Exhibit 10.23
EMPLOYMENT AND NON-COMPETE AGREEMENT
This Employment and Non-Compete Agreement is entered into effective as of
the 1st day of January 2005, by and between AmeriFirst, Inc., a Delaware
corporation (the "Company"), and Xxxx X. Xxxxx (the "Employee").
A. PURPOSE AND INTENT
The Company wishes to attract and retain well-qualified executives and key
personnel and to assure itself of the continuity of its management. The Employee
will serve as the Chief Executive Officer of the Company and as an executive
officer of one or more of its subsidiaries and affiliates, and the Company
desires to be assured of the continued services of the Executive.
B. DUTIES AND COMPENSATION
1. Duties. For so long as Employee is employed by the Company, Employee
shall perform such duties as may be assigned by the Company, consistent with the
duties of a CEO and subject to the Company's policies and procedures as may be
adopted from time, whether written or not. Employee agrees to devote his
full-time best efforts, energy and skill to the performance of his duties under
this Agreement in a manner which will further the business and interests of the
Company.
2. Salary and Bonus.
(a) In exchange for the services Employee shall provide Company under this
Agreement, during the term hereof, Company agrees to pay Employee a base salary
of Twelve Thousand Five Hundred Dollars ($12,500) per month, effective as of
July 1, 2004. Base salary shall be payable in bi-weekly installments.
(b) Employee shall be paid a bonus equal to five percent (5%) of the
Company's Net Operating Income up to a maximum annual bonus of $250,000 (the
"NOI Bonus"). The NOI Bonus shall be calculated on a trailing twelve month basis
and shall be paid quarterly by the 15th day of the month following each quarter
end. Upon receipt of audited or reviewed annual financial statements from the
Company's regular certified public accountants, any adjustment to the NOI Bonus
required to reflect the actual net operating income of the Company shall be
immediately paid to Employee (if such adjustment shows amounts due to Employee)
or deducted from the next scheduled payment of the NOI Bonus (if such adjustment
shows amounts due from Employee). As used herein, "Net Operating Income" shall
mean the Company's gross revenue, less expenses and before principal payments
due on Operational Loans or Non-Operational Loans (as those terms are defined in
that certain Recapitalization Agreement of the Company dated as of December 31,
2004).
(c) Employee shall also be entitled to additional bonuses, as may be
awarded from time to time by the Board of Directors of Company.
3. Other Benefits. During the Term of this Agreement, Employee shall be
entitled to participate in such benefit plans as may be made available from time
to time by the Company, including health insurance benefits. Employee shall also
receive an automobile provided at the expense of the Company, consistent with
prior practice, and reimbursement of business expenses consistent with such
policies and procedures as are adopted by the Company.
4. Taxes. Employee acknowledges that any amounts payable under this
Agreement, including salary payable under Section 2 hereof, shall be paid
subject to all applicable taxes required to be withheld by Company under
federal, state or local law. Company will withhold and remit taxes in accordance
with applicable law. Employee agrees that Employee is solely responsible for all
taxes imposed by reason of receipt of any amounts of compensation or benefits
payable under this Agreement.
6.12 C. TERM AND TERMINATION
1. Term. The Company agrees to employ Employee, subject to the terms and
conditions hereof, for a period of two (2) years, unless earlier terminated as
provided below. Thereafter, this Agreement shall automatically renew for
additional one (1) year terms, unless earlier terminated as provided below.
2. Termination for Cause. The Company, acting through its Board of
Directors, may terminate this Agreement, effective immediately upon written
notice to Employee (or his estate or guardian, if applicable), for any of the
following reasons ("Cause"):
(a) Employee's death;
(b) Employee's total disability to perform his normal duties for ninety
(90) days or more during this Agreement;
(c) Employee's conviction or entering a plea of guilty or nolo contendere
to his alleged commission, as principal, accomplice or accessory, of a felony or
any crime involving moral turpitude;
(d) Employee's violation of any covenant set forth in the Stockholders'
Agreement or Recapitalization Agreement dated of even date herewith, which
violation is not cured within thirty (30) days of receipt of written notice of
same; or
(e) unauthorized disclosure or threatened disclosure of any trade secret
or Confidential Information (as defined below) of Company or the commission of
an intentional act which constitutes a breach of Employee's noncompetition or
nonsolicitation obligations to Company as set forth herein.
3. Effect of Termination. Upon termination of this Agreement, neither
party shall have any further obligation to the other hereunder other than
payments due by the Company for the services of Employee through the date of
termination and reimbursement for expenses incurred through the date of
termination.
D. CONFIDENTIALITY OF INFORMATION
1. Information. Employee acknowledges that in his position with Company
Employee will be exposed to and receive information relating to the confidential
affairs of Company or its affiliates, including, but not limited to, business
and marketing plans, pricing and cost information, competitive data, financing,
expansion plans, business policies and practices, and other information
considered by Company or any of its affiliates to be confidential and in the
nature of trade secrets (collectively, the "Confidential Information"). Employee
agrees that during the term of this Agreement and for a period of one (1) year
after the termination of Employee's service as President, Employee will keep the
Confidential Information confidential, not use it for his personal benefit or
the benefit of any person or entity other than Company, not disclose it to any
third person or entity without the prior written consent of Company, and will
not take or fail to take any action which will cause the Confidential
Information to lose its confidential nature.
2. Return of Confidential Information and Company Property. Employee
acknowledges and agrees that all files, records, data, material and customer
lists used or obtained by Employee in the course of his employment with Company
are the property of Company and will not be removed from the Company's offices
in any form without the Company's consent. Employee agrees to return to the
Company, on or promptly after his resignation or termination, all Company
property or copies thereof (in whatever form) including, but not limited to,
files, records, computer access codes, credit cards, computer programs, keys,
card key passes, manuals, documents, business plans and other property which
Employee received or prepared or helped to prepare in connection with his
employment with Company. Furthermore, Employee agrees to assign to Company all
right, title and interest in such property, and any other inventions,
discoveries or works of authorship that Employee creates within the scope and
during the course of his employment.
E. NON-COMPETE
1. For so long as Employee is employed by the Company, and for a period of
twenty-four (24) months thereafter, the Employee will not directly or indirectly
own, manage, operate, control, be employed by, or contract with any person or
business engaged in the Restricted Business and domiciled in the State of
Florida or Camden County, Georgia. As used herein, the Restricted Business shall
mean the business of purchasing life insurance policies from policy owners
desiring to sell their life insurance policy for less than face value, also
known as the viatical and life settlements business.
F. MISCELLANEOUS
1. This Agreement shall be construed, and the validity, performance and
enforcement thereof shall be governed, by the laws of the State of Florida.
2. If any provision of this Agreement shall, for any reason, be adjudged
by any court of competent jurisdiction to be invalid or unenforceable, such
judgment shall not affect, impair or invalidate the remainder of this Agreement
but shall be confined in its operation to the provision of this Agreement
directly involved in the controversy in which such judgment shall have been
rendered.
3. In the event of any dispute hereunder, the prevailing party shall be
entitled to recover its costs and fees, including attorneys' fees and expenses.
4. This Agreement may be assigned by the Company to its parent or any
entity controlled by, or under common control with Company, without the consent
of Employee. Any other assignment of this Agreement shall require the consent of
Employee. This Agreement shall terminate upon the filing by or against the
Company of any petition in bankruptcy or other insolvency proceeding.
5. This Agreement represents Employee's entire understanding with Company
with regard to his employment and may be changed only by a written agreement
signed by an authorized representative of Company and Employee.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Employment Agreement as of the day and year first above written.
EMPLOYEE: COMPANY:
AmeriFirst, Inc.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxx X. Xxxxx Xxxxxx X. Xxxxxxxxxxx
Chairman of the Board of Directors
