Exhibit 10.5
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) entered into as of the 5 th day
of May, 2009, between Money4Gold Holdings, Inc., a Delaware
corporation (the “Company”), and Todd Oretsky (the
“Executive”).
WHEREAS, in its business, the Company has
acquired and developed certain trade secrets, including, but not
limited to, proprietary processes, sales methods and techniques,
and other like confidential business and technical information,
including but not limited to, technical information, design
systems, pricing methods, pricing rates or discounts, processes,
procedures, formulas, designs of computer software, or
improvements, or any portion or phase thereof, whether patented, or
not, or unpatentable, that is of any value whatsoever to the
Company, as well as information relating to the Company’s
services, information concerning proposed new services, market
feasibility studies, proposed or existing marketing techniques or
plans (whether developed or produced by the Company or by any other
person or entity for the Company), other Confidential Information,
as defined by Section 8, and information about the Company’s
executives, officers, and directors, which necessarily will be
communicated to the Executive by reason of his employment by the
Company; and
WHEREAS, the Company has strong and
legitimate business interests in preserving and protecting its
investment in the Executive, its trade secrets and Confidential
Information, and its substantial, significant, or key relationships
with vendors, and Customers, as defined below, actual and
prospective; and
WHEREAS, the Company desires to preserve
and protect its legitimate business interests further by
restricting competitive activities of the Executive during the term
of this Agreement and following (for a reasonable time) termination
of this Agreement; and
WHEREAS, the Company desires to employ
the Executive and to ensure the continued availability to the
Company of the Executive’s services, and the Executive is
willing to accept such employment and render such services, all
upon and subject to the terms and conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants set forth in this Agreement, and
intending to be legally bound, the Company and the Executive agree
as follows:
1.
Representations and
Warranties. The
Executive terminates his Employment Agreement with MGE Enterprises
Corporation (“MGE”) effective immediately and
acknowledges that MGE has no liability to the Executive. The
Executive hereby represents and warrants to the Company that he (i)
is not subject to any written non-solicitation or non-competition
agreement affecting his employment with the Company (other than any
prior agreement with the Company), (ii) is not subject to any
written confidentiality or nonuse/nondisclosure agreement affecting
his employment with the Company (other than any prior
agreement with the Company), and (iii) has
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brought to the Company no trade secrets,
confidential business information, documents, or other personal
property of a prior employer.
2.
Term of Employment
.
(a)
Term . The Company hereby employs the Executive, and
the Executive hereby accepts employment with the Company for a
period of three (3) years commencing as of the date of this
Agreement (the “Term”), unless sooner terminated in
accordance with the provisions of Section 6. The Term shall
be automatically renewed for successive one-year terms unless
notice of non-renewal is give by either party at least sixty (60)
days before the end of the Term.
(b)
Continuing Effect
. Notwithstanding any termination
of this Agreement, at the end of the Term or otherwise, the
provisions of Sections 7 and 8 shall remain in full force and
effect and the provisions of Section 8 shall be binding upon the
legal representatives, successors and assigns of the Executive.
3.
Duties .
(a)
General Duties . The Executive shall serve as the Chief Operating
Officer of the Company, with duties and responsibilities that are
customary for such an executive. The Executive shall also perform
services for such subsidiaries of the Company as may be necessary.
The Executive shall use his best efforts to perform his
duties and discharge his responsibilities pursuant to this
Agreement competently, carefully and faithfully. The
Executive shall report to the Chief Executive Officer of the
Company.
(b)
Devotion of Time
. Subject to the last sentence of
this Section 3(b), the Executive shall devote reasonable time,
attention and energies during normal business hours (exclusive of
vacation time referenced in Section 5(a) and of such normal holiday
periods as have been established by the Company) to the affairs of
the Company. The Executive may enter the employ of or serve
as a consultant to, or in any way perform any services with or
without compensation to, any other persons, business, or
organization, without the prior consent of the Board of Directors
of the Company, provided such services do not materially interfere
with the services to be rendered pursuant to this Agreement and do
not violate the provisions of Section 7 below.
Notwithstanding the foregoing, nothing in this Agreement
shall restrict the Executive from devoting time to passive personal
investments, private business affairs, educational and charitable
interests, provided that none of such activities, individually or
in the aggregate, interferes with the performance of his duties and
responsibilities hereunder or conflicts or competes with the
interests of the Company.
(c)
Location of Office
. The Executive’s office shall be
located at the Company’s offices located in Broward
County, which office may be moved to another location in Broward
County, Florida. The Executive’s job responsibilities
shall include reasonable business travel necessary to the
performance of his job.
(d)
Adherence to Inside Information
Policies . The Executive
acknowledges that the Company is publicly-held and, as a result,
has implemented inside information policies designed to preclude
its executives and those of its subsidiaries from violating the
federal
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securities laws by trading on material,
non-public information or passing such information on to others in
breach of any duty owed to the Company, or any third party.
The Executive shall promptly execute any documents generally
distributed by the Company to its employees requiring such
employees to abide by its inside information policies.
4.
Compensation and Expenses
.
(a)
Salary . For the services of the Executive to be
rendered under this Agreement, the Company shall pay the Executive
an annual salary of $200,000 (the “Base Salary”),
payable in installments in accordance with the Company’s
payroll practices. The Base Salary shall increase to
$225,000 per year commencing six months after the date of this
Agreement.
(b)
Discretionary Bonus
. In addition to the Base Salary
set forth in Section 4(a) above, the Executive shall be entitled to
such bonus compensation (in cash, capital stock or other property)
as a majority of the Board of Directors of the Company may
determine from time to time in their sole discretion.
(c)
Expenses . In addition to any compensation received
pursuant to this Section 4, the Company will reimburse or advance
funds to the Executive for all reasonable travel, entertainment and
miscellaneous expenses incurred in connection with the performance
of his duties under this Agreement, provided that the Executive
properly provides a written accounting of such expenses to the
Company in accordance with the Company’s practices.
Such reimbursement or advances will be made in accordance
with policies and procedures of the Company in effect from time to
time relating to reimbursement of, or advances to, executive
officers.
5.
Benefits .
(a)
Vacation . For each 12-month period during the Term, the
Executive shall be entitled to four (4) weeks of vacation without
loss of compensation or other benefits to which he is entitled
under this Agreement, to be taken at such times as the Executive
may select and the affairs of the Company may permit.
Vacation time shall not include sick leave, disability
or holiday periods established by the Company.
(b)
Employee Benefit Programs
. The Executive is entitled to
participate in any pension, 401(k), insurance or other employee
benefit plan that is maintained by the Company for its executives,
including programs of life and medical insurance and reimbursement
of membership fees in professional organizations.
(c)
Directors and Officers
Insurance . The
Executive shall be provided the same directors’ and
officers’ insurance available to all other officers and
directors.
6.
Termination .
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(a)
Death or Disability
. Except as otherwise provided in
this Agreement, this Agreement shall automatically terminate
without act by any party upon the death or disability of the
Executive. For purposes of this Section 6(a),
“disability” shall mean (i) the Executive is
unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment that can
be expected to result in death, or last for a continuous period of
not less than 12 months; (ii) the Executive is, by reason
of any medically determinable physical or mental impairment that
can be expected to result in death, or last for continuous period
of not less than 12 months, receiving income replacement
benefits for a period of not less than three months under an
accident and health plan covering employees of the Company; or
(iii) the Executive is determined to be totally disabled by
the Social Security Administration. Any question as to the
existence of a disability shall be determined by a majority of the
members of the Board of Directors of the Corporation based on
available information (or the Social Security Administration, where
applicable). In the event that the Executive’s employment is
terminated by reason of Executive’s death, the
Executive’s estate shall receive (i) three (3) months’
Base Salary at the then current rate, payable in a lump sum, less
withholding of applicable taxes, and (ii) continued provision for a
period of one (1) year following the Executive’s death of
benefits, except perquisites, under any employee benefit plan
extended from time to time by the Company to its senior executives.
In the event that the Executive’s employment is terminated by
reason of Executive’s disability, the Company shall pay the
following to the Executive: (i) eighteen (18) months’ Base
Salary at the then current rate, to be paid from the date of
termination until paid in full in accordance with the
Company’s usual practices, including the withholding of all
applicable taxes; (ii) continued provision during said eighteen
(18) month period of the benefits, except perquisites, under any
employee benefit plan extended from time to time by the Company to
its senior executives; and (iii) any earned but unpaid bonuses;
provided, however, the Company may credit against such amounts any
proceeds paid to the Executive with respect to any disability
policy maintained for his benefit.
(b)
Termination for Cause or Without Good
Reason. The Company may
terminate the Executive’s employment pursuant to the terms of
this Agreement at any time for Cause (as defined below) by giving
the Executive 30 days prior written notice of termination setting
forth in reasonable detail the basis for such termination.
Such termination shall become effective upon the giving of
such notice. Upon any such termination for Cause, or in the event
the Executive terminates his employment with the Company without
“Good Reason,” as defined below, then the Executive
shall have no right to compensation, or reimbursement under Section
4, or to participate in any Executive benefit programs under
Section 5, except as may otherwise be provided by law, for any
period subsequent to the effective date of termination. For
purposes of this Agreement, “Cause” shall mean: (i) the
Executive shall engage in material, gross and willful misconduct in
connection with his employment duties under this Agreement, and
(ii) the Executive commits is charged or convicted of a felony or
act of dishonesty resulting in material harm to the Company.
(c)
Termination Without Cause, or For Good
Reason.
(i)
The Executive may terminate this
Agreement for Good Reason (as defined below in Section 6(c)(ii)).
In the event the Executive terminates this Agreement for Good
Reason, or the Company terminates the Executive without Cause,
then, in either case, the Company shall pay to the Executive (i)
eighteen (18) months’ Base Salary at the then current rate,
to be paid
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from the date of termination until paid
in full in accordance with the Company’s usual practices,
including the withholding of all applicable taxes;(ii) any accrued
benefits under any employee benefit plan extended to Executive at
the time of its termination, and (iii) payment on a prorated basis
of any bonus or other payments earned in connection with any bonus
plan to which Executive was a participant as of the date of
Executive’s termination of employment.
(ii)
The term “Good Reason” shall
mean the Company materially breaches this Agreement. Prior to the
Executive terminating his employment with the Company for Good
Reason, Executive must provide written notice to the Company that
such Good Reason exists and setting forth, in detail, the grounds
the Executive believes constitutes Good Reason. If the
Company does not cure the condition(s) constituting Good Reason
within thirty (30) days following receipt of such notice, then
Executive’s employment shall be deemed terminated for Good
Reason.
(iii)
Upon expiration of the term of this
Agreement where the Company has offered to renew the term of the
Executive’s employment for an additional one (1) year period
and the Executive chooses not to continue in the employ of the
Company, the Executive shall be entitled to receive only the
accrued but unpaid compensation and vacation pay through the date
of termination and any other benefits accrued to him under any
Benefit Plans outstanding at such time. In the even the
Company tenders Non-Renewal Notice to the Executive, then the
Executive shall be entitled to the same severance benefits as if
the executive’s employment were terminated due to Section
6(c); provided however, if such Non-Renewal Notice was triggered
due to the Company’s statement that the Executive’s
employment was terminated due to Section 6(b) then payment of
severance benefits will be contingent upon a determination as to
whether termination was properly for
“Cause.”
7.
Non-Competition Agreement
.
(a)
Competition with the
Company . Until
termination of his employment and for a period of one year
c
