EMPLOYMENT AGREEMENT
Exhibit
10.3
AGREEMENT made as of the 13th day of
September, 2007, by and between Xxxxxxxx Xxxxxxx, an individual residing in
London, UK, (hereinafter referred to as "Executive") and THE AMACORE
GROUP, INC., a Delaware corporation with offices in Tampa, Florida (hereinafter
called the "Company").
W
I T N E S S E T H
WHEREAS, the Company desires to
retain the services of Executive to render his services to Company on the terms
and conditions hereinafter set forth; and
WHEREAS, Executive is agreeable to
rendering such services to the Company on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of
the mutual covenants and agreements herein contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Employment
Term, Duties and Acceptance
(a)
Company hereby retains Executive as Company's Chief Financial Officer
for a period of three (3) years, commencing on the date hereof (the "Employment
Period"), subject to earlier termination as hereinafter provided, to render his
services to Company upon the terms and conditions herein contained, in such
executive capacity. In such executive capacity, Executive shall report and be
responsible to the Company's Chief Executive Officer and the Company’s Board of
Directors.
(b)
Executive hereby accepts the foregoing employment and agrees to render his
services to Company on a full-time basis in such a manner as directed by the
Company’s Chief Executive Officer as to reflect Executive’s best efforts to the
end that the Company's operations are properly managed. In furtherance of
Executive performing the duties assigned to him under this Agreement, the
Company agrees to provide Executive with a support staff reasonably required by
Executive so as to enable him to carry out such duties.
2. Compensation
(a)
During the first year of the term of this Agreement, Executive shall receive
compensation of $360,000 per year. This compensation may, at
Executive's election, be accrued, in whole or in part. Executive’s
compensation shall be payable in accordance with the general payroll practices
of the Company as are from time to time, in effect, less such deductions or
amounts as shall be required to be withheld by applicable law or regulation. On
each yearly anniversary date of the execution of this
Agreement (hereinafter sometimes called the "Anniversary Date," in
each yearly instance) the Board of Directors shall review the services provided
by Executive to determine the amount that Executive's salary shall be increased
for the forthcoming yearly period. Such increase shall be no less than an amount
equal to the percentage increase in the Consumer Price Index or such other
similar index reflective of the cost of living increase in the Orlando, Florida
metropolitan area from the beginning of yearly period to the end of the yearly
period with respect to the Consumer Price Index applicable to the said
metropolitan area, times Executive's base compensation in effect during the said
yearly period. The sum resulting by way of this increase to the Executive's base
compensation shall, for the then immediately succeeding period be considered the
Executive's base compensation. The Board of Directors shall also determine on an
annual (fiscal or calendar year, as the case may be) basis, the amount, if any,
of bonus or incentives to be paid to Executive. Provided, however, that
Executive shall receive a special bonus ("special bonus") in an amount equal to
one (1) percent of the Company's pre-tax profits from the preceding year (as
determined by the application of generally accepted accounting principles), up
to the first one-million dollars of such profits; plus an additional sum equal
to two, and (2) percent of the Company's pre-tax profits for all sums over
one-million dollars The special bonus shall be paid within thirty
(30) days following determination thereof, which determination shall be made as
soon as practicable.
(b)
Executive shall receive a sign-on bonus of Thirty Five Thousand (35,000) shares
of the Company’s Class A common stock (the “shares”) which shares shall be
issued and vested in the Executive on the 91st day
following the execution of this Agreement. In the event the Company
files a form of Registration Statement, as that term is generally
understood, registering shares of its Class A common stock at any
time following the issuance of the shares to Executive but prior to a date being
one year thereafter, the Company shall, at Executive’s request, include
Executive’s shares in such Registration Statement provided the Executive agrees
to sell such shares only in accordance with the then existing Rule 144 selling
formula for shares held more than one year but less than two years.
(c)
Executive shall be entitled to reasonable paid vacation time, sick leave and
time to attend professional meetings comparable to that offered the executives
in comparable positions.
(d)
Executive shall be entitled (subject to the terms and conditions of particular
plans and programs) to all fringe benefits afforded to other senior executives
of the Company, including, but not by way of limitation, bonuses and the right
to participate in any pension, stock option, retirement and, unless otherwise
covered by a group policy (as opposed to an individual policy owned and paid for
by Executive and/or his wife and/or a company of which either of them own 100%
of stock), major medical, group health, disability, relocation reimbursement,
and other employee benefit programs made generally available, from time to time,
by the Company. The Company shall reimburse the Executive’s
reasonable health insurance until such time Company can provide Executive with
appropriate health care coverage based on Executive’s specific health care
needs.
(e)
Company shall pay or reimburse Executive for reasonable expenses incurred in the
performance of his services under this Agreement during the Employment Period,
upon presentation of expense statements, vouchers or such other supporting
documentation as may reasonably be required.
3. Disability
(a) Upon
the disability, as defined in subparagraph 3(b) hereof, of Executive during the
Employment Period, Company may, in its sole discretion, terminate Executive's
employment; provided that if the Company elects to so terminate Executive's
employment, Executive shall be entitled to receive, accrued but unpaid salary,
expense reimbursement and bonuses, the proceeds of any disability insurance
policy plus an amount from the Company monthly which, when added to the amount
received by the Executive from any disability policy in effect for the Executive
at the time of his disability will equal the Executive's salary for a
twelve-month period following the date of termination, as if the termination had
not occurred. Such termination shall have no effect on the Company's obligation
to pay the special bonus referred to hereinbefore. Provided, however, in the
event Executive partially perform and discharge the duties previously performed
by him for Company, nothing herein shall prevent the Executive from continuing
his duties in a part-time capacity, at a level of Compensation to be determined
at that time.
(b) For
purposes of this Agreement the term "disability" shall mean Executive's
inability to continue to materially and substantially perform and discharge the
duties previously required of him on behalf of the Company for an aggregate
period exceeding three (3) consecutive months within any twelve (12) month
consecutive period.
(c) In
the event of a dispute between the parties as to what constitutes a disability,
such dispute shall be finally determined by a person mutually agreed upon by
Executive and Company. If a mutually acceptable person cannot be selected, such
designations shall be made by Executive and Company each choosing a person,
which person shall then mutually select a third person (collectively called the
"panel"). The panel's determination shall be made by majority vote and such
determination shall be deemed binding and conclusive. The parties agree to fully
cooperate with whatever procedures and examinations may be required in order to
allow the panel to make its determination.
4. Termination
of Employment
(a) (i)
In the event Fifty (50) Percent or more of the equity securities or all or
substantially all of the assets of the Company are acquired by any single person
or identifiable group, as defined by the applicable rules and regulations under
the Security and Exchange Act of 1934, as amended and in the further event that
Executive's employment is terminated, by either the Company or the Executive,
within twelve (12) months following such event, except if such termination is by
reason of "cause" (as that term is defined at paragraph 4(c) hereafter, or (ii)
in the event Executive terminates his employment by reason of the uncured breach
of this Agreement by Company ("cause"), then, on the termination date, Company
shall pay (or issue, as the case may be) to Executive a lump sum amount equal to
the aggregate of (i) accrued but unpaid salary, if any; (ii) accrued but unpaid
expenses, if any; (iii) accrued but unpaid bonuses, if any; (iv) unissued
warrants, if any; and (v) the total compensation which would have been paid to
Executive through three full years of compensation from the date of termination.
If the Executive intends to terminate his employment with the company for
"cause", the "cause" shall be specified in a written notice sent by Executive to
the Company, and the Company shall be afforded thirty (30) days or longer, if
reasonably required, to cure such breach, if such breach is capable of being
cured.
(b) In
the event Fifty (50) Percent or more of the equity securities or all or
substantially all of the assets of the Company are acquired by any single person
or identifiable group, as defined by the applicable rules and regulations under
the Security and Exchange Act of 1934, as amended, all unvested securities and
benefits attributable to the Executive will immediately vest. In
addition, with respect to any securities of the Company or rights to securities
in the Company vesting in Executive as a result of this Article 4, the Company
shall advise Executive by written notice at least four weeks prior to the
Company’s filing of one or more registration statements under the Securities Act
of 1933, as amended (or any successor form covering securities) to be offered
and sold to the public generally, and shall, upon request of Executive, include
in any such registration statement such securities of Executive as he may
request. The foregoing shall include common stock of the Company to
which Executive may be entitled by way of his exercise of any stock options
and/or the exercise of warrants.
(c) In
the event of misconduct in office by Executive in the performance of his duties
hereunder (which shall hereinafter be referred to as "Termination for Cause"),
Company may terminate this Agreement by giving two (2) weeks prior written
notice to Executive identifying the cause of termination and specifying the
effective date of such termination. If Executive is subjected to Termination for
Cause, then such "cause" shall be specified in such notice and Executive shall
be afforded thirty (30) days or longer, if reasonably required, to cure such
breach, if such breach is capable of being cured. If Executive is
unable to cure or if terminated pursuant to the provisions of paragraph “4.(c)”,
Company shall pay to Executive the aggregate of (i) accrued but unpaid expenses,
if any; and (ii) the net salary compensation which would have been paid to
Executive through the date of termination. Furthermore, in that event any
warrants to be issued pursuant to this Agreement, and any options granted
pursuant to plans then applicable to Executive which have not then vested shall
be forfeited as of the termination date.
(d) The
failure of Executive’s representations herein to be materially accurate shall
give the Company the right to terminate Executive’s engagement.
(e) In
the event Executive resigns or is terminated as an employee of Company,
Executive hereby agrees that his position(s) as officer and director of the
Company shall automatically end as of the date of his resignation or termination
of employment.
5. EXECUTIVE
REPRESENTATIONS
Executive represents and warrants to
the Company that:
(a)
He has full right, power and authority to enter into this Agreement and
perform the services and directions given to him by the Company’s Chief
Executive Officer, consistent with Executive’s position of Chief Financial
Officer, free of any further obligation to any prior employer.
(b)
The Executive is not subject to the restrictions of any restrictive covenants
entered into between or among the Executive and other prior
employer(s).
6.
CONFIDENTIALITY
(a)
Executive agrees to execute Company's standard form of Confidentiality Agreement
as prepared by Counsel to Company.
(b)
Executive's covenants contained herein shall survive the termination or
expiration of this Agreement.
7. TERMINATION OF
AGREEMENT
This Agreement shall, in addition to
other provisions affecting termination, terminate on the occurrence of any of
the following events:
(a)
Cessation of the Company's business;
(b)
Dissolution of the Company; or
(c) The
voluntary agreement of the partieshereto.
8. NOTICES
All notices, requests, demands,
deliveries and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed, postage prepaid, registered or
certified mail, return receipt requested to the parties at the addresses (or at
such other address for a party as shall be specified by like notice) specified
on the first page of this Agreement.
9. WAIVER
The failure of either party at any
time or times to require performances of any provision hereof shall in no manner
effect the right at a later time to enforce the same. To be effective, any
waiver must be contained in a written instrument signed by the party waiving
compliance by the other party of the term or covenant as specified. The waiver
by either party of the breach of any term or covenant contained herein, whether
by conduct or otherwise, in any one or more instances, shall not be deemed to
be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this
Agreement.
10. GOVERNING
LAW
This Agreement shall be governed by
the laws of the Sate of Florida, which shall have exclusive jurisdiction over
any claims or disputes arising from the subject matter contained herein without
regard to any conflict of laws provision.
11. COMPLETE
AGREEMENT
This Agreement constitutes the
complete and exclusive agreement between the parties hereto which supersedes all
proposals, oral and written, and all other communications between the parties
relating to the subject matter contained herein.
12. SEVERABILITY
If any of the provisions of this
Agreement are held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
13. EXECUTORS,
ADMINISTRATORS, SUCCESSORS AND ASSIGNS
This Agreement may not be assigned,
transferred or otherwise inure to the benefit of any third person, firm or
corporation by operation of law or otherwise, without the written consent by the
other party hereto, except as herein specifically provided to the
contrary.
14. MODIFICATION
This Agreement may only be amended,
varied or modified by a written document executed by the parties
hereto.
15. FURTHER
INSTRUMENTS
The parties hereto agree to execute
and deliver, or cause to be executed and delivered, such further instruments or
documents and take such other action as may be required to effectively carry out
the transactions contemplated herein.
16. INDEMNIFICATION
Except for a claim, demand, suit,
action or judgment asserted by Protective against Executive and/or the Company,
in addition to any liability insurance to be provided the Executive, the Company
will indemnify Executive from any and all claims, demands, suits, actions or
judgments which hereafter may by asserted, instituted or recorded by any person,
firm or corporation for the duration of this Agreement and for a six (6) year
period following the termination of said Agreement as defined in paragraph 4.
The foregoing indemnity shall be enforceable only with respect to claims made
against Executive with respect to all expenses, losses, charges and attorney's
fees sustained or incurred by the Executive in defending any suit, action or
other proceeding brought against the Executive, directly or indirectly, arising
out of Executive's employment by Company.
17. BOARD
APPROVAL
This Agreement is subject to and
conditioned upon the approval of the Company’s Board of Directors.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement this 13th day
of September, 2007.
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By: /s/ Xxxxx X.
Xxxxxx
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By: /s/ Xxxxxxxx
Xxxxxxx
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Xxxxx
X. Xxxxxx
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Xxxxxxxx
Xxxxxxx
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Chief
Executive Officer
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