EXHIBIT 10.15
SUMMIT BROKERAGE SERVICES, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
on this 22nd day of May, 2002, by and between SUMMIT BROKERAGE SERVICES, INC, a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxxx (the "Executive").
RECITALS:
WHEREAS, the Company is engaged in the securities business as a
securities broker/dealer firm registered with the NASD and is also engaged,
through a subsidiary, in the insurance business as an insurance broker (the
"Business"), and has invested substantial time and money to develop and build
substantial relationships with specific prospective or existing customers and
other individuals and businesses with which it does business; and
WHEREAS, the Board of Directors of the Company (the "Board") believes
that the attraction and retention of key employees such as the Executive is
essential to the growth and success of the Company; and
WHEREAS, the Board desires to employ the Executive as the President
and Chief Operating Officer of the Company; and
WHEREAS, in connection with his employment hereunder, the Board shall
elect the Executive to serve as Vice Chairman of the Board; and
WHEREAS, the Board has determined that this Agreement will reinforce
and encourage the Executive's attention and dedication to the Company; and
WHEREAS, the Executive is willing to make his services available to
the Company on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for the reasons set forth hereinabove, and in
consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
1. EMPLOYMENT.
1.1 Employment and Term. The Company hereby agrees to
employ the Executive and the Executive hereby agrees to serve the Company on
the terms and conditions set forth herein.
1.2 Duties of Executive. During the Term of Employment
under this Agreement, the Executive shall serve as the President and Chief
Operating Officer, shall diligently perform all services as may be assigned to
him by the Board or the Chief Executive Officer and shall exercise such power
and authority as may from time to time be delegated to him by the Board or the
Chief Executive Officer. The Executive shall devote his full time and attention
to the business and affairs of the Company, render such services to the best of
his ability, and use his best efforts to promote the interests of the Company.
It shall not be a violation of this Agreement for the Executive to: (i) serve
on corporate, civic or charitable boards or committees; (ii) deliver lectures,
fulfill speaking engagements or teach at educational
institutions; (iii) manage personal investments or (iv) devote appropriate
working time to the broker seminars and training activities conducted by him
through Educational Seminars of America, Inc. ("ESA"), a company owned by
Executive, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities to the Company in accordance
with this Agreement. The Executive shall also serve as the Vice Chairman of the
Board until the earlier of (i) termination of his employment as President and
Chief Operating Officer, (ii) his resignation as Vice Chairman of the Board, or
(iii) by mutual agreement between the Board and the Executive.
2. TERM.
2.1 Initial Term. The initial term of employment under
this Agreement, and the employment of the Executive hereunder, shall commence
on date of this Agreement first written above (the "Commencement Date") and
shall expire on the date that is two (2) years from the Commencement Date (the
"Expiration Date") unless sooner terminated in accordance with Section 5
hereof.
2.2 Renewal. This Agreement may be renewed or extended
upon mutual agreement between the Company and the Executive and such renewal or
extension period shall be referred to as the "Renewal Period."
2.3 Term of Employment. The period between the
Commencement Date and the Expiration Date, during which the Company pursuant to
the terms of this Agreement shall employ the Executive, together with any
Renewal Period, is sometimes referred to in this Agreement as the "Term of
Employment."
3. COMPENSATION.
3.1 Base Salary. The Executive shall receive a base
salary at the annual rate of Fifty Thousand Dollars ($50,000,00) (the "Base
Salary") until such time as the Company has operated on a profitable basis for
three (3) consecutive calendar months with a return on shareholders' equity of
no less than fifteen percent (15%), after which his Base Salary will be
increased to an amount appropriate to his duties and contributions to the
Company and as agreed between Executive and the Board of Directors., such Base
Salary to be paid during the Term of Employment and shall be payable in
installments consistent with the Company's normal payroll schedule, subject to
applicable withholding and other taxes. The Base Salary shall be reviewed, at
least annually, for merit increases and may, by action and in the discretion of
the Board, be increased at any time or from time to time.
3.2 Override. The Executive shall receive an override or
fee equal to three percent (3%) ("Override") of the first twelve month's gross
production generated by any and all brokers recruited by Executive and/or ESA
and engaged by the Company as independent registered representatives who remain
with the Company for no less than twelve months from their date of hire by the
Company, such override period to commence on the date of hire of each such
broker and to terminate on the date that is the last day of twelve consecutive
months thereafter. Any and all payments made by the Company to third parties
for the recruitment of the subject brokers shall be included with the twelve
months' gross production for purposes of determining the amount of the
Override.
3.3 Commissions. The Executive shall receive payments
("Commission Payments") calculated at "grid" as a percent of the commission
income generated by Executive as a registered representative with the Company,
but in no event less than 75%, and from that amount, the Executive shall be
responsible for paying the junior broker handling Executive's customer accounts
and all ticket charges.
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3.4 Bonuses.
(a) The Executive shall receive such bonuses,
if any, as the Board may in its sole and absolute discretion determine.
(b) Any bonuses paid pursuant to this Section
3.4 are sometimes hereinafter referred to as "Incentive Compensation."
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 Reimbursement of Expenses. Upon the submission of
proper substantiation by the Executive, and subject to such rules and
guidelines as the Company may from time to time adopt, the Company shall
reimburse the Executive for all reasonable expenses actually paid or incurred
by the Executive during the Term of Employment in the course of and pursuant to
the business of the Company. The Executive shall account to the Company in
writing for all expenses for which reimbursement is sought and shall supply to
the Company copies of all relevant invoices, receipts or other evidence
reasonably requested by the Company.
4.2 Compensation/Benefit Programs. During the Term of
Employment, the Company shall provide benefits to the Executive in accordance
with the Company's standard benefit package.
4.3 Working Facilities. During the Term of Employment,
the Company shall furnish the Executive with an office, secretarial help and
such other facilities and services suitable to his position and adequate for
the performance of his duties hereunder.
4.4 Automobile. During the Term of Employment, the
Company shall provide the Executive with a non-accountable automobile allowance
of $700.00 per month, which amount is intended to: (a) compensate the Executive
for wear and tear; and (b) reimburse the Executive for all costs of gasoline,
oil, repairs, maintenance, insurance and other expenses incurred by the
Executive by reason of the use of the Executive's automobile for Company
business from time to time.
4.5 Stock Option. On March 22, 2002, the Executive was
granted non-qualified options as follows: (the "Stock Options"): (a) an option
to purchase 400,000 shares of common stock of the Company ("Common Stock") at
an exercise price of $0.50 per share, and vesting 50% on the first anniversary
of the date of the grant, and 50% on the second anniversary of the date of the
grant, terminating on December 31, 2007 (if not terminated earlier under the
terms of the option); and (b) an option to purchase 500,000 shares of Common
Stock at an exercise price of $0.10 per share, vesting and exercisable in full
on the date of grant and terminating on December 31, 2007 (if not terminated
earlier under the terms of the option), and each Stock Option is evidenced by a
stock option agreement containing such additional terms as are customary. As
provided in the Stock Option agreements, the Company hereby confirms that it
will pay the amount of Executive's income tax liability incurred by him upon
exercise of the Stock Options or any portion thereof that is directly related
to such exercise; provided, however, that the Company's obligation to pay such
tax shall not exceed the
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amount of the tax benefit the Company receives as a direct result of the
Executive's exercise of the Stock Options or any portion thereof. Coverage of
such tax by the Company shall be made in the form of a bonus to the Executive,
which will be also subject to the same tax coverage by the Company, up to a
maximum amount of the Company's tax benefit derived from such bonus. The amount
of the total tax liability of the Executive (and, therefore, the Company's
liability, up to a maximum of the tax benefit to the Company in connection with
the foregoing) shall be calculated by the Company at the time of exercise of
the Stock Options or any portion thereof pursuant to the following convergence
formula recognized by the Internal Revenue Service as applicable to calculating
such tax liability: I divided by (1 - X) multiplied by X (where "I" is the
amount deemed compensation pursuant to option exercise and where "X" is the
Executive's highest marginal income tax bracket). For example, assuming the
compensation resulting from option exercise if $1,000,000, and the Executive
was in the 40% tax bracket, the calculation for the total tax liability would
be as follows:
Income x .40 = amount of tax liability
------------
1 - .40
$1,000,000 x .40 = $1,000,000 x .40 = $666,666.67 (total tax liability)
---------------- ----------------
1 - .40 .60
4.6 Other Benefits. The Executive shall be entitled to a
minimum of two weeks of vacation each calendar year during the Term of
Employment, and such additional time as the Executive and the Board shall
agree, to be taken at such times as the Executive and the Company shall
mutually determine and provided that no vacation time shall interfere with the
duties required to be rendered by the Executive hereunder. Any vacation time
not taken by the Executive during any calendar year may not be carried forward
into any succeeding calendar year. The Executive shall receive such additional
benefits, if any, as the Board shall from time to time determine.
5. TERMINATION.
5.1 Termination for Cause. The Company shall at all
times have the right, upon written notice to the Executive, to terminate the
Term of Employment, for Cause. For purposes of this Agreement, the term "Cause"
shall mean: (a) an action or omission of the Executive which constitutes a
material breach of, or failure or refusal (other than by reason of his
disability) to perform his duties for which he was hired, which, if curable, is
not cured within thirty (30) days after receipt by the Executive of written
notice of same; (b) commission of any act which involves fraud, embezzlement,
misappropriation of funds, or breach of fiduciary duty in connection with the
performance of his duties as an employee of the Company; (c) commission of any
crime which involves moral turpitude; or (d) gross negligence in connection
with the performance of the Executive's duties hereunder, which, if curable, is
not cured within thirty (30) days after written receipt by the Executive of
written notice of same. Any termination for Cause shall be made in writing to
the Executive, which notice shall set forth in detail all acts or omissions
upon which the Company is relying for such termination. The Executive shall
have the right to address the Board regarding the acts set forth in the notice
of termination. Upon any termination pursuant to this Section 5.1, the Company
shall pay to the Executive his Base Salary to the date of termination, plus any
unpaid Overrides, Commission Payments and Incentive Compensation earned by the
Executive as of the date of termination. The Company shall have no further
liability under this Agreement other
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than for reimbursement for reasonable business expenses incurred prior to the
date of termination, subject, however, to the Company's policy on
reimbursements of business expenses.
5.2 Disability. The Company shall at all times have the
right, upon written notice to the Executive, to terminate the Term of
Employment, if the Executive shall become entitled to benefits under the
Company's disability plan or program as then in effect, or, if the Executive
shall as the result of mental or physical incapacity, illness or disability,
become unable to perform his obligations hereunder for a period of 120
consecutive days or for an aggregate of 180 days, whether or not consecutive,
in any 12-month period. The Company shall have sole discretion based upon
competent medical advice to determine whether the Executive continues to be
disabled. Upon any termination pursuant to this Section 5.2, the Company shall:
(a) pay to the Executive any unpaid Base Salary through the effective date of
termination specified in such notice, together with any unpaid Overrides,
Commission Payments and Incentive Compensation earned by the Executive as of
the date of termination; and (b) pay to the Executive a severance payment equal
to six (6) months of the Executive's Base Salary at the time of the termination
of the Executive's employment with the Company. Any payments made to the
Executive pursuant to subsection 5.2 (b) above shall be reduced by that amount
of compensation or monetary benefit received by the Executive from any third
party from the time of the termination of the Executive's employment with the
Company until six (6) months thereafter. The Company shall have no further
liability under this Agreement other than for reimbursement for reasonable
business expenses incurred prior to the date of termination, subject, however,
to the Company's policy on reimbursements of business expenses.
5.3 Death. Upon the death of the Executive during the
Term of Employment with the Company, the Company shall pay to the estate of the
deceased Executive any unpaid Base Salary through the Executive's date of
death, together with any unpaid Overrides, Commission Payments and Incentive
Compensation earned by the Executive as of the date of death. The Company shall
have no further liability under this Agreement other than for reimbursement for
reasonable business expenses incurred prior to the date of termination,
subject, however, to the Company's policy on reimbursements of business
expenses.
5.4 Termination Without Cause. The Company shall at all
times have the right, upon written notice to the Executive, to terminate the
Term of Employment. Upon any termination of the Executive's employment by the
Company (that is not a termination under any of Sections 5.1, 5.2, or 5.3), the
Company shall pay to the Executive: (a) any unpaid Base Salary through the
effective date of termination specified in such notice, together with any
unpaid Overrides, Commission Payments and Incentive Compensation earned by the
Executive as of the date of termination; and (b) an amount equal to the Base
Salary ("Termination Payment") in twelve (12) equal monthly payments commencing
one (1) month after the effective date of termination specified in the
termination notice described above. The amount of the Termination Payment shall
be reduced by that amount of compensation or monetary benefit received by the
Executive from any third party from the time of the termination of the
Executive's employment with the Company until the Termination Payment is paid
in full to the Executive. The Company shall have no further liability under
this Agreement other than for reimbursement for reasonable business expenses
incurred prior to the date of termination, subject, however, to the Company's
policy on reimbursements of business expenses. As a condition to receipt of the
Termination Payment: (x) concurrent with the receipt of the first monthly
payment of the Termination Payment, the Executive shall deliver to the Company
a general release in form acceptable to the Board releasing the Company from
any and all rights, claims, demands, judgments, obligations, liabilities and
damages, whether accrued or unaccrued, asserted or unasserted, and whether
known or unknown, relating to the Company which ever existed, then existed, or
may thereafter exist, by reason of the termination of this Agreement without
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cause, except payment of the Termination Payment; and (y) the Executive shall
notify the Company if he receives any compensation or other monetary benefit
from a third party during the time period the Executive receives the
Termination Payment.
5.5 Termination by the Executive.
(a) The Executive shall at all times have the
right, upon sixty (60) days written notice to the Company, to terminate the
Term of Employment.
(b) Upon termination of the Term of Employment
pursuant to this Section 5.5 by the Executive without Good Reason, the Company
shall pay to the Executive any unpaid Base Salary through the effective date of
termination specified in such notice together with any unpaid Overrides,
Commission Payments and Incentive Compensation earned by Executive as of the
date of termination.. The Company shall have no further liability under this
Agreement other than for reimbursement for reasonable business expenses
incurred prior to the date of termination, subject, however, to the Company's
policy on reimbursements of business expenses.
(c) Upon termination of the Term of Employment
pursuant to this Section 5.5 by the Executive for Good Reason, the Company
shall pay to the Executive the same amount of monies that would have been
payable by the Company to the Executive under Section 5.4 of this Agreement if
the Term of Employment had been terminated by the Company without Cause. The
Company shall have no further liability under this Agreement other than for
reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however, to the Company's policy on reimbursements of
business expenses.
(d) For purposes of this Agreement, "Good
Reason" shall mean: (i) any failure by the Company to comply with any of the
provisions of Article 3 of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive; (ii) the Company's requiring the Executive to be based at any office
or location outside of Florida, except for travel reasonably required in the
performance of the Executive's responsibilities; or (ii) any purported
termination by the Company of the Executive's employment otherwise than for
Cause pursuant to Section 5.1, or by reason of the Executive's disability
pursuant to Section 5.2 of this Agreement, prior to the Expiration Date.
5.6 Change in Control of the Company.
(a) In the event that: (i) a Change in Control
(as defined in subsection (b) of this Section 5.6) in the Company shall occur
during the Term of Employment; and (ii) prior to twelve (12) months after the
date of the Change in Control, either (x) the Term of Employment is terminated
by the Company other than pursuant to any of Sections 5.1, 5.2, or 5.3, or (y)
the Executive terminates the Term of Employment for Good Reason pursuant to
Section 5.5(c) hereof, as defined in Section 5.5(d) hereof, the Company shall
pay to the Executive: (1) any unpaid Base Salary through the effective date of
termination; and (2) the same amount of monies that would have been payable by
the Company to the Executive under Section 5.4 of this Agreement if the
Executive's employment had been terminated by the Company without Cause. The
Company shall have no further liability under this Agreement other than for
reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however, to the Company's policy on reimbursements of
business expenses.
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(b) For purposes of this Agreement, the term
"Change in Control" shall mean:
(i) Approval by the Board, and shareholders of the Company if required
under applicable law, of: (1) a reorganization, merger, consolidation or other
form of corporate transaction or series of transactions, in each case, with
respect to which persons who were the shareholders of the Company immediately
prior to such reorganization, merger or consolidation or other transaction do
not, immediately thereafter, own 50% or more of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
merged or consolidated company's then outstanding voting securities, in
substantially the same proportions as their ownership immediately prior to such
reorganization, merger, consolidation or other transaction; (2) a liquidation
or dissolution of the Company; or (3) the sale of all or substantially all of
the assets of the Company (unless such reorganization, merger, consolidation or
other corporate transaction, liquidation, dissolution or sale is subsequently
abandoned);
(ii) Individuals who, as of the Commencement Date of this Agreement,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board, provided that any person becoming a director
subsequent to the Commencement Date of this Agreement whose election, or
nomination for election by the Company's shareholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
(other than an election or nomination of an individual whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of the Directors of the Company, as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange
Act) shall be, for purposes of this Agreement, considered as though such person
were a member of the Incumbent Board; or
(iii) The acquisition (other than from the Company) by any person, entity or
"group", within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act, of 50% or more of either the then outstanding shares of the
Company's Common Stock or the combined voting power of the Company's then
outstanding voting securities entitled to vote generally in the election of
directors (hereinafter referred to as the ownership of a "Controlling
Interest") excluding, for this purpose, any acquisitions by: (1) the Company or
its Subsidiaries; (2) any person, entity or "group" that as of the Commencement
Date of this Agreement owns beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Securities Exchange Act) of a Controlling Interest;
or (3) any employee benefit plan of the Company or its Subsidiaries.
(c) Notwithstanding the foregoing, the Stock
Purchase Agreement by and among the Company, Executive and Xxxxxxxx X. Xxxxx
and the consummation of the transaction contemplated therein shall not be
deemed a "Change of Control" under this Section 5.6.
5.7 Resignation. Upon any termination of the Term of
Employment pursuant to this Article 5, the Executive shall be deemed to have
resigned as an officer, and if he or she was then serving as a director of the
Company, as a director, and if required by the Board, the Executive hereby
agrees to immediately execute a resignation letter to the Board.
5.8 Survival. The provisions of this Article 5 shall
survive the termination of this Agreement, as applicable.
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6. RESTRICTIVE COVENANTS.
6.1 Confidential Information. The Executive hereby
acknowledges and agrees that in the course of his employment he will acquire
knowledge and will have access to information, whether in written, typed or
other form, regarding the business operations of the Company. Specifically, the
following types of information are deemed confidential ("Confidential
Information") and shall not be disclosed or used by the Executive except as
required and authorized in furtherance of the Company's business: specific
prospective customers of the Company; specific existing customers of the
Company; other individuals and businesses with whom the Company does business;
proprietary information; trade secrets, as defined in Section 688.002(4),
Florida Statute's; financial or corporate records; operational, sales,
promotional, and marketing methods and techniques; computer programs, including
source codes and/or object codes; and/or any other proprietary, competition
sensitive, or technical information or secrets developed with or without the
help of the Executive.
6.2 Nondisclosure. The Executive shall not, during the
term of his employment, or at any time thereafter, either directly or
indirectly, communicate, publish, disclose, divulge, or use, or authorize
anyone else to communicate, publish, disclose, divulge, or use, for the benefit
of himself or any other person, persons, partnership, association, corporation,
or other entity, any Confidential Information which may be communicated to the
Executive or of which the Executive may be apprised by virtue of his employment
with the Company. Any and all information, knowledge, know-how, and techniques
which the Company designates as confidential shall be deemed confidential for
purposes of this Agreement, except information which the Executive can
demonstrate came to his attention prior to disclosure thereof by the Company;
or which, at or after the time of disclosure by the Company to the Executive,
lawfully had become a part of the public domain through lawful publication or
communication by others.
6.3 Non-solicitation of Employees and Clients. The
Executive specifically acknowledges that he will have access to Confidential
Information, including, without limitation, prospective and existing customers
or customer lists of the Company. The Executive covenants and agrees that
during the term of this Agreement, and for a continuous uninterrupted period of
twelve (12) months, commencing upon the expiration or termination of the
Executive's relationship with the Company, except as otherwise approved in
writing by the Company, the Executive shall not, either directly or indirectly,
for himself, or through, on behalf of, or in conjunction with any person,
persons, partnership, association, corporation, or entity:
(a) Divert or attempt to divert or solicit any
prospective or existing customer of the Company to any competitor by direct or
indirect inducement or otherwise; or
(b) Employ or hire or seek to employ or hire
any person who is at that time working for the Company as an employee or
independent registered representative, any affiliate of the Company, or
otherwise directly or indirectly induce or solicit such person to leave his or
her employment.
6.4 Reasonably Necessary. The Company and the Executive
agree that the Confidential Information set forth in Section 6.1 and the
substantial relationships with the Company's specific prospective and existing
customers and vendors: (i) are valuable, special, and a unique asset of the
Company; (ii) have provided and will hereafter provide the Company with a
substantial competitive advantage in the operation of its business; and (iii)
are a legitimate business interest of the Company. The Company and the
Executive also agree that the existence of these legitimate business interests
justifies the need for the restrictive covenants set forth in this Article 6,
and the restrictive covenants are reasonably necessary to protect the Company's
legitimate business interests.
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6.5 Reasonable Restrictions. The Executive agrees and
acknowledges; (a) that the geographical and time limitations contained in this
Agreement are reasonable and properly required for the adequate protection of
the business interests of the Company; and (b) the restrictions contained in
this Article 6 (including without limitation the length of the term of the
provisions of this Article 6) are not overbroad, overlong, or unfair and are
not the result of overreaching, duress or coercion of any kind. The Executive
further acknowledges and confirms that his full, uninhibited and faithful
observance of each of the covenants contained in this Article 6 will not cause
him any undue hardship, financial or otherwise, and that enforcement of each of
the covenants contained herein will not impair his ability to obtain employment
commensurate with his abilities and on terms fully acceptable to him or
otherwise to obtain income required for the comfortable support of him and his
family and the satisfaction of the needs of his creditors. The Executive
acknowledges and confirms that his special knowledge of the Business of the
Company is such as would cause the Company serious injury or loss if he were to
use such ability and knowledge to the benefit of a competitor or was to compete
with the Company in violation of the terms of this Article 6. It is agreed by
the Executive that if any portion of the restrictions contained in this
Agreement are held to be unreasonable, arbitrary, or against public policy,
then the restriction shall be considered divisible, both as to the time and to
the geographical area, with each month of the specified period being deemed a
separate period of time, and each country or portion thereof of the specified
area being deemed a separate geographical area, so that the lesser period of
time or geographical area shall remain effective, so long as the same is not
unreasonable, arbitrary, or against public policy. The parties hereto agree
that in the event any court of competent jurisdiction determines the specified
period or the specified geographical area of the restricted territory to be
unreasonable, arbitrary, or against public policy, a lesser time period or
geographical area which is determined to be reasonable, non-arbitrary, and not
against public policy may be enforced against Executive.
6.6 Continuity of Restrictions. If the Executive shall
violate any of the terms or covenants contained herein, and if any court action
is instituted by the Company to prevent or enjoin such violation, then the
period of time during which the terms or covenants of this Agreement shall
apply, as provided in this Agreement, shall be lengthened by a period of time
equal to the period between the date of the initial breach of the terms or
covenants contained in this Agreement, whether or not the Company had knowledge
of the breach, and the date on which the decree of the court disposing of the
issues upon the merits shall become final and not subject to further appeal.
6.7 Books and Records. All notes, data, reference
material, sketches, drawings, memoranda, files, documents, specifications and
any records in any way relating to any of the Confidential Information or to
the Company's Business, whether prepared by the Executive or otherwise coming
into the Executive's possession, shall remain the exclusive property of the
Company and shall not be removed from the premises of the Company under any
circumstances whatsoever without the prior written consent of the Company. Upon
the request of the Company, or absent such request, upon the termination of the
Executive's employment with the Company for any reason, the Executive shall
immediately return the Company all such property, materials and any and all
copies thereof in the Executive's possession.
6.8 Definition of Company. Solely for purposes of this
Article 6, the term "Company" also shall include any existing or future
subsidiaries of the Company that are operating during the time periods
described herein and any other entities that directly or indirectly, through
one or more intermediaries, control, are controlled by or are under common
control with the Company during the periods described herein.
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6.9 Survival. The provisions of this Article 6 shall
survive the termination of this Agreement, as applicable.
7. REMEDIES.
7.1 Liquidated Damages. The Executive and the Company
hereby acknowledge and agree that, in the event of any breach by the Executive,
directly or indirectly, of the foregoing restrictive covenants under Article 6,
it will be difficult to ascertain the precise amount of damages that may be
suffered by the Company by reason of such breach; and accordingly, the parties
hereby agree that, as liquidated damages (and not as a penalty) in respect of
any such breach, the Executive shall be required to provide an accounting of
any and all benefits received or derived, either directly or indirectly, by the
Executive as a result of such breach, including, but not limited to, true and
correct financial records, or other data detailing the financial benefit the
Executive received or derived, directly or indirectly, from any and all
volatile acts or activities, and the Executive thereafter shall be required to
pay to the Company, as damages, cash amounts equal to any and all gross
revenues received or derived by the Executive, directly or indirectly, from any
and all volatile acts or activities. The parties hereby agree that the
foregoing constitutes a fair and reasonable estimate of the actual damages that
might be suffered by reason of any breach of any of the covenants contained in
Article 6 of this Agreement by the Executive, and the parties hereby agree to
such liquidated damages in lieu of any and all other measures of damages that
might be asserted in respect of any subject breach.
7.2 Injunction. The Executive agrees that a violation or
a breach of the terms, covenants, or provisions contained in this Agreement
would cause irreparable injury to the Company, and that the remedy at law for
any violation or breach would be inadequate and would be difficult to
ascertain, and therefore, in the event of the violation or breach, or
threatened violation or breach of any such terms, covenants, or provisions
contained in this Agreement, the Company shall have the independent right to
enjoin the Executive from any threatened or actual activities in violation
thereof. The Executive hereby consents and agrees that temporary and permanent
injunctive relief may be granted in any proceedings which might be brought to
enforce any such terms, covenants, or provisions without the necessity of proof
of actual damages or the posting of a bond. In the event the Company does apply
for such an injunction, the Executive shall not raise as a defense thereto that
the Company has an adequate remedy at law.
8. ASSIGNMENT. The Executive shall not have the right to assign
or delegate his rights or obligations hereunder, or any portion thereof, to any
other person. This Agreement, and the Company's rights and obligations
hereunder, shall inure to the benefit of and be binding upon the Company's
successors and assigns.
9. INDEPENDENT COVENANTS. The parties agree that each of the
covenants and provisions contained in this Agreement shall be deemed severable
and construed as independent of any other covenant or provision.
10. SEVERABILITY. If all or any portion of a covenant or
provision in this Agreement is held invalid, unreasonable or unenforceable by a
court or agency having valid jurisdiction in an unappealed final decision to
which the Company is a party, the remaining covenants and provisions shall
remain valid and enforceable. The Executive expressly agrees to be bound by any
lesser covenant or provision subsumed within the terms of such covenant or
provision that imposes the maximum duty permitted by law, as if the resulting
covenant or provision were separately stated in, and made a part of this
Agreement.
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11. ATTORNEYS' FEES. In the event of a dispute regarding, arising
out of, or in connection with the breach, enforcement, or interpretation of
this Agreement, including, without limitation, any action seeking declaratory
relief, equitable relief, injunctive relief, or damages, or any litigation or
cause of action, including, without limitation, any appeals, federal bankruptcy
proceedings, receivership or insolvency proceedings, reorganization, or other
proceedings, the prevailing party shall recover all costs and reasonable
attorneys' fees incurred in connection therewith, including without limitation
at the pre-trial, trial and appellate levels, and any costs of collection.
12. GOVERNING LAW. The validity, interpretation and enforcement
of this Agreement shall be governed by and construed in accordance with the
local laws of the State of Florida (without giving effect to its conflicts of
laws provisions), and to the exclusion of the law of any other forum, without
regard to the jurisdiction in which any action or special proceeding may be
instituted.
13. EXCLUSIVE JURISDICTION; VENUE. EACH PARTY HERETO AGREES TO
SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL
COURTS LOCATED IN PALM BEACH COUNTY, FLORIDA FOR RESOLUTION OF ALL DISPUTES
ARISING OUT OF, IN CONNECTION WITH, OR BY REASON OF THE INTERPRETATION,
CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR
DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM.
14. WAIVER OF JURY TRIAL. AS A MATERIAL INDUCEMENT FOR THIS
AGREEMENT, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY OF ANY ISSUES SO TRIABLE.
15. ENTIRE AGREEMENT. This Agreement contains and represents the
entire and complete understanding and agreement concerning and in reference to
the employment arrangement between the parties hereto. The parties hereto agree
that no prior statements, representations, promises, agreements, instructions,
or understandings, written or oral, pertaining to this Agreement, other than
those specifically set forth and stated herein, shall be of any force or
effect.
16. MODIFICATIONS AND AMENDMENTS. This Agreement may not be, and
shall not be construed to have been modified, amended, rescinded, canceled, or
waived, in whole or in part, except if done so in writing and executed by the
parties hereto.
17. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be personally delivered by courier,
sent by registered or certified mail, return receipt requested or sent by
confirmed facsimile transmission addressed as set forth herein. Notices
personally delivered, sent by facsimile or sent by overnight courier shall be
deemed given on the date of delivery and notices mailed in accordance with the
foregoing shall be deemed given upon the earlier of receipt by the addressee,
as evidenced by the return receipt thereof, or three (3) days after deposit in
the U.S. mail. Notice shall be sent: (a) if to the Company, addressed to 00
Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Chief Executive Officer;
and (b) if to the Executive, to his address as reflected on the payroll records
of the Company, or to such other address as either party hereto may from time
to time give notice of to the other.
18. BENEFITS; BINDING EFFECT. This Agreement shall be for the
benefit of and binding upon the parties hereto and their respective heirs,
personal representatives, legal representatives, successors
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and, where applicable, assigns, including, without limitation, any successor to
the Company, whether by merger, consolidation, sale of stock, sale of assets or
otherwise.
19. CONSTRUCTION. Each party to this Agreement had the
opportunity to consult with counsel of their choice and make comments
concerning the Agreement. No legal or other presumption against the party
drafting this Agreement concerning its construction, interpretation or
otherwise accrue to the benefit of any party to this Agreement and each party
expressly waives the right to assert such a presumption in any proceedings or
disputes connected with, arising out of, or involving this Agreement.
20. WAIVERS. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
21. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
22. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or give any
person other than the Company, the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and assigns, any
rights or remedies under or by reason of this Agreement.
23. COUNTERPARTS. This Agreement may be signed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO EMPLOYMENT AGREEMENT FOR XXXXXXX XXXXXX
IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the date first above written.
COMPANY:
SUMMIT BROKERAGE SERVICES, INC.,
A Florida Corporation
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------
Title: Chief Executive Officer
----------------------------
EXECUTIVE:
/s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------
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