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EMPLOYMENT AGREEMENT - EXECUTIVE
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the 30th
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day of April, 2001 by and between TRADERIGHT, Corp. d/b/a TRADERIGHT SECURITIES,
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a Florida corporation, with its principal office located at 0000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000-0000 (the "Company"), and Xxxx Xxxxxx, (the
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"Executive") whose address is 5521 Coach House Circle, Apartment C, Boca Raton,
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Xxxxxxx 00000.
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RECITALS
1. The Executive shall serve as President of the Company or such other
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position as the Board of Directors of the Company shall designate.
2. The Executive possesses intimate knowledge of the business and affairs of
the Company, its policies, technologies, methods and personnel.
3. The Board of Directors (the "Board") of the Company recognizes that the
Executive's contribution to the growth and success of the Company will be
substantial and desires to assure the Company of the Executive's continued
employment in an executive capacity and to compensate him therefor.
4. The Board has determined that this Agreement will reinforce and encourage
the Executive's attention and dedication to the Company.
5. The Executive is willing to make his services available to the
Company on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreement set forth herein, the parties hereby agree as follows:
1. EMPLOYMENT.
1.1 Employment and Term. The Executive shall continue to serve the Company,
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on the terms and conditions set forth herein, for the period (the "Term")
effective as of the date of the NASD approval of the acquisition of the Company
by Tradeology Securities, LLC. (the "Commencement Date") and expiring on the
anniversary of the Commencement Date, unless sooner terminated as hereinafter
set forth; provided, however, that the Term of this Agreement shall
automatically be extended from year to year under the same terms and conditions
as set forth herein unless the Company or the Executive gives thirty (30) days
prior written notice to the other of its or his intention to terminate this
Agreement. If Tradeology Securities LLC's agreement to purchase Company is not
approved, then this Agreement may be cancelled at the discretion of the Company.
1.2 Duties of Executive. The Executive shall perform the duties of
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President and, commensurate with such position, shall diligently perform all
services as may be reasonably designated by the Board (and as set forth on the
attached supplement "B" of the Company's written supervisory procedures),
including, but not limited to serving as an officer or director of any
subsidiary or affiliate company; and shall exercise such power and authority as
is necessary and customary to the performance of such duties and services. The
Executive shall report to the Chairman of the Board of the Company. The
Executive will devote his entire time, attention and energies to the Company's
business. During his employment, the Executive will not engage in any other
business activities, regardless of whether such activity is pursued for profits,
gains, or other pecuniary advantage. However, nothing in this Agreement
shall prevent the Executive from passively investing in business activities so
long as such investments require no active participation by the Executive.
2. COMPENSATION.
2.1 Base Salary. During the Term and any extension of the Term pursuant to
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paragraph 1.1, the Executive shall receive a base salary at the annual rate of
$84,000.00 (eighty four thousand dollars) (the "Base Salary"). The Base Salary
shall be payable in substantially equal installments consistent with the
Company's normal payroll schedule, subject to applicable withholding and other
taxes. Notwithstanding the above, at the discretion of the Board of Directors of
the Company, the Base Salary may be increased, but shall not be decreased.
Salary review occurs annually in the month of December.
3. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
3.1 Expense Reimbursement. During the Term, the Company, upon the
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submission of supporting documentation by the Executive, and in accordance with
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Company policies for its executives, shall reimburse the Executive for all
expenses actually paid or incurred by the Executive in the course of and
pursuant to the business of the Company, including expenses for travel,
entertainment, computer allowance, and such other expenses as are approved by
the Company in writing.
3.2 Other Benefits. The company's benefit package is enumerated in the
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Tradeology Employee Handbook. Such benefits are extended to salaried employees
of Traderight Securities as noted therein. Such benefits include, but are not
limited to, Health and hospitalization insurance, vacation and personal time,
sick days and holiday time. Executive is entitled to a benefit package
identical to that of all salaried employees.
3.3 Working Facilities. The Company shall furnish the Executive with office
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space, and such other facilities and services suitable to his position and
adequate for the performance of his duties hereunder.
4. TERMINATION.
4.1 Termination for Cause. Notwithstanding anything contained in this
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Agreement to the contrary, this Agreement may be terminated by the Company for
Cause. As used in this Agreement "Cause" shall only mean: (i) subject to the
following sentences, any action or omission of the Executive which constitutes a
willful and material breach of this Agreement or the policies and
procedures of the Company, which is not cured or as to which diligent attempts
to cure have not commenced within 20 business days after receipt by Executive of
notice of same, (ii) fraud, embezzlement or misappropriation as against the
Company, (iii) the conviction (from which no appeal can be taken) of Executive
for any criminal act which is a misdemeanor or felony, (iv) any act or failure
to act that constitutes a violation of any federal or state securities laws or
the rules and regulations of the National Association of Securities Dealers,
Inc., ("NASD") or state regulatory agencies, or (v) the suspension or revocation
of securities licenses required for the performance of the Executive duties
hereunder, which are a series 7, 24, 27, 55, and 63. Upon any determination by
the Board that Cause exists under clause (i) of the preceding sentence, the
Company shall cause a special meeting of the Board to be called and held at a
time mutually convenient to the Board and Executive, but in no event later than
10 business days after Executive's receipt of the notice contemplated by clause
(i). Executive shall have the right to appear before such special meeting of
the Board with legal counsel of his choosing to refute any determination of
Cause specified in such notice, and any termination of Executive's employment by
reason of such Cause determination shall not be effective until Executive is
afforded such opportunity to appear. The Company shall have no further liability
hereunder (other than for reimbursement for reasonable business expenses
incurred prior to the date of termination, subject, however to the provisions of
Paragraph 3.1 hereof). If Executive is terminated without cause, Company agrees
to pay Executive four weeks severance salary.
4.2 Disability. Notwithstanding anything to the contrary contained in this
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Agreement if, during the term hereof the Executive suffers a disability (as
defined below) the Company shall, subject to the provisions of Paragraph 4.3
hereof, continue to pay Executive the compensation and benefits provided in
Paragraphs 2.1 and 3.2 hereof during the period of his disability; provided,
however, that, in the event Executive is disabled for a period of more than 90
days in any 12 month period (the "Disability Period"), the Company may, at its
election, terminate this agreement with 15 days notice to the Executive. In the
event of such termination, (a) payment of the Executive's Base Salary at
the rate prevailing on the date of termination of the Executive and benefits (to
the extent permissible by applicable law) shall be continued for a period of 30
days after such termination. As used in this Agreement, the term "disability"
shall mean the inability of Executive to perform his duties under this Agreement
as determined by an independent physician selected with the approval of the
Company. Except as provided above, the Company shall have no further liability
hereunder (other than for reimbursement for reasonable business expenses
incurred prior to the date of termination).
4.3 Death. In the event of the death of Executive during the Term of this
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Agreement, the Company shall pay to Executive's legal representative any unpaid
Base Salary and bonus accrued through the date of his death.
5. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations shall be
reduced by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others.
6. RESTRICTIVE COVENANTS.
6.1 Agreement Not to Use or Disclose Confidential/Proprietary
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Information. During the Term and thereafter, the Executive promises and agrees
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that he will not disclose or utilize any confidential or proprietary information
acquired during the course of service with the Company and/or its related
business entities. The Executive shall not divulge, communicate, use to the
detriment of the Company or for the benefit of any other person or persons, or
misuse in any way, any confidential or proprietary information pertaining to the
business of the Company. Any confidential or proprietary information or data
now or hereafter acquired by the Executive with respect to the business of the
Company (which shall include, but not be limited to, information concerning the
Company's financial condition, prospects, technology, clients (including client
lists), suppliers, methods of doing business and promotion of the Company's
products and services) shall be deemed a valuable, special and unique asset of
the Company that is received by the Executive in confidence and as a fiduciary.
For purposes of this Agreement "Confidential and Proprietary Information" means
information disclosed to the Executive as a consequence of or through his
employment by the Company (including information conceived, originated,
discovered or developed by the Executive) prior to or after the date hereof and
not generally known or in the public domain, about the Company or its business.
This paragraph 6.1 is effective regardless of the reason for the termination of
the Agreement and regardless of whether the Agreement is terminated by the
Executive, the Company or by its own terms. This restrictive covenant may be
assigned to and enforced by any of the Company's assignees or successors.
6.2 Nonsolicitation of Employees. During the Term and for a
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period of one year thereafter, Executive shall not directly or indirectly, for
himself or for any other person, firm, corporation, partnership, association or
other entity, attempt to employ or enter into any contractual arrangement with
any employee or former employee of the Company.
6.3 Books and Records. All books, records, accounts and similar
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repositories of Confidential and Proprietary Information of the Company, whether
prepared by the Executive or otherwise coming into the Executive's possession,
shall be the exclusive property of the Company and shall be returned immediately
to the Company on termination of this Agree-ment or on the Board's request at
any time.
7. INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Executive of any of the covenants contained in
Paragraph 6 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Paragraph 6 of this Agreement by the Executive or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
8. CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this Agreement
shall preclude the Company from consolidating or merging into or with, or
transferring all or substantially all of its assets to, another corporation
that, in its discretion, assumes this Agreement and all obligations of the
Company hereunder, in writing. Upon such consolidation, merger, or transfer of
assets and assumption, the term "the Company" as used herein, shall mean such
other corporation and this Agreement shall continue in full force and effect.
9. BINDING EFFECT. Except as herein otherwise provided, this Agreement
shall inure to the benefit of and shall be binding upon the parties hereto,
their personal representatives, successors, heirs and assigns.
10. TERMINOLOGY. All personal pronouns used in this Agreement, whether
used in the masculine, feminine or neuter gender, shall include all other
genders; the singular shall include the plural and vice versa. Titles of
paragraphs are for convenience only, and neither limit nor amplify the
provisions of the Agreement itself.
11. FURTHER ASSURANCES. At any time, and from time to time, each party
will take such action as may be reasonably requested by the other party to carry
out the intent and purposes of this Agreement.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. It
supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
13. AMENDMENT. This Agreement may not be amended, supplemented or
modified in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of any such amendment, supplement or
modification is sought.
14. ASSIGNMENT. This Agreement may not be assigned by any party hereto
without the prior written consent of the other party and except as provided in
Paragraph 8 hereof.
15. CHOICE OF LAW. This Agreement will be interpreted, construed and
enforced in accordance with the laws of the State of Florida, without giving
effect to the application of the principles pertaining to conflicts of laws.
16. EFFECT OF WAIVER. The failure of any party at any time or times to
require performance of any provision of this Agreement will in no manner affect
the right to enforce the same. The waiver by any party of any breach of any
provision of this Agreement will not be construed to be a waiver by any such
party of any succeeding breach of that provision or a waiver by such party of
any breach of any other provision.
17. CONSTRUCTION. The parties hereto and their respective legal
counsel participated in the preparation of this Agreement; therefore, this
Agreement shall be construed neither against nor in favor of any of the parties
hereto, but rather in accordance with the fair meaning thereof.
18. SEVERABILITY. The invalidity, illegality or unenforceability of
any provision or provisions of this Agreement will not affect any other
provision of this Agreement, which will remain in full force and effect, nor
will the invalidity, illegality or unenforceability of a portion of any
provision of this Agreement affect the balance of such provision. In the event
that any one or more of the provisions contained in this Agreement or any
portion thereof shall for any reason be held to be invalid, illegal or
unenforceable in any respect, this Agreement shall be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision had never been
contained herein.
19. ENFORCEMENT. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. Any suit, action or proceeding with
respect to this Agreement shall be submitted to arbitration under the auspices
of the NASD in Broward County, Florida.
Further, the prevailing party shall be entitled to recover all costs,
including reasonable attorney's fees, in connection with any suit brought
hereunder.
20. SURVIVAL. All covenants, agreement, representations and warranties made
herein or otherwise made in writing by any party pursuant hereto shall survive
the execution and delivery of this Agreement and the termination of the
employment of the Executive.
21. NO THIRD-PARTY BENEFICIARIES. No person shall be deemed to possess
any third-party beneficiary right pursuant to this Agreement. It is the intent
of the parties hereto that no direct benefit to any third party is intended or
implied by the execution of this Agreement.
22. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original.
23. NOTICE. Any notice required or permitted to be delivered hereunder
shall be deemed to be delivered when sent by facsimile with receipt confirmed or
when deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, or by overnight courier, addressed to
the parties at the addresses first stated herein, or to such other address as
either party hereto shall from time to time designate to the other party by
notice in writing as provided herein.
IN WITNESS WHEREOF, this Agreement has been duly signed by the parties hereto on
the day and year first above written.
TRADERIGHT, CORP.
By:
Jygnesh X. Xxxxx, C.E.O
By:
Xxxx Xxxxxx
