Exhibit
10.2
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (this “ Agreement ”), dated as of
March 23, 2009, is by and between KOWA!BUNGA, INC. , a
Nevada corporation (“ Company ”) and Gail L.
Babitt , an individual residing 13518 Decatur Circle, Omaha,
Nebraska. 68154 (“ Executive ”).
WHEREAS, Company
desires to employ Executive, and Executive desires to accept such
employment, pursuant to the terms and conditions set forth
below.
NOW,
THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, as well as for
other good and valuable consideration, the receipt, adequacy and
legal sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as
follows:
1.
Employment . Company hereby employs Executive, and
Executive accepts such employment, in accordance with the terms and
conditions hereinafter set forth. Executive shall primarily work
from the Company’s principal offices at 15550 Lightwave
Drive, 3 rd Floor, Clearwater, Florida 33760 (the
“ Location ”), or at other offices or locations
as may subsequently be designated by Company. Executive shall
relocate her permanent residence to the Tampa Bay area as soon as
practical, to reside within daily commuting distance from
Company’s Location. Executive’s commencing
employment is contingent upon a background and credit check
satisfactory to Company in its sole and absolute discretion, and
Executive hereby gives her consent for any and all such checks.
The Company represents that it will keep the results of all
such background and credit checks confidential and not disclose any
information obtained therefrom to any third parties without the
Executive’s prior written consent.
2.
Duties . As of March 30, 2009 (the “ Start
Date ”) until such time as the Chief Executive Officer
(the “ CEO ”) may, in his sole and absolute
discretion, otherwise decide, Executive shall be employed as Chief
Financial Officer (“ CFO ”) and, while she
serves as CFO, subject to such travel as the rendering of services
hereunder may require, and Executive shall perform and discharge
well and faithfully the duties which may be assigned to her from
time to time by the CEO in connection with the conduct of
Company’s businesses to provide technology driven marketing
solutions over the internet to businesses and individuals (the
“ Business ”). Executive shall report directly
to the CEO. The duties of Executive shall be those that are
customarily performed by a Chief Financial Officer of the same or
similar title at a public company, together with such additional,
supplemental or alternative duties as may from time to time be
required provided such additional duties are reasonably related to
the scope of employment of Executive and her title.
3.
Extent of Services . During the Term (as defined in
Section 5), Executive shall expend 100% of Executive’s
available working time and best efforts exclusively on Company
matters and the Business, expending such time as is required to
perform Executive’s duties for Company to the highest
standards, and shall not be engaged (whether during normal business
hours or otherwise) in any other business or professional activity,
except as provided in Section 8 of this Agreement. Executive
shall at all times faithfully, industriously, and to the best of
Executive’s ability, experience, and talent, perform all
duties that may be required of and from Executive pursuant to the
express terms of this Agreement. Executive shall travel on Company
business as often and to the extent required or appropriate for
Executive’s position and the needs of the Business.
4.
Compensation .
(a)
Salary
.
For all services rendered by Executive under this Agreement,
Company shall pay Executive for the period from the Start Date
through Term of this Agreement, as hereinafter defined, an annual
base salary in an amount equal to two hundred and fifty thousand
dollars ($250,000) (“ Salary ”). Executive
shall be paid in accordance with the customary payroll practices of
Company, subject to such deductions and withholdings as may be
required by law or agreed to by Executive. Any raises, bonuses or
additional amounts paid to Executive during the Term (as
hereinafter defined) shall be solely within the discretion of the
CEO in accordance with guidelines prescribed by the Company’s
Compensation Committee and shall not to any extent increase the
amount payable to Executive by Company pursuant to Section 6(e) of
this Agreement.
(b)
Bonus
.
Executive shall be eligible for a discretionary annual bonus
of up to 75% of Salary commencing in 2009, as determined by
Company’s Compensation Committee using 85% to 110% attainment
criteria (“ Bonus ”). Under no circumstances is
any Bonus to any extent guaranteed or assured. Bonus payment
shall be tied to meeting the results as documented in
Company’s external plan.
(c)
Stock
Options . Upon
Executive’s executing and delivering this Agreement, (which
date shall be the “ Execution Date ”) and
actually commencing work at the Location, Executive shall be
entitled to receive an option grant under Company’s 2005 Long
Term Incentive Plan (“LTIP”) to purchase the 750,000
shares of Company’s common stock, $.001 par value per share.
These options shall vest one-third per year for each year of
Executive’s employment with all such shares vested upon the
third anniversary of Starting Date (“Vesting Options”).
The term of the Vesting Options shall be five (5) years from
the date of Grant, not to exceed the expiration of the LTIP.
The date of grant of all such options shall be the Execution
Date and the exercise price shall equal the greater of the Fair
Market Value of Company’s stock as that term is defined in
the LTIP or $0.25 per share. Should there be a change in control of
Company prior to all the Executive’s options having vested
and the Executive is thereafter terminated without “For
Cause” (as hereinafter defined), or Executive’s salary
or bonus is diminished or Executive’s duties and
responsibilities, or operational authority are materially
diminished, during the one year period following a Change in
Control (a “ Change of Control Event ”), then
the Vesting Options shall be deemed to vest in full and become
immediately exercisable.
(d)
Benefits
.
During the term of her employment, Executive shall be
generally entitled to participate at the highest Company paid level
in benefit plans or programs which are generally made available to
executives of Company, subject to all of the rules, regulations,
terms and conditions applicable thereto, these include vacation
time, health care plans, retirement plans and any other benefits
made available to other executives. Executive shall be
entitled to fifteen (15) paid-time-off days per year, to be used
per Company policy, and up to eight (8) paid holidays and two (2)
“floater” holidays per year, all pro-rated or limited
to remaining holidays during the first year of employment. No
benefit plans or programs are guaranteed; any and all such plans
may be terminated at any time for any reason with or without
notice. Company shall have the right at any time to put into
place arrangements pursuant to which some or all of
Executive’s compensation and/or benefits set forth above
shall be provided to Executive by or through other companies
affiliated with Company (rather than directly by Company), and
Executive shall fully cooperate with such arrangements and shall
promptly sign such documents and take all such other actions as
shall be deemed necessary by the legal counsel for Company in order
to facilitate such arrangements.
(e)
Relocation
Assistance . Company
will pay to Executive up to $2,000 per month as a temporary Florida
housing allowance until Executive sells her home in Omaha, NE, not
to exceed twelve (12) months. Company will reimburse the
Executive for (a) the reasonable and
customary real
estate commission not to exceed 6% of the sales price or $21,000,
and closing costs, legal fees and transfer taxes not to exceed
$5,000 in the aggregate, which Executive actually pays upon the
closing of the sale of her current residence, and (b) the
reasonable and customary costs of relocation from Omaha, NE area to
the Tampa, FL area based on the average of three competitive bids.
The Executive will use her best efforts to minimize her costs
of relocation to not more than fifty thousand dollars ($50,000).
If Executive voluntarily resigns from Company within the
first twelve (12) months from the Execution Date, the Executive
shall reimburse Company for the full commission and relocation
amounts hereby paid to her. The Company will not unreasonably
withhold moving expenses in the event that the expenses for moving
exceed $50,000.
(f)
Business Expense
Reimbursement . Executive
is authorized to incur reasonable expenses in carrying out her
duties and responsibilities under this Agreement, including,
without limitation, expenses for travel, entertainment, maintenance
of licensing, education, certification and training as deemed
necessary up to a maximum of two thousand dollars ($2,000) annually
and similar items directly related to her duties and
responsibilities (“Business Expenses”). Company may, at
Company’s sole option, provide Executive with a Company
corporate credit card to be used by Executive strictly to pay for
ordinary and usual Business Expenses and Company agrees to pay the
monthly credit card bills for all approved charges. Executive shall
charge absolutely no personal expenses to such credit card and all
“points” or other benefits resulting from card usage
shall belong to Company. Company will reimburse Executive for all
reasonable out-of-pocket Business Expenses incurred by the
Executive upon presentation by Executive, from time to time, of
accounts of such expenditures (appropriately itemized and approved
consistent with the Company’s policy).
5.
Term . The term of this Agreement (the “
Term ”) shall commence on the Start Date and shall
continue until the earlier of (a) March 31, 2012 or (b) the
employment of Executive is terminated in accordance with Section 6
of this Agreement. The Term of this Agreement may be extended
upon the mutual agreement of Company and Executive. Six (6)
months prior to the end of the original or any extended Term,
Company and Executive shall each then inform the other whether it
or she is willing to further extend the Term.
6.
Termination of Employment .
(a)
Death or Disability
of Executive . The
employment of Executive under this Agreement shall terminate upon
her death or, at the option of Company, if Executive shall have
failed to fully perform, or be unable to fully perform her duties
hereunder as a result of her disability or illness, for any
cumulative and not necessarily consecutive sixty (60) days during
any 360 day period. Upon termination pursuant to this subsection,
Executive
shall
only be entitled to be paid Salary, Bonus and expense
reimbursements earned or accrued through the date of termination,
and no severance payment shall be due or payable to Executive in
such event. For purposes of this Agreement, Executive’s
failure to fully perform her duties hereunder as a result of her
disability or illness shall be determined by Company based upon the
advice of a reputable licensed physician in the Tampa/Clearwater
metropolitan area mutually acceptable to Executive and Company,
which consent shall not be unreasonably withheld, conditioned or
delayed. Executive shall promptly present herself to, and
shall fully cooperate with, such physician for examination and for
any and all related medical tests.
(b)
Termination
“For Cause” . Company
shall have the right to terminate the employment of Executive under
this Agreement “ For Cause ” (as such term is
defined below) at any time without further liability or obligations
to Executive, excepting only that Executive shall be entitled to be
paid for accrued Salary, Bonus and expense reimbursements earned or
accrued through the date of termination, and absolutely no
Severance (as that term is hereinafter defined) shall be due or
payable to Executive in such event. For purposes of this Agreement,
“ For Cause ” shall refer to any of the
following events as determined in the reasonable judgment of the
CEO: (1) Executive’s gross neglect of or gross negligence in
the performance of her duties, including, but not limited to,
materially unsatisfactory performance, failure to materially
achieve her approved goals and objectives as a result of
Executive’s gross neglect or negligence, breach of her duties
to Company, demonstrable disloyalty, malfeasance or misfeasance as
a officer of Company, or any knowing acts or knowing failures to
act which result in material damages to Company or its reputation;
(2) Executive’s failure or refusal to follow reasonable
instructions given to her by the CEO; (3) Executive’s
violation of any provision of Company’s Articles of
Incorporation, Bylaws, or of any other stated policies, standards,
or regulations; (4) Executive being charged or indicted in regard
to any criminal offense, other than a misdemeanor not involving
moral turpitude or a minor traffic violation, or sued in civil
litigation which in any way materially relates to, or calls into
question Executive’s integrity, honesty or fitness, or which
interferes with her ability, to perform her duties; (5)
Executive’s violation or breach of any material term,
covenant or condition contained in this Agreement, which is not
cured within 60 days after written notice thereof is received by
Executive, if such violation or breach is capable of being cured;
(6) Executive failure to disclose to Company any material matters
concerning Executive’s background, qualifications,
credentials and character which bring into question
Executive’s fitness or ability to serve in the position for
which she is hired; or (7) the U.S. Securities and Exchange
Commission (the “ SEC ”)
issues
an order prohibiting Executive from acting as an officer of
Company.
(c)
Termination for Good Reason . Executive shall have the
right to terminate her employment with Good Reason. “
Good Reason ” means (i) the failure of Company to pay
any material payment due Executive under Section 4 hereof; (ii) a
Change of Control Event has occurred; (iii) Company’s
material breach of any material term, covenant or condition
contained in this Agreement, which is not cured within 60 days
after written notice thereof is received by Company; or (iv)
involuntary Relocation of the Executive more than 50 miles from the
Location.
(d)
Voluntary
Termination other Than for Good Reason . Executive
may otherwise voluntarily resign and terminate her employment at
any time and the Executive would not be entitled to Severance, as
hereinafter defined, provided that under all circumstances she
gives not less than ninety (90) days prior written notice to
Company, time being of the essence, regarding which Company may
waive or shorten any portion of such resignation notice period in
Company’s sole and absolute discretion, but Executive will be
paid in full for the ninety (90) day period.
(e)
Compensation Due Upon Termination . In the event that
Company or Executive terminates this Agreement for any reason
whatsoever, Executive shall be paid (less all applicable
deductions) all earned and accrued Salary and expense
reimbursements earned or accrued for services rendered up to the
date of termination. Executive shall also be entitled to receive a
pro-rata bonus based upon the Bonus she would subsequently have
earned for the year in which Executive’s employment was
terminated, if any, paid on the original date such bonus would have
been payable.
(f)
Severance Payment; Limitation of Liability . Except in
the case of termination pursuant to Section 6(a) (Death or
Disability of Executive) or Section 6(b) (Termination “For
Cause”), in the event that Company terminates this Agreement
prior to the end of the Term, or Executive terminates for Good
Reason, Executive shall be paid, on Company’s usual payroll
dates, a severance amount (“ Severance ”) equal
to the lesser of (a) the Salary and Bonus, if any Bonus attainment
criteria are satisfied post-termination, less all applicable
deductions, that would have become due and owing to Executive on
such payroll date through the one (1) year anniversary of the date
of Executive’s termination of employment (the “
Severance Period ”), as if Executive’s
employment with Company had not been terminated prior thereto or
(b) if at any time during the Severance Period Executive shall
obtain any other compensation for her
