EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Agreement”), dated as of
December 1st, 2009 (the “Effective Date”), by and
between Xxxxxxxx Xxxxxx,
a resident of Florida (the “Executive”), and Core Financial Group, Ltd.
(formerly Asia Special Situation Acquisition Corp.), a Cayman Islands
corporation (the “Company”).
RECITALS:
WHEREAS, the Company is in the
business of providing reinsurance and other insurance products, and engages in
other related activities in connection with the foregoing (the “Business”).
WHEREAS, the Company is
desirous of employing the Executive as its Chief Executive Officer and as its
Vice Chairman of the Board of Directors of the Company (the “Board”), and the Executive
desires to be employed by the Company in such position, upon the terms and
provisions, and subject to the conditions, set forth in this
Agreement.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements of the parties contained herein, and other
good and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Employment;
Term. The Company shall employ the Executive, and the
Executive shall accept employment by the Company, upon the terms and provisions,
and subject to the conditions, of this Agreement. The term of the
Executive’s employment hereunder shall commence on and as of the Effective Date
(the “Employment Date”)
on the terms and conditions as set forth herein and shall terminate on the
December 31, 2014 (as the same may be extended in accordance with this Section 1 or
terminated earlier as provided in this Agreement, the “Employment Term”)). This
Agreement shall automatically renew for successive two-year periods following
the initial five (5) year Employment Term (each a “Renewal Term”), if applicable,
unless the Company provides the Executive with written notice not less than one
hundred and eighty (180) days prior to the end of the then-existing Employment
Term or each Renewal Term, that the Company does not desire the Employment Term
to automatically renew, in which event this Agreement shall terminate as of the
last day of the then-existing Employment Term or any applicable Renewal
Term. As used herein, the phrase “Term of this Agreement” or the
“Employment Term” shall
mean and include the initial five-year Employment Term and each applicable
Renewal Term.
2. Position and
Duties.
(a) Position. For
the interim period that commenced on the Effective Date and ends on January 23,
2010, the Executive shall be employed as Executive Vice President of the
Company. At all times from and after January 23, 2010, the Company
shall employ the Executive, and the Executive shall serve, as the Chief
Executive Officer of the Company. The Executive shall be responsible
for overseeing and managing the Business, including exercising authority for the
management of the day-to-day business, operations and strategy of the Company
and its subsidiaries, subject only to the ultimate direction and authority of
the Board of Directors of the Company (the “Board”). The
Executive shall have such additional responsibilities or duties with respect to
the Company and its subsidiaries, and their respective operations, as may be
determined and assigned to the Executive by the Board, which responsibilities
and duties shall generally be of a nature which may be assigned to the most
senior executive of the Company. If elected by the shareholders,
during the Term of this Agreement, the Executive also agrees to serve as the
Chairman of the Board or Vice-Chairman of the Board of the Company without
additional compensation. The Executive shall report directly to the
Board.
(b) Election to Board of
Directors. During the Employment Term, the Company and the Board shall
cause the Executive to be nominated to be elected as a director to the Board and
the Executive shall serve at all times during the Employment Term as the [Vice] Chairman of the
Board.
(c) Duties; Other
Organizations. During the Employment Term, the Executive agrees to devote
substantially all of his business and professional time and efforts on behalf of
the Company and its subsidiaries and shall competently, diligently and
effectively discharge all of his duties hereunder. During the Employment Term,
the Executive shall not be prohibited in any way from (i) serving as an officer
or director of any entity or business enterprise which does not interfere with
the Executive’s primary duties and responsibilities to the Company and its
subsidiaries; provided that such
entity or business enterprise does not engage in a business that directly or
indirectly competes with the Business in any material respect, or (ii) otherwise
participating in such educational, welfare, social, religious, charitable, civic
or other non-employment organizations or activities as do not interfere with the
Executive’s primary duties and responsibilities to the Company and its
subsidiaries and which do not violate any of provisions of this
Agreement. The Executive further agrees to comply fully with all
reasonable Company policies as are from time to time in effect during the
Employment Term.
(d) Investments. Nothing
in this Agreement shall prohibit the Executive from making any investments in
the securities of any entity or business enterprise whatsoever; provided, however, that during
the Employment Term, the Executive shall not make any investments (other than
“passive investments” as defined below) in the securities of any entity or
business enterprise which engages in a business that that directly or indirectly
competes with the Business in any material respect. An investment
shall be considered a “passive investment” to the extent that such securities
(i) are actively traded on a United States national securities exchange, on the
NASDAQ National Market System or Small Cap Market System, on the OTC Bulletin
Board, or on any foreign securities exchange, and (ii) represent, at the time
such investment is made, less than five percent (5%) of the aggregate voting
power of such entity or business enterprise.
(e) Location. The
Executive shall perform his duties from an office location in Palm Beach County,
Florida or other location as determined by the Executive and approved by the
Board during the Employment Term from time to time. Additionally, the selection
of the office space, the improvements and decorating of the office space, the
quality of the furnishings and interior decorating shall also be determined in
the reasonable discretion of the Executive.
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(f)
Office
Support. During the Employment Term, any extensions
thereof, and for a five year period immediately following termination of
employment for any reason, the Company shall provide and pay for a personal
assistant to the Executive of such caliber befitting a Chief Executive Officer
and as selected solely by the Executive. The Company shall be
responsible to pay all salary, wages, compensation, and health insurance
benefits for such personal assistant on a bi-weekly basis. In
addition, the Company shall, during the Employment Term, any Renewal Term and
for the five year period immediately following termination of employment for any
reason other than for Cause, provide at its sole cost and expense, all office
support as shall be determined by the Executive consistent with this Section
2(f), together with an office suite, telephone, fax, computers, copy machine,
office supplies, and office furnishings in accordance with the terms of Section
2(e) above. In such connection, following termination of employment,
the Executive agrees to make himself reasonably available to provide
consultation services to the Company at such times and for such consulting fees
as the Executive and the Company may mutually agree upon.
3. Compensation.
(a) Base
Salary. During the Employment Term, the Company shall pay to
the Executive an annual salary of Six Hundred and Fifty Thousand dollars and no
cents ($650,000.00), as adjusted in accordance with Section
3(b) below (as adjusted, (the “Base Salary”); provided, that
no Base Salary shall accrue or be payable to the Executive for the period from
the Effective Date through January 22, 2010. The Board, in its
discretion, may increase (but not decrease) the Base Salary from time to
time. The Base Salary shall be payable in equal bi-weekly
installments during any year of the Employment Term in accordance with the
Company’s normal payroll procedures; provided, however, that such
payments shall be subject to withholding for applicable taxes and any other
amounts generally withheld from compensation paid to salaried senior executives
of the Company.
(b) CPI Increase. The
Base Salary shall increase annually by an amount equal to the greater of (i)
three percent (3%) for each year of the Employment Term, and (ii) the annual
percentage increase in the consumer price index (the “CPI”) for New York, New York,
as published by the Federal Bureau of Labor Statistics (the “Bureau”), or any successor
entity to the Bureau, in each case multiplied by the then current Base Salary
pursuant to Section 3
(a); provided, however, that if the
Bureau no longer publishes the CPI, a comparable index reasonably acceptable to
the Company and the Executive shall be substituted therefore.
(c) Equity Award. The
Executive shall be entitled to participate in any equity incentive plans for the
benefit of executives and other employees of the Company pursuant to the terms
of any such plan as may be approved by the Board, and upon such terms and
conditions as may be established by the Board or the Compensation Committee of
the Board.
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(d) Performance Bonus.
Following the end of each fiscal year of the Company during the Employment Term
commencing with the fiscal year ending December 31, 2010, the Executive shall be
entitled to receive a fiscal year end bonus of up to 100% of the Executive’s
Base Salary for such fiscal year, payable in cash as may be determined by the
Board; provided,
however, that the Executive may choose in his sole discretion to have all
or any portion of said bonus paid in the form of shares of stock of the Company
(the “Performance
Bonus”). The Company shall pay to the Executive the Performance Bonus if
the Company achieves or exceeds the financial performance targets for such
fiscal year as set forth by the Board during each year of the
Term. The Performance Bonus, if earned, shall be paid by the Company
to the Executive within thirty (30) days following the completion of the audited
financial statements of the Company for the prior fiscal
year. Notwithstanding anything to the contrary contained herein, in
the event the Executive does not achieve or exceed the financial performance
targets, the Board in its discretion, may still pay to the Executive a
Performance Bonus.
(e) Change of Control
Payment. In the event of a “Change of Control” of the Company (as
hereinafter defined) that may occur at any time from and after February 1, 2010,
in the event that either (i) the Executive is not offered continuous employment
by the Company or its successor-in-interest upon the same terms and conditions
as set forth herein, or (ii) the Executive elects not to continue his employment
with the Company or such successor-in-interest, in either event the Company or
its successor-in-interest shall be require to pay to the Executive a payment
which shall be equal to the sum of 200% of the sum of (A) the Executive’s then
Base Salary, plus (B) the Performance Bonus (if any) awarded to the Executive in
the fiscal year immediately preceding such Change of Control, less (C) $100.00
(the “Change of Control
Payment”). As used herein, the term “Change of Control” means any
transaction or series of transactions involving the sale of all or substantially
all of the assets or securities of the Company and its subsidiaries, whether by
asset sale, merger, consolidation, tender offer or like transaction, whereby the
ability to elect a majority of the members of the Board of the Company shall be
vested in one or more persons who were not an Affiliate of the Company prior to
such transaction(s).
4. Benefits.
(a) Certain Benefits.
During the Employment Term, the Executive may (subject to applicable eligibility
requirements) participate in such insurance and health and medical benefits as
are generally made available to the other employees of the Company pursuant to
such plans as are from time to time maintained by the Company; provided however
that such health insurance plans shall provide coverage for the Executive, his
spouse and his family. The cost of any such insurance premium
payments shall be borne solely by the Company and the Company shall reimburse
the Executive for any co-payments or out of pocket expenses not otherwise
covered by insurance within 30 days of Executive’s submittal of such
expenses.
(b) Vacation. During each
full year of the Employment Term, the Executive shall be entitled to four (4)
weeks of paid vacation. The Executive shall take vacation at such
time or times as the Executive desires based upon the then current business
needs and activities of the Company.
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(c) Other Benefits.
During the Employment Term, the Executive shall be entitled to receive such
other benefits as may be provided to executives or other employees of the
Company, including but not limited to participation in the Company’s 401(k)
plan, other retirement plans, long term incentive plans, disability plans, life
insurance plans, dental and eye care plans, medical plans welfare plans, equity
incentive plans and such other benefit plans as may be offered to executives or
other employees. To the extent any such benefit plan is taxable
to the Executive, the Company shall pay to the Executive, within 30 days of
notice from the Executive, as additional compensation an amount equal to the
applicable tax amount.
(d) Indemnification.
During the Employment Term, the Company shall indemnify the Executive and hold
the Executive fully harmless from and against all claims, actions, suits,
proceedings, liabilities, damages, fines, costs and expenses (including, without
limitation, reasonable attorneys’ fees and expenses) which may be incurred by
the Executive in connection with the performance of his duties hereunder, to the
fullest extent permitted by applicable law and to the extent no less than
provided to any other senior executive officer of the Company. Additionally, the
Executive shall be permitted to select his own counsel and the Company shall be
required to pay to the Executive’s counsel all fees and expenses incurred by
Executive on a monthly basis.
(e) D&O
Insurance. Commencing as of December 1, 2009 Effective Date,
and thereafter during the balance of the Employment Term and for a period of
five (5) years after the expiration of the Employment Term, the Company shall
maintain in full force and effect (and pay all premiums which may be due in
respect thereof) directors and officers liability insurance coverage which shall
provide not less than ten million dollars ($10,000,000) of coverage per
occurrence and in the aggregate.
5. Allowances; Business
Expenses.
(a) Auto Allowance.
During the Employment Term the Executive shall receive a car allowance equal to
One Thousand dollars and no cents ($1,000.00) per month (the “Monthly Allowance”), which
Monthly Allowance shall increase at the rate of one hundred dollars ($100) per
month on each two (2) year anniversary of this Agreement, including any renewals
or extensions hereof.
(b) Business Expenses.
Upon receipt of proper substantiation, the Company shall promptly pay directly,
or reimburse the Executive for all business expenses to the extent such expenses
are paid or incurred by the Executive during the Employment Term in accordance
with company policy then in effect from time to time, if any, and to the extent
such expenses are reasonable and necessary to the conduct by the Executive of
the performance of his duties in connection with the conduct of the
Business. Notwithstanding any Company policy to the contrary, in
connection with the Executive’s business travel on behalf of the Company, the
Executive shall be entitled to first class hotel accommodations and first class
air travel.
(c) Legal
Expense. The Company agrees to reimburse the Executive for all
legal fees and costs incurred by the Executive with respect to the preparation
and negotiation of this Agreement, the Stock Purchase Agreement or such other
agreements as may be necessary to effectuate the Executive’s employment with the
Company. All such legal fees shall be paid within 30 days
of invoice date.
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(d) Airplane
Usage. In the event the Company owns or leases an airplane,
the Executive shall be entitled to priority usage of such airplane as the
Executive deems to be solely appropriate, including business or personal
travel.
(e) Private
Clubs. The Executive shall be permitted to join private clubs,
for example golf or yacht clubs, that Executive believes are reasonably
appropriate in furthering the business interests of the Company. The
Company shall pay on a timely basis all dues, fees, initiation costs or other
charges incurred by the Executive at such clubs.
6. Covenant Not to
Solicit.
(a) No Solicitation. The
Executive shall not, during the Employment Term and the twelve (12) month period
following the Employment Term (the “Restriction Period”), unless
the employment of the Executive is terminated by the Company without Cause
(defined below) or by the Executive for Good Reason (defined below), in either
such instance the Restriction Period shall only continue for so long as the
Company fully satisfies its obligations to the Executive under Section 14 hereof, as
applicable, directly or indirectly, solicit, entice, persuade, induce or cause
any employee, officer, manager, director, consultant, agent or independent
contractor of the Company to terminate his, her or its employment, consultancy
or other engagement by the Company to become employed by or engaged by any
individual, entity, corporation, partnership, association, or other organization
(collectively, “Person”)
other than the Company, or approach any such employee, officer, manager,
director, consultant, agent or independent contractor for any of the foregoing
purposes, or authorize or assist in the taking of any of such actions by any
Person; provided, however, that,
notwithstanding anything to the contrary contained in the foregoing, the
Executive shall be entitled to employ or otherwise utilize the services of his
personal assistant in connection with any other business activity or enterprise
in which the Executive engages or otherwise participates.
(b) Prohibited Actions.
The Executive shall not, during the Restriction Period, directly or indirectly,
solicit, entice, persuade, induce or cause:
(i) any
Person who either was an investor in or customer of the Company or any of its
subsidiaries at any time during the Employment Term or is an investor in or
customer of the Company at any time during the Restriction Period;
or
(ii) any
lessee, vendor or supplier to, or any other Person who had or has a business
relationship with, the Company at any time during the Employment Term or the
Restriction Period;
(the
Persons referred to in items (i) and (ii) above, collectively, the “Prohibited Persons”) to enter
into a business relationship with any other Person for the same or similar
investments, services, activities or goods that any such Prohibited Person
invested in, purchased from, was engaged in with or provided to, the Company or
any of its subsidiaries or to reduce or terminate such Prohibited Person’s
business relationship with the Company; and the Executive shall not, directly or
indirectly, approach any such Prohibited Person for any such purpose, or
authorize or assist in the taking of any of such actions by any
Person.
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7. Non-Competition. Except
as otherwise provided in this Agreement, during the Employment Term and during
the Restriction Period, the Executive shall not, anywhere within the United
States of America, directly or indirectly, alone or in association with any
other Person, directly or indirectly, (i) acquire, or own in any manner, any
interest in any Person that engages in the Business or that engages in any
business, activity or enterprise that competes with any aspect of the Business,
or (ii) be interested in (whether as an owner, director, officer, partner,
member, lender, shareholder, vendor, consultant, employee, advisor, agent,
independent contractor or otherwise), or otherwise participate in the management
or operation of, any Person that engages in any business, activity or enterprise
that competes with any aspect of the Business.
8. Protection of Confidential
Information. The Executive acknowledges that prior to
the Employment Date the Executive has had access to, and during the course of
the Executive’s employment hereunder will have access to, significant
Confidential Information (defined below). During the Restriction
Period, (i) the Executive shall maintain all Confidential Information in strict
confidence and shall not disclose any Confidential Information to any other
Person, except as necessary in connection with the performance of the
Executive’s duties and obligations under this Agreement, and (ii) the Executive
shall not use any Confidential Information for any purpose whatsoever except in
connection with the performance of the Executive’s duties and obligations under
this Agreement.
For purposes of this Agreement, “Confidential Information”
shall mean any and all information pertaining to the Company and the Business,
whether such information is in written form or communicated orally, visually or
otherwise, that is proprietary, non-public or relates to any trade secret,
including, but not limited to, (i) information, observations and data obtained
by the Executive while employed by the Company concerning the Business, (ii)
products or services, (iii) fees, costs and pricing structures, (iv) designs,
(v) analyses, (vi) drawings, photographs and reports, (vii) computer software,
including operating systems, applications and program listings, (viii) flow
charts, manuals and documentation, (ix) data bases, (x) accounting and business
methods, (xi) inventions, devices, new developments, methods and processes,
whether patentable or unpatentable and whether or not reduced to practice, (xii)
customers, suppliers, clients and customer, supplier and client lists, (xiii)
other copyrightable works, (xiv) marketing plans and trade secrets, and (xv) all
similar and related information in whatever form. Notwithstanding the
foregoing, “Confidential Information” shall not include information that (i) is
or becomes generally available to, or known by, the public through no fault of
the Executive, or (ii) is independently acquired or developed by the Executive
without violating any of his obligations under this Agreement.
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9. Return of
Property. All correspondence, reports, charts, products,
records, designs, patents, plans, manuals, sales and marketing material,
memorandum, advertising materials, customer lists, distributor lists, vendor
lists, telephones, beepers, portable computers, and any other such data,
information or property collected by or delivered to the Executive by or on
behalf of the Company, their representatives, customers, suppliers or others and
all other materials compiled by the Executive which pertain to the business of
the Company shall be and shall remain the property of the Company and shall be
delivered to the Company promptly upon its request at any time and without
respect upon completion or other termination of the Executive’s employment
hereunder for any reason.
10. Representations of the
Executive. The Executive represents and warrants to the
Company that he is not subject to any restriction or non-competition covenant in
favor of a former employer or any other person or entity, and that the execution
of this Agreement by the Executive and his provision of services to the Company
and the performance of his obligations hereunder will not violate or be a breach
of any agreement with a former employer or any other person or entity. Further,
the Executive agrees to indemnify the Company for any claim, including but not
limited to attorneys’ fees and expenses of investigation, by any such third
party that such third party may now have or may hereafter have against the
Company based upon any noncompetition agreement, invention or secrecy agreement
between the Executive and such third party.
11. Certain Additional
Agreements.
(a) Legitimate Interest.
The Executive agrees that it is a legitimate interest of the Company and
reasonable and necessary for the protection of the goodwill and business of the
Company, which are valuable to the Company, that the Executive make the
covenants contained in Sections 6, 7, 8, and 9 (the “Selected
Covenants”).
(b) Fair and Reasonable.
The parties acknowledge that (i) the type and periods of restriction imposed in
the Selected Covenants are fair and reasonable and are reasonably required to
protect and maintain the proprietary and other legitimate business interests of
the Company, as well as the goodwill associated with the Business conducted by
the Company, (ii) the Business conducted by the Company extends throughout the
United States, and (iii) the time, scope, geographic area and other provisions
of the Selected Covenants have been specifically negotiated by sophisticated
commercial parties represented by experienced legal counsel.
(c) Illegality. In the
event that any covenant contained in this Agreement, including, without
limitation, any of the Selected Covenants shall be determined by any court of
competent jurisdiction to be illegal, invalid or unenforceable by reason of its
extending for too great a period of time or over too great a geographical area
or by reason of its being too extensive in any other respect, (i) such covenant
shall be interpreted to extend over the maximum period of time for which it may
be legal, valid and enforceable, as applicable, and/or over the maximum
geographical area as to which it may be legal, valid and enforceable, as
applicable, and/or to the maximum extent in all other respects as to which it
may be legal, valid and enforceable, as applicable, all as determined by such
court making such determination, and (ii) in its reduced form, such covenant
shall then be legal, valid and enforceable, as applicable, but such reduced form
of covenant shall only apply with respect to the operation of such covenant in
the particular jurisdiction in or for which such adjudication is
made. It is the intention of the parties that such covenants shall be
enforceable to the maximum extent permitted by applicable law.
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12. Specific
Performance. The Executive acknowledges that any breach or
threatened breach of the covenants contained in the Selected Covenants will
cause the Company material and irreparable damage, the exact amount of which
will be difficult to ascertain and that the remedies at law for any such breach
or threatened breach will be inadequate. Accordingly, the Executive
agrees that the Company shall, in addition to all other available rights and
remedies (including, but not limited to, seeking such damages as either of them
can show it has sustained by reason of such breach), be entitled to specific
performance and injunctive relief in respect of any breach or threatened breach
of any of the Selected Covenants, without being required to post bond or other
security and without having to prove the inadequacy of the available remedies at
law or irreparable harm.
13. Termination.
(a) Death. In the event
of the death of the Executive during the Employment Term, the Executive’s
employment hereunder shall automatically terminate as of the date of death;
provided, however, that the
Executive’s estate or legal representative, as the case may be, shall be
entitled to receive, and the Company shall pay the Executive’s estate or legal
representative, as the case may be, in accordance with its normal payroll
procedures, (i) the Base Salary owing to the Executive hereunder through the
date of death plus the Base Salary for an additional twelve (12) months; (ii)
any accrued but unpaid Performance Bonus; and (iii) any business expenses which
were properly reimbursable to the Executive pursuant to Section 5 hereof,
through the date of death. The Executive shall be entitled to no
further payment upon such termination.
(b) Incapacity. In the
event of the Executive’s Incapacity (defined below), the Company may, in its
sole discretion, upon written notice to the Executive, terminate the Executive’s
employment hereunder upon written notice to the Executive; provided, however, that the
Executive or the Executive’s legal representative, as the case may be, shall be
entitled to receive, and the Company shall pay the Executive or the Executive’s
legal representative, as the case may be, in accordance with its normal payroll
procedures, (i) the Base Salary owing to the Executive hereunder through the
date of termination plus the Base Salary for an additional twenty-four (24)
months; (ii) any accrued but unpaid Performance Bonus; (iii) any business
expenses which were properly reimbursable to the Executive pursuant to Section 5 hereof
through the date of termination; and (iv) the health, medical insurance and
other benefits which are provided to the Executive in Section 4 hereunder for a
period of eighteen (18) months following such termination. Upon
expiration of such eighteen (18) month period, upon the written request of the
Executive, the Company shall continue such health, medical insurance and other
benefits, provided that the Executive shall pay or reimburse the Company for any
premiums or related costs thereof. The Executive shall be entitled to
no further payment upon such termination.
For purposes of this Agreement, “Incapacity” shall mean the
Executive’s inability to perform his duties and obligations hereunder on account
of illness or other impairment for three (3) consecutive months or such longer
period as proscribed by applicable law, as determined by the
Board.
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For purposes of this Agreement, “Permanent Disability,” shall
mean the inability of the Executive, as determined by the Board, by reason of
physical or mental illness to perform the duties required of him under this
Agreement for more than one hundred eighty (180) days in any one (1) year
period. Successive periods of disability, illness or incapacity will
be considered separate periods unless the later period of disability, illness or
incapacity is due to the same or related cause and commences less than one
hundred eighty (180) days from the end of the previous period of disability. If
a determination of the Board under as to the Permanent Disability of the
Executive is disputed by the Executive, the parties agree to abide by the
decision of a panel of three physicians, one (1) to be selected by each of the
Company and the Executive, such two (2) physicians to jointly select the third
physician. The Executive agrees to make himself available for and
submit to examinations by such physicians as may be directed by
Company. Failure to submit to any examination shall constitute the
Executive’s accord with the Board’s determination of his Permanent
Disability.
(c) For Cause. The
Company shall have the right to terminate the Executive’s employment under this
Agreement at any time for Cause (defined below) upon written notice to the
Executive. In the event the Executive’s employment hereunder is
terminated by the Company for Cause, the Executive shall be entitled to receive,
and the Company shall pay the Executive in accordance with its normal payroll
procedures, (i) the Base Salary owing to the Executive hereunder through the
date of termination; (ii) the Sale Bonus, (iii) any accrued but unpaid
Performance Bonus and (iv) any business expenses which were properly
reimbursable to the Executive pursuant to Section 4 hereof
through the date of termination. The Executive shall be entitled to
no further payment upon such termination. The Executive acknowledges
and agrees that each of the factors which comprise the definition of “Cause”
constitutes, on an individual basis, adequate and sufficient grounds for
termination of the Executive’s employment with the Company.
For purposes of this Agreement, “Cause” shall
mean:
(i) Any
breach by the Executive of any material covenant, condition or term contained in
this Agreement, which breach is demonstrably willful and deliberate on the
Executive’s part and which has been committed either in bad faith or without
reasonable belief by the Executive that such breach was in the best interests of
the Company, and the Executive’s failure to cure such breach within thirty (30)
days of the Executive’s receipt of written notice with respect thereto;
or
(ii) Any
conviction of the Executive of a crime of moral turpitude or a felony of a
nature that would either result in the incarceration of the Executive or could
reasonably be expected to materially and adversely affect the Company and its
reputation in the business and investment community.
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(d) Good Reason. The
Executive shall be entitled to terminate his employment with the Company for
Good Reason (defined below) upon notice to the Company of his intent to so
terminate within thirty (30) days after he has actual knowledge of the event
giving rise to the notice and the Company fails to cure the condition specified
in the Executive’s notice to the Company required to be provided by this Section 13(d) within
thirty (30) days following such notice. If the Executive terminates
his employment hereunder for Good Reason, the Executive shall be entitled to
receive, and the Company shall pay the Executive, in accordance with the
Company’s normal payroll procedures, (i) Base Salary owing to the Executive
through date of termination plus an amount (payable in the same manner as his
Base Salary) equal to 200% of the Executive’s annual Base Salary as at the date
of termination for Good Reason (the owed to the Executive under this Section (i)
shall be referred to herein as the “Severance Payment”); (ii) any
accrued but unpaid Performance Bonus; and (iii) any business expenses which were
properly reimbursable to the Executive pursuant to Section 5 hereof
through the date of termination; and (iv) the health, medical insurance and
other benefits which are provided to the Executive in Section 4 hereunder
for a period of 18 months following such termination. In addition,
any stock options granted by the Company to the Executive which have not vested
or are not yet exercisable shall automatically vest and become immediately
exercisable by the Executive commencing on the date the Executive is terminated
for Good Reason and for a period of five (5) years following such date of
termination.
For purposes of this Agreement, “Good Reason” shall mean the
occurrence of any of the following events:
(i) the
Executive is not retained as Chief Executive Officer of the Company, even if the
Executive is allowed to continue in the employ of the Company; or
(ii) the
Company materially reduces the Executive’s duties and responsibilities
hereunder; or
(iii) the
Executive is removed by the Board or the Board refuses to place the Executive’s
name for nomination to the Board at any shareholders meeting from his position
as Chief Executive Officer and as a member of the Board for any reason, other
than Cause; or
(iv) the
Company fails to perform or observe any of its material obligations to the
Executive under this Agreement including, without limitation, by failing to
provide or cause the provision of, any compensation or benefits to the Executive
that it is obligated to provide hereunder; or
(v) the
Company undergoes a Change of Control as set forth in Section 3(e) of this
Agreement.
(e) Voluntary. The
Executive shall be entitled to voluntarily terminate his employment with the
Company prior to the end of the Employment Term upon ninety (90) days prior
written notice from the Executive to the Company. If the Executive voluntarily
terminates his employment hereunder, the Executive shall be entitled to receive,
and the Company shall pay the Executive in accordance with its normal payroll
procedures, (i) the Base Salary owing to the Executive hereunder through the
date of termination; and (ii) any business expenses which were properly
reimbursable to the Executive pursuant to Section 4 hereof
through the date of termination. The Executive shall be entitled to
no further payment upon such termination. If the Executive
voluntarily terminates his employment hereunder, it shall not be deemed a breach
of this Agreement by the Executive or a violation of the Executive’s duties or
obligations hereunder.
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14. Miscellaneous.
(a) Notices. All
notices, demands, consents, requests, instructions and other communications to
be given or delivered or permitted under or by reason of the provisions of this
Agreement or in connection with the transactions contemplated hereby shall be in
writing and shall be deemed to be delivered and received by the intended
recipient as follows: (i) if personally delivered, on the business
day of such delivery (as evidenced by the receipt of the personal delivery
service), (ii) if mailed certified or registered mail return receipt requested,
four (4) business days after being mailed, (iii) if delivered by overnight
courier (with all charges having been prepaid), on the business day of such
delivery (as evidenced by the receipt of the overnight courier service of
recognized standing), or (iv) if delivered by facsimile transmission, on the
business day of such delivery if sent by 5:00 p.m. in the time zone of the
recipient, or if sent after that time, on the next succeeding business day (as
evidenced by the printed confirmation of delivery generated by the sending
party’s facsimile machine). If any notice, demand, consent, request,
instruction or other communication cannot be delivered because of a changed
address of which no notice was given (in accordance with this Section 14(a)), or
the refusal to accept same, the notice, demand, consent, request, instruction or
other communication shall be deemed received on the second business day the
notice is sent (as evidenced by a sworn affidavit of the sender). All
such notices, demands, consents, requests, instructions and other communications
will be sent to the following addresses or facsimile numbers as
applicable:
If to the
Company, to:
Core
Financial Group, Ltd.
x/x X
& X Xxxxxxxxx Xxxxxxxx Xxxxxxx
X.X. Xxx
000 XX
Xxxxxx
House
South
Church Street
Xxxxxx
Town, Grand Cayman
with a
copy to:
Xxxxxxx
X. Xxxxx, Esq.
Xxxxxxx Xxxx, LLP
0000
Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000-0000
If to the
Executive, to:
Xxxxxxxx
Xxxxxx
0000
Xxxxxxxxxx Xxxxx
Xxxx
Xxxxx Xxxxxxx, XX 00000
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With a
Copy to:
Xxxxx X.
Xxxxxxx, Esq.
Xxxxxxxxx
Xxxxxxx, P.A.
0000 Xxxx
Xxxxxx Xxxxxx
Xxxxx
000
Xxxx
Xxxxx, XX 00000
or to
such other address as any party may specify by notice given to the other party
in accordance with this Section 14
(a).
(b) Amendment. This
Agreement may not be modified, amended, altered or supplemented, except by a
written agreement executed by each of the parties hereto.
(c) Entire
Agreement. This Agreement contains the entire understanding
and agreement of the parties relating to the subject matter hereof and
supersedes all prior and/or contemporaneous understandings and agreements of any
kind and nature (whether written or oral) among the parties with respect to such
subject matter, all of which are merged herein.
(d) Waiver. Any
waiver by a party hereto of any breach of or failure to comply with any
provision or condition of this Agreement by any other party hereto shall not be
construed as, or constitute, a continuing waiver of such provision or condition,
or a waiver of any other breach of, or failure to comply with, any other
provision or condition of this Agreement, any such waiver to be limited to the
specific matter and instance for which it is given. No waiver of any
such breach or failure or of any provision or condition of this Agreement shall
be effective unless in a written instrument signed by the party granting the
waiver and delivered to the other party hereto in the manner provided for
hereunder in Section 14(a). No
failure or delay by any party to enforce or exercise its rights hereunder shall
be deemed a waiver hereof, nor shall any single or partial exercise of any such
right or any abandonment or discontinuance of steps to enforce such rights,
preclude any other or further exercise thereof or the exercise of any other
right.
15. Governing Law;
Jurisdiction.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of
Florida applicable to agreements made and to be performed in that state, without
regard to any of its principles of conflicts of laws or other laws that would result in the
application of the laws of another jurisdiction.
(b) Jurisdiction. Each of the parties unconditionally and irrevocably
consents to the exclusive jurisdiction of the courts of the State of Florida,
County of Palm Beach with respect to any suit, action or proceeding arising out
of or relating to this Agreement, and each of the parties hereby unconditionally
and irrevocably waives any objection to
venue in any such court or to assert that
any such court is an inconvenient forum,
and agrees that service of any summons, complaint, notice or other process
relating to such suit, action or other
proceeding may be effected in the manner provided in Section 14(a) hereof. Each of the parties hereby
unconditionally and irrevocably waives the right to a trial by jury in any such
action, suit or other proceeding.
-13-
16. Binding Effect, No
Assignment, etc. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective legal
xxxxxxxxxxxxxxx, xxxxx, xxxxxx, successors and permitted
assigns. Neither this Agreement nor any right, interest or obligation
hereunder may be assigned by any party hereto without the prior written consent
of the other party, and any attempt to do so shall be void and of no force and
effect, except (i) assignments and transfers by operation of law and (ii) that
the Company may assign any or all of its respective rights, interests and
obligations hereunder to any purchaser of a majority of the issued and
outstanding capital stock of the Company or a substantial part of the assets of
the Company.
17. Third
Parties. Nothing herein is intended or shall be construed to
confer upon or give to any Person, other than the parties hereto, any rights,
privileges or remedies under or by reason of this Agreement.
18. Headings. The
section headings contained in this Agreement are inserted for
reference purposes only and shall not affect in any way the meaning,
construction or interpretation of this Agreement. Any reference to
the masculine, feminine, or neuter gender shall be a reference to such other
gender as is appropriate. References to the singular shall include
the plural and vice versa.
19. Counterparts. This
Agreement may be executed in two (2) or more counterparts (including by
facsimile signature, which shall constitute a legal and valid signature), and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original, and all of which, when taken
together, shall constitute one and the same document. This Agreement
shall become effective when one or more counterparts, taken together, shall have
been executed and delivered by all of the parties.
[Signature Page
Follows]
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IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
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CORE
FINANCIAL GROUP, LTD.
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By:
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Name:
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Title:
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Xxxxxxxx
Xxxxxx
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