Exhibit 10.10
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (the
“Agreement”), made this 10th day of January, 2005 (the
“Effective Date”) is entered into by IBuyDigital.com,
Inc., a Delaware corporation (the “Company”), and Paul
Peterik (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 Financial 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 (the
“Term”), unless sooner terminated in accordance with
the provisions of Sections 5 and 6.
2. Title; Capacity . The
Executive shall serve as Chief Financial 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
Financial Officer of a company of the size, type and nature of the
Company. The Executive will hold, in addition to the office of
Chief Financial 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.
Notwithstanding the above, the Company agrees that the Executive
shall have the right to provide minor transitional tasks for and
assistance to Integrated Leasing Corp. and services for Greystone
Consulting LLC, provided that such tasks and services do not
interfere with the performance of the Executive’s duties
under this Agreement.
4. Compensation and Benefits
.
(a) Salary . The Company
shall pay the Executive a minimum annual base salary at the
annualized rate of $150,000.00 (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.
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(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. If
during the term of the Executive’s employment, the Company
consummates an initial public offering of its common stock, the
Company shall pay the Executive an additional bonus in the amount
of $18,000, such bonus to be received by the Executive no later
than the fiscal year end.
(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. The Executive
shall also be entitled to an automobile allowance in the amount of
$650 per month.
(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. The Executive shall be entitled to
three weeks of vacation time per year.
(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.
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(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.
(g) Stock Options . Subject
to approval of the Board, the Company will grant, as of the date
(the “Grant Date”) of the closing of the
Company’s initial public offering of its common stock (the
“IPO”), to the Executive a stock option (the
“Option”) under the Company’s 2004 Stock
Incentive Plan (the “2004 Plan”) for the purchase of an
aggregate of 40,000 shares of common stock of the Company. The
Option exercise price shall be the price of the Company’s
common stock at the time of the closing of its IPO. Such option
shall become immediately exercisable as to 100% of the original
number of shares underlying the option on the Grant Date. Such
Option shall be subject to all terms, limitations, restrictions and
termination provisions set forth in the 2004 Plan.
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 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;
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(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;
(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 Brookl
