Exhibit 10.28
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is made and deemed
effective as of February 1ST ,2006 by and between FTS GROUP, INC., a NEVADA
corporation ("FTS"), on one side, and David R. Rasmussen ("Executive"), on the
other side, with reference to the herein recitals, terms and conditions.
RECITALS
WHEREAS, FTS recognizes the experience and knowledge of Executive in
matters relating to FTS' future business operations relating to the
acquisition of See World Satellite and future acquisitions currently
contemplated, FTS recognizes that it is in the best interests of FTS to
retain the services of Executive;
WHEREAS, Executive is will acquire 1,500,000 million restricted shares of
FTS' common stock and have the opportunity to acquire additional shares based on
performance Executive may thereby gain a significant equity position thereby;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, it is hereby agreed as follows:
AGREEMENT
Employment.
FTS hereby employs Executive as Chief Executive Officer of its wholly
owned Subsidiary See World Satellite, Inc. and Chief Operating Officer of
FTS Group, Inc., and Executive hereby accepts employment by FTS in
accordance with the terms and conditions set forth in this Agreement.
Term.
Executive's initial term of employment and the services to be provided
hereunder shall commence on February 1, 2006 and continue for a period of
three (3) years from such date (the "Initial Term"), subject to earlier
termination as hereinafter provided.
Compensation.
FTS shall pay Executive the following aggregate compensation for all
services rendered by him to FTS under this Agreement:
3.1 Base Salary.
FTS shall pay Executive a base salary during the term of this Agreement
commencing at the rate of one hundred fifty thousand dollars ($150,000)
per annum (the "Base Salary"). The Base Salary shall be payable in
arrears, in substantially equal monthly installments or more frequently in
accordance with the policies of FTS. FTS shall review Executive's base
salary annually with Executive for the purpose of determining a reasonable
increase based on Executive's service and performance, taking into
consideration a good-faith assessment of any other incentive and/or bonus
plans to which Executive may be a party. Such review shall be in
accordance with FTS `s policies and practices with other executives in
similar positions with FTS and its subsidiaries, if any. Notwithstanding
the foregoing, any increase in Executive's Base Salary shall be determined
by FTS at its sole discretion.
3.2 Bonus.
FTS shall pay Executive an annual bonus (the "Annual Bonus") based on the
schedule outlined below:
Year EBITDA Target Cash Bonus Revenue Target Stock Bonus
2006 $2 Million $100,000 $9 million 500,000 Shares
2007 $3 Million $150,000 $12 Million 750,000 Shares
2008 $4 Million $200,000 $15 Million 1,000,000 Shares
3.3 Payment of Bonus.
Executive's Bonus for the year end shall be determined within 5 days of
FTS' annual filings with the Securities and Exchange Commission. FTS shall
cause and arrange to provide Executive with an annual statement showing
the manner in which the Quarterly and Annual Bonus was calculated.
3.4 Other Benefits.
Executive shall be entitled to life and medical insurance programs carried
by FTS. Executive shall also be entitled to participate in any management
compensation and benefit program on a basis similar to that which is made
available to other members of FTS `s management team operating in a
similar capacity as the Executive.
3.5 Stock.
FTS shall deliver to Executive, upon execution of this Agreement a stock
certificate for one million five hundred thousand shares (1,500,000) of
its restricted common stock.
Duties of Executive.
4.1 Business Operations.
Subject to the oversight and direction of the FTS `s board of directors,
Executive shall be responsible for managing all aspects of FTS' subsidiary
Companies day to day operations and business development affairs including
budgeting, hiring and firing of employees and all other normal course of
business activities required to operate FTS' subsidiaries.
4.2 Additions and Changes.
Executive shall perform such reasonable additional work as may be required
by FTS from time to time under the terms and conditions and according to
the directions, instructions and control of FTS `s board of directors.
4.3 Best Efforts.
Executive shall devote his full time, best skill, effort and attention to
his duties set forth herein and to further enhance and develop FTS'
subsidiary Companies business affairs, interests and welfare. Executive
shall be entitled to perform his duties from any location he desires so
long as the operating requirements of the subsidiary Companies are fully
attended to.
4.4 Policies.
Executive shall adhere to the employment policies of FTS in effect from
time to time. References to the policies or practices of FTS shall mean
its policies or practices of which Executive has notice as in effect and
modified from time to time.
4.5 Other Employment.
Executive may not engage in other employment with the prior written
consent of FTS. Further, this provision shall not be construed to prevent
the Executive from personally, and for Executive's own account, owning,
managing, investing or trading in real estate, stocks, bonds, securities,
commodities, or any other forms of investment, so long as such owning,
managing, investing or trading is not in competition with FTS and does not
interfere with the performance of Executive's duties hereunder.
Expenses.
FTS shall reimburse Executive for reasonable and necessary business
expenses in accordance with the expense reimbursement policies and
practices of FTS and in accordance with a predetermined budget to be
approved by the board of directors of FTS.
Fringe Benefits.
FTS shall provide Executive with all fringe benefits regularly provided to
other similarly situated officers, directors of FTS, generally and with
such other fringe benefits as the Executive and FTS shall mutually agree
upon in writing.
7.1 Vacation.
FTS shall provide Executive with three (3) weeks of paid vacation as well
as holidays in accordance with FTS `s policies.
7.2 Insurance.
FTS shall provide Executive with family health insurance including dental
and vision.
7.3 Auto Allowance
FTS will provide executive with a monthly automobile allowance of $500
five hundred per month.
Termination.
8.1 Termination with Cause.
FTS may terminate Executive "with cause" without notice, for reason of
Executive's (i) misappropriation or embezzlement of funds of FTS, (ii)
soliciting a client's or customer's business for personal or competitive
gain, (iv) use or sale of illegal drugs in the work place, or repeated
intoxication from alcohol or controlled substances in the work place, (v)
physical, mental or sexual abuse or harassment of any employee, customer
or prospective client or customer, (vi) criminal negligence or criminal
acts in the work place; (vii) commission of a felony or crime of moral
turpitude, (viii) selling or providing confidential information of FTS to
a competitor, or (ix) theft or destruction of property of FTS. FTS may
terminate Executive "with cause" if, after ten (10) days prior written
notice by FTS to Executive, Executive has failed to cure any of the
following occurrences: (i) violation of FTS policies or procedures, (ii)
breach of any other of the covenants of this Agreement not specifically
set forth in (i) through (viii) above, or (iii) breach of an employee's
customary obligations to the employer. In the event that Executive is
terminated "with cause," Executive shall be entitled to receive a one time
payment of $10,000 (ten thousand dollars) including all accrued and unused
vacation and sick leave as of the date of termination. Executive shall not
be entitled to receive any other amounts or benefits from FTS including
stock warrants, options or other.
8.2 No Termination Without Cause.
FTS may not terminate Executive "without cause." In the event that FTS
terminates Executive "without cause," Executive shall be paid the full
value of this employment agreement including all accrued and unused
vacation and sick leave as of the date of termination in addition to other
legal and equitable remedies available to Executive.
8.3 Termination Due to Executive's Death or Disability.
In the event that this Agreement is terminated due to Executive's death or
disability (as defined below), Executive (or Executive's legal
representatives) shall be paid (i) six (6) months' Base Salary as
severance, (ii) Base Salary through the date of termination, (iii) all
Bonus payments earned through the date of termination or previously
awarded and unpaid and (iv) all accrued and unused vacation and sick leave
as of the date of termination. For purposes of this Agreement, the term
"Disability" shall mean the mental and physical inability to perform
satisfactorily Executive's regular full time duties - with or without a
reasonable accommodation - as determined by a physician chosen by mutual
agreement of a physician selected by Executive and a physician selected by
FTS, provided, however, that any Disability which continues for thirty
(30) days (whether or not consecutive) in any eighteen (18) month period
shall be deemed a Disability.
Indemnification.
9.1 Definition.
As used in this provision, "Damages" means all claims, damages,
liabilities, losses, judgments, settlements, and expenses, including,
without limitation, all reasonable fees and disbursements of counsel
incident to the investigation or defense of any claim or proceeding or
threatened claim or proceeding.
9.2 Terms of Indemnification.
FTS agrees to indemnify, defend and hold harmless Executive from all
Damages (i) proximately caused by the fault or negligence of FTS, its
officers, directors, employees or agents; (ii) which relate in any manner
to the terms and obligations of this Agreement; (iii) which relate to any
other failure by FTS to comply with any terms of this Agreement; (iv)
which relate to any failure by FTS to comply with applicable laws and/or
regulations in accordance with this Agreement; and/or (v) resulting from
any breach of any representation, warranty, covenant or promise made by
FTS in this Agreement.
9.3 Notice of Claim.
FTS shall promptly notify Executive in writing of any claim asserted by a
third person that might give rise to any indemnity obligation hereunder.
Failure of any FTS to promptly give such notice shall not relieve that
individual of his indemnification obligations under this Agreement.
Together with or following such notice, FTS shall deliver to Purchaser
copies of all notices and documents received by such party relating to the
asserted claim (including court papers).
9.4 FTS Indemnification.
Executive will indemnify and hold harmless, previous board members and
officers of the corporation from any claim that arises relating to the
business activities of FTS or its subsidiaries.
Miscellaneous.
12.1 Survival of Representations and Warranties.
The representations and warranties of the parties including
indemnification obligations contained herein shall survive following the
termination of Executive's employment with FTS.
12.2 Waivers.
No action taken pursuant to this Agreement, including any investigation by
or on behalf of any party shall be deemed to constitute a waiver by the
party taking such action or compliance with any representation, warranty,
covenant or agreement contained herein, therein and in any documents
delivered in connection herewith or therewith. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach.
12.3 Notices.
All notices, requests, demands and other communications, which are
required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered or mailed, first
class mail, postage prepaid:
To FTS:
Attn: Mr. Scott Gallagher
C/O Gibson & Mayer
301 Oxford Valley Rd.
Suite 1202
Yardley, Pa 19067
To Executive:
Attn: David R. Rasmussen
12.4 Merger and Integration.
This Agreement contains the entire understanding of the parties. There are
no representations, covenants or understandings other than those, either
express, implied or referred to herein. Each party acknowledges that there
are no conditions to this agreement other than those expressed or referred
to herein. Each party further acknowledges that no other party or any
agent or attorney of any other party has made any promise, representation
or warranty whatsoever, express or implied or statutory, not contained or
referred to herein, concerning the subject matter hereof, to induce him to
execute this Agreement, and he acknowledges that he has not executed this
Agreement in reliance on any such promise, representation or warranty not
specifically contained or referred to herein.
12.5 Sections and Other Headings.
The section and other headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
12.6 Governing Law.
This Agreement, and all transactions contemplated hereby, shall be
governed by, construed and enforced in accordance with the laws of the
State of Nevada. The parties herein submit to personal jurisdiction and
venue of a court of subject matter jurisdiction which is appropriate for
Tampa, Florida.
12.7 Attorney's Fees and Court Costs.
In the event that litigation results from or arises out of this Agreement
or the performance thereof, the parties agree to reimburse the prevailing
party's reasonable attorney's fees, court costs, and all other expenses,
whether or not taxable by the court as costs, in addition to any other
relief to which, the prevailing party may be entitled.
12.8 Contractual Procedures.
Unless specifically disallowed by law, should litigation arise hereunder,
service of process therefore, may be obtained through certified mail,
return receipt requested; the parties hereto waiving any and all rights
they may have to object to the method by which service was perfected.
12.9 Partial Invalidity.
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining
provisions will nevertheless continue in full force without being impaired
or invalidated in any way.
12.10 Further Assurances.
The parties agree to take all further actions, including execution of
documents, which are reasonably necessary to effectuate the transaction
contemplated by this Agreement.
12.11 Binding on Successors.
This Agreement and covenants and conditions herein contained shall apply
to, be binding upon and inure to the benefit of the respective heirs,
administrators, executors, legal representatives, assignees, successors
and agents of the parties hereto.
12.12 Specific Performance.
The parties agree that remedies, at least for any breach or threat of
breach of this Agreement, may be inadequate and that, in the event of any
such breach or threat of breach, the non-breaching party will be entitled,
in addition to all other rights and remedies otherwise available at law or
in equity, to the equitable remedy of injunctive relief to enforce the
provisions of this Agreement.
12.13 Joint Preparation.
This Agreement is to be deemed to have been jointly prepared by the
parties hereto and any uncertainty and ambiguity existing herein shall not
be interpreted against any party hereto, but according to the application
of the rules of interpretation of contracts, if any such uncertainty or
ambiguity exists.
12.14 Counterparts.
This Agreement can be executed in one or more counterparts and the
counterparts signed in the aggregate shall constitute a single, original
instrument. A facsimile/photocopy of this Agreement may be used in lieu of
the original for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement (consisting
of 7 pages) so that it is deemed effective as of the day and year first written
above.
FTS Group, Inc. David R. Rasmussen (Executive)
By: /s/ Scott Gallagher By: /s/ David R. Rasmussen
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Scott Gallagher David Rasmussen
Chief Executive Officer Chief Operating Officer
Dated: February 1, 2006
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