EXHIBIT 10.4
[FORM OF EMPLOYMENT AGREEMENT]
AGREEMENT dated as of July 12, 2004 by and between Sparta Commercial
Services, Inc., a Nevada corporation with an address at X.X. Xxx 00, Xxx Xxxx,
Xxx Xxxx 00000 (the "Company") and Xxxxxxx X. Xxxxxx ("Executive") with an
address at 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000
WHEREAS, the Company and Executive wish to enter into an agreement relating
to the employment of Executive by the Company;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment. Subject to the provisions of Section 8 of this
Agreement, Executive shall be employed by the Company for a period
commencing on July 12, 2004 (the "Commencement Date") and ending on the
fifth anniversary of the Commencement Date (the "Employment Term"), on the
terms and subject to the conditions set forth in this Agreement.
Notwithstanding the preceding sentence, the Employment Term shall be
automatically extended for an additional five-year period followed by
further one-year periods, unless the Company or Executive provides the
other party hereto 3 months prior written notice before the expiration of
the Employment Term that the Employment Term shall not be so extended.
"Employment Term" shall include any extension that becomes applicable
pursuant to the preceding sentence.
2. Position.
(a) During the Employment Term, Executive shall serve as the Company's
Chief Executive Officer. In such position, Executive shall have the powers,
duties and responsibilities that are customary for a Chief Executive
Officer of a corporation of the size, type and nature of the Company and
shall perform such other duties as the Company's Board of Directors shall
determine in their reasonable discretion. Executive shall report
exclusively to the Company's Board of Directors. Executive shall comply
with all federal, state and local laws applicable to his duties and also
shall comply with the rules and regulations of any self-regulatory
organization (as such term is defined in Rule 3(a)(26) of the Securities
Exchange Act of 1934, as amended) having jurisdiction over the Company.
(b) During the Employment Term, Executive will devote his full
business time to the performance of his duties hereunder and will not
engage in any other business, profession or occupation for compensation or
otherwise which would conflict with the rendition of such services either
directly or indirectly, without the prior written consent of the Company's
Board of Directors. Nothing contained herein shall preclude Executive from
(i) serving on corporate, civic and charitable boards or committees and
(ii) managing his personal investments; provided that none of the
activities set forth in clauses (i) and -------- (ii) interferes in any
material respect with the performance of Executive's employment hereunder
or conflict in any material respect with the business of the Company.
3. Base Salary. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of $280,000,
payable in regular installments in accordance with the Company's usual
payment practices. Executive shall be entitled to such annual increases in
his Base Salary, if any, as may be determined in the sole discretion of the
Company's Board of Directors or of the Compensation Committee thereof.
Executive also shall be entitled to defer up to $220,000 of his Base Salary
in each of the first two years of the Employment Term and thereafter defer
such additional amounts from year to year as Executive may elect (the
"Deferred Amount"). Executive shall notify the Company not later than March
31 of each year if he elects to defer all or any portion of the Deferred
Amount for such year. The Company shall deduct from Executive's regular pay
the pro rata portion of the Deferred Amount for any such year allocable to
each pay period commencing after the date of Executive's notice to the
Company of his election. Each such deducted amount shall be deposited in an
interest bearing account with Citibank, N.A. Upon such deposit Executive
shall not be allowed to withdraw such deposits until January 1 of the year
following the year in which such deductions were made.
4. Additional Compensation
In addition to salary and other compensation specified in this
agreement, Executive may from time to time, receive such additional
compensation from the Company in such form or forms as may be determined by
the Company's Board of Directors or the Compensation Committee thereof from
time to in order to more fully compensate Executive for the true value of
his services to the Company.
5. Disposition of Company Stock Held by Executive. Following the
termination of Executive's employment hereunder, if Executive determines to
sell all or any portion of his shares of the Common Stock of the Company,
Executive shall first offer to sell such shares to the Company by providing
written notice to the Company setting forth the number of such shares to be
sold. If the Company elects to purchase all of such shares so offered the
purchase price per share therefor shall equal 90% of the average daily bid
price per share of the Company's Common Stock during the 7-trading day
period following receipt by the Company of such notice. If the Company
elects to purchase less than all of such shares so offered, the purchase
price per share shall be 100% of the average daily bid price per share of
the Company's Common Stock during the 7-trading day period following
receipt by the Company of such notice. The Company shall notify Executive
in writing of its decision whether to purchase any or all of such shares so
offered within three days of the end of such 7-trading day period. If the
Company elects to purchase such shares, the Company shall pay the full
purchase price therefor within thirty (30) days of the Company's election
to so purchase. If the Company does not so elect or fails to notify
Executive of its election within the time specified herein, Executive shall
be free to sell such shares in the open market in accordance with the
applicable rules and regulations of the Securities and Exchange Commission
6. Employee Benefits.
(a) Basic Benefits. During the Employment Term, Executive shall be
provided, in accordance with the terms of the Company's employee benefit plans
as in effect from time to time, health insurance and short term and long term
disability insurance, retirement benefits and fringe benefits (collectively
"Employee Benefits") on the same basis as those benefits are generally made
available to other senior executives of the Company. Executive shall be entitled
to paid vacation of six (6) weeks per calendar year within the Employment Term.
Such vacation shall be taken at times consistent with the proper performance by
the Executive of his duties and responsibilities and with the approval of the
Company's Board of Directors. Vacation not taken in any calendar year shall not
carry forward to any future year.
(b) Life Insurance. In addition, Executive may elect to require the
Company, and the Company hereby agrees when required by Executive, to purchase a
$1,000,000 term insurance policy in favor of the Executive or his estate, the
term to end on Executive's 65th birthday. Absent Executive's death prior to age
65, such insurance policy shall be maintained by the Company regardless of
whether Executive is still employed by the Company during the term of such
policy.
7. Business Expenses. During the Employment Term, reasonable business
expenses incurred by Executive in the performance of his duties hereunder shall
be reimbursed by the Company in accordance with Company policies.
8. Termination. Notwithstanding any other provision of this Agreement:
(a) By the Company for Cause or By Executive Resignation without Good
Reason.
(i) The Employment Term and Executive's employment hereunder may
be terminated by the Company for Cause (as defined below) or by
Executive's resignation without Good Reason (as defined in Section
8(c)).
(ii) For purposes of this Agreement, "Cause" shall mean (A) the
Executive's willful and continued failure to substantially perform the
duties of his position or breach of material terms of his Agreement,
after notice (specifying the details of such alleged failure) and a
reasonable opportunity to cure if such breach can be cured; (B) any
willful act or omission which is demonstrably and materially injurious
to the Company or any of its subsidiaries or affiliates; (C)
conviction or plea of nolo contendere to a felony or other crime of
moral turpitude involving imprisonment of more than one year; or (D)
willful failure to carry out the legitimate directives of the
Company's Board of Directors. No act or failure to act will be deemed
"willful" (i) unless effected without a reasonable belief that such
action or failure to act was in or not opposed to the Company's best
interest; or (ii) if it results from any physical or mental
incapacity.
(iii) If Executive's employment is terminated by the Company for
Cause, or if Executive resigns without Good Reason, Executive shall be
entitled to receive (A) any accrued but unpaid Base Salary through the
date of termination; (B) the opportunity to exercise vested stock
options for 30 days following the later of the date of termination or
the date of resolution of any arbitration contesting such termination;
(C) such compensation and Employee Benefits, if any, as to which
Executive may be entitled under the employee compensation and benefit
plans of the Company and any other long-term incentive or equity
program pursuant to the terms hereof through the date of termination;
(D) any reimbursable business expenses incurred; and any Additional
Compensation earned through the termination date. Following such
termination of Executive's employment by the Company for Cause or
resignation by Executive without Good Reason, except as set forth in
Section 6(b) and this Section 8(a), Executive shall have no further
rights to any compensation or any other benefits under this Agreement.
(b) Disability, Death or Retirement.
(i) The Employment Term and Executive's employment hereunder
shall terminate (A) upon his death; (B) if Executive becomes
physically or mentally incapacitated for a period of indefinite
duration and is therefore unable for a period of six (6)
consecutive months or for an aggregate of twelve (12) months, or
such longer period as the Company's Board of Directors in its
sole discretion may determine, in any twenty-four (24)
consecutive month period to perform his duties, (such incapacity
is hereinafter referred to as "Disability"); and (C) upon his
Retirement (as defined below). Any question as to the existence
of the Disability of Executive as to which Executive and the
Company cannot agree shall be determined in writing by a
qualified independent physician mutually acceptable to Executive
and the Company. If Executive and the Company cannot agree as to
a qualified independent physician, each shall appoint such a
physician and those two physicians shall select a third who shall
make such determination in writing. For purposes of this
Agreement, "Retirement" shall mean a Participant's voluntary
resignation any time after attaining age 65 (or at any earlier
date with the permission of the Board).
(ii) Upon termination of Executive's employment hereunder
for death, Disability or Retirement, Executive or his estate (as
the case may be) shall be entitled to receive (A) any accrued but
unpaid Base Salary through the end of the calendar year in which
such termination occurs, (B) a pro rata portion of any Additional
Compensation that the Executive would have been entitled to
receive pursuant to Section 4 hereof in such year based upon the
percentage of the calendar year that shall have elapsed through
the date of Executive's termination of employment, payable when
such Additional Compensation would have otherwise been payable
had the Executive's employment not terminated, (C) the
opportunity to exercise vested stock options and Executive's
stock options scheduled to vest during the year following such
termination (i) in the case of death or Disability, for one year
following such termination or (ii) in the case of Retirement, for
four years following such termination, (D) a pro rata portion of
any long term incentive granted to the Executive and (E) such
compensation and Employee Benefits, if any, as to which he may be
entitled under the employee compensation and benefit plans and
arrangements of the Company. Following such termination of
Executive's employment due to death, Disability or Retirement,
except as set forth in Section 6(b) or this Section 8(b),
Executive shall have no further rights to any compensation or any
other benefits under this Agreement.
(c) By the Company without Cause or Resignation by Executive for
Good Reason.
(i) The Employment Term and Executive's employment hereunder
may be terminated by the Company without Cause or by Executive's
resignation for Good Reason.
(ii) For purposes of this Agreement, "Good Reason" shall
mean:
(A) assignment of duties to Executive inconsistent with his
status as Chief Executive Officer or otherwise inconsistent with
the terms of Section 2 of this Agreement;
(B) Executive's relocation by the Company beyond 75 miles of
his current place of residence;
(C) any material breach of the Agreement by the Company; or
(D) failure of any successor to all or substantially all of
business of the Company to assume the Agreement.
(iii) If Executive's employment is terminated by the Company
without Cause (other than by reason of death or Disability) or if
Executive resigns for Good Reason, Executive shall be entitled to
receive (A) within 30 business days after such termination, any
accrued but unpaid Base Salary through the end of the calendar
year in which such termination occurred in accordance with normal
Company payroll policies, (B) unpaid Additional Compensation for
the fiscal year prior to termination in accordance with standard
Company policies, (C) a pro rata portion of any Additional
Compensation that the Executive would have been entitled to
receive pursuant to Section 4 hereof in the year of termination
based upon the percentage of the calendar year that shall have
elapsed through the date of Executive's termination of
employment, payable when such Additional Compensation would have
otherwise been payable had the Executive's employment not
terminated provided that such Additional Compensation shall be
equal to not less than six (6) months of Additional Compensation,
(D) payment equal to the Severance in accordance with Section 9
hereof; (E) continued coverage under the Company's welfare
benefit plans available to senior executives for the lesser of
(i) the time Executive is not covered by a comparable welfare
benefit plan or (ii) a period of 24 months, (F) except as
provided in Section 5 hereof, accelerated vesting of all equity
awards (including, but not limited to, Executive's stock options)
and the opportunity to exercise such awards on or before the
earlier of (i) one year following such termination or (ii) the
date of termination of such award and (G) such vested
compensation and Employee Benefits, if any, as to which Executive
may be entitled under the employee compensation and benefit plans
and arrangements of the Company.
(iv) If the Executive resigns for Good Reason or is
terminated without cause within 12 months after a Change in
Control (as defined below), Executive shall be entitled to
receive, in addition to his entitlements in (iii) above, and (A)
within 30 business days after such termination, an additional
lump sum payment equal to the greater of the Severance payment in
accordance with Section 12 hereof or the balance of Executive's
base salary hereunder for the balance of the Employment Term had
this Agreement not Been terminated and (B) continued coverage
under the Company welfare benefit plans available to senior
executives for an additional 24 month period and (C) the value of
full vesting of the Executive's account balance under the
Company's 401(k) plan.
(v) For purposes of this Agreement, "Change in Control"
shall mean:
(A) any Person (as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
who becomes the Beneficial Owner (as defined in Rule 13d-3 of the
Exchange Act) (except that a Person shall be deemed to be the
Beneficial Owner of all shares that any such Person has the right
to acquire pursuant to any agreement or arrangement or upon
exercise of conversion rights, warrants or options or otherwise,
without regard to the sixty day period referred to in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of
the Company or any Significant Subsidiary (as defined below),
representing 50% or more of the combined voting power of the
Company's or such Significant Subsidiary's then-outstanding
securities and is the largest shareholder of the Company;
(B) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board, and any
new director whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who
either were directors at the beginning of the two-year period or
whose election or nomination for election was previously so
approved but excluding for this purpose any such new director
whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used
in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or
consents by or on behalf of an individual, corporation, or
partnership, group, associate or other entity or Person other
than the Board (the "Continuing Directors"), cease for any reason
to constitute at least a majority of the Board;
(C) the consummation of a merger or consolidation of the
Company or any subsidiary owning directly or indirectly all or
substantially all of the consolidated assets of the Company (a
"Significant Subsidiary") with any other entity, other than a
merger or consolidation which would result in the voting
securities of the Company or a Significant Subsidiary outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving or resulting entity) more than 50% of
the combined voting power of the surviving or resulting entity
outstanding immediately after such merger or consolidation;
(D) the Company disposes of all or substantially all of the
consolidated assets of the Company (other than such a sale or
disposition immediately after which such assets will be owned
directly or indirectly by the shareholders of the Company in
substantially the same proportions as their ownership of the
common stock of the Company immediately prior to such sale or
disposition) in which case the Board shall determine the
effective date of the Change in Control resulting there from; or
(vi) If the Company elects to terminate this Agreement by not
renewing this Agreement at the end of the Employment Term, Executive
shall be entitled to receive Severance equal to two and one-half (2
1/2) years of his Base Salary payable in accordance with the Company's
standard payroll policy plus standard Employee Benefits in place
during such two and one-half (2 1/2) year period.
(d) If the Company, or any successor in interest, fails to fully
perform all or any portion of its obligations under this Section 8,
the Company, or such successor in interest, shall be obligated to pay
to Executive an amount equal to five (5) times the value of the
unperformed obligation.
(e) Notice of Termination. Any purported termination of
employment by the Company or by Executive (other than due to
Executive's death or in accordance with the provisions of Section 1
hereof) shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 12(i) hereof. For
purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
employment under the provision so indicated.
9. Severance. Subject to the provisions of Section 8(c)(vi) of
this Agreement, Executive shall earn additional "Severance"
compensation based on Executive's base salary according to Executive's
length of service with the Company. Executive shall earn three months
of Severance for up to six months of service for each year of
employment hereunder payable in accordance with the Company's regular
payroll policy, plus full participation in all standard employee
benefits during the period of such payments.
10. Confidentiality. Executive will not at any time (whether during or
after his employment with the Company), unless required by a court or
administrative agency, disclose or use for his own benefit or purposes or the
benefit or purposes of any other person, firm, partnership, joint venture,
association, corporation or other business organization, entity or enterprise
other than the Company and any of its subsidiaries or affiliates, any trade
secrets, information, data, or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans, or the business and affairs of the Company generally,
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant.
Executive shall not disclose the existence or terms of this Agreement to
any person except the CEO or the Board of Directors of the Company and to its
auditors and counsel and to Executive's own personal financial advisor,
accountant and counsel unless otherwise required by applicable law.
11. Noncompetition. During the term of Executive's employment with the
Company and for a period of one (1) year after he ceases to be employed by the
Company, Executive shall not engage directly or indirectly in competition with
the Company or its Affiliates (as such term is defined in Rule 501(b) of the
Securities Act of 1933, as amended) in the business of motorcycle leasing or
finance. Competition shall include, without limitation, any role as a sponsor,
consultant, employee, partner or stockholder which aids or abets any business to
compete or prepare for competition with the Company or its Affiliates in any
business in which any of them is engaged or planning to engage. Executive
further acknowledges that competitive activities in violation of this Section
could cause irreparable injury to the Company and that such injury would be
difficult or impossible to measure. Accordingly, the Company shall be entitled
to an injunction and other equitable remedies for any violation.
12. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles thereof.
(b) Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be resolved by binding arbitration held in New York
and conducted in accordance with the commercial arbitration rules of the
American Arbitration Association ("AAA") in effect at the time of the
arbitration before a single arbitrator appointed by the President of the AAA;
provided that such arbitrator shall be an expert in the field of finance and
shall not have had any previous dealings or relationships with either party. The
Company shall reimburse Executive's legal fees of one counsel and costs incurred
to enforce his rights under this Agreement if Executive substantially prevails
in any dispute or controversy. During the period of such dispute, Executive
shall be entitled to receive his Base Salary and standard Employee Benefits.
(c) Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to the employment of Executive by the Company. There
are no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein. This Agreement may not be altered, modified, or
amended except by written instrument signed by the parties hereto.
(d) No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(e) Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
(f) Assignment. This Agreement shall not be assignable by Executive. This
Agreement may be assigned by the Company to a company which is a successor in
interest to substantially all of the business operations of the Company. Such
assignment shall become effective when the Company notifies the Executive of
such assignment or at such later date as may be specified in such notice. Upon
such assignment, the rights and obligations of the Company hereunder shall
become the rights and obligations of such successor company, provided that any
assignee expressly assumes the obligations, rights and privileges of this
Agreement.
(g) Mitigation. Executive shall not be required to mitigate damages or the
amount of any payment to Executive provided for under this Agreement by seeking
other employment or otherwise, nor, except as otherwise provided herein, shall
the amount of any payment provided for under this Agreement be reduced by any
compensation earned by Executive as a result of employment after termination.
(h) Successors; Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributes, devises and legatees.
(i) Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered by facsimile or United States
registered mail, return receipt requested, postage prepaid, or by recognized
overnight courier service addressed to the respective addresses set forth on the
execution page of this Agreement or such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
If delivery is by facsimile:
If to the Company, at 000- 000-0000
If to Executive, at 000-000-0000.
(j) Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
(k) Survival. The provisions of Section 6(b), 8, 9, 10, 11, 12(b) and 12(g)
shall survive the expiration or termination of this Agreement regardless of the
reason or reasons therefor.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
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Xxxxxxx X. Xxxxxx
SPARTA COMMERCIAL SERVICES, INC.
By:_________________________
Name:
Title:
