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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as of
this 4th day of January, 1999 by and between Finantra Capital, Inc., a Delaware
corporation (the "Company") and Xxxxx Xxxxxxxxx ("Employee").
W IT X X X X X X X :
WHEREAS, the Company desires to retain, engage and employ Employee and
Employee desires to be so retained, engaged and employed by the Company in the
capacity of Executive Vice President upon the terms and conditions set forth in
this Agreement, and
WHEREAS, Employee by reason of the nature of Employee's duties and
responsibilities will be provided access to the Company's confidential and
proprietary information which the Company desires to maintain confidential.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
fol1ows:
1. The above and foregoing recitals are true and correct and are
incorporated herein.
2. RELATIONSHIP OF THE PARTIES: The Company hereby employs, hires and
engages Employee as its Executive Vice President and the Employee hereby accepts
and agrees to such hiring, engagement and employment subject to the supervision
and pursuant to the orders, advice and discretion of the Company's President and
Board of Directors. The Employee shall also perform such other duties as are
customarily performed by one holding such position in
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other, same or similar businesses as that engaged in by the Employer.
3. DUTIES: During the term of the Employee's employment, the Employee
shall be responsible for assisting and carrying out the directives of the
Company's President.
4. TERM: The term of the Employee's employment shall be for a term of
four (4) years commencing on January l, 1999 and subject to the termination
provisions set forth in this Agreement.
5. COMPENSATION: The Company in consideration of the services performed
and to be performed hereunder, 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 employees, but not less than
twice per month, an annual salary as follows:
5.1 During the calendar year 1999 the sum of $85,000.00
5.2 During the calendar year 2000 the sum of $90,000.00
5.3 During the calendar year 2001 the sum of $95,000.00
5.4 During the calendar year 2002 the sum of $100,000.00
6. BENEFITS: The Employee shall be entitled to the following benefits
during the period of his employment hereunder:
6.1 Employee shall he entitled in accordance with the
Company's general policies to participate in health, medical and life insurance
programs and any other insurance benefits as are made available from time to
time by the Company to other employees or executives.
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6.2 During the term of his employment the Employee shall be
entitled reimbursement of all reasonable expenses actually paid or incurred by
Employee in the course of and pursuant to the performance of her duties
hereunder.
6.3 Employee shall be entitled to three weeks vacation time
annually. Paid vacation shall be prorated in any calendar year during which the
Employee is 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.
7. INCENTIVE STOCK OPTION PROGRAM: Employee shall be granted annually
50,000 Incentive Stock Options as described in the Incentive Stock Option
Program of the Company with the first grant of 12,500 on March 30, 1999 and on
the 30th day of each quarter thereafter during the term hereof. The Incentive
Stock Options shall be funded with common shares of the Company.
7.1 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
tile owner of any of the common shares of 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.
Employee shall have 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 with the
registration of shares be in furtherance of a secondary offering of common
shares to the public and the underwriter engaged by Finantra
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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.
8. DISABILITY: In the event that Employee shall become incapacitated by
reason of mental or physical disability during the term of his employment such
that he is 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 hereunder immediately
terminate. Upon such termination Employee shall be entitled to receive and shall
be paid by the Company his salary in effect on the date of termination paid at
the Company's regular and customary intervals for the payment of salaries for
the lesser of three (3) months or the remaining teens of this Agreement. In
addition, during such period, Employee shall continue to receive his benefits
described in this Agreement as in effect at the date of termination. Immediately
following the expiration of such applicable period the Employee shall no longer
be entitled to further Company benefits. The Employee agrees to accept the
payments described herein 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.
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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")
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 tile 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 wil1 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 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
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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 entitler1 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 her ability,
experience and talents, perform all of the express and implicit terms hereof, to
the reasonable satisfaction of the Company and its Board of Directors. It is
understood that the Employee shall devote her full time and effort to the
business of tile Company and may not render the same or similar services or
xxxxx during the term hereof to a business which is the same or similar to that
of the Company.
11. EMPLOYEE'S LIMITATIONS ON ABILITY TO MAKE COMPANY COMMITMENTS: The
Employee shall have the legal authority to enter into contracts and commitments
for and on behalf of the Company. However, the Employee shall not enter into any
contract or
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commitment on behalf of the Company which has not been approved by the Company's
Board of Directors.
12. TRUST FUND: All money belonging to the Company which comes into the
possession of Employee shall be received by Employee in trust for the Company
and Employee shall immediately deliver said funds to tile Company for deposit.
All of such funds shall be considered "Trust Funds".
13. COVENANTS, REPRESENTATIONS, AND WARRANTIES OF EMPLOYEE: The
Employee represents and warrants to the Company as follows:
13.1 Employee has the power and authority to enter into this
Agreement and perform its duties hereunder.
13.2 Employee shall use his best efforts to comply with all
laws, regulations, rules and ordinances pertaining to the Company's business.
13.3 Employee shall weekly, or at such other interval
designated by the Company, deliver to the Chairman of the Board of the Company
and its Parent, activity reports of the Company in such form as prescribed by
the Company.
14. RESTRICTIVE COVENANTS:
14.1 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 and
its Subsidiaries from time to time. Accordingly, Employee agrees that she will
not, during or for a period of 18 months after the term of her employment except
with prior written consent of the Company, disclose any
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confidential information relating to the Company or its Subsidiaries. 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 the Company prior notice of such intended disclosure
so that the Company has the opportunity to seek a protective order if it deems
such appropriate.
14.2 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.
14.3 For so long as the Employee is employed hereunder, and
for a period of 18 months following termination, Employee shall not engage
either as principal, agent or consultant, or through any corporation, firm or
organization in which she is or may be an officer, director, employee,
shareholder, partner, member or with which he is otherwise affiliated in any
business for profit which is engaged in any activity or business similar to that
of the Employer within 75 miles of any office where the Company is conducting
business on the date of the Employee's termination of Employment.
14.4 It is agreed by the Employee that should she violate the
provisions of this section, the Company shall have the right to obtain an Order
from a court of competent jurisdiction enjoining her from violating any and all
of the provisions of this section or of this
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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 Company 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.
15. NOTICE: 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 Press
Westside Corporate Center
000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
0000 Xxxxx xx Xxxx Xxxx.
Xxxxx Xxxxxx, XX 00000
If to the Employee: Xxxxx Xxxxxxxxx
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Any party may by notice change the address to which notice or other
communications to it are to be delivered or mailed.
16. MISCELLANEOUS PROVISIONS:
16.1 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.
16.2 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
16.3 BINDING EFFECT: This Contract shall enure to the benefit
of and shall be binding upon the parties hereto and their respective heirs,
personal representatives, successors and assigns. However, under no
circumstances shall this Contract be assignable by Employee.
16.4 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 deleted 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.
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16.5 GOVERNING LAW AND VENUE: This Contract shall be construed
and interpreted according to the laws of the State of Florida. Venue for any
litigation hereunder shall be in Dade County, Florida.
16.6 JOINT PREPARATION: The preparation of this Contract has
been a joint effort of the parties and the resulting documents shall not, solely
as a matter of judicial construction, be construed more severely against one of
the parties than the other.
16.7 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 4th day of January, 1999.
FINANTRA CAPITAL, INC.
By: /s/ XXXXXX PRESS
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XXXXXX PRESS, President
/s/ XXXXX XXXXXXXXX
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XXXXX XXXXXXXXX, Employee
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