EXECUTIVE EMPLOYMENT
AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT made as of
July 1, 1997, by and between The Aegis Consumer Funding Group,
Inc., a Delaware corporation, with offices at 000 Xxxxxxxxxx
Xxxx., Xxxxxx Xxxx, Xxx Xxxxxx 00000 (the "Company"), and
Xxxxxxx X. Xxxxx, residing at 0000 Xxxx Xxxxxxxxx Xxxxx, Xxxxxxxx
Xxxxxx, Xxxxxxx 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive,
and the Executive desires to be employed by the Company, upon the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants contained herein, the parties hereto agree as
follows:
1. Employment. The Company agrees to and does hereby
employ the Executive, and the Executive agrees to and does hereby
accept employment by the Company, subject to the terms and
conditions herein set forth.
2. Term. The term of the Executive's employment
hereunder shall commence on the date hereof (the "Effective Date")
and, unless sooner terminated as set forth below, shall terminate on
June 30, 1999 (such period hereinafter referred to as the "Term").
3. Duties.
(a) During the Term, the Executive shall be employed as
Executive Vice President and Chief Operating Officer of the
Company and shall be in charge of and responsible for the general
and supervisory duties normally and customarily attendant to such
office in a business entity of the size and type of the Company as
such duties may be reasonably defined by the Board of Directors of
the Company (the "Board"). Executive shall also render such other
lawful services, and exercise such powers, which are from time to
time reasonably requested of him, assigned to him or vested in him
by the Board and which are commensurate with his position.
(b) The Executive agrees that, during the Term, unless
the Board shall otherwise consent, he will devote substantially his
full time, energies, labor and skills to the business of the Company.
The Company shall provide the Executive with his own office space
and appropriate administrative or clerical assistance, all in a location
reasonably appropriate to enable the Executive to fulfill his duties,
and each commensurate with the Executive's position, duties and
responsibilities.
(c) It is hereby acknowledged that, subject to Paragraph
10 hereof, the Executive may either presently, or in the future, be
involved in business, charitable or community activities so long as
such other activities do not unreasonably interfere with the
performance by the Executive of his duties hereunder.
4. Compensation. In consideration for services performed
hereunder, the Company shall pay to the Executive an annual salary
of $250,000 from the date hereof through June 30, 1998; and an
annual salary of $275,000 from July 1, 1998 through June 30, 1999.
Compensation payable to the Executive shall be payable in
accordance with the Company's customary payroll practices. In
addition, the Company shall reimburse the Executive for all
expenses reasonably incurred by him in connection with the
performance of his duties hereunder and the business of the
Company upon the submission to the Company of appropriate
receipts therefor.
5. Vacation. The Executive shall be entitled to 4 weeks
paid vacation during each consecutive 12 months of his employment
hereunder. Vacation shall be taken at times mutually agreeable to
the Executive and the Company.
6. Bonus. The Executive shall be entitled to receive
bonuses in accordance with the terms of this Section. For the
purposes of any allocation and payment of bonuses, the Executive
shall be deemed a member of the executive group. The Executive
understands that the Company practice with respect to bonuses
provides that upon authorization by the Company's Compensation
Committee of the Board of Directors ("Committee") of an amount
representing a total bonus pool available to all executives, the
Chairman of the Board allocates the bonus pool among all
executives in such amounts as he shall determine in his discretion.
The Executive shall be entitled to participate in any bonus pools
authorized by the Committee which are applicable for the fiscal
years of the Company ending June 30, 1998 and June 30, 1999,
subject to an allocation of such pools that is within the discretion of
the Chairman of the Board and subject to the provisions of Section
7 of this Agreement.
7. Benefits.
(a) Throughout the Term, the Executive shall be eligible to
participate in any pension, profit-sharing, stock option or similar
plan or program of the Company now existing or established
hereafter for the benefit of its employees generally, to the extent that
he is eligible under the general provisions thereof. The Executive
shall also be entitled to participate in any group insurance,
hospitalization, medical, health and accident, disability or similar or
non-similar plan or program of the Company now existing or
established hereafter for the benefit of its employees or executives
generally, to the extent that he is eligible under the general
provisions thereof. To the extent that the foregoing plans and
programs do not provide the Executive with disability insurance
providing a maximum benefit level of at least $10,000 per month,
the Company shall supplement such plans and programs to provide
such coverage.
(b) The Company shall provide the Executive with a policy
of term life insurance in an amount equal to $1 Million (or, in the
Executive's discretion, any other form or amount of life insurance
at an annual premium cost to the Company not in excess of the
annual premium for a policy providing $1 Million of term life
insurance), payable to such beneficiary or such beneficiaries as shall
be designated in writing by the Executive. Such policy shall be
owned by the Executive or any person or entity designated by him.
(d) In the event the Company shall cause the Executive to
relocate to offices not within reasonable commuting distance of his
then current residence, the Executive shall be entitled to receive full
reimbursement from the Company for all customary expenses
incurred in connection with the Executive's moving his residence to
a location within reasonable commuting distance of such new office
location. Such expenses shall include but not be limited to the costs
of moving, packing and storing the Executive's personal effects, real
estate brokerage fees and legal and other incidental costs. In
addition, provided that the Executive is making a reasonably diligent
effort to sell his then current residence at a price established in good
faith based upon then current market conditions in the immediate
vicinity, pending the Executive's sale of his then current residence
the Company shall make available to the Executive appropriate
living facilities maintained by the Company in the vicinity of the
new office location and shall reimburse the cost of traveling once a
week between such residence and office locations. The Company
shall further reimburse the Executive upon sale of such residence for
the amount, if any, by which the net proceeds from such sale (after
brokerage, legal and other incidental closing costs) are less then the
costs to the Executive of such residence, including any
improvements thereto. The Company shall further pay the Executive
an amount equal to the federal, state and local income taxes due (at
the highest marginal brackets then in effect) from the Executive with
respect to all amounts payable by the Company pursuant to this
subsection (e) to the extent not deductible to the Executive under the
Internal Revenue Code of 1986, as amended, and the regulations
thereunder.
8. Termination of Executive's Employment.
(a) Notwithstanding any provisions contained herein to the
contrary, the Executive's employment may be terminated by the
Company upon the Executive's death or disability (as defined below)
or for Cause (as defined below), and the Executive may terminate
his employment for Good Reason (as defined below);
(b) For purposes of this Agreement, "disability" shall mean
the Executive is mentally or physically disabled from properly and
fully performing his duties and responsibilities hereunder for a
period of 120 consecutive days or for 180 days, even though not
consecutive, within any 360-day period, all as evidenced by the
written certification of a qualified medical doctor agreed to by the
Company and the Executive or, in the absence of such agreement,
by a doctor selected by the agreement of a qualified medical doctor
selected by each of the Company and the Executive;
(c) For purposes of this Agreement, "Cause" shall mean: (i)
the conviction of the Executive of a felony by a federal or state
court of competent jurisdiction; (ii) the continued failure by the
Executive to substantially perform the Executive's duties with the
Company (other than any such failure resulting from the Executive's
incapacity due to physical or mental illness or any such actual or
anticipated failure after the issuance of a notice of termination for
Good Reason by the Executive) after a written demand for
substantial performance is delivered to the Executive by the Board,
which demand specifically identifies the manner in which the Board
believes that the Executive had not substantially performed his
duties, (iii) engaging by the Executive in conduct which is
demonstrably and materially injurious to the Company or its
subsidiaries, monetarily or otherwise, or (iv) the engaging by the
Executive in an actual act of dishonesty intended to result in gain to
the Executive at the expense of the Company.
A notice of termination for Cause shall include a copy of a
resolution duly adopted by the affirmative vote of a majority of the
entire membership of the Board at a meeting of the Board which
was called and held for the purpose of considering such termination
(after reasonable notice to the Executive and an opportunity for the
Executive, together with the Executive's counsel, to be heard before
the Board) finding that, in the good faith opinion of the Board, the
Executive was guilty of conduct set forth in the immediately
preceding paragraph, and specifying the particulars thereof in detail.
(d) For purposes of this Agreement, "Good Reason" shall
mean any of the following: (i) the assignment to the Executive of
duties inconsistent with the Executive's position, duties,
responsibilities, titles or offices as described herein, (ii) any material
reduction by the Company of the Executive's duties or
responsibilities, (iii) any reduction by the Company of the
Executive's compensation as set forth in Paragraphs 4, 5, 6, or 7
hereof (it being understood that a reduction of benefits applicable to
all executives of the Company including the Executive shall not be
deemed a reduction of the Executive's compensation package for
purposes of this definition) or (iv) requiring the Executive to be
based without his consent at a location not within reasonable
commuting distance of his then current residence.
(e) In the event that the Executive's employment hereunder
is terminated as a result of death or disability of Executive or for
Cause by the Company, or without Good Reason by the Executive,
or in the event that this Agreement is not renewed or extended at the
end of the Term, then the Company shall have no further obligations
or liabilities to the Executive hereunder except as may be
specifically provided herein, such that all benefits and salary
provided for within this Agreement shall terminate simultaneously
with the termination of the Executive's employment except for
benefits, bonuses and salary earned and accrued through the date of
such termination; provided, however, that in no event shall the
Executive be entitled to receive any bonuses, whether or not earned
or accrued, if his employment is terminated by the Company for
Cause or by the Executive without Good Reason. Nothing in this
subsection (e) shall supersede any rights of the Executive to receive
any amounts or benefits otherwise due to him upon the occurrence
of any of the events described in the immediately preceding
sentence, whether such rights are created by this Agreement or
otherwise.
(f) In the event the Executive's employment hereunder
is terminated by the Company other than for Cause, death,
disability, or by the Executive for Good Reason, the Company shall
continue to provide the Executive with the salary, bonus and
benefits enumerated in Paragraphs 4, 6, and 7 hereof, respectively,
at the levels in effect immediately prior to such termination (or, if
applicable, the occurrence of the event constituting Good Reason)
for the remainder of the Term (such period, the "Severance
Period").
(g) If the Executive's employment hereunder is
terminated under Section 8(f) hereof, any salary, bonus and benefits
(to the extent provided at no additional cost to the Executive)
received by the Executive during or with respect to the Severance
Period and attributable to services rendered by the Executive to
persons or entities other than the Company shall be applied to
reduce the Company's obligation to make payments and provide
benefits hereunder.
(h) In the event the Company desires to extend the Term,
or offer the Executive a new employment agreement to be effective
after the expiration of the Term, it shall so notify the Executive
prior to December 31, 1998 ("Notice Date"). In the event the
Company shall not have delivered such notice prior to the Notice
Date, the Executive shall be entitled to assume that this Agreement
shall not be renewed or extended; he shall be permitted thereafter
to expend time during normal business hours to seek alternate
employment provided that he shall exercise his reasonable best
efforts to avoid unreasonable disruption of the performance of his
duties hereunder.
9. Stock Options. Effective on the date of this
Agreement, the Company shall grant to the Executive options to
purchase 200,000 shares of common stock of the Company under
the Company's 1996 Stock Option Plan (the "Plan") at the fair
market value of such shares at the time of grant. The options shall
have a term of ten years. The options shall vest as to 25,000 shares
on the date hereof; options for an additional 25,000 shares shall vest
on December 31, 1997; options for an additional 50,000 shares
shall vest on June 30, 1998; and the balance of the 100,000 Options
shall vest on June 30, 1999. In the event the employment of the
Executive is terminated by the Company with Cause, or is
terminated by the Executive without Good Reason, any options not
previously vested shall be thereupon forfeited; if the Executive's
employment is terminated by the Company without Cause or by the
Executive with Good Reason, all options not previously vested shall
thereupon immediately vest. In all other respects the options shall
be subject to such terms as are consistent with the terms of the Plan.
10. Covenants of the Executive.
(a) The Executive acknowledges that his employment by
the Company will throughout his employment bring him into close
contact with many confidential affairs of the Company, including
information about costs, profits, markets, sales, key personnel,
pricing policies, operational methods, and other business affairs,
methods and information, including plans for future developments,
not readily available to the public. The Executive further
acknowledges that the services to be performed under this
Agreement are of a special, unique, unusual, extraordinary and
intellectual character, and that the Company currently competes or
intends to compete with other organizations that are located in all of
the states of the United States. In recognition of the foregoing, the
Executive covenants and agrees that:
(i) he will not knowingly divulge any material
confidential matters of the Company which are not
otherwise in the public domain and will not
intentionally disclose them to anyone outside of the
Company during his employment by the Company
hereunder or following the expiration or termination
of his employment with the Company for any reason:
(ii) he will deliver promptly to the Company at the
end of the Term, or at any other time the Company
may so request, at the Company's expense, all
memoranda, notes, records, reports and other
documents (and all copies thereof) relating to the
businesses of the Company which he obtained while
employed by, or otherwise serving or acting on
behalf of, the Company, or any of its subsidiaries or
affiliates, and which he may then possess or have
under his control; and
(b) Executive agrees that during that period of
time that constitutes the Term, including any extensions or renewals
thereof (whether or not the Executive is actually employed for the
entire period that is herein contemplated to be the Term including
any extensions or renewals thereof ) and provided that the Company
continues to faithfully perform all of its obligations hereunder and
provided that Executive has not been terminated by the Company
without Cause or by Executive with Good Reason, Executive will
not, without the prior consent of the Company, whether directly or
indirectly, as principal or as agent, officer director, employee,
consultant, or otherwise, alone or in association with any other
person, firm, corporation or other business organization, carry on,
or be engaged, concerned, or take part in, or render services to or
own, share in the earnings of, or invest in the stock, bonds, or other
securities of any person, firm, corporation, or other business
organization engaged anywhere in the United States in a business
which would be deemed competitive to the business of the
Company or to any other business which the Company or any
member of the "Affiliated Group" is engaged in or is the process of
actually implementing during the time during which the Executive
is employed (a "Similar Business"). "Affiliated Group" is defined
as the Company, or any of its subsidiaries. The foregoing
notwithstanding, during the Term Executive may invest in stock,
bonds, or other securities of any Similar Business (but without
otherwise participating in such Similar Business) if such stock,
bonds, or other securities are listed on any national or regional
securities exchange or have been registered under Section l2(g) of
the Securities Exchange Act of l934 provided that such investment
does not exceed, in the case of any class of the capital stock of any
one issuer, 2% of the issued and outstanding shares, or, in the case
of other securities, 2% of the aggregate principal amount thereof
issued and outstanding.
(c) As a separate and independent covenant,
Executive agree that during the Term, including any extensions or
renewals thereof, and for a period of six months thereafter,
Executive will not, without the consent of the Company (which
consent shall not be unreasonably withheld) in any way, directly or
indirectly, for the purpose of conducting or engaging in any Similar
Business, call upon, solicit, advise or otherwise do, or attempt to
do, business with any clients, customers or accounts of the
Affiliated Group with whom Executive had any dealings during the
course of Executive's employment with the Company or any of its
affiliates or interfere or attempt to interfere with any officers,
employees, representatives or agents of the Affiliated Group, or
induce or attempt to induce any of them to leave the employ of or
violate the terms of their contracts with the Affiliated Group.
(d) If, in any judicial proceeding, a court shall
determine that the geographical, temporal or other scope of any of
the covenants contained in this Paragraph 10 is so broad or long as
to be unenforceable, then the geographical or other scope of such
covenant shall be deemed to be restricted so as to be enforceable
under applicable law.
(e) Executive's obligations under this Section 10
hereof shall survive any termination of this Agreement by the
Company with Cause or by the Executive without Good Reason;
provided, however, that the survival of these provisions shall not
operate to extend the length of time the Executive shall be
prohibited from engaging in the activities prohibited hereunder
beyond June 30, 1999 unless the employment of the Executive is
extended or renewed beyond such time in which event such
obligations shall be extended to be co-terminus with the actual
termination of Executive's employment.
(f) The Executive agrees that the remedy at law for
any breach or threatened breach of any covenant contained in this
Paragraph 10 will be inadequate and that the Company, in addition
to such other remedies as may be available to it, at law or in equity,
shall be entitled to injunctive relief without bond or other security.
11. Representation by Counsel - Interpretation. Each of
the parties hereto acknowledge that it is being represented by
counsel of its choice in connection with this Agreement; that it is
freely waiving any rights or claims being waived by it pursuant to
this Agreement; and that this Agreement has been entered into by
it freely and voluntarily and without duress or coercion of any kind.
In the interpretation of this Agreement, whether by a court or
otherwise, no weight or presumption shall be given or ascribed by
virtue of the drafting of this Agreement by one party or the other;
both parties shall be deemed to have contributed to the drafting of
this Agreement equally.
12. Governing Law - Jurisdiction. This Agreement shall
be construed in accordance with and governed by the laws of the
State of New Jersey applicable to contracts executed in and to be
performed solely within such state.
13. Relocation. The parties hereto understand that the
Executive will be required to relocate his current residence in
Arizona to the New York metropolitan area to perform his duties
hereunder at the inception of this Agreement and that such
relocation shall not be governed by the provisions of Sections 7(e)
or 8(d) hereof. However, the Company does agree to reimburse the
Executive for the following specific relocation expenses:
(a) travel expenses between New Jersey and
Arizona incurred at the request of the Company for
the Executive and his spouse from and after the date
hereof until the sooner of habitation in a new
residence in the New York area or six months from
the date hereof;
(b) up to 12 round trips for the Executive and his
spouse and children for the purpose of locating a
residence in the New York area
(c) use of the Company apartment in New Jersey for
6 months of temporary housing;
(d) all moving expenses incurred in relocating to
New Jersey on a "cupboard to cupboard" basis
including the transport of up to three cars;
(e) all normal and customary home sale expenses
including but not limited to commissions, inspections,
fees, and taxes;
(f) all normal and customary home purchase
expenses including but not limited to inspections, fees
and taxes but excluding any mortgage origination
points.
(g) Incremental federal and state income taxes due
as a result of reimbursement of such relocation
expenses.
All relocation expenses submitted for reimbursement shall be
reasonable, properly supported by receipts or other documentation
acceptable to the Company and shall not, in the aggregate exceed
$80,000. If the Executive's employment with the Company shall be
terminated, in the first six months, by the Executive without Good
Reason, the relocation fee shall be reimbursed to the Company on
a pro-rata basis.
14. Notices. All notices required or permitted to be given
by either party hereunder, including notice of change of address,
shall be in writing and delivered by hand, or mailed, postage
prepaid, certified or registered mail, return receipt requested, to the
other party as follows:
If to the Company:
The Aegis Consumer Funding Group, Inc.
000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
If to the Executive: Xxxxxxx X. Xxxxx
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx 00000
15. Miscellaneous.
a) Entire Agreement. This Agreement (together with any
agreement regarding options granted to the Executive to purchase
securities) constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes any and all prior
oral or written agreements and understandings; however, this
Agreement shall not supersede, diminish or modify any rights of the
Executive under any employee benefit plans of the Company. There
are no oral promises, conditions, representations, understandings,
interpretations or terms of any kind as conditions or inducements to
the execution hereof or in effect among the parties. This Agreement
may not be amended, and no provision hereof shall be waived,
except by a writing signed by the Company and the Executive, or
in the case of a waiver, by the party waiving compliance therewith,
which states that it is intended to amend or waive a provision of this
Agreement. Any waiver of any rights or failure to act in a specific
instance shall relate only to such instance and shall not be construed
as an agreement to waive any rights or failure to act in any other
instance, whether or not similar.
(b) Further Acts. The parties hereto agree that, after the
execution of this Agreement, they will make, do, execute or cause
to be made, done or executed all such further and other lawful acts,
deeds, things, devices, conveyances and assurances in law
whatsoever as may be required to carry out the true intention and to
give full force and effect to this Agreement.
(c) Severability. Should any provision of this Agreement be
held by a court of competent jurisdiction to be unenforceable or
prohibited by an applicable law, this Agreement shall be considered
divisible as to such provision, which shall be inoperative, and the
remainder of this Agreement shall be valid and binding as though
such provision were not included herein.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of, and be binding upon, the Company and any
corporation with which the Company merges or consolidates or to
which the Company sells all or substantially all of its assets, and
upon the Executive and his executors, administrators, heirs and legal
representatives.
(e) Headings. All headings in this Agreement are for
convenience only and are not intended to affect the meaning of any
provision hereof.
(f) Counterparts. This Agreement may be executed in two
or more counterparts with the same effect as if the signatures to all
such counterparts were upon the same instrument, and all such
counterparts shall constitute but one instrument.
IN WITNESS WHEREOF, the Executive has executed
this Agreement and the Company has caused this Agreement to be
executed by its duly authorized officer as of the day and year first
above written.
THE AEGIS CONSUMER FUNDING GROUP, INC.
EXECUTIVE
By:____________________________
Name: ____________________
Xxxxxxx X. Xxxxx
Title:__________________________
