EMPLOYMENT AGREEMENT
Exhibit
10.22
THIS
EMPLOYMENT AGREEMENT, (the “Agreement”), entered into on the 28th
day of
February 2006 and effective as of the 1st
day of
March 2006 (the “Effective Date”), by and between Xxxxxx X. Xxxx (the
“Executive”), and Azur Holdings Inc., a Delaware corporation (the
“Company”).
RECITALS
WHEREAS, The
Company hereby agrees to employ the Executive, and the Executive hereby accepts
such employment, pursuant to the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, in consideration of the mutual covenants herein con-tained and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereby agree as follows:
1.
EXECUTIVE'S
DUTIES.
The
Company hereby agrees to employ Executive to render his services during
the term
hereof, in an executive capacity as Corporate Secretary and General Counsel
(the
“Position”) and Executive hereby accepts such employment by the Company, on and
subject to the terms and con-ditions of this Agreement.
The
Executive shall use the Executive’s best efforts, skills and abilities to
promote the interests of the Company and to diligently and competently perform
faithfully and efficiently the duties of the Position.
The
Executive shall, during the term of this Agreement, devote his attention and
energies to the performance of his duties hereunder, provided that the
Company agrees that Executive may devote a portion of his time to the
performance of legal services on behalf of third parties.
The
Executive shall use his reasonable discretion in determining how to allocate
his
time between the Company and such other third parties.
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During
the term of this Agreement the Company agrees to comply with all
ap-plicable laws, regulations and codes to which it may be subject
from
time to time. The Company further agrees not to instruct the Executive
to
take any actions or perform any services, which may be deemed to
be a
violation of such applicable laws, regula-tions or
codes
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2.
COMPENSATION.
2.1.
Salary.
The
Executive’s salary shall be One Hundred Eighty Thousand Dollars ($180,000)
per
annum
(“Salary”) payable on the 1st
and the
15th
day of
each month in arrears, in accordance with Company’s standard payroll practices
beginning on the Effective Date.
2.2
Additional
Term.
The
Salary shall be increased at a rate of no less than 10% per 12 moths of
service
over the previous 12 months’ Salary (“Minimum Increase”). Any increases above
the Minimum Increase shall be at the discretion of the
Company.
3.
TERM.
The term
of Executive's employment hereunder will commence as of the Effective Date
and
will continue without interruption for a period of Six (6) month (the “Initial
Term”). After the Initial Term, the Agreement shall renew automatically for
additional six (6) month periods (the “Additional Term”) on the terms set forth
herein unless the Agreement is terminated by either party in writing within
thirty days prior to the expiration of the Initial Term or the applicable
Additional Term as the case may be.
4.
TERMINATION.
4.1 Termination
By Company For Cause.
The
Agreement may be terminated by the Company for cause. For the purposes of this
Agreement the term “Cause” means the Executive’s: (a) willful appropriation or
conversion for his own use of property or money belonging to the Company; (b)
material violation of this Agreement, which is not cured within ten (10) days
after written notice by the Company to the Executive; and (c) substance abuse
and/or refusal to submit to periodic substance screening tests as determined
by
the Company from time to time.
In
the
event the Executive is terminated for Cause, the Company shall pay the Executive
his Salary through the date of termination and, no other benefits hereunder
shall be paid to Executive.
4.2.
Termination
By Company Without Cause.
The
Company may terminate the Agreement without Cause. In the event the Executive
is
terminated for any reason other than Cause as defined in Section 4.1, the
Executive shall be entitled to continue receiving his Salary for the period
consisting of the shorter of: (i) four (4) 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.
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 Company’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 Company, or if the Company takes any
actions which may be deemed to be a violation of any applicable local, state
or
federal laws, regula-tions or codes.
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) Four (4) months after date of
termination.
4.4.
Termination
By Executive Without Good Reason.
The
Executive may terminate the Agreement at any time without Good Reason for any
reason by giving the Company thirty (30) days written notice of Executive’s
resignation. In the event this Agreement is terminated by Executive for any
reason other than for “Good Reason” as defined in Section 4.3, the Executive
shall be entitled to continue receiving his Salary through the date of such
termination. Thereafter, the Company and the Executive shall not have any
further liabilities or obligations to each other whatsoever.
4.5
Death.
In the
event of Executive's death during the term of this Agreement, the Company shall
have no further obligations to make payments or otherwise under this Agreement,
except that the Company 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 and (ii) any amounts due to
Executive as of the date of death as reimbursement of expenses under Section
5.4
below.
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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
Company, 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 Company shall have no further obligations to make payments or otherwise
under this Agreement. In the event of a Disability, the Company shall pay to
Executive within ten (10) days after the Disability Date (i) any unpaid accrued
Salary as of the Disability Date, and (ii) any amount due to Executive as of
the
Disability Date as reimbursement of expenses under Section 5.4. Nothing in
this
Agreement is intended to cause the Company to be in violation of the Americans
with Disabilities Act.
4.7
No
Offset - No Mitigation.
Executive shall not be required to mitigate any damages under this Agreement
by
seeking other comparable employment. The amount of any payment or benefit
provided for in this Agreement shall not be reduced by any compensation or
benefits earned by or provided to Executive as a result of his employment by
another employer.
5.
BENEFITS.
The
Executive shall be entitled to the following benefits in addition to those
provided to all other employees of the Company:
5.1.
Vacation.
Executive shall be entitled to reasonable paid vacation periods, not exceeding
ten (10) working days per term hereof, in addition to any legal holidays
recognized by the Company. Vacation schedules must be agreed upon with
the
Chairman of the Board of Directors to ensure competent management of the
Company
in the Executive's absence.
5.2.
Pension
Plan.
The
Executive will participate in any pension plan provided by the Company
to its
other executives.
5.3.
Health
Insurance. The
Corporation agrees to provide Executive with a $400 dollar per month health
insurance stipend which shall be paid on the Thirtieth (30) Day of each
month.
5.4.
Miscellaneous
Expenses.
The
Company shall reimburse the Executive for any expenses incurred in connection
with such his employment including travel, cellular phone, Florida bar
dues,
continued education courses and other expenses (collectively “the Expenses”) as
the Executive and the Company agrees from time to time.
5.5
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 Company’s employees of comparable rank and
status as Executive, subject to the provisions of such plans and
programs.
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6.
OWNERSHIP
OF INFORMATION AND DOCUMENTS.
Executive shall promptly communicate and disclose to the Company on request
all
information obtained by him in the course of his employment relating to
the
business of the Company. 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 Company or its business shall be the sole and exclusive property
of the
Company 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 Company.
Executive shall prepare and submit to the Company 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
Company during his employment hereunder. Such reports and the information
contained therein shall be and remain the sole property of the
Company.
7.
INTANGIBLE
PROPERTY.
Executive shall assign to the Company, immediately upon the execution of
this
Agreement, or thereafter, immediately upon making or acquiring them, as
the case
may be, any and all inven-tions, processes, discoveries, “know-how”,
improvements, patent rights, letters, patents, copyrights, trademarks,
service
marks, trade names and applications therefore and all rights and interest
in, to
and under the same which he may legally transfer, now possessed by him
or
hereafter made, acquired, or possessed by him during the term of this Agreement,
relating in any way to the business and activities of, or the equipment,
devices, processes, and formulae connected with the Company's business
or any
other business conducted by the Company and agrees that, upon request,
he will
promptly make all disclo-sures, execute all instruments and papers, and
perform
all acts whatsoever necessary or desired by the Company to vest and con-firm
in
it, its successors, assigns and nominees, fully and completely, all rights
created or contemplated by this Section and which may be necessary or desirable
to enable the Company and its successors, assigns and nominees to secure
and
enjoy the full benefits and advantages thereof.
8.
CONFIDENTIALITY.
All
information and records pertaining to the Company in the custody of the
Executive shall be considered confidential in nature and shall not be disclosed
or furnished to third parties outside of the Company without the prior
consent
of the Company. Notwithstanding the foregoing, the provisions of this paragraph
shall not prohibit the Executive from making such disclosures as may be
required
under applicable laws or pursuant to a court order.
9.
POTENTIAL
CONFLICTS.
Based
upon my discussions with the Company and certain third parties whom Executive
represented or has represented regarding my dual representation, Executive,
as a
licensed attorney in the state of Florida, has reasonably concluded that
the
representation of third parties that are related to the Company will not
affect
Executive’s responsibilities of loyalty to the Company and the third parties.
However, please be aware that in the event that there is a dispute between
the
third party and the Company that relates directly or indirectly to the
Company,
the Company agrees that the Executive will be unable to represent either
party
regarding such dispute.
This
letter is intended to comply with the Florida Bar Rules (Rule 4-1.7, among
others). If the Company has any questions regarding the foregoing, please do
not
hesitate in contacting the Executive immediately.
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10.
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:
To
the
Executive:
Xxxxxx
X.
Xxxx
0000
Xxxxxxxx Xxxx.
Xxxxx
Xxxxxx, XX 00000
To
the
Company:
Azur
Holdings Inc.
000
XX
0xx
Xxxxxx,
Xxxxx0000
Xx.
Xxxxxxxxxx, XX 00000
11.
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 Company 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 Company irreparable injury and damage. Executive, therefore, expressly
agrees that the Company 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
Company
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.
12.
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.
13.
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.
14.
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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15.
APPLICABLE
LAW.
This
Agreement shall be construed under and governed by the law of
Florida.
16.
ASSIGNMENT.
This
Agreement, and the rights conferred hereby, shall not be assignable, in
whole or
in part, by either party, except that the Company may assign this Agreement
to,
and it shall be binding upon, any person, firm or company with which the
Company
may be merged or consolidated or which may acquire all or substantially
all of
the assets of the Company.
17.
AMENDMENT.
This
Agreement may not be amended, terminated or super-seded except by an agreement
in writing between the Company and Executive.
18.
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.
19.
NO
VERBAL AGREEMENTS.
There
are and there will be no verbal agreements in any way modifying the terms
of
this Agreement.
20.
INDEPENDENT
LEGAL COUNSEL.
The
Executive and Company 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.
21.
ARBITRATION.
Except
any dispute under which the remedy of specific performance is sought under
Section 11, 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 Company, one to be
selected by the Executive, and one selected by the arbitrators selected
by the
Executive and Company. 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 Company's books and
records.
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22.
RECITALS.
The
recitals set forth on the first page of this Agreement are true and correct
and
are incorporated herein by reference.
23.
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.
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. | ||
| |
|
|
| /s/ Xxxxxx Xxxx | By: | /s/ Xxxxxx Xxxxxxx |
|
Witness |
Xxxxxx Xxxxxxx, President |
|
| EXECUTIVE: | ||
| |
|
|
| /s/ Xxxxxxxxx Xxxxx | By: | /s/ Xxxxxx Xxxx |
|
Witness |
Xxxxxx X. Xxxx, General Counsel and Secretary |
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