Employment Agreement
This Employment Agreement (the "Agreement") is entered into by and among
Xxxx Sand, an individual residing in the State of Florida (the "Employed
Executive") and Funds America Finance Corporation, a Delaware corporation (the
"Company"), the Employed Executive and the Company being collectively referred
to as the "Parties" and generically as a "Party".
Preamble:
WHEREAS, the Company's Board of Directors is of the opinion that in
conjunction with development of the Company's future plans, it must assure
itself of the services of an experienced chief operating officer on a long term
basis and in conjunction therewith, desires to assure itself of the services of
the Employed Executive, who currently serves as its vice president, treasurer,
director, chief financial officer and chief operating officer; and
WHEREAS, the Employed Executive is thoroughly knowledgeable with all
aspects of the Company's operations and plans; and
WHEREAS, the Employed Executive is agreeable to serving as the senior vice
president and chief operating officer, on the terms and conditions hereinafter
set forth:
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten Dollars and other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
This Agreement shall be for an initial term of two years, commencing on the
1st day of May, 1999.
1.2 Renewals.
This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual basis, unless the Party wishing not to
renew this Agreement provides the other Party with written notice of its
election not to renew ("Termination Election Notice") on or before the 180th day
prior to termination of the then current term.
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1.3 Earlier Termination.
The Company shall have the right to terminate this Agreement prior to the
expiration of its Term, or of any renewals thereof, subject to the provisions of
Section 1.4:
(a) For Cause:
(1)The Company may terminate the Employed Executive's employment under this
Agreement at any time for cause.
(2)Such termination shall be evidenced by written notice thereof to the
Employed Executive, which notice shall specify the cause for termination.
(3)For purposes hereof, the term "cause" shall mean the inability of the
Employed Executive, through sickness or other incapacity, to perform his duties
under this Agreement for a period in excess of one month, the refusal of the
Employed Executive Designee to follow the directions of the Company's Board of
Directors; dishonesty; theft; or conviction of a crime.
(b) Discontinuance of Business:
In the event that the Company discontinues operating its business, this
Agreement shall terminate as of the last day of the month on which the Company
ceases operation with the same force and effect as if such last day of the month
were originally set as the termination date hereof.
(c) Death:
This Agreement shall terminate immediately on the death of the Employed
Executive.
1.4 Final Settlement.
Upon termination of this Agreement and payment to the Employed Executive of
all amounts due him hereunder, the Employed Executive or his representative
shall execute and deliver to the Company on a form prepared by the Company a
receipt for such sums and a release of all claims, except such claims as may
have been submitted pursuant to the terms of this Agreement and which remain
unpaid, and, shall forthwith tender to the Company all records, manuals and
written procedures, as may be desired by the Company for the continued conduct
of its business.
Article Two
Scope of Employment
2.1 Retention.
The Company hereby hires the Employed Executive and the Employed Executive
hereby accepts such employment, in accordance with the terms, provisions and
conditions of this Agreement.
2.2 General Description of Duties.
(a)The Employed Executive shall perform the duties generally associated with the
position of a member of a corporation's board of directors and as a
corporation's chief operating officer.
(b)Without limiting the generality of the foregoing, the Employed Executive
shall supervise all of the Company's day to day business operations and the
Company's other executive officers (other than the President), subject only to
compliance with the directions of the Company's President and board of
directors, applicable laws and fiduciary obligations to the Company.
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2.3 Status.
(a)Throughout the term of this Agreement, the Employed Executive shall serve as
a member of the Company's board of directors and as the Company's senior vice
president and chief operating officer.
(b)In the event that he is not elected to such position, then, at the option of
the Employed Executive, this Agreement will be deemed terminated, effective as
of the earliest time that it can be reasonably determined that such election
will not take place. 2.4 Exclusivity.
The Employed Executive shall, unless specifically otherwise authorized by
the Company's Chairman, on a case by case basis, devote his business time
exclusively to the affairs of the Company.
Article Three
Compensation
3.1 Compensation.
As consideration for the Employed Executive's future services to the
Company and for his entry into this Agreement, the Company hereby grants the
Employed Executive the following compensation:
(a)An annual bonus payable in shares of the Company's common stock, determined
by dividing 3.84% of the Company's net, pre-tax profits for the subject calendar
year by the average bid price for the Company's common stock at during the last
five trading days prior to the end of the last day of each year and the initial
five days of the new year, provided, however, that this Agreement shall have
been in effect for at least one half of the subject year and that the Company's
common stock shall have been actively trading on a public market within the
United states for a period of at least six months.
(b)An annual cash bonus equal to 3.84% of the Company's pre-tax profits for the
subject calendar year, provided, however, that this Agreement shall have been in
effect for at least one half of the subject year.
(c)A guaranteed minimum weekly draw against the annual bonus described above, in
a sum equal to 1/52 of the bonus that would have been payable during the
preceding 365 days, had this Agreement then been in effect; provided, however,
that the minimum weekly draw shall not be less that $500 unless the Company has
not generated net, pre-tax profits adequate to make such payment and comparable
payments due to the Company's other executive officers, in which case the
payment will be waived.
3.2 Exchange of Assets for Common Stock with the Employed Executive
(a)The Company hereby exchanges 2,000,000 shares of its authorized but
heretofore unissued common stock, $0.001 per share par value, with the Employed
Executive pursuant to the tax free reorganization provisions of Section
368(a)(1)(C) of the Internal Revenue Code of 1986, as amended (the "IRC Code"),
for the series of secured third party notes more particularly described in
exhibit 3.2 annexed hereto and made a part hereof (the "Notes"), which the
Employed Executive hereby conveys to the Company.
(b)The Parties hereby agree that the reasonable current value of the Notes is
$100,000 and the Company hereby represents and warrants to the Employed
Executive that the shares being issued will, upon issuance, constitute in excess
of 80% of the Company's outstanding common stock.
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(c)In the event that this Employment Agreement is terminated by the Company
without the Employed Executive's prior written consent, or, by the Employed
Executive as a result of the failure of the Company to continue to elect him as
a member of its Board of Directors and as its senior vice president and chief
operating officer, then the Employed Executive shall have the right to exchange
the common stock issued by the Company in exchange for the Notes (or an
equivalent amount of the Company's common stock) with the Company for the sum of
$100,000 plus interest from the date of the original exchange, compounded
annually, at the annual rate of 7%.
3.3 Exemption From Registration
(a)The Employed Executive hereby represents, warrants, covenants and
acknowledges that:
(1)The stock to be issued as compensation under Section 3.1 and in exchange
for the Notes pursuant to Section 3.2 of this Agreement (the "Stock") will be
issued without registration under the provisions of Section 5 of the Securities
Act of 1933, as amended (the "Act") or the securities regulatory laws and
regulations of the State of Florida (the "Florida Securities Act") pursuant to
exemptions provided pursuant to Section 4(2) of the Act and comparable
provisions of the Florida Securities Act, including, without limitation, Section
517.061(11), Florida Statutes;
(2)The Employed Executive shall be responsible, at the Company's expense,
for preparing and filing any required reports concerning this transaction with
the Florida Securities Division and payment of any required filing fee;
(3)All of the Stock will bear legends restricting its transfer, sale,
conveyance or hypothecation unless such Stock is either registered under the
provisions of Section 5 of the Act and under the Florida Securities Act, or an
opinion of legal counsel, in form and substance satisfactory to legal counsel to
the Company is provided by the Employed Executive to the effect that such
registration is not required as a result of applicable exemptions therefrom;
(4)The Company's transfer agent shall be instructed not to transfer any of
the Stock unless the Company advises it that such transfer is in compliance with
all applicable laws;
(5)The Employed Executive is acquiring the Stock for his own account, for
investment purposes only, and not with a view to further sale or distribution;
and
(6)The Employed Executive or his advisors have examined the Company's books
and records and have questioned the Company's officers and directors as to such
matters involving the Company as the Employed Executive deemed appropriate.
(b)Notwithstanding the provisions of Section 3.3(a), the Stock shall, to the
extent legally possible based on the Company's ability to meet applicable legal
requirements, be listed with any stock exchange or securities market on which
the Company's common stock is admitted to trading.
3.4 Benefits
The Employed Executive shall be entitled to a benefit package equal to the
most favorable benefit package provided by the Company or its subsidiaries to
any of its employees, officers, directors, consultants or agents.
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3.5 Indemnification
The Company will defend, indemnify and hold the Employed Executive harmless
from liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
in good faith on behalf of the Company, to the fullest extent legally permitted,
and in conjunction therewith, shall assure that all required expenditures are
made by the Company in a manner making it unnecessary for the Employed Executive
to incur any out of pocket expenses; provided, however, that the Employed
Executive permits the Company to select and supervise all personnel involved in
such defense and that the Employed Executive waive any conflicts of interest
that such personnel may have as a result of also representing the Company or
other Company personnel and agrees to hold them harmless from any matters
involving such representation, except such as involve fraud or bad faith.
Article Four
Special Covenants
4.1 Confidentiality.
(a)The Employed Executive acknowledges that, in and as a result of his
employment hereunder, he will be developing for the Company, making use of,
acquiring and/or adding to, confidential information of special and unique
nature and value relating to such matters as the Company's trade secrets,
systems, procedures, manuals, confidential reports and lists of clients and
lenders; consequently, as material inducement to the entry into this Agreement
by the Company, the Employed Executive hereby covenants and agrees that he shall
not, at anytime during or following the terms of his employment hereunder,
directly or indirectly, personally use, divulge or disclose, for any purpose
whatsoever, any of such confidential information which has been obtained by or
disclosed to him as a result of his employment by the Company, or the Company's
affiliates.
(b)In the event of a breach or threatened breach by the Employed Executive of
any of the provisions of this Section 4.1, the Company, in addition to and not
in limitation of any other rights, remedies or damages available to the Company,
whether at law or in equity, shall be entitled to a permanent injunction in
order to prevent or to restrain any such breach by the Employed Executive, or by
the Employed Executive's partners, agents, representatives, servants, employers,
employees, affiliates and/or any and all persons directly or indirectly acting
for or with him.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
the Company as a result of a breach by the Employed Executive of the covenants
or agreements contained in this Article Four, and in view of the lack of an
adequate remedy at law to protect the Company's interests, the Employed
Executive hereby covenants and agrees that the Company shall have the following
additional rights and remedies in the event of a breach hereof:
(a)The Employed Executive hereby consents to the issuance of a permanent
injunction enjoining him from any violations of the covenants set forth in
Section 4.1 hereof; and
(b)Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which the Company may sustain prior to the effective
enforcement of such injunction, the Employed Executive hereby covenants and
agrees to pay over to the Company, in the event he violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
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(i)Any payment or compensation of any kind received by him because of
such violation before the issuance of such injunction, or
(ii)The sum of One Thousand ($1,000.00) Dollars per violation, which sum
shall be liquidated damages, and not a penalty, for the injuries suffered by the
Company as a result of such violation, the Parties hereto agreeing that such
liquidated damages are not intended as the exclusive remedy available to the
Company for any breach of the covenants and agreements contained in this Article
Four, prior to the issuance of such injunction, the Parties recognizing that the
only adequate remedy to protect the Company from the injury caused by such
breaches would be injunctive relief.
4.3 Cumulative Remedies.
The Employed Executive hereby irrevocably agrees that the remedies
described in Section 4.3 hereof shall be in addition to, and not in limitation
of, any of the rights or remedies to which the Company is or may be entitled to,
whether at law or in equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
(a)The Employed Executive hereby represents, warrants and acknowledges that he
has carefully read and considered the provisions of this Article Four and,
having done so, agrees that the restrictions set forth herein are fair and
reasonable and are reasonably required for the protection of the interests of
the Company, its officers, directors and other employees; consequently, in the
event that any of the above-described restrictions shall be held unenforceable
by any court of competent jurisdiction, the Employed Executive hereby covenants,
agrees and directs such court to substitute a reasonable judicially enforceable
limitation in place of any limitation deemed unenforceable and, the Employed
Executive hereby covenants and agrees that if so modified, the covenants
contained in this Article Four shall be as fully enforceable as if they had been
set forth herein directly by the Parties.
(b)In determining the nature of this limitation, the Employed Executive hereby
acknowledges, covenants and agrees that it is the intent of the Parties that a
court adjudicating a dispute arising hereunder recognize that the Parties desire
that this covenant not to compete be imposed and maintained to the greatest
extent possible.
4.5 Unauthorized Acts.
The Employed Executive hereby covenants and agrees that he will not do any
act or incur any obligation on behalf of the Company of any kind whatsoever,
except as authorized by the Company's Board of Directors.
Article Five
Miscellaneous
5.1 Notices.
(a)All notices, demands or other communications hereunder shall be in writing,
and unless otherwise provided, shall be deemed to have been duly given on the
first business day after mailing by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
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To the Employed Executive:
Xxxx Sand
0000 Xxxxx Xxxxx Xxxxxxxxx; Xxxx Xxxxxxxxxx, Xxxxxxx 00000
To the Company:
Xxxxxxx Xxxxxxxxxx, President
Funds America Finance Corporation
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000; Xxxx Xxxxxxxxxx, Xxxxxxx 00000 with a
copy by facsimile transmission and e-mail directed to (000) 000-0000 and
xxxxxxxx@xxx.xxx, respectively or to such other addresses, fax numbers or e-mail
addresses as may be reflected from time to time in Company filings displayed on
the Securities and Exchange Commission's XXXXX web site.
or to such other address or to such other person as any party shall designate to
the other for such purpose in the manner hereinafter set forth.
(b)The Parties acknowledge that The Yankee Companies, Inc., a Florida
corporation which serves as a consultant to the Company ("Yankees") has acted as
scrivener for the Parties in this transaction using forms developed for it by
its own legal counsel and business advisors and that because it is neither a law
firm nor a regulated entity and because of the inherent conflict of interests
involved, it has required as a condition to the use of this form that all of the
Parties retain independent counsel to review this Agreement on their behalf.
5.2 Amendment.
No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by the Party against
which the enforcement of said modification, waiver, amendment, discharge or
change is sought.
5.3 Merger.
(a)This instrument contains all of the understandings and agreements of the
Parties with respect to the subject matter discussed herein.
(b)All prior agreements whether written or oral, are merged herein and shall be
of no force or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
If any provision or any portion of any provision of this Agreement, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Florida and any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
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5.7 Litigation.
(a)In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees up to and including all negotiations, trials and appeals,
whether or not any formal proceedings are initiated.
(b)In the event of any dispute arising under this Agreement, or the negotiation
thereof or inducements to enter into the Agreement, the dispute shall, at the
request of any Party, be exclusively resolved through the following procedures:
(1)(A)First, the issue shall be submitted to mediation before a mediation
service in Broward County, Florida to be selected by lot from six alternatives
to be provided, three by the Company and three by the Employed Executive.
(B)The mediation efforts shall be concluded within ten business days
after their initiation unless the Parties unanimously agree to an extended
mediation period;
(2)In the event that mediation does not lead to a resolution of the dispute
then at the request of any Party, the Parties shall submit the dispute to
binding arbitration before an arbitration service located in Broward County,
Florida to be selected by lot, from six alternatives to be provided, three by
the Company and three by the Employed Executive.
(3)(A)1.Expenses of mediation shall be borne by the Company, if
successful.
2.Expenses of mediation, if unsuccessful and of arbitration shall
be borne by the Party or Parties against whom the arbitration decision is
rendered.
(B)If the terms of the arbitral award do not establish a prevailing
Party, then the expenses of unsuccessful mediation and arbitration shall be
borne equally by the Parties.
5.8 Benefit of Agreement.
(a)This Agreement may not be assigned by the Employed Executive without the
prior written consent of the Company.
(b)Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the Parties, their successors, assigns, personal
representative, estate, heirs and legatees.
5.9 Captions.
The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
5.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
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5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or cause
to be done, executed or acknowledged or delivered and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
5.12 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but, rather,
the relationship established hereby is that of employer-employee in the Company,
with privity as to the Company strictly limited to the Company.
5.13 Counterparts.
(a) This Agreement may be executed in any number of counterparts.
(b)Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for aesthetic
purposes, prepare a fully executed original version of this Agreement, which
shall be the document eventually filed with the Securities and Exchange
Commission if the Company's plan to become a public company are ever
effectuated.
5.14 License.
(a) This Agreement is the property of Yankees (as that term has been
hereinbefore defined).
(b)The use hereof by the Parties is authorized hereby solely for purposes of
this transaction and, the use of this form of agreement or of any derivation
thereof without Yankees's prior written permission is prohibited.
* * *
In Witness Whereof, the Parties have executed this Agreement, effective as
of the 12 day of April, 1999.
Signed, Sealed & Delivered
In Our Presence
Funds America Finance Corporation
--------------------------
/s/ Xxxxxxx Xxxxxxxxxx
__________________________ By: ________________________
Xxxxxxx Xxxxxxxxxx, President
(CORPORATE SEAL) /s/ Xxxxx Xxxxx
Attest: __________________________
Xxxxx Xxxxx, Secretary
Employed Executive
--------------------------
/s/ Xxxx Sand
-------------------------- ------------------------
Xxxx Sand
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