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
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