EXHIBIT 10.7
EMPLOYMENT AGREEMENT, dated as of the 16th day of October 2003
(the "Effective Date") by and between PARAGON FINANCIAL CORPORATION, a Delaware
corporation (the "Company"), and XXXXXX X. XXXXXX (the "Executive").
WHEREAS, the Company and the Executive entered into an
employment agreement effective as of the Effective Date which set forth the
terms and conditions upon which the Executive shall be employed by of the
Company and upon which the Company shall compensate the Executive;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants hereinafter set forth, the parties hereto have agreed, and do
hereby agree, as follows:
1. EMPLOYMENT; TERM
The Company will employ the Executive in its business, and the Executive
will work for the Company therein, as the Company's Chief Executive Officer
for a term commencing as of the Effective Date and terminating on October
15, 2007 (the "Employment Period"). Such employment may be terminated by
the Company at any time for "cause". As used in this Agreement, "cause"
shall include, but not necessarily be limited to, the Executive's
commission of any act in the performance of his duties constituting common
law fraud, a felony or other gross malfeasance of duty, insubordination,
any misrepresentation or breach of any covenant on the Executive's part
herein set forth, violation of federal or state securities laws, rules or
regulations, or violation of rules or regulations of NASDAQ or other stock
exchange on which the Company is, or may become listed or included during
the Employment Period, for which the Executive is found guilty or liable,
or he agrees to pay fines or suffer sanctions or injunctive relief whether
or not he is found to be guilty or liable, or the Executive's engagement in
misconduct or activities which is materially injurious to the Company or
its subsidiaries or which brings the Company or its subsidiaries and/or the
Company's Board of Directors into disrepute.
2. DUTIES
2.1 During the Employment Period, the Executive shall serve as the
Company's Chief Executive Officer. As Chief Executive Officer he shall be
primarily responsible for coordinating and directing the Company's
activities in accordance with the policies and objectives established by
the Company's Board of Directors, including but not necessarily limited to
raising investment capital to fund initial operations as well as
acquisitions, supervise the ongoing performance of acquired operating
companies, maximize shareholder value through earnings derived from
operational efficiencies and additional acquisitions, develop an
institutional investor following to enhance share value, recruit necessary
management talent to support future growth, and shall have such further
duties of an executive character as shall, from time to time, be delegated
or assigned by the Board of Directors of the Company consistent with the
Executive's position. He shall report to the Chairman of the Board of
Directors.
3. DEVOTION OF TIME
During the Employment Period, the Executive shall expend all
of his working time for the Company; shall devote his best efforts, energy and
skill to the services of the Company and the promotion of its interests; and
shall not take part in activities detrimental to the best interests of the
Company.
4. COMPENSATION
4.1 For all services to be rendered by the Executive during
the Employment Period and in consideration of the Executive's representations
and covenants set forth in this Agreement, the Executive shall be entitled to
the compensation set forth in Paragraph 4.2.
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4.2 The Executive shall be entitled to receive from the
Company during the Employment Period minimum compensation at the rate of Two
Hundred Forty Thousand Dollars ($240,000) per annum (the "Salary"). The
Executive shall be entitled to such additional increments as shall be determined
from time to time by the Board of Directors of the Company. All amounts due
thereafter shall be payable in accordance with the Company's standard payroll
practices.
4.3 The Company agrees to reevaluate the Executive's Salary at
the six-month and one-year anniversaries of the Effective Date based on a review
of compensation paid by similarly situated companies within the same industry to
executives with similar duties.
5. REIMBURSEMENT OF EXPENSES
The Company shall pay directly, or reimburse the Executive
for, all reasonable and necessary expenses and disbursements incurred by the
Executive for and on behalf of the Company in the performance of his duties
during the Employment Period, including, without limitation, all reasonable
expenses incurred by the Executive for food, lodging and transportation, if he
is required to perform any of his duties away from his primary place of
residence. For such purposes, the Executive shall submit to the Company, not
less than once in each calendar month, reports of such expenses and other
disbursements in form normally used by the Company.
6. BENEFITS
6.1 Vacation. The Executive shall be entitled to reasonable
vacations during the Employment Period, the time and duration thereof to be
determined by mutual agreement between the Executive and the Company.
6.2 Options. As a further inducement for the Executive to
enter into and perform this Agreement, the Executive shall be granted options
(the "Options") to purchase up to Twelve Million Five Hundred Thousand
(12,500,000) shares of Common Stock, par value $.0001 per share of the Company
(the "Option Shares") which shall vest as follows: (i) One Million Five Hundred
Thousand (1,500,000) option shares as of the date of grant, (ii) Five Hundred
Thousand (500,000) Option Shares on each of the first, second and third
anniversaries of the Effective Date, and (iii) Nine Million Five Hundred
Thousand (9,500,000) Option Shares on the fourth anniversary of the Effective
Date. The foregoing notwithstanding, the vesting of the Option Shares scheduled
to vest on the fourth anniversary of the Effective Date shall be subject to
earlier vesting if: (i) the following occurs prior to the fourth anniversary of
the Effective Date: Two Million (2,000,000) Option Shares on the initial date
the Company reaches annual revenues of (a) Fifty Million Dollars ($50,000,000),
(b) One Hundred Million Dollars ($100,000,000), (c) One Hundred Fifty Million
Dollars ($150,000,000), and (d) Two Hundred Million Dollars ($200,000,000); and
(ii) One Million Five Hundred Thousand Option Shares shall vest in the event
that the Company consummates a private placement equity financing with proceeds
to the Company of at least Two Million dollars ($2,000,000) and the Company
receives the proceeds of such financing within thirty days of the Effective
Date. The Options shall (i) be granted out of the Company's 2002 Equity
Participation Plan; (ii) have an exercise price of One Hundred Percent (100%) of
the of the market value of the shares of Common Stock on the date of grant; and
(iii) have an exercise period of ten (10) years from the date of grant.
6.3 Automobile Allowance. During the term of this Agreement,
the Company shall provide the Executive with a monthly automobile allowance in a
reasonable amount to be mutually determined by the Executive and the Company.
7. RELOCATION MATTERS
The Company shall reimburse Executive for reasonable and
customary relocation expenses to be mutually agreed to by the Company and
Executive for Executive's relocation to Ponte Vedra Beach, Florida.
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8. DISABILITY
If, during the Employment Period, the Executive shall, in the
opinion of a majority of the members of the Board of Directors of the Company
(excluding the Executive), as confirmed by competent medical evidence, become
physically or mentally incapacitated to perform his duties for the Company
hereunder ("Disabled") for a continuous period of thirty (30) days, then the
Company shall have the right, by written notice, to terminate the Executive's
employment hereunder as of a date (not less than five (5) days after the date of
the sending of such notice) to be specified in such notice. The Executive agrees
to submit himself for appropriate medical examination to a physician of the
Company's designation as necessary for purposes of this Paragraph 8. In no event
shall the Executive be entitled to receive any payments under this Paragraph 8
beyond the expiration or termination date of this Agreement.
9. RESTRICTIVE COVENANT
9.1 (a) The Executive represents that he has been informed
that it is the policy of the Company to maintain as secret all Confidential
Information (as hereinafter defined) relating to the Company, including, without
limitation, any and all knowledge or information with respect to secret or
confidential business methods, business plans, customer lists, strategic
business data, financial, operating or marketing records or with respect to any
other confidential or secret aspect of the Company's activities (collectively
the "Proprietary Information"), and further acknowledges that such Confidential
Information is of great value to the Company. The Executive recognizes that, by
reason of his employment with the Company, he has acquired and will acquire
Confidential Information as aforesaid. The Executive confirms that it is
reasonably necessary to protect the Company's goodwill, and, accordingly, hereby
agrees that he will not, directly or indirectly (except where authorized by the
Board of Directors of the Company for the benefit of the Company or as requested
by law, or regulation or applicable legal regulatory or administrative process
or by a court of competent jurisdiction), at any time during the term of this
Agreement or thereafter divulge to any person, or use, or cause or authorize any
person, firm or other entity to use, any such Confidential Information.
(b) The Executive agrees that, upon the expiration or
termination of this Agreement for any reason whatsoever, he shall promptly
deliver to the Company any material relating to any Confidential Information as
well as all memoranda, notes, records, documents, or other writings whatsoever
made, compiled, acquired, or received by the Executive during the term of this
Agreement, arising out of, in connection with, or related to any activity or
business of the Company including, but not limited to, the customers or others
with whom the Company has a business relationship, the arrangements of the
Company with such parties, as well as any expansion policies and strategies for
the future growth of the Company, and the Executive further agrees that all of
the above mentioned items are, and shall continue to be, the sole and exclusive
property of the Company, as applicable, and shall, together with all copies
thereof, be returned and delivered to the Company within five (5) days of the
termination of this Agreement, or at any time upon the Company's demand.
(c) For purposes hereof, the term "Confidential
Information" shall mean all Proprietary Information given to the Executive,
directly or indirectly, in paper or electronic form and all other Proprietary
Information relating to the Company otherwise acquired by the Executive during
the course of his employment with the Company, other than Proprietary
Information which (i) was in the public domain at the time furnished to, or
acquired by, the Executive, or (ii) thereafter enters the public domain other
than through disclosure, directly or indirectly, by the Executive or others in
violation of an agreement of confidentiality or nondisclosure.
9.2 For purposes of this Paragraph 9, the term "Company" shall
mean and include any and all subsidiaries, indirect subsidiaries, parents and
affiliated entities of the Company in existence from time to time.
10. PARTICIPATION IN EXECUTIVE BENEFIT PLANS
10.1 The Executive and any beneficiary of the Executive shall
be accorded the right to participate in and receive benefits under and in
accordance with the provisions of any pension, profit sharing, insurance, bonus,
deferred compensation, medical and dental insurance or reimbursement or other
plan or program
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of the Company either in existence as of the date hereof or hereafter adopted
for the benefit of its executive Executives.
10.2 Until the Company, or its parent or other entity
establishes group medical and dental insurance plans in which the Executive, by
virtue of being an employee of the Company, is entitled to participate, the
Executive shall be entitled to receive from the Company, an amount equal to the
amount that the Executive pays for his current COBRA coverage with a third party
(the "COBRA Reimbursement"), if any.
11. SERVICE AS OFFICER OF PARENT AND SUBSIDIARIES; SERVICE AS
DIRECTOR
During the Employment Period, the Executive shall, if elected
or appointed, serve as (a) an officer of the sole parent and/or any subsidiaries
or indirect subsidiaries of the Company in existence or hereafter created or
acquired, (b) a Director of the Company and/or the sole parent and/or any such
subsidiaries of the Company, in each case without any additional compensation
for such services. Executive acknowledges that (i) when he was originally
appointed to the board of directors it was as an outside director and as such
was to be granted shares of restricted stock, (ii) Executive is now serving as
Chief Executive Officer and a director and is executing this Employment
Agreement and being granted Option Shares in consideration of such service and
future service; (iii) Executive and the Company rescind and cancel any such
restricted stock granted or purported to be granted, or promised to be granted
prior to the date hereof.
12. EARLIER TERMINATION
12.1 The Executive's employment hereunder shall
automatically terminate upon his death.
12.2 The Company may terminate this Agreement at its
option upon:
(a) the Executive's incapacity in accordance with the
provisions set forth in Section 8 hereof;
(b) one (1) day's prior written notice to the
Executive in the event the Company terminates his employment hereunder for cause
as set forth in Section 1 hereof;
(c) the Executive's voluntarily leaving the employ of
the Company; or
(d) at any time within twelve (12) months after a
Change in Control immediately upon written notice to the Executive without any
further liability hereunder to the Executive, except to the extent set forth in
Section 12.4 hereof. For purposes of this Agreement, the terms "Change of
Control" shall mean, except in connection with, or in relation to, a capital
raising transaction:
(i) The transfer, through one transaction or a series
of related transactions, either directly or indirectly, or through one or more
intermediaries, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934) of 50% or more of either
the then outstanding shares of common stock or the combined voting power of the
Company's then outstanding voting securities entitled to vote generally in the
election of directors, or the last of any series of transfers that results in
the transfer of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934) of 50% or more of either
the then outstanding shares of common stock or the combined voting power of the
Company's then outstanding voting securities entitled to vote generally in the
election of directors;
(ii) Approval by the shareholders of the Company of a
merger or consolidation, with respect to which persons who were the shareholders
of the Company immediately prior to such merger or consolidation do not,
immediately thereafter, own more than 50% of the combined voting power entitled
to vote generally in the election of directors of the merged or consolidated
company's then outstanding voting securities, or a liquidation or dissolution of
the Company or the sale of all or substantially all of the assets of the
Company;
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(iii) The transfer, through one transaction or a
series of related transactions, of more than 50% of the assets of the Company,
or the last of any series of transfers that results in the transfer of more than
50% of the assets of the Company. For purposes of this paragraph, the
determination of what constitutes more than 50% of the assets of the Company
shall be determined based on the most recent financial statement prepared by the
Company's independent accountants; or
(iv) During any calendar year, individuals who at the
beginning of such year constituted the Board of Directors of the Company and any
new director or directors whose election by the Board of Directors was approved
by a vote of a majority of the directors then still in office who either were
directors at the beginning of the year or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority thereof provided, however, that this provision will not be triggered in
the event the Executive votes or causes other stockholders to vote their shares
to cause said change to the directorship of the Company.
Notwithstanding the foregoing, in no event shall a Change in Control be deemed
to have occurred if the Executive is part of a purchasing group, which
consummates the Change in Control transaction. The Executive shall be deemed
"part of a purchasing group" for purposes of the preceding sentence if the
Executive is an equity participant or has agreed to become an equity participant
in the purchasing company or group (except for ownership of less than five
percent (5%) of the voting securities of the purchasing company).
12.3 The Executive may terminate this Agreement at any time
within twelve (12) months after a Change in Control, upon thirty (30) days prior
written notice to the Company. In such case, the Company will have no further
liability hereunder to the Executive, except to the extent set forth in
Paragraph 12.4 hereof.
12.4 (a) Except as provided below in Paragraph 12.4(b), upon
termination of the Executive's employment with the Company, the Company shall
have no further obligations to the Executive and the Executive shall be entitled
to no further compensation from the Company, except for any pro-rata amounts due
to the Executive at such date of termination, as provided for in Paragraph 4.2.
(b) In the event this Agreement is terminated by the
Company pursuant to the provisions of Paragraph 12.2(d) hereof or by the
Executive pursuant to the provisions of Paragraph 12.3 hereof after the
occurrence of a Change of Control, the Executive shall be entitled to receive
(a) any accrued, but unpaid, Salary, (b) any authorized but unreimbursed
business expenses and any vacation or sick leave benefits which have accrued as
of the date of termination of the Agreement, but were then unpaid or unused, (c)
any accrued but unpaid bonus, if any, and (d) an amount equal to One Hundred
(100%) percent of the pro-rated monthly Salary amount payable hereunder for the
unexpired Employment Period of the Agreement whether or not the Executive has
sought or obtained employment elsewhere after the termination of the Executive's
employment pursuant to the provisions of Paragraph 12.2(d) or Paragraph 12.3
hereof. Any amount due the Executive under clauses (a), (b), (c) and/or (d) of
this paragraph shall be paid in a lump sum in cash within thirty (30) days after
the termination of the Executive's employment hereunder, the Company at its
expense shall continue to provide the Executive with the medical and dental
benefits set forth in Paragraph 10 above for the unexpired Employment Period of
this Agreement whether or not the Executive as sought or obtained employment
elsewhere after the termination of the Executive's employment; provided,
however, if the Executive obtains employment elsewhere during the aforesaid
period, then the Company shall continue to provide the benefits set forth in
Paragraph 10 hereof only to the extent the Executive does not receive such
benefits in their entirety from the Executive's current employer. Upon payment
of the amount, if any, due the Executive pursuant to this Paragraph 12.4(b), the
Company shall have no further obligation to the Executive under this Agreement.
12.5 Upon the termination of the Executive's employment, the
Employment Period shall be deemed to have ended. Notwithstanding anything to the
contrary herein, in the case of termination because of a Change in Control
pursuant to the provisions of Paragraph 12.2(d) or Paragraph 12.3 hereof, the
provisions of Paragraph 9 hereof shall continue and remain in full force and
effect as if the Employment Period continues to expiration on the original
expiration date set forth in Paragraph 1 hereof.
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13. INJUNCTIVE RELIEF
The Executive acknowledges and agrees that, in the event he
shall violate any of the restrictions of Paragraph 3 or 9 hereof, the Company
will be without an adequate remedy at law and will therefore be entitled to
enforce such restrictions by temporary or permanent injunctive or mandatory
relief in any court of competent jurisdiction without the necessity of proving
damages and without prejudice to any other remedies which it may have at law or
in equity. The Executive acknowledges and agrees that, in addition to any other
state having proper jurisdiction, any such relief may be sought in, and for such
purpose the Executive consents to the jurisdiction of, the courts of the State
of Florida.
14. NO RESTRICTIONS
The Executive hereby represents that neither the execution of
this Agreement nor his performance hereunder will (a) violate, conflict with or
result in a breach of any provisions of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under
the terms, conditions or provisions of any contract, agreement or other
instrument or obligation to which the Executive is a party, or by which he may
be bound, or (b) violate any order, judgment, writ, injunction or decree
applicable to the Executive. In the event of a breach hereof, in addition to the
Company's right to terminate this Agreement, the Executive shall indemnify the
Company and hold it harmless from and against any and all claims, losses,
liabilities and expenses (including reasonable attorneys' fees) incurred or
suffered in connection with or as a result of the Company's entering into this
Agreement or employing the Executive hereunder.
15. ARBITRATION
15.1 Except with regard to Paragraph 13 hereof and any other
matters that are not a proper subject of arbitration, all disputes between the
parties hereto concerning the performance, breach, construction or
interpretation of this Agreement or any portion thereof, or in any manner
arising out of this Agreement or the performance thereof, shall be submitted to
binding arbitration, in accordance with the rules of the American Arbitration
Association (the "AAA"), which arbitration shall be carried out in the manner
hereinafter set forth.
15.2 Within twenty (20) days after written notice by one party
to the other of its demand for arbitration, which demand shall set forth the
name and address of its arbiter, the other party shall select its arbiter and so
notify the demanding party. Within twenty (20) days thereafter, the two arbiters
so selected shall select the third arbiter. The decision of any two (2) arbiters
shall be binding upon the parties. In default of either side naming its arbiter
as aforesaid or in default of the selection of the said arbiter as aforesaid,
the AAA shall designate such arbiter upon the application of either party. The
arbitration proceeding shall take place at a mutually agreeable location in
Ponte Vedra Beach, Florida or such other location as agreed to by the parties.
15.3 A party who files a notice of demand for arbitration must
assert in the demand all claims then known to that party on which arbitration is
permitted to be demanded. When a party fails to include a claim through
oversight, inadvertence or excusable neglect, or when a claim has matured or
been acquired subsequently, the arbitrators may permit amendment. A demand for
arbitration shall be made within a reasonable time after the claim has arisen,
and in no event shall it be made after the date when institution of legal or
equitable proceedings based on such claim would be barred by the applicable
statute of limitations.
15.4 The award rendered by the arbitrators shall be final,
binding and conclusive, and judgment may be entered upon it in accordance with
applicable law in the appropriate court in the State of Florida, with no right
of appeal therefrom.
15.5 Each party shall pay its or his own expenses of
arbitration, and the expenses of the arbitrators and the arbitration proceeding
shall be equally shared; provided, however, that, if, in the opinion of a
majority of the arbitrators, any claim or defense was unreasonable, the
arbitrators may assess, as part of their award, all or any part of the
arbitration expenses of the other party (including reasonable attorneys' fees)
and of the arbitrators and the arbitration proceeding against the party raising
such unreasonable claim or defense.
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16. ASSIGNMENT
This Agreement, as it relates to the employment of the
Executive or his right to acquire Option Shares, is a personal contract and the
rights and interests of the Executive hereunder may not be sold, transferred,
assigned, pledged or hypothecated.
17. NOTICES
Any notice required or permitted to be given pursuant to this
Agreement shall be deemed to have been duly given when delivered by hand or sent
by certified or registered mail, return receipt requested and postage prepaid,
overnight mail or telecopier as follows:
If to the Executive:
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If to the Company:
0000 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopier Number: (000) 000-0000
or at such other address as any party shall designate by notice to the other
party given in accordance with this Paragraph 17.
18. GOVERNING LAW
This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Florida applicable to
agreements made and to be performed entirely in Florida.
19. WAIVER OF BREACH; PARTIAL INVALIDITY
The waiver by either party of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach. If any provision, or part thereof, of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision or the part thereof and not in any way affect or render
invalid or unenforceable any other provisions of this Agreement, and this
Agreement shall be carried out as if such invalid or unenforceable provision, or
part thereof, had been reformed, and any court of competent jurisdiction or
arbiters, as the case may be, are authorized to so reform such invalid or
unenforceable provision, or part thereof, so that it would be valid, legal and
enforceable to the fullest extent permitted by applicable law.
20. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof. This Agreement supersedes all
prior agreements, understandings, negotiations and discussions, whether written
or oral, of the parties hereto relating to the transactions contemplated by this
Agreement. This Agreement may be amended only by a writing executed by the
parties hereto.
21. WAIVER OF JURY TRIAL. THE COMPANY AND THE EXECUTIVE ACKNOWLEDGE
THAT THE RIGHT TO A TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT THE RIGHT
MAY BE WAIVED. THE COMPANY AND THE EXECUTIVE EACH KNOWINGLY, VOLUNTARILY,
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IRREVOCABLY AND WITHOUT COERCION, WAIVE ALL RIGHTS TO TRIAL BY JURY OF ALL
DISPUTES BETWEEN THEM. NEITHER THE COMPANY NOR THE EXECUTIVE SHALL BE DEEMED TO
HAVE GIVEN UP THIS WAIVER OF JURY TRIAL UNLESS THE PARTY CLAIMING THAT THIS
WAIVER HAS BEEN RELINQUISHED HAS A WRITTEN INSTRUMENT SIGNED BY THE OTHER PARTY
STATING THAT THIS WAIVER HAS BEEN GIVEN UP. IN THE EVENT OF LITIGATION, A COPY
OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the day and year above written.
PARAGON FINANCIAL CORPORATION
By:
-----------------------------------
XXXX X. XXXXXX, CHAIRMAN OF THE
BOARD OF DIRECORS
-----------------------------------
XXXXXX X. XXXXXX
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