10.12
EMERGENT GROUP INC.
AGREEMENT dated this 21st day of November 2001 between XXXXXX XXX ("Xxx"),
and EMERGENT GROUP INC., a corporation organized in the. State of Nevada with an
office at 000 Xxxx Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000 ("Emergent")
(collectively referred to as the "Parties").
WHEREAS, Xxx has been employed and paid by Emergent since November 1, 2000;
and
WHERAS, the parties wish to enter into a written agreement to set forth
their respective rights and obligations.
It is hereby agreed by the parties hereto as follows:
1. Xxx agrees to be employed on a full time basis by Emergent (and/or one
or more of its subsidiaries), as Vice President of Finance, Secretary and
Treasurer of Emergent, and performing such duties as assigned to him by the
Chairman of the Board of Directors, and/or the Chief Executive Officer of
Emergent.
2. Xxx'x employment shall be deemed an employment at will, terminable on
fifteen days notice by Xxx or Emergent, for any reason, with or without cause.
In the event Xxx'x employment is terminated for any reason, the rights and
obligations of the parties shall be limited to those set forth in this
agreement.
3. During the time he remains employed by Emergent, Xxx shall receive the
following:
(a) base salary to be paid at the rate of $125,000 per year, subject to
any increases or bonuses to be awarded in the discretion of the
Board of Directors.
(b) the normal and customary health and vacation benefits provided to
other executive employees of Emergent.
4. Xxx shall receive stock options to purchase 500,000 common shares of
Emergent in which:
(a) options to purchase 500,000 common shares at $0.01 per share shall
vest and become exercisable upon the completion of the first year
of employment, November 1, 2001;
(b) The options in subsection (a) above shall expire if not exercised
by December 31, 2004.
(c) The number of common shares available for purchase and the exercise
price per share of the options granted in subsection (a) above
shall be adjusted to take into consideration any and all stock
splits or reverse stock splits that take place on or after November
1, 2001
5. Xxx shall not be entitled to any antidilution protection.
6. (a) Xxx acknowledges that it is the policy of the Emergent to
maintain as secret and confidential all information relating to (i)
the plans and operations of the Emergent, including without
limitation, their services, products, processes, etc., (ii) the
customers (including, without limitation, name, address and contact
person) of the Emergent, and (iii) employees of the Emergent (all
such information, except information that becomes generally
available to the public other than as a result of disclosure by
Xxx, or any other person or entity affiliated with him and Xxx
further acknowledges that such Confidential Information is of great
value to the Emergent.
(b)The parties hereto confirm that since it is reasonably necessary to
protect the Confidential Information, Xxx agrees that he will not
directly or indirectly (except where authorized by either the
Chairman or CEO) for or on behalf of himself or any Person
(hereinafter defined):
(i) At any time during his tenure as an employee of the Emergent and for
a period of three (3) years after he is no longer an employee for any
reason, divulge to any person (hereinafter referred to collectively
as a "third party", or use or cause to authorize any third parties to
use, any such Confidential Information, or any other information
regarded as confidential and valuable by the Emergent (whether or not
any of the foregoing information is actually novel or unique or is
actually known to others); or
(ii) at any time during his tenure as an employee of the Emergent and for a
period of one (1) year after he is no longer an employee of the Emergent
, for any reason, act as or be an officer, director, stockholder,
consultant or advisor, partner or employee of, or render any service
for, or have any profit-sharing or other interest in, or lend money or
make any other financial accommodation for or on behalf of, or undertake
any business transaction with, any Person that engages in or is planning
or preparing to engage, directly or indirectly, in either direct
competition with the Emergent or in the business of providing, within
New York City or its immediately surrounding metropolitan area, products
or performs services or any other products of services that (x) during
his tenure as an employee of the Emergent , constitute the same products
and/or services as those provided by the Emergent and (y) for one (1)
year thereafter, constitute products and/or services provided by the
Company as of the date that the Employee ceased to be an employee of the
Emergent (collectively a "Competitive Activity"), except that he may
hold securities that are part of a publicly traded class of securities
(not in excess of 5% of the outstanding total of any class of such
securities) in competitive concerns so long as she discloses such
holding to the Company; or
(iii) at any time during his tenure as an employee of the Emergent and for a
period of one (1) year after he is no longer any of an employee of the
Emergent for any reason, directly or indirectly solicit, compel,
influence or otherwise cause an employee of the Emergent to leave his or
her employment with the Emergent for work with a third party engaging in
a Competitive Activity; or
(iv) at any time during his tenure as an employee of the Emergent and for a
period of one (1) year after he is no longer any of an employee of the
Emergent for any reason, directly or indirectly solicit, compel,
influence or otherwise cause any customers or clients of the Emergent to
become customers or clients of a third party engaging in a Competitive
Activity; or
(v) at any time during his tenure as an employee of the Emergent and for an
applicable period thereafter specified in each of the clauses above,
negotiate for or enter into an agreement, understanding or arrangement,
or otherwise cause or authorize any Person, to take any of the actions
prohibited by this paragraph 6.
As used in this Agreement, the term "Person" shall mean any
person, corporation, partnership or other entity, and the term
"Client" shall mean anyone who is then a client of the Emergent or
any of its affiliates, and anyone who was a client of the Company
at any time preceding the alleged prohibited conduct.
(c) Xxx agrees that any breach or threatened breach by him of any
provision of this paragraph 6 will, because of the unique nature
of such services rendered by him to the Emergent and the
Confidential Information entrusted to him as aforesaid, cause
irreparable harm to the Emergent and shall entitle Emergent, in
addition to any other legal remedies available to them, to apply
to any court of competent jurisdiction to enjoin such breach or
threatened breach.
7. This Agreement is a personal contract, and the rights and
interests that the Agreement accords to Xxx may not be sold,
transferred, assigned, pledged, encumbered, or hypothecated by
him. All rights and benefits of Xxx shall be for his sole personal
benefit, and no other Person shall acquire any right, title or
interest under this Agreement by reason of any sale, assignment,
transfer, claim or judgment or bankruptcy proceedings against him.
Except as so provided, this Agreement shall inure to the benefit
of and be binding upon him and his personal representatives,
distributees and legatees.
8. This Agreement represents the entire agreement between the parties
concerning the Xxx'x employment arrangements with Emergent, and its related
affiliates and subsidiaries, and supercedes all prior negotiations, discussions,
understandings and agreements, whether written or oral, between Xxx and the
Emergent relating to the subject matter of this Agreement. In addition Xxx
acknowledges that the Emergent have not made any representations or promises to
him, and that he has not relied on any representations or promises, other than
those set forth in this agreement. Specifically Xxx expressly disclaims the
existence of, and any reliance by him upon, any representations regarding: (a)
the length or anticipated duration of his employment with the Emergent; (b) any
equity interest or profit participation in any existing or future Emergent
entity, except as expressly set forth in paragraph 4 above; and (c) any
compensation except as expressly set forth in this agreement.
9. No provision of this Agreement may be amended or waived unless such
amendment or waiver is agreed to in writing signed by Xxx and by the Chairman or
CEO of Emergent. No waiver by any party to this Agreement of any breach by
another party of any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of a similar or dissimilar condition
or provision at the same time, any prior time or any subsequent time.
10. Any notice to be given under this Agreement shall be in writing and
delivered personally or sent by overnight courier or registered or certified
mail, postage prepaid, return receipt requested, addressed to the party
concerned at the address indicated below, or to such other address of which such
party subsequently may give notice in writing:
If to Xxx: Xxxxxx Xxx
000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000-0000
Emergent: Emergent Group Inc.
000 Xxxx Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000
with a copy to: Xxxxxx, Xxxxxxxx & Felt, P.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attn: Xxxxxx Xxxxx, Esq.
Any notice delivered personally or by overnight courier shall be deemed given on
the date delivered and any notice sent by registered or certified mail, postage
prepaid, return receipt requested, shall be deemed given on the date mailed.
11. If any provision of this Agreement or the application of any such
provision to any party or circumstances shall be determined by any court of
competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to such person
or circumstances other than those to which it is so determined to be invalid and
unenforceable shall not be affected, and each provision of this Agreement shall
be validated and shall be enforced to the fullest extent permitted by law. If
for any reason any provision of this Agreement containing restrictions is held
to cover an area or to be for a length of time that is unreasonable or in any
other way is construed to be too broad or to any extent invalid, such provision
shall not be determined to be entirely null, void and of no effect; instead, it
is the intention and desire of the Emergent and Xxx that, to the extent that the
provision is or would be valid or enforceable under applicable law, any court of
competent jurisdiction shall construe and interpret or reform this Agreement to
provide for a restriction having the maximum enforceable area, time period and
such other constraints or conditions (although not greater than those contained
currently contained in this Agreement) as shall be valid and enforceable under
the applicable law.
12. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
13. All salary, benefits, reimbursements and any other payments to the
employee under this Agreement shall be subject to all applicable payroll and
withholding taxes and deductions required by any law, rule or regulation of
and federal, state or local authority.
14. This Agreement may be executed in one or more counterparts, each of
which shall he deemed to be an original but all of which together constitute
one and same instrument.
15. This Agreement shall be governed by the substantive law of the
State of New York without regard to conflict of law principles.
16. Except as expressly set forth herein, the parties consent to the
exclusive jurisdiction of the federal and state courts located within the
Borough of Manhattan in the event of any dispute or controversy which may
arise under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above
EMERGENT GROUP INC.
/S/ XXXXXX XXX, CHAIRMAN
/S/ XXXXXX XXX
