EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this 1st day of
December, 2004, by and between Xxxxxx Capital, Inc., a Delaware corporation (the
"Company"), and Xxxxxx X Xxxxxxxxxx, an individual ("President, Director &
Manager").
RECITALS
A. The Company desires to be assured of the association and services of
Manager for the Company's Boca Raton, Florida office. The Company hereby
appoints the Manager to "President" of Xxxxxx Capital Management and to the
Board of Directors with full voting rights of Xxxxxx Capital Inc.
B. Manager is willing and desires to be employed by the Company, and the
Company is willing to employ Manager, upon the terms, covenants and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
1. Employment. The Company hereby employs Manager subject to the
supervision and direction of the Company's Board of Directors.
2. Term. The term of this Agreement shall be for a period of three (3)
years commencing on the date hereof and shall be automatically renewed for a
period of one (1) year, unless terminated earlier pursuant to Section 8 below;
provided, however, that Manager's obligations in Section 7 below shall continue
in effect after such termination. This Employment Agreement shall have a
possible maximum term of three years.
3. Compensation; Reimbursement.
3.1 Base Salary. For all services rendered by Manager under this
Agreement, the Company shall pay Manager a salary of Six Thousand Six Hundred
Dollars($6,600) per month (the "Base Salary"). The Board of Directors of the
Company may increase at any time and the amount of the Base Salary from time to
time. No such change shall in any way abrogate, alter, terminate or otherwise
affect the other terms of this Agreement.
3.2 Reimbursement. Manager shall be reimbursed for all reasonable
"out-of-pocket" business expenses for business travel and business entertainment
incurred in connection with the performance of his duties under this Agreement
(1) so long as such expenses constitute business deductions from taxable income
for the Company and are excludable from taxable income to the Manager under the
governing laws and regulations of the Internal Revenue Code (provided, however,
that Manager shall be entitled to full reimbursement in any case where the
Internal Revenue Service may, under Section 274(n) of the Internal Revenue Code,
disallow to the Company 20% of meals and entertainment expenses); and (2) to the
extent such expenses do not exceed the amounts allocable for such expenses in
budgets that are approved from time to time by the Company. The reimbursement of
Manager's business expenses shall be upon monthly presentation to and approval
by the Company of valid receipts and other appropriate documentation for such
expenses.
4. Scope of Duties.
4.1 Assignment of Duties. Manager shall have such duties as may be
assigned to him from time to time by the Company's Board of Directors
commensurate with his experience and responsibilities in the position for which
he is employed pursuant to Section 1 above. Such duties shall be exercised
subject to the control and supervision of the Chief Officer and the Board of
Directors of the Company.
4.2 General Specification of Duties. Manager's duties shall include, but
not be limited to, the duties and performance goals as follows:
(1) act as the Manager of the Company's Boca Raton, Florida office and
perform all duties, functions and responsibilities generally associated with the
head of an operating division or subsidiary;
(2) execute on behalf of the Company, in his capacity as Manager, all
documents as requested by the Company;
(3) employ, pay, supervise and discharge all employees of the Boca raton
Office and determine all matters with regard to such personnel, including,
without limitation, compensation, bonuses and fringe benefits, all in accordance
with the Annual Plan (as defined in Section 4.3);
(4) establish procedures for implementing the policies established by the
Company;
(5) insure cooperation by the Boca Raton office with other divisions or
subsidiaries of the Company;
(6) cause the Boca Raton office to be operated in compliance with all
legal requirements;
(7) operate the Boca Raton office in conformance with the Annual Plan
approved by the Company, as such may be amended from time to time with the
concurrence of the Company; and
The foregoing specifications are not intended as a complete itemization of
the duties that Manager shall perform and undertake on behalf of the Company in
satisfaction of his employment obligations under this Agreement.
4.3 Manager's Devotion of Time. Manager hereby agrees to devote his full
time, abilities and energy to the faithful performance of the duties assigned to
him and to the promotion and forwarding of the business affairs of the Company,
and not to divert any business opportunities from the Company to himself or to
any other person or business entity.
4.4 Conflicting Activities.
(1) Manager shall not, during the term of this Agreement, be engaged in
any other business activity without the prior consent of the Board of Directors
of the Company; provided, however, that this restriction shall not be construed
as preventing Manager from investing his personal assets in passive investments
in business entities which are not in competition with the Company or its
affiliates, or from pursuing business opportunities as permitted by paragraph
4.5(b).
(2) Manager hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best interests
of the Company and with his duties under this Agreement. Should Manager discover
a business opportunity that does not relate to the current or anticipated future
business of the Company, he shall first offer such opportunity to the Company.
Should the Board of Directors of the Company not exercise its right to pursue
this business opportunity within a reasonable period of time, not to exceed
sixty (60) days, then Manager may develop the business opportunity for himself;
provided, however, that such development may in no way conflict or interfere
with the duties owed by Manager to the Company under this Agreement. Further,
Manager may develop such business opportunities only on his own time, and may
not use any service, personnel, equipment, supplies, facility, or trade secrets
of the Company in their development. As used herein, the term "business
opportunity" shall not include business opportunities involving investment in
publicly traded stocks, bonds or other securities, or other investments of a
personal nature.
5. Stock of Company. So long as this Agreement is in effect, Manager shall
be entitled to purchase stock of the Company in the same amounts and for the
same consideration, terms and conditions as provided to other officers of the
Company's operating divisions or subsidiaries. The manner of acquisition of
stock shall be structured so as to minimize adverse tax consequences to Manager.
6. Severance. So long as this Agreement is in effect, Manager shall at all
times be entitled to severance benefits equal to those provided to other chief
operating officers of the Company's operating divisions or subsidiaries. These
benefits shall include, without limitation, the Company's maintenance at its
cost of a life insurance policy and disability policy on Manager payable to
Manager and/or his legal representative or heirs as applicable, in amounts
reasonably agreed to by Manager and the Company.
7. Confidentiality of Trade Secrets and Other Materials.
7.1 Trade Secrets. Other than in the performance of his duties hereunder,
Manager agrees not to disclose, either during the term of his employment by the
Company or at any time thereafter, to any person, firm or corporation any
information concerning the business affairs, the trade secrets or the customer
lists or similar information of the Company. Any technique, method, process or
technology used by the Company shall be considered a "trade secret" for the
purposes of this Agreement.
7.2 Ownership of Trade Secrets; Assignment of Rights. Manager hereby
agrees that all know-how, documents, reports, plans, proposals, marketing and
sales plans, client lists, client files and materials made by him or by the
Company are the property of the Company and shall not be used by him in any way
adverse to the Company's interests. Manager shall not deliver, reproduce or in
any way allow such documents or things to be delivered or used by any third
party without specific direction or consent of the Board of Directors of the
Company. Manager hereby assigns to the Company any rights that he or she may
have in any such trade secret or proprietary information.
8. Termination.
8.1 Bases for Termination.
(1) Manager's employment hereunder may be terminated at any time by mutual
agreement of the parties.
(2) This Agreement shall automatically terminate on the last day of the
month in which Manager dies or becomes permanently incapacitated. "Permanent
incapacity" as used herein shall mean mental or physical incapacity, or both,
reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company's Board of
Directors, either Manager's regularly attending physician or a duly licensed
physician selected by the Company's Board of Directors, rendering Manager unable
to perform substantially all of his duties hereunder and which appears
reasonably certain to continue for at least six consecutive months without
substantial improvement. Manager shall be deemed to have "become permanently
incapacitated" on the date the Company's Board of Directors has determined that
Manager is permanently incapacitated and so notifies Manager.
(3) Manager's employment may be terminated by the Company "with cause,"
effective upon delivery of written notice to Manager given at any time (without
any necessity for prior notice) if any of the following shall occur:
(a) any willful breach of duty, habitual neglect of duty, and continued
incapacity);
(b) any material breach of Manager's obligations in Section 8 above; or
(c) any material acts or events which inhibit Manager from fully
performing his responsibilities to the Company in good faith, such as (i) a
felony criminal conviction; (ii) any other criminal conviction involving
Manager's lack of honesty or moral turpitude; (iii) drug or alcohol abuse; or
(iv) acts of dishonesty, gross carelessness or gross misconduct.
(4) Manager's employment may be terminated by the Company "with out cause"
(for any reason or no reason at all) at any time by giving Manager 60 days prior
written notice of termination, which termination shall be effective on the 60th
day following such notice. If Manager's employment under this Agreement is so
terminated, the Company shall (a) make a lump sum cash payment to Manager within
10 days after termination of an amount equal to (i) Manager's Base Salary for
the balance of the year in which termination occurs, (ii) a prorata portion of
any Incentive Bonus earned for the year in which termination occurs prorated to
the date of termination, plus (iii) any unreimbursed expenses accruing to the
date of termination; and (b) make a lump sum cash payment equal to Manager's
annual Base Salary, as increased pursuant to Section 3.1, on each anniversary
date of this Agreement for the balance of the term specified in Section 2. For
purposes of this provision, Manager's annual Base Salary and the remaining
portion of the term of the Agreement shall be calculated as of the termination
date. After the Company's termination of Manager under this provision, the
Company shall not be obligated to provide the benefits to Manager described in
Section 3.4 (except as may be required by law).
(5) Manager may terminate his employment hereunder by giving the Company
60 days prior written notice, which termination shall be effective on the 60th
day following such notice.
8.2 Payment Upon Termination. Upon termination under paragraphs 8.1(1),
(2), (3), or (5), the Company shall pay to Manager within 10 days after
termination without cause an amount equal to the sum of (1) Manager's Base
Salary for three months equal to the date of termination; and (2) unreimbursed
expenses accrued to the date of termination. After any such termination, the
Company shall not be obligated to compensate Manager, his estate or
representatives except for the foregoing compensation then due and owing, nor
provide the benefits to Manager described in Section 3.4 (except as provided by
law).
8.3 Severance Provisions. The provisions of Sections 8.1 and 8.2 shall be
subject to and deemed modified by the terms of any severance benefits granted to
Manager as provided under Section 6.
8.4 Dismissal from Premises. At the Company's option, Manager shall
immediately leave the Company's premises on the date notice of termination is
given by either Manager or the Company.
9. Injunctive Relief. The Company and Manager hereby acknowledge and agree
that any default under Section 7 above will cause damage to the Company in an
amount difficult to ascertain. Accordingly, in addition to any other relief to
which the Company may be entitled, the Company shall be entitled to such
injunctive relief as may be ordered by any court of competent jurisdiction
including, but not limited to, an injunction restraining any violation of
Section 7 above and without the proof of actual damages.
10. Miscellaneous.
10.1 Transfer and Assignment. This Agreement is personal as to Manager and
shall not be assigned or transferred by Manager without the prior written
consent of the Company. This Agreement shall be binding upon and inure to the
benefit of all of the parties hereto and their respective permitted heirs,
personal representatives, successors and assigns.
10.2 Severability. Nothing contained herein shall be construed to require
the commission of any act contrary to law. Should there be any conflict between
any provisions hereof and any present or future statute, law, ordinance,
regulation, or other pronouncement having the force of law, the latter shall
prevail, but the provision of this Agreement affected thereby shall be curtailed
and limited only to the extent necessary to bring it within the requirements of
the law, and the remaining provisions of this Agreement shall remain in full
force and effect.
10.3 Governing Law. This Agreement is made under and shall be construed
pursuant to the laws of the State of Delaware.
10.4 Counterparts. This Agreement may be executed in several counter parts
and all documents so executed shall constitute one agreement, binding on all of
the parties hereto, notwithstanding that all of the parties did not sign the
original or the same counterparts.
10.5 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged representation,
promise, inducement, or statement not so set forth herein.
10.6 Modification. This Agreement may be modified, amended, superseded, or
cancelled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
party or parties to be bound by any such modification, amendment, supersession,
cancellation, or waiver.
10.7 Attorneys' Fees and Costs. In the event of any dispute arising out of
the subject matter of this Agreement, the prevailing party shall recover, in
addition to any other damages assessed, its attorneys' fees and court costs
incurred in litigating or otherwise settling or resolving such dispute whether
or not an action is brought or prosecuted to judgment. In construing this
Agreement, none of the parties hereto shall have any term or provision construed
against such party solely by reason of such party having drafted the same.
10.8 Waiver. The waiver by either of the parties, express or implied, of
any right under this Agreement or any failure to perform under this Agreement by
the other party, shall not constitute or be deemed as a waiver of any other
right under this Agreement or of any other failure to perform under this
Agreement by the other party, whether of a similar or dissimilar nature.
10.9 Cumulative Remedies. Each and all of the several rights and remedies
provided in this Agreement, or by law or in equity, shall be cumulative, and no
one of them shall be exclusive of any other right or remedy, and the exercise of
any one of such rights or remedies shall not be deemed a waiver of, or an
election to exercise, any other such right or remedy.
10.10 Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
10.11 Notices. Any notice under this Agreement must be in writing, may be
telecopied, sent by express 24-hour guaranteed courier, or hand-delivered, or
may be served by depositing the same in the United States mail, addressed to the
party to be notified, postage-prepaid and registered or certified with a return
receipt requested. The addresses of the parties for the receipt of notice shall
be as follows:
If to the Company: Xxxxxx Capital, Inc.
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0000 X xxxxxxx Xxx #000
Xxxx Xxxxx Xx 00000
If to Manager: Xxxxxx Xxxxxxxxxx
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000 X Xxxxxxxxx Xx # 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Each notice given by registered or certified mail shall be deemed
delivered and effective on the date of delivery as shown on the return receipt,
and each notice delivered in any other manner shall be deemed to be effective as
of the time of actual delivery thereof. Each party may change its address for
notice by giving notice thereof in the manner provided above.
(Balance of this page was intentionally left blank.)
10.12 Survival. Any provision of this Agreement which imposes an
obligation after termination or expiration of this Agreement shall survive the
termination or expiration of this Agreement and be binding on Manager and the
Company.
10.13 Right of Set-Off. Upon termination or expiration of this Agreement,
the Company shall have the right to set-off against the amounts due Manager
hereunder the amount of any outstanding loan or advance from the Company to
Manager.
10.14 Effective Date. This Agreement shall become effective as of the date
set forth on page 1 when signed by Manager and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
"Manager"
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Xxxxxx Xxxxxxxxxx Xxxxxx Capital, Inc.
