EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement, dated this 1st day of December, 2000, is
between DAC Technologies Group International, Inc., a Florida corporation (the
"Company"), and Xxxxx X. Xxxxxxx ("Employee").
WITNESSETH:
WHEREAS, the Company desires to employ Employee and to ensure the
continued availability to the Company of the Employee's services, and the
Employee is willing to accept such employment and render such services, all upon
and subject to the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
set forth in this Agreement, and intending to be legally bound, the Company and
the Employee agree as follows:
1. Term of Employment.
(a.) Term. The Company hereby employs the Employee, and the Employee hereby
accepts employment with the Company" for a five (5) year period commencing on
the date of this Agreement (the "Stated Term"). Thereafter unless Employee has
been terminated in accordance with Paragraph 5 below, the Agreement shall be
renewable for an additional five year period, under the same terms and
conditions contained herein, at the option of Employee. Exercise of said option
shall be in writing no less than 90 days prior to the expiration of the original
five year period.
(b) Continuing Effect. Notwithstanding any termination of this Agreement at the
end of the Stated Term or any option period, the provisions of Sections 6 and 7
shall remain in full force and effect.
2. Duties.
(a) General Duties. The Employee shall serve as Chairman and Chief Executive
Officer of the Company, with duties and responsibilities that are customary for
such Employee under Florida Law or other laws, and rules and regulations to
which the Company may be subject including its own internal rules. The precise
duties may be extended or curtailed at the discretion of Employer either orally
or in writing. Employee recognizes that the Company is regulated by the federal
and state governments, including the United States Securities and Exchange
Commission and the National Association of Securities Dealers. The Employee
shall maintain all necessary licenses and skills for the rendering of said
services required of him by the Company and the regulatory authorities. Should
sales revenues, commissions, or other forms of compensation be generated from
Employee's activities, they shall be paid directly to the Company and not to
Employee.
The Employee will use his best efforts to perform his duties and discharge his
responsibilities pursuant to this Agreement competently, carefully, and
faithfully.
(b) Devotion of Time. The Employee will devote his full time, attention, and
energies during normal business hours (exclusive of periods of sickness and
disability and of such normal holiday and vacation periods as have been
established by the Company) to the affairs of the Company which he believes to
be reasonably necessary to effectuate the Company's goals. Any outside
employment activities must be approved in advance by the Company.
(c) Location. The Employee will perform his services at the Company offices
located in the Fort Lauderdale, Florida area, or at such other location or
locations as the Company may expand into.
3. Compensation and Expenses.
(a) Salary. For services of the Employee to be rendered under this Agreement,
the Company will pay the Employee an annual base salary of $120,000 per annum
during the first year of this Agreement. For each subsequent year, Employee
shall receive a 10% increase in base salary, assuming that the Company is
profitable. The Company will pay the Employee his annual salary in equal
installments no less frequently than semi-monthly. Bonuses or other benefits may
also be awarded at the Company's discretion.
(b) Expenses. In addition to any compensation received pursuant to Section 3(a),
the Company will reimburse or advance funds to the Employee for any reasonable
travel, entertainment, and miscellaneous expenses incurred in connection with
the performance of his duties under this Agreement. Such reimbursement or
advances will be made in accordance with the policies and procedures of the
Company in effect from time to time relating to reimbursement of or advances to
Employee.
4. Benefits.
(a) Vacation. Employee shall be entitled to three weeks paid vacation in each
calendar year during the term of this Agreement.
(b) Medical. Employee shall receive at no cost to Employee, medical and dental
insurance for Employee and any eligible dependents under any such plans that the
Company has in effect.
(c) Stock Options. The Company has established an Employee Non-Qualified Stock
Option Plan ("Stock Option Plan"). Employee shall be granted options to purchase
a minimum of 35,000 shares of the Company's stock during each year of this
Agreement. Said options shall be granted every six months, in the amount of
17,500 shares each, under such terms and conditions as established by the
Company's Stock Option Plan. The Company may, at its discretion, award
additional options to Employee in excess of 35,000 per year.
5. Termination.
(a) Termination Without Cause - by the Company. The Company may not terminate
this Agreement without cause,
(b) Termination Without Cause - by the Employee. The Employee may terminate this
Agreement at any time upon 30 days advance written notice to the Company.
Employee agrees to perform all duties up to the date of termination. In the
event that a competent replacement can not be found by the Company during the 30
day notice period, Employee agrees to extend the notice period and continue to
perform his duties until such replacement can be obtained, but in no
circumstance will Employee be required to extend the notice period more than an
additional
60 days. Should Employee elect to terminate this Agreement under the terms of
this paragraph, the Company will discontinue payment of benefits as provided in
Section 4, except that, any stock options already granted will remain in force
under the terms and conditions for which they were originally granted.
(c) Termination for Cause. The Company may terminate the Employee's employment
pursuant to the terms of this Agreement at any time for cause by giving written
notice of termination, detailing the exact conditions it believes exist that
allow for such termination. Such termination will become effective upon the
giving of such notice. Upon any such termination for cause, the Employee shall
cease to receive compensation, bonus, or reimbursement under Section 3 and
Section 4. For purposes of this Section 5(c), "cause" shall mean: (i) the
Employee is convicted of a felony; (ii) the Employee misappropriates Company
funds or otherwise defrauds the Company; (iii) the Employee materially breaches
any provision of Section 6 or Section 7; (iv) the Employee fails to abide by the
rules and regulations which regulate the Company's business.
(d) Death or Disability. This Agreement and the obligations of the Company
hereunder will terminate upon the death or disability of the Employee. For
purposes of this Section 5(d), "disability" shall mean that Employee is
incapable of substantially fulfilling the duties set forth in Section 2 because
of physical, mental, or emotional incapacity resulting from injury, sickness, or
disease. Upon any such termination upon death or disability) the Company will
pay the Employee or his legal representative, as the case may be, his annual
salary at such time pursuant to Section 3(a) through the date of such
termination of employment. Any stock options granted to Employee shall remain in
effect under the terms and conditions as provided by the Stock Option Plan.
(e) Continuing Effect. Notwithstanding any termination of the Employee's
employment as provided in this Section 5, the provisions of Sections 6 and 7
shall remain in full force and effect.
6. Noncompetition Agreement.
(a) Competition with the Company, During (i) the period in which the Employee is
being paid by the Company pursuant to Section 3 or 5 and (ii) for a period of
twelve (12) months, commencing on the date of termination of the period referred
to clause (i) the Employee, directly or indirectly, in association with or as a
stockholder, director, officer, consultant, employee, partner, joint venturer,
member or otherwise of or through any person, firm, corporation, partnership,
association or other entity, will not provide his services similar to those
provided for the Section 2(a) to any competitor of the Company, or engage in any
business activity in direct competition with the Company ("Prohibited
Business"). The foregoing shall not prohibit Employee from owning 5% of the
securities of any publicly traded enterprise or prohibit Employee from providing
his services to any entity not engaged in business activities similar to the
Company.
(b) Solicitation of Clients and Customers. Employee recognizes and acknowledges
that the clients and customers of the Company were developed over many years and
are a result of the expenditure by the Company of enormous resources including
time and money. This being so, Employee, directly or indirectly, will not
solicit, service or contact any client or customer (as defined below) on behalf
of any enterprise or business other than the Company, for the purpose of seeking
or obtaining Prohibited Business from such client or customer, or referring
Prohibited Business from any client or: customer to any enterprise or business
other than the Company or be
paid commissions based on sales relating to the Prohibited Business received
from any customer by any enterprise or business other than the Company. For
purposes of this Section 6(b), the term "client" or "customer" means any person,
firm, corporation, partnership, association or other entity to which the Company
has sold or provided goods or services. The term "client" or "customer" shall
also include "prospects" with whom the Company was negotiating the sale of its
goods or services during the period of Employee's employment.
(c) No Payment. The Employee acknowledges and agrees that no separate or
additional payment will be required to be made to rum in consideration of his
undertakings in this Section 6.
7. Nondisclosure of Confidential Proprietary and/or Trade Secret Information.
Employee acknowledges that during his employment he will learn and will have
access to confidential, proprietary and/or trade secret information regarding
the Company and its affiliates, including without limitation (i) confidential or
secret plans, programs, documents, agreements, services or activities of the
Company and (ii) trade secrets, market reports, customer investigations,
customer and client lists and other similar information that is proprietary
information of the Company (collectively referred to as "confidential
information").
Employee acknowledges that such confidential information as is acquired and used
by the Company is a special, valuable, and unique asset. All records, files,
materials, and confidential information obtained by the Employee in the course
of his employment with the Company are confidential and proprietary and shall
remain the exclusive property of the Company. The Employee will not, except in
connection with and as required by his performance of his duties under this
Agreement, for any reason use for his own benefit or the benefit of any person
or entity with which he may be associated or disclose any such confidential
information to any person, firm, corporation, association or other entity for
any reason or purpose whatsoever without the prior written consent of the
Company, unless such confidential information previously shall have become
public knowledge through no action by or omission of the Employee. For a period
of ten years following termination, Employee shall not disclose any
confidential, proprietary, or trade secret information without the prior written
consent of the Company.
8. Assignability. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company. The Employee's rights and obligations hereunder may not
be assigned or alienated and any attempt to do so by the Employee will be void.
9. Separability.
(a) The Employee expressly agrees that the character, duration and geographical
scope of the provisions set forth in this Agreement are reasonable in .tight of
the circumstances as they exist on the date hereof. Should a decision, however,
be made at a later date by a panel of arbitrators or court of competent
jurisdiction that the character, duration or geographical scope of such
provisions is unreasonable, then it is the intention and the agreement of the
Employee and the Company that this Agreement shall be construed by the court or
arbitration panel in such manner as to impose only those restrictions on the
Employee's conduct that are reasonable in the light of the circumstances and as
are necessary to assure to the Company the benefits of this Agreement.
If, any court or arbitration shall refuse to enforce all of the separate
covenants deemed included herein because taken together they are more extensive
than necessary to assure to the Company
the intended benefits of this Agreement, it is expressly understood and agreed
by the parties hereto that the provisions of this Agreement that, if eliminated,
would permit the remaining separate provisions to be enforced in such proceeding
shall be deemed eliminated, for the purposes of such proceeding, from this
Agreement.
(b) If any provision of this Agreement is deemed to be invalid or unenforceable
or is prohibited by the laws of the state or jurisdiction where it is to be
performed, this Agreement shall be considered divisible as to such provision and
such provision shall be inoperative in such state or jurisdiction and shall not
'be part of the consideration moving from either of the parties to the other.
The remaining provisions of this Agreement shall be valid and binding and of
like effect as though such provision were not included
10. Notice. Notices given pursuant to the provisions of this Agreement shall
be sent certified mail, postage prepaid, or by overnight courier, or by
facsimile or otherwise to the following addresses:
(a) To the Employee: Xxxxx X. Xxxxxxx
0000 X. Xxxxx Xxxx.
Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
(b) To the Company: DAC Technologies Group International, Inc.
0000 Xxxxxxxx Xxxxx #0X
Xxxxxx Xxxx, XX 00000
(c) With a Copy to: Xxxxx X. Xxxxxx,
Esq. 0000 Xxxx Xxxxxxx Xxxx Xxxx.
Xx. Xxxxxxxxxx, XX 00000
Any party may from time to time designate any other address to which any such
notice to it or him shall be sent. Any such notice shall be deemed to have been
delivered upon receipt as hereinbefore provided.
11. Arbitration. Any dispute or controversy arising out of this Agreement
shall be determined in arbitration to the Commercial Rules of the American
Arbitration Association except that if the Company seeks immediate injunctive
relief to enforce the provision of paragraphs 6 or 7 it may do so in any court
of competent jurisdiction. The venue for such arbitration or court proceeding
shall be in Palm Beach County, Florida.
12. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal, substantive laws of the State of Florida without
giving effect to the conflict of laws rules thereof.
(b) Waiver, Amendment. The waiver by any party to this Agreement or breach of
any provision hereof by any other party shall not be construed as a waiver of
any subsequent breach by any party. No provision of this Agreement may be
terminated, amended, supplemented,
waived, or modified other than by all instruments in writing signed by the party
against whom enforcement of the termination, amendment, supplement, waiver, or
modification is sought.
(c) Counterparts. This Agreement may be executed in counterparts, all of which
together shall constitute one and the same instrument.
(e) Attorney Fees. In event of suit brought by either party to enforce the terms
of this Agreement, attorney's fees and costs (through appeal) shall be awarded
to the prevailing party.
IN .WITNESS WHEREOF, the Company and the Employee have executed this Agreement
as of the date and year first written above.
DAC TECHNOLOGIES GROUP INTERNATIONAL, INC.
/s/ Xxxxx X. Xxxxxxx, Director
/s/ Xxx Xxxxxxx, Director
/s/ Xxxxx X. Xxxxxxx
