EMPLOYMENT AGREEMENT
Exhibit
10.20
This
Employment Agreement (the “Agreement”), entered into as of the 28th
day of
February 2006 and effective as of the 1st
day of
March 2006 (the “Effective Date”) by and between Azur Holdings, Inc., a Delaware
company (“Corporation”), and Xxxxxx Xxxxx (the “Executive”).
Recitals
A.
Executive
has certain expertise in real estate development business and the public
equities markets.
B. The
Corporation desires to engage the Executive as an executive to the
Corporation.
C. The
Executive and the Corporation desire to enter into this Agreement in accordance
with the terms and conditions set forth herein below.
D. This
Agreement shall supersede and replace all prior employment and consulting
agreements between the Corporation and the Executive.
NOW,
THEREFORE,
in
consideration for the mutual covenants and promises contained herein, and other
good and valuable considera-tion, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
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1.
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EXECUTIVE
SERVICES.
During the term of this Agreement, the Executive shall serve as Chairman
of the Board of Directors and Chief Executive Officer of the Corporation
(collectively the “Position”) and shall perform all duties commensurate
with the Position and as may reasonably be assigned to his from time
to
time by the Board of Directors of the Corporation (“the “Directors”) or
their designee. The Executive shall use his best 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. Executive acknowledges that he may need to spend time traveling
from time to time working on Corporation projects. The Executive
shall,
during the term of this Agreement, devote his full-time efforts,
attention
and energies to the performance of his duties hereunder.
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During
the term of this Agreement Executive shall be required to comply with all
corporate procedures and policies developed by the Board of Directors of the
Corporation.
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2.
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TERM.
The term of the Agreement will commences on the Effective Date (the
“Commencement Date”), and shall continue for a period of 6 months from the
Commencement Date, ending on the final day of the 6th
month following the Commencement Date (the “Initial Term”). This Agreement
may thereafter be renewed, by written notice to the Executive delivered
to
Executive 90 days prior to the expiration of the Initial Term or
the
Renewal Term, as the case may be, at the option of the Corporation
for an
addition six (6) month term (“Renewal Term”). If this Agreement is
renewed, the Renewal Term shall commence on the first (1st)
day following the expiration of the Initial Term.
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3.
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COMPENSATION.
The
full annual compensation for the services to be rendered by Executive
hereunder shall be comprised of the
following:
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Salary.
The Executive’s salary shall be Three Hundred Sixty Thousand
Dollars
($360,000) per annum
(“Salary”) payable on the 15th
and last day of each month in arrears, in accordance with Corporation’s
standard payroll practices.
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4.
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TERMINATION.
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4.1
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Termination
By Corporation For Cause.
The Agreement may be terminated by the Corporation for cause by the
Board.
For the purposes of this Agreement the term “Cause” means the Executive’s:
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(a)
willful appropriation or conversion for his own use of property or
money
belonging to the Corporation;
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(b)
material violation of this Agreement, which is not cured within ten
(10)
days after written notice by the Corporation to the Executive;
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(c)
substance abuse and/or refusal to submit to periodic substance screening
tests as determined by the Corporation from time to time;
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(d)
commission of fraud, embezzlement, theft or other crimes, in any
case,
whether or not involving the Company, that in the reasonable opinion
of
the Board, render the executive’s employment harmful to the Corporation;
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(e)
commission of a felony; and
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(d)
in
the occurrence a case is brought forth against the Executive for violation
of
any securities or corporate laws.
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In
the event the Executive is terminated for Cause, the Corporation
shall pay
the Executive his Salary through the date of termination and, no
other
benefits hereunder shall be paid to Executive.
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| 4.2. |
Termination
By Corporation Without Cause.
The Corporation may terminate the Agreement without Cause by the
Board. In
the event the Executive is terminated for any reason other than “Cause” as
defined in Section 4.1, as the Executive’s sole remedy and severance. the
Executive shall be entitled to continue receiving his Salary for
the
period consisting of the shorter of: (i) six (6) 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,
and
the Executive shall receive any bonuses which have accrued pursuant
to
this Agreement as of the date of termination.
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| 4.3. |
Termination
By Executive For Good Reason.
The Agreement may be terminated by the Executive for Good Reason.
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, or if the Corporation takes any actions, without the
Executive’s consent, which may be deemed to be a material violation of any
applicable local, state or federal laws, regula-tions or codes.
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In
the
event the Executive terminates this Agreement for Good Reason, the Executive
shall be entitled to continue receiving his 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) six (6) months after date of
termination, and the Executive shall receive any bonuses which have accrued
as
of the date of termination.
| 4.4. |
Termination
By Executive Without Good Reason.
The Executive may not terminate the Agreement at any time without
Good
Reason
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| 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 (i) any accrued unpaid Salary to which Executive was entitled
as of
the date of death; (ii) any amounts due to Executive as of the date
of
death as reimbursement of expenses under Section 5.6 below; and,
, and the
Executive’s estate shall receive any bonuses which have accrued.
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| 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 six (6)
months
in any twelve (12) month period (a "Disability"),
the Corporation, at its option, may terminate Executive's employment
hereunder (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 (i) any unpaid accrued Salary as of the Disability
Date,
(ii) any amount due to Executive as of the Disability Date as
reimbursement of expenses under Section 5.6, and, (iii) the Executive
shall receive any bonuses which have accrued as of the date of
termination. Nothing in this Agreement is intended to cause the
Corporation to be in violation of the Americans with Disabilities
Act.
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5.
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BENEFITS.
The Executive shall be entitled to the following benefits in addition
to
those provided to all other employees of the
Corporation:
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5.1.
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Vacation.
Executive shall be entitled to reasonable paid vacation periods,
not
exceeding ten (10)
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 Chairman of the Board
of
Directors to ensure competent management of the Corporation in the
Executive's absence.
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5.2.
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Pension
Plan.
The Executive will participate in any pension plan provided by the
Corporation to its other
executives.
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5.3.
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Health
Insurance.
The Corporation agrees to provide Executive with health insurance
which
shall be paid on the Thirtieth (30) Day of each month.
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5.4.
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Reimbursement
of Expenses.
During the Term of this Agreement, the Executive shall be entitled
to
reimbursement for reasonable business expenses incurred by the Executive
on behalf of the Corporation in connection with the performance of
his
services under this Agreement within 15 days of submission of reasonable
supporting documentation. The Corporation shall use its best efforts
to
supply Executive with a business expenses credit card. For purposes
of
this Agreement the term “business expenses” shall mean food and lodging
while Executive travels on Corporation business, equivalent to Executive’s
current standard of living, and reasonable travel expenses. First
Class
travel on all domestic and transatlantic flights shall be deemed
reasonable.
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5.5.
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Other
Benefits.
During the term of the Agreement, Executive shall be entitled to
participate in any insurance programs, stock option plans, bonus
plans,
pension plans and other fringe benefit plans and programs as are
from time
to time established and maintained for the benefit of the Corporation’s
employees of comparable rank and status as Executive, subject to
the
provisions of such plans and
programs.
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5.6. Taxes. The
Executive shall be responsible for all his personal tax liabilities as to all
taxable benefits received by the Executive from the Corporation
hereunder.
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6.
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OWNERSHIP
OF INFORMATION AND DOCUMENTS.
Executive shall promptly communicate and disclose to the Corporation
on
request all information obtained by him in the course of his 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 his possession during his
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 him or conducted under his
direction in con-nection with the business of the Corporation during
his
employment hereunder. Such reports and the information contained
therein
shall be and remain the sole property of the
Corporation.
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(a) 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 he 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 $300.00 per hour.
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(b) 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 his 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."
(c) 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.
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9.
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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:
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To
the
Executive:
Xxxxxx
X.
Xxxxx
000
XX
00xx XX. #000
Xx.
Xxxxxxxxxx, XX 00000
To
the
Corporation:
Azur
Holdings Inc.
101
NE.
3rd
Avenue,
Suite 1220
Ft.
Xxxxxxxxxx, XX 00000
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10.
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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 him 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.
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11.
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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 instrument,
and contain 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 these instruments, made
as an
inducement to the execution hereof or
otherwise.
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12.
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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.
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13.
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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.
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14.
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APPLICABLE
LAW.
This Agreement shall be construed under and governed by the law of
Florida.
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15.
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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.
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16.
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AMENDMENT.
This Agreement may not be amended, terminated or super-seded except
by an
agreement in writing between the Corporation and
Executive.
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17.
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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.
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18.
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NO
VERBAL AGREEMENTS.
There are and there will be no verbal agreements in any way modifying
the
terms of this Agreement.
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19.
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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 not solicited or relied on the
other’s
legal or tax advisors for any advice with respect to this
Agreement.
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20.
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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.
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21.
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RECITALS.
The recitals set forth on the first page of this Agreement are true
and
correct and are incorporated herein by
reference.
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22.
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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.
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| 23. |
EXECUTIVE’S
REPRESENTATIONS AND WARRANTIES.
The Executive represents and warrants that he is legally free to
make and
perform this Agreement, that he has no obligation to any other person
or
entity that would affect or conflict with any of his obligations
hereunder, and the complete performance of his obligations hereunder
will
not violate any law, regulation, order, or decree of any governmental
or
jurisdictional body or contract by which he is bound.
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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. | ||
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| /s/ Xxxxxx Xxxx | By: | /s/ Xxxxxx Xxxxxxx |
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Witness
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Xxxxxx Xxxxxxx, President |
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| EXECUTIVE: | ||
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| /s/ Xxxxxx Xxxx | By: | /s/ Xxxxxx Xxxxx |
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Witness |
Xxxxxx X. Xxxxx |
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