EMPLOYMENT AGREEMENT FOR JOHN PACE
THIS EMPLOYMENT AGREEMENT is made and entered into this ______ day of
May, 2000, between the SmithAgency.com, a Florida Corporation (wholly owned
subsidiary of QUIKBIZ INTERNET GROUP, INC., ("QBIZ") a public traded Nevada
corporation (hereinafter "Employer" or "SMITH"), and JOHN PACE (hereinafter
"PACE" or "EMPLOYEE").
WITNESSETH
WHEREAS, QBIZ, is a Nevada corporation in good standing and is
purchasing all of the stock of Mason Strategic Communications, Inc., a Florida
corporation (hereinafter "MSC"), operated as a division of SmithAgency.com,
Inc.;
WHEREAS, concurrently with the execution of this Agreement, QBIZ has
acquired the business and substantially all or all of the assets of MSC.;
WHEREAS, the EMPLOYEE is a major shareholder of MSC and immediately
prior to the execution of this Agreement the EMPLOYEE was employed by and was a
key executive of MSC;
WHEREAS, MSC, as a division of SmithAgency.com, Inc., and SMITH wish to
employ EMPLOYEE, and EMPLOYEE wishes to be employed by MSC and SMITH, in
accordance with the provisions of this Agreement;
WHEREAS, MSC shall operate under the employment policies and procedures
of SMITH;
WHEREAS, MSC is engaged in the public relations and marketing business
and maintains a business in the city of Fort Lauderdale, County of Broward,
State of Florida;
WHEREAS, it is the intent of MSC and SMITH to hire EMPLOYEE based on
his integrity and requisite qualifications to act in an executive management
function, and it is the intent of EMPLOYEE to fulfill the EMPLOYER'S intent and
be compensated for such employment;
NOW, THEREFORE, in consideration of the foregoing, the parties agree
with each other as follows:
1. Employment and Duties. MSC and SMITH hereby employ EMPLOYEE, and
EMPLOYEE accepts such employment, as President of MSC. EMPLOYEE agrees to devote
EMPLOYEE's best efforts and full time during MSC's usual business hours to the
business of MSC and conduct the business and affairs of MSC to the best of
EMPLOYEE's ability, and that EMPLOYEE will adhere to the reasonable business,
management, and other policies established from time to time and will perform
such other services as requested by the President of SMITH. The EMPLOYEE will
render services in such executive, supervisory and general administrative
capacities as the President of SMITH shall from time to time determine.
Notwithstanding the generality of the foregoing, it shall be the responsibility
of EMPLOYEE to oversee MSC's facilities and operations on a day-to-day basis;
seek business opportunities and strategic alliance with various companies and
organizations; and the responsibility for all contractual obligations and the
performance of such other tasks as set forth by the President of SMITH. The
President of SMITH or his designated representative shall not reduce or diminish
the scope or title of EMPLOYEE's employment during the term of this Agreement.
EMPLOYEE shall have full control over all variables that impact the net profit
of MSC, a division of SMITH, subject to the final approval of SMITH.
Exclusivity- The EMPLOYEE will devote all of his working time to performing his
duties under this Agreement, and during his employment with MSC and SMITH the
EMPLOYEE will not (i) act for his own account in any manner which is competitive
with any of the business of MSC or SMITH, or which would interfere with the
performance of his duties under this Agreement, or (ii) work in the day to day
activities of any other corporation or other entity (iii)invest or have any
financial interest, direct or indirect, in any business competitive with any of
the business of SMITH or MSC without the express permission of the President of
SMITH; provided, however, that notwithstanding the foregoing, the EMPLOYEE may
own up to 1% of the outstanding equity securities of any Company engaged in any
such competitive business whose shares are listed on a national securities
exchange or regularly quoted in an over-the-counter market by one or more
members of a national or an affiliated securities association. The EMPLOYEE will
be deemed to have an indirect financial interest in any business in which any of
the following has any financial interest: The EMPLOYEE'S spouse; any lineal
descendent or ancestor of the EMPLOYEE; any brother or sister of the EMPLOYEE;
and any child of any such brother or sister.
2. Salary and Term. MSC shall pay to EMPLOYEE for all of EMPLOYEE's
services the sum of Ninety-Five Thousand and 00/100 Dollars ($95,000.00) per
year, payable in accordance with the general practice of SMITH, hereinafter
referred to as EMPLOYEE's "salary." Termination of employment "for cause", as
"for cause" is defined in Paragraph 8, shall terminate the salary of EMPLOYEE as
of the date of such termination. The term of EMPLOYEE's employment under this
Agreement shall be for three (3) years from the date this Agreement is executed.
This Agreement shall be automatically renewed for a period of one (1) year under
mutually agreeable terms, unless either party notifies the other in writing of
its intent not to renew this Agreement at least 60 days prior to the end of any
such employment. The annual salary may not be decreased except upon written
agreement of the parties.
3. Reimbursement of Expenses. EMPLOYEE shall be reimbursed for all of
EMPLOYEE's proper, normal and reasonable expenses of travel, entertainment and
other activities incurred on business on behalf of MSC, subject to reasonable
documentation of such expenses by EMPLOYEE. The EMPLOYEE will not incur any
unusual or major expenditure without the President of SMITH's prior approval.
4. Vacation, Insurance and Other Company Benefits.
(a) Vacation. EMPLOYEE shall be entitled to three (3) weeks
annual paid vacation. If this Agreement terminates prior to the end of any year,
EMPLOYEE's vacation time for such year shall be prorated based upon the amount
of time during such year that EMPLOYEE was employed by MSC. EMPLOYEE may take
his vacation at such times as EMPLOYEE selects, with the prior approval of the
President of SMITH. EMPLOYEE; however shall not be able to take more than two
weeks vacation in any given 30 day period. Vacation time must be used during
each calendar year; if it is not used, it will be forfeited. Other than set
forth herein, no payment will be made for unused vacation time.
(b) Insurance. EMPLOYEE shall receive for EMPLOYEE, such
medical insurance coverage that SMITH provides from time to time to its
President, this shall include dental insurance, all without any waiting period.
(c) Other Benefits. EMPLOYEE may participate in any profit
sharing, group health, disability or other benefit plans, which SMITH maintains
from time to time for its employees, provided EMPLOYEE meets the various
eligibility requirements. EMPLOYEE shall be entitled to holidays as follows: New
Year's Day, Martin Luther King Day, Lincoln's Birthday, Washington's Birthday,
Good Friday, Memorial Day, July 4th, Labor Day, Thanksgiving Day and the
following Friday, and Christmas Day. (In the event any of these holidays shall
fall on a Saturday or Sunday, the following Monday shall be deemed as a
holiday.) EMPLOYEE will also be entitled to one (1) week annual paid sick leave.
EMPLOYEE shall be reimbursed in the amount of $450.00 per month for his current
vehicle, in addition to monthly insurance and gas expenses incurred in the
ordinary course of business. EMPLOYEE shall also be entitled to a cell phone and
all business related phone expenses. In the event an executive committee is
formed at SMITH, EMPLOYEE shall be included on the committee.
5. Additional Compensation. In addition to the salary set forth in
Paragraph 2 and subject to the provisions of Paragraph 8, MSC agrees to pay
EMPLOYEE additional compensation, hereinafter called "additional compensation",
pursuant to an incentive or bonus program. MSC shall compensate EMPLOYEE with a
performance incentive bonus equal to 5% of the net profits of MSC as reported by
MSC's CPA on its audited financial statement at the end of each fiscal year.
Excluded from net profits for the purpose of calculating the 5% will be any
charges imposed by SMITH upon MSC which are not incurred expenses in the
ordinary course of business or supported by sound business judgment. EMPLOYEE
may receive this bonus in cash and/or restricted Stock with demand registration
within 30 days, to be at SMITH's discretion. The additional compensation will be
given upon the filing of the year-end 10K unless otherwise approved by MSC. The
additional compensation will be paid within ten (10) days of the filing of the
year-end 10K. In the event an amended 10K is filed for the fiscal year, EMPLOYEE
shall be entitled to an increase in the additional compensation. However, in the
event the amended 10K shows a decrease in the net profits from the original 10K,
then EMPLOYEE shall be required to reimburse the difference to MSC.
Notwithstanding the above, if EMPLOYEE is not an EMPLOYEE of MSC or SMITH on the
date a payment of additional compensation is payable, EMPLOYEE shall still be
entitled to any payment, as prorated. There shall be a cap on the total amount
of Performance Incentive Bonus paid to EMPLOYEE. In no event shall the EMPLOYEE
receive more than $250,000.00 for the Performance Incentive Bonus during any
fiscal year (prorated if Employee is only employed for part of that fiscal
year).
6. Stocks and Stock Option. SMITH shall issue to EMPLOYEE, within ten
(10) days after the execution of this Agreement, $87,500 worth of restricted
shares of QBIZ Common Stock, with the number of shares to be determined as
follows: the total number of shares equaling $87,500.00 which is determined by
the average bid and ask price for five (5) trading days prior to closing, which
shall terminate on May 31st, 2000. QBIZ agrees to register the aforesaid
restricted shares for resale and will file the registration statement for resale
within 30 days after the execution of this Agreement. Further, QBIZ agrees to
use its best efforts to have such transfer declared effective by the SEC.
On the anniversary date of EMPLOYEE's employment, QBIZ will grant to
EMPLOYEE 25,000 shares of Common Stock Options from QuikBIZ Internet Group, Inc.
These options will be priced at the average of five (5) prior business days of
the closing price of the stock.
7. Death or Disability. Notwithstanding anything in this Agreement to
the contrary, Employer has the option to terminate this Agreement in the event
that during its term EMPLOYEE shall become permanently disabled as the term
permanently disabled is defined below. Such option shall be exercised by
Employer giving notice to EMPLOYEE by registered mail. Upon the giving of such
notice, EMPLOYEE's employment will come to an end on the last day of the month
in which the notice is mailed, with the same force and effect as if that day
were originally set forth as the termination date. For the purposes of the
Agreement, EMPLOYEE shall be deemed to have become permanently disabled if,
during any year of the term of this Agreement, because of ill health, physical
or mental disability, or for other causes beyond his control, he shall have been
continuously unable or unwilling or have failed to perform his duties under this
contract for sixty (60) days, or if, during any year of the term of this
Agreement, he shall have been unable or unwilling or have failed to perform his
duties for a total period of ninety (90) days, either consecutive or not. For
the purposes of this Agreement, the term "any year of the term of this
Agreement" is defined to mean any period of twelve (12) consecutive months. For
any term of illness, disability, or accident less than those set forth above,
the EMPLOYEE'S salary and other rights and benefits under this Agreement will
not be suspended or terminated because the EMPLOYEE is absent from work due to
such illness, accident, or other disability, but MSC may deduct from the
EMPLOYEE's salary any payment received by the EMPLOYEE under any disability
insurance which the MSC or Smith may provide the EMPLOYEE.
8. Termination or Resignation.
(a) Without Cause. In the event of the termination of EMPLOYEE
by MSC for reasons other than cause, EMPLOYEE shall receive a portion of his
salary depending on the length of service with MSC. In the event EMPLOYEE is
terminated without cause during the first year, he shall receive twelve (12)
months salary, during the second year, he shall receive nine (9) months of
salary and during the third year he shall receive six (6) months of salary. This
shall be payable to EMPLOYEE in a lump sum within 30 days of termination or
monthly payment(s) at SMITH's option. The EMPLOYEE shall have the right to
exercise any vested stock options upon his termination without cause and said
options shall remain the property of the EMPLOYEE. In the event that the
EMPLOYEE is terminated without cause, then the NONCOMPETE/NON DISCLOSURE
AGREEMENT shall be null and void and EMPLOYEE shall have the right to contact
clients of MSC.
(b) With Cause. In the event of the termination of EMPLOYEE by
MSC or SMITH for cause, MSC shall not be responsible for payment of any further
salary or additional compensation to EMPLOYEE. The EMPLOYEE may be terminated
for cause. For the purpose of this Section, "cause" shall mean (i) material
breach of this Agreement by EMPLOYEE, (material breach shall be defined as a
violation of the contract which is substantial and significant and which usually
excuses the non-breaching party from further performance under the contract);
(ii) the commission or participation by the EMPLOYEE in an injurious act of
fraud or dishonesty against the Employer; (iii) the commission or participation
by the EMPLOYEE in any other injurious act or omission wantonly, willfully,
recklessly or in a manner which was grossly negligent against the Employer; (iv)
EMPLOYEE's engaging in a criminal enterprise involving moral turpitude; or (v)
EMPLOYEE's engaging through act or omission, in conduct amounting to personal
dishonesty, incompetence, breach of fiduciary duty or willful violation of any
law, rule, regulation or order of court or direction of the Employer that has an
adverse effect on Employer's business.
(c) Death. Notwithstanding anything to the contrary contained
in this Agreement, the Employer may terminate EMPLOYEE's employment if EMPLOYEE
dies, whereupon, all further EMPLOYEE compensation, including stock options,
under this Agreement shall cease.
(d) Resignation. In the event of EMPLOYEE's resignation, MSC shall
not be responsible for payment of any further salary or additional compensation
to EMPLOYEE.
(e) General. Upon termination of employment (for whatever
reason), EMPLOYEE shall be entitled to his accrued salary and benefits earned
through the date of termination, less any prepaid sums or other rights of setoff
belonging to Employer at the date of termination. Employer shall be released
from further liability to EMPLOYEE for salary, additional compensation,
non-accountable expense allowance, insurance or any other compensation or
benefits provided for in this Agreement, unless Employer improperly terminates
EMPLOYEE'S employment, in which event EMPLOYEE shall be entitled to the payments
set forth in 8(a) above.
(f) Termination by Employer. In the event that during the term
of this Agreement, MSC, or any designated successor of MSC ceases to exist, or
the Board of Directors decides that MSC or any designated successor of MSC shall
no longer operate, or a material breach of this agreement by QBIZ or any of its
subsidiaries, or MSC fails on two occasions to pay the salary of EMPLOYEE
pursuant to its standard payroll practices, then the Non-Compete/Non-Disclosure
Agreement shall be null and void and EMPLOYEE shall have the right to contact
clients of MSC.
9. Employee Covenants. During the term of this Agreement and for a
period of one year thereafter, in consideration of the salary provided in
Paragraph 2, EMPLOYEE agrees to enter into the Non- Compete/Non-Disclosure
Agreement which shall be incorporated and attached as Exhibit "A" to this
Employment Agreement. In the event this Agreement is not renewed for one (1)
additional year, under mutually agreeable terms, then the
Non-Compete/Non-Disclosure Agreement shall be null and void upon the termination
of this Agreement.
10. Property. Upon termination of EMPLOYEE's employment with MSC,
EMPLOYEE will turn over immediately to MSC all business correspondence, letters,
papers, reports, files, customer lists and any other writing or records, in any
form whatsoever, in the possession or control of EMPLOYEE, which relate to the
business of MSC, all of which writings and records are and will continue to be
the sole and exclusive property of MSC; and EMPLOYEE shall retain no copies,
duplicates, tapes or any other form of republication of any of such writings or
records.
11. Photographs, Likeness. MSC is granted the sole and exclusive right
during the term of his employment to make use of and to permit others to make
use of the EMPLOYEE's name, pictures, photographs, and other likeness, and
voice, in connection with the advertising, publicity, and exploitation of any
product, or service contemplated by this Agreement. EMPLOYEE does, by this
Agreement, authorize the use by MSC of any pictures of EMPLOYEE taken, for use
by MSC in any commercial manner MSC may choose, without any compensation payable
to EMPLOYEE.
12 Exclusive Agreement. This Agreement and any other specifically
referenced Agreements (the Non-Compete and Non-Disclosure Agreement) contain the
sole and entire Agreement between the parties and shall supercede any and all
other Agreements between the parties. It is agreed that no waiver or
modification of this Agreement or of any covenant, condition, or limitation
contained in it shall be valid unless it is in writing and duly executed by the
party to be charged with it, and that no evidence of any waiver or modification
shall be offered or received in evidence in any proceeding, arbitration, or
litigation between the parties arising out of or affecting this Agreement, or
the rights or obligations of any party under it, unless such waiver or
modification is in writing, duly executed as above.
13 Venue. The parties agree that it is their intention and covenant
that this Agreement and performance under it and all suits relating to it be
construed in accordance with and under and pursuant to the laws of the State of
Florida, with venue for any lawsuit situate in Broward County. In the event of
any dispute between the parties in any way related to this Agreement, the
prevailing party shall be awarded its reasonable attorneys' fees and costs
through all trial and appellate levels.
14 Assignment. This agreement shall be binding on and inure to the
benefit of the respective parties and their executors, administrators, heirs,
personal representatives, successors and assigns. The EMPLOYEE acknowledges that
his services are unique and personal. Accordingly, the EMPLOYEE may not assign
his rights or delegate his duties or obligations under this Agreement. The
Employer's rights and obligations under this employment agreement shall inure to
the benefit of and shall be binding upon the Employer's successors and assigns.
15 Severability. Should any portion of this Agreement be found to be
unenforceable at law or in equity, the remaining provisions of this Agreement
are to remain in full force and effect.
16 Notice. Unless otherwise specifically provided herein, all notices
to be given hereunder shall be in writing and sent to the parties by certified
mail, return receipt requested, which shall be addressed to each party's
respective address set forth herein or to such other address as such party shall
give to the other party hereto by notice given in accordance with is Section and
except as otherwise provided in this agreement, shall be effective when
deposited in the United States mail, properly addressed and postage prepaid. If
such notice is sent other than by the United States mail, such notice shall be
effective when actually received by the party being noticed.
17. Inventions, etc. EMPLOYEE will disclose promptly to Employer and
does assign and agrees to assign to Employer, without additional compensation to
EMPLOYEE, all of EMPLOYEE's right, title, and interest in and to any and all
inventions, intellectual property, discoveries, improvements, modifications,
extension or advancements made, conceived, devised, developed or perfected by
EMPLOYEE during the term of EMPLOYEE's employment, whether on duty or off, and
in and to all proprietary rights therein or based thereon, which (i) uses
equipment, supplies, facilities or trade secrets of Employer, or (ii) uses the
time for which EMPLOYEE was compensated by Employer, or (iii) which relates to
the business of Employer or to its actual or demonstrable anticipated research
and development, or (iv) that results, in whole or in part, from work performed
by EMPLOYEE for Employer and its assigns. The EMPLOYEE agrees to sign all
instruments necessary for filing and prosecution of any application for patent,
trademark or copyright of the United States or any foreign country or the
renewing of any of the aforesaid rights or applications, and to sign all
instruments necessary for the filing and prosecution of any continued,
divisional and reissue applications which may be necessary to render the
aforesaid intellectual property effective and in full force.
EMPLOYEE further agrees that SMITH and MSC will be entitled to and will
own all the results and proceeds of the EMPLOYEE's services under this
Agreement, including without limitation, all rights throughout the world to any
copyright, patent, trademark or other right and to all ideas, inventions,
products, programs, procedures, formats and other materials of any kind created
or developed or worked on by the EMPLOYEE during his employment with MSC and
SMITH.; the same shall be the sole and exclusive property of MSC and SMITH; and
EMPLOYEE will not have any right, title, or interest of any nature or kind
therein. Without limiting the foregoing, it will be presumed that any copyright,
patent, trademark, or other right any idea, product, program, procedure, or
forma or material created, developed or worked on by the EMPLOYEE at any time
during the term of his employment will be a result or proceed of the EMPLOYEE'S
services under this Agreement. The EMPLOYEE will take such action and execute
such documents as MSC or SMITH may request to warrant and confirm MSC and
SMITH'S title and ownership of all such results and proceeds and to transfer and
assign to MSC and SMITH any rights which EMPLOYEE may have therein.
The EMPLOYEE's right to any compensation or other amounts under this
Agreement will not constitute a lien on any results or proceeds of the
EMPLOYEE's services under this Agreement.
MSC and SMITH will also own, and promptly on receipt thereof the
EMPLOYEE will pay to these companies, any monies and other proceeds to which the
EMPLOYEE is entitled on account of rights pertaining to any of the MSC's
products or services which the EMPLOYEE acquired before the date of this
Agreement.
MSC and SMITH shall be entitled, without posting bond or other
security, to seek injunctive and other equitable relief to enforce the
provisions of this Section 18; and no action for any such relief shall be deemed
to waive the right of MSC and SMITH to an action for damages.
18. Affidavit. Fearing the EMPLOYEE to be in violation of this
Agreement, Employer may request, in writing, that EMPLOYEE provide Employer with
an affidavit specifically denying each and every feared violation alleged in
Employer's written request and do so within fifteen (15) days of the date of
Employer's written request ("Adequate Assurances"). EMPLOYEE's failure to
appropriately respond to or deny any such allegation within the ten-day period
shall be deemed an admission of that allegation.
19. Uniqueness of Service. The EMPLOYEE acknowledges that (i) SMITH
acquired the business and assets of MSC in reliance on the EMPLOYEE entering
into this Agreement, and (ii) that his services hereunder are of a special,
unique, unusual, extraordinary and intellectual character, the loss of which
cannot be reasonably or adequately compensated by damages in an action at law.
Accordingly, MSC and SMITH will be entitled, without posting bond or other
security, to injunctive and other equitable relief to prevent or cure any breach
or threatened breach of this Agreement by the EMPLOYEE, but no action for any
such relief shall be deemed to waive the right of the aforesaid companies to
seek an action for damages.
20. NEGATIVE COVENANTS
The EMPLOYEE will not, during or after the term of this
Agreement, disclose to any third party or use or take any personal advantage of
any confidential information or any trade secret of any kind or nature obtained
by his during the term hereof or during his employment, except as allowed for
herein.
The EMPLOYEE acknowledges that he has entered into a
NON-COMPETE/NON-DISCLOSURE Agreement of even date, the terms of which the
EMPLOYEE agrees to abide by.
21. WAIVER No failure by SMITH or MSC to insist upon the strict
performance of any term or condition of this Agreement or to exercise any right
or remedy available to it will constitute a waiver. No waiver of any breach or
default will affect or alter any of the companies' rights, and this Agreement
will continue in full force and effect.
This agreement shall be binding upon the parties and their respective
successors and assigns. MSC or SMITH may, without the EMPLOYEE'S consent,
transfer and assign any of their rights and obligations under this Agreement to
any corporation which, directly or indirectly, controls of is controlled by MSC
or SMITH or is under the common control with SMITH or MSC to any corporation
succeeding to all or a substantial portion of SMITH or MSC's business and
assets, provided that SMITH and MSC shall not be released from any of its
obligations under this Agreement, and provided further that any such transferee
or assignee agrees in writing to assume all the obligations of the respective
companies hereunder. Control means power to elect a majority of the directors or
a corporation or in any other manner to control or determine the management of a
corporation. Except as provided herein, neither MSC or SMITH or EMPLOYEE may,
without the other's prior written consent, transfer or assign any of their
rights or obligations under this Agreement, and any such transfer or assignment
or attempt thereat without such consent shall be null and void.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Employment Agreement as of the day and year first above written.
Smithagency.com, Inc., a Florida Corporation
By: ______________________________
Its: President
WITNESSES: EMPLOYEE:
JOHN PACE