EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into in
Dallas, Texas, as of the ____ day of August, 1998 (the "Effective Date"), by and
between Xxxxxxx Factors, Inc., a Texas corporation, (the "Company") and Xxxx X.
Xxxxxx, an individual ("Employee").
Background
The Employee desires to be employed by the Company and the Company desires
to employ the Employee during the term of this Agreement.
As a result of Employee's employment with the Company, Employee will have
access to, become familiar with and gain intimate knowledge of all or part of
the Company's Proprietary Information and of the intricacies of the Company's
business. All Proprietary Information is provided or revealed to Employee in
trust and confidence for Employee's use solely in connection with Employee's
obligations to the Company under this Agreement and Employee shall not at any
time acquire any right, title or interest in or to any Proprietary Information.
The Company desires to protect its business and goodwill and all of its present
and future Proprietary Information; to prevent competitors from acquiring,
appropriating or discovering its Proprietary Information; and to maintain and
protect its competitive advantage in the factoring and financial services
business and industry. To provide this protection, Employee has agreed as
hereinafter set forth to keep strictly confidential all, and not disclose any,
Proprietary Information and to not compete with the Company for a limited period
following the term of this Agreement.
Agreement
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following definitions:
1.1 Client. "Client" or "Customers" shall mean (i) any Entity to whom the
Company has provided factoring, asset based lending and financial services ;
(ii) to whom the Company shall provide factoring or other financial services
prior to the Termination Date; (iii) and/or to whom the Company or Employee has
actively pursued prior to the Termination Date to provide factoring, asset based
lending or other financial services.
1.2 Competing Entity. "Competing Entity" shall mean any Entity that is
engaged, or intends to engage, directly or indirectly, in the Business in
competition with the Company within the Territory.
1.3 Covenant Period. "Covenant Period" shall mean the period beginning on
the Effective Date of employment and continuing for one (1) year after the
Termination Date.
1.4 Entity"Entity" shall mean an individual, proprietorship, corporation,
partnership (whether general or limited), limited liability company,
association, business trust, and any other enterprise (for profit, not for
profit or non-profit), and shall include all subsidiaries and affiliates of any
of the foregoing. For these purposes, a subsidiary shall mean any Entity,
incorporated or unincorporated, which is controlled directly or indirectly by
the owner, shareholders, partners,
1
associates, beneficiaries, or the like, as the case may be, of any of the
foregoing; and "control" shall mean the ownership directly or indirectly of any
equity interest equal to or greater than ten percent (10%) in an Entity.
1.5 Proprietary Information. "Proprietary Information" shall mean any and
all information and compilations of information relating to the Company's
factoring and financial services business provided or available to Employee, or
to which Employee has access or which he prepares or compiles, while employed
with the Company or after the Termination Date, which information or
compilations or information are deemed, expressly or impliedly, by the Company
to be confidential, proprietary, and/or unique, are not generally known to the
public, may give the Company a competitive advantage, and specifically enhance
the Company's goodwill, including, without limitation:
(a) the Company's pending or awarded patents, copyrights, trade
secrets, trade names, trademarks, service marks, business techniques,
formulas, production methods, technology, equipment, computer programs and
software, source materials, manuals, Client, Customer and key supplier
lists, lists of potential customers, Customer prospect information,
methods of business operations, publications and other products;
(b) financial reports and information regarding the Company;
(c) personnel data relating to the Company's shareholders,
directors, employees and independent contractors, including compensation
agreements of such employees and independent contractors with the Company;
(d) internal plans, practices and procedures of the Company,
including business plans, marketing and sales plans, strategic plans,
budgets and forecasts; and
(e) the terms and provisions of any agreement between the Company
and any third party.
1.6 Termination Date. "Termination Date" shall mean the day that Employee's
employment with the Company terminates or ends for any reason whatsoever.
1.7. Termination for Good Cause. "Termination For Good Cause" shall mean
termination by Company of Employee's employment by the Company by reason of
Employee's gross incompetence, willful dishonesty towards, fraud upon, or
deliberate injury or attempted injury to Company, or by reason of Employee's
willful material breach of this Employment Agreement which has resulted in
material injury to the Company. Termination for Good Cause shall also mean
termination by the Company of Employee's employment by the Company by reason of
Employee's conviction of a felony, whether related to the Company or to any
other matter, or by reason of Employee's conviction of a misdemeanor relating to
Employee's dishonest conduct, whether related to the Company or to any other
matter.
2
1.8. Termination Without Cause. "Termination Without Cause" shall mean any
termination of employee's employment by Company other than for Cause, by Reason
of Disability or by Reason of Death.
1.9 Territory. "Territory" shall mean the States of Texas, California, New
York, Illinois, Colorado, Oklahoma, Florida, Mississippi, New Jersey, Ohio,
Michigan and Louisiana, or any other state within which the Company has done
business prior to the Termination Date.
1.10. Voluntary Termination. "Voluntary Termination" shall mean termination
by Employee of Employee's employment by Company other than termination by reason
of Employee's death or disability as described in paragraphs 4.3. and 4.4.
2. EMPLOYMENT AND DUTIES OF EMPLOYEE.
2.1 Employment. The Company agrees to employ Employee, and Employee agrees
to accept employment with the Company on the terms and conditions set forth
herein. The term of employment of Employee by the Company under this Employment
Agreement shall be for a period of five (5) years beginning on ________, 1998
(the "Effective Date"), unless terminated earlier.
Notwithstanding any Termination of Employee's employment:
(a) any provisions of this Agreement calling for performance by any
party after the Termination Date shall continue in full force and effect;
and
(b) the representations of the parties set forth herein shall
survive and continue in full force and effect.
2.2 Scope of Duties. Except as specifically set forth herein, Employee
shall render services for the benefit, and on behalf, of the Company as directed
by the President and the Board of Directors of the Company. The President of the
Company, in consultation with the Company's Board of Directors, shall have the
power to determine the general and specific duties to be performed by Employee
and the means and manner by which those duties shall be performed. The services
and duties to be performed by Employee, and the means and manner by which those
duties shall be performed, shall be similar to those performed by the Employee
during the previous year. Employee shall devote full time to the business
affairs of the Company. Employee's title shall be Vice President of
Administration of the Company. Employee shall report to, and be responsible to,
the President of the Company. The parties acknowledge that Employee personally
provides purchase order financing for a limited number of the Company's clients
through Texas Trade Finance, a company owned by Employee. Employee shall
continue to have the right to provide purchase order financing to those clients
listed on Exhibit "A" attached hereto and by this reference made a part hereof.
Employee shall not provide purchase order financing for any other company unless
agreed to in advance in writing by the Company.
2.3 Professional Standards. Recognizing and acknowledging that it is
essential for the protection and enhancement of the name and business of the
Company and the immense goodwill pertaining thereto, Employee shall perform his
employment duties professionally and in accordance
3
with the standards established by the President and Board of Directors of the
Company from time to time; and Employee shall not act, and shall refrain from
acting, in any manner that could tarnish the name, business or income of the
Company or the immense goodwill of the Company.
3. COMPENSATION. As his entire compensation for all services rendered to
the Company during the term of this Agreement, in whatever capacity rendered,
the Employee shall be paid, subject to withholding and other applicable
employment taxes, as follows;
3.1. Base Salary. Employee shall be paid a base salary of $100,000 per
year commencing on the Effective Date. Such base salary shall be payable in
twenty six (26) bi-weekly installments, provided however, if the first month of
employment is less than a full calendar month, the first payment shall be
prorated for the number of days worked in the first calendar month of
employment. The base salary shall be increased annually equal to the cumulative
cost-of-living increment as reported in the "Consumer Price Index, of the
Dallas-Fort Worth, All Items," published by the U.S. Department of Labor (using
January 1, 1995 as the base date for computation). Provided however, that the
base salary shall not increase by more than ten percent (10%) per year due to
increases in the Consumer Price Index. In no event shall the base salary be
reduced below $100,000 as a result of the reduction i n the Consumer Price
Index.
3.2. Commissions. Employee has been an employee of the Company prior to
the Effective Date of this Agreement. Employee was paid commissions for
financings of his clients (Employee's Clients") completed by the Company prior
to the Effective Date. From and after the Effective Date, Employee will continue
to be paid commissions for additional financings for Employee's Clients. The
amount of the commission to be paid to Employee hereunder shall be the same as
paid by the Company to the Employee prior to the Effective Date. Attached hereto
as Exhibit "B" and by this reference made a part hereof, is a list of all
Employee's Clients for which commissions will continue to be paid and a
description of the amount of the commission to be paid for each of such Client.
From and after the Effective Date, no commission shall be paid to Employee for
any company except for those specifically set forth on Exhibit "B".
3.3. Bonus Pool. For each fiscal year, the Board of Directors of the
Company will establish a Bonus Pool from which cash bonuses will be paid to
employees of the Company. The total amount to be included in the Bonus Pool each
year will be within the discretion of the Company's Board of Directors. Employee
shall be entitled to receive a cash bonus of not less than 33% of the amount of
each year's Bonus Pool.
3.4. Vacation. Employee shall be entitled to ten (10) days of vacation
during the first twelve (12) months of employment, and ten (10) days of vacation
for each subsequent twelve (12) month period during the term of this Agreement
and any extensions thereof, prorated for partial years. If vacation days are not
taken by Employee he shall receive additional compensation therefore based upon
his base salary.
3.5. Reimbursement for Expenses. During the term of this Agreement, the
Company shall reimburse Employee for reasonable and properly documented
out-of-pocket business incurred by Employee in connection with his duties under
this Agreement.
4
3.6. Additional Benefits. The Company shall provide the Employee with
health insurance during the term of this Agreement. At such time as Employee is
eligible for social security, the Company shall provide him will health
insurance necessary to supplement Medicare coverage. The Employee shall be
entitled to participate in such benefit and compensation plans as are now
generally available or later made generally available to the employees of the
Company.
3.7. Stock Options. The Employee shall be entitled to the stock options
described in Exhibit "A" attached hereto and by this reference made a part
hereof.
4. TERMINATION MATTERS.
4.1. Termination For Good Cause. Termination for Good Cause may be
effected immediately by the Company during the term of this Agreement by written
notification to Employee. Upon Termination For Good Cause, the following shall
promptly occur:
(a) the Company shall pay Employee all accrued salary earned at the
date of Termination for Good Cause;
(b) the Company shall pay Employee all vacation pay which is accrued
at the date of Termination for Good Cause;
(c) the Company shall pay all business expenses incurred by Employee
in connection with his duties hereunder which are unpaid at the date of
Termination for Good Cause;
(d) the Company shall pay to Employee all compensation or benefits
due to Employee at the date of Termination for Good Cause under any
agreement or plans mutually agreed to in writing by both parties.
4.2. Termination Without Cause. The Company may terminate Employee's
employment for any reason and without cause at any time upon thirty (30) days
written notice to Employee. Upon Termination without Cause, the following shall
promptly occur:
(a) the Company shall pay Employee all salary compensation for a
period of thirty (30) days from the date of Termination Without Cause.
(b) the Company shall pay Employee all vacation pay which is accrued
at the date of Termination without Cause;
(c) the Company shall pay all business expenses incurred by Employee
in the connection with his duties hereunder which are unpaid at the date
of Termination without Cause;
5
(d) the Company shall pay to Employee all compensation or benefits
due to Employee at the date of Termination Without Cause under any
agreement or plans mutually agreed to in writing by both parties.
4.3. Termination by Reason of Disability. If, during the term of this
Agreement, Employee, in the reasonable judgment of the Board of Directors of the
Company has failed to perform his duties under this Agreement on account of
illness or physical or mental incapacity, and such illness or incapacity
continues for a period of more than three (3) consecutive months, the Company
shall have the right to terminate Employee's employment hereunder by twenty (20)
days written notification to Employee. In the event of termination by reason of
disability, Employee shall pay Employee all cash and other compensation which
would be due and owing to Employee under paragraph 4.1. of this Employment
Agreement if Employee's employment had been Terminated for Good Cause by Company
rather than as a result of the Disability of Employee. The Company shall
maintain disability insurance coverage to cover Employee. From and after the
time Employee commences receiving disability payments under such disability
insurance coverage, he shall be entitled to no further compensation from the
Company hereunder.
4.4. Death. In the event of Employee's death during the term of this
Agreement, Employee's employment shall be deemed to have terminated as of the
last day of the month during which his death occurs and the Company shall pay to
his estate or such beneficiaries as Employee may from time to time designate, to
the date of Employee's death all cash and other compensation which would be due
and owing to Employee under paragraph 4.1 of this Employment Agreement if
Employee's employment had been Terminated for Good Cause by the Company rather
than by as a result of the Death of Employee.
4.5. Voluntary Termination. In the event of a Voluntary Termination, the
Company shall pay to Employee all cash and other compensation which would be due
and owing to Employee under paragraph 4.1 of this Employment Agreement if
Employee's employment had been Terminated for Good Cause by the Company rather
than by the Voluntary Termination by Employee.
5. RECORDS AND FILES. Upon the Termination Date under this Agreement, or
upon an earlier request of the Board of Directors of the Company, Employee shall
have no right to keep or use any, and shall promptly return to the Company all:
(a) Proprietary Information and all documents, records, procedures,
books, notebooks and all other documentation (and all memoranda and copies
thereof) containing any Proprietary Information (including, without
limitation and in particular, all financial statements, manufacturing or
marketing information) then in Employee's possession or control
irrespective of whether such documentation was prepared or compiled by
Employee, the Company, the Company's employees or independent contractors,
or other Entity; and
(b) equipment and tangible personal property of the Company
entrusted to Employee by the Company or otherwise in Employee's possession
or control. Employee acknowledges that all such documentation, equipment
and tangible personal property is confidential, is not readily accessible
to the Company's competitors, and is and shall remain
6
the sole and exclusive property of the Company, free and clear of any and
all claims of Employee. Employee shall be deemed to be the bailee thereof
for the use and benefit of the Company and shall not at any time acquire
any right, title or interest in or to such documentation, equipment or
tangible personal property and shall safely keep and preserve the same,
except as may be consumed in the Company's normal business operations.
6. COVENANTS OF EMPLOYEE. As a material term and condition of this
Agreement and in order to protect the Company's investment in training and
education, the goodwill, Proprietary Information and the business and trade
secrets of the Company, Employee covenants and agrees that, unless otherwise
agreed to in writing by the Company:
6.1 Employees and Independent Contractors. During the Covenant Period,
Employee shall not attempt to persuade employees and independent contractors of
the Company to terminate or significantly alter their relationships or
association with the Company.
6.2 Preservation of Business. During the Employee's employment by the
Company, Employee shall use his best efforts to preserve the Company's business
organization intact, to keep available to the Company the services of the
Company's employees and independent contractors, and to preserve for the Company
its relationships with its Clients, Customers, suppliers, distributors, brokers,
lessees and others having business relationships with the Company.
6.3 Covenants of Confidentiality and Not to Compete. Employee shall
strictly comply with the following:
(a) Nondisclosure. Employee acknowledges that in the course of his
performance of services under this Agreement he has had, and will have,
access to, become acquainted and familiar with, or gain intimate knowledge
of, all or part of the intimacies of the Company's business and the
Company's Proprietary Information. Employee therefore agrees that he shall
not under any circumstance whatsoever (except as may be specifically
directed by the Board of Directors of the Company and then solely in the
performance of Employee's duties on behalf of the Company):
(i) directly or indirectly, intentionally or unintentionally,
reveal, disclose, furnish, publish, make accessible, or disseminate
to any Entity who is not employed, associated with or engaged by the
Company any Proprietary Information or other matters concerning the
business affairs of the Company, unless already generally known to
and available for use by the public (other than as a result of
Employee's acts or omissions to act); or
(ii) use or exploit any Proprietary Information for the financial
gain of Employee or any Entity or for any other purpose. Provided,
however, that if required, Employee may disclose such Proprietary
Information as mandated by a valid order or subpoena issued by a
court or administrative agency of competent jurisdiction. In such
latter event, Employee will promptly notify the Company of such
order or subpoena in
7
order to provide the Company the opportunity to protect its
interests in such Proprietary Information.
(b) Restricting Solicitation. Employee agrees that, during the
Covenant Period, Employee shall not, either individually or on behalf of
any Entity other than the Company:
(i) solicit or otherwise deal with any Client or Customer of the
Company in any manner designed to (or that could) take business away
from or otherwise damage the Company in any way; and/or
(ii) solicit or otherwise induce any employee or independent
contractor of the Company to terminate their employment or
association as employees, distributors or independent contractors
with the Company.
(c) Against Competition. Employee agrees that during the Covenant
Period, Employee shall not, directly or indirectly, either individually or
on behalf of any Competing Entity:
(i) compete with the Company or engage in any aspect of the
Company's Business anywhere within the Territory;
(ii) undertake to plan or organize any Competing Entity within the
Territory, nor shall Employee consult or discuss the possibility of
employment or other relationship with any Competing Entity within
the Territory (notwithstanding anything else contained herein to the
contrary, during the last six months of the Covenant Period, the
Employee may plan, but not take action, for his post Covenant Period
activities); and/or
(iii)become associated or connected in any way with, participate in,
be employed by, render services to, or consult with, any Competing
Entity within the Territory.
(d) Cooperation. During the Covenant Period, Employee agrees that,
upon the Company's reasonable request, Employee in good faith and using
diligent efforts shall cooperate and assist the Company in any dispute,
controversy or litigation in which the Company may be involved, including
without limitation, Employee's participation in any court or arbitration
proceedings, the giving of testimony, the signing of affidavits or such
other personal cooperation as counsel for the Company may reasonably
request. Such cooperation shall not be unreasonably burdensome or without
reasonable compensation.
6.4 Reformation. The Company intends to restrict the activities of
Employee under this Section 6 only to the extent necessary for the protection of
the legitimate business interests of the Company. It is the intention and
agreement of the parties that all the terms and conditions hereof be enforced to
the fullest extent permitted by law. In the event the provisions of this Section
6 should ever be deemed or adjudged by a court of competent jurisdiction to
exceed the time or geographical limitation permitted by applicable law, then the
parties intend such provisions shall
8
nevertheless be valid and enforceable to the extent necessary for such
protection as determined by such court, and such provisions shall be reformed to
the maximum time or geographic limitations as permitted by applicable law and
determined by such court.
7. REMEDIES.
7.1 Injunction. In the event of Employee's actual or threatened breach of
any one or more provisions of Section 6 above, Employee specifically
acknowledges that the Company will incur incalculable and irreparable damage and
that the Company has no adequate remedy at law for such threatened and
continuing breach. Therefore, the Company shall be entitled to injunctive relief
immediately and permanently restraining Employee from such continuing or
threatened breach, in addition to all other remedies available to the Company at
law or in equity (including without limitation, a temporary restraining order,
preliminary or permanent injunction, specific performance and money damages).
Employee expressly agrees that a temporary restraining order may be granted
without prior notice to Employee and Employee hereby expressly waives any and
all right to such prior notice.
7.2 Non-Exclusive of Remedies. Except as specifically provided herein, the
rights and remedies of the parties hereto shall not be mutually exclusive, and
the exercise of one or more of the provisions of this Agreement shall not
preclude the exercise of any other provision. Each of the parties confirms that
damages at law may be an inadequate remedy for a breach or threatened breach of
any provisions hereof. The respective rights and obligations hereunder shall be
enforceable by specific performance, injunction, or other equitable remedy, but
nothing herein contained (except as provided in Section 7.3 below) is intended
to or shall limit or affect any rights at law or by statute or otherwise of any
party hereto as against the other party for a breach or threatened breach of any
provision hereof, it being the intention of this Section 7.2 to make clear the
agreement of the parties that the respective rights and obligations of the
parties hereunder shall be enforceable in equity as well as at law and
otherwise.
7.3 Mediation and Arbitration.
7.3.1. Mediation. In the event a dispute arises between the parties
under this Agreement, other than a dispute entitling a party to injunctive or
equitable relief hereunder, the parties agree to jointly submit the matter to
non-binding mediation prior to seeking any further remedies.
7.3.2.Arbitration. With the exception of the Company's right to a
temporary restraining order, a preliminary injunction or a permanent injunction
under 7.1 above, controversies under, or claims arising out of, or relating to
this Agreement, or any breach thereof, which are not otherwise resolved through
mediation, shall be resolved by arbitration in Dallas, Texas in accordance with
the rules of the American Arbitration Association in effect at the time of
arbitration. Judgment upon any Arbitration Award under this Agreement may be
entered in any court having jurisdiction thereof under the Texas Arbitration
Act. It is the intention of the parties that only the issue of whether or not
the Company may be entitled to, and have entered, a Temporary Restraining Order,
9
a Preliminary Injunction or a Permanent Injunction, under 7.1 above, shall not
be subject to and not be required to be arbitrated under this Agreement. In any
arbitration proceeding under this Agreement, costs including reasonable
attorney's fees, shall be granted to the party prevailing in such arbitration.
8. MISCELLANEOUS.
8.1 Attorney's Fees. If a legal action or other proceeding is brought by
the Company or by the Employee for enforcement of this Agreement or for judgment
on an arbitration award under this Agreement, the party that prevails shall be
entitled to recover reasonable attorney's fees, costs and expenses incurred in
addition to any other relief to which that party may be entitled.
8.2 Entire Agreement. This Agreement constitutes the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes, supplants, and replaces all prior agreements, understandings,
arrangements, negotiations, representations, discussions and preliminary
agreements between the parties hereto relating to the subject matter hereof.
8.3 Successors. Except as otherwise expressly provided herein, this
Employment Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns, and upon the Employee, his administrators,
executors, legatees, heirs and assigns.
8.4 Governing Law. This Employment Agreement shall be construed and
enforced under and in accordance with the laws of the State of Texas. Any action
or proceeding seeking to enforce any provision of, or based on any right arising
out of, this Agreement shall be brought in the federal or state courts of Dallas
County, Texas.
8.5 Waiver. Any waiver by any party hereto of any breach of any kind or
character whatsoever by any other party, whether such waiver be direct or
implied, shall not be construed as a continuing waiver or consent to any
subsequent breach of this Agreement on the part of the other party or parties.
8.6 Severability. The provisions of this Agreement are severable and
should any provision hereof be void, voidable or unenforceable under any
applicable law, such void, voidable or unenforceable provision shall not affect
or invalidate any other provision of this Agreement, which shall continue to
govern the relative rights and duties of the parties as though void, voidable or
unenforceable provision were not a part hereof. In addition, it is the intention
and agreement of the parties that all of the terms and conditions hereof be
enforced to the fullest extent permitted by law.
8.7. Modification. This Agreement may not be modified except by a written
instrument signed by all the parties hereto.
8.8 Headings. The headings of sections and subsection used in this
Agreement are for convenience only and are not part of its operative language.
They shall not be used to affect the construction of any provision hereof.
10
8.9 Acknowledgment. Employee specifically acknowledges that: Employee has
read and understands all of the terms of this Agreement; in executing this
Agreement, Employee does not rely on any inducements, agreements, promises or
representations of the Company, other than the terms or conditions specifically
set forth in this Agreement; the Clients and Customers of the Company comprise a
substantial part of the goodwill of the Company; the Company's offer of
employment constitutes adequate consideration for Employee's entering into this
Agreement, including the covenants set forth in Section 6 above, the Company
will incur a significant investment in the Employee; during his employment,
Employee will render services to the Company that contribute to and enhance the
goodwill of the Company; Employee has had an opportunity to consult with
independent counsel with respect to the advisability of executing this
Agreement; and Employee has made such investigation of the facts pertaining to
this Agreement and all of the matters pertaining hereto as he deems necessary.
In addition, Employee represents to the Company that Employee has not and will
not enter into any agreement inconsistent with this Agreement.
8.10 Separate Counsel. The parties acknowledge that the Company and the
Employee have been represented by separate legal counsel in this transaction and
that Employee has not been represented by the Company's counsel.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first written above.
Xxxxxxx Factors, Inc. Employee
By: ___________________________ _______________________________
Xxxxx Xxxx, President Xxxx X. Xxxxxx
11
