EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
on March 22, 2000, effective as of the Offering Date (hereinafter defined), by
and between Empire Financial Holding Company, a Delaware corporation (the
"Company"), and Xxxxxxx Xxxxx (the "Executive").
Recitals
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A. The Executive is a co-founder of the Company and is currently
employed as an executive of the Company.
B. The Executive possesses intimate knowledge of the business and
affairs of the Company, its policies, methods and personnel.
C. The Company is currently contemplating an initial public offering of
shares of its common stock (the "Offering").
D. In contemplation of the Offering, the Board of Directors of the
Company (the "Board") recognizes and desires to assure the Company of the
Executive's continued employment in an executive capacity and to compensate the
Executive therefor.
E. The Executive is willing to make his services available to the
Company, on the terms and conditions hereinafter set forth.
Agreement
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NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment.
1.1 Employment. 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 the Executive. The Executive shall serve as
Co-Chairman of the Board, Co-Chief Executive Officer and Co-President of the
Company. In his capacities, the Executive shall have such powers, perform such
duties and shall have such responsibilities with respect to the Company as are
set forth in the Bylaws of the Company in effect as of the date of this
Agreement with respect to such positions. During the term of Employment, the
Executive shall diligently perform all services as may be reasonably assigned to
the Executive by the Board consistent with his positions, and shall exercise
such additional power and authority as may from time to time be delegated to the
Executive by the Board.
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The Executive, by virtue of his positions with the Company shall be,
together with the other Co-Chairman of the Board, Co-Chief Executive Officer and
Co-President of the Company, the most senior officer of the Company and all
other officers and agents of the Company (other than the other Co-Chairman of
the Board, Co-Chief Executive Officer and Co-President of the Company) shall be
subject to the supervision and direction of both the Executive and the other
Co-Chairman of the Board, Co-Chief Executive Officer and Co-President of the
Company. Together, the Executive and the other Co-Chairman of the Board,
Co-Chief Executive Officer and Co-President of the Company shall be responsible
for coordinating and supervising the activities of the other officers of the
Company and shall have the power to employ and terminate the employment of all
other officers and employees of the Company.
Together, the Executive and the other Co-Chairman of the Board,
Co-Chief Executive Officer and Co-President of the Company shall have the power
and authority to establish and modify, from time to time, the compensation and
benefits of all other officers and employees of the Company whose compensation
had not been established by the Board of Directors of the Company or any
authorized committee thereof.
The Executive shall be required to report solely to, and shall be
subject solely to the supervision and direction of the Board, and no other
person or group shall be given authority to supervise or direct Executive in the
performance of the Executive's duties. In addition, the Executive shall
regularly consult with and provide information to the Board with respect to the
Company's business and affairs. The Executive shall devote substantially all of
the Executive's working time and attention to the business and affairs of the
Company (excluding any vacation and sick leave to which the Executive is
entitled), render such services to the best of the Executive's ability, and use
the Executive's reasonable best efforts to promote the interests of the Company.
It shall not be a violation of this Agreement for the Executive to (a) serve on
civic or charitable boards or committees, (b) deliver lectures, fulfill speaking
engagements or teach at seminars, and (c) manage personal investments, so long
as none of the foregoing activities interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement.
Notwithstanding anything in this Agreement to the contrary, the
Executive agrees that he will consult, from time to time, with the other
Co-Chairman of the Board, Co-Chief Executive Officer and Co-President of the
Company regarding any significant Company matters and the Executive agrees that
he will not knowingly take any action that is contrary to the expressed desire
of the other Co-Chairman of the Board, Co-Chief Executive Officer and
Co-President of the Company. In the event that the Executive and the other
Co-Chairman of the Board, Co-Chief Executive Officer and Co-President of the
Company are not able to agree upon any particular action to be taken, then the
Executive shall advise the Board of Directors of the Company, and the Board of
Directors by a majority vote shall have the authority to direct both the
Executive and the other Co-Chairman of the Board, Co-Chief Executive Officer and
Co-President of the Company.
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1.3 Place of Performance. In connection with his employment by
the Company, the Executive shall be based at the Company's principal executive
offices, except for travel reasonably necessary in connection with the Company's
business. The Company shall not, without the written consent of the Executive,
relocate or transfer the Executive to an office that is more than thirty (30)
miles from the current principal executive offices of the Company. The Executive
shall travel as reasonably required in connection with the performance of his
duties hereunder; provided, however, the Executive shall not be required,
without his written consent, to be absent from the geographic region surrounding
Orlando, Florida on business more than thirty (30) working days in any one (1)
year or more than five (5) consecutive days at any one time.
1.4 Term. The term of this Agreement shall commence on the
effective date of the Offering (the "Offering Date") and expire on December 31,
2005, unless sooner terminated as hereinafter set forth; provided, however, that
commencing on January 1, 2003 and each January 1 thereafter, the term of this
Agreement shall automatically be extended for one (1) additional year unless at
least one hundred eighty (180) days prior to January 1 of any year on or after
January 2003, the Company shall have delivered to the Executive or the Executive
shall have delivered to the Company written notice that the term of the
Executive's employment hereunder will not be extended. The determination not to
extend the term of this Agreement by the Company shall only be made by the
majority vote of the Board (excluding the Executive) acting in good faith.
1.5 Indemnification. The Company agrees to enter into an
indemnification agreement with the Executive in form and substance substantially
similar to the indemnification agreement, if any, entered into between the
Company and its other executive officers. In addition, to the extent that the
Company elects to obtain an officer and director liability insurance policy
covering its other executive officers and directors, the Company will cause such
insurance policy to cover the Executive to the same extent that it covers other
executive officers and directors of the Company.
2. Compensation.
2.1 Base Salary. Commencing on the date of this Agreement, the
Executive shall receive a base salary at the annual rate of $375,000 (the "Base
Salary") during the term of this Agreement, with such Base Salary payable in
installments consistent with the Company's normal payroll schedule, subject to
applicable withholding and other taxes. Such Base Salary may be increased, but
not decreased, from time to time in the sole discretion of the Board (or any
authorized committee hereof). The Base Salary, if increased, shall not
thereafter be decreased for any reason.
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2.2 Incentive Compensation. The Executive shall also be
entitled to receive such other bonus payments or incentive compensation as may
be determined at any time or from time to time by the Board (or any authorized
committee hereof) in its sole discretion. Such potential additional bonus
payments and/or incentive compensation shall be considered at least annually by
the Board (it being agreed that such consideration shall not create any
implication that the Board shall award any such bonus or incentive
compensation).
2.3 Perquisites. Similarly, the Executive shall also be
entitled to participate in any other perquisites established for senior
executives by the Board or its compensation committee (including Stock Option
Plans, automobile allowances, club membership, lines of credit, etc.).
3. Expense Reimbursement and Other Benefits.
3.1 Expense Reimbursement. During the term of the Executive's
employment hereunder, the Company, upon the submission of reasonable supporting
documentation by the Executive, shall reimburse the Executive for all reasonable
expenses actually paid or incurred by the Executive in the course of and
pursuant to the business of the Company, including expenses for travel and
entertainment.
3.2 Incentive, Savings and Retirement Plans. During the term
of this Agreement, the Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and programs
applicable to other key executives of the Company and its subsidiaries as may be
in effect from time to time.
3.3 Healthcare Benefit Plan and Insurance. During the term of
this Agreement, the Executive and/or the Executive's spouse and children shall
be compensated for and shall receive all benefits under healthcare benefit
plans, practices, policies and programs provided by the Company and its
subsidiaries that may be in effect from time to time (including, without
limitation, medical, prescription, dental, disability, salary continuance,
employee life, group life, accidental death and travel accident insurance plans
and programs), on terms comparable to the terms offered to other executives of
the Company.
3.4 Working Facilities. During the term of the Executive's
employment hereunder, the Company shall furnish the Executive with an office,
secretarial support and such other facilities and services suitable to his
position and adequate for the performance of the Executive's duties hereunder as
reasonably determined by the Company.
3.5 Vacation. During the term of this Agreement, the Executive
shall be entitled to paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its subsidiaries as in
effect at any time hereafter with respect to other key executives of the Company
and its subsidiaries; provided, however, that in no event shall the Executive be
entitled to less than four weeks paid vacation per year.
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4. Termination.
4.1 Termination for Cause. The Company shall have the right,
upon written notice to the Executive to terminate the Executive's employment
under this Agreement for Cause (as hereinafter defined), effective upon the
giving of such notice (or such later date as shall be specified in such notice),
and the Company shall have no further obligations hereunder, except to pay the
Executive any Base Salary which may be owed to the date of termination. For
purposes of this agreement, "Cause" means (i) conviction of (and such conviction
is sustained on all appeals) or the entry of a plea of guilty by the Executive
to a felony; (ii) a material breach of the Executive's obligations hereunder
which is not remedied within ten (10) business days after receipt of written
notice of the material breach from the Board; or (iii) any act or omission of
the Executive constituting willful misconduct (including willful violation of
the Company's policies), gross negligence, fraud, misappropriation,
embezzlement, or competitive business activities which, as determined by the
Company in its reasonable discretion, shall cause material harm to the Company.
Any determination of "Cause" for purposes of this Agreement shall be made by the
majority vote of the Board (excluding the Executive) acting in good faith.
4.2 Disability. 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, if the Executive shall, as the result of
mental or physical incapacity, illness or disability, fail to perform his duties
and responsibilities provided for herein for a period of more than two hundred
fifty (250) days in any twelve (12) month period. The determination of mental or
physical incapacity, illness or disability for purposes of this Agreement shall
only be made by the majority vote of the Board (excluding the Executive) acting
in good faith and after consulting with appropriate medical personnel. Upon any
termination pursuant to this Section 4.2, the Executive shall be entitled to
receive his Base Salary until the earlier of (a) nine months from the date of
such termination or (b) the date that any disability insurance applicable to the
Executive commences paying benefits.
4.3 Death. In the event of the death of the Executive during
the term of his employment hereunder, this Agreement and the employment
relationship created by it shall terminate as of the date of death and the
Company shall pay to the estate of the Executive any Base Salary which may be
owed to the date of termination.
4.4 Termination Without Cause. The Company may terminate the
Executive's employment under this Agreement without Cause upon giving the
Executive ninety (90) days written notice of such termination. Upon termination
without Cause, the Executive shall be entitled to receive his then current Base
Salary for the then remaining term of this Agreement.
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4.5 Termination by Executive for Good Reason or by
Resignation.
(i) The Executive shall have the right to terminate
his employment hereunder upon ninety (90) days written notice for Good Reason.
For purposes of this Agreement, "Good Reason" means: (i) a material breach by
the Company of the Company's obligations under this Agreement, which is not
remedied within ten (10) business days after receipt of written notice from the
Executive; (ii) the assignment to the Executive of any duties inconsistent in
any material respect with the Executive's position (including status, office,
title and/or reporting requirements), authorities, duties or responsibilities
contemplated hereunder; or (iii) a change in control (as hereinafter defined).
Upon termination for Good Reason, the Executive shall be entitled to receive his
then current Base Salary for the then remaining term of this Agreement.
(ii) The Executive shall have the right to terminate
his employment under this Agreement by resignation. Upon such termination by
resignation, the Executive shall be entitled to be paid his Base Salary to the
date of termination and the Company shall have no further liability hereunder
(other than for reimbursement for reasonable business expenses incurred prior to
the date of termination).
5. Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean any of the following events:
(i) Without the prior approval of the Incumbent Board
(hereinafter defined), the acquisition (other than by or from the Company), at
any time after the date hereof, by any person, entity or "group" within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
(the "Exchange Act"), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of thirty percent (30%) or more of either
the then outstanding shares of common stock or the combined voting power of the
Company's then outstanding voting securities entitled to vote generally in the
election of directors;
(ii) The individuals who constitute the Board as of the
Offering Date (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any person becoming a director
subsequent to the Offering Date whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
directors of the Company, as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board;
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(iii) Without the prior approval of the Incumbent Board,
approval by the stockholders of the Company of (A) a reorganization, merger or
consolidation with respect to which persons who were the stockholders of the
Company immediately prior to such reorganization, merger or consolidation do
not, immediately thereafter, own more than fifty-one percent (51%) of the
combined voting power entitled to vote generally in the election of directors of
the reorganized, merged or consolidated Company's than outstanding voting
securities, (B) a liquidation or dissolution of the Company, or (C) the sale of
all or substantially all of the assets of the Company, unless the approved
reorganization, merger, consolidation, liquidation, dissolution or sale is
subsequently abandoned.
6. Restrictive Covenants.
6.1 Confidentiality and Rights to Inventions.
(a) Confidential Information. The Executive hereby
acknowledges that the Executive will or may be making use of, acquiring and
adding to confidential information of a special and unique nature and value
affecting and relating to the Company and its operations, including, but not
limited to, its business, the identities of its customers and suppliers, its
data base information, prices paid by the Company for inventory, its business
practices, marketing strategies, expansion plans, contracts, business records
and other records, trade secrets, inventions, techniques, know-how and
technologies, whether or not patentable, and other similar information relating
to the Company (all the foregoing regardless of whether same was known to the
Executive prior to the date hereof is hereinafter referred to collectively as
"Confidential Information"). The Executive further recognizes and acknowledges
that all Confidential Information is the exclusive property of the Company, is
material and confidential, and greatly affects the legitimate business
interests, goodwill and effective and successful conduct of the Company's
business. Accordingly, the Executive hereby covenants and agrees that he will
use the Confidential Information only for the benefit of the Company and shall
not at any time, directly or indirectly, either during the Term of this
Agreement or afterward, divulge, reveal or communicate any Confidential
Information to any person, firm, corporation or entity whatsoever, or use any
Confidential Information for the Executive's own benefit or for the benefit of
others.
(b) Rights to Inventions, Patents and Copyrights. The
Executive shall promptly disclose in writing to the Company: all ideas,
inventions, discoveries, devices, machines, apparatus, methods, compositions,
know-how, works, processes and improvements to any thereof, whether or not
patentable or copyrightable, that the Executive may conceive, make, develop,
invent, reduce-to-practice, author or discover, whether solely or jointly or
commonly with others, during the Executive's employment with the Company, or
within one (1) calendar year following the termination of the Executive's
employment with the Company, which relate to the business of the Company at the
time of termination (the items specified in this Section are hereinafter
collectively referred to as "Inventions"). All Inventions are the sole and
exclusive property of the Company. The Executive shall promptly assign, transfer
and set over unto the Company, its successors and assigns, all of his rights,
title and interest in and to all Inventions, all applications for letters patent
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or copyrights, foreign and domestic, which have or may be filed on such
Inventions, all copyrights, all letters patent of the United States and its
territorial possessions and all letters patent of foreign countries which may be
granted therefor, and all reexaminations and reissues of said letters patent,
including the subject matter of any and all claims which may be obtained in
every such domestic and foreign patent, the same to be held and enjoyed by the
Company for its own and exclusive use and advantage, and for the exclusive use
and advantage of its successors, assigns and other legal representatives, to the
full end of the term or terms for which said copyrights and letters patent of
the United States, territories and foreign countries are or may be granted,
reexamined or reissued, as fully and entirely as the same would have been held
and enjoyed by the Executive if the assignment had not been made. The Executive
further covenants and agrees that the Executive will, during and subsequent to
the term of this Agreement, without demanding any other consideration therefor,
at any time, upon request, execute, or cause to be executed, and deliver any and
all papers that may be necessary or desirable to perfect the title to any
Invention and to such letters patent and copyrights as may be granted therefor,
in the Company, its successors, assigns or other legal representatives, and that
if the Company, its successors, assigns, or other legal representatives shall
desire to file any subsequent or derivative application, or to secure a reissue
or reexamination of such letters patent, or to file a disclaimer relating
thereto, the Executive will upon request, sign, or cause to be signed, all
papers, make or cause to be made all rightful oaths, and do all lawful acts
requisite for such action.
The Executive does further covenant and agree, that
he will, at any time during and subsequent to the term of this Agreement hereof,
upon request, communicate to the Company, its successors, assigns, or other
legal representatives, such facts relating to the Inventions, letters patent and
copyrights or to the history thereof, as may be known to him, and testify, at
the Company's expense, as to the same in any interference or other litigation or
proceeding in which the Executive is not a party and does not have an interest,
when requested to do so.
6.2 Nonsolicitation of Employees. While employed by the
Company and for a period of two (2) years thereafter, the Executive shall not
directly or indirectly, for himself or for any other person, firm, corporation,
partnership, association or other entity, attempt to employ or enter into any
contractual arrangement with any employee or former employee of the Company,
unless such employee or former employee has not been employed by the Company for
a period in excess of six (6) months.
6.3 Non-Competition. While employed by the Company and for a
period of two (2) years thereafter, the Executive shall not, directly or
indirectly, whether as principal, agent, shareholder (except as set forth below)
or in any other capacity, whether or not compensation is received, engage or
participate in any activity for, be employed by, assist or have an equity
interest in (other than as a passive investor of no more than five percent (5%)
with no involvement in the management or conduct of the affairs of business of
such entity) any business or other entity which is or plans to enter into the
securities brokerage business in the State of Florida or to engage in the
securities brokerage business with customers using the Internet. The Executive
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acknowledges that the provisions of this Section 6.3 are reasonably necessary
for the purposes of protecting the Company's and its subsidiaries' legitimate
business interest and goodwill. It is accordingly the intention of the parties
that this Section 6.3 be enforceable to the fullest extent permissible under
applicable law. The Executive agrees, however, that in the event any restriction
or limitation of this Section 6.3, or any portion thereof, shall be declared or
held to be invalid or unenforceable by a court of competent jurisdiction, then
such restriction or limitation shall be deemed amended to substitute or modify
it, as either or both may be necessary, to render it valid and enforceable.
6.4 Equitable Relief. It is recognized and hereby acknowledged
by the parties hereto that a breach by the Executive of any of the covenants
contained in this Article 6 will cause irreparable injury to the Company's and
its subsidiaries' legitimate business interests and goodwill and that such
injury would not be adequately compensated by monetary damages. Accordingly, the
Executive recognizes and hereby acknowledges that the Company and any of its
subsidiaries shall be entitled to specific performance of any of the provisions
of this Article 6 by the Executive or any of his affiliates, associates,
partners or agents, either directly or indirectly, and that such right to
injunction and specific performance shall be cumulative and in addition to
whatever other remedies the Company or its subsidiaries may possess.
6.5 Books and Records. All books, records, and accounts
relating in any manner to the customers or clients of the Company, whether
prepared by the Executive or otherwise coming into the Executive's possession,
shall be the exclusive property of the Company and shall be returned immediately
to the Company on termination of the Executive's employment hereunder or on the
Company's request at any time.
7. Nomination of the Executive as Director. During the term of this
Agreement, the Company shall cause the nomination of the Executive as a director
of the Company at each stockholder meeting at which election of directors is
considered.
8. Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without
application of any conflicts of law principles, and any proceeding contemplated
by Section 6.4 or to enforce any arbitration award contemplated by Section 14
shall be held in the state or federal courts located in Seminole County,
Florida. The parties hereto hereby consent to personal jurisdiction in such
venue and waive any claim or argument that such venue is inconvenient or
improper.
9. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered by hand or three (3) days after being deposited in the United States
mail, by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Company: Empire Financial Holding Company
0000 Xxxx Xxxxx Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Board of Directors
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With a copy to: Xxxxxxx X. Xxxxxxx
Xxxxxxxxx Taurig, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
If to the Executive: Xxxxxxx X. Xxxxx
0000 Xxxx Xxxxx Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxx X. Xxxxxxxxxxx, P.A.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other in the aforesaid manner.
10. Successors.
(a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive other than the transfers of benefits hereunder by will or the laws of
descent and distribution.
(b) This Agreement shall inure to the benefit of, be
enforceable by and be binding upon the Company's successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
11. Severability. The invalidity of any one or more of the words,
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 is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
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12. 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.
13. Arbitration. Except as set forth in Section 6.4, any controversy
between the parties regarding this Agreement and any claims arising out of this
Agreement or its breach shall be required to be submitted to binding
arbitration. Either party shall have the right to commence arbitration
proceedings. The arbitration proceedings shall be conducted by a single
arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. The arbitration shall be conducted in Orlando, Florida
and the arbitrator shall have the right to award actual damages and attorneys'
fees and costs, but shall not have the right to award punitive, special,
exemplary or consequential damages against any party. Any arbitral award
resulting from such proceeding or settlement in connection therewith shall be
held in strict confidence by the parties hereto, unless the disclosure of such
award or settlement is required by law.
14. Damages. Nothing contained herein shall be construed to prevent
this 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.
15. 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, in the case of Executive, his heirs,
personal representative(s) and/or legal representative) any rights or remedies
under or by reason of this Agreement.
16. Conflicts With Other Agreements. The Executive represents to the
Company that the Executive's execution and performance of this Agreement does
not violate the provisions of any employment, non-competition or other agreement
to which the Executive is a party or by which the Executive is bound.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY:
EMPIRE FINANCIAL HOLDING COMPANY
By:/s/ Xxxxx Xxxxx
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Co-Chairman of the Board
EXECUTIVE:
/s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx
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