EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and
entered into this 23rd day of December, 1998 by and between FINANTRA CAPITAL,
INC., a Delaware corporation (the Company") and XXXXXXX X. XXXXXXX (UHellman
or "Employee).
WITNESSETH:
WHEREAS, Xxxxxxx is an attorney licensed to practice law in the state
of Florida, and
WHEREAS, Xxxxxxx has been representing the Company in various matters
over the last 24 months, and
WHEREAS, the Company desires to employ Xxxxxxx as its general counsel
and
WHEREAS, the Company and Xxxxxxx desire to memorialize their employment
agreement into a written instrument.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and for such other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. RECITALS: The above and foregoing recitals are true and correct
and are incorporated herein.
2. EMPLOYMENT: The Company hereby employs, hires and engages Xxxxxxx
as its general counsel for the purpose of giving and rendering legal services
to the Companv as may be necessary including but not limited to the overseeing
of outside legal counsel employed by the company on specific matters.
3. TERM OF AGREEMENT: The term of this agreemen: shall commence on
January 1, 1999 and shall continue thereafter for a term of five (5) years,
subject to the termination provisions
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set forth in this agreement. The term of this agreement shall automatically be
extended for additional one (1I ) year terms unless either party to this
agreement gives written notice to the other no later than thirty (30) days
prior to the expiration of any term stating that said party declines such
exension.
4. COMPENSATION: The Company in consideration of the services to be
performed and provided by Xxxxxxx shall pay to Xxxxxxx during the first twelve
months of the term of this agreement the sum of Fifteen Thousand Dollars ($
15,000.00) per month commencing on February 1, 1999. Commencing on each annual
anniversary date of this agreement during the term hereof Xxxxxxx'x
compensation shall be increased by the lesser of cost of living or 5.0%.
Compensation to be paid to Xxxxxxx shall be paid gross without deductions and
Xxxxxxx shall be responsible for any and all withholding taxes or FICA taxes
applicable to said compensation.
5. BENEFITS: In addition to the compensation set forth in paragraph 5
above Xxxxxxx shall be entitled to receive the following benefits during the
term of this agreement:
5.1 Medical Insurance: Xxxxxxx and his family shall be
entitled to medical health and life insurance benefits as are made available by
the Company to the Company's executives during the term of this agreement.
5.2 Reimbursement of Expenses: Xxxxxxx shall be entitled to
reimbursement of all reasonable expenses actually paid or incurred by Xxxxxxx
in the course of and pursuant to the performance of his duties under this
agreement.
5.3 Vacation: Employee shall be entitled to three weeks
vacation time annually. Any vacation time not utilized or taken in a given year
shall accrue to the following vear(s) during the term hereof. Paid vacation
shall be prorated in any calendar year during which the Employee is
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employed under this Agreement for less than an entire year. The Employee shall
also be entitled to all paid holidays given by the Company to its executives or
employees.
6. Incentive Stock Option Program (ISO): Employee shall be entitled to
participate in Incentive Stock Option Program of the Company on an annual basis
during the term of this agreement as follows:
6.1 Initial Grant of Options: Upon the execution of this
agreement the Employee shall receive 75,000 stock options to purchase the
common shares of the Company at an exercise price equal to the Fair Market
Value of the share price on the day the option is granted less the maximum
allowable discount allowed by law which will not create income to the Employee
or expense to the Company.
6.2 Annual Grant of Options: Commencing in the calendar year
1999 and each calendar year during the term of this agreement, the Employee
shall be granted 75,000 stock options at an exercise price equal to those
described in Section 6.1 above. The options shall be ranted quarterly in each
year (January is', April is', July Is', October ls').
6.3 The ISO's shall have an exercise period of 60 months from
the date of issuance.
6.4 Piggy Back Registration Rights: If at any time following
the date of this Agreement Finantra proposes to register any of its securities
under the Security Act of 1933. as amended, and further provided consultant is
the owner of any of the common shares of Finantra Finantra will give written
notice by registered mail. at least thirty (30) days prior to the filing of any
such registration statement of its intention to file a registration statement.
Emplovee shall have
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twenty (20) days after receipt of such notice to notify Finantra to register
the common shares owned by Employee under such registration statement. Finantra
shall pay all costs and expenses in connection vith the registration of the
shares described herein. Notwithstanding this provision, should the
registration of shares be in furtherance of a secondary offering of common
shares to the public and the underwriter engaged by Finantra have reasonable
grounds to request that all shares of Employee not be registered but only a
portion thereof. Employee agrees to only register so many of its shares as the
underwriter may allow.
7. INDEMNIFICATION AND WAIVER OF PROFESSIONAL LIABILITY COVERAGE: The
Corporation recognizes that Xxxxxxx is a director of the Company and a
shareholder. The Company agrees that it will indemnify Xxxxxxx against any and
claims, suits, actions, debts, darnages, costs. charges and expenses including
court costs and attomey's fees arising from any and all liability. Iosses and
damages of any nature whatsoever as a result of the services being rendered to
the Corporation by Xxxxxxx as general counsel or as director. Its is understood
by the Company that Xxxxxxx will no longer carry errors and omissions Insurance
which would cover the Company for Professional Liability.
8. DISABILITY: In the event Xxxxxxx shall become incapacitated by
reason of mental or physical disability during the temm of this agreement such
that he is substantially prevented from performing his duties and services
hereunder for a period of 90 days or for such shorter periods aggregating 90
days during any twelve month period. the Company thereafter shall have the
right to terminate this agreement bv sending written notice of termination to
Xxxxxxx or his legal representative and thereupon his employment shall
hereunder immediately terminate. Upon such termination Xxxxxxx shall be
entitled to receive and shall be paid by the Company all compensation
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due him to the date of termination plus an additional twelve months or the
amount remaining under the term of this agreement, whichever is shorter. In
addition, during said twelve month period. Xxxxxxx shall be entitled to receive
his benefits described in this agreement through the date of termination.
9. Termination:
9.1 Cause: The Company shall have the right to terminate the
employment of Employee hereunder at any time for cause (as used herein.
"cause"N if:
9.1.1 Employee shall be convicted by a court of
competent and final jurisdiction of any crime (whether or not involving the
Company) which constitutes a felony in the jurisdiction involved or otherwise
commit acts of moral turpitude in such a manner as to adversely reflect upon
the reputation of the Company; or
9.1.2 Employee shall commit any act of
embezzlement or similar material dishonest and injurious conduct against the
Company; or
9.1.3 Employee shall demonstrate reckless
disregard or grossly negligent and injurious conduct in connection with the
performance of. or a gross disregard for. his duties and responsibilities
under, or assigned pursuant to this Agreement; or
9.1.4 Employee is in default in the performance
of his obligations, services or duties under this agreement and such default
continues for a period of fifteen (15) days after written notice to Employee.
Notwithstanding the foregoing, the Company agrees that it will not be
arbitrary or capricious in terminating Employee s employment hereunder for
other than good and valid cause which results in material damage to the
Company. In the event there is any dispute between the Company and the
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Employee concerning the validity of such termination, such matter shall be
resolved by binding arbitration in Miami. Florida in accordance with the rules
of the American Arbitration Association. The Employee shall continue to receive
his regular salary and benefits until such termination has been determined. If
the termination was determined to be valid the employee shall reimburse the
Company all compensation and benefits received from the date of the
termination.
9.2 Mutual Agreement: Company and Employee may mutually agree
to terminate this agreement.
9.3 In the event that the employment of Employee shall be
terminated by the Company, Employee shall be entitled to receive his salary
then in effect through the date of such termination. Employee shall accept the
payments pursuant to this paragraph in full discharge and release of the
Company of and from any further obligations under this Agreement. Nothing
contained in this paragraph shall constitute a waiver or release by the Company
of any rights or claims it may have against the Employee, including, but not
limited to, any claims or rights pursuant to the provisions set forth in this
Agreement.
10. Best Efforts of Employee: The Employee agrees that Employee will.
at all times, faithfully, industriously and to the best of his ability,
experience and talents, perform all of the express and implicit terms hereof.
to the reasonable satisfaction of the Company. It is understood that the
Employee shall devote so much of his time and effort to the business of the
Company as is necessary. The Employee may render legal services to other
Company subsidiaries and others including business entities and corporations in
which Employee has an equity interest so long as the rendering of said services
do not unreasonably interfere with the services being provided to the Company.
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11. Covenants. Representations and Warranties of Xxxxxxx: Xxxxxxx
represents and warrants to the Company as follows:
11.1 He has the power and authority to enter into this
Agreement and perform its duties hereunder.
11.2 He shall use his best efforts to comply with all
laws. regulations, rules and ordinances pertaining to the Company's business.
12. Restrictive Covenants:
12.1 Employee recognizes and acknowledges that as a
consequence of his duties hereunder, Employee will be provided access to or
will come in contact with confidential information of or regarding the Company.
Accordingly, Employee agrees that he will not, during or for a period of 18
months after the term of his employment except with prior written consent of
the Company' disclose any confidential information relating to the Company The
provisions of this section shall not apply to information which Employee is
required to disclose by law or by order a court of competent jurisdiction but
only to the extent required by law or by order and when reasonably possible.
only if Employee shall give he Company prior notice of such intended disclosure
so that the Company has the opportunity to seek a protective order if it deems
such appropriate.
12.2 As used in this Agreement, "confidential information"
shall mean and include studies, plans, reports, records, promotional materials,
agreements, memoranda documents, information related to Company activities,
systems, finances, client lists, research data, personnel data, financing
sources and such other related information not of a public knowledge.
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12.3 It is agreed by the Employee that should he violate the
provisions of this section, the Company shall have the right to obtain an Order
from a court of competent jurisdiction enjoining him from violating any and all
of the provisions of this section or of this Agreement and the Company's
application for such a writ of injunction shall be deemed without prejudice to
any all other rights, remedies or actions which may accrue in favor of the
Company as a result of the Employee's breach of this provision or of the terms
of this Agreement. In the event the Companv is required to institute any
litigation concerning the terms and conditions of this section or of this
Agreement, the prevailing party shall be entitled to reimbursement of all
reasonable attorney's fees and costs at both the trial and the appellate court
level. The Employee further agrees that in the event of litigation venue shall
only be proper in Broward County, Florida.
13. Notices: All notices, requests, demands, waivers, consents,
approvals or other communications required or permitted hereunder shall be in
writing and shall be deemed to have been given when received if delivered
personally or by recognized overnight carrier. or three (3) days after being
sent if sent by certified or registered mail, postage prepaid, return receipt
requested, to the following addresses:
If to the Company: Finantra Capital, Inc.
Attention: Xxxxxx X. Press
Westside Corporate Center
000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
If to the Employee: Xxxxxxx X. Xxxxxxx
0000 Xxxxx xx Xxxx Xxxx.
Xxxxx Xxxxxx, Xx. 00000
Any party may by notice change the address to which notice or other
communications to it are to be delivered or mailed.
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14. Miscellaneous Provisions:
14.1 Captions and Paragraph Headings: Captions and paragraph
headings contained in this Contract are for convenience and reference only and
in no way define, describe. extend or limit the copy or intent of this Contract
nor the intent of any provision hereof.
14.2 Counterparts: This Contract may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same Contract.
14.3 Binding Effect: This Contract shall enurc to the benefit
of and shall be binding upon the parties hereto and their respective heirs,
personal representatives, successors and assigns. However, under no
circutnstances shall this Contract be assignable by Employee.
14.4 Entire Agreement: This Contract constitutes the entire
understanding agreement between the parties and may not be changed. altered or
modified, except by an instrument in writing signed by all parties against whom
and enforcement of such Contract would be sought. In the event any provision of
this Contract shall be determined by appropriate judicial authority to be
illegal or otherwise invalid. such provision, shall be given its nearest legal
meaning or be construed or deleed as such authority determines. The remainder
of this Contract shall be construed to be in full force and effect. This
Contract shall not be modified unless said modification is in writing and
signed by the party to be charged.
14.5 Governing Law and Venue: This Contract shall be consmued
and interpreted according to the laws of the State of Florida. Venue for any
litigation hereunder shall be in Broward County, Florida.
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14.6 Attorney's Fees: In the event of any litigation arising
out of or relating to this Contract. the unsuccessful party in such litigation
shall pay to the successful party all costs and expenses incurred therein by
the successful party, including, without limitation. reasonable attorney's fees
and costs at the trial and appellate court level.
IN WITNESS WHEREOF. the parties have hereunto set theirs hands and
seals this 23rd day of December, 1998.
FINANTRA CAPITAL, INC.
By:
---------------------------------
XXXXXX X. PRESS, President
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XXXXXXX X. XXXXXXX
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