Exhibit 10.31
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 10th day of June, 2003 by and between 21ST CENTURY HOLDING COMPANY, a
Florida corporation with its principal office at 0000 X.X. 0xx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 (the "Company"), and XXXXXXX X. XXXXXXXXXX, whose
residence address is 0000 XX 00 Xxxx, Xxxxx Xxxxxxx, Xxxxxxx 00000 (the
"Executive").
Recitals
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1. The Executive is currently the Chief Executive Officer ("CEO") of
the Company
2. The Executive possesses intimate knowledge of the business and
affairs of the Company, its policies, methods and personnel.
3. The Board of Directors (the "Board") of the Company recognizes that
the Executive's contribution, as CEO of the Company, to the growth and success
of the Company has been and will be substantial and desires to assure the
Company of the Executive's present and 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 continued 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
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NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties hereby agree as follows:
1. Employment.
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1.1 Employment and Term. The Company shall continue to employ
the Executive and the Executive shall continue to serve the Company, on the
terms and conditions set forth herein, for the period (the "Term") effective as
of June 10, 2003 (the "Commencement Date") and expiring on the second
anniversary of the Commencement Date, unless sooner terminated as hereinafter
set forth; provided, however, that the Term of this Agreement shall
automatically be extended so that at all times, the balance of the Term shall
not be less than two years.
1.2 Duties of Executive. The Executive shall serve as CEO and
shall perform the duties of an executive commensurate with such position, shall
diligently perform all services as may be reasonably designated by the Board and
shall exercise such power and authority as is necessary and customary to the
performance of such duties and services. The Executive shall devote such time as
he deems necessary to the business and affairs of the Company.
2. Compensation.
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2.1 Base Salary. During the Term, the Executive shall receive
a base salary at the annual rate of $137,800.00, subject to adjustment by the
Company's Compensation Committee (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.
2.2 Additional Cash Compensation. Executive shall also be
entitled to receive such increments in base salary and performance or merit
bonuses (collectively, "Bonus") as shall be determined from time to time during
the term by the Board.
3. Expense Reimbursement and Other Benefits.
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3.1 Expense Reimbursement. During the Term, the Company, upon
the submission of supporting documentation by the Executive, and in accordance
with 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 and
entertainment.
3.2 Other Benefits. The Company shall obtain or shall continue
in force comprehensive major medical and hospitalization insurance coverages,
including dental coverages, either group or individual, for the Executive and
his dependents, and shall obtain or shall continue in force life insurance for
the Executive (collectively, the "Policies"), which Policies the Company shall
keep in effect at its sole expense throughout the Term. The Policies to be
provided by the Company shall be on terms as determined by the Board. Within 30
days following any termination of this Agreement, at the Executive's option, the
Company shall assign to the executive all insurance policies on the life of the
Executive then owned by the Company in consideration of the payment by the
Executive of the cash surrender value, if any, and the Executive's agreement to
assume the Company liability to pay any premiums accruing thereon after the date
of such termination.
3.3 Working Facilities. The Company shall furnish the
Executive with an office, a secretary and such other facilities and services
suitable to his position and adequate for the performance of his duties
hereunder.
3.4 Automobile Allowance. Throughout the Term of this
Agreement, the Company will pay Executive an automobile allowance in the amount
of $600 per month. Such automobile allowance shall be for no more than one
automobile and shall include all expenses related thereto, including, without
limitation, lease expenses, maintenance and insurance.
3.5 Vacation. Executive shall be entitled to reasonable
vacations during each year of the Term, the time and duration thereof to be
determined by mutual agreement between Executive and the Company.
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4. Termination.
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4.1 Termination for Cause. Notwithstanding anything contained
in this 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 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, or (iii) the conviction (from which no
appeal can be taken) of Executive for any criminal act which is a felony. Upon
any determination by the Company's Board of Directors 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.
Any termination for Cause pursuant to clause (ii) or (iii) of this Paragraph 4.1
shall be made in writing to Executive, which notice shall set forth in detail
all acts or omissions upon which the Company is relying for such termination.
Upon any termination pursuant to this Paragraph 4.1, the Company shall pay to
the Executive any unpaid Base Salary accrued through the effective date of
termination specified in such notice. In addition, the Company shall pay any
benefits, if any, owed to Executive under any plan provided for Executive under
Paragraph 3 hereof in accordance with the terms of such plan as in effect on the
date of termination of employment under this Paragraph 4.1. 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, subject, however to the provisions of Paragraph 3.1 hereof).
4.2 Disability. Notwithstanding anything to the contrary
contained in this 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 provided in
Paragraphs 2.1 and 2.2 hereof during the period of his disability; provided,
however, that, in the event Executive is disabled for a period of more than 180
days in any 12 month period (the "Disability Period"), the Company may, at its
election, by a vote of 75% of the members of the Board within 90 days from the
end of the Disability Period, terminate this agreement. 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 fringe benefits (to the extent
permissible by applicable law) shall be continued for a period of 24 months
after such termination and (b) Executive shall receive a bonus, payable in two
annual installments, equal to twice the amount of bonus paid to the Executive
during the 12 months preceding the date of termination of the Executive. As used
in this Agreement, the term "disability" shall mean the complete inability of
Executive to perform his duties under this Agreement as determined by an
independent physician selected with the approval of the Company and the
Executive. 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 subject, however, to the provisions of
Paragraph 3.1 hereof).
4.3 Death. In the event of the death of Executive during the
Term of this Agreement, the Company shall pay to Executive's legal
representative, any unpaid Base Salary accrued through the date of his death, as
well as a lump sum payment equal to (a) 24 months' Base Salary at the rate
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prevailing on the date of the death of the Executive and (b) a bonus in an
amount equal to twice the amount of bonus paid in the 12 months preceding the
date of death of the Executive. 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 the Executive's death, subject,
however to the provisions of Paragraph 3.1 hereof).
5. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement.
6. Change of Control.
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(a) For the purposes of this Agreement, a "Change of Control"
shall be deemed to have taken place if: (i) any person, including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
becomes the owner or beneficial owner of Company securities, after the date of
this Agreement, having 50% or more of the combined voting power of the then
outstanding securities of the Company that may be cast for the election of
directors of the Company (other than as a result of an issuance of securities
initiated by the Company, or open market purchases approved by the Board, as
long as the majority of the Board approving the purchases is the majority at the
time the purchases are made), or (ii) the persons who were directors of the
Company before such transactions shall cease to constitute a majority of the
Board, or any successor to the Company, as the direct or indirect result of or
in connection with, any cash tender or exchange offer, merger or other business
combination, sale of assets or contested election, or any combination of the
foregoing transactions.
(b) The Company and Executive hereby agree that, if Executive
is affiliated with the Company on the date on which a Change of Control occurs
(the "Change of Control Date"), the Company (or, if Executive is affiliated with
a subsidiary, the subsidiary) will continue to retain Executive and Executive
will remain affiliated with the Company (or subsidiary), for the period
commencing on the Change of Control Date and ending on the second anniversary of
such date, to exercise such authority and perform such executive duties as are
commensurate with the authority being exercised and duties being performed by
the Executive immediately prior to the Change of Control Date. If after a Change
of Control Executive is requested and, in his sole and absolute discretion,
consents to change his principal business location, the Company will reimburse
the Executive for his reasonable relocation expenses, including without
limitation, moving expenses, temporary living and travel expenses for a
reasonable time while arranging to move his residence to the changed location,
closing costs, if any, associated with the sale of his existing residence and
the purchase of a replacement residence at the changed location, plus an
additional amount representing a gross-up of any state or federal taxes payable
by Executive as a result of any such reimbursements. If the Executive shall not
consent to change his business location, the Executive may continue to provide
the services required of him hereunder from his then residence and/or business
address, and the Company shall continue to maintain an office for Executive at
that location commensurate with the Company's office prior to the Change of
Control Date.
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(c) During the remaining term hereof after the Change of
Control Date, the Company (or subsidiary) will (i) continue to pay Executive a
salary at not less than the level applicable to Executive on the Change of
Control Date, (ii) pay Executive bonuses in amounts not less in amount than
those paid during the 12 month period preceding the Change of Control Date, and
(iii) continue employee benefit programs as to Executive at levels in effect on
the Change of Control Date (but subject to such reductions as may be required to
maintain such plans in compliance with applicable federal law regulating
employee benefit programs).
(d) If during the remaining term hereof after the Change of
Control Date (i) Executive's employment is terminated by the Company (or
subsidiary), or (ii) there shall have occurred a material reduction in
Executive's compensation and Executive voluntarily terminates his relationship
with the Company within 60 days of any such occurrence, or the last in a series
of occurrences, then Executive shall be entitled to receive, subject to the
provisions of subparagraphs (e) and (f) below, a lump sum payment equal to 299%
of Executive's "base period income" as determined under (e) below. Such amount
will be paid to Executive within 15 business days after his termination of
affiliation with the Company.
(e) The Executive's "base period income" shall be his Base
Salary and Bonuses paid or payable to him during or with respect to the 12 month
period preceding the date of his termination of affiliation. If Executive has
not been affiliated for 12 months at the time of his termination of affiliation,
his "base period income" shall be his annualized base salary at the rate then in
effect and any annual incentive Bonus paid to Executive prior to the date of his
termination of affiliation or payable to Executive with respect to his period of
affiliation.
(f) The amounts payable to Executive under any other
compensation arrangement maintained by the Company (or a subsidiary) which
became payable after payment of the lump sum provided for in (d), upon or as a
result of the exercise by Executive of rights which are contingent on a Change
of Control (and would be considered a "parachute payment" under Internal Revenue
Code Section 280G and regulations thereunder), shall be increased by an
additional amount representing a gross-up of any federal income tax liability
arising from an excess parachute payment or otherwise. If Executive has not been
affiliated with the Company (or a subsidiary of the Company) during one or more
calendar years immediately preceding the Change of Control Date, this paragraph
(f) shall not apply.
(g) In the event of a proposed Change in Control, the Company
will allow Executive to participate in all meetings and negotiations related
thereto.
7. Restrictive Covenants.
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7.1 Non-Competition. During the Term and for a period of one
year following the termination (other than without Cause, as defined in
Paragraph 4.1) of the Executive's employment by the Company, Executive shall
not, directly or indirectly engage in or have any interest in, directly or
indirectly, any sole proprietorship, partnership, corporation, business or any
other person or entity (whether as an employee, officer, director, partner,
agent, security holder, creditor, consultant or otherwise) that, directly or
indirectly, engages primarily in the development, marketing, distribution,
underwriting or sale of products and services competitive with the Company's
and/or any subsidiary's products and services in any and all states in which the
Company and/or any subsidiary conducts its business during the Term or at the
time Executive's employment with the Company is terminated (the "Territory");
provided, however, that Executive may hold Company securities and/or acquire,
solely as an investment, shares of capital stock or other equity securities of
any such company, so long as Executive does not control acquire a controlling
interest in or become a member of a group which exercises direct or indirect
control of, more than five percent of any class of capital stock of such
corporation.
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7.2 Nondisclosure. During the Term and following termination
of the Executive's employment with the Company, 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 Information (as
hereinafter defined) pertaining to the business of the Company. Any Confidential
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,
customers, methods of doing business and marketing, distribution, underwriting
or sale 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
Information" means information disclosed to the Executive or known by 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. Notwithstanding the foregoing,
nothing herein shall be deemed to restrict the Executive from disclosing
Confidential Information to the extent required by law.
7.3 Nonsolicitation of Employees. During the Term and for a
period of one year following termination of the Executive's employment with the
Company, 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, unless such employee or former employee has not
been employed by the Company for a period in excess of six months.
7.4 Books and Records. All books, records, accounts and
similar repositories of Confidential 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 Agreement or on the Board's request at any
time.
8. 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 7 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 7 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.
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9. 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
which 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, subject to the
provisions of Paragraph 6 hereof.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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 9 hereof.
16. 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.
17. 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.
18. 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.
19. 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.
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20. 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 brought in the courts of Broward County in
the State of Florida or in the U.S. District Court for the Southern District of
Florida. The parties hereto hereby accept the exclusive jurisdiction of those
courts for the purpose of any such suit, action or proceeding.
Venue for any such action, in addition to any other venue permitted by
statute, will be Broward County, Florida. The parties hereto hereby irrevocably
waive, to the fullest extent permitted by law, any objection that any of them
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any judgment entered
by any court in respect thereof brought in Broward County, Florida, and hereby
further irrevocably waive any claim that any suit, action or proceeding brought
in Broward County, Florida, has been brought in an inconvenient forum.
The parties hereto acknowledge and agree that any party's remedy at law
for a breach or threatened breach of any of the provisions of this Agreement
would be inadequate and such breach or threatened breach shall be per se deemed
as causing irreparable harm to such party. Therefore, in the event of such
breach or threatened breach, the parties hereto agree that, in addition to any
available remedy at law, including but not limited to monetary damages, an
aggrieved party, without posting any bond, shall be entitled to obtain, and the
offending party agrees not to oppose the aggrieved party's request for,
equitable relief in the form of specific enforcement, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy that may
then be available to the aggrieved party.
21. Binding Nature. This Agreement will be binding upon and will inure
to the benefit of any successor or successors of the parties hereto.
22. 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.
23. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original.
24. 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.
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IN WITNESS WHEREOF, this Agreement has been duly signed by the
parties hereto on the day and year first above written.
21ST CENTURY HOLDING COMPANY
By:
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Name:
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Title:
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XXXXXXX X. XXXXXXXXXX
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