EXHIBIT 10.6
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made this 1st day of April,
1999, by and between WHIRLWIND VENTURES, INC., a Florida corporation, (the
"Company"), and XXXXXX XXXXXX (the "Executive").
WITNESSETH:
WHEREAS, the Company desires to employ the Executive and to enter an
agreement embodying the terms of such employment and the Executive desires to
enter into this Agreement and to accept such employment, subject to the terms
and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Employment.
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The Company agrees to employ the Executive during the Term specified
in Paragraph 2, and the Executive agrees to accept such employment, upon the
terms and conditions hereinafter set forth.
2. Term.
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The Executive's employment by the Company shall be for a term (the
"Term") commencing on April 1, 1999 and expiring on the earlier of (i) September
1, 2001; (ii) the death of the Executive, and (iii) the close of business on the
date the Executive's employment terminates pursuant to Paragraph 6 below. The
effective date of the termination of the Executive's employment with the
Company, regardless of the reason therefor, is referred to in this Agreement as
the "Date of Termination."
3. Duties and Responsibilities.
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(a) During the Term, the Executive shall have the positions of
Chairman of the Board and Chief Executive Officer of the Company. The Executive
shall report, directly to the Board of Directors of the Company (the "Board") at
such times and in such detail as it shall reasonably require.
(b) The Executive shall have all of the powers, duties and
responsibilities customary to his offices, as are reasonably necessary to the
operations of the Company and its subsidiaries and as may be assigned to him
from time to time by or under authority of the Board consistent with his
positions as designated in subparagraph 3(a) above. Without limiting the
foregoing, the Executive shall be responsible for the general overall management
of the Company and its subsidiaries and identifying suitable acquisition
opportunities and proposing such acquisition opportunities to the Board. They
day-to-day operations of the Company shall
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be overseen by a Chief Operating Officer selected by the Executive and engaged
by the Company. The Executive shall be furnished with such facilities and
services as are suitable to his position and adequate for the performance of his
duties. It is the intention of the parties that the Executive shall be elected
to and serve as a member of the Board, subject to the approval of the Company's
shareholders, so long as he continues to be employed by the Company, or if no
longer employed, owns five (5%) percent of the outstanding voting shares of the
Company.
(c) The Executive agrees to devote his best efforts and not less than
seventy-five (75%) percent of his business time, skill, attention and energies
as are necessary to the performance of his duties and responsibilities under
this Agreement. Nothing herein shall preclude the Executive from (i) engaging
in charitable, civil or religious, and other family members' business activities
and (ii) managing his personal investments and affairs, or serving on advisory
boards or boards of directors of other entities, provided that such activities
set forth in clauses (i) and (ii) above (individually or collectively) do not
adversely interfere with the performance of his duties or responsibilities under
this Agreement. The Company hereby acknowledges that the Executive has informed
it that the Executive currently has a Consulting Agreement with his former
employer, The Educational Funding Company LLC, doing business as "American
Express Educational Loans," through calendar year 1999, wherein the Executive
has the obligation to spend up to twenty (20%) percent of the Executive's time
providing consulting services to the former employer unrelated to the business
activities of the Company.
(d) Initially, the Executive's services hereunder shall be performed
at the headquarters of the Company located in San Diego, California.
4. Compensation.
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Commencing on April 1, 1999, as compensation for all of his services
hereunder, the Company shall pay the Executive an annualized base salary (the
"Base Salary") of One Hundred Fifty Thousand Dollars ($150,000.00) payable
monthly in the amount of Twelve Thousand Five Hundred Dollars ($12,500.00). The
Base Salary shall be paid in accordance with the Company's normal payroll
practices.
5. Expenses; Fringe Benefits.
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(a) The Company agrees to pay or to reimburse the Executive for all
reasonable, ordinary and necessary vouchered business or entertainment expenses
incurred during the Term in the performance of his services hereunder in
accordance with the policy of the Company as from time to time in effect. The
Executive, as a condition precedent to obtaining such payment or reimbursement,
shall provide to the Company any and all statements, bills or receipts
evidencing the travel or out-of-pocket expenses for which the Executive seeks
payment or reimbursement, and any other information or materials, as the Company
may from time to time reasonably require. Reimbursable business expenses shall
include travel to and from Los Angeles, California, first class air fare for
any business-related air travel more than three hundred (300) miles from San
Diego, California and first class accommodations for any business-related travel
outside San Diego, California. The Company agrees to provide the Executive with
an office in San Diego, California and to staff such office at the Company's
expense with an employee acceptable to the Executive, or such other employees
required by the Executive from time to time.
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(b) The Executive and, to the extent eligible, his dependents, shall
be entitled to participate in and receive all benefits under all welfare benefit
plans and programs made available to the Company's senior level executives or to
its employees generally, as such plans or programs may be in effect from time to
time, including, without limitation, any medical, dental, hospitalization,
disability and life insurance plans, accidental death and dismemberment
protection and travel accident insurance.
(c) The Executive (i) shall be entitled to participate in all
retirement plans and programs made available to the Company's senior level
executives or to its employees generally as such plans and programs may be in
effect from time to time, including without limitation, any pension, profit
sharing or savings plan, (ii) shall be entitled to receive fringe benefits and
perquisites made available to the Company's senior level executives in
accordance with the programs and practices of the Company as from time to time
in effect, and (iii) without duplication of any benefit specifically provided to
the Executive in this Agreement, shall be eligible to participate in all
executive compensation programs maintained by the Company for its senior level
executives, including without limitation, any deferred compensation plan, stock
option, cash incentive or other bonus plans, subject in each case to the
generally applicable terms and conditions of such plans and programs and to the
discretion and determination of the person or committee administering such plan
or program.
(d) The Executive shall be entitled to two (2) weeks paid vacation
during each calendar year of the Term, to be taken at such time(s) as shall not,
in the reasonable judgment of the Board, materially interfere with the
Executive's fulfillment of his duties hereunder, and shall be entitled to as
many holidays, sick days and personal days as are in accordance with the
Company's policy then in effect generally for its senior level executives.
6. Termination
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(a) The Company may terminate the Executive's employment for "Cause."
For purposes of this Agreement, "Cause" shall mean and be limited to (i) the
demonstrated continued failure by the Executive materially to perform his duties
under this Agreement (other than by reason of his Disability, as defined in
Paragraph 6(d) below) or the commission in bad faith by the Executive of any act
which materially injures the Company, and which in either case is not remedied
within thirty (30) days after receipt of written notice from the Company stating
in detail the particular act or failures that constitute the grounds on which
the termination for cause is based; (ii) the commission by the Executive in the
course of his employment of an act which constitutes fraud, embezzlement or
theft against the Company; or (iii) the conviction of the Executive of a felony
or other crime involving a breach of trust or fiduciary duty owed to the
Company.
(b) The Executive shall be entitled to terminate his employment for
"Good Reason" at any time during the Term by written notice to the Company. For
purposes of this Agreement, "Good Reason" shall mean: (i) the assignment to the
Executive of any duties materially inconsistent in any respect with the
Executive's position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by
Paragraph 3 above; (ii) the Company's requiring the Executive to be based at any
office or location other than an office located in San Diego, California at any
time after ninety (90) days from the date of this Agreement; or (iii) the
failure of the Company to raise the necessary funds
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and/or capital for internal growth and cash flow needs of the Company and the
capital required to complete the acquisitions sought by the Executive and
approved by the Board.
(c) In the event the Executive shall be unable to perform his duties
hereunder by virtue of illness or physical or mental incapacity or disability
(from any cause or causes whatsoever) in substantially in the manner and to the
extent required hereunder prior to the commencement of such disability (all such
causes being herein referred to as "Disability") and the Executive shall fail to
perform such duties for periods aggregating sixty (60) days, whether or not
continuous, in any continuous period of one hundred eighty (180) days, the
Company shall have the right to terminate the Executive's employment hereunder
as of the end of any calendar month during the continuance of such Disability
upon not less than thirty (30) days' prior written notice to him. In addition,
if at any time a Board certified licensed physician in the State of California
selected by the Board and reasonably satisfactory to the Executive or his
personal representative determines that the Executive has incurred a Disability
that in all likelihood would continue for the period that would permit the
Company to terminate the Executive's employment under this Subparagraph 6(d),
the Company may terminate the Executive's employment hereunder upon written
notice to him. Such notice shall be accompanied by the written determination of
such physician indicating the basis for his or her determination.
7. Obligations of the Company Upon Termination of Employment.
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(a) In the event the Executive's employment is terminated without
cause, the Executive, his estate or his beneficiaries, as the case may be, shall
be entitled to:
(i) Base Salary for eighteen (18) months after such termination;
(ii) the balance of any unpaid amounts due under Paragraph 4
above;
(iii) continued participation for twelve (12) months after the
Date of Termination in all medical, dental, hospitalization, life and disability
insurance coverage and in other employee benefit plans or programs in which he
was participating on the Date of Termination and at the expense of the Company.
(b) In the event the Company terminates the Executive's employment for
cause, he shall be entitled to Base Salary for a period of ninety (90) days
following the Date of Termination, including the benefits set forth in
Subparagraph 7(a)(iii) above, and applicable COBRA benefits.
(c) In the event the Executive terminates his employment with the
Company pursuant to the provisions of clause (iii) in Subparagraph 6(b) above,
the Executive shall be entitled to receive those benefits set forth in
Subparagraphs 7(a)(i) through (iii) above.
8. Confidential Information and Non-Competition Agreement.
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(a) The Company and the Executive acknowledge that the services to be
performed by the Executive under this Agreement are unique and extraordinary and
that, as a result of the Executive's employment, the Executive will be in a
relationship of confidence and trust with the Company and will come into
possession of "Confidential Information" (1) owned
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or controlled by the Company, (2) in the possession of the Company and belonging
to third parties or (3) conceived, originated, discovered or developed, in whole
or in part, by the Executive. As used herein "Confidential Information" includes
trade secrets and other confidential or proprietary business, technical,
personnel or financial information, whether or not the Executive's work product,
in written, graphic, oral or other tangible or intangible forms, including but
not limited to specifications, samples, records, data, computer programs,
drawings, diagrams, models, customer names, ID's or e-mail addresses, business
or marketing plans, studies, analyses, projections and reports, communications
by or to attorneys (including attorney-client privileged communications), memos
and other materials prepared by attorneys or under their direction (including
attorney work product), and software systems and processes. Any information that
is not readily available to the public shall be considered to be a trade secret
and confidential and proprietary, even if it is not specifically marked as such,
unless the Company advises the Executive otherwise in writing or unless the
information has been shared by the Company or its staff with entities not bound
by non-disclosure agreements.
(b) The Executive agrees that he will not, without the prior written
consent of the Company, directly or indirectly, use or disclose Confidential
Information to any person, during or after the Executive's employment, except as
may be necessary in the ordinary course of performing the Executive's duties
under this Agreement, or as required by law or the courts. The Executive will
keep the Confidential Information in strictest confident and trust. This
Subparagraph 8(b) shall apply indefinitely, both during and after the Term of
this Agreement.
(c) The Executive agrees that in the event of the termination of the
Executive's employment for any reason, the Executive will deliver to the
Company, upon request, all property belonging to the Company, including all
documents and materials of any nature pertaining to the Executive's work in the
Company, and will not take with the Executive any documents or materials or any
description, or any reproduction thereof of any description, containing or
pertaining to any Confidential Information. It is understood that the Executive
is free to use information that is in the public domain (not as a result of a
breach of this Agreement).
(d) During the term of this Agreement and for a twelve (12) month
period thereafter, the Executive agrees that he shall not (a) engage or be
interested in or receive any compensation from any business in which the
services to be rendered by the Executive to such business directly relates to
services or products that are directly competitive with "Significant" services
or products offered by the Company or a Controlled Affiliate (as hereinafter
defined) at the Executive's Date of Termination, or (b) induce or attempt to
induce any employee, agent or customer of the Company to terminate or reduce the
scope of his, her or its relationship with the Company. A product or service
shall be deemed "Significant" only if such service or product on the Date of
Termination constitutes or is reasonably expected to constitute a material
component of the core business of the Company and its controlled affiliates
taken as a whole. As used herein, the term "Controlled Affiliate" shall mean
any entity which by ownership of voting securities or agreement is, directly or
indirectly through one or more intermediaries, controlled by the Company.
(e) The Executive acknowledges and agrees that the Company may seek to
enforce the covenants and restrictions pertaining to his obligations in this
Paragraph 8 hereof at law or in equity. If a court determines that the
restrictions in this Paragraph 8 are too broad or
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otherwise unreasonable under applicable law, including with respect to time or
geographical scope, the court is hereby requested and authorized by the parties
hereto to revise the foregoing restrictions to include the maximum restrictions
allowable under the applicable law.
9. Assignability; Binding Nature.
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This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, heirs (in the case of the Executive)
and assigns. The rights and obligations of the Company under this Agreement may
be assigned or transferred by the Company pursuant to a merger or consolidation,
or the sale or liquidation of all or substantially all of the assets of the
Company, provided that the assignee or transferee assumes the liabilities,
obligations and duties of the Company under this Agreement. No rights or
obligations of the Executive under this Agreement may be assigned or transferred
by the Executive other than his rights to compensation and benefits, which may
be transferred only by will or operation of law, or as provided in Paragraph 14
below.
10. Entire Agreement.
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This Agreement contains the entire understanding and agreement between
the parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the parties with respect thereto.
11. Amendment; Waiver.
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No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by the Executive and an authorized officer of
the Company. No waiver by either party of any breach by the other party of any
condition or provision contained in this Agreement to be performed by such other
party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time. Any waiver must be in writing and
signed by the Executive or an authorized officer of the Company, as the case may
be.
12. Severability.
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In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
13. Survival.
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The respective rights and obligations of the parties hereunder shall
survive any termination of the Executive's employment to the extent necessary to
the intended preservation of such rights and obligations.
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14. Beneficiaries/References.
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The Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Executive's death by
giving the Company written notice therefor. In the event of the Executive's
death or a judicial determination of his incompetence, reference in this
Agreement to the Executive shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
15. Notice.
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Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall be
deemed effective (a) upon personal delivery, if delivered by hand, or (b) three
days after the date of deposit in the mails, postage prepaid if mailed by
certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission (if electronically confirmed) or prepaid overnight
courier service and in each case, addressed as follows:
If to the Executive:
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Xx. Xxxxxx xxXxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxx Xxxxx Xx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
With a Copy to:
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Xxxxxxx X. Xxxxx, Esquire
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
If to the Company:
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Whirlwind Ventures, Inc.
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
With a Copy to:
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Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esquire
Facsimile No.: (000) 000-0000
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Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
16. Prior Agreements.
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The Executive represents and warrants to the Company that there are no
restrictions, agreements or understandings of any kind whatsoever to which the
Executive is a party or by which he is bound, which would inhibit, prevent or
make unlawful his execution or performance of this Agreement, and that his
execution and performance of this Agreement shall not constitute a breach of any
contract, agreement, or understanding, whether oral or written to which he is a
party or by which he is bound.
17. Acknowledgment.
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The Executive hereby acknowledges and certifies that he has read the
terms of this Agreement, that he has been informed by the Company that he should
discuss it with an attorney of his choice, and that he understands its terms and
effects. The Executive further, acknowledges that based on his training and
experience, he has the capacity to earn a livelihood by performing services as
an employee or otherwise in a business that does not violate the provisions of
Paragraph 9.
18. Governing Law.
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This Agreement shall be governed by and construe and interpreted in
accordance with the laws of the State of Delaware without reference to
principles of conflict of laws.
19. Headings.
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The headings of the sections contained in this agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
20. Counterparts.
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This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
WHIRLWIND VENTURES, INC.
BY: /s/ Xxxxxx xxXxxx
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Name: Xxxxxx xxXxxx
Title: CEO
/s/ Xxxxxx xxXxxx
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XXXXXX XXXXXX
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