EMPLOYMENT AGREEMENT
EXHIBIT 10.41
This EMPLOYMENT AGREEMENT (the “Agreement”), dated as of November 15, 2011, is entered into between BKF Capital Group, Inc., a Delaware corporation, with offices located at 000 X.X. Xxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 (“BKF Capital” or the “Company”) and Xxxx X. Xxxxxx, an individual, who resides at __________REDACTED__________ (“Executive”). BKF Capital and Executive are each referred to herein as a “Party” and collectively, the “Parties”).
WITNESSETH
WHEREAS, BKF Capital desires to employ Executive, and Executive is willing to accept such employment on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, BKF Capital and Executive agree as follows:
1. Employment. BKF Capital hereby employs Executive as its Senior Vice President, reporting to Company’s Chief Executive Officer, Xxxxxx X. Xxxxxxx (the “CEO”) and the Board of Directors (the “Board”), subject to the conditions set forth in this Agreement.
2. Duties. The Executive shall perform all reasonable duties incident to the Position of Senior Vice President as well as any other duties as may from time to time be assigned by the CEO and/or the Board, and agrees to abide by all policies, practices, procedures or rules of the Company, provided same are consistent with the scope and dignity of Executive’s position. The Executive agrees to devote his best efforts, energies and skill to the discharge of the duties and responsibilities attributable to his position, and to this end, he will devote a majority of his time and attention to the business and affairs of the Company, its subsidiaries and its affiliates. The Executive also agrees that he shall not take personal advantage of any business opportunities which arise during his employment and which may benefit the Company or its affiliates. All material facts regarding such opportunities must be promptly reported to the CEO and the Board for consideration by the Company or its affiliates. Notwithstanding the foregoing, the Executive may donate his time and efforts to charitable causes, educational and other similar activities, so long as such endeavors do not affect his ability to perform his duties under this Agreement. If requested by the Company, and provided Executive deems he has reasonable availability, the Executive shall serve on the board of directors of any affiliate of the Company or any committee thereof without additional compensation. Company shall have the right, but not the obligation, to use Executive’s name, photograph, likeness and approved biographical data for the purpose of advertising, marketing, promoting, publicizing and exploiting any matter related to the duties performed hereunder.
3.1 Term. The term of this Agreement shall commence on November 15, 2011 (the “Effective Date”) and shall continue until terminated by either Party (the “Term”). Executive understands and agrees that his employment with the Company is at will, which means that either the Executive or the Company may terminate this Agreement at any time, with or without cause, and with or without prior notice. Any modification of the “at will” nature of the employment must be in writing and executed by the Executive and by the Company, after approval by the Board.
4. Compensation and Benefits.
4.1 Salary. In exchange for the services to be rendered by Executive to BKF Capital commencing on the Effective Date, BKF Capital will pay to Executive an annual salary of $60,000 per year or $5,000 per month (the “Salary”), payable on the 15th day of the following month. Once a new BKF Capital subsidiary has been formed, organized and fully registered as a business development company (the “BDC”) and the BDC has been funded with working capital of at least $35,000,000, then Executive Salary shall automatically increase to an annual salary of $130,000 per year or $10,833 per month, payable on the 15th day of the following month, payable on a retroactive basis from the Effective Date.
4.2 Bonus Compensation. Once the BDC has been: (1) formed, organized and fully registered as a business development company and (2) funded with working capital of at least $35,000,000, then Executive shall be eligible to earn an annual bonus (the “Bonus”) to be established by BKF Capital.
4.3 Vacation and Sick Leave. During the Term, the Executive shall be entitled to an aggregate of three (3) weeks of paid vacation, and five (5) days of paid sick leave, prorated for any portion of a year to the date of termination. The timing and duration of any vacation shall be subject to the prior written approval of the Company, in its discretion.
4.4 Executive Benefit Plans. At all times during the term of this Agreement the Executive shall be provided the opportunity to participate in all health, pension and welfare plans, life insurance, programs and benefits (the “Plans”) as approved by the Company’s Compensation Committee/Board of Directors.
5. Reimbursement of Business Expenses. During the term of this Agreement, upon submission of proper invoices, receipts or other supporting documentation satisfactory to BKF Capital and in specific accordance with such guidelines as may be established from time to time, Executive shall be reimbursed by BKF Capital for all reasonable business expenses actually and necessarily incurred by Executive on behalf of BKF Capital in connection with Executive’s performance of services under this Agreement.
6. Representations as to Employability.
6.1 Absence of prior restrictions. Executive represents and warrants that Executive is not party to, or bound by, any agreement or commitment, or subject to any restriction, including, but not limited to agreements related to previous employment containing confidentiality, non-solicitation, non-poaching or non-compete covenants, which would adversely affect the business of BKF Capital or Executive’s performance of duties under this Agreement.
6.2 Absence of third party proprietary information. Executive represents and warrants that Executive is not in possession of and will not bring onto the Company’s premises or access or utilize any proprietary information of any prior employer or other third-party that Executive is not permitted to have. Executive represents, further, that Executive will be able to fulfill Executive’s duties hereunder without such proprietary information by utilizing only information that is generally available in the public domain or the rightful property of Executive or the Company.
7. Confidentiality and Proprietary Information.
7.1 Non-Disclosure. During the course of Executive’s employment with BKF Capital, Executive will learn of Confidential Information (as defined below) and Executive may develop Confidential Information on behalf of BKF Capital. Executive agrees that Executive will not use or disclose to any Person (except as required by applicable law or for the proper performance of Executive’s duties and responsibilities for BKF Capital) any Confidential Information obtained or created by Executive incident to Executive’s employment or any other association with BKF Capital. Executive understand that this restriction shall continue to apply after Executive’s employment terminates, regardless of the reason for such termination.
7.2 Protection of Information. All information, data, documents, records and files, in any kind of media, relating to the business (whether past, present or future) of BKF Capital (“Confidential Information”), whether or not prepared by Executive, shall be the sole and exclusive property of BKF Capital. Executive agree to safeguard all Confidential Information and to surrender to BKF Capital, at the time Executive’s employment terminates or at such earlier time as requested, all tangible forms of Confidential Information of BKF Capital then in Executive’s possession or control, and to destroy or retrieve any copies, such that no Confidential Information which was at any time in Executive’s possession or control will exist in tangible form other than what Executive have turned over to BKF Capital or destroyed.
7.3 Proprietary Information and Inventions Agreement. The Executive represents and acknowledges that he has executed the Company’s Proprietary Information and Inventions Agreement which provides for, among other things, non-disclosure of confidential and proprietary information. A copy of the Company’s form Proprietary Information and Inventions Agreement is attached hereto as Appendix A, and is expressly made a part of this Agreement. The Executive, further, represents and acknowledges that he is bound by the terms of the Executive Proprietary Information and Inventions Agreement and that any breach of the Executive Proprietary Information and Inventions Agreement shall constitute a material breach of this Agreement.
8. Non-solicitation. The Executive represents and acknowledges that he has executed the Company’s Non-Solicitation Agreement which provides for, among other things, non-solicitation of customers and employees of the Company. A copy of the Company’s Non-Solicitation Agreement is attached hereto as Appendix B, and is expressly made a part of this Agreement. The Executive, further, represents and acknowledges that he is bound by the terms of the Company’s Non-Solicitation Agreement and that any breach of the Company’s Non-Solicitation Agreement shall constitute a material breach of this Agreement.
9. Termination. This Agreement may be terminated prior to the expiration of the Term set forth in Section 3 upon the occurrence of any of the events set forth in, and subject to the terms of, this Section 9.
9.1 Voluntarily. The Company and/or the Executive may terminate this Agreement at any time by written notice to the other Party. Either Party may waive such notice from the other Party.
9.2 Death. This Agreement will terminate immediately and automatically upon Executive’s death.
9.3 Disability. This Agreement may be terminated at BKF Capital’s option, immediately upon notice to the Executive, if Executive shall suffer a permanent disability. For the purposes of this Agreement, the term "permanent disability" shall mean Executive’s inability to perform Executive’s duties under this Agreement for a period of ninety (90) consecutive days due to illness, accident or any other physical or mental incapacity, as determined by the Board. In the event that a dispute arises with respect to Executive’s disability, the parties shall each select a duly licensed medical doctor to make such a determination. If the two doctors so selected cannot agree on a determination, they will mutually select a third duly licensed medical doctor and the decision of the majority of the three doctors will be binding.
9.4 Termination by BKF Capital for Cause. Notwithstanding anything contained herein to the contrary, Company may terminate the employment of the Executive and all of the Company’s obligations under this Agreement at any time for Cause (as hereinafter defined) by giving the Executive written notice of such termination, with reasonable specificity of the details thereof. “Cause” shall include, without limitation, the following: (i) conviction (including conviction on a NOLO CONTENDERE plea) of a felony, or a misdemeanor where imprisonment is imposed and served,; (ii) commission of any act of theft, fraud, dishonesty, unethical business conduct, or intentional falsification of any employment or Company’s records; (iii) improper disclosure of the Company’s confidential or proprietary information; (iv) any action by the Executive which has a detrimental effect on the Company’s reputation or business; (v) failure or neglect or inability by the Executive to devote his full time and best efforts to the Company’s business and affairs; (vi) failure or neglect by the Executive to perform the duties of the Executive’s position which failure or neglect has an adverse effect of the Company or its prospects, other than for reasons of Disability; (vii) failure of the Executive to obey reasonable orders given by the Board of Directors or the Chief Executive Officer, provided such orders are consistent with the scope of Executive’s position; (viii) any material breach of this Agreement or Company rules, of which Executive has or should have prior notice; (ix) chronic and unexcused absenteeism; (x) misconduct by the Executive in connection with the performance of any of his material duties, including, without limitation, misappropriation of funds or property of the Company, securing or attempting to secure personally any profit in connection with any transaction entered into on behalf of the Company, misrepresentation to the Company, or any violation of law or regulations on Company premises or to which the Company is subject; (xi) disloyalty by the Executive; (xii) failure to fully cooperate in any investigation by the Company; (xiii) a course of conduct amounting to gross incompetence; (xiv) any other act of misconduct by the Executive; (xv) the Executive’s abuse of alcohol or other drugs or controlled substances which abuse interferes with the Executive’s performance of his duties or obligations to the Company; or (xvi) the Executive’s resignation hereunder.
A termination pursuant to this Section 9.4 shall take effect ten (10)days after the giving of written notice to the Executive, specifying the nature of such breach, unless the Executive shall, during such ten (10) day period, remedy to the reasonable satisfaction of the Board the misconduct, disregard, failure, abuse or breach specified in such notice; provided, however, that such termination shall take effect immediately upon the giving of such notice if the Board shall, in its reasonable discretion, have determined that such misconduct, disregard, failure, abuse or breach is not remediable (which determination shall be stated in such notice).
9.5 Compensation in Event of Termination.
a. Voluntary Termination. Upon Executive’s voluntary termination of this Agreement pursuant to Section 9.1, Executive shall be entitled to receive the compensation, as set forth in paragraph 4 above, up to the date of termination, and after such date shall not be entitled to any Compensation under this Agreement, and Executive will no longer continue any vesting but will retain any equity that has vested as of the date of termination.
b. Termination for Death or Disability. If Executive’s employment is terminated due to the Executive’s Death or Disability pursuant to Sections 9.2 or 9.3, then Executive or his beneficiaries will be entitled to receive: (i) Executive’s Compensation, as set forth in Section 4, above, to the end of the monthly pay period immediately following Executive’s date of termination, (ii) accrued Bonus Payments payable to the Executive under the Management Bonus Plan and (iii) all equity and/or options issued to Executive by BKF Capital but not yet vested shall immediately fully vest.
c. Termination for Cause. Upon the termination of this Agreement pursuant to Section 9.4, the Executive shall receive no severance package and shall not be entitled to any Compensation, benefits or other rights granted herein to the Executive.
d. Termination by BKF Capital Without Cause. If Executive’semployment is terminated by BKF Capital without cause, then Executive shall be entitled to receive the compensation, as set forth in paragraph 4 above, up to the date of termination, and after such date shall not be entitled to any Compensation under this Agreement, and Executive will no longer continue any vesting but will retain any equity that has vested as of the date of termination.
9.6 Release. In no event shall the Executive be entitled to receive any payments, amounts, rights, or benefits under this Section 9 unless Executive executes a release concerning any claims Executive may have against BKF Capital in a form reasonably acceptable to BKF Capital.
10. Miscellaneous.
10.1 Survival. The provisions of Sections 7 and 8 shall survive the termination of this Agreement.
10.2 Entire Agreement. This Agreement sets forth the entire understanding of the Parties relating to the Executive’s employment with BKF Capital and merges and supersedes any prior or contemporaneous agreements between the Parties pertaining to the subject matter hereof.
10.3 Modification. This Agreement may not be modified unless in writing and signed by the Party against whom the same is sought to be enforced.
10.4 Waiver. Failure of a Party to enforce one or more of the provisions of this Agreement or to require at any time performance of any of the obligations hereof shall not be construed to be a waiver of such provisions by such Party nor to in any way affect the validity of this Agreement or such Party's right thereafter to enforce any provision of this Agreement, nor to preclude such Party from taking any other action at any time which it would legally be entitled to take.
10.5 Assignment. This Agreement and all any rights or obligations hereunder are not assignable by Executive, but may be assigned by BKF Capital upon the sale of substantially all of its assets.
10.6 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and transmitted via email, and shall be deemed to have been given at the time of transmittal, as follows:
| To BKF Capital: | BKF Capital, Inc. |
000
X.X. Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxx, Chairman and CEO
Email: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
| To Executive: | Xxxx X. Xxxxxx |
REDACTED
10.7 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity and enforceability of the other provisions of this Agreement, and the provision held to be invalid or unenforceable shall be modified so as to be enforced as nearly as possible according to its original terms and intent but only to the extent necessary to eliminate such invalidity or unenforceability.
10.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.
10.9 Counterparts. This Agreement may be executed in any number of counterparts, including facsimile and email pdf signatures which shall be deemed as original signatures. All executed counterparts shall constitute one agreement, notwithstanding that all signatories are not signatories to the original or the same counterpart.
IN WITNESS WHEREOF, each Party hereto has duly executed this Agreement as of the date set forth above.
| BKF Capital Group, Inc. | Xxxx X. Xxxxxx | ||
| Signature | Signature | ||
| Name | |||
| Title |
