Exhibit 10.35
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (the "Agreement"), dated as of October 1,
2008, is entered into between BKF Capital Group, Inc. (the "Company" or "BKF
Capital"), with offices located at Xxx Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, and Xxxxxx X. Xxxxxxx, having an address of 000 Xxxx Xxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxx 00000 ("Employee").
W I T N E S S E T H:
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WHEREAS, the Company desires to employ the Employee and to be
assured of his services on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on such
terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, the Company and the Employee hereby
agree as follows:
1) Employment. The Company hereby employs the Employee as the
President and Treasurer of the Company, and the Employee accepts such
employment, upon the terms and subject to the conditions set forth in this
Agreement.
2) Term. The term of this Agreement shall commence on October 1,
2008, and terminate on September 30, 2009 (the "Term"), subject to earlier
termination pursuant to the provisions of Section 7 hereof. , The Term of this
Agreement shall automatically renew for additional one year periods unless the
Company or Employee provides written notice to the other party that the
Agreement shall not be renewed at least thirty (30) days prior to the renewal
date.
3) Duties. During the term of this Agreement, the Employee shall
serve as the President and Treasurer of the Company and shall perform all duties
commensurate with his positions (including, but not limited to, those heretofore
performed by the Employee) and as may be assigned to him by the Board of
Directors of the Company and subject to the control of the Board of Directors of
the Company. It is understood that Employee will not devote his full business
time and energies to the business and affairs of the Company, however Employee
shall use his best efforts, skills and abilities to promote the interests of the
Company and to diligently and competently perform the duties of his position.
4) Compensation, Benefits, Options and Incentive Bonus.
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4.1 Base Salary. During the term of this Agreement, as
compensation for the proper and satisfactory performance of all duties to be
performed by Employee hereunder, the Company shall pay to Employee a base salary
of $150,000.00 per annum for the term of this Employment Agreement, payable in
equal monthly installments of $12,500.00 each, payable on the first day of each
month, less required deductions for state and federal withholding tax, Social
Security, and other employee taxes.
4.2 Bonus Compensation. Employee shall be entitled to earn and
receive bonus compensation provided that certain performance goals are achieved
by the Company. Bonuses shall be granted in accordance with a bonus plan to be
adopted by the Company, the terms and conditions of which shall be determined by
the Board of Directors of BKF Capital.
4.3 Employee Benefit Plans. At all times during the term of this
Agreement the Employee shall be provided the opportunity to participate in all
health, pension and welfare plans, programs and benefits (the "Plans") offered
generally to all employees of BKF Capital.
5) Reimbursement of Business Expenses. During the term of this
Agreement, upon submission of proper invoices, receipts or other supporting
documentation satisfactory to the Company and in specific accordance with such
guidelines as may be established from time to time by the Company's Board of
Directors, the Employee shall be reimbursed by the Company for all reasonable
business expenses actually and necessarily incurred by the Employee on behalf of
the Company in connection with the performance of services under this Agreement.
6) Representations.
6.1 Employability. The Employee represents and warrants that
he 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 or non-compete covenants, which in the
future may have a possibility of adversely affecting the business of the Company
or the performance by the Employee of his duties under this Agreement.
6.2 Awareness of Certain Employment Regulations. The Employee
represents and warrants that he is aware that there are laws and regulations
that prohibit discrimination in the workplace based upon, among other things,
race, religion, gender, and national origin such as Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000e et. seq., and similar laws adopted
by the states (the ADiscrimination Laws@). Employee represents and warrants that
he will abide by the Discrimination Laws in the performance of his duties under
this Agreement. The Employee, further, represents and warrants that if he
becomes aware of any violation or potential violation of the Discrimination Laws
that he will immediately notify the Company, in writing, of any such violation
or potential violation of the Discrimination Laws.
7) Termination. This Agreement may be terminated prior to the
expiration of the Term set forth in Section 2 upon the occurrence of any of the
events set forth in, and subject to the terms of, this Section 7.
(a) Death. This Agreement will terminate immediately and
automatically upon the death of the Employee.
(b) Disability. This Agreement may be terminated at the
Company's option, immediately upon notice to the Employee, if the Employee shall
suffer a permanent disability. For the purposes of this Agreement, the term
"permanent disability" shall mean the Employee's inability to perform his 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 of Directors of the Company. In the event that a dispute arises with
respect to the disability of the Employee, 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.
(c) Cause. This Agreement may be terminated at the
Company's option, immediately upon notice to the Employee, upon: (1) breach by
the Employee of any material provision of this Agreement; (2) breach by the
Employee of any fiduciary duty to the Company, or any of its affiliates or
subsidiaries; (3) any act of gross negligence or willful misconduct that would
reasonably be likely to cause harm to the Company; or (4) indictment for any
felony; provided that in any such case with respect to any such breach that is
capable of being cured, the Employee is afforded a ten (10) day cure period for
such monetary breaches and a thirty (30)-day cure period for such non- monetary
breaches.
(d) Termination by Employee. This Agreement may be
terminated by Employee prior to the expiration of the Term set forth in Section
2 upon three (3) months written notice to the Company.
(e) Effect of Termination. Upon the termination of this
Agreement pursuant to this Section 7, the Employee shall be entitled to his
Compensation to the date of termination as set forth in this Section 7, and
after such date shall not be entitled to any Compensation, benefits or other
rights granted herein to the Employee.
8. Miscellaneous.
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(a) Entire Agreement. This Agreement sets forth the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the subject matter
hereof.
(b) Modification. This Agreement may not be modified or
terminated orally, and no modification, termination or attempted waiver of any
of the provisions hereof shall be binding unless in writing and signed by the
party against whom the same is sought to be enforced.
(c) 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.
(d) Successors and Assigns. Neither party shall have the
right to assign this Agreement, or any rights or obligations hereunder, without
the consent of the other party; provided, however, that upon the sale of all or
substantially all of the assets, business and goodwill of the Company to another
company, or upon the merger or consolidation of the Company with another
company, this Agreement shall inure to the benefit of, and be binding upon, both
Employee and the company purchasing such assets, business and goodwill, or
surviving such merger or consolidation, as the case may be, in the same manner
and to the same extent as though such other company were the Company; and
provided, further, that the Company shall have the right to assign this
Agreement to any affiliate or subsidiary of the Company or BKF Capital. Subject
to the foregoing, this Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their legal representatives, heirs, successors and
assigns.
(e) Communications. All notices, requests, demands and
other communications under this Agreement shall be in writing and shall be
deemed to have been given at the time personally delivered or when mailed in any
United States post office enclosed in a registered or certified postage prepaid
envelope and addressed to the addresses set forth above, or to such other
address as any party may specify by notice to the other party; provided,
however, that any notice of change of address shall be effective only upon
receipt.
(f) 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 enforced as nearly as possible according to its
original terms and intent to eliminate such invalidity or unenforceability.
(g) Governing Law. This Agreement is made and executed and
shall be governed by the laws of the State of New York, without regard to the
conflicts of law principles thereof.
(h) No Third-Party Beneficiaries. Each of the provisions of
this Agreement is for the sole and exclusive benefit of the parties hereto and
shall not be deemed for the benefit of any other person or entity.
IN WITNESS WHEREOF, each of the parties hereto have duly executed
this Agreement as of the date set forth above.
BKF Capital Group, Inc. Employee
By: ___________________________ ________________________
Xxxxxxx Xxxxx, Director Xxxxxx X. Xxxxxxx
