EMPLOYMENT AGREEMENT
EXHIBIT
99.1
This
employment agreement (this
"Agreement"), dated as of January 1, 2008 (the "Effective Date"), is made by
and
between Fortress Financial Group, Inc., a Wyoming corporation (the "Company"),
and Xxxx Bezzano (the "Non Executive") (each, a "Party" and together, the
"Parties").
WHEREAS,
the Non Executive is to be
employed as the Non Executive Chairman of the Company; and
WHEREAS,
the Parties wish to establish the terms of the Non Executive's employment by
the
Company;
NOW,
THEREFORE, in consideration of the
foregoing, of the mutual promises contained herein and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
1. POSITION/DUTIES.
(a) During
the Employment Term (as defined in Section 2 below), the Non Executive shall
serve as a Non Executive Chairman of the Company. In this capacity
the Non Executive shall have such duties, authorities and
responsibilities commensurate with the duties, authorities and responsibilities
of persons in similar capacities in similarly sized companies and such other
reasonable duties and responsibilities as the Board of Directors of the Company
(the "Board") shall designate. The Non Executive shall report
directly to the Chief Executive Officer. The Non Executive shall obey
the lawful directions of the Board, the Company's Chief Executive Officer and
any other senior executive of the Company to whom the Non Executive reports
and
shall use his diligent efforts to promote the interests of the Company and
to
maintain and promote the reputation thereof.
(b) During
the Employment Term, the Non Executive shall use his best efforts to perform
his
duties under this Agreement and shall devote all of his business time, energy
and skill in the performance of his duties with the Company. The Non
Executive shall not during the Employment Term (except as a representative
of
the Company or with consent in writing of the Board) be directly or indirectly
engaged or concerned in any other business activity. Notwithstanding
the foregoing provisions, the Non Executive is not prohibited from (1)
participating in charitable, civic, educational, professional or community
affairs or serving on the board of directors or advisory committees of
non-profit entities, and (2) managing his and his family's personal investments,
in each case, providedthat such activities in the aggregate do not
materially interfere with his duties hereunder.
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2. EMPLOYMENT
TERM. Except for earlier termination as provided in Section
6, the Non Executive's employment under this Agreement shall be for a
three-year term commencing on the Effective Date and
ending on January 1, 2011 (the "Employment Term").
3. BASE
SALARY. The Company agrees to pay to the Non Executive a
base salary at an annual rate of not less than $12,000, payable in accordance
with the regular payroll practices of the Company. The Non Executive's Base
Salary shall be subject to annual review by the Board (or a committee
thereof). The base salary as determined herein from time to time
shall constitute "Base Salary" for purposes of this Agreement.
4. BONUS. With
respect to each full fiscal year during the Employment Term, the Non Executive
shall be eligible to earn an annual bonus (the "Annual Bonus") in such amount,
if any, as determined in the sole discretion of the Board of up to 100% of
the
Non Executive's Base Salary. In addition, the Non Executive shall be eligible
to
participate in the Company's bonus and other incentive compensation plans and
programs (if any) for the Company's senior executives at a level commensurate
with his position and may be entitled to bonus payments in addition to the
amount set forth hereinabove.
5. EMPLOYEE
BENEFITS.
(a) Benefit
Plans. The Non Executive shall be eligible to participate in
any employee benefit plan of the Company, including, but not limited to, equity,
pension, thrift, profit sharing, medical coverage, education, or other
retirement or welfare benefits that the Company has adopted or may adopt,
maintain or contribute to for the benefit of its senior executives, at a level
commensurate with his positions, subject to satisfying the applicable
eligibility requirements. The Company may at any time or from time to time
amend, modify, suspend or terminate any employee benefit plan, program or
arrangement for any reason in its sole discretion.
(b) Signing
Bonus. Upon execution of this Agreement, the Non
Executive shall be awarded a one time bonus, valued at $166,667 to be settled
through the issuance of 500,000,000 restricted common shares of Fortress
Financial Group, Inc.
6. TERMINATION. The
Non Executive's employment and the Employment Term shall terminate on the first
of the following to occur:
(a) Disability. On
the thirtieth (30th) day following
written notice by the Company to the Non Executive of termination due to
Disability. For purposes of this Agreement, "Disability" shall mean a
determination by the Company in accordance with applicable law that
due to a physical or mental injury, infirmity or incapacity, the Non Executive
is unable to perform the essential functions of his job with or without
accommodation for 180 days (whether or not consecutive) during any 12-month
period.
(b) Death. Automatically
on the date of death of the Non Executive.
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(c) Cause. Immediately
upon written notice by the Company to the Non Executive of a termination for
Cause. "Cause" shall mean, as determined by the Board (or its designee) (1)
conduct by the Non Executive in connection with his employment duties or
responsibilities that is fraudulent, unlawful or grossly negligent; (2) the
willful misconduct of the Non Executive; (3) the willful and continued failure
of the Non Executive to perform the Non Executive's duties with the Company
(other than any such failure resulting from incapacity due to physical or mental
illness); (4) the commission by the Non Executive of any felony (other than
traffic-related offenses) or any crime involving moral turpitude; (5) violation
of any material policy of the Company or any material provision of the Company's
code of conduct, employee handbook or similar documents; or (6) any material
breach by the Non Executive of any provision of this Agreement or any other
written agreement entered into by the Non Executive with the
Company.
(d) Without
Cause. On the thirtieth (30th) day following written notice
by the Company to the Non Executive of an involuntary termination without Cause,
other than for death or Disability.
(e) Good
Reason. On the sixtieth (60th)
day following
written notice by the Non Executive to the Company of a termination for Good
Reason. "Good Reason" shall mean, without the express written consent of the
Non
Executive, the occurrence of any the following events unless such events are
cured (if curable) by the Company within fifteen days following receipt of
written notification by the Non Executive to the Company that he intends to
terminate his employment hereunder for one of the reasons set forth below:
any
material reduction or diminution (except temporarily during any period of
incapacity due to physical or mental illness) in the Non Executive's title,
authorities, duties or responsibilities or reporting requirements with the
Company.
7. CONSEQUENCES
OF TERMINATION.
(a) Disability. Upon
termination of the Employment Term because of the Non Executive's Disability,
the Company shall pay or provide to the Non Executive (1) any unpaid Base Salary
and any accrued vacation through the date of termination; (2) any unpaid Annual
Bonus accrued with respect to the fiscal year ending on or preceding the date
of
termination; (3) reimbursement for any unreimbursed expenses properly incurred
through the date of termination; and (4) all other payments or benefits to
which
the Non Executive may be entitled under the terms of any applicable employee
benefit plan, program or arrangement (collectively, "Accrued
Benefits").
(b) Death. Upon
the termination of the Employment Term because of the Non Executive's death,
the
Non Executive's estate shall be entitled to any Accrued Benefits.
(c) Termination
for Cause. Upon the termination of the Employment Term by the Company
for Cause or by either party in connection with a failure to renew this
Agreement, the Company shall pay to the Non Executive any Accrued
Benefits.
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(d) Termination
without Cause or for Good Reason. Upon the termination of
the Employment Term by the Company without Cause or by the Non Executive with
Good Reason, the Company shall pay or provide to the Non Executive (1) the
Accrued Benefits, and (2) subject to the Non Executive's execution (and
non-revocation) of a general release of claims against the Company and its
affiliates in a form reasonably requested by the Company, (A) continued payment
of his Base Salary for two (2) months after termination, payable in accordance
with the regular payroll practices of the Company, but off the payroll; and
(B)
payment of the Non Executive's cost of continued medical coverage for two (2)
months after termination (subject to the Non Executive's co-payment of the
costs
in the same proportion as such costs were shared immediately prior to the date
of termination).1 Payments provided under
this Section 7(d) shall be in lieu of any termination or severance payments
or
benefits for which the Non Executive may be eligible under any of the plans,
policies or programs of the Company.
8. NO
ASSIGNMENT. This Agreement is personal to each of the
Parties. Except as provided below, no Party may assign or delegate
any rights or obligations hereunder without first obtaining the written consent
of the other Party hereto; provided, however, that the Company may
assign this Agreement to any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company.
9. NOTICES.
For the purpose of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been
duly
given (1) on the date of delivery if delivered by hand, (2) on the date of
transmission, if delivered by confirmed facsimile, (3) on the first business
day
following the date of deposit if delivered by guaranteed overnight delivery
service, or (4) on the fourth business day following the date delivered or
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If
to the Non Executive:
X.X.
Xxx XX-00000
Xxxxx
000
Xxxxxx,
Xxxxxxx
If
to the Company:
With
a copy to:
Xxxxxx
&
Xxxxxx,
LLP
000
Xxxxx 0 Xxxxx, Xxxxx
000
Xxxxxxxxx,
Xxx Xxxxxx,
00000
Attention:
Xxxxx Xxxxxx,
Esq.
Facsimile:
(000) 000-0000
or
to
such other address as either Party may have furnished to the other in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
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10. PROTECTION
OF THE COMPANY'S BUSINESS.
(a) Confidentiality. The
Non Executive acknowledges that during the course of his employment by the
Company (prior to and during the Employment Term) he has and will occupy a
position of trust and confidence. The Non Executive shall hold in a fiduciary
capacity for the benefit of the Company and shall not disclose to others or
use,
whether directly or indirectly, any Confidential Information regarding the
Company, except (i) as in good faith deemed necessary by the Non Executive
to
perform his duties hereunder, (ii) to enforce any rights or defend any claims
hereunder or under any other agreement to which the Non Executive is a party,
providedthat such disclosure is relevant to the enforcement of
such rights or defense of such claims and is only disclosed in the formal
proceedings related thereto, (iii) when required to do so by a court of law,
by
any governmental agency having supervisory authority over the business of the
Company or by any administrative or legislative body (including a committee
thereof) with jurisdiction to order him to divulge, disclose or make accessible
such information, providedthat the Non Executive shall give prompt
written notice to the Company of such requirement, disclose no more information
than is so required, and cooperate with any attempts by the Company to obtain
a
protective order or similar treatment, (iv) as to such Confidential Information
that shall have become public or known in the Company's industry other than
by
the Non Executive's unauthorized disclosure, or (v) to the Non Executive's
spouse, attorney and/or his personal tax and financial advisors as reasonably
necessary or appropriate to advance the Non Executive's tax, financial and
other
personal planning (each an "Exempt Person"), provided, however,
that any disclosure or use of Confidential Information
by an Exempt
Person shall be deemed to be a breach of this Section 10(a) by the Non
Executive. The Non Executive shall take all reasonable steps to
safeguard the Confidential Information and to protect it against disclosure,
misuse, espionage, loss and theft. The Non Executive understands and
agrees that the Non Executive shall acquire no rights to any such Confidential
Information. "Confidential Information" shall mean information about the
Company, its subsidiaries and affiliates, and their respective clients and
customers that is not disclosed by the Company and that was learned by the
Non
Executive in the course of his employment by the Company, including, but not
limited to, any proprietary knowledge, trade secrets, data and databases,
formulae, sales, financial, marketing, training and technical information,
client, customer, supplier and vendor lists, competitive strategies, computer
programs and all papers, resumes, and records (including computer records)
of
the documents containing such Confidential Information.
(b) Non-Competition. During
the Employment Term and for the one-year period following the termination of
the
Non Executive's employment for any reason (the "Restricted Period"), the Non
Executive shall not, directly or indirectly, without the prior written consent
of the Company, provide employment (including self-employment), directorship,
consultative or other services to any business, individual, partner, firm,
corporation, or other entity that competes with any business conducted by the
Company or any of its subsidiaries or affiliates on the date of the Non
Executive's termination of employment or within one year of the Non Executive's
termination of employment in the geographic locations where the Company and
its
subsidiaries or affiliates engage or propose to engage in such business (the
"Business"). Nothing herein shall prevent the Non Executive from having a
passive ownership interest of not more than 2% of the outstanding securities
of
any entity engaged in the Business whose securities are traded on a national
securities exchange.
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(c) Non-Solicitation
of Employees. The Non Executive recognizes that he possesses
and will possess confidential information about other employees of the Company
and its subsidiaries and affiliates relating to their education, experience,
skills, abilities, compensation and benefits, and inter-personal relationships
with customers of the Company and its subsidiaries and affiliates. The Non
Executive recognizes that the information he possesses and will possess about
these other employees is not generally known, is of substantial value to the
Company and its subsidiaries and affiliates in developing their business and
in
securing and retaining customers, and has been and will be acquired by him
because of his business position with the Company. The Non Executive agrees
that, during the Restricted Period, he will not, directly or indirectly,
(i) solicit or recruit any employee of the Company or any of its
subsidiaries or affiliates (a "Current Employee") or any person who was an
employee of the Company or any of its subsidiaries or affiliates during the
twelve (12) month period immediately prior to the date the Non Executive's
employment terminates (a "Former Employee") for the purpose of being employed
by
him or any other entity, or (ii) hire any Current Employee or Former
Employee.
(d) Non-Solicitation
of Customers. The Non Executive agrees that, during the
Restricted Period, he will not, directly or indirectly, solicit or attempt
to
solicit (i) any party who is a customer or client of the Company or its
subsidiaries, who was a customer or client of the Company or its subsidiaries
at
any time during the twelve (12) month period immediately prior to the date
the
Non Executive's employment terminates or who is a prospective customer or client
that has been identified and targeted by the Company or its subsidiaries for
the
purpose of marketing, selling or providing to any such party any services or
products offered by or available from the Company or its subsidiaries, or (ii)
any supplier or vendor to the Company or any subsidiary to terminate, reduce
or
alter negatively its relationship with the Company or any subsidiary or in
any
manner interfere with any agreement or contract between the Company or any
subsidiary and such supplier or vendor.
(e) Property. The
Non Executive acknowledges that all originals and copies of materials, records
and documents generated by him or coming into his possession during his
employment by the Company or its subsidiaries are the sole property of the
Company and its subsidiaries ("Company Property"). During the
Employment Term, and at all times thereafter, the Non Executive shall not
remove, or cause to be removed, from the premises of the Company or its
subsidiaries, copies of any record, file, memorandum, document, computer related
information or equipment, or any other item relating to the business of the
Company or its subsidiaries, except in furtherance of his duties under this
Agreement. When the Non Executive's employment with the Company
terminates, or upon request of the Company at any time, the Non Executive shall
promptly deliver to the Company all copies of Company Property in his possession
or control.
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(f) Non-Disparagement. Non
Executive shall not, and shall not induce others to, Disparage the Company
or
its subsidiaries or affiliates or their past and present officers, directors,
employees or products. "Disparage" shall mean making comments or statements
to
the press, the Company's or its subsidiaries' or affiliates' employees or any
individual or entity with whom the Company or its subsidiaries or affiliates
has
a business relationship which would adversely affect in any manner (1) the
business of the Company or its subsidiaries or affiliates (including any
products or business plans or prospects), or (2) the business reputation of
the
Company or its subsidiaries or affiliates, or any of their products, or their
past or present officers, directors or employees.
(g) Cooperation. Subject
to the Non Executive's other reasonable business commitments, following the
Employment Term, the Non Executive shall be available to cooperate with the
Company and its outside counsel and provide information with regard to any
past,
present, or future legal matters which relate to or arise out of the business
the Non Executive conducted on behalf of the Company and its subsidiaries and
affiliates, and, upon presentation of appropriate documentation, the Company
shall compensate the Non Executive for any out-of-pocket expenses reasonably
incurred by the Non Executive in connection therewith.
(h) Equitable
Relief and Other Remedies. The Non Executive acknowledges
and agrees that the Company's remedies at law for a breach or threatened breach
of any of the provisions of this Section 10 would be inadequate and, in
recognition of this fact, the Non Executive agrees that, in the event of such
a
breach or threatened or attempted breach, in addition to any remedies at law,
the Company, without posting any bond, shall be entitled to obtain equitable
relief in the form of specific performance, a temporary restraining order,
a
temporary or permanent injunction or any other equitable remedy which may then
be available. In addition, without limiting the Company's remedies for any
breach of any restriction on the Non Executive set forth in this Section 10,
except as required by law, the Non Executive shall not be entitled to any
payments set forth in Section 7(d) hereof if the Non Executive has breached
the
covenants applicable to the Non Executive contained in this Section 10, the
Non
Executive will immediately return to the Company any such payments previously
received under Section 7(d) upon such a breach, and, in the event of such
breach, the Company will have no obligation to pay any of the amounts that
remain payable by the Company under Section 7(d).
(i) Reformation. If
it is determined by a court of competent jurisdiction in any state that any
restriction in this Section 10 is excessive in duration or scope or is
unreasonable or unenforceable under the laws of that state, it is the intention
of the parties that such restriction may be modified or amended by the court
to
render it enforceable to the maximum extent permitted by the law of that
state. The Non Executive acknowledges that the restrictive covenants
contained in this Section 10 are a condition of this Agreement and are
reasonable and valid in temporal scope and in all other respects.
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(j) Survival
of Provisions. The obligations contained in this Section 10
shall survive in accordance with their terms the termination or expiration
of
the Non Executive's employment with the Company and shall be fully enforceable
thereafter.
11. INDEMNIFICATION. The
Non Executive shall be indemnified to the extent permitted by the Company's
organizational documents and to the extent required by law.
12. SECTION
HEADINGS AND INTERPRETATION. The section headings used in this
Agreement are included solely for convenience and shall not affect, or be used
in connection with, the interpretation of this Agreement. Expressions of
inclusion used in this agreement are to be understood as being without
limitation.
13. SEVERABILITY. The
provisions of this Agreement shall be deemed severable and the invalidity of
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
14. COUNTERPARTS. This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
Agreement.
15. GOVERNING
LAW AND VENUE. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State
of
New York without regard to its conflicts of law principles. The Parties agree
irrevocably to submit to the exclusive jurisdiction of the federal courts or,
if
no federal jurisdiction exists, the state courts, located in the City of New
York, Borough of Manhattan, for the purposes of any suit, action or other
proceeding brought by any Party arising out of any breach of any of the
provisions of this Agreement and hereby waive, and agree not to assert by way
of
motion, as a defense or otherwise, in any such suit, action, or proceeding,
any
claim that it is not personally subject to the jurisdiction of the above-named
courts, that the suit, action or proceeding is brought in an inconvenient forum,
that the venue of the suit, action or proceeding is improper, or that the
provisions of this Agreement may not be enforced in or by such
courts. IN ADDITION, THE PARTIES AGREE TO WAIVE A TRIAL BY
JURY.
16. ENTIRE
AGREEMENT. This Agreement contains the entire agreement between the
Parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly
set
forth in this Agreement.
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17. WAIVER
AND AMENDMENT. No provision of this Agreement may be
modified, amended, waived or discharged unless such waiver, modification,
amendment or discharge is agreed to in writing and signed by the Non Executive
and such officer or director as may be designated by the Board. No waiver by
either Party at any time of any breach by the other Party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by
such other Party shall be deemed a waiver or similar or dissimilar provisions
or
conditions at the same or at any prior or subsequent time.
18. WITHHOLDING.
The Company may withhold from any and all amounts payable under this Agreement
such federal, state, local and foreign taxes as may be required to be withheld
pursuant to any applicable law or regulation.
19. AUTHORITY
AND NON-CONTRAVENTION. The Non Executive represents and
warrants to the Company that he has the legal right to enter into this Agreement
and to perform all of the obligations on his part to be performed hereunder
in
accordance with its terms and that he is not a party to any agreement or
understanding, written or oral, which could prevent him form entering into
this
Agreement or performing all of his obligations hereunder.
20. COUNTERPARTS. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same
instrument.
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1
NOTE: typically the
period for severance payments corresponds to the length of the noncompete
and
nonsolicitation period.
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IN
WITNESS WHEREOF,
the Parties have executed this Agreement as of the date first written
above.
| FORTRESS FINANCIAL GROUP, INC. | |||
|
|
|
/s/ | |
| By: Xxxx Xxxxxxx | |||
| Title: Chief Executive Officer | |||
| NON EXECUTIVE | |||
| /s/ | |||
|
Xxxx
Bezzano
|
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