EMPLOYMENT AGREEMENT
Exhibit 10.1
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 Xxxxxxx (the "Executive") (each, a "Party" and together, the
"Parties").
WHEREAS,
the Executive is to be
employed as Chief Executive Officer of the Company; and
WHEREAS,
the Parties wish to establish the terms of the 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 Executive shall serve
as a Chief Executive Officer of the Company. In this capacity the 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 Executive shall report directly to the Chief Executive
Officer. The 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 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 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
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 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.
1
2. EMPLOYMENT
TERM. Except for earlier termination as provided in Section
6, the Executive's employment under this Agreement shall be for a five-year
term commencing on the Effective Date and ending on January 1, 2013 (the
"Employment Term").
3. BASE
SALARY. The Company agrees to pay to the Executive a base
salary at an annual rate of not less than $120,000, payable in accordance with
the regular payroll practices of the Company. The 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 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
Executive's Base Salary. In addition, the 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 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) Vacation. The
Executive shall be entitled to an annual paid vacation in accordance with the
Company's policy applicable to senior executives from time to time in effect,
but in no event less than two weeks per calendar year (as prorated for partial
years), which vacation may be taken at such times as the Executive elects with
due regard to the needs of the Company. The carry-over of vacation
days shall be in accordance with the Company's policy applicable to senior
executives from time to time in effect.
(c) Business
and Entertainment Expenses. Upon presentation of appropriate
documentation, the Executive shall be reimbursed for all reasonable and
necessary business and entertainment expenses incurred in connection with the
performance of his duties hereunder, all in accordance with the Company's
expense reimbursement policy applicable to senior executives from time to time
in effect.
(d) Signing
Bonus. Upon execution of this Agreement, the Executive
shall be awarded a one time bonus, valued at $500,000 to be settled through
the
issuance of 1,500,000,000 restricted common shares of Fortress Financial Group,
Inc.
2
6. TERMINATION. The
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 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 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 Executive.
(c) Cause. Immediately
upon written notice by the Company to the Executive of a termination for Cause.
"Cause" shall mean, as determined by the Board (or its designee) (1) conduct
by
the Executive in connection with his employment duties or responsibilities
that
is fraudulent, unlawful or grossly negligent; (2) the willful misconduct of
the
Executive; (3) the willful and continued failure of the Executive to perform
the
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
Executive of any felony (or the equivalent under the law of the People's
Republic of China) (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 Executive of any provision
of this Agreement or any other written agreement entered into by the Executive
with the Company.
(d) Without
Cause. On the thirtieth (30th) day following written notice
by the Company to the 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 Executive to the Company of a termination for Good Reason.
"Good Reason" shall mean, without the express written consent of the 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 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 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 Executive's Disability, the
Company shall pay or provide to the 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 Executive may be entitled under the terms of any applicable employee benefit
plan, program or arrangement (collectively, "Accrued Benefits").
3
(b) Death. Upon
the termination of the Employment Term because of the Executive's death, the
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 Executive any Accrued
Benefits.
(d) Termination
without Cause or for Good Reason. Upon the termination of
the Employment Term by the Company without Cause or by the Executive with Good
Reason, the Company shall pay or provide to the Executive (1) the Accrued
Benefits, and (2) subject to the 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
Executive's cost of continued medical coverage for two (2) months after
termination (subject to the 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 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 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.
10. PROTECTION
OF THE COMPANY'S BUSINESS.
(a) Confidentiality. The
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 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 Executive to perform his duties hereunder,
(ii) to enforce any rights or defend any claims hereunder or under any other
agreement to which the 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 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 Executive's
unauthorized disclosure, or (v) to the Executive's spouse, attorney and/or
his
personal tax and financial advisors as reasonably necessary or appropriate
to
advance the 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 Executive. The Executive shall
take all reasonable steps to safeguard the Confidential Information and to
protect it against disclosure, misuse, espionage, loss and theft. The
Executive understands and agrees that the 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 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.
4
(b) Non-Competition. During
the Employment Term and for the one-year period following the termination of
the
Executive's employment for any reason (the "Restricted Period"), the 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 Executive's
termination of employment or within one year of the 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 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.
(c) Non-Solicitation
of Employees. The 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 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 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 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 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
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.
5
(e) Property. The
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 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
Executive's employment with the Company terminates, or upon request of the
Company at any time, the Executive shall promptly deliver to the Company all
copies of Company Property in his possession or control.
(f) Non-Disparagement. 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 Executive's other reasonable business commitments, following the
Employment Term, the 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 Executive conducted on behalf of the Company and its subsidiaries and
affiliates, and, upon presentation of appropriate documentation, the Company
shall compensate the Executive for any out-of-pocket expenses reasonably
incurred by the Executive in connection therewith.
(h) Equitable
Relief and Other Remedies. The 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 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 Executive set forth in this Section 10, except as required
by
law, the Executive shall not be entitled to any payments set forth in Section
7(d) hereof if the Executive has breached the covenants applicable to the
Executive contained in this Section 10, the 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).
6
(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 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.
(j) Survival
of Provisions. The obligations contained in this Section 10
shall survive in accordance with their terms the termination or expiration
of
the Executive's employment with the Company and shall be fully enforceable
thereafter.
11. INDEMNIFICATION. The
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.
7
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.
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 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 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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
1
NOTE: typically the
period for severance payments corresponds to the length of the noncompete
and
nonsolicitation period.
8
IN
WITNESS WHEREOF,
the Parties have executed this Agreement as of the date first written
above.
FORTRESS
FINANCIAL GROUP,
INC.
_________________________________
By:
Title:
EXECUTIVE
____________________________________
Xxxx
Xxxxxxx
9
