EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT ("Agreement")
is made and entered into as of the ______ day of July 2008, between Xxxxxx
X.
Xxxxxx ("Executive") and FNDS3000 Corp., a Delaware corporation (the
"Company").
WHEREAS,
the
Company desires to employ Executive and Executive desires to be employed by
the
Company upon the terms and conditions set forth herein.
NOW,
THEREFORE,
in
consideration of the promises and mutual agreements hereafter set forth, and
upon the terms and conditions contained in this Agreement, Executive and the
Company hereby agree as follows:
1. Certain
Definitions.
"Business
of the Company"
shall at
any time mean any line of business then engaged in, or planned to be engaged
in
by the Company or any of its affiliates and subsidiaries.
"Common
Stock"
shall
mean the common stock of the Company.
"Competing
Enterprise"
shall at
any time mean any person, firm, corporation or other individual or entity that
is engaged, directly or indirectly, wholly or in part, in any line of business
then engaged in, or then planned to be engaged in, by the Company or any of
its
affiliates and subsidiaries.
"Corporate
Transaction"
shall
mean (A) any merger or consolidation of the Company with another entity, whether
or not the Company is the continuing or surviving entity, in which forty percent
(40%) or more of the Company's voting capital stock is transferred to holders
different from persons or their affiliates who held the stock immediately prior
to such transaction or (B) any sale of all or substantially all of the Company's
assets to another entity or person of which forty percent (40%) or more of
the
capital stock is held by holders different from persons or their affiliates
who
hold voting capital stock of the Company.
All
other
capitalized terms used herein are defined in other provisions of this
Agreement.
2. Duties.
2.1 Capacity.
(a) Executive
shall serve as Executive Vice President Americas of the Company reporting to
the
CEO and shall perform such customary, appropriate and reasonable executive
duties as are usually performed by an Executive Vice President including but
not
limited to the promotion and expansion of existing products and customers within
the Americas or as may be delegated to him from time to time by the Chief
Executive Officer. Executive shall principally perform his duties hereunder
at
the executive offices of the Company in Jacksonville, Florida. The Company
and
Executive recognize that Executive currently resides in Georgia but intends
to
move to Florida, and that Company will work with the Executive regarding a
reasonable time frame in which the Executive will relocate to the Jacksonville
area as well as moving costs. Executive shall serve in the same employee
position set forth in this Section 2.1 to the extent set forth in this Section
2.1 of any successor entity or holding company resulting from a reorganization
of the Company other than a Corporate Transaction. In the event that the
Employee joins the Board of Directors of the Company then such obligation does
not apply to Executive’s status as a Director of the Company.
3. Cash
Compensation and Benefits.
3.1 Salary.
Executive
shall be paid an annual base salary of One Hundred Fifty Thousand Dollars
($150,000.00) ("Base Compensation"), payable in accordance with the Company's
general payroll practices commencing July 1, 2008 (the "Effective Date”). Such
base salary shall be subject to increase from time to time in the sole
discretion of the CEO..
3.2 Annual
Bonus.
Commencing
with the Company's 2008 fiscal year and for each fiscal year of the Company
thereafter during the Term, the Executive shall be eligible to receive, in
addition to his Base Compensation, an annual bonus, to be determined and awarded
in the sole discretion of the CEO with agreement by the Compensation Committee
of the Board of Directors, payable within sixty (60) days of the end of each
such fiscal year (the "Annual Bonus"). A bonus of $1,668 per month in net pay
shall be advanced based on estimated performance through March 31,
2009.
3.3
Benefits.
In
addition to the Base Compensation and any Annual Bonus, Executive shall further
be entitled to participate in any employee benefits programs offered generally
from time to time to senior management employees of the Company to the extent
Executive qualifies for participation under such programs. In any event the
Company shall pay for, at no cost to Executive a health and dental
plan.
3.4
Business Expenses.
The
Company shall pay the reasonable and necessary business expenses incurred by
Executive in performing his duties hereunder in accordance with such policies
regarding employee expenses generally as the Company may have in effect from
time to time.
3.5 Vacation
and Holidays.
Executive
shall be entitled to fully paid vacation time of three (3) weeks per calendar
year. In addition, Executive shall be entitled to all holidays provided under
the Company's regular holiday schedule.
3.6 Severance
Compensation.
(a) If
Executive's employment with the Company is terminated by the Company without
Cause at any time prior to July 1, 2011, Executive shall receive from the
Company severance pay in an amount equal to the greater of his then-current
Base
Compensation in effect at the time of such termination through either June
30,
2011 or eighteen (18) months from the date of notice, whichever is greater,
in a
lump sum payable no later than the termination date and (ii) all unpaid benefits
such as accrued vacation, and (iii) all outstanding expenses, and (iv) any
declared but unpaid Annual Bonus. If Executive's employment with the Company
is
terminated by the Company by virtue of the expiration of this Agreement on
June
30, 2011, Executive shall be entitled to continue to receive from the Company
severance pay in an amount equal to the greater of his then-current Base
Compensation in effect at the time of such termination through June 30, 2011
in
accordance with the Company's general payroll practices; and (ii) any declared
but unpaid Annual Bonus. In the event of a Corporate Transaction, the amount
of
severance pay will be equal to his then current Base Compensation for twenty
four (24) months plus any annual bonus due plus all PTO time in a lump sum
payable no later than the closing date of the Corporate Transaction.
Additionally, the Company will continue to pay the premiums for Executive’s
health benefits and life insurance for twenty four months.
(b) During
any period in which Executive is receiving severance compensation pursuant
to
subsection (a) of this Section 3.6, the Company shall use reasonable efforts
to
obtain reasonably and to pay for comparable medical, life and disability
insurance and other benefits on the same terms and conditions and to the same
extent as theretofore provided by the Company to Executive prior to the
effective date of the termination of his employment.
3.7 Compensation
Upon a Corporate Transaction.
If
Executive is terminated without Cause within a twelve (12) month period
following the consummation of a Corporate Transaction (i) Executive's right
to
receive any earned but unpaid Annual Bonus shall immediately vest, but not
less
than a pro rata amount of the immediately preceding year's Annual Bonus if
no
Annual Bonus shall have been earned for the then current year, (ii) the Company
or its successor in interest shall use reasonable efforts to obtain reasonably
comparable medical, life and disability insurance and other benefits on the
same
terms and conditions and to the same extent as immediately theretofore provided
by the Company to Executive prior to the consummation of the Corporate
Transaction for a period of two (2) years following such termination and (iii)
all severance compensation provided for in Section 3.6 will be due and payable
at time of termination.
4. Stock
Options.
4.1 Stock
Option Grants.
From
time
to time the Company may grant to Executive incentive based stock options which
will be priced at the price of its stock closing price on the day the options
are granted. Any future stock option grants will be determined by the
Compensation Committee.
5. Restrictive
Covenants and Confidentiality.
In
consideration of the provisions of this Paragraph 5 and the actual and/or
potential payments and benefits referred to in Paragraphs 3 and 4 hereof, and
in
consideration of the agreement by the Company to purchase the assets of *,
which
Executive acknowledges are legally sufficient to support enforceability by
the
Company of the Restrictive Covenants described in this Paragraph 5 against
Executive, Executive agrees as follows:
5.1 Non-Solicitation.
The
Executive agrees that during the Term and for a period of one (1) year
thereafter and in any event during any period in which he is receiving severance
compensation pursuant to Section 3.6, he shall not solicit, entice, encourage
or
induce any person, other than persons known prior to Executive’s employment, who
at any time within one (1) year prior to the Executive's termination of
employment shall have been an employee of the Company or any of its
subsidiaries, to become employed by or associated with any person, firm or
corporation other than the Company, and the Executive shall not approach any
such employee for such purpose or authorize or knowingly approve the taking
of
such actions by any other person, firm or corporation or assist any such person,
firm or corporation in taking such action.
5.2 Non-Compete.
The
Executive agrees that during the Term and for a period of one (1) year
thereafter and in any event during any period in which he is receiving severance
compensation pursuant to Section 3.6, the Executive shall not, directly or
indirectly, engage or participate or make any financial investments in, or
become employed by, or act as an agent or principal of, or render advisory
or
other services to or for, any Competing Enterprise. Nothing herein contained,
however, shall restrict the Executive from overseeing personal and family
investments, including, without limitation, any investments in not more than
three percent (3%) of the voting securities in any Competing Enterprise whose
stock is listed on a national securities exchange or is actively traded on
the
NASDAQ so long as in connection with such investments the Executive does not
render services, directly or indirectly, to a Competing Enterprise.
5.3 Confidentiality.
Executive
shall not, directly or indirectly, publish, disclose or use, or authorize anyone
else to publish, disclose or use, any secret or confidential matter, or
proprietary or other information not otherwise available in the public domain
relating to any aspect of the operations, activities, or obligations of the
Company, including, without limitation, any confidential material or information
relating to the Company's business, customers, suppliers, arrangements with
Practitioners, trade or industrial practices, trade secrets, technology,
know-how or intellectual property. All records, files, data, documents and
the
like relating to suppliers, customers, costs, prices, systems, methods,
personnel, equipment and other materials relating to the Company shall be and
remain the sole property of the Company. Upon termination of Executive's
employment with the Company, Executive shall not remove from the Company's
premises or retain any of the materials described in this Section 5.3 without
the prior written consent of the Company, and all such materials in Executive's
possession shall be delivered promptly to the Company.
5.4 Survival
and Company Definition.
This
Section 5 shall survive the termination of the Executive's employment with
the
Company, irrespective of the reason therefore. For purposes of this Section
5,
the term "Company" shall include all affiliates and subsidiaries.
5.5 Remedies.
The
Executive acknowledges that the services to be rendered by the Executive are
of
a special, unique and extraordinary character and, in connection with such
services, the Executive will have access to confidential information vital
to
the Company's business. By reason of this access, the Executive consents and
agrees that if the Executive violates any of the provisions of this Section
5,
the Company shall be entitled, without the need to show actual damages, to
an
injunction and a temporary restraining order from any court of competent
jurisdiction restraining the Executive from committing or continuing any such
violation of this Agreement. The Executive acknowledges that damages at law
would not be an adequate remedy for violation of this Section 5, and the
Executive therefore agrees that the provisions of this Agreement may be
specifically enforced against the Executive in any court of competent
jurisdiction. The rights, powers and remedies of the Company under this
Agreement are cumulative and not exclusive of any other right, power or remedy
which the Company may have under any other agreement or by law.
6. Term
and Termination.
6.1 Term.
The
term
of this Agreement shall be for three (3) years. With respect to the Executive’s
employment period (the “Employment Period”), the term of this Agreement shall
terminate June 30, 2011. After such Employment Period, the Board of Directors
in
its sole discretion may extend the term with Executive’s consent. The initial
term and any term established after July 1, 2008, is each referred to as a
"Term," and, for purposes of Section 3.6, severance payments through the end
of
the Term means through the end of the applicable Term in which Executive is
terminated.
6.2 Death.
This
Agreement shall terminate automatically upon Executive's death and upon complete
payment to Executive’s estate of all accrued and unpaid Base Compensation
including amounts due as earned but unpaid Annual Bonus and any unpaid travel
expenses and PTO due. The Company agrees to pay all premiums for an additional
two years the health and dental insurance policy outlined in paragraph 3.3
.
6.3 Disability.
In
the
event that Executive, because of accident, disability or physical or mental
illness, is incapable of performing his usual duties hereunder, the Company
shall have the right to terminate Executive’s employment. For purposes of this
Section 7.3, Executive shall be deemed to have become incapable of performing
his usual duties hereunder if the Board shall determine that Executive is,
by
reason of any medically-determinable physical or mental impairment expected
to
result in death or to be of continuous duration of not less than six (6)
consecutive months or more, unable to perform his usual duties for the Company.
If Executive's employment hereunder is terminated pursuant to this Section
6.3,
the Company shall pay to Executive, one years of his then current Base
Compensation as his sole and exclusive right and remedy under this Agreement
(i)
all accrued and unpaid Base Compensation through the date of termination
pursuant to this Section 6.3, (ii) any earned but unpaid Annual Bonus and (iii)
continuation of Company benefits for twelve (12) months to Executive’s family at
no cost to Executive or his family.
6.4 Cause
and Voluntary Termination.
The
Company shall have the right to terminate this Agreement and Executive's
employment hereunder for Cause. “Cause" shall mean any of the following
occurrences: (1) Executive's conviction of (A) a felony or (B) another serious
crime involving material harm to the standing or reputation of the Company;
(2)
Executive's gross negligence or willful misconduct in the performance of his
duties for the Company which causes or may cause material harm to the Company;
(3) conduct by the Executive which brings the Company into public disgrace
or
disrepute, including, without limitation, dishonesty and fraud; or (4) a
material breach by Executive of any of the terms or conditions of this Agreement
or any other agreement between the Company and the Executive, which, if curable,
is not cured to the Company's reasonable satisfaction within thirty (30) days
of
written notice thereof. The Executive shall have the right to voluntarily
terminate this Agreement at any time upon fifteen (15) days prior written
notice. If Executive voluntarily terminates his employment hereunder or the
Company terminates Executive's employment for Cause, the Executive's sole and
exclusive right and remedy hereunder shall be the right to receive his Base
Compensation through the date of such termination only and the Company shall
have no responsibility for the payment of any other compensation or benefits
to
the Employee for any time period subsequent to such termination, including,
without limitation, any Annual Bonus or other employee benefits. Nothing herein
shall affect the Company's obligation to provide benefits as required by COBRA
or any other applicable federal or state law.
6.5 Termination
Without Cause.
The
Company may terminate Executive's employment with the Company pursuant to this
Agreement without cause by giving written notice to Executive at least sixty
(60) days prior to the effective date of such termination, subject to the
provisions of Section 3.6.
7. Miscellaneous.
7.1 Successors
and Assigns.
This
Agreement shall be binding on and inure to the benefit of the parties hereto
and
their heirs, executors, legal representatives, successors and assigns. Neither
party shall have the right to assign its obligations, or all or any portion
of
their rights or interests under this Agreement without the prior written consent
of the other party hereto, and any attempt to do so will be null and void;
provided, that the Company shall have the right to assign this Agreement in
connection with any Corporate Transaction.
7.2 Notices.
Any
notice, request, demand or other communication required or permitted by this
Agreement shall be in writing and shall be deemed to have been properly given
upon the earlier of receipt or five (5) days after being sent by certified
or
registered mail with postage prepaid, return receipt requested, addressed to
the
parties as follows:
|
If
to Executive:
|
Xxxxxx
Xxxxxx
|
|
0000
Xxxxxxxx Xxxx Xxxxx
|
|
Xxxxxx,
XX 00000
|
|
If
to Company:
|
FNDS3000Corp.
|
|
000
X0X, Xxxxx 000
|
|
Xxxxx
Xxxxx Xxxxx, XX 00000
|
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Attention:
Board of Directors
|
Only
giving written notice of such change in the manner provided herein for giving
notices may change the addresses for purposes of this Section 7.2.
7.3 Withholding.
Executive
hereby agrees to make appropriate arrangements with the Company for the
satisfaction of all Federal, State or local income tax withholding requirements
and Federal social security employee tax requirements applicable to this
Agreement.
7.4 Governing
Law, Venue and Attorney Fees.
This
Agreement is made and entered into and is to be governed by the laws of the
State of Florida applicable to agreements made within such State, without regard
to the conflicts of law principles of such State. The Venue for all purposes
in
connection with this Agreement shall be the County of St. Xxxx, State of
Florida. In the event any party hereto reasonably retains counsel for the
purpose of enforcing or preventing the breach of this Agreement or any provision
hereof, including, but not limited to, instituting any action or proceeding
to
enforce any provision hereof, for damages by reason of any alleged breach of
any
provision hereof, for a declaration of such party’s rights or obligations
hereunder, for an action seeking injunctive relief to enforce any provision
herein, or for any other judicial remedy, then the prevailing party shall be
entitled, in addition to such other relief as may be granted, to be reimbursed
by the non-prevailing party for all costs and expenses incurred thereby,
including reasonable attorney’s fees.
7.5 Waiver.
The
failure of either party at any time to require performance by the other party
of
any provision hereof shall not affect in any way the full right to require
such
performance at any time thereafter, nor shall a waiver by either party of a
breach of any provision hereof be taken or held to be a continuing waiver of
such provision, or waiver of any other breach under any other provision of
this
Agreement.
7.6 Captions.
The
captions of the sections referenced herein are inserted as a matter of
convenience only and in no way define, limit, or describe the scope of this
Agreement or any provisions hereof.
7.7 Entire
Agreement.
This
Agreement and any Exhibits hereto set forth the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior contracts, agreements, arrangements,
communications, discussions, representations and warranties, whether oral or
written, between the parties with respect to such subject matter. This Agreement
may be amended only by a written instrument signed by both parties hereto making
specific reference to this Agreement and expressing the plan or intention to
modify it.
7.8 Severability.
If
any
provision of this Agreement shall be adjudicated to be invalid, ineffective
or
unenforceable, the remaining provisions of this Agreement shall not be affected
thereby. The invalid, ineffective and unenforceable provision shall, without
further action by the parties, be automatically amended to effect the original
purpose and intent of the invalid, ineffective or unenforceable provision;
provided, that such amendment shall apply only with respect to the operation
of
such provision in the particular jurisdiction with respect to which such
adjudication is made.
7.9 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, and all of which together will constitute one and
the
same Agreement.
7.10 No
Conflict.
Executive
covenants and represents that he is not a party to any agreement or
understanding which impairs or prohibits his ability to enter into and perform
services under this Agreement.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date first above
written.
|
By:
_______________________________
|
|
|
Name: Xxxxxxx Xxxxx
|
|
|
CEO
|
|
|
EXECUTIVE
|
|
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By:
_______________________________
|
|
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Name:
|
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Xxxxxx Xxxxxx
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