Exhibit 10.15
Employment Agreement Dated November 11, 2003 by and
between Xxxxxx Xxxxx and the Company
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated as of the 11th day of November,
2003 by and between ASTA FUNDING, INC., a Delaware corporation, with offices at
000 Xxxxxx Xxx., Xxxxxxxxx Xxxxxx, XX 00000 (the "Company") and XXXXXX XXXXX, an
individual residing at 0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the
"Employee")
W I T N E S E T H:
WHEREAS, the parties desire to enter this Agreement to set forth the terms of
the Employee's continued employment by the Company.
NOW, THEREFORE, in consideration of the mutual premises and covenants set forth
herein and for other good and value consideration, the receipt, adequacy and
legal sufficiency of which are hereby acknowledged, the Company and the Employee
mutually agree as follows:
1. Employment Duties.
(a) Employment. The Company agrees to continue to employ
the Employee, and the Employee agrees to accept
continued employment with the Company, on the terms
and conditions set forth in this Agreement.
(b) Scope of Duties. During the Employment Period (as
defined herein), the Employee shall devote his
business time, attention and energy to the business,
and to seeking improvement in the profitability, of
the Company. During the Employment Period, the
Employee shall serve as Executive Vice President of
the Company and its subsidiaries and shall have the
authority to perform and shall perform all of the
duties that are customary for the office of Executive
Vice President of the Company, subject at all times
to the control and direction of the President and the
Board of Directors of the Company, and shall perform
such services as typically are provided by the
Executive Vice President of a corporation and such
other services consistent therewith as shall be
assigned to him from time to time by the President or
the Board of Directors of the Company. Employee shall
also continue to serve as Chairman of the Board of
Directors of the Company for such period as he
continues to be duly elected to such position by the
shareholders of the Company.
(c) Service. During the Employment Period, the Employee
shall perform his duties in a diligent manner; shall
not engage in activities which are or could be
detrimental to the existing or future business of the
Company and its subsidiaries; and shall observe and
conform to all laws, customs, and standards of
business ethics and honest business practices. The
Employee shall be requested, and does hereby agree,
to be a full time employee of the Company during the
Employment Period. During the Employment Period, the
Employee shall not engage in any other business
activity which, in the reasonable judgment of the
Company's Board of Directors, conflicts with the
duties of the Employee hereunder, whether or not such
activity is pursued for gain, profit or other
pecuniary advantage; provided, however, that it is
understood that this Section 1(c) shall not preclude
the Employee from making passive investments in other
companies or from serving as Vice President of Asta
Group, Inc.
(d) Professional Standards. Recognizing and acknowledging
that it is essential for the protection and
enhancement of the name and business of the Company
and its subsidiaries and the good will pertaining
thereto, the Employee shall perform his duties under
this Agreement professionally and in accordance with
the standards established by the Company from time to
time; and the Employee shall not act, and shall
refrain from acting, in any manner that could harm or
tarnish the name, business or income of the Company
and its subsidiaries or the good will pertaining
thereto.
2. Compensation.
(a) Base Salary. For all services rendered by the
Employee during the Employment Period, the Company
shall pay the Employee a base salary ("Base Salary")
in the amount of $300,000 on an annualized basis,
payable in accordance with the Company's customary
payment policies and periods. The Employee's Base
Salary may be increased as determined by the Board of
Directors of the Company in its sole discretion.
(b) Bonuses. During the Employment Period, the Employee
shall be eligible to receive bonuses as determined by
the Board of Directors of the Company in its sole
discretion.
(c) Stock Options. During the Employment Period, the
Employee shall be eligible to receive stock options
as determined by the Board of Directors of the
Company in its sole discretion.
(d) Benefits. During the Employment Period, the Employee
and/or the Employee's dependents, as the case may be,
shall be entitled to participate (subject to
eligibility requirements) in the employee benefit
plans generally available to other similarly situated
employees of the Company and the Employee shall be
entitled to the fringe benefits and perquisites made
generally available to other similarly situated
employees of the Company. The Company reserves the
right to modify, change or terminate its benefit
plans, fringe benefits and perquisite plans and
programs from time to time in the discretion of the
Board of Directors of the Company.
(e) Vacation. During the Employment Period, the Employee
shall be entitled to an annual vacation of fifteen
(15) working days for each full calendar year of
employment hereunder, which may be taken all at once
or from time to time; provided, however, that: (i)
the Employee shall schedule such vacation time so as
to mitigate the adverse effects to the Company of the
Employee's absence; (ii) the Employee shall give the
Company at least thirty days (30) days notice of
consecutive vacation days in excess of five (5) to be
taken by the Employee at any one time; and (iii) up
to one (1) week unused vacation time during the
calendar year may be carried over and used by the
Employee in the following calendar year.
3. Non-Competition.
(a) In view of the Employee's knowledge of the trade
secrets and other proprietary information relating to
the business of the Company, its subsidiaries and
their respective customers which the Employee has
heretofore obtained and is expected to obtain during
the period the Employee is employed under this
Agreement (the "Employment Period"), and in
consideration of the Employee's employment hereunder,
the Employee agrees: (i) that he will not during the
Employment Period Participate In (as such term
hereinafter defined) any other business or
organization if such business or organization now is
or shall then be competing with or be of a nature
similar to the business of the Company or its
subsidiaries; and (ii) (A) for a period of twelve
(12) months after the Termination Date (as defined in
Section 6) due to a termination of this Agreement for
Cause (as defined herein) or (B) for such period as
the Company shall continue to pay to the Employee his
Base Salary and health insurance benefits in
accordance with Section 8(b) after a termination of
the Employee's employment Without Cause (as defined
below) or for Disability (as defined below), he will
not, in any geographic area in which the Company or
any of its subsidiaries does business as of the
Termination Date, compete with or be engaged in the
same business as, or Participate In, any other
business or organization which competes with or is
engaged in the same business as the Company or its
subsidiaries with respect to any service offered or
activity engaged in up to the Termination Date,
except that in each case the provisions of this
Section 3 will not be deemed breached merely because
the Employee owns not more than 2% of the outstanding
common stock of a corporation, if, at the time of its
acquisition by the Employee, such stock is listed on
a national securities exchange, is reported on
NASDAQ, or is regularly traded in the
over-the-counter market by a member of a national
securities exchange.
(b) The term "Participate In" shall mean: "directly or
indirectly, for his own benefit or for the benefit of
any other enterprise, own, manage, operate, control
or loan money to (provided that an investment in debt
instruments issued pursuant to an effective
registration statement under the Securities Act of
1993, as amended shall not be deemed to be a loan),
or participate in the ownership, management,
operation, or control of, or be connected as a
director, officer, employee, partner, agent, or
otherwise with, or acquiesce in the use of his name
in."
(c) During the Employment Period and, in the case of the
termination of the Employee's employment for Cause
only, for a period one (1) year after the Termination
Date, the Employee will not directly or indirectly:
(i) Reveal the name of, solicit, use or
interfere with, or endeavor to entice away
from the Company (or any of its
subsidiaries) any of their customers,
vendors, or employees; or
(ii) Employ or engage any person or entity who or
which, at any time up to the Termination
Date, was an employee or agent of the
Company or its subsidiaries without the
prior written consent of the Company.
(d) The Employee agrees that the provisions of this
Section 3 and Sections 4 and 5 are necessary and
reasonable to protect the Company in the conduct of
its business. If any restriction contained in this
Section 3 or in Sections 4 or 5 shall be deemed by a
court of competent jurisdiction to be invalid,
illegal, or unenforceable by reason of the extent,
duration, or geographical scope thereof, or
otherwise, then the court making such determination
shall have the right to reduce such extent, duration,
geographical scope, or other provisions hereof, and
in its reduced from such restriction shall then be
enforceable in the manner contemplated hereby.
4. Confidential Information. All confidential information which the
Employee may now possess, may obtain during or after the Employment Period, or
may create prior to the end of the Employment Period relating to the business of
the Company or its subsidiaries or of any of their respective customers or
vendors shall not be published, disclosed, or made accessible by him to any
other person, firm, corporation or entity, either during or after the Employment
Period or used by him during or after the Employment Period (except in the
business and for the benefit of the Company or its subsidiaries), without the
prior written consent of the Company. The Employee shall return all tangible
evidence of such confidential information to the Company prior to or at the end
of the Employment Period.
5. Rights of the Company.
(a) Any interest in copyrights, copyrightable works,
developments, discoveries, designs and processes,
patents, patent applications, inventions and
technological innovations (collectively,
"Inventions") which the Employee (i) owns, conceives
of or develops, alone or with others, (A) relating to
the business of the Company or its subsidiaries or
any business in which the Company (or its
subsidiaries) contemplates being engaged or (B) which
anticipate research or development of the Company or
its subsidiaries, or (ii) conceives of or develops
utilizing the time, material, facilities or
information of the Company or its subsidiaries, in
either case during the Employment Period, shall
belong to the Company.
(b) As soon as the Employee owns, conceives of or
develops any Invention, the Employee shall
immediately communicate such fact in writing to the
Board of Directors of the Company. Upon the request
of the Company, the Employee shall, without further
compensation but at the Company's expense (subject to
clause (i) below) execute all such assignments and
other documents (including applications for
trademarks, copyrights and patents and assignments
thereof) and take all such other action as the
Company may reasonably request, including obtaining
spousal consents or waivers, (i) to vest in the
Company all right, title and interest of the Employee
in and to such Inventions, free and clear of all
liens, mortgages, security interests, pledges,
charges and encumbrances ( the Employee to take such
action, at his expense, as is necessary to remove all
such liens) and (ii) if patentable or copyrightable,
to obtain patents or copyrights (including extensions
and renewals) therefore in any and all jurisdictions
in and outside the United States in the name of the
Company or in such other names(s) as the Company
shall determine.
6. Employment Period. The Employment Period shall commence on the date
of this Agreement and shall continue for a three year period ending on November
10, 2006, or such earlier date on which any of the following events occurs (the
"Termination Date"):
(a) the death of the Employee;
(b) the voluntary resignation of the Employee;
(c) the termination by the Board of Directors of the
Employee's employment for Disability (as hereinafter
defined);
(d) the termination by the Board of Directors of the
Employee's employment for Cause (as hereinafter
defined); or
(e) the termination by the Board of Directors of the
Employee's employment Without Cause (as hereafter
defined)
7. Definitions Relating to Termination
(a) Disability
The term "Disability" shall mean any physical or
mental condition of the Employee which, in the
reasonable discretion of the Board of Directors,
after consultation with the Employee's physician,
materially impairs the Employee's ability to render
the services to be performed by him hereunder for a
period of 180 consecutive days or for at least 240
days in any consecutive 360 day period.
(b) Cause
The term "Cause" shall mean the good faith finding by
the Board Directors of the Company upon resolution
adopted by it of the existence of any one of the
following:
(i) The Employee's failure or refusal to perform specific
written directives consistent with his duties and
responsibilities as set forth in Section 1 hereof,
which lack of performance is not cured within 15 days
after written notice thereof or 30 days if at the
15th day and thereafter the Employee is diligently
attempting to cure;
(ii) Conviction of a felony or of any crime involving
moral turpitude or fraud;
(iii) The commission by the Employee of any willful or
intentional act which the Employee reasonably should
have contemplated would have the effect of injuring
the reputation, financial condition, business or
business relationships of the Company (and its
subsidiaries, individually or taken as a whole)
and/or the Employee; or
(iv) Any material breach (not covered by any of the
clauses (i) through (iii) hereof) of any of the
provisions of this Agreement, if such breach is not
cured within 30 days after written notice thereof to
by the Board of Directors.
(c) Without Cause
The term "Without Cause" shall mean a determination
of the Board of Directors to terminate the Employee
for any reason other than death, Disability or for
Cause.
8. Effect of Termination
(a) If the Employee's employment is terminated by the
Company for Cause or the Employment Period expires,
then the Employee shall be paid the Employee's Base
Salary and other benefits hereunder through the
Termination Date and the Company shall have no
further obligations to the Employee.
(b) If the Employee's employment is terminated Without
Cause, for Disability or upon the Employee's death,
then (i) the Employee or his estate, as applicable,
shall continue to be paid the Employee's Base Salary
through November 10, 2006, and (ii) the Company shall
continue to provide to the Employee and his eligible
dependents health insurance coverage through November
10, 2006.
(c) Irrespective of the basis for the termination of the
Employee's employment with the Company, all benefits
(including fringe benefits), if any, due the Employee
hereunder shall cease as of the Termination Date,
other than (i) COBRA rights which shall continue to
the extent provided thereunder, (ii) Base Salary, if
applicable, to the extent provided in Section 8(b),
(iii) health insurance coverage, if applicable, to
the extent provided in Section 8(b), and (iv) rights
under any stock options the Employee may have been
granted.
9. Arbitration. Except with respect to the Company's right to seek
injunctive or equitable relief, any controversy, dispute, or claim between the
Employee and the Company arising out of or relating to this Agreement, the
Employee's employment by the Company, the cessation of the Employee's employment
with the Company, or any matter relating to the foregoing, shall be submitted to
and settled by arbitration in the State of New Jersey, in accordance with the
then current rules of the American Arbitration Association or any successor
thereto. Within ten (10) days after a request for arbitration by one party to
the other, the Company and the Employee shall each select one arbitrator. Within
ten (10) days after the second of such arbitrators has been selected, the two
arbitrators thereby selected shall choose a third arbitrator who shall be the
Chairman of the panel. If the first two arbitrators selected cannot agree upon a
third arbitrator, the American Arbitration Association shall name the third
arbitrator. The arbitrators may grant injunctions or other relief in such
dispute or controversy. In the arbitration, the parties shall be entitled to
pre-hearing discovery. The decision of the arbitrators shall be final,
conclusive and binding on the parties to the arbitration. In connection with
such arbitration and the enforcement of any award rendered as a result thereof,
the parties hereto irrevocably consent to the personal jurisdiction of the
federal and state courts located in New Jersey, and further consent that any
process or notice of motion or other application to the said Courts or Judges
thereof may be served inside or outside the State of New Jersey by registered
mail or personal service, provided a time period of at least twenty (20) days
for appearance is allowed. The Company shall not be required to seek injunctive
relief from the arbitrators but may seek such injunctive relief in a court
proceeding. The terms of this Section 9 shall apply to all disputes,
controversies and claims, including, without limitation, any rights or claims
the Employee may have under the Age Discrimination in Employment Act of 1967,
Title VII of the Civil Rights Act of 1954, the Equal Pay Act, or any other
federal, state, or local laws, rules or regulations relating to employment
discrimination or otherwise in any way pertaining to the Employee's employment
or termination thereof. This Section 9 shall survive the termination (by
expiration or otherwise) of this Agreement.
10. Modification. This Agreement sets forth the entire understanding of
the parties with respect to the subject matter hereof, supersedes all existing
agreements between them concerning such subject matter, and may be modified only
by a written instrument duly executed by each party.
11. Notices. Any notice or communication to be given hereunder by any
party to the other shall be in writing and shall be deemed to have been given
when personally delivered or transmitted by facsimile, or three (3) days after
the date sent by registered or certified mail, postage prepaid, as follows:
(a) if to the Company, addressed to it at:
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxx, XX 00000
Attention: Chairman
with copies to:
Xxxxxxxxxx Xxxxxxx P.C.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
(b) If to the Employee, addressed to him at:
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
or to such other persons or addresses as may
be designated in writing by the party to
receive such notice.
12. Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
13. Assignment. The Employee's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise. The Company may
assign its rights and obligations hereunder to any of its subsidiaries or
affiliates. The Company will provide notice of such assignment to the Employee.
14. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure of the benefit of the Employee and his heirs and personal
representatives, and shall be binding upon the Company and inure to the benefit
of the Company, its subsidiaries and affiliates and their respective successors
and assigns.
16. Headings. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
17. Injunctive Relief. As it would be very difficult to measure the
damages, which would result to the Company from a breach of any of the covenants
contained in Section 3, 4 or 5 of this Agreement, in the event of such a breach,
the Company shall have the right to have such covenants specifically enforced by
a court of competent jurisdiction. The Employee hereby recognizes and
acknowledges that irreparable injury or damage shall result to the business of
the Company in the event of a breach or threatened breach by the Employee of the
terms and provisions of Section 3, 4 or 5. Therefore, the Employee agrees that
the Company shall be entitled to an injunction-restraining the Employee from
engaging in any activity constituting such breach or threatened breach. Nothing
contained herein shall be construed as prohibiting the Company from pursuing any
other remedies available to the Company at law or in equity for such breach or
threatened breach, including, but not limited to, recovery of damages from the
Employee and, if the Employee is still employed by the Company, terminating the
employment of Employee in accordance with the terms and provisions hereof.
18. Governing Law. Any and all claims, controversies or actions arising
out of this Agreement or the Employee's employment with the Company, including,
without limitation, tort claims, shall be governed by and construed in
accordance with the laws of the State of New Jersey, without reference to choice
of law principles thereof.
19. Attorney's Fees. If a legal action or other proceeding is brought
for enforcement of this Agreement because of an alleged dispute, breach,
default, or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorney's fees and cost incurred, in addition to any other relief to
which they may be entitled.
20. 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 the void,
voidable or unenforceable provision were not a part hereof.
21. Survival. All warranties, representations, indemnities, covenants
and other agreements of the parties hereto shall survive the execution, delivery
and termination of this Agreement and shall, notwithstanding the execution,
delivery and termination of this Agreement, continue in full force and effect.
22. Acknowledgment. The Employee specifically acknowledges that: the
Employee has read and understands all of the terms of this Agreement; in
executing this Agreement, the Employee does not rely on any inducements,
agreements, promises or representations of the Company or any agent of the
Company, other than the terms and conditions specifically set forth in this
Agreement; the Employee has had an opportunity to consult with independent
counsel with respect to the execution of this Agreement; and that the Employee
has made such investigation of the facts pertaining to this Agreement and of all
the matters pertaining hereto as he deems necessary.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement on the day and year first above written.
ASTA FUNDING, INC.
By: /S/ Xxxx Xxxxx
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/S/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
