EXHIBIT 10.61
EMPLOYMENT AGREEMENT-CHAIRMAN-AMLH
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT, made and entered into as of the 18th day of
May, 2004, by and between AMERICAN LEISURE HOLDINGS, INC., a Nevada corporation
with its principal office and place of business located at Orlando, Florida
("Employer") and, L. Xxxxxxx Xxxxxx, an individual residing at Chicago, Illinois
(the "Employee").
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WITNESSETH
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WHEREAS, the Employer desire to employ Employee in the capacities
hereinafter stated, and the Employee desires to enter into the employ of the
Employer in such capacities for the period and on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, it is hereby agreed by the Employer and the Employee as follows:
1. Employment Period. The Employer hereby agrees to employ the
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Employee as its Board Chairman and the Employee, in such capacity, agrees to
provide services to the Employer for the period beginning on the date first
above written (the "Commencement Date") and ending on the 3rd anniversary of the
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Commencement Date (the "Employment Period"). The Employment Period is to be a
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Revolving 3 year Term defined as an Initial Term for 3 years which automatically
renews for a 3 year term every 12 months unless terminated pursuant to this
Agreement.
2. Performance of Duties. The Employee agrees that during the
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Employment Period, while he is employed by the Employer, he shall devote his
full time, energies and talents exclusively (1) to serving in the capacity of
Board Chairman and or in other capacities as deemed appropriate by the Employer.
In this capacity the Employee will serve at the direction of the Board of
Directors of the Employer. Employee has been provided a copy of the Employer's
Corporate Governance Policies & Procedures. By execution hereof, Employee agrees
to faithfully perform his duties in compliance therewith. The Employee will,
during normal working hours, devote his full-time efforts in the best interests
of the Employer, and to perform the duties assigned to him by the aforementioned
Board of Directors (the "Board") faithfully, efficiently and in a professional
manner; provided further that, without the Board's consent (which consent shall
not be unreasonably withheld(2)), the Employee shall not:
(a) serve as or be a consultant to or employee, officer, agent or
director of any corporation, partnership or other entity other than the
Employer or any of its affiliates as directed or approved by the Board
other than civic, charitable, or other public service organizations;(3) or
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(1)Employer acknowledges that Employee is also under contract to an affiliate of
Employer and is expected to divide his energies between the 2 posiitons and that
together the 2 positions amount to full time employment.
(2)For purposes of this Agreement the terms "unreasonably withheld" and
"reasonable" when delimiting the actions of the Employer shall mean that the
Employer is committed to being commercially reasonable in light of its business
activities, plans and policies. In addition, the Employer may not withhold its
reply to an Employee request for an unreasonable length of time.
(b) have more than a three percent (3%) ownership interest in any
enterprise other than the Employer or any of its affiliates if such
ownership interest would have a material adverse effect upon the ability of
the Employee to perform his duties hereunder in the reasonable opinion of
the Board upon full disclosure to the Board.
3. Compensation. Subject to the terms and conditions of this
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Agreement, during the Employment Period, the Employee shall be compensated by
the Employer for his services as follows:
(a) He shall receive, for each 12-consecutive month period beginning
on the Commencement Date and each anniversary thereof, a base salary ("Base
Salary") that is not less than $100,000.00 per year, payable in
substantially equal monthly or more frequent installments and subject to
normal and customary tax withholding as directed by the Employee and other
deductions. During the Employment Period the Employee's salary rate shall
be reviewed by the Board on or before each anniversary of the Commencement
Date to determine whether an adjustment in his rate of compensation is
appropriate, which determination shall be within the sole discretion of the
Board.(4)
(b) He shall be eligible, in the sole discretion of the Board, to
receive an annual incentive-based bonus based on his individual performance
in the achievement of the goals and objectives set by agreement with the
Board in advance of such year;.
(c) He shall be a participant in the following employee benefit plans
maintained by the Employer at the absolute discretion of the Board(5) on
substantially the same terms and conditions as other employees of the
Employer in comparable positions: vacation (1.5 weeks at 2 times the Base
Salary rate per week per $50,000 of Base Salary or part thereof) and sick
days.
(d) He shall be reimbursed by the Employer for all reasonable
business, promotional, travel and entertainment expenses incurred or paid
by him during the employment period in the performance of his services
under this Agreement that are consistent with the Employer's policies in
effect from time to time, provided that the Employee furnishes to the
Employer appropriate documentation in a timely fashion as required by the
Internal Revenue Code in connection with such expenses and shall furnish
such other documentation and accounting as the Employer may from time to
time reasonably request.
(e) Employee understands that the cash compensation described in this
Agreement is subject to the Employer realizing cash receipts sufficient to
pay Employee and others similarly situated after the Employer fulfills its
obligations to banks and creditors. Unpaid cash compensation shall accrue
without interest and shall be paid as and when the Employer is able to pay.
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(3) While Employee may serve such public spirited organizations, Employee shall
not make commitments of his time or that of his co-employees to such an extent
that he or they are unable to fulfill their duties to the Employer.
(4) Employee shall be recused from matters before the Board concerning Employee.
(5)Although the Board has the right to determine the benefit plans availed to
all employees, those plans offered and accepted by Employee when availed by the
Employer shall remain in effect as to the Employee for 1 year following the year
in which the Employer discontinues or reduces the benefit.
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4. Compensation Due Upon Termination. Except as otherwise provided
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under the employee benefit plans maintained by the Employer in which the
Employee participates in accordance with Subparagraph 3(c), the Employee's right
to compensation for periods after the date his employment with the Employer
terminates shall be determined in accordance with the following:
(a) Discharge Without Cause. In the event the Employer terminates the
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Employee's employment under this Agreement without cause (as defined in
Subsection (c) below), the Employee shall be entitled to receive:
(i) payment of his entire salary as it is customarily paid (as of
the date of termination) in accordance with the provisions of
Subparagraph 3(a) for 36 months; and
(ii) payment of any incentive compensation payments that
otherwise would have been payable to the Employee under Subparagraph
3(b) through the date his employment with the Employer terminates;
payable when such payments would otherwise be paid; for partial years,
the Employee shall be entitled to the proportionate share bearing the
same ratio as the number of months or part thereof the Employee worked
to a full year times the bonus amounts for a full year;
At the discretion of the Employer, payments may either be made in
accordance with the Employer's then existing pay cycle practice or in a lump sum
amount. Payment of any and all monies due under this provision will be made only
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when the Employee has signed and returned the Employer's waiver and release.
(b) Voluntary Resignation. The Employer shall have no obligation to
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make payments to the Employee in accordance with the provisions of
Paragraph 3 for periods after the date on which the Employee's employment
with the Employer terminates due to the Employee's voluntary resignation.
(c) Discharge for Cause. The Employer shall have no obligation to make
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payments to the Employee in accordance with the provisions of Paragraph 3
for periods after the Employee's employment with the Employer is terminated
on account of the Employee's discharge for cause. For purposes of this
Subparagraph 4(c), the Employee shall be considered discharged for "cause"
if he is discharged by the Employer on account of the occurrence of one or
more of the following events occurring during the Employment Period:
(i) the Employee uses alcohol, narcotics or other controlled
substances to the extent that it objectively prevents Employee from
efficiently performing services for the Employer;
(ii) the Employee discloses confidential information in violation
of Section 5; discharge by virtue of this sub-Section shall deprive
the Employee of all rights to all bonuses, stock warrants previously
issued or owed, or any other plan offered and funded by the Employer;
or
(iii) the Employee engages in activity in violation of Section 5;
discharge by virtue of this sub-Section shall deprive the Employee of
all rights to all bonuses, stock warrants previously issued or owed,
or any other plan offered and funded by the Employer; or
(iv) the Employee engages in theft, dishonesty, fraud or
embezzlement from Employer, its affiliates or partners; discharge by
virtue of this Subsection shall deprive the Employee of all rights to
all bonuses, stock warrants previously issued or owed, or any other
plan offered and funded by the Employer; or
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(v) the Employer is directed by regulatory or governmental
authorities to terminate the employment of the Employee or the
Employee engages in activities that cause actions to be taken by
regulatory or governmental authorities that have a material adverse
effect on the Employer; or
(vi) the Employee is convicted of a felony (other than a felony
resulting from a traffic violation) involving any crime of moral
turpitude or any crime involving the Employer or any of its
affiliates; or
(vii) the Employee is proven to have engaged in or continues to
engage in sexual harassment of or sexually inappropriate behavior with
any employee of the Employer or is proven to have commited any act
which otherwise creates an offensive work environment for other
employees of the Employer; or
(viii) the Employee materially disregards his duties under this
Agreement after (A) notice has been given to the Employee by the Board
or their designee that it views the Employee to be flagrantly
disregarding his duties under this Agreement and (B) the Employee has
been given a period of 30 days after such notice to cure such
misconduct (provided that no such notice or cure period shall be
required if Employee's disregard of his duties has materially and
adversely affected the Employer); or
(ix) any event of egregious misconduct, or pattern of conduct, to
the extent that, in the reasonable judgment of the Board, the
Employee's credibility and reputation no longer conform to the desired
standard of the Employer's employees; or
(x) the Employee commits an act of fraud against the Employer or
violates a duty of loyalty to the Employer or violates Section 2; or
(xi) the Employee makes or attempts to make an enforceable
commitment to a third party in behalf of the Employer or its
affiliates and partners without following the Employer's Corporate
Governance Policies & Procedures or in violation of an explicit
directive from Employer.
In the event that the Employer believes it has cause to terminate the
Employment of Employee(6), it shall notify him in writing of the offense and any
cure action available to the Employee. If there is no cure action permitted, or
Employee does not agree with the allegation of prohibited conduct, Employee may
seek the appointment of an ad hoc committee to review the allegations and
positions of the Parties. The Employer shall create a five member committee
comprised of disinterested officers and directors of the Employer. The Committee
shall elect its Chairperson by majority vote, including the vote of the elected
member. The Committee shall set its calendar and agenda, take oral and written
evidence as guided by outside corporate counsel, conduct discreet and fair
inquiries while at all times maintaining respect for the Employee, his
co-workers and the decorum of the Employer. A written or taped record shall be
maintained by the Committee with a copies available to all committee members and
the Employee. The Committee shall issue a written finding supported by a
majority of the members sitting at the time such findiung is issued that shall
be binding upon the Employer but only binding upon the Employee upon his
consent. The finding shall summarize the facts, the allegations and the evidence
deemed most reliable. The finding shall include a dispositive statement of the
opinion of the Committee as to the requested relief of each Party and shall
support their findings with the evidence adduced during their inquiry. Employee
shall be entitled to full compensation during the pendency of the Committee's
review. Employee may elect to continue to work provided that the Employer
consents thereto. In the event that Employee does not consent to the Committee's
Report, that fact shall not vitiate the termination but shall leave the Employee
to his other remedies.
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(6)The procedure detailed in this Section shall also apply to disciplinary
actions not seeking termination.
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(d) Disability. The Employer shall have no obligation to make payments
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to the Employee in accordance with the provisions of Section 3 for periods
extending beyond 6 months after the date the Employee's employment with the
Employer terminates on account of permanent disability(7). These payments
of salary are uneffected by those payments as may be available to the
Employee resulting from insurance coverage specific to disability. For
purposes of this Subparagraph 4(d), determination of whether the Employee
is disabled shall be determined in accordance with the Employer's long term
disability plan and applicable law. Employer may require Employee to obtain
a second physicians certificate of disability from a physician of
Employer's choosing. The opinion of Employer's chosen physician shall
control this Section. Employee's election to apply for and accept workers'
compensation cash benefits will relieve the Employer of the obligation to
pay the 6 months salary. A termination due to disability does not deny
Employee payments due and owing on other accounts as of such date such as
his proportional bonuses. In the event of termination due to disability,
Employer shall maintain all insurances on Employee and his family for 24
months.
(e) Death. The Employer shall have no obligation to make payments to
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the Employee in accordance with the provisions of Section 3 for periods
after the date of the Employee's death, except payments due and owing as of
such date. However, the Employer shall continue to pay a Xxxxxxxxx Xxxxx
Benefit to the Employee's next of kin(8)in the amount equivalent to the
Employee's gross salary for a period of not less than 6 months or longer
until such time as the Employer has paid to his next of kin, or estate as
the law may require, the entire amount owed under all plans, insurance
policies and bonus provisions(9). Employer shall continue all medical
insurances for the covered dependents of Employee after Termination as a
result of death for 24 months.
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(7)Permanent Disability shall mean a disabling condition (as certified by a
licenced physician) that prevents Employee from fulfilling his duties as they
are defined by Employer for a period of 180 calendar days within any 210
calendar day period. Temporary disability is a disabling condition (as certified
by a licenced physician) that lasts for less than 150 days in any 180 calendar
day period. Employee shall remain entitled to the benefits of this Agreement
during Temporary Disability.
(8)Provided the Employee has kin.
(9)Employer shall not be obligated to liquidate stock or warrants owned by
Employee at the time of his death. Vested warrants shall be demised through the
Employee's estate. Employer's plans requiring annual review of Employer's
revenues or income shall be performed in the customary manner and the benefits
provided by this Section shall continue until such reviews are completed.
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5. Covenants of Employee. The Employee covenants and agrees that:
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(a) Covenant against Competition. During the period commencing on the
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date hereof and ending one (1) years following the date upon which the
Employee shall cease to be an employee of the Company (the "Restricted
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Period"), the Employee shall not, within a 100 mile radius of any location
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of the Employer or its affiliates (the "Restricted Area"), directly or
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indirectly, (1) engage in any business substantially similar to the actual
or intended business carried on by the Employer or its affiliates during
the Employment Period and as of the date of Employee's termination of
employment with the Employer (the "Company Business") for the Employee's
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own account; (2) render any services to any person doing business in the
Restricted Area (other than the Employer or its affiliates) engaged in such
activities; or (3) become interested in any such person (other than the
Employer or its affiliates) as a partner, shareholder, member, principal,
agent, consultant or in any other relationship or capacity; provided,
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however, that notwithstanding the above, the Employee may own, directly or
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indirectly, solely as an investment, securities of any such person which
are traded on any national securities exchange or NASDAQ if the Employee
(A) is not a controlling person of, or a member of a group which controls,
such person and (B) does not, directly or indirectly, own four point nine
per cent (4.9%) or more of any class of securities of such person. For
purposes of this entire Agreement, the term 'affiliates' shall mean any
person, entity or corporation that owns a controlling interest in Employer,
or with which Employer is doing business within a joint venture agreement,
any entity partially owned by Employer or any entity that Employer or one
of its partially owned subsidiaries is attempting to acquire or merge with
or has attempted to acquire or merge with in the previous six (6) months.
(b) Confidential Information. During the Restricted Period, the
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Employee shall keep secret and retain in strictest confidence, and shall
not use for his benefit or the benefit of others, except in connection with
the business and affairs of the Employer and its affiliates, all
confidential matters relating to the Company Business or to the Employer
and its affiliates learned by the Employee heretofore or hereafter directly
or indirectly from the Employer and its affiliates, including, without
limitation, information with respect to (a) operations, (b) sales figures,
(c) profit or loss figures and financial data, (d) costs, (e) customers,
clients, and customer lists (including, without limitation, credit history,
repayment history, financial information and financial statements), and (f)
plans (the "Confidential Information") and shall not disclose such
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Confidential Information to anyone outside of the Employer and its
affiliates except with the Employer's express written consent and except
for Confidential Information which (1) is at the time of receipt or
thereafter becomes publicly known through no wrongful act of the Employee
or (2) is received from a third party not under an obligation to keep such
information confidential and without breach of this Agreement. The Employee
further agrees that he shall not make any statement or disclosure that (a)
would be prohibited by applicable Federal or state laws and regualtions or
(b) is intended or reasonably likely to be detrimental to the Employer or
any of its subsidiaries or affiliates.
(c) Non-Solicitation. During the Restricted Period, the Employee shall
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not, without the Employer's prior written consent, directly or indirectly,
knowingly solicit or encourage to leave the employment of the Employer, any
employee of the Employer or hire any employee who has left the employment
of the Employer after the date of this Agreement within one (1) year of the
termination of such other employee's employment with the Employer.
(d) Records. All memoranda, notes, lists, records and other documents
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(and all copies thereof) made or compiled by the Employee or made available
to the Employee by the Company concerning the Company Business or the
Company shall be the Company's property and shall be delivered to the
Company at any time on request and in all cases, upon the termination of
the Employee.
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6. Rights and Remedies Upon Breach of Restrictive Covenants. If the
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Employee breaches, or threatens to commit a breach of, any of the provisions of
Section 5 (the "Restrictive Covenants"), the Employer shall have the following
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rights and remedies upon compliance with any necessary prerequisites imposed by
law or this Agreement upon the availability of such remedies. Each of these
rights and remedies shall be independent of the other and severally enforceable.
All of these rights and remedies shall be in addition to, and not in lieu of,
any other rights and remedies available to the Employer under law or in equity:
(a) The right and remedy to have the Restrictive Covenants
specifically enforced [without posting bond] by any court having equity
jurisdiction, including, without limitation, the right to an entry against
the Employee of restraining orders and injunctions (preliminary, mandatory,
temporary and permanent) against violations, threatened or actual, and
whether or not then continuing, of such covenants, it being acknowledged
and agreed that any such breach or threatened breach will cause irreparable
injury to the Employer and that money damages will not provide an adequate
remedy to the Employer or will not be collectible from the Employee. Such
privelege does not prohibit the Employer from seeking monetary damages.
(b) The right and remedy to require the Employee to account for and
pay over to the Employer all compensation, profits, monies, accruals,
increments or other benefits (collectively, "Benefits") derived or received
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by him or his nominee or surrogate as the result of any transactions
constituting a breach of the Restrictive Covenants, and the Employee shall
account for and pay over such Benefits to the Employer.
7. Successors. This Agreement shall be binding on, and inure to the
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benefit of, the Employer and its successors and assigns and any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Employer's assets and business.
8. Re-Assignment. The Employer reserves the right to be able to
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re-assign the Employee to other duties within the Employer or to other
subsidiaries of Employer or its affiliates as it deems fit in its discretion or
as directed by any entity that owns or controls Employer. A re-assignment of
the Employee for the purposes of the Employer pursuant to this Section coupled
with a reduction in compensation without a reduction of time required or
responsibilities may constitute a "Discharge Without Cause' at the election of
Employee.
9. Nonalienation. The interests of the Employee under this Agreement
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are not subject to the claims of his creditors, other than the Employer, and may
not otherwise be voluntarily or involuntarily assigned, alienated or encumbered
except to the Employee's estate upon his death.
10. Severability; Blue Penciling.
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(a) The Employee acknowledges and agrees that (i) he has received,
read and understands this Agreement; (ii) he has had an opportunity to seek
advice of counsel in connection with this Agreement and (iii) the
Restrictive Covenants are reasonable in geographical and temporal scope and
in all other respects. If it is legally determined that any of the
provisions of this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the provisions of this Agreement shall not thereby be
affected and shall be given full effect, without regard to the invalid
portions.
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(b) If any court of competent jurisdiction determines that any of the
covenants contained in this Agreement, including, without limitation, any
of the Restrictive Covenants, or any part thereof, is unenforceable because
of the duration or geographical scope of such provision, the duration or
scope of such provision, as the case may be, shall be reduced so that such
provision becomes enforceable and, in its reduced form, such provision
shall then be enforceable and shall be enforced.
11. Waiver of Breach. The election by Employer to not declare Employee
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in default of this Agreement for a breach hereof does not consitute a waiver of
Employer's right to re-open a matter at a later date should that, or other
probited conduct, occur. The waiver by either the Employer or the Employee of a
breach of any provision of this Agreement shall not operate as or be deemed a
waiver of any subsequent breach by either the Employer or the Employee.
12. Notice. Any notice to be given hereunder by a party hereto shall
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be in writing and shall be deemed to have been given when received or, when
deposited in the U.S. mail, by prepaid certified or registered mail, 2 days
following the deposit inton the US Mail, to the following addresses.
a) to the Employee addressed as follows:
L. Xxxxxxx Xxxxxx
X/X XXX Xxxxxxxx
Xxxx 00 Xxxxx Xxxx, Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
b) to the Employer addressed as follows:
American Leisure Holdings, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx. XX 00000
Attn: Xxxxxxx Xxxxxx
13. Amendment. a.) This Agreement may be amended or canceled by
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mutual agreement of the parties in writing without the consent of any other
person and no person, other than the parties hereto (and the Employee's estate
upon his death), shall have any rights under or interest in this Agreement or
the subject matter hereof.
b) Employee acknowledges that the Employer shall have
the right to alter or replace this form of Agreement from time to time as it
sees fit. Employer may not alter the financial terms of this Agreement when
converting to a replacement form.
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14. Applicable Law. The provisions of this Agreement shall be
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construed in accordance with the internal laws of the State of Florida or the
state in which the majority of the services are performed in the event of a
re-location of Employer or Employee.
15. Survival of Provisions. All of the provisions of this Agreement
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shall terminate at the expiration of the Employment Period, except that
Subsections (a) and (c) of Section 5 shall terminate upon the expiration of the
Restricted Period, and Subsections 4(e) and (b) of Section 5 and Section 6 shall
survive indefinitely.
IN WITNESS WHEREOF, the Employee and the Employer have executed this
Employment Agreement as of the day and year first above written.
Witness Employee
/s/ Xxxxxx Xxxxxxx /s/ L. Xxxxxxx Xxxxxx
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L. Xxxxxxx Xxxxxx
Employer
American Leisure Holdings, Inc.
/s/ Xxxxxxx X. Xxxxxx
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/s/ Xxxxxx Xxxxxxx By: Xxxxxxx Xxxxxx
-------------------- Its: President, duly authorized
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