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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement is made on this 1st day of February, 1999,
between xxxxxxxxxxxxxxxx.xxx corp. ("Employer"), whose principal place of
business at 0000 X. Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, and X.
XXXXXXXXX zum XXXXX ("Employee").
WHEREAS, Employer is actively engaged in the business of a securities
brokerage firm; and,
WHEREAS, Employer wishes to employ Employee and Employee wishes to be
employed pursuant to the terms of this Employment Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained in this Employment Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound, agree as follows:
Article 1
Employment of Employee
Employer agrees to employ Employee, and Employee accepts employment
with Employer, on and subject to the terms and conditions set forth in this
Employment Agreement.
Article 2
Duties of Employee
Section 2.1. POSITION AND DUTIES. Employer agrees to employ Employee to
act as President and Chief Financial Officer for Employer. Employee shall be
responsible for performing the following duties: executive management,
overseeing business development, compliance and financial reporting. Employer
reserves the right from time to time to change the nature of Employee's duties
and job title; provided, however, Employee's duties and job title shall always
be of an executive nature.
Section 2.2. TIME DEVOTED TO WORK. Employee agrees to devote Employee's
entire business time, attention, and energies to the business of Employer in
accordance with Employer's instructions and directions and shall not be engaged
in any other business activity, whether or not the activity is pursued for gain,
profit, or other pecuniary advantage, during the term of this Employment
Agreement without Employer's prior written consent.
Article 3
Place of Employment
Section 3.1. PLACE OF EMPLOYMENT. Employee shall be based at Employer's
principal office at 0000 X. Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000
and shall not be required to travel away from that office on business more than
sixty (60) days during a calendar year. Employer agrees that during the term of
this Employment Agreement it shall not assign
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Employee to work at any location which is more than 100 miles from said
principal office without Employee's consent.
Section 3.2. MOVING EXPENSES. If Employer relocates its principal
office more than 100 miles from its current principal office, or requests that
Employee relocate to one of its offices which is more than 100 miles from its
current principal office, and Employee consents to relocate to that new
location, Employer shall promptly pay or reimburse Employee for all reasonable
moving expenses incurred by Employee in connection with the relocation plus an
amount to reimburse Employee for any federal and state income taxes that it has
to pay on amounts reimbursed. Employer also shall indemnify Employee against any
loss incurred in connection with the sale of Employee's principal residence. The
amount of any loss shall be determined by taking the difference between the
average of two appraisal prices set by two independent appraisers agreed to by
Employer and Employee and the actual sales price of Employee's principal
residence.
Article 4
Compensation of Employee
Section 4.1. BASE SALARY. For all services rendered by Employee under
this Employment Agreement, Employer agrees to pay Employee an annual base salary
of $120,000, which shall be payable to Employee in such installments, but not
less frequently than monthly, as are consistent with Employee's practice for its
other Employees. Employee's base salary shall be reviewed at least once a year
by Employer and shall be increased at a minimum by the percentage increase in
the Consumer Price Index for the previous year.
Section 4.2. INCENTIVE COMPENSATION. In addition to the base salary,
Employee shall be entitled to receive incentive compensation, as determined by
Employer in accordance with Employer's Incentive Compensation Plan.
Notwithstanding the foregoing, Employee agrees the Employer will not pay and the
Employee will not receive any bonuses until the earlier of (i) 24 months from
the date of this Agreement and (ii) such time as Employer earns $3,300,000 in
pre-tax earnings in any fiscal year. Thereafter, Employee acknowledges and
agrees that, for the fiscal years ended January 31, 2000, January 31, 2001, and
January 31, 2002, the total amount of bonuses payable to all of Employee, Xxxxxx
Xxxxx, Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx and Xxxxxxxx Xxxxxxx shall not exceed
in the aggregate 5% of pre-tax earnings in each of such fiscal years.
Section 4.3. REIMBURSEMENT FOR BUSINESS EXPENSES. Employer shall
promptly pay or reimburse Employee for all reasonable business expenses incurred
by Employee in performing Employee's duties and obligations under this
Employment Agreement, but only if Employee properly accounts for expenses in
accordance with Employer's policies.
Article 5
Vacations and Other Paid Absences
Section 5.1. VACATION DAYS. Employee shall be entitled to three (3)
weeks paid vacation days each calendar year during the term of this Employment
Agreement. During the first
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calendar year of this Employment Agreement, Employee shall be entitled to two
(2) weeks paid vacation days.
Section 5.2. HOLIDAYS. Employee shall be entitled to the same paid
holidays as authorized by Employer for its other Employees.
Section 5.3. SICK DAYS AND PERSONAL ABSENCE DAYS. Employee shall be
entitled to the same number of paid sick days and personal absence days
authorized by Employer for its other Employees.
Article 6
Life Insurance
Employer may, in its sole discretion, maintain in effect during the
term of Employee's employment a life insurance policy on the life of Employee in
such amount as Employer shall in its sole discretion decide to maintain during
the term of this Employment Agreement. Any proceeds payable under the policy
shall be paid to the beneficiary or beneficiaries designated in writing from
time to time by Employee.
Article 7
Fringe Benefits
Section 7.1. EMPLOYER EMPLOYEE BENEFIT PLANS. Employee shall be
entitled to participate in and receive benefits from all of Employer's Employee
benefit plans that currently are maintained by Employer for its Employees.
Employee shall be entitled to participate in and receive benefits under any
retirement plan, profit-sharing plan, or other Employee benefit plan that
Employer establishes for the benefit of its Employees after the date of this
Employment Agreement. No amounts paid to Employee from an Employee benefit plan
shall count as compensation due Employee as base salary or incentive
compensation. Nothing in this Employment Agreement shall prohibit Employer from
modifying or terminating any of its Employee benefit plans in a manner that does
not discriminate between Employee and other Employees of Employer.
Section 7.2. MOTOR VEHICLE. Employer may, in its sole discretion,
provide Employee with the use of a motor vehicle to be selected in the
reasonable discretion of Employer. If Employer does provide Employee with the
use of a motor vehicle, Employer shall procure, maintain, and pay for
appropriate insurance on the motor vehicle, including liability insurance of at
least $100,000.00 per person and $300,000.00 per occurrence for personal injury
and $50,000.00 for property damage.
Article 8
Disability
Section 8.1. REPLACEMENT BECAUSE OF A DISABILITY. If, because of
illness or injury, Employee becomes unable to work full time for Employer for a
period of more than thirty (30) days, Employer may, in its sole discretion at
any time after that period give Employee thirty (30)
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days written notice that it will replace Employee if Employee is unable to
return to work full time before the date specified in the written notice.
Replacement of Employee shall not be considered a termination of Employee's
employment under this Employment Agreement.
Section 8.2. COMPENSATION DURING PERIODS OF DISABILITY.
(a) Employee shall continue to receive Employee's base salary and
incentive compensation while Employee is unable to work full time, until
Employee begins receiving disability insurance benefits, until Employee is
replaced, or until Employee terminates Employee's employment with Employer
because Employee's health becomes so impaired that continued performance of
Employee's duties under this Employment Agreement would be hazardous to
Employee's physical or mental health.
(b) While Employee is unable to work full time because of illness or
injury and through the full term of this Employment Agreement, including
extensions, Employer shall maintain for Employee's benefit all Employee benefit
plans in which Employee was participating at the time Employee was replaced. If
Employee is barred from participating in any Employee benefit plan because of
Employee's disability, Employer shall pay Employee an amount equal to what
Employer would have contributed on Employee's behalf to the Employee benefit
plan if Employee's participation had not been barred.
(c) After Employee is replaced or gives notice that Employee is
terminating employment because Employee's health has become so impaired that
continued performance of Employee's duties under this Employment Agreement would
be hazardous to Employee's physical or mental health, in addition all other
compensation and benefits provided hereunder and any disability insurance
benefits provided pursuant to Section 8.3 below, Employer shall pay Employee an
amount equal to the sum of Employee's then current annual base salary plus the
annualized amount of incentive compensation paid to Employee most recently
before the date Employee's employment was terminated, multiplied by the number
of full and partial years remaining in the term of this Employment Agreement,
including any extensions.
(d) Employee is not required to seek other employment to mitigate any
amounts payable under this Employment Agreement. Nor will amounts due Employee
under this Employment Agreement be reduced by any amounts received by Employee
for other employment.
Section 8.3. DISABILITY INSURANCE. Employer may, in its sole
discretion, purchase and use its best efforts to maintain disability insurance
in force for the benefit of Employee throughout the term of this Employment
Agreement, including extensions. The policy shall provide that if Employer fails
to make a premium payment, Employee shall have the right in Employee's sole
discretion to advance such funds as may be required to maintain the policy in
force and shall thereafter be entitled to recover amounts paid from Employer.
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Article 9
Termination of Employment
Section 9.1. TERM OF EMPLOYMENT. Employee's employment shall commence
on the date of execution by Employer and shall continue for three (3) years
("end-of-employment date"), unless extended or terminated sooner, as provided by
this article of the Employment Agreement. However, no compensation or benefits
described hereunder shall be due or payable unless and until the settlement of
Employer's initial public offering of stock. Should Employer's initial public
offering of stock fail to settle on or before September 30, 1999, this
Employment Agreement shall automatically terminate and become null and void
retroactive to its commencement and Employer shall not be obligated to pay
Employee any compensation or benefits stated herein or continue the same
thereafter.
Section 9.2. EXTENSION OF EMPLOYMENT. On the end-of-employment date and
every three (3) years thereafter, Employee's employment with Employer
automatically shall be extended for an additional three (3) years unless, at
least ninety (90) days prior to the end-of-employment date, or successive three
(3) year anniversary thereof, Employer or Employee delivers to the other a
written notice that Employee's employment with Employer is not to be extended.
Section 9.3. TERMINATION AT EMPLOYEE'S DEATH. Employee's employment
with Employer shall terminate at Employee's death.
Section 9.4. TERMINATION BY EMPLOYEE. Employee may, but is not
obligated to, terminate this Employment Agreement at any time under the
following circumstances:
(a) Employee's health becomes so impaired that continued performance of
Employee's duties under this Employment Agreement would be hazardous to
Employee's physical or mental health.
(b) There is a change in control of Employer. There is a change in
control of Employer if someone other than a current owner of Employer becomes
the beneficial owner of 20 percent or more of the voting power of Employer.
(c) Employee is assigned duties that are significantly different than
those described in this Employment Agreement, or duties assigned Employee by
this Employment Agreement are eliminated or transferred to someone else.
(d) Employee is removed from any of the positions described in Section
2.1 of this Employment Agreement (other than by Employer for cause).
(e) Employee's fringe benefits or other compensation are materially
reduced.
(f) Employer requires Employee to travel more frequently than
contemplated by this Employment Agreement.
(g) Employer fails to have a successor assume this Employment
Agreement.
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(h) Employer becomes insolvent or files a bankruptcy petition.
Section 9.5. TERMINATION BY EMPLOYER.
(a) TERMINATION FOR CAUSE. Employer may terminate Employee's employment
for cause.
(b) "CAUSE" DEFINED. Employer shall have cause to terminate Employee's
employment if Employee fails to substantially perform any duties required by
this Employment Agreement (unless Employee's failure is due to a physical or
mental incapacity), Employee is grossly negligent in the performance of required
duties, Employee engages in conduct that damages Employer, Employee is convicted
of a felonious act of moral turpitude, or Employee discloses material
confidential information in violation of Article 10 of this Employment
Agreement. Employer shall have cause to terminate Employee's employment should
Employee's performance, attitude, or work habits become unreasonable.
Section 9.6. NOTICE OF TERMINATION. Any termination of Employee's
employment by Employer or Employee must be communicated to the other party by a
written notice of termination. The notice must specify the provision of this
Employment Agreement authorizing the termination and must set forth in
reasonable detail the facts and circumstances providing the basis for
termination of Employee's employment.
Section 9.7. DATE TERMINATION IS EFFECTIVE. If Employee's employment
terminates because this Employment Agreement expires, then Employee's employment
will be considered to have terminated on that expiration date. If Employee's
employment terminates because of Employee's death, then Employee's employment
will be considered to have terminated on the date of Employee's death. If
Employee's employment is terminated by Employee, then Employee's employment will
be considered to have terminated on the date that notice of termination is
given. If Employee's employment is terminated by Employer for cause, then
Employee's employment will be considered to have terminated on the date
specified by the notice of termination. If, within thirty (30) days after a
notice of termination is given, the party receiving the notice notifies the
other party that there is a dispute concerning the termination, then Employee's
employment will not be considered to have terminated, and Employer shall
continue to compensate Employee pursuant to this Employment Agreement, until the
dispute is ended by a written agreement between the parties or a final judgment,
order, or decree of a court of competent jurisdiction. A judgment, order, or
decree of a court of competent jurisdiction will be considered final only if the
time for appealing the decision has expired and no notice of appeal has been
filed.
Section 9.8. COMPENSATION FOLLOWING TERMINATION.
(a) If Employee's employment terminates because of Employee's death,
Employer shall pay a lump sum death benefit to the person or persons designated
in a written notice filed with Employer by Employee or, if no person has been
designated, to Employee's estate. The amount of the lump sum death benefit will
equal the amount of Employee's then current annual
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base salary plus the annualized amount of incentive compensation paid Employee
most recently prior to Employee's death, multiplied by the number of full and
partial years remaining in the term of this Employment Agreement, including
extensions. This lump sum death benefit shall be in addition to any life
insurance payable pursuant to Article 6 and/or any other amounts that Employee's
beneficiaries and estate may be entitled to receive under any Employee benefit
plan maintained by Employer.
(b) If Employee's employment is terminated by Employer for cause,
Employer shall pay Employee/Employee's then current base salary through the date
employment is terminated, and Employer shall have no further obligations to
Employee under this Employment Agreement.
(c) If Employer terminates Employee's employment other than for cause,
Employer shall pay Employee Employee's then current base salary through the date
employment is terminated and any legal fees and expenses incurred by Employee to
enforce Employee's rights under this Employment Agreement. In addition, Employer
shall pay Employee as liquidated damages an amount equal to the sum of
Employee's then current annual base salary plus the annualized amount of
incentive compensation paid to Employee most recently before the date Employee's
employment was terminated, multiplied by the number of full and partial years
remaining in the term of this Employment Agreement, including extensions.
(d) If Employee's employment is terminated by Employer or Employee in
accordance with the provisions of this Employment Agreement, in addition to all
other compensation or benefits provided hereunder, Employer shall pay Employee
severance pay in an amount equal to the sum of Employee's then current annual
base salary plus the annualized amount of incentive compensation paid to
Employee most recently before the date Employee's employment was terminated,
multiplied by a fraction, the numerator of which shall be the number of full and
partial years employed pursuant to this Employment Agreement and the denominator
of which shall be twenty (20).
Article 10
Confidential Information
Section 10.1. CONFIDENTIAL INFORMATION DEFINED. "Confidential
Information" as used in this Employment Agreement shall mean any and all
technical and non-technical information belonging to, or in the possession of,
Employer or its officers, directors, Employees, affiliates, subsidiaries,
clients, vendors, or Employees, including without limitation, patent, trade
secret, and proprietary information; techniques, sketches, drawings, models,
inventions, know-how, processes, apparatus, equipment, algorithms, source codes,
object codes, software programs, software source documents, and formulae related
to Employer's business or any other current, future and/or proposed business,
product or service contemplated by Employer; and includes, without limitation,
all information concerning research, experimental work, development, design
details and specifications, engineering, financial information, procurement
requirements, purchasing, manufacturing, customer lists, vendor lists, business
forecasts, sales and merchandising, and marketing plans or similar information.
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Section 10.2 DISCLOSURES. Employee agrees that it shall, at no time
during or after termination of this Employment Agreement, directly or indirectly
make use of, disseminate, or in any way disclose Confidential Information to any
person, firm or business, except to the extent necessary for performance of this
Employment Agreement. Employee agrees that it shall disclose Confidential
Information only to Employer's other Employees who need to know such information
and who have previously agreed to be bound by the terms and conditions of a
substantially similar confidentiality provision and shall be liable for damages
for the intentional or negligent disclosure of Confidential Information.
Employee's obligations with respect to any portion of Confidential Information
shall terminate only when Employee has documented to Employer that (a) such
information was lawfully in the public domain at the time it was communicated to
Employee by Employer; or (b) the communication was in response to a valid order
by a court of competent jurisdiction or was necessary to establish the rights of
Employer under this Employment Agreement.
Section 10.3. SURVIVAL. This Article 10 shall survive any termination
of this Agreement and all extended periods.
Article 11
Noncompetition Agreement
Section 11.1. AGREEMENT NOT TO COMPETE. For two (2) years after
Employee's employment with Employer terminates, Employee agrees not to directly
or indirectly own, manage, control, or operate; serve as an officer, director,
partner, or Employee of; have any direct or indirect financial interest in; or
assist in any way; any person or entity that competes with any business
conducted by Employer or any of Employer's affiliates or subsidiaries in any
geographic region in which Employer conducts business.
Section 11.2. COMPETITIVE BUSINESSES. For purposes of this Article 11,
a competitive business shall be any person or entity which operates as a
securities broker dealer whose primarily business is to provide its clients with
the ability buy, sell, or trade securities via the internet or world wide web,
or via some similar system, network, method, or service.
Section 11.3. OWNERSHIP OF PUBLIC CORPORATION NO VIOLATION. Employee
will not be considered to have violated this provision merely because Employee
owns no more than twenty percent (20%) of the stock of any publicly held
corporation.
Article 12
Notices
Any notice given under this Employment Agreement to either party shall
be made in writing. Notices shall be deemed given when delivered by hand or when
mailed by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the party at the address set forth below.
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Employee's address: 0000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Employer's address: 0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Each party may designate a different address for receiving notices by giving
written notice of the different address to the other party. The written notice
of the different address will be deemed given when it is received by the other
party.
Article 13
Binding Agreement
Section 13.1. EMPLOYER'S SUCCESSORS.
(a) The rights and obligations of Employer under this Employment
Agreement shall inure to the benefit of and shall be binding in all respects
upon the successors and assigns of Employer.
(b) Employer shall require any direct or indirect successor (by
purchase, merger, consolidation, or otherwise) of all or substantially all of
Employer's stock, business and/or assets to expressly agree to assume Employer's
obligations under this Employment Agreement and perform them in the same manner
and to the same extent as Employer would have been required to do if no
succession had occurred. The agreement must be in a form and substance
satisfactory to Employee.
(c) If Employer fails to obtain such an agreement before the effective
date of the succession, Employer's failure will be considered a breach of this
Employment Agreement, and Employee shall be entitled to the greater of (i) the
amount of money that Employee would have been entitled to if Employer had
terminated Employee's employment other than for cause in accordance with the
terms of Section 9.8(c) of this Employment Agreement, calculated as though
Employee's employment had terminated on the effective date of the succession,
and (ii) one year's base salary in effect on the effective date of such
succession. However, Employer's failure to obtain such agreement shall not
affect said successor's obligations pursuant to paragraph 13.1(a) above.
Section 13.2. EMPLOYEE'S SUCCESSORS. This Employment Agreement shall
inure to the benefit and be enforceable by and upon Employee's personal
representatives, legatees, and heirs. If Employee dies while amounts are still
owed, such amounts shall be paid to Employee's legatees or, if no such person or
persons have been designated, to Employee's estate.
Article 14
Waivers
The waiver by either party of a breach of any provision of this
Employment Agreement shall not operate or be construed as a waiver of any
subsequent breach.
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Article 15
Entire Agreement
Section 15.1. NO OTHER AGREEMENTS. This instrument contains the entire
agreement of the parties. The parties have not made any agreements or
representations, oral or otherwise, express or implied, pertaining to the
subject matter of this Employment Agreement other than those specifically
included in this Employment Agreement.
Section 15.2. PRIOR AGREEMENTS. This Employment Agreement supersedes
any prior agreements pertaining to or connected with or arising in any manner
out of the employment of Employee by Employer. All such prior agreements are
terminated and are of no force or effect whatsoever.
Article 16
Amendment of Agreement
No change or modification of this Employment Agreement shall be valid
unless it is in writing and signed by the party against whom the change or
modification is sought to be enforced. No change or modification by Employer
shall be effective unless it is approved by Employer's Board of Directors and
signed by an officer specifically authorized to sign such documents.
Article 17
Severability of Provisions
If any provision of this Employment Agreement is invalidated or held
unenforceable, the invalidity or unenforceability of that provision or
provisions shall be deemed modified or severed only to the minimum extent
necessary to make said provision(s) valid and enforceable while maintaining the
intent of said provision(s). No such modification shall affect the validity or
enforceability of any other provision of this Employment Agreement.
Article 18
Assignment of Agreement
Employer shall not assign this Employment Agreement without Employee's
prior written consent, but failure to obtain such consent shall not affect said
assignee's obligations pursuant to paragraph 13.1(a) above, which consent shall
not be unreasonably withheld.
Article 19
Governing Law, Venue & Attorneys Fees
All questions regarding the validity and interpretation of this
Employment Agreement shall be governed by and construed and enforced in all
respects in accordance with the laws of the State of Florida. Venue for any
action arising in any manner out of the Employee's employment, this Employment
Agreement, or any of the terms contained herein shall be the
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Federal and or State courts located in Palm Beach County, Florida, regardless of
where this Employment Agreement is to be performed. In the event either party
engages legal counsel to enforce any provision contained in this Employment
Agreement, the prevailing party shall be entitled to all reasonable attorneys
fees, investigative expenses, costs, and court costs, whether or not a suit is
actually filed, but including all levels of appeal.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
in duplicate on the date and year first above written.
EMPLOYER:
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X. Xxxxxxxxx zum Tobel
EMPLOYER:
xxxxxxxxxxxxxxxx.xxx corp.
By:
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Name:
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Title:
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