Employment Agreement [Amendment] - FinancialWeb.com Inc. and James P. Gagel
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment") dated as of February 1,
1999, is made and entered into by and between Financialweb. com, Inc., a Nevada
corporation (the "Company"), and James P. Gagel, a Florida resident (hereinafter
"Counsel").
WITNESSETH:
WHEREAS, Counsel has been employed as Counsel for the Company since
December 1, 1998 on a 25 hour per week basis, with hours in excess thereof being
billed to the Company at Counsel's regular hourly rate;
WHEREAS, the Company has been in greater need of Counsel's services than
originally anticipated, and has in fact utilized said services for at least 40
hours per week since his initial employment;
WHEREAS, the Company fully expects that said services will continue to be
needed on a full time basis;
WHEREAS, Counsel expertise, ability and knowledge of the business and
affairs of the Company are unique and essential to its successful operation;
WHEREAS, the Board of Directors of the Company (the "Board") recognizes that
Counsel's contribution to the growth and success of the Company will be
substantial, and the Board has determined that this Agreement will reinforce and
encourage Counsel's attention and dedication to the Company and is in the best
interests of the Company, and
WHEREAS, the Board desires to provide for the continued employment of
Counsel and Counsel is willing to commit himself to continue to serve the
Company.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and agreements of the parties herein contained and other good and valuable
consideration, the receipt and sufficiency all of which are forever acknowledged
and confessed, the parties hereby agree as follows:
1. Agreement for Continued Employment.
1.1 Employment. The Company (including its successors, present and future
subsidiaries, affiliates or divisions of the Company or any one or more other
entities to which the business or functions of the Company may be transferred)
hereby engages and employs and agrees to continue to employ Counsel, and Counsel
accepts such engagement and employment as Counsel of the Company and agrees to
serve the
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Company on the terms specified in Counsel's Agreement with the Company dated
December 1, 1998, with the following amendments:
1.1 Base Salary. As of February 1, 1999, Counsel shall devote a minimum of
40 hours per week to the affairs of the Company, and Company agrees to
compensate and pay Counsel a base salary at the rate of $86,000 per
annum. On December 1, 1999, Counsel's base salary shall be increased to
$98,000, and on December 1, 2000 said salary shall be increased to
$112,000.
1.2 Billable Hours. Counsel shall not bill the Company for any "additional
time" for services rendered, in view of his full time commitment to the
Company pursuant to this Amended Agreement.
2. Notices. Any notices and communications required to be given under this
Agreement shall be in writing and shall be sent by registered or certified mail,
postage prepaid, or delivered by hand to the parties at the addresses set forth
below, or at such other addresses as any party may designate to the others by
notice hereunder:
If to Counsel: 543 South Sundance Drive, Lake Mary, Florida, 32746
3. Entire Agreement.
This Amended Employment Agreement together with the Employment
Agreement dated December 1, 1998 contains the entire Agreement between the
parties hereto with respect to the subject matter hereof. All provisions of the
Employment Agreement dated December 1, 1998 not specifically amended by this
Amended Agreement remain in full force and effect. This Agreement may not be
modified, amended, waived or discharged except in writing signed by all parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
/s/ KEVIN A. LICHTMAN /s/ JAMES P. GAGEL
Kevin A. Lichtman James P. Gagel
President Counsel
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of December 1, 1998,
("Effective Date"), is made and entered into by and between Axxess, Inc., a
Nevada corporation (the "Company"), and James P. Gagel a Florida resident
(hereinafter "Counsel").
WITNESSETH:
WHEREAS, the Company has utilized Counsel's services on an ad hoc basis
during the course of the 1998 year; and,
WHEREAS, said services will continue to be needed on a more consistent
basis, and will be more valuable to the Company if Counsel resides near the
Company's principal place of business and assumes the position of General
Counsel for the Company; and,
WHEREAS, the Board of Directors of the Company (the "Board") recognizes that
Counsel's contribution to the growth and success of the Company will be
substantial, and the Board has determined that this Agreement will reinforce and
encourage Counsel's attention and dedication to the Company and is in the best
interests of the Company, and
WHEREAS, the Board desires to provide for the employment of Counsel on a 25
hour per week basis, and Counsel is willing to relocate to Florida and become
General Counsel for the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements of the parties herein contained and other good and valuable
consideration, the receipt and sufficiency all of which are forever acknowledged
and confessed, the parties hereby agree as follows:
1. Agreement for Employment.
1.1 Employment. The Company (including its successors, present and future
subsidiaries, affiliates or divisions of the Company or any one or more other
entities to which the business or functions of the Company may be transferred)
hereby engages and employs and agrees to continue to employ Counsel, and Counsel
accepts such engagement and employment as General Counsel (hereinafter
"Counsel") of the Company and agrees to serve the Company on the terms herein
specified.
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1.2 Counsel's Service. Counsel agrees to act as Counsel of the Company for
so long as he holds such office of the Company. Counsel shall be located in
Altamonte Springs, Florida during the term of this Agreement.
1.3 Office of Counsel. Counsel acknowledges that the office of General
Counsel of the Company is an office to which he must be appointed by the Board
and that the Board has appointed Counsel to serve for a period equal to the
Term. Counsel may not be removed from such office except in strict accordance
with the procedures set forth in this Agreement. The removal of Counsel or
expiration of Counsel's appointment shall not affect this Agreement except as
specified below. Company represents and warrants to Counsel that Company's
Articles of Incorporation and By-laws do not prohibit such appointment and the
employment contemplated hereunder.
2. Scope of Duties.
2.1 Scope of Duties. Counsel shall be responsible for all of the Company's
legal matters, including the handling of labor law and personnel issues;
corporate governance of the Company and its subsidiaries; mergers and
acquisitions; the provision of counsel and advice on all published materials and
related Company activities with respect to First Amendment matters (libel,
slander, etc.); Internet law; insurance coverage; litigation management;
contracts with personnel, vendors, consultants, landlords and others; management
of SEC compliance; compliance with all local, state and federal laws, management
of trademark, copyright, patent and trade secret issues, licensing agreements,
and such other matters as may arise or be assigned by the Board of Directors.
2.2 Required. Efforts. Counsel shall devote sufficient working time and
effort to the business and affairs of the Company as may be required to
accomplish the tasks assigned to him under this Agreement, except in cases of
Disability or Incapacity, as hereinafter defined. This Agreement shall not be
construed to prevent Counsel from investing his personal assets in businesses
which do not compete with Company, or from engaging in consulting or in the
practice of law, except that Counsel shall not provide services to any client
that would in any way impede or threaten his ability to devote his attention to
the affairs of the Company.
3. Term.
3.1 Term. This Agreement shall commence on the Effective Date and continue
thereafter, unless terminated as hereinafter provided, for 3 years from the
Effective Date (the "Initial Term") and for successive one (1) year periods
("Renewal Terms"). The word "Term" shall mean the Initial Term as well as any
and all Renewal Terms.
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3.2 Renewal. This Agreement shall be automatically extended without the
action of any party at the end of the Initial Term and each Renewal Term unless
either the Company or Employee delivers to the other written notice that
Employee's employment hereunder will not be extended. Such notice must be
delivered by the Company at least one hundred eighty (180) days prior to the
expiration of the Term, and said notice must be delivered by the Employee at
least thirty (30) days prior to the expiration of the term, whether the Initial
Term or a Renewal Term, for which it is to be effective. Compensation for each
Renewal Term shall include the same percentage increase in base salary that was
received during the year prior to renewal.
4. Compensation.
4.1 Base Salary. The Company agrees to compensate and pay Counsel a base
salary for an average of 25 hours per week of services at the rate of $48,000.
for the first year, $58,000. for the second year, and $68,000. for the third
year. Salary shall be paid in equal periodic installments on the first and
fifteenth days of each month. Salary may be increased in accordance with the
good faith business practices of the Company and customary business practices,
at the discretion of the Board of Directors.
4.2 Billable Hours. Counsel shall maintain detailed time sheets for all
services performed for the Company, and shall bill the Company at his regular
rate of $150,000 for all work performed at the Company's request in excess of 25
hours per week.
4.3 Options. Options are hereby granted for the purchase of the Company's
stock as follows: (a) 25,000 shares at the December 1, 1998 closing price of
$3.94 per share, (b) 25,000 shares at the closing price of December 1, 1999, and
(c) 25,000 shares at the closing price of December 1, 2000. Each of the
aforementioned 3 options shall vest 12 months after the grant date, i.e., on
November 30, 1999, on November 30, 2000, and on November 30, 2001. Cashless
exercise of the options permissible, and once exercised same will be registered
with any registration statement the Company may in the future file. The
aforementioned options are separate and apart from the rights Counsel shall have
to participate in the Company's Employee. Stock Option Plan, on the same terms
and conditions applicable to officers of the Company.
4.4 Bonuses The Board of Directors shall authorize such cash bonuses and
other compensation as it may from time to time determine to be appropriate and
consistent with industry practice.
4.5 Termination Compensation. The Company recognizes that Counsel was
recruited by the Company, and has relocated from a jurisdiction where he is a
member of the Bar in private practice, to the State of Florida, where he is not
a member of the bar, (except for admission under the Florida Corporate Counsel
Rule in order to work solely for the Company) and has left his Washington, D.C.
law practice in order to devote a substantial part of his time and attention to
the Company. If Counsel's employment is terminated pursuant to Paragraph 7.1
(a),(b),(c) or (e) of this Agreement, Employee's Base Salary shall be continued
for a period equal to eighteen (18) months, regardless of
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whether Employee is re-employed on a full-time or part-time basis or becomes
self employed. The Termination Compensation shall be paid in equal periodic
installments on the first and fifteenth days of each month. No termination
compensation shall be paid to Employee in the event his termination is
voluntary, or "For Cause" as defined in Paragraph 12 of this Agreement.
4.6 Withholding. The amounts stated in this Article 4 are stated in gross
amounts. The Company is or may be required to withhold from such gross amount
deductions for federal, state or local taxes, F.I.C.A. and such other taxes
required by appropriate governmental agencies. The amount to be paid Counsel
shall be net of such amounts withheld.
4.7 Equity Compensation. In addition to Counsel's compensation provided
above, the Company may grant to Counsel additional equity or options for
membership interests of the Company after the date hereof. The value of the
additional equity granted to Counsel hereunder shall be determined by the Board
of Directors. If the Company has more than one form, type, or class of equity
securities or convertible instruments, Counsel shall have the right to select
which form, type, or class of stock and/or convertible instruments he shall
receive hereunder. The grant of additional equity or options may be subject to a
vesting schedule. Notwithstanding the foregoing, if Counsel's employment is
terminated for any reason, other than Counsel's voluntary resignation, the
equity interest hereunder shall vest and be transferred to Counsel as of the
date of Counsel's termination of employment. Furthermore, if the Company
undergoes a change of control, all of the equity interest hereunder shall vest
immediately.
5. Reimbursement for Expenses.
5.1 Reimbursement. The Company shall reimburse Counsel or cause him to be
promptly reimbursed for all reasonable and necessary expenses incurred in
furtherance of the business and affairs of the Company, including, but not
limited to, all travel expenses and living expenses while away from home on
business or at the request of the Company. Likewise, Counsel shall be reimbursed
for expenses incurred for attendance at legal or business seminars or courses,
as well as for all bar admission costs, dues, legal materials, and related
items. Seminar and course attendance must be pre approved by the President or
his delegate. Such reimbursement shall be effected as soon as reasonably
practicable after such expenditures are made, against presentation of signed,
itemized expense reports in accordance with the present travel and business
expense reimbursement policies of the Company.
6. Fringe Benefits.
6.1 Benefits. The Company shall furnish to Counsel, at the Company's
expense, the following specific benefits in addition to any other benefits
provided in the Agreement.
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(a) Company paid medical insurance coverage which shall be complete
coverage without any deductions or exclusions for pre-existing
conditions. The Company shall pay the portion of the insurance
policy premium that corresponds to Counsel, and Counsel shall pay
that portion of the premium that corresponds to his dependents. The
insurance coverage provided to Counsel shall be no less favorable
to Counsel and his family, than the insurance coverage provided by
the Company to any other employee, agent, officer or similar
operative of the Company or that which is in effect on the
Effective Date; and
6.2 Other Benefits. The Company plans to maintain employee benefit plans
and arrangements. Counsel shall be entitled to and may elect to participate in,
or receive benefits equivalent to, any plans or arrangements instituted
subsequent hereto by the Company for its officers (including without limitation
each pension and retirement plan and arrangement, stock option plan, life
insurance and health-and-accident plan and arrangement, medical insurance plan,
disability plan, survivor income plan, relocation plan and vacation plan). The
Company shall not make any changes in such plans or arrangements which would
adversely affect Counsel's rights or benefits thereunder. Nothing paid to
Counsel under any plan or arrangement presently in effect or made available in
the future shall be deemed to be in lieu of the base salary payable to Counsel.
6.3 Post Termination Benefits. If Counsel's employment is terminated for
any reason other than Counsel's voluntary resignation, the Fringe Benefits
provided to Counsel under this Article 6 shall be continued for a period equal
to eighteen (18) months. In addition, Counsel shall be reimbursed for all
reasonable job search and placement costs incurred in securing new employment,
including up to $5,000. per year of educational costs related thereto.
6.4 Vacations. Counsel shall be entitled to fifteen (15) vacation days in
each calendar year, and to compensation for earned but unused Vacation days,
determined in accordance with the Company's vacation plan. Counsel shall also be
entitled to all paid holidays given by the Company to its executives. The number
of vacation and paid holidays and the policies related thereto available to
Counsel shall be no less favorable to Counsel than the vacation and holiday
benefits provided to any other employee, agent or similar operative or those in
effect on the Effective Date.
6.5 Service Furnished. The Company shall furnish Counsel with office space,
a personal secretary, word processing and computer assistance and such other
facilities and services as shall be suitable to Counsel's position and adequate
for the performance of his duties as set forth herein.
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7. Termination.
7.1 Events of Termination. This Agreement may only be terminated upon the
following circumstances:
(a) Death. The death of Counsel;
(b) Disability. Counsel's Disability and election of the Company to
terminate as set forth in Sections 7.2 and 7.3, respectively;
(c) Term Expiration. The expiration of the Initial Term or any Renewal
Term only if the written notice provided for in Section 3.2 has
been delivered to Counsel after the beginning of the Tenn that is
to be the last Term and one hundred eighty (180) days prior to the
expiration of the Term for which the notice is to be effective;
(d) Termination For Cause by the Company. Written notice from the
Company delivered to Counsel that his employment is terminated For
Cause, as that term is defined below; and
(e) Termination for Good Reason by Counsel. Written notice from Counsel
delivered to the Company that his employment is terminated For Good
Reason as that term is defined below.
7.2 Definition of Disability. "Disability" as applied to Counsel shall be
deemed to have occurred whenever Counsel has suffered physical or mental illness
or infirmity of such nature, degree or effect as to render Counsel substantially
unable to perform his duties as delineated in Article 2 hereof for a period of
twelve (12) consecutive months.
7.3 Termination in the Event of Disability. In the event of Counsel's
Disability, the Company shall have the right to terminate Counsel's employment
at any time upon sixty (60) days' advance written Notice of Termination to
Counsel, provided however, that Counsel may contest the determination of
Incapacity at any time as provided in Section 7.4. If Counsel contests the
determination of Disability, his employment shall not terminate until the
expiration of 60 days following a final determination of Disability. If the
Company has not elected to terminate Counsel's employment after Disability has
occurred, the Company may appoint another person to temporarily perform the
duties of Counsel, but in such case such appointment shall not constitute a
termination of Counsel's employment nor a breach by the Company of this
Agreement.
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7.4 Determination of Disability. Counsel's physician, at the Company's
request, shall determine, according to the facts then available to him, whether
Disability has occurred and is continuing. Such determination shall be made in
good faith and not arbitrarily or unreasonably made. The Board may request the
opinion of a reputable and qualified physician mutually acceptable to Counsel
and the Company to examine Counsel for the purpose of determining whether
Counsel is in fact disabled. The fees of such physician, as well as any other
expenses related to such physician's examination of Counsel, shall be paid by
the Company. Counsel shall be given written notice of the intent of the Company
to make such request and Counsel shall be provided with sufficient time to
respond thereto. In the event Counsel's physician and the mutually agreed upon
physician do not concur, Counsel shall have the right to request the appointment
of a mutually agreeable third physician who shall consult with the other two
physicians and make a final binding determination with respect to Counsel's
Disability.
7.5 For Cause. Except for Disability or termination upon expiration of the
Term, the Company may terminate Counsel's employment only "For Cause." For
purposes of this Agreement, the Company shall have Cause to terminate Counsel's
employment only if termination by the Company shall have taken place as a direct
result of: (i) Counsel's conviction of a crime which constitutes a felony in the
jurisdiction involved or (ii) Counsel's willful failure or refusal to perform
his lawful duties as required by this Agreement following written notice of such
failure or refusal, and failure to cure or contest same within sixty (60) days
of Counsel's receipt of notice.
7.6 Termination by Counsel. Counsel may, at Counsel's option, terminate his
employment hereunder for Good Reason.
For the purposes of this Agreement, "Good Reason" shall mean (a) a change in
Control of the Company (as defined below), (b) a failure by the Company to
comply with any material provision of this Agreement which has not been cured
within thirty (30) days after written notice of such noncompliance has been
given by Counsel to the Company, (c) any purported termination of Counsel's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of paragraph 7.8 hereof (and for purposes of this
Agreement no such purported termination shall be effective), (d) any act or
pattern of acts of hostility toward Counsel or creation of a hostile work
environment, or (e) any time when Counsel's health is impaired to an extent that
makes his continued performance of his duties hereunder hazardous to his
physical or mental health or his life, provided that Counsel shall have
furnished the Company with a written statement from a physician to such effect,
if requested by the Company (f) relocation of the Company from the Orlando
metropolitan area.
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7.7 Change of Control. For purposes of this Agreement, a "Change of
Control" shall be deemed to have occurred if there is any change in legal or
beneficial share ownership from that reflected on the Effective Date in the
transfer ledger or other record of share ownership of the Company other than in
connection with (i) a public offering; or (ii) any change in Share ownership
which effects less than twenty five percent (25%) of the issued and outstanding
stock of the Company when aggregated with all prior transfers during the
immediately preceding twelve (12) month period.
7.8 Notice of Termination. Any termination of Counsel's employment by the
Company or by Counsel shall be communicated by written notice of termination to
the other party hereto. 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
Counsel's employment under the provision so indicated.
7.9 Date of Termination. "Date of Termination" shall mean (i) if Counsel's
employment is terminated by his death, the date of his death, (ii) if Counsel's
employment is terminated pursuant to paragraph 7.1(b) above, sixty (60) days
after Notice of Termination is given (provided that Counsel shall not have
returned to the performance of his duties on a full-time basis during such sixty
(60) day period), (iii) if Counsel's employment is terminated pursuant to
paragraph 7.1(c) above, the date specified in the Notice of Termination, and
(iv) if Counsel's employment is terminated for any other reason the date on
which a Notice of Termination is given.
7.10 Payment Upon Termination by Company. If Counsel's employment shall be
terminated pursuant to Sections 7.1(a), (b), (c), (d) or (e), the Company
shall pay Counsel his base salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given. Thereafter, compensation
shall be paid as herein provided. If Counsel dies, however, Counsel's spouse
shall receive all compensation, including post termination compensation, due to
Counsel.
7.11 Miscellaneous. Termination of employment of Counsel shall not terminate
this Agreement. Counsel, however, shall not be obligated to mitigate damages by
seeking employment elsewhere.
8. Confidential Information.
8.1 Counsel agrees that he will not either during the term of this
Agreement or at any time after the termination thereof, disclose or make
accessible to any other person (except pursuant to the valid order of a court or
governmental agency), or use for the benefit of himself or any other person, any
Confidential Information as hereinafter defined.
8.2 "Confidential Information" for the purposes of this Employment
Agreement means any knowledge of information which is not generally known or
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available relating to the existing or contemplated products, or services,
equipment, processes and methods, technology, research, engineering or
developmental work, processes, formulae, inventions, plans, business procedures,
sales methods, customer lists, customer usage and requirements, raw materials
and the suppliers and costs thereof, and other confidential business information
and data relating to the affairs of the Company or of any other subsidiary or
division of the Company with which Counsel may have an association or
relationship. Confidential Information shall not, however, include any
information which (a) has become knows in the industry through no wrongful act
of Counsel; (b) has been rightfully received from a third party without
restriction and without breach of this Agreement; (c) has been furnished to a
third party by the Company without a similar restriction on the third party's
rights; or (d) is in the public domain.
9. Notices. Any notices and communications required to be given under this
Employment Agreement shall be in writing and shall be sent by registered or
certified mail, postage prepaid, or delivered by hand to the parties at the
addresses set forth below, or at such other addresses as any party may designate
to the others by notice hereunder:
If to the Company: 201 Park Place, Suite 321, Altamonte Springs, Fl. 32701
If to Counsel: 256 Altamonte Bay Club Circle, #204, Altamonte Springs, Fl.
32701
10. Review. Each year in January, the Company and Counsel agree to meet to
review the performance of Counsel, Counsel's status with the Company and the
status of the Company.
11. Good Faith. Except as herein expressly provided to the contrary,
whenever this Agreement requires any consent or approval to be given by either
party, or either party must or may exercise discretion, the parties agree that
such consents or approvals and all actions taken in compliance with or relating
to this Agreement shall not be unreasonably withheld or delayed and shall be
reasonable exercised in good faith.
12. Severability. If any provision or term of this Agreement shall be
found by any court of competent jurisdiction to be unenforceable, the remaining
terms and provisions hereof shall remain in full force and effect, as if such
unenforceable provision or term had never been a part hereof.
13. Captions. The expiration of the Initial Term or any Renewal Term only
if the written notice provided for in Section 3.2 has been delivered to Counsel
after the beginning of the Term that is to be the last Term and one hundred
eighty (180) days prior to the expiration of the Term for which the notice is to
be effective Te headings of paragraphs hereof are used for convenience only and
shall not affect the meaning or interpretation of the contents hereof.
14. Successors. This Agreement is personal and may not be assigned by
Counsel. This Agreement shall inure to the benefit of and be binding upon the
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Company's successors and assigns. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company, by agreement
and form and substance satisfactory to Counsel, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no succession had taken place.
Failure of the Company to obtain such agreement prior to such succession shall
be a breach of this Agreement and shall entitle Counsel to compensation in the
same amount and on the same terms as if he terminated his employment for Good
Reason. The date on which the succession becomes effective shall be deemed the
Date of Termination. For purposes of this Agreement "Company" shall mean not
only the Company as defined herein, but also any successor to its business or
assets or which otherwise becomes bound under this Agreement by operation of
law.
15. Entire Agreement. This Employment Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof,
and supersedes the Agreement entered into between the parties on December 1,
1998. This Agreement may not be modified or amended or waived or discharged
except in writing signed by all parties.
16. Governing Law. This Agreement is entered into and shall be construed in
accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement
to be executed as of the day and year first above written.
FINANCIALWEB.COM, INC.
/s/ Kevin A. Lichtman
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KEVIN A. LICHTMAN
President
/s/ James P. Gagel
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JAMES P. GAGEL
Counsel