EMPLOYMENT AGREEMENT
Exhibit
10.23
THIS
EMPLOYMENT AGREEMENT, (the “Agreement”), entered into on the 28th
day of
February 2006 and effective as of the 1st
day of
March 2006 (the “Effective Date”), by and between Xxxx Xxxxxxxx (the
“Executive”), and Azur Holdings, Inc., a Delaware corporation (collectively the
“Corporation”).
RECITALS
WHEREAS,
the Corporation hereby agrees to employ the Executive, and the Executive hereby
accepts such employment, pursuant to the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, in consideration of the mutual covenants herein con-tained and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereby agree as follows:
1. EXECUTIVE'S
DUTIES.
The
Corporation hereby agrees to employ Executive to render her services during
the
term hereof, in an executive capacity as Comptroller (the “Position”) and
Executive hereby accepts such employment by the Corporation, on and subject
to
the terms and con-ditions of this Agreement. Executive acknowledges that due
to
the nature of the Corporation’s business she may have to travel.
The
Executive shall use the Executive’s professional efforts, skills and abilities
to promote the interests of the Corporation and to diligently and competently
perform faithfully and efficiently the duties of the Position. The Executive
shall work a minimum of forty (40) hours per week at the Corporation’s office.
The
Executive shall, during the term of this Agreement, devote her full time
attention and energies to the performance of her duties hereunder.
2. COMPENSATION.
2.1. Salary
The
Executive’s salary shall be Eighty Thousand
and 00/100 Dollars ($80,000.00) per annum
(“Salary”) payable on the 15th
and the
last day of each month in arrears, in accordance with Corporation’s standard
payroll practices.
2.1 Additional
Term.
The
Salary shall be increased at a rate of no less than 5% per anum over the
previous 12 months’ Salary (“Minimum Increase”). Any increases above the Minimum
Increase shall be at the discretion of the Company.
3. TERM.
The term
of Executive's employment hereunder will commence as of the Effective Date
and
will continue without interruption for a period of six (6) months (the “Initial
Term”). After the Initial Term, the Agreement shall renew automatically for
additional six (6) month periods (the “Additional Term”) on the terms set forth
herein unless the Agreement is terminated by either party in writing within
thirty days prior to the expiration of the Initial Term or the applicable
Additional Term as the case may be.
4. TERMINATION.
4.1 Termination
By Corporation For Cause.
The
Agreement may be terminated by the Corporation for cause. For the purposes
of
this Agreement the term “Cause” means the Executive’s: (a) willful appropriation
or conversion for her own use of property or money belonging to the Corporation;
(b) violation of this Agreement; (c) excessive absences not authorized by this
Agreement or by the Corporation; (d) substance abuse and/or refusal to submit
to
periodic substance screening tests as determined by the Corporation from time
to
time; and (e) in the occurrence a case is brought forth against the Executive
for violation of any securities or corporate laws.
In
the
event the Executive is terminated for Cause, the Corporation shall pay the
Executive her Salary through the date of termination and, no other benefits
hereunder shall be paid to Executive.
4.2
Termination
By Corporation Without Cause.
The
Corporation may terminate the Agreement without Cause. In the event the
Executive is terminated for any reason other than Cause as defined in Section
4.1, the Executive shall be entitled to continue receiving her Salary, as a
severance payment, for the period consisting of the shorter of: (i) two (2)
months after date of termination; or, (ii) the remaining balance of the Initial
Term or Additional Term, as the case may be, of this Agreement then in effect.
Prior
to
delivery to Executive of the first installment of severance benefits payable
this Section 4.3 of this Agreement, Executive must deliver to the Company a
general release against any other liability of the Corporation to
Executive.
4.3.
Termination
By Executive For Good Reason.
The
Agreement may be terminated by the Executive for Good Reason by giving the
Executive a written thirty day notice of termination. For the purpose of this
Agreement, the term “Good Reason” means the Corporation’s material violation of
this Agreement, which is not cured within ten (10) days after written notice
of
the violation by the Executive to the Corporation.
In
the
event the Executive terminates this Agreement for Good Reason, the Executive
shall be entitled to continue receiving her Salary for the period consisting
of
the shorter of: i) the balance of the term of this Agreement, as if this
Agreement had not been terminated; or, ii) two (2) months after date of
termination.
4.4.
Termination
By Executive Without Good Reason.
The
Executive may not terminate the Agreement at any time without Good Reason
4.5
Death.
In the
event of Executive's death during the term of this Agreement, the Corporation
shall have no further obligations to make payments or otherwise under this
Agreement, except that the Corporation shall pay to Executive's estate within
ten (10) days after the date of Executive's death any accrued unpaid Salary
to
which Executive was entitled as of the date of death.
4.6
Disability.
If
Executive becomes unable due to a mental or physical disability to perform
the
services required of Executive pursuant to this Agreement, as determined in
good
faith by the Board, for an aggregate of fifteen (15) days in any twelve (12)
month period (a "Disability"),
the
Corporation, at its option, may terminate Executive's employment hereunder
with
cause (the date of such termination, the "Disability
Date"),
and,
thereafter, Executive shall not be deemed to be employed under this Agreement
and the Corporation shall have no further obligations to make payments or
otherwise under this Agreement. In the event of a Disability, the Corporation
shall pay to Executive within ten (10) days after the Disability Date any unpaid
accrued Salary as of the Disability Date. Nothing in this Agreement is intended
to cause the Corporation to be in violation of the Americans with Disabilities
Act.
2
5. BENEFITS.
The
Executive shall be entitled to the following benefits:
5.1. Vacation.
Executive shall be entitled to reasonable paid vacation periods, not exceeding
eight (8) working days during the term hereof, in addition to any legal holidays
recognized by the Corporation. Vacation days must be taken during the
corresponding calendar year and may not be accumulated from year to year.
Vacation schedules must be agreed upon with the President of the Corporation
(the “President”) to ensure competent management of the Corporation in the
Executive's absence.
5.2
Sick
Days. Executive
shall be entitled to four (4) sick days per annum (the “Sick Days”). Sick Days
are paid at the Executive’s base rate at time of use of Sick Day. Executive’s
Sick days shall not exceed four (4) in any twelve-month period. A breach by
Executive of this section is a material breach of this Agreement by the
Executive.
5.3. Health
Insurance.
The
Corporation agrees to provide Executive with a $400 dollar per month health
insurance stipend which shall be paid on the last day of each month.
6. OWNERSHIP
OF INFORMATION AND DOCUMENTS.
Executive shall promptly communicate and disclose to the Corporation on request
all information obtained by her in the course of her employment relating to
the
business of the Corporation. All written reports, recommendations, advice,
records, documents and other materials prepared or obtained by Executive or
coming into her possession during her employment hereunder which relate to
the
performance by the Corporation or its business shall be the sole and exclusive
property of the Corporation and, at the end of Executive's employment hereunder,
or at the request of the Board of Directors during the period of Executive's
employment hereunder, Executive shall promptly deliver all such written
materials to the Corporation. Executive shall prepare and submit to the
Corporation such regular periodic reports as the Board of Directors may request
with respect to the acti-vities undertaken by her or conducted under her
direction in con-nection with the business of the Corporation during her
employment hereunder. Such reports and the information contained therein shall
be and remain the sole property of the Corporation.
7. INTANGIBLE
PROPERTY.
Executive shall assign to the Corporation, immediately upon the execution of
this Agreement, or thereafter, immediately upon making or acquiring them, as
the
case may be, any and all inven-tions, processes, discoveries, “know-how”,
improvements, patent rights, letters, patents, copyrights, trademarks, service
marks, trade names and applications therefore and all rights and interest in,
to
and under the same which she may legally transfer, now possessed by her or
hereafter made, acquired, or possessed by her during the term of this Agreement,
relating in any way to the business and activities of, or the equipment,
devices, processes, and formulae connected with the Corporation's business
or
any other business conducted by the Corporation and agrees that, upon request,
she will promptly make all disclo-sures, execute all instruments and papers,
and
perform all acts whatsoever necessary or desired by the Corporation to vest
and
con-firm in it, its successors, assigns and nominees, fully and completely,
all
rights created or contemplated by this Section and which may be necessary or
desirable to enable the Corporation and its successors, assigns and nominees
to
secure and enjoy the full benefits and advantages thereof.
3
8. COVENANT
NOT TO COMPETE AND CONTINUED ASSISTANCE.
During
the term of this Agreement, as extended from time to time, and for a period
of 2
years, with respect to subparagraphs (a)-(e), below, after the termination
or
expiration of this Agreement, whether by the Executive or the Corporation,
for
any reason whatsoever, the Executive warrants and agrees that:
(a) Non-Participation
in Similar Business.
The
Executive must not, alone or as an officer, agent, employee, director,
stockholder, investor, partner (except as to not more than one percent (1%)
of
the outstanding stock of any company the securities of which are traded on
a
regular basis on recognized securities exchanges or over-the-counter markets
as
reported in The
Wall Street Journal)
of any
other entity, directly or indirectly, own, manage, operate, control, or
participate in the ownership, management, operation or control of, or work
for
or permit the use of her name by, or be connected in any manner with, any
business similar to or competition with the business of the Corporation whose
office is within a fifty mile radius of any location where the Corporation
does
business. While the restrictions set forth above are considered by the Parties
to be reasonable in all the circumstances, it is recognized that restrictions
of
the nature in question may fail for unforeseen technical reasons and
accordingly, it is hereby agreed and declared that if any of such restrictions
will be adjudged to be void as going beyond what is reasonable in all the
circumstances for the protection of the interests of the Corporation but would
be valid if part of the wording thereof were deleted or the period (if any)
thereof reduced or the range of activities or area dealt with thereby reduced
in
scope, said restriction will apply with such modifications as may be necessary
to make it valid and effective.
(b) Non-Solicitation. The
Executive must not, except on behalf of the Corporation, directly or indirectly,
contact or solicit business from any employee, client, suppler, financier,
bank,
or other source of the Corporation and the Executive must not own, operate,
manage, or render assistance to any facility or anyone else which contacts
or
solicits any employee, client, supplier, financier, bank, or other source of
the
Corporation.
(c) Continued
Assistance.
The
Executive must assist the Corporation at such reasonable times as the
Corporation may request, subject to reasonable availability, with respect to
any
continuing matters respecting the business of the Corporation, and she must
assist the Corporation in maintaining relationships with those persons and
firms
with whom the Corporation has been doing business, including clients, vendors
and others useful to the Corporation. If the Executive’s employment with the
Corporation has been terminated, the Executive will be reimbursed for all
expenses incurred on behalf of the Corporation and will receive compensation
on
an hourly basis at a rate no less than $75.00 per hour.
(d) Confidentiality.
Except
for information in the public domain and information authorized by the
Corporation to be disclosed, the Executive must not, for any reason or in any
manner whatsoever use, communicate, divulge or otherwise exploit for her own
benefit or for the benefit of any other person or entity any name, address
or
other sensitive business information concerning any employee, agent, client
or
any other confidential information of the Corporation or concerning any trade
secret or information of a confidential nature relating but not limited to
the
ownership, operation or management of the business of the Corporation
(including, without limitation, financial affairs, services, employees,
employees' compensation, business strategies and contractual relationships).
Information described in the preceding sentence is referred to collectively
herein as "Restricted Information."
(e) Non-Interference.
The
Executive must not, for any reason or in any manner whatsoever interfere with
the Corporation's relationship with their Clients, employees, agents or referral
sources. Without limiting the definition of "interference" and by way of example
only, the following are agreed to constitute interference within the meaning
of
this Agreement if done without the express written consent of the Corporation,
unless conducted within the normal scope of the Executive's managerial duties
for the benefit of the Corporation; (i) using or disclosing Restricted
Information in any discussion or contacts with employees, agents or referral
sources; (ii) commenting on the business practices, procedures or policies
of
the Corporation to any employee, agent or referral source of the Corporation;
or, (iii) seeking to employ or engage or assisting any other person seeking
to
employ or engage any employee of the Corporation.
4
9. NOTICES.
All
notices hereunder shall be given in writing by registered or certified mail,
postage prepaid, addressed to the parties at the following respective addresses,
or at such other address as may from time to time be designated by either party
to the other hereunder or by hand delivery or telecopy indicating receipt as
follows:
To
the
Executive:
Xxxx
Xxxxxxxx
_____________________
_____________________
To
the
Corporation:
Azur
Holdings, Inc
000
XX
0xx
Xxxxxx,
Xxxxx 0000
Xx.
Xxxxxxxxxx, XX 00000
10. SPECIFIC
PERFORMANCE.
The
parties hereto acknowledge and agree that the executive and managerial services
to be rendered by Executive hereunder are of such a special, unique and
extraordinary character that it gives them a peculiar value impossible to
replace and for the loss of which the Corporation cannot be reasonably or
adequately compensated in damages, and Executive acknowledges and agrees that
a
breach by her of the provisions of Sections 6, 7 or 8 of this Agreement hereof
will cause the Corporation irreparable injury and damage. Executive, therefore,
expressly agrees that the Corporation shall be entitled to injunctive and/or
other equitable relief to prevent a breach of Sections 6, 7 or 8 of this
Agreement and to secure their enfor-cement. Nothing herein shall be construed
as
a waiver by the Corporation of any right it may now have or hereafter acquire
to
monetary damages by reason of any injury to its property, busi-ness or
reputation arising out of any wrongful act or omission of
Executive.
11. ENTIRE
AGREEMENT.
All
prior negotiations of the parties or any party relating to the subject matter
hereof, have been merged in and are superseded by this Agreement. This Agreement
contains the entire agreement of the parties, and there are no promises,
agreements, understandings, representations, warran-ties or conditions of any
nature not set forth in this Agreement, made as an inducement to the execution
hereof or otherwise.
12. NO
WAIVERS.
No
failure by either party hereto to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder by either party preclude any other
or
future exercise of that right or any other right hereunder by that
party.
13. SEVERABILITY.
If any
provision of this Agreement shall be held to be invalid, unenforceable or
illegal, in whole or in part, in any jurisdiction under any circumstances for
any reason, (a) such provision shall be reformed to the minimum extent necessary
to cause such provision to be valid, enforceable and legal while preserving
the
intent of the parties as expressed in, and the benefits to the parties provided
by, this Agreement, or (b) if such provision cannot be so reformed, such
provision shall be severed from this Agreement and an adjustment shall be made
to this Agreement (including, without limitation, addition of necessary further
provisions to this Agreement) so as to give effect to the intent as so expressed
and the benefits so provided. Such holding shall not affect or impair the
validity, enforceability or legality of such provision in any other jurisdiction
or under any other circumstances. Neither such holding nor such reformation
or
severance shall affect or impair the legality, validity or enforceability of
any
other provision of this Agreement.
5
14. APPLICABLE
LAW.
This
Agreement shall be construed under and governed by the law of
Florida.
15. ASSIGNMENT.
This
Agreement, and the rights conferred hereby, shall not be assignable, in whole
or
in part, by either party, except that the Corporation may assign this Agreement
to, and it shall be binding upon, any person, firm or company with which the
Corporation may be merged or consolidated or which may acquire all or
substantially all of the assets of the Corporation.
16. AMENDMENT.
This
Agreement may not be amended, terminated or super-seded except by an agreement
in writing between the Corporation and Executive.
17. COUNTERPARTS.
This
Agreement may be executed in one or more counter-parts, each of which shall
be
deemed an original hereof but all of which together shall constitute one and
the
same document.
18. NO
VERBAL AGREEMENTS.
There
are and there will be no verbal agreements in any way modifying the terms of
this Agreement.
19. INDEPENDENT
LEGAL COUNSEL.
The
Executive and Corporation hereby represents that they have employed their own
independent legal counsel and tax advisors to review and advise their respective
positions with respect to legal and tax consequences of this Agreement. Neither
party has solicited or relied on the other’s legal or tax advisors for any
advice with respect to this Agreement.
20. ARBITRATION.
Except
any dispute under which the remedy of specific performance is sought under
Section 10, hereof, all disputes arising in connection with this Agreement
will
be finally settled under the rules of the American Arbitration Association
(the
“Rules”), by three arbitrators, one to be selected by the Corporation, one to be
selected by the Executive, and one selected by the arbitrators selected by
the
Executive and Corporation. The selection of the arbitrators will be in
accordance with the Rules. The place of arbitration will be in Miami, Florida.
The procedural law applicable to the dispute will be the Florida Rules of Civil
Procedure. The substantive law applicable to the merits of the case will be
the
Florida law as in effect at the date of this Agreement. The parties agree that
the award of the arbitrators: will be the sole and exclusive remedy between
them
regarding any claims, counterclaims, issues or accountings presented or pled
to
the arbitrators; that it will be made and will promptly be payable in U.S.
dollars free of any tax, deduction or offset; and that any costs, fees or taxes,
including attorneys' fees, paralegal and law clerk fees, incident to enforcing
the award will, to the maximum extent permitted by law, be charged against
the
party resisting such enforcement. The award will include interest from the
date
of any damages incurred for the breach or other violation of the Agreement,
and
from the date of the award until paid in full, at a rate to be fixed by the
arbitrators, but in no event less than the London Interbank Offering Rate
(“LIBOR”) per annum quoted for the corresponding period by Chase Manhattan Bank
in the London Interbank Market of the United States Dollars for immediately
available funds; provided, however, that in no event will the rate of interest
chargeable or collectible on any such award exceed the highest lawful rate
permitted from time to time under Florida law. For purposes of determining
the
highest lawful rate, under Florida law, the parties hereby select the “indicated
rate ceiling” as in effect from time to time during the periods in which such
award remains unpaid. All notices by one party to the other, in connection
with
the arbitration, must be in writing and must be deemed to have been duly given
or made if delivered, mailed by registered air mail, return receipt requested,
or telecopied to their addresses shown in the Corporation's books and
records.
6
21. RECITALS.
The
recitals set forth on the first page of this Agreement are true and correct
and
are incorporated herein by reference.
22. ATTORNEYS'
FEES.
In the
event judicial or ad-ministrative proceedings or action is brought by one party
against another party with respect to the interpretation or enforcement of
this
Agree-ment, the prevailing party shall be entitled to recover reasonable costs
and attorneys' fees, paralegal and law clerk fees, at the investigative,
pre-trial, trial administrative, bankruptcy and appellate levels.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed the day and year first above written.
| In the presence of: | COMPANY: | |
| AZUR HOLDINGS, INC. | ||
| |
|
|
| /s/ Xxxxxx Xxxx | By: | /s/ Xxxxxx Xxxxxxx |
|
Witness |
Xxxxxx Xxxxxxx, President |
|
| EXECUTIVE: | ||
| |
|
|
| /s/ Xxxxxx Xxxx | By: | /s/ Xxxx Xxxxxxxx |
|
Witness |
Xxxx Xxxxxxxx, Comptroller |
|
7
