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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
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