EMPLOYMENT AGREEMENT
EXHIBIT 10.1
AGREEMENT
made as of the 13th day of September, 2007, by and between Xxxxxxxx Xxxxxxx,
an
individual residing in London, UK, (hereinafter referred to as
"Executive") and THE AMACORE GROUP, INC., a Delaware corporation with offices
in
Tampa, Florida (hereinafter called the "Company").
W
I T N E S S E T H
WHEREAS,
the Company desires to retain the services of Executive to render his services
to Company on the terms and conditions hereinafter set forth; and
WHEREAS,
Executive is agreeable to rendering such services to the Company on the terms
and conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto, intending to be legally bound, hereby agree
as
follows:
1. Employment
Term, Duties
and Acceptance
(a) Company
hereby retains
Executive as Company's Chief Financial Officer for a period of three
(3) years, commencing on the date hereof (the "Employment Period"), subject
to
earlier termination as hereinafter provided, to render his services to Company
upon the terms and conditions herein contained, in such executive capacity.
In
such executive capacity, Executive shall report and be responsible to the
Company's Chief Executive Officer and the Company’s Board of
Directors.
(b) Executive
hereby accepts
the foregoing employment and agrees to render his services to Company on a
full-time basis in such a manner as directed by the Company’s Chief Executive
Officer as to reflect Executive’s best efforts to the end that the Company's
operations are properly managed. In furtherance of Executive performing the
duties assigned to him under this Agreement, the Company agrees to provide
Executive with a support staff reasonably required by Executive so as to enable
him to carry out such duties.
2. Compensation
(a) During
the first year of
the term of this Agreement, Executive shall receive compensation of $360,000
per
year. This compensation may, at Executive's election, be accrued, in
whole or in part. Executive’s compensation shall be payable in
accordance with the general payroll practices of the Company as are from time
to
time, in effect, less such deductions or amounts as shall be required to be
withheld by applicable law or regulation. On each yearly anniversary date of
the
execution of this Agreement (hereinafter sometimes called the
"Anniversary Date," in each yearly instance) the Board of Directors shall review
the services provided by Executive to determine the amount that Executive's
salary shall be increased for the forthcoming yearly period. Such increase
shall
be no less than an amount equal to the percentage increase in the Consumer
Price
Index or such other similar index reflective of the cost of living increase
in
the Orlando, Florida metropolitan area from the beginning of yearly period
to
the end of the yearly period with respect to the Consumer Price Index applicable
to the said metropolitan area, times Executive's base compensation in effect
during the said yearly period. The sum resulting by way of this increase to
the
Executive's base compensation shall, for the then immediately succeeding period
be considered the Executive's base compensation. The Board of Directors shall
also determine on an annual (fiscal or calendar year, as the case may be) basis,
the amount, if any, of bonus or incentives to be paid to Executive. Provided,
however, that Executive shall receive a special bonus ("special bonus") in
an
amount equal to one (1) percent of the Company's pre-tax profits from the
preceding year (as determined by the application of generally accepted
accounting principles), up to the first one-million dollars of such profits;
plus an additional sum equal to two, and (2) percent of the Company's pre-tax
profits for all sums over one-million dollars The special bonus shall
be paid within thirty (30) days following determination thereof, which
determination shall be made as soon as practicable.
1
(b) Executive
shall receive a
sign-on bonus of Thirty Five Thousand (35,000) shares of the Company’s Class A
common stock (the “shares”) which shares shall be issued and vested in the
Executive on the 91st day following
the
execution of this Agreement. In the event the Company files a form of
Registration Statement, as that term is generally
understood, registering shares of its Class A common stock at any
time following the issuance of the shares to Executive but prior to a date
being
one year thereafter, the Company shall, at Executive’s request, include
Executive’s shares in such Registration Statement provided the Executive agrees
to sell such shares only in accordance with the then existing Rule 144 selling
formula for shares held more than one year but less than two years.
(c) Executive
shall be
entitled to reasonable paid vacation time, sick leave and time to attend
professional meetings comparable to that offered the executives in comparable
positions.
(d) Executive
shall be
entitled (subject to the terms and conditions of particular plans and programs)
to all fringe benefits afforded to other senior executives of the Company,
including, but not by way of limitation, bonuses and the right to participate
in
any pension, stock option, retirement and, unless otherwise covered by a group
policy (as opposed to an individual policy owned and paid for by Executive
and/or his wife and/or a company of which either of them own 100% of stock),
major medical, group health, disability, accident and life insurance, relocation
reimbursement, and other employee benefit programs made generally available,
from time to time, by the Company. The Company shall reimburse the
Executive’s reasonable health insurance until such time Company can provide
Executive with appropriate health care coverage based on Executive’s specific
health care needs.
(e) Company
shall pay or
reimburse Executive for reasonable expenses incurred in the performance of
his
services under this Agreement during the Employment Period, upon presentation
of
expense statements, vouchers or such other supporting documentation as may
reasonably be required.
3. Disability
(a) Upon
the disability, as
defined in subparagraph 3(b) hereof, of Executive during the Employment Period,
Company may, in its sole discretion, terminate Executive's employment; provided
that if the Company elects to so terminate Executive's employment, Executive
shall be entitled to receive, accrued but unpaid salary, expense reimbursement
and bonuses, the proceeds of any disability insurance policy plus an amount
from
the Company monthly which, when added to the amount received by the Executive
from any disability policy in effect for the Executive at the time of his
disability will equal the Executive's salary for a twelve-month period following
the date of termination, as if the termination had not occurred. Such
termination shall have no effect on the Company's obligation to pay the special
bonus referred to hereinbefore. Provided, however, in the event Executive
partially perform and discharge the duties previously performed by him for
Company, nothing herein shall prevent the Executive from continuing his duties
in a part-time capacity, at a level of Compensation to be determined at that
time.
(b) For
purposes of this
Agreement the term "disability" shall mean Executive's inability to continue
to
materially and substantially perform and discharge the duties previously
required of him on behalf of the Company for an aggregate period exceeding
three
(3) consecutive months within any twelve (12) month consecutive
period.
(c) In
the event of a dispute
between the parties as to what constitutes a disability, such dispute shall
be
finally determined by a person mutually agreed upon by Executive and Company.
If
a mutually acceptable person cannot be selected, such designations shall be
made
by Executive and Company each choosing a person, which person shall then
mutually select a third person (collectively called the "panel"). The panel's
determination shall be made by majority vote and such determination shall be
deemed binding and conclusive. The parties agree to fully cooperate with
whatever procedures and examinations may be required in order to allow the
panel
to make its determination.
2
4. Termination
of
Employment
(a) (i)
In the event Fifty
(50) Percent or more of the equity securities of the Company are acquired by
any
single person or identifiable group, as defined by the applicable rules and
regulations under the Security and Exchange Act of 1934, as amended and in
the
further event that Executive's employment is terminated, by either the Company
or the Executive, within twelve (12) months following such event, except if
such
termination is by reason of "cause" (as that term is defined at paragraph 4(c)
hereafter, or (ii) in the event Executive terminates his employment by reason
of
the uncured breach of this Agreement by Company ("cause"), then, on the
termination date, Company shall pay (or issue, as the case may be) to Executive
a lump sum amount equal to the aggregate of (i) accrued but unpaid salary,
if
any; (ii) accrued but unpaid expenses, if any; (iii) accrued but unpaid bonuses,
if any; (iv) unissued warrants, if any; and (v) the total compensation which
would have been paid to Executive through three full years of compensation
from
the date of termination. If the Executive intends to terminate his employment
with the company for "cause", the "cause" shall be specified in a written notice
sent by Executive to the Company, and the Company shall be afforded thirty
(30)
days or longer, if reasonably required, to cure such breach, if such breach
is
capable of being cured.
(b) In
the event Fifty (50)
Percent or more of the equity securities of the Company are acquired by any
single person or identifiable group, as defined by the applicable rules and
regulations under the Security and Exchange Act of 1934, as amended, all
unvested securities and benefits attributable to the Executive will immediately
vest.
(c) In
the event of
misconduct in office by Executive in the performance of his duties hereunder
(which shall hereinafter be referred to as "Termination for Cause"), Company
may
terminate this Agreement by giving two (2) weeks prior written notice to
Executive identifying the cause of termination and specifying the effective
date
of such termination. If Executive is subjected to Termination for Cause, then
such "cause" shall be specified in such notice and Executive shall be afforded
thirty (30) days or longer, if reasonably required, to cure such breach, if
such
breach is capable of being cured. If Executive is unable to cure or
if terminated pursuant to the provisions of paragraph “4.(c)”, Company shall pay
to Executive the aggregate of (i) accrued but unpaid expenses, if any; and
(ii)
the net salary compensation which would have been paid to Executive through
the
date of termination. Furthermore, in that event any warrants to be issued
pursuant to this Agreement, and any options granted pursuant to plans then
applicable to Executive which have not then vested shall be forfeited as of
the
termination date.
(d) The
failure of
Executive’s representations herein to be materially accurate shall give the
Company the right to terminate Executive’s engagement.
(e) In
the event Executive
resigns or is terminated as an employee of Company, Executive hereby agrees
that
his position(s) as officer and director of the Company shall automatically
end
as of the date of his resignation or termination of employment.
5. EXECUTIVE
REPRESENTATIONS
Executive
represents and warrants to the Company that:
(a) He
has full right, power
and authority to enter into this Agreement and perform the services and
directions given to him by the Company’s Chief Executive Officer, consistent
with Executive’s position of Chief Financial Officer, free of any further
obligation to any prior employer.
(b) The
Executive is not
subject to the restrictions of any restrictive covenants entered into between
or
among the Executive and other prior employer(s).
6. CONFIDENTIALITY
(a) Executive
agrees to
execute Company's standard form of Confidentiality Agreement as prepared by
Counsel to Company.
(b) Executive's
covenants
contained herein shall survive the termination or expiration of this
Agreement.
3
7. TERMINATION
OF
AGREEMENT
This
Agreement shall, in addition to other provisions affecting termination,
terminate on the occurrence of any of the following events:
(a) Cessation
of the
Company's business;
(b) Dissolution
of the
Company; or
(c) The
voluntary agreement
of the partieshereto.
8. NOTICES
All
notices, requests, demands, deliveries and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed, postage
prepaid, registered or certified mail, return receipt requested to the parties
at the addresses (or at such other address for a party as shall be specified
by
like notice) specified on the first page of this Agreement.
9. WAIVER
The
failure of either party at any time or times to require performances of any
provision hereof shall in no manner effect the right at a later time to enforce
the same. To be effective, any waiver must be contained in a written instrument
signed by the party waiving compliance by the other party of the term or
covenant as specified. The waiver by either party of the breach of any term
or
covenant contained herein, whether by conduct or otherwise, in any one or more
instances, shall not be deemed to be, or construed as, a further or continuing
waiver of any such breach, or a waiver of the breach of any other term or
covenant contained in this Agreement.
10. GOVERNING
LAW
This
Agreement shall be governed by the laws of the Sate of Florida, which shall
have
exclusive jurisdiction over any claims or disputes arising from the subject
matter contained herein without regard to any conflict of laws
provision.
11. COMPLETE
AGREEMENT
This
Agreement constitutes the complete and exclusive agreement between the parties
hereto which supersedes all proposals, oral and written, and all other
communications between the parties relating to the subject matter contained
herein.
12. SEVERABILITY
If
any of
the provisions of this Agreement are held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
4
13. EXECUTORS,
ADMINISTRATORS, SUCCESSORS AND ASSIGNS
This
Agreement may not be assigned, transferred or otherwise inure to the benefit
of
any third person, firm or corporation by operation of law or otherwise, without
the written consent by the other party hereto, except as herein specifically
provided to the contrary.
14. MODIFICATION
This
Agreement may only be amended, varied or modified by a written document executed
by the parties hereto.
15. FURTHER
INSTRUMENTS
The
parties hereto agree to execute and deliver, or cause to be executed and
delivered, such further instruments or documents and take such other action
as
may be required to effectively carry out the transactions contemplated
herein.
16. INDEMNIFICATION
Except
for a claim, demand, suit, action or judgment asserted by Protective against
Executive and/or the Company, in addition to any liability insurance to be
provided the Executive, the Company will indemnify Executive from any and all
claims, demands, suits, actions or judgments which hereafter may by asserted,
instituted or recorded by any person, firm or corporation for the duration
of
this Agreement and for a six (6) year period following the termination of said
Agreement as defined in paragraph 4. The foregoing indemnity shall be
enforceable only with respect to claims made against Executive with respect
to
all expenses, losses, charges and attorney's fees sustained or incurred by
the
Executive in defending any suit, action or other proceeding brought against
the
Executive, directly or indirectly, arising out of Executive's employment by
Company.
17. BOARD
APPROVAL
This
Agreement is subject to and conditioned upon the approval of the Company’s Board
of Directors.
5
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement this 13th
day
of September, 2007.
| THE AMACORE GROUP, INC. | |
|
By:
/s/ Xxxxx X. Xxxxxx
Xxxxx
X. Xxxxxx
Chief
Executive Officer
|
By:
/s/ Xxxxxxxx Xxxxxxx
Xxxxxxxx
Xxxxxxx
|
6
