Exhibit 10.49
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AMENDED AND RESTATED
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EMPLOYMENT AGREEMENT AND STOCK OPTION
SENIOR EXECUTIVE
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This amended and restated employment agreement and stock option for a
senior executive ("Agreement") is made effective the 2nd day of August, 2000,
and entered into at San Diego, California, by and between ZiaSun Technologies,
Inc., a Nevada corporation, located at 462 Stevens Avenue, Suite 106, Solana
Beach, California 92075 hereinafter referred to as the Employer, and Allen D.
Hardman, an individual, located at 624 Camino Catalina, Solana Beach, California
92075, hereinafter referred to as the Executive, in consideration of the mutual
promises made herein, agree as follows:
ARTICLE 1. TERM OF EMPLOYMENT
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Specified Term
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1.01 The Company hereby employs Executive, and Executive hereby accepts
employment with Company for a period of five (5) years, beginning on July 1,
1997.
Automatic Renewal
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1.02 After completion of the initial term set forth in Section 1.01, above,
and each twelve month anniversary thereafter, this Agreement shall automatically
renew for an additional one (1) year period, unless written notice of the intent
not to renew this Agreement is tendered by either the Company or Executive to
the other party no less than sixty (60) days prior to the expiration of this
Agreement.
Earlier Termination
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1.03 This Agreement may be terminated earlier as hereinafter provided.
ARTICLE 2. DUTIES AND OBLIGATIONS OF EXECUTIVE
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Title and Description of Duties
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2.01 Executive shall serve as President and Chief Executive Officer and
shall at all times be under the direction of the Board of Directors of the
Company, and subject to the policies established by the Board of Directors of
the Company. In that capacity, Executive shall do and perform all services,
acts, or things necessary or advisable to fulfill the duties of said position.
Loyal and Conscientious Performance of Duties
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2.02 Executive agrees that to the best of his ability and experience he
will at all times loyally and conscientiously perform all of the duties and
obligations required of him, either expressly or implicitly, by the terms of
this Agreement.
Devotion of Entire Time to Company's Business
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2.03 (a) Executive shall devote his entire productive time, ability, and
attention to the business of Company during the term of the Agreement.
(b) During the term of this Agreement, Executive shall not engage in
any other business duties or pursuits whatsoever. Furthermore, during the
term of this Agreement, Executive shall not, whether directly or
indirectly, render any services of a commercial or professional nature to
any other person or organization, whether for compensation or otherwise,
without the prior written consent of Company's President. However, the
expenditures of reasonable amounts of time for educational, charitable, or
professional activities shall not be deemed a breach of this Agreement, if
those activities do not materially interfere with the services under this
Agreement, and shall not require the prior written consent of Company's
President.
(c) This Agreement shall not be interpreted to prohibit Executive from
making passive personal investments or conducting private business affairs,
if those activities do not materially interfere with the services required
under this Agreement. However, except for those activities, Executive shall
not, directly or indirectly, acquire, hold, or retain any interest in any
business competing with, or similar in nature to, the business of Company.
Competitive Activities
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(d) During the term of this Agreement, Executive shall not directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in any
business that is in competition in any manner whatsoever with the business
of Company.
(e) Executive shall not for a period of one (1) year immediately
following the termination of employment with Company, either directly or
indirectly: (1) Make known to any person, firm, or corporation the names or
addresses of any of Company's clients or any other information pertaining
to them; or, (2) Call on, solicit, or take away, or attempt to call on,
solicit, or take away any of Company's clients on whom Executive called or
with whom Executive became acquainted during their employment with Company,
either on their behalf or that of another person, firm, or corporation.
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Uniqueness of Executive's Services
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2.04 Executive hereby represents and agrees the services to be performed
under the terms of this Agreement are of a special, unique, unusual,
extraordinary, and intellectual character that gives them a peculiar value, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law. Executive, therefore, expressly agrees that Company, in addition
to any other rights or remedies which Company may possess, shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of this
Agreement by Executive.
Indemnification for Negligence or Misconduct
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2.05 Executive shall indemnify and hold Company harmless from all liability
for loss, damage, or injury to persons or property resulting from the gross
negligence or intentional misconduct of Executive.
Trade Secrets
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2.06 (a) The parties acknowledge and agree that during the term of this
Agreement and in the course of the discharge of his duties hereunder, Executive
shall have access to, and become acquainted with, information concerning the
operation of Company, including without limitation, financial, personnel, sales,
planning, and other information which is owned by Company and regularly used in
the operation of Company's business, and that this information constitutes
Company's trade secrets.
(b) Executive agrees that he shall not disclose any such trade
secrets, directly or indirectly, to any other person or use them in any
way, either during the term of this Agreement or at any other time
thereafter, except as is required in the course of his employment with
Company.
(c) Executive further agrees all files, records, documents, equipment,
and similar items relating to Company's business, whether prepared by
Executive or others, are, and shall remain, exclusively the property of
Company.
ARTICLE 3. OBLIGATIONS OF COMPANY
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General Description
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3.01 Company shall provide Executive with the compensation, incentives,
benefits, and business expense reimbursement specified elsewhere in this
Agreement.
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Office and Staff
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3.02 Company shall provide Executive with office equipment and supplies,
and other facilities and services, suitable to Executive's position and adequate
for the performance of his duties.
Indemnification of Executive
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3.03 Company shall defend, indemnify and hold harmless Executive from and
against any and all liabilities, claims, expenses (including expert witnesses'
fees), reasonable attorneys' fees, damages, causes of action, suits or judgments
sustained by Executive in direct consequence of his discharge of his duties on
Company's behalf. Company further agrees to defend, indemnify and hold harmless
Executive from and against any and all liabilities, claims, expenses (including
expert witnesses' fees), reasonable attorneys' fees, damages, causes of action,
suits or judgments arising out of or resulting from any activities he undertakes
at the request of the Company concerning Fountain Fresh International, a Utah
corporation d/b/a Better stuff, Inc., located at 2030 North Redwood Road, Suite
70, Salt Lake City, Utah 84116.
ARTICLE 4. COMPENSATION
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4.01 (a) As compensation for the services to be rendered by Executive
hereunder, Company shall pay Executive an annual salary of two hundred thousand
and no/100 dollars ($200,000.00), payable not less than once per month.
(b) Executive's base salary shall be reviewed annually on or about
each anniversary of the date of this Agreement. If the Company's Board of
Directors in its sole discretion determines Executive's performance has
been effective, then a salary increase shall be granted in amount not less
than the cost of living increase, if any, for the greater San Diego area as
published in the most recent issue of the San Diego Union Tribune
newspaper.
Tax Withholding
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4.02 Company shall have the right to deduct or withhold from the
compensation due to Executive hereunder any and all sums required for federal
income and Social Security taxes, and all state or local taxes now applicable,
or that may be enacted and become applicable in the future.
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ARTICLE 5. STOCK OPTION
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Option Granted
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5.01 Company hereby grants Executive an option to purchase one hundred
thousand (100,000) shares of the common stock of ZiaSun Technologies, Inc., a
Nevada corporation, at a purchase price of $2.00. It is acknowledged and
understood by Executive that this stock option does not qualify as an incentive
stock option as defined in I.R.C. ss. 422(b).
Time of Exercise of Option
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5.02 Executive's right to exercise his option to purchase the one hundred
thousand (100,000) shares shall vest in equal installments of twenty five
thousand (25,000) shares each on the following dates:
25,000 Shares After completion of 1 year of employment.
25,000 Shares After completion of 2 years of employment.
25,000 Shares After completion of 3 years of employment.
25,000 Shares After completion of 4 years of employment.
Executive may exercise his option to purchase the one hundred thousand (100,000)
shares on the vesting date or at any time thereafter, and from time to time
until termination of the option as provided in paragraph 5.07, below, so long as
at all times, beginning with the date of the grant of this option and ending
three (3) months prior to the date of exercise, or twelve (12) months prior to
the date of exercise, if the Executive is disabled within the meaning of United
States Internal Revenue Code Section 22, subd. (e)(3), Executive remains
employed. For purposes of this Agreement, "employment" means that Executive is
employed by Company, a parent or subsidiary corporation of Company, or a
corporation, or a parent or subsidiary corporation of such a corporation issuing
or assuming a stock option in a transaction to which United States Internal
Revenue Code Section 425, subd. (a), applies.
Method of Exercise
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5.03 This option shall be exercised by written notice delivered to Company
at its principal place of business, stating the number of shares for which the
option is being exercised. The notice must be accompanied by a check for the
amount of the purchase price.
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Capital Adjustments
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5.04 (a) The existence of this option shall not affect in any way the right
or power of Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations, or other changes in Company's
capital structure or its business, or any merger or consolidation of Company or
any issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting the common stock or the rights thereof, or the issuance of any
securities convertible into any common stock or of any rights, options, or
warrants to purchase any common stock, or the dissolution or liquidation of
Company, any sale or transfer of all or any part of its assets or business, or
any other corporate act or proceedings of Company, whether of a similar
character or otherwise.
(b) The shares with respect to which this option is granted are shares
of the common stock of ZiaSun Technologies, Inc., a Nevada corporation, as
presently constituted, but if and whenever, prior to the delivery by
Company of all the shares of the stock with respect to which this option is
granted, Company shall effect a subdivision or consolidation of shares or
other capital readjustment, the payment of a stock dividend, or other
increase or reduction of the number of shares of the stock outstanding, the
number of shares of stock then remaining subject to this option shall: (1)
In the event of an increase in the number of outstanding shares, be
proportionately increased, and the cash consideration payable per share
shall be proportionately reduced; and, (2) In the event of a reduction in
the number of outstanding shares, be proportionately reduced, and the cash
consideration payable per share shall be proportionately increased.
(c) If a business unit, operating center, division or subsidiary of
Company is spun off, merged or consolidated into a separate entity,
Executive shall be entitled to a proportionate stock option in that entity,
for the number of shares reasonably determined by Company in its sole
discretion.
Merger and Consolidation
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5.05 (a) Following the merger of one or more corporations into Company or
any consolidation of Company and one or more corporations in which Company is
the surviving corporation, the exercise of this option shall apply to the shares
of the surviving corporation.
(b) Notwithstanding any other provision of this Agreement, this option
shall fully vest on the dissolution or liquidation of Company, or on any
merger or consolidation in which Company is not the surviving corporation.
Transfer of Option
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5.06 During Executive's lifetime, this option shall be exercisable only by
Executive. This option shall not be transferable by Executive other than by the
laws of descent and distribution upon Executive's death. In the event of
Executive's death during employment or during the applicable period after
termination of employment specified in paragraph 5.02, above, Executive's
personal representatives may exercise any portion of this option that remains
unexercised at the time of Executive's death, provided that any such exercise
must be made, if at all, during the period within one year after Executive's
death, and subject to the option termination date specified in paragraph
5.07(c), below.
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Termination of Option
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5.07 This option shall terminate on the earliest of the following dates:
(a) The expiration of three (3) months from the date of Executive's
termination of employment, as defined in paragraph 5.02, above, except for
termination due to death or permanent and total disability; or,
(b) The expiration of twelve (12) months from the date on which
Executive's employment, as defined in paragraph 5.02, above, is terminated
due to permanent and total disability, as defined in United States Internal
Revenue Code Section 22, subd. (e)(3); or,
(c) On December 3lst of the ninth year after this Agreement is
executed, which is December 31, 2006.
Rights as Shareholder
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5.08 Executive will not be deemed to be a holder of any shares pursuant to
the exercise of this option until he pays the option price and a stock
certificate is delivered to him for those shares. No adjustment shall be made
for dividends or other rights for which the record date is prior to the date the
stock certificate is delivered.
ARTICLE 6. BENEFITS
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Annual Vacation
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6.01 Executive shall be entitled to fifteen (15) days vacation time each
year with pay. Executive may be absent from his employment for vacation only at
such times that do not interfere with the reasonable needs and requirements of
Company. In the event that Executive is unable for any reason to take the total
amount of vacation time authorized herein during any year, he may accrue that
time and add it to vacation time for any following year, or at Executive's
option, may instead receive a cash payment in an amount equal to the amount of
annual salary attributable to that period of time.
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Paid Holidays
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6.02 Executive shall be entitled to eight paid holidays per year, as
follows: New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day and
the day after Thanksgiving, Christmas Day, and one floating day.
Use of Company-Supplied Automobile
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6.03 (a) During the term of employment hereunder, Executive shall be
entitled to the full use of an automobile of Company's choice at Company's
expense.
(b) The Company also agrees to pay all operating expenses of any
nature whatsoever with regard to the aforementioned automobile, and to
procure and maintain in force an automobile liability insurance policy on
the automobile, with coverage including Executive, for bodily injury or
death, and for property damage. . Group Medical Insurance
6.04 The Company agrees to include Executive and his spouse under Company's
group medical insurance coverage at Company's cost.
ARTICLE 7. BUSINESS EXPENSES
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7.01 (a) Company shall promptly reimburse Executive for all reasonable
business expenses incurred by Executive in promoting the business of Company,
including expenditures for entertainment, gifts, and travel.
(b) Each expenditure shall be reimbursable only if it is of a nature
qualifying it as a proper deduction on the federal and state income tax
return of Company.
(c) Each such expenditure shall be reimbursable only if Executive
furnishes to Company adequate records and other documentary evidence
required by federal and state statutes and regulations issued by the
appropriate taxing authorities for the substantiation of that expenditure
as an income tax deduction.
ARTICLE 8. TERMINATION OF EMPLOYMENT
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Termination for Cause
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8.01 (a) Company reserves the right to terminate this Agreement if
Executive: (1) Wilfully breaches or habitually neglects the duties which he is
required to perform under the terms of this Agreement; or, (2) Commits acts of
dishonesty, fraud, misrepresentation, or other acts of moral turpitude that
would prevent the effective performance of his duties.
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(b) Company may, at its option, terminate this Agreement for the
reasons stated in this section by giving written notice of termination to
Executive without prejudice to any other remedy to which Company may be
entitled either at law, in equity, or under this Agreement.
(c) Termination under this section shall be considered "for cause" for
the purposes of this Agreement.
Termination Upon Stated Events
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8.02 (a) This Agreement shall be terminated upon the death of the
Executive.
(b) Company reserves the right to terminate this Agreement not less
than sixty (60) days after Executive suffers any physical or mental
disability that would prevent the performance of his duties under this
Agreement. Such a termination shall be effected by giving ten (10) days
written notice of termination to Executive.
(c) Termination under this section shall not be considered "without
cause" for the purposes of this Agreement.
Termination Without Cause
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8.03 (a) Company reserves the right to terminate this Agreement immediately
upon the occurrence of circumstances which make it impossible or impracticable
for the business of Company to be continued.
(b) Executive renders services which are unsatisfactory to Company,
and Company shall be the sole judge as to whether the services of Executive
are satisfactory.
(d) Termination under this section shall not be considered "for cause"
but shall be considered "without cause" for the purposes of this Agreement.
Severance Pay Upon Termination Without Cause
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8.04 (a) In the event Executive is terminated by the Company without cause
during the first three (3) years of employment under this Agreement, Company
shall pay Executive severance pay equal to three (3) months of Executive's
monthly base salary in effect at the time of termination.
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(b) In the event Executive is terminated by the Company without cause
after the first three (3) years of employment under this Agreement, Company
shall pay Executive severance pay equal to six (6) months of Executive's
monthly base salary in effect at the time of termination.
Effect of Merger, Transfer of Assets, or Dissolution
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8.05 (a) This Agreement shall be terminated by any voluntary or involuntary
dissolution of Company resulting from either a merger or consolidation in which
Company is not the consolidated or surviving corporation, or a transfer of all,
or substantially all, of the assets of Company.
(b) Termination under this section shall not be considered "for cause"
but shall be considered "without cause" for the purposes of this Agreement.
Termination by Executive
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8.06 Executive may terminate his obligations under this Agreement by giving
Company at least sixty (60) days prior written notice.
Effect on Compensation
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8.07 In the event this Agreement is terminated prior to the completion of
the term of employment specified herein, Executive shall be entitled to the
compensation earned by and vested in him prior to the date of termination as
provided for in this Agreement, computed pro rata up to, and including, that
date. Executive shall be entitled to no further compensation as of the date of
termination.
ARTICLE 9. GENERAL PROVISIONS
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9.01 Any notices to be given by either party to the other shall be in
writing and may be transmitted either by personal delivery or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement, but each party may change that address
by written notice in accordance with this section. Notices delivered personally
shall be deemed communicated as of the date of actual receipt, mailed notices
shall be deemed communicated as of five (5) days after the date of mailing.
Attorneys' Fees and Costs
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9.02 If this Agreement gives rise to a lawsuit or other legal proceeding
between any of the parties hereto, the prevailing party shall be entitled to
recover court costs, necessary disbursements (including experts' fees) and
actual attorneys' fees, in addition to any other relief such party may be
entitled. This provision shall be construed as applicable to the entire
contract.
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Entire Agreement
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9.03 This Agreement supersedes any and all other agreements, either oral or
in writing, between the parties hereto with respect to the employment of
Executive by Company, and contains all of the covenants and agreements between
the parties with respect to that employment in any manner whatsoever. Each party
to this Agreement acknowledges that no representations, inducements, promises,
or agreements, orally or otherwise, have been made by any party, or anyone
acting on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
or binding.
Modifications
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9.04 Any modification of this Agreement will be effective only if it is in
writing signed by the party to be charged.
Effect of Waiver
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9.05 The failure of either party to insist on strict compliance with any of
the terms, covenants, or conditions of this Agreement by the other party shall
not be deemed a waiver of that term, covenant, or condition, nor shall any
waiver or relinquishment of any right or power at any one time or times be
deemed a waiver or relinquishment of that right or power for all or any other
times.
Partial Invalidity
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9.06 If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions
shall nevertheless continue in full force without being impaired or invalidated
in any way.
Law Governing Agreement/Jurisdiction
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9.07 This Agreement shall be governed by and construed in accordance with
the laws of the State of California. Jurisdiction and venue for any suit arising
out of this Agreement shall lie exclusively in a competent court in the County
of San Diego, State of California.
Sums Due When Deceased
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9.08 If Executive dies prior to the expiration of the term of his
employment, any sums that may be due him from Company under this Agreement as of
the date of death shall be paid to Executive's executors, administrators, heirs,
personal representatives, successors, and assigns.
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Execution by Facsimile
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9.09 This Agreement may be executed by the parties and transmitted by
facsimile. A facsimile signature of a party shall be binding as an original. If
a party sends a copy of the Agreement or part thereof with that party's
signature by facsimile, that party shall promptly send the original by first
class mail.
COMPANY
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ZiaSun Technologies, Inc.
/S/ D. Scott Elder
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By: D. Scott Elder
Its: Chairman of the Board
EXECUTIVE
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/S/ Allen D. Hardman
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Allen D. Hardman
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