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EXHIBIT 10(e)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement"), between Mobile America Corporation
("Company"), and Xxxxxx Xxxx Xxxxxxx, ("Executive"), effective as of the 20th
day of July, 1999.
WITNESSETH
WHEREAS, the company desires to assure itself of the services of Executive for
the period provided in this Agreement, and Executive is willing to serve in the
employ of the company and devote substantially all of his full-time employment
effort and attention to the day to day management of the Company, all in
accordance with the terms and conditions contained in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants herein contained, the
Company and Executive hereby agree as follows:
1. Employment - The Company hereby employs Executive and Executive hereby
accepts such employment with the Company as President and CEO for the
period provided for in Section 2, all upon the terms and conditions
contained in this Agreement. As a condition to Executive's employment
by the Company, executive affirms and represents that Executive is
under no obligation to any former employer or other person which is in
any way inconsistent with, or which imposes any restriction upon,
Executive's acceptance of employment with the Company, the employment
of Executive by the Company, or Executive's undertakings under this
Agreement.
2. Term of Employment - Unless sooner terminated pursuant to Section 7,
the term of Executive's employment under this agreement shall be for a
period commencing on the date hereof and continuing through the 31st
day of July, 2002.
3. Duties - During the Term, Executive shall provide general executive,
administrative and managerial services to the Company and shall
perform such other reasonable employment duties as the Chairman or
Board of Directors may from time to time prescribe. Executive shall
serve as a director, if elected.
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4. Compensation - As compensation for the services to be performed by
Executive during the Term, the Company shall provide or shall cause to
be provided to Executive:
(a) An annual base salary of not less than two hundred fifty
thousand dollars ($250,000); the annual base salary together
with any adjustments or increments thereto being hereinafter
referred to as the "Salary";
(b) An annual incentive bonus of not less than forty percent
(40%) of Salary. The performance goals required to earn such
annual incentive shall be approved by the Compensation
Committee of the Board of Directors each year.
(c) An incentive stock option (ISO) grant equal to the maximum
allowable under the IRS code (based on the stock price as of
the close of business on July 20, 1999 approximately 218,178
at $2.75 per share) vesting in six installments of
approximately 36,363 shares over five years (1/6th vesting at
grant and 1/6th on each anniversary) will be issued to
Executive effective with employment. The options will have a
term, while employed, of ten years and will be
nontransferable, except upon death. The options may be
exercised upon vesting for cash, shares or on a net exercise
basis, as long as such exercise does not result in an
earnings charge to the Company. Vesting will accelerate in
the event of a sale of the Company or substantially all of
the assets of the business.
(d) The Company will loan (or guarantee a loan) to Executive of
$412,500 for the purchase of 150,000 shares of Company common
stock from the Company at $2.75 per share. The loan will have
a five year balloon term and bear interest at the prime rate.
The repayment of the loan will accelerate upon termination of
employment or the sale or disposition of the underlying stock
which will be held as collateral.
1. Benefits - in addition to the payments required by Section 4 to be
paid to Executive, Executive shall:
(a) Be eligible to participate in all fringe benefits and any
pension and/or profit sharing plans that may be provided by
the Company for its key executive employees in accordance
with the provisions of any such plans.
(b) Be eligible to participate in any life or other similar
insurance plans, medical and health plans or other employee
welfare benefit plans that may be provided by the Company for
its key executive employees in accordance with the provisions
of any such plans.
(c) Be entitled to paid vacation in accordance with the policy of
the Company that may be applicable to key executive
employees.
(d) Be entitled to sick leave and sick pay in accordance with the
policy of the Company that may be applicable to key executive
employees.
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6. Expenses - the Company shall, in accordance with, and to the extent of
its policies in effect from time to time, pay all ordinary and
necessary business expenses incurred by the Executive in connection
with the performance of Executive's obligations. Executive shall
account promptly for all such business expenses to the Company in the
manner prescribed from time to time by the Company. In addition, a one
time allowance of $37,500.00 will be paid the Executive by the Company
by August 10, 1999, to cover relocation, travel and temporary living
expenses.
7. Termination - Executive's employment shall be terminated upon the
occurrence of any of the following:
(a) The death of the Executive
(b) Executive's disability (as such term is defined pursuant to
the provision of the Company's disability plan as may be in
effect from time to time).
(c) The termination of Executive's employment by Executive for
any reason provided Executive submits ninety (90) days prior
written notice of such termination to the Board of Directors.
(d) The termination of Executive's employment by the Company at
any time For Cause (as defined in Section 7 of this
Agreement), such termination to take effect immediately upon
written notice by the Company to Executive.
(e) The termination of Executive's employment by the Company
other than For Cause, such termination to take effect after
ninety (90) days after written notice by the Company to
Executive.
(f) The termination of Executive's employment through an Approved
Retirement (as defined in Section 7 of this Agreement).
For purposes of the Agreement, the term "For Cause" or "Cause" shall mean a
reasonable determination by the Board of Directors of the Company that
Executive (i) failed to obey the reasonable and lawful orders of the Company,
(ii) acted with gross negligence in the performance of his obligations or in a
manner materially detrimental to the Company, (iii) willfully breached or
habitually neglected his duty, (iv) has been convicted of a felony, (v)
committed any act involving dishonesty or fraud, (vi) violated any of the
provisions of Sections 12 through 14 of this agreement, or (vii) failed, after
notice and a reasonable opportunity for cure, to competently perform the duties
of chief executive officer.
For purposes of this Agreement, the term "Approved Retirement" shall mean
retirement as defined in the Company's qualified retirement plans and with
approval of the Board of Directors.
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8. Death of Executive - in the event Executive's employment is terminated
as a result of Executive's death as set forth in Section 7(a),
Executive's spouse, or, if the Executive is not married at the time of
his death, the estate of Executive shall be entitled to receive
Executive's Salary earned through the date of death.
9. Executive Initiated Termination Without Proper Notice or Company
Initiated Termination For Cause - in the event Executive terminates
this Agreement without proper notice as set forth in Section 7(c) or
in the event Executive's employment is terminated by the Company For
Cause as set forth in Section 7(d), Executive shall be entitled to
receive his Salary earned through the date of termination.
10. Disability of Executive, Executive Initiated Termination With Proper
Notice or Approved Retirement - in the event Executive's employment is
terminated as a result of Disability, resignation by Executive with
proper notice or Approved Retirement, as set forth in Section 7 (b),
(c), and (f) respectively, Executive shall be entitled to receive his
Salary, any accrued but unpaid incentive bonus for the prior year, and
benefits (as described in Sections 4 and 5 of this Agreement) through
the date of termination.
11. Company Initiated Termination other than For Cause - in the event
Executive's employment is terminated by the Company other than For
Cause, as set forth in Section 7(e), Executive shall be entitled to
receive his Salary, any accrued incentive awards, and benefits (as
described in Sections 4 and 5 of this Agreement) through the date of
terminations, plus, if Executive executes a standard release and
waiver, for the unexpired period of this Agreement:
(a) Executive's then current Salary.
(b) An amount equal to fifty percent (50%) of the annual bonus
which Executive would otherwise have been eligible to receive
as of the effective date of Executive's termination of
employment
(c) All benefits as described in Section 5 for which Executive
would otherwise have been eligible to receive as of the
effective date of Executive's termination of Employment.
12. Non-Disclosure - Executive shall not without the prior written consent
of the Board of Directors of the Company (i) use for Executive's
benefit or disclose at any time during Executive's employment by the
Company, or thereafter, except to the extent required by the
performance by Executive of his duties as a executive of the Company,
any information obtained or developed by Executive while in the employ
of the Company with respect to any customer, suppliers, products,
employees, financial or legal affairs, business methods or services f
the Company or any of its subsidiaries (including, without limitation,
customer lists, pricing, underwriting, marketing, financial or sales
information, forecasts, business and strategic plans, customer needs
and renewal dates, personnel applications to or any matters pending or
under the jurisdiction of any regulatory agency or court, any
threatened litigation, and corporate policies and procedures), or any
other confidential matter or trade secrets, except information which
at
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the time is generally known to the public other than as a result of
disclosure by Executive not permitted hereunder, nor (ii) take with
Executive upon leaving the employ of the Company any document, paper
or property evidencing or relating to any of the foregoing.
13. Return of Property - Upon termination of Executive's employment for
any reason, or at any other time the Company requests, Executive shall
immediately deliver to the Company all memoranda, notes, plans,
records, reports, manuals, computer discs, computer files and
documents (and copies thereof) and any other property or material in
Executive's possession or control relating to the business of the
Company or any of its subsidiaries.
14. Competition - During Executive's employment by the Company and during
the time period set forth below commencing on the date of Executive's
termination of employment (and extended by the amount of time of any
violation of this Agreement):
(a) For a period of twenty-four (24) months, Executive will not
make any statement or do any act that is disloyal to the
Company or any of its subsidiaries, or is inconsistent with
the interests of the Company of any of its subsidiaries.
(b) For a period of twenty-four (24) months, Executive will not
make any statement or do any act that does or may cause any
existing customer of the Company or any of its subsidiaries
to make use of the services or purchase the products of any
business competitive with the Company of any of its
subsidiaries.
(c) For a period of twenty-four (24) months, Executive will not
employ, solicit for employment, or assist any other person
not affiliated with the Company in recruiting or hiring any
person who is then, or within the preceding three (3) month
period was an employee of the Company or any of its
subsidiaries.
(d) For a period of twelve (12) months, Executive will neither
directly nor indirectly (as a director, officer, partner,
sole proprietor, employee, manager, consultant, independent
contractor, advisor or otherwise) engage in, own any interest
in, perform any services for, participate in or be connected
with any business or organization that engages in competition
with the Company or any of its subsidiaries in the type of
business and geographic territory where the Company operates.
(e) If a court of competent jurisdiction determines that any
restriction in this Section 14 is too broad to be
enforceable, such restriction shall be reduced to the extent
necessary in the opinion of such court to make it reasonable,
the intent of the parties being that the Company be given the
broadest possible protection allowed by law or equity with
respect to the restrictions in this Section 14.
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15. Non-alienation - Except as may otherwise be required by law, no right
to receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, bankruptcy or hypothecation or to exclusion,
attachment, levy or similar process or assignment by operation of law,
and any attempt, voluntary or involuntary, to effect any such action
shall be null, void and of no effect.
16. Assignment - The company, in its sole discretion, may assign its
rights and duties under this Agreement, but Executive may not. This
Agreement shall be binding upon and inure to the benefit of (a) the
Company and its successors and assigns and any purchaser of the
Company or substantially all of the assets of the Company and (b)
Executive, and his designees and his estate.
17. Notices - Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and will be deemed to have
been given, (i) if to Executive, delivered in person or five (5) days
following mailing by first class certified or registered mail, postage
prepaid, to Executive at his home address, or to such addresses as
Executive shall have designated in writing, or (ii) if to the Company,
to the attention of the Chairman of the Board on behalf of the Board
of Directors, at the Company's principal place of business.
18. Governing Law - This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
19. Severability - If any provision of this Agreement shall be determined
to be invalid, illegal or unenforceable in whole or in part, neither
the validity of the remaining part of such provision nor the validity
of any other provision of this Agreement shall in any way be affected.
20. Remedies - Executive acknowledges that a remedy at law for any breach
or threatened breach of the provisions of this Agreement would be
inadequate and therefore agrees that the Company shall be entitled to
injunctive relief, both preliminary and permanent, in addition to any
other available rights and remedies in case of any such breach or
threatened breach; provided, however, that nothing contained herein
shall be construed as prohibiting the Company from pursuing any other
remedies available for any such breach or threatened breach. Executive
further acknowledges and agrees that in the event of a breach by
Executive of any provision of this Agreement, the Company shall be
entitled, in addition to all other remedies to which the Company may
be entitled under this Agreement, to recover from Executive all
reasonable attorney fees incurred by the Company in enforcing this
Agreement. The Company acknowledges and agrees that in the event the
Executive is the prevailing party in an action by the Company to
enforce this Agreement, the Executive shall be entitled to recover
from the Company all reasonable attorney's fees incurred by the
Executive in defending the action.
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IN WITNESS WHEREOF, the Company and Executive have duly executed and delivered
this Agreement effective as of the date and year first above written.
EXECUTIVE
SIGNATURE:
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NAME (PRINTED):
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COMPANY
BY (SIGNATURE):
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NAME (PRINTED):
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