EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of this 2nd day of June, 2003 (the "Effective Date"), by and between Intrepid
Capital Corporation, a Delaware corporation, and its wholly-owed subsidiary,
Intrepid Capital Management, Inc., a Florida corporation (collectively referred
to herein as the "Company"), and Xxxxxxx Xxxxxx, a resident of the State of
Florida ("Employee").
W I T N E S S E T H:
WHEREAS, the parties wish to modify Employee's employment relationship
with the Company; and
WHEREAS, Company desires to employ Employee and Employee desires to
accept employment by Company through the Term (as defined below) upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
adequacy, receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. RESIGNATION. Employee, upon the parties' execution of this Agreement, hereby
resigns his position as Chief Executive Officer of the Company.
2. EMPLOYMENT TERM. The Company shall employ Employee, and Employee shall be so
employed, with the title of "Chairman" for the purpose of engaging in sales and
sales management activities on behalf of the Company for a term commencing on
the Effective Date and ending on the seventh anniversary of the Effective Date
(the "Term"), unless otherwise extended, renewed or terminated pursuant to the
terms hereof. Consistent with such position, Employee shall, sell the investment
products of Intrepid Capital Management, Inc., and supervise all sales personnel
and activities.
3. TIME AND EFFORTS. Employee shall perform the duties described above in
accordance with generally accepted industry standards and shall be responsible
for determining the sales strategy and activities necessary to reasonably
perform such duties.
4. COMPENSATION.
a. ANNUAL SALARY. Employee's annual salary ("Annual Salary") during the
Term hereof shall be Two Hundred Fifty Thousand Dollars ($250,000), payable in
accordance with the Company's standard payment terms. Notwithstanding the
foregoing, the Board of Directors may, in its sole discretion, increase the
Annual Salary during the Term.
b. COMMISSION PAYMENTS. Employee shall also be paid override
"Commissions" equal to:
(i) ten percent (10%) of Revenue (as defined below) from
Company clients utilizing Company's services as a result of Employee's
activities on behalf of the Company from January 1, 2003 through the end of the
Term; and
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(ii) five percent (5%) of Revenue from Company clients
utilizing Company's services as a result of activities performed on behalf of
the Company by anyone other than himself.
Any and all Commissions due to Employee under Section 4b(i) in respect of
Revenue received by the Company between January 1, 2003 and the Effective Date
shall be paid by Company to Employee immediately upon execution of this
Agreement. All other Commissions due hereunder shall be paid by the Company in
accordance with its commission payroll policies.
For purposes of this Agreement, "Revenue" shall mean gross payments received
from a client for services performed by the Company net of charges and actual
subsequent credits or allowances for discounts, rebates, reductions, or other
actual diminution.
c. VACATION. Employee shall be entitled to thirty (30) days of paid
vacation annually during his employment with the Company pursuant to the terms
and provisions of this Agreement.
d. WITHHOLDING, FICA, FUTA, ETC. Any amount to be paid to Employee
under the provisions of this Agreement shall be subject to, and reduced by, any
applicable federal, state or local taxes imposed by law. Notwithstanding the
above, Employee shall be liable for any and all federal, state, local and
foreign taxes imposed as a result of any compensation, payments, or other
benefits issued hereunder.
e. CAR ALLOWANCE. Employee shall be entitled to receive an automobile
allowance of Nine Hundred and No/100 Dollars ($900.00) to cover the cost of
Employee's car lease payment, mileage and related operating costs. The
automobile allowance shall be payable monthly by the Company to Employee.
f. PERSONAL ASSISTANT. The Company shall employ a personal assistant
selected by Employee and provided to assist Employee in the performance of the
duties hereunder. The Company agrees to compensate such assistant in a manner
reasonably comparable to other employees employed in the Company's industry who
have similar skill and experience.
g. EXPENSE ACCOUNT. The Company shall provide Employee with a Company
credit card and the expense account in the amount of the actual expenses
incurred on the Company's behalf. Employee shall utilize the expense account by
charging expenses related to the performance of Employee's duties set forth
herein to the Company credit card provided to Employee.
5. BENEFITS. Employee's eligibility to participate in all fringe benefit
programs of the Company offered to its professional employees (including,
without limitation, life insurance, disability insurance, dental and medical
coverage, and vacation), shall continue after the Effective Date, and Employee
shall retain any seniority or other privilege that has accrued or is accruing to
Employee as a result of his relationship with the Company prior to the Effective
Date, including, without limitation, Company payment of Employee's membership in
the country clubs and professional associations that Employee is a member of as
of the Effective Date (or any other country club(s) or professional associations
in lieu of the current country clubs or professional associations in which
Employee is currently a member).
6. TERMINATION. The parties agree that Employee's Term of employment may be
terminated at any time, for any reason or for no reason, with Cause or without
Cause (as defined below) by the Company or Employee.
a. TERMINATION WITH CAUSE. The parties agree that Employee's employment
may be terminated at any time with notice by the Company for Cause ("Termination
With Cause"). For purposes of this Agreement, the term "Cause" shall mean any
one of the following events:
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(i) Employee's knowing and willful misconduct that has a
material adverse effect on the Company's business and that is not remedied
within thirty (30) days after Employee's receipt of notice thereof; or
(ii) Employee's commission of a felony or an illegal act
involving moral turpitude or fraud.
b. TERMINATION WITHOUT CAUSE. "Termination Without Cause" means any
termination of employment by the Company that is not a "Termination With Cause"
as defined above. A resignation or voluntary departure from the Company by
Employee shall not be deemed a Termination Without Cause under this Agreement.
c. POST TERMINATION OBLIGATIONS OF COMPANY. Except as specifically
provided herein, upon any termination of employment of Employee, Employee shall
only be entitled to receive all amounts due under Section 4 of this Agreement
through his date of termination, and no additional remuneration shall be owed to
Employee. Notwithstanding the foregoing, in the event of a Termination Without
Cause by the Company, the Company shall pay to Employee an amount equal to (i)
one hundred percent (100%) of his Annual Salary as in effect at the date of
termination multiplied by the number of years (and/or any fractional portion
thereof) remaining from the date of Employee's termination until the end of the
Term and (ii) Commissions due to Employee under Section 4.b. for two (2) years
following the date of Employee's termination. Any amounts described in Section
6.c(i) shall be paid to Employee in a single lump-sum payment, subject to all
applicable federal, state and/or local taxes and/or withholdings, within ten
(10) days of the date of termination.
d. POST TERMINATION OBLIGATIONS OF EMPLOYEE. Upon termination of
employment for any reason, Employee shall return immediately to the Company all
documents, property, and other records of the Company, and all copies thereof.
7. CONFIDENTIAL INFORMATION.
a. The Company may disclose to Employee certain Confidential
Information. Employee acknowledges and agrees that the Confidential Information
is the sole and exclusive property of the Company (or a third party providing
such information to the Company) and that the Company owns all worldwide
copyrights, trade secret rights, confidential and proprietary information
rights, and all other property rights therein.
b. Employee acknowledges and agrees that the disclosure of the
Confidential Information to Employee does not confer upon Employee any license,
interest or rights of any kind in or to the Confidential Information.
c. Employee agrees to use the Confidential Information solely for the
benefit of the Company. Except in the performance of services for the Company,
Employee will hold in confidence and not use, reproduce, distribute, transmit,
or transfer the Confidential Information or any portion thereof communicated,
discussed, delivered or made available by the Company to or received by
Employee, whether orally or in written form, without the prior written consent
of the Company.
d. Employee acknowledges that his obligations under this Agreement with
regard to the Confidential Information remain in effect during the Term and for
a period of two (2) years thereafter. The foregoing obligations shall not apply
if and to the extent that: (a) Employee establishes that the information
communicated was already known to Employee, without
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obligation to keep it confidential, at the time of its receipt from the Company;
(b) Employee establishes that the information communicated was received by
Employee in good faith from a third party lawfully in possession thereof and
having no obligation to keep such information confidential; (c) was
independently developed by Employee without violating this Agreement; or (d)
Employee establishes that the information communicated was publicly known at the
time of its receipt by Employee or has become publicly known other than by a
breach of this Agreement or other action by Employee.
e. As used herein, "Confidential Information" means information, other
than Trade Secrets, that is of value to its owner and is treated as
confidential.
f. In the event of any breach or threatened breach of the provisions of
this Section or the preceding Section 6, the Company may apply to any court of
competent jurisdiction to enjoin such breach or threatened breach. Any such
remedy shall be in addition to Company's remedies at law under such
circumstances.
8. INDEMNIFICATION. The Company shall indemnify and hold harmless Employee in
accordance with the indemnification obligations of the Company to the extent
extended to other officers of the Company.
9. NOTICES. Any notice given hereunder shall be in writing and be sent via
certified mail, overnight courier service (with proof of delivery), or facsimile
(with confirmation of receipt) and addressed to the appropriate party at the
address, or sent to the facsimile number of the appropriate party, set forth
below or at such other address, or facsimile number, as the party shall
designate from time to time in a written notice. Notice shall be effective three
(3) days after sent by certified mail, one (1) business day after sent by
overnight courier service or upon receipt if sent by facsimile (receipt
confirmed):
if to Employee: if to Company:
Intrepid Capital Corporation and/or
Xxxxxxx Xxxxxx Intrepid Capital Management, Inc.
0000 Xxxxxx Xxxxxx Xx. 0000 Xxxxx Xxxxx Xxxxxx, Xxx. 000
Xxxxxxxxxxxx, XX 00000 Xxxxxxxxxxxx Xxxxx, XX 00000
Attention: President & CEO
10. BINDING EFFECT; ASSIGNABILITY. This Agreement shall inure to the benefit of
and be binding upon the Company, its successors and assigns. The Company may
assign this Agreement, without Employee's consent, to any entity that controls
or is controlled by the Company, provided, however, that Employee's duties and
obligations hereunder are not materially increased or decreased as a result of
such assignment. Employee acknowledges that these services are unique and
personal. Accordingly, Employee may not assign any of his rights or delegate any
of his duties or obligations under this Agreement and any such attempt to assign
shall be void.
11. WAIVER; AMENDMENT. No waiver or amendment of this Agreement, or any
provision hereof, shall be valid unless such waiver or amendment is in writing
and signed by the party sought to be charged therewith.
12. GOVERNING LAW. This Agreement shall be construed in accordance with the
substantive laws of the State of Florida without regard to the conflict of laws
principles thereof.
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13. SEVERABILITY. In the event that any provision of this Agreement shall be
determined to be invalid by a court of competent jurisdiction, such
determination shall in no way affect the validity or enforceability of any other
provisions hereof.
14. ENTIRE AGREEMENT; MISCELLANEOUS. The parties acknowledge and agree that they
are not relying on any representations, oral or written, other than those
expressly contained herein. This Agreement supersedes all prior agreements,
proposals, negotiations, conversations discussions and course of dealing between
the parties with respect to the subject matter hereof. Paragraph headings are
for convenience of reference only and are not intended to create substantive
rights or obligations. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and together shall constitute one and the
same Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
undersigned as of the day and year first above written.
COMPANY:
INTREPID CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------------
XXXX XXXXXX
Title: President and CEO
INTREPID CAPITAL MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------
XXXX XXXXXX
Title: President and CEO
EMPLOYEE:
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
XXXXXXX XXXXXX
Title: Chairman
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