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Exhibit 10.8
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
"Agreement"), made this 14th day of December, 2004 (the "Effective
Date") is entered into by IBuyDigital, Inc., a Delaware corporation
(the "Company"), and Steven Szklarz (the "Executive").
WHEREAS , the Company desires to employ
the Executive, and the Executive desires to be employed by the
Company.
WHEREAS , the Company desires to
provide the Executive with proper incentives for him to perform
duties as the Company’s Chief Operating Officer.
NOW, THEREFORE , in consideration of
the mutual covenants and promises contained herein, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, the parties agree as
follows:
1. Term of Agreement . The Company hereby
agrees to employ the Executive, and the Executive hereby accepts
employment with the Company, upon the terms set forth in this
Agreement, for the period commencing on the Effective Date and
ending on the third anniversary thereof (such period, as it may be
extended, the "Term"), unless sooner terminated in accordance with
the provisions of Sections 5 and 6. The Term shall be automatically
renewed for successive three year terms (each such renewal, a
"Renewal Term"), unless either party provides the other party with
written notice no less than ninety (90) days prior to the end of
the then current Term or Renewal Term, of his or its intent not to
renew this Agreement.
2. Title; Capacity . The Executive shall
serve as Chief Operating Officer or in a position at least
commensurate therewith in all material respects. The
Executive’s duties hereunder shall be those which shall be
prescribed from time to time by the Board of Directors (the
"Board") in accordance with the bylaws of the Company and shall
include such executive
duties, powers and responsibilities as
customarily attend the office of Chief Operating Officer of a
company of the size, type and nature of the Company. The Executive
will hold, in addition to the office of Chief Operating Officer of
the Company, such other executive offices in the Company and its
subsidiaries to which he may be elected, appointed or assigned by
the Board from time to time and will discharge such executive
duties in connection therewith.
3. Services and Best Efforts . The
Executive shall devote his full working time, energy and skill
(reasonable absences for vacations and illness excepted), to the
business of the Company in order to perform such duties faithfully
and diligently; provided , however , that
notwithstanding any provision in this Agreement to the contrary,
the Executive shall be permitted to serve as a member of the boards
of directors of non-profit organizations, so long as such
memberships or activities do not unreasonably interfere with the
performance of his duties hereunder. The Executive shall also be
permitted to serve as a member of the boards of directors of other
for-profit organizations, so long as such memberships or activities
do not interfere with the performance of the Executive’s
duties hereunder, and so long as the Board of Directors approves of
such memberships, such approval not to be unreasonably
withheld.
4. Compensation and Benefits .
(a) Salary . The Company shall pay the
Executive a minimum annual base salary at the annualized rate of
$100,000.00 (the "Base Salary"), payable in installments in
accordance with the Company’s normal payroll schedule but no
less often than monthly. Such salary shall be reviewed annually and
subject to increase as determined by the Board or a Compensation
Committee thereof its sole discretion.
(b) Bonus . The Executive may be eligible
for bonuses during the term of his employment. Bonuses, if any,
shall be determined by the Board in its sole discretion.
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(c) Fringe Benefits. The Executive shall
be entitled to participate in all benefit programs that the Company
establishes and makes available to its employees, if any, to the
extent that the Executive’s position, tenure, salary, age,
health and other qualifications make him eligible to participate.
The Company may alter, modify, add to or delete its benefit plans
at any time as the Company or its Board may determine, in its sole
judgment, to be appropriate.
(d) Paid Time Off . The Executive shall be
eligible to accrue paid time off pursuant to the Company’s
normal policies and procedures governing vacation time or other
paid time off.
(e) Reimbursement of Expenses . The
Company shall reimburse the Executive for all necessary travel,
entertainment and other business expenses incurred or paid by the
Executive in connection with, or related to, the performance of his
duties, responsibilities or services under this Agreement, upon
presentation by the Executive of reasonable documentation, expense
statements, vouchers and/or such other supporting information as
the Company may request, in accordance with the Company’s
reimbursement policies, as such may be adopted or amended from time
to time.
(f) Deductions . The Company shall deduct
from any pay to the Executive all taxes or other withholdings
required by law or otherwise properly authorized by the
Executive.
5. Termination . The Term of this
Agreement shall terminate upon the occurrence of any of the
following:
(a) Expiration of the Term in accordance with
Section 1, after a party has given notice of its intent not to
renew the Agreement;
(b) At the election of the Company, for Cause,
upon written notice by the Company to the Executive. For the
purposes of this Agreement, "Cause" for termination shall
be
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deemed to exist upon: (i) a finding by the
Company of failure of the Executive to perform his assigned duties
for the Company, to adhere to the terms of this Agreement, or to
follow Company policies and procedures; (ii) the Executive’s
commission of dishonesty, gross negligence or misconduct, in
connection with the Executive’s responsibilities in his
position with the Company; (iii) the Executive’s commission
of any act or conduct that subjects the Company to public
disrespect or ridicule or injures the reputation of the Company; or
(iv) the conviction of the Executive of, or the entry of a pleading
of guilty or nolo contendere by the Executive to, any crime
involving moral turpitude or any felony;
(c) Upon the death or disability of the
Executive. As used in this Agreement, the term "disability" shall
mean the inability of the Executive with reasonable accommodation
as may be required by State or Federal law, due to a physical or
mental disability, for a period of one hundred eighty (180) days,
whether or not consecutive, during any 360-day period to perform
the services contemplated under this Agreement. A determination of
disability shall be made by a physician satisfactory to both the
Executive and the Company, provided that if the
Executive and the Company do not agree on a physician, the
Executive and the Company shall each select a physician and these
two together shall select a third physician, whose determination as
to disability shall be binding on all parties.
(d) At the election of the Executive, without
Good Reason, upon not less than thirty (30) days’ prior
written notice of termination;
(e) At the election of the Executive, for Good
Reason, upon thirty (30) days written notice by the Executive to
the Company. For the purposes of this Agreement, "Good Reason"
shall be deemed to exist upon a determination by the Executive,
without the Executive’s consent, the Company:
(i) fails to maintain the Executive in a position
commensurate with that referred to in Section 2 of this
Agreement;
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(ii) fails to pay the salary or provide the
benefits stated in section 4 of this Agreement;
(iii) requires the Executive to relocate his
office (reasonable travel excluded) more than twenty-five miles
from Brooklyn, New York;
(f) At the election of the Company, without
cause, immediately upon written notice by the Company to the
Executive.
6. Effect of Termination . Upon
termination of the Agreement, the only remuneration to which the
Executive will be entitled shall be as follows:
(a) For Cause or at Election of the Executive
without Good Reason . In the event the Executive’s
employment is terminated for Cause pursuant to Section 5(b), or at
the election of the Executive without Good Reason pursu
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