EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“Agreement”), made and entered into as of the 5th day of May 2008 by and
between:
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(i)
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XXXXXXX X. XXXXX, an
individual of Pembroke Pines, Florida (the “Employee”)
and
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(ii)
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21ST CENTURY HOLDING
COMPANY, a Florida corporation with offices and place of business
in Lauderdale Lakes, Florida (the
“Company”).
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P
R E L I M I N A R Y S T A T E M E N T
WHEREAS, the Company is
engaged in the insurance business and desires to employ Employee and to secure
for the Company the benefit of Employee’s experience, efforts and abilities in
connection with the business of the Company, all as provided herein;
and
WHEREAS, the Company has and
will continue to expend substantial resources in connection with the
aforementioned endeavors; and
WHEREAS, the Company desires
to engage Employee as Chief Executive Officer of the Company to perform
executive management functions and other services in connection with the
business of the Company, and
NOW, THEREFORE, in consideration of
the premises and mutual covenants herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Employment. Effective
as of July 1, 2008, the Company employs Employee, and Employee hereby accepts
employment by Company, and agrees to serve the Company, upon the terms and
conditions set forth in this Agreement.
2. Term of
Employment. The Employee shall be employed for a period of
four (4) year(s) from the date set forth in Paragraph 1 herein (the period of
employment may be referred to as the “Term of Employment”).
3. Duties of
Employee. So long as employed hereunder, Employee agrees to
devote Employee’s full business time and energy to the business and affairs of
the Company, to perform Employee’s duties hereunder effectively, diligently and
to the best of Employee’s ability and to use Employee’s best efforts, skill and
abilities to promote the Company’s interests. Employee’s duties shall
include, but are not limited to, executive management functions for the Company
in any positions to which he is appointed by the Company's Board of Directors,
as well as providing any other services as may be determined by the Company from
time to time in the Company’s reasonable discretion.
4. Compensation. For
all services to be rendered by Employee to the Company during the Term of
Employment, the Company agrees to compensate Employee and Employee agrees to
accept from Employer, the following compensation:
(a) Base
Salary. The Company agrees to pay Employee an annual salary of
TWO HUNDRED AND FOURTEEN THOUSAND DOLLARS ($214,000.00) per year payable
biweekly, in the following amount:
Eighty-Two Hundred Thirty Dollars and 77/100
($8,230.77) biweekly
(b) Upon
the effective date of Employment, Employee shall receive 40,000 stock options to
purchase the Company’s common stock pursuant to the 2002 Stock Option Plan of
21st Century Holding Company, with the xxxxx xxxxx set at 2% over the fair
market value on July 1, 2008, vesting 20% per year and expiring six (6) years
from the grant date. Additionally, upon completion of a six (6) month
period employed as the Company’s Chief Executive Officer and so long as the
Employee is still employed by the Company in the same position, Employee shall
receive 40,000 stock options to purchase the Company’s common stock pursuant to
the 2002 Stock Option Plan of 21st Century Holding Company, with the xxxxx xxxxx
set at 2% over the fair market value on January 2, 2009, vesting 20% per year
and expiring six (6) years from the grant date.
(c) Medical
Insurance. So long as Employee is employed by the Company, the
Company agrees to provide medical insurance coverage for the Employee (plus
family) commensurate with the coverage provided by the Company for other
similarly situated employees. Employee, at his option, may elect not
to accept Company medical insurance coverage.
(d) Automobile
Allowance. Throughout the Term of this Agreement, the Company
will pay Executive an automobile allowance in the amount of $500.00 per
month. Such automobile allowance shall be for no more than one
automobile and shall include all expenses related thereto, including, without
limitation, lease expenses, maintenance and insurance.
(e) Vacation/Personal
Time. Employee shall be entitled to reasonable vacations
and/or personal time off during each year of the Term, the time and duration
thereof to be determined by mutual agreement between Employee and the
Company.
5. Termination. Employee’s
employment with the Company may be terminated by the Company if any of the
following shall occur:
(a) Employee
shall be discharged for “good cause” which shall mean that:
(i)
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There
has been continued neglect on the part of the Employee in the performance
of Employee’s duties under this Agreement with notice and an opportunity
to cure: or
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(ii)
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Employee
shall have committed a material breach of any term or condition of this
Agreement; or
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(iii)
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Employee
continued to neglect Employee Handbook Policies and Procedure;
or
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(iv)
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Employee
is convicted of a felony or of any crime involving moral turpitude which
is committed by Employee during the term of this
Agreement.
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Prior to
terminating the Employee for “good cause” under subparts 5(a) (i) – (iii) above,
the Company shall provide the Employee with at least ten (10) days written
notice of the breach and an opportunity to cure the breach. If the
Employee does not cure the breach to the satisfaction of the Board, in its sole
and absolute discretion, during this period, the Company may terminate the
Employee for "good cause." If the Employee is terminated under
subparts 5(a)(iv), his termination will be immediate upon the date of the
conviction and no written notice is required by the Company. If
Employee’s employment with the Company shall be terminated as provided in this
Section 5(a), the Employee shall be entitled to Employee’s base weekly salary
(as provided in Section 4(a) above) prorated only through the date of the
termination of employment.
(b) Termination
by the Company Without Cause. If during the Term of this Agreement
the Employee’s employment is terminated by the Company without cause, the
Company will make a lump sum payment to the Employee in an amount equal one (1)
year’s base salary or the base salary through the balance of the Term remaining
on this Agreement, whichever is a lesser amount. Additionally, the
Company will accelerate all unvested stock options held by the Employee at the
time of termination.
(c) Death. In
the event of the Employee's death, this Agreement shall automatically terminate
as of the date of such death without notice to either party.
(d) Disability. In
the event that the Employee shall be unable to perform his duties hereunder by
virtue of illness or physical or mental disability (from any cause or causes
whatsoever) in substantially the manner and to the extent required of him
hereunder prior to the commencement of such disability and the Employee shall
fail to perform such duties for a period of thirty (30) or more days,
whether or not continuous, in any continuous one hundred and twenty (120) day
period, then the Company shall have the right to terminate this Agreement and
the Employee's employment with the Company as of the end of any calendar month
during the continuance of such disability upon at least fifteen (15) days' prior
written notice to the Employee.
(e) Change
of Control.
(i) For the
purposes of this Agreement, a “Change of Control” shall be deemed to have taken
place if: (1) any person, including a “group” as defined in Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial
owner of Company securities, after the date of this Agreement, having 51% or
more of the combined voting power of the then outstanding securities of the
Company that may be cast for the election of directors of the Company (other
than as a result of an issuance of securities initiated by the Company, or open
market purchases approved by the Board, as long as the majority of the Board
approving the purchases is the majority at the time the purchases are made), or
(2) the persons who were directors of the Company before such transactions shall
cease to constitute a majority of the Board, or any successor to the Company, as
the direct or indirect result of or in connection with, any cash tender or
exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing
transactions.
(ii) The Company
and Employee hereby agree that, if Employee is employed with the Company on the
date on which a Change of Control occurs (the “Change of Control Date”), and if
during the remaining term hereof after the Change of Control Date Employee’s
employment is terminated by the Company (or subsidiary), the Company will make a
lump sum payment to the Employee in an amount equal one (1) year’s base salary
or the base salary through the balance of the Term remaining on this Agreement,
whichever is a lesser amount. Additionally, the Company will
accelerate all unvested stock options held by the Employee at the time of
termination.
6. Resignation. If
the Employee voluntarily resigns his employment with the Company with less than
2 weeks advanced notice, the Employee’s compensation shall be reduced one day
for each day the advanced notice is less than two weeks. Also, the
Employee agrees to reimburse the Company, if necessary to comply with this
provision.
7. Non-Solicitation of Company
Employees Agreement. Employee acknowledge and agrees that his
covenants and obligations contained in his Non-Compete Agreement with the
Company dated December 19, 2005 (the "Non-Compete Agreement") are in full force
and effect and will continue to apply. Employee agrees that for the
period that Employee is employed by the Company and for a period of two (2)
years if Employee resigns or is terminated from the Company, Employee will not,
for any reason, solicit or hire, whether for himself or on behalf of another
company, any of the Company’s current employees. Employees of the
Company will be considered “current” for the period of their employment with the
Company and for a period of six (6) months after their resignation or
termination from the Company.
8. Confidentiality
Agreement. The Employee recognizes, acknowledges and agrees
that the documents, lists, files, records, data and other information developed
and acquired by the Company, including all information developed and acquired by
the Employee in the course of Employee’s employment with the Company as it may
exist from time to time, are considered confidential, and include, but are not
limited to, all information relating to the Company’s projects, proposed
projects or applications (the “Confidential Information”).
(a) Prohibited
Acts. The Employee understands and agrees that all such
Confidential Information is to be preserved and protected, is not to be
disclosed or made available, directly or indirectly, to third persons for
purposes unrelated to the objectives of the Company, without prior authorization
of an executive officer of the Company, and is not to be used, directly or
indirectly, for any purpose unrelated to the objectives of the Company without
prior written authorization of an executive officer of the Company.
(b) Continuing
Obligations. The Employee understands and agrees that
Employee’s obligations under this Agreement, specifically including the
obligations to preserve and protect and not to disclose (or make available to
third persons) or use for purposes unrelated to the objectives of the Company,
without prior written authorization of an executive officer of the Company,
Confidential Information, continue indefinitely and do not, under any
circumstances or for any reason (specifically including wrongful discharge),
cease upon termination of employment; and that, in the event of termination of
the Employee’s employment for any reason (specifically including wrongful
discharge), such Confidential Information shall remain the sole property of the
Company and shall be left in its entirety in the undisputed possession and
control of the Company after such termination.
9. Enforcement of
Covenants. In addition to all other remedies available at law
or in equity, the covenants contained in Sections 7 and 8 hereof shall be
enforceable by decree of specific performance and/or injunctive relief and shall
be construed as separate covenants covering competition in the geographical
territory set forth, and if any court shall finally determine that the
restraints provided for therein are too broad as to the area, activity or time
covered, then the area, activity or time covered, as the case may be, may be
reduced by such court to whatever extent the court deems reasonable and such
covenants shall be enforced as to such reduced area, activity or
time.
10. Notices. All
notices, demands and other communications which may or are required to be given
to or made by either party to the other in connection with this Agreement shall
be in writing, shall be given by hand delivery or by United States Certified or
Registered mail, return receipt requested, postage prepaid, and shall be deemed
to have been given or made when received by the addressee, addressed to the
respective parties as follows:
If to
Employee: XXXXXXX
X. XXXXX
00000 XX 0 Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
If to
Company: 21ST
CENTURY HOLDING COMPANY
0000 Xxxx Xxxxxxx Xxxx Xxxx., Xxxxx
000
Xxxxxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Corporate Secretary
11. Miscellaneous:
(a) This
Agreement has been executed in and shall be governed and construed in accordance
with the laws of the State of Florida.
(b) Unless
otherwise provided herein, all rights, powers, and privileges conferred
hereunder upon the parties shall be cumulative and not restrictive of those
given by law.
(c) No
failure of any party hereto to exercise any power given such party hereunder or
to insist upon strict compliance by the other party with its obligations
hereunder, and no customary practice of the parties at variance with the terms
hereof, shall constitute a waiver of a party’s right to demand exact compliance
with the terms hereof.
(d) Time
is of the essence in complying with the terms, conditions and provisions of this
Agreement.
(e) This
Agreement and the Non-Compete Agreement contains the entire agreement of the
parties hereto pertaining to the subject matter hereof, and no representation,
inducements, promises or agreements between the parties not contained herein
shall be of any force or effect.
(f) This
Agreement is binding upon and shall inure to the benefit of the Company, its
successors and assigns and the Employee and his respective heirs, personal
representatives, successors and assigns.
(g) Any
amendment to this Agreement shall not be binding upon the parties to this
Agreement unless such amendment is in writing and due executed by all the
parties hereto.
(h) In
the event any litigation or controversy arises out of or in connection with this
Agreement between the parties hereto, the prevailing party in such litigation or
controversy shall be entitled to recover from the other party or parties all
reasonable attorney’s fees, expenses and suit costs, including those associated
with any appellate or post-judgment collection proceeding.
IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed as of the
day, month and year first above written.
/s/ Xxxxxxx X.
Xxxxx
XXXXXXX X. XXXXX
(the “Employee”)
a Florida corporation
By: /s/ Xxxxxxx
X. Xxxxx
Name: XXXXXXX X.
XXXXX
Title: President