EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of and effective March 22, 2002, by and between SUMMIT BROKERAGE SERVICES,
INC, a Delaware corporation (the "Company"), and Xxxxxxxx X. Xxxxx (the
"Executive").
RECITALS:
WHEREAS, the Company and Executive have entered into that certain
Stock Purchase Agreement dated March 22, 2002 (the "Stock Purchase Agreement")
pursuant to which Executive will purchase shares of common stock of the Company
and assume the title of Chief Executive Officer and Chairman upon the closing
of such purchase (the "Closing"); and
WHEREAS, the Company is engaged in the securities business as a
securities broker/dealer firm registered with the NASD, and is also engaged,
through a subsidiary, in the insurance business as an insurance broker (the
"Business"), and has invested substantial time and money to develop and build
substantial relationships with prospective or existing customers and other
individuals and businesses with which it does business; and
WHEREAS, during the period from and including the date of this
Agreement and the Closing (the "Interim Period"), the Company desires to employ
the Executive as Director of Recruiting and assign to Executive such other
duties as mutually agreed between the Executive and the Board of Directors of
the Company (the "Board"); and
WHEREAS, the Executive is willing to make his services available to
the Company on the terms and conditions hereinafter set forth; and
WHEREAS, upon the Closing, this Agreement will be amended and restated
in connection with Executive's assuming the offices of Chief Executive Officer
and Chairman of the Company.
NOW, THEREFORE, for the reasons set forth hereinabove, and in
consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
1. EMPLOYMENT.
1.1 Employment and Term. The Company hereby agrees to
employ the Executive and the Executive hereby agrees to serve the Company on
the terms and conditions set forth herein.
1.2 Duties of Executive. During the Interim Period,
which shall be hereinafter referred to as the "Term of Employment" under this
Agreement, the Executive shall serve as Director of Recruiting and to perform
such additional services as shall be mutually agreed between Executive and the
Board.
2. TERM.
2.1 Term. The Term of Employment under this Agreement,
and the employment of the Executive hereunder, shall commence on March 22, 2002
(the "Commencement Date") and shall terminate upon fifteen (15) days' prior
written notice of one Party to the other Party.
3. COMPENSATION.
3.1 Base Salary. The Executive shall receive a base
salary at the annual rate of Fifty Thousand Dollars ($50,000,00) (the "Base
Salary") during the Term of Employment, with such Base Salary payable in
installments consistent with the Company's normal payroll schedule, subject to
applicable withholding and other taxes. The Base Salary shall be reviewed, at
least annually, for merit increases and may, by action and in the discretion of
the Board, be increased at any time or from time to time. Upon termination of
Executive's employment hereunder, any earned and unpaid salary shall be paid to
Executive at that time.
3.2 Override. The Executive shall receive an override or
fee equal to three percent (3%) ("Override") of the first twelve month's gross
production generated by any and all brokers recruited by Executive and engaged
by the Company as independent registered representatives who remain with the
Company for no less than twelve months from their date of hire by the Company,
such override period to commence on the date of hire of each such broker and to
terminate on the date that is the last day of twelve consecutive months
thereafter. Any and all payments made by the Company to third parties for the
recruitment of the subject brokers shall be included with the twelve months'
gross production for purposes of determining the amount of the Override.
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 Reimbursement of Expenses. Upon the submission of
proper substantiation by the Executive, and subject to such rules and
guidelines as the Company may from time to time adopt, the Company shall
reimburse the Executive for all reasonable expenses actually paid or incurred
by the Executive during the Term of Employment in the course of and pursuant to
the business of the Company. The Executive shall account to the Company in
writing for all expenses for which reimbursement is sought and shall supply to
the Company copies of all relevant invoices, receipts or other evidence
reasonably requested by the Company.
4.2 Compensation/Benefit Programs. During the Term of
Employment, the Company shall provide benefits to the Executive in accordance
with the Company's standard benefit package.
4.3 Working Facilities. During the Term of Employment,
the Company shall furnish the Executive with an office, secretarial help and
such other facilities and services suitable to his position and adequate for
the performance of his duties hereunder.
4.4 Automobile. During the Term of Employment, the
Company shall provide the Executive with a non-accountable automobile allowance
of $700.00 per month, which amount is intended to: (a) compensate the Executive
for wear and tear; and (b) reimburse the Executive for all costs of gasoline,
oil, repairs, maintenance, insurance and other expenses incurred by the
Executive by reason of the use of the Executive's automobile for Company
business from time to time; provided however, the Executive shall be reimbursed
for reasonable expenses incurred from commuting between Boca Raton, Florida and
Indialantic, Florida.
4.5 Stock Option. In connection with his employment
hereunder, the Executive shall be granted on the Commencement Date a
non-qualified option (the "Stock Option") to purchase 7,000,000 shares of
common stock of the Company ("Common Stock") at an exercise price of $0.25 per
share and terminating on December 31, 2007 (if not terminated earlier under the
terms of the option), and
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such Stock Option shall be evidenced by a stock option agreement with such
additional terms as are customary. The stock option agreement shall vest and
become exercisable in full on the date of grant. The Company hereby agrees to
pay the amount of Executive's income tax liability incurred by him upon
exercise of the Stock Option or any portion thereof that is directly related to
such exercise; provided, however, that the Company's obligation to pay such tax
shall not exceed the amount of the tax benefit the Company receives as a direct
result of the Executive's exercise of the Stock Option or any portion thereof.
Coverage of such tax by the Company shall be made in the form of a bonus to the
Executive, which will be also subject to the same tax coverage by the Company,
up to a maximum amount of the Company's tax benefit derived from such bonus.
The amount of the total tax liability of the Executive (and, therefore, the
Company's liability, up to a maximum of the tax benefit to the Company in
connection with the foregoing) shall be calculated by the Company at the time
of exercise of the Stock Option or any portion thereof pursuant to the
following convergence formula recognized by the Internal Revenue Service as
applicable to calculating such tax liability: I divided by (1 - X) multiplied
by X (where "I" is the amount deemed compensation pursuant to option exercise
and where "X" is the Executive's highest marginal income tax bracket). For
example, assuming the compensation resulting from option exercise if
$1,000,000, and the Executive was in the 40% tax bracket, the calculation for
the total tax liability would be as follows:
Income x .40 = amount of tax liability
------------
1 - .40
$1,000,000 x .40 = $1,000,000 x .40 = $666,666.67 (total tax liability)
---------------- ------------------
1 - .40 .60
4.6 Other Benefits. The Executive shall be entitled to a
minimum of two weeks of vacation each calendar year during the Term of
Employment, and such additional time as the Executive and the Board shall
agree, to be taken at such times as the Executive and the Company shall
mutually determine and provided that no vacation time shall interfere with the
duties required to be rendered by the Executive hereunder. Any vacation time
not taken by the Executive during any calendar year may not be carried forward
into any succeeding calendar year. The Executive shall receive such additional
benefits, if any, as the Board shall from time to time determine.
5. TERMINATION. Upon termination of Executive's employment
hereunder for any reason, the Company shall pay to the Executive his Base
Salary to the date of termination. The Company shall have no further liability
under this Agreement other than for reimbursement for reasonable business
expenses incurred prior to the date of termination, subject, however, to the
Company's policy on reimbursements of business expenses.
6. RESTRICTIVE COVENANTS.
6.1 Confidential Information. The Executive hereby
acknowledges and agrees that in the course of his employment he will acquire
knowledge and will have access to information, whether in written, typed or
other form, regarding the business operations of the Company. Specifically, the
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following types of information are deemed confidential ("Confidential
Information") and shall not be disclosed or used by the Executive except as
required and authorized in furtherance of the Company's Business: specific
prospective customers of the Company; specific existing customers of the
Company; other individuals and businesses with whom the Company does business;
proprietary information; trade secrets, as defined in Section 688.002(4),
Florida Statute's; financial or corporate records; operational, sales,
promotional, and marketing methods and techniques; computer programs, including
source codes and/or object codes; and/or any other proprietary, competition
sensitive, or technical information or secrets developed with or without the
help of the Executive. The term "Confidential Information" shall not include
information brought to the Company during Executive's Term of Employment by
Executive or by Executive's Team (as such term is defined in Section 6.3,
below).
6.2 Nondisclosure. The Executive shall not, during the
term of his employment, or at any time thereafter, either directly or
indirectly, communicate, publish, disclose, divulge, or use, or authorize
anyone else to communicate, publish, disclose, divulge, or use, for the benefit
of himself or any other person, persons, partnership, association, corporation,
or other entity, any Confidential Information which may be communicated to the
Executive or of which the Executive may be apprised by virtue of his employment
with the Company. Any and all information, knowledge, know-how, and techniques
which the Company designates as confidential shall be deemed confidential for
purposes of this Agreement, except information which the Executive can
demonstrate came to his attention prior to disclosure thereof by the Company;
or which, at or after the time of disclosure by the Company to the Executive,
lawfully had become a part of the public domain through lawful publication or
communication by others. The term "Confidential Information" shall not include
information brought to the Company during Executive's Term of Employment by
Executive or by Executive's Team.
6.3 Non-solicitation of Employees and Clients. The
Executive specifically acknowledges that he will have access to Confidential
Information, including, without limitation, prospective and existing customers
or customer lists of the Company. The Executive covenants and agrees that
during the term of this Agreement, and for a continuous uninterrupted period of
twelve (12) months, commencing upon the expiration or termination of the
Executive's relationship with the Company, except as otherwise approved in
writing by the Company, the Executive shall not, either directly or indirectly,
for himself, or through, on behalf of, or in conjunction with any person,
persons, partnership, association, corporation, or entity:
(a) Divert or attempt to divert or solicit any
prospective customer or existing customer of the Company to any competitor by
direct or indirect inducement or otherwise; or
(b) Employ or hire or seek to employ or hire
any person who is at that time working for the Company as an employee or
independent registered representative, any affiliate of the Company, or
otherwise directly or indirectly induce or solicit such person to leave his or
her employment.
For purposes of Subsection 6.3(a) above: (i) the term "prospective
customer" shall exclude those prospects first contacted for Company business
during the Term of Employment by the Executive or by Executive's Team; and (ii)
the term "existing customers" shall exclude those customers first brought to
the Company during Executive's Term of Employment by Executive or by
Executive's Team.
For purposes of Subsection 6.3(b) above, the terms "employee" or
"independent registered representative" shall exclude those persons who were
brought to the Company by Executive during his Term of Employment (the
"Executive's Team").
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6.4 Reasonably Necessary. The Company and the Executive
agree that the Confidential Information set forth in Section 6.1 and the
substantial relationships with the Company's specific prospective and existing
customers and vendors: (i) are valuable, special, and a unique asset of the
Company; (ii) have provided and will hereafter provide the Company with a
substantial competitive advantage in the operation of its Business; and (iii)
are a legitimate business interest of the Company. The Company and the
Executive also agree that the existence of these legitimate business interests
justifies the need for the restrictive covenants set forth in this Article 2,
and the restrictive covenants are reasonably necessary to protect the Company's
legitimate business interests.
6.5 Reasonable Restrictions. The Executive agrees and
acknowledges; (a) that the geographical and time limitations contained in this
Agreement are reasonable and properly required for the adequate protection of
the business interests of the Company; and (b) the restrictions contained in
this Article 6 (including without limitation the length of the term of the
provisions of this Article 6) are not overbroad, overlong, or unfair and are
not the result of overreaching, duress or coercion of any kind. The Executive
further acknowledges and confirms that his full, uninhibited and faithful
observance of each of the covenants contained in this Article 6 will not cause
him any undue hardship, financial or otherwise, and that enforcement of each of
the covenants contained herein will not impair his ability to obtain employment
commensurate with his abilities and on terms fully acceptable to him or
otherwise to obtain income required for the comfortable support of him and his
family and the satisfaction of the needs of his creditors. The Executive
acknowledges and confirms that his special knowledge of the Business of the
Company is such as would cause the Company serious injury or loss if he were to
use such ability and knowledge to the benefit of a competitor or was to compete
with the Company in violation of the terms of this Article 6. It is agreed by
the Executive that if any portion of the restrictions contained in this
Agreement are held to be unreasonable, arbitrary, or against public policy,
then the restriction shall be considered divisible, both as to the time and to
the geographical area, with each month of the specified period being deemed a
separate period of time, and each country or portion thereof of the specified
area being deemed a separate geographical area, so that the lesser period of
time or geographical area shall remain effective, so long as the same is not
unreasonable, arbitrary, or against public policy. The parties hereto agree
that in the event any court of competent jurisdiction determines the specified
period or the specified geographical area of the restricted territory to be
unreasonable, arbitrary, or against public policy, a lesser time period or
geographical area which is determined to be reasonable, non-arbitrary, and not
against public policy may be enforced against Executive.
6.6 Continuity of Restrictions. If the Executive shall
violate any of the terms or covenants contained herein, and if any court action
is instituted by the Company to prevent or enjoin such violation, then the
period of time during which the terms or covenants of this Agreement shall
apply, as provided in this Agreement, shall be lengthened by a period of time
equal to the period between the date of the initial breach of the terms or
covenants contained in this Agreement, whether or not the Company had knowledge
of the breach, and the date on which the decree of the court disposing of the
issues upon the merits shall become final and not subject to further appeal.
6.7 Books and Records. All notes, data, reference
material, sketches, drawings, memoranda, files, documents, specifications and
any records in any way relating to any of the Confidential Information or to
the Company's Business, whether prepared by the Executive or otherwise coming
into the Executive's possession, shall remain the exclusive property of the
Company and shall not be removed from the premises of the Company under any
circumstances whatsoever without the prior written consent of the Company. Upon
the request of the Company, or absent such request, upon the
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termination of the Executive's employment with the Company for any reason, the
Executive shall immediately return the Company all such property, materials and
any and all copies thereof in the Executive's possession. The term
"Confidential Information" shall not include information brought to the Company
during Executive's Term of Employment by Executive or by Executive's Team.
6.8 Definition of Company. Solely for purposes of this
Article 6, the term "Company" also shall include any existing or future
subsidiaries of the Company that are operating during the time periods
described herein and any other entities that directly or indirectly, through
one or more intermediaries, control, are controlled by or are under common
control with the Company during the periods described herein.
6.9 Survival. The provisions of this Article 6 shall
survive the termination of this Agreement, as applicable.
7. REMEDIES.
7.1 Liquidated Damages. The Executive and the Company
hereby acknowledge and agree that, in the event of any breach by the Executive,
directly or indirectly, of the foregoing restrictive covenants under Article 6,
it will be difficult to ascertain the precise amount of damages that may be
suffered by the Company by reason of such breach; and accordingly, the parties
hereby agree that, as liquidated damages (and not as a penalty) in respect of
any such breach, the Executive shall be required to provide an accounting of
any and all benefits received or derived, either directly or indirectly, by the
Executive as a result of such breach, including, but not limited to, true and
correct financial records, or other data detailing the financial benefit the
Executive received or derived, directly or indirectly, from any and all
volatile acts or activities, and the Executive thereafter shall be required to
pay to the Company, as damages, cash amounts equal to any and all gross
revenues received or derived by the Executive, directly or indirectly, from any
and all volatile acts or activities. The parties hereby agree that the
foregoing constitutes a fair and reasonable estimate of the actual damages that
might be suffered by reason of any breach of any of the covenants contained in
Article 6 of this Agreement by the Executive, and the parties hereby agree to
such liquidated damages in lieu of any and all other measures of damages that
might be asserted in respect of any subject breach.
7.2 Injunction. The Executive agrees that a violation or
a breach of the terms, covenants, or provisions contained in this Agreement
would cause irreparable injury to the Company, and that the remedy at law for
any violation or breach would be inadequate and would be difficult to
ascertain, and therefore, in the event of the violation or breach, or
threatened violation or breach of any such terms, covenants, or provisions
contained in this Agreement, the Company shall have the independent right to
enjoin the Executive from any threatened or actual activities in violation
thereof. The Executive hereby consents and agrees that temporary and permanent
injunctive relief may be granted in any proceedings which might be brought to
enforce any such terms, covenants, or provisions without the necessity of proof
of actual damages or the posting of a bond. In the event the Company does apply
for such an injunction, the Executive shall not raise as a defense thereto that
the Company has an adequate remedy at law.
8. ASSIGNMENT. The Executive shall not have the right to assign
or delegate his rights or obligations hereunder, or any portion thereof, to any
other person. This Agreement, and the Company's rights and obligations
hereunder, shall inure to the benefit of and be binding upon the Company's
successors and assigns.
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9. INDEPENDENT COVENANTS. The parties agree that each of the
covenants and provisions contained in this Agreement shall be deemed severable
and construed as independent of any other covenant or provision.
10. SEVERABILITY. If all or any portion of a covenant or
provision in this Agreement is held invalid, unreasonable or unenforceable by a
court or agency having valid jurisdiction in an unappealed final decision to
which the Company is a party, the remaining covenants and provisions shall
remain valid and enforceable. The Executive expressly agrees to be bound by any
lesser covenant or provision subsumed within the terms of such covenant or
provision that imposes the maximum duty permitted by law, as if the resulting
covenant or provision were separately stated in, and made a part of this
Agreement.
11. ATTORNEYS' FEES. In the event of a dispute regarding, arising
out of, or in connection with the breach, enforcement, or interpretation of
this Agreement, including, without limitation, any action seeking declaratory
relief, equitable relief, injunctive relief, or damages, or any litigation or
cause of action, including, without limitation, any appeals, federal bankruptcy
proceedings, receivership or insolvency proceedings, reorganization, or other
proceedings, the prevailing party shall recover all costs and reasonable
attorneys' fees incurred in connection therewith, including without limitation
at the pre-trial, trial and appellate levels, and any costs of collection.
12. GOVERNING LAW. The validity, interpretation and enforcement
of this Agreement shall be governed by and construed in accordance with the
local laws of the State of Florida (without giving effect to its conflicts of
laws provisions), and to the exclusion of the law of any other forum, without
regard to the jurisdiction in which any action or special proceeding may be
instituted.
13. EXCLUSIVE JURISDICTION; VENUE. EACH PARTY HERETO AGREES TO
SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL
COURTS LOCATED IN PALM BEACH COUNTY, FLORIDA FOR RESOLUTION OF ALL DISPUTES
ARISING OUT OF, IN CONNECTION WITH, OR BY REASON OF THE INTERPRETATION,
CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR
DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM.
14. WAIVER OF JURY TRIAL. AS A MATERIAL INDUCEMENT FOR THIS
AGREEMENT, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY OF ANY ISSUES SO TRIABLE.
15. ENTIRE AGREEMENT. This Agreement contains and represents the
entire and complete understanding and agreement concerning and in reference to
the employment arrangement between the parties hereto. The parties hereto agree
that no prior statements, representations, promises, agreements, instructions,
or understandings, written or oral, pertaining to this Agreement, other than
those specifically set forth and stated herein, shall be of any force or
effect.
16. MODIFICATIONS AND AMENDMENTS. This Agreement may not be, and
shall not be construed to have been modified, amended, rescinded, canceled, or
waived, in whole or in part, except if done so in writing and executed by the
parties hereto.
17. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be personally delivered by courier,
sent by registered or certified mail, return receipt requested or
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sent by confirmed facsimile transmission addressed as set forth herein. Notices
personally delivered, sent by facsimile or sent by overnight courier shall be
deemed given on the date of delivery and notices mailed in accordance with the
foregoing shall be deemed given upon the earlier of receipt by the addressee,
as evidenced by the return receipt thereof, or three (3) days after deposit in
the U.S. mail. Notice shall be sent: (a) if to the Company, addressed to 00
Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Chief Executive Officer;
and (b) if to the Executive, to his address as reflected on the payroll records
of the Company, or to such other address as either party hereto may from time
to time give notice of to the other.
18. BENEFITS; BINDING EFFECT. This Agreement shall be for the
benefit of and binding upon the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and, where
applicable, assigns, including, without limitation, any successor to the
Company, whether by merger, consolidation, sale of stock, sale of assets or
otherwise.
19. CONSTRUCTION. Each party to this Agreement had the
opportunity to consult with counsel of their choice and make comments
concerning the Agreement. No legal or other presumption against the party
drafting this Agreement concerning its construction, interpretation or
otherwise accrue to the benefit of any party to this Agreement and each party
expressly waives the right to assert such a presumption in any proceedings or
disputes connected with, arising out of, or involving this Agreement.
20. 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.
21. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
22. 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 Company, the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and assigns, any
rights or remedies under or by reason of this Agreement.
23. COUNTERPARTS. This Agreement may be signed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall be deemed one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT FOR XXXXXXXX X. XXXXX]
IN WITNESS WHEREOF, the undersigned have executed this
Employment Agreement as of and effective the date first written above.
COMPANY:
SUMMIT BROKERAGE SERVICES, INC.,
A Florida Corporation
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Xxxxxxx Xxxxxx, CEO and Chairman
EXECUTIVE:
/s/ Xxxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxxx X. Xxxxx
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