EXHIBIT 10.29
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of January 5, 2001 by and between
XXXXXXXX.XXX, INC., a Delaware corporation (the "Company"), and Xxxxxxx Xxxxxxx
("Employee").
WITNESSETH:
WHEREAS, Employee wishes to be employed by the Company with the duties
and responsibilities as hereinafter described, and the Company desires to assure
itself of the availability of Employee's services in such capacity.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Company and Employee hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Employee, and
Employee hereby agrees to serve the Company, upon the terms and conditions
hereinafter set forth.
2. TERM. The employment of Employee by the Company pursuant to this
Agreement shall be for a three (3) year period commencing on the date hereof and
shall automatically be extended for an additional one year period on the first
year anniversary date of this Agreement (January 5, 2002) and each anniversary
date thereafter (January 5 of each year beginning in 2003) unless the Company
has provided notice of non-renewal thirty (30) days prior an anniversary date as
directed by a majority vote of the Board of Directors (the "Term"). For example,
in the event the Company has provided notice of non-renewal 30 days prior to
January 5, 2002, there will be only two (2) years remaining in the Term; in the
event the Company did not provide such notice thirty (30) days prior to January
5, 2002, then the Term shall be extended to January 5, 2005 so that on January
5, 2002, the total Term is three (3) years; in no event following such notice by
the Company will the remaining Term be less than two (2) years.
3. DUTIES. Employee shall, subject to overall direction consistent with
the legal authority of the Board of Directors of the Company (the "Board"),
serve as, and have all power and authority inherent in the offices of Chairman
of the Board of Directors and Chief Operating Officer of the Company and shall
be responsible for those areas in the conduct of the business reasonably
assigned to him by the Board of Directors. Employee shall devote substantially
all his business time and efforts to the business of the Company; provided,
however, that it is understood and agreed that, while Employee may devote time
to other business matters in which he has an interest, in the event of a
conflict, Employee's first and primary responsibility shall be to the
performance of his duties for the Company.
4. COMPENSATION AND OTHER PROVISIONS. Employee shall be entitled to the
compensation and benefits hereinafter described in subparagraphs (a) through (e)
(such compensation and benefits being hereinafter referred to as "Compensation
Benefits"). 1.
(a) BASE SALARY. The Company shall pay to Employee an initial base
salary of $157,500 per annum for the first year of this Agreement and shall
increase 5% percent (5%) per annum beginning one year from the date of this
Agreement and each year thereafter ("Base Salary"). The Base Salary and
Employee's other compensation will be reviewed by the Board at least annually
and may be increased (but not decreased) from time to time as the Board may
determine.
(b) PARTICIPATION IN BENEFIT PLANS. During the Term, Employee shall
be eligible to participate in all employee benefit plans and arrangements now in
effect or which may hereafter be established, including, without limitation, all
life, group insurance and medical care plans and all disability, retirement and
other employee benefit plans of the Company. Should the employee not want to
participate in the Company's health plan, with Board approval, the company will
reimburse the employee for the expense incurred in participating in another
plan. Additionally, Employee shall be added as an insured to any director and
officer insurance policy which that the Company hereafter procures.
(c) OTHER PROVISIONS. Employee shall be entitled to four (4) weeks
paid vacation per annum and shall receive an automobile allowance of $1,000 per
month and shall increase five percent (5%) per annum beginning one year from the
date of this Agreement and each year thereafter. Employee shall be reimbursed
for all reasonable expenses incurred by him in the performance of his duties,
including, but not limited to, cellular telephone, entertainment, travel and
other expenses deemed reasonably necessary by the Board of Directors .
(d) DISCRETIONARY BONUSES. Employee shall be entitled to receive
annual and/or interim cash bonuses and/or other bonuses when and in such amounts
as may be determined by the Board in its sole and reasonable discretion based
upon Employee's performance, the Company's performance and/or other factors;
provided, that, the Board shall meet at least annually to review Employee's
bonus entitlements.
(e) INCENTIVE COMPENSATION. Employee shall receive quarterly
incentive compensation payments as more fully described on Schedule A attached
hereto. Notwithstanding the foregoing, subject to the mutual written agreement
of Employee and the Company, Employee may receive lesser compensation payments
than those described on Schedule A with respect to one or more specified
operating divisions, units or subsidiaries, as the case may be, for specified
periods of time, as mutually agreed to in writing between Employee and the
Company.
(f) STOCK OPTIONS. If on July 6, 2001 the Employee has not
voluntarily terminated his employment with the Company, the Company and Employee
shall enter into the Stock Option Agreement attached hereto as Exhibit B
pursuant to which the Company shall grant to Employee certain options to
purchase common stock of the Company upon such terms and conditions set forth
therein.
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5. SEVERANCE AND CHANGE OF CONTROL PROVISIONS. Upon the occurrence of a
Triggering Event (as hereinafter defined), Employee shall be entitled to the
immediate receipt of Severance Payments and Benefits (as hereinafter defined)
from the Company in accordance with the terms hereinafter set forth:
(a) TRIGGERING EVENT. The occurrence of any of the following events
shall be defined as a "Triggering Event" for purposes hereof:
(1) The Company's termination of Employee's employment (other
than for Cause (as hereinafter defined)) at any time prior to the expiration of
the Term or within two (2) years following a Change of Control (as hereinafter
defined);
(2) The voluntary resignation of Employee for any reason
whatsoever within ninety (90) days following a Change of Control; or
(3) The voluntary resignation of Employee for "good reason,"
which for purposes hereof shall include, without limitation, (i) a demotion,
(ii) a reduction in salary, benefits, bonuses, incentives or perquisites, or
(iii) the relocation of the principal office of the Company or the relocation of
Employee outside of Broward or Palm Beach Counties in Florida.
(4) The death or Disability of the Employee (as defined herein).
(b) CHANGE OF CONTROL. For purposes of this Agreement, the term
"Change of Control" shall mean the occurrence of any of the following events:
(1) Twenty percent (20%) or more of the Company's voting stock
shall be acquired by any person (other than Employee), entity or affiliated
group;
(2) An unapproved change to the majority control of the
Company's Board of Directors;
(3) Any merger, consolidation or business combination pursuant
to which the Company is not the surviving corporation or twenty percent (20%) or
more of the Company's voting stock shall be owned or controlled by any person
(other than Employee), entity or affiliated group;
(4) A liquidation or dissolution of the Company; or
(5) The sale of all or substantially all of the Company's
assets.
(c) SEVERANCE PAYMENTS AND BENEFITS. For purposes of this Agreement,
the term "Severance Payments and Benefits" shall mean:
(1) Employee shall receive a lump sum payment equal to: two (2)
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multiplied by the sum of Employee's highest annual Base Salary plus the highest
bonus, incentive and other compensation payments received by Employee in respect
of any year within the three (3) year period preceding the Triggering Event (or
the annualized sum of Employee's Base Salary plus the maximum amount of bonuses
and incentives which Employee could have been entitled during the year in which
the Triggering Event occurred);
(2) All stock options, warrants, other stock appreciation rights
and other similar securities shall become immediately and fully vested and all
conditions applicable to all contingently issued options, warrants, stock
appreciation rights and other similar securities shall be deemed waived by the
Company;
(3) All benefits applicable to Employee and his family members
as described in Sections 5(a) and (b) of the Agreement shall continue for a
period of two (2) years following the Triggering Event or through the expiration
of the Term (as if the Triggering Event had not occurred), whichever is later;
(4) In the event that Severance Payments and Benefits are deemed
to be "excess parachute payments" as defined under Section 280G of the Internal
Revenue Code, then the Company shall pay to Employee an additional lump sum cash
payment as shall be necessary to provide Employee with the same "after-tax"
compensation and benefits as if no such excise tax had been imposed.
(5) The Company shall pay as and when due any and all attorneys'
fees and costs that Employee may incur in connection with the enforcement of his
rights under this Agreement or any dispute or settlement in connection herewith;
(6) Severance Payments and Benefits will not be subject to
mitigation in any respect; and
(7) The non-competition and non-solicitation periods described
in Section 13 of this Agreement shall be reduced from one (1) year to three (3)
months (other than by virtue of the expiration of the Term of this Agreement).
(d) STOCK OPTIONS, WARRANTS AND STOCK APPRECIATION RIGHTS.
Notwithstanding the foregoing, all stock options, warrants, stock appreciation
rights and other similar securities shall immediately vest upon the occurrence
of a Change of Control and at such time all conditions applicable to
contingently issued options, warrants, stock appreciation rights and other
securities shall be deemed waived by the Company.
6. TERMINATION. Employee's employment hereunder shall terminate as a
result of any of the following events:
(a) Employee's death;
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(b) Employee shall be unable to perform his duties hereunder by
reason of illness, accident or other physical or mental disability for a
continuous period of at least nine months or an aggregate of twelve months
during any continuous eighteen month period ("Disability");
(c) voluntary termination by Employee; or
(d) for Cause, where "Cause" shall mean: (i) final non-appealable
adjudication of Employee of a felony; or (ii) the unanimous determination of the
entire Board (other than Employee) that Employee has engaged in material
intentional misconduct or the gross neglect of his duties, which has a
continuing material adverse effect on the business of the Company.
Any termination pursuant to subparagraph (b), (c) or (d) of this
Section shall be communicated by a written notice ("Notice of Termination"),
such notice to set forth with specificity the grounds for termination if the
result of "Cause". Employee's employment under this Agreement shall be deemed to
have terminated as follows: (i) if Employee's employment is terminated pursuant
to subparagraph (a) above, on the date of his death; (ii) if Employee's
employment is terminated pursuant to subparagraph (b) or (d) above, on the date
on which Notice of Termination is given; and (iii) if Employee's employment is
terminated pursuant to subparagraph (c) above, thirty (30) days after the date
on which a Notice of Termination is given. The date on which termination is
deemed to have occurred pursuant to this paragraph is hereinafter referred to as
the "Date of Termination".
7. PAYMENTS ON TERMINATION. In the event that Employee's employment is
terminated pursuant to Section 6 above, the Company shall pay to Employee his
full Base Salary through the Date of Termination together with all incentive
compensation, benefits and other compensation, if any, due and owing as of that
date, plus any Severance and Benefit Payments to which Employee may be entitled
hereunder.
8. BOARD OF DIRECTORS. The Company shall cause Employee to be
nominated as a member of the Board of Directors of the Company and each of its
subsidiaries at all times during the Term. Employee shall agree to faithfully
serve the Company as a member of all such Boards upon election.
9. LIFE INSURANCE. If requested by the Company, Employee shall submit
to such physical examinations and otherwise take such actions and execute and
deliver such documents as may be reasonably necessary to enable the Company to
obtain life insurance on the life of Employee for the benefit of the Company.
10. REPRESENTATIONS AND WARRANTIES. Employee represents and warrants to
the Company that he is under no contractual or other restriction or obligation
that would prevent the performance of his duties hereunder or interfere with the
rights of the Company hereunder.
11. DISCLOSURE AND PROTECTION OF CONFIDENTIAL INFORMATION.
(a) For purposes of this Agreement, "Confidential Information"
means
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knowledge, information and material which is proprietary to the Company, of
which Employee may obtain knowledge or access through or as a result of his
employment by the Company (including information conceived, originated,
discovered or developed in whole or in part by Employee). Confidential
Information includes, but is not limited to, (i) technical knowledge,
information and material such as trade secrets, processes, formulas, data,
know-how, improvements, inventions, computer programs, drawings, patents, and
experimental and development work techniques, and (ii) marketing and other
information, such as supplier lists, customer lists, marketing and business
plans, business or technical needs of customers, consultants, licensees or
suppliers and their methods of doing business, arrangements with customers,
consultants, licensees or suppliers, manuals and personnel records or data.
Confidential Information also includes any information described above which the
Company obtains from another party and which the Company treats as proprietary
or designates as confidential, whether or not owned or developed by the Company.
Notwithstanding the foregoing, any information which is or becomes available to
the general public otherwise than by breach of this Section 11 shall not
constitute Confidential Information for purposes of this Agreement.
(b) During the term of this Agreement and thereafter, Employee
agrees, to hold in confidence all Confidential Information and not to use such
information for Employee's own benefit or to reveal, report, publish, disclose
or transfer, directly or indirectly, any Confidential Information to any person
or entity, or to utilize any Confidential Information for any purpose, except in
the course of Employee's work for the Company.
(c) Employee will abide by any and all security rules and
regulations, whether formal or informal, that may from time to time be imposed
by the Company for the protection of Confidential Information, and will inform
the Company of any defects in, or improvements that could be made to, such rules
and regulations.
(d) Employee will notify the Company in writing immediately upon
receipt of any subpoena, notice to produce, or other compulsory order or process
of any court of law or government agency if such document requires or may
require disclosure or other transfer of Confidential Information.
(e) Upon termination of employment, Employee will deliver to the
Company any and all records and tangible property that contain Confidential
Information that are in his possession or under his control.
12. COVENANT NOT TO COMPETE.
(a) In consideration for the Company entering into this Agreement,
Employee covenants and agrees that during the Term and for a one (1) year period
thereafter, Employee will not, without the express prior written consent of the
Company, directly or indirectly, compete with the business of the Company
anywhere within the United States of America. Employee will undertake no
activities that may lead Employee to compete with or to acquire rival,
conflicting or antagonistic interests to those of the Company with respect to
the business of the Company, whether
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alone, as a partner, or as an officer, director, employee, independent
contractor, consultant or shareholder holding 5% or more of the outstanding
voting stock of any other corporation, or as a trustee, fiduciary or other
representative of any other person or entity.
(b) During the Term and for a period of one (1) year after
termination of employment, Employee will not, directly or indirectly, solicit or
induce any other employee of the Company or any parent or affiliate to leave his
or her employment, or solicit or induce any consultant or independent contractor
to sever that person's relationship with the Company.
(c) If any court shall determine that the duration or geographical
limit of any covenant contained in this Section 12 is unenforceable, it is the
intention of the parties that covenant shall not thereby be terminated but shall
be deemed amended to the extent required to render it valid and enforceable,
such amendment to apply only in the jurisdiction of the court that has made such
adjudication.
(d) Employee acknowledges and agrees that the covenants contained
in Sections 11 and 12 hereof are of the essence in this Agreement, that each of
such covenants is reasonable and necessary to protect and preserve the
interests, properties, and business of the Company, and that irreparable loss
and damage will be suffered by the Company should Employee breach any of such
covenants. Employee further represents and acknowledges that he shall not be
precluded from gainful engagement in a satisfactory fashion by the enforcement
of these provisions.
13. AVAILABILITY OF INJUNCTIVE RELIEF. Employee acknowledges and agrees
that any breach by him of the provisions of Sections 11 or 12 hereof will cause
the Company irreparable injury and damage for which it cannot be adequately
compensated in damages. Employee therefore expressly agrees that the Company
shall be entitled to seek injunctive and/or other equitable relief, on a
temporary or permanent basis to prevent any anticipatory or continuing breach of
this Agreement or any part hereof, and is secured as an enforcement. Nothing
herein shall be construed as a waiver by the Company of any right it may have or
hereafter acquired to monetary damages by reason of any injury to its property,
business or reputation or otherwise arising out of any wrongful act or omission
of it.
14. SURVIVAL. The covenants, agreements, representations and warranties
contained in or made pursuant to this Agreement shall survive Employee's
termination of employment, irrespective of any investigation made by or on
behalf of any party.
15. MODIFICATION. This Agreement sets forth the entire understanding of
the parties with respect to the subject matter hereof, supersedes all existing
agreements between them concerning such subject matter, and may be modified only
by a written instrument duly executed by each party.
16. NOTICES. Any notice required or permitted hereunder shall be deemed
validly given if delivered by hand, verified overnight delivery, or by first
class, certified mail to the following addresses (or to such other address as
the addressee shall notify in writing to the other party):
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If to Employee Xxxxxxx Xxxxxxx
00 Xxxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
If to the Company: 0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
17. WAIVER. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. All waivers must be in writing.
18. BINDING EFFECT. The Company's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, and any attempt
to do any of the foregoing shall be void. The provisions of this Agreement shall
be binding upon the Employee and his heirs and personal representatives, and
shall be binding upon and inure to the benefit of the Company, its successors
and assigns.
19. HEADINGS. The headings in this Agreement are solely for convenience
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
20. GOVERNING LAW; VENUE. This Agreement is to be performed in the
State of Florida, and the validity, construction and enforcement of, and the
remedies under, this Agreement shall be governed in accordance with the laws of
the State of Florida, without giving effect to any choice of laws principles. In
the event of any litigation arising out of or relating to this Agreement,
exclusive venue shall be in Palm Beach County, Florida.
21. ENTIRE AGREEMENT. This writing constitutes the binding and entire
agreement of the parties superseding and extinguishing all prior agreements or
understandings regarding the subject matter hereof, and may not be modified
without the written agreement by the parties.
22. INVALIDITY. The invalidity or unenforceability of any term of this
Agreement shall not invalidate, make unenforceable or otherwise affect any other
term of this Agreement, which shall remain in full force and effect.
23. ATTORNEYS' FEES. In the event any dispute or litigation arises
hereunder between any of the parties hereto, the prevailing party shall be
entitled to all reasonable costs and expenses incurred by it in connection
therewith (including, without limitation, all reasonable attorneys' fees and
costs incurred before and at any trial or other proceeding and at all tribunal
levels), as well as all other relief granted in any suit or other proceeding. As
used herein, a party shall be deemed "prevailing" when it recovers (I) as to a
damage claim, an aggregate of more than fifty percent (50%)
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of the damages which it seeks among its various asserted claims exclusive of
interest, attorney's fees, costs incurred and exemplary damages and (ii) as to
an equity claim, substantial injunctive or other equitable relief upon its
asserted claim. Either of the parties herein shall be entitled to request the
trier of fact in any dispute, litigation or arbitration between them, to
determine which of the parties is "prevailing."
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WITNESS WHEREOF, the parties have executed this Agreement as of the
date first hereinabove written.
EMPLOYER:
XXXXXXXX.XXX, INC., a Delaware corporation
By: /s/ XXXX XXXXX
--------------------------------------
Authorized Representative
Title: Chief Financial Officer
EMPLOYEE:
/s/ XXXXXXX XXXXXXX
------------------------------------------
Xxxxxxx Xxxxxxx
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EXHIBIT A
INCENTIVE COMPENSATION
Employee's compensation, in addition to Base Salary, will include distributions
from the Company and from Operating Divisions of the Company pursuant to Section
4(e). Such distributions shall be a function of pre-tax income from each
operating division (hereinafter "Division Available Income"), plus a percentage
interest in Division Non-Cash consideration which shall be determined, and
distributed, in accordance with the following business rules and a percentage of
the consolidated pre-tax net income of the Company as follows:
I. Division Available Income:
1. The calculation of Division Available Income will be made by the
Company on a quarterly basis not later than the 45th day following the
quarter with respect to the preceding calendar quarter beginning with the
quarter ending March 31, 2001.
2. Employee shall have the right, during reasonable business hours, to meet
with representatives of the Company concerning this calculation and shall
have reasonable access to books and records of the Company to validate the
calculations.
3. The formula for the calculation of the "Division Available Income" shall be
made with respect to each operating division of the Company and shall in
accordance with the following:
+ DIVISION ATTRIBUTABLE REVENUES
- DIRECT AND INDIRECT DIVISION EXPENSES
- REASONABLE RESERVES
= DIVISION AVAILABLE INCOME
Where,
"DIVISION ATTRIBUTABLE CASH REVENUES" means 100% of revenues
during the quarter of fees, or other income streams,
attributable to such division.
"DIRECT AND INDIRECT DIVISION EXPENSES" shall mean the direct
and indirect expenses allocated by the Company for the
operations of such division including, but not limited to,
salaries, profit sharing expenses to divisional executives or
other divisional employees (excluding Employee), taxes,
allocable rent, utilities, phone, accounting, bookkeeping,
etc.
"REASONABLE RESERVES" shall mean, in the context of current
facts and circumstances, the appropriate reserve for future
contingencies and demands on cash resources attributable to
the operations of such division.
4. Employee's share, to be distributed quarterly as described herein, is based
on the following PERCENTAGES of the DIVISION AVAILABLE INCOME for the
Divisions as indicated, unless otherwise agreed to by the Employee and the
Company:
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DIVISION PERCENTAGE
---------------------------------------- --------------------------------------
Consulting: Union Atlantic LC 20%
---------------------------------------- --------------------------------------
Investment Banking: Union Atlantic
Capital, L.C. - PIPE Division 10%
---------------------------------------- --------------------------------------
Investment Banking: Union Atlantic,
L.C. - M&A, Fairness Opinions,
Valuations, Institutional Privates 20%
---------------------------------------- --------------------------------------
Retail Brokerage, Investment Banking
(IPOs) and Subscription Based Private
Placements: Colonial Direct/First
Colonial Securities/First Level 15%
---------------------------------------- --------------------------------------
Merchant Banking and Venture Capital
Fund Fees/Fund Management Fees 20%
---------------------------------------- --------------------------------------
Web Site Division: vFinance Holdings,
Inc. 10%
---------------------------------------- --------------------------------------
Seminar/Education Division 12%
---------------------------------------- --------------------------------------
International Fees/Licenses Division 20%
---------------------------------------- --------------------------------------
Executive Recruiting: Union Atlantic
LC 20%
---------------------------------------- --------------------------------------
Investor Relations: Union Atlantic LC 20%
---------------------------------------- --------------------------------------
5. It is the intention of all parties that all distributions of Division
Available Income shall be made on a cumulative basis in any one fiscal year
such that periods of operating loss for any division, resulting in negative
Division Available Income, are first offset in full against periods of
positive Division Available Income with respect to the applicable fiscal
year.
II. Division Non-Cash Distributions:
In the case of non-cash compensation for services received by a Division (e.g.
stock, stock options, warrants, etc.), Employee shall be entitled to receive
in-kind distributions in the amount of the percentages described in Section 4
above with respect to the applicable Divisions where such non-cash consideration
was received and distributed in kind.
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III. Consolidated Pre-Tax Income Bonus:
Employee shall be entitled to 5% of the Pre-Tax consolidated net income (net of
any incentive compensation paid to the Employee as determined herein above) of
the Company calculated pursuant to GAAP.
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EXHIBIT B
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is entered into as of ___________ by and
between XXXXXXX XXXXXXX ("Optionee") and XXXXXXXX.XXX, INC., a Delaware
corporation (the "Corporation").
W I T N E S S E T H:
--------------------
WHEREAS, Optionee and the Corporation have concurrently herewith
entered into a certain Employment Agreement (the "Employment Agreement"); and
WHEREAS, the Corporation desires to grant to Optionee the option to
acquire shares of common stock, $.01 par value, of the Corporation (the "Common
Stock") upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants set forth herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, Optionee and the Corporation hereby
agree as follows:
1. (a) GRANT OF THE OPTIONS. Subject to the terms and conditions of
this Agreement, the Corporation hereby grants to Optionee the right to purchase
(individually referred to as the "Option" or collectively referred to as the
"Options") from the Corporation Five Hundred Thousand (500,000) shares of the
Common Stock (the "Option Shares"), subject to the following vesting schedule,
at the per share purchase price equal to the closing price of the Corporation's
Common Stock on the day preceding the date of this Agreement but in no event
less than $2.25 per share for a five (5) year period commencing on the date
hereof:
(i) 125,000 Option Shares shall vest on the date hereof;
(ii) 125,000 Option Shares shall vest one (1) year from the date
hereof;
(iii) 125,000 Option Shares shall vest two (2) years from the date
hereof;
(iv) 125,000 Option Shares shall vest three (3) years from the date
hereof
2. RIGHTS OF OPTIONEE. Optionee by virtue of holding the Options to
purchase the Option Shares shall not have any rights to any dividends to be
distributed by the Corporation to the shareholders or any other rights of a
shareholder in the Corporation with respect to any of the Option Shares until
Optionee exercises the Option to purchase the Option Shares pursuant to Section
5 of this Agreement.
3. TRANSFERABILITY OF THE OPTIONS. The Options may not be assigned,
transferred, or
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otherwise disposed of, or pledged or hypothecated or in any way be subject to
execution, attachment or other process. Any assignment, transfer, pledge,
hypothecation or other disposition of the Options attempted contrary to the
provisions of this Agreement or any levy, execution, attachment or other process
attempted upon the Options will be null and void and without effect.
4. EXERCISE OF THE OPTIONS. The Option to purchase the Option Shares
shall be exercisable upon the terms and conditions hereinafter set forth:
Subject to the terms and conditions of this Agreement, the Option to
purchase the Option Shares shall be exercisable by Optionee upon delivery of
notice to the Corporation (the "Exercise Notice") in accordance with the
procedure prescribed in this Section 4. The Exercise Notice shall state that
Optionee has elected to exercise the Option or any portion thereof. The Option
may be exercised by the Optionee, in whole or in part, by the delivery of the
Exercise Notice to the office of the Corporation, and by payment to the
Corporation of the Purchase Price in cash or by wire transfer, for each share
being purchased. Upon the exercise of the Option, a certificate or certificates
for the shares of Common Stock so purchased, registered in the name of the
holder, shall be promptly delivered to the holder hereof within a reasonable
time. The person in whose name any certificate for shares of Common Stock is
issued upon exercise of the Option shall for all purposes be deemed to have
become the holder of record of such shares on the date on which the Exercise
Notice was delivered and payment of the Purchase Price was made, except that, if
the date of such surrender and payment is a date on which the stock transfer
books of the Corporation are closed, such person shall be deemed to have become
the holder of such shares at the close of business on the next succeeding date
on which the stock transfer books are open.
5. ACCELERATED VESTING AND EXERCISE PERIOD.
a. DEATH OR DISABILITY. In the event of Optionee's death or
Disability while employed with the Corporation prior to Optionee's vesting or
exercise of all of the Options, then all of the Options shall become immediately
vested and exercisable. For purposes hereof, "Disability" shall mean Optionee's
failure to perform his employment duties with the Company for a continuous three
month period, or an aggregate of four months during any six month period, as a
result of ANY illness or accident, as verified by at least two U.S. licensed
medical doctors reasonably acceptable to the Company.
b. CESSATION OF EMPLOYMENT. Notwithstanding anything to the contrary
contained herein, in the event that Optionee ceases to be employed by the
Corporation for any reason other than Optionee's death, Disability or
termination by the Company without cause (as defined within the Employment
Agreement) (the date of Optionee's cessation of employment shall be referred to
as the "Cessation Date"), then all non-vested Options shall expire and be
forfeited on the Cessation Date. In the event that the Company terminates
Optionee's employment without cause, then all non-vested Options shall
immediately vest as of the Cessation Date.
c. CHANGE OF CONTROL. In the event of a "Change of Control" or a
sale of all or
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substantially all of the assets of the Corporation, then all non-vested Options
shall immediately vest. For purposes of this Agreement, "Change of Control"
shall mean (i) the occurrence of any event or transaction or series thereof
pursuant to which any person or group (as used in Rule 13(d)-1 of the Securities
Exchange Act of 1934) acquires beneficial ownership or control in excess of 50%
of the outstanding voting shares of the Company, or (ii) that the directors of
the Company serving on its Board of Directors on the date immediately preceding
such event or transaction or series thereof shall, in the aggregate, represent
less than fifty percent (50%) of the Board of Directors after such event or
transaction or series thereof.
6. RESERVATION OF SHARES. The Corporation covenants and agrees that at
all times that this Stock Option Agreement shall be in effect it shall have
authorized, and reserved, Common Stock of the Corporation sufficient for the
exercise of the Options and the purchase of Common Stock by Optionee.
7. SUBSTITUTION OF THIS AGREEMENT UPON ADOPTION OF QUALIFIED STOCK
OPTION PLAN. It is possible that the Corporation will, within twelve (12) months
from the date of this Agreement, adopt a Qualified Stock Option Plan for members
of its senior executive management, including Optionee. In the event of such
adoption, the Corporation agrees upon written request from Optionee to amend
this Agreement so as to cancel all unvested option rights set forth herein,
PROVIDED, HOWEVER that the same economic terms (including numbers of share
options, vesting periods and price) remain the same with respect to Optionee,
and are granted to Optionee, pursuant to the terms of the adopted Qualified
Stock Option Plan. All rights existing as to vested Stock Options as set forth
herein shall remain in effect notwithstanding the adoption of a Qualified Stock
Option Plan.
8. INVESTMENT. Optionee acknowledges that the Option Shares are not
being offered pursuant to a registration statement under the Securities Act of
1933, as amended (the "Act"), or any other securities laws. Optionee
acknowledges that the Option Shares are being acquired for Optionee's own
account for investment purposes only and not with a view to, or for sale in
connection with, any public distribution thereof and will not sell, or offer to
sell or otherwise dispose, of any interest in the Option Shares acquired by
Optionee in violation of the Act. Optionee has had substantial experience in
business and financial matters and in making investments of the type
contemplated by this Agreement, is capable of evaluating the merits and risks of
the purchase of the Option Shares and is able to bear the economic risks of such
investment.
9. LIQUIDITY. Although there can be no assurance that the Option
Shares will be registered under the Act, that an exemption from such
registration will be available, or that there will be a market for the Option
Shares in the future, the Corporation agrees to use its best efforts to enable
and facilitate Optionee's sale or disposition of the Option Shares in compliance
with the Act at the earliest date reasonably practicable. Furthermore, Optionee
is hereby granted registration rights as described in Exhibit "A" attached
hereto and incorporated herein.
10. ADJUSTMENTS. In the event of a stock dividend, stock split, share
combination,
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recapitalization, merger, consolidation or reorganization of or by the
Corporation, the number or class of shares purchasable (and purchase price per
share) upon exercise of the Option immediately prior thereto shall be adjusted
so that Optionee shall be entitled to receive the kind and number of shares or
other securities which Optionee would have owned or have been entitled to
receive after the happening of any of the events described above, had the Option
been exercised immediately prior to the happening of any of such events or any
record date with respect thereto. Any adjustment made pursuant to this Section
shall become effective immediately after the effective date of such events
retroactive to the record date, if any, for such events. In the event that any
director, officer or employee of the Company shall hereafter be granted options
or warrants with antidilution provisions in addition to the foregoing adjustment
provision, then Optionee shall be deemed to have been granted the same
antidilution provisions with respect to the Options granted by this Agreement.
In the event of the grant of more than one such future antidilution provisions,
then Optionee shall be deemed to have been granted the most favorable of such
antidilution provisions thereof.
11. NOTICES. Any notice required or permitted hereunder shall be deemed
validly given if delivered by hand, verified overnight delivery, or by first
class, certified mail to the following address of Optionee (or to such other
address as Optionee may notify in writing to Corporation):
If to Optionee: Xxxxxxx Xxxxxxx
00 Xxxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
If to the Company: xXxxxxxx.xxx, Inc.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
12. BENEFITS OF AGREEMENT. This Agreement shall inure to the benefit
and shall be binding upon the successors, heirs, legal representatives and
permitted assigns of the parties hereto.
13. SEVERABILITY. In the event that any one or more provisions of this
Agreement shall be deemed to be illegal or unenforceable such illegality or
unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
14. GOVERNING LAW; VENUE. This Agreement will be covered and construed
under the laws of the State of Florida, without giving effect to rules governing
conflicts of law, with proper venue with respect to all disputes related to this
Agreement being Broward County, Florida.
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15. COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE CORPORATION:
XXXXXXXX.XXX, INC., a Delaware corporation
By:
--------------------------------------
Title:
------------------------------------
OPTIONEE:
------------------------------------------
Printed Name: Xxxxxxx Xxxxxxx
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EXHIBIT "A"
REGISTRATION RIGHTS
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to such terms in the Option to which this Exhibit A is attached.
(a) PIGGY-BACK REGISTRATION RIGHTS. If at any time commencing after
January 1, 2001 until the expiration of the Option (the "Registration Period"),
xXxxxxxx.xxx, Inc. (the "Company") proposes to register any of securities under
the Securities Act (other than registration of a stock option, stock purchase or
compensation or incentive plan or of stock issued or issuable pursuant to any
such plan, or dividend investment plan, a registration of stock proposed to be
issued in exchange for securities or assets of, or in connection with the merger
or consolidation with, another person or entity , or a registration of stock
proposed to be issued in exchange for securities of such other person or
entity), the Company shall give prompt written notice thereof to the Holder and,
upon the written request made within ten (10) days after the Holder and, upon
receipt of such notice, the Company shall use its best efforts to effect as part
of such registration the registration under the Securities Act of that number of
the Option shares ("Option Shares") which the Holder requests the Company to
register, provided that if the registration relates to a firm commitment,
underwritten public offering, the managing underwriter of the Company's public
offering, if any, shall be of the opinion that the inclusion in such
registration of such number of Option Shares will not interfere with the
successful marketing of all of the Company's securities being registered. If the
managing underwriter, if any, reasonably requests the Holder to reduce in whole
or in part the number of Option Shares sought or be registered by the Holder,
the Holder shall comply with the request of the managing underwriter. In any
underwritten offering, the Holder shall sell the Option Shares registered as
part of such underwritten offering to the underwriters of such offering on the
same terms and conditions as apply to the Company. In connection with any
registration pursuant to this Section (a), the Holder shall provide the Company
with such information regarding the Holder and the distribution of the Option
Shares as the Company and the managing underwriter shall reasonably request for
use in the registration statement relating to such offering. The Company shall
pay all costs and expenses of the Holder. The Company shall not be obliged to
effect registration under the Securities Act pursuant to this Section (a) on
more than one occasion; PROVIDED, HOWEVER, that this limitation shall not apply
if the number of shares requested to be registered by the Holder shall have been
reduced pursuant to the second sentence of this Section (a) unless and until the
occurrence of an occasion on which the shares requested by the Holder to be
registered have not been so reduced.
(b) DEMAND REGISTRATION RIGHTS. During the Registration Period but
subsequent to January 1, 2002, the Holder shall have the following demand
registration rights, subject to the conditions herein:
(i) REGISTRATION REQUEST. At any time during the Registration
Period but subsequent to January 3, 2002, and within 45 days of receipt by the
Company of the written request of the Holder, the Company shall diligently
proceed to file with the Securities Exchange Commission (the "SEC") a
registration statement under the Securities Act, on Form S-3 (or any successor
form), or if the Company is not eligible for Form S-3, on such other appropriate
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form as the Company shall select, covering such number of Option Shares as the
Holder shall notify the Company in writing. The Company will use its best
efforts to cause such registration statement to become effective as soon as
practicable following such request; provided, however, that the Company will not
be required to file a registration statement on more than one occasion.
(ii) INFORMATION AND COSTS. The Holder shall provide the Company
with such information for use in the registration statement relating to such
offering with respect to the Option Shares to be sold, the plans for the
proposed disposition thereof, and such other information as shall in the opinion
of counsel for the Company be necessary to enable the Company to include in such
registration statement (or any amendment or supplement thereto) all material
facts required to be disclosed with respect to the Holder. The Company shall
bear the cost of such registration, including, but not limited to, all
registration and filing fees, and printing expenses.
(iii) OBLIGATION OF THE COMPANY. If and when the Company shall be
required to prepare a registration statement pursuant to this Section (b), the
Company will:
1) use its best efforts to effect and to keep effective the
necessary registrations or qualifications under the securities or Blue Sky laws
of such jurisdictions within the United States as the Holder may reasonably
request so as to permit the sale, transfer or other disposition of the Option
Shares being registered; provided, that the Company shall not be required in
connection therewith or a condition thereto to qualify to do business or file a
general consent to service of process in any such jurisdictions;
2) furnish to the Holder such number of prospectuses (and
each amendment and supplement thereto) conforming to the requirements of the
Securities Act, and the rules and regulations thereunder, and such number of
preliminary prospectuses (containing substantially the information required to
be provided in such prospectuses) as the Holder or its underwriters may from
time to time reasonably request.
3) promptly notify the Holder of the happening of any event
as a result of which any preliminary prospectus or prospectus included in any
registration statement hereunder includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing; and
4) register the Option Shares to be sold on the securities
exchange on which the common stock of the Company may be listed so that they may
be freely transferable without restriction on such exchange.
5) keep such registration effective until the earlier of (a)
twelve (12) months after the effective date of the registration period, (b) the
date all the Option Shares have been sold or (c) the Expiration Date.
(c) GENERAL CONDITIONS. In connection with each registration effected
pursuant to Section (a) or Section (b), the Company and the Holder agree as
follows:
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(i) INDEMNIFICATION OF HOLDER. The Company shall indemnify and
hold harmless the Holder against any and all losses, claims, damages, or
liabilities to which the Holder may become subject under the Securities Act, or
any other statute or common law, including any amount paid in settlement of any
litigation, commenced or threatened, if such settlement is effected with the
written consent of the Company, and to reimburse them for any legal or other
expenses incurred by them in connection with investigating any claims and
defending any action insofar as any such losses, claim, damages, liabilities or
actions arise out of or are based upon 1) any untrue statement or alleged untrue
statement of a material fact, contained in the registration statement relating
to the sale of the Option Shares, or any post-effective amendment thereof, or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, 2)
any untrue statement or alleged untrue statement of a material fact, contained
in a preliminary prospectus, if used prior to the effective date of such
registration statement, or contained in the prospectus (as amended or
supplemented, if the Company shall have filed with the SEC any amendment thereof
or supplement thereto), if used within the period during which the Company is
required to keep the registration statement to which the prospectus relates
current pursuant to the terms hereof, or the omission or alleged omission to
state therein (if so used) the material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The indemnification agreement contained in this agreement,
however, shall not: 1) apply to such losses, claims, damages, liabilities, or
actions arising out of, or based upon, any such untrue statement or alleged
omission, if such statement or omission was in reliance upon and in conformity
with the information furnished in writing to the Company by the Holder for use
in the registration statement or any preliminary prospectus or prospectus
contained in the registration statement or any amendment thereof or supplement
thereto, or 2) inure to the benefit of any underwriter from whom the person
asserting any such losses, claims, damages, expenses or liabilities purchased
the securities which are the subject thereof (or to the benefit of any person
controlling such underwriter), if such underwriter failed to send or give a copy
of the prospectus to such person at or prior to the written confirmation of the
sale of such securities to such person.
(ii) INDEMNIFICATION OF THE COMPANY. The Holder and each
underwriter of the Option Shares to be registered (such party and such
underwriters being referred to severally in this subparagraph as the
"Indemnifying Party") shall agree, in the same manner and to the same extent as
set forth in the preceding paragraph, to indemnify and hold harmless the Company
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act, its directors and those officers of the Company who
shall have signed such registration statement, with respect to any statement in
or omission from such registration statement or any post-effective amendment
thereof or any preliminary prospectus (as amended or supplemented, if amended or
supplemented as aforesaid) contained in such registration statement, if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by such Indemnifying Party for
use in such registration statement or any preliminary prospectus or prospectus
contained in such registration statement or any amendment thereof or supplement
thereto.
(iii) NOTICE OF INDEMNIFIABLE ACTION. Each indemnified party will,
promptly after the receipt of notice of the commencement of any action against
such indemnified party in respect of which indemnity may be sought from a party
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hereto on account of an indemnity agreement contained in this Section, notify
the indemnifying party in writing of the commencement thereof. The omission of
any indemnified party so to notify an indemnifying party of any such action
shall relieve the indemnifying party from any liability in respect of such
action which it may have to such indemnified party on account of the indemnity
agreement contained in this Section, but shall not relieve the indemnifying
party from any other liability which it may have to such indemnified party.
(iv) TERMINATION OF OBLIGATION. The Company shall not be required
to file a registration statement or to keep a registration statement effective
if the Option Shares could be publicly sold without registration under the
Securities Act.
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