Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
effective May 31, 2002, by and between Investors Focus, Inc., a Florida
corporation (the "Company"), and Xxxxxxxx Xxxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive for the term
provided herein, and the Executive desires to be employed by the Company for
such term, all in accordance with the terms and provisions herein contained;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Employment.
(a) The Company hereby employs the Executive to render services to the
Company as its Chairman and Chief Executive Officer and the Executive hereby
accepts such employment, on the terms and conditions contained in this
Agreement.
(b) The Executive shall perform such duties for the Company as may be
determined and assigned to him from time to time by the Company's Board of
Directors (the "Board"), which assigned duties shall be consistent with and
appropriate to the positions described above; provided that, with the
Executive's consent, such consent not to be unreasonably withheld, the Board may
delegate certain of the duties, and positions to other officers or employees of
the Company or its subsidiaries and affiliates.
(c) The Executive hereby agrees to devote such portion of his business
time, attention and efforts to the performance of his duties hereunder as may be
reasonably required by the Board, it being understood that the Executive has
certain other business intersts to which he must devote a portion of his
business time.
(d) The Executive's place of employment during the term of his
employment hereunder shall be in Dade County, Florida or in such other place as
the Company and the Executive shall mutually agree. The Executive acknowledges
that he may be required to travel from time to time in order to carry out his
duties hereunder.
(e) The Executive agrees to accept election and to serve during all or
any part of the Term, as hereinafter defined, as an officer or director of the
Company and any subsidiary of the Company, without any compensation therefor
other than that specified herein, if elected to such position by the
shareholders or by the Board of the Company or of any subsidiary. The Executive
understands that the Company has agreed to use all reasonable efforts to elect
the Executive as a director and officer of the Company, and the Executive agrees
to act in such capacities if elected.
2. Term. The initial term of this Agreement, and the employment of the
Executive hereunder, shall be for a period commencing on The 1st day the Company
commences Public Trading and expiring 3 years thereafter (the Initial Term").
3. Compensation Package.
(a) The Executive's minimum annual salary during the Initial
Term shall be $250,000 per annum payable by check in equal bi-weekly
installments or in such other periodic installments as may be in accordance with
the regular payroll policies of the Company as from time to time in effect, less
such deductions or amounts to be withheld as shall be required by applicable law
and regulations provided that for each subsequent year during the Term, the
minimum salary shall be increased by ten percent (10%).
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(b) The Executive shall be entitled to participate in family
medical/dental insurance, provided that the policy has standard co-insurance and
deductible provisions. Should Executive desire to procure supplemental or
alternative insurance policy or policies for himself and/or his family, the
company will reimburse 75% of the cost thereof.
(c) The Executive shall be entitled to four (4) weeks of paid
vacation during the first year of the Initial Term and six (6) weeks of paid
vacation during any subsequent year of the Term. In the event the Executive
elects not to take all or any portion of his vacation, the Company will pay the
Executive for each day of vacation not taken an amount of money equal to the
quotient of the Executives's then current annual salary divided by 260.
(d) The Executive shall participate in all profit sharing
plans adopted by the company. Additionally, the Executive shall be entitled to
receive an annual incentive bonus of Three Percent (3%) of net sales, defined as
Gross Sales less any returns and /or allowances. The annual bonus shall be paid
in cash within 30 days after the company files with the SEC its Annual Report on
Form 10-K with respect to such year. The incentive bonus shall be pro-rated for
partial years.
(e) The Company shall provide the Executive with an automobile
allowance of $1,500 per month. The Executive shall be responsible for all
associated expenses relating to such automobile, including, without limitation,
insurance, gas and repairs.
(f) The Company shall pay or reimburse the Executive for all
reasonable expenses actually incurred or paid by him in the performance of his
duties hereunder, including travel and entertainment in accordance with Company
policy and upon the presentation by the Executive of an itemized account of such
expenditures.
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(g) The Executive shall be eligible to receive stock option
grants under the Company's stock option plans in the discretion of the Company's
Board of Directors or option committees under such plans.
4. Termination.
(a) Notwithstanding anything contained in this Agreement to
the contrary, the Company by written notice to the Executive shall at all times
have the right to terminate this Agreement, and the Executive's employment
hereunder, with or without "Cause", as hereinafter defined. For the purposes
hereof, "Cause" shall be defined to mean any act of the Executive or any failure
to act on the part of the Executive which constitutes:
(i) fraud or embezzlement against the Company;
(ii) conviction of a felony; or
(iii) commission of a crime involving dishonesty; or
(b) Notwithstanding anything contained in this Agreement to
the contrary, this Agreement and the Executive's employment hereunder shall be
terminated automatically (i) immediately upon the death of the Executive, and
(ii) if the Executive shall, as the result of mental or physical incapacity,
illness or disability, be unable and fail to perform reasonably his duties and
responsibilities provided for herein for any continuous period of 120 days
during the term of this Agreement, provided that the obligations of the Company
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to make payments hereunder shall be suspended during the pendency of any
disability which has persisted for a continuous period of 60 days during the
term of this Agreement.
(c) If, during the Term, this Agreement is terminated pursuant
to Paragraph 4(b) hereof, the Company shall pay to the Executive or the personal
representative of his estate Two Hundred and Fifty Thousand Dollars
($250,000.00) in a lump sum within thirty (30) days of such termination.
(d) If, during the Term, the Company terminates the
Executive's employment hereunder without Cause, the Company shall pay to the
Executive a lump sum termination amount (the "Termination Amount") within thirty
days of such termination and neither party shall have any further obligations
hereunder, except pursuant to Paragraphs 5 and 6 hereof. The Termination Amount
shall be an amount equal to twice the minimum annual salary then being paid to
the Executive pursuant to Section 3(a) hereof, plus an amount equal to the
incentive bonus paid in the prior year pursuant to Section 3(d).
(e) If the Company terminates the Executive's employment
hereunder for Cause, neither party shall have any further obligations hereunder
except pursuant to Paragraphs 5 and 6 hereof.
(5) Nondisclosure. The Executive understands that, solely as a result
of his employment with the Company, he will have knowledge of and access to
certain confidential information relating to the financial and planning aspects
of the Company's business and other aspects of the Company's business. The
Executive agrees that, during or following his employment by the Company, he
will not disclose to others (except in the course of his employment with the
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Company and solely in furtherance of the interest of the Company) any such
confidential information. The provisions of this paragraph shall not preclude
the Executive from using, after the termination of his employment with the
Company, his general professional knowledge and skills including those developed
while employed by the Company.
6. Restrictive Covenants. The Executive shall not at any time during
the term of his employment hereunder and for a period of one (1) year after the
date this Agreement expires or is terminated for any reason, directly or
indirectly, for himself or for any other person, firm, corporation, partnership,
association or other entity, except on behalf of the Company:
(a) engage or be involved in the same or substantially similar
business to those conducted by the Company;
(b) interfere with business relationships between the Company
and its suppliers or customers;
(c) without the Company's prior written consent, become
employed by an entity with which the Company has a business relationship; or
(d) without the Company's prior written consent, hire or
solicit the employment of any person or associate in the employ of the Company.
The Executive acknowledges that (i) the foregoing covenants are
reasonable in scope
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and duration and (ii) he will be able to earn a living and provide for his
family without violating the foregoing covenants.
7. No Delegation. Neither the Company nor the Executive shall delegate
its or his obligations pursuant to this Agreement to any other person, except as
provided in Paragraph 8 hereof.
8. No Assiqnment. Neither the Company nor the Executive shall assign
any of its or his rights under this Agreement to any other person, except that
the Company may assign its rights under this Agreement to any successor entity
in a merger with the Company or any entity that purchases all or substantially
all of the Company's assets, and except that the Company may assign its rights
and obligations hereunder to a subsidiary reasonably acceptable to the
Executive.
9. Damages. Nothing contained herein shall be construed to prevent the
Company or the Executive 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. In the event that either party hereto brings
suit for the collection of any damages resulting from, or the injunction of any
action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable court
costs and attorneys' fees of the other.
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10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
11. Notices. Any notices, requests, demands and other communications
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been duly given (a) when delivered by hand or facsimile,
or (b) 3 days after deposit in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, as follows:
If to the Company: Investors Focus, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
With a copy to: Atlas, Xxxxxxxx P.A.
Suite 1700, 000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
If to the Executive: Xxxxxxxx Xxxxxxxx
X.X. Xxx 00-0000
Xxxxx Xxxxx, Xxxxxxx 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other.
12. Benefits: Bindinq 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.
13. Severability. The invalidity of any one or more of the words,
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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 shall be caused by the length of any
period of time or the size of any area set forth in any part hereof, such period
of time or such area, or both, shall be considered to be reduced to a period or
area to the extent and only to the extent that such reduction would cure such
invalidity.
14. Waivers. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach or violation.
15. 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.
16. Specific Performance. The Executive agrees that a violation by him
of any of the covenants contained in Paragraphs 5 or 6 of this Agreement will
cause irreparable damage to the Company the amount of which will be virtually
impossible to ascertain, and with respect to which the Company may not have an
adequate remedy at law, and for those reasons the Executive agrees that the
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Company shall be entitled to an injunction or a restraining order (both
temporary or permanent) from any court of competent jurisdiction restraining any
violation of any or all of said covenants by the Executive, all persons he
controls, and all persons acting for or with him, either directly or indirectly,
in addition to any other form of relief, at law or equity, to which the Company
may be entitled. When used in Paragraphs 5, 6 and 16 hereof, the term "Company"
shall include all its directly and indirectly owned subsidiaries and its
affiliates.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
18. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings and arrangements, both oral and
written, between the parties hereto with respect to such subject matter. No
amendment or modification of this Agreement shall be valid or binding upon the
Company unless made in writing and signed by a duly authorized officer of the
Company other than the Executive, or upon the Executive unless made in writing
and signed by him.
19. 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 their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
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IN WITNESS WHEREOF, the parties have set their hands and seals as of
the day and year first above written.
COMPANY:
INVESTORS FOCUS, INC.
By:
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Xxxxx Xxxxxxxxxx
Corporate Secretary
EXECUTIVE:
Xxxxxxxx Xxxxxxxx
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