EMPLOYMENT & RETAINER AGREEMENT
This Agreement is entered into on April 24, 2000 by MerchantOnline.com, Inc.
(the "Company"), Tatum CFO Partners, LLP ("Tatum") and Thomas B. Walker, ("the
CFO"), (collectively, the "parties").
WHEREAS, the Company wishes to engage the CFO to provide certain services and
Tatum wishes that the CFO provide such services in return for certain
consideration; the parties after full and careful negotiation agree as follows:
I. SERVICES; FEES; PAYMENTS
A. Beginning on April 24, 2000, (the "Effective Date"), the CFO will perform,
under the title chief financial officer, CFO Services as set forth in
Section II for a total monthly fee of $10,500 (the "Monthly Fee").
B. The CFO will provide CFO Services for five days per week.
C. The Company will pay the CFO directly according to the Company's normal
payroll process a portion of the Monthly equal to $8,750 (the "Salary") and
will pay Tatum the remaining portion of $1,750 ("Retainer Fee").
D. If this Agreement commences or is canceled in the middle of a month, each
portion of the Monthly Fee shall be prorated for that month.
E. The Company also will provide the CFO and Tatum the incentive bonus or
warrants or options set forth in Schedule A.
F. The Company will pay all amounts owed Tatum no later than the 5th day of
the month for which amounts are invoiced.
G. The Company will promptly reimburse the CFO for reasonable travel and
out-of-pocket business expenses.
II. CFO SERVICES
CFO Services are defined as those certain services as specified and directed by
the Company from time to time and which the CFO is able to perform within the
time allotted under this agreement.
III. THE RELATIONSHIP OF THE CFO AND THE COMPANY
A. The Company, Tatum and the CFO agree that the CFO will be an employee of
the Company.
B. As an employee of the Company, the CFO will work under the exclusive
management and authority of the Company.
C. The CFO will serve the Company as an officer of the Company, but only if
the following conditions are met without exception: the CFO is duly elected
as an officer by its Board of Directors; and the CFO has received written
evidence that he or she is covered as an officer by director and officer
insurance maintained by the Company at no additional cost to the CFO or
Tatum.
D. The CFO may sign federal or state securities filings but only if the
following condition is met without exception: the CFO receives written
evidence that he or she in signing such filings is covered by applicable
insurance (whether director and officer insurance or a special policy)
maintained by the Company at no additional cost to the CFO or Tatum.
E. The CFO will be eligible for vacation and holidays consistent with the
Company's policy as it applies to senior management and the CFO will be
exempt from any delay periods required for eligibility.
F. The CFO elects not to participate in the Company's employee retirement plan
or any other employee benefit plan, and waives any coverage that may
otherwise exist. The Company will not include the CFO as participant in any
such plan, unless required to do so by law for plan qualification. However,
notwithstanding the foregoing, the CFO may participate in the Company's
401(k) plan at the Company's option.
G. The CFO waives any past or present claim it may have against the Company
for any discrimination.
IV. THE RELATIONSHIP OF TATUM AND THE COMPANY
The Company, Tatum and the CFO agree that for purposes of this Agreement,
Tatum's relationship with the Company is to make the CFO available to the
Company to provide CFO services. However, the Company is solely responsible for
its evaluation, management and use of the CFO and the CFO Services.
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V. THE RELATIONSHIP OF TATUM AND THE CFO
The Company, Tatum and the CFO agree that for purposes of this Agreement,
Tatum's relationship with the CFO is to make available to the CFO certain
resources of Tatum. These resources are not warranted or guaranteed in any way
and the Company is solely responsible for its evaluation, management and use of
these resources.
VI. STANDARD DISCLAIMERS
A. Tatum will not be liable for any non-compliance with federal, state or
local laws or regulations.
B. The Company agrees that reports, projections and/or forecasts can be
prepared only at the Company's direction and reflect the judgment of the
Company. Tatum makes no representation or warranty as to the accuracy or
reliability of reports, projections and/or forecasts; and will not be held
liable for any claims of reliance on such reports, projections and/or
forecasts.
VII. INDEMNITY; JOINT DEFENSE; LIABILITY LIMITATIONS; ARBITRATION; INSURANCE
A. The Company agrees to indemnify Tatum to the full extent permitted by law
for any losses, costs, damages and expenses, including attorneys' fees, as
such are incurred, in connection with (1) any cause of action, suit or
other proceeding arising in connection with Tatum's engagement by the
Company under this Agreement, the CFO's employment with the Company or the
CFO's activities while employed by the Company, and (2) any legal
proceeding in which Tatum may be required or agree to participate, but in
which Tatum is not a party. This indemnification does not apply to actions
taken by Tatum in bad faith.
B. If the Company and Tatum are defendants in any action, suit, or other
proceeding, the defense of Tatum will be represented by counsel selected by
the Company if the Company is paying for such defense, unless there is a
conflict of interest, in which case Tatum shall be permitted to select its
own counsel.
C. The Company and Tatum agree to binding arbitration under the rules of the
American Arbitration Association ("AAA"), to take place in the AAA's Miami
office, if any dispute arises between them.
D. The Parties recognize and agree that any breach by Tatum of this Agreement
would result in injury that would be impossible to accurately ascertain.
Therefore, Tatum shall pay to the Company as liquidated damages, and not as
a penalty, an amount equal to two full months of Retainer Fee. The parties
agree that this amount of liquidated damages represents a reasonable
approximation of the damages that would be incurred as a result of a breach
by Tatum of this Agreement.
E. In any event, at any time, Tatum may pay a sum equal to the total Retainer
Fee paid under this Agreement for the most recent four months, which
payment the Company agrees shall serve as final satisfaction and accord for
any and all such liabilities of Tatum under this Agreement.
F. As a precondition for recovery of any alleged liability, the Company shall
give Tatum notice, in writing, of the alleged basis for liability within
thirty (30) days of discovering the circumstances giving rise to such
alleged liability, and no legal or other action shall be taken by the
Company against Tatum (i) more than (60) days after such notice has been
given or (ii) less than thirty (30) days after such notice has been given,
in order that Tatum shall have the opportunity to investigate in a timely
manner and, where possible, correct or rectify the alleged basis for
liability.
G. Tatum will not be liable in any event for incidental or consequential
damages, including without limitation, any interruption of business or loss
of business, profit, or goodwill.
H. To the extent the Company has directors' and officers' liability insurance
("including entity coverage") and/or errors and omissions liability
insurance in effect, the Company will provide such insurance coverage for
the CFO.
VIII. GENERAL TERMS AND CONDITIONS
A. This Agreement may be canceled by either party effective upon 30 days'
advance written notice. However, Tatum retains the right to terminate this
agreement immediately if the Company has not remained current with its
obligations to Tatum under this Agreement, the Company is engaged in or
asks the CFO to engage in an illegal or unethical activity, or by death or
disability of the CFO.
B. The provisions on the attached Schedule A are incorporated by reference as
if set forth herein; and the provisions concerning the bonus in Schedule A
will survive any cancellation of this Agreement.
C. Neither the Company, Tatum or the CFO shall be deemed to have waived any
rights or remedies accruing under this Agreement unless such waiver is in
writing and signed by the party electing to waive the right or remedy.
D. This Agreement is governed by Florida law.
E. The terms of this Agreement are severable, and they may not be amended
except in writing signed by the parties. This Agreement binds and benefits
the successors of the parties.
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F. This Agreement contains the entire agreement between the parties,
superseding any prior oral or written statements or agreements.
G. The persons signing below are authorized to sign on behalf of each party,
and their signatures are all necessary signatures.
The COMPANY TATUM CFO The CFO
PARTNERS,LLP
/s/ Tarek Kirschen /s/ Neil Hamilton /s/ Thomas B. Walker
------------------------ ------------------------ ------------------------
Signature Signature Signature
Tarek Kirschen
Chief Executive Officer
and President Neil Hamilton Thomas B. Walker
------------------------ ------------------------ ------------------------
Name and Title Name, Area Limited Partner Name
April 24, 2000 April 24, 2000 April 24, 2000
------------------------ ------------------------ ------------------------
Date Date Date
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SCHEDULE A
EMPLOYMENT & RETAINER AGREEMENT
COMMON STOCK PURCHASE WARRANTS
The Company will issue a total of 300,000 ten (10) year, fair value at time of
issue, Common Stock Purchase Warrants, effective April 24, 2000, the Initial
Date of agreement between the Company, Tatum CFO Partners, LLP and the CFO to
provide CFO Services. Such warrants will be subject to vesting and distribution,
as defined below, and anti-dilution terms and conditions.
A. TATUM CFO PARTNERS, LLP (TATUM)
o The Company will issue to Tatum 60,000 ten (10) year, fair value at time of
issue, Common Stock Purchase Warrants, effective April 24, 2000 with an
exercise price of $9.50, being the fair market value.
o Such warrants will vest 20,000 on each of April 24, 2001, 2002 and 2003.
o Such warrants will be issued pursuant to the Company's 2000 Incentive
Option Plan.
o In the event this CFO Employment & Retainer Agreement is terminated by the
Company without cause during the term of this Agreement, such warrants will
vest on a pro-rata basis.
B. THE TATUM CFO PARTNERS, LLP PARTNER (THE CFO)
o The Company will issue to the CFO 240,000 ten (10) year, fair value at time
of issue, Common Stock Purchase Warrants, effective April 24, 2000.
o Such warrants will vest 80,000 on each of April 24, 2001, 2002 and 2003.
o Such warrants will be issued pursuant to the Company's 2000 Incentive
Option Plan.
o In the event this CFO Employment & Retainer Agreement is terminated by the
Company without cause during the term of this Agreement, such warrants will
vest on a pro-rata basis.
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