Sample Business Contracts

Employment Agreement - and Robert D. Brahms

Employment Forms

  • Employment Agreement. Employers can customize an employment agreement that states the salary, benefits, working hours and other important provisions for their new or existing employee.
  • Consulting Agreement. Answer simple questions to build a contract with a consultant. Specify the services rendered, when payment is due, as well as IP rights.
  • Commission Agreement. Employers who compensate their sales employees based on commissions can prepare an agreement to reduce misunderstandings by specifying the base salary and how commissions are calculated.
  • Executive Employment Agreement. Companies may offer their business executives a contract that is different from the one provided to their regular employees. Executive employment agreements may be more complex because the compensation structure may include a combination of salary and commissions, provide for bonuses based on sales, stock or other financial targets, and include non-compete, confidentiality and severance provisions.
  • Sales Representative Contract. Independent sales representatives offer companies the potential to increase the sale of products or services without the burden of increasing headcount. Both parties should understand how commissions are calculated, when commissions will be paid, as well as how the representative will treat confidential information from the company and whether the representative may also sell a competing line of products or services.
  • More Employment Agreements

Sponsored Links



     THIS EXECUTIVE EMPLOYMENT AGREEMENT is made effective as of this 16th day
of March, 2001, (the "Agreement") between ("" or the
"Company"), a Nevada corporation, and Robert D. Brahms (the "Executive").


     A. Executive is currently employed as an employee of

     B. The parties desire to continue Executive's employment with
and to appoint Executive to the position of Co-founder and Vice Chairman, on the
terms and conditions stated herein.

                             STATEMENT OF AGREEMENT

     In consideration of the foregoing, and of Executive's continued employment,
the parties agree as follows:

     1. EMPLOYMENT. The Company hereby employs Executive and Executive accepts
such employment upon the terms and conditions hereinafter set forth to become
effective on execution of this Agreement (the "Effective Time").

     2. DUTIES.

          (a) Executive shall be employed: (i) to serve as Co-founder and Vice
     Chairman of, subject to the authority and direction of the
     Board of Directors of; (ii) to participate in certain business
     development and strategic relationships, including maintaining and
     expanding existing key relationships of the Company; (iii) to assist the
     Chief Operating Officer in the day to day management of the New York office
     and the New York office employees, including the right to review all
     Company checks and wire transfers issued in the normal course of business;
     (iv) to formulate ideas on all aspects of the Company's business and to
     suggest such ideas to the Chief Executive Officer and to the Chief
     Operating Officer; and (v) to manage the Company's relationship with
     certain investors. Executive shall have such administrative support as is
     reasonably necessary to carry out the duties set forth herein. As long as
     Executive is employed hereunder, Executive shall also be a member of the
     Executive Advisory Board.

          (b) So long as employed under this Agreement, Executive agrees to
     competently, diligently and effectively discharge all duties of Executive
     hereunder. Executive shall not be prohibited from engaging in such
     business, charitable, or other activities, including serving as an officer,
     director or consultant to other businesses, which activities do not violate

<PAGE>   2
     the other provisions of this Agreement and the Confidentiality,
     Non-Competition and Assignment Agreement, of even date herewith, between
     the Company and the Executive.

          3. COMPENSATION. As full compensation for all services rendered to the
     Company pursuant to this Agreement, in whatever capacity rendered, the
     Company shall pay to Executive during the term hereof a minimum base salary
     at the rate of $180,000 per year (the "Basic Salary"), payable bi-weekly or
     in other more frequent installments, as determined by the Compensation
     Committee of the Board of Directors. Prior to March 16, 2002, the Basic
     Salary may be increased, but not decreased, from time to time, by the
     Compensation Committee of the Board of Directors. Notwithstanding any
     contrary provision in any Stock Option Agreement between the Company and
     the Executive, if the Executive's employment with the Company is terminated
     for any reason, such stock options shall vest and remain exercisable
     throughout their term as if the Executive were still employed by the

          4. BUSINESS EXPENSES. The Company shall promptly pay directly for
     expenses relating to the use of a cellular telephone and Internet
     connectivity for the Executive, in a manner consistent with practices in
     place prior to the date of this Agreement. The Company shall reimburse
     Executive, in the manner consistent with past practice, for actual travel
     and entertainment expenses incurred in furtherance of this Agreement up to
     $2,000.00 per month, which amount shall be increased to the extent such
     expenses are incurred by Executive at the request of the Chief Executive
     Officer or Chief Operating Officer.

          5. BENEFITS. During the term of this Agreement and Executive's
     employment hereunder, the Company shall provide to Executive such
     insurance, vacation, sick leave and other like benefits as are provided to
     other executive officers of the Company from time to time.


          The Company shall employ the Executive, and the Executive accepts such
     employment, for a term commencing on the date of this Agreement and ending
     on March 16, 2002 (the "Term"). Unless notice of non-renewal is given by
     either party prior to the end of the Term, this Agreement shall
     automatically renew for an additional one year period at the expiration of
     the Term. In the event the Company elects not to renew this Agreement as
     provided above, the Company shall continue to pay Executive at the rate of
     his Basic Salary for the six-month period following the end of the Term.


               6.1.1. GENERAL. Subject to the provisions of subparagraphs 6.1.2
          hereof, if, prior to the expiration of the Term, the Executive's
          employment hereunder is terminated by the Company without Cause (as
          defined in subparagraph 6.2.2 hereof), or if the Executive terminates
          his employment hereunder for Good Reason (as defined in subparagraph
          6.2.3 hereof), the Company shall continue to pay the Executive two
          times his Basic Salary as then in effect for a period of one year from
          the Date of Termination (as defined in Section 6.4. hereof) (such
          period being referred to hereinafter as the "Severance Period"), at
          such intervals as the same would have been paid had the Executive
          remained in the active service of the Company. In

<PAGE>   3
          addition, during the Severance Period, the Executive shall be entitled
          to continue to participate in all employee benefit plans that the
          Company provides (and continues to provide) generally to its senior

               6.1.2. DEATH DURING SEVERANCE PERIOD. In the event of the
          Executive's death during the Severance Period, payments of Basic
          Salary under this paragraph 6 and payments under the Company's
          employee benefit plan(s) shall continue to be made in accordance with
          their terms during the remainder of the Severance Period to the
          beneficiary designated in writing for such purpose by the Executive
          or, if no such beneficiary is specifically designated, to the
          Executive's estate.


               6.2.1. GENERAL. If, prior to the expiration of the Term, the
          Executive's employment is terminated by the Company for Good Cause, or
          the Executive resigns his employment hereunder other than for Good
          Reason, the Executive shall be entitled only to payment of his Base
          Salary as then in effect through and including the Date of Termination
          (as defined below) and accrued but unused vacation. The Executive
          shall have no further right to receive any other compensation or
          benefits after such termination or resignation of employment, except
          as determined in accordance with the terms of the employee benefit
          plans or programs of the Company applicable to the Executive. No
          termination of the Executive's employment for Good Cause shall be
          effective without the consent of the Board.

               6.2.2. GOOD CAUSE. Termination for "Good Cause" shall mean
          termination of the Executive's Employment because of:

                    (i) A commission of a material and substantive act of theft,
               including, but not limited to, misappropriation of funds or any
               property of the Company;

                    (ii) intentional engagement in activities or conduct clearly
               injurious to the best interests or reputation of the Company
               which in fact result in material and substantial injury to the

                    (iii) the willful and continued failure by the Executive to
               perform his material obligations under this Agreement (other than
               any such failure resulting from the Executive's incapacity due to
               physical or mental illness) after demand for performance is
               delivered by the Company to the Executive, in writing,
               identifying the manner in which the Company believes the
               Executive has not performed his duties and the Executive fails to
               perform as required within thirty (30) days after such demand is

                    (iv) gross insubordination by Executive, which shall consist
               only of a willful refusal to comply with a lawful written
               directive consistent with the terms of this Agreement to
               Executive issued pursuant to a duly

<PAGE>   4
               authorized resolution adopted by the Board of Directors of the
               Company; or

                    (v) the final and unappealable conviction of the Executive
               of a felony.

               6.2.3. GOOD REASON. For purposes of this Agreement, "Good Reason"
          shall mean any of the following (without the Executive's prior written

               (i) a decrease in the Executive's Base Salary or a failure by the
          Company to pay material compensation due and payable to the Executive
          in connection with his employment, provided, however, the Company may
          suspend payments to Executive of his Base Salary to the same extent
          and in connection with the tolling of base salaries and all other
          compensation of all other executive officers of the Company for
          financial reasons as directed by a lawful resolution of the Board of
          Directors of the Company. In the event of such suspension, Executive
          shall receive shares of common stock of the Company equal to one times
          the amount of such suspended Base Salary (in addition to and not in
          lieu of such suspended salary, which shall be paid at the earliest
          practical time) as of the date such salary was due and payable;

               (ii) a diminution of the duties or title of the Executive
          outlined in Section 2(a) hereof or the assignment to Executive of
          duties inconsistent in any material respect with his position;

               (iii) a change in the functions, responsibilities, authority or
          term of the Company's Executive Advisory Board or Executive's removal

               (iv) a breach by the Company of any material term or provision of
          this Agreement; or

               (v) other than in connection with a Change in Control (as defined
          below) the removal of the Executive as a director of the Company or
          the failure of the Executive to be re-elected as a director of the
          Company. For purposes of this Agreement, a "Change in Control" shall
          be deemed to occur (i) when any "person" as defined in Section 3(a)(9)
          of the Securities and Exchange Act of 1934, as amended (the "Exchange
          Act"), and as used in Section 13(d) and 14(d) thereof, including a
          "group" as defined in Section 13(d) of the Exchange Act, but excluding
          the Executive, the Company or any subsidiary or any affiliate of the
          Company or any employee benefit plan sponsored or maintained by the
          Company or any subsidiary of the Company (including any trustee of
          such plan acting as trustee), becomes the "beneficial owner" (as
          defined in Rule 13(d)(3) under the Exchange Act) of securities of the
          Company representing 50% or more of the combined voting power of the
          Company's then outstanding securities; or (ii) the occurrence of a
          transaction requiring stockholder approval for the acquisition of the
          Company by an entity other than the Company or a subsidiary or an
          affiliated company of the Company through purchase of assets, or by
          merger, or otherwise.

<PAGE>   5
          6.3. NOTICE OF TERMINATION. Any termination of the Executive's
     employment by the Company or by the Executive (other than termination by
     reason of the Executive's death) shall be communicated by written Notice of
     Termination to the other party of this Agreement. For purposes of this
     Agreement, a "Notice of Termination" shall mean a notice which shall
     indicate the specific termination provision in this Agreement relied upon
     and shall set forth in reasonable detail the facts and circumstances
     claimed to provide a basis for termination of the Executive's employment
     under the provision so indicated.

          6.4. DATE OF TERMINATION. The "Date of Termination" shall mean (a) if
     the Executive's employment is terminated by his death, the date of his
     death, (b) if the Executive's employment is terminated pursuant to Section
     6.1 above, the date on which the Notice of Termination is given, (c) if the
     Executive's employment is terminated pursuant to Section 6.2 above, the
     date specified in the Notice of Termination after the expiration of any
     applicable cure periods, and (d) if the Executive's employment is
     terminated for any other reason, the date on which a Notice of Termination
     is given after the expiration of any applicable cure periods.

          6.5. Executive's employment shall terminate upon the death or
     permanent disability of Executive. For purposes hereof, "permanent
     disability," shall mean the inability of the Executive, as determined by
     the Board of Directors of, by reason of physical or mental
     illness to perform the duties required of him under this Agreement for more
     than 180 days in any one year period. Successive periods of disability,
     illness or incapacity will be considered separate periods unless the later
     period of disability, illness or incapacity is due to the same or related
     cause and commences less than 180 days from the ending of the previous
     period of disability. Upon a determination by the Board of Directors of that Executive's employment shall be terminated under this
     Section 6(d), the Board of Directors shall give Executive 30 days' prior
     written notice of the termination. If a determination of the Board of
     Directors under this Section 6(d) is disputed by Executive, the parties
     agree to abide by the decision of a panel of three physicians.
     will select a physician, Executive will select a physician and the
     physicians selected by and Executive will select a third
     physician. Executive agrees to make himself available for and submit to
     examinations by such physicians as may be directed by the Company. Failure
     to submit to any examination shall constitute a breach of a material part
     of this Agreement.

          6.6. The Executive may terminate his employment for any reason upon
     giving 30 days' advance written notice to the Company. If Executive's
     employment is so terminated under this Section 6(e), the Company will pay
     Executive the earned but unpaid portion of Executive's Basic Salary through
     the Termination Date and any incentive compensation under and consistent
     with plans adopted by the Company prior to the Termination Date.


          If the Company decides to move its New York office to another office
     in Manhattan, Executive will not be required, but shall be entitled, to
     maintain an office in such new location. If the Company decides to
     terminate operations in Manhattan, Executive shall not be required to
     relocate and, to the extent the Executive can't perform his duties
     hereunder because there is no office in Manhattan, his non-performance will
     not constitute "Good Cause"

<PAGE>   6
     or "Good Reason".

     8. INDEMNITY.

          (a) Subject only to the exclusions set forth in Section 8(b) hereof,
     the Company hereby agrees to hold harmless and indemnify Executive against
     any and all expenses (including attorneys' fees), judgments, fines and
     amounts paid in settlement actually and reasonably incurred by Executive in
     connection with any threatened, pending or completed action, suit or
     proceeding, whether civil, criminal, administrative or investigative
     (excluding an action by or in the right of the Company) to which Executive
     is, was or at any time becomes a party, or is threatened to be made a
     party, by reason of the fact that Executive is, was or at any time becomes
     a director, officer, employee or agent of the Company, or is or was serving
     or at any time serves at the request of the Company as a director, officer,
     employee or agent of another corporation, partnership, joint venture, trust
     or other enterprise. The Company further agrees to advance to Executive all
     amounts to which he would be entitled under this subsection (a) subject
     only to repayment by Executive if it is ultimately determined that he is
     not entitled to indemnification pursuant to Section 8(b).

          (b) No indemnity pursuant to Section 8(a) hereof shall be paid by the

               (i) to the extent the aggregate losses to be indemnified
          hereunder are actually paid pursuant to any directors and officers
          liability insurance purchased and maintained by the Company;

               (ii) on account of any suit in which judgment is rendered against
          Executive for an accounting of profits made from the purchase or sale
          by Executive of securities of the Company pursuant to the provisions
          of Section 16(b) of the Securities Exchange Act of 1934 and amendments
          thereto or similar provisions of any federal, state or local statutory

               (iii) if the indemnity is prohibited by Nevada law or the
          Company's By-Laws.

          (c) All agreements and obligations of the Company contained herein
     shall continue during the period Executive is a director, officer, employee
     or agent of the Company (or 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) and shall continue
     thereafter so long as Executive shall be subject to any possible claim or
     threatened, pending or completed action, suit or proceeding, whether civil,
     criminal or investigative, by reason of the fact that Executive was an
     officer or director of the Company or serving in any other capacity
     referred to herein.

          (d) Promptly after receipt by Executive of notice of the commencement
     of any action, suit or proceeding, Executive will, if a claim in respect
     thereof is to be made against the

<PAGE>   7
     Company under this Section 8, notify the Company of the commencement
     thereof; but the omission so to notify the Company will not relieve it from
     any liability which it may have to Executive otherwise than under this
     Section 8. With respect to any such action, suit or proceeding as to which
     Executive notifies the Company under this Section 8(d):

               (i) The Company will be entitled to participate therein at its
          own expense.

               (ii) Except as otherwise provided below, to the extent that it
          may wish, the Company jointly with any other indemnifying party
          similarly notified will be entitled to assume the defense thereof,
          with counsel selected by the Company and approved by the Executive,
          which approval shall not be unreasonably withheld. After notice from
          the Company to Executive of its election so to assume the defense
          thereof, the Company will not be liable to Executive under this
          Section 7 for any legal or other expenses subsequently incurred by
          Executive in connection with the defense thereof other than reasonable
          costs of investigation or as otherwise provided below. Executive shall
          have the right to employ his counsel in such action, suit or
          proceeding but the fees and expenses of such counsel incurred after
          notice from the Company of its assumption of the defense thereof shall
          be at the expense of Executive, unless (A) the employment of counsel
          by Executive has been authorized by the Company, or (B) the Company
          shall not in fact have employed counsel to assume the defense of such
          action, in each of which cases the fees and expenses of counsel shall
          be at the expense of the Company. The Company shall not be entitled to
          assume the defense of any action, suit or proceeding brought by or on
          behalf of the Company.

               (iii) The Company shall not be liable to indemnify Executive
          under this Agreement for any amounts paid in settlement of any action
          or claim effected without its written consent. The Company shall not
          settle in any manner which would impose any penalty or limitation on
          Executive without Executive's written consent. Neither the Company nor
          Executive will unreasonably withhold their consent to any proposed

          (e) Executive agrees that Executive will reimburse the Company for all
     customary and reasonable expenses paid by the Company in defending any
     civil or criminal action, suit or proceeding against Executive in the event
     and only to the extent that it shall be ultimately determined that
     Executive is not entitled to be indemnified by the Company for such
     expenses under the provisions of Nevada law, federal securities laws, the
     Company's By-laws or this Agreement.

          9. PUBLIC OFFERING RIGHTS. In the event that the Company undertakes an
     underwritten public offering of its own securities (a "Public Offering")
     and any Officer or founding member of the Company participates in the
     Public Offering as a selling shareholder (a "Selling Shareholder"), the
     Company shall offer Executive the right to participate in the Public
     Offering as a Selling Shareholder on the same terms and conditions as the
     participating Selling Shareholders and to sell a number of shares of common
     stock of the Company (as determined by

<PAGE>   8

     Executive) up to the "Maximum Amount". The term "Maximum Amount" means the
     number of shares of common stock of the Company owned by Executive
     multiplied by the highest percentage of shares of common stock of the
     Company owned by a Selling Shareholder (on an actual outstanding basis) as
     to which any Selling Shareholder is permitted to sell in the Public
     Offering. Executive's rights under this provision are in addition to any
     other rights of Executive in this regard and shall survive termination of
     this Agreement and Executive's termination of Employment for any reason.
     Notwithstanding anything to the contrary above, Executive shall not have
     any rights under this Section 9 if Executive owns less than 1% of the
     Company's outstanding securities and such securities are not "restricted"
     within the meaning of Rule 144 of the Securities Act of 1933, as amended.

          10. ASSIGNMENT. This Agreement is personal to Executive and Executive
     may not assign or delegate any of his rights or obligations hereunder.
     Subject to the foregoing, this Agreement shall be binding upon and inure to
     the benefit of the respective parties hereto, their heirs, executors,
     administrators, successors and assigns.

          11. WAIVER. The waiver by either party hereto of any breach or
     violation of any provision of this Agreement by the other party shall not
     operate as or be construed to be a waiver of any subsequent breach by such
     waiving party.

          12. NOTICES. Any and all notices required or permitted to be given
     under this Agreement will be sufficient and deemed effective three (3) days
     following deposit in the United States mail if furnished in writing and
     sent by certified mail to Executive at:

                  6 Davis Lane
                  Roslyn, NY 11576

     and to the Company at:

                  12751 Suite 3
                  Westlinks Drive
                  Fort Myers, FL 10001
                  Attention: Chief Executive Officer

     with a copy to:

                  John B. Pisaris
                  Porter, Wright, Morris & Arthur LLP
                  41 South High Street
                  Columbus, OH 43215

          13. GOVERNING LAW. This Agreement shall be interpreted, construed and
     governed according to the laws of the State of New York. Any action brought
     to enforce the terms of this Agreement must be brought in either the
     Supreme Court of the State of New York,

<PAGE>   9

     County of New York, or the United States District Court, Southern District
     of New York.

          14. AMENDMENT. This Agreement may be amended in any and every respect
     only by agreement in writing executed by both parties hereto.

          15. SECTION HEADINGS. Section headings contained in this Agreement are
     for convenience only and shall not be considered in construing any
     provision hereof.

          16. ENTIRE AGREEMENT. With the exception of the Confidentiality,
     Assignment and Noncompetition Agreement of even date herewith, and the
     Executive's stock option agreements with the Company, this Agreement
     terminates, cancels and supersedes all previous employment or other
     agreements relating to the employment of Executive with the Company or any
     predecessor, written or oral, and this Agreement contains the entire
     understanding of the parties with respect to the subject matter of this
     Agreement. This Agreement was fully reviewed and negotiated on behalf of
     each party and shall not be construed against the interest of either party
     as the drafter of this Agreement. EXECUTIVE ACKNOWLEDGES THAT, BEFORE

          17. SEVERABILITy. The invalidity or unenforceability of any one or
     more provisions of this Agreement shall not affect the validity or
     enforceability of any other provisions of this Agreement or parts thereof.

          18. SURVIVAL. The last sentence of Section 3, and Sections 6, 8 and 9
     of this Agreement and this Section 18 shall survive any termination or
     expiration of this Agreement.

          IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
     of the day and year first above written.


                                      /s/ Robert D. Brahms
                                      Robert D. Brahms


                                      By: /s/ Phillip R. Thune

                                      Its: Chief Operating Officer &
                                           Chief Financial Officer