EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
this 13th day of March 1998, by and between AMERICAL INVESTMENT MANAGEMENT,
INC., a Florida corporation (the "Company"), and XXXXX XXXXX ("Employee").
(Throughout this Agreement Company and Employee may be referred to collectively
as Parties for convenience.
W I T N E S S E T H:
WHEREAS, Employee has substantial experience in the development,
implementation and sale of financial services, including but not limited to
insurance and annuities, and
WHEREAS, the Company desires to retain, engage and employ Employee,
and Employee desires to be so retained, engaged and employed by the Company as
the Companies President and Chief Executive Officer for the purpose of creating
and establishing a financial services business.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency is hereby acknowledged, the Parties agree as follows:
1. RECITALS: The above and foregoing recitals are true and correct and
are incorporated herein by reference.
2. ENGAGEMENT AND RELATIONSHIP OF PARTIES: The Company hereby employs,
hires and engages Employee as an employee and the Employee hereby accepts and
agrees to such hiring, engagement and employment, subject to the general
supervision and pursuant to the orders, advise and direction of the Company.
The Employee shall perform such duties as are specifically set forth in this
Agreement, as well as such other duties as are customarily performed by one
holding such position in similar businesses or enterprises as that engaged in
by the Company.
3. DUTIES: The Company hereby employs Employee and Employee hereby
accepts employment effective as of the date hereof, as the Company's President
for the terms set forth herein. During the term of the Employee's employment
with the Company, the Employee shall be the President and principal officer of
the Company responsible for the development, refinement and implementation of a
financial services business, including but not limited to the sale and
marketing of insurance, annuities and such other products as mandated by the
Company's Board of Directors. The Employee shall also be charged with the
responsibility to oversee that the Company is in compliance with all applicable
laws, rules and regulations in connection with the business being conducted by
the Company. In addition, the Board of Directors may assign Employee such other
and additional duties as it may determine appropriate.
4. TERM: The term of Employee's employment hereunder shall commence on
March 4, 1998, and continue thereafter for a term of three (3) years, unless
terminated sooner pursuant to the provisions contained in this Agreement for
early termination. This Agreement
shall automatically renew itself for additional one (1) year terms upon the
same terms and conditions unless one party gives the other party written notice
of their intent not to renew thirty (30) days prior to the expiration date of
the expiring term.
5. COMPENSATION: In consideration of the services performed and to be
performed hereunder, Company will pay to Employee during the term of Employee's
employment under this Agreement, at the Company's regular and customary
intervals for payment of compensation to Employee's salary as follows:
A. An amount equal to seventy percent (70%) of all net
commission income generated and paid to the Company from accounts developed by
Employee and an amount equal to fifty percent (50%) of the net commission
income from accounts that are generated by the Company through referrals from
sources other than the Employee.
Notwithstanding the foregoing, Employee shall not be entitled to commission in
excess of his draw in the second and third year unless the Company's gross
commissions received are in excess of $450,000.00 in year two and $500,000.00
in year three.
B. DRAW AGAINST COMMISSIONS TO BE ADVANCED: During the first
one year following the commencement date of this Agreement, Employee shall
receive a draw against his commissions to be earned in the sum of One Hundred
Fifty Thousand Dollars ($150,000.00), said draw payable at the Company's
regular and customary intervals for payment. Commencing on the first day of the
second year following the commencement date of this Agreement, in addition to
the Employee's Base Compensation as set forth in paragraph C. below, the
Employee shall receive a draw against commission in the sum of One Hundred
Twenty-Five Thousand Dollars ($125,000.00) per annum, said draw payable at the
Company's regular and customary intervals for payment. Commencing on the first
day of the third year following the commencement date of this Agreement, in
addition to the Employee's Base Compensation asset forth in paragraph C. below,
the Employee shall be entitled to a draw against commission in the sum of One
Hundred Fifty Thousand Dollars ($150,000.00) per annum, said draw payable at
the Company's regular and customary intervals for payment. The Company and
Employee agree that every quarter commencing on the first day of the first
quarter following the commencement date of this Agreement, they will perform an
accounting so as to compute the actual amount of compensation to which the
Employee is entitled. In the event the balance reflected on the accounting
indicates that commissions are due the Employee, the Company shall immediately
pay said commissions to the Employee. Beginning in the Second Year should the
accounting indicate that the Employee has received by way of his draws, more
money than that to which he was entitled by way of commission, the Company
shall have the right to require the Employee to immediately repay to the
Company such overpayment or to make such other arrangements with the Employee
for the repayment of said sums as the Company and Employee may agree.
C. Base Compensation in Years 2 and 3: During Years 2 and 3
Employee shall receive a salary a base compensation in the sum of Fifty
Thousand Dollars
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($50,000.00) each year which shall be paid at the Company's regular and
customary intervals for payment of compensation.
6. PERQUISITES: In addition to the salary set forth above in the
preceding section, Employee shall be entitled to the following perquisites and
other benefits.
A. Employee shall be entitled, in accordance with the
Company's general policies for senior management, to participation in pension,
saving, stock option, Employee stock option ownership and profit sharing plans,
incentive, performance awards, paid vacation leave, health, casualty,
disability and life insurance, and other employment benefits as are made
available from time to time by the Company.
B. During the term of Employee's employment, Employee shall
be entitled to reimbursement of all reasonable expenses actually paid or
incurred by Employee in the course of, and pursuant to the performance of his
duties hereunder, for travel, entertainment up to a maximum amount of Eight
Hundred Dollars ($800.00) per month.
C. Employee shall be entitled to two weeks paid vacation
during each year of the Employee's employment with the Company.
7. Incentive Stock Options: During the term of the Employee's
employment with the Company, the Company shall secure from its parent, Medley
Credit Acceptance Corp., incentive stock options for the Employee. The Company
and Employee agree that sales growth shall be calculated from a historical
revenue base in the sum of $400,000.00. The grant of options shall be
determined during the first month following the completion of each twelve (12)
calendar month period following the commencement of the employee's employment
as follows:
Year 1: Sales Growth 100%: 10,000 150%: 15,000 200%: 25,000
Growth by Acquisition 100%: 10,000 150%: 15,000 200%: 25,000
Return on Capital 15%: 5,000 20%: 10,000 25%: 15,000
Year 2: Sales Growth 40%: 7,500 60%: 10,000 80%: 20,000
Growth by Acquisition 60%: 7,500 150%: 10,000 100%: 20,000
Return on Capital 15%: 10,000 20%: 15,000 25%: 25,000
Year 3: Same as Year 2
8. DISABILITY: In the event the Employee shall be incapacitated by
reason of mental or physical disability during the term of his Employment such
that he is substantially prevented from performing his principal duties and
services hereunder for a period of sixty (60) consecutive days or for shorter
periods, aggregating ninety (90) days during any twelve (12) month period, the
Company thereafter shall have the right to terminate Employee's employment
under this Agreement by sending written notice of such termination to Employee
or his legal representative and thereupon his employment shall immediately
terminate. Upon such termination, the Employee shall be entitled to receive and
shall be paid by the Company his
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salary in effect on the date of termination paid by the Company's customary
intervals for the payment of salaries based upon the base reflected in the
Employee's draw for the lessor of three (3) months or the remaining term of the
Agreement. Upon such termination, the Employee shall also be entitled to
receive and shall be paid by the Company all commissions which have been
actually earned or accrued through the date of termination. The Employee shall
accept such payment and benefits in full discharge and release of the Company
of and from any further obligations under this Agreement. Such discharge and
release shall not affect any rights or remedies which may be available to
Employee or the Company otherwise than under this Agreement.
9. TERMINATION FOR CAUSE: The Company shall have the right to
terminate the employment of Employee hereunder at any time for cause (as used
herein, "cause") if:
(i) Employee shall be convicted by a court of competent and
final jurisdiction of any crime which constitutes a felony in the jurisdiction
involved or shall be habitually drunk or intoxicated in public or otherwise
commit acts of moral turpitude in such a manner as to adversely reflect the
reputation of the Company; or
(ii) Employee shall commit any act of embezzlement or similar
material dishonest or injurious conduct against the Company; or
(iii) Employee shall demonstrate willful and injurious
misconduct in connection with the performance of his duties and
responsibilities under or pursuant to this Agreement; or
(iv) Employee shall demonstrate reckless or grossly negligent
and injurious conduct in connection with the performance of, or a gross
disregard for his duties and responsibilities under or pursuant to this
Agreement.
In the event the employment of Employee shall be terminated by the
Company for cause pursuant to this section, the Employee shall be entitled to
receive his salary earned, accrued and payable through the date of such
termination. The Employee shall accept the payment pursuant to the terms hereof
in full discharge and release of the Company of and from any further
obligations under this Agreement. Nothing contained in this section shall
constitute a waiver or release by the Company of any rights or claims it may
have against Employee, including but not limited to any claims or rights
pursuant to this Agreement arising from actions or omissions which may give
rise to an event causing termination of this Agreement.
10. TERMINATION OF AGREEMENT UPON EMPLOYEE'S
EXERCISE OF OPTION TO REPURCHASE: In the event of the
Employee exercises his right to reacquire the Company pursuant to Section 6 of
the Stock Purchase Agreement between the Employee and Medley Credit Acceptance
Corp. of event date, the Employee's employment shall terminate upon the date of
Closing.
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11. RESTRICTIVE COVENANTS:
A. Employee recognizes and acknowledges that as a consequence
of his duties hereunder, Employee will be provided access to information
concerning the Company's parent, Medley Credit Acceptance Corp. Accordingly,
the Employee agree that he will not, during or after the term of his
engagement, disclose any confidential information relating to Medley Credit
Acceptance Corp. to any individual or entity. The Provisions of this paragraph
shall not apply to information which is or shall become generally known to the
public, the trade or similarly employed persons, or information which the
Employee is required to disclose by law or by order of a court of competent
jurisdiction. As used in this Agreement, confidential information shall mean
and include materials, agreements, memoranda, documents and all other
non-public information relating to Medley Credit Acceptance Corp.'s activities,
operations and finances.
B. Employee acknowledges that in the event of a violation of
the restrictive covenant described above, Medley Credit Acceptance Corp. Could
sustain irreparable harm and therefore, in addition to any remedies available
to Medley Credit Acceptance Corp., the Company shall be entitled to apply to
any court of competent jurisdiction for an injunction restraining Employee from
committing or continuing any such violation under this Agreement.
12. NOTICES: Except as otherwise stated, all notices, requests ,
demands and other communications required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given if delivered
personally, given by prepaid first class mail, registered or certified, or by
duly recognized overnight carrier as follows:
To Seller: XXXXX XXXXX
0000 Xxxxx xx Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
To Buyer: MEDLEY CREDIT ACCEPTANCE CORP.
Attention: Xxxxxx Press, President
0000 Xxxxx xx Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
13. MISCELLANEOUS PROVISIONS:
A. Construction: This Agreement shall be construed and
enforced under the laws of the State of Florida. In the event any provision of
this Agreement shall be declared invalid by a court of competent jurisdiction,
said invalidity shall not invalidate the Agreement as a whole, but said
Agreement shall be construed as if the invalidated provision was omitted from
the Agreement.
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B. Entire Agreement: This Agreement supersedes and cancels
any and all other contracts referring to the subject matter herein. No
modifications, alterations or waivers of this Agreement shall be effective,
unless in writing, executed by the Parties hereto.
C. Assignability: This Agreement shall inure to the benefit
of the Parties, their successors and assigns.
D. Counterparts: This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
counterparts collectively shall constitute one instrument representing the
Agreement between the Parties hereto.
E. Captions. Captions of the various sections contained in
this Agreement are intended to be used solely for convenience of the Parties
and are not intended, nor are they deemed to modify or explain, or to be used
as an aid in the construction of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the Parties have hereunto set their hands and
seals.
DATED as to the Company this 13th day of March, 1998
MEDLEY CREDIT ACCEPTANCE CORP.
By:__________________________________
DATED as to the Employee this 13th day of March, 1998
_____________________________________
XXXXX XXXXX
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