Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement is made on this 4th day of December, 1999,
between xxxxxxxxxxxxxxxx.xxx corp. ("Employer"), whose principal place of
business at 0000 X. Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, and
XXXXXX XXXXXXXXX ("Employee").
WHEREAS, Employer is actively engaged in the business of a securities
brokerage firm; and,
WHEREAS, Employer wishes to employ Employee and Employee wishes to be
employed pursuant to the terms of this Employment Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained in this Employment Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound, agree as follows:
Article 1
Employment of Employee
Employer agrees to employ Employee, and Employee accepts employment
with Employer, on and subject to the terms and conditions set forth in this
Employment Agreement upon receipt of written confirmation from U.S. Clearing of
the transfer of all Newport Discount Brokerage, Inc. accounts to Employer.
Article 2
Duties of Employee
Section 2.1. Position and Duties. Employer agrees to employ Employee to
act as "Director of Customer Service" for Employer. Employee shall be
responsible for performing the duties customarily performed by a director of
customer service including without limitation, management of customer service
department and customer retention functions. Employer reserves the right from
time to time to change the nature of Employee's duties and job title.
Section 2.2. Time Devoted to Work. Employee agrees to devote Employee's
entire business time, attention, and energies to the business of Employer in
accordance with Employer's instructions and directions and shall not be engaged
in any other business activity, whether or not the activity is pursued for gain,
profit, or other pecuniary advantage, during the term of this Employment
Agreement without Employer's prior written consent provided that Employee shall
be permitted reasonable time to "wind down" the business of Newport Discount
Brokerage, Inc.
Article 3
Place of Employment
Section 3.1. Place of Employment. Employee shall be based at Employer's
principal office at 0000 X. Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000
and shall not be required to travel away from that office on business more than
sixty (60) days during a calendar year. Employer agrees that during the term of
this Employment Agreement it shall not assign Employee to work at any location
which is more than 100 miles from said principal office without Employee's
consent.
Section 3.2. Moving Expenses. If Employer relocates its principal
office more than 100 miles from its current principal office, or requests that
Employee relocate to one of its offices which is more than 100 miles from its
current principal office, and Employee consents to relocate to that new
location, Employer shall promptly pay or reimburse Employee for all reasonable
moving expenses incurred by Employee in connection with the relocation plus an
amount to reimburse Employee for any federal and state income taxes that it has
to pay on amounts reimbursed. Employer also shall indemnify Employee against any
loss incurred in connection with the sale of Employee's principal residence. The
amount of any loss shall be determined by taking the difference between the
average of two appraisal prices set by two independent appraisers agreed to by
Employer and Employee and the actual sales price of Employee's principal
residence.
Article 4
Compensation of Employee
Section 4.1. Base Salary. For all services rendered by Employee under
this Employment Agreement, Employer agrees to pay Employee an annual base salary
of $100,000.00, which shall be payable to Employee in such installments, but not
less frequently than monthly, as are consistent with Employee's practice for its
other Employees. Employee's base salary shall be reviewed at least once a year
by Employer and shall be increased at a minimum by the percentage increase in
the Consumer Price Index for the previous year.
Section 4.2. Incentive Compensation. In addition to the base
salary, Employee shall be entitled to receive incentive compensation, as
determined by Employer's Board of Directors.
Section 4.3. Reimbursement for Business Expenses. Employer shall
promptly pay or reimburse Employee for all reasonable business expenses incurred
by Employee in performing Employee's duties and obligations under this
Employment Agreement, but only if Employee properly accounts for expenses in
accordance with Employer's policies.
Article 5
Vacations and Other Paid Absences
Section 5.1. Vacation Days. Employee shall be entitled to three (3)
weeks paid vacation days each calendar year during the term of this Employment
Agreement. During the first calendar year of this Employment Agreement, Employee
shall be entitled to two (2) weeks paid vacation days.
Section 5.2. Holidays. Employee shall be entitled to the same paid
holidays as authorized by Employer for its other Employees.
Section 5.3. Sick Days and Personal Absence Days. Employee shall be
entitled to the same number of paid sick days and personal absence days
authorized by Employer for its other Employees.
Article 6
Fringe Benefits
Employee shall be entitled to participate in and receive benefits from
all of Employer's Employee benefit plans that currently are maintained by
Employer for its Employees. Employee shall be entitled to participate in and
receive benefits under any retirement plan, profit-sharing plan, or other
Employee benefit plan that Employer establishes for the benefit of its Employees
after the date of this Employment Agreement. No amounts paid to Employee from an
Employee benefit plan shall count as compensation due Employee as base salary or
incentive compensation. Nothing in this Employment Agreement shall prohibit
Employer from modifying or terminating any of its Employee benefit plans in a
manner that does not discriminate between Employee and other Employees of
Employer.
Article 7
Disability
If, because of illness or injury, Employee becomes unable to work full
time for Employer for a period of more than thirty (30) days, Employer may, in
its sole discretion at any time after that period give Employee thirty (30) days
written notice that it will replace Employee if Employee is unable to return to
work full time before the date specified in the written notice. Replacement of
Employee shall not be considered a termination of Employee's employment under
this Employment Agreement.
Article 8
Termination of Employment
Section 8.1. Term of Employment. Employee's employment shall commence
on the date of execution by Employer and shall continue for three (3) years
("end-of-employment date"), unless extended or terminated sooner, as provided by
this article of the Employment Agreement.
Section 8.2. Extension of Employment. On the end-of-employment date and
every three (3) years thereafter, Employee's employment with Employer may be
extended upon terms mutually agreeable to the parties.
Section 8.3. Termination at Employee's Death. Employee's employment
with Employer shall terminate at Employee's death.
Section 8.4. Termination by Employee. Employee may, but is not
obligated to, terminate this Employment Agreement at any time under the
following circumstances:
(a) Employee's health becomes so impaired that continued performance of
Employee's duties under this Employment Agreement would be hazardous to
Employee's physical or mental health, as determined by qualified medical
professionals.
(b) Employee's fringe benefits or other compensation are materially
reduced, unless similar reductions are made to all employees.
(c) Employer becomes insolvent or files a bankruptcy petition.
(d) Employer breaches this Agreement and such breach is not cured
within 15 days after Employee gives written notice of such breach to Employer.
Section 8.5. Termination by Employer.
(a) Termination for Cause. Employer may terminate Employee's
employment for Cause.
(b) "Cause" Defined. Employer shall have cause to terminate Employee's
employment if Employee fails to substantially perform any duties required by
this Employment Agreement, Employee is grossly negligent in the performance of
required duties, Employee engages in conduct that damages Employer, Employee is
convicted of a felonious act of moral turpitude, or Employee discloses material
confidential information in violation of Article 9 of this Employment Agreement.
Employer shall have cause to terminate Employee's employment should Employee's
performance, attitude, or work habits become unreasonable as determined by the
Board of Directors after notice to Employee and a reasonable cure period .
Section 8.6. Notice of Termination. Any termination of Employee's
employment by Employer or Employee must be communicated to the other party by a
written notice of termination. The notice must specify the provision of this
Employment Agreement authorizing the termination and must set forth in
reasonable detail the facts and circumstances providing the basis for
termination of Employee's employment.
Section 8.7. Date Termination Is Effective. If Employee's employment
terminates because this Employment Agreement expires, then Employee's employment
will be considered to have terminated on that expiration date. If Employee's
employment terminates because of Employee's death, then Employee's employment
will be considered to have terminated on the date of Employee's death. If
Employee's employment is terminated by Employee, then Employee's employment will
be considered to have terminated on the date that notice of termination is
given. If Employee's employment is terminated by Employer for Cause, then
Employee's employment will be considered to have terminated on the date
specified by the notice of termination.
Section 8.8. Compensation Following Termination.
(a) If Employee's employment is terminated by Employer for Cause or
Employee terminates his employment other than for the reasons set forth in
Section 8.4, Employer shall pay Employee/Employee's then current base salary
through the date employment is terminated, and Employer shall have no further
obligations to Employee under this Employment Agreement, except to pay benefits
accrued under Employer's benefit plans through the date of termination (in
accordance with the terms thereof) and to pay incentive payments earned prior to
the termination date but payable after such date.
(b) If Employer terminates Employee's employment other than for Cause,
or if Employer's termination of Employee's employment for Cause is found to be
without basis or in bad faith or if Employee terminates his employment pursuant
to Section 8.4(b), (c) or (d), Employer shall pay Employee Employee's then
current base salary through the date employment is terminated and any legal fees
and expenses incurred by Employee to enforce Employee's rights under this
Employment Agreement. In addition, Employer shall pay Employee as liquidated
damages an amount equal to the sum of Employee's then current annual base salary
plus the annualized amount of incentive compensation paid to Employee most
recently before the date Employee's employment was terminated, divided by 12 and
then multiplied by the number of full and partial months remaining in the term
of this Employment Agreement, including extensions. In addition, Employer shall
pay benefits accrued under Employer's benefit plans through the date of
termination (in accordance with the terms thereof) and to pay incentive payments
earned prior to the termination date but payable after such date.
Article 9
Confidential Information
Section 9.1. Confidential Information Defined. "Confidential
Information" as used in this Employment Agreement shall mean any and all
technical and non-technical information belonging to, or in the possession of,
Employer or its officers, directors, Employees, affiliates, subsidiaries,
clients, vendors, or Employees, including without limitation, patent, trade
secret, and proprietary information; techniques, sketches, drawings, models,
inventions, know-how, processes, apparatus, equipment, algorithms, source codes,
object codes, software programs, software source documents, and formulae related
to Employer's business or any other current, future and/or proposed business,
product or service contemplated by Employer; and includes, without limitation,
all information concerning research, experimental work, development, design
details and specifications, engineering, financial information, procurement
requirements, purchasing, manufacturing, customer lists, vendor lists, business
forecasts, sales and merchandising, and marketing plans or similar information.
Section 9.2 Disclosures. Employee agrees that it shall, at no time
during or after termination of this Employment Agreement, directly or indirectly
make use of, disseminate, or in any way disclose Confidential Information to any
person, firm or business, except to the extent necessary for performance of this
Employment Agreement. Employee agrees that it shall disclose Confidential
Information only to Employer's other Employees who need to know such information
and who have previously agreed to be bound by the terms and conditions of a
substantially similar confidentiality provision and shall be liable for damages
for the intentional or negligent disclosure of Confidential Information.
Employee's obligations with respect to any portion of Confidential Information
shall terminate only when Employee can demonstrate to Employer that (a) such
information (i) is or becomes generally available to the public through no fault
or neglect of the Receiving Party, (ii) is received in good faith on a
non-confidential basis from a third party who discloses such Confidential
Information without violating any obligations of secrecy or confidentiality or
(iii) was already possessed at the time of receipt as shown by prior dated
written records; or (b) the communication was in response to a valid order by a
court of competent jurisdiction or was necessary to establish the rights of
Employer under this Employment Agreement.
Section 9.3. Survival. This Article 9 shall survive any termination
of this Agreement and all extended periods.
Article 10
Section 10.1. Non-Compete. Until the second anniversary of the date of
Employee's termination for any reason, Employee will not, directly or
indirectly, either as a principal, manager, agent, consultant, officer,
stockholder, partner, investor, lender or employee (or in any other capacity),
carry on, be engaged in or have any financial interest in any business which is
directly or indirectly in competition with the business of Employer or its
subsidiaries as of the date Employee ceases to be affiliated with Employer;
provided, however, that this clause (i) shall not be breached by (x) Employee's
passive investment in not more than 5% of the equity of a public company engaged
in direct or indirect competition with the business of Employer or its
subsidiaries or (y) Employee's involvement as an employee of or consultant to a
business directly or indirectly in competition with the Employer or its
subsidiaries as of the date Employee ceases to be affiliated with Employer (a
"Competitor") (and related equity positions therein arising as a result of
Competitor's standard employee equity plans) so long as Employee is not involved
in any activity(ies) of such Competitor, which, as performed by Employer and/or
its subsidiaries individually, or in the aggregate, comprise more than 20% of
the revenues of Employer or its subsidiaries, individually or collectively, as
shown in its most recent SEC filings as of the date Employee ceases to be
affiliated with Employer.
Section 10.2. No Solicitation or Acceptance. Notwithstanding
any contrary provision, Employee will not at any time after termination for any
reason, persuade or attempt to persuade any person or entity which is or was a
customer, client or supplier of Employer or its subsidiaries at or within one
year prior to termination of Employee's employment with Employer or its
subsidiaries for any reason, to cease doing business with Employer or its
subsidiaries with regard to any of Employer's or its subsidiaries' business
activities, or to reduce in any way the amount of business it does with Employer
or its subsidiaries with regard to any of Employer's or its subsidiaries'
business activities or accept any un-solicited business from said person(s) or
entities.
Section 10.3. Employee acknowledges that the restrictive
covenants (the "Restrictive Covenants") contained in Sections 10.1 and 10.2 are
a condition of this Agreement and are reasonable and valid in geographic and
temporal scope and in all other respects. If any court determines that any of
the Restrictive Covenants, or any part of any of the Restrictive Covenants, is
invalid or unenforceable, the remainder of the Restrictive Covenants and parts
thereof shall not thereby be affected and shall be given full effect, without
regard to the invalid portion. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable because
of the geographic or temporal scope of such provision, such court shall have the
power to reduce the geographic or temporal scope of such provision, as the case
may be, and, in its reduced form, such provision shall then be enforceable.
Section 10.4. If Employee breaches, or threatens to breach, any of the
Restrictive Covenants, Employer, in addition to and not in lieu of any other
rights and remedies it may have at law or in equity, shall have the right to
injunctive relief; it being acknowledged and agreed to by Employee that any such
breach or threatened breach would cause irreparable and continuing injury to
Employer and that money damages would not provide an adequate remedy to
Employer.
Section 10.5. Survival. This Article 10 shall survive any termination
of this Agreement and all extended periods.
Article 11
Notices
Any notice given under this Employment Agreement to either party shall
be made in writing. Notices shall be deemed given when delivered by hand or when
mailed by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the party at the address set forth below.
Employee's address: Xx. Xxxxxx Xxxxxxxxx
0000 X. Xxxxxxx Xxxxxxx, Xxxxx X
Xxxx Xxxxx, XX 00000
Telecopy No.: (000) 000-0000
Employer's address: xxxxxxxxxxxxxxxx.xxx corp.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Each party may designate a different address for receiving notices by giving
written notice of the different address to the other party. The written notice
of the different address will be deemed given when it is received by the other
party.
Article 12
Binding Agreement
Section 12.1. Employer's Successors. The rights and obligations of
Employer under this Employment Agreement shall inure to the benefit of and shall
be binding in all respects upon the successors and assigns of Employer.
Section 12.2. Employee's Successors. This Employment Agreement shall
inure to the benefit and be enforceable by and upon Employee's personal
representatives, legatees, and heirs. If Employee dies while amounts are still
owed, such amounts shall be paid to Employee's legatees or, if no such person or
persons have been designated, to Employee's estate.
Article 13
Waivers
The waiver by either party of a breach of any provision of this
Employment Agreement shall not operate or be construed as a waiver of any
subsequent breach.
Article 14
Entire Agreement
Section 14.1. No Other Agreements. This instrument contains the entire
agreement of the parties with respect to employment. The parties have not made
any agreements or representations, oral or otherwise, express or implied,
pertaining to the subject matter of this Employment Agreement other than those
specifically included in this Employment Agreement.
Section 14.2. Prior Agreements. This Employment Agreement supersedes
any prior agreements pertaining to or connected with or arising in any manner
out of the employment of Employee by Employer. All such prior agreements are
terminated and are of no force or effect whatsoever.
Article 15
Amendment of Agreement
No change or modification of this Employment Agreement shall be valid
unless it is in writing and signed by the party against whom the change or
modification is sought to be enforced.
Article 16
Severability of Provisions
If any provision of this Employment Agreement is invalidated or held
unenforceable, the invalidity or unenforceability of that provision or
provisions shall be deemed modified or severed only to the minimum extent
necessary to make said provision(s) valid and enforceable while maintaining the
intent of said provision(s). No such modification shall affect the validity or
enforceability of any other provision of this Employment Agreement.
Article 17
Governing Law, Arbitration, Injunctive Relief
17.1 Governing Law. All questions regarding the validity and
interpretation of this Employment Agreement shall be governed by and construed
and enforced in all respects in accordance with the laws of the State of
Florida.
17.2. Arbitration. Except as specifically provided herein, all disputes
between the parties arising out of and under this Agreement shall be submitted
to the American Arbitration Association (AAA) located in Palm Beach County,
Florida. The decision of the AAA shall be binding on all parties.
17.3. Preliminary Injunctive Relief. Notwithstanding any provision to
the contrary, either party is entitled to seek preliminary injunctive relief
(e.g. temporary restraining or temporary injunction) from a court of competent
jurisdiction prior to and while any arbitration proceeding is pending.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
in duplicate on the date and year first above written.
EMPLOYEE:
/s/ Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
EMPLOYER:
xxxxxxxxxxxxxxxx.xxx corp.
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, CEO
