EXHIBIT 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
on August 2, 2005, effective as of June 1, 2005 (the "Effective Date) by and
between Empire Financial Group, Inc. a Florida corporation (the "Company"), and
Xxxxxx X. Xxxxxxxxx Xx. (the "Employee").
RECITALS
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A. The Employee is currently employed by the Company.
B. The Employee possesses intimate knowledge of the business and
affairs of the Company, its policies, methods and personnel.
C. The Employee is willing to make his services available to the
Company, on the terms and conditions hereinafter set forth.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment.
1.1 Employment and Term. The Company hereby agrees to employ
the Employee and the Employee hereby agrees to serve the Company, on the terms
and conditions set forth herein, for the period commencing on the Effective Date
and ending June 1, 2007 unless sooner terminated as hereinafter set forth. The
Term of this Agreement shall automatically continue after expiration on a month
to month basis until either the Company or the Employee provides the other party
with at least 90 days prior written notice that the Agreement shall terminate
effective on a date.
1.2 Duties of Employee. The Employee shall serve as the "Chief
Executive Officer and President" for Empire Financial Holding Company and
"President" of the company's wholly owned subsidiary, Empire Financial Group,
Inc. During the term of Employment, the Employee shall diligently perform all
services as may be reasonably assigned to the Employee by the Company consistent
with his position, and shall exercise such power and authority as may from time
to time be delegated to the Employee by the Company. The Employee shall devote
all of the Employee's working time and attention to the business and affairs of
the Company (excluding any vacation and sick leave to which the Employee is
entitled), render such services to the best of the Employee's ability, and use
the Employee's reasonable best efforts to promote the interests of the Company.
It shall not be a violation of this Agreement, after written notice to and
approval of the Officers of the Company, for the
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Employee to (a) serve on civic or charitable boards or committees, (b) deliver
lectures, fulfill speaking engagements or teach at seminars, (c) manage personal
investments as an employee of the Company in accordance with this Agreement.
1.3 Place of Performance. In connection with his employment by
the Company, the Employee shall be based at the Company's principal Employee
offices, except for travel reasonably necessary in connection with the Company's
business.
2. Compensation.
2.1 Salary. Commencing on the Effective Date of this
Agreement, the Employee shall receive compensation at the annual rate of
$240,000 during the term of this Agreement, with such salary payable in
installments consistent with the Company's normal payroll schedule, subject to
applicable withholding and other taxes and forgiven monthly.
2.2 Incentive Compensation. The Employee shall also be
entitled to receive such other bonus payments or performance compensation as
detailed in schedule "A" annexed hereto.
3. Expense Reimbursement and Other Benefits.
3.1 Expense Reimbursement. During the term of the Employee's
employment hereunder, the Company, upon the submission of reasonable supporting
documentation by the Employee, shall reimburse the Employee for all reasonable
approved expenses actually paid or incurred by the Employee in the course of and
pursuant to the business of the Company, including expenses for travel and
entertainment.
3.2 Incentive, Savings and Retirement Plans. During the term
of this Agreement, the Employee shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and programs
applicable to other Employees of the Company and its subsidiaries as may be in
effect from time to time.
3.3 Healthcare Benefit Plans. During the term of this
Agreement, the Employee shall be eligible for participation in and shall receive
all benefits under healthcare benefit plans, practices, policies and programs
provided by the Company and its subsidiaries that may be in effect from time to
time (including, without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs), at no cost to the employee.
3.4 Working Facilities. During the term of the Employee's
employment hereunder, the Company shall furnish the Employee with an office,
support and such other facilities and services suitable to his position and
adequate for the performance of the Employee's duties hereunder as reasonably
determined by the Company.
3.5 Vacation. During the term of this Agreement, the Employee
shall be entitled to three weeks paid vacation in accordance with the
appropriate plans, policies, programs and practices of the Company and its
subsidiaries as in effect at any time hereafter
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with respect to other key Employees of the Company and its subsidiaries;
provided, however, that in no event shall the Employee be entitled to less than
one week of paid vacation per year.
4. Termination.
4.1 Termination for Cause. Notwithstanding anything contained
to the contrary in this Agreement, this Agreement may be terminated by the
Company for Cause. As used in this Agreement, "Cause" shall only mean (i) the
willful and material failure or refusal of the Employee to perform the duties or
render the services assigned under this Agreement (except during reasonable
vacation periods or sick leave) or other material breach of this Agreement,
which is not remedied within ten business days after receipt of written notice
from the Company, (ii) the indictment of the Employee for any criminal act which
is a felony, or (iii) a material breach of the Employee's representation in
Section 15, which is not remedied within ten business days after receipt of
written notice from the Board. The determination of Cause for purposes of this
Agreement shall only be made by the majority vote of the Board (excluding the
Employee). Upon any termination pursuant to this Section, the Employee shall be
entitled to be paid his Base Salary and any commissions due to the date of
termination and the Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses incurred prior to the
date of termination).
4.2 Disability. Notwithstanding anything contained in this
Agreement to the contrary, the Company, by written notice to the Employee, shall
at all times have the right to terminate this Agreement, and the Employee's
employment hereunder, if the Employee shall, as the result of mental or physical
incapacity, illness or disability, fail to perform his duties and
responsibilities provided for herein for a period of more than 90 days in any
12-month period. Upon any termination pursuant to this Section, the Employee
shall be entitled to be paid his Base Salary and commissions due to the date of
termination and the Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses incurred prior to the
date of termination).
4.3 Death. In the event of the death of the Employee during
the term of his employment hereunder, the Company shall pay to the estate of the
deceased Employee an amount equal his Base Salary to the date of death and the
Company shall have no further liability hereunder (other than for reimbursement
for reasonable business expenses incurred prior to the date of termination and
transferability of the stock options as per schedule "A").
4.4 Termination Without Cause. The Company may terminate the
Employee's employment under this Agreement without Cause upon giving the
Employee 90 days prior written notice of such termination. If such termination
was to take place, all provisions in section 5.3 shall be voided and the
employee is free to seek employment without restriction. Upon termination
without Cause, the Employee shall be entitled to receive only his then current
Base Salary for the then remaining Term of this Agreement
4.5 Termination by Employee for Good Reason or by Resignation.
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(i) The Employee shall have the right to terminate his
employment under this Agreement at any time upon at least 90 days prior written
notice to the Company for Good Reason. For purposes of this Agreement, "Good
Reason" means (i) a material breach of the Company's obligations under this
Agreement, which is not remedied within ten business days after receipt of
written notice from the Employee, or (ii) any termination by the Employee (other
than a termination for Cause) during the three-month period following the
effective date of any "Change in Control." Upon termination for Good Reason, the
Employee shall be entitled to receive his then current Base Salary and
performance benefit for the then remaining term of this Agreement
(ii) The Employee shall have the right to terminate his
employment under this Agreement by resignation at any time upon at least 90 days
prior written notice to the Company. Upon such termination by resignation, the
Employee shall be entitled to be paid his Base Salary and incentive compensation
to the date of termination and the Company shall have no further liability
hereunder (other than for reimbursement for reasonable business expenses
incurred prior to the date of termination). Except as specifically set forth in
this Section, the Employee shall not have any additional liability or obligation
hereunder by reason of such termination.
5. Restrictive Covenants.
5.1 Confidentiality and Rights to Inventions.
(a) Confidential Information. The Employee hereby
acknowledges that the Employee will or may be making use of, acquiring and
adding to confidential information of a special and unique nature and value
affecting and relating to the Company and its operations, including, but not
limited to, its business, the identities of its customers and suppliers, its
data base information, prices paid by the Company for inventory, its business
practices, marketing strategies, expansion plans, contracts, business records
and other records, trade secrets, inventions, techniques, know-how and
technologies, whether or not patentable, and other similar information relating
to the Company (all the foregoing regardless of whether same was known to the
Employee prior to the date hereof is hereinafter referred to collectively as
"Confidential Information"). The Employee further recognizes and acknowledges
that all Confidential Information is the exclusive property of the Company, is
material and confidential, and greatly affects the legitimate business
interests, goodwill and effective and successful conduct of the Company's
business. Accordingly, the Employee hereby covenants and agrees that he will use
the Confidential Information only for the benefit of the Company and shall not
at any time, directly or indirectly, either during the Term of this Agreement or
afterward, divulge, reveal or communicate any Confidential Information to any
person, firm, corporation or entity whatsoever, or use any Confidential
Information for the Employee's own benefit or for the benefit of others.
(b) Rights to Inventions, Patents and Copyrights. The
Employee shall promptly disclose in writing to the Company: all ideas,
inventions, discoveries, devices, machines, apparatus, methods, compositions,
know-how, works, processes and improvements to any thereof, whether or not
patentable or copyrightable, that the Employee may conceive, make,
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develop, invent, reduce-to-practice, author or discover, whether solely or
jointly or commonly with others, during the Employee's employment with the
Company, or within one calendar year following the termination of the Employee's
employment with the Company, which relate to the business of the Company at the
time of termination (the items specified in this section are hereinafter
collectively referred to as "Inventions"). All Inventions are the sole and
exclusive property of the Company. The Employee shall promptly assign, transfer
and set over unto the Company, its successors and assigns, all of his rights,
title and interest in and to all Inventions, all applications for letters patent
or copyrights, foreign and domestic, which have or may be filed on such
Inventions, all copyrights, all letters patent of the United States and its
territorial possessions and all letters patent of foreign countries which may be
granted therefore, and all reexaminations and reissues of said letters patent,
including the subject matter of any and all claims which may be obtained in
every such domestic and foreign patent, the same to be held and enjoyed by the
Company for its own and exclusive use and advantage, and for the exclusive use
and advantage of its successors, assigns and other legal representatives, to the
full end of the term or terms for which said copyrights and letters patent of
the United States, territories and foreign countries are or may be granted,
reexamined or reissued, as fully and entirely as the same would have been held
and enjoyed by the Employee if the assignment had not been made. The Employee
further covenants and agrees that the Employee will, during and subsequent to
the term of this Agreement, without demanding any other consideration therefore,
at any time, upon request, execute, or cause to be executed, and deliver any and
all papers that may be necessary or desirable to perfect the title to any
Invention and to such letters patent and copyrights as may be granted therefore,
in the Company, its successors, assigns or other legal representatives, and that
if the Company, its successors, assigns, or other legal representatives shall
desire to file any subsequent or derivative application, or to secure a reissue
or reexamination of such letters patent, or to file a disclaimer relating
thereto, the Employee will upon request, sign, or cause to be signed, all
papers, make or cause to be made all rightful oaths, and do all lawful acts
requisite for such action.
The Employee does further covenant and agree, that he will, at
any time during and subsequent to the term of this Agreement hereof, upon
request, communicate to the Company, its successors, assigns, or other legal
representatives, such facts relating to the Inventions, letters patent and
copyrights or to the history thereof, as may be known to him, and testify, at
the Company's expense, as to the same in any interference or other litigation or
proceeding in which the Employee is not a party and does not have an interest,
when requested to do so.
5.2 Non solicitation of Employees. While employed by the
Company and for a period of one year thereafter, the Employee shall not directly
or indirectly, for himself or for any other person, firm, corporation,
partnership, association or other entity, attempt to employ or enter into any
contractual arrangement with any employee or former employee of the Company,
unless such employee or former employee has not been employed by the Company for
a period in excess of six months.
5.3 Non-Competition. While employed by the Company and for a
period of one year thereafter, the Employee shall not, directly or indirectly,
whether as principal, agent, shareholder (except as set forth below) or in any
other capacity, whether or not compensation is
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received, engage or participate in any activity for, be employed by, assist or
have an equity interest in (other than as a passive investor of no more than
five percent with no involvement in the management or conduct of the affairs of
business of such entity) any business or other entity which is or plans to enter
into the securities brokerage business in Seminole County, Florida.. The
Employee acknowledges that the provisions of this Section 5.3 are reasonably
necessary for the purposes of protecting the Company's and its subsidiaries'
legitimate business interests and goodwill. It is accordingly the intention of
the parties that this Section 5.3 be enforceable to the fullest extent
permissible under applicable law. The Employee agrees, however, that in the
event any restriction or limitation of this Section 5.3, or any portion thereof,
shall be declared or held to be invalid or unenforceable by a court of competent
jurisdiction, then such restriction or limitation shall be deemed amended to
substitute or modify it, as either or both may be necessary, to render it valid
and enforceable.
5.4 Equitable Relief. It is recognized and hereby acknowledged
by the parties hereto that a breach by the Employee of any of the covenants
contained in this Article 5 will cause irreparable injury to the Company's and
its subsidiaries' legitimate business interests and goodwill and that such
injury would not be adequately compensated by monetary damages. Accordingly, the
Employee recognizes and hereby acknowledges that the Company and any of its
subsidiaries shall be entitled to specific performance of any of the provisions
of this Article 6 and an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in this Article 5 by the Employee or any of his affiliates, associates, partners
or agents, either directly or indirectly, and that such right to injunction and
specific performance shall be cumulative and in addition to whatever other
remedies the Company or its subsidiaries may possess.
5..5 Books and Records. All books, records, and accounts
relating in any manner to the customers or clients of the Company, whether
prepared by the Employee or otherwise coming into the Employee's possession,
shall be the exclusive property of the Company and shall be returned immediately
to the Company on termination of the Employee's employment hereunder or on the
Company's request at any time.
6. Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without
application of any conflicts of laws principles, and any proceeding contemplated
by Section 6 or to enforce any arbitration award contemplated by Section 11
shall be heard in the state or federal courts located in Seminole County,
Florida. The parties hereto hereby consent to personal jurisdiction in such
venue and waive any claim or argument that such venue is inconvenient or
improper.
7. Notices: Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered by hand or three days after being deposited in the United States mail,
by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
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If to the Company: Empire Financial Holding Company
0000 Xxxx Xxxxx Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Board of Directors
If to the Employee: Xxxxxx X. Xxxxxxxxx Xx.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, Xx 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other in the aforesaid manner.
8. Successors.
(f) This Agreement is personal to the Employee and without the
prior written consent of the Company shall not be assignable by the Employee
other than the transfers of benefits hereunder by will or the laws of descent
and distribution.
(g) This Agreement shall inure to the benefit of, be
enforceable by and be binding upon the Company's successors and assigns.
(h) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
9. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of
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time or size of area, or both, the otherwise invalid provision will be
considered to be reduced to a period or area, which would cure such invalidity.
10 Waivers. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate nor be construed as
a waiver of any subsequent breach or violation.
11. Arbitration. Except as set forth in Section 6, any controversy
between the parties regarding this Agreement and any claims arising out of this
Agreement or its breach shall be required to be submitted to binding
arbitration. Either party shall have the right to commence arbitration
proceedings. The arbitration proceedings shall be conducted, by a panel of three
arbitrators, pursuant to the Commercial Arbitration Rules of the National
Association of Securities Dealers (NASD). The arbitration shall be conducted in
Seminole County, Florida and the arbitrator shall have the right to award actual
damages and attorney fees and costs, but shall not have the right to award
punitive, special, exemplary or consequential damages against any party. The
parties shall hold any award resulting from such proceeding or settlement in
connection therewith in strict confidence, unless the disclosure of such award
or settlement is required by law.
12. Damages. Nothing contained herein shall be construed to prevent the
Company or the Employee from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement.
13. No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
(other than the parties hereto and, in the case of Employee, his heirs, personal
representative(s) and/or legal representative) any rights or remedies under or
by reason of this Agreement.
14. Conflicts With Other Agreements. The Employee represents to the
Company that the Employee's execution and performance of this Agreement does not
violate the provisions of any employment, non-competition or other agreement to
which the Employee is a party or by which the Employee is bound.
15. Indemnification. The Company agrees to promptly execute and deliver
to the Employee an Indemnification Agreement in substantially the same form as
utilized for the Chairman of the Board, it being agreed that the Company will
use its best efforts to ensure that such agreement will provide for mandatory
indemnification and advancement of expenses to the fullest extent permitted by
law.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY:
EMPIRE FINANCIAL HOLDING COMPANY
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
Chairman of the Board
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxxx Xx.
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Xxxxxx X. Xxxxxxxxx Xx.
Chief Executive Officer & President
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SCHEDULE A
INCENTIVE COMPENSATION
1. Inclusion in top tier as a full share of the company's management bonus
pool.
2. 300,000 10 year options to purchase EFH common shares at $2.00 per
share, these options are transferable upon death.
3. Full vesting in share grant from previously employment agreement dated
June 2003
4. The executive may be entitled to other bonus or compensation awarded by
the Board of Directors.
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