DESCRIPTION: EMPLOYMENT AGREEMENT - XXXXXX
EMPLOYMENT AGREEMENT
This Employment Agreement is made on this 1st day of May 1999, 1st
Internet Group, Inc. ("Employer"), whose principal place of
business at 0000 Xxxx Xxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, and
Xxxxxxx Xxxxxx ("Employee").
WHEREAS, Employer is actively engaged in the business of a
securities brokerage firm; a insurance firm; and an accounting
firm; and,
WHEREAS, Employer wishes to employ Employee and Employee wishes to
be employed pursuant to the terms of this Employment Agreement.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained in this Employment Agreement, and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties, intending to be legally bound,
agree as follows:
Article I
Employment of Employee
Employer agrees to employ Employee, and Employee accepts employment
with Employer, on and subject to the terms and conditions set forth
in this Employment Agreement.
Article 2
Duties of Employee
Section 2.1. POSITION AND DUTIES. Employer agrees to employ
Employee to act as Chief Executive Officer for Employer. Employee
shall be responsible for performing the following duties: executive
management, overseeing business development, strategic planning,
and growth of operations. Employer reserves the right from time to
time to change the nature of Employee's duties and job title:
provided, however, Employee's duties and job title shall always be
of an executive nature.
Section 2.2. TIME DEVOTED TO WORK. Employee agrees to devote
Employee's entire business time, attention, and energies to the
business of Employer in accordance with Employer's instructions and
directions and shall not be engaged in any other business activity,
whether or not the activity is pursued for gain, profit, or other
pecuniary advantage, during the term of this Employment Agreement
without Employer's prior written consent.
Article 3
Place of Employment
Section 3.1. PLACE OF EMPLOYMENT. Employee shall be based at
Employer's principal office at 0000 Xxxx Xxxxx Xxxx, Xxxx Xxxxx, XX
00000 and shall not be required to travel away from that office on
business more than thirty (30) days during a calendar year.
Employer agrees that during the term of this Employment Agreement
it shall not assign Employee to work at any location which is more
than 100 miles from said principal office without Employee's
consent.
Section 3.2. MOVING EXPENSES. If Employer relocates its
principal office more than 100 miles from its current principal
office, or requests that Employee relocate to one of its offices
which is more than 100 miles from its current principal office,
and Employee consents to relocate to that new location, Employer
shall promptly pay or reimburse Employee for all reasonable
moving expenses incurred by Employee in connection with the
relocation plus an amount to reimburse Employee for any federal
and state income taxes that it has to pay on amounts reimbursed.
Employer also shall indemnify Employee against any loss incurred
in connection with the sale of Employee's principal residence.
The amount of any loss shall be determined by taking the
difference between the average of two appraisal prices set by two
independent appraisers agreed to by Employer and Employee and the
actual sales price of Employee's principal residence.
Article 4
Compensation of Employee
Section 4.1. BASE SALARY. For all services rendered by Employee
under this Employment Agreement, Employer agrees to pay Employee an
annual base salary of $75,000, which shall be payable to Employee
in such installments, but not less frequently than bi-monthly, as
are consistent with Employee's practice for its other Employees.
Employee's base salary shall be reviewed at least once a year by
Employer and shall be increased at a minimum by the percentage
increase in the Consumer Price Index for the previous year.
Section 4.2. REIMBURSEMENT FOR BUSINESS EXPENSES. Employer shall
promptly pay or reimburse Employee for all reasonable business
expenses incurred by Employee in performing Employee's duties and
obligations under this Employment Agreement, but only if Employee
properly accounts for expenses in Accordance with Employer's
policies.
Article 5
Vacations and Other Paid Absences
Section 5.1. VACATION DAYS. Employee shall be entitled to two (2)
weeks paid vacation days each calendar year during the term of this
Employment Agreement.
Section 5.2. HOLIDAYS. Employee shall be entitled to the same paid
holidays as authorized by Employer for its other Employees.
Section 5.3. SICK DAYS AND PERSONAL ABSENCE DAYS. Employee shall
be entitled to the same number of paid sick days and personal
absence days authorized by Employer for its other Employees.
Article 6
Termination of Employment
Section 6.1. TERM OF EMPLOYMENT. Employee's employment shall
commence on the date of execution by Employer and shall continue
for one (1) year ("end-of-employment date"), unless extended or
terminated sooner, as provided by this article of the Employment
Agreement.
Section 6.2. EXTENSION OF EMPLOYMENT. On the end-of-employment
date and every one (1) year thereafter, Employee's employment
with Employer automatically shall be extended for an additional one
(1) year unless, at least ninety (90) days prior to the end-of-
employment date, or successive one (1) year anniversary thereof,
Employer or Employee delivers to the other a written notice that
Employee's employment with Employer is not to be extended.
Section 6.3. TERMINATION AT EMPLOYEE'S DEATH. Employee's
employment with Employer shall terminate at Employee's death.
Section 6.4. TERMINATION BY EMPLOYEE. Employee may, but is not
obligated to, terminate this employment Agreement at any time under
the following circumstances:
(a) Employee's health becomes so impaired that continued
performance of Employee's duties under this Employment Agreement
would be hazardous to Employee's physical or mental health.
(b) There is a change in control of Employer. There is a change
in control of Employer if someone other than a current owner of
Employer becomes the beneficial owner of 20 percent or more of the
voting power of Employer.
(c) Employee is assigned duties that are significantly different
than those described in this Employment Agreement, or duties
assigned Employee by this Employment Agreement are eliminated or
transferred to someone else.
(d) Employee is removed from any of the positions described in
Section 2.1 of this Employment Agreement (other than by Employer
for cause).
(e) Employee's fringe benefits or other compensation are
materially reduced.
(f) Employer requires Employee to travel more frequently than
contemplated by this Employment Agreement.
(g) Employer fails to have a successor assume this Employment
Agreement.
(h) Employer becomes insolvent or files a bankruptcy petition.
Section 6.5. TERMINATION BY EMPLOYER.
(a) TERMINATION FOR CAUSE. Employer may terminate Employee's
employment for cause.
(b) "CAUSE" DEFINED. Employer shall have cause to terminate
Employee's employment if Employee fails to substantially perform
any duties required by this Employment Agreement (unless Employee's
failure is due to a physical or mental incapacity), Employee is
grossly negligent in the performance of required duties, Employee
engages in conduct that damages Employer, Employee is convicted of
a felonious act of moral turpitude, or Employee discloses material
confidential information in violation of Article 7 of this
Employment Agreement. Employer shall have cause to terminate
Employee's employment should Employee's performance, attitude, or
work habits become unreasonable.
Section 6.6. NOTICE OF TERMINATION. Any termination of Employee's
employment by Employer or Employee must be communicated to the
other party by a written notice of termination. The notice must
specify the provision of this employment Agreement authorizing the
termination and must set forth in reasonable details the facts and
circumstances providing the basis for termination of Employee's
employment.
Section 6.7. DATE TERMINATION IS EFFECTIVE. If Employee's
employment terminates because this Employment Agreement expires,
then Employee's employment will be considered to have terminated on
that expiration date. If Employee's employment terminates because
of Employee's death, then Employee's employment will be considered
to have terminated on the date of Employee's death. If Employee's
employment is terminated by Employee, then Employee's employment
will be considered to have terminated on the date that notice of
termination is given. If Employee's employment is terminated by
Employer for cause, then Employee's employment will be considered
to have terminated on the date specified by the notice of
termination. If, within thirty (30) days after a notice of
termination is given, the party receiving the notice notifies the
other party that there is a dispute concerning the termination,
then Employee's employment will not be considered to have
terminated, and Employer shall continue to compensate Employee
pursuant to this Employment Agreement, until the dispute is ended
by a written agreement between the parties or a final judgment,
order, or decree of a court of competent jurisdiction. A judgment,
order. or decree of a court of competent jurisdiction will be
considered final only if the time for appealing the decision has
expired and no notice of appeal has been filed.
Article 7
Confidential Information
Section 7.1. CONFIDENTIAL INFORMATION DEFINED. "Confidential
Information" as used in this Employment Agreement shall mean any
and all technical and non-technical information belonging to, or in
the possession of, Employer or its officers, directors, Employees,
affiliates, subsidiaries, clients, vendors, or Employees, including
without limitation, patent, trade secret, and proprietary
information; techniques, sketches, drawings, models, inventions,
know-how, processes, apparatus, equipment, algorithms, source
codes, object codes, software programs, software source documents,
and formulae related to Employer's business or any other current,
future and/or proposed business, product or service contemplated by
Employer; and includes, without limitation, all information
concerning research, experimental work, development, design details
and specifications, engineering, financial information, procurement
requirements, purchasing, manufacturing, customer lists, vendor
lists, business forecasts, sales and merchandising, and marketing
plans or similar information.
Section 7.2 DISCLOSURES. Employee agrees that it shall, at no time
during or after termination of this Employment Agreement, directly
or indirectly make use of, disseminate, or in any way disclose
Confidential Information to any person, firm or business, except to
the extent necessary for performance of this employment Agreement.
Employee agrees that it shall disclose Confidential Information
only to Employer's other Employees who need to know such
information and who have previously agreed to be bound by the terms
and conditions of a substantially similar confidentiality provision
and shall be liable for damages for the intentional or negligent
disclosure of Confidential Information. Employee's obligations with
respect to any portion of Confidential Information shall terminate
only when Employee has documented to Employer that (a) such
information was lawfully in the public domain at the time it was
communicated to Employee by
Employer; or (b) the communication was in response to a valid order
by a court of competent jurisdiction or was necessary to establish
the rights of Employer under this Employment Agreement.
Article 8
Noncompetition Agreement
Section 8.1. AGREEMENT NOT TO COMPETE. For one (1) year after
Employee's employment with Employer terminates, Employee agrees not
to directly or indirectly own, manage, control, or operate; serve
as an officer, director, partner, or Employee of; have any direct
or indirect financial interest in; or assist in any way; any person
or entity that competes with any business conducted by Employer or
any of Employer's affiliates or subsidiaries in any geographic
region in which Employer conducts business.
Section 8.2. COMPETITIVE BUSINESSES. For purposes of this Article
11, a competitive business shall be any person or entity which
operates as a securities broker dealer whose primarily business is
to provide its clients with the ability buy, sell, or trade
securities via the internet or world wide web, or via some similar
system, network, method, or service.
Section 8.3. OWNERSHIP OF PUBLIC CORPORATION NO VIOLATION.
Employee will not be considered to have violated this provision
merely because Employee owns no more than twenty percent (20%) of
the stock of any publicly held corporation.
Article 9
Notices
Any notice given under this Employment Agreement to either party
shall be made in writing. Notices shall be deemed given when
delivered by hand or when mailed by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the
party at the address set forth below.
Employee's address: 0000 Xxxx Xxxxx Xxxx.
Xxxx Xxxxx, XX 00000
Employer's address: 0000 Xxxx Xxxxx Xxxx,
Xxxx Xxxxx, XX 00000
Each party may designate a different address for receiving notices
by giving written notice of the different address to the other
party. The written notice of the different address will be deemed
given when it is received by the other party.
Article 10
Binding Agreement
Section 10.1. EMPLOYER'S SUCCESSORS.
(a) The rights and obligations of Employer under this Employment
Agreement shall inure to the benefit of and shall be binding in
all respects upon the successors and assigns of Employer.
(b) Employer shall require any direct or indirect successor (by
purchase, merger, consolidation, or (otherwise) of all or
substantially all of Employer's stock, business and/or assets to
expressly agree to assume Employer's obligations under this
Employment Agreement and perform them in the same manner and to the
same extent as Employer would have been required to do if no
succession had occurred. The agreement must be in a form and
substance satisfactory to Employee.
(c) If Employer fails to obtain such an agreement before the
effective date of the succession, Employer's failure will be
considered a breach of this Employment Agreement, and Employee
shall be entitled to the greater of (i) one year's base salary in
effect on the effective date of such succession. However,
Employer's failure to obtain such agreement shall not affect-said
successor's obligations pursuant to paragraph 10.1(a) above.
Section 10.2. EMPLOYEE'S SUCCESSORS. This Employment Agreement
shall inure to the benefit and be enforceable by and upon
Employee's personal representatives, legatees, and heirs. If
Employee dies while amounts are still owed, such amounts shall be
paid to Employee's legatees or, if no such person or persons have
been designated, to Employee's estate.
Article 11
Waivers
The waiver by either party of a breach of any provision of this
Employment Agreement shall not operate or be construed as a waiver
of any subsequent breach.
Article 12
Entire Agreement
Section 12.1. NO OTHER AGREEMENTS. This instrument contains the
entire agreement of the parties. The parties have not made any
agreements or representations, oral or otherwise, express or
implied, pertaining to the subject matter of this Employment
Agreement other than those specifically included in this employment
Agreement.
Section 12.2. PRIOR AGREEMENTS. This Employment Agreement
supersedes any prior agreements pertaining to or connected with or
arising in any manner out of the employment of Employee by
Employer. All such prior agreements are terminated and are of no
force or effect whatsoever.
Article 13
Amendment of Agreement
No change or modification of this Employment Agreement shall be
valid unless it is in writing and signed by the party against whom
the change or modification is sought to be enforced. No change or
modification by Employer shall be effective unless it is approved
by Employer's Board of Directors and signed by an officer
specifically authorized to sign such documents.
Article 14
Severability of Provisions
If any provision of this Employment Agreement is invalidated or
held unenforceable, the invalidity or unenforceability of that
provision or provisions shall be deemed modified or severed only to
the minimum extent necessary to make said provision(s) valid and
enforceable while maintaining the intent of said provision(s). No
such modification shall affect the validity or enforceability of
any other provision of this Employment Agreement.
Article 15
Assignment of Agreement
Employer shall not assign this Employment Agreement without
Employee's prior written consent, but failure to obtain such
consent shall not affect-said assignee's obligations pursuant to
paragraph 10.1(a) above, which consent shall not be unreasonably
withheld.
Article 16
Governing Law. Venue & Attorneys Fees
All questions regarding the validity and interpretation of this
Employment Agreement shall be governed by and construed and
enforced in all respects in accordance with the laws of the State
of Florida. Venue for any action arising in any manner out of the
Employee's employment, this Employment Agreement, or any of the
terms contained herein shall be the Federal and or State courts
located in Palm Beach County, Florida, regardless of where this
Employment Agreement is to be performed. In the event either party
engages legal counsel to enforce any provision contained in this
Employment Agreement, the prevailing party shall be entitled to all
reasonable attorneys fees, investigative expenses, costs, and court
costs, whether or not a suit is actually filed, but including all
levels of appeal.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement in duplicate on the date and year first above written.
EMPLOYEE:
/s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
EMPLOYER:
1st Internet Group, Inc.
By: /s/ XXXXXX X. XXXX
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Name: Xxxxxx X. Xxxx
Title: CFO
