
indirectly, (i) call on or solicit any person, firm, corporation or other entity
who or which at the time of such termination was, or within two years prior
thereto had been, a customer of the Company or any of their respective
affiliates with respect to the activities prohibited by Section 7 hereof or (ii)
solicit the employment of any person who was employed by the Company or any of
its affiliates on a full or part-time basis at any time during the course of
Employee's employment, unless such person, prior to such solicitation of
employment, (A) was involuntarily discharged by the Company or such affiliate,
or (B) voluntarily terminated his relationship with the Company or such
affiliate.
8. Equitable Relief:
8.1 Employee acknowledges that the restrictions contained in Sections
4, 5, 6, and 7 hereof are reasonable and that the Company would not have entered
into this Agreement in the absence of such restrictions, and that any violation
of any provision of those Sections will result in irreparable injury to the
Company.
8.2 EMPLOYEE FURTHER REPRESENTS AND ACKNOWLEDGES THAT (i) HE/SHE HAS
BEEN ADVISED BY THE COMPANY TO CONSULT HIS/HER OWN LEGAL COUNSEL IN RESPECT OF
THIS AGREEMENT, (ii) THAT HE/SHE HAS HAD FULL OPPORTUNITY, PRIOR TO EXECUTION OF
THIS AGREEMENT, TO REVIEW THROUGHLY THIS AGREEMENT WITH HIS/HER COUNSEL, AND
(iii) HE/SHE HAS READ AND FULLY UNDERSTANDS THE TERMS AND PROVISIONS OF THIS
AGREEMENT.
8.3 Employee agrees that the Company shall be entitle to preliminary
and permanent injunctive relief, without the necessity of providing actual
damages, as well as an equitable accounting of all earnings, profits and other
benefits arising from any violation of Sections 4, 5, 6, and 7 hereof, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled. In the event that any of the provisions of
Sections 6 or 7 hereof should ever be adjudicated to exceed the time,
geographic, product or service, or other limitations permitted by applicable law
in any jurisdiction, then such provisions shall be deemed reformed in such
jurisdiction to the maximum time, geographic, product or service, or other
limitations permitted by applicable law.
8.4 Employee irrevocably and unconditionally (i) agrees that any suit,
action or other legal proceeding arising out of this Agreement, including
without limitation, any action commenced by the Company for preliminary or
permanent injunctive relief or other equitable relief, must be brought in the
United States District Court for the Southern District of Florida, or if such
court does not have jurisdiction or will not accept jurisdiction, in any court
of general jurisdiction in Palm Beach County; (ii) consents to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding, and (iii)
waives any objection which Employee may have to the laying of venue of any such
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suit, action or proceeding in any such court. Employee also irrevocably and
unconditionally consents to the service of any process, pleadings, notices or
other papers in a manner permitted by the notice provisions of Section 13
hereof.
9. Termination:
This Agreement shall terminate prior to the expiration of the Term set
forth in Section 2 above upon the occurrence of any one of the following events:
9.1 Disability.
In the event that Employee is unable fully to perform his essential duties and
responsibilities hereunder to the full extent required by the Board of Directors
of the Company by reason of illness, injury or incapacity for one hundred and
twenty consecutive days, during which time he shall continue to be compensated
as provided in Section 1 hereof (less any payments due Employee under disability
benefit programs, including Social Security disability, worker's compensation
hereunder; provided, however, that Employee will be entitled to receive the
payments prescribed under any disability benefit plan which may be in effect for
employees of the Company and in which he participated. Employee agrees, in the
event of any dispute under this Section, to submit to a physical examination by
a licensed physician selected by the Board of Directors of the Company.
9.2 Death.
In the event that Employee dies during the Term, the Company shall pay to his
executors, legal representatives or administrators any amounts due and owing to
the date of death to Employee as part of the salary set forth in Section 1.2
hereof, and thereafter the Company shall have no further liability or obligation
hereunder to his executors, legal representatives, administrators, heirs or
assigns or any other person claiming under or through it; provided, however,
that Employee's estate or designated beneficiaries shall be entitled to receive
the payments prescribed for such recipients under any death benefit plan which
may be in effect for employees of the Company and in which Employee
participated.
9.3 Cause.
Nothing in this Agreement shall be construed to prevent its termination
by the Company at any time for "cause." For purposes of this Agreement, "cause"
shall mean and be limited to Employee's:
(a) Commission of any act of fraud, misappropriation or personal
dishonesty relating to or involving the Company in any material way;
(b) Negligence in the performance of his duties or in any way relating
to the obligations and duties, which he owes the Company;
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(c) Violation of any express direction of the Company or any material
violation of any rule, regulation, policy or plan established by the Company
from time to time regarding the conduct of its Employees and/or its business, if
such violation is not remedied by Employee within thirty (30) days of receiving
notice of such violation from the Company;
(d) Demonstrably willful and deliberate violation of any obligation
owed by Employee to the Company;
(e) Material disclosure or use of Confidential Information, other than
as required in the performance of Employee's duties under this Agreement;
(f) Conviction of a crime constituting a felony or any other crime
involving moral turpitude or criminal indictment for a crime involving moral
turpitude in which the substantial weight of credible evidence indicates that
Employee has committed such a crime. In the event of termination for cause under
section 9.3(a) or (f) of this Section 9.3, Employee shall be suspended pending
an independent investigation by persons retained by the Company. In the event of
a termination for cause, the Company shall have no obligation to make any
further payments or to provide any further benefits or compensation hereunder to
Employee for any period subsequent to the date of such termination, except that
Employee will receive Employee's Base Compensation, as well as bonus or
commission payment(s) for which Employee is eligible for as of the date of
termination.
9.4 Change of Control.
In the event of a Change of Control of the Company, the Company may at
its option terminate this Agreement.
For this purpose, "Change of Control of the Company" is defined as:
(a) Any "person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended) becomes the "beneficial owner"
(as defined in Rule 13d-3 under said Act), directly or indirectly, of securities
of the Company representing more than fifty (50%) percent of the total voting
power represented by the Company's then outstanding voting securities; or
(b) The consummation of a merger or consolidation of the Company with
any other entity which would result in more than fifty (50%) percent of the
total voting securities of the surviving entity being "beneficially owned" by
any such "person" (as the terms are defined above); or
(c) The consummation of the sale or disposition by the Company of all
or substantially all of the Company's assets.
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10. Survival:
Notwithstanding the termination of this Agreement by the Company by reason of
Employee's disability under Section 9.1, for cause under Section 9.3, his
obligations under Sections 4, 5, 6, and 7 hereof shall survive and remain in
full force and effect for the periods therein provided, and the provisions for
equitable relief against Employee in Section 8 hereof shall continue in force,
along with the provisions of Sections 11 through 19 hereof.
11. Governing Law:
This Agreement shall be governed by and interpreted under the laws of the State
of Florida without giving effect to any conflict of laws provisions. The forum
for contests of this Agreement shall only be in Palm Beach County, Florida.
12. Litigation Expenses:
In the event of a lawsuit by either party to enforce the provisions of this
Agreement each Party must pay their costs and expenses.
13. Notices:
All notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing and shall be
deemed to have been given when hand delivered or mailed by registered or
certified mail, as follows (provided that notice of change of address shall be
deemed given only when received):
If to the Company:
Bidville, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Employee:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
or to such other names or addresses as to the Company or Employee, as the case
may be, shall designate by notice to each other person entitled to receive
notices in the manner specified in this Section.
14. Entire Agreement:
14.1 This Agreement supersedes any and all other agreements, either
oral or written, between the parties with respect to the employment of Employee
by the Company for the purposes set forth in Section 1, and contains all of the
covenants and agreement
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between the parties with respect to such employment whatsoever. Each party to
this Agreement acknowledges that no representation, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this agreement shall be valid
or binding. Any modification of this Agreement will be effective only if it is
in writing and signed by both parties to this Agreement.
14.2 Employee acknowledges that from time to time, the Company may
establish, maintain and distribute employee manuals or handbooks or personnel
policy manuals, and officers or other representatives of the Company may make
written or oral statements relating to personnel policies and procedures. Such
manuals, handbooks and statements are intended only for general guidance. No
policies, procedures or statements of any nature by or on behalf of the Company
(whether written or oral and whether or not contained in any employee manual or
handbook or personnel policy manual), and no acts or practices of any nature,
shall be construed to modify this Agreement or to create express or implied
obligations of any nature to Employee.
14.3 Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context indicates is appropriate.
15. Assignment:
All of the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties
hereto, except that the duties and responsibilities of Employee hereunder are of
a personal nature and shall not be assignable or delegable, in whole or in part
by Employee.
16. Severability:
If any provision of this Agreement or application thereof to anyone or under any
circumstances is adjudicated to be invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall not affect any other provision or
application and shall not invalidate or render unenforceable such provision or
application in any other jurisdiction.
17. Remedies Cumulative: No Waiver:
No remedy conferred upon the Company or the Employee by this Agreement is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any remedy given hereunder or
now or hereafter existing at law or in equity. No delay or omission by the
Company or employee in exercising any right, remedy or power hereunder or
existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or power may be exercised by the Company or the employee from
time to time and as often as may be deemed expedient or necessary by the Company
or the employee at its sole discretion.
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18. Indemnification:
18.1 Third-Party Proceedings. The Company shall indemnify Employee if
Employee is or was a party or is threatened to be made a party to any
threatened, pending, or completed action or proceedings, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of the Company) by reason of the fact that Employee is or was a director,
officer, employee, or agent of the Company or an affiliate, by reason of any
action or inaction on the part of Employee while a director, officer, employee,
or agent or by reason of the fact that Employee is or was serving at the request
of the Company as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses (including reasonable attorneys fees), judgments, fines, and amounts
paid in settlement (if such settlement is approved in advance by the Company,
which approval shall not be unreasonably withheld) actually and reasonably
incurred by Employee in connection with such action or proceeding unless the
Company shall establish that (a) Employee did not act in good faith and in a
manner Employee reasonably believed to be in the best interests of the Company
and, with respect to any criminal action or proceeding, had reasonable cause to
believe Employee's conduct was unlawful; (b) Employee's actions amounted to
gross negligence; or (c) Employee's actions were performed with knowledge and
intent to harm the Company. The termination of any action or proceeding by
Bidville, Inc. judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption (i)
that Employee did not act in good faith and in a manner which Employee
reasonably believed to be in the best interests of the Company; or (ii) with
respect to any criminal action or proceeding, that Employee had reasonable cause
to believe that Employee's conduct was unlawful.
18.2 Proceedings by or in the Right of the Company. The Company shall
indemnify Employee if Employee was or is a party or is threatened to be made a
party to any threatened, pending, or completed action or proceeding by or in the
right of the Company or any affiliate of the Company to procure a judgment in
its favor by reason of the fact that Employee is or was a reason of any action
or inaction on the part of Employee while a director, officer, employee, or
agent or by reason of the fact that Employee is or was serving at the request of
the Company as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses
(including reasonable attorneys fees), judgments, fines, and amounts paid in
settlement (if such settlement is approved in advance by the Company, which
approval shall not be unreasonably withheld) actually and reasonably incurred by
Employee in connection with such action or proceeding unless the Company shall
establish that (a) Employee did not act in good faith and in a manner Employee
reasonably believed to be in the best interests of the Company and, with respect
to any criminal action or proceeding, had reasonable cause to believe Employee's
conduct was unlawful; (b) Employee's actions amounted to gross negligence; or
(c) Employee's actions were performed with knowledge and intent to harm the
Company. The termination of any action or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption (i) that Employee did not act in good
faith and in a manner which Employee reasonably believed to be in the best
interests of the Company; or (ii) with respect to any criminal action or
proceeding, that Employee had reasonable cause to believe that Employee's
conduct was unlawful.
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18.3 Proceedings by or in the Right of the Company. The Company shall
indemnify Employee if Employee was or is a party or is threatened to be made a
party to any threatened, pending, or completed action or proceeding by or in the
right of the Company or any affiliate of the Company to procure a judgment in
its favor by reason of the fact that Employee is or was a director, officer,
employee, or agent of the Company, or any affiliate of the Company, by reason of
any action or inaction on the part of Employee while a director, officer,
employee, or agent or by reason of the fact that Employee is or was serving at
the request of the Company as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses (including reasonable attorney's fees) and, to the fullest extent
permitted by law, amounts paid in settlement of such action or proceeding unless
the Company shall establish any of the following concerning the action:
(a) That Employee did not act in good faith;
(b) Employee acted in a manner Employee could not have reasonably
believedto be in the best interests of the Company;
(c) The Employee actions were intentional and with knowledge that such
actions would result in the harm complained of;
(d) Employee's actions amount to gross negligence; or
(e) Employee's actions were outside the scope of his employment.
No indemnification shall be made in respect of any claim, issue or matter as to
which Employee shall have been adjudged to be liable to the Company in the
performance of Employee's duty to the Company or any affiliate of the Company
unless and only to the extent that the court in which such action or proceeding
is or was pending shall determine upon application that, in view of all the
circumstances of the case, Employee is fairly and reasonably entitled to
indemnity for expenses or amounts paid in settlement and then only to the extent
that the court shall determine.
18.4 Procedure.
Any indemnification provided for in this Agreement shall be made no
later than forty-five (45) days after the resolution (by judgment, settlement,
dismissal, or otherwise) of the claim to which indemnification is sought. If a
claim under this Agreement, under any statute, or under any provision of the
Company's Articles of Incorporation or bylaws providing for indemnification, is
not paid in full by the Company within such period, Employee may, but need not,
at any time thereafter bring an action against the Company to recover the unpaid
amount of the claim and, subject to Section 18 of this Agreement, Employee shall
also be entitled to be paid for the expenses (including reasonable attorneys'
fees) of bringing such action. It shall be a defense to any such action (other
than
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an action brought to enforce a claim for expenses incurred in connection with
any action or proceeding in advance of its final disposition) that Employee has
not met the standards of conduct which make it permissible under applicable law
for the Company to indemnify Employee for the amount claimed, but the burden of
proving such defense shall be on the Company, and Employee shall be entitled to
receive interim payments of expenses pursuant to this Agreement unless and until
such defense may be finally adjudicated by court order or judgment from which no
further right appeal exists. It is the parties' intention that if the Company
contest Employee's right to indemnification, the question of Employee's right to
indemnification shall be for the court to decide, and neither the failure of the
Company (including its Board of Directors, any committee or subgroup of the
Board of Directors, independent legal counsel, or its Members) to have made a
determination that indemnification of Employee is proper in the circumstances
because Employee has met the applicable standard of conduct required by
applicable law, nor an actual determination by the Company (including its Board
of Directors, any committee or subgroup of the Board of Directors, independent
legal counsel, or its Members) that Employee has not met such applicable
standard of conduct, shall create a presumption that Employee has or has not met
the applicable standard of conduct.
18.5 Notice to Insurers.
If, at the time of the receipt of a notice of a claim pursuant to this
Agreement, the Company has directors' and officers' liability insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Employee, all
amounts payable as a result of such proceeding in accordance with the terms of
such policies.
18.6 Relationship to Other Sources.
Employee shall not be required to exercise any rights against any other
parties (for example, under any insurance policy purchased by the Company,
Employee, or any other person or entity) before Employee, or Agreement. However,
to the extent the Company actually indemnifies Employee or advances expenses,
the Company shall be entitled to enforce any such rights, which Employee may
have against third parties. Employee shall assist the Company in enforcing those
rights if the Company pays Employee's reasonable costs and expenses of doing so.
18.7 Selection of Counsel.
In the event the Company shall be obligated under this Agreement to pay
the expenses of any proceeding against Employee, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, with counsel
approved by Employee, which approval shall not be unreasonably withheld, upon
the delivery to Employee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by Employee and the retention
of such counsel by the Company, the Company will not be liable to Employee under
this Agreement for any fees of counsel subsequently
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incurred by Employee with respect to the same proceeding, provided that (i)
Employee shall have the right to employ counsel in any such proceeding at
Employee's expense; and (ii) if (A) the employment of counsel by Employee has
been previously authorized by the Company (B) Employee shall have reasonably
concluded that there may be a conflict of interest between the Company and
Employee in the conduct of any such defense, or (c) the Company shall not, in
fact, have employed counsel to assume the defense of such proceeding, then the
reasonable fees and expenses of Employee's counsel shall be at the expense of
the Company.
18.8 Additional Rights
(a) Scope. Notwithstanding any other provision of this Agreement, the
Company hereby agrees to indemnify the Employee to the fullest extent permitted
by law, notwithstanding that such indemnification is not specifically authorized
or mandated by the other provisions of this Agreement, the Company's Articles of
Incorporation, the Company's Bylaws, or by statute. In the event of any change,
after the date of this Agreement, in any applicable law, statute, or rule which
expands the right of a corporate entity to indemnify a member of its or an
affiliate's board of directors or an officer, such changes shall be, ipso facto,
within the purview of Employee's rights and the Company's obligations under this
Agreement. In the event of any change in any applicable law, statute, or rule
which narrows the right of a corporate entity to indemnify a member of its or an
affiliate's Board of Directors or an officer, such changes, to the extent not
otherwise required by such law, statute, or rule to be applied to this Agreement
shall have no effect on this Agreement or the parties rights and obligations
hereunder.
(b) Nonexclusivity. The indemnification provided by this Agreement
shall not be deemed exclusive of any rights to which Employee my be entitled
under the Company's Articles of Incorporation, its Bylaws, any Agreement, any
vote of Members or disinterested directors, the Corporation Law of the State of
Florida, or otherwise, both as to action in Employee's official capacity and as
to action or inaction in another capacity while holding such office. The
indemnification provided under this Agreement shall continue as to Employee for
any action taken or not taken while serving in an indemnified capacity even
though Employee may have ceased to serve in such capacity at the time of any
action or other cover proceeding is commenced.
(c) Partial Indemnification. Employee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
expenses judgments, fines, or penalties actually or reasonably incurred in the
investigation, defense, appeal, or settlement of any civil or criminal action or
proceeding, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Employee for the portion of such expenses, judgments,
fines, or penalties to which Employee is entitled.
(d) Acknowledgment. Both the Company and Employee acknowledge that in
certain instances, state or federal law or applicable public policy may prohibit
the Company from indemnifying its directors and officers under this Agreement or
otherwise. Employee understands and acknowledges that the Company has undertaken
or may be required in the future to undertake with the Securities and Exchange
Commission to
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submit the question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify Employee.
19. Miscellaneous
All section headings are for convenience only. This Agreement may be executed in
several counterparts, each of which is an original. It shall not be necessary in
making proof of this Agreement or any counterpart hereof to produce or account
for any of the other counterparts.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement on this 17th day of November, 2004.
Bidville, Inc. Employee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
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Exhibit A
Description of Functions, Duties and Responsibilities of Executive
Executive shall oversee and have the primary responsibility within the
Company for all governance, corporate and operational matters of the Company,
including, without limitation, the (i) development and management of all
strategic relationships pertaining to the Company, including its licensing and
services agreements, processing management services, and Internet applications
services; (ii) corporate affairs, including corporate finance, legal, financial
reporting, and strategic planning; and (iii) corporate operations, including
internal business operations and P&L management; and (iiii) investment fund
raises and investor relations.
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